2014 Judicial “Hellholes” Report Is Here.


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The 2014 Judicial “Hellholes” Report Is Out!, by Gerald L. Maatman, Jr., Seyfarth Shaw LLP, Class Action Litigation


Each year the American Tort Reform Association (“ATRA”) publishes its ‘Judicial Hellholes Report’ and examines problems in state court systems and challenges for corporate defendants in the fair and unbiased administration of justice.

The ATRA’s 2014 Report was published this morning; a copy is here, as well as an executive summary here.

Insofar as the Report identifies and defines a judicial hellhole as a jurisdiction where judges in civil cases systematically apply laws and procedures in an unfair and unbalanced manner, the Judicial Hellholes Report is an important read for corporate counsel facing class action exposures. In sum, if one has to litigate class actions and make decisions with respect to venue strategy, the Report is a ‘must read.’ . . .

May Defense Counsel Ask Plaintiff Whether He Was Referred to Doctor?


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“Did Your Attorney Refer You to that Doctor?” by Daniel E. Cummins, TORT TALK Blog


In a recent Delaware County Court of Common Pleas decision in the case of English v. Stepchin, No. CP-23-CV-786-2014, 101 Del. 424 (C.P. Del. Co. Nov. 12, 2014 Kenney, P.J.), President Judge Chad F. Kenney upheld a defense attorney’s right to inquire of a personal injury plaintiff whether or not plaintiff’s counsel had referred the plaintiff to her treating physician.

This issue came before the court on a Motion for a Re-Deposition of the plaintiff by defense counsel.

At the original deposition, plaintiff’s counsel objected to the defense counsel’s question to the plaintiff as to whether or not plaintiff’s counsel had referred the plaintiff to her treating physicans. Plaintiff’s counsel asserted that such discovery was barred by the attorney-client privilege.
In his Opinion issued on the matter, President Judge Kenney held that, ‘whether counsel referred Plaintiff to her treating physicians does not constitute legal assistance so as to justify properly invoking the attorney-client privilege.’ More specifically, the court found that whether an attorney referred his client to a medical provider for treatment cannot be considered to have been a communication from an attorney to his or her client associated with the rendering of a legal opinion or the provision of legal services so as to invoke the applicability of the attorney-client privilege.

President Judge Kenney also stated that any asserted privilege ‘failed to outweigh the interest of the accessibility of material evidence to further the truth-determining process’ at a trial of a personal injury matter.

The Court granted Defendant’s Motion and ordered a 2nd deposition limited to the issue of who referred Plaintiff to her treating physicians.

Anyone wishing to review this decision, may click this LINK.

2013 FBI Hate Crime Statistics.


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FBI 2013 Hate Crime Statistics, by Sabrina I. Pacifica, BeSpacific Blog


‘Today[December 9, 2014], the FBI released its annual Hate Crime Statistics report, which revealed that 5,928 hate crime incidents involving 6,933 offenses were reported by our law enforcement partners to the Bureau’s Uniform Crime Reporting (UCR) Program in 2013. These hate crime incidents impacted a total of 7,242 victims—which are defined as individuals, businesses, institutions, or society as a whole. The number of reported hate crimes last year is down slightly when compared to 2012 UCR figures—5,928 in 2013 versus the 2012 figure of 6,573. Hate Crime Statistics, 2013—the first UCR publication to contain data collected under the Matthew Shepard and James Byrd, Jr. Hate Crime Prevention Act of 2009—has a few changes from previous reports. First, biases against gender (male or female) and gender identity (transgender and gender nonconformity) have been added to the list of bias categories. And in response to the Shepard/Byrd Act, we modified our data collection so that reporting agencies can indicate whether crimes were committed by, or directed against, juveniles.’

New “Must Have” PDF Book For Lawyers By Ernie Svenson.


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Review: PDF Essentials for Lawyers by Ernie Svenson / MPU 230, by Jeff Richardson, iPhone J.D. Blog


You know this has to be good. First, it’s recommended by Jeff Richardson; second, the book is written by PDF expert Ernie Svenson. It doesn’t get much better than that. -CCE

I still remember the time, many years ago, when PDF documents seemed novel. Today, of course, most attorneys work with PDF documents just about every day, especially if you practice in federal court. And PDF is my preferred file format for storing documents on my iPad. My GoodReader app has a huge number of folders, each of which is full of PDF documents for the pleadings, correspondence, research, exhibits, and other key documents associated with my case files. But as much as I work with PDF files, I always feel like there is so much more to know about working with this file format.  I suspect that most of you feel the same way. (If you don’t, then either you are a PDF genius, or you just don’t know what you are missing.)

Today, I have two good recommendations for helping you to learn more about working with PDF files:  a free podcast, and an inexpensive book. . . .

Eeek! Microsoft Office Kills Clip Art, But You Have Other Options.


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How To Find Images For Office Documents Now That Microsoft’s Killing Clip Art, by Derek Walter, PCWorld


But Microsoft is sending its Office clip art to the digital beyond, where it shall rest in glory with Clippy, Zune, and the rest of the Redmond saints.

In other words, those wonky, yet charming images that graced countless PowerPoint presentations are in their last days. Microsoft already nixed the website where you could download Clip Art, so it may not be long before it disappears from Office entirely.

These guys won’t be around much longer.

So it’s time for a different plan. The good news is that Office already has better options for spicing up your files than relying on the dated and questionable-looking Clip Art. For example, Office’s integrated Bing Images search is solid, parsing the web for copyright-free images that you can use to bring some life to the staid world of business presentations.

That’s not the only available solution, however. Here’s a rundown of your best options for grabbing the clip art that’s still there—and learning some new strategies for better images. . . .

How Are Your Punctuation Skills?


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Improve Your Writing Skills. How Would You Punctuate these Paragraphs?, by Jack McNeill, Pace Law Library Blog (with hat tip to William P. Statsky!)


Bill Statsky ran across this jewel, and was kind enough to send it along. Regardless of how well we think we write, there is room for improvement for many of us, myself included. Exercises such as this help to hone our skills. -CCE

From the ABA Journal we have this challenge. Two paragraphs are proposed. They include no punctuation. How would you punctuate them? Proper punctuation improves the clarity and flow of your writing. Try your skills. Later in the article the paragraphs are shown professionally edited. If you did not do well against the professional, think about how the professional approached the paragraphs and what you might do to use those skills to improve your own writing. The article is here: How are your punctuation skills? Try this comparison exercise to find out.

“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


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


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


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


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


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


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


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


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


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


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


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


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


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


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)


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


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


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!)


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!)


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. . . .


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