Entire Issue - New Hampshire Bar Association

Transcription

Bar Journal
NEW
AUTUMN 2011
HAMPSHIRE
VOLUME 52, NUMBER 3
Developments in the Law
INSIDE:
• Substantial Confusion - Thoughts on a frequently used word
• Concussions and Student Athletes - Medical, legal issues
• Beware
the Patent Trolls!
and Bar
more...
New Hampshire
Journal
Autumn
2011
1
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Bar
Journal
NEW
HAMPSHIRE
STATEMENT OF
EDITORIAL POLICY AND
SPECIFICATIONS
FOR ARTICLES
The Bar Journal is an official
publication of the New Hampshire Bar
Association. It is a journal for the lawyers
and judges of this state and for others
interested in New Hampshire law. We
publish scholarly discourses, commentary
on activities of the Bar, and articles on the
administration of justice. While we are a
serious journal, that does not mean that
our articles must be dull or somber. We
strive to publish a journal which is lively
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significant segments of the Bar. We want
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and quoted.
The statements and opinions ex‑
pressed in editorials, articles and com‑
mentaries are those of the authors and not
of the Association. Opposing viewpoints
are welcome and, if suitable, will be
published. This is the journal of the As‑
sociation and should serve as a forum
for thoughtful discussion of important
issues.
We invite people to submit articles
or proposals to the Board of Editors for
review. All articles should be clear, focused
and have something specific to say to our
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Citation. Material published in the Journal
remains the property of the Journal and
the author consents to the right of the New
Hampshire Bar Association to copyright
the work.
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NEW HAMPSHIRE BAR ASSOCIATION
2 Pillsbury Street, Suite 300, Concord, New Hampshire 03301
Incorporated July 2, 1873
Officers
Effective June 2009-June 2010
President.........................................................................................................................JENNIFER L. PARENT, Manchester
President-Elect.......................................................................................................LAWRENCE A. VOGELMAN, Manchester
Vice-President.....................................................................................................................JAYE L. RANCOURT, Manchester
Secretary.........................................................................................................................PETER E. HUTCHINS, Manchester
Treasurer..................................................................................................................... ROBERT R. HOWARD, III, Henniker
Immediate Past President................................................................................ MARILYN BILLINGS MCNAMARA, Concord
Governors-at-Large
JOHNATHAN M. ECK, Manchester................................................................................... LISA WELLMAN-ALLY, Claremont
QUENTIN J. BLAINE, Plymouth...............................................................................................ERIC D. COOK, Portsmouth
SUSAN H. HASSAN, Concord...........................................................................(Public Sector) JACKI A. SMITH, Stratham
County Governors
Belknap County.............................................................................................................CATHERINE BRODERICK, Laconia
Carroll County.................................................................................................... CHRISTOPHER T. MEIER, North Conway
Cheshire County.......................................................................................................................SHEILA J. BURNHAM, Jaffrey
Coos County.....................................................................................................................JOHN G. McCORMACK, Lancaster
Grafton County..........................................................................................................................JASON R. CRANCE, Hanover
Hillsborough North . ...................................................................................................VICTOR W. DAHAR, JR., Manchester
Hillsborough South .......................................................................................................... ROBERT M. SHEPARD, Nashua
Merrimack County........................................................................................................................DEREK D. LICK, Concord
Rockingham County..........................................................................................................PHILIP L. PETTIS, Portsmouth
Strafford County.......................................................................................................... CHRISTOPHER T. REGAN, Durham
Sullivan County................................................................................................................... TANNER Z. NOLIN, Claremont
American Bar Association Delegation
Association Delegate, House of Delegates...................................................................RUSSELL F. HILLIARD, Portsmouth
State Delegate, House of Delegates................................................................................. STEPHEN L. TOBER, Portsmouth
Bar Journal Editorial Advisory Board
Chair.................................................................................................................................... MATTHEW R. SERGE, Concord
QUENTIN J. BLAINE, Plymouth.................................................................................................. AMY K. KANYUK, Concord
MICHAEL S. DELUCIA, Manchester............................................................................JEANMARIE PAPELIAN, Manchester
PAUL FARRELL, Concord............................................................................................................MARK H. PUFFER, Concord
LORNE M. FIENBERG, Amherst....................................................................................... DAVID M. ROTHSTEIN, Concord
KATHLEEN D. FLETCHER, Concord.................................................................................... ALBERT F. SHAMASH, Concord
HOLLY B. HAINES, Manchester
New Hampshire Bar Association Staff
Executive Director.................................................................................................................................... Jeannine L. McCoy
Communications Director...................................................................................................................................... Dan Wise
Assistant Communications Director................................................................................................................. Craig Sander
Advertising and Production Coordinator, Graphic Design........................................................................ Donna J. Parker
The New Hampshire Bar Journal (ISSN 0548-4928),
an official publication of the New Hampshire Bar Association, is issued 4 times per year. Articles appearing in the New Hampshire Bar Journal (ISSN 0548-4928)
represent the views of their authors and do not necessarily carry the endorsement of the Association.
Copyright 2011 New Hampshire Bar Association, Concord, New Hampshire
New Hampshire Bar Journal
Autumn 2011
Bar Journal
NEW
HAMPSHIRE
VOLUME 52, NUMBER 3
AUTUMN 2011
TABLE OF CONTENTS
Introduction
. ..................................................................................................4
Substantial Confusion: The Use and Misuse of the Worf
"Substantial" in the Legal Profession
Michael Malaguti
. ..................................................................................................6
Closing the Loopholes: New Laws for 'In Terrorem"
(No Contest) Clauses in Wills and Trusts
A Primer on New Hampshire First-Party Property Insurance
Concussions and Student-Athletes: Medical-Legal Issues in Concussion Care & Physician and School System Risks
Nadine Catalfino . ................................................................................................16
Charles DeGrandpre Timeline of a High-Conflict Divorce Patent Trolls: Who, What, Where & How to Defend Against Them
Workers' Compensation: Appeal of Margeson and
Expansion of the Substantial Contribution Test
Daniel R. Lawson
. ................................................................................................46
The "Seven Years War" Between New Hampshire and the United States
Richard Treanor
. ................................................................................................50
Lex Loci
David W. Ruoff
. ................................................................................................56
Caryn Daum
. ................................................................................................20
Stuart J. Glassman, M.D................................................................................................26
Bradley D. Holt
. ................................................................................................36
Chris Vrountas
. ................................................................................................40
Richard S. Loftus
Cori Phillips Palmer
THE COVER: Artwork by Cindee Carter. Cindee works for Attorney Judy Roman and is a member of the Hillsborough Area Artisans.
Her artwork is displayed at The Gallery at Wellsweep in the historic Hillsborough Center. You can also see examples of her work at
www.hillsboroughartisans.com.
Autumn 2011
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INTRODUCTION
This is not a “theme” issue. There’s plenty to read, but it is impos‑
sible to corral the articles in this issue under one umbrella.
Consider this lineup: Concussions. Trolls. A pitched battle between
a federal court judge and a New Hampshire judge over jurisdiction is
recalled from the 19th century. And the surprisingly slippery meaning
of a word you see all the time in statutes and caselaw: “substantial.” Also, practical articles on no-contest clauses in wills and trusts;
a primer on legal aspects of first-person property insurance; and the
impact of recent appellate rulings in workers compensation law.
Last, not an article at all, but an impartial timeline of an “in‑
famous” case. Starting on page 36 is a condensed timeline of legal
motions and life events in a decade of litigation in a high-conflict
divorce. This is the case that ended with the self-immolation of Thomas
Ball in front of the Cheshire County Superior Court on June 16, 2011.
Mr. Ball submitted a lengthy, rambling letter to the local newspaper
before his very public suicide, proclaiming, in effect, that the courts
had failed to provide him justice. Our timeline, compiled entirely from
court pleadings and orders, is intended, as objectively as possible, to
supplement the news reporting surrounding the incident with facts
about how the case had been handled over the past 10 years.
And, of course, New Hampshire Supreme Court cases ably reviewed
by David Ruoff, our current Lex Loci author.
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This issue is late because it took awhile to pull together. It was
interesting that during the production process, two of our authors
were called away from the state by international public service com‑
mitments. First, David Ruoff’s fall calendar was dominated by a
court-appointed case in US District Court. He is defending a woman
seeking naturalization who is accused of participating in the genocide
in Rwanda in 1994. Ruoff spent several weeks in Rwanda working
with attorneys from the International Criminal Tribunal and will be
traveling there again after the holidays. The case goes to trial in New
Hampshire in late February.
And last month, Bradley Holt was called away to Haiti on short
notice. A Captain in a US Navy Reserve unit that directly supports
NATO, Holt is part of an unusual joint team comprised of physicians
and military officers studying how to improve the interface between
military and civilian healthcare providers in various contexts. The
team traveled to Haiti to analyze disaster response and humanitarian
assistance efforts after Haiti’s January 2010 earthquake, the first of five
case studies the team will undertake.
We hope to report more on these efforts, and on the international
work of other Bar members in the future.
- Dan Wise, Editor
Autumn 2011
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SUBSTANTIAL CONFUSION:
The Use and Misuse of the Word
"Substantial" in the Legal Profession
By Michael J. Malaguti1
I. INTRODUCTION
A search on Westlaw for “substan!” turns up 2,793,047 documents.2 This reflects a fact most lawyers know intuitively but upon which few
probably reflect: the use of the word “substantial” pervades the legal
lexicon.3 Lawyers, judges and legislators use the word “substantial” like
sailors use the word — well, you get the idea. This is problematic because
there are at least three viable (and very different) definitions of the word,
and because legal writers rarely specify which of these definitions they
are using. Inevitably, this carelessness infects the law with uncertainty
and doubt.
At its best, the word “substantial” gives the law flexibility so that it
can embrace and resolve the facts of divergent cases.4 At its worst, it is
“thrown around” negligently by courts and advocates eager to attach
the imprimatur of fact and authority to their positions.
“Substantial” is among the most widely used words in the law.5 Dur‑
ing the 1930s and coinciding with the emergence of the administrative
state, it began to appear in print with increasing frequency.6 Part of my
aim in this article is simply to underscore the word’s prevalence in legal
writing. This goal is animated by my belief that there exists among legal
writers an ignorance regarding how heavily “substantial” is relied upon. There is the substantial factor test of causation, substantial certainty for
intentional torts, substantial justice for minimum contacts, substantial
performance for contracts, the substantial evidence standard of review
in administrative law, the substantial compliance doctrine for wills
formalities, and the substantial capacity test for criminal law. In intel‑
lectual property, there is the concept of substantial equivalents. These
examples only begin to scratch the surface. Not only does “substantial”
appear frequently; when it does appear, it tends to carry operative impor‑
tance. No article or case of which I am aware has devoted more than a
paragraph or two to examining directly this all-important word, leaving
a troublesome gap in the scholarly literature.7
This article is intended to highlight this problem and to begin a
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discussion that I hope others will join. I argue that the word “substantial”
has never had a single, stable definition. Instead, it signifies a rancorous
philosophical debate that has raged since ancient Greece. However, I also
suggest that most current uses of “substantial” are simply incorrect.
Finally, I link the problems with “substantial” with the controversy over
judicial activism, and argue that because our legal system values judicial
restraint, we should feel uneasy when judges use the word.
Because I believe the present discussion can only begin after
understanding the etymological and philosophical roots of the word
“substantial,” I begin with a brief overview of those topics and a look at
current definitions of the word. Then, I turn in Part III to a discussion
of the word’s prevalence and confused use in legal writing.8 In Part IV, I
examine two death penalty cases in which the Supreme Court considered
the import of the word “substantial” in jury charges. In Part V, I respond
to the contextualists’ argument that all words are indeterminate, signify‑
ing little outside of a particular context. Finally, in Part VI, I contend
that while good legislation may make use of the word “substantial,”
good jurisprudence should not.
II. CLASSICAL ROOTS
Unlike the law, philosophy has given extensive treatment to the
question, “what is substance?” Countless volumes have been dedicated
to this endeavor. To recount the history of this philosophical debate is,
in large measure, to recount the history of Western philosophy itself. For
present purposes, chronicling some of the highlights will be sufficient.
First, though, a word of caution. It is important to recognize that
the word “substance” is likely to connote to a philosopher certain con‑
cepts that are not necessarily congruent with everyday uses of the word.9 However, in this area philosophy preceded etymology,10making study of
the philosophical antecedents indispensible to our study of etymology.
Plato
The philosophical concept of “substance” is central to how philoso‑
phers define and categorize reality and address how we perceive, know,
and describe.11 The most logical point of departure for our discussion
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is Plato, whose famous “allegory of the cave” hews with remarkable
clarity the parameters of the debate over “substance” that has raged for
millenniums in philosophical circles.12 The dialogue is between Socrates
and Glaucon, a young boy under Socrates’s tutelage. While the prose
is archaic and inaccessible, the patient reader is rewarded with Plato’s
insights into “matters ethical, political, metaphysical, epistemological,”13
and, for our purposes, legal. “[L]et me show in a figure,” Socrates begins,
“how far our nature is enlightened or unenlightened:”
Behold! Human beings living in an underground den, which has a
mouth open toward the light and reaching all along the den; here
they have been from their childhood, and have their legs and necks
chained so that they cannot move, and can only see before them,
being prevented by the chains from turning round their heads. Above
and behind them a fire is blazing at a distance, and between the fire
and the prisoners there is a raised way; and you will see, if you look,
a low wall built along the way, like the screen which marionetteplayers have in front of them, over which they show the puppets.14
On the “raised way” above and behind the prisoners, walk men
carrying things.15 Because the prisoners’ heads are locked to look straight
ahead, they see only shadows of themselves and of the men on the raised
way.16 Because they have been locked since childhood in this condition,
the shadows on the wall in front of them are their only reality.17 They
are “like ourselves,” Socrates says.18 He queries Glaucon further: “[I]f
they were able to converse with one another, would they not suppose that
they were naming what was actually before them? . . . To them . . . , the
truth would be literally nothing but the shadows of the images.”19
Socrates then instructs Glaucon to imagine that the prisoners “are
released and disabused of their error.”20 Further, he says,
when any of them is liberated and compelled suddenly to stand up
and turn his neck round and walk and look toward the light, he
will suffer sharp pains; the glare will distress him, and he will be
unable to see the realities of which in his former state he had seen
the shadows; and then conceive of someone saying to him, that what
he saw before was an illusion, but that now, when is approaching
nearer to being and his eye is turned toward more real existence,
he has a clearer vision . . . .
Once their eyes become accustomed to the light, the liberated
prisoners “will be able to see the sun, and not mere reflections of him21
in the water, but [they] will see him in his own proper place, and not
in another; and he will contemplate him as he is.” A strange effect of
the personification of “sun” is that the sun is given a mystical, divine
connotation. This only amplifies Socrates’s point that the sun is more
essentially real than the shadows. In the parlance of philosophers’
interpretations of the “allegory of the cave,” the sun is a “Form.” Forms are the “driving principles which give structure and purpose to
everything else.”22 To Plato, then, the objects of our perception are not
accurate transpositions of the Forms; they are adulterated copies. What
has this to do with “substance?” The “[F]orms are Plato’s substances,
for everything derives its existence from Forms.”23 In this regard, Plato’s
Forms are characterized by “ontological basicness”; that is, they are “the
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foundational or fundamental entities of reality.”24
The objects of our daily perception are “real” only insofar as they
partake of the Forms. Notably, Plato’s conception of substance, unlike
the vast majority of today’s legal uses of the word, has nothing to do with
size. Plato’s focus is instead on essence. The inquiry is into the true nature
and character of a given thing. Furthermore, the Platonic conception of
“substance” is decidedly relational; something is substantial or is said to
be substantially such-and-such to the extent that it resembles its Form.
Aristotle
Aristotle’s definies substance as “that which is neither predicable
of a subject nor present in a subject.”25 By this, Aristotle is referring
to what he calls “primary substance” – “the truest and most definite
sense of the word.”26 Aristotle tells us that the individual man and the
individual horse are both primary substances.27 Individual instances
of things are not predicable of a subject because an individual instance
cannot be said of a subject. Put another way, it would be impossible for
me to assert “Eric” of “John.”28 This follows from the proposition that
“John” and “Eric” are individual instances. Additionally, “Eric” is not
present in “John.” That is, “John” is not characterized by “Eric-ness”
but rather “John-ness.” But primary substances are not the only substances. “Eric” and
“John” themselves fall into broader categories of things. “Eric” and
“John” are both “humans.”29 Pause for a moment to note why “hu‑
man” is not a primary substance by applying Aristotle’s definition. First,
“human” is predicable of a subject.30 It is possible to say that “Eric” or
“John” is characterized by “human-ness.”31 It is also true that “humanness” is present in “Eric” or “John.” Secondary substances, then, are
“the species and genera of the primary substances – the kinds into which
the primary substances fall.”32
One author’s explanation helps concretize these concepts: Each individual entity has a primary “substance” (Greek: ousia).
One sense of this term is that “[o]usia is what something is; the
answer to the question ‘What is F’ tells us the ousia of F. In these
cases it is rendered by ‘essence’ . . . .” This primary and individual
substance (the particular individual, “Eric”) underlies everything
else, including and especially the “secondary” substances to which
the individual belongs, in this case “man” and “animal.” We
see then that the particular entity “Eric” consists of an essential
substance that makes him what he is.33
It is from Aristotle’s definition that we have received the word “sub‑
stance” into the English language: “A [secondary] substance . . . is the
essence (the ‘what it is to be’), the form (morphê or eidos), of a [primary
substance] . . . .”34 Thus, the word substance “corresponds to the Greek
ousia, which means ‘being,’ transmitted via the Latin substantia, which
means ‘something that stands under or grounds things.’”35
Lastly, and most significant, is Aristotle’s distinction between “sub‑
stance” and “accident:”
With respect to any substance, we can typically distinguish between
properties that are essential for the thing to be the kind of thing it is
and properties that are inessential (the accidents) . . . . An individual
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diamond must consist of carbon in appropriate crystalline structure,
and must have a scratch hardness of 10 on the Mohs scale – these
are essential properties. But it may be large or small; white, blue,
red, green or black; be set in a crown or other setting – these are
accidental properties.36
This illustrates what is meant when it is said that substance is “that
which lies beneath.” The accidental properties may come and go, but
the substance, standing as it does beneath the accidental properties,
remains.
It is clear then that substance, as it was originally used, had nothing
to do with size – a descriptive category that is embodied today in the most
prevalent use of “substance.”37 The substance-accident dichotomy il‑
lustrates this perfectly. Something is “substantial” if it lies beneath – that
is, if it is essential to making something what it is. Significantly, size was,
to Aristotle, an accidental property. As Aristotle observed in Categories:
Expressions which are in no way composite signify substance,
quantity, quality, relation, place, time, position, state, action, or
affection. To sketch my meaning roughly, examples of substance
are “man” or “the horse”, of quantity, such terms as “two cubits
long” or “three cubits long”, of quality, such attributes as “white”,
“grammatical”. “Double”, “half”, “greater”, fall under the category
of relation; “in the market place”, “in the Lyceum”, under that of
place; “yesterday”, “last year”, under that of time. “Lying”, “sitting”,
are terms indicating position.; “shod”, “armed”, state; “to lance”,
“to cauterize”, action; “to be lanced”, “to be cauterized”, affection. 38
It therefore would not have made sense to Aristotle to say, for
instance, a “substantial amount,” or a “substantial number,” because
such a statement rests on a conflation of substance and accident. To use
the diamond example, the size of the diamond may change without
affecting its “diamond-ness.” Notice how Plato and Aristotle differ on the question of substance.
Plato begins conceptually with the Forms and assesses the objects of our
perception against those paragons. Aristotle, instead, begins with the sen‑
sible world in front of him and categorizes based on observed similarities
and differences. The differing orientations of Plato and Aristotle lead to
a theoretical debate concerning “substance” that is reflected today in
alternate definitions of the word.39
The Greek NeoplatonistPorhyry, who lived from 232—303 c.e.,
crystallized the formulation of this debate, writing:
Next, concerning genera and species, the question indeed whether
they have a substantial existence, or whether they consist in bare
intellectual concepts only, or whether if they have a substantial
existence they are corporeal or incorporeal, and whether they are
separable from the sensible properties of things (or particulars of
sense), or are only in those properties and subsisting about them, I
shall forbear to determine. For a question of this kind is a very deep
one and one that requires a long investigation.40
It was this phrasing of the question that would occupy philosophers
into the twelfth century and beyond.41
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Medieval Phrasing: The Problem of Universals
Medieval philosophers dubbed Porhyry’s question the “problem of
universals.”42 The problem of universals is simply an iteration of the
dispute between Plato and Aristotle.43 Philosophers have posited several
possible positions. One position, very clearly Platonic, holds that “uni‑
versals (genera) have a real existence independent of any individual
examples (species) of them.”44 The allegory of the cave provides obvi‑
ous support for this position, which is called “extreme realism.”45 The
opposite position, called “nominalism,” posits that “universals have no
real existence but are only names we use to categorize individuals.”46 The
compromise position is Aristotelian. Called “conceptualism,” it holds that
“universals are real but not independent of individual examples.47 Thus,
“humanity” is real, referring to those qualities shared by all individual
persons and discovered through the observation of individuals.”48
As noted above, it is clear that Aristotle’s substance-accident distinc‑
tion was encapsulated by the Romans in the word substantia,49 which in
turn worked its way into the English language. Equally clear, however, is
that multiple uses of the word that derive from alternative philosophical
strands have also worked their way into the English language. This is
one reason why confusion abounds. Some use the word “substantial” in
the Platonic sense while others use it in the Aristotelian sense. And some
use it in a different sense that is anchored to neither of these traditions.
It is this – we’ll call it “modern” – sense, which is most prevalent in
modern legal writing.
Current Definitions
Surprisingly, the current edition of Black’s Law Dictionary does not
contain a definition of the word “substantial.”50 However, it appears
as a modifier 25 times.51 The New Oxford American Dictionary defines
“substantial” as “1 of considerable importance, size, or worth . . . 2
concerning the essentials of something . . . 3 real and tangible rather
than imaginary.”52 It therefore captures each of the three primary senses
in which “substantial” is used. The first definition, “1 of considerable
importance, size, or worth,” is the modern sense that should be familiar
to any legal writer.53 The second, “2 concerning the essentials of some‑
thing,” is the Aristotelian sense.54 The third, “3 real and tangible rather
than imaginary,” is the Platonic sense.55
Even within the Oxford definition, the potential for wildly differing
uses is apparent. For example, there is a significant difference between
something “of considerable importance, size, or worth” and something
“real and tangible rather than imaginary.” An atom, for instance, is real
and tangible and not imaginary, but few would say that an atom is of
considerable size. Remarkably, the inconsistency is not only between
alternate definitions; it is often within them.
III. PROBLEMS WITH THE MODERN DEFINITION
This section explores the inconsistency within the “modern” (and
most prevalent) definition – the definition that focuses on size. A com‑
parison of three cases yields an illustrative example of this inconsistency.
In the first case, the Maryland Supreme Court considered whether a busi‑
ness displaying adult material was permitted under local zoning laws.
The Carroll County (Maryland) Code “permits an ‘adult entertainment
Autumn 2011
business’ in an IG General Industrial Zone, but in no other zone. The term
‘adult entertainment business’ is defined in the code . . . as an . . . ‘adult
store.’”56 An adult store, in turn, is defined as “a business establishment
that offers for sale or rental ‘any printed, recorded, photographed, filmed
or otherwise viewable material, or any sexually oriented paraphernalia, if
a substantial portion of the stock or trade is characterized by an emphasis
on matters depicting, describing or relating to sexual activities.’”57 Under
the county code, a “substantial portion” is present where “[a]t least
20% of the stock in the establishment or on display consists of matters
or houses devices depicting, describing or relating to sexual activities; or
[a]t least 20% of the usable floor area is used for the display or storage of
matters or devices depicting, describing or relating to sexual activities.58
The district court found that the store was being operated as an illegal
adult store under the statute. 59The Maryland Supreme Court dismissed
its grant of certiorari as improvidently granted, thereby upholding the
intermediate appeals court’s reversal of the district court’s ruling that
the defendant in the case was operating an illegal adult store. Neither
appellate court reached the question of substantiality.
The second case was authored by the Kansas Court of Appeals. Kansas
Statute 75-4305 provides:
(a) Any local governmental officer or employee who has not filed a
disclosure of substantial interests shall, before acting upon any matter
which will affect any business in which the officer or employee has a
substantial interest, file a written report of the nature of the interest
with the county election officer of the county in which is located
all or the largest geographical part of the officer’s or employee’s
governmental subdivision.60
26 of the United States code . . . .
(5) If an individual or an individual’s spouse receives compensation
which is a portion or percentage of each separate fee or commission
paid to a business or combination of businesses . . . .
Interpreting these statutes, the Kansas Court of Appeals held that a 55
percent equity interest in an entity qualifies as a “substantial interest.”61
In the last case, the Mississippi Supreme Court went a step further
than most courts in acknowledging that “[s]ubstantial evidence [is] not
easily defined.”62 Notwithstanding the difficulty, however, the Court boldly
went on to state that “[s]ubstantial evidence . . . means something more
than a ‘mere scintilla’ of evidence [but] that it does not rise to the level of
‘a preponderance of the evidence.’”63 Nevertheless, the court’s definition
places “substantial” somewhere between 0.1% and 50 percent.64
These cases are a clear example of legislatures and courts using the
modern, most prevalent, definition of “substantial” – the definition that
focuses on size. They are particularly illustrative because they happen to
involve actual percentages. While it is admittedly a slight oversimplifica‑
tion to say that courts and legislatures have defined “substantial” to mean
0.1 percent, 20 percent, and 55 percent, these examples do highlight with
remarkable clarity the ambiguity inherent even within the modern sense
of the term.65
New Hampshire’s leading Medical Malpract ic e f ir m .
Kansas law defines a “substantial interest” as being present:
Abramson, Brown & Dugan
(1) If an individual or an individual’s spouse, either individually
or collectively, has owned within the preceding 12 months a le‑
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Autumn 2011

9

IV. THE SUPREME COURT’S USE OF “SUBSTANTIAL” IN DEATH PENALTY CASES
Defining “substantial” is not only difficult; it can also be critically
important. In Cage v. Louisiana, the Supreme Court considered a rul‑
ing of the Louisiana Supreme Court that the defendant, who had been
convicted of first degree murder and sentenced to death, had not been
constitutionally prejudiced by the jury charge given in the guilt phase
of his trial.66 The instruction provided in pertinent part: If you entertain a reasonable doubt as to any fact or element neces‑
sary to constitute the defendant’s guilt, it is your duty to give him
the benefit of that doubt and return a verdict of not guilty. Even
where the evidence demonstrates a probability of guilt, if it does not
establish such guilt beyond a reasonable doubt, you must acquit the
accused. This doubt, however, must be a reasonable one; that is one
that is founded upon a real tangible substantial basis and not upon
mere caprice and conjecture. It must be such doubt as would give
rise to a grave uncertainty, raised in your mind by reasons of the
unsatisfactory character of the evidence or lack thereof. A reason‑
able doubt is not a mere possible doubt. It is an actual substantial
doubt. It is a doubt that a reasonable man can seriously entertain.
What is required is not an absolute or mathematical certainty, but
a moral certainty.67
The Supreme Court reversed, noting that the trial court “equated a
reasonable doubt with a ‘grave uncertainty’ and an ‘actual substantial
doubt,’ and stated that what was required was a ‘moral certainty’ that
the defendant was guilty.”68 “It is plain to us,” the Court continued,
that the words ‘substantial’ and ‘grave,’ as they are commonly
understood, suggest a higher degree of doubt than is required for
acquittal under the reasonable-doubt standard. When those state‑
ments are then considered with the reference to ‘moral certainty,’
rather than evidentiary certainty, it becomes clear that a reasonable
juror could have interpreted the instruction to allow a finding of
guilt based on a degree of proof below that required by the Due
Process Clause�.69
Similarly, in Victor v. Nebraska, the defendant was also convicted
of first-degree murder and sentenced to death.70 The jury charge in his
trial stated in pertinent part:
‘Reasonable doubt’ is such a doubt as would cause a reasonable and
prudent person, in one of the graver and more important transactions
of life, to pause and hesitate before taking the represented facts as
true and relying and acting thereon. It is such a doubt as will not
permit you, after full, fair, and impartial consideration of all the
evidence, to have an abiding conviction, to a moral certainty, of the
guilt of the accused. At the same time, absolute or mathematical
certainty is not required. You may be convinced of the truth of a
fact beyond a reasonable doubt and yet be fully aware that pos‑
sibly you may be mistaken. You may find an accused guilty upon
the strong probabilities of the case, provided such probabilities are
strong enough to exclude any doubt of his guilt that is reasonable.

10 
A reasonable doubt is an actual and substantial doubt reasonably
arising from the evidence, from the facts or circumstances shown
by the evidence, or from the lack of evidence on the part of the State,
as distinguished from a doubt arising from mere possibility, from
bare imagination, or from fanciful conjecture.71
Victor, recycling the argument that had prevailed in Cage, argued
that the “actual and substantial doubt” language of the jury charge
“overstated the degree of doubt necessary for acquittal.”72 The Court
agreed with Victor that this language added an element of ambiguity
to the jury charge, stating:
We agree that this construction is somewhat problematic. On the
one hand, ‘substantial’ means ‘not seeming or imaginary’; on the
other, it means ‘that specified to a large degree.’ Webster’s Third New
International Dictionary, at 2280. The former is unexceptionable,��as
it informs the jury only that a reasonable doubt is something more
than a speculative one; but the latter could imply a doubt greater
than required for acquittal under [the Due Process Clause of the
Fourteenth Amendment].73
However, the Court continued, “Any ambiguity . . . is removed by
reading the phrase in the context of the sentence in which it appears: ‘A
reasonable doubt is an actual and substantial doubt ... as distinguished
from a doubt arising from mere possibility, from bare imagination, or
from fanciful conjecture.’”74 The Court then affirmed Victor’s conviction.
These cases are remarkable for several reasons. Firstly, they demon‑
strate how important the word “substantial” can be. In Cage, for instance,
the addition of the word to a jury charge resulted in the reversal of one
man’s death sentence. The legal profession is a profession of words. Law‑
yers, however, too rarely recognize the profound meanings their words
often have. If these cases tell us anything, it is that we should take care
to reflect carefully on the words in which we vest operative meaning.
Secondly, these cases reveal the Supreme Court struggling with defining
the word “substantial.” The Supreme Court is virtually alone in resorting
to a dictionary in its consideration of the word.
Unlike the vast majority of those 2,793,047 legal writers who have
used the word, the Supreme Court in these cases actually engaged in
a meaningful analysis of the word and some of the different senses in
which it is used. Though the Court’s analysis is not particularly extensive,
it is a step ahead of most in recognizing the need for an analysis at all.
Finally, in interpreting the import of the word, the Supreme Court rightly
consulted the context in which the word appears. Faced with divining
meaning from the word “substantial” that a legal writer has already
used, context is a legitimate and valuable tool.
V. A RESPONSE TO A POSSIBLE COUNTERARGUMENT
Context, however, is not everything. While it is certainly legitimate
to use words that depend on context for meaning, this should not serve
as license to throw achievable precision to the wind. Today, the word
“substantial” is inherently ambiguous and vague,75 characteristics that
context can do little to resolve. One of the problems is that the differ‑
Autumn 2011
ences between the three possible definitions are differences of kind, not
degree. And while the Aristotelian and Platonic definitions have a better
claim to historical legitimacy than does the modern definition, history
cannot resolve this controversy. Equally problematic is that “substantial”
is so vague that, even laying the ambiguity problem aside, its meaning
is still uncertain.76 As I explored in Part III, the modern definition of
“substantial” has so little of its own meaning that it is defined almost
entirely by context;77with at least 600,00 words in the English language,78
I believe we can do better.
Some would disagree with me, however. For instance, scholars have
decried the oft-raised complaint that “a word which appears in two or
more legal rules, and so in connection with more than one purpose .
. . , should have precisely the same scope in all of them.” Impressing
this argument to an extreme, some argue that language is “meaning‑
less outside of context,”79 or perhaps even that it is just meaningless.
One plank in the critical legal movement’s platform is the principle
of indeterminacy,80which holds that reliance on legal doctrine (cases,
statutes, etc.) is illusory; what actually animates “the Law” is not doctrine
but shadowy societal value judgments (which, critical legal theorists
hold, tend to favor those in power). Legal doctrine without this shadowy
apparatus results in “incorrigible indeterminacy.”81 The principle of
indeterminacy is undergirded by the assumption that words tell us much
less than we are accustomed to believing they tell us.82
Thus, a critical legal theorist would respond to this article by argu‑
ing that because all words are meaningless outside of context, I am
merely stating the obvious. My response is this: it is conceivable that in
interpreting “the Law,” we may arrive at the conclusion that the text
tells us very little by itself – but we should not start there. As First Circuit
Judge Guido Calabresi observed, “[l]anguage is important. To say that
language does not mean anything . . . is baloney.”83
I believe there are “correct” and “incorrect” ways of using a word. So
does Bryan Garner, the leading expert on legal language. He has written
that although
[w]ords change over time . . . , [t]hat doesn’t mean we should
abandon the idea of correctness in word usage. What is “correct”
(some prefer to say “appropriate”) is a word choice that, in a given
age has two characteristics: (1) it is consistent with historical us‑
age, especially of the immediate past, and (2) it preserves valuable
distinctions that careful writers have cultivated over time.84
If we are forced to accept that the “modern” usage is here to stay, we
should be more careful in using it. Even those who use only the “modern”
usage often do so incorrectly. Remember, the modern usage means “of
considerable importance, size, or worth.”86 Half-a-percent would seem
(in most cases) to fall well outside the scope of this definition yet, as we
saw above, the Mississippi Supreme Court appears to believe that half a
percent qualifies as “substantial” because it is more than a scintilla.87
Those who use “substantial” to characterize things of de minimis
quantity are unwittingly substituting the Platonic definition for the mod‑
ern one. In the half-a-percent example, “substantial” is much closer to
“real and tangible rather than imaginary” than it is to “of considerable
importance, size, or worth.”88
“Substantial,” then, lacks “definiteness of content.”89 Contrast
“substantial” with another legal gap-filler: “reasonable.” To be sure,
the actions or inactions which are said to be “reasonable” vary dramati‑
cally, but “reasonable” (the universal) has roughly the same conceptual
meaning irrespective of the action or inaction (the particular).90 The
same simply cannot be said for “substantial.” There are at least three
viable definitions of “substantial,” some of which are almost opposite
in meaning to others. Additionally, even within the modern definition,
the word is so vacuous that it can be used to mean almost anything. The primary effect of all this confusion is that the law’s “demand for
reasonable certainty”91 is left woefully unsatisfied. The “modern” definition fails on both counts. First, it is a marked
departure from a venerable (and millenniums-old) historical usage. Not
until the last century did the word appear in its “modern” sense. Second,
the Aristotelian usage captures “valuable distinctions that careful writers
have cultivated over time.”85 This sense of the word permits lawyers to
do something more than measure or count (which is all the “modern”
usage permits): it allows them to categorize. Categorizing is what the
law is all about. The Aristotelian definition allows lawyers to articulate
whether a contract has been essentially performed, whether an action or
inaction is, at its core, a tort. The “modern” definition is not packed with
this much meaning. It can convey meaning, but it is a diluted imitation
of the Aristotelian definition.
Autumn 2011

11 
VI. THE LEGISLATIVE PREROGATIVE AND
JUDICIAL LEGITIMACY
Let us redirect our focus slightly to the institutional implications of
the widespread use of the word “substantial.” Two of the cases presented
in Section III involve legislative uses of the word, which are quite com‑
mon, probably for the practical reason that many legislators and drafters
of legislation tend to be lawyers. Legislation has one primary goal: to lay
down rules of law to regulate conduct.92 The drafters of legislation select
and arrange the words in a manner that best embodies the legislature’s
aim.93
Scholars have advanced several reasons for the primacy of statutes
in our polity and have, as yet, failed to arrive at a consensus.94 Some,
including Easterbrook, Posner, and Landes, cast the reason in economic
terms, suggesting that “statutes should be viewed as contracts between
legislators and the interest groups supporting them and advocating the
legislation” and that “courts
. . . are an economically efficient mechanism for enforcing these
contracts.”95 Others make a majoritarian argument grounded in demo‑
cratic theory.96 Finally others, including Maltz, have posited that statutes
matter so much because that view has deep roots that cannot be pulled
out.97 Whatever the reason, we can say without fear of contradiction that
judges owe fealty to a legislature’s unambiguous, constitutional statute.
Soon after we accept this proposition, one begins to wonder how far
it can be pushed. To use an illustrative example, can a legislature define
“light” to mean “dark?” Generally, courts have held that they can.98 For example, in Fox v. Standard Oil Co. of New Jersey, the Supreme
Court rejected the argument that legislatures cannot in defining terms
depart from their common meaning, holding:
There might be force in this suggestion if the statute had left the
meaning of its terms to the test of popular understanding. Instead,
[the legislature] has attempted to secure precision and certainty by
rejecting a test so fluid and indeterminate and supplying its own
glossary. The goods offered for sale are to be understood as having
reference to goods ‘of any kind,’ and the place at which the sale is
made shall include, not only places that in the common speech
of men would be designated as stores, but, broadly speaking, any
mercantile establishment�, whether a store or something else. In
such circumstances definition by the average man or even by the
ordinary dictionary with its studied enumeration of subtle shades
of meaning is not a substitute for the definition set before us by
the lawmakers with instructions to apply it to the exclusion of all
others. There would be little use in such a glossary if we were free
in despite of it to choose a meaning for ourselves.99
This is because “[l]egislative actions are performed by means of
words and the words of the law are the law,”100 even if the words produce
an “uncommonly silly” result.101 In order to respect the institutional
roles of the players, we must credit the words the legislature selects,
suspending in the service of the legal fiction102 any semantic objection
we might otherwise voice.
Usually, curious definitions do not result from legislative inadver‑
tence but are selected by the drafters to achieve a desired purpose. For

12 
example, in Carroll Craft Retail103 and Dowling Realty,104 the legis‑
latures defined “substantial” with an eye toward applying the statutes
to a particular object of legislative concern. The different definitions of
“substantial” in each case allow the legislature to calibrate precisely the
reach of the statute. Sometimes (as in both of these cases), legislative
drafters use a universal such as “substantial” in the operative part of
the statute and define the contours of the universal (the particulars)
elsewhere. This allows the statute to embrace alternative particulars,
and is also more readable than if all the particulars were embedded in
the operative phrase.
The practice of legislatures defining operative terms – even if those
terms depart from commonplace definitions – has much to recommend
it. It “secures precision and certainty” by allowing citizens to rely on
statutes.105 The practice also results in more readable statutes and may
serve as a tool by which legislatures may eschew over and under-inclusive
laws. Finally, legislators may use definitions to implement a negotiated
compromise.106
Not so for judges. Quibble though we may over whether judges
“make law,”107 there is little point in arguing over the semantically
similar yet distinct question whether judges make policy. Justice Stevens
has written, “It is a proper part of the judicial function to make law
as a necessary by-product of the process of deciding actual cases and
controversies. But to reach out . . . blatantly and unnecessarily to make
new law in a case . . . is unabashed judicial activism.”108 Even Justice
Douglas, New Dealer, author of Griswold, and reliable liberal vote on the
Supreme Court for more than 30 years, wrote in 1974, “The Court today
makes an extraordinary excursion into the legislative field [which] may
or may not be desirable public policy. But it is a legislative decision that
not even a rampant judicial activism should entertain.”109 The judicial
authority rests precariously on the perceived legitimacy of its decisions.
To use an example I mentioned above, judges, unlike legislators, cannot
define “light” to mean “dark” without being perceived as illegitimate
usurpers of the legislative prerogative.
Typically, the outcry over “activist judges” is directed at judges who
are accused of basing their opinions on personal predilections or where
they insinuate themselves into cases best left for legislative action. Yet
there is subtler aspect of “judicial activism” that is no less deleterious,
an aspect that is particularly applicable to this article. Some percep‑
tive scholars have linked semantic imprecision (whether inadvertent
or intentional, the result is the same) with the judicial arrogation of
the legislative prerogative. For example, Fourth Circuit Judge J. Harvey
Wilkinson III has written:
Whether it is the Commerce Clause cases, the Section Five [of the
Fourteenth Amendment] cases, or the commandeering cases [inter‑
preting the Tenth Amendment], the tests in these areas are all quite
flexible. They rely on semantic distinctions that each side in the
federalism debate can shape to its own ends. The heavily semantic
nature of the debate will make judicial outcomes unpredictable
and encourage further litigation. The result of a case, and indeed
of federalism jurisprudence generally, lies in the interpretation of
words that cannot have a meaning on which all reasonable people
can agree.
Autumn 2011
The Court has acknowledged as much. It should acknowledge also
that the vague labels and imprecise terminology that dominate the
federalism debates may open the Court to charges of judicial activism
and subjectivity when popular enactments are invalidated. Thus,
the loose and the elastic nature of the judicial standards mandate
their own cautious application.110
Even without imputing nefarious motivation to judges who use
“substantial,” it is easy to see why so many do use it. It allows judges to
replace analysis with a single word. The word also carries the imprimatur
of fact and authority. That is, it bolsters the appeal of a position by link‑
ing that position with objectivity. Additionally, and most concerning, it
secures for judges a considerably more powerful role in the polity:
The subjective nature of the word “substantial” is clear after read‑
ing the . . . definition. Yet, the [United States Supreme] Court has
attached this subjective element not only to the Commerce Clause
test but to tests in many other areas of the law. These subjective tests
allow Justices to legislate from the bench.111
Judicial recognition of the nexus between words like “substantial”
and judicial activism appears to be quite modest. However, at least one
court has stated that the word “substantial” is inherently ambiguous.112 And at least four dissenting Supreme Court justices have intimated as
much and suggested that courts are institutionally ill-equipped to pass
on the meaning of vacuous words and concepts such as “substantial.” Those justices, in an opinion by Justice Souter, pilloried the majority’s
holding that Congress exceeded its power under the Commerce Clause:
Our cases, which remain at least nominally undisturbed, stand
for the following propositions. Congress has the power to legislate
with regard to activity that, in the aggregate, has a substantial
effect on interstate commerce. The fact of such a substantial ef‑
fect is not an issue for the courts in the first instance but for the
Congress, whose institutional capacity for gathering evidence and
taking testimony�� far exceeds ours. By passing legislation, Congress
indicates its conclusion, whether explicitly or not, that facts support
its exercise of the commerce power. The business of the courts is to
review the congressional assessment, not for soundness but simply
for the rationality of concluding that a jurisdictional basis exists in
fact. Any explicit findings that Congress chooses to make, though
not dispositive of the question of rationality, may advance judicial
review by identifying factual authority on which Congress relied. ....
Thus the elusive heart of the majority’s analysis in these cases
is its statement that Congress’s findings of fact are “weakened” by
the presence of a disfavored “method of reasoning.” This seems to
suggest that the “substantial effects” analysis is not a factual inquiry,
for Congress in the first instance with subsequent judicial review
looking only to the rationality of the congressional conclusion, but
one of a rather different sort, ��dependent upon a uniquely judicial
competence.113
Autumn 2011
Souter’s dissent rests on an unstated assumption that the word
“substantial” lacks “definiteness of content.”114 Leaving it to judges to
pick and apply one of three viable definitions115– one of which requires
a value judgment116 – is a clear arrogation of legislative authority and
a concrete example of “judicial activism.”117
VII. CONCLUSION
It seems that today’s law journals are full of pieces hawking high
theory and obscure aspects of the law.118 Yet it is far from clear whether
all this scholarship has improved the quality of advocacy and jurispru‑
dence. Little could be simpler than the words we choose, yet little could
improve advocacy and jurisprudence more than being precise, deliberate,
and reflective in selecting those words. Not only is this endeavor directly
related to the quality of advocacy and jurisprudence, but, as I explored
above in Part VI, it leads quickly to profound questions such as the
appropriate separation between legislatures and courts. These practi‑
cal issues – grounded in the everyday practice of the law yet neglected
by the professoriate – offer the opportunity for scholars, lawyers, and
judges to make a substantial contribution to the quality of advocacy
and jurisprudence.
ENDNOTES
1. Ransmeier& Spellman, P.C., Concord. I thank Professor Dana Remus for her invaluable assistance.
2. Westlaw search [“substan!”] in “All State and Federal” database, performed by author
on November 30, 2010. Westlaw displays a maximum of 10,000 documents. However, it is
possible to see the actual number of hits by looking at one’s research trail.
3. See generally E. Blythe Stason, “Substantial Evidence” in Administrative Law, 89Univ.
Pa. L. Rev. 1026 (June 1941). 4. See, e.g., Yon Maley, The Language of Legislation, 16 Language in Soc’yNo. 1, 38
(Mar. 1987) (noting that a goal of legislation is flexibility).
5.
See Stason, supra note 3, at nn.2-20.
6. Google Ngram Viewer, http://ngrams.googlelabs.com/ (search for “substantial”) (last
visited March 16, 2011).
7. Butcf. David Jakubowitz, “Help I’ve Fallen and Can’t Get Up!” New York’s Application
of the Substantial Factor Test, 18 St. John’s J. Legal Comment.593 (2005). To be sure,
many have stated in passing that “substantial” is unclear or ambiguous, but few, if any, have
systematically examined the word.
8.
I shall use the term “legal writing” broadly to refer to legislation, judicial opinions, legal
arguments, commentary, etc.
9. Cf.Restatement (Second) Of Torts § 431 cmt. a (1965) (“The word “substantial” is used
to denote the fact that the defendant’s conduct has such an effect in producing the harm as to
lead reasonable men to regard it as a cause, using that word in the popular sense, in which
there always lurks the idea of responsibility, rather than in the so-called “philosophic sense,”
which includes every one of the great number of events without which any happening would
not have occurred. Each of these events is a cause in the so-called “philosophic sense,” yet
the effect of many of them is so insignificant that no ordinary mind would think of them as
causes.”).
10. See Stanford Encyclopedia of Philosophy, Substance (hereinafter “SEP-Substance”),
§ 2.1, http://plato.stanford.edu/entries/substance (last visited December 12, 2010) (“[T]he
concept of substance is essentially a philosophical term of art. Its uses in ordinary language
tend to derive, often in a rather distorted way, from the philosophical senses. (Such expressions as ‘a person of substance’ or ‘a substantial reason’ would be cases of this. ‘Illegal
substances’ is nearer to one of the philosophical uses, but not the main one.) There is an
ordinary concept in play when philosophers discuss ‘substance’, and this, as we shall see,
is the concept of object, or thing when this is contrasted with properties or events. But such
‘individual substances’ are never termed ‘substances’ outside philosophy.”).
11. Plato, Republic xv (Benjamin Jowett transl., Elizabeth Watson Scharfenberger Introduction and Notes, Barnes & Noble Books 2004) (“the Republic “presents influential arguments

13 
concerning the very nature of reality and the means by which we human beings might apprehend what is real and distinguish it from what we see and experience in the world around
us.”).
12. See SEP-Substance, supra note 10, at § 2, (calling this strand of philosophical argument
a “debate,” and noting that “[a]lmost all major philosophers have discussed the concept of
substance”).
13. Republic, supra note 11, at li.
14. Id. at (7.514a—b).
Thomas Cahill, Mysteries of the Middle Ages 197-98, n.f (Anchor Books 2006):
15. Id. at (7.514b—515a).
43. See Cahill, supra note 42. (linking the problem of universals to the Plato-Aristotle
dispute).
16. Id. at (7.515a).
17. See id.; see also id. at (7.515c) (“To them . . . , the truth would be literally nothing but
the shadows of the images.”).
44. Id.
18. Id. at (7.515a).
46. Id.
19. Id. at (7.515c).
45. Cook &Herzman, supra note 40, at 214.
47. Id.
20. Id.
25. Aristotle, Categories (2a11-13).
48. Id. The problem of universals is particularly relevant to the law. Every case begins
with particulars. A client comes into the office with a problem. She relates to the lawyer the
facts surrounding that problem. The lawyer then taps his expertise by applying his knowledge
of the Law to the facts of this case. “The Law” is conceptual. The particulars are abstracted
away. What remains are concepts. Negligence is not Mrs. Smith’s failure to restrain her dog;
it is failing to exercise due care. Consideration is not the money Mr. Jones paid for his house;
it is the inducement to a contract. At bottom, the practice of law is an interplayof universalism
and particularism.
26. Id. at (2a11-12).
49. See supra notes 34 – 35 and accompanying text.
27. Id. at (2a13).
50. Thomas W. Henning, Partnership Exit Strategies and the Failure of the Substantiality
Test, 916 PLI/Tax 123-1 (available on Westlaw).
21. “[T]he word for sun in Greek (helios) is masculine—hence the masculine pronouns in
Jowett’s translation.” Republic, supra note 11, at n. ☼.
22.
SEP-Substance, supra note 10. 23. Id., at Introduction (emphasis in original).
24. Id., at §§ 2.1 & Introduction.
28. See James M. Donovan, Rock-Salting the Slippery Slope: Why Same-Sex Marriage
is not a Commitment to Polygamous Marriage, 29 N. Ky. L. Rev. 521, n.48 (2002) (citation
omitted); see also The New Oxford American Dictionary 1335 (2d ed. 2005) (“Predicate:
something that is affirmed or denied concerning an argument of a proposition”).
29. See Donovan, supra note 28. 30. See id.; see also SEP-Substance, supra note 10, at § 1 (“Thus Fido the dog is a primary
substance – and individual – but dog or doghood is the secondary substance or substantial
kind.”). Id. “Aristotle was mainly, if not exclusively, concerned with questions” regarding
secondary substances. Id.
31. See Donovan, supra note 28.
32. S. Marc Cohen, Aristotle’s “Substance,” in Themes in Ancient and Modern Philosophy
(Kendall-Hunt 2009). 33.
Donovan, supra note 28 (citation omitted)
34.
Cohen, supra note 32. 35. SEP-Substance, supra note 10, at Introduction. Ousia is a form of the verb “to be.” Cohen, supra note 32.
36. Justin Broackes and Peter Hacker, 78 Proceedings of the Aristotelian Society, Supplementary Volumes 41, 44 (2004).
37. Infra Part III.
51. Id.
52. NewOxford Dictionary, supra note 28, at 1687.
53. Jakubowitz, supra note 7, at n.44; see also Culver v. Bennett, 58 A.2d 1094, 1099
(Del. 1991) (“the term “substantial factor” has a quantitative connotation.”).
54. Supra Part II.B.
55. Supra Part II.A.
56. County Comm’r of Carroll Cnty v. Caroll Craft Retail, Inc., 862 A.2d 404, 407-08 (Md.
2004) (quotation omitted).
57. Id. (emphasis omitted).
58. Id.
59. This narrative is taken from the Maryland Court of Appeals’s opinion, see id., because
there is no record of the district court’s order available, and because for extremely complicated
and confusing procedural reasons neither the intermediate nor the highest court reached the
issues of substantiality.
60. Dowling Realty v. City of Shawnee, 85 P.3d 716, 720 (Kan. Ct. App. 2004) (emphases
added).
61. Id. at 720.
62. Delta CMI v. Speck, 586 So.2d 768, 773 (Miss. 1991).
38. Categ., supra note 25 at (1b25-2a4).
63. Id. (citations omitted).
39. On this, more infra at Part II.D.
40. William R. Cook & Ronald B. Herzman, The Medieval World View 213 (Oxford Press
2004) (citation omitted).
64. New Oxford Dictionary, supra note 28, at1339, 1518. (“Scintilla: a tiny trace or spark of
a specified quality or feeling[;] Preponderance: the quality or fact of being greater in number,
quantity, or importance.”). 41. Id.
65. See Jakubowitz, supra note 7, at n.44.
42. Id. One author’s description of the problem of universals is worth glancing at because
it was intended for a popular audience. He describes the problem of universals as follows:
66. Cage v. Lousiana, 489 U.S. 39, 40. (1990) (per curiam).
In medieval philosophy, t[he dispute between Plato and Aristotle] was called
“the problem of universals.” A universal signifies a united with reference to some
plurality—i.e., “mankind” versus individual men. Any intellectual concept—beauty,
goodness, justice, etc.—is a universal, for it stands as a unity against individual
beauties, individual persons of goodness, individual acts of justice, etc. The basic
philosophical question is what reality these universals possess. Plato believed
they had a reality separate from earthly things and existed in the World of the
Forms, which was far superior to the shadowy realities of our world because
earthly realities were real only insofar as they partook of the existence of their
ultimate models in the World of the Forms (the “really real”). This philosophical
position is called—paradoxically from a modern standpoint—extreme realism;
Augustine of Hippo was its most outstanding later proponent. Aristotle, the father
of moderate realism, believed that universals do exist, but only in the real objects
of sense experience and that human beings perceive the universal dimension
only intellectually (i.e., I know my neighbor Sam is an individual; I also know
him to be human and therefore partaking of the universal, humanity). Thomas
Aquinas would in the thirteenth century become the most important proponent of
the Aristotelian position. “Everything,” said Thomas, “that is in the intellect has
been in the senses.” . . . Other positions are possible, such as nominalism, which
contends that universals are but words.

14 
67. Id. (emphasis added).
68. Id. at 41.
69. Id. 70. Victor v. Nebraska, 511 U.S. 1, 17 (1994).
71. Id. at 18 (emphasis added).
72. Id.
73. Id.
74. Id.
75. In everyday speech, and even in the law, we tend to conflate the concepts of “ambiguous” and “vague.” In fact, there is an important distinction between these words that
Autumn 2011
is relevant to our discussion. “Ambiguous” means “open to more than one interpretation;
having a double meaning.” Supra note 28, at 38. On the other hand, “vague” means “of
uncertain, indefinite, or unclear character or meaning.” Id. at 1857. See also Harry Surden,
The Variable Determinacy Thesis, 12Colum. Sci. & Tech. L. Rev. 1, n.219 (2011).
76. Jakubwitz, supra note 7, at n.44.
77. It is somewhat easier to identify insubstantial and “hyper-substantial” things. SeeJakubowitz, supra note 7, at n.40 and accompanying text.
78. Russell W. Jacobs, Recapturing Rareness: The Significance of Surname Rareness
in Trademark Registration Determinations, 50 Idea 395, n.127 (2010).
79. E.g., Ludwig Wittgenstein, TractusLogico-Philosophicus 51 (C.K. Ogen trans.,
Routledge&Kegan Paul Ltd. 1981).
80. David M. Trubek, Where the Action Is: Critical Legal Studies and Empiricism, 36 Stanf.
L. Rev. 575, 577-78 (1984).
81. Roberto Mangabeira Unger, The Critical Legal Studies Movement, 96 Harv. L. Rev.
561, 578-79 (1983).
82. See Guido Calabresi, Being Honest About Being Honest Agents, 33 Harvard J. L. &
Pub. Pol’y 907, 910-11 (2010).
83. Id.
84. Bryan A. Garner, The Redbook: A Manual on Legal Style § 12.2(a) (2d ed. West 2006).
85. Id.
86. New Oxford Dictionary, supra note 28, at1687. 87. See supra notes 62-64 and accompanying text.
88. New Oxford Dictionary, supra note 28, at 1687.
89. Stason, supra note 3, at 1035. 90. Kenneth A. Adams, “Substantial” and “Substantiality”, The Koncise Drafter Blog (Jan.
25, 2011), http://www.koncision.com/substantial-and-substantially/
91. Id.
99. 294 U.S. 87, 95-96 (1935); see also, e.g., Stenberg v. Carhart, 530 U.S. 914 (2000)
(“When a statute includes an explicit definition, we must follow that definition, even if it varies
from that term’s ordinary meaning. That is to say, the statute, read “as a whole . . . leads
the reader to a definition.”); Meese v. Keene, 481 U.S. 465, 484-485(1987) (“It is axiomatic
that the statutory definition of the term excludes unstated meanings of that term”); Colautti v.
Franklin, 439 U.S. 379, 392-93, n.10 (1979); (“As a rule, ‘a definition which declares what a
term “means” . . . excludes any meaning that is not stated’”); Western Union Telegraph Co.
v. Lenroot, 323 U.S. 490, 502 (1945).
100. Maley, supra, note 4, at 27. Another way of saying this is that the words of a statute
“are simultaneously linguistic and legal.” Id.
101. Griswold v. Connecticut, 381 U.S. 479, 527 (1965) (Stewart, J., dissenting).
102. I use the term “legal fiction” here quite deliberately, for convincing ourselves that “light”
means “dark” requires the temporary suspension of disbelief. See Black’s Law Dictionary
(9thed. 2009) (“legal fiction: a device by which a legal rule or institution is diverted from its
original purpose to accomplish indirectly some other object.”). 103. Supra Part III.
104. Id.
105. See supra, note 99 and accompanying text.
106. See John F. Manning, What Divides Textualists from Purposivists?, 106 Colum. L.
Rev. 70, n.118 (2006) (“As I have previously suggested, ‘[t]he reality is that a statutory turn
of phrase, however awkward its results, may well reflect an unrecorded compromise or the
need to craft language broadly or narrowly to clear the varied veto gates encountered along
the way to enactment.’”).
107. E.g., Bush: No Moderate Judges, newsday, Mar. 29, 2002, at A16, available at 2002
WL 2735564 (“We want people to interpret the law, not try to make law and write law”); see
also generally Keenan D. Kmiec, The Origin and Current Meanings of “Judicial Activism”,
92 Cal. L. Rev. 1441 (2004).
108. Florida v. Wells, 495 U.S. 1, 13 (1990) (Stevens, J., dissenting); see also Kmiec, supra
note 107, at 1471.
109. Teleprompter Corp. v. Columbia Broad.Sys., 415 U.S. 394, 416, 419 (1974) (Douglas,
J., dissenting); see also Kmiec, supra note 107, at 1471.
92. See Maley, supra note 4, at 33.
93. See generally id.
94. See generally Earl M. Maltz, Statutory Interpretation and Legislative Power: The Case
for a Modified Intentionalist Approach, 63 Tul. L. Rev. 1 (1988).
95. Id. at 7; see also Easterbrook, Foreword: The Court and the Economic System, 98
HARV. L. REV. 4 (1984); Landes& Posner, The Independent Judiciary in an Interest-Group
Perspective, 18 J.L. & ECON. 875 (1975).
110. J. Harvie Wilkinson III, Federalism for the Future, 74 S. Cal. L. Rev. 523, 533 (2001)
111. See Note, Devon M. Jacob, United States v. Morrison: The “Substantial Effects” Test
of the Commerce Clause: A “Substantial” Way for the United States Supreme Court to
Legislate?,11 Widener J. Pub. L. 125, 145-46 (2002) (emphasis added).
112. Idaho v. Freeman, 507 F.Supp. 706, 717 (D. Idaho 1981).
96. Matz, supra, note 94 at 7-8; see also J. Ely, Democracy and Distrust (1980).
113. U.S. v. Morrison, 529 U.S. 598, 628, 638 (2000) (Souter, J., dissenting).
97. Matz, supra, note 94 at 9 (“The best explanation for the doctrine of legislative supremacy
is simply that it reflects a deeply-embedded premise of the American political system.”). Of course, resolving this controversy is outside the scope of this article, but I think Waltz’s
explanation begs the question.
114. Stason, supra note 3, at 1035. 98. E.g., 82 C.J.S. Statutes § 372 (2011) (collecting cases and stating, “[T]he statutory
definition will be applied even though otherwise the language would have been construed
to mean something other than the meaning indicated by the statute; a legislature may be its
own lexicographer.”); see also Sutherland Statutes and Statutory Construction, Definition
Sections, § 20.8 (7th ed. 2010). ButseeIowa Beef Processors, Inc. v. Miller, 312 N.W.2d
530 (Iowa 1981).
117. Cf.City of Knoxville v. Entm’t Res., LLC, 166 S.W.3d 650, 657 (Tenn. 2005) (citation
omitted).
115. See supra Part V.
116. Supra note 53 and accompanying text. The “modern” definition requires the user to
determine how big, important, or worthy something is. Id.
118. See, e.g., Richard A. Posner, Against Constitutional Theory, 73 N.Y.U. L. Rev. 1, 4
(1998) (noting the “increased academification” of the professoriate, and suggesting that little
of their scholarship reaches judges and practitioners).
About the Author
Micahel Malaguti practices with the Concord firm of
Ransmeier & Spellman, where he couples an estate
planning and probate practice with a general litigation
practice. He can be reached at mmalaguti@ranspell.
com.
Autumn 2011

15 
CLOSING THE LOOPHOLES
New Laws for 'In Terrorem' (No Contest)
Clauses in Wills and Trusts
By: Nadine M. Catalfimo and Charles A. DeGrandpre
Continuing with its effort to make New Hampshire the best trust
environment in the United States, legislators recently took steps to
reform some of its estate and trust laws.
The legislature has made a commitment to be the “most attractive
legal environment . . . for trusts and fiduciary services”1 by making
an “attractive legal and financial environment for individuals and
families seeking to establish and locate their trusts and investment
assets”2 to New Hampshire. On July 13, 2011, Governor Lynch approved
Senate Bill 50, which became effective on September 11, 2011, chang‑
ing various laws relating to wills and trusts.3 This article relates solely
to the provisions of the statute regarding “no-contest” provisions, also
known as “in terrorem” or “anti-contest” clauses, in wills and trusts. The text of the new legislation can be found at http://www.gencourt.
state.nh.us/legislation/2011/SB0050.html.
The new laws in Senate Bill 50 codified existing law, expanded
the application of no-contest clauses to trusts,4 and enumerated excep‑
tions. Overall, these new laws make it more difficult for beneficiaries
to contest the provisions of a will and trust that contain no-contest
provisions. The law closes loopholes and gives great deference to a
testator’s (or settlor’s) wishes. APPLICABILITY
RSA 551:22 relates to the enforcement of no-contest provisions in
wills, whereas RSA 564-B:10-1014 relates to the enforcement in trusts. Both statutes are applicable to “all judicial proceedings concerning the
enforcement or interpretation of no-contest provisions commenced on
or after September 13, 2011.”5 The provisions of both statutes mirror
one another, with references to wills and trusts and executors and
trustees, accordingly.
DEFINITION OF A NO-CONTEST PROVISION
A no-contest provision is defined as a provision that “if given effect,

16 
would reduce or eliminate the interest of any beneficiary of such will
[or trust], who directly or indirectly, initiates or otherwise pursues”6 an
action that 1) contests the admission or validity of the will or trust 2)
sets aside or varies the terms of a will or trust,7 3) challenges the acts
of the executor or trustee in the performance of his duties as described
in the will or trust; or 4) frustrates or defeats the intent of the testator
or settlor as provided under the terms of the will or trust.8 To be ap‑
plicable, the no-contest provision must apply to a beneficiary under the
will or trust.9 The attorney preparing a will or trust should be careful
to leave the beneficiary to be excluded an interest under the Will or
Trust so that the provisions of the no-contest clause are applicable.
RSA 551:22, II. and RSA 564-B:10-1014 (b) specifically provide
“a no-contest provision shall be enforceable according to the express
terms of the no-contest provision” regardless of good faith and prob‑
able cause for bringing an action, but subject the exceptions discussed
below.
THE EXCEPTIONS
No-contest provisions under a will and trust are not enforceable
to the extent the document is invalid because of “fraud, duress, undue
influence, lack of testamentary capacity, or any other reason.”10 The
language “any other reason” was not clarified under the statute and
will be subject to further interpretation. Most likely this will apply to
invalidation due to forgery, revocation by a later will or a provision
benefiting the preparer of the document, etc. In addition, there is an exception making a no-contest provision
unenforceable when the action solely challenges the acts of a fiduciary
who has “committed a breach of his fiduciary duties or breach of
trust.”11 NH adopted the minority view by providing that a no-contest
provision is enforceable regardless of “probable cause” and regardless
of the beneficiary’s “good or bad faith” in pursuing the action that
would cause a complete or partial forfeiture of the beneficiary’s inter‑
est.12 However a no-contest provision is not enforceable and the above
exceptions are not applicable when:
1) the executor or trustee brings an action when he is the benefi‑
Autumn 2011
ciary against whom the no-contest provision applies;13
2) there is an “agreement among the beneficiaries and any other
interested parties in the settlement of a dispute or resolution of any
other matter relating to the will [or trust];”14
3) there is an action to determine if a pending “motion, petition,
or other proceeding constitutes a contest within the meaning of a nocontest provision;”15 or
4) there is an action brought by a beneficiary or on behalf of any
such beneficiary . . . for a construction or interpretation of the will [or
trust] terms.16
RSA 551:22, III.(e) and 564-B10-1014(c)(5) carve out another
exception for actions brought by the Attorney General when probable
cause exists to institute proceedings “for a construction or interpreta‑
tion of a will [or trust] containing a charitable trust or charitable
bequests or if a provision exists in a will or trust purporting to penal‑
ize a charity or charitable interest for contesting the will or trust or
instituting other proceedings relating to the estate or trust.”
NH CASE LAW
In 1952, the NH Supreme Court set precedence by holding a
no-contest provision in a will is valid.17 In Burtman v. Butman,18
a beneficiary contested a will provision that was separate from the
no-contest provision under the same will.19 The court reviewed excep‑
tions to the application of no-contest provisions based on a violation
of public policy when there is good faith and probable cause to bring
the action20 and held:
[There is] “[n]o absolute exception in the case of good faith and
probable cause as any such exception would nullify all no-contest
provisions. These factors would be considered only as requirements
for preventing a forfeiture when a violation of some public policy
is claimed, but not established.21 Further, the court explained “where the intention of the testator is
clear and no question of public policy is involved either in the nature
of the provision attacked or the way it or the will came into being,
effect will be given to such no-contest clause. . .”22
Thus, RSA 551:21 codified New Hampshire case law as far as not
requiring probable cause and good faith when bringing an action
contesting the validity of a provision of a will that contains a no-contest clause.
THE MAJORITY VIEW
What makes New Hampshire’s laws different than the majority
view in the United States is the elimination of the probable cause re‑
quirement, which if required, would permit a disinherited beneficiary
to bring an action when there is probable cause to do so. In New
Hampshire, any will or trust contest makes the no-contest provision
applicable to the contestant and triggers the enforcement of its terms
(except as noted above). The probable cause rule is adopted by the Uniform Probate Code
§§ 2-517 and 3-905 (1990) and Restatement (Third) of Property: Wills and Other Donative Transfers §8.5 (2003). Autumn 2011
The Uniform Probate Code §§ 2-517 and 3-905 (1990) provide:
A provision in a will purporting to penalize any interested person
for contesting the will or instituting other proceedings relating to
the estate is unenforceable if probable cause exists for instituting
proceedings.
For a court decision explaining the application of the probable
cause standard, see In re Estate of Shumway, 9 P.3d 1062 (Ariz. 2000). In Shumway,23 probable cause was defined as:
[T]he existence, at the time of the initiation of the proceeding, of
evidence which would lead a reasonable person, properly informed
and advised, to conclude that there is a substantial likelihood that
the contest or attack will be successful. The evidence needed ...
should be less where there is strong public policy supporting the
legal ground of the contest or attack.... A factor which bears on
the existence of probable cause is that the beneficiary relied upon
the advice of disinterested counsel sought in good faith after a full
disclosure of the facts.24
See also Anti-Contest Clauses: When You Care Enough to Send
the Final Threat, by Martin D. Begleiter, 26 Ariz. St. L.J. 639 (1994)
for a discussion in favor of the minority view.
INTESTACY & THE DISINHERITED BENEFICIARY
To the extent a beneficiary successfully contests a will or trust
incorporating a no-contest provision and the estate or trust property
becomes subject to intestacy “the contestant will be entitled to his
intestate share of the property despite the in terrorem clause.”25 Al‑
though there is no case directly on point on this issue, there are several
NH Supreme Court decisions that support this conclusion. In Wells v.
Anderson,26 the testatrix left a beneficiary “one dollar and no more”
but did not dispose of all of her property under her will.27 The court
held the disinherited beneficiary took his intestate share of the estate by
operation of law under the intestacy statute and not the will.28 Further,
in the decision of In re Estate of Stewart29 several beneficiaries were
disinherited under the will, but when a specific legacy under the will
lapsed, the court found the disinherited beneficiaries took their shares
as provided under the intestate statute.30 To the extent a testator makes
no provision for the disposition of the residue after death, such property
will pass as intestate property and subject to RSA 561:1.31
CONCLUSION
The codification of case law regarding wills in RSA 551:22 and
the new statute, RSA 564-B:10-1014, extending the application of nocontest provisions to trusts, tightens the estate and trust laws regarding
in terrorem clauses by discouraging disinherited beneficiaries from
contesting wills and trusts. By honoring the intent of a testator and
settlor regarding no-contest terms, New Hampshire’s laws make con‑
testing a will and trust more difficult since enforcement doesn’t require
probable cause or good faith – another reason to move or establish a
trust in New Hampshire!

17 
ENDNOTES
1
2
3
16
RSA 551:22, III (d) and RSA 564-B:10-1014(c)(4).
RSA 243:1, III.
17
Burtman v. Butman, 97 N.H. 254, 257 (1952).
RSA 243:1, II.
18
Burtman v. Butman, 97 N.H. 254 (1952).
2011 N.H. Laws, Ch. 243, effective September 11, 2011.
19
Id.
20
Id.
21
Burtman at 259.
22
Id.
23
In re Shumway, 9 P.3d 1062 (Ariz. 2000).
4
See also Shelton v. Tamposi, No. 316-2007-EQ-2109, 2010 N.H. Super. LEXIS 78
(Aug. 18, 2010), (where the court upheld an in terrorem clause in a revocable trust disqualifying a trust beneficiary who instituted litigation in bad faith) citing Burtman v. Butman, 97 N.H.
254 (1952); and Keener v. Keener, 682 S.E. 2d 545 (Va. 2009).
5
RSA 551:22, V. and RSA 564-B:10-1014 (e).
6
RSA 551:22, I.
7
See also Johnson v. Greenelsh, 217 P.3d 1194 (Cal. 2009) (where the court held a
petition to compel arbitration pursuant to the terms of the trust did not violate a no-contest
clause); and Cook v. Cook, 99 Cal. Rprtr. 3d 913 (Ct. App. 2009) (where the court held a
beneficiary’s pleading violated a no-contest clause when it asserted that debts he owed to
his parents were unenforceable which would have resulted in an increase in his trust share).
24 In re Shumway, 9 P.3d 1062, 1066 (Ariz. 2000), citing RESTATEMENT (SECOND)
OF PROPERTY: Donative Transfers § 9.1 (1983).
25
See 7 DeGrandpre, NH Practice: Wills, Trusts and Gifts (4th ed.2003) §17.02.
26
Wells v. Anderson, 69 N.H. 561 (1899).
27
Wells at 561.
28
Wells at 561-62.
8
RSA 551:22, I (a)-(d) and RSA 564-B:10-1014 (a)(1)-(4).
29
In re Estate of Stewart, 113 N.H. 179 (1973).
9
RSA 551:22, I. and RSA 564-B:10-1014 (a).
30
Id. at 180.
10
RSA 551:22, II and RSA 564-B:10-1014 (b).
11
RSA 551:22, II and RSA 564-B:10-1014 (b).
31 See In re Gibbs, 110 N.H. 185, 186 (1970); Burpee v. Pickard, 94 N.H. 307, 308
(1947).
12
See RSA 551:22, II and RSA 564-B:10-1014 (b).
13
RSA 551:22, III (a) and RSA 564-B:10-1014(c)(1).
14
RSA 551:22, III (b) and RSA 564-B:10-1014(c)(2).
15
RSA 551:22, III (c) and RSA 564-B:10-1014(c)(3).
About the Authors
Nadine M. Catalfimo practices trust and estate law in New Hampshire and
Massachusetts. Contact her at [email protected]. Charles A.
DeGrandpre is a senior partner at the McLane, Graf, Raulerson & Middleton
law firm and author of Volumes 7, 10 and 11 of the NH Practice: Wills, Trusts
and Gifts and Probate and Administration of Estates, Trusts & Guardianships.
He can be reached at [email protected]. Until 2009, DeGrandpre
wrote the Lex Loci review of New Hampshire Supreme Court decisions for the
New Hampshire Bar Journal for more than 40 years.

18 
Autumn 2011
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19 
A PRIMER ON NEW HAMPSHIRE
FIRST-PARTY PROPERTY INSURANCE
By Caryn L. Daum I. GENERAL DIFFERENCES BETWEEN GENERAL LIABILITY AND PROPERTY INSURANCE POLICIES
Property insurance policies come in many different forms, but all
have one thing in common: they insure the property of the policyholder.
For example, a homeowners policy provides coverage in the event of
damage to the insured’s home and personal property. A commercial
property policy provides coverage in the event of damage to business
property and business personal property. These types of policies are
considered “first party” policies since they directly provide insurance
for the benefit of the policyholder. Contrast that with general liability
policies, which provide insurance mainly for the benefit of a third
party. For example, you hire a contractor to remodel your kitchen,
but the contractor makes a mistake. The contractor’s general liability
insurance policy would reimburse you for the damages caused by the
contractor’s negligence, assuming no policy exclusions apply. Liability
insurance may provide coverage for these types of third-party situations,
and as such, are commonly referred to as “third party” insurance
policies. While many policies, such as homeowners and commercial
insurance policies may contain both property and liability components
of coverage, this article will only discuss some of the basics involving
property insurance law in New Hampshire.
II. THE CONSTRUCTION OF INSURANCE POLICIES
A. Principles of contract interpretation
The interpretation of insurance policy language is typically a
question of law for a court to decide. “The fundamental goal of in‑
terpreting an insurance policy is to carry out the intent of contracting
parties.”1 “In interpreting policy language, [courts] look to the plain
and ordinary means of the policy’s words in context. [Courts] construe
the terms of the policy as would a reasonable person in the position of
the insured based upon more than a causal reading of the policy as a

20 
whole.”2 “Policy terms are construed objectively, and where the terms
of the policy are clear and unambiguous, [courts] accord the language
its natural and ordinary meaning.”3 “Absent ambiguity, [a court’s]
search for the parties’ intent is limited to the words of the policy.” 4
“The fact that the parties may disagree on the interpretation of a term
or clause in an insurance policy does not create an ambiguity.”5 The
parties’ dispute must be based upon reasonable differences about the
language’s interpretation.6 Reasonableness is the cornerstone of the
inquiry into whether there is a genuine ambiguity.7
B. New Hampshire Standard Fire Insurance Policy
Like most states, New Hampshire has a “Standard Fire Insurance
Policy”, the terms of which are statutorily adopted by New Hampshire
R.S.A. 407:2 and R.S.A 407:22. The terms of the Standard Fire Insurance
Policy must be included in any insurance policy which covers the peril
of fire, which is essentially any type of New Hampshire property insur‑
ance policy. Typically, the terms are included in an insurance policy by
way of a New Hampshire endorsement. The Standard Fire Insurance
Policy includes, among other things, special provisions relating to
the following: (a) concealment, fraud; (b) notice requirements; (c)
uninsurable and excepted property; (d) perils not included; (e) other
insurance; (f) conditions suspending or restricting insurance; (g)
other perils or subjects; (h) added provisions; (i) waiver provisions;
(j) cancellation of policy; (k) mortgagee interests and obligations; (l)
pro rata liability; (m) requirements in case loss occurs; (n) appraisal;
(o) company’s options; (p) abandonment; (q) when loss payable; (r)
suit limitation; and (s) subrogation.8
III. WHAT KIND OF DAMAGE DOES A FIRST-PARTY PROPERTY INSURANCE POLICY COVER?
A typical property insurance policy insures against “direct physi‑
cal loss of or damage to Covered Property at the premises described
in the Declarations caused by or resulting from any Covered Cause of
Loss.”9 Covered Property can include both real and personal property.
It depends on the terms of the insurance policy, and what is listed on
Autumn 2011
the policy’s declarations page.
When determining whether a loss is a Covered Cause of Loss, it is
important to look to the language of the policy to determine whether
it is an “all risk” policy or a “named peril” or “specified peril” policy.
An “all risk” policy typically covers any risk of direct physical loss or
damage that is not specifically excluded or limited by the terms of the
policy. To the contrary, “named perils” or “specified peril” policies only
provide coverage for any loss caused by the perils specifically named
in the policy.
IV. CAUSATION ANALYSIS
When a loss occurs, one of the inquiries to be made is whether the
damage occurred by a Covered Cause of Loss, as defined in the insur‑
ance policy. In some cases, the cause of damage may be clear, such as
when a fire occurs. However, in some instances, a loss may be caused
by both a covered cause of loss and an excluded cause of loss. In that
situation, an inquiry must be made into the chain of events that lead
to the damage, to determine if the loss is a covered loss or uncovered.
New Hampshire, like many jurisdictions, follows the “efficient
proximate cause” doctrine in evaluating the cause of a loss for insur‑
ance purposes.10
The efficient proximate cause doctrine has been applied under those
circumstances in which two or more identifiable causes, at least
one of which is covered under the policy and at least one of which is
excluded thereunder, contribute to a single loss. If the cause which
is determined to have set the chain of events in motion, the efficient
proximate cause, is covered under the terms of the policy, the loss
will likewise be covered. 11
However, it is important to note that there are certain exclusions
in property insurance policies that contain language which obviates
the need for the efficient proximate cause analysis. This language is
typically known as a “lead-in clause” or “anti-concurrent causation”
language and it typically reads as follows: We will not pay for loss or damage caused directly or indirectly by
any of the following. Such loss or damage is excluded regardless
of any other cause or event that contributes concurrently or in any
sequence to the loss.
The presence of this type of lead-in language before an exclusion
resolves the dispute over causation without needing to conduct an
“efficient proximate cause” analysis. Whenever this language appears,
it has the effect of precluding coverage for damage that was caused by
any of the excluded clauses listed, to which the lead-in clause applies,
regardless of whether the damage may have also been caused, in some
way, by a covered cause of loss.
Some jurisdictions have found that the presence of anti-concurrent
causation provisions in a policy violates public policy; New Hampshire
is not one of those jurisdictions. To the contrary, the New Hampshire
Supreme Court has upheld the enforceability of an anti-concurrent
causation clause over the express objections of an insured.12
Autumn 2011
V. EXCLUSIONS
Property insurance policies contain many exclusions. In some
cases, endorsements are added to policies which have the effect of add‑
ing a normally excluded coverage. Therefore, it is always important to
read the entire policy, including all endorsements, to determine which
exclusions apply. For the sake of brevity, a few of the more relied-upon
exclusions are discussed below.
A. Water
The water damage exclusion is one of the most commonly relied
on exclusions, as water damage is one of the most common causes of
loss. Typically, one will find some form of the following water damage
exclusion in a property insurance policy:
We will not pay for loss or damage caused directly or indirect by any
of the following. Such loss or damage is excluded regardless of any
other cause or event that contributes concurrently or in any sequence
to the loss.
Water
(1) Flood, surface water, waves, tides, tidal waves, over‑
flow of any body of water, or their spray, all whether
driven by wind or not;
(2) Mudslide or mudflow;
(3) Water that backs up or overflows from a sewer, drain
or sump; or
(4) Water under the ground surface pressing on, or
flowing or seeping through:
(a) Foundations, walls, floors or paved surfaces;
(b) Basements, whether paved or not; or
(c) Doors, windows or other openings
But if Water, as described in g.(1) through (4) above,
results in fire, explosion or sprinkler leakage, we will pay
for the loss or damage caused by that fire, explosion or
sprinkler leakage.13
In interpreting this exclusion, the New Hampshire Supreme Court
found that this exclusion was sufficient to preclude coverage for
damage to an insured’s property caused by a surge of water caused
by heavy rains.14
B. Ordinance or Law
Many policies contain an Ordinance or Law exclusion, which
applies to loss caused by the enforcement of any ordinance related to
zoning, land use or building construction requirements. Generally,
an insured sustains a loss due to enforcement of local building code
ordinances or laws in the form of increased costs associated with hav‑
ing to repair or replace damaged property. Typically, the Ordinance or
Law exclusion is found in the following form:
We will not pay for loss or damage caused directly or indirect by
any of the following. Such loss or damage is excluded regardless
of any other cause or event that contributes concurrently or in any

21 
sequence to the loss.
Ordinance Or Law
The enforcement of any ordinance or law:
(1) Regulating the construction, use or repair of any prop‑
erty; or
(2) Requiring the tearing down of any property, including
the cost of removing debris.
This exclusion, Ordinance or Law, applies whether the loss
results from:
(a) An ordinance or law that is enforced even if the
property has not been damaged; or
(b) the increased costs of construction incurred to
comply with an ordinance or law in the course of
construction, repair, renovation, remodeling or
demolition of the property, or removal of its debris,
following a physical loss to that property. 15
For an added premium, an insured can have an endorsement added
to its policy which removes this exclusion from the policy, and adds
some type of coverage for the costs associated with having to comply
with ordinance or law.
C. Workmanship-related exclusion
Most property insurance policies exclude coverage for damage
caused by poor workmanship. A typical exclusion would be:
We will not pay for loss or damage caused by or resulting from any
of the following… But if an excluded cause of loss that is listed
[below] results in a Covered Cause of Loss, we will pay for the loss
of damage caused by that Covered Cause of Loss.
c. Faulty, inadequate, or defective:
(1) Planning, zoning, development, surveying, siting;
(2) Design, specifications, workmanship, repair, construc‑
tion, renovation, remodeling, grading compaction;
(3) Materials used in repair, construction, renovation or
remodeling; or
(4) Maintenance;
of part or all of any property on or off the described prem‑
ises.16
As noted, this exclusion will not cover the costs of repairing any
faulty, inadequate or defective work; however, if that faulty, inadequate
or defective work causes a Covered Cause of Loss, then the policy would
cover the costs associated with the damage caused by the Covered Cause
of Loss. This type of secondary covered loss is typically known as an
“ensuing loss.” For example, if a contractor’s faulty roof installation
caused a roof leak which damaged the interior walls of a home, the
costs of repairing the faulty roof will not be covered, but the costs of
repairing walls damaged by the water may be covered, absent any other
applicable exclusion in the policy.
The New Hampshire Supreme Court has interpreted “the ensuing

22 
loss provision to apply to the situation where there is a ‘peril’, i.e., a
hazard or occurrence which causes a loss or injury, separate and in‑
dependent but resulting from the original excluded peril, and this new
peril is not an excluded one, from which loss ensues.”17 “Thus, the
exception to the exception operates to restore coverage if the damage
ensues from a covered cause of loss.”18 “Reasonably interpreted, the
ensuing loss clause says that if one of the specified uncovered events
takes place, any ensuing loss which is otherwise covered by the policy
will remain covered. The uncovered event itself, however, is never
covered.”19 VI. OTHER TYPES OF COVERAGE THAT MAY BE
AVAILABLE IN BUSINESS POLICIES
A. Lost Business Income Coverage
Many commercial property insurance policies include coverage for
loss of business income resulting from direct physical loss or damage
to covered property. This type of coverage compensates the insured for
the loss of business income sustained due to the unavoidable suspen‑
sion of the insured’s “operations” during the “period of restoration”.20
Policies typically define “operations” as the insured’s business activities
occurring at the premises described in the policy.21 In order to calculate
the loss of business income, the policy provision provides that business
income is “Net income (Net Profit or Loss before income taxes) that
would have been earned or incurred; and continuing normal operating
expenses, including payroll.”22
Policies also define the period of restoration. For example, ISO
Form CP 00 30 06 95 provides that the period of restoration begins
72 hours after the time of direct physical loss or damage for Business
Income coverage, and ends either when the property at the described
premises should be repaired, rebuilt or replaced with reasonable speed
and similar quality, or the date when business is resumed at a new
permanent location, whichever is earlier.23 The coverage does not ter‑
minate even if the policy period terminates.24 However, it is important
to note that the “period of restoration” does not include any increased
period required due to the enforcement of any ordinance or law that
(i) regulates the construction, use or repair, or requires the tearing
down of any property; or (2) requires any insured or others to test for,
monitor, clean up, remove, contain, treat, detoxify or neutralize, or
in any way respond to, or assess the effects of “pollutants.”25
B. Extra Expense Coverage
Not only is it possible for commercial policies to contain coverage
for lost business income, they may also provide extra expense coverage.
Extra Expense coverage is defined as the “necessary expenses you incur
during the ‘period of restoration’ that you would not have incurred if
there had been no direct physical loss or damage to property caused
by or resulting from a Covered Cause of Loss.”26 This type of coverage
generally reimburses an insured for costs it incurs in continuing its
operations at the damaged location, or any costs that it incurs in hav‑
ing to move and set up its business at another location.
Autumn 2011
VII. WHAT HAPPENS IF THERE IS A DISPUTE?
A. Suit limitations provisions
In the event that an insurance company denies coverage for all,
or a portion of, an insured’s claim, and an insured wants to bring
a breach of contract action against the insurer, the New Hampshire
Standard Fire Insurance Policy, as adopted by the legislature in RSA
407:2 and 407:22, provides:
Suit.
No suit or action on this policy for the recovery of any claim shall be
sustainable in any court of law or equity unless the requirements of
this policy shall have been complied with, and unless commenced
within 12 months next after inception of the loss.
However, the New Hampshire legislature’s adoption of RSA. 407:15
provides that the 12- month suit limitation period only begins to run
once the insurer gives notice to the insured of the existence of the
statutory suit limitation period, as adopted in the Policy. Specifically,
RSA 407:15 provides:
407:15 Notice to Insured.
Unless the company shall notify the insured that any action will
be forever barred by law if his writ is not served on the company
within 12 months next after such notification, he may bring his
action at any time.
The purpose of this section is to allow the insurer to place a 12-month
limitation on actions against it only if it gives the insured specific
notice of the limitation.27 Furthermore, the New Hampshire Supreme
Court has held that RSA 407:15 controls over the provisions contained
in the New Hampshire Standard Fire Insurance Policy set out in RSA
407:22.28 Lastly, the New Hampshire Supreme Court noted that the suit
limitations period in RSA 407:22 applies not only to actions at law but
to claims in equity, including declaratory judgment petitions.29 The
12-month period begins to run from the date of notice of the limitation
to the insured, and not from the date of loss.30
a petition against any person claiming adversely to such right or title
to determine the question as between the parties, and the court’s judg‑
ment or decree thereon shall be conclusive.”33 The statute further provides that “[n]o petition shall be main‑
tained under this section to determine coverage of an insurance
policy unless it is filed within six months after the filing of the writ,
complaint, or other pleading initiating the action which gives rise to
the question; provided, however, that the foregoing prohibition shall
not apply where the facts giving rise to such coverage dispute are not
known to, or reasonably discoverable by, the insurer until after expira‑
tion of such 6-month period; and provided, further, that the superior
court may permit the filing of such a petition after such period upon a
finding that the failure to file such a petition was the result of accident,
mistake or misfortune and not due to neglect…”34 Either an insured or an insurer can file a petition; however, the
failure of an insurer in a coverage dispute to file a declaratory judg‑
ment action does not result in an estoppel of the insurer’s defenses.35 If
filed, the declaratory judgment action is subject to the suit limitations
and notice provisions found in RSA 407:15 and 407:22, as discussed
above. C. Burden of Proof
In most states, in order to recover under a policy, the insured has
the burden of proving that a loss is covered under the insuring agree‑
ment. In that regard, an insured is usually required to prove that (1)
direct physical loss or damage occurred; (2) to covered property; (3)
within the applicable policy period; and (4) which was caused by or
resulted from a covered cause of loss.
However, New Hampshire has enacted a statute which shifts the
burden of proof to an insurer. N.H. RSA 491:22-a Liability Coverage;
Burden of Proof, provides that “the burden of proof concerning the
coverage shall be upon the insurer whether he institutes the petition or
whether the claimant asserting the coverage institutes the petition.”36 D. Attorneys Fees and Costs
B. Availability of Declaratory Judgment
As the case in most jurisdictions, the
remedy of declaratory judgment affords relief
from uncertainty and misunderstanding in
the ascertainment of rights.31 Interpretation
of insurance policy language is ultimately
a question of law for the court to decide.32 As
such, New Hampshire permits parties in an in‑
surance dispute to file a declaratory judgment
action in order to resolve any coverage issues
that may exist. New Hampshire RSA 491:22,
Declaratory Judgments, provides, among other
things, that “[a]ny person claiming a present
legal or equitable right or title may maintain
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
23 
New Hampshire allows an insured to recover the costs it incurs in
bringing a declaratory judgment action if it prevails in the action. More
specifically, RSA 491:22-b, Insurance Actions; Costs and Attorneys’ Fees,
provides that “[i]n any action to determine coverage of an insurance
policy pursuant to RSA 491:22, if the insured prevails in such action,
he shall receive court costs and reasonable attorneys’ fees from the
insurer.”37 The New Hampshire Supreme Court has determined that the
phrase “to determine coverage” in this section, by its plain mean‑
ing, includes a determination either of the existence of an insurance
contract or that an existing insurance contract covers the particular
incident in question, or both.38 Furthermore, in determining what
are “reasonable” attorneys fees, relevant factors in the determination
of reasonable fees include the amount involved, the nature, novelty,
and difficulty of the litigation, the attorney’s standing and the skill
employed, the time devoted, the customary fees in the area, the extent
to which the attorney prevailed, and the benefit thereby bestowed on
his client.39
VIII. CONCLUSION
This article is meant to only highlight some of the basics involv‑
ing first-party property insurance law in New Hampshire. The terms
of property insurance policies vary policy to policy, and therefore, it is
imperative that New Hampshire practitioners read an insurance policy,
including all endorsements, to determine exactly what type of cover‑
age is being afforded by the policy. Furthermore, every loss situation is
factually different, and therefore, it is important to always thoroughly
research New Hampshire case law when evaluating first-party property
insurance issues in New Hampshire. ENDNOTES
7.
Amherst, 561 F.Supp.2d at 138.
8.
See N.H. Rev. Stat. Ann. 407:22 (2011).
9.
See Building and Personal Property Coverage Form (ISO Form CP 00 10 06 95),
STEPHEN A. COZEN, INSURING REAL PROPERTY, Appendix 1-B (2010).
10. See Terrien v. Pawtucket Mutual Fire Inc. Co., 96 N.H. 182, 185 (1950); Nassif Realty
Corp. v. National Fire Ins. Co. of Hartford, 109 N.H.117, 119 (1968).
Amherst Country Club, Inc. v. Harleysville Worcester Insurance Co.,
561 F.Supp.2d 138, 151 (D.N.H. 2008).
11.
12.
Bates v. Phenix Mutual Fire Ins. Co., 156 N.H. 719, 724 (2008).
13. See Causes of Loss – Special Form (ISO Form CP 10 30 06 95), Exclusion B.1.g.,
STEPHEN A. COZEN, INSURING REAL PROPERTY, Appendix 1-I (2010).
14.
See Bates v. Phenix Mut. Fire Ins. Co., 156 N.H. 719, 723 (2008).
15. See Causes of Loss – Special Form (ISO Form CP 10 30 06 95), Exclusion B.1.a.,
16. See Causes of Loss – Special Form (ISO Form CP 10 30 06 95), Exclusion B.1.a.,
17.
Weeks v. Co-Operative Insurance Companies, 149 N.H. 174, 177 (2003).
18.
Id.
19.
Id.
20. See Business Income and Extra Expense Coverage Form (ISO Form CP 00 30 06
95), STEPHEN A. COZEN, INSURING REAL PROPERTY, Appendix 1-C (2010).
21.
Id.
22.
Id.
23. See Business Income and Extra Expense Coverage Form, (ISO Form CP 00 30 06
24.
Id.
25.
Id.
26. See Business Income and Extra Expense Coverage Form, (ISO Form CP 00 30 06
27.
Hebert Mfg. Co. v. Northern Assurance Co., 108 N.H. 381, 385-86 (1967).
28.
See id.
29.
Kierstead v. State Farm Fire Cas. Co., 160 N.H. 681, 687 (2010).
30.
Janvrin v. Union Mutual Ins. Co., 128 N.H. 555, 556 (1987).
31.
Portsmouth Hospital v. Indemnity Insurance Company, 109 NH 53 (1968).
Harrison v. Allstate Ins. Co., 80 F. Supp.2d 1 (D.N.H. 1999).
1.
Tech-Built 153 v. Va. Surety Co., 153 N.H. 371, 373 (2006).
32.
2.
Broom v. Continental Cas. Co., 152 N.H. 749, 753 (2005).
33.
3.
Oliva v. Vt. Mutual Ins. Co., 150 N.H. 563, 566 (2004).
34.
4.
Id.
35.
Howard v. Hartford Ins. Co., 127 N.H. 727 (1986).
Id.
36.
See N.H. Rev. Stat. Ann. 491:22-a (2011).
37.
See N.H. Rev. Stat. Ann. 491:22-b (2011).
38.
Hodge v. Allstate Ins. Co., 130 N.H. 743 (1988).
39.
Bianco, P.A. v. Home Insurance Co., 147 N.H. 249 (2001).
5.
6.
Amherst Country Club, Inc. v. Harleysville Worcester Insurance Co., 561 F.Supp.2d
138, 144 (D.N.H. 2008), citing Titan Holdings Syndicate, Inc. v. City of Keene, 898 F.2d 265,
269 (1st Cir. 1990).
About the Author
Caryn L. Daum is a New Hampshire and Massachusetts practitioner and Counsel with Robinson & Cole, LLP in Boston,
Massachusetts. She focuses her practice on complex property
insurance coverage litigation cases, including cases related to
commercial property, homeowners, boiler and machinery, and
builders risk-type policies.

24 
Autumn 2011
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
25 
concussions and
student-athletes:
Medical-Legal Issues in Concussion Care &
Physician and School System Risks
By Stuart J. Glassman, MD, and
Attorney Bradley D. Holt
Introduction
In Sebastian Junger’s book “The Perfect Storm1” a collection
of meteorological phenomena coalescing at the same moment produced unexpectedly strong storm effects and ensuing disaster. Any one
of the three key contributing factors – a dying Hurricane Grace, a
weather system coming in from the west, and an unusual Nor’easter
-- would have been manageable, but the synergistic combination
rendered the storm (ironically), “perfect,” and devastating.
In that vein, there are three factors simultaneously contributing to a new paradigm in student/athlete concussion management
which foster a significant risk management challenge for youth
sports programs, such as at high and middle schools, or in various
town and private sports programs. The three factors are: new medical
understanding, new levels of general public awareness, and a new
attitude about what to do.
Rapidly advancing, highly sophisticated developments in medicine (particularly neurology and pathology) are changing what we
know about concussions (e.g., about how young, developing brains
react compared to mature brains; how to detect subtle injuries; and
how to determine when it is safe to return to play.) New levels of
general public awareness come from the Internet and 24/7 news
cycles: these phenomena foster rapid dissemination of otherwise
widely-dispersed anecdotes, and the rapid aggregation of these
anecdotes into storylines accelerates identification of trends. (For
example, a football player’s concussion in Spokane, WA and one
in Shreveport, LA, can be quickly called up and folded into a story
about a similar injury in Morristown, NJ, fitting each event into a
larger, coherent context, and announcing a “trend.”)
In professional sports there has been a sea change in appreciation of concussion issues too; the economics of professional sports
and the high profile of athletes exponentially increase the impact

26 
of this changed appreciation. Lawsuits by retired NFL players2 for
compensation and treatment for damage from head injuries, and
negotiated rule changes to protect current athletes3 are just two examples of a changed perspective on the significance of concussion
injuries for athletes.
The drive to address concussion concerns inexorably trickles
down to amateur youth sports. The standard of care for prevention,
recognition, and treatment of concussions is changing, and these
changes are playing out in a very public way at the professional sports
level. Similar scrutiny seems only a few short steps away for colleges
and universities, secondary school systems, and even high-level club
sports teams.
As evidence of this trend, the NCAA passed regulations in the
spring of 2010 which now require any Division 1, 2 or 3 school
to have a “concussion management plan” on file.4 Likewise, as of
August 2011, 30 states have now passed youth sports concussionrelated laws,5 an accelerating trend. These laws and regulations tend
to include (1) mandates for formal training of coaches about how
to identify signs and symptoms of a concussion, (2) requirements
regarding removal from competition, and (3) “return to play”
stipulations.
The legal system tends to work these scenarios (i.e. changing
legislative, social, or scientific paradigms) out over time so that actors
from all perspectives can organize their conduct and expectations.
In the early, uncertain stages of this process, standards of care get
litigated, after which jury verdicts and settlements help establish the
“value” of claims, and everyone adjusts.
This article reviews the changes in medicine, and the current
legal posture, concluding with some recommendations for preparing
for the future.
I. Medical ‘State of the Art’
a. What is a concussion?
A concussion is a mild traumatic brain injury, which leads to a
cascade of neurochemical changes in the brain at the cellular level.
Autumn 2011
Changes are seen in ion flow, especially with potassium, calcium and
glutamate.6 It is a functional disturbance of the brain, as compared
to a structural injury: only 1 percent of concussion cases show any
change on structural imaging studies such as CT or MRI scans of
the brain.
The Centers for Disease Control (CDC) estimates that there are
between 1.6 and 3.8 million sport-related concussions every year
in the US7, and that underreporting is very common, especially in
youth sports. In the past, terms such as ‘getting your bell rung’ or
‘it’s only a ding’ were used, often as a way to downplay the concern
of any type of injury. This likely was due to a lack of understanding
of the true effects of a concussion. With recent international consensus statements such as the Zurich 3rd International Conference on
Concussion from October 2008 (statement released in May 2009)8,
and research showing the long term effects of multiple concussions, including Chronic Traumatic Encephalopathy (CTE), these
euphemistic terms are simply no longer appropriate. A concussion
is a brain injury, and must be treated appropriately.
b. Pathologic Findings
One of most significant medical findings over the past few years
concerning concussions is based on
the neuropathology work of Dr. Bennett Omalu (University of Pittsburgh
Medical Center) and Dr. Ann McKee
(Boston University School of Medicine): they have discovered that the
brains of athletes who suffered multiple
concussions had accumulated tau
protein deposits, known as Chronic
Traumatic Encephalopathy (CTE),
similar to beta-amyloid changes found
in Alzheimer’s patients. It has been
postulated that the multiple traumatic
hits to the brain led to the tau protein
accumulation, which clinically was
seen as behavioral changes, emotional
liability, substance abuse and cognitive
decline. (e.g., a disturbing trend of retired middle aged athletes
committing suicide has been identified.)
A striking example of this recently was the sad case of Dave
Duerson, a former Chicago Bears All-Pro safety. Duerson had been a
four-year starter at Notre Dame, an All-American, MVP, team captain
(who later served for five years as the University Trustee). In the pros,
he played on two Super Bowl teams and held an NFL sack record.
After his playing days he became a very successful businessman.
Yet on February 11, 2011, he committed suicide – leaving a text
directing that his brain be donated to the ongoing study at Boston
University, and he purposely committed suicide via a gunshot wound
to the chest, in order to keep his brain intact. Upon post-mortem
examination, his brain did show CTE changes.
Autumn 2011
The phenomenon is not confined to career NFL players, and a
key issue to resolve is how to determine at what point the damage
starts. In the past year medical research has demonstrated chronic
changes from head injuries in teenagers, even in cases where there
was never a diagnosed concussion. This is noted in the case of Owen
Thomas, an All-Ivy League football team captain from the University
of Pennsylvania, which drew much attention last year, after the
21-year-old hanged himself inexplicably: follow up research at
Boston University showed his brain to be in “early stages” of CTE,
despite his mother’s report that he had never been diagnosed with a
concussion, and had never before shown any side effects normally
associated with brain trauma. (Likewise, she reported he had no
history of depression.) His case is cited as representing the youngest – and first amateur – football player demonstration of CTE.
c. The significance of “Second Impact Syndrome”
In the acute setting of concussion management, one rare but
catastrophic situation that clinicians are trying to avoid is called
Second Impact Syndrome. SIS occurs approximately once in a million concussion cases, or two or three times per year in the United
States. It was first described in the medical literature in 1973, and was formally
named in 1984 by neurosurgeons at
Dartmouth Medical School. The cause
of SIS is felt to be massive swelling due
to a minor second injury to the brain
that is still recovering from an initial
head injury, usually within the prior two
weeks. While some of these cases involve
intracranial bleeding, it can also be
due to brain edema. At no time should
a concussed athlete be exposed to the
potential of a second head injury before
the first concussion has fully healed, due
to the risk of SIS (usually in the first
14-21 days after the initial concussion).
Even short of this rare but catastrophic
event, however, is the recognized risk of
a longer recovery time with the second
head injury.
d.Testing
Testing encompasses both player evaluation and equipment
testing. There have been rapid advances on both fronts.
(i) Cognitive evaluation.
Player testing involves pre-injury baseline testing, as well as
post-injury evaluation. There are several new tests being marketed
and used to test neurological consequences of head injuries. The
neurocognitive evaluation is often done with computerized testing,
such as those by ImPACT®,9 CogSport®10 or ANAM®.11 Ideally, such

27 
a test is administered to each student athlete before the season, to
establish baseline in each area; after an injury, the post-injury test
results can then be compared to baseline data. Even if an injured
student athlete has only 1 of the 22 different “positive” symptoms
(for as short a time as only 15-30 minutes), a concussion could be
diagnosed using this kind of tool. Symptoms which are self-reported
may ultimately improve, but abnormal balance testing or abnormal
neurocognitive test results would still indicate that the concussion
has not fully resolved, even in a situation where the symptom score
is zero.
(ii) Clinical evaluation.
The clinical evaluation of a concussion involves three main
areas: symptom assessment (emotional, cognitive, physiologic and
sleep changes), balance testing, and neurocognitive evaluation.
The symptom assessment is often done using a 22-item graded
symptom checklist, which is readily available in the SCAT 2 (Sport
Concussion Assessment Tool 2)12 document which was issued at the
time of the publication of the Zurich Consensus Statement on Sport
Related Concussion. Symptom checklists are also available as part
of the Acute Concussion Evaluation (ACE)13 kit which is published
by the CDC. Each symptom is rated on a 0-6 scale, for total scores
that can vary from 0 to 132. Scores that are above a total of 10 are
often indicative of a concussion.
Balance testing is done using the Balanced Error Scoring System
(BESS),14 which involves testing 3 different balance positions (single
leg, tandem stance and parallel stance) on both a hard surface and
on a foam pad. Trained clinical evaluators administer these tests
essentially anywhere (no equipment required).
e.Treatment.
The current treatment recommendations for concussions are
fairly straightforward: physical and cognitive rest is the initial
recommendation,15 with consideration of medications to help with
treatment of specific symptoms, such as headaches, dizziness or
nausea. Anti-inflammatories should not be used for the first week,
due to the risk of an undiagnosed subdural bleed.
Students may need to miss school early on, and may need to
have modified school schedules and homework/test schedules while
recovering from this injury. Recovery is often weeks to months in
the youth/teenage population, and has been shown to take longer
than college age or adult concussion recovery.
Once the symptoms have improved, an exercise “progression”
can begin, often under the supervision of an athletic trainer or physical therapist, as long as symptoms do not get worse with exercise.
The accepted model is a ‘Return to Play’ progression, which goes
through 5 distinct stages:
1. Light aerobic exercise at less than 70 percent heart rate
maximum
2. Sport specific exercise
3. Non-contact training drills
4. Full contact practice (after medical clearance by an ap-

28 
propriate health care professional)
5. Return to play (normal game activity).
The progression is individualized, as no two concussions recover
along the same timeline--even in the same person (for example, with
a second concussion years after the first resolved.) Concussions are
no longer ‘graded’, as had been the medical practice for much of
the past decade. For the youth student athlete population, the accepted time frame between stages in 24-48 hours. Some state athletic
associations (such as New Jersey) have recommended a seven-day
asymptomatic waiting period prior to beginning the return to play
progression.16
f.The Imperative to Act.
The point is that we are now aware of the far-reaching but
often occult consequences of concussive head injuries, through
accumulative effect. Likewise, we now see the perhaps counterintuitive effects on younger brains (i.e., still developing and elastic
brains are actually more vulnerable.) As Justice Cardozo wrote many
years ago, “The risk reasonably to be perceived defines the duty to
be obeyed….”17 Now that we understand, we must act.
II. The Legal Landscape
The old days were characterized by a “play through it” mentality, and assumption of the risk as the legal paradigm; as one
opinion stated it succintly: “A participant in dangerous sports
accepts the dangers inherent in that sport.”18 Thus, a participant’s
decision to play in a sporting event “assumed the risk” that he or
she might be injured by contact during the contest. An injury in
the ordinary course, such as a “legal” tackle, was the participant’s
own responsibility. Generally it was understood that even hits which
might technically be infractions (i.e., in the “old days” a late hit
in football, an elbow in hockey) were included in the expected and
accepted milieu.
But the medical community did not yet appreciate the significance of concussion injuries on a long-term basis. On personal
experience, the authors can assert that in prior generations, a player
receiving a blow to the head would be briefly “examined” by a coach,
who may or may not have had the proper training in concussion
assessment and evaluation; the player might identify ongoing symptoms, but also a willingness to return to the field/ice/ring/court; and
usually the coach would let the player return to competition. That
this was the approach followed at the professional level, in the NFL,
the NHL, and in boxing, is widely documented. Now that test programs are widely available and increasingly
in use, the “standard of care” is clearly moving towards a paradigm
that encompasses their routine use in the secondary school athletic
system, and in contact youth sports. With increased medical understanding and appreciation for what can be done, so comes the new
duty.
Notably, it is (usually) not the on-field injury at issue, it’s the
treatment after. At that point concussion cases most resemble medical
negligence claims, though plaintiffs have employed other recognized
Autumn 2011
legal claims as well.
a.Liability Theories.
A host of potential claims exist, with several having been used
in litigation already:
• School has no protocol – and should: as more states
mandate youth or scholastic protocols, this becomes part of the
standard of care; as noted, protocols typically address training of
coaching staffs and of players, as well as requirements to implement
protocols for “return to play.” • School protocol is flawed: As more states provide “model”
more protocols, the characteristics of an acceptable protocol in this
field are starting to be generalized. An inadequate protocol, or one
which deviates significantly from the features of the most commonly
found one, or from state-mandated models, invites litigation.
• School didn’t follow protocol: This could involve allowing a player to return to competition before the player is ready.
It could also involve inadequate pre- and/or post- evaluations. For
example, sometimes baseline data (i.e., the preseason testing) is
demonstratively wrong. It should not be used as the basis for any
valid comparisons of treatment decisions. Protocols should identify
criteria for “valid” testing.
Anecdotally, players sometimes do “tank” on the baseline in a
misguided attempt to offer themselves more “cushion” in any future
post-injury test comparison. In other words, if they purposely score
low in the different areas on their baseline, then a low score after
a head injury in a game would not deviate significantly, such that
the player might be erroneously cleared to play. (One would think
this is a very foolish approach, but it has been known to happen!)
In this example, the testing should be performed carefully enough
to detect such an erroneous baseline result, and re-testing should
be undertaken to replace invalid test results. If a school agent ignored obviously inaccurate baseline test
data or otherwise allowed a player to return to play without following accepted “return to play” protocols, that would be potentially
actionable. Similarly, if pre-testing documentation were available
but the school system made a decision to return a player to active
participation without getting an appropriate set of post-injury
comparison studies, this could be inappropriate. In the case of
Ryne Dougherty v. Montclair High School, et al,19 a player who
had had a concussion three and a half weeks before while playing
football had a second impact and was taken off the field suffering
from catastrophic brain bleed. An ImPACT® Test taken between
the two injuries was deemed void because of problems with the test
taking environment. A school administrator was quoted as saying
“we actually had a problem in the room he was taking it, and all
those tests became invalid, [because] another athlete [in the testing room] was being disruptive to everybody, so those people had
to retake the test.” Tragically for Ryne, the issue was not resolved
in time to identify his condition; he was allowed to play while still
suffering from the effects of his first concussion and got hit again,
resulting in catastrophic injury and his untimely death.
Autumn 2011
Best Practices:
‘A Reasonable Approach’
• Baseline computerized neurocognitive cognitive testing
for all student athletes in contact/collision sports, repeated
every two years. Results should be reviewed by the school’s
concussion specialist.
• No return to contact activity/game activity before resolution
of symptoms, normalized balance testing, neurocognitive
testing within or above baseline results, and completion
of Return to Play progression. Medical clearance only by
an appropriate health care professional (physician, physician assistant, nurse practitioner, certified athletic trainer,
or neuropsychologist) with commensurate training and
experience in the assessment and management of youth
sports-related concussions.
• Follow-up care and neurocognitive testing - athletes must
meet certain criteria before returning to play. (see above)
• School-wide academic support for student athletes with
concussion, reporting and follow-up to school nurses,
guidance counselors, teachers, etc.
• A concussion information/warning sheet given to and
signed by athlete/parent, before the start of the sport
season.
• Good communication throughout, and adherence to the
school’s concussion guidelines. These guidelines should
also be distributed to the community health care providers
and area hospital emergency rooms.
– Stuart J. Glassman, M.D., and Bradley D. Holt, attorney.
• Alternate Potential Theories: There are other potential
claims that have or could be used in concussion cases, independent
of protocol issues. For example, where a plaintiff might be unable to
make a strong case on breach of an appropriate protocol, or where
a potential immunity defense existed for the personnel involved, a
plaintiff might include a count for “premises liability.” This was
the approach taken by Jennifer Gill in her suit against Tamalpais
Union High School in California. The 15 year old cut her eyebrow and
suffered an apparent concussion when running into an unpadded
outdoor court basketball hoop post, which was being used because
the team’s indoor gym was unavailable. She was sent by the coach to
the training room where a certified athletic trainer from an outside
(contracted) medical group began to treat her; when the trainer
went to get gauze and gloves, Jennifer became unconscious and
fell to the floor, dislodging three front teeth. Evidently, immunity
defenses were available for the personnel, because plaintiff proceeded

29 
on causes of action for general negligence (which was dismissed by
the court on the pleadings), and for premises liability. The premises
liability claim asserted the school district maintained a dangerous
condition of public property, and was the plaintiff’s avenue to victory: California’s appellate court upheld a jury’s award of approximately
$477,000.00 on appeal.20
Schools or other youth sports organizations could potentially
face liability for a claim of provision of inadequate safety equipment, such as outdated helmets, inappropriately refurbished helmets, inappropriately sized helmets, etc.21 In Rodriguez v. Ridell,
Inc.,22 a high school football player’s family filed a lawsuit against
a helmet manufacturer claiming strict liability for a unreasonably
unsafe design of its helmet. The case involved a high school football
player who suffered a head injury on a tackle, lost consciousness,
and was ultimately diagnosed with a subdermal hematoma causing
permanent brain injury and a permanent vegetative state. A Texas
jury awarded $11 million in verdict, which was reversed on appeal
and remanded for a new trial. Much of the dispute revolved around
the reconditioned helmets issued to players and whether Rodriquez’s
had been adequately reconditioned. While it was a helmet manufacturer as principal defendant in this case, football programs which
employ a reconditioning program for their helmets would be wise
to review the case and findings.23 A claim that inadequate information was provided to a player
and their guardian (i.e., informed consent) is always a possibility,
as would be inadequate provision of information to other care
providers, to promote most effective treatment). In Hunt v. Coach
Sunkett, et al,24 a student sued a football coach and school district
complaining of permanent brain injury after his complaints of
headache and signs of concussion were ignored. The suit alleged
that the coach exhibited a “win at all costs” mentality, and that the
parents were not informed when their son was injured, such that
they could not exercise parental discretion in seeking treatment. Likewise, in assessing how future care was arranged, one might
face a claim asserting failure to refer to a specialist in a timely
fashion, or at all. Finally, a plaintiff might allege negligent supervision regarding
referees and/or coaches, if the way in which a particular game was
allowed to proceed resulted in someone having a significant head
injury. (See below at Section C. Immunity) b.Legislative responses to the risk.
Increased awareness and/or new laws have led school systems
to assess their rules, policies and guidelines to determine if they
adequately ensure the safety of student athletes, and will decrease
the liability for their school, district and town.
Much of this awareness began with the case of Zackery Lystedt,
a 13-year-old middle school football player who suffered permanent
brain damage and disability after being injured in a game in Washington State in the fall of 2006. In the first half of a football game
he suffered a concussion, but was allowed to play in the second half.
He subsequently suffered multiple repeat hits to his head, which led
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30 
to the development of increased swelling in the brain, which in turn
caused the above-mentioned Second Impact Syndrome. Zackery was
flown to the closest trauma center that could treat him, underwent
emergent neurosurgery to relieve the pressure and swelling in the
brain, and did survive, but he is permanently disabled due to the
brain injury. His family, friends and doctors have spent a number
of years since the injury increasing public awareness of concussions
and brain injuries in the youth sports setting. Their efforts led to
the passage of the “Zackery Lystedt law” in May 2009 in the state of
Washington.25 This bill has become a model for legislation passed in
other states. A recent review shows that as of August 2011, 30 states
have passed concussion legislation.26
New Hampshire does not have any type of concussion legislation enacted. SB 95,27 which called for a study commission to look
at youth concussions in the school setting, was discussed this year,
but did not pass.
Legislation modeled on the Lystedt law tends to include three
prongs:
1. Efforts to inform and educate athletes, parents and coaches;
2. Mandated removal of athletes who may have suffered a
concussion during a game or practice;
3. Required adherence to predetermined “return to play”
protocols, including evaluation by a trained professional before
being cleared.
c. Immunity
New Hampshire case and statutory law provides immunity to
governmental entities in at least certain situations, and some caps on
damages.28 Schools qualify as a governmental entity in this context,
and employees are covered. Volunteers, such as assistant coaches,
should be covered under R.S.A. 508:17, I.
New Hampshire law considers ten key factors in assessing
whether immunity is applicable:
1. The nature and importance of the function being performed
which might be afforded immunity;
2. The importance of unhampered judgment in execution of
the function;
3. Would a private individual be liable?;
4. What is the impact of potential liability (i.e, would it be
impossible to recruit people to perform that valuable function if they
didn’t have the protection of immunity?);
5. The likelihood of false accusations;
6. The threat of vexatious lawsuits and the time and effort
required to respond to them;
7. Whether insurance coverage is available;
8. The nature of the harm to the community;
9. The nature of the harm itself; and
10. The availability of alternate remedies.29 One New Hampshire case30 involving scholastic sports injury
analyzed these issues; though it is not a concussion case, the Court’s
opinion and reasoning illuminate the same thought process which
would apply: New Hampshire Bar Journal
Autumn 2011
Plaintiffs’ daughter was injured in a sixth-grade girls basketball
game in which (her parents allege) the referees, coaches, instructors
and employees of the school/town “permitted the game to escalate
out of control.” The plaintiff parents brought claims for several
theories of negligence against a school district and town, claiming
defendants failed to exercise reasonable care and supervision, they
alleged that the school system and town were vicariously liable for
the employees, coaches, instructors and referees, and they alleged
the defendants failed to properly train and supervise the employees,
coaches, instructors and referees. The defendants moved to dismiss
for failure to state a claim upon which relief may be granted, arguing that the doctrines of “discretionary function immunity” and
the “assumption of the risk” warranted dismissal. The trial court
denied the motion to dismiss; as to immunity, the court concluded
the claims referred not to policy decision making by the various
agents, but to “ministerial conduct.”
The defendants moved for reconsideration, adding an affirmative defense seeking “volunteers’ immunity” (for the
referees and coaches). After the
motion for reconsideration was
denied, an interlocutory appeal
went to the New Hampshire
Supreme Court. The court affirmed in part, reversed in part,
and remanded.
As to the affirmative defense of “discretionary function immunity,” the court
held that the defendants’ decisions regarding training and
supervision of coaches and
referees should be entitled to
immunity, because of “the
high degree of discretion and
judgment involved in weighing alternatives and making
choices with respect to public
policy and planning.” (143
NH at 550). The Supreme
Court affirmed the trial court,
however, in its refusal to grant
discretionary function immunity for decisions made by referees and
coaches in the course of the game. The court noted that while these
decisions “perhaps involved some discretion in judgment, they were
not decisions that concerned municipal planning and public policy.” (143 NH at 552.)
Finally, the court addressed plaintiffs’ “respondeat superior”
claim, and plaintiff’s effort to attach vicarious liability on the defendant town. The Court agreed that if referees and coaches were
immune as volunteers under RSA 508:17, I, such immunity must
also be imputed to the school district and town. The appellate court
Autumn 2011
remanded on this issue for more factual development on the issue,
however, of whether these agents qualified as volunteers.
d.Defending on the merits in a civil lawsuit
Where a case goes into suit (and a “slam dunk” immunity
defense is not available for quick resolution on behalf of a defendant), it is expected that suits would proceed like ordinary negligence cases, and particularly like medical malpractice cases. Under
New Hampshire law, a medical malpractice plaintiff must causally
connect the complained-of injury to the defendant care provider’s
alleged negligence, and this must be supported by competent expert
testimony. According to NH RSA 507:7-E:2 (“Burden of Proof”),
I. In any action for medical injury, the plaintiff shall have the
burden of proving by affirmative evidence which must include
expert testimony of a competent witness or witnesses … [and]
… (c) That as a proximate result [of a breach of the standard
of care], the injured person
suffered injuries which
would not otherwise have
occurred.
This statutory standard reflects the plaintiff’s
burden at common law to
produce sufficient evidence
that the defendant’s negligence proximately caused the
patient’s injury. PillsburyFlood v. Portsmouth Hosp.,
128 N.H. 299, 304 (1986); see
also Bronson v. The Hitchcock Clinic, 140 N.H. 798,
801 (1996)(a plaintiff must
introduce, by expert testimony, “evidence sufficient to
warrant a reasonable juror’s
conclusion that the causal
link between the negligence
and the injury probably existed.”) The expert testimony
must constitute “evidence
sufficient to warrant a reasonable juror’s conclusion that the causal
link between the negligence and the injury probably existed.” Bronson v. The Hitchcock Clinic, 140 N.H. 798, 801 (1996).
Consequently, it is expected that both plaintiff and defendant
would need to develop supportive expert testimony regarding the
standards of care in developing a protocol, following it, testing, treatment recommendations, accommodations at school, and decisionmaking regarding allowing a return to play. Likewise, some of the
alternative theories plaintiffs can consider should be assessed and
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31 
addressed as applicable.
e. Medical Malpractice Screening Panels
By statutory definition,31 an “action for medical injury” means
“any action against a medical care provider, whether based in tort,
contract or otherwise, to recover damages on account of medical
injury.” Further, a “medical care provider’’ is defined in the statute
as “a physician, physician’s assistant, registered or licensed practical
nurse, hospital, clinic or other health care agency licensed by the
state or otherwise lawfully providing medical care or services, or an
officer, employee or agent thereof acting in the course and scope
of employment.” According to the statutory definition, “Medical
injury’’ or “injury’’ means “any adverse, untoward or undesired
consequences arising out of or sustained in the course of professional services rendered by a medical care provider, whether resulting from negligence, error, or omission in the performance of such
services; from rendition of such services without informed consent
or in breach of warranty or in violation of contract; from failure to
diagnose; from premature abandonment of a patient or of a course
of treatment; from failure properly to maintain equipment or appliances necessary to the rendition of such services; or otherwise arising
out of or sustained in the course of such services.” Obviously these definitions of care provider and injury could
easily be applied to a school sports injury resulting in a concussion
scenario, including follow up assessment and treatment. In the event
of an adverse outcome and lawsuit, therefore, New Hampshire’s
Medical Malpractice Screening Panel process would be implicated.
This process is essentially an overlay on the civil litigation portion
of a lawsuit, and it is outlined in detail at RSA 519-B.
The point is that such claims can result in complex litigation
(including a screening panel and a civil lawsuit), which can stretch
out for a year or two. Such litigation can be costly, distracting, and
stressful, even if the defendant organization is vindicated at trial.
Therefore, avoidance of perceived liability is undoubtedly the better
course!
III. Recommendations
There are no bright lines (yet), because the standards of care for
prevention, recognition, and treatment are not settled. Even as they
do settle out, these standards will be applied to the complex, unique
factual circumstances of each case. When standards are unclear,
outcomes of court cases are unpredictable; as more cases, trials, and
appellate decisions apply the developing scientific understanding
and developing prevention and treatment standards to facts, they
will help establish expectations, so that actors can organize around
these expectations. Once a bright line develops, actors will be able
to make sure they are on the correct side of it. Until then, there is a
potential litigation point where one side will argue the standard is
thus and so and the other will argue that is not yet the standard or
no longer the standard.
But clear trends are emerging, which school systems and local
youth sports programs should consider:

32 
a.Guidelines and Protocols
There have been concussion guidelines recommended by the
National Federation of High Schools Association (NFHSA) as well
as the New Hampshire Interscholastic Athletic Association (NHIAA)
but these guidelines are not mandatory. Recently, the NHIAA did
require that all coaches in the state take the online concussion
training course from the NFHSA. The significance of guidelines is
a perennial issue in litigation: plaintiffs will argue they represent a
“published” standard of care and defendants will argue that there
are guidelines which are useful as a guide but not authoritative. But
no entity wants to litigate these issues: the whole point is to avoid
litigating these issues. Thus, having a set of guidelines or protocols
that match other conservative and widely adopted guidelines or
protocols, and adhering to them, is prudent.
School systems in particular have wider exposure because they
have so many different sports, spanning the full school year, with a
wide range of athletes. School should assess their current policies,
guidelines and capabilities for concussion assessment and management:
• Do they have appropriate staff (athletic trainers, team physicians, school nurses, concussion specialists) to evaluate and
manage these injuries?
• Have they informed student athletes and parents about concussion symptoms, treatment, and academic issues?
• Are they set up for computerized neurocognitive testing?
• Do the coaches have the correct training about concussions?
Have they taken the online NFHSA course?
• Are athletes being taught skills for minimizing concussion risk,
such as proper tackling techniques in football?
• Have there been changes to how sports practices are conducted
to decrease the frequency of head hits during a season?
• Does the school have a proper return-to-play progression following a concussion?
• Does the school have appropriate equipment to adequately
protect athletes against concussions?
b.Equipment
There has been a lot of focus in the general news media and
medical literature concerning safe and proper equipment – regarding improved equipment, new information, and new controversies.
A recent study from Virginia Tech University published in May 2011
rated football helmets for concussion risk on a 1 to 5-star system. If
both 4- and 5-star helmets are deemed adequate, however, a school
system elects to choose 4-star helmets because they are substantially
cheaper does run some risk of defending a claim that is safer, 5-star
helmets, or the reasonable choice. One option in this instance is to
explain the process to parents, obtain a written acknowledgement
that they understand the differences in the helmets and what the
school is providing, and then offer parents the option of upgrading
Autumn 2011
through a school administered-purchase program. This adds an
administrative burden and potentially its own issues of unfairness.
Likewise, a school system might consider different helmets for different positions (much like the way facemasks are different for different
positions.) Once the school provides equipment, it then has potential
liability for refurbishing used equipment (a common practice).
Again, the school system should ensure they follow manufacturer’s
guidelines, and should probably explain the risk and get written
acknowledgement. Some authorities have recommended helmets for
female lacrosse players, and there has been a corresponding concern
that allowing girls to wear helmets might lead to more aggressive
play, even though these same female student athletes are at higher
risk than male lacrosse players for suffering a head injury.
c.Emergency plans
Another area of concussion and safety issues for schools relates
to having an “emergency plan” in case of a catastrophic injury in
conjunction with a concussion/head
injury, such as an intracranial hemorrhage or spinal cord injury. This was
the focus of the lawsuit of Benson vs.
St. Stephen’s Episcopal School, which
led to a $1 million settlement32 by the
defendant in an alleged wrongful death
case of a high school quarterback who
died in 2002 from a cerebral brain
hemorrhage. Will Benson was the
17-year old quarterback of his high
school football team. Retrospectively it
was hard for observers (including his
parents in the stands and his coach)
to determine when he was injured
during the game, but sometime during the second quarter he came to the
sidelines saying he “felt weird” and
that his vision was blurry. He was taken
to the locker room and elevated by the
team physician (an orthopedic surgeon) while he began suffering
seizures. An ambulance was called but there was an apparent delay
in getting the ambulance to Will; subsequently the care providers
decided a helicopter transport would be better, but they allege this
led to an hour-and-half delay. When he ultimately arrived at the
hospital and was diagnosed with a large blood clot, a neurosurgeon
quickly removed it, but his brain swelled, he went into a coma, and
two days he was dead.
The case has been cited by some as a watershed in appreciation
for the need for a full emergency plan. That particular school decided it was unable to maintain an ambulance at every home game,
but did thereafter insure that two EMTs were on the field for every
home game. Will’s father, Dick Benson spent five years crusading
for legislation, ultimately signed into law in Texas in June of 2007
Autumn 2011
(“Will’s Bill”), requiring every Texas high school coach and official
involved in every sport to be trained in basic safety and emergency
procedures.
It represents but a start: ironically the law would not have
applied to Will’s old high school, which was a parochial school.
Further, requirements for ambulance or on-field special medical
care remained constrained by tight fiscal budgets. But while resource
requirements are not generally mandated, a school could face liability if it didn’t have a reasonable plan in place for addressing
catastrophic injuries.
d.Academic accommodation.
Another issue schools should consider is the academic effects
of a concussion. Students often can’t get through a full school day,
complete homework assignments on time, or take tests in the same
environment as non-concussed students. It is all too common for
concussed student athletes to have a decrease in grades, even if they
are normally above-average academically. Co-morbid diagnoses
such as ADD, ADHD, and learning
disabilities can prolong concussion
recovery, as can depression, anxiety
and migraine headaches that are
pre-existing. Guidance counselors,
school administration and teachers
should all be brought into the loop
to be aware of which students may
be having academic problems due to
concussions.33 The CDC has created
information for school systems, 34
parents and students that can help
all involved address these academic
concerns appropriately.
CONCLUSION
A sports-related concussion
40 years ago was usually an isolated
event, poorly understood, analyzed
and addressed in a vacuum; today,
a similar concussion event might be rapidly and widely broadcast
and subject to immediate second-guessing— but also (hopefully!)
to better informed treatment decisions. The biggest “take away” for
youth sports programs is awareness: programs should think through
the relevant issues, develop a program, complete with protocols for
pre-season training and testing, sideline procedures, and return-toplay protections. While many primary care doctors believe they can
manage these cases, patients’ parents, and school officials should
consider evaluation by a concussion specialist, especially if effects of
the concussion persist beyond two weeks. Keeping parents informed
and involved can help ensure symptoms are identified, and appropriate options for treatment and temporary accommodation considered.

33 
Endnotes
1.
“The Perfect Storm.” Sebastian Junger WW Norton & Company (1997).
2. See, e.g., ”Players Accuse NFL of Negligence.” Associated Press. ESPN.com 19
Aug 2011;
http://espn.go.com/nfl/story/_/id/6874906/jim-mcmahon-other-players-sue-nfl-concussions
3. For example, the new NFL kickoff rule moved the initial placement of the ball upfield
in a move to reduce open field blows; see, e.g., Maske, Mark. “NFL changes kickoff, instant
replay rules.” The Washington Post. 22 Mar. 2011. http://www.washingtonpost.com/sports/
redskins/nfl-changes-kickoff-instant-replay-rules/2011/03/22/ABlL30DB_story.html
19. See generally http://www.nj.com/news/index.ssf/2009/10/montclair_high_school_football.html; at present no disposition of the case has been reported, either as a verdict or
settlement.
20. (Unpublished opinion) Gill v. Tamalpais Union High School District and Presidio
Sport & Medicine, Marin County Superior Court, No. CV-02-1064, A112705, A112830,
A113358, California Court of Appeal, 1st District, 2nd Div., (Jan. 18, 2008).
21. This potential claim will likely might find increased traction as helmet technology and
testing to establish effectiveness become more common and prominent.
22. 242 F 3rd, 567 (5th Cir. 2001)
5. See “Concussion Legislation by State.” NFL Health & Safety. N.p., 13 SEP 2911.
Web. 19 Sep 2011. http://nflhealthandsafety.com/zackery-lystedt-law/states/.
23. See also, Acuna et al. v. Riddell Sports Inc. et al., No. LC090924, complaint filed
(Cal. Super Ct., L.A. County Aug. 24, 2010) (Plaintiff brought products claim against helmet
manufacturer and also alleged school district negligently failed to implement a “prompt
hospital transport” plan, creating a false sense of security by having emergency responders at sporting events who were unable or unauthorized to provide medical assistance
or transportation.” As of this time, the case is either still pending or there has been a
confidential settlement.)
6. Giza, Chrisopher. “The Neurometabolic Cascade of Concussion.” Journal of Athletic
Training. 36.3 (2001): 228-235. Web. 19 Sep. 2011. http://www.ncbi.nlm.nih.gov/pmc/
articles/PMC155411/pdf/attr_36_03_0228.pdf.
24. See generally http://www.madisonrecord.com/news/220374-esl-high-school-footballplayer-sues-district-over-stroke-coma (no disposition of the case, either by settlement or
verdict, is available.)
7.
CDC, . “Nonfatal Traumatic Brain Injuries from Sports and Recreation Activities
2001-2005.” MMWR Weekly. 56.29 (2007): 733-737. Web. 19 Sep. 2011. http://www.cdc.
gov/mmwr/preview/mmwrhtml/mm5629a2.htm; see also “Traumatic Brain Injury.” Center
for Disease Control at http://www.cdc.gov/concussion/signs_symptoms.html.
26. See “Concussion Legislation by State.” NFL Health & Safety. N.p., 13 SEP 2911.
Web. 19 Sep 2011. http://nflhealthandsafety.com/zackery-lystedt-law/states/
4. Brasfield, Kathleen. “Legislative Requirement-Concussion Management Plan-Effective
August 16th 2010.” National Collegiate Athletic Association. NCAA, 13 AUG 2010. Web.
19 Sep 2011; http://fs.ncaa.org/Docs/DII_MC_PC/Miscellaneous/Concussion%20Management%20Memorandum.pdf.
8. See Zurich 3rd Int’l conf. on Concussion Consensus Statement, released May 2009:
http://sportconcussions.com/html/Zurich%20Statement.pdf.
9.
See http://impacttest.com/about/background.
10. See http://www.sportsconcussion.co.za/Pharos/Computerised_Testing.php.
11. Used by the US Army: see http://www.armymedicine.army.mil/
prr/20080924ANAMBrochureFINAL.pdf; but see http://www.usatoday.com/news/military/201006-14-braintest_N.htm, reporting criticisms of the test for high false positive rates.
12. See http://www.cces.ca/files/pdfs/SCAT2[1].pdf.
14. See http://www.sportsconcussion.com/pdf/management/BESSProtocolNATA09.pdf.
15. See generally, Zurich 3rd Int’l conf. on Concussion Consensus Statement, released
May 2009: http://sportconcussions.com/html/Zurich%20Statement.pdf.
16. See “Return to Play Guidelines for Concussed Athletes Key Part of Discussion,” at http://www.prweb.com/releases/sports-concussion/athletic-trainers/prweb4352594.htm.
17. Palsgraf v. Rhode Island Railroad Co., 248 NY 339, 344 (1928).
27. New Hampshire State Senate. SB 95. 2011. Web.http://www.gencourt.state.nh.us/
senate/.
28. See, e.g., NH RSA 99-D:1 (official immunity for state officials, employees, agency
employees, etc., when acting within the scope of official duty, and “not in a wanton or reckless manner”); and, NH RSA 31:104 (2000)(outlining how certain municipal officials, such
as school board members or school superintendents cannot be held liable for certain acts
or decisions made “in good faith and within the scope of [their] authority.”) Caps are set
at NH RSA 507-B:4 (2008), generally limiting liability of a governmental unit for personal
injury to $275,000, and preventing punitive damages.)
29. Everitt v. General Electric,156 NH 202 (2007).
13. See http://www.cdc.gov/concussion/headsup/pdf/ACE-a.pdf.
18. Beavers v. Callaway, 61 NYS 2d 804 (1946).
25. Wash. Rev. Code, ch. 27, § 43.70.440 ff. (“Head injury prevention act”).
30. Hacking v. Town of Belmont, 143 NH 546 (1999)
31. See N.H. RSA 507:7- E.
32. For background, see http://www.nssousa.org/pdfs/Football_Deaths_Article_PDF.
pdf.
33. See, e.g., “Concussion in Sports: Postconcussion Activity Levels, Symptoms, and
Neurocognitive Performance,” Majerske et al., Journal of Athletic Training, 2008;43(3):265274, at 273.
34. See http://www.cdc.gov/concussion/headsup/high_school.html.
About the Authors
Stuart J. Glassman, MD is a Physiatrist who is Board Certified in Physical Medicine and
Rehabilitation (PM&R). He is also the Medical Director for the Occupational Health Services program at Concord Hospital. Dr. Glassman is also the president of Granite Physiatry, PLLC, a medical group based in Concord. He is an Adjunct Assistant Professor at
Dartmouth Medical School’s Department of Community and Family Medicine, and a
Clinical Instructor for the Department of Physical Medicine and Rehabilitation at Tufts
University School of Medicine, and a member of the New Hampshire Advisory Council on
Sport-Related Concussions.
Bradley J. Holt is a partner at the Manchester law firm of Nelson, Kinder + Mosseau. A
member of the firm’s medical malpractice defense group since 1995, he defends claims
brought against doctors, hospitals, nurses, psychiatrists, and dentists, and represents health
care professionals before the Board of Medicine and other licensing boards. He also plays
in a men’s hockey league, coaches youth soccer, basketball, and lacrosse, and watches his
three boys play, so his interest in sports concussions is more than just professional.

34 
Autumn 2011
Recent Lawsuit Examples
1. Michael Pinson v. State of Tenn: (1995 WL 739820 Tenn.
Ct.App.): football player for Univ. of Tenn. suffered head injury during
practice, which was undertreated due to athletic trainer’s alleged negligence, resulting in delayed diagnosis in chronic subdural hematoma
leading to severe and permanent neurological damage; $300k judgment against UT sustained on appeal; $1.5M damages total.
2. JR Arnold v. Riddell, Inc. 882 F.Supp.979 (D.Kan.1995):product
liability action against helmet manufacturer filed by junior HS football
player after catastrophic head/spine injury; theories included inadequate
warning, defect, negligent testing, and negligent inspection; $12M
verdict upheld with some remittitur.
3. Hoge v. Dr. Munsell (2000): early NFL concussion lawsuit by Bears
running back MerrilHoge against the team physician; after a $1.55M
jury verdict the case settled.
4. Rodriguez v. Ridell, Inc. 242 F.3d 567(5th Cir. 2001): high school
football player’s lawsuit against helmet manufacturer claiming strict
liability for unreasonably safe design of helmet; Texas jury’s$11M
verdict reversed on appeal and remanded for new trial.
5. Preston Plevretes v. La Salle Univ. (Philadelphia, PA 2005):
sophomore football playerwasknocked unconscious on the field but
awoke and was combative for 3-5 minutes before lapsing into a coma.
It was concluded he had Second Impact Syndrome; plaintiff’s claim
hinged on establishing an earlier concussion made him vulnerable;
he has recovered very little speech and communicates mostly through
a keyboard; he needs assistance to walk and suffer short term memory
loss; $7.5M settlement with Univ.; other defendants were
dropped.
6. Estate of Webster v. Pete Rozelle, NFL Disability Plan:
209 Fed. Appx. 305 (4th Cir. 2006); Hall of Fame (Steelers’) center’s suit
for increased benefits to address his permanent mental disability due to
head injuries sustained during his years in the NFL; disability award
increase affirmed.
7. Gilpin v. Coach Stinson (KY, 2008): Heatstroke case, rather than
concussion, but due to the death of the player the coach faced criminal
charges for reckless homicide and wonton endangerment; coach acquitted at criminal trial and companion civil suit was settled; $1.75M
settlement.
8. Jennifer Gill v. Tamalpais Union High School Dist.:
(CA, 2008); Morin County case on appeal to 1st app. Dist. Div. 2 female
high school basketball player ran head first into unpadded basketball
stanchion during a layup drill at practice; plaintiff’s claim was based on
premises liability, because the school maintained an unsafe basketball
court; $477k jury award upheld on appeal.
9. Ryan Dougherty v. Montclair HS, Dr. Nitti (NJ, 2008); JV
football player died after concussion was not cleared properly; upon
premature return to play he sustained Second Impact Syndrome; case
pending unless confidential settlement has not been reported.
10. Zachery Lystedt vs. Tahoma School district; (2009, WA)
Junior HS football player injured in first half, sat out 15 minutes, played in
Autumn 2011
second half and collapsed right after the game, suffering. SIS; $14.6M
settlement and legislative response.
11. Hunt v. Coach Sunkett, et al. (IL, 2009); student sued football
coach and district claiming sustained permanent brain injuries during
game after his complaints of headache and signs of a concussion were
ignored; suit alleges a “win at all cost mentality” by the coach recklessly endangered the players and created an atmosphere were injuries
were underreported; parents were not informed when the children were
injured; suit also alleges a defective football helmet was
supplied; case still pending unless confidential settlement
has been reached.
12. Adrienne Gault vs. Sequim School District: Plaintiff alleges
school district failed to follow RTP protocols and used an unqualified
chiropractor to clear Adriene to return to play. (WA); outcome of suit
still pending unless settled confidentially.
13. Zacharey Alt vs. Highlands School District: (PA)—Federal lawsuit; suing head coach, school district, principle and assistant
principle and athletic trainer for “deliberate disregard for his welfare”
in allowing him to be injured repeatedly; alleges the district “manufactured his grades” so he would pass and graduate without educating him;
outcome of suit still pending unless settled confidentially.
14. Zach Frith vs. Lafayette County School District: (2009 MO/
KS; HS football concussion; coaches allowedFrith to practice and play;
he developed post-concussion syndrome; $3M settlement, 2009.
15. Edward Acuna v. Riddell, Inc.; (Aug. 2010) Plaintiff brought
products liability claim alleging known problems with the functioning of his helmet which were not fixed by a known low cost alternative
design; plaintiff alleges injuries left him partially paralyzed and reducing
future earning capacity; plaintiff seeks punitive damages. Additionally,
plaintiff claims that the school district negligently failed to implement a
plan to promptly transport injured athletes to the hospital “to deceit the
public with a false sense of security by having him emergency responders
at sporting events who were unable or unauthorized to provide medical
assistance or transportation”; this case pending unless there
has been a confidential settlement.
16. Easterlinget, Al vs. National Football League: (NFL
veteran’s Class Action Lawsuit filed in Pennsylvania August 2011, alleges NFL ignored mounting medical evidence of concussion effects on
brain function; helmet manufacturer Riddell named as co-defendant;
pending)
17. Clay Rush v. Dr. Mangalik; (Arena football league kicker sued team
physician for undertreating a series of hits to the head Rush sustained
which were treated as mere headaches; pending in Colo.)
18. Vernon Maxwell vs. National Football League/Riddell:
(CA, July 2011; allegations of negligence and fraud pending)
19. Adam Melka v. Orthopedic Associates, (WI Cir. Court,
Waukesha County, 2006); high school linebacker cleared to play by a
trainer after an initial concussion was reinjured two weeks later; claim
is that he sho�uld not have been cleared; defendant’s verdict after
3 ½ week trial.

35 
TIMELINE OF A
HIGH-CONFLICT DIVORCE
Editor’s note: Thomas Ball committed suicide by self-immolation
on the sidewalk in front of a Keene courthouse on June 16, 2011.
In a lengthy letter delivered to the Keene Sentinel before his death,
Ball explained his views of the court system and his intention to take
his own life in a way that would call attention to his complaints.
This timeline was compiled by Kristen Senz, a freelance writer and
editor who regularly writes for the Bar News.
What follows is a timeline of the major legal events that led up to
Thomas Ball’s death, drawn entirely from the filings in the Cheshire
County Superior Court Marital Division. May 5, 1990: Thomas and Karen Ball get married.
Sept. 20, 2000: The NH Division of Children, Youth and Families filed
an unfounded [unsubstantiated] report of abuse against Thomas Ball
based on a bruise a school nurse found on his daughter’s neck. It was
determined that Ball caused the bruise while restraining his daughter,
who had been diagnosed with mental health issues at Monadnock
Family Services, as she attempted to stomp on her 3-year-old sister.
April 9, 2001: Thomas Ball’s two daughters were “rowdy” at bedtime,
and as he attempted to put her to bed, his then 4-year-old daughter
began licking his hand, according to his own statement. Ball told her
to stop and to close her mouth. When she did not comply, he struck
her three times on the face with an open hand, causing a bleeding
cut on her lip. After consulting with a therapist at Monadnock Family
Services (MFS), Ball’s wife asked him to leave the house and later
called Jaffrey police to report the assault.
April 10, 2001: Jaffrey police arrest Tom Ball at his workplace for simple
assault stemming from the April 9 incident and mistakenly listed RSA
173-B (domestic violence statute) on the complaint. Department policy
states that in a domestic violence situation, an arrest is “required
whenever probable cause exists,” according to court documents. The
state’s domestic violence statute specifically excludes “minor custodial

36 
children residing with the defendant.” Attorney William Philips files a
domestic violence petition against Thomas Ball related to the April 9
incident on behalf of Karen Ball in Jaffrey-Peterborough District Court.
April 12, 2001: Attorney Philips files for divorce on Karen Ball’s behalf
in the marital division at Cheshire County Superior Court, where Su‑
perior Court Judge John Arnold issues a temporary restraining order
barring Thomas Ball from having contact with his wife and children
and awarding Karen sole custody of the three children. A district court
judge denies the criminal domestic violence petition, ruling that it
“fails to allege abuse against the plaintiff on which relief under RSA
173-B can be granted.”
July 23-24, 2001: A two-day contested divorce hearing is held at
Cheshire County Superior Court.
Aug. 16, 2001: Cheshire County Superior Court Judge John Arnold,
the first judge in the divorce case, issues a temporary order, which
lays out the steps Ball must take to resume unsupervised visitation
with his daughters. Agreed to by Ball’s then-attorney David Tower and
his wife’s attorney, the order requires Ball to meet with the girls with
their therapists at MFS before visitation can resume. Ball is allowed
unsupervised visits with his son, the couple’s youngest child.
October 2001: In court documents, Ball claims that he attended a
series of sessions with his daughters and their therapists at MFS dur‑
ing October 2001.
Dec. 17, 2001: DCYF files an unfounded report of abuse relative to the
April 9 incident.
Dec. 20, 2001: After appealing a district court conviction to superior
court, Ball pleads not guilty to the misdemeanor simple assault charge.
January 2002: Ball petitions the court to appoint a Guardian Ad Litem
to represent his daughters in the divorce case.
Autumn 2011
May 21, 2002: Judge John Arnold finds insufficient evidence to convict
Ball of misdemeanor assault and orders the complaint placed on file
without a finding for six months, pending good behavior, after which
it would be dismissed.
Sept. 5, 2003: Ball files a petition to amend the court’s visitation orders
in which he writes that his daughter must be baptized in the Roman
Catholic Church, and his wife is not of the faith. He requests court
permission to have visitation to have her baptized.
July 11, 2002: At Ball’s request, Judge Arnold reconsiders his final order
and finds Ball not guilty of assault.
November 22, 2003: Ball is notified by his New Hampshire National
Guard unit that he is due to be deployed for service in Iraq in January
2004.
Sept. 24, 2002: Attorney David Tower, who previously withdrew as Ball’s
attorney in the criminal case, withdraws as his counsel in the divorce
case. Ball is pro se for the rest of the proceedings.
Nov. 15, 2002: Ball claims in court documents that he was laid off
from his full-time job on this date in 2002.
Dec. 1, 2002: A therapist for one of Ball’s daughters writes to the court
to express difficulty in dealing with Ball after a meeting with him in
October 2002. “Several statements by Mr. Ball concerned me enough
to delay, and then to reconsider my willingness to assist in a visitation
plan.” Regarding Ball’s actions on April 9, 2001, the therapist writes
that he “does not express regret at her injury and does not express
any willingness to address the tensions that may have led to his be‑
havior… He believes that his behavior was an appropriate response
to her misbehavior… I can find no way to support visits in my office
under the circumstances.”
Feb. 26, 2003: Cheshire County Judge David Sullivan, who takes over
the divorce case from Judge Arnold, issues 25-page final divorce decree,
which continues with the stipulation that Ball can resume unsuper‑
vised visitation with his daughters if he agrees to first meet with their
therapists at MFS. The judge rules that it is in the best interests of all
parties, including the children, for unsupervised visitation to resume.
Feb. 28, 2003: Ball files motion to reconsider the terms in the divorce
decree, arguing that he should have unsupervised visitation with his
daughters, without meeting with their therapists first. Ball believes only
he, his wife and/or the court should dictate the terms under which he
can see his daughters, not MFS nor any other person or agency.
In his motion, Ball also asks that the court order his wife to get a life
insurance policy and list him as the beneficiary. “Should premature
death strike either of the two parties,” Ball writes, “the lost income
will be needed for the parties’ minor children’s care.”
March 17, 2003: Judge Sullivan denies Ball’s motion to reconsider.
March 2003: Ball appeals the denial of his motion to the New Hamp‑
shire Supreme Court.
June 9, 2003: The Supreme Court summarily affirms the lower court’s
orders, giving Karen Ball full custody of the Balls’ children.
Autumn 2011
December 29, 2003: Ball is fired from his job at a car dealership in
Massachusetts.
January 2004: Ball learns from his NH National Guard unit a few
days before his scheduled deployment that because of “last-minute
changes,” he will not be deployed.
Jan. 23, 2004: At a hearing in the divorce case, the judge agrees to
consider amending the visitation arrangements if Ball pays for a new
Guardian ad Litem. Ball’s Petition requesting visitation for baptism
is denied.
Feb. 26, 2004: Ball hires a new Guardian ad Litem but then writes
a letter telling her that that the services of a Guardian ad Litem are
no longer needed in his case. Judge Sullivan then denies all of Ball’s
motions, ruling that “the only reason the respondent has not seen his
daughters is that he has steadfastly refused to comply with the orders
of this court.”
Feb. 29, 2004: Ball files a motion to amend child support arrangements
due to the loss of his job.
March 2004: Ball files a civil lawsuit against the Town of Jaffrey, al‑
leging that in arresting him, a Jaffrey police officer disregarded the
elements of the alleged offense of simple assault to obey departmental
domestic violence protocol. The portion of the case that dealt with
Fourth Amendment rights was reviewed at the federal U.S. District
Court in Concord, but in October 2004, a judge there ruled the officer’s
actions did not violate Ball’s rights and remanded the case back to the
state courts. After a superior court judge found in the town’s favor, the
supreme court affirmed the lower court’s ruling on appeal in 2007,
according to superior court records.
July 5, 2004: Karen Ball’s attorney files a motion seeking that the court
find Thomas Ball in contempt for falling nine weeks behind on his
child support payments, for a total of $2,430, and requesting that Ball
pay his ex-wife’s attorneys fees.
Sept. 9, 2004: Ball’s motion to amend child support is denied. Judge
does not find Ball in contempt of court due to his unemployed status.
Dec. 13, 2004: Ball files a motion for modification of the divorce decree.

37 
Jan. 12, 2005: Judge Sullivan denies Ball’s motion for modification and
his other motions, writing in an order that “He is simply disagreeing
with the final order of this court, which he has done repeatedly, despite
the court’s repeated revisiting of the issue. He clearly holds the key to
resuming visitation with his daughters and simply refuses to use it.”
Feb. 9, 2005: Ball files another motion to reconsider the visitation
arrangements.
Feb. 23, 2005: Motion denied.
Jan. 7, 2006: Ball files a civil lawsuit against Monadnock Family Ser‑
vices in Cheshire County Superior Court. Ball argues that the court’s
ruling that he participate in joint counseling with his daughters at MFS
“was not consistent with the constitution or the common law rulings
from the high court. But that this passing the buck was consistent with
the court’s Domestic Violence Protocols and Domestic Violence Rules.”
Ball alleges MFS personnel dispensed inaccurate legal advice without
a law license, interfered with his “care, custody and visitation” with
his children and misdiagnosed his child.
April 26, 2006: Ball files a petition for modification of child support,
citing his recent loss of jobs at Applebee’s and at a third car dealership.
May 12, 2006: MFS files a summary defense statement arguing that
Ball has no custodial rights over the children and that Ball’s claims in
the civil suit are subject to a lapsed statute of limitations.
July 13, 2006: MFS attorney files a motion to dismiss the civil lawsuit.
Aug. 10, 2006: Ball files a motion for modification of visitation, citing
his pending civil lawsuit against MFS.
Aug. 18, 2006: Ball’s lawsuit against MFS is dismissed primarily because
he didn’t file the suit within the statute of limitations, according to
the judge’s final order.
Oct. 23, 2006: At Ball’s request, the judge modifies his child support
payments. The judge also restates the court’s prior ruling that if Ball
agrees to meet with the children and a counselor or hire another
Guardian ad Litem to review the case and make a recommendation
to the court, the process of reconciliation and the resumption of visita‑
tion could proceed.
Jan. 22, 2009: Ball files a petition for modification of visitation, citing
one of his daughter’s relocation to a group home.
May 18, 2009: Ball files a motion to modify child support payments,
arguing that he is unemployed again.
June 26, 2009: Petition is denied.
July 7, 2009: Ball files a motion for reconsideration of the petition.
Unlike Ball’s previous motions, the document doesn’t read like a court
record, but rather like a rant written out of frustration. It contains
many of the same points found in the lengthy statement he sent to the
Keene Sentinel just before committing suicide. In it, Ball writes about
picketing the statehouse and courthouse as a fathers’ rights activist..
He also mentions a former MFS counselor who was involved in his
daughter’s care and who had died. He says he and his son visited her
grave in Peterborough.
Dec. 17, 2009: Ball misses a court hearing because a document he
received listed an incorrect date. His motion to reconsider is denied.
Feb. 25, 2010: Ball’s motion to recalculate child support is granted.
April 7, 2011: Karen Ball’s attorney petitions the court to hold Ball
in contempt at the Cheshire County House of Corrections for falling
behind on child support payments and attorneys fees, alleging he owes
a total of $5,862 in back child support and attorneys’ fees. A hearing
is scheduled for June 24.
June 16, 2011: Ball sends his “final statement” to the Keene Sentinel
before dousing himself in gasoline and committing suicide by selfimmolation outside Cheshire County Superior Court in downtown
Keene.

38 
Autumn 2011
NHBA Online Vendor Directory
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Autumn 2011
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
39 
PATENT TROLLS
WHO, WHAT, WHERE & HOW
TO DEFEND AGAINST THEM
By Christopher T. Vrountas, Richard S. Loftus,
and Cori Phillips Palmer
“Trip trap trip trap,” went the bridge
Who’s that tripping over my bridge!” roared the Troll
The rising tide of patent litigation has threatened to swamp busi‑
nesses of all sorts, including those not traditionally considered to be
within the “high technology” sector. Restaurants, hotels, publishers and
others have recently faced unexpected demands from “patent trolls” to
pay substantial royalties for using what has become basic technology
(such as website search engines, searchable data bases, or wi-fi internet
connections) or face the daunting prospect of defending a patent litiga‑
tion suit potentially a continent away from the company’s home office.
Trolls and the litigation they spawn have become the subject of bipartisan
concern in Congress, and have led to the recent passage of the America
Invents Act which was developed in part to mitigate the negative economic
effects patent troll litigation can have on the economy and on innovation
generally. This article will review the “patent troll” phenomenon, the
developments in the U.S. patent laws that contributed to its occurrence,
and the recent reform enacted to address it. Finally, it shall briefly discuss
how a company should respond to a demand from a purported patentee
seeking payment of a license fee.
WHAT IS A PATENT TROLL?
What is a patent troll? The very term conjures a Grimm’s fairy tale
image of a hunched and hungry monster who lays in wait under a bridge
to catch unsuspecting and innocent passers-by. Indeed, the Grimm image
is often not far from the fact. Typically, a patent troll is a company that
does not create products, but purchases patents from bankrupt entities
or other companies that hold patents but no longer actively use them.
The patent troll (euphemistically referred to as “non-practicing enti‑
ties”) may never intend to put the inventions claimed in its patents into
practice, or to make or manufacture anything at all. Rather, the troll’s

40 
business model typically involves threatening litigation against potential
infringers and collecting any royalties they can extract through such
threats.
Patent trolls operate by hoarding as many patents as possible with
the goal of obtaining broad patents in an essential technology. With such
patents, the patent troll searches for companies that could potentially be
infringing. After assembling its patent portfolio and identifying its targets,
the troll serves its demand letters to hosts of businesses, alleging that they
may be infringing its patents and that they can avoid litigation only by
paying a “reasonable royalty” or “licensing fee” that will be available
for “a limited time.” Often, these demand letters are short on specifics
yet they may make very broad claims.
On occasion, a patent troll may file suit based on a vaguely worded
and potentially invalid patent.1 It is not necessary, however, for the
troll’s suit to have a reasonable likelihood of success for the troll to have
a reasonable expectation of success. Patent trolls with weaker patents
often target small companies that cannot afford the legal fees required
to defend a patent infringement matter in court. These companies fre‑
quently opt to pay the demanded license fee rather than defend to avoid
the expense of litigation that could dwarf the amount of the demanded
license fee. Not surprisingly, trolls will use the license fees collected from
smaller entities to fund litigation against larger alleged infringers.
The Eastern District of Texas has become a frequent venue for patent
infringement matters, especially those brought by patent trolls. The venue
has the reputation for an expeditious “rocket docket,” and has a history
of verdicts in favor of patent holders. Although the venue in the Eastern
District may not be convenient for many defendants in any given case,
patent plaintiffs often seek to maintain this venue by joining so many
defendants that no other forum could be claimed as more convenient.2
One matter fitting within this profile involves over 300 retail and
hospitality industry defendants sued by Geotag, Inc., in the Eastern Dis‑
trict of Texas.3 Defendants include Starbucks, Barnes and Noble, Best Buy,
and McDonald’s, and other companies scattered throughout the entire
United States. These defendants, like many other targets of patent trolls,
have been forced to defend themselves in the Eastern District of Texas
against Geotag’s claim that the store-locator function on the defendants’
Autumn 2011
websites allegedly infringes a search technology patent held by Geotag.
While Geotag has targeted customers for this technology, other sup‑
pliers of this technology, including Google and Microsoft, obviously have
a significant stake in the outcome of the litigation and have accordingly
filed a separate declaratory judgment action against Geotag in Delaware.
The suppliers seek, among other things, to invalidate the patent at issue
and to stay the Texas claims pending the Delaware litigation.4 Meanwhile,
the cases against most of the original defendants remain pending in the
Eastern District of Texas.
Another example of patent troll litigation against the hospitality
industry includes a string of lawsuits filed by Innovatio IP Ventures,
against multiple defendants including Panera Bread and various hotels.5
Innovatio essentially claims that businesses providing “hot spot” wire‑
less networking capability to customers infringe on a series of patents it
claims to hold.
Innovatio has also been engaged in campaign of sending demand
letters to numerous businesses seeking quick payment of licensing fees
in lieu of litigation. Similar to the pattern in the Geotag litigation, the
large providers of the service or product at issue (in this case Cisco and
Motorola) have filed a separate action against the Innovatio IP Venturesl
in another court, seeking, among other things, invalidation of the patent
at issue, while the cases against the customers of such suppliers continue.
Numerous cases brought by Innovatio are pending.
PATENT TROLL LITIGATION
The term “patent troll” first came in use in 2001, when it was coined
by Peter Detkiin, then Assistant General Counsel to Intel, to describe
TechSearch, a patent holder and plaintiff that had sued Intel for patent
infringement. Detkin referred to the plaintiff as a “patent extortionist,”
a comment that led to even further litigation. Somewhat chastened by
the objection to the term “patent extortionist,” Detkin asked his young
daughter how she would describe someone who operated like the plaintiff
had in his case. She said that it sounded like a troll under a bridge, and
thus out of the mouths of babes the term “patent troll” was born.
Since 2001 both the term, and litigation fitting the patent troll
model, have become prevalent. The rise of patent troll litigation was in
part exacerbated by the emergence of a patent law environment condu‑
cive to the patent troll model. Subsequent case law and statutory reform
have developed to stem but not stop the rising tide.
The first development contributing to the patent troll phenomenon,
no doubt unintentionally, was the establishment of the Federal Circuit’s
exclusive jurisdiction. Prior to 1982, all federal circuit courts of appeal
held subject matter jurisdiction over patent suits arising from actions
filed within their respective circuits, resulting in considerable variation
in the case law applying the federal statutory scheme concerning patents.
As a result, the value of a patent largely depended on the circuit in which
it was litigated.
In attempt to standardize the field, Congress passed the Federal
Courts Improvement Act in 1982.6 This statute granted the Federal Cir‑
cuit exclusive jurisdiction over patent law appeals from the U.S. District
Courts, the U.S. Patent and Trademark Office, the U.S. Court of Federal
Claims, and the U.S. International Trade Commission.
Autumn 2011
The Federal Circuit used its exclusive grant to promulgate several
broad uniform patent law standards that frequently favored the patent
holder. These favorable standards for plaintiffs served to encourage
patent trolls to engage in, or at least threaten, litigation against po‑
tentially infringing entities. Since 2006, however, the tide has slowly
turned against patent plaintiffs and against companies whose business
model has focused on waging patent infringement litigation battles.
The Supreme Court has issued decisions narrowing a number of the
Federal Circuit’s decisions.7 Additionally, Congress recently passed the
Leahy-Smith America Invents Act8 which substantially alters the Patent
Act in several ways. These changes have not stopped patent trolls, but
they have provided defendants with more tools to combat them. A. Federal Circuit introduces Business Method Patents and opens the Troll’s Advantage
Not every idea or mechanism is patentable. Under §101 of the Patent
Act,9a patent may only issue if the invention is “a new and useful process,
machine, manufacture, composition of matter, or any new and useful
improvement thereof.” Furthermore, §103 of the Patent Act requires a
patent application to demonstrate that the subject of the patent has utility,
has not been invented before, and is not obvious from the prior inventions
in the field. Of these requirements, the obviousness inquiry established
by §103 of the Patent Act10 is the most significant. It requires a showing
that the invention represents enough of an advance in technology by
the inventor to warrant a grant to the inventor of a monopoly over the
claimed invention, and that the invention is not just the next step that
a person of ordinary skill in the art would obviously take.
Despite the express statutory limitations, the scope of patentable
technology has expanded over time. In large part, this expansion stems
from the Federal Circuit’s 1998 decision to allow patents for business
methods under the “new and useful process” category set forth in §101
of the Patent Act. Until 1998, the issuance of patents for a way of doing
business was prohibited. In State Street Bank & Trust Co v. Signature
Fin. Group,11however, the Federal Circuit ruled that a sufficiently specific
business method could be considered a “process” patentable under the
Patent Act. Business method patents flooded the market after the State
Street decision, and the Federal Circuit upheld several Internet business
method patents including that protecting the 1-click feature used by
Amazon.com.12
Business method patents are frequently the subject of patent litiga‑
tion pursued by patent trolls as they are sometimes vague and capable
of an extremely broad application. Indeed, it has been estimated that
30 percent of the patents issued by the Patent and Trademark Office are
invalid since this change in the law. The purported inventions claimed
by method patents are frequently indispensable to the businesses that
use them, providing the patent troll with more leverage in extracting
licensing fees. Perhaps because of the practical problems business method
patents created, the Federal Circuit retrenched significantly 10 years after
it let the proverbial genie out of the bottle.
Specifically, in 2008, the Federal Circuit13adopted a more stringent
test for patentability, providing that patents must claim either a “ma‑
chine” or a “transformation” of a previous invention to be valid. Under

41 
the “machine or transformation” test an applicant must demonstrate
that the invention to be patented is either tied to a particular machine
or that “it transforms an article into a different state or thing.”14
The Supreme Court moderated the Federal Circuit’s retrenchment
to some extent two years later. In Bilski v. Kappos,15 the Supreme Court
held that the Federal Circuit’s revised test was incomplete, and con‑
cluded that the newly articulated test should be used only as a tool in
determining whether a patent claims a process that is truly new, useful
and non-obvious as required under §103 of the Patent Act. The Court
however, refused to categorically reject business method patents, leaving
the door open to their continued patentability and enforcement.
B. Attacking Patents for Obviousness
The most common method of attacking a patent is to claim that the
patent is void for obviousness. This assertion has, in the past, frequently
failed as it is a difficult defense to prove. Recent developments in the law
may alter the balance in this arena in favor of defendants involved in
patent litigation.
Until 2007, a patent defendant had to meet the Federal Circuit’s
relatively stringent “teaching, suggestion, or motivation” (“TSM”) test
to prove obviousness.16 Under the TSM test, a patent claim could only
be proven to be obvious if “some motivation or suggestion to combine
the prior art teachings” could be found in the prior art, the nature of
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the problem, or in the knowledge of a person having ordinary skill in
the art.
In 2007, the Supreme Court in KSR Intl. v. Teleflex,17rejected the
Federal Circuit standard in favor of a lower threshold of proving obvious‑
ness. Instead, the Court held that a patent could be held invalid if “a
person of ordinary skill in the art” could discover the invention through
a predictable variation to current technology. Thus, under KSR Int’l, a
patent defendant may argue that the asserted patent does not contain
any real innovation and is therefore invalid, even if specific mention of
the invention is not articulated in the prior art.
C. Injunctions and Patent Trolls
The Federal Circuit additionally eased the path for patent trolls
when it promulgated what became known as the “automatic injunction
rule.”18 Under the automatic injunction rule, any prevailing plaintiff in
a patent infringement suit would be automatically granted a permanent
injunction. This rule spurred patent troll style litigation in the early 2000s
as it provided plaintiffs an enhanced bargaining position in settlement
negotiations.
In 2006, the Supreme Court rejected the Federal Circuit’s approach
when it unanimously refused to confirm a permanent injunction granted
to a successful patent plaintiff. In Ebay Inc. v. MercExchange,19 the
plaintiff company owned a patent for an online auction marketplace
design, which included the ability to lock in offers to purchase items
over the Internet using a credit card. After unsuccessfully negotiating
with eBay and Half.com to license the patent, the company brought suit
alleging infringement. The District Court ruled that the patent had been
infringed but refused to grant an injunction that would have prohibited
Ebay and Half.com from using the marketplace design.20 The Federal
Circuit reversed the decision and granted the permanent injunction.21
The Supreme Court reversed the Federal Circuit and held that the
automatic injunction rule was an unwarranted departure from the
traditional test to determine the necessity of an injunction. The Court
determined that the “well-established principles of equity” required that
patent holders to demonstrate 1) irreparable injury; 2) inadequacy of
remedies at law; 3) that the balance of hardships favors an injunction;
and 4) that the public interest would not be disserved by an injunction.22
The Court however, refused to adopt the categorical rule suggested by
the District Court that “a willingness to license patents,” or a “lack of
commercial activity in practicing the patents” would bar a patent holder
from obtaining an injunction under the four factor test.23
Since Ebay Inc. v. MercExchange,federal courts have continued
to grant permanent injunctions in a majority of patent cases. In apply‑
ing Ebay, however, courts have examined whether the plaintiff/patent
holder is competing in the marketplace with its patented invention.
Cases where an injunction is denied under the Ebay standard frequently
involve entities that are patent trolls (aka “non-practicing entities) and
not market competitors.
For instance, in z4 Technologies v. Microsoft,24 the Eastern District
of Texas denied a permanent injunction where a patent troll company
brought suit against Microsoft for infringing patents protecting methods
for limiting the unauthorized use of computer software. The court found
Autumn 2011
that z4 Technologies had not demonstrated irreparable harm, and that
any harm could easily be remedied by monetary damages. Cases like
z4 Technologies indicate the tendency of the federal courts to examine
a request for an injunction from a patent troll more stringently than a
request from a company actually using its patents in the market. Nev‑
ertheless, stricter injunction standards have not proven enough to stop
patent troll companies completely because they often are more interested
in settlements and monetary damages than in equitable remedies.
D. America Invents Act and the
Future of Patent Trolls
On September 16, 2011, President Obama signed into law the
Leahy-Smith America Invents Act,25 which has been touted as the most
significant reform of the Patent Act since 1952. Nevertheless, many argue
that the new act will not stop patent trolls, and that in some respects
patent trolls could even strengthened by it. The most significant shift in
America’s patent system involves the Act’s change from a “first to invent”
to a “first to file system,”26 the same system used in Europe and elsewhere
outside the United States. Under the “first to file” system, the first person
to file the patent may claim ownership over the invention, regardless of
who may be the first person to invent. Supporters of the change to a “first
to file” system argue that by cutting red tape and placing the U.S. in line
with international law, the system will be less prone to litigation and the
process of acquiring patent rights will be simplified.27 Opponents of the
“first to file” system argue that it will disadvantage smaller companies
in the development stages of their business, as such entities will unlikely
have the cash flow to afford lawyers to file and prosecute their patents
immediately.28
The second significant change made by the America Invents Act
concerns the creation of a system allowing third parties to challenge
the issuance of a patent after it is issued.29 The new system allows par‑
ties to introduce evidence that the purported invention claimed in an
issued patent had in fact already been invented prior to the filing of the
patent application. By allowing post-grant challenges, the new Act may
narrow the field of available patents vulnerable to patent troll litigation.
This change, however, may also serve to benefit patent trolls who can
frequently afford to instigate litigation for the purposes of disrupting and
delaying the confirmation process.
The new law also adds a section to the Patent Act that prevents a
patent holder from joining unrelated defendants in a patent infringe‑
ment claim.30 This apparently small new detail could have the greatest
impact on how patent trolls have operated up to now.
Prior to the new section’s enactment, a patent holder could join
in a single action as many unrelated defendants as it wished. Patent
trolls frequently took advantage of this by joining numerous defendants
and then utilizing the size of the action to force their preferred venue,
frequently in the notoriously patent-holder friendly Eastern District of
Texas. This new provision, by limiting the numbers of defendants joined
in an action by a patent troll, can put defendants in a better position to
argue for transfer to a more convenient and appropriate jurisdiction. By
contrast, when there are large numbers of defendants, no single venue
will likely be more convenient than another, and a court will in that case
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Autumn 2011

43 
typically choose the forum selected by the plaintiff.
Thus, under the new 35 U.S.C.§ 299, a patent holder can only join
defendants in a case if: 1) the claim may be asserted jointly and severally
against the defendants or the claim arose out of the same transaction or
occurrence; and 2) there are questions of fact common to all defendants.
The section further states that the requirements for joinder of multiple
defendants shall not be considered fulfilled “based solely on allegations
that they have each infringed the patent or patents in [the] suit.”31
By creating a higher barrier to joinder, 35 U.S.C. § 299 should
operate to prevent patent holders from filing a single action against a
large number of unrelated defendants in a self-serving venue convenient
to only to the patent/plaintiff. In some cases, however, defendants have
found strength in the large numbers collected by patent plaintiffs, allow‑
ing defendants to cooperate with each other to achieve greater efficiency
and reduce costs. The new Act seemingly anticipates this scenario and
permits defendants to waive the limitations set out in 35 U.S.C.§ 299 if
they choose to do so.
It is still unclear what effect the America Invents Act will have on
patent troll litigation. With the exception of the new disjoinder provision,
the Act does not specifically target patent trolls or make it more difficult
for them to threaten or file suit. In fact, due to the new law’s shift towards
a system that favors large companies who can afford to file first and fight
in the post-grant system, the new law may even facilitate the patent trolls’
operations.
DEFENSES AGAINST THE TROLL
When a company receives a demand letter from a patent troll, it
should make several calls immediately. First, it should know to call
counsel, inform counsel of the letter, and get counsel a copy of the letter
quickly. Then the company should call its insurance providers to notify
them of the claim. If applicable, the company should inform its relevant
vendors of the allegedly infringing product or service and seek coopera‑
tion from them. Depending on the vendor contract, indemnification from
the service provider may also be an option. With technical assistance and
input from the vendor, the company may also better examine the patent
claims and compare them to the product or service the company offers
to determine whether a viable argument against infringement exists.
Initial demand letters from patent trolls frequently constitute offers
to license the patented technology. Patent trolls know that defending a
patent claim may easily cost over $1 million in defense costs and that
potential defendants are often incapable of actually defending against
such a claim. Accordingly, licensing amounts offered typically are priced
at less than the costs of litigating the claim but far more than what the
recipient may want to pay for the value of the alleged invention. To get
out fast and cheap, the company must consider either accepting a license
offer to buy its way out or developing a non-infringing approach to the
function previously achieved by the alleged infringing method or prod‑
uct. Doing nothing typically does not solve the problem, and litigating
frequently could do more harm than good.
Before determining how to respond to a demand letter or licens‑
ing offer, counsel should review the company’s insurance policies and
vendor contracts to determine whether the company may have a third

44 
party source to help pay for legal defense. Additionally, counsel should
investigate whether there are similarly-situated businesses that may be
interested in pooling resources and forming a defense group which could
help defray expenses and legal and expert fees.
In the event the company decides to defend against a patent claim,
counsel should commence research into what prior art existed before
issuance of the patent, as such prior art could potentially invalidate the
patent at issue. Since the decision in KSR Int’l in 2007, it has become
easier to demonstrate that patented material was obvious and that the
patent should never have issued.
A company particularly vulnerable to patent infringement litigation
may seek to proactively mitigate the damage by building its own patent
portfolio or by joining a defensive patent aggregation.32 A defensive pat‑
ent aggregation is a type of patent holding company that has developed
to serve as an antithesis to patent trolls. Defensive patent aggregations
acquire a broad portfolio of patents and promise never to enforce them.
Participating companies are charged a small fee and then treated as
holders of all of the patents in the portfolio. Membership fees are not
cheap, but can be less onerous than the costs of defending a patent
infringement action.
Patent claims can be very expensive, time-consuming and fraught
with risk. When faced with a demand, a company should seek counsel to
develop a strategy that considers both the legal and economic parameters
affecting the company’s position. Then it can move forward in a rational
manner and minimize both risk and cost.
ENDNOTES
1. See generally,Patent Trolls: Fact or Fiction? Hearing Before the Subcommittee on Courts,
the Internet and Intellectual Property of the Committee on the Judiciary, 109th Cong. 2 (2006)
(describing the patent troll problem and advocating for patent reform).
2. See, e.g, Oasis Research v. Adrive, LLC et.al, No. 4:10-CV-435 (E.D.Tex. 2011)(denying
motion for severance of the defendants in the actions); see also Amici Curiae Brief for Cisco
Sys. et. al at 10-12, Oasis Research v. Adrive, LLC et al, No. 100 (Fed. Cir. 2011)(discussing
the common strategic use of mass joinder to side-step venue precedents requiring actions to
be transferred away from districts with no specific connection to the parties.)
3.
Geotag Inc. v. Starbucks Corp et. al. No. 210-cv-00572 (E.D. Tex. 2010). 4.
Microsoft Corp. v. Geotag, Inc., 1:11-cv-00175-BMS
5. See, e.g, Innovatio IP Ventures v. Residence Inn et. al., no. 3:11-vv-00644(W.D.Wis.
2011)(complaint claiming infringement of patent for a “Redundant Radio Frequency Network
Having a Roaming Terminal Communication Protocol).
6.
Federal Courts Improvement Act of 1982, 28 U.S.C. § 1295.
7.
See, e.g, Z4 Tech. Inc., v. Microsoft Corp., 434 F.Supp. 2d 437 (E.D.Tex. 2006).
8.
Leahy-Smith America Invents Act, Pub.L. 112-29 (enacted Sept. 16, 2011).
9.
35 U.S.C. § 101.
10. 35 U.S.C. § 103.
11. State Street Bank &Trust Co. v. Signature Fin. Group, Inc., 149 F. 3d 1368 (Fed. Cir.
1998). In State Street Bank & Trust Co., the Federal Circuit upheld a patent entitled “Data
Processing System for Hub and Spoke Financial Services Configuration,” which concerned
the pooling for mutual funds into a central hub. The Court held that business methods could
potentially be patentable if they otherwise satisfied the requirements of the Patent Act. 12. Amazon.com v. Barnesandnoble.com, 239 F.3d 1343 (Fed. Cir. 2001).
13. In re Bilski, 545 F.3d 943 (Fed.Cir. 2008). Case involved the validity of a patent creating
a three step method for a broker to hedge risks in commodities trading. The Federal Circuit
held that the patent was invalid because it did not satisfy the “machine or transformation” test
as required by §101 of the Patent Act.
14. Id. at 961-2.
15. Bilski v. Kappos, 130 S.Ct. 3218 (2010). The Supreme Court affirmed the Federal Circuit’s
Autumn 2011
decision that the patent was invalid. However, the Court refused to adopt the Federal Circuit’s
reasoning that the patent was invalid because it was a method and instead found that it could
not be upheld because it was an attempt to patent the general concept of hedging risk. 16. See, e.g, Al-Site Corp. v. VSL Int’l, Inc., 174 F.3d 1308, 1323-24 (C.A. Fed. 1999).
17. KSR Int’l v. Teleflex, 550 U.S. 398 (2007).In KSR Int’l, the Court examined the obviousness test under §103 of the Patent Act in the context of a patent that covered an adjustable
gas pedal system for cars with engines controlled by an electronic throttle system. The district
court held that the patent was obvious because those with ordinary skill in the art would have
been motivated to combine pre-existing technologies to create the patented invention. The
Federal Circuit reversed on the grounds that the district court failed to properly apply the teaching
suggestion and motivation test. The Supreme Court rejected the Federal Circuit’s decision and
found that the teaching, suggestion and motivation test was not to be applied as a mandatory
rule. Instead, the Court held that the patent was obvious and invalid because the existence of
the prior technology would have caused any person of ordinary skill to see the obvious benefit
of combining the two. 18. See, e.g., W.L. Gore & Assoc. Inc., v. Garlock Inc., 842 F.2d 1275 (Fed.Cir. 1988); Roche
Prod.Inc., v. Bolar Pharm. Co., 733 F.2d 858 (Fed.Cir. 1984).
19. eBay Inc. v. MercExchange L.L.C., 47 U.S. 388 (2006).
20. MercExchange, L.L.C. v. eBay Inc., 275 F. Supp. 2d 695 (E.D. Va. 2003).
21. MercExchange, L.L.C. v. eBay Inc., 401 F.3d. 1323 (Fed. Cir. 2005).
preventing the illicit copying and unauthorized use of computer software. Although the jury held
that Microsoft had willfully infringed upon the patent at issue, the Court refused to grant an injunction requiring Microsoft to take the product off the market. The Court held that the plaintiff could
not satisfy the four part standard articulated by the Supreme Court in eBay v. MercExchange. The Court found that Z4 Technologies would not suffer irreparable harm in the absence of an
injunction, and any harm caused could be compensated monetarily. Furthermore, the Court
found that due to the popularity of Windows XP, the grant of an injunction could even have a
negative effect on the public.
25. Leahy-Smith America Invents Act, Pub.L. 112-29 (enacted Sept. 16, 2011).
26. Id. at § 3.
27. See, e.g, Letter from the Committee on the Judiciary re: Bill H.R. 1249 “Patent Reform
Promotes American Innovation and Creates Jobs” (May 23, 2011) (on file with Committee on
Judiciary).
28. See, generally, David S. Abrams & R. Polk Wagner, Priority Rules: An Emprical Exploration of First to Invent versus First to File,available at http://papers.ssrn.com/sol3/papers.
cfm?abstract_id=1919730) (Aug. 30, 2011) (predicting the impact of first-to-file through an
examination of the Canadian system).
29. Pub.L. 112-29 § 6.
30. 35 U.S.C. § 299.
31. Id.
22. eBay Inc. v. MercExchange L.L.C., 47 U.S. at 391.
23. See id.at. 393.
24. Z4 Tech. Inc., v. Microsoft Corp.,434 F.Supp. 2d 437 (E.D.Tex. 2006). In Z4 Tech, the
plaintiff claimed that Microsoft’s product “Windows XP” infringed on its patents for methods of
32. See generally, Caroline Coker Coursey, Battling the Troll: Tips for Defending Patent
Infringement Claims by Non-Manufacturing Patentees, 33 Am. J. Trial Advoc.237, 249 (2009)
(Providing a comprehensive discussion of Defensive Strategies for Claims by Non-Manufacturing
Patentees).
About the Authors
Christopher T. Vrountas leads the Intellectual Property Trial Practice Group as well as the Employment
Practice Group for Nelson Kinder + Mosseau, PC. The firm has offices in Boston and Manchester. Attorney Vrountas has represented a number of national and international corporations in intellectual
property matters, including patent, copyright and trademark cases as well as cases involving trade
secrets and covenants not to compete in courts across the country.
Richard S. Loftus is an associate at Nelson Kinder + Mosseau PC where he has focused his practice on
intellectual property, employment, and commercial litigation matters. Recently, he has focused much
of his practice on defending businesses in patent cases against non-practicing entities. He has worked
on many other complex civil litigation cases in state and federal court. Before joining the firm, he
served as judicial law clerk for the Honorable Andre Gelinas of the Massachusetts Appeals Court.
Cori Phillips Palmer joined Nelson Kinder + Mosseau PC this year as an associate in the intellectual
property, employment, and commercial litigation practice groups of the firm. She focuses her practice
on civil litigation at both the state and federal levels. She recently graduated cum laude from Boston
College Law School where she served as an editor for and frequent contributor to the UCC ReporterDigest.
Autumn 2011

45 
WORKERS' COMPENSATION:
Appeal of Margeson and Expansion
of the Substantial Contribution Test
By Daniel R. Lawson1
New Hampshire’s workers’ compensation law, like all others, is
simple in principle: it gives workers a simple and efficient means of
recovering for work-related injuries, that is, injuries arising “out of
and in the course of employment.”2 But this facially simple principle
has spawned some serious complexities. Among them is the difficulty
of determining whether an injury “arises out of and in the course of
employment” when an injury involves both personal and work-related
causes or when an injury arises spontaneously in the workplace without
clear cause. If a worker smokes, has high cholesterol, a family history
of heart disease, and is overweight, then is a heart attack work-related
simply because it was triggered by work-related emotional stress?3 Is a
strangulated hernia that was waiting to happen work-related because
it occurred in the work-place?4 What about injuries caused by hazards
that are either unexplained or unrelated to either the worker or the
workplace? Is an injury caused by a freak lightning strike, a stray bul‑
let, or a poisonous animal bite compensable? Can a worker recover
compensation for a knee injury that was sustained while walking down
a workplace staircase that presented no extraordinary hazard?5
Examples such as these have presented courts with an obvious
hazard: if the scope of work-relatedness is defined too broadly, work‑
ers who are susceptible to heart failure, serious back injury, or other
internal failure could take advantage of the workers’ compensation
law by seeking compensation for inevitable injuries that happened to
arise in the workplace.6 The workers’ compensation law would thus
require employers to shoulder the burden of injuries that were only
coincidentally—rather than causally—related to the employment.
Thirty years ago, the New Hampshire Supreme Court adopted a
rule to address this hazard: the “substantial contribution test.”7 Though
the Court’s expression of this test has been somewhat misleading, a
close look at its opinions reveal that the substantial contribution test is
merely an application of the “increased-risk test” put forth in Larson’s
Workers’ Compensation Law which, like the substantial contribution
test, requires workers under certain conditions to satisfy a heightened

46 
burden of legal causation. Until recently, the increased-risk test had
been confined to a narrow class of cases. But in Appeal of Margeson,
decided in July 2011, the New Hampshire Supreme Court altered the
landscape of workers’ compensation law. The Court expanded the ap‑
plication of the increased-risk test and essentially eliminated an entire
class of injuries from compensability. This article will take a close look
at the substantial contribution test before and after Margeson and
explore the impact of that recent case.
I. STEINBERG AND THE BIRTH OF THE
SUBSTANTIAL CONTRIBUTION TEST
The New Hampshire Supreme Court resisted the trend towards
limiting the compensability for injuries suffered by workers with preex‑
isting conditions, but finally relented in a 1979 case, New Hampshire
Supply Company v. Steinberg.8 Steinberg presented the court with
a man seeking compensation for a heart attack that had occurred
away from work but was allegedly caused by the psychological stresses
of his job.9 Though the court held that such a heart attack could be
compensable, it balked at Steinberg’s claim because he had exhibited
several personal risk factors before the heart attack occurred, including
a family history of heart disease, high blood pressure, high cholesterol,
a smoking habit, and excess weight.10 The court borrowed a theory from
Arthur Larson’s highly authoritative workers’ compensation treatise
and introduced its “substantial contribution test.”11
The substantial contribution test takes a worker’s previous health
into consideration and requires claimants with preexisting conditions
to satisfy a special test of legal causation.12 According to the Court, the
test defines the “degree of exertion” that is necessary for an injury to
be work-related. 13 Whereas healthy claimants needed only prove a
but-for causal relationship between an employment condition and
their injuries, claimants with preexisting conditions must prove that
their employment was also the legal cause of their injury by demon‑
strating that the employment contributed something substantial to
the risk of injury and that it created a greater risk of injury than what
would be encountered in normal, non-employment activities.14 Thus a
Autumn 2011
worker with a preexisting condition who suffered an injury as a result
of lifting a 20-pound weight would not be entitled to compensation,
the rationale being that lifting 20-pound objects presents no greater
risk of injury than non-employment activities such as lifting bags of
golf clubs and step ladders.15 The substantial contribution test thus
serves to separate injuries that could just as easily have occurred at
home as at the workplace from those that are truly a consequence of
an employee’s work environment or obligations.
II. VARIANT: THE INCREASED-RISK TEST
To fully understand the substantial contribution test, one must first
identify it as a variation of what Larson would term an “increased-risk
test” as opposed to what he would call a “positional-risk test.”16 Both of
these tests provide a framework for determining what burden a worker
bears in proving that his or her injury arose “out of and in the course
of employment.”17 Under the positional-risk doctrine, a claimant only
needs to prove a simple but-for causal relationship between his or her
injury and an employment condition or obligation.18 Until recently
in New Hampshire, such was the case whenever a worker without a
preexisting condition sought compensation: “any work-related activity
connected with the injury as a matter of medical fact is sufficient to
show legal causation.”19
Increased-risk tests, on the other hand, impose a higher burden
on claimants. When an increased-risk test is triggered, workers must
show more than simple but-for causation; they must also show that
the employment put them at greater risk for the injury suffered.20 Put
simply, it is not enough for a worker to show that the injury occurred
as a result of his or her presence at work, the worker must show that,
with regard to the injury suffered, going to work was riskier than stay‑
ing home.21 Though the Court’s opinions can be misleading—they
tend to focus on the “degree of exertion” rather than the amount of
risk presented by a work condition—it is clear that its substantial
contribution test is merely an application of the increased-risk test to
workers with preexisting health conditions.22 Though until recently
workers generally operated under the burden of the positional-risk
test and therefore needed only show medical causation, the dynamic
changed when a worker had a preexisting condition. Like any other
increased-risk test, the substantial contribution test requires “the
employment [to] contribute something substantial to increase the
risk of injury.”23
III.
APPEAL OF MARGESON: SUBSTANTIAL CONTRIBUTION TEST MEETS A “NEUTRAL RISK” INJURY
Recently, the Court significantly altered the application of the
increased-risk test in Appeal of Margeson, decided in July 2011.24 That
case involved circumstances that had not come before the Court since
the advent of the substantial contribution test: an injury that arose
spontaneously and was not the result of workplace or personal risk
factors. The claimant, James Margeson, sought compensation for a
knee injury sustained while descending stairs at his workplace.25 The
Autumn 2011
injury occurred while the claimant was carrying out his job duties, but
there was nothing unusually hazardous or defective about the stairs.26
The Court’s decision made important changes to what appeared
to be well-settled law. Firstly, it cast doubt over whether the substantial
contribution test should be applied to injuries other than heart attacks
and other stress-related injuries.27 Though the Court noted that since
its inception the test has been applied broadly to any case involving a
preexisting medical condition, the Court hinted that the test should
have a more limited application since it was “intended to apply only
to heart attacks and other stress-related injuries.”28 At first glance, this
language might appear more significant than it really is. Though the
Court hinted that the substantial risk test might have a more limited
application in the future, the Court simultaneously expanded the ap‑
plication of the increased-risk test, as will be discussed below. Since the
substantial risk test and the increased-risk test are only slightly modi‑
fied expressions of the same rule, the confinement of the substantial
contribution test will probably have little impact.
The second, and more important change made by the court is the
expansion of the increased-risk test to what it identified as “neutral
risk” injuries. Injuries caused by neutral risks are those injuries that
are not clearly personal or employment-related in nature, as was
James Margeson’s unexplained knee injury.29 Neutral risks cannot
be attributed to risks of the workplace or to personal risks such as a
preexisting medical condition.30 The Court decided that, in order to be
compensable, a neutral risk injury must pass the increased-risk test,
that is, it must be shown that the claimant’s job duties or environ‑
ment exposed the employee to a greater risk of injury than would be
encountered in ordinary life.31 Thus Margeson’s claim was remanded
to the Compensation Appeals Board to determine whether his job
responsibilities exposed him to a greater risk of injury than he would
have encountered in non-employment life.32 Though the Court appar‑
ently makes a distinction between the increased-risk test put forth in
Margeson and the substantial contribution test the difference between
the two is essentially a matter of phrasing.
Margeson adds a layer of complexity to an already confusing area
of workers’ compensation law, but a careful reader of that opinion will
note a hidden but important outcome: the compensability of neutral
risk injuries has essentially been eliminated. This result is not obvious
from the plain language of the opinion, but is inherent in the logic.
On its face, Margeson requires claimants seeking compensation for
neutral risks to meet the increased-risk test. More fully expressed, this
means that injuries that are not attributable to employment conditions
are not compensable unless the employee can attribute the injury to
an employment condition. Obviously such a case will never arise; if
a claimant could prove that an employment condition put him at
risk, his injury would not be a “neutral-risk injury” in the first place.
Thus Margeson has apparently eliminated compensation for neutral
risk injuries; looking at that case alone, one must conclude that if a
worker has an injury that was not contributed to by employment risk
factors, then the injury is not compensable regardless of whether or
not there was a personal risk factor involved.

47 
IV.
THE IMPLICATIONS OF MARGESON: ARE NEUTRAL RISK INJURIES REALLY NONCOMPENSABLE?
The elimination of neutral risk injuries from compensability may
not seem like a radical shift. After all, why should an employer pay for
an injury that was not caused by a risk of the workplace? But even if
Margeson yields an intuitive result, it is nonetheless both surprising
because it represents a break from precedent and important because
it may have broader application than the Court implied.
Margeson marks a significant break from precedent. Prior to that
opinion, a claimant only faced the burden of the increased-risk test
when he or she had a preexisting condition that triggered the substan‑
tial contribution test.33 If the claimant had no preexisting condition,
any work-related activity connected with the injury as a matter of
medical fact is sufficient for purposes of proving legal causation.34 It
was enough for the employee to merely show that the employment put
the employee in the place where the injury occurred.35 This approach
was similar to at least a few other jurisdictions.36 Margeson could
sound the death knell for the positional risk test because claimants
must now show that their employment increased the risk of the injury
suffered.
What also makes Margeson significant is how broadly it might
be applied. Most of the opinion’s discussion only contemplates a small
class of neutral risk injuries—unexplained injuries that are neither
attributable to the employee nor to the workplace.37 But what about
explained injuries that are neither attributable to the employee nor
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to the workplace? Margeson could easily be interpreted as imposing
the increased-risk test for a number of neutral-risk injuries mentioned
in the opinion itself: injuries caused by lightning strikes, being bitten
by a poisonous insect, or being shot by a stray bullet. Even many of
those that might balk at the outcome of Margeson might balk at the
outcomes that result. If a worker is bitten by a poisonous spider while
sitting at his desk, should not it be enough to say that the employee’s
work put him in the position to suffer that injury? Should the worker
really have to prove that the workplace was, vis-à-vis spider bites, a
more dangerous place to be than a non-work environment? Prior to
Margeson, the question would have been simple: the employee merely
had to show that the employment put him in the place where the insect
bite occurred, and it did not matter whether or not the workplace was
more dangerous than other environments.
After Margeson, the answers appear to have changed. Though
the opinion’s discussion focuses on unexplained falls, it presumably
applies to the entire class of neutral risk injuries, and it will no longer
be enough to say that the employment was the factual cause of an
explained neutral risk injury. It should be noted, however, that this is
an area subject to debate, and the Court will likely have an issue to
resolve in a future case.
In light of Margeson, claimants and their representatives must
be acutely aware of how their burden of proof has changed. Since the
increased-risk test’s application to neutral risk injuries is new to New
Hampshire, claimants should look to other jurisdictions that apply the
increased-risk doctrine. A look at a case from Illinois illustrates how an
injury from a stray bullet can be compensable by using the testimony of
a police officer to show that the neighborhood in which the employee
worked was a high-crime area.38 A case involving a lightning strike
illustrates how a claimant can satisfy the increased-risk test by proving
that he was working at a high altitude and in a building which exposed
him to an increased risk of being struck by lightning.39 For an injury
suffered as a result of a workplace assault, one Oklahoma case stresses
the importance of proving that the attack by a third person was not
motivated by personal animosity but resulted from a chain reaction
precipitated by work activity.40 These and other factually-related cases
can provide guidance to claimants with novel cases.
Although even before Margeson, it was good practice for claim‑
ant’s attorneys to tie their clients’ injuries to work conditions as closely
as possible, now it is probably a requirement. Margeson casts a dark
shadow over all preceding cases that applied the positional risk test
and allowed compensation for injuries upon a mere showing that they
were medically caused by the worker’s employment. The increased risk
test, first ushered into New Hampshire via Steinberg and the substan‑
tial contribution test, have assumed greater importance in the state’s
workers’ compensation law.
ENDNOTES
1.
Daniel R. Lawson is a 2011 graduate of the UNH School of Law and the school’s
Daniel Webster Scholar Honors Program.
2.
N.H. Rev. Stat. Ann. § 281-A:2, XI (2009); see also Tothill v. Estate of Warren Center,
877 A.2d 213, 218 (N.H. 2005) (“The workers’ compensation scheme is based upon this
fundamental quid pro quo: tort immunity for the employer in exchange for no-fault workers’

48 
Autumn 2011
compensation benefits.”).
Assoc. News, Aug. 19, 2011.
3.
See N.H. Supply Co. v. Steinberg, 400 A.2d 1163, 1168 (N.H. 1979).
23.
Redimix, 969 A.2d at 477 (emphasis added).
4.
See Rivard v. J.F. McElwain Co., 58 A.2d 501, 503 (N.H. 1948).
24.
In re Margeson, No. 2010-633, slip op. at 1 (N.H. July 21, 2011).
5.
See In re Margeson, No. 2010-633, slip op. at 1 (N.H. July 21, 2011).
25.
Id.
26.
Id.
27.
Id. at 4.
28.
Id.
29.
Id. at 2.
30.
Id.
31.
Id. at 4.
32.
Id. at 5.
33.
In re Redimix Cos., 969 A.2d 474, 477 (N.H. 2009).
34.
Id.
35.
Id.
6.
Jackson v. Emile Legere, Inc., 265 A.2d 18, 20–21 (N.H. 1970) (Kenison, C.J. concurring).
7.
See Steinberg, 400 A.2d at 1168.
8.
Steinberg, 400 A.2d at 1166.
9.
Id.
10.
Id. at 1165.
11.
Id. at 1168 (citing 1B A. Larson, Workmen’s Compensation Law § 42.21 (1978)).
12.
In re Redimix Cos., 969 A.2d 474, 477 (N.H. 2009).
13.
Id. at 477.
14.
Id.
15. Id. It should be noted that the court’s “twenty pound weight” hypothetical is limited to
the case of a worker whose ordinary duties do not include lifting. Id.
36. In re Question Submitted by the U.S. Court of Appeals for the Tenth Circuit, 759 P.2d
17, 21 (Colo. 1988) (deciding that the positional risk test should apply to neutral-risk injuries).
16.
Larson’s Workers’ Compensation Law § 3.01 (2009).
17.
18.
19.
Redimix, 969 A.2d at 477.
20.
37. In re Margeson, No. 2010-633, slip op. at 1 (N.H. July 21, 2011). Though the Court sets
forth a more inclusive definition of a “neutral risk injury” earlier in the opinion, it later seems
to consider neutral risk injuries of unexplained origin. Id. (“Because neutral risk injuries result
from some unexplained cause not directly attributable to either the employee or employer .
. . .”).
21. Redimix, 969 A.2d at 477.
22.
Daniel Lawson, A Better Understanding of the Substantial Contribution Test, N.H. Bar
38.
Restauraunt Devel. Group v. Oh, 910 N.E.2d 718, 721 (Ill. App. 1st Dist. 2009).
39.
Heatherly v. Hollingsworth Co., 658 S.E.2d 30, 32 (N.C. App. 2008).
40.
Mullins v. Tanksleary, 376 P.2d 590, 592 (Okla. 1962).
About the Author
Daniel R. Lawson is a recent graduate of UNH Law and
its Daniel Webster Scholar Honors Program. During law
school, he handled workers compensation cases as a law
clerk at the N.H. State Employees' Association.
Autumn 2011

49 
THE "SEVEN YEARS WAR"
BETWEEN NEW HAMPSHIRE
AND THE UNITED STATES
A profile of Joel Parker,
Chief Justice of New Hampshire 1838-1847
By Richard B. Treanor
This article was originally published in the New Hampshire Bar
Journal in January 1960, Vo. 2, No 2.
The above headline is a gross exaggeration, but it is a wonderful
eye-catcher to begin an article on the life and times of a New Hamp‑
shire Chief Justice, Joel Parker, who was described by some as being
“dry” and “dull”, and by Justice Oliver Wendell Holmes as “one of the
greatest of American Judges.” l
But there is a fascinating legal problem behind the struggle which
with some truth has been labeled the “Seven Years War.”
It all began when Joseph Story, once, like Parker, a Harvard Law
School professor, and later, unlike Parker, a Justice of the United States
Supreme Court as well, participated in the drafting of the Bankruptcy
Law of 1841, which exempted from bankruptcy “liens . . . valid by
(state law).” The long controversy between Story, who was then a fed‑
eral appellate judge, and Parker, the state chief justice, was ostensibly
concerned with the meaning of a single word in this act, the word
“lien,” but it involved in reality a contest for supremacy between the
state and federal courts, and ultimately, in the eyes of some, between
the state and the nation. Story upheld the authority of his federal court
over the state court in Ex Parte Foster, 5L.R. 55, 2 Story 131 (1842),
when he decided that the word “lien” did not include “attachments”
and enjoined an attaching creditor from interfering with bankruptcy
proceedings.
But Parker took issue with this result in Kitteredge v. Warren,
14 N.H. 509, (1844), and held that an attachment made in good faith
before an act of bankruptcy was a “lien.” The decision was directly
contrary to Story’s position.
The next case in this legal tennis match was In the Matter of Bellows and Peck,3 Story 428, (1844), where Judge Story again affirmed
his opinion and roundly criticized Parker’s.
The ball bounced back to Parker in Kittredge v. Emerson, 15 N.H.

50 
227, 277 (1844). “There is no principle or pretense of a principle,” he
answered hotly, “of which we are aware, on which we can admit the
right of the circuit or district courts in any manner to interfere and
stop the execution of the final process of the courts of this State.”
The meaning of the word “lien” then became a banner of states’
rights. The Governor of New Hampshire sent a message to the legisla‑
ture, pointing out the conflict between the two courts, and the legis‑
lature responded with a resounding endorsement of state sovereignty
and a highly complimentary tribute to Parker. On December 26, 1844,
the legislature almost unanimously adopted a resolution praising the
action of the New Hampshire Superior Court. 2 Its strong language
gives a clue to the magnitude of the problem in the eyes of the people
of New Hampshire:
“Resolved, that we highly appreciate and heartily approve the firm
and decided stand which has been taken by the judges of our Superior
Court in opposition to the unwarranted and dangerous assumptions
of the Circuit Court of the United States . . . ; and that, in our opinion,
they ought to and will be sustained in that stand, if need be, by the
united voice and power of the government of this State.”
After Story’s death, Parker won game, set and match in Peck v.
Jenness, 48 U.S. 611 (1849), when the United States Supreme Court
affirmed his interpretation of the little word “lien” which had been
the cause of the controversy.
If anything other than vindication for Parker emerged from
this semantic civil war, it is the realization that from ambiguous
words came trouble, and that even today, a hundred years and several
amendments later, the water is often muddy between state and federal
bankruptcy jurisdiction.
The struggle with Story gives a good indication of the character
of Judge Parker; he was contentious, thorough, a fine legal theorist,
and, more often than not, victorious. He was born in Jaffrey in 1795,
and died art the sagacious age of 80 years. During this span he was
successively, lawyer, trial judge, and Chief Justice of the New Hampshire
Supreme Court, and professor at Harvard Law School. He was graduated
from Dartmouth at less than 17 years of age, then studied law with his
brother at Amherst. While practicing law in Keene, he became a state
Autumn 2011
representative from 1824 to 1826. In January, 1833, he was placed on decided that the court had limited, statutory equity powers. Lund v.
Lund, 1 N.H. 39, 41 (1818). It may safely be concluded then, that
the state’s highest bench, the Superior Court, with a salary of $1,200.
Five years later he was appointed Chief Justice, and held that position Parker resurrected the equity practice, if not the power, which had lain
for ten years, until he resigned and became a professor at Harvard Law dormant since the Revolution. This accomplishment has had lasting
School for 20 years thereafter.3
significance in the history of New Hampshire law.
While in practice, Parker was one of the leading lawyers in the
The leading newspaper in the state, the Patriot, hailed the new
state, He contributed the then-novel procedure of taking down in
act with words of praise: “From imperfections in the old system, or
notes the testimony in full of his opponent’s witnesses, and then
from bad administration, the people had no confidence in the Court of
cross-examining them in detail on
Common Pleas, and every day was
each point, He also interrogated his
weakening that enjoyed by the Su‑
own witnesses, question by question,
perior Court [sic]. The dockets had
instead of letting them give their testi‑
become crowded with old causes
mony in narrative form. This strategy
(some of them eight years old) and
resulted in clarity at the expense of
a prompt administration of justice
brevity, but the custom has endured. 4
was found impracticable under the
Parker is said by many writers
old system. . .”7 “The new Judiciary
5
to have been the author of the act
System, recently adopted in this
for remodeling the courts of the state,
State is likely to exceed in utility
adopted in 1832, which gave full
all that its most sanguine friends
equity powers to the Superior Court.
expected, and its practical results
This was one of the most significant
thus far are of the most satisfactory
contributions in the history of New
kind …”8
Hampshire equity. Before the Revolu‑
A few months after his reputed
tion, the Governor was by statute, also
introduction of the Judiciary Bill,
the Chancellor, and, together with his
Parker was appointed an Associate
council: constituted the high court
Justice of the Superior Court. The
of chancery. Wells v. Pierce, 27 N.H.
Democratic “Patriot” by praising
503, 512 (1853). Federalist Parker in an editorial
After the Revolution, the people
dated January 21, 1833, conferred
of New Hampshire, afraid of the
on him a singular honor, and
power which the royal governor
demonstrated that his reputation
had exercised through the chancery
transcended politics. “Joel Parker,
court, defeated a proposal to add in
Esq., appointed to supply the place
the constitution a provision creating
of Judge Harris, has for some time
a chancery court, with disputed facts The Honorable Joel D. Parker served as Chief Justice of the New maintained the reputation of one
to be determined by a jury.6 The status Hampshire Superior Court, then the state's highest court, from of the finest lawyers in the State.
of equity from that time until Parker’s 1838 to 1848. Portrait courtesy of the Collections of the State His industry and application to his
act in 1832 is not too clear; hence his of New Hampshire.
profession have been untiring and
contribution is difficult to evaluate.
he has obtained a character as a
For instance, Shirley claims that there was no injunctive power until
lawyer, which few men of his age have enjoyed.”
1832. But Justice Bell in Wells v. Pierce, supra page 512, believed This encomium is all the more remarkable because the Patriot’s
that equity always constituted a part of the law of New Hampshire,
editor, Isaac Hill, was then a Democratic Senator, the most powerful
and Justice Snow in Hatch v. Hillsgrove, 83 N.H. 91, (1927), felt that
man in the state, and strongly anti-Federalist, Parker could not have
the injunctive power antedated legislative sanction. Judge Bell in the been appointed without his consent. Although he drove such antiWells case felt that there was no chancery court after the Revolution
Democrats as Webster and Mason out of the state, for Parker he had
until Parker’s act.
only praise. At any rate, it is certain that Parker’s act did not create new equity
Other incidental items in the newspaper of that month of January,
courts; it merely purported to confer jurisdiction on the existing Su‑ 1833, give both a suggestion of the mores of the times and a hint of the
perior Court. Whether the Superior Court would have had this power Civil War which was to engage so much of Parker’s attention. In North
without the act, as Bell apparently believed, is an open question. One Carolina, the senate has passed resolutions denouncing nullification
can say that after the Revolution and before 1832, very few cases in‑ and the ordinance of South Carolina as revolutionary in character . . .
volved what we would call equity jurisdiction. True, at least one case
John C. Calhoun has been elected to the Senate . . . The Massachusetts
Autumn 2011

51 
House of Representatives has elected Daniel Webster a Senator by a
vote of 432-46 . . . It is reported that Captain Boone’s company was
attacked by a party of “Comanches” somewhere on the Red River, with
14 killed . . . Advertisement by the Concord Young Men’s Temperance Association: “The use of Ardent Spirits as a drink is not only needless
but hurtful to the social, civil, and religious interest of men.”
During the next 15 years, Judge Parker, (Chief Justice from
1838), dispensed with justice, in the Solomonic sense of the phrase;
510 opinions, contained in volumes six through eighteen of the New
Hampshire Reports, flowed from his pen, His style of writing is still in
vogue today - short, no unnecessary words, clear, logical, with accurate
and copious citations. He differed somewhat from the modern tendency
to decide only the case at bar; he draws many analogies and answers
many hypothetical questions closely related to the issues in the case.
In those days, it was customary for a trial judge to give a long and
rhetorical “charge” to the grand jury. Parker published one of his
charges, a 32-page rouser, “Upon the Importance of Maintaining the
Supremacy of the Laws” (Concord, N.H. 1838). Parker was describing
the incident when abolitionist editor Lovejoy was killed by a pro-slavery
mob. One can almost imagine Parker standing in the Roman forum,
garbed in a toga, as he delivered these Ciceronian phrases to the as‑
sembled jury: “Let us change our position to the ‘far west’. The prison of St. Louis
is broken open by a lawless multitude. An individual, there confined,
is dragged forth and chained to a stake. The faggot is placed, the fire
kindled, amid the screams and groans of the victim are heard the
shouts of the executioners, and he is burned to death, and his ashes
scattered to the four winds of heaven.”
“Do you exclaim that this act, so characteristic of the savage in his
worst estate, must have been perpetrated by some band of marauding
Indians? Oh no! It was the act of inhabitants civilized city.”
If Parker had a facility for the florid figure of speech, he was him‑
self on occasion the object of an emotional essay. One such incident
occurred when Parker charged a jury that they had a right to determine
the facts but not the law. Parker’s political opponent, Senator John

52 
Parker Hale, was defending a man accused of selling liquor without
a license. When Parker refused to charge that the jury had the right
to determine the constitutionality of the license, Hale published an
essay bitterly denouncing Parker’s view. “If the province of the jury
be as Judge Parker would make it,” he said, “only to sit like senseless
automata and render such a verdict as the court may direct . . . then
surely this inestimable blessing is one that may be as well enjoyed by
the intervention of twelve sheets of foolscap as of twelve good and true
men.”
The question whether the jury should determine questions of law
was, surprisingly, undecided at that time. Parker’s view has, of course,
proven correct.
Many of his opinions concerned issues important only to the liti‑
gants; in keeping with his argumentative nature, he spent four pages,
including a citation to Coke, to decide that the tax collector did not
fatally err in calling the Souhegan Nail, Cotton and Woolen Factory
by the name of the Souhegan Nail, Cotton and Woolen Corporation.
The Souhegan Nail, Cotton and Woolen Factory v. McConihe, 7 N.H.
309 (1834). Other cases illustrate the peculiarities of the times: The defendant
was liable for not paying a toll when he used a toll road to buy lumber,
not at a mill; the statute excepting from toll duty only those going to
or from worship or to buy lumber at a mill. Proprietors of the Second
Turnpike Road v. Taylor 6 N.H. 499, ( 1834).
Other decisions have been cited by many other courts and have
earned for Parker the reputation of being one of New Hampshire’s
greatest judges. The case of The Proprietors of the Piscataqua Bridge
v. The New Hampshire Bridge, 7 N.H. 35, (1934), has been cited 42
times, including five times by the United States Supreme Court. This
was a bill in chancery by a bridge owner to restrain the defendants
from erecting a bridge across the Piscataqua River in the vicinity of
plaintiff’s bridge. A previous legislature had given the plaintiff the
exclusive right to build a bridge in the area, but a new act purported
to give the defendants a similar right. Parker enjoined the defendants,
holding that a later legislature could not deprive the plaintiff of its
rights without compensation. The case involved complex is‑
sues of eminent domain and the
impairment of the obligation of
contracts. It was one of the ear‑
lier of such cases, and the United
States Supreme Court has relied
on it in several decisions.
Parker later distinguished this
case in reaching a decision in
Brewster v. Hough, 10 N.H. 138,
(1839), also cited by the United
States Supreme Court. There he
decided that the legislature had
the authority to tax property of
Dartmouth College, although
that property had previously
Autumn 2011
been declared exempt by the provincial Assembly and Council. The
distinction between the two cases is the fundamental but sometimes
tenuous one of the power of the sovereign to tax and the lack of au‑
thority to impair the obligation of contracts.
Parker showed his skill as a historian in State v. Rollins, 8 N.H.
550, (1837). The defendant was indicted for kidnapping; the evidence
disclosed that he seized a mulatto child and sent him to another town
for transportation to the south where he was to be sold as a slave. There
was no kidnapping statute in New Hampshire and the defendant argued
unsuccessfully that the common law of kidnapping had never been
adopted. Parker refuted this contention by tracing the history of New
Hampshire law back to the Charter of King James I to the Plymouth
Colony, which, he said, once included New Hampshire. Words in the
Charter provided that the laws should as near as possible be “agreeable
to the laws of England.” The old law of England being binding; and
kidnapping being an offense under that law, the defendant’s plea was
overruled.
But the case for which Parker will longed be remembered is the
famous decision of Britton v. Turner, 6 N.H. 481, (1834). In that case,
the plaintiff had contracted to do a specified job for a year, to be paid
when the work was finished. After working the greater part of a year,
he wrongfully quit and sued to recover for the work he had done. In a
well-reasoned opinion, Parker held that he could recover for quantum
meruit, after deducting the damage caused to his employer by his
wrongful breach. Parker felt that, although there could be no recovery
under the contract – because of the willful breach, the benefit to the
employer created a new theory on which recovery in justice should be
had.
Today it might seem that such a result is merely fair and equitable,
rather than earth-shaking or historic. But in those days, although
Parker drew from analogous precedents, the result was a novel one.
It broke the sanctity of employment contract to reach a result which
avoided hardship but did not allow complete recovery to the contract
breaker.
A glance at the labor codes of the colonial days will give one some
idea of the unorthodoxy of Parker’s decision.
Most of the colonies adopted, in whole or in
part, the Tudor Industrial Code, imported
from England, which sought to assure a
profit to the employer and at the same time
to safeguard the workers against exploitation.
One of the provisions of the code was that no
workman was to depart before the end of his
term, and he was required to produce letters
testimonial to show that he was free to hire
himself out. In those times, when labor was
scarce, such a provision was necessary to as‑
sure an adequate supply of workers, and, so a
premature departure by a worker was deemed
a serious offense. It was in spite of this code
background that Parker reached his result.9
The decision has been cited no less than
Autumn 2011
102 times since. It has been criticized for creating a fictitious quasicontract,10 but many writers and courts have praised it: “The reasoning
in this case is strongly persuasive; it is in harmony with the equitable
rules against the enforcement of penalties and forfeitures; and it has
been approved by authors of repute.”11 The question whether Britton
v. Turner is supported in the Restatement of Contracts has been a
matter of hot dispute and the reader is referred to section 557 to decide
for himself.12
In 1848, Parker resigned from the bench to become a professor
at Harvard Law School. At this period, there were only two or three
professors, so that a heavy academic burden fell on his shoulders
at once. At first he was ill at ease in the lecture hall. Admiralty and
shipping, subjects, about which he had little knowledge, were on the
curriculum, and he managed to stay afloat by keeping a page ahead
of the only textbook on the subjects.13
He was known for his thoroughness, his brilliance, his dryness, and
his caution. Catherine Drinker Bowen, in her fascinating biography
of Justice Holmes, “Yankee from Olympus,”14 relates this interesting
description of Holmes’ first encounter, when a student, with Professor
Parker: “Holmes had been warned not to try to understand Parker’s
lectures. Just get what he said into a notebook and then learn it by
heart. Wendell had been scornful of this. He was no undergraduate
trying to skim through college. He was a man of twenty-three who had
been to the wars and desired knowledge.
“But after the first twenty minutes of Joel Parker, Holmes was not
so scornful of his adviser. He could not make sense of one word the
Judge was saying.”
The renowned Joseph Choate found him abstruse to understand.
But Langdell, a fellow New Hampshire man, thought him to be the
center from which “the gladsome light of jurisprudence chiefly mated.”
At times, Parker was not the most popular of lecturers, perhaps
because of his profound manner of thinking. One hot day, when he
came into the classroom for an equity lecture, only fourteen students
were present. As one of the faithful students described Parker’s reac‑
tion, “he turned and smiled benignly upon us, gazing over his gold

53 
bowed spectacles, and solemnly said, ‘He that endureth to the end
shall be saved.’”15 He must have inspired some affection, though, for
in 1862 his students presented him with a portrait of himself which
still hangs among the honored great in the school lobby. Perhaps one
explanation for the paucity of numbers in class was the fact that the
law school was a collection of study groups which learned as much
from their own members as from the professors themselves.
As the Civil War approached, Parker devoted much of his writing
and many of his lectures to the weighty legal problems in that great
struggle. He contributed to the North American Review two articles, in
1862, in which he denied the right of the president to emancipate the
slaves. Denounced by a group consisting of Senator Sumner and certain clergymen, Parker replied in an oft-quoted address, “To the People of
Massachusetts,” wherein he called Lincoln “not only a monarch, but
. . . his is an absolute, irresponsible, uncontrollable government – a
perfect military despotism.” In particular reply to the clergymen,
he retorted, “If any of them have D.D, attached to their names, that
does not disqualify them from being also A.S.S., and mischief makers
besides.”16
But his loyalty to the Union cause was unquestioned, as can be
seen from this anecdote by Daniel H. Chamberlain, one of his students
and later governor of South Carolina: “One very ardent youth, who was
listening and who had caught the war excitement, suddenly started up
with the question, ‘Professor Parker, if you saw a man striking down
the American flag, and caught him in the act, would you suspend
the habeas corpus?’ and instantly came back the answer of the brave
old man, ‘No sir, I would not suspend the habeas corpus, but I would
suspend the corpus.’ ”
His writings on the Civil War concern such subjects as the right
of secession, habeas corpus and martial law, the case of the Trent,
and the capture of Mason and Slidell. One of his fellow professors has
said that they “deserve a place among the permanent constitutional
literature of the country.”l7
Judge Parker made a significant contribution to the law of mur‑
der when he defined the word “malice” in an article regarding the
celebrated Webster case.18 Dr. Webster was indicted in Massachusetts
for the murder of a prominent Boston professional, Dr. Parkman. The
Chief Judge on appeal held that “the implication of malice arises in
every case of intentional homicide”19
A precise definition of malice was important because it was and
is a dividing line between murder and manslaughter. Judge Parker
in his article felt that such a sweeping statement was not fair to the
defendant. He felt that the mere proof of a voluntary or intentional
killing, much less the mere proof of a killing itself, should not be
sufficient to imply malice. He believed that such a conclusion would
violate the premise that a man is innocent until proven guilty. “Now,
it follows,” he said, “as a logical deduction, that when the law, in
policy, presumes innocence of two things [lack of intention and lack
of malice], it cannot permit the proof of one only, to contradict its own
presumption of innocence as to the other . . .” Rather, Parker felt that
“malice should not be implied, from the mere fact of intentional kill‑
ing, But malice existed if the act was attended with such circumstances
as are the ordinary symptoms of a wicked, depraved, and malignant
spirit, without reference to what was passing in the person’s mind at
the time he committed the act.”
Parker’s views have been accepted by the New Hampshire Supreme
Court in State v. Greenleaf, 71 N.H. 606, 613. There the court, citing
Parker’s article, said that “malice is not an inference of law from the
mere act of killing; but like any other fact in issue, it must be found
by the jury upon competent evidence,”
The New Hampshire Supreme Court has thus rejected the ruling
in this highly publicized and oft-cited case. It is a departure which
seem justified and supported by authorities.20 And there is no doubt
that the change came in large part because of Parker’s influence.
Before Parker died in 1875, he had obtained a stature in his field
which few could equal. His reputation earned him posts at Dartmouth
College, where he taught medical jurisprudence. He was on commis‑
sions for revising statutes in New Hampshire and Massachusetts, and
he was a member of the American Academy of Arts and Sciences.21 His
influence on law and the legal profession been profound.
END NOTES
1
Speeches of Holmes, 35, (1891).
2
At this time, the highest court was known as the Superior Court.
3 C. H. Bell, The Bench and Bar of New Hampshire, p. 86, Houghton Mifflin and Company,
(1894)
4
Joel Parker, American Law Review, January, 1876.
5 Bell, op. cit. supra, note 3 at p, 87; American Law Review, supra, p. 6; Corning, The
Highest Courts of law in New Hampshire, Colonial, Provincial, and State, 2 Green Bag 469,
477 (1890); John Reid, From Common Sense to Common law to Charles Doe; The Evolution

54 
Autumn 2011
of Pleading in New Hampshire, p. 33, New Hampshire Bar Journal, Volume 1, No. 3
6
John m. Shirley, Esq. Practice, 5 Granite Monthly 150, 154.
7
New Hampshire Patriot and State Gazette, (Concord, N.H.), January 9, 1833.
8
Ibid., February 18,1833.
9
Joseph G. Rayback, A History of American Labor, 12 (1959).
15 M.F. Dickenson, quoted by Warren, op.cit. supra, note 13, at p. 307. For a New
Hampshire view of the state’s influence on the Harvard Law School, see John Reid, Life at
the Law School when Charles Doe was a Student, 10 Harv. Law School Bull. (#6) 8 (1959)
16 Parker, “Constitutional Law and Unconstitutional Divinity,” Works of Joal Parker, Volume
III, p. 6 (1862). The Works of Parker, in three vloumes, contains most of his publications.
10 C.D. Ashley, Britton v. Turner, 24 Yale Law Journal 544, (May, 1915).
17 Emory Washburn, Memoir of the Hon. Joel Parker, L.L.D.” Press of John Wilson and
Son, (1876).
11 5 Corbin on Contracts, p. 566 (1951).
18 Parker, “The Webster Case,” 72 North American Review, 178 (1851).
12 See Laube, The Defaulting Employee: Britton v. Turner Re-Viewed, 83 U.Pa Law Rev.,
825; Williston, “The Defaulting Employee, A Correction,” 84 U.Pa. Law Rev. 68 (1935).
19 Commonwealth v. Webster, 5 Cush. 295, 305
13 Dictionary of American Biography, Scribner’s, (1934), p. 230, Charles Warren, History
of the Harvard Law School, vol. II, Lewis Publishing Company, N.Y., (1908).
21 Washburn, op. cit. supra, note 17, at 511
20 See 2. Bishop, 9th Edition, Criminal Law, p. 511.
14 Little, Brown and Company, Boston (1945), at p. 204.
About the Author
Richard B. Treanor is in solo practice in Washington, D.C.,
handling probate and federal taxation. Admitted to the New
Hampshire Bar in 1957, he served as a law clerk to United
States District Court Judge Aloysius J. Connor for several
years before leaving the state to enter private practice in
Washington, D.C.
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Autumn 2011

55 
LEX LOCI
By David W. Ruoff
State v. Andre Rivera, No. 2010-130, decided on June 28, 2011,
is a case involving Rivera’s improvident participation in an armed
home invasion that resulted in a murder. Rivera and four other
like-minded men plotted to rob a known drug dealer. They agreed to
bring a Mac 11 submachine gun with them to help convince the drug
dealer to turn over his drugs and money. They knew their target also
had a gun, which he kept in a safe in his house. The gaggle of five
men drove to the victim’s house where they confronted him. One of
the co-defendants (the one with the submachine gun) confronted the
victim (who was armed) and shot him. Rivera, meanwhile, was in
a downstairs bedroom rummaging through a dresser. Upon hearing
the shot, the co-defendants all fled in their car.
Rivera was indicted for, among other things, reckless second degree
murder under the theory that he was an “accomplice-in-conduct.”
Under normal circumstances, the state must allege and prove that the
accomplice acted with the purpose to promote or facilitate the com‑
mission of the underlying offense, but the indictment failed to contain
that allegation. Rivera moved to dismiss the indictment by arguing
that, in essence, the state had to prove that he specifically intended
for the victim’s death to occur. He relied heavily – too heavily – on a
1984 case that would have directly applied to him in 1984. State v.
Etzweiler, 125 NH 57 (1984), interpreted an older version of the ac‑
complice statute (RSA 628:8, IV) that supported Rivera’s argument.
The hint here is “older version.”
The Court correctly pointed out that - arguably in response to
Etzweiler – the legislature amended the accomplice statute by remov‑
ing the requirement that it must be proven that an accomplice must
act to promote or facilitate the commission of the underlying offense.
Instead, to address cases like Rivera’s, the statute only required that
the prosecution prove that he acted with same mental state as the un‑
derlying offense (recklessly, not purposely) as long as “the result was
a reasonably foreseeable consequence of the conduct.” In this case,

56 
the Court had little trouble finding that a gunfight with the resulting
death was a reasonably foreseeable consequence of an armed home
invasion even if Rivera did not directly participate in the actus reus
of the murder.
In State v. Ryan Laplaca, No. 2010-042, decided June 28, 2011,
the last sentence of the opinion completely deflates the main holding
in the case. The Court found that the trial court violated Laplaca’s due
process rights by summarily imposing a suspended sentence without
affording Laplaca the opportunity to be heard at an evidentiary hear‑
ing. The seed of the due process violation was planted when Laplaca
admitted that he had violated the terms of his probation on an un‑
derlying felony. As a result of the violation, the trial court sentenced
him to the state prison, but suspended the sentence on the condition
that he complete the Grafton County Drug Court Sentencing Program.
A specific provision of the sentencing order stated that the defendant
waived “any and all” rights to a hearing on any potential claims
that he had violated the terms of the Program or that he had been
terminated from it. Borrowing a phrase from Monopoly, if Laplaca
was terminated from the Program, he would go directly to jail (no
passing Go, no collecting $200).
Laplaca was terminated from the program six months later
and the prosecution moved to summarily impose the full suspended
sentence. The trial court granted the motion and imposed the full
suspended sentence. On appeal, the Court found that this procedure,
or lack of procedure, violated the defendant’s right to due process.
The State - taking a cue from the trial court’s order – argued that the
defendant had waived his right to a hearing. The logical (and fatal)
extension of this argument, though, is that the defendant waived his
right to due process (to be treated fairly).
In its analysis, the Court found that the defendant had a legally
protected interest, a liberty interest, that triggered the fundamental
requirements of due process. The Court reaffirmed the well-settled,
bedrock procedures that must be followed when the State seeks to
incarcerate a defendant by moving to impose a suspended sentence:
1) written notice; 2) disclosure of the evidence; 3) opportunity to be
heard in person and offer evidence; 4) right to confront evidence; 5)
Autumn 2011
right to counsel. In this case, it appears from the record that three out
of five steps were missed. The Court found that Laplaca could not have
prospectively entered a knowing and intelligent waiver of his right to a
hearing to contest allegations of misconduct months before he knew
what the allegations were. Having found the defendant’s due process
right violated, the Court reversed the trial court’s order.
But the Court was not done. In a beguiling last paragraph, the
Court mentions that this case is limited to a scenario where the trial
court imposes a “full suspended sentence of incarceration” and left
“for another day” the question of whether a prospective waiver of a
right to hearing might survive a constitutional attack if a lesser sanc‑
tion is imposed. This suggests that Laplaca’s prospective waiver would
have been knowing and intelligently made if the trial court had only
imposed one year of incarceration, or six months, or 30 days. This
directly undermines the core logic of the Court’s reasoning: a person
cannot make a knowing and intelligent waiver of his or her right to
contest allegations without knowing what those allegations are (no
mention of potential sanctions…). Creating a nexus between the
severity of the punishment imposed and whether the defendant made
a knowing and intelligent prospective waiver of a constitutional right
is not legally sound. Thus Laplaca fails to provide any meaningful
guidance to trial courts on this issue.
Appeal of Harold French, No. 2010-535, decided June 30, 2011,
is a an appeal from the Board of Auctioneers. French, an auctioneer,
decided to attend the auction of a painting in Portsmouth. The reserve
on the painting was set by the owner at $10,000. Before the auction,
the auctioneer (an apparent colleague of French’s) asked French to
place a bid on the painting if the bids did not rise to the reserve level. French agreed, but neither of them notified the seller of this arrange‑
ment. Now, I don’t know much about auctions, but this strikes me as a
bad idea. When French’s bid of $9,500 was the highest one, the owner
waived the reserve and accepted the bid. French refused to buy the
painting because he placed the bid without any intent on buying the
item, and litigation ensued. French said he was bidding to protect the
reserve and make sure that the painting sold above it. The painting’s
owner did not see it that way. After filing a complaint with Board of
Auctioneers, the Board found that French engaged in collusive bidding
and sanctioned him.
On appeal, French argued that the Board mistakenly relied on an
1851 case, more recently discussed in Stormy Weathers Inc. v. FDIC,
834 F.Supp 519 (DNH 1993). Those cases actually distinguished a
scenario in which an apparently collusive bid is an acceptable practice
to prevent “sacrifice of the property [being auctioned] at an unreason‑
ably low price.” In those scenarios -- involving the sale of a home
at foreclosure auction – a known agent of the owner was allowed to
place a bid on the property. French argued that those cases supported
his position because he placed a single bid for the purpose of protect‑
ing the reserve. The Court was quick to point out the obvious: French
was not the owner, did not have the consent of the owner, and no one
other than the auctioneer knew French was bidding without the intent
of purchasing the painting.
Phyllis Buatti v. Alicia Prentice, No. 2010-765, decided June 30,
Autumn 2011
2011, is a landlord-tenant case. Both parties appeared pro se before the
Supreme Court. Buatti, the plaintiff-landlord, sued her tenant (Pren‑
tice) for back rent and served her with a Notice to Quit that premises.
After a trial, the district court (ahem….circuit court) found that the
defendant was delinquent in rent but that it could not determine the
amount in arrears. Nevertheless, the court ordered the defendant be
evicted for non-payment of rent. The defendant-tenant appealed and
won, sort of.
On appeal, the Court noted that it was limited in its review to
legal issues only because the defendant had not provided the Court
with a copy of the transcript of the hearing below. In fact, it appears
that the record on appeal was comprised solely of the pleadings in the
trial court (demand for rent and notice to quit) and the circuit court’s
order. Notwithstanding the paucity of the record, the Court reversed.
As the Court noted, under RSA 540, the burden is on the landlord to
demonstrate that its demand for rent is not greater than the arrearage.
Thus, if the circuit court could not determine that amount of the ar‑
rearage, the order of eviction had to be vacated as the landlord could
not prove its demand for rent did not exceed it. RSA 540 contains an
implied right/remedy for tenants that fall behind in their rent. Under
the statute, such tenants have a right to avoid eviction by payment of the
arrearage (plus $15), but the burden is on the landlord to demonstrate
the amount of the arrearage. The Court reasoned that the trial court
is required to make a finding of specific amount of arrearage before
it can order an eviction; a tenant must know how much it must pay
in order to avoid the eviction.
In order to assist the trial court on remand, the Court said that if
the trial court could determine that “some amount certain was due .
. . it should so find.” Having been unable to find an amount after the
first trial, it is not clear how the trial court will be able to do so upon
remand. However, if it can and the amount is greater than or equal to
the amount on the demand for rent, then the trial court can find for
the landlord.
Winecellar Farm Inc., v. Leona Hibbard, No. 2010-275, decided
July 21, 2011, involves a property and lease dispute at a buffalo farm
in Durham. Plaintiffs and defendants owned adjacent farms, and
the defendants are heirs of the family that owned the Bedard Farm
for generations. The plaintiffs bought an adjacent farm in 1992 and
befriended the elderly Bedards. The Bedards were a brother and sister
that had lived on the farm their entire lives. Within a few years, the
plaintiffs expressed an interest in leasing or buying the Bedards’ farm.
The parties then entered into an agreement that allowed the plaintiffs
to use certain fields on the Bedard Farm to cultivate and harvest hay
to support the plaintiff’s buffalo farm. The so-called “haying agree‑
ment” contained a provision that provided that the lease remained in
effect “in perpetuity.” The parties also entered into an agreement that
allowed the plaintiffs to pasture buffalo on two of the Bedard Farm
fields. Throughout the 1996-2006 time period, the plaintiffs repeat‑
edly offered to buy the Bedard Farm or, in the alternative, acquire a
right of “first refusal.” However, the Bedards never signed any of the
proposed agreements. Regardless, the plaintiffs continued to invest in
their buffalo farm which relied heavily on the “haying” and “pasture”

57 
agreements. They were, forgive the pun, betting the farm that the
Bedards would eventually sell their farmlands to them.
Everything fell apart when the Bedards both died within six
months of each other. Neither of the Bedards had children and their
estate(s) passed to their nieces and nephews. The plaintiffs initiated
the litigation by filing a petition to enjoin their eviction from the land.
Also, they sought specific performance for purchase of the land, arguing
they were entitled to specific performance because they had a number
of oral commitments from the Bedards that they would have the first
opportunity to purchase the farmlands. They also argued that the “in
perpetuity” provision of their haying agreement was fully enforceable.
After a bench trial, the trial court denied the plaintiff’s request for an
injunction but ordered that the plaintiffs had the right of first refusal
to purchase the farmlands they had leased from the Bedards. Both
parties appealed.
On appeal, the plaintiffs essentially lost. The Court found that the
perpetual nature of the haying agreement amounted to an unreason‑
able restraint on the alienation of real property. The “unreasonable
restraint on alienation” doctrine is an ancient common law doctrine.
The Court reaffirmed the well-developed balancing test for the ap‑
plication of this particular rule of law. Traditionally, the justification
for enforcement of a particular restraint is balance against the actual
and practical effect on alienation. In this case, the Court found that
the perpetual lease to allow for haying essentially made the Bedard
Farm completely unalienable, and yet provided the plaintiffs with a
substantial benefit at very little cost.
The Court went on to find that the partial specific performance
awarded by the trial court was done in error. The Court found that
that trial court in reaching its decision misapplied the law of part
performance. Part performance is typically an exception to a statute
of frauds defense. In this case, the plaintiffs argued that the statute of
frauds should not preclude their option to purchase the Bedard Farm
because they had “partly performed” on the agreement by making
payments and investing significant amounts of money in preparing
the fields for pasturing animals. The trial court found that the “part
performance” exception to a statute of frauds claim did not apply, yet
awarded the plaintiffs the right to purchase the fields they had leased
as restitution for losses incurred. The Supreme Court dealt with this
ruling quickly: if the part performance exception does not apply, then
no enforceable agreement exists to purchase the land. The Court found
that the trial court erred in awarding the plaintiffs the opportunity to
purchase the improved lands as restitution. The Court pointed out that
the plaintiffs may be entitled to monetary relief and remanded the case
for consideration of that issue.
There were a number of obvious atmospherics at play in this
case: the Bedards were very elderly when the plaintiffs began a fairly
aggressive campaign to solicit a written commitment for a right of
first refusal. Less than a month after the first Bedard passed away, the
plaintiffs prevailed upon his elderly sister (the remaining Bedard) to
sign an agreement to sell the land. The person who witnessed her sign
the agreement didn’t actually see her sign it….he “witnessed” it hours
later and never saw her do it. Lastly, the Bedards refused to sign numer‑

58 
ous written “memorandums of understanding” and yet the plaintiffs
continued with their plans as though they had a fully executed option
to buy the lands. So, in reading the opinion, one comes away with the
feeling that both the trial court and Supreme Court perceived that there
was a certain element of “coming to the harm” that undermined the
plaintiff’s claims.
Petition of Stuart Dedopoulos, No. 2010-478, decided July 21,
2011, is noteworthy because those of us that have busy litigation prac‑
tices have stood in Stu’s shoes. Attorney Dedopoulos was scheduled to
be in two courts at once: at that Strafford County Superior Court and
the Rockingham County Superior Court. Both hearings were for final
pretrial conferences in criminal cases. Nine days prior to the hear‑
ings, Attorney Dedopoulos filed a motion to continue the hearing in
the Rockingham County case because his other hearing in Strafford
was going to address a contested motion. He explained his scheduling
problem in the motion.
Attorney Dedopoulos called the clerk’s office at the Rockingham
County Superior Court on two separate days leading up to the hearing
to ascertain the status of his request for a continuance. He left messages
both times and never received a return call from the Court. Hearing
nothing from the court clerk’s office, Attorney Dedopoulos coordinated
with opposing counsel to inform the trial court the reason for his ab‑
sence. At the final pretrial conference, the trial court denied the motion
to continue and fined Attorney Dedopoulos $100 for “failing to appear
without ruling [sic]on the motion [to continue].” Good grief.
The Supreme Court found that imposing a fine under these
circumstances was an unsustainable exercise of discretion. The Court
acknowledged that trial courts have broad discretion in whether
to grant or deny a requested continuance. However, the Court also
“admonish[ed] the justices of the trial courts that in the future,
when they are exercising their sound discretion . . . they should make
every effort to accommodate the reasonable scheduling requests of
attorneys.” The Court went on to find that Attorney Dedopoulos was
diligent in trying to resolve his scheduling conflict and that there was
no negligence on his part. What else could he have done? The troubling
corollary to the Courts’ opinion is that it appears to hold that whether
to assess a fine against an attorney is purely discretionary. Conspicu‑
ously absent from the opinion is any discussion about the factors a
trial court should or must consider before assessing a fine against an
attorney.
Dana Chatman v. James Brady, No. 2010-707, decided Septem‑
ber 15, 2011, is a negligence case brought by a work-release inmate
at the Strafford County House of Corrections against the Lee Country
Fair. Chapman was serving a sentence for a felony conviction. As part
of his sentence, he was release to an administrative home confinement
program (ACH). As a requirement of this program he was required to
wear an electronic monitoring anklet. In order to pay for the anklet,
the ACH program required him to work. He was assigned to work at the
defendant Lee Country Fair, loading tables and chairs onto a trailer.
The trailer was parked on soft, uneven ground. After the plaintiff loaded
the trailer, the owner of the truck ( Brady) went to hook the trailer up
to the truck’s hitch. At some point the trailer became unstable and one
Autumn 2011
of the welds on the trailer failed, causing it to fall on the plaintiff’s leg.
He sued Lee Country Fair and Brady for negligence.
The defendants responded by filing a motion to dismiss. They
argued that because the plaintiff was performing “uncompensated
public service” through the defendants, that they were immune from
suit under RSA 651:70. RSA 651:70 which grants statutory immunity
to a “person or organizations who utilizes the services of any person
performing uncompensated public service”. Thus, argued defense
counsel, since the plaintiff was an offender in the ACH program and
he was performing uncompensated public service, he could not sue.
The trial court agreed. The Supreme Court did not.
In reversing the lower court, the Supreme Court had to analyze
the meaning of the statutory phrase “uncompensated public service.” This phrase is not defined in the statute. So the Court looked to the
other provisions and subdivisions of RSA 651:70 to determine how
the phrase is limited or defined. It concluded that uncompensated
public service is limited to a type of release (from incarceration) that
is ordered by a governmental entity that has the statutory authority
to order it. In New Hampshire, there are three entities that can order
it: the sentencing court, the commissioner of the department of cor‑
rections (through the prison); or the parole board.
Turning its attention to Chatman’s case, the Court noted that
his “service” for the defendant was as a result of his participation in
the ACH program to which he was sentenced. However, he was not
sentenced to perform uncompensated public service by the sentencing
court. Also, since he was in the ACH program, the commissioner of
the department of corrections could not order him to perform such
service because he was in a county correctional facility. Lastly, he was
not on parole. In light of these statutory limitations, the Court found
that he was not performing uncompensated public service as defined,
therefore, the statutory immunity did not apply.
Curiously, the Court pointed out that the current version of RSA
651:70 varies from version that was effective when the plaintiff was
placed in the ACH program. The current version authorizes the super‑
intendent of a county correctional facility to order uncompensated
public service on the grounds of a city or municipality. The defendants
did not argue that this recent amendment applied to them. Moreover,
there was nothing in the record to indicate where the accident took
place, so, the Court declined to consider it.
Aaron Boissy v. Ruth Chevion, No. 2010-372, decided Septem‑
ber 20, 2011, is a classic common law easement case. And it is ironic
that one of the litigants was my Property Law professor in law school
many years ago. The parties are abutters in Hopkinton. At issue were
two easements that the respondent Chevion claims to have over the
petitioner’s land: the first was an easement to “pump water” across
one of the petitioner’s three lots to the respondent’s lot; the second
was an easement for a right of way across the petitioner’s lot to an
“ice pond” that no longer exists. The petitioners sought to resolve the
dispute with a petition to quiet title. The trial court split the proverbial
baby by finding that the easement to pump water was extinguished by
“impossibility of purpose”, whereas the second easement to access the
non-existence ice pond endured. Both parties appealed.
Whether an easement may be extinguished by “impossibility
of purpose” was undecided until the Court issued this opinion. This
doctrine states that, in short, if a change has taken place since the
creation of an easement (or any servitude) that makes it practically
impossible to accomplish the purpose of the easement, a court may
modify or extinguish the easement. In this case, the Court found that
the original purpose of the easement – which predated Ms. Chevion’s
ownership by decades – was to allow her access to a specific well and
to draw water from it. However, the well had been lost for over 40
years. According to the record, the well to which the respondent had
an easement could not be located. The Court, applying it newly ad‑
opted doctrine, affirmed that the easement to access the lost well was
extinguished. True, it is impossible to pump water from a well that
cannot be found.
However, it is possible to visit an ice pond the does not exist. The
second portion of the case dealt with the respondent’s easement for
a right-of-way to access an ice pond on the petitioner’s land. The
trial court found that there was one “marsh-like” body of water on
the respondent’s land that could no longer function as an ice pond.
Nonetheless, the Court was convinced that that area was indeed the
area referenced by the deeded right-of-way. The Court agreed with the
lower court’s assessment that “if [respondent] wants to go stand in
a swamp, she can stand in a swamp.” I can picture my property law
professor – Ms. Chevion - standing in a swamp.
About the Author
David W. Ruoff is a partner in the firm of Howard & Ruoff
in Manchester, and splits his practice between state/federal
criminal defense and civil litigation. He was formerly an
Assistant Attorney General, Assistant Rockingham County
Attorney, and a staff attorney with the New Hampshire
Public Defender. He regularly writes the Lex Loci column
for the Bar Journal.
Autumn 2011

59 
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