Battered woman syndrome (more commonly called "BWS" or Intimate Partner Abuse and its Effects) describes a pattern of psychological and behavioral symptoms found in women living in abusive relationships. (BWS occurs in same-sex relationships, and men can suffer from "BWS," but the overwhelming amount of research in the area has focused upon the female sufferer.) Typically, BWS falls under the category of post-traumatic stress disorder. There are four general characteristics of Battered Women's Syndrome:

1. The fear that her life and/or her children's lives are in danger; 2. An inability to place the responsibility for the violence elsewhere; 3. The belief that the violence was her fault; 4. An irrational belief that the abuser is omniscient and omnipresent.

If your partner does not have these symptoms, chances are great that she does not suffer from BWS. An experienced criminal defense lawyer will show that your partner could not suffer from BWS because of the absence of one or more symptoms. He or she may show this through medical reports, police reports, witness testimony or even expert witness testimony.

In order to be diagnosed with battered women's syndrome a person must experience at least two complete battering cycles. The cycle has three distinct phases: the tension-building phase, followed by the violent incident, followed by the "make-up" or "honeymoon" phase. If there have not been two cycles, the person cannot be diagnosed with the syndrome. If relevant to your case, your attorney will try to prove that your partner could not possibly be a victim of BWS.

Experts. The criminal case is a war. The prosecutors want to prove that you are guilty of domestic violence. They will try anything and everything in their power to make sure that you are convicted of the charges brought against you.

To that end, they will often attempt to offer "expert" testimony regarding Battered Women's Syndrome. These experts are used particularly when your partner recants his or her story. If there is recantation, the prosecution will likely bring in an expert on BWS who will say that recanting a story is a major symptom of this syndrome. The expert has likely never met the complaining witness in your case. In fact, the expert probably has no knowledge of your partner's mental health history (if any). This means that, without knowing anything about your partner, the expert will say that your partner suffers from BWS. As you may imagine, this is a horrible situation for your case. If the expert can convince the jurors that your partner suffers from BWS, there is only one person who can be responsible: you.

All hope is not lost, though. There are specific rules that must be followed before an expert's testimony can be heard in court. A skilled defense attorney may be able to prevent the expert's testimony from being admitted in your case. In addition, your attorney may choose to present testimony from a defense expert to refute the prosecution's expert or to present evidence that you were the injured party.

Battered Women's Syndrome as a Defense. Battered Women's Syndrome is a serious medical issue. If you believe that you are suffering from the syndrome, it is important to tell your lawyer. Your attorney may bring in experts to prove that you suffer from the syndrome and to offer opinions about how that relates to the charged offense. If it can be proved that you suffer from Battered Women's Syndrome, this may be a valid defense to the domestic violence charges pending against you.

BWS is a complex issue, and it plays a potentially significant role in domestic violence cases. If you or someone you care about has been accused of domestic violence, or any crime of violence, it is vital that you consult with a skilled and experienced criminal defense lawyer right away. www.nocuffs.com

By: Darren Kavinoky
Darren Kavinoky is a Los Angeles-based criminal defense lawyer who practices throughout California. He is the Managing Shareholder of The Kavinoky Law Firm, an 11-lawyer criminal defense firm that handles criminal defense matters exclusively. Darren has provided legal commentary on Larry King Live, the Today Show, Celebrity Justice and many other TV and radio programs.

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The law, as a means of administering dispute resolution and criminal accountability, must be able to adapt to revolutions of industry or technology. We are currently in the beginning years of a technological revolution that will only grow and continue to change the way humans live their lives. Computer and internet use have changed the way that people and business think and act. In today's judicial system, a case (either civil or criminal) is often decided by the evidence produced and discovered prior to trial. As computers have become the integral components of any successful business operation, the records on those computers have become more difficult to discover. Not only because of the difficulty of gaining access to an adversary's computer records, but also because many seasoned attorneys do not even know what to look for when they do gain access. Adding to the confusion is a lack of guiding procedural and case law. New methods of discovery have hampered older, traditional attorneys who carry with them the knowledge and experience from the days of paper and pen. The old rules are obsolete, and in today's world if you can not keep up with the technology and developments in the law then you will be left as ineffectual as the paper and pen you hold in your hand.

In response to the increased demands for structure in E-discovery, the ABA has proposed new Amendments to Civil Discovery Standards relating to the use of E-discovery. In part, these proposed amendments are aimed at providing guidance for evidence retention, destruction and production.

Electronic evidence presents many issues not previously experienced with more traditional forms of evidence. Certain forms of electronic evidence may be misleading and prejudicial to one party or the other, because one piece of evidence may only represent an initial draft of a document, containing information leading to the inference of liability. From a simple printout of electronic evidence, it can be extremely difficult to ascertain whether that evidence is the first or final draft, and whether that evidence has any impact on the dispute. In many ways electronic evidence provides for easier access because there is no need to search through cumbersome boxes of paper, but conducting the actual discovery process may exponentially increase the costs to both the producing and discovering parties. It takes substantial time to track down trails of information throughout a company's network. From a plaintiff's point of view, electronic evidence is difficult to destroy, as it takes an extremely complicated and sophisticated process to completely erase an electronic signature and metadata associated with the files. As demonstrated, electronic evidence may at times be more difficult to find, but conversely, it is also harder to destroy. This juxtaposition of qualities can make a process that appears more concise in theory, to actually become more cumbersome and costly when actually put into practice.


In response to these growing concerns, as part of its proposed amendments, the ABA has focused on E-discovery issues ranging from pre-trial conferences and electronically stored information to a party's failure to comply with discovery or to cooperate. Unnerving to many plaintiff's attorneys is proposed Amendment 37(f), which provides that:
"Unless a court order requiring preservation of electronically stored information is violated, the court may not impose sanctions under these rules on a party when such information is lost because of the routine operations of its electronic information system if the party took reasonable steps to preserve discoverable information."

This is perhaps the most troublesome (at least for plaintiff's attorneys), because it effectively creates a safe-harbor for the destruction of electronic evidence. Sanctions would be barred when information is destroyed as a result of routine destruction practices. The rule mentions nothing about what a reasonable destruction practice is or whether a party must freeze those practices once it learns that there is a potential for litigation.


Other important proposed amendments include:

Rule 33(d). Under the traditional Rule 33, a party responding to an interrogatory could produce business records as a substitute for explicitly responding to the interrogatory. Under Amended Rule 33(d), the responding party will be permitted to produce electronic dates and records when responding to interrogatories provided that the requesting party can easily identify and locate the sought after information.

Rule 34(b). The new proposed amendments do not require an attorney to choose a particular evidentiary format when responding to discovery requests, but its mere mention suggests a policy toward favoring electronic evidence. When a requested production format is not specified, the responding party should produce evidence in the manner in which that information is ordinarily maintained or, alternatively, in a form that is reasonably easy to access and use.

Rule 26(b)(5)(B). This amendment addresses the inadvertent production of privileged or protected information. This rule will allow a party who unintentionally discloses the privileged information to retrieve it from the accidental receiving party unless that party can prove that they have a right to that information.

Rule 45. This amendment to Rule 45 would essentially allow parties to subpoena electronically stored information pursuant to any of the other adopted amendments contained in the Rules.
These are not the only proposed changes, but this brief summary of the proposed amendments is a good demonstration of the increasing preference for electronic discovery. The legal world is changing and those attorneys who are unable to keep up with the changes will be left in the dust. This move by the ABA should serve as a sign to those attorneys frightened by technology and advancements in the law. Electronic discovery is here to stay, unlike those who refuse to welcome the changes to the judicial discovery process.

By: Nicholas Deleault
A Franklin Pierce Law Student. Nicholas writes select legal articles for the Law Firm of Goldstien and Clegg, a Massachusetts cyberlaw firm.

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A typical scenario: you’re a litigator or trial attorney preparing a case and you have a number of witnesses to depose, so you pick up the phone to call your trusty court reporter to arrange the depositions … but have you considered the advantages of using a videographer at the same time? There are many reasons to a video record a deposition:

1. If a key witness cannot attend a trial, a videotaped deposition can often be the next best thing. The judge and jury are not only able to listen to the witness (deponent), but also see the deponent at the same time. They can pick up on nonverbal communication that would often be critical on the stand: body language, hesitancy, vocal inflections, demeanor, volume, etc. None of these cues are available in a standard transcribed deposition.

2. generally know the right things to say, project an air of intelligence, are usually predictable, and are excellent at following lines of questioning. A good expert can convey an authority that surpasses the written transcript of a deposition.

3. It’s cheaper, and the power of the witness is preserved because the demeanor and speech of the subject is on full display for the jury.

4. Under the right circumstances, using a video deposition to present background and foundational testimony improves the flow of evidence, eliminates calling witnesses out of order, and improves clarity to the jury.

5. Video depositions are more “interesting” to jury members. Juries are used to watching TV (who isn’t?), therefore they pay great attention to TV. Oddly enough, sometimes seeing it “on TV” is more real than if the deponent were actually in the courtroom.

6. Video depositions can now be easily “synched” to CD or DVD and called up in the courtroom on the attorney’s computer. Because the testimony is digital, any moment of the deposition can be instantly accessed and projected in the courtroom, no need to fast-forward tediously through a VHS tape like in the old days. And if the witness contradicts himself in court, the original deposition can be easily retrieved and used to discredit the new testimony.

7. Sometimes a particularly incriminating video deposition can precipitate a settlement. If the witness is particularly hostile or rude or invokes Fifth Amendment rights over and over, the plaintiff’s attorney can be in an overwhelming position of strength and can negotiate a settlement before trial.

8. Studies show that jury members retain information up to six times longer when seeing witnesses and hearing them speak, rather than merely hearing a transcript read in court. As the expression goes, “Seeing is believing.”

9. The opposing attorney may use video in court, causing you to appear “out of date” and out of touch with current technology. To be competitive, you need to use an arsenal of modern weapons in the courtroom. With today’s technology, a video deposition is merely one of these advanced video weapons.

As you can see, a video deposition can be a powerful tool in the courtroom and offers many advantages to transcribed depositions. Consider booking a videographer at the same time you schedule your deposition. You just may be glad you did.

By: Ron Peer
Ronald A. Peer is the owner of Peerless Communications Legal Video Services, based in Phoenix, Arizona. As a videographer, he adheres to the legal deposition guidelines offered by the American Guild of Court Videographers and National Court Reporters Association. Mr. Peer can be reached at www.peerlesslegalvideo.com or 602-920-3296.

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Question: I am the primary beneficiary of a trust set up by my mother and my 2 daughters (ages 27 and 30) are also beneficiaries. The balance of the trust is to be distributed soon and my daughters want to disclaim any interest in it, so it will all go to me. My question is, what are the tax consequences of this arrangement? The total value of the trust is about $250,000. Thank you, L.

Answer: Dear L - You are right in thinking that there may be some adverse tax consequences if your daughters disclaim their share of the trust. Although it is not clear from your question, I am assuming that your daughters acquired a 1/3rd interest in your mother's trust upon your mother's death.

Generally speaking, when a person is designated as the beneficiary of an interest in property under a will or a living trust, the interest vests immediately upon the death of the transferor unless there is some other intervening condition that must be satisfied. The same is true for interests given to designated beneficiaries under retirement plans (including IRAs and 401(k) plans), annuity contracts, and life insurance policies.

There are times, however, when a designated beneficiary doesn't want the interest given to him or her, as is the case with your daughters. People in this situation often think that they can just refuse the interest and that's the end of the story. They feel that way because, in their minds, they haven't actually received anything and, therefore, they don't actually own it.

Unfortunately, the tax laws say otherwise. Once the interest vests in a designated beneficiary, the designated beneficiary is deemed to own it. From that moment on, any refusal or disclaimer of the interest by the designated beneficiary constitutes a gift of the present value of that interest for federal gift tax purposes. The gift is deemed to be made to the contingent beneficiary or beneficiaries designated under the governing instrument; i.e., the will, trust, etc.

If that's the case, then how would anyone ever refuse an inheritance without incurring a gift tax? The short answer is that, for many years, you couldn't. If there was any consolation in the way the tax laws were written, it rested in the fact that the resulting transfer could be offset by the annual gift tax exclusion. Any excess over the annual gift tax exclusion could be sheltered from an actual out-of-pocket tax payment by the unified credit against gift and estate taxes. Even so, it was still a pain because you had to file a gift tax return and you lost all or part of your unified credit against future gift and estate taxes.

In order to correct this problem, Congress amended the tax laws to provide for a qualified disclaimer as part of the Tax Reform Act of 1976. A "qualified disclaimer" allowed an individual to refuse an interest in property without being deemed to have made a gift of the interest. In that case, the individual was treated as though he or she had never received it - so there was no need to file a gift tax return, or to use a part of his or her unified credit, or even pay any gift taxes out-of-pocket.

Still, in order to take advantage of the qualified disclaimer provisions, you have to satisfy the following requirements:

(1) The disclaimer must be in writing.

(2) The disclaimer must be given to the personal representative of the decedent's estate or the trustee of the decedent's trust, or to any other person holding legal title to property to which the interest relates, no later than 9 months after the later of —

(A) the day on which the transfer creating the interest in such person is made, or

(B) the day on which such person attains age 21,

(3) The person making the disclaimer must not have accepted the interest or any of its benefits.

(4) And, as a result of such disclaimer, the interest must pass without any direction on the part of the person making the disclaimer, and passes either —

(A) to the spouse of the decedent, or

(B) to a person other than the person making the disclaimer.

So, Mrs. L, the good news is that your daughters can disclaim their interest in your mother's trust without the transfer constituting a gift to you. However, they will have to meet the requirements set forth above, including the requirement that the disclaimer be made within nine (9) months after the transfer was made to your daughters. I am assuming that is nine (9) months after your mother's death, but there may be other conditions in the trust instrument that actually delay the vesting of your daughters' interests. For this reason, I would suggest that you consult with an experienced estate planning attorney because these requirements are unforgiving. Once the nine (9) month period has expired, you're simply out of luck.

By: Michael Pancheri
Copyright 2006. The Living Trust Network, LLC.
Attorney Michael Pancheri is a practicing attorney and the founder and CEO of the Living Trust Network. You may contact him by email at info@livingtrustnetwork.com. You may also contact him at the Living Trust Network's web site. Its URL is http://www.livingtrustnetwork.com.

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