Irwin & Morris

Attorneys at Law

Recent News:

Co-Parenting in the time of COVID-19 (Coronavirus) By Jacqueline R. Moss, Esq. and Tuck Irwin, Esq. - May 21, 2020

The current public health crisis creates special challenges for co-parenting. Parents may disagree about appropriate precautions for children and may have amplified concerns about children who reside in two households.

Here is some information to help you decide how to navigate your co-parenting:

First and foremost, co-parenting requires that parents be patient and flexible. Compromise is a way of life for co-parents. This is especially so in these difficult times. Be prepared to listen to your co-parent and be prepared to compromise, even (especially) if you disagree. We encourage you to view “Co-Parenting and the Covid-19 Pandemic” video, and other resources made available by the Kids First Center.

Second, existing court orders establishing parental right rights or setting a child contact schedule remain in effect unless and until they are modified by the court.

● Adjustments may be inevitable, but the closer you can adhere to the original court orders, the less the likelihood that you will suffer legal consequences later.
● Any necessary adjustments that you and your co-parent make to a schedule should be made by agreement and preferably in writing.
● You may travel out of the home for a child exchange. “Travel required by … court order” is an “essential activity” exception to the Governor’s “stay at home” order.

Third, the Maine courts are open, but conducting hearings on a very limited basis. Contested family matters will only be heard in the case of “extraordinary and urgent circumstances.” Unfortunately, the court has not yet been able to conduct a meaningful number of family matter hearings by video or over the internet. Certain matters may be handled by affidavit or even by telephone.

Finally, the court processes are delayed, but the legal process has not come to a halt. Lawyers are working diligently to resolve issues by agreement. Motions to modify, motions to enforce and motions for contempt may still be filed. These motions may trigger discussions and resolution and may be necessary to preserve your right to a remedy when the court is finally able to address your motion in open court.

If you have questions regarding your family matter, seek guidance from your lawyer or call Jackie Moss at Irwin & Morris.

Disclaimer: This article is intended to provide general information about Maine law. The publication of this article does not constitute an attorney-client relationship between the author and the reader.

COVID-19 (Coronavirus) and its Impacts on Maine’s Jail Population By Eric S. Thistle, Esq. - May 21, 2020

It likely comes as no surprise that COVID-19 poses a substantial risk to prisoners and corrections officers in Maine’s county jails and prisons. The jails in Maine, working in concert with judges, prosecutors and defense attorneys have significantly reduced Maine’s inmate population by using some of the alternatives to incarceration outlined below. These measures were arguably needed prior to COVID-19, but even more so during this pandemic.

For participants in the criminal justice process, concerns over COVID-19 are at the forefront of everyone’s mind, and are being taken very seriously. Law Enforcement Officers are using good judgment and issuing more summonses instead of arresting people and bringing them to jail. Judges are setting cash bail at lower amounts with more strict non-financial conditions. And prosecutors are exercising the vast discretion afforded to them, and weighing the risks in the Maine jails against the potential risk to the communities they serve.

Maine law provides people accused or convicted of crimes numerous alternatives to incarceration that balance the seriousness of the conduct against the risks at the jails, including COVID-19. As an example, for people accused of a crime, a judge can impose conditions of release which require house arrest or GPS location tracking (ankle monitor). Additionally, Maine has a pre-trial supervision program known as Maine Pretrial Services (“MPS”), which monitors defendants released on bail who otherwise would be held in custody awaiting trial. MPS has various conditions, including random drug testing and weekly check-ins, which judges rely on to alleviate their concerns about releasing a defendant back into the community.

Maine also has many options to avoid incarceration for people convicted of criminal offenses. Judges around the state are continuing to sentence defendants to fully suspended sentences with probation, meaning there is no jail sentence upfront, but the defendant must abide by conditions of probation or risk going to jail. Across Maine there are also many “Specialty Courts,” such as Drug Court or Veterans Court, which allow a convicted defendant to avoid incarceration and engage in services or treatment that they otherwise would not have access to. Additionally, there are options to defer sentencing after a plea of guilty to let the defendant earn a sentence that doesn’t include jail time (or sometimes even get the charge dismissed altogether).

Lastly, even individuals currently serving a sentence have the ability to petition for early release and monitoring under Maine’s Community Confinement Monitoring Program.

In these troubling and uncertain times, people accused or convicted of crimes should not have to put their health and safety in jeopardy at the jails and prisons unless absolutely necessary to protect public safety. If you or a family member are facing criminal charges with the possibility of incarceration, contact Attorney Eric Thistle at the law firm of Irwin & Morris to discuss your options. Avoiding a jail sentence is not only possible, it should be the goal in every case during the COVID-19 pandemic.

Disclaimer: This article is intended to provide general information about Maine law. The publication of this article does not constitute an attorney-client relationship between the author and the reader.

Previous Posts:

What is an Examination Under Oath? By Colton P. Gross, Esq. - December 17, 2019

Most property owners that have homeowner insurance have never heard the term “examination under oath." If you are reading this article it is probably because an insurance adjuster, or attorney representing your insurance company, has asked you to sit down for an examination under oath (“EUO”). If you are unlucky enough to have been in a lawsuit and had to participate in a deposition then you have been through a similar process, because an EUO is about the same as having your deposition taken. If you have no litigation experience you may have no clue as to what an EUO is like. Regardless of which category you are in, here are some thoughts we have on this topic based on our experiences over the years in dealing with EUOs while representing homeowners and businessowners.

Almost all insurance policies require that you attend and partake in the EUO if the insurance company requests it. Usually an attorney for your insurance company will contact you to set up the examination, and will probably ask that you produce all sorts of personal information before the examination happens. The insurance company will want lots and lots of documents, everything from tax returns to phone records to credit card statements. The insurance company is doing this because they are suspicious about your claim. The suspicion might relate to the cause of the fire (perhaps they think you started it) or the suspicion might be regarding whether you lost less in the fire than you are claiming (this is another type of insurance fraud). If the insurance company can establish a reason to deny your claim, it will do so; therefore, the EUO is very serious business.

After the insurance company has received and reviewed the materials you provided the EUO will actually happen. Here are some other things to keep in mind about EUOs:

● You will likely be required to sit through this examination before your carrier will make any additional payments on your claim. It is a requirement of most policies that you attend and reasonably cooperate at the examination.
● The examination will be recorded (and perhaps videotaped). A court reporter will be present.
● When the event is finished you have a right to a copy of the transcript that is generated as a result of the EUO.

The scope of the questions asked at an EUO tends to be broad, and without proper preparation, can be overreaching. Determining what questions are relevant and reasonable is largely dependent upon the individual circumstances of your loss. You can expect that the attorney for the insurance company will prepare a very thorough line of questions for some matters you may consider personal and private. Again, you are likely required by your policy to sit for a complete examination under oath and to comply with a reasonable investigation. What is reasonable and unreasonable depends on the circumstances of each case.

Many property owners prepare for the EUO by focusing on the details of the actual loss (such as the things that happened on the night or day of the loss), thinking this is the only matter up for discussion. Unfortunately, discussion of the actual loss event is not the only talking point for the insurance company’s attorney. There may be questions about prior losses you suffered, other claims of many types, your criminal history, your medical history, the identity and location of friends and family members, and your financial condition in the past, at the time of the fire or loss, and thereafter. In short, the EUO will make you feel like you are baring your soul and in many ways that is precisely what you are doing. Remember, the insurance company runs a business, and does not want to pay out money on claims unless it is obligated to do so. If there is a reason it can use to refuse to pay your claim, the insurance company wants to find it. It can be an exhausting and frightening process.

All of this is to say that the EUO is part of a process can be confusing and overwhelming. Insurance companies have powerful attorneys working to further their best interests and your average person is not an expert in insurance law. The EUO is a tool that the insurance industry uses to their advantage. You must keep in mind the fact that your responses matter, and might control the outcome of your claim. Take the time to discuss your examination under oath and what to expect with one of our attorneys at Irwin & Morris today.

Do I Have a “Workers Compensation” or “Personal Injury” Case? - June 8, 2017

When you are injured on the job, your first concern is recovering to the point where you can return to work. Recovery often includes time off from work, medical expenses, and a general disruption to your life. Injuries place a huge burden not only on you, but also on your family.

Workers Compensation covers most workplace injuries that require you to miss work, including those caused by you (although some exceptions apply). For example, if you bend over to pick up something heavy at work and you injure your back, you are entitled to workers’ compensation benefits even though nobody (including you) made a mistake or did anything wrong to cause the injury. The system is designed to quickly assess injuries, begin treatment, and offer compensation to the injured party in the form of medical coverage, lost wages, and retraining if needed. However, compensation is limited to actual treatment expenses incurred, while lost wages paid are typically two-thirds of your average gross weekly wage. In most cases, this payment can continue for up to 520 weeks but is limited by your capacity to return to work, even partially.

A Personal Injury claim differs from Workers Compensation in two important ways. First, it can only be applied if someone other than the injured person did something wrong, resulting in the injury. Second, in most instances the only limitations on compensation are defined by the award or settlement of the case. Recovery in personal injury cases can include compensation for “pain and suffering”, loss of enjoyment of life, as well as punitive damages if gross or intentional, wrongful conduct can be proven. Successful personal injury cases can result in compensation well above the million dollar range depending on the injury, as well as the level of wrongdoing.

When a person is injured on the job, and the injury is caused by someone other than a co-worker, a personal injury case can be filed concurrently (together) with a workers’ compensation claim. The workers’ compensation claim is filed against the employer, but the personal injury claim will not be filed against your employer. It will be filed against the person or company that caused the injury. For example, if you are driving a delivery truck while working and are hit by another vehicle that ran a red light, you may claim Workers Compensation from your employer and you may also file a personal injury case against the driver of the other vehicle. The difficulty with Personal Injury cases is that negligence or some other “mistake” or wrongful conduct by another person must be proven. Without such proof, a personal injury award cannot be given.

Talk with us at Irwin & Morris if you have been injured on the job and are unsure how to proceed in order to receive compensation. We will provide you with a free initial consultation to evaluate your case. We can help you to move your case forward regardless of which option that you should choose, so that your primary focus will be on your recovery.

Should an Employer Direct Your Care After a Work Injury? - Nov 7, 2016

After your injury, your employer or insurance company might tell you that you must see a specific doctor or other health care provider. Often they send you to their “company” health clinic because they hope their doctors will appreciate the business, and in turn cooperate with their efforts to keep worker’s compensation costs down.

What the employer or insurance representative usually do not tell you is that the workers’ compensation law in Maine only gives them control over your care for the first 10 days after you begin treatment for your injury. After that, you are entitled to select your medical providers without interference from your employer or the insurance company. Additionally, even during this 10-day period you may go to a doctor or provider you choose; however, you might be held responsible for the bills for that 10 days of treatment.

The employers and insurers use their control over the first 10 days of treatment as a way to start the process with doctors and clinics of their choosing, and often the injured worker simply keeps treating with those same providers. This is exactly one of the goals the employers or insurers are trying to achieve.

We at Irwin & Morris strongly advise our clients to be wary of such tactics. We encourage clients to seek care from your trusted primary care physician or other medical professionals that have no connection to your employer or the workers’ compensation insurer.

It is vital to both your workers’ compensation case and to your own recovery that you obtain excellent and unbiased medical care. To that end, often employer-directed care is not in your best interest.

Harassing and Bullying in the Workplace After a Work Injury - Oct 3, 2016

All too often a worker is injured only to suffer the further insult of having their employer or supervisor bullying them in hopes that the worker will abandon their Workers’ Compensation claim. This bullying can take many forms including ignoring work restrictions, implying that the worker is “faking” or exaggerating the injury, suddenly changing work hours, spreading rumors, filing false disciplinary actions, or even firing the worker.

This harassment results in further stress, anxiety and even post-traumatic stress disorders. The bullied worker often feels helpless in the face of this onslaught by management. This bullying is a violation of the Maine Workers’ Compensation Act and should not be allowed to go unchallenged. While discrimination is often difficult to demonstrate - you can greatly aid your case by following four steps.

1. Keep a notebook that documents every instance of bullying - for example write down every conversation or action taken by your boss that discriminates against you. (Be sure to list the date, time and anyone else who heard or saw the discriminatory act.)
2. Clearly present to your boss or Human Resource person your work restrictions - these should be provided to you by your doctor and are on a one page “M-1 form.”
3. Get a copy of your personnel file - you are legally entitled to your file and having a copy will help assure that your employer does not add false complaints or disciplinary actions.
4. If the bullying does not end, or if you suspect that you could be fired or let go from your job, you need to contact a lawyer immediately.

The Workers’ Compensation Board can award you back wages, reinstate fringe benefits, help you get your job back, and gain payment of your attorney fees if your case is successful.

Texting While Driving

Maine law prohibits texting while driving. This means that the driver of a vehicle cannot use their cell phone for text communication (text messages, email) while they are behind the wheel. The reason for this law is to improve traffic safety – texting while driving has been cited by Maine State Troopers as being a preventable cause of accidents and distracted driving.

“Texting” has become one of the largest uses of cell phones in the last few years, especially among the younger population. Beyond the physical distractions of texting, the instant nature of responding to or writing a text message can take away from the alertness of a driver. A driver 23 times more likely to be involved in an accident while texting.

The imposed fine is $250. Subsequent violations could result in increased fines and penalties as well as license suspension. Signals that a driver is texting while driving include:

• Head bobbing
• Swerving
• Delayed reaction to traffic signals
• Eye gaze looking down
• Body position

Similarly, if you receive a text message and are trying to read it while you are driving, you could be fined for it. All of these efforts are designed to remove distractions that drivers in Maine are facing. With the popularity of cell phones, particularly smart phones, it is easier for drivers to think that they can just quickly check. All digital devices fall under the umbrella of this law – iPads, Blackberries, Kindles, etc.

Is Talking On The Phone Better Than Texting While Driving?

When technology brought us the cell phone, we marveled at how innovative it was going to make our lives. It seemed as if life couldn’t get any better- until texting was invented. But now, all of the convenience is lost on the fact that people are being injured and killed at an alarming rate from texting while driving. Does this make talking on a cellphone while driving safer? Not really.

Whether you are talking while driving or texting, it still falls under the category of being a “distracted driver”. What does this category mean? Distracted drivers are made up of different types including those who text or talk on cell phones, eat or commit any other action that diverts attention away from the road.

According to statistics from the National Highway Traffic Safety Administration, there were almost 33,000 automobile fatalities last year- not to mention injuries. Each day, more than 15 people are killed and another 1,200 injured on our highways because of a distracted driver.

Statistic show that people who text while driving take their eyes off of the road 400 times more than a driver who is not using a cell phone. That means that during drive time, their eyes are off of the road for 4.6 out of every 6 seconds. But drivers are not only texting, but dialing numbers, answering phone calls, checking voicemail and searching on the Internet.

Anything that take your eyes off of the road is a distraction. Science shows us that there are three main forms of distraction:

• Manual distraction, which means that you physically remove your hands from the wheel for various reasons
• Visual distraction, which involves taking your eyes off of the road
• Cognitive distraction, which means that you are not concentrating on what you are currently doing. In this case, it refers to driving.

Any time you practice one of these forms of distraction, you are creating a dangerous situation for yourself, anyone else who is in the car with you and anyone on the road near you. Your action is putting all of those lives in jeopardy.

Now, consider texting while driving. This is the most dangerous of scenarios because it incorporates all three forms of distraction. But so does talking on a cell phone. This is why talking and texting are no different. Each takes your hands away from the wheel, takes your eyes off of the road and focuses your attention onto something other than driving.

While talking on a phone might not take your eyes from the road for as long as texting, it is still as dangerous since an accident only needs a split second in order to occur. Traveling at 60 miles per hour means that for every second your eyes are off of the road, you travel an extra 88 feet. A lot can happen in 88 feet.

Since texting while driving takes your eyes off the road 400 times as much as an undistracted driver, even if cell phones were only one-fourth as bad, that’s still 100 times more than it should occur.

Our experience can help you.

Contact us today to discuss your case.

Irwin & Morris Locations


183 Middle Street
P.O. Box 7030
Portland, Maine 04112
Phone: 207.772.0303

New Gloucester
(Pineland - Auburn Hall)

60 Pineland Drive, Suite 202
New Gloucester, ME 04260
Phone: 207.725.0000

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