“Lock Down” Your Bates Numbers To Prevent Edits By Opposing Counsel.

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Preventing Edits To Bates Numbers Applied In Acrobat, by Rick Borstein, Acrobat for Legal Professionals Blog

http://tinyurl.com/lvc4j87

If your job is anything like mine, you use Adobe Acrobat to Bates number documents all the time. There are many reasons to use a Bates numbering system. One of the top reasons is that it helps to eliminate confusion and keeps documents organized.

If opposing counsel can change the Bates numbers on your produced documents, it can create havoc. I do not like havoc, especially when I have spent a lot of time and my client’s money to create a neatly Bates-numbered set of documents. Thank you, Mr. Borstein! -CCE

[T]he ability to remove Bates Numbers is valuable in case you make a mistake during the numbering process. However, due to the adversarial nature of the legal business, attorneys may desire to limit what the other side can do with documents.

To whit, this email I received from an attorney last week:

What can I use to flatten Bates numbers so that they cannot be altered or removed using the Acrobat Bates numbering process?

I know I can print to PDF, save as TIFF, print-then-scan, etc., but am looking for a solution that will work in batch mode and not degrade the appearance of the file. Also, I don’t favor using security settings because I don’t want to restrict the user’s ability to access the file.

In this article, I’ll discuss how to ‘lock down’ Bates Numbers so that they cannot be removed by Acrobat’s ‘Remove Bates’ option. . . .

European Countries Fed Up With Google’s Privacy Policy.

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Dutch Authority To Google: Change Privacy Policy Or Else, by Lock Essers, PCWorld

http://tinyurl.com/n6h5b7y

If Google doesn’t change how it handles users’ private data by the end of February, it may face fines of €15 million (about US$18.6 million), the Dutch Privacy Authority said Monday.

Google’s current privacy policy breaches several provisions of the Dutch data protection act, the regulator found in an investigation in 2013. In particular, the probe showed that Google breaches the law when it combines data from different services like search queries, location data and videos watched.

‘Google catches us in an invisible web of our personal data without telling us and without asking us for our consent. This has been ongoing since 2012 and we hope our patience will no longer be tested,’ said Jacob Kohnstamm, chairman of the Dutch DPA.

By the end of February, Google should get ‘unambiguous consent’ from its users before it combines personal data from different Google services to serve targeted ads, the DPA said. This could for instance be achieved by introducing a separate consent window.

Moreover, Google should also give clear and consistent information in its privacy policy to people who use several Google services. . . .

Famous Trials.

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Famous Trials, by Douglas O. Linder, University Of Missouri-Kansas City (UMKC) School Of Law

http://law2.umkc.edu/faculty/projects/ftrials/ftrials.htm

Every famous trial you can think of beginning with the trial of Socrates in 399 B.C. to the Zimmerman trial (Trayvon Martin shooting) in 2014. -CCE

All Types Of 2015 Internet Privacy Protection Sites.

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Guide To Privacy Resources 2015, by Marcus P. Zillman, LLRX.com

http://www.llrx.com/features/privacyresources2015.htm

The Guide to Privacy Resources 2015 is a comprehensive listing of privacy resources currently available on the Internet. These include associations, indexes, search engines as well as individual websites and sources that supply the latest technology and information about privacy and how it relates to you and the Internet. These resources and sources will help you to discover the many pathways available to you through the Internet to find the latest privacy sources and sites. . . .

Scathing Report on Arizona’s Criminal Justice System.

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Case Tossed Vs. Debra Jean Milke, Woman Held 22 Years In Son’s Death, by Jacques Billeaud and Bob Christie, Huff Post Crime

http://tinyurl.com/ogkwpc5

In a scathing critique of Arizona’s criminal justice system, a state appeals court on Thursday ordered the dismissal of murder charges against a woman who spent 22 years on death row for the killing of her 4-year-old son.

The Arizona Court of Appeals leveled harsh criticism against prosecutors over their failure to turn over evidence during Debra Jean Milke’s trial about a detective with a long history of misconduct and lying. The court called prosecutors’ actions ‘a severe stain on the Arizona justice system.’

A three-judge panel of the appeals court said it agreed with Milke’s argument that a retrial would amount to double jeopardy.

The failure to disclose the evidence ‘calls into question the integrity of the system and was highly prejudicial to Milke,’ the court wrote. ‘In these circumstances — which will hopefully remain unique in the history of Arizona law — the most potent constitutional remedy is required.’ . . .

This Is THE Right Way To Cite to Legal Authorities.

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Four Tips on Citing Authority, by Professor Eric Voigt, R+W Legal Consultants

http://rwlegalconsultants.com/four-tips-on-citing-authority/

Although Professor Hazelwood of the University of Kentucky does not resolve the continuing debate between citations in the text or in footnotes, she has drafted a practical article on citing authority. Professor Hazelwood discusses four ways to unclutter your legal writing: (1) don’t string cite numerous cases for the same point; (2) place citations at the end of sentences; (3) include explanatory parentheticals with citations to further explain the relevance of the citations; and (4) avoid unnecessary repetition.

Her article was published by the Kentucky Bar Association in its monthly journal, Bench & Bar. You can read the full article on her SSRN page.

In Legal Writing, Why Less Really Is More. Really, Really.

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Less is more. Really. by Raymond Ward, the (new) legal writer blog

http://tinyurl.com/l94vnyd

If you really have the goods, modesty is more effective than piling it on. Mark Herrmann explains this principle.

Jury Persuasion For Mixed Gender Message Delivery.

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Simple Jury Persuasion: Gender And Message Delivery And Framing, by Douglas Keene, The Jury Room Blog

http://tinyurl.com/osj9h23

Trial lawyers (and others who communicate to persuade) are always looking for a ‘silver bullet’ with which to gild their courtroom presentations. Today’s research offers a glimpse at this holy grail . . . as long as your listeners are either all male or all female. But fear not, there is also something very useful embedded in the results that allows you to improve the receptivity of a mixed gender audience to your message.

Researchers wanted to see if varying message delivery and message framing would make a difference in how the same message was perceived by male and female listeners. In other words, they wondered if you need to communicate differently to a male audience than to a female audience. They examined 2 kinds of message delivery and 2 kinds of message framing in a study focused on being physically fit.

To explore this, they created four (45 seconds long) videos about the importance of regular exercise (a male actor played the part of narrator ‘Dr. Linton,’ a health expert). The messages on the video were delivered in either an eager or a vigilant style and with either a gain or loss framing. (That means there were four versions of the video:  eager delivery style with either a gain message or a loss message or a vigilant style with either a gain message or a loss message.) . . .

How To Make § And ¶ On Your iPhone.

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Sections And Pilcrows –Making The § And ¶ On The iPhone, by Jeff Richardson, iPhone J.D. Blog

http://www.iphonejd.com/iphone_jd/2014/12/sections-and-pilcrows.html

Yesterday, I reviewed an app called Codification, which uses for its icon the section symbol — §. That is certainly a symbol that lawyers need to type a lot, but it isn’t immediately apparent how to do so on an iPhone or iPad. I was discussing this with Ray Ward, an appellate attorney at my law firm who also publishes the great blogs The (New) Legal Writer and Louisiana Civil Appeals, and he reminded me that it is almost impossible to create the pilcrow on an iPhone. The what? Yeah, I had to look that one up too; a pilcrow is a symbol that most lawyers call the paragraph symbol — ¶.

You can type many additional characters using the iPhone and iPad keyboard by holding down on a letter. I see that I haven’t posted a full list of those shortcuts since 2010, back when iPhone J.D. had far fewer readers, so I though it might be useful to post the list again, which is largely still the same in iOS 8: . . . .

NLRB “Likes” Facebook.

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Social Media Update: Recent Developments from the Land of Facebook…, by John R. Martin, Rhoads & Sinon LLP

http://tinyurl.com/ky45qvf

I think we can all agree that, as a general rule, employers and social media are not Facebook friends. They don’t follow each other on Twitter. Or Instagram. And they would never (ever) be caught dead sending the other a Snapchat. (Mind out of the gutter, people. Not that kind of Snapchat.)

While employment relationships, for the most part, remain ‘at-will,’ social media has slapped the handcuffs on employers in many respects when it comes to the issue of employee discipline. Most notably, the National Labor Relations Board (“NLRB”) has come down hard on an employer’s ability to discipline an employee for social media-related conduct that has even a passing relationship to the terms and conditions of employment (e.g., complaining about wages, benefits, hours worked, etc.). The NLRB has also frowned on many social media policies and has declared nearly all of the ones it has reviewed to be unlawfully overbroad in restricting an employee’s right to engage in protected activity online.

Sorry employers… things aren’t getting any better just yet, as two recent cases have made clear.

An Employee’s First Amendment Right to ‘Like’

A federal appellate court recently ruled that clicking Facebook’s ‘Like’ button can be considered speech protected by the First Amendment. In the case, several deputies were not reappointed by the sheriff after winning his reelection campaign. What was the alleged reason for this decision? The deputies had (horror!) ‘liked’ the Facebook page of one of the sheriff’s opponents during the election….

The (now unemployed) deputies sued, citing a violation of their First Amendment rights. (A viable legal claim, as this is a public, i.e., government, employer. As discussed in a previous blog post, private employers need not concern themselves with such issues. However, when politics are at play, there’s always cause for concern, whether public or private, as was discussed in another prior post.) And guess what? The deputies won….

Federal Judge Uses Benchslap Cartoon To Make Civil Procedure Point.

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Judge Uses Cartoons To Benchslap Jones Day, by Joe Patrice, Above The Law Blog

http://abovethelaw.com/2014/12/judge-uses-cartoons-to-benchslap-jones-day/

Judge Robert J. Jonker is a saucy one.

He once shot down Thomas M. Cooley Law’s trumped up defamation claims by declaring that the statement that Cooley “‘grossly inflates its graduates’ reported mean salaries’ may not merely be protected hyperbole, but actually substantially true.” Snap.

So it wasn’t a tremendous shock to see Judge Jonker involved when a recent benchslap kicked off with a cartoon.

Is it the funniest cartoon in the world? No. Indeed, it falls into the Ziggy realm of groan-inducing comics. But is it a special kind of embarrassing when a federal judge feels words are not enough to call out your inappropriate behavior and breaks the judiciary’s largely staid approach to put a comic into an opinion? Absolutely.

So what got him so irked? . . . .

Is It “Shall Not . . . Unless” Or “May . . . Only If”?

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“Shall Not … Unless” Versus “May … Only If” (Updated!), by Ken Adams, Adams On Contract Drafting Blog

http://tinyurl.com/mdnboct

One of the privileges of blogging is that it gives you the opportunity to talk utter BS without doing much damage. A case in point is this post, originally published on August 4, 2014.

To recap, the issue was whether one of the two following alternatives was preferable to the other:

Acme shall not sell the Shares unless Widgetco consents.
Acme may sell the Shares only if Widgetco consents.

In an August 6 update I opted for the version with shall not, saying that it avoids the uncertainty inherent in the version using may … only. Well, I’m here to tell you that that’s incorrect, in that both versions incorporate uncertainty.

In the version with shall not, the question is what category of contract language applies if Widgetco consents. Our old friend the expectation of relevance (more about that here) suggests that Acme may sell the Shares if Widgetco consents, but it’s conceivable that it might instead be obligated to sell the Shares if Widgetco consents.

And in the version with may . . . only, the expectation of relevance suggests that Acme may not sell the Shares if Widgetco doesn’t consent, but it’s conceivable that it might instead be obligated to sell the Shares if Widgetco doesn’t consent.

So in terms of uncertainty, there’s nothing to choose between the two. To eliminate that uncertainty you’d have to say the following:

Acme shall not sell the Shares, but it may sell the Shares if Widgetco consents.

(You could say instead Acme shall not sell the Shares unless Widgetco consents, in which case Acme may sell the Shares, but I have a slight preference for the version using except, as it’s shorter.)

Would I go to the trouble of eliminating the expectation of relevance? I think so, but I acknowledge that doing so would be pretty hard-core.

If you don’t want to eliminate the expectation of relevance, which of the two original options would I go for now? Still the version with shall not. The default position is that absent contract restrictions, one may do stuff, so it follows that it’s the prohibition that has teeth; I’d lead with it.

Evan Schaeffer Shares Top Legal Writing Tips.

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Improve Your Legal Writing, by Evan Schaeffer, The Trial Practice Tips Lawyer Blog

http://www.illinoistrialpractice.com/2014/11/improve-your-legal-writing.html

My three articles on legal writing, all originally published in the Illinois Bar Journal, continue to get a steady stream of Google-fueled web traffic.

I’ve reposted these three articles, which are favorites of mine, on my personal website. Follow the links to–

Five Steps Towards Persuasive Writing,

Improve Your Legal Writing with Five Simple Rules,’ and

First Drafts Made Easy.’

Hundreds of other legal-writing tips can be found here at Trial Practice Tips in the Legal Writing’ category.

Attorney Disbarred For Mishandling Administration of Mother’s Estate.

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Brother Can You Spare A Disbarment? by Mike Frisch, Legal Profession Prof Blog

http://tinyurl.com/m8bcrmw

The Washington State Supreme Court has disbarred an attorney for misconduct in connection with the administration of his mother’s estate.

The attorney was appointed as personal representative on his mother’s death in 1995. He lived with her at the time of her death and had his law office in her home.

The estate was to be equally divided between him and his three brothers.

The court affirmed findings that the attorney had engaged in frivolous motions and appeals, ignored discovery obligations and mis-valued estate assets.

In this case, the hearing officer reasonably concluded from the evidence presented at the hearing that Jones filed frivolous motions and appeals that harmed his brothers and the administration of justice. Jones filed numerous motions and appeals in the trial court, the Court of Appeals, and this court. Each motion was denied, and sanctions were awarded against Jones. Because Jones received sanctions, the hearing officer reasonably concluded that Jones was put on notice of the frivolous nature of his motions before refiling and appealing them. Like in Sanai, the hearing officer did not rely solely on a particular judicial ruling, but rather used judicial decisions as evidence that Jones filed repetitive frivolous motions that resulted in sanctions. The hearing officer’s conclusions were additionally supported by the testimony of six witnesses, resulting in over 1,500 pages of transcripts, as well as nearly 200 exhibits.

The court found seven aggravating factors including refusal to acknowledge the ethical violations

Jones argues that the record does not support refusal to acknowledge because he is not required to agree with the charges made or to confess. However, the aggravating factor of refusal to acknowledge the wrongful nature of conduct was correctly applied. Jones continued to file motions, lawsuits, and appeals even after being sanctioned numerous times for the frivolous nature of such filings. By receiving sanctions, Jones was aware of his RPC violations but persisted with his conduct.

Mrs. Finklebean And Whether To Use “And” and “But” At Beginning Of Sentences.

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A Letter to Mrs. Finklebean, by Mark Cooney, Plain Language, 93 Mich. B. J. 60 (August 2014)

www.michbar.org/journal/pdf/pdf4article2413.pdf

Dear Mrs. Finklebean,
I was a student in your fourth-grade class
way back, jeez, almost 30 years ago—long
before my silk-stocking days as a partner at
a prestigious law firm. If I stand out in your
memory, it’s probably because of my regrettable
decision to put a wriggling gob of earthworms
into your coat pocket after recess
one day. I swear it wasn’t my idea; Butch
Dugan threatened to give me an atomic
wedgie unless I did it. Once again, I’m truly
sorry for that little stunt.

But I haven’t written you after all these
years to renew my childhood apologies, Mrs.
Finklebean. In fact, if I may be so bold, I’ve
written because you owe me an apology—
one that’s long overdue. Let me explain. . . .

 

 

Hiring A Private Investigator To Find Hidden Assets?

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Private Investigators: 5 Things To Be Aware Of When Hiring A PI For A Bank Account Search, by Fred L. Abrams, Asset Search Blog

http://tinyurl.com/k6l5nah

This is the first post in my new series about what private investigators can & cannot do legally when searching for hidden assets. Divorcing spouses, creditors bringing forced collection proceedings, etc., may search for assets by hiring private investigators and/or information brokers who try to detect secret bank accounts. The post asks: what standards should be followed when investigating bank accounts at U.S. financial institutions? At the conclusion it discusses some best practices. . . .

Want To Take Better Depositions? Follow The Basics.

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Six Steps to Better Depositions, by Evan Schaeffer, Lawyerist Blog

https://lawyerist.com/78538/six-steps-better-depositions/

Evan Shaeffer is one of my favorites. The art of taking a deposition is one of his specialities. -CCE

My first depositions were often frightening experiences. Like most new lawyers, I plunged ahead and tried to do my best, but I rarely felt at ease.

As my discomfort gave way to confidence, I developed techniques I began to use at every deposition. What follow are guidelines, not hard-and-fast rules. But I consider these techniques so useful I continue to use them today. . . .

Changes to Federal Rules Effective December 1, 2014.

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Federal Rules of Practice and Procedure, United States Courts (with hat tip to Andrea Duncan, RP!)

http://www.uscourts.gov/RulesAndPolicies/rules/current-rules.aspx

The following rules became effective December 1, 2014:

Appellate Rule 6 (doc) (pdf)

  • Doc. 113-161 – Amendments to the Federal Rules of Appellate Procedure (pdf)

Bankruptcy Rules 1014, 7004, 7008, 7054, 9023, and 9024 (doc) (pdf), and 8001-8028 (“Part VIII Rules”) (doc) (pdf)

  • Doc. 113-165 – Amendments to the Federal Rules of Bankruptcy Procedure (pdf)

Civil Rule 77 (doc) (pdf)

  • Doc. 113-163 – Amendments to the Federal Rules of Civil Procedure (pdf)

Criminal Rules 5, 6, 12, 34, and 58 (doc) (pdf)

  • Doc. 113-162 – Amendments to the Federal Rules of Criminal Procedure (pdf)

Evidence Rules 801(d)(1)(B) and 803(6)–(8) (doc) (pdf)

  • Doc. 113-164 – Amendments to the Federal Rules of Evidence (pdf)

 

Is Email Between You And Your Client Safe? No, And This Is Why.

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How to Encrypt Attorney-Client Communications, by Lisa Needham, Lawyerist Blog (with hat tip to Allen Mihecoby, CLAS, RP!)

http://tinyurl.com/kfrpqz3

If you have decided you need to get serious about client data protection, you will need to consider encrypting both your data and your communications. We have previously covered how to encrypt your data and will focus here on how to encrypt your email communication.

What Is Encryption?

Simply by using the Internet, you are probably using some sort of encryption scheme during some activities, whether you know it or not.

Encryption is simply the act of turning your data into unreadable gibberish. If your data is intercepted or hacked, the thief now has nothing but a pile of garbage.

End-to-end encryption is a must for transferring sensitive data across the internet. In end-to-end encryption, your data is encrypted while it travels towards your intended location and the same encryption occurs on the reverse trip. Your bank (hopefully) uses end-to-end encryption. Your practice management software (hopefully) uses end-to-end encryption if it stores and syncs data remotely. This sort of encryption is done for you without any effort on your part, as it is just a standard feature of the infrastructure you are using to bank or update client data or similar activities.

Why Do You Need to Care?

A few years ago, the ABA issued a formal ethics opinion stating that if there is a significant risk that a third party might gain access to the email, attorneys have to warn clients about that risk.

This poses a problem, because unlike your bank and practice management software, email is usually unencrypted. This is true whether you are using a desktop client or a web-based email like GMail. . . .

Contracts Must Be Drafted With Specific Language To Enforce Arbitration.

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“Harmonizing” Contract Language Leads Two Circuit Courts To Deny Arbitration, by Arbitration Nation Blog, posted at Lexology Blog

http://tinyurl.com/mh3y6z3

Two parties recently convinced federal circuit courts that the language of their arbitration agreements was not sufficient to compel arbitration of their disputes. Both cases turned on how courts ‘harmonize’ language from different parts of an agreement or from multiple agreements.

The decision from the Eighth Circuit was a pretty easy one. The parties’ contract required them to mediate any dispute. Then it said: ‘if the dispute is not resolved through mediation, the parties may submit the controversy or claim to Arbitration. If the parties agree to arbitration, the following will apply…’ The party fighting arbitration (a city in South Dakota) argued the quoted language does not mandate arbitration, it makes arbitration an option for the parties, so the case should remain in court. [Emphasis in original.]

The party seeking arbitration emphasized a sentence at the end of the arbitration paragraph saying that the arbitrator’s ‘decision shall be a condition precedent to any right of legal action.’ It argued that the only way to harmonize that language is to conclude that arbitration is required. The court disagreed, finding that a reasonable interpretation is simply that if the parties decided to arbitrate, the arbitration decision is a condition precedent to further legal action. Quam Construction Co., Inc. v. City of Redfield, ___ F.3d___, 2014 WL 5334781 (8th Cir. Oct. 21, 2014). Therefore, the Eighth Circuit affirmed the district court’s denial of the motion to compel arbitration.

The Fifth Circuit had a harder case in Sharpe v. AmeriPlan Corp., __ F.3d__, 2014 WL 5293707 (5th Cir. Oct. 16, 2014). In that case, three former sales directors of a company sued for breach of contract after they were terminated. The company moved to compel arbitration and the district court granted the motion.

Their original employment agreements with the company did not call for arbitration, in fact they set the venue for legal proceedings exclusively in Texas courts. The employment agreements also incorporated a ‘Policies and Procedures Manual.’ The employment agreements could only be modified with written consent of all parties, but the Manual could be unilaterally modified by the company. Years later, the company amended its Manual to provide for mandatory arbitration.

The Fifth Circuit reversed the district court, finding that the new arbitration clause was unenforceable. First, the court concluded that the jurisdiction and venue clauses in the original employment agreements survived the amendment to the Manual, because there was no written and signed change to the employment agreements themselves and because the company had affirmatively relied on the venue clause (calling for Texas courts) when it transferred the case from California to Texas. And second, the court found that the old and new provisions “cannot be harmonized” without rendering the original agreement meaningless.

There are drafting lessons from these cases: if you want to have mandatory arbitration of disputes, the contract must consistently say that, and if you want to modify existing agreements to add arbitration, make sure to honor any language in the original agreement about how that agreement can be amended or modified and be clear what clauses are replaced or superseded.

Is It That Hard To Follow Rule 34? Not According To The Judge.

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Rule 34: As Basic As You Get, by Joseph Gilliland, Bow Tie Law’s Blog

http://tinyurl.com/mbrcqlf

Magistrate Judge Paul Grewal is one of the new heroes of eDiscovery jurisprudence. In Venture Corp. Ltd. v. Barrett, the good Judge opened with the following on Rule 34:

Most lawyers (and hopefully judges) would be forgiven if they could not recite on demand some of the more obscure of the Federal Rules of Civil Procedure. Rule 80 (Stenographic Transcript as Evidence) and Rule 64 (Seizing a Person or Property) come to mind. But Rule 34 (Producing Documents, Electronically Stored Information, and Tangible Things) is about as basic to any civil case as it gets. And yet, over and over again, the undersigned is confronted with misapprehension of its standards and elements by even experienced counsel. Unfortunately, this case presents yet another example.

Venture Corp. Ltd. v. Barrett, 2014 U.S. Dist. LEXIS 147643, 1 (N.D. Cal. Oct. 16, 2014).

Here is what happened: The Defendant served discovery requests on the Plaintiff and wanted the discovery and organized and labeled to identify the requests to which they were responsive; The Plaintiff did not want to do that and instead produced 41,000 pages of discovery, which ended with the Court ordering re-production for not following either Rule 34(b)(2)(E)(i) or (ii). Venture Corp. Ltd., at *1-2.

The Tactical Document Dump

Federal Rule of Civil Procedure Rule 34 is supposed to prevent the ‘document dump,’ which was the attorney Cold War equivalent of a doomsday weapon. . . .

Do You Ever CC Clients On Emails? Here’s Why You Shouldn’t.

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Don’t CC Clients on Emails, by Sam Glover, Lawyerist Blog

http://tinyurl.com/mrm3ucz

This one seems like a no-brainer, but I suspect many lawyers and paralegals alike have not realized the danger in this practice. -CCE

As a general rule, you should not CC your clients on emails.

First, because it gives every other recipient a chance to communicate directly with your client. In fact, it looks like an invitation to do so. Opposing counsel should know better, but even they might use Reply All accidentally, accidentally-on-purpose, or maybe even intending — albeit misguidedly — to be helpful.

In the case of recipients who are not bound by the rules of professional responsibility, you can hardly be surprised if they take the inclusion of your client’s email address as an invitation to keep them in the conversation or communicate with them directly. And remember that the recipient might forward your email, giving anyone not already included the chance to do so. This could be harmless if your email is related to a friendly business transaction. It could also be disastrous.

Don’t forget that clients can make mistakes, too. Even if you BCC your client to avoid the above problems, it could be your client who uses Reply All.

Second, part of your job is to counsel your client, which is difficult to do without providing at least a sentence or two of summary or context or explanation. If all you do is CC your client on every email (or forward every email with little more than “FYI”), you are missing a chance to do your job.

The better practice is usually to wait until the end of the discussion (or at least a decision point), so you can bring your client up to speed with a brief summary, some context, your analysis, the options you need to discuss, etc. Go ahead and include all the back-and-forth if you like, but don’t just hand it off. It is safe to assume given the fact of your representation that your client wants you to use your legal acumen to help them understand what is going on.

So don’t CC your client. There are certainly some exceptions to this ‘rule,’ or times when it doesn’t really matter. But at a minimum you should think twice before adding your client to the CC or BCC field of an email you are about to send.

Appellate Legal Writing – This Is How You Do It.

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Free La. Appellate CLE Materials, by Raymond P. Ward, Louisiana Civil Appeals Blog

http://tinyurl.com/mg88sy7

Here’s something you don’t see everyday – a top-notch lawyer generously sharing everything juicy in his CLE presentation.  I am a long-time follower of Mr. Ward’s blogs. I strongly recommend this blog, as well as his other blog, the [new] legal writer blog at http://raymondpward.typepad.com/newlegalwriter/

Notice how the propositions further the appellate brief’s argument to the court. They are not simply “The Court Should Grant Summary Judgment to Plaintiff” or something equally bland.  Likewise, the propositions are not more than one sentence.

The Statement of the Case is less than one page. The writer doesn’t bog the Court down with unnecessary facts. You can look, but you will not find even a whiff of legalese.

Please pay attention when you read the materials and each sample document (thank you for including them!). Notice that no words are wasted. There is a reason why.

Notice the word choice, the size of the sentences and paragraphs, and the crafting of the propositions and subheadings. The persuasive argument is easy to follow. The writer keeps the reader’s attention – an absolute must for anything you write.

Do you aspire to be a good writer? Write like this. -CCE

This morning [October 28, 2014], I presented an hour of CLE on appellate practice for the Louisiana State Bar Association’s ‘Bridging the Gap’ seminar, a program for newly minted lawyers who passed the February 2014 bar exam. For attendees and anyone else who may be interested, here are some supplemental materials used or discussed in the presentation:

For reasons discussed at the seminar and elsewhere, I recommend against over-reliance on forms. With that caution stated—and with no warranties—I offer some samples of pleadings and briefs, all in PDF:

Using Location And Time To Exonerate Or Implicate.

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Location. Location. Location., by Craig Ball, Ball In Your Court Blog

http://tinyurl.com/mq2u5zv

Okay, you have to admit that it’s pretty cool when a judge calls to pick your brain! – CCE 

I’m peripatetic. My stuff lives in Austin; but, I’m in a different city every few days. Lately looking for a new place for my stuff to await my return, I’m reminded of the first three rules of real estate investing: 1. Location; 2. Location and 3. Location.

Location has long been crucial in trial, too: ‘So, you claim you were at home alone on the night of November 25, 2014 when this heinous crime was committed! Is that what you expect this jury to believe?’ If you can pinpoint people’s locations at particular times, you can solve crimes. If you have precise geolocation data, you can calculate speed, turn up trysts, prove impairment and even show who had the green light. Location and time are powerful tools to implicate and exonerate.

A judge called today to inquire about ways in which cell phones track and store geolocation data. He wanted to know what information is recoverable from a seized phone.  I answered that, depending upon the model and its usage, a great deal of geolocation data may emerge, most of it not tied to making phone calls. Tons of geolocation data persist both within and without phones.

Cell phones have always been trackable by virtue of their essential communication with cell tower sites. . . .

The Five Basic Excel Functions That Make Your Life Easier.

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5 Basic Excel Functions That Make Work Infinitely Easier, by Fatima Wahab, Addictive Tips Blog

http://tinyurl.com/ndql3ks

Excel is the illiterate man’s (and woman’s) favorite data manipulation tool. The literate i.e. those that can code, don’t need to worry themselves much about columns, rows, and the correct formula and its syntax because these wizards have their own devices. For everyone else, practically anyone in a management position, Excel is an essential work tool. Despite this, a lot of people, especially those just stepping into a job are often intimidated by it. In reality, if you learn Excel well enough, you can use it to keep time based records that update automatically, use it to store inventory, and even conduct surveys. That said, here are five very basic Excel functions that every beginner needs to know. . .

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