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Inaugural match of the cricket team of Richard Cadey

Back in June, Richard is challenged to create Cadey Cricket Club-here he is to tell us about an inaugural match of the Club.

While I am writing this my head is still certain fuzzy after a festive drink as a result of the Torrance Community Cricket Club of the inaugural match. Rewind to the beginning of June and had not TCCC. However, having been set a challenge form cricket team in my village north of Glasgow by Macaulay and Co before three months I am now the proud captain and Chairman of the Club of 30 cricket enthusiasts! Itself and the vice-captain Graham (Ringer me away) have actually played the game before. While seemingly only too pleased to see the ability to come from cricket ' closet ', all other is a complete novice.

After 10 weeks exercise every Saturday morning, rain or Sun (typically rain), we are the field for our first match against Gargunnock CC in the shadow of Stirling Castle. The sun shone and our bowling and fielding is superb. I was filled with pride to see the boys themselves throwing in front of over speeding cricket balls with no fear of bodily injury, intent only on save of the series. Moreover they are clung to each catch to their way!

Top left: two teams, top right: two masters, down from left: Richard Cadey, bottom right: Torrance Community Cricket Club

After tea served for our goal of 144 runs to win. (I) of the front and open the batting with Graeme. I managed a small but perfectly formed 5 runs before the 1 ball of 3rd, above-not a pledge between the other location. I was gutted ... Sulkily watched the rest of the game from the sidelines and my team of v〃zmno?nost are inspiring surroundings. I looked on in AWE in their efforts and marvelled at Graham, which swash-buckled road for magnificent 64. He joined the wicket of 18-year-old Scott, who immediately hit a superb six! He picked up a BAT for the first time before the six weeks, the opposition are somewhat gobsmacked; We all cheered wildly.

Alas, despite our courageous experience we fell from the run-Chase. This morning I hoped we will compete, but in the end part of me rued missed opportunity actually wins the game.

However, this is a remarkable achievement by my team. In fact we may have lost the match, but the spirit was so high that is sure to be a victory. Rotate the next season!

View the original article here

Enlightened age of litigation mediation in Ontario, Canada-drafting memos

Mediation is a cornerstone of the justice system in this province.

Ontario Chief Justice Warren Winkler, April 21, 2008

The view counsel takes of mediation will drive your approach to the case from the first meeting with your client until the dispute is resolved.

Less than a generation ago, litigation lawyers gave advice on based only on how the trial judge or the judge and jury were likely to view the facts and the law of the case. In retrospect, this was rather surprising because even in the last decades of the previous millennium, when the trend to mediated settlements was in its infancy, more than 90% of cases settled before trial.

Back then, however, lawyers approached pleadings with a minimalist philosophy. Good young counsel were taught by their senior principals in the fine art of "skinny pleadings." The objective was to give away as little of the case as possible and get to trial as quickly as possible. Senior counsel spoke of "knocking off a Statement of Claim in five minutes" and using as much "boilerplate" language as possible. A pleading, replete with evidence and full of "he said", "she said", was typically the mark of a lawyer who did not practice much litigation or of counsel who was too busy to properly mentor his freshly-minted junior.

Upon further reflection, the old approach was understandable. Before the advent of mediation as an ubiquitous and highly effective dispute resolution mechanism, settlements were all too frequently driven by a call from the Trial Office that the case would be called for trial "next week" and the Trial Scheduling Judge was not tolerating requests for adjournments lightly. Amid cries of Yikes!, and Where's the file! a small voice whispered, How about calling the other side to negotiate a settlement? What a brilliant idea! Many cases settled as much to avoid having to prepare for trial than on the basis of the merits of the case. Some cynics may argue not much has changed. Some traditionalists will claim we are being too cynical.

At the end of 2009, we have entered the Enlightened Age of Mediation. As Ontario Chief Justice Winkler said 18 months ago, Mediation is the cornerstone of the justice system in this province. Mediated settlements, not trials and appeals, not even summary judgment motions, have become the most likely way to resolve a dispute.

Aha, you say: So, how much can get for my dusty court robes? and Thank goodness, we won't have to spend any more money on those expensive CLE programs on written and oral advocacy. Not so fast, Mickey. In the "Enlightened Age of Mediation, written and oral advocacy skills are more important than ever.

Good advocacy begins with excellent and persuasive pleadings. Excellent and persuasive pleadings require an insightful appreciation of the litigation process in the context of the new Rules of Civil Procedure which come in to effect on January 1, 2010. Persuasive pleadings must, more than ever, be drafted with mediation in mind.

Some things have not changed. Wordy, unpersuasive pleadings are still the mark of counsel who has failed to appreciate the importance that a good first impression of your client's case makes. Unpersuasive pleadings are also the mark of the litigator who has not identified the target audiences of his/her client's case and may be missing out on important opportunities to achieve a successful and possibly, early resolution of the dispute.

The theme of Igor Ellyn's 2003 paper was that since the prospect of reaching trial was less than 5%, pleadings should be drafted with target audiences who are most likely to be persuaded by your client's case in mind. The target audiences of the statement of claim or statement of defence and counterclaim you draft in the privacy of your office will be read by a surprisingly large number of people, including:

o Other lawyers, law clerks and students in your firm
o Your client
o Members of your client's family
o If the client is a corporation, members of the corporation's management
o The client's in-house counsel or corporate solicitor
o Your referring lawyer
o The opposing party or parties
o Members of the opposing party's family
o If the defendant is a corporation, members of the corporation's management
o Opposing party's counsel and others in her/his firm
o The defendant's insurance adjuster and insurance claims manager
o The mandatory mediator at a pre-discovery mediation
o The case management Master at a motion or case conference
o The judge or master on pleading or particulars motions
o The judge or master on a motion for summary judgment
o The master on a post-discovery refusals motion
o The judge or master at the settlement conference or pre-trial conference
o The private mediator at a post-discovery mediation
o The judge who conducts the in-trial settlement conference
o The trial judge
o The judges of the Court of Appeal

Many of the above readers, other than the summary judgment, the trial judge and the judges of the Court of Appeal, will be key parts of the process of finding a voluntary, alternative resolution of the dispute by negotiation or mediation. Even if each category of reader represents only a single person (which is unlikely), there are more than 22 potential readers of your first public presentation of your client's position in the action: the Statement of Claim or the Statement of Defense and Counterclaim.

Attitudes to Mediation and Settlement

While we are not sure which is the chicken and which is the egg, the enlightenment of mediation is either the result or the cause of a new approach to advocacy. Gone are the days when the advocate's role was solely to careen toward trial like an out of control train. Clients may still be looking for the toughest lawyer and the lawyer who will not compromise under any circumstances but we now know that this is not what produces the results our clients are looking for.

In fact, a study published in the Journal of Empirical Legal Studies in September 2008, quantitatively evaluated the incidence and magnitude of errors made by lawyers and clients in unsuccessful settlement negotiations. The study analyzed more than 2000 cases in which settlement negotiations broke because the plaintiffs refused to accept the defendants' last offer and proceeded to trial. The study found that in more than 60% of the cases, the plaintiffs recovered less at trial than the settlement offer. The study concluded that overall, clients are happier when the case settles because of the avoidance of risk and closure the settlement produces.

In an anecdotal 2001 study by Windsor law Professor Julie Macfarlane, forty commercial lawyers in Toronto and Ottawa were interviewed to determine their attitudes to mediation. Professor Macfarlane summarized lawyers' attitudes towards mediation into five categories:

The True Believer finds that mediation has significantly affected his/her practice; sees conflict between the adversarial litigation role and that of peace facilitator in mediation. The Pragmatist finds mediation attractive due to time and cost efficiencies; generally sees no conflict between the mediation and litigation roles. The Instrumentalist views mediation as a strategic tool to promote adversarial interests and goals. The Dismisser sees mediation as equivalent to traditional negotiation; considers mandatory mediation an intrusion by the court. The Denier sees mediation as a threat to the integrity of the role of the lawyer; strongly opposes mediation.

While it is too much to expect all litigators will become True Mediation Believers and Mediation Pragmatists, the Dismissers and Deniers have to accept that the Mediation Train has left the station and enlightened litigators simply have to be on it to succeed. In the Enlightened Age of Mediation, the question is not Will there be a mediation? but rather, how can the mediation be made more effective to increase the prospects for settlement of the dispute? We submit that the successful mediated settlement track begins with persuasive pleadings.

Our point that persuasive pleadings are your first opportunity to communicate the righteousness of your client's case to the opposing party while underscoring the weaknesses of the defendants' position and their exposure to adverse consequences was also recently made in a well-written paper recently submitted to an OBA CLE seminar by Renato Gasparotto and Michael Polvere. The authors emphasize that at the heart of good advocacy is the effective of use of language and a realistic understanding and assessment of the supporting facts, well-organized and clearly expressed. To this we add, that there has to be a mindset, a format and an understanding of the law.

The New Ontario Rules of Civil Procedure

The new Rules of Civil Procedure, which come into effect on January 1, 2010, are intended to make the civil justice system more accessible and affordable for Ontarians. There has been a shocking increase in the number of unrepresented litigants. The November 2007 Civil Justice Reform Project under the able chairmanship of former Ontario Associate Chief Justice Coulter A. Osborne, QC recommended better and less expensive access to the Courts with more mechanisms to promote early settlement.

Most of the amendments make it easier to take a case off the litigation track and put it on the mediation track. Of course, this does not mean litigants lose their opportunity to have their day in Court if settlement is impossible. However, the new system recognizes that most cases will settle by mediation or by counsel applying mediation principles and negotiating settlement themselves.

Under the new Rules of Civil Procedure, more cases will settle before trial, because:

o more cases will be subject to mandatory mediation. All cases in Toronto, Ottawa and Windsor which do not fall within the specific exceptions in new Rule 24.1.04(2) are subject to mandatory mediation.
o All simplified rules cases in Toronto, Ottawa and Windsor are subject to mandatory mediation.
o The cap or ceiling for simplified rule cases increases to $100,000.00.
o There is more flexibility as to the timing of a mandatory mediation. Rule 24.1.09(1) permits the mediation to take place within 120 days after the first defence was filed. Also, the parties may consent to postpone the mediation to a later date. This flexibility enables counsel to delay the mediation until enough documentary and oral discovery has taken place to enable parties to better understand each other's positions and what evidence will be adduced at trial.

Matters to consider before you draft your pleading

It is not enough to draft the bare minimum when it comes to pleadings. A good lawyer will use every tool s/he has to advocate on behalf of a client, and a strong pleading is the first step.

Preparation and Investigation

Pleadings should not be skinny. They should be used by counsel to present the best face of their client's case with the information available to them at that time. Much can be done to prepare persuasive pleadings even before discovery. Before you begin to draft your pleading, make sure that you have done the following:

o Speak to your client(s) at length and get their full story in detail
o Speak to potential trial witnesses
o Hire a private investigator
o Ask your client for a chronology of key events in the case
o Review the chronology in detail and identify what documents are likely to exist
o Press your client to provide all documents related to the case in any way
o Don't forget documents in electronic format; get all of the emails
o Organize and read the documents your client sends
o Prepare your own chronology of the events from an advocacy perspective
o Identify the factual and legal issues in dispute
o Identify the remedies your client hopes for
o Now is the time to research all of the applicable issues of law
o Balance your client's hopes with an analysis of what is achievable
o Identify all your causes of action and ensure you have the proper "test"
o Identify all applicable statutes, rules, regulations and maxims
o Identify all defences, including limitation periods, which are now very short
o Assess whether to Crossclaim, Counterclaim or Third Party
o Critically review precedent pleadings in your office or on databases

Oral and Documental Discovery

Under the new Rule 29.1 counsel are required to agree to, and to update, a written discovery plan. In their discovery plan counsel will jointly decide when the Affidavit of Documents will be exchanged. Where the parties have failed to agree to or update a discovery plan in accordance with Rule 29.1, and where a party has brought a motion under Rules 30-35 (the discovery rules) the court may refuse to grant any relief or to award any costs.

As for examinations for discovery, gone are the days of endless hours and days of examinations. Under Rule 31.05.1(1) there is now a 7 hour time limit on the length of examinations for discovery per party.

To encourage counsel to discuss settlement earlier in the action, parties in Rule 76 Simplified Rules cases will have the opportunity to examine an opposing party for discovery but it shall not "exceed a total of two hours of examination, regardless of the number of parties or other persons to be examined." As there are no transition rules, claims between $50,000.00 (the old simplified rules cap) and $100,000.00 (the new simplified rules cap) will also only be allowed two hours of examinations for discovery; whereas before they were allowed unlimited days for examination for discovery.

Drafting effective pleadings

Instead of drafting skinny pleadings, which limit the information provided, counsel should see pleadings as an opportunity to persuade the primary target audiences of its merits. Persuasion is in part a presentation art form. As set out in Igor Ellyn's April 2003 paper, a good pleading should not:

o lack eye appeal or is unreadable due to font size or other factors
o be too wordy or contain spelling or grammar errors
o be vague, unparticularized and difficult to follow
o contain more than one major thought per paragraph
o exaggerate or misstate important facts
o fail to disclose a reasonable cause of action
o raise remedies without pleading the elements required to prove them
o contain allegations bound to anger the other party
o allege fraudulent conduct without sufficient particulars or that cannot be proved
o allege fraudulent conduct which makes insurance inapplicable
o seek damages for "pie in the sky" unrecoverable amounts
o seek punitive damages when they could never be recovered
o seek punitive damages for unreasonable amounts

In 1996, Justice Paul Perell, whose expertise about pleadings was well-recognized before he was appointed to the Ontario Superior Court of Justice in 2005, published an excellent article entitled "The Essentials of Pleading". Although the article was published 13 years ago, it is still a useful guide for what should and should not be pleaded. Persuasive pleadings should be civil, reasonable and measured. Good pleadings are a powerful advocacy tool to present the strengths of your client's case while exposing the weakness of the opposing party's position.

You know there will be a mediation

Almost as sure as the sun will rise tomorrow, there will be a mediation in your case; unless your client gives up or the defendant goes bankrupt early in the case. We recognize that there some obstinate litigants who refuse to participate in a mediation and some who want their day in court "no matter what". In our experience, even most of these will eventually find their way to mediation, which may settle the whole case. Rule 24.1 requires that early on, before discovery is completed, a mandatory mediation be held. Non-mandatory mediations are also arranged in most cases.

Drafting pleadings with mediation in mind means that the statement of claim should be a more thorough statement of the plaintiff's claim than it has been in the past. To the extent that the Rules allow, the statement of claim should prepare counsel for the mandatory mediation which will soon take place. Under Ontario's mandatory mediation process, the parties are required to submit a Statement of Issues. A well drafted pleading assists counsel in drafting their statement of issues or mediation brief.

Well-drafted pleadings will assist counsel in settling the case. An effective pleading assists in the preparation of the Statement of Issues or Mediation Brief. A lot of the work required for the mediation has already been completed:

o the facts of the case are already set out in an easy to follow chronology
o it may be easier to forge an agreed statement of facts
o turned their mind to the issues in dispute in the action
o researched the case law
o identified and referred to the applicable statutes, rules and maxims

The only difference between the pleadings and the Statement of Issues and Mediation Brief is that the pleadings will not contain matters which compromise the claim. The pleadings are not without prejudice whereas the mediation brief is.

Pre-Trial Conferences

All parties of cases that fall under the new Rule 76 Simplified Rules are required to attend a pre-trial conference in front of a Master or Judge; arranged by the registrar within 90 days after the action is set down for trial.

Rule 50, which deals with pre-trial conferences, has been completed revamped. When the Rule amendments were introduced, the Attorney General noted that the government hopes to encourage settlement and the narrowing of trial issues by mandating pretrial conferences. The purpose of Rule 50 is to provide an opportunity for any or all of the issues in a proceeding to be settled without a hearing. The new rules also will require parties to file a detailed conference briefs. Parties and counsel must appear at pre-trial conferences, and courts will be empowered to order a timetable for moving forward when matters are not settled at the conference, said the ministry.

Judges are more knowledgeable about mediation than they were a decade ago. Indeed many judges are very skilled mediators. The pre-trial conference is a mediation opportunity. Counsel knows that the pre-trial judge will read the pleadings. Well- drafted pleadings, which tell a clear, concise, persuasive story in short sentences and short paragraphs will assist the pre-trial judge in understanding your case.

A few words of wisdom from the pre-trial judge can have a major impact on the direction of the case. A party quickly begins to talk settlement when the pre-trial judge says: "Look, we assess risk here every day. You don't have to settle but if I were the trial judge, you'd have a still uphill climb to persuade me of your position. Another judge might see it differently but... If the defendant is represented by counsel for an insurance company, the lawyer will have report to his client. An acceptable settlement offer may soon follow.

In such situations, the likelihood of reaching a settlement depends on good advocacy and effective negotiations. Good advocacy begins with good pleadings, which put your client's best foot forward and persuade the opposing party that you are competent counsel who will effectively advance the strengths of your client's case and expose the weaknesses of the defendant's case at trial if there is no settlement.

Case and Settlement Conferences

Old Rules 77 (Civil Case Management) and 78 (Toronto Civil Case Management) are revoked as of January 1, 2010. In its place, the new Rule 77, which applies to proceedings in Ottawa, Toronto and Windsor, incorporates the old Rules and adds some new elements. The new rule mandates case conferences and settlement conferences throughout the action. Each of these events represents an opportunity to obtain the assistance of the Court in narrowing the issues and possibly, settling the action. Good pleadings may assist in achieving these objectives.

Conclusion

In the Enlightened Age of Mediation, the trial is no longer the usual end game of the litigation process. With the ever increasing cost of litigation, the most likely resolution will be a mediated settlement. It is likely to save money and achieve a better result than the risk of a trial and an appeal. Coincidentally, this is what your clients are hoping for.

Pleadings which make a strong but reasonable case to your target audiences are more likely to be persuasive and will assist you in negotiating a better settlement for your client at mediation or sooner.

Toronto, November 2009.

Igor Ellyn, QC, CS is the senior partner of ELLYN LAW LLP Business Litigation & Arbitration Lawyers, a Toronto law firm specializing in business dispute resolution and international judgment and arbitral award enforcement. He is a Specialist in Civil Litigation and a past president of the Ontario Bar Association. Evelyn Perez Youssoufian is a commercial litigation lawyer at ELLYN LAW LLP Business Litigation & Arbitration Lawyers. She has practiced law since 2005 and is an LL.B./J.D. graduate of the Faculty of Law, University of Windsor and University of Detroit Mercy. Ellyn Law LLP Business Litigation & Arbitration Lawyers is a proud member of two prestigious international networks, the International Network of Boutique Law Firms (http://www.inblf.com). For more information about the authors and their litigation services, please visit http://www.ellynlaw.com.

Beware of lawyers who guarantee results

Lawyers do not guarantee results. I don't care how good your lawyer claims as he or she cannot guarantee the outcome of your case. Not only can be done. I often hear from potential clients calling another lawyer in the initial interview, said that their cause is "slam dunk". Indeed, the victims personal injury even advised by lawyers seems a valuable psychological wounds before even counsel reviewed the medical records. Potential customers should be very cautious of lawyers who promise a lot in the first interview. Lawyers cannot predict the future. If a lawyer tilibathik capacity to ensure your results, you are completely confident that it did not lie to you, then set this lawyer. In fact, if they have psychic power, you also have to ask your next investment.

In fact, lawyer meeting you for the first time, you cannot accurately predict the outcome of your case. There are hundreds of variables which will effect your case, many of them can identify possibly at first. For example, what kind of witnesses will you be? Might be quite charming in the initial interview, after crumbling under the pressure litigationlong. The strength of witness will be your opponent? He reviewed all the exhibits in your case? In my 21 years of legal practice, I've had very few cases in which draws potential customers all exhibits the initial interview. So far, without reviewing all documentation material, it is impossible to predict the outcome of the case. If the issue personal injury , what medical reports say the victim injuries? It is nearly impossible to accurately estimate the value of the claim personal injury without reviewing the physical injuries, as reflected in those reports.

If counsel makes your detailed promises about the potential outcome of your case in your initial interview, you should be happy, you should be concerned. An experienced lawyer will recognize and honest no guarantee in our legal system is incomplete. Lawyer upfront with you, and who knows what she is doing, will start value if before considering all the evidence.

When choosing a lawyer, see who gives you advice, respectively. Often the best lawyer for you is faithful enough to tell you the weaknesses and strengths in your situation. Would you trust a doctor who told you that smoking is good for your lungs. Not a lawyer who wants more to tell you what you want to hear.

Hawaii Attorney Philip r. Brown 20 years experience in civil litigation. Mr. Brown top rated legal capacity/ethical Hubble Martindale, was found in the "recording tape prominent lawyers in the civil trial practice subject matters and trade issues and personal injury. Location http://www.hawaii-attorney.netonline

Restraining orders in cases of mortgage fraud, securities healthcare & Bank Federal lawyers & lawyers

The health care fraud, bank/mortgage fraud and securities fraud practitioner should be aware of 18 U.S.C. ? 1345, a law which permits the federal government to file a civil action to enjoin the commission or imminent commission of a federal health care offense, bank-mortgage offense, securities offense, and other offenses under Title 18, Chapter 63. Otherwise known as the federal Fraud Injunction Statute, it also authorizes a court to freeze the assets of persons or entities who have obtained property as a result of a past or ongoing federal bank violations, health care violations, securities violations, or other covered federal offenses. This statutory authority to restrain such conduct and to freeze a defendant's assets is powerful tool in the federal government's arsenal for combating fraud. Section 1345 has not been widely used by the federal government in the past in connection with its fraud prosecution of health and hospital care, bank-mortgage and securities cases, however, when an action is filed by the government, it can have a tremendous effect on the outcome of such cases. Health and hospital care fraud lawyers, bank and mortgage fraud attorneys, and securities fraud law firms must understand that when a defendant's assets are frozen, the defendant's ability to maintain a defense can be fundamentally impaired. The white collar criminal defense attorney should advise his health and hospital care, bank-mortgage and securities clients that parallel civil injunctive proceedings can be brought by federal prosecutors simultaneously with a criminal indictment involving one of the covered offenses.

Section 1345 authorizes the U.S. Attorney General to commence a civil action in any Federal court to enjoin a person from:

? violating or about to violate 18 U.S.C. ?? 287, 1001, 1341-1351, and 371 (involving a conspiracy to defraud the United States or any agency thereof)
? committing or about to commit a banking law violation, or
? committing or about to commit a Federal health care offense.

Section 1345 further provides that the U.S. Attorney General may obtain an injunction (without bond) or restraining order prohibiting a person from alienating, withdrawing, transferring, removing, dissipating, or disposing property obtained as a result of a banking law violation, securities law violation or a federal healthcare offense or property which is traceable to such violation. The court must proceed immediately to a hearing and determination of any such action, and may enter such a restraining order or prohibition, or take such other action, as is warranted to prevent a continuing and substantial injury to the United States or to any person or class of persons for whose protection the action is brought. Generally, a proceeding under Section 1345 is governed by the Federal Rules of Civil Procedure, except when an indictment has been returned against the defendant, in which such case discovery is governed by the Federal Rules of Criminal Procedure.

The government successfully invoked Section 1345 in the federal healthcare fraud case of United States v. Bisig, et al., Civil Action No. 1:00-cv-335-JDT-WTL (S.D.In.). The case was initiated as a qui tam by a Relator, FDSI, which was a private company engaged in the detection and prosecution of false and improper billing practices involving Medicaid. FDSI was hired by the State of Indiana and given access to Indiana's Medicaid billing database. After investigating co-defendant Home Pharm, FDSI filed a qui tam action in February, 2000, pursuant to the civil False Claims Act, 31 U.S.C. ?? 3729, et seq. The government soon joined FDSI's investigation of Home Pharm and Ms. Bisig, and, in January, 2001, the United States filed an action under 18 U.S.C. ? 1345 to enjoin the ongoing criminal fraud and to freeze the assets of Home Pharm and Peggy and Philip Bisig. In 2002, an indictment was returned against Ms. Bisig and Home Pharm. In March, 2003, a superseding indictment was filed in the criminal prosecution charging Ms. Bisig and/or Home Pharm with four counts of violating 18 U.S.C. ? 1347, one count of Unlawful Payment of Kickbacks in violation of 42 U.S.C. ? 1320a-7b(b)(2)(A), and one count of mail fraud in violation of 18 U.S.C. ? 1341. The superseding indictment also asserted a criminal forfeiture allegation that certain property of Ms. Bisig and Home Pharm was subject to forfeiture to the United States pursuant to 18 U.S.C. ? 982(a)(7). Pursuant to her guilty plea agreement, Ms. Bisig agreed to forfeit various pieces of real and personal property that were acquired by her personally during her scheme, as well as the assets of Home Pharm. The United States seized about $265,000 from the injunctive action and recovered about $916,000 in property forfeited in the criminal action. The court held that the relator could participate in the proceeds of the recovered assets because the relator's rights in the forfeiture proceedings were governed by 31 U.S.C. ? 3730(c)(5), which provides that a relator maintains the "same rights" in an alternate proceeding as it would have had in the qui tam proceeding.

A key issue when Section 1345 is invoked is the scope of the assets which may be frozen. Under ? 1345(a)(2), the property or proceeds of a fraudulent federal healthcare offense, bank offense or securities offense must be "traceable to such violation" in order to be frozen. United States v. DBB, Inc., 180 F.3d 1277, 1280-1281 (11th Cir. 1999); United States v. Brown, 988 F.2d 658, 664 (6th Cir. 1993); United States v. Fang, 937 F.Supp. 1186, 1194 (D.Md. 1996) (any assets to be frozen must be traceable to the allegedly illicit activity in some way); United States v. Quadro Corp., 916 F.Supp. 613, 619 (E.D.Tex. 1996) (court may only freeze assets which the government has proven to be related to the alleged scheme). Even though the government may seek treble damages against a defendant pursuant to the civil False Claims Act, the amount of treble damages and civil monetary penalties does not determine the amount of assets which may be frozen. Again, only those proceeds which are traceable to the criminal offense may be frozen under the statute. United States v. Sriram, 147 F.Supp.2d 914 (N.D.Il. 2001).

The majority of courts have found that injunctive relief under the statute does not require the court to make a traditional balancing analysis under Rule 65 of the Federal Rules of Civil Procedure. Id. No proof of irreparable harm, inadequacy of other remedies, or balancing of interest is required because the mere fact that the statute was passed implies that violation will necessarily harm the public and should be restrained when necessary. Id. The government need only prove, by a preponderance of the evidence standard, that an offense has occurred. Id. However, other courts have balanced the traditional injunctive relief factors when faced with an action under Section 1345. United States v. Hoffman, 560 F.Supp.2d 772 (D.Minn. 2008). Those factors are (1) the threat of irreparable harm to the movant in the absence of relief, (2) the balance between that harm and the harm that the relief would cause to the other litigants, (3) the likelihood of the movant's ultimate success on the merits and (4) the public interest, and the movant bears the burden of proof concerning each factor. Id.; United States v. Williams, 476 F.Supp2d 1368 (M.D.Fl. 2007). No single factor is determinative, and the primary question is whether the balance of equities so favors the movant that justice requires the court to intervene to preserve the status quo until the merits are determined. If the threat of irreparable harm to the movant is slight when compared to likely injury to the other party, the movant carries a particularly heavy burden of showing a likelihood of success on the merits. Id.

In the Hoffman case, the government presented evidence of the following facts to the court:

? Beginning in June 2006, the Hoffman defendants created entities to purchase apartment buildings, convert them into condominiums and sell the individual condominiums for sizable profit.

? To finance the venture, the Hoffman defendants and others deceptively obtained mortgages from financial institutions and mortgage lenders in the names of third parties, and the Hoffmans directed the third party buyers to cooperating mortgage brokers to apply for mortgages.

? The subject loan applications contained multiple material false statements, including inflation of the buyers' income and bank account balances, failure to list other properties being purchased at or near the time of the current property, failure to disclose other mortgages or liabilities and false characterization of the source of down payment provided at closing.

? The Hoffman defendants used this method from January to August 2007 to purchase over 50 properties.

? Generally, the Hoffmans inherited or placed renters in the condominium units, received their rental payments and then paid the rent to third-party buyers to be applied as mortgage payments. The Hoffmans and others routinely diverted portions of such rental payments, often causing the third-party buyers to become delinquent on the mortgage payments.

? The United States believe that the amount traceable to defendants' fraudulent activities is approximately $5.5 million.

While the court recognized that the appointment of a receiver was an extraordinary remedy, the court determined that it was appropriate at the time. The Hoffman court found that there was a complex financial structure which involved straw buyers and a possible legitimate business coexisting with fraudulent schemes and that a neutral party was necessary to administer the properties due to the potential for rent skimming and foreclosures.

Like other injunctions, the defendant subject to an injunction under Section 1345 is subject to contempt proceedings in the event of a violation of such injunction. United States v. Smith, 502 F.Supp.2d 852 (D.Minn. 2007) (defendant found guilty of criminal contempt for withdrawing money from a bank account that had been frozen under 18 U.S.C. ? 1345 and placed under a receivership).

If the defendant prevails in an action filed by the government under the Section 1345, the defendant may be entitled to attorney's fees and costs under the Equal Access to Justice Act (EAJA). United States v. Cacho-Bonilla, 206 F.Supp.2d 204 (D.P.R. 2002). EAJA allows a court to award costs, fees and other expenses to a prevailing private party in litigation against the United States unless the court finds that the government's position was "substantially justified." 28 U.S.C. ? 2412(d)(1)(A). In order to be eligible for a fee award under the EAJA, the defendant must establish (1) that it is the prevailing party; (2) that the government's position was not substantially justified; and (3) that no special circumstances make an award unjust; and the fee application must be submitted to the court, supported by an itemized statement, within 30 days of the final judgment. Cacho-Bonilla, supra.

Healthcare fraud attorneys, bank and mortgage fraud law firms, and securities fraud lawyers should be cognizant of the government's authority under the Fraud Injunction Statute. The federal government's ability to file a civil action to enjoin the commission or imminent commission of federal health care fraud offenses, bank fraud offenses, securities fraud offenses, and other offenses under Chapter 63 of Title 18 of the United States Code, and to freeze a defendant's assets can dramatically change the course of a case. While Section 1345 has been infrequently used by the federal government in the past, there is a growing recognition by federal prosecutors that prosecutions involving healthcare, bank-mortgage and securities offenses can be more effective when an ancillary action under the Section 1345 is instigated by the government. Health and hospital care lawyers, bank and mortgage attorneys, and securities law firms must understand that when a defendant's assets are frozen, the defendant's ability to maintain a defense can be greatly imperiled.

? 2010 Joseph P. Griffith, Jr.

Joseph P. Griffith, Jr.
SC Health Care Fraud Attorney
SC Bank-Mortgage Fraud Lawyer
SC Securities Fraud Law Firm
Joe Griffith Law Firm, LLC
7 State Street
Charleston, South Carolina 29401
(843) 225-5563
http://www.joegriffith.com

South Carolina Attorney Joe Griffith is a former SC federal prosecutor who handles white collar criminal defense health care fraud cases, bank and mortgage fraud cases, securities fraud cases, and False Claims Act qui tam whistleblower cases in South Carolina and the United States.

? 2010 Joseph P. Griffith, Jr.

Litigation costs a lot more than you might think!

Before investing time and money to study law and become a lawyer, I keep one of them I thought weak.

After contractual dispute an ocean away from my home base, he advised restraint, noting that if pursuing this issue litigationthrough, and I would like to:

(1) investment much more than is the case with

(2) no warranty whatsoever that would've won.

He urged an informal resolution of this matter, as he did so, and I remember thinking that it is not just to fight, and I chose the wrong lawyer.

Now, after many battles, with varying results, I can see you are ranting and naive, and his advice was right on the money. Didn't I just had to hear the truth.

Know what to do, today, I would add another alienating litigation: you are reluctant to repeat the past. Invest a tremendous amount of psychic energy to justify yourself says a disappointing story weritiling, and so could not abort your future planning.

Every dollar you chase Phantom of a relationship gone wrong doesn't cost you just 1 dollar today or tomorrow. Is hit, not only to invest extra bucks in legal fees. Additionally, I hand the dead past hidden premium, steal your creativity and imagination for your use which makes you remembered the narrative grows less reliable with each telling, day after day.

People known for healing past release, underestimated the pain while recalling its rosy. This psychological viewpoint, healthy and positive. But worsening lawsuit, ejaculation is inevitable and recriminations, and "auvolizing" our healing appears to give bonuses to append more your opponents.

Of course, there are circumstances which give us no alternative to litigation. And like good soldiers that we must go ahead despite the bloodshed and distractions.

But if your counsel restraint after assessing the situation, we appreciate this: maybe force signals rather than double, and wisdom.

Dr. Gary s. Goodman was the top speaker and best-selling author of 12 books, including "consultation with" six-figure consultant, Attorney-real estate broker, commentator and television career: how to be "a big". A creator success seminar Nightingale Conant audio: "large numbers of law": "how to make the inevitable success. See http://www.nightingale.com/prod_detail~product~Law_Large_Numbers.aspx : his original degree, "best practices in negotiation," the Los Angeles & the University of California Berkeley extension "in a number of fine universities and other organizations.

Gary holds seminars, and speaking in UNCCD programmes around the world. He said a gary@customersatisfaction.comin

Lawyer-five questions you should ask always

Hard enough to hire a lawyer when you are familiar with the legal issue and lawyers deal with. When people were injured, and need workers ' compensation or personal injury Attorney for the first time, it is almost impossible to know if you select the right Attorney. Ironically, in most cases, if you select only good attorney will be determined when the case is over. The following five questions will ensure that your competent counsel or lawyer best for your situation. Will give you an idea of the kind employed Attorney.

1- How many years experience do you have? Seems obvious question but it is surprising how rarely gets asked. Experience is the key to the practice of law. Adage's legal counsel, gray hair. More experience, or that it was likely that a similar situation to you. However, every professional must start somewhere. If you set your status to young Assistant, make sure someone with experience overseeing the case.

2- Is the percentage of your practice in this area of law? Is becoming the practice of law and more specialized. It is true that lawyers who chooses his practice focus or one know this area better than one who tries to do a little bit of everything. It is very difficult in this day and time that the "Jack of all trades." Also, relations between the opposition lawyers play in successfully resolving the issue. More specialized attorney or probably know discount if litigationin case.

3- Your malpractice insurance? Asked this question almost never ask, but it should be. However, if you're working at home your question I would ask perhaps "insurance?". If not worse, and commit your lawyer malpractice, you don't need to try to collect from people uninsured. Also, if he has any locking, there may be a reason such as previous successful malpractice claims.

4-when I call, I will speak to your or one of your staff? While legal assistants and Secretaries are important for any successful exercise, they are not lawyers, not an alternative fair to talk directly with your lawyer about important issues in your situation. This doesn't mean you should expect always to talk to your lawyer when you call. However, some companies rely solely on legal assistants after commencement of the case. Counsel the client when the company is retained, perhaps stabilizes. Counsel assigned to him or not Sentinel staff.

5. will try cases yourself? Often see lawyers never scale inside the courtroom. If the case for trial, they either leave your question or refer to another person. In the practice of "size", time-consuming trial compared with this settlement. They sacrifice what some recovery on one case, in sheer numbers. This practice is referred to as "mills" grind out settlement after settlement. However, when your opponent knows that your lawyer does not want to raise your case before the Court, the chances of you getting the maximum value for your situation.

The decision will be made to counsel the outcome eventually than any other decision you make the claim. Most people take this resolution on the ad type anyone in the phone book or the business they see or hear on TV or radio. Just because it appears this media is not a lawyer either rental or rejected. Hire someone you feel comfortable and confident. We hope that the above suggestions would be helpful.

Chestnut Herbert lawyer in Marietta, Georgia with more than 25 years of experience. He specializes in the workmen in Georgia and injury cases involving Iraq contractors under "Defense Base Act". A chestnut Mr. code base defense and workers ' compensation is set to "public prosecutor" three times "review of the consumer business." View site http://www.chestnutlegal.comin