E-Discovery Red Herring?


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Riley Cell Phone Decision a Red Herring in E-Discovery, by Craig Ball, Ball In Your Court Blog


Yesterday’s post on the Digital Strata blog reported on a 2014 order of a U.S. District Court in Connecticut that applied the U.S. Supreme Court’s decision in Riley v. California, 573 U.S. _, 134 S. Ct. 2473 (2014) to civil discovery. I think the Court’s reliance on Riley is misplaced in the civil discovery context; not just because Riley involved state action, but because civil discovery affords a litigant greater protection from oppression and intrusion than that attendant to the search and seizure in Riley. . . .

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Angry Judge Sanctions Defendants For E-Discovery Spoilation.


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Tired of the “Crap”, Court Sanctions Investors and Lawyers for Several Instances of Spoliation, by Doug Austin, eDiscoverydaily Blog


In Clear-View Technologies, Inc., v. Rasnick et al, 5:13-cv-02744-BLF (N.D. Cal. May 13, 2015), California Magistrate Judge Paul S. Grewal sanctioned the defendants $212,320 and also granted a permissive adverse jury instruction that allows the presumption that the defendants’ spoliated documents due to a series of ‘transgressions’ by the defendants and their prior counsel.

You’ve got to love an order that begins this way:

‘Deployment of ‘Crap Cleaner’ software—with a motion to compel pending. Lost media with relevant documents. False certification that document production was complete. Failure to take any steps to preserve or collect relevant documents for two years after discussing this very suit. Any one of these transgressions by {the defendants} and their prior counsel might justify sanctions. Taken together, there can be no doubt.’ . . .

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If You Still Enter Your Billable Time On Paper, This Post Is For You!


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Those Hated Timesheets – Are You Still Using Them?, by Jim Calloway, Jim Calloway’s Law Practice Tips Blog


“Most lawyers hate filling out timesheets to record their billable time. Lawyers are also not perfect at Time sheet accomplishing this, leading every company with a time and billing product to tout how much money can be made if only every bit of ‘lost’ time was recorded. But the practice of recording time by hand on paper timesheets really does need to go the way of the Dodo bird.

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‘[T]here’s one observation that I can make today with a great deal of certainty. A lawyer entering their time by using pen and ink on a paper timesheet is employing an inefficient practice that should no longer be used. You need to enter your time digitally. This means you.’ . . .

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Texas Supreme Court Agrees That Compounding Pharmacy Is “Health Care Provider.”


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Texas Supreme Court Holds That Compounding Pharmacies Are Health Care Providers Under Texas Medical Liability Act, by Elinor H. Murarova, Duane Morris Health Law Blog


On April 24, 2015, the Texas Supreme Court dismissed claims against a compounding pharmacy and its individual pharmacists which alleged negligence in compounding a lipoic acid medication, finding that the defendants were health care providers entitled to the protections in the Texas Medical Liability Act (‘TMLA’).

In the case Randol Mill Pharmacy et al. v. Miller et al., Case No. 13-1014 (Tex. Sup. Ct.), the plaintiff’s physician prescribed and administered weekly intravenous injections of 200 mg/ml lipoic acid, an antioxidant supplement. The plaintiff alleged that she underwent nine weeks of treatment without incident, but in the tenth treatment she suffered a severe adverse reaction and as a result was hospitalized for several weeks, received multiple blood transfusions, and went permanently blind in both eyes. Randol Mill Pharmacy compounded the lipoic acid that allegedly caused the adverse reaction.

In her complaint against the compounding pharmacy and its individual pharmacists, the plaintiff alleged that these defendants gave inadequate and inappropriate warnings and instructions for using the compounded lipoid acid; that the compounded lipoid acid was defective, ineffective and unreasonably dangerous; and that the compounding pharmacy and pharmacists generally breached implied warranties with respect to the design, manufacture, inspection, marketing, and/or distribution of the compounded lipoid acid. . . .

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The Rule of Short.


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Manage Your Sentence Length, by Wayne Scheiss, Legible Blog from Legalwriting.net


“The shorter the sentence, the easier it is to understand.” Practical Legal Writing for Legal Assistants. -CCE

What’s a good average sentence length for legal writing?

I once asked a group of lawyers at a CLE seminar that question. ‘Thirteen words,’ one lawyer volunteered. ‘Seven,’ said another. Wow. Writing about legal matters with an average of seven words per sentence isn’t realistic, is it? That means for every sentence of ten words, you’ve got to write one of four words to bring the average to seven. That would be tough.

But the instinct is right. Steven Stark, author of Writing to Win, says the more complex the material, the shorter the sentences should be. So what’s a more realistic goal? The experts say between 20 and 25 words:

  • below 25—Wydick in Plain English for Lawyers
  • about 22—Enquist & Oates in Just Writing: Grammar, Punctuation, and Style for the Legal Writer
  • about 20—Garner in Legal Writing in Plain EnglishHow do you know your average sentence length?

You can program Microsoft Word to tell you. . . .

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Sprint and Verizon Will Repay Millions For Illegal Billing.


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Sprint And Verizon Will Refund $120 Million To Consumers Harmed By Illegal Billing Practices, by Genessa Stout, Consumer Financial Protection Bureau


Today [May 12, 2015] we’re announcing settlements with Sprint and Verizon, who illegally billed consumers over a hundred million dollars in unauthorized third-party charges. If approved, these will return $120 million directly to affected consumers.

Sprint’s and Verizon’s customers became victims by clicking on ads for ‘free’ digital content such as ring tones or daily horoscopes, and were then charged without their consent. Many people did not know that third parties could add charges to their wireless bills. The illegal billing often continued undetected for months.

Sprint’s and Verizon’s billing systems invited illegal third-party charges and the companies did little or nothing to root them out. Sprint and Verizon also failed to properly track and respond to consumer complaints about these charges, while collecting hundreds of millions of dollars in revenue by serving as payment processors for these third-party companies. Sprint and Verizon received a 30-40 percent cut of every third-party charge. . . .

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Abandon Weak Points To Bolster Your Stronger Legal Arguments.


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First Impressions Endure, Even In Brief Writing, by Bryan A. Garner, ABA Journal


We have a long history of judges saying that (1) little errors in a brief betoken bigger mistakes, (2) less is more, and (3) good briefs demand little physical or mental effort from the reader. Even so, briefs in most courts are astonishingly ill-proofread, they are rarely tight, and lawyers seldom confine themselves to two or three points. There’s a disconnect between what judges say they want and what lawyers give them. Curious.

There’s also a tendency to disbelieve things that can’t be scientifically proved. Hence I’ve heard lawyers say they don’t care so much about what judges say they find persuasive in written arguments. Those judges might not actually know what motivates them, the skeptical lawyers say. They want proof.

So let’s take the three points mentioned at the outset and see whether, when it comes to judging, there’s any scientific evidence to back up the anecdotal evidence that good writing enhances persuasion. We’ll use the findings of Nobel laureate Daniel Kahneman, the Princeton psychologist and economist who wrote a superb book: Thinking, Fast and Slow. What he says is most illuminating. . . .

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One Space Vs. Two Spaces At The End Of A Period.


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Two Spaces After a Period, by Mignon Fogarty, Grammar Girl Blog


I learned to type on a typewriter. The rule was back then was to add 2 spaces after a period at the end of a sentence. When I first heard about the switch to 1 space rather than 2, I wondered why change?

The reason was clear. I was no longer using a typewriter, but a machine that automatically adjusts the spacing between characters and sentences. Makes sense to me. -CCE

Were you taught to put two spaces after a period at the end of a sentence? Many people were, but now most publications recommend using just one. Here’s the scoop.

If you learned to type on a typewriter, you’re going to hate what I say next: Do not put two spaces after a period. Don’t do it. Just use one.

I know. I was taught to use two spaces after a period in my high school typing class too, but you know what? It’s not that hard to break the habit. I haven’t been tempted to type two spaces for decades. It’s not like quitting smoking. I don’t find myself in nostalgic typewriting situations and suddenly get hit by an unexpected urge to type two spaces.

The modern and easy-to-follow style is to put one space after a period.

I’m not making this up to torment you. Typesetters write and beg me to tell people to only use one space. If you use two spaces, they have to delete them. Yes, it’s not that hard to do it with search-and-replace, but it’s not that hard to put dishes in the dishwasher either, and you don’t like doing that, do you?

If sympathy for typesetters doesn’t move you, I’m willing to bet you’re a rule follower. I don’t have a lot of to-heck-with-the-rules type of readers or listeners. And everyone who makes the rules today agrees: It’s a one-space world.

TheChicago Manual of Style, the US Government Printing Office Style ManualThePublication Manual of the American Psychological Association, and the AP Stylebook are just a few of the style guides that recommend one space after a period. . . .

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How Much Is Your Arm Worth?



How Much Is Your Arm Worth? Depends On Where You Work, by Michael Grabell, ProPublica, and Howard Berkes, NPR, ProPublica Blog


Each state determines its own workers’ compensation benefits, which means workers in neighboring states can end up with dramatically different compensation for identical injuries.

At the time of their accidents, Jeremy Lewis was 27, Josh Potter 25.

The men lived within 75 miles of each other. Both were married with two children about the same age. Both even had tattoos of their children’s names.

Their injuries, suffered on the job at Southern industrial plants, were remarkably similar, too. Each man lost a portion of his left arm in a machinery accident.

After that, though, their paths couldn’t have diverged more sharply: Lewis received just $45,000 in workers’ compensation for the loss of his arm. Potter was awarded benefits that could surpass $740,000 over his lifetime.

The reason: Lewis lived and worked in Alabama, which has the nation’s lowest workers’ comp benefits for amputations. Potter had the comparative good fortune of losing his arm across the border in Georgia, which is far more generous when it comes to such catastrophic injuries.

This disparity grimly illustrates the geographic lottery that governs compensation for workplace injuries in America. Congress allows each state to determine its own benefits, with no federal minimums, so workers who live across state lines from each other can experience entirely different outcomes for identical injuries.

Nearly every state has what’s known as a ‘schedule of benefits’ that divides up the body like an Angus beef chart. . . .

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Free Legal Research With Google Scholar – Part II.


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How To Conduct Free Legal Research Using Google Scholar In 2015 (Part 2), by Nicole L. Black, LLRX.com


Legal research is something lawyers do nearly every day. That’s why convenient, affordable access to legal research materials is so important. The advent of computer-based legal research was the first step toward leveling the playing field and providing solos and small firms with access to the incredible depth of materials once only available in academic or government law libraries or in the law libraries of large law firms. But it was web-based legal research that truly gave solos and small firms the tools they needed to compete-and at a price they could afford. Google Scholar is a prime example of this-it provides free access to a wide range of legal materials, all of which are accessible and searchable via a user-friendly interface. The trick is to set aside time to learn the ins and outs of conducting legal research on Google Scholar. . . .

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When A Divorcing Spouse Hides Assets, How Do You Find The Red Flags?


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Divorce & Hidden Money: Searching For Assets By Recognizing Red Flags, by Fred Abrams, Asset Search Blog


If a divorcing spouse hides marital assets there usually are red flags. Red flags are also often found when assets have been hidden by tax fraudsters, Ponzi schemers, bankruptcy debtors, money launderers & narco-traffickers. This 16th post in the ‘Divorce & Hidden Money ‘ series examines the red flags.

Red flags indicating assets might have been hidden are listed at my post ‘Locating Hidden Assets By Spotting The Red Flags.’ The list describes 18 red flags including the use of: multiple jurisdictions, sham trusts, bulk-cash smuggling, etc. In addition to the 18 on the list, below are 6 more red flags of asset concealment. The 6 red flags or money laundering indicators were published by the Egmont Group, an international organization which fights money laundering and terrorist financing.¹   Even though some of them discuss criminals or laundering, the 6 red flags might be used to help locate assets hidden by a divorcing spouse ….

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Who Knew Adverbs Were So Dangerous?


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Using Adverbs Recklessly Can Hurt Your Appeal And Vex The Courts, by Debra Cassens Weiss, American Bar Journal – Appellate Practice (with hat tip to William P. Statsky)


Adverbs can be a boon and a bane to lawyers who argue over the meaning of words such as ‘knowingly,’ ‘intentionally’ and ‘recklessly’ and sprinkle them throughout their briefs.

Indeed, the number of disputes over how to interpret adverbs in criminal statutes has surged since the 1980s, the Wall Street Journal (sub. req.) reports, citing research by Brooklyn Law School professor Lawrence Solan. But losing an argument over statutory construction isn’t the only downside to adverbs. . . .

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Objection! Argumentative!


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“Objection! Argumentative” Is That Really A Valid Objection During Cross Examination?, by Paul N. Luvera, Plaintiff Trial Lawyer Tips Blog


An outstanding Seattle plaintiff’s trial lawyer & I have been discussing the common objection made during cross-examination that the question is ‘argumentative’ because  of a trial we  have a common interest in where the  judge  sustains cross-examination questions that directly challenge the witnesses testimony as untruthful where the objection of ‘argumentative’ is made. My position is that cross-examination is confrontational and a testing ground for witness credibility by challenging the witness. I believe that judges who sustain an objection to the confrontation as ‘argumentative’ do not fully understand the function of cross-examination and the rules of evidence. I decided to share my viewpoint for your consideration. . . .

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West Virginia Supreme Court of Appeals Rules On Fee-Splitting Between Lawyers and Non-Lawyers.


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West Virginia Supreme Court of Appeals Refuses to Enforce Unethical Fee-Splitting Agreement, by Jeremy Telman, Contracts Prof Blog


Gary Rich and Joseph Simioni met in connection with an asbestos case involving West Virginia University. Rich is an attorney. Simioni has a J.D. but was never admitted to the bar. Starting in the 1990s, the two men collaborated on two additional asbestos cases and contracted with out-of-state law firms to help them class action litigation. It appears that until 2002, the men agreed that they would split the proceeds of their work 50/50. but then Rich announced there would be an 80/20 split in his favor. The parties then proceeded on this basis and committed their agreement to writing in 2005.

Rich now contends that he was under the impression that Simioni was a licensed attorney, and he did not realize that Simioni was not licensed until 2000 or 2001. He consulted with the former Chief Lawyer Disciplinary Counsel of the West Virginia State Bar, who told him that Sinioni ‘might not be able to get paid ethically.’

Simioni eventually filed sued in District Court against the out-of-state law firms, seeking recovery based in quantum meruit, unjust enrichment and breach of an implied contract. The District Court certified the following question to the Supreme Court of Appeals:

Are the West Virginia Rules of Professional Conduct statements of public policy with the force of law equal to that given to statutes enacted by the West Virginia State Legislature?

The Supreme Court of Appeals answered in the affirmative, at least with respect to Rule 5.4 of the Rules of Professional Conduct. which prohibits fee-sharing between lawyers and non-lawyers. The Court held for the first time (but based on numerous authorities) that fee-sharing agreements between lawyers and non-lawyers violate public policy. . . .

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Excellent Editing Tips From Jonathan Van Patton.


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“On Editing,” by Louis J. Sirico, Jr., Legal Skills Prof Blog (with hat tip to William P. Statsky)



Excellent article on editing! Editing is no easy task. You have to practice to do it well.

This article focuses on editing, but also on persuasive writing. Anyone interested in writing a winning brief, motion, or opening and closing argument will like this one. -CCE

An excellent treatise on editing and writing is Jonathan Van Patten’s article “On Editing,” 60 South Dakota Law Review 1 (2015). Employing an extremely clear writing style, he states and explains his propositions on good writing. I plan to distribute the article to the editors of my school’s law reviews.

You can access the article here.

An Employee Manual Predicament.


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Flag on the Play: Court Takes Away Employer’s Victory Because of Mistake in the Employee Manual, by Jason Shinn, Michigan Employment Law Advisor [originally published February 5, 2015]


This past week saw the Seattle Seahawks skillfully avoid winning back-to-back Super Bowls because of (arguably) bad decision-making (all the Seahawks had to do was move the ball 36 inches into the end-zone – the only other decision worse than passing in that situation was having Katy Perry perform at half-time, but I digress).

An employer found itself in a similar situation and after further review its victory in an employment-related discrimination claim was reversed because of poor decision-making in relation to its employee manual.

Specifically, the Sixth Circuit Court of Appeals (the federal circuit that covers Michigan employers) reversed a trial decision in favor of an employer in Tilley v. Kalamazoo Cnty. Rd.Comm’n (1/26/2015). The employer was sued for claims under the Family Medical Leave Act (FMLA) (29 USC § 2601 et seq.) and under Michigan’s Elliott-Larsen Civil Rights Act.

The FMLA and Eligibility

For background purposes, the FMLA provides employees ‘a total of 12 workweeks of leave during any 12-month period for . . . a serious health condition that makes the employee unable to perform the functions of the position of such employee.’ 29 U.S.C. § 2612(a)(1)(D). Importantly, these FMLA benefits are not available to all employees. Only an ‘eligible employee’ who works for an ‘employer’ – as both terms are defined under Act – may obtain such benefits.

The Court of Appeals agreed with the district court that the plaintiff employee was not FMLA eligible pursuant to what is called the FMLA’s 50/75 Employee Threshold (to be FMLA eligible, an employer must employ at least 50 employees at, or within 75 miles of, the employee’s worksite at the time the FMLA leave was requested). Again, it was undisputed that the Road Commission did not employ at least 50 employees at, or within 75 miles of, his worksite at the time the plaintiff sought FMLA leave.

At this point, the employer should have been well into its touchdown dance. But there was a flag on the play – an incorrectly drafted employee manual. . . .

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Free Legal Research With Google Scholar – Part I.


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How To Conduct Free Legal Research Using Google Scholar In 2015 (Part 1), by Nicole L. Black, LLRX.com


It used to be that access to legal research databases cost an arm and a leg, but this was back in the good ol’ days when Lexis  and Westlaw had cornered the legal research market. How times have changed! Today you have more options than ever before, ranging from the old stand bys, Westlaw and Lexis, more affordable legal research options such as Fastcase and CaseMaker, and entirely free alternatives such as Google Scholar.

For many lawyers, Google Scholar is an incredibly appealing option since it’s free. I last wrote about Google Scholar back in 2012 and some of the features have changed, while others have been added. So that’s why I’m writing this updated two-part blog post series on Google Scholar. I’ll explain the ins and outs of using Google Scholar to conduct legal research, focusing on the basics in this post and then in next week’s post, I’ll highlight some of the more advanced features.

For starters, here’s what’s included in the Google Scholar database, as described on the ‘Search Tips’ page at Google Scholar. . . .

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Why It’s A Bad Idea To Use Both Words and Digits When Writing Numbers.


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Revisiting Use of Words and Digits to Express Numbers, by Ken Adams, Adams on Contract Drafting


Some legal writers advocate writing out a number and then adding digits in parentheses. In this post, Ken Adams argues against this practice. If anything, it makes what your writing more verbose and harder to read regardless of the type of document.

Most people do not argue with Strunk and White. Its 3rd edition says to spell out numbers under 100, and use digits for numbers 100 and above. The 4th edition, which came out in 2000, specifically admonishes against spelling out numbers, unless they are used in dialogue. -CCE

More often than not, contract drafters use words and digits to express numbers, as in no later than thirty (30) days after the Closing. That’s a bad idea, for two reasons:

First, it creates clutter that distracts the reader. And the more numbers a contract contains, the greater the distraction.

And second, it violates a cardinal rule of drafting—Thou shalt not state the same thing twice in a contract! Whenever you say the same thing twice, you introduce a potential source of inconsistency. . . .

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Top Ten Checklist For Reviewing Discovery.


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Top Ten Things To Do With Discovery Responses, by Carol Treasure, RN, PhD, JD, Cooper & Scully, P.C., The Bar Association of San Francisco


Attorneys expend tremendous effort drafting interrogatories and requests for admissions or documents. Having a checklist will assist you when reviewing the discovery responses. Below is a list of ten things you can do with discovery responses which can save you time and help with case management. . . .

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No Perfection Standard In E-Discovery?


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Is There a Right to Fail in E-Discovery?, by Craig Ball, Ball In Your Court Blog


Disagreements about scope and process in e-discovery shouldn’t split between plaintiffs’ and defendants’ interests. After all, everyone is a requesting and producing party, whether north or south of the ‘v.’ Yet, the reality is that most defense counsel see themselves as producing parties, and most plaintiffs’ counsel identify with requesting parties. That unfortunate alignment poisons our ability to set aside allegiances and be officers of the Court mutually determined to find the most effective and efficient means to discover evidence illuminating the issues.

Cooperation in e-discovery is derided as naive in an adversarial system of justice, and ‘discovery about discovery’ is vilified as a diversionary tactic, a modern take on the maxim, ‘if you can’t try the case, then try your opponent.’ Counsel for responding parties are quick to note that no party is obliged to deliver a perfect production. They’re absolutely right. Perfection is not the standard. But, is a producing party entitled to fail before a requesting party may inquire into the scope and process of e-discovery? Must we wait until the autopsy to question the care plan? . . . .

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Casetext and Law Genius – Alternatives to Westlaw and Lexis?


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Casetext and Law Genius: Wikipedia for Law? by Sam Harden, Lawyerist Blog


Once hidden behind the paywalls of Westlaw and Lexis Nexis, the law is quickly becoming open source. Court decisions have always been part of the public record, at least in theory, but accessing those decisions has always been difficult for both lawyers and non-lawyers alike. The internet has been slow in getting around to making court decisions publicly searchable and understandable.

Recently, two online communities have attempted to make the law more user-friendly by letting lawyers and members of the public add comments, explanations, and cross-references. Both communities are worth exploring if you are a solo or small practitioner. . . .

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Pregnant Manager Fired For Refusing To Pay Back Money Taken In Robbery.


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Popeye’s Manager Fired after Refusing to Pay for Robbery,  by Thomas J. Crane, San Antonio Employment Law Blog


This is the ugly side of at-will employment. Under at-will employment, a worker can be fired for any reason, so long as the reason does not involve discrimination and a few other rare exceptions. Marissa Holcomb was fired from her job as manager at the Popeye’s in Channel View, a Houston suburb after the place was robbed. The robber took $400 from the cash register. Ms. Holcomb was told to pay back the $400 or be fired. The pregnant mother of three chose to be fired. She could not afford to pay $400, especially after risking her life for her employer. The robber pointed a pistol at her and others during the incident.

Ms. Holcomb was fired less than 36 hours after the robbery. A franchise spokeman said she was fired because she left too much money in the register. . . .

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A “Rant of Sorts?” More Like A Meltdown.


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It “May Appear to Some to Be a ‘Rant’ of Sorts,” by Kevin Underhill, Lowering the Bar Blog


Okay, there’s no question that the person who wrote this document had some issues to get off her chest. We all need to express ourselves. Some of us just do it differently than others. Regardless of what has happened in this case, this reaction over the top.

This is probably a good time to mention that this is not the way to persuade the court to do what you want. -CCE

In this Facebook post, Tamah Jada Clark, the author of the now-legendary pleading entitled ‘To F— This Court And Everything That It Stands For,’ expresses puzzlement as to why that pleading ‘has now, apparently, become a ‘big deal.’ She also suggests that ’there is a lot of ambiguity and confusion as to what exactly has taken place heretofore to provoke what may appear to some to be a ‘rant’ of sorts.’

That may appear to some to be an understatement of sorts.

Clark suggests in the post that she ‘will take time to address the matter’ in the near future, and I’m certainly looking forward to that, but she does offer a couple of justifications. First, she argues that the incident is being exaggerated, saying that the ‘Notice [To F— This Court And Everything That It Stands For] is one of MANY documents I filed with the court and it only represents less than 1% of what has taken place.’ I know what you mean. You do everything right and then just ONCE you snap and file a nine-page profanity-filled diatribe telling a federal judge that he ‘sucks nuts’ and should ‘die,’ and then they never let you live it down.

Second, she claims that the judge has treated her unfairly all along and, oddly, that the judge has not allowed her to express herself. . . .

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Georgetown Law Creates Pro Bono Firm for D.C. Residents.


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Georgetown Law Designs Firm To Help Low-Income Individuals, Barco 2.0: Law Library Reference


Georgetown Law has announced that it has teamed up with law firms DLA Piper and Arent Fox to create a new nonprofit law firm designed to help low-income individuals with their civil law needs. Named the D.C. Affordable Law Firm (DCALF), it will be a nonprofit low bono law firm that will provide affordable, high quality legal services to D.C. residents who do not qualify for free legal aid and to small businesses and nonprofits in the District. The anticipated opening date is October 2015. . . .

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The Rule of Witness Sequestration.


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No Contact: Superior Court of Pennsylvania Reacts to Violation of Sequestration Order by…Lifting the Order, by Colin Miller, EvidenceProf Blog


If you’ve ever been to trial and in charge of wrangling witnesses, you know about the rule of sequestration. Usually one or both parties invoke the rule at the beginning of trial, and anyone who may testify as a witness must leave the courtroom. The point is to prevent any witness’ testimony to be influenced by that of another’s.

This post discusses the Rule and the Court’s ruling when the Rule is not followed.  Like Mr. Miller, I don’t understand the Court’s ruling on this one. -CCE

Similar to its federal counterpart, Pennsylvania Rule of Evidence 615 reads as follows:

At a party’s request the court may order witnesses sequestered so that they cannot learn of other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize sequestering:

(a)  a party who is a natural person;

(b)  an officer or employee of a party that is not a natural person (including the Commonwealth) after being designated as the party’s representative by its attorney;

(c)  a person whose presence a party shows to be essential to presenting the party’s claim or defense; or

(d)  a person authorized by statute or rule to be present.

So, assume that a judge orders a witness sequestered and tells him not to discuss the case with prior witnesses. Further, assume that the witness violates this sequestration order by talking to a prior witness. You’d expect there to be severe consequences for that witness, right? . . .

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