Great Illustration and Explanation – What The Best Evidence Rule Is and What It is Not.

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Understanding The Best Evidence Rule, by Judge Larry Primeaux, Better Chancery Blog

https://chancery12.wordpress.com/2011/01/12/understanding-the-best-evidence-rule/

I would nominate MRE 1002 for second-most misunderstood rule of evidence (the all-time front-runner, without peer, would be the hearsay rule). . . .

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App Resources – Save Time and Plug In!

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The Beginner’s Guide to Putting the Internet to Work for You: How to Easily Save 60 Minutes Every Day, by Belle Beth Cooper, Buffer Blog (with hat tip to Shawn J. Roberts)

http://tinyurl.com/ncu683v

So many great ideas and useful apps, even if you are not tech savvy. This is stuff you can, and should, use right now. -CCE

One of the most fun and useful things I’ve been doing lately is automating small processes I do all the time. It took me a while to work up the courage to dive into automation, as it always seemed like a really difficult, technical thing to do, which should be left to programmers.

Luckily, there are lots of tools being created lately to make automation easier for those of us without a solid understanding of how our computers really work. . . .

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Fifth Circuit Reverses District Court On Termination of Temporary Employees.

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Fifth Circuit Reverses Western District for Making Credibility Determinations, by Thomas J. Crane, San Antonio Employment Law Blog

http://tinyurl.com/nk7tmln

In Burton v. Freescale Semiconductor Inc. and Manpower of Texas, LP, No. 14-50944 (5th Cir. 8/10/2015), the Fifth Circuit overruled the district court’s summary judgment. The court addressed a frequent issue, who is responsible for the termination of temporary employees? But, in so doing, the higher court also addressed a more frequent issue, how to apply the summary judgment standard. . . .

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OneNote 2007 — Technology Suitable For Your Next Trial Notebook?

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The Trial Lawyer’s Electronic Notebook, by Bruce A. Olson, ONLAW Trial Technologies, LLC (Applies to Microsoft Office OneNote 2007)

http://tinyurl.com/p259x62

In my experience, it is rare to find two lawyers who prepare exactly the same way for trial. Some folks still adhere to tradition – banker’s boxes filled with pleadings, witness files, deposition transcriptions, etc. Others rely solely on technology, which is great as long as the judge’s courtroom has adequate resources and space. Others prefer a combination of the two.

Certainly, if your jury is filled with younger people, please use technology rather than cumbersome foam boards on easels for presentations to the jury. Otherwise, you will likely bore them to death and quickly lose their attention.

I found this example intriguing because it uses OneNote. Granted it is the 2007 version, but it still gives an excellent example of how to use this type of technology to organize a trial notebook. I am not saying this is the only type of technology that can be used in to prepare trial notebooks. Hopefully it will give you inspiration to try this method or another type of technology at trial. -CCE

My opposing counsel kept looking at me with obvious envy as I made my argument to the judge why certain key evidence should be excluded from the trial we were involved in. I could tell from the look on the attorney’s face that he was puzzled how I could refer to portions of the record, prior witness testimony, exhibits, case law, and a brief that I had previously submitted, all without a single piece of paper in front of me. The only thing I used was my laptop and a mouse. He sat at a table with loose papers piled haphazardly, manila folders strewn about, and a Bankers Box on the floor, stuffed to overflowing. . . .

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Supreme Court Writing Analysis – Whose Briefs Win and Why.

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Who Wins in the Supreme Court? An Examination of Attorney and Law Firm Influence, by Alan Feldman, University of Southern California, Political Science, SSRN.com (Date posted: August 18, 2015 ; Last revised: August 21, 2015)

http://tinyurl.com/q48ywgq

This paper is a detailed analysis of what type of legal writing and briefs from 1946 through 2013 have been the most influential  with the United States Supreme Court and the lawyers who write them. Interestingly, lawyers who write short sentences in the active voice and who use fewer words than the majority of brief writers are the most successful. It is a fascinating read, and strongly recommended. -CCE

Big Brother Pilot Program Comes To Watchell Lipton Rosen & Katz.

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Wachtell Lipton To Start Tracking Employee Work Status, by Casey Sullivan, BNA Bloomberg Blog

https://bol.bna.com/wachtell-lipton-to-start-tracking-employee-work-status/

This firm has a philosophy – treat its lawyers like grown ups with no billable hour requirement and other perks. Now they appear to have a problem finding their attorneys.

Who gets the job of tracking the attorneys? Their assistants, of course. Will this encourage a great working relationship between the assistants and their supervising attorneys? Probably not.

How long do you think this pilot program will last, and will other firms follow their example? -CCE

Wachtell, Lipton, Rosen & Katz will start a pilot program next week, requiring its assistants to report the status and location of the firm’s attorneys each morning, according to an internal memo leaked to the legal blog Above the Law.

Still unknown: how Wachtell plans to use the information it gathers?

From the memo: ‘The lack of awareness of the status and/or location of our colleagues results in staffing and work-related complications and other concerns.’

It also explained the process. The assistants would have an icon on their computers that would include a variety of options, such as ‘working from home,’ ‘traveling on business,’ and ‘leave of absence,’ and they will be required to input the status and location of their assigned attorneys. . . .

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Current List of Each State’s E-Discovery Rules.

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Current Listing of States That Have Enacted E-Discovery Rules, Electronic Discovery Law, K&L Gates Blog

http://www.ediscoverylaw.com/state-district-court-rules/

K&L Gates keeps this list of state’s e-discovery rules constantly updated. I love one-stop clicking and appreciate the reminder to look for your judge’s local rules, forms, and guidelines. -CCE

More and more states are adopting statutes and court rules addressing the discovery of electronically stored information. Here is a current list with links to the relevant provisions. Please note also that many judges have created their own forms or have crafted their own preferred protocols for e-discovery. These are generally available on the website of the individual judge and care should be taken to ensure you are aware of any such forms or guidelines in any court you may appear in. . . .

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Upper Canada’s Paralegal Rules of Conduct.

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The Law Society of Upper Canada – The Paralegal Rules of Conduct (with hat tip to William P. Statsky!)

http://www.lsuc.on.ca/uploadedFiles/Chapter1ParalegalRulesConduct.pdf

Upper Canada Paralegal Resources

http://www.lsuc.on.ca/for-paralegals/resources-for-paralegals/

Includes information about how to become a paralegal, how to become licensed, and how to manage your paralegal practice. -CCE

Use “The Streisand Effect” To Hit The Perfect Legal Writing Chord.

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Peabody Energy Tries To Strike Song Lyrics From Complaint: Welcome To The Streisand Effect, by Elie Mystal, Breaking Energy Blog (with hat tip to Raymond Ward!)

http://tinyurl.com/ozm4j5l

Kudos to the lawyers who came up with this legal writing strategy. A couple sued Peabody Energy and alleged a civil rights violation. The police arrested the couple for holding up a banner during Peabody’s shareholder’s meeting.

The Complaint filed against Peabody Energy included lyrics to a song called “Paradise,” by John Prine. Who knows how the plaintiff’s counsel found it. The lyrics are a perfect choice.

The song is about coal mining exploitation by a company. You guessed it – the company’s name is Peabody. The lyrics about the big, bad coal company abusing the rights of common people strike the right chord.

Peabody’s reaction was understandable, but a costly mistake. Peabody filed a Motion to Strike. Strike what? The song lyrics – in a lawsuit about freedom of speech. To be kind, perhaps Peabody’s counsel did not think that one through.

The plaintiff’s response is classic and brilliant legal writing strategy. -CCE

When Is An Offer of Employment Letter The Same As A Contract?

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Federal Judge Allows Stephen Salaita’s Suit Against the University of Illinois to Proceed, by Jeremy Telman, ContractsProf Blog

http://tinyurl.com/o7flplx

In a case we have been following for a year (here, here, and here, for example), Stephen Salaita is suing the University of Illinois for withdrawing its offer to hire him to teach in its American Indian Studies Program after discovering some intemperate anti-Zionist tweets Mr. Salaita had posted. . . .

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2,941 Page Privilege Log? Better Make It Good.

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If You’re Going to Submit a 2,941 Page Privilege Log, You’d Better Be Able to Demonstrate Privilege: eDiscovery Case Law, by Doug Austin, eDiscoverydaily Blog

http://tinyurl.com/nwmrx27

The last post by Mr. Gilliland is an excellent illustration of the rule for privilege logs. This example? Well, you be the judge. -CCE

In United States v. Louisiana, 11-470-JWD-RLB. (M.D. La. July 31, 2015), Louisiana Magistrate Judge Richard L. Bourgeois, Jr., after reviewing 40 documents provided by the defendant for in-camera review, granted the plaintiff’s Renewed Motion to Compel a Proper Privilege Log, after denying the original motion because the plaintiff only provided 13 examples of ‘insufficient descriptions’ within the privilege log’s entries. . . .

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Privilege Logs.

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A Case Study on Privilege Logs, by Joshua Gilliland, Esq., Bow Tie Law Blog

https://bowtielaw.wordpress.com/2015/08/08/a-case-study-on-privilege-logs/

In this post, Mr. Gilliland suggests an Excel format and headings for a privilege log with a reminder to cover the privilege log rule requirements. Here is another basic example in Google Docs:

https://docs.google.com/document/d/1DKgo192j0sQfbj5H51gFQZNFbcrQJOxuBaUU3ZzZGBU/preview

-CCE

Privilege logs require more than merely saying a prospectively privileged document is an ‘attorney-client communication.’ This requires litigants to conduct privilege review with far more analysis than simply tagging discovery ‘Attorney Client Privilege’ or ‘Work Product Conduct.’ The case of United States v. State & La. Dep’t of Health & Hospitals highlights the importance of effective discovery review in creating privilege logs. . . .

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Perfect Benchslap For Redaction Running Amuck.

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Judge Trolls Lawyers Without Saying Anything At All, by Joe Patrice, Above The Law

http://abovethelaw.com/2015/08/judge-trolls-lawyers-without-saying-anything-at-all/

Joe beat me to it. Many thanks to Jessica L. Craft at Holden & Carr for the heads’ up. -CCE

Judge Charles Breyer proves that a redaction can be worth a thousand words. . . .

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Leiomyosarcoma And Other Types of Cancer.

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Leiomyosarcoma – Information for Leiomyosarcoma Families

Leiomyosarcoma.org

No, I can’t pronounce this, and I won’t pretend that I know much about it. This is a rare type of cancer that attacks soft tissue and involuntary muscle. The good news is that, if caught early, it can be effectively removed and treated. Learn more about it at http://www.leiomyosarcoma.org/blog.

There are many different types of cancer – more than I can name. If you are like me, you have lost family and friends to this disease, or perhaps you know someone, as I do, who happily are cured. Regardless, any one diagnosed with cancer goes down a difficult road. You will find more information at these links:

National Cancer Institute

http://www.cancer.gov/

American Association of Cancer Research

http://tinyurl.com/o22o4k5

American Cancer Society

http://www.cancer.org/

Cancer Health Center – Web MD

http://www.webmd.com/cancer/

Cancer Treatment Center of America

http://www.cancercenter.com/cancer/

 

Litigation and The Art of Storytelling.

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Tell It: The Top 10 Posts on Story, by Dr. Ken Broda-Bahm, Persuasive Litigator Blog

http://www.persuasivelitigator.com/2015/07/tell-it-the-top-10-posts-on-story.html

The ‘story model’ (Hastie, Penrod & Pennington, 1983) for litigation persuasion is appropriately considered gospel at this point. At the same time, there is an art to it. In most courtrooms, I see litigators who are aware of the need to tell a story, but not necessarily versed in the techniques of storytelling. As I’ve explored from time to time in this blog, beyond laying out the events in temporal sequence, there are some nuances relating to structure, imagery, audience, and point of view. In short, there is a substantial ‘advanced course’ in narrative that effective trial lawyers should study. To make that a little easier, here are our top 10 posts so far on storytelling in trial. . . .

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Big Law Firms Miss $1.5 Billion Dollar Mistake.

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Mayer  Brown & Simpson Thacher Make Epic Screwup, by Joe Patrice, Above The Law (with hat tip to William P. Statsky)

http://abovethelaw.com/2015/01/mayer-brown-simpson-thacher-make-epic-screwup/

It is rare indeed to find such a dearth of responsibility among so many fine legal professionals. If you can, follow the bouncing ball. –CCE

Mistakes happen. It’s why pencils have erasers. But it’s also why law firms install tier after tier of increasingly senior professionals to second-guess every ounce of work product. It’s remarkably effective — and fairly lucrative on an hourly basis.

Unfortunately, the flip side of a tiered system is a tendency toward over-delegation. And that’s how an unwary paralegal ends up costing a bank millions. . . .

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Is It Okay To Wipe A Former Employee’s Computer?

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Court Denies Request for Sanctions for Routine Deletion of Files of Departed Employees: eDiscovery Case Law, by Doug Austin, eDiscoverydaily

http://tinyurl.com/p2jfsqe

For many employers, it is normal procedure to “wipe” the computer of recently former employees after removing anything not already stored on the employer’s network. Is this a bad practice? -CCE

In Charvat et al. v. Valente et al., 12-5746 (N.D. Ill. July 1, 2015), Illinois Magistrate Judge Mary M. Rowland denied the plaintiff’s request for spoliation sanctions for the defendant’s admitted destruction of computer files belonging to two departed employees, finding that the plaintiff did not provide any evidence that the defendant acted in bad faith. . . .

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Legal Writing Papers at SSRN.

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 Legal Writing E-Journal, Social Science Research Notebook

http://papers.ssrn.com/sol3/JELJOUR_Results.cfm?form_name=journalbrowse&journal_id=902240

If I am reading this correctly, there are over 1,000 legal writing articles compiled by SSRN. You may find some of these articles to be a bit esoteric and academic. Nevertheless, it is definitely worth investigating. Please add this to your legal writing library bookmarks. -CCE

More Journalism Research Sources On The Internet.

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 Journalism Resources on the Internet, by Marcus P. Zilman, LLRX.com

http://www.llrx.com/features/journalismresources2015.htm

Legal research sometimes requires thinking outside the box. For example, your client is interested in a trial held in another jurisdiction, but does not want to incur the expense of paying for the entire trial transcript.

News articles about the trial may help your attorney decide whose testimony can be useful in your client’s case. Research could identify the specific witnesses and days of testimony needed to prepare your client’s case.

Another resource, also posted here, is JournalistExpress®,  http://www.journalistexpress.com, a dashboard research resource for journalists. -CCE

Journalism Resources on the Internet is a selective, comprehensive bibliography of reliable, subject specific and actionable sources of journalism resources and sites for researchers in all sectors. These resources will help you to discover the many pathways available through the Internet to find the latest journalism resources and sites. . . .

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Congress.gov – With New Features and Improvements.

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New Features Added to Congress.gov Based On Your Feedback, by Robert Brammer, Law Librarians of Congress, In Custodia Legis

http://blogs.loc.gov/law/2015/07/new-features-added-to-congress-gov-based-on-your-feedback/

The website describes the enhancements, such as email alerts, in detail with instructions on how to use them. The website requests your continued feedback for future ways to improve the website. -CCE

Since the unveiling of Congress.gov in September of 2012, we have been constantly adding new features with each release, and many of the features in this release are based directly on your feedback. . . .

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Free Legal Style Guide from Adobe.

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Adobe Legal Department Legal Style Guide (with hat tip to William P. Statsky)

http://www.adobe.com/legal/legal-innovation.html

A free, concise legal writing style guide from Adobe. Definitely worth a look. -CCE

 

What Is Your Opinion Of Microsoft’s New Windows 10?

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10 Reasons You Should NOT Install Windows 10 (Yet), by Ted Brooks, Court Technology and Trial Presentation Blawg

http://trial-technology.blogspot.com/2015/07/10-reasons-you-should-not-install.html

I have been reading both positive and negative reviews of Windows 10. Some reviewers have suggested that Microsoft learned a lot from its mistakes made in Windows 8. I am keeping an open mind, but I admit that Mr. Brooks has asked interesting questions. -CCE

  1. What could possibly go wrong? Just quietly ponder that on your own for a moment.

  2. Have you ever done something like this on your own before? Although Microsoft has made it appear to be a very simple process, the potential consequences are significant. Seriously – this is the Operating System for your computer. It’s like the techie version of open-heart surgery. . . .

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Unique Contract Complaint – Disney Won’t Help Me Build An X-Wing.

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Plaintiff: Disney Promised to Help Me Build an X-Wing. Court: No It Didn’t, by Kevin Underhill, Lowering the Bar Blog

http://www.loweringthebar.net/2015/04/flying-car.html

There are no words. This is absolutely unique. -CCE

Many remarkable legal documents land in my inbox, and I try to mention as many as I can. Of that group, only a select few are remarkable enough to make it into the Hall(s) of Fame. I don’t think any other case has yielded both a Hall of Fame pleading and a Hall of Fame court order, but this is probably such a case. . . .

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Legal Writing Tips Honey Pot.

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Writing Cheat Sheets for Your Summer at the Screen, by Ross Guberman, Legal Writing Tips for Attorneys and Judges

http://legalwritingpro.com/blog/writing-cheat-sheets-for-your-summer-at-the-screen/

There is something here for everyone – student, newbie, or seasoned professional. Writing tips for memos, grammar, punctuation, biggest partner complaints, checklist for drafting contracts, and more. Many thanks, Mr. Guberman! -CCE

As a writing trainer for many of the nation’s top law firms with about 500 summer-associate workshops under my belt, I’ve learned first-hand where summer associates go wrong and how to help them succeed.

Here are some questions that will likely come up over the summer, along with links to some free online resources. . . .

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Sad News for Windows Sticky Notes Users.

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Windows Sticky Notes Isn’t Made For Backup, But These Alternatives Are, Lincoln Spector, Contributing Editor, PC World

http://tinyurl.com/p9jtrjy

Darn, I really liked these. But if you do not intend for them to be permanent, no problem! -CCE

Windows’ Sticky Notes program may seem like a convenient tool for jotting down reminders and miscellaneous stuff, but it’s really a disaster waiting to happen.

I get questions all the time from readers who lost information stored in Windows’ Sticky Notes program. With Sticky Notes, when it’s lost, it’s lost. . . .

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