October 2004
Volume 1, Number 1
Table of Contents

Quality Content Helps Promote Your Practice

People usually visit and return to websites for one reason—to access quality content.  This means that your website must generate fresh and compelling information on a regular basis.  NextClient’s Web Content for Lawyers TM is a turnkey service that delivers seamless, private-labeled electronic newsletters directly to your website every week.  Written for the consumer audience and designed to highlight your area of practice, these e-newsletters do not attempt to give categorical interpretations of the law, legal commentary, or suggestions that would promote legal self-reliance.  Rather, the information serves as a foundation to open further communication with your current and prospective clients. Support your website presence with quality content and you will transform your internet presence into an information destination worth returning to often.  

To see available practice areas and preview sample articles, visit: http://www.nextclient.com/products/webContent_practice_area.jsp

The following are two sample articles from this NextClient service:


Kobe Bryant, the 25-year-old guard for the Los Angeles Lakers, was accused of sexually assaulting a 19-year-old Colorado resort employee on June 30, 2003.  If convicted, he faces four years to life in prison or 20 years to life on probation.  Among numerous other legal challenges to the prosecution’s case against him, Bryant’s defense team has attacked the constitutionality of Colorado’s rape shield law.   

Basic Legal Principles

Rape shield laws have been statutorily enacted across the nation.  In general terms, rape shield laws tend to prohibit the defense from introducing an alleged victim’s prior sexual history into evidence.  By limiting the defendant’s use of a victim’s sexual past, the laws attempt to prevent this evidence from being unfairly used to discredit the victim’s credibility. 

Rape shield laws are intended to protect victims of sexual assault from being humiliated at trial by the disclosure of intimate details of their past.  These laws are also intended to encourage victims of sexual assault to alert law enforcement authorities of the attack, as opposed to keeping it secret. 

Without rape shield laws in place, victims may hesitate to disclose the incident to authorities, for fear that details regarding their sexual pasts will ultimately be disclosed.  Such disclosure would likely harm not only their reputation, but also result in situations where arguably irrelevant information regarding their past is used against them in court. 

The Bryant Case

At issue in the Bryant case is Colorado’s 30-year-old rape shield law.  Under this law, evidence of specific instances of the victim’s prior or subsequent sexual conduct is presumed to be irrelevant, and consequently inadmissible into evidence.  To overcome this statutory presumption, the defense must prove otherwise.  In other words, in order to present the details of the victim’s sexual history to the jury, the defense attorneys must first convince the judge that the evidence is relevant.

In the alternative, defense attorneys may show that the evidence of sexual conduct should be allowed under a portion of Colorado’s rape shield law that sets forth exceptions to the general rule that such evidence is presumed irrelevant.  For example, the statute sets forth the following exceptions:

  • Evidence of prior or subsequent sexual conduct with the defendant
  • Evidence of specific instances of sexual activity showing the source or origin of pregnancy, semen, disease, or other similar evidence of sexual intercourse offered to show that the defendant did not commit the act in question

To raise the issue at trial, Colorado’s law requires defense attorneys to file a motion with the court explaining why the evidence should be admitted.  In the Bryant case, for example, his attorneys have argued that evidence of the alleged victim’s sexual conduct is relevant to determine whether her injuries may have been caused by other men. 

Comparison to Other State Rape Shield Laws

Although many states have enacted rape shield laws that specify exactly what kind of evidence may be admitted at trial, legal scholars have noted that Colorado’s law grants the judge fairly wide discretion in determining whether information is relevant (and therefore, admissible).  Further, while many states create an absolute bar to the presentation of such evidence, Colorado merely creates a presumption that such evidence is irrelevant.  As noted, this presumption can be overcome by argument. 

Bryant’s Legal Challenge
Bryant’s defense team launched an attack on the constitutionality of Colorado’s rape shield law, arguing that the law violates a defendant’s constitutional right of equal protection.  On June 10, 2004, the trial court rejected the defense’s attempt to overturn Colorado’s rape shield law.  Judge Terry Ruckriegle noted that the rape shield laws were enacted to provide victims with important protections, but still allows sexual history to be admitted when relevant.

On July 23, 2004, Judge Ruckriegle ruled that information regarding the accuser’s sexual activities during the three days prior to her July 1, 2003 hospital examination may be admitted as evidence.  On August 16, 2004, the Colorado Supreme Court upheld Judge Ruckreigle’s July 23 rd ruling without comment.


Many people enter into a “structured settlement” as a result of recovery on a legal claim, such as personal injury, medical malpractice, or workers’ compensation.  A “structured settlement” takes a lump-sum award and turns it into a series of payments that may last for a specified period of time.  This is usually accomplished by the purchase of an “annuity contract.”

Annuity contracts are commonly sold by certain insurance companies.  A lump-sum “premium” is paid for a guaranteed stream of future payments.  However, the recipient’s circumstances can change, prompting some recipients to sell the rights to the periodic payments for immediate cash.

Sale of the Rights to Structured Settlement Payments

There are numerous entities willing to purchase a stream of payments, whether from a structured settlement or other source, such as lottery winnings. The process usually begins with calculation by the purchaser of the “net present value” of the settlement payments (NPV).  NPV is basically the current value of a future payment. For example, if a recipient is entitled to receive $100 ten years from now, that right is worth less than $100 right now, due to inflation and other factors.  By applying an accepted “discount” percentage rate, NPV can be calculated.

Purchase options may include:

  • Full purchase – the purchaser commonly calculates NPV of the payments and offers a lump sum, usually substantially less than the total initial amount or even the NPV
  • Purchase of a specific number of payments – only a specific number of the future payments are purchased at a discounted NPV rate
  • Purchase of a portion of each payment – the purchaser acquires only a right to a certain percentage of each payment, with the balance to the original recipient

Legal Procedures Necessary for Sale

Most states have laws that regulate the purchase of the right to structured settlement payments.  These laws commonly require, among other things, specific, written disclosures regarding the transaction, such as fees, commissions, and discount rates, and also require court approval prior to the actual sale. 

Federal Regulation of Structured Settlements Purchases

As part of the “Victims of Terrorism Relief Act of 2001,” the United States Congress enacted a law applicable to the sale of structured settlements (the Act).  The Act requires that all sales, assignments, transfers, or encumbrances (i.e., borrowing money secured by the settlement payments) of structured settlements be approved by a state court.  The Act does not mandate the procedure, but requires states to evaluate whether the sale is in the best interests of the seller, taking into account the welfare and support of the seller’s dependents, and violates no federal or state law or court order. 

Once the court has determined that the sale qualifies, it must issue a “qualified order” approving the transfer or sale. In addition, a “model act” intended to regulate such sales, has been adopted by most states.

Effect of Failure to Comply With the Act

If the parties fail to obtain a “qualified order,” the Act imposes on “any person who acquires directly or indirectly structured settlement payment rights in a structured settlement factoring transaction a tax equal to 40 percent of the factoring discount.”  The “factoring discount” is an amount equal to the difference between:

  • The gross total, undiscounted sum of the payments purchased minus
  • The total amount actually paid by the purchaser

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