“Lost In Fine Print” – Documentary on Forced Arbitration.


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Documentary on Forced Arbitration, by Nancy Kim, ContractsProf Blog


The Alliance for Justice has released a documentary on forced arbitration called Lost in the Fine Print.  It’s very well-done, highly watchable (meaning your students will stay awake and off Facebook during a viewing), and educational.  I recently screened the film during a special session for my Contracts and Advanced Contracts students.  It’s only about 20 or so minutes and afterward, we had a lively discussion about the pros and cons of arbitration.  We discussed the different purposes of arbitration and the pros and cons of arbitration where the parties are both businesses and where one party is a business and the other a consumer.  Many of the students had not heard about arbitration and didn’t know what it was.  Many of those who did know about arbitration didn’t know about mandatory arbitration or how the process worked.  Several were concerned about the due process aspects.  They understood the benefits of arbitration for businesses, but also the problems created by lack of transparency in the process.  I thought it was a very nice way to kick start a lively discussion about unconscionability, public policy concerns, economics and the effect of legislation on contract law/case law.

I think it’s important for law students to know what arbitration is and it doesn’t fit in easily into a typical contracts or civil procedure class so I’m afraid it often goes untaught.  The website also has pointers and ideas on how to organize a screening and discussion questions.

Is Eyewitness Testimony Always Credible?


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Why Eyewitnesses Get It Wrong, by Scott Fraser, TED Talks


[interactive Transcript at http://tinyurl.com/l6fokjh.] -CCE

Scott Fraser studies how humans remember crimes — and bear witness to them. In this powerful talk, which focuses on a deadly shooting at sunset, he suggests that even close-up eyewitnesses to a crime can create ‘memories’ they could not have seen. Why? Because the brain abhors a vacuum. Editor’s note: In the original version of this talk, Scott Fraser misspoke about available footage of Two World Trade Center (Tower 2). The misstatement has been edited out for clarity.

Wall Street Executive Library.


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Wall Street Executive Library


Similar to www.ceoexpress.com.  Includes Weather, Flights (look up any airline’s flight information), Date & Times, Tools, Phone Directories, Personal, Newspapers (domestic and international, news wires, markets, sports, and more), Radio, Magazines & Journals, etc., Web Search & Computer, Business Toolkit, Government Research, Financial Markets Research, Company & Industry Research, Business & Legal Research, Marketing & Advertising Research, Statistics & Economics Research. -CCE

Victim’s Clicking Noises Qualify As Dying Declaration Under Hearsay Exception.


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Die Another Day: Ohio Court Finds Victim’s Clicking Noises Qualify as Dying Declarations, by Colin Miller, Editor, EvidenceProf Blog


According to an article in the Ledger-Enquirer,

Three years ago Calvin Grimes lay in intensive care, paralyzed from the neck down, with a gunshot wound to his windpipe.

He could not speak. All he could do was click with his mouth.

In the hospital with machines breathing for him, he could not tell Columbus police who fired the shots Aug. 19, 2010, that left him slumped in a car at 543 Third Ave., with two .40-caliber bullets lodged in his trachea and his spinal canal, and with exit wounds from .22-caliber bullets in his left wrist, upper left thigh and right buttock.

Because Grimes could not vocalize the names of his assailants, Detective Wayne Fairburn improvised as he questioned Grimes in the hospital Oct. 11, 201[0].

Fairburn reported Grimes first mouthed the name ‘Jarvis” when asked who shot him. The detective then wrote the alphabet out on his note pad, and asked Grimes to make the clicking noise as Fairburn pointed to each letter, signaling the sequence to spell names.

Using this method, Fairburn got Grimes to spell ‘Jarvis Alexander’ and ‘Josh Leonard.’ Two days later the officer returned with photographs of those suspects, which Grimes identified as the men who shot him.

Later Grimes was fitted with a device that enabled him to speak, and relatives reported he told them the same names.

Should Grimes’s ‘statements’ be deemed admissible as dying declarations?

That’s a tough question, but one that the trial judge answered in the affirmative, ruling that Fairburn and Grimes’s family could testify because Grimes died on June 26, 2011. Was this the correct ruling?

Ohio Rule of Evidence 804(B)(2) provides an exception to the rule against hearsay

In a prosecution for homicide or in a civil action or proceeding, [for] a statement made by a declarant, while believing that his or her death was imminent, concerning the cause or circumstances of what the declarant believed to be his or her impending death.

The primary question was whether Grimes’s statements were made while he believed his death to be imminent. The evidence showed that ‘Grimes eventually was able to leave the hospital to live with his mother, but an infection in his torso sent him back. That’s when Grimes told his mother, Mama, I’m right with God. You’ve got to forgive Joshua and Jarvis because I have.’

The article doesn’t make the time line in the case 100% clear, but it does raise this possibility: Grimes first identified his assailants when he did not believe his death was imminent, and Grimes then re-identified his assailants when he did believe his death was imminent. And if that were the case, I’m not sure the dying declaration exception should apply.

The typical case of the dying declaration exception applying consists of a victim being shot, stabbed, etc. and telling the EMT, doctor etc., ‘Defendant did this’ as he believes his death to be imminent. But what if a victim is shot, and the EMT tells the victim he has a good chance of surviving. Then, the victim says, ‘Defendant shot me.’ Then, days later, the victim’s condition worsens, and he says, ‘Tell defendant I forgive him’ while believing his death to be imminent.

No, this might or might not be the case for Grimes. But, assuming it is, should a subsequent statement of identification be admissible under the dying declarations exception?

Does The Law Really Require Legalese?


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You Think the Law Requires Legalese?, by Joseph Kimble, Legal Writing Editor Blog


A classic. -CCE

There’s a sign that, in some configuration, appears on every gas pump in Michigan, although most drivers probably don’t even notice it anymore. You can see one in the photo to the right.

Let’s put aside the all-capitals, which are notoriously hard to read. And never mind that the first and second items aren’t exactly parallel. (‘Stop engine. Don’t smoke.’) The trouble — linguistically, stylistically, semantically — shows up in the third item.

Look at that little sentence. We get an explicit subject, A person, which really throws off the parallelism. The lawyer’s shall — now corrupted and ambiguous from misuse — does not belong even in statutes or regulations, let alone on a gas pump. Remain in attendance? Oh, please. The first of is unnecessary. And for the big comedic finish, we’re seemingly told that the nozzle must be able to see the person.

The fix isn’t hard: ‘You must stay outside your vehicle and be able to see the nozzle.’ Or for parallelism with the first two items: ‘Stay outside your vehicle, and make sure you can see the nozzle.’

Now, are people likely to misunderstand the pump version? No. Is this the worst public writing on the planet? Obviously not. But by tracing this mundane example to its source, anyone who cares about clarity in legal and official documents can learn a set of critical lessons. . . .


Thingful® — Powerful Search Engine for the Internet of Things.


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Search Engine for the Internet of Things, by Sabrina I. Pacifici, BeSpacific Blog


‘Thingful® is a search engine for the Internet of Things, providing a unique geographical index of connected objects around the world, including energy, radiation, weather, and air quality devices as well as seismographs, iBeacons, ships, aircraft and even animal trackers. Thingful’s powerful search capabilities enable people to find devices, datasets and realtime data sources by geolocation across many popular Internet of Things networks, and presents them using a proprietary patent-pending geospatial device data search ranking methodology, ThingRank®. If you are concerned about asthma, find out about any air quality monitors in your neighbourhood; somebody working with a Raspberry Pi can find others round the corner using the same computing platform; if you notice a ship moored nearby, discover more about it by tracking it on Thingful, or get notified of its movements; a citizen concerned about flooding in a new neighbourhood can look up nearby flood monitors or find others that have been measuring radiation. You might even watch the weekly movements of a shark as it explores the oceans. The possibilities are unbounded! Thingful also enables people and companies to claim and verify ownership of their things using a provenance mechanism, thereby giving them a single web page that aggregates information from all their connected devices no matter what network they’re on, in categories that include health, environment, home, transport, energy and flora & fauna. Users can also add objects to a Watchlist in order to keep track of them, monitor their realtime status and get notifications when they change.’

What Happens On Facebook Doesn’t Always Stay On Facebook.


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Fun with Facebook, by Dan Nabel, Law Law Land Blog


I recently attended a presentation by retired judge Jacqueline Connor on the effect of social media in the legal system.  After listening to her talk about a number of highly amusing cases, I went online to see just how many such cases are now out there.  I was shocked to find that in the month of February 2014 alone, there were over 100 legal opinions issued in the U.S. just involving Facebook.  While some of these cases were more disturbing than amusing, there were a few gems that cried out to be written about. . . .

Ignore Duty For Litigation Holds At Your Peril.


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Don’t Hit That Delete Button: An Update On Litigation Holds For Employment Claims, by Andrew P. Sherrod, Inside Counsel Magazine


By now, most companies are — or at least should be — well aware of their obligation to preserve relevant documents and electronic information when they reasonably anticipate litigation. This duty can arise in many contexts, but employment complaints are a prime example. Despite the multitude of judicial decisions and articles on the subject, companies continue to hinder their defense of employment claims by failing to undertake appropriate preservation measures.

The consequences of failing to implement and monitor a litigation hold in response to an employment claim were reinforced in a recent decision from the United States District Court for the Southern District of New York in Hawley v. Mphasis Corp.

In Hawley, an employee of the defendant company claimed that he was discriminated against on the basis of his ethnicity in a number of ways during the course of his employment. The employee filed an EEOC charge of race and national origin discrimination in September 2009. The company terminated the employee in November 2009, and he thereafter filed a second EEOC charge, which was mailed to the company in December 2009. The employee then filed a discrimination suit in January 2012 against the company under 42 U.S.C. § 1981 and state civil rights laws.

During his employment, the plaintiff received a company-issued laptop computer on which he was required to perform his work. After his termination, the employee returned the computer to the company in December 2009. The next month, the company reassigned the computer to another employee, permanently deleting all of the plaintiff’s data.

The company also waited until April 2012 — almost three months after the filing of the plaintiff employee’s lawsuit and more than two years after his EEOC charges — to instruct the plaintiff’s supervisor and several other employees to preserve all documents and communications related to the plaintiff. . . .

Writing A Business Memorandum.


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The Business Memo, College of Humanities and Natural Sciences, Loyola University New Orleans


The memorandum, usually called a memo, is a common form of internal communication in business and academia. Memos have many purposes, including informing employees, giving directions, outlining procedures, requesting data, supplying responses, and confirming decisions. But essentially there are three basic reasons to write a memo:

  • To persuade to action (we should do this)
  • To issue a directive (do this)
  • To provide a report (here’s what was done, or here’s what we found out)

Every good memo includes:

  • A clear statement of purpose, stated upfront: I am writing because . . .
  • Information about what the reader needs to know: The facts are . . .
  • Statement of any action requested, ordered, or undertaken: I will, or I propose that you . . .

General points to remember . . . .

Courts Block Voter ID Laws — Expect Appeals.


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Courts Block Texas, Wisconsin Voter ID Laws, by Sarah Childress, Frontline, PBS


A federal court struck down Texas’ voter ID law on Thursday, comparing it to historical attempts by some southern states to prevent African-Americans from voting in the post-Civil War era.

Separately, the Supreme Court granted a stay in a case challenging Wisconsin’s voter ID law, blocking it from taking effect for the November election.

The decisions come amid a flurry of court challenges to laws states have implemented in the past year that impact how voters are able to cast their ballots in the November election. The midterms will determine which party controls the Senate for the next two years, and several races are incredibly close.

The Supreme Court ruled last month that Ohio can cut its early voting days, and earlier this week, it allowed North Carolina to eliminate same-day registration and ban voters from casting ballots outside of their own precinct.

At FRONTLINE, we’ve been tracking changes to state voting laws nationwide over the last five years. Some of the most significant changes — and court challenges — have come just since 2013.

Texas’ voter ID law, which took effect last year, was considered among the most strict. It required voters to present one of a handful of photo IDs. Those who couldn’t present proper ID risked being turned away at the polls. Obtaining an ID presented an obstacle for some low-income voters who couldn’t afford to pay for the underlying identity documents, such as a birth certificate, which costs $25.

Officials said the law was intended to prevent election fraud, but in-person voter fraud, which the ID requirement would thwart, is rare. A major in the Texas attorney general’s law enforcement division, Forrest Mitchell, told the court that only two people were convicted of impersonating another voter in the 10 years before the ID law was passed in 2012; 20 million were votes cast during that time. In one case, a man attempted to vote as his brother, who was incarcerated. He was caught at the polls. In another, a man voted as his deceased father.

At the same time, by Texas’ own estimate, roughly 800,000, or 6 percent of registered voters lacked a driver’s license or personal ID card, meaning they might not be able to vote under the law. Of those, the state said nearly 11 percent were Latino. It didn’t break out numbers on African-American voters.

Although the law was passed in 2012, it was blocked under a provision of the Voting Rights Act for imposing ‘strict, unforgiving burdens on the poor.’ The court noted that ‘racial minorities in Texas are disproportional likely to live in poverty.’

In 2013, when the Supreme Court invalidated that section of the law in Shelby v. Holder, officials said the law would take effect ‘immediately.’ The Justice Department and civil rights groups again challenged the law in court.

The law was in effect for the first time last year, during which several people were turned away from the polls. They included Floyd Carrier, an 83-year-old African-American veteran who testified against the law in court. Carrier had three forms of ID when he went to the polls last November, but he still wasn’t allowed to vote.

Neither his expired driver’s license or federal veteran’s card, nor his voter registration card qualified under the state’s new voter ID law. And Carrier was born in a rural area and didn’t have a birth certificate to obtain a new state-issued voter ID. In this small town of 1,160, the poll workers knew Carrier, but had to deny him a ballot. Carrier’s son, Calvin, testified that he has tried to obtain a birth certificate for his father, picking up the cost, but the old records have clerical errors that render the document unusable.

In her ruling, which referenced Texas’ entrenched history of discrimination, Judge Nelva Gonzales Ramos of the U.S. Court of the Southern District of Texas found that the law

has an impermissible discriminatory effect against Hispanics and African-Americans, and was imposed with an unconstitutional discriminatory purpose.’ She also wrote that the law constitutes a ‘poll tax,’ a measure implemented in southern states after the Civil War that required voters to pay a fee in order to cast a ballot. Since most African-Americans couldn’t afford the fee, they weren’t allowed to vote.

The Texas attorney general’s office said it would ‘immediately appeal’ the ruling.

Wisconsin’s voter ID law had previously been blocked, but allowed to move forward by a federal appeals court in September. Civil-rights groups challenging the law estimated that roughly 300,000 voters — most of them low-income minorities — did not have an acceptable form of identification. The September ruling also caused confusion because voters had already begun to mail in ballots. Officials announced that those ballots would be thrown out unless voters came back to present some form of ID. The Supreme Court’s ruling means the law cannot take effect for this election.

Corporate Memo Writing Guide.


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The Complete Guide To Writing Corporate Memos, by Vickie Elmer, Quartz Blog


A recent all-staff internal memo from two senior Yahoo executives addressed its readers as ‘pilgrim,’ then ‘sailor,’ and mentioned ‘T-Rex,’ ‘The Itsy-Bitsy Pterodactyl,’ the ‘hippocampian wagons’ and ‘Ayn Randian Objectivism’ all in one paragraph.

That widely ridiculed email served as a reminder that internal memos matter as much as any marketing brochure or press release—especially given how likely they are these days to leak online. ‘What we write in memo form is going to become our business persona,’ says Sandra Lamb, author of How to Write It.

That persona could be someone who speaks in jargon and ‘stilted business-school gobbledygook’—as Microsoft CEO Steve Ballmer did in a memo announcing leadership changes. It could be brutally matter-of-fact, as former Nokia CEO Stephen Elop was in a wake-up call to staff. Or it could be funny and enduringly honest, as Groupon CEO Andrew Mason was when he announced his resignation. Here are some tips to ensure that your memo is clear, effective, and memorable—for the right reasons. . . .

Want Stronger Passwords? Here’s How.


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Make Your Passwords Harder To Crack, by Kerry Davis, PCWorld


There’s nothing you can do if hackers get into a database with your password in it, but you can still protect yourself for all the other worst-case scenarios involving hacking. In this video, we go over ways to make your passwords harder to crack. [Video found at PCWorld link.-CCE]

First, don’t make it easy on hackers by choosing a common password. Splashdata uses security breaches to gather ‘most popular passwords’ lists each year. The word ‘password’, number sequences, and other simplistic phrases or numbers fill the top spots. Also, don’t use your name, a password related to another one you might have on a different site, or a login name.

Instead, experts recommend using 15 characters, upper-case letters, better yet nonsensical words with special characters and numbers inside them.

Need help? Check out some free websites, like Strong Password Generator. This Macworld article on security in the iCloud age also has some suggestions on strong password creation.

Five-Month Suspension Appropriate for Serious and Deliberate Ethical Misconduct?


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Suspension Proposed For Failure To Correct False Client Affidavit, by Mike Frisch, Legal Profession Blog


An attorney who failed to correct his client’s  false affidavit claiming sole heirship in an estate matter should be suspended for five months, according to a report and recommendation of the Illinois Review Board.

Following the death of James Volgar (‘James’) in 2008, Respondent agreed to represent James’ brother, Paul Volgar (‘Paul’), regarding the administration of his brother’s estate. Paul was angry that Margaret Madonis (‘Margaret’), a great-niece who had cared for James during his life, was named as a joint tenant on one of James’ bank accounts. After James’ death, Margaret received about $400,000. Paul wanted this money. Paul told Respondent that he was James’ only heir. Based upon the information he received from Paul, Respondent drafted and filed in Will County an affidavit of heirship and letters of administration stating that Paul was the only surviving heir. The probate court then appointed Paul as administrator of the estate.

In early 2009, Respondent learned that Paul had lied to him and that James had additional heirs. However, Respondent took no steps over the following seventeen months to correct the false affidavit he had filed with the court or to file an amended affidavit of heirship. At hearing, Respondent asserted he failed to amend the affidavit of heirship because he simply forgot about it and forgot about the existence of other heirs. He testified he was more focused on the issue as to whether Paul could obtain the money received by Margaret. The Hearing Board rejected Respondent’s testimony, finding it incredible, and noting that 1) Respondent discussed the existence of additional heirs with various individuals; 2) he conducted research regarding distribution law; and 3) he formulated a potential argument to limit the share of the other heirs. Accordingly, the Hearing Board found that Respondent knowingly failed to correct the false statement in the affidavit. Respondent does not challenge this finding.

Following Paul’s appointment as administrator of the estate, Respondent used the false information regarding heirship to obtain information from financial institutions in an attempt to support Paul’s claims against Margaret. Respondent also sold James’ home in 2009 without notification to the other heirs. Respondent’s mother-in-law was the listing real estate agent and Respondent was the title agent. Respondent took over $9,000 in attorney’s fees from the sale proceeds, most of which was for fees Paul owed him to pursue the claim against Margaret.

In addition, Respondent repeated the false statement that Paul was an only heir in subsequent statements to the court, including in a motion for waiver of a surety bond filed in December 2009. . . .



Garner’s Ten Legal Writing Tips.


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Ten Tips for Legal Writing, by Judith D. Fischer, Legal Writing Prof Blog


Bryan Garner’s latest article in in the ABA Journal is titled Ten Tips for Better Legal Writing. Some Garner of his tips are especially appropriate for law students, who could appropriately paste ‘Don’t rely exclusively on computer research’ on the wall by their work space. That would serve as a reminder that unfocused computer searches are like a box of chocolates–you never know what you’re going to get.  Garner also advises legal writers to be neither too tentative nor too cocksure in their conclusions, both of which are hazards for beginning law students. And Garner’s tenth tip would improve the professionalism of many a student paper: ‘Proofread one more time than you think necessary.’


Huge Cyberattack on JPMorgan Chase and Wall Street – How Far Does It Go?


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Hackers’ Attack Cracked 10 Companies in Major Assault – NYT, by Matthew Goldstein, Nicole Perlroth, and David E. Sanger, New York Times, posted by Sabrina Pacifici, BeSpacific Blog


We have heard of other hacks on that stole information from credit/debit cards and other financial and personal data. This is far more serious. It was first discovered in July, and the investigation is ongoing.  Initial reports of the damage and who caused it have changed as the investigation progresses. -CCE  

‘The huge cyberattack on JPMorgan Chase that touched more than 83 million households and businesses was one of the most serious computer intrusions into an American corporation. But it could have been much worse. Questions over who the hackers are and the approach of their attack concern government and industry officials. Also troubling is that about nine other financial institutions — a number that has not been previously reported — were also infiltrated by the same group of overseas hackers, according to people briefed on the matter. The hackers are thought to be operating from Russia and appear to have at least loose connections with officials of the Russian government, the people briefed on the matter said. It is unclear whether the other intrusions, at banks and brokerage firms, were as deep as the one that JPMorgan disclosed on Thursday. The identities of the other institutions could not be immediately learned. The breadth of the attacks — and the lack of clarity about whether it was an effort to steal from accounts or to demonstrate that the hackers could penetrate even the best-protected American financial institutions — has left Washington intelligence officials and policy makers far more concerned than they have let on publicly. Some American officials speculate that the breach was intended to send a message to Wall Street and the United States about the vulnerability of the digital network of one of the world’s most important banking institutions.’ . .  .

NFPA Paralegal Informal Ethics and Disciplinary Opinions and Articles.


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Positions and Issues – Ethics, National Federation of Paralegal Associations


At this link, you will find documents and articles on paralegal ethics written by members of NFPA and NFPA Informal Ethics and Disciplinary Opinions.

NFPA is not the only national paralegal association to have an ethical code or to public ethics and disciplinary opinions. Also, be advised that those states that have regulated paralegals likewise have ethical requirements. Paralegals are also obligated to follow state ethical rules for lawyers in the states in which they work. Ethical rules and opinions published by the American Bar Association are advisory, not mandatory, on both lawyers and legal support staff.

Therese Cannon and Deborah Orlik have both written excellent books on paralegal ethics. I highly recommend each. If you are researching what ethical guidelines for non-lawyers, your research should include all ethical rules and guidelines that have been set by national and your state paralegal associations, as well as your state bar association.

Ethics for non-lawyer support staff may sometimes have indistinct, grey lines. If you are smart, you will take a step back when you see them. When it comes to ethical considerations, it is always best to proceed slowly or not at all. If you must err, then choose to err with caution. I strongly urge you to back away from anything that might give the appearance of impropriety or a breach of ethics. -CCE

Federal Sentencing Guidelines and Sentencing Table.


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Federal Sentencing Guidelines, by Criminal Defense Lawyer.com


Includes a Sentencing Table and other facts that impact how criminal sentences are determined. -CCE

The federal sentencing guidelines are rules that federal judges are required to consider when sentencing someone who has been convicted of a crime. Intended to give federal judges fair and consistent sentencing ranges to consult when they are handing down a sentence, the guidelines are based on both the seriousness of the crime and the particular offender’s characteristics and criminal record.

The guidelines are not mandatory. (United States v. Booker, 543 U.S. 20 (2005).) But a judge who wants to impose a sentence that is different—whether it’s harsher or more lenient—from the one calculated by using the guidelines must explain the decision.

The United States Sentencing Commission

Federal sentencing guidelines are written by an independent agency called the U.S. Sentencing Commission, which is part of the judicial branch of the federal government. In addition to promulgating the guidelines, the commission advises the other branches of government on criminal policy matters and collects and analyzes crime and sentencing data.

How the Sentencing Guidelines Work

The guidelines assign most federal crimes to one of 43 ‘offense levels.’  Each offender is assigned to one of six ‘criminal history categories,’ based upon the extent and recency of past criminal activity.

The point at which the offense level and criminal history category intersect on the Commission’s sentencing table determines an offender’s guideline range.  To provide flexibility, the top of each guideline range exceeds the bottom by six months or 25 percent (whichever is greater).  Judges are advised to choose a sentence from within the guideline range unless they identify a factor that the Sentencing Commission failed to consider that should result in a different sentence. . . .

For Those Who Have Window’s 10 – New Keyboard Shortcuts!


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These Are Windows 10’s New Keyboard Shortcuts, by Brad Chacos, Senior Writer, PCWorld


The Windows 10 Technical Preview adds all sorts of nifty new features designed to appeal to PC power users, but it also includes some nifty newcomers that you can’t actually see—fresh keyboard shortcuts!

The details come courtesy of Brandon LeBlanc of Microsoft’s Blogging Windows blog. If you install the Windows Tech Preview this weekend be sure to check these out.

  • Snapping window: Windows key + Left or Right — LeBlanc says: ‘(Can be used with UP or DOWN to get into quadrants.)’ Quadrants is the new Snap view mode that pins apps to the four quarters of the screen.
  • Switch to recent window: Alt + TabLeBlanc says: ‘Hold shows new Task View window view, let go and switches to app.’
  • Task view: Windows + TabLeBlanc says: ‘New Task view opens up and stays open.’
  • Create new virtual desktop: Windows key + Ctrl + D
  • Close current virtual desktop: Windows key + Ctrl + F4
  • Switch virtual desktop : Windows key + Ctrl + Left or Right

The Command Prompt and its Experimental Properties tab in Windows 10.

If you want to start using Windows 10’s greatly enhanced Command Prompt hotkeys (copy-pasting via the keyboard, yesssss) then be sure to check out Scott Hanselman’s extensive post on the topic.

Windows 10’s newfound support for keyboard shortcuts in the Command Prompt isn’t enabled by default, however. To enable it, right-click the Command Prompt’s title bar and select Properties. Open the new-to-Windows-10 ‘Experimental’ tab and check the box next to ‘Enable experimental console features.’ Finally, check the boxes next to ‘Enable new Ctrl key shortcuts’ and ‘Extended edit keys,’ then click OK.

Happy testing!


Encoding in E-Discovery: Reductio ad Absurdum

Celia C. Elwell, RP:

Craig Ball makes it sound so easy. -CCE

Originally posted on Ball in your Court:

ovationIn his keynote speech at the Zapproved Preservation Excellence Conference in Portland, Dr. Tony Salvador of Intel compared the “encores” of performers today to those of performers a century ago. “Encore,” Salvador noted, is French for “again;” yet, we use it to mean “more.”  Today, performers brought back by applause don’t repeat their performance; they play a different song.

But for hundreds of years, the encore was an unpredictable, spontaneous eruption.  Stirred by a brilliant aria in the midst of the show, members of the audience would leap to their feet in applause, shouting, “ENCORE! ENCORE!” The singer and musicians were compelled to stop and perform exactly the same song AGAIN.  This might happen over and over, until the rapture was so fixed in the listeners’ minds they’d let the show go on.

The audiences of the 18th and 19th centuries demanded repetition of what they heard because…

View original 2,034 more words

Have The Rules For Jury Selection Changed?


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Demographic Roulette: What Was Once a Bad Idea Has Gotten Worse, by  Douglas L. Keene, Ph.D. and  Rita R. Handrich, Ph.D. from  Keene Trial Consulting, The Jury Expert Blog


‘Beware of the Lutherans, especially the Scandinavians; they are almost always sure to convict. Either a Lutheran or Scandinavian is unsafe, but if both in one, plead your client guilty and go down the docket. He learns about sinning and punishing from the preacher, and dares not doubt. A person who disobeys must be sent to hell; he has God’s word for that.’ (Clarence Darrow, 1936)

Almost eighty years following Clarence Darrow’s distillation of how religion shapes jury behavior, the belief that demographics could be the holy grail for the selection of jurors persists. It is routine for our clients to comment, in the midst of a mock juror deliberation, “Well, it looks like older women are good for us!” and for the associates to quickly add this to their notes for use in the upcoming voir dire. The lingering hope that demographics could predict a juror’s eventual vote represents a pesky and persistent belief. Too bad it’s hardly ever true. . . .

Warning Signs of Bad Nursing Home Care.


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9 Warning Signs of Bad Care, by Kurtis Hiatt, U.S. News & World Report


One of the reasons I picked this post is that, on the same page, you will find a Guide to Nursing Homes, including “How to Choose a Nursing Home,” “How to Cover the Cost,” and “How to Guarantee Good Care.” It also includes a step-by-step video of actions to take before choosing a nursing home. Unless you medical knowledge or experience and know what kind of care is normal and acceptable, making decisions about elder care is confusing and difficult. –CCE

It’s frustrating to discover that the care Mom is receiving in her new nursing home falls short of expectations—yours and hers. It’s frightening to think that it might be bad.

But how would you know?

‘There are literally dozens of warning signs,’ says Dan Sewell, director of the senior behavioral health unit at the UC San Diego Medical Center. Here are what he and other experts consider especially serious red flags. . . .

Rhode Island Opens Records Law Not So Open.


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Criminal Records Search and Background Checks, from Criminal.Com


A report released by Access/RI shows that in the two years since Rhode Island changed its open records law, enforcement of the law has been less than stellar.

Access/RI isan alliance of First Amendment advocates and MuckRock, a group that works with journalists to secure and analyze public records. They show execution of the updated rules is extremely rare. The report states what is really happening isdifferent than what policy makers had hoped would transpire when legislation went through.

When Rhode Island Governor Lincoln Chafee signed the Access to Public Records Act into law in June of 2012 it was noted that employment contracts and other documents that had been sealed in the past would now be public and readily available.

Access/RI found that restructured law was not being followed when routine documents such as arrest reports and contracts were requested. Many school systems have been unwilling to comply with the law and instead give heavily redacted copies of employment contracts. . . .

Oops – Non-Lawyers and the Unauthorized Practice of Law.


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STAND And Deliver Legal Services, by Mike Frisch, Legal Profession Prof Blog


There are certain things that paralegals, legal assistants, and any other non-lawyer legal professional cannot do.

  • We cannot appear in court on behalf of a client (when we’re not with our supervising attorney). Even then, we won’t be sauntering up to the judge’s bench to make argument or answer the Court’s questions).
  • And although I know some paralegals do this with their lawyer’s approval, we should not negotiate settlement on the client’s behalf. In these situations, my guess is that, the majority of the time, the client has no idea that the has delegated this task to a non-lawyers.
  • I’m going to go with faith that non-lawyers understand about client confidentiality.
    There are other things a non-lawyer cannot do, but the biggest is that we cannot give legal advice. If someone asks you a legal question, and you say, “I can’t give legal advice, but if I were you, I would . . . ,” that’s giving legal advice. The little signs you see next to discount shopping stores offering to do your divorce for a small fee are trying to sell legal advice. Even if you know the answer when a client asks you a question, the absolute best answer you can give is, “I don’t know – you’ll have to ask the lawyer.”

That brings us to this post. No doubt that the non-lawyer in this example had good intentions, and was trying to help. If you the non-lawyer in any situation, regardless of how much training or initials you have behind your name, you CANNOT GIVE LEGAL ADVICE.-CCE

Unauthorized practice decision of the Ohio Supreme Court is described by Kathleen Maloney:

A Lorain County non-lawyer and his corporation engaged in the unauthorized practice of law by providing legal advice to individuals facing criminal charges, according to an Ohio Supreme Court decision today.

The court directed King Ayettey Zubaidah and STAND, Inc., to stop practicing law and ordered them to pay a civil penalty of $20,000 for their involvement in four legal matters.

Zubaidah formed STAND (Striving Towards a New Day!) in 2008 after his experience with the justice system in the 1980s when he was convicted on a drug charge and sentenced to five years probation. STAND’s mission was ‘to help change the unfair and partial treatment against minorities in the judicial system.’

In each of the four cases brought before the Board on the Unauthorized Practice of Law (UPL), the defendant or a parent of the defendant asked for Zubaidah’s guidance during the criminal case and signed an agreement with STAND, which stated that the organization would assist them. No payment was required. Family members testified that Zubaidah did not claim to be an attorney and they knew he was not one.

In one matter, Isaiah Harris faced several charges in three different cases in 2008 involving the same victim. The court appointed a lawyer to represent him. Harris also signed an agreement with STAND.

The three cases were combined, and before Harris’ trial Zubaidah sent a letter to the judge indicating he had in-depth knowledge about the facts in the case and defending Harris’ actions.

In the midst of trial, Harris’ lawyer negotiated a plea deal for a four-year prison term. Zubaidah attended the trial, but his involvement was disputed. Harris’ lawyer claimed that Zubaidah advised Harris not to accept the deal. Harris rejected the offer and was later convicted and sentenced to 23 years, 6 months in prison.

In the other cases, Zubaidah sent letters to the judges asking for lower bonds, citing cases, and making legal arguments, though indicating that he was not an attorney.

In today’s per curiam opinion, the court noted that an individual who negotiates legal claims for another person and provides legal advice – even without charge and even when stating that he is not an attorney – is practicing law.

While a non-attorney who sends a character-reference letter for someone to a judge is not engaging in the unauthorized practice of law, the court stated that when a letter shifts to advocating specific legal positions for that person, the unauthorized practice of law occurs.

‘[D]espite the laudable desire to seek reform in the criminal system, such a desire cannot be realized by legally advising and advocating on behalf of a criminal defendant without violating our prohibition against the unauthorized practice of law,’ the opinion stated.

‘Zubaidah’s actions extended beyond the permissible conduct of endorsing a person’s character, advocating a social issue generally, advancing personal interests, or providing nonlegal advice to a family member. Despite Zubaidah’s good intentions and intermittent disclaimers, his conduct shows a pattern of advocating legal positions on behalf of defendants and providing legal advice to those defendants, leading to serious consequences for the STAND clients who trusted him.’

The court pointed out that Zubaidah held himself out as ‘an advocate with legal expertise,his agreements implied that he had specialized knowledge of the legal system, and his letters to judges ‘cited case law, raised legal issues, and asked for legal results.’ . . . [Emphasis added,]

Is Evidence of Defendant’s Disability Admissible in Police Brutality Trial?


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Disabling Condition: Should Evidence of Defendant’s Disability be Admissible in Assault/Police Brutality Trial?, by Colin Miller, EvidenceProf Blog


According to an article in the Lake Geneva News,

‘A man who is accused of attacking a police officer, but counters that he is the victim of police brutality, is set for his second jury trial next Monday.

Daniel White, 42, of rural Elkhorn, faces three felony counts and a misdemeanor related to an incident in which his two pit bulls bit two deputies and he allegedly struck a deputy with his fist and a wood board.

White, who walked in the courthouse with a cane and collects disability checks, contends that the officer knocked down his stockade fence, beat him up and lied to conceal their actions.’

Prior to trial, the prosecution asked the judge to (1) prohibit White’s cane from being in the jury; and (2) to exclude evidence of White’s disability. How should the judge rule?

Well, the judge has already ruled ‘refused to force White to hide his cane during the trial.’ I think this seems like the only correct outcome. First, there is simply the matter of logistics. For instance, a defendant has to stand when the judge enters the courtroom. Given that, it’s difficult to see how the cane could be completely hidden from view. Second, courts have found no problem with defendants being in shackles in the courtroom when such restraint is necessary. Reciprocity would thus seem to require allowing a defendant in need of a cane to be able to use it in plain view of jurors.

The more difficult question is whether the defense should be able to present evidence of White’s disability. Part of this depends on the defense’s theory of the case. Is the claim that White’s disability made him physically unable to commit the crimes alleged in the complaint? If so, you might recall the infamous O.J. Simpson trial in which Richard Walsh was allowed to give testimony that the former running back’s football injuries caused problems with his problems with knees, back, shoulder and hands.

Is the claim self-defense, with White’s claim being that his disability should be part of the reasonable person analysis? If that’s the case, check out this excerpt from Hendrix v. State, 369 S.W.3d 93 (Mo.App. 2012):

‘Although Ransom was decided in the context of a civil claim of self-defense, its analysis of the ‘reasonable person’ standard is relevant to determining whether Hendrix’s medical records were relevant to his claim of self-defense….Hendrix’s medical records, if entered into evidence at trial, would have merely established that he suffered from degenerative joint disease in his knees. As Ransom indicated, a defendant’s ‘proclivities or propensities are irrelevant’ to the issue of whether the defendant acted as a ‘reasonable person.’…Williams was not ineffective for failing to present irrelevant evidence because it would have been inadmissible at trial….

Even if evidence of Hendrix’s disabilities would have been relevant and, therefore, admissible, Hendrix offered no evidence at the motion hearing to demonstrate that, had Williams entered Hendrix’s medical records detailing his degenerative joint disease, the jury would have acquitted Hendrix. The jury heard Paynter’s testimony that Hendrix wore knee braces, and the defense’s closing argument utilized Hendrix’s knee injuries to argue the relative size difference between Hendrix and Paynter. Despite the jury hearing that evidence and argument, it rejected Hendrix’s self-defense theory. Hendrix has not demonstrated that, had the medical records been admitted, there is a reasonable probability that he would have been found not guilty.’

Hendrix seems to stand for the proposition that some evidence of a defendant’s disabilities is admissible but that medical records are not. But, of course, those records were offered for a particular purpose which might well be different from the purpose at White’s trial. -CM


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