Amicus Briefs From A Texas Supreme Court Judge’s Perspective.


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Texas Supreme Court Justice Don Willett’s Thoughts on Amicus Briefs, by Chad Ruback, Appellate Lawyer Blog

This afternoon, Texas Supreme Court Justice Don Willett and Austin lawyer Don Cruse spoke at a continuing legal education seminar.  Among other things, they addressed amicus briefs filed in the Supreme Court.

The court requests a response to the petition for review in about 33% of cases.  However, when an amicus brief has been filed prior to the time that the court decides whether to request a response, Mr. Cruse determined that the court requests a response about 85% of the time.  While only 2% of cases have amicus briefs filed prior to the time that the court decides whether to request a response, it seems that those petitions are disproportionately successful in getting a response requested.

The court requests briefs on the merits (a/k/a full briefing) in about 20% of cases.  However, when an amicus brief has been filed prior to the time that the court decides whether to request briefs on the merits, Mr. Cruse determined that the court requests briefs on the merits about 82% of the time.  While only 7% of cases have amicus briefs filed prior to the time that the court decides whether to request briefs on the merits, it seems that those petitions are disproportionately successful in getting briefs on the merits requested.

Consistent with this data, Justice Willett indicated that he enjoys reading amicus briefs and that it is advisable for a petitioner to have supporting amicus briefs filed early in the proceeding (e.g., before the court has decided to whether to request a response or at least before the court has decided whether to request briefs on the merits).

When Working Freelance, Get An Agreement In Writing.


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Get It In Writing: Freelance Attorney Work Agreement, by Emerald Gratz, Lawyerist Blog

A quick word to paralegals who consider freelance work. Please remember that only lawyers can give legal advice. Except for specific circumstances provided by state or federal statutes, a non-lawyer cannot appear in court on behalf of someone else. If you work freelance, please review and follow the ethical requirements for our profession when working freelance. –CCE

The question of whether the work of a freelance attorney requires a written agreement seems obvious at first glance — “get it in writing” is the golden rule, after all. In practice it is not always that simple. There may be situations, depending on the client, project, or timetable, where getting a written freelance work agreement is not possible or necessary. If a hiring attorney is looking for last-minute emergency assistance, there may not be time to negotiate an agreement. Or the hiring attorney and freelance attorney may have an existing relationship and are comfortable working without a formal agreement.

In these situations, it still benefits both sides to set forth basic project terms in an email, at least. Ultimately, the freelance attorney is responsible for defining the business relationship and running his or her own freelance law practice. . . .

Non-Lawyer’s Glossary From The United Kingdom.


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The Non-Lawyer Guide to Legal Terms, by Pinnington Law (with hat tip to Cara Ashby!)

The Legal Glossary

We understand that divorce or separation proceedings can be a stressful and complicated process. Therefore, we have created this glossary to ensure you understand all aspects of the legal processes which you will need to follow. From the various technical terms involved in court proceedings and legal documents to the different child arrangement orders and agreements for which you can apply, our glossary will help you improve your understanding of complicated legal matters. By doing so, you can commence divorce or separation proceedings with confidence in your own legal expertise.

Text And Tweet Abbreviations Are Okay – Sometimes.


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Text Messaging, the Internet, and Formality, by Mignon Fogarty, Grammar Girl Blog

These admonitions apply to emails as well. -CCE

A few weeks ago I saw something that before then I had heard of but hadn’t seen myself: a smiley face in a very formal document, or, I suppose I should say, what should have been a very formal document. I literally thought of it and then sputtered for days.

There’s nothing new about cute abbreviations. OK, one of the most recognized English words in the world, came out of a cute abbreviation, and America’s founding fathers could have used the abbreviation IOU (for I owe you). A few decades later, the cost of sending a telegram encouraged people to use even more abbreviations and shortened forms of words. Today though, smartphone-wielding text messagers and tweeters may be playing with language and abbreviations more than ever before. And there’s nothing wrong with that! If you want to text your best buddy you’re going to be l8 (late) or that you LOLed (laughed out loud), have at it. That’s an appropriately informal situation. I just discovered that my phone has Halloween emoji, so you may be seeing ghosts or pumpkins on my Twitter feed soon. They look like fun.

But here are some formal documents in which you shouldn’t use emoji, smiley faces, or text messaging abbreviations: business plans, mission statements, resumes, cover letters, letters of recommendation, or pretty much any school assignment that I can think of right now. Seriously, you still need to take some things seriously.

Former Convictions Do Not Always Ruin Witness Credibility.


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Don’t Assume Prior Convictions Kill Credibility, by Dr. Ken Broda-Bahm, Persuasive Litigator Blog

The witness is in good shape and the testimony looks to be great. There’s just one little problem in his past: a conviction. Litigators are understandably concerned about any threats to witness credibility, but if that threat comes in the form of a rap sheet, that’s viewed as a very damaging fact, if not a ticking time bomb. The effects of a prior conviction are most often written about in a criminal defense context where the research generally shows that the fact of a prior conviction significantly increases the chances of a current conviction, particularly where the prior conviction is for a similar crime. But it can be a factor for any witness who’s had a prior brush with the law. In civil cases, crimes involving dishonesty can be admitted for the narrow purpose of impeaching a witness’s credibility. A recent study (Stanchi & Bowen, 2014) that focused on a civil trial context looks at the question of whether the damage is as bad as one might suspect. The results? No it isn’t. In a realistic controlled study, the researchers found that prior conviction evidence did not increase the chances for an adverse verdict. Instead, emphasis on the conviction caused mock jurors to frame the trial as more of a zero sum contest on witness credibility — a frame that can end up actually benefiting the convicted witness.  

These results have some implications for attorneys assessing the risks to their witnesses’ credibility. . . . .

Microsoft OneNote – Why We Should Be Using It.


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Tools For Writing: Microsoft Onenote, by Matthew Stibbe, Bad Language Blog

I feel stupid. I have this on my computer, but have not used it. That will definitely change. – CCE

Microsoft OneNote, the underdog pretender to Evernote’s crown, is a growing part of my life. I’ve used the digital notebook application, on and off, for many years. I tried switching to Evernote a couple of times but always came back, like the prodigal son. (Full disclosure: Microsoft is a client of Articulate’s but this is just my own personal review.)

Indeed, there are many things to like about OneNote:

  • Hierarchical structure. You have notebooks, tabs, pages and sub-pages. For a tidy-minded person like me, this works better than using tags to categorise notes.
  • Encryption. You can password-protect and encrypt whole sections of your notes.
  • Familiar interface. It looks and feels a lot like Microsoft Word, which is where I spend most of my life. Evernote’s roots are more HTML and sometimes that shows in the limited formatting options.
  • Multiple elements. It’s easy to embed and scale multiple pictures, add diagrams and handwritten notes and mix up multiple text boxes on the same page. It feels like a digital notebook should feel – flexible.

But until recently, it fell short of its potential. That’s changing. Here’s why:

  • Solid multi-platform support. I can – and do – use OneNote on my PC, Mac, web browser, iPhone, iPad and Android. Notebooks synchronise smoothly across all the devices.
  • Price. It’s free on all platforms and you can use it with a free OneDrive subscription or, as I do, with an Office 365 account and OneDrive for Business.
  • Pen support. I don’t have a pen-equipped Microsoft Surface but my Samsung Galaxy Note has a pen and OneNote works well with it.
  • Sharing. It’s easy to share notebooks with colleagues. For example, I just created one where we can archive useful sources and web pages.
  • Change highlighting. When someone changes something in a shared notebook, the changes are nicely highlighted when you log in. I think this is going to be an increasingly important feature.
  • Integrations. It works with Feedly, my RSS-reader of choice and IFTTT. More integrations are happening.
  • Capture. There’s a screen clipping app and a web page grabber that drops new content straight into OneNote pages, where you can annotate them.

Overall, I’m finding that I’m spending more time in OneNote and I can see it becoming a useful tool for me and my colleagues at Articulate.

What do you think? How does it compare with Evernote?


Employees’ Privacy Rights, Social Media, And The Stored Communications Act.


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Federal Court Allows Plaintiff’s Stored Communications Act to Proceed Highlighting Role of Social Media in the Workplace, by Randy Enochs, Wisconsin Employment & Labor Law Blog

A federal district court in Northern Illinois, in a rather interesting case given the widespread use of Facebook and Twitter in the workplace by employees who are looking to advance both their careers with an employer as well as market themselves better, has denied an employer’s motion for summary judgment on the plaintiff’s Stored Communication Act (SCA) claim.  The case is super fact-specific and may not apply in every case, but highlights an important message to employers in the social media arena, which continues to present new and interesting issues every year. . . .

Compilation of Ken Adams’ Articles on Contract Drafting.


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Ken Adams’s Articles, Adams on Contract Drafting Blog

In addition to Ken’s posts from February 2013, this blog contains Ken’s posts from The Koncise Drafter (from December 2010 to February 2013) and from the AdamsDrafting blog (from May 2006 to December 2010).


“Employee” or “Independent Contractor” Drilled Through The Hand At Bada Bing Club? Why It Makes A Difference.


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Drilling Home the Difference Between an Independent Contractor and Employee, by Jason Shinn, Michigan Employment Law Advisor Blog

A common question that business owners raise involves the use of employees versus independent contractors. The use and classification of an individual as an employee or independent contractor is one of the more complicated employment law issues that business owners will deal with and resolving such issues will depend upon circumstances.

Consider one test, the economic reality test, is used for determining employment status when it comes to social legislation such as worker’s disability compensation. However, another test, the ‘control test,’ is used when it comes to tort actions. And both of these tests have multi-faceted factors that need to be considered under the specific circumstances).

But a recent Michigan Court of Appeals decision (Cole v. The Bada Bing Club, 2014) involving an employee/independent contractor issue drills home the point (quite literally) one of the significant differences between the two statuses and why it matters to employers.

The Beating at the Bada Bing Club

Specifically, Dennis Cole was severely beaten in the basement of the Bada Bing Club by the club’s manager, Henry Ramirez and three other individuals. The following is taken directly from the Court of Appeals opinion:

‘Plaintiff was taped to a chair, beaten with a gun, punched and kicked, and drilled through the hand with an electric drill. The men were all convicted of criminal charges for their involvement.’

Plaintiff sued the Bada Bing Club and Atlantis Lounge Inc. Atlantis Lounge was the sole Owner of the Bada Bing Club, which was an assumed name filed by Atlantis. Atlantis Lounge, however, verbally contracted with Henry Ramirez (the guy involved in beating Plaintiff) who solely managed and operated the Bada Bing Club.

Lawsuit Turns on Employee or Independent Contractor Status

A central issue on appeal was whether Ramirez was an employee or an independent contractor. If Ramirez was an employee of Atlantis Lounge, then Atlantis could be held directly liable for negligently hiring, training, or supervising Ramirez. In contrast, under Michigan law there is no comparable cause of action for the negligent hiring or retention of an independent contractor. In other words, if Ramirez was an independent contractor then Atlantis Lounge was off the hook. . . .

Beginner’s Guide to Landlord-Tenant Law.


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Landlord-Tenant Law: A Beginner’s Guide, by Barbara Bavis, In Custodia Legis, Law Librarians of Congress (This post is coauthored by Barbara Bavis and Robert Brammer, legal reference specialists.)

It is no wonder that we get a large number of questions about landlord-tenant law at the Law Library of Congress, in light of the fact that residential leasing, and the rights and obligations that stem from such agreements, is a pressing legal issue for many of our patrons.  Much of landlord-tenant law is state-specific, and as such, those wanting to do detailed legal research in this area might want to visit their local public law library.  However, we have collected some information below regarding books, websites, and other resources, that might help a researcher just beginning their landlord-tenant research. . . .

Dueling Experts – Which One Will The Jury Believe?


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What Happens When A Juror Agrees [Or Disagrees] With Your Expert Witness?, by Douglas Keene, The Jury Room Blog

Mock jurors love to hate dueling experts who give them conflicting information regarding causation, liability, reasonableness, damages, etc. They also don’t appreciate expert witnesses who use jargon or speak so simply that jurors feel ‘talked down to’—but you already know that. What jurors want is to learn what is reliable and useful to resolve the dispute. And attorneys watching mock jurors deliberate often indignantly retort, ‘That is not what the witness said!’—as though the juror simply needed to have the testimony repeated. The research we’re about to describe explains why jurors hear what they hear instead of hearing what the expert actually said. . . .

Yes, It Is Okay To Use The Em Dash.


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The Enigmatic Em Dash, by Matthew Salzwedel, Lawyerist Blog

(This column is adapted from an article originally published in the Minnesota Lawyer on July 1, 2013.)

Knowing how to punctuate properly is essential to good legal writing. Besides the semicolon, though, lawyers probably misunderstand—and as a result misuse—the em dash more than any other punctuation mark. That’s because it’s possible for a lawyer to write for an entire career without ever having to use it.

But lawyers who consciously avoid using the em dash forsake an important legal-writing tool. They’re like carpenters who choose to work with rudimentary tools instead of precision instruments. The job gets done; but the result is hardly refined. . . .

Witness Preparation = Successful Depositions.


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Witness Preparation: Best Practices for a Successful Deposition, by Jim Calloway, Jim Calloway’s Law Practice Tips Blog

Jim Calloway is a superhero masquerading as the Director of the Oklahoma Bar Association’s Management Assistance Program. While that being the Director of the OBA’s Management Assistant Program may be Jim’s “day job,” Jim does far more than that. This link will tell you more about his other activities, and I have no idea where he finds the time:

But the best thing about Jim is that we found him first! And we know a good thing when we see it. We may share him with the rest of you from time to time, but luckily Jim has – so far – always called Oklahoma his home. -CCE

Witness Preparation: Best Practices for a Successful Deposition is a really nice article by Tulsa, Oklahoma attorney Robert P. Redemann. I strongly recommend it to any lawyer, even those who might not be involved with depositions. Sometimes it is good to understand best practices in our profession. Share the link with a young lawyer you know.

I would add one other item. Have you looked at the materials you routinely give the client to prepare for a deposition recently? Surely all law firms have progressed past the point of giving clients photocopied deposition tips in favor of custom-prepared materials with the law firm’s name, address and logo. But if you have not reviewed your handouts lately, take a look. A good proofing and freshening is often in order. Use some different sized fonts, headers, text boxes or insert a small graphic or two to increase readability. You never know who may be looking at this document sometime as a representation of your firm’s work product. Make this a professional document you are proud to have carry your firm’s name.

Using Parentheticals As A Legal Writing Tool.


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Parentheticals are an excellent legal writing tool, especially in string citations. They can be used to reinforce a legal argument without a lengthy explanation, like this:

“All cases cited by Defendants are very different from this case. In all of them, the danger was plainly visible. See Transport Indemnity Co. v. Page, 406 P.2d 980 (Okla. 1965)(daytime accident); Haworth v. Mosher, 395 F.2d 566 (10th Cir. 1968)(dust storm on highway clearly visible by approaching motorists); Thur v. Dunkley, 474 P.2d 403 (Okla. 1970)(accident occurred during daylight with ample unobstructed vision from either direction).”

When used incorrectly, they frustrate the reader. In this three-part series, Nick Wagoner illustrates the best, and worst, ways to use parentheticals. –CCE

Guest blogger Nick Wagoner on “Common Parenthetical Pitfalls” [Part 1], by James B. Levy, Editor, Legal Skills Prof Blog

Tips For Writing Better Parentheticals – Part 2, by James B. Levy, Editor, Legal Skills Prof Blog

More On Writing Good Parentheticals From Our Guest Blogger Nick Wagoner [Part 3], by James B. Levy, Editor, Legal Skills Prof Blog

Free Access to Federal Law and Resources.


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Free Public Access to Federal Materials On Guide To Law Online, by Sabrina I. Pacifici, BeSpacific Blog

There’s more here than you think. Executive, judicial, federal, legislative, state, legal guides, and general sources. Definitely worth a look. -CCE

[Via Emily Carr, Senior Legal Research Specialist, Library of Congress] – this posting by Ann Hemmens, legal reference librarian at the Law Library of Congress: Through an agreement with the Library of Congress, the publisher William S. Hein & Co., Inc. has generously allowed the Law Library of Congress to offer free online access to historical U.S. legal materials from HeinOnline.  These titles are available through the Library’s web portal, Guide to Law Online: U.S. Federal, and include:

“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] -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  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 . . . .


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