Law Can Protect Your Child

The year 2009 has begun with greater emphasis on bridging the serious gaps in segments of importance.

Take Obama's latest propositions in changing the face of education in the US where, there are 110,000 expulsions and 3 million suspensions that are known to happen each year. In India, we definitely have little access to these actual numbers but we do know that teachers hitting out at children is almost an accepted form of punishment to correct the behaviors of specific challenging kids. What parents dont realise is that they can take recourse to legal action in these situations.

Coming back to the US education scenario, an interesting approach has been formulated. It's called as collaborative problem solving. This was conceptualised by Dr. Ross Greene, who works at Harvard Medical School's psychiatry deparment. What it means is that behavioral challenges such as lack of flexibility or basic cognitive skills are perceived as developmental delays. So, this principle reiterates that the children shouldnt be punished simply because they are unable to understand and adapt to the demands of the school that placed on their tender shoulders.

Those who have seen Taare Zameen Par, the Bollywood flick, which was a bold and sincere attempt to address the same concept. Countless movie goers appreciated the suffering of the child protagonist, Ishaan, who embodies a classic case of Ross Greene's principle on developmental delays.

But here are some questions that continue to trouble parents:

1. What happens when a school refuses to use diligence and reinforces a system of punishment on a child who is suffering from similar developmental delays?

2. Will lawyers be able to take a proactive approach in initiating preliminary discussions with school authorities in representing these issues relating to a child's educational rights?

To answer question one at a micro level, it is important for parents to assess the situation correctly. Where it does seem apparent that a child is being unduly tormented by the punishment system, it calls for an immediate discussion with school authorities. If that fails to bring out measurable outcomes, we know exactly what comes next. Yes, the law steps in.

That, my dear friends, is just the beginning.

Legal News In Brief from Around the World

I read this somewhere, "The difficult task, after one learns how to think like a lawyer, is relearning how to write like a human being." Floyd Abrams. So true, isnt it?

Writing brings to mind the stereotype lawyer who makes notes on a note pad. Recent news in the U.S. indicate that the 'legal pad' is going to turn extinct, a relic that no longer works or serves the next generation, hi-tech lawyers. The latest U.S. state court rules will permit attorneys and even those who enter a courtroom to bring and use laptop computers to take notes. However, a judge's permission is required for this.

Another interesting news that got coverage recently was that more than 30% of businesses that are based in the UK do not use professional help for drafting their company contracts. A survey indicated further that more than a quarter of start up companies in the U.K. do not plan to take any form of legal support.

An estimate of 27% indicated that they will draft their own contracts, without legal help. That sounds scary and it looks like Indian companies are far more responsible on that count as most contracts and agreements are scanned carefully by legal experts of both parties before it is taken further.

Where any company sets its own terms and conditions for business, it is naturally bound to set limits for its liability so that it can curb claims from its clients or customers. There is often very little thought applied to the precise wording of such a limitation clause.

As drafting is integral to law, let's go through a recent case that reinforced what we believe is our niche area: accuracy, preciseness, and clarity while drafting any notice, agreement etc.

The Bristows Law Firm published details about an interesting case that brought forth interesting drafting points to the notice of attorneys. Here is what we at Axcess Legal Corp consider as the useful points:

-Review exclusion and limitation of liability clauses on a regular basis because enforceability is a vital factor that no one can take chances with.
-Drafting must be clear and unambiguous.
-It is not fair to deprive any party of a remedy for breach of contract on your side though that is the general practice.
-The question of reasonableness depends entirely on the individual facts that make each case truly unique.

Let's chime into the case details of Regus (UK) Ltd v Epcot Solutions Ltd.

Office space belonging to Regus was rented out by Epcot for several years based on the standard business terms of Regus. Due to problems relating to air conditioning in the office, Epcot began to service charges to Regus which would otherwise be typically paid to Regus. As a result, Regus was quick to issue a notice of suspension of its services to Epcot and also issued proceedings for sums owing to its service charges.

Epcot counterclaimed an huge amount for damages which Regus refuted by emphasising on the standard exclusion clause.The UCTA clause stated that:

"We will not in any circumstances have any liability for loss of business, loss of profits, loss of anticipated savings, loss of or damage to data, third party claims or any consequential loss...."

Based on the High Court's findings that the air conditioning was defective and that Regus had breached contract, it was held that Epcot was entitled to recover damages.

The more significant aspect is that the High Court held that the so called exclusion clause did not fulfil the test of reasonableness as it was too broad in a way that effectively depirved Epcot of any legal remedy for Regus's failure to ensure that a basic service like air conditioning is tackled properly.

Naturally, Regus appealed. The Court of Appeal did not observe any inequality of bargaining power between Epcot and Regus and overturned the High Court decision. The Court of Appeal held that the exclusion clause fulfilled the test of reasonableness. It is clear that the signal was that courts must continue to respect the contractual terms which have been freely negotiated by the concerned parties.

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