Judge Posner Ends Copyright Protection for Sherlock Holmes.

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Judge Posner Solves Sherlock Holmes Copyright Case, by Sabrina I. Pacifici, BeSpacific Blog

http://tinyurl.com/qgtgmbz

Rita Yoon, McDermott Will & Emery: ‘The original character of the famous detective Sherlock Holmes, along with his sidekick, Dr. John H. Watson, are no longer subject to copyright protection.  In an opinion by Judge Richard A. Posner, the U.S. Court of Appeals for the Seventh Circuit held that copyright protection in these century-old literary characters cannot be extended simply by changing their features in later stories.  When the original story expires, the characters covered by the expired copyright are ‘fair game’ for follow-on authors.  Klinger v. Conan Doyle Estate, Ltd., Case No. 14-1128 (7th Cir., Jun. 16, 2014) (Posner, J.).’

 

Listen To The Jurors.

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Listen to Jurors, Especially to Juror #13 From Pamela Smart Trial. by Dr. Ken Broda-Bahm, The Persuasive Litigator

http://tinyurl.com/k9sh7pw

There is a new documentary in current rotation on HBO and it’s one that trial lawyers and other legal junkies will want to watch. Captivated: The Trials of Pamela Smart provides a detailed look at the 1991 trial of the New Hampshire school employee who was tried and convicted for accessory to murder in a case that later become the inspiration for the movie To Die For starring Nicole Kidman. According to prosecutors, Smart seduced one of the students and then recruited him to murder her husband. What separates Captivated from other sensationalized post-trial documentaries is that it takes a very informed and critical look at the media’s influence on trials, and also includes a very unique running commentary from one of the jurors, number 13, who provides her own reactions to the case as it unfolded: real-time comments that she spoke into her own tape recorder after every trial day. The result ends up providing a remarkable view into the continuous reactions of a sitting juror. As O.J. Simpson prosecutor Marcia Clark remarked in a review in Forbes, ‘The insights provided by this articulate, intelligent juror are the most fascinating, and at the same time unsettling, part of the story.’

Fascinating, because what you’re hearing is a conscientious and thoughtful juror attempting to work through the testimony as it is presented. Unsettling, because it is clear that the media along with the force of a popular presumption of guilt also played a role in this case. Commenting on a ‘media circus’ that made her and the other jurors ‘feel like a bug in a glass jar,’ she nonetheless tries to reach a verdict free from that pressure. Whether she and the other jurors succeeded is one of the central questions posed by the documentary, and viewers are able to draw their own conclusions. As I watched it the other night, a few thoughts occurred to me that carry relevance not only for that jury trial, but for most or all jury trials.

Survey Says! iPhone Top Choice Among Attorneys.

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2014 ABA Tech Survey Shows More Attorneys Using iPhones, But iPad Use Holds Steady, by Jeff Richardson, iPhone J.D. Blog

http://tinyurl.com/pxmhlf6

Every year, the ABA Legal Technology Resource Center conducts a survey to gauge the use of legal technology by attorneys in the United States.  My thoughts on the prior reports are located here:  2013, 2012, 2011, 2010.  No survey is perfect, but the ABA tries hard to ensure that its survey has statistical significance, and every year this is one of the best sources of information on how attorneys use technology.  Yesterday, the ABA released Volume VI of the report titled Mobile Lawyers.  This year’s report once again shows that a large number of attorneys are using iPhones and iPads.

Six out of ten attorneys now use an iPhone

In both 2014 and 2013, the survey revealed that 91% of attorneys use a smartphone.  (In 2012 the number was 89% and in 2011 the number was 88%.)  For the past four years, there has been a slight correlation between law firm size and smartphone use.  In 2014, for example, 86% of solo attorneys reported using a smartphone, 89% in firms of 2 to 9 attorneys, 95% in firms of 10 to 49 attorneys, and for firms with 100 or more attorneys, 96% use a smartphone.  As a whole, though, it is fair to say that the survey consistently shows around nine out of every ten attorneys use a smartphone. . . .

Third Circuit Holds Evidence Rule 609 Excludes Admissibility of Prior Criminal Convictions.

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A Rare Federal Opinion that Gets, Really Gets, Rule 609, by Jeff Bellin, EvidenceProf Blog

http://tinyurl.com/lkrrmlw

Federal Rule of Evidence 609 governs the admissibility of criminal convictions to impeach witness credibility.  In a 2008 article, I criticized how the federal courts apply this rule, arguing that because of a widely adopted, often misapplied, and partially incoherent multi-factor framework, courts were letting too many defendants’ convictions be used as impeachment.  As I argued, if courts simply jettisoned the framework and did what the rule commanded – weigh probative value against prejudicial effect – exclusion would become the norm as intended.  Apart from getting the law right, this would have an additional benefit of generating more defendant testimony.  (Defendants generally decline to testify once a judge rules that their record comes in if they do.)  I don’t know how anyone can get behind a system where the person the jury most wants to hear from and who wants to tell his story sits silently at counsel table to keep the jury from hearing about his criminal record.

My arguments made little headway over the years and defendants’ convictions continue to be routinely admitted, but recently the Third Circuit cited my piece (along with criticism of others) in what may be one of the first signs of judicial dissatisfaction with the multi-factored balancing test.  The court also used/endorsed language rarely seen in published opinions that, in my view, gets the tone of Rule 609 right.

Commentators have observed that structuring the balancing in this manner creates a ‘predisposition toward exclusion.’ Wright & Gold, Federal Practice and Procedure § 6132, at 216.  ‘An exception is made only where the prosecution shows that the evidence makes a tangible contribution to the evaluation of credibility and that the usual high risk of unfair prejudice is not present.’ Id.  § 6132, at 217.

U.S. v. Caldwell, — F.3d — (3d Cir. 2014)

Expect to see this language in lots of defense filings going forward and join with me in hoping that the courts are finally awakening to the unmitigated disaster that is the multi-factored Rule 609 balancing test.

Craig Ball On An Essential Lawyer Skill – The Custodial Hold.

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Custodial Hold: Trust But Verify, by Craig Ball, Ball In Your Court Blog

http://ballinyourcourt.wordpress.com/2012/08/09/custodial-hold-trust-but-verify/

Please click on the link to the Pension Committee opinion (you’ll see it in Craig Ball’s article). You’re getting two for one here. Besides, when it’s Craig Ball, you know it’s going to be good. -CCE

Long before the Pension Committee opinion, my dear friend and revered colleague, Browning Marean, presciently observed that the ability to frame and implement a legal hold would prove an essential lawyer skill.  Browning understood, as many lawyers are only now coming to appreciate, that ‘legal hold’ is more than just a communique.  It’s a multi-pronged, organic process that must be tailored to the needs of the case like a fine suit of clothes.  For all the sensible emphasis on use of a repeatable process, the most successful and cost-effective legal holds demonstrate a bespoke character from the practiced hand of an awake, aware and able attorney.

Unfortunately, that deliberate, evolving character is one of the two things that people hate most about legal holds (the other being the cost).  They want legal hold to be a checklist, a form letter, a tool–all of which have value, but none of which suffice, individually or collectively, to forestall the need for a capable person who understands the ESI environment and is accountable for getting the legal hold right.  It’s a balancing act; one maximizing the retention of relevant, material, non-duplicative information while minimizing the cost, complexity and business disruption attendant to meeting one’s legal responsibilities.  Achieving balance means you can’t choose one or the other, you need both. . . .

Refresh App Gives You Insight About Business Contacts Or Potential Clients.

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App of the Week: Refresh L- Insight on People You Meet, by Lisa Pansini, Legal Productivity Blog

http://tinyurl.com/lyuutah

Have you ever had a meeting with a client or acquaintance who you know nothing about? If you want to make a favorable impression, use Refresh, the app that crawls through publicly available information to give you a snapshot of your contacts.

Featured in the Wall Street Journal, Fortune, Fast Company, Tech Crunch and more, Refresh searches the web and social networks to deliver insights about the people you connect with. It delivers information including mutual interests, shared passions, and important moments. It’s an incredible tool when it comes to business and social networking. . . .

Fifth Circuit Reiterates ERISA Standard of Review.

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ERISA Standard Of Review, by Raymond Ward, Louisiana Civil Appeals

http://tinyurl.com/mqhn2mq

In case anyone needed a reminder about the district court’s standard of review in an ERISA case, the U.S. Fifth Circuit recently drove the message home, with some harsh words for the district judge:

It apparently bears repeating here that district courts hearing complaints from disappointed ERISA plan members or their beneficiaries for the administrative denial of benefits are not sitting, as they usually are, as courts of first impression. Rather, they are serving in an appellate role. And, their latitude in that capacity is very narrowly restricted by ERISA and its regulations, as interpreted by the courts of appeals and the Supreme Court, including the oft-repeated admonition to affirm the determination of the plan administrator unless it is “arbitrary” or is not supported by at least “substantial evidence”—even if that determination is not supported by a preponderance. We had thought that by now this was understood and accepted by all district judges of this circuit. But, as this case demonstrates that we were wrong, at least as to one of them, we try yet again to drive that message home.

McCorkle v. Metropolitan Life Ins. Co., No. 13-30745, slip op. at 6–7 (5th Cir. July 3, 2014) (footnotes omitted, emphasis by the court). The opinion goes on to articulate the abuse-of-discretion standard of review applicable in ERISA cases. For anyone who practices in this area, it’s a must-read.

Twitter’s New Policy On Removing Images of The Deceased.

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Twitter To Remove Images Of Deceased Upon Request, by Tim Hornyak, PC World

http://tinyurl.com/kgcvbuz

If LinkedIn has a similar policy, please let me know. -CCE

Twitter said late Tuesday it will remove images and videos of deceased people upon the request of family members, but it put conditions on the policy.

The microblogging service made the announcement a week after the daughter of the late comedian Robin Williams said she would quit Twitter after receiving gruesome images of him from online trolls.

The move also comes as Twitter tried to delete images and video depicting the death of U.S. photojournalist James Foley, who was apparently killed by the militant group Islamic State, better known as ISIS.

‘In order to respect the wishes of loved ones, Twitter will remove imagery of deceased individuals in certain circumstances,’ Twitter spokesman Nu Wexler said in a message about the update to its policies.

‘When reviewing such media removal requests, Twitter considers public interest factors such as the newsworthiness of the content and may not be able to honor every request. . . . ‘

2013 Judicial Writing Manual: A Pocket Guide For Judges.

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Judicial Writing Manual: A Pocket Guide for Judges (Second Edition), Federal Judicial Center 2013 (with huge hat tip to William P. Statsky!)

http://www.fjc.gov/public/pdf.nsf/lookup/judicial-writing-manual-2d-fjc-2013.pdf/$file/judicial-writing-manual-2d-fjc-2013.pdf

Yesterday I posted a link to the First Edition of the Judicial Writing Manual. Twenty years after the First Edition, the Federal Judicial Center published this Second Edition. The goal of the Second Edition, like the First, is summed up in its Forward below. -CCE

Indeed, with so much of today’s writing embedded in the truncated protocols of social media and other “real time” forms of expression, the clarity and persuasive quality the authors of the first edition sought to teach are particularly important for judges’ writing. But the elements of good writing are remarkably constant, and we think that you will find the principles explained so thoughtfully in the first edition no less applicable today.

Jeremy D. Fogel, Director, Federal Judicial Center

 

If You Can Stop Your Divorce Client From Doing This, You Get A Prize.

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Top Ten Ways To Destroy A Child In A Divorce Or Custody Case, by Judge Larry Primeaux, The Better Chancery Practice Blog

http://chancery12.wordpress.com/2011/04/20/top-ten-ways-to-destroy-a-child-in-a-divorce-or-custody-case/

 If you have spent any time at all in family law, then you know too well how destructive divorce can be. The court may admonish the parties against involving their children. The parties’ attorneys may give them the same advice. Why is it so unusual for a parent to resist using the child to hurt the soon-to-be ex-spouse?  Judge Primeaux lists ten ways parents or others often hurt children in various ways during a divorce and urges lawyers to influence their clients to avoid this abusive and damaging behavior. -CCE

Pushbullett App – Connect Instantly Between Computer And Mobile Devices.

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App of the Week: Pushbullet- Share Anything Instantly Between Your Electronic Devices, by Lisa Pansini, Legal Productivity Blog

http://bit.ly/1sOoY5P

In June’s WWDC Keynote, Apple introduced their new iOS for mobile devices as well as Yosemite, their new Mac operating system (both of which are due sometime in the fall). One of the most talked about features is the way it will connect your computer and mobile devices. Phone calls and SMS can be pushed to your computer, and with the new ‘handoff’ feature you can pass whatever you’re doing from one device to another.

If you don’t own a mac, or you’re just tired of being left of of the Apple loop and would still like to have similar functionality on your devices, download the free Pushbullet app today.

Pushbullet makes it easy to get files, links, and more from your computer to your phone or vice versa. You can also send information from one mobile device to another (e.g. phone to tablet) and anyone else who uses the app. All it requires is a chrome or firefox plugin for your computer and an active gmail account. Once the plugins are configured, you can use it to push links to your other devices, or go to Pushbullet.com to send files, notes, lists, or addresses.

Android and Windows devices have full use of the app’s abilities, but Apple devices are currently lacking the “notification mirroring” feature that allows you to receive your sms, phone calls, and other app notifications on your computer. While a major bummer, the Pushbullet website mentions that this feature is coming soon!

All other push notifications show up instantly on your desktop or your mobile device, making the Pushbullet app perfect for anyone who wants a seamless way to stay on top of their notifications. Pushbullet is currently available for iOS and android devices. You can download the apps and necessary plugins directly from Pushbullet’s website.

Federal Judges Writing Manual.

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Judicial Writing Manual, Federal Judicial Center

http://tinyurl.com/k5x898o

This Writing Manual is obviously written specifically for federal judges. Twenty-four experienced jurists were interviewed to write the Manual.  Its board of editors are judges, law professors, and legal writers. Although written for federal judges, it provides insight for any legal writer, especially those who practice in federal court. The Manual is available in print or you can download it as a .pdf document.

This is more. Look at the left-hand side of the page, and click on “Recent Materials“: http://tinyurl.com/odjltbl. From there, it just gets better. At this link you will find papers on specific areas of law. One that caught my eye is Meghan Dunn’s “Jurors’ and Attorneys’ Use of Social Media During Voir Dire, Trials, and Deliberations: A Report to the Judicial Conference Committee on Court Administration and Case Management.”  It is available only online.

Even if you do not practice in federal court, this is definitely worth a look. -CCE

What It Means When Court Opinion’s Author Is “Per Curiam.”

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Scholarship Highlight: The Supreme Court’s Misuse Of Per Curiam Opinions, by Ira Robbins, SCOTUSblog

http://tinyurl.com/8d5qfr7

“Per Curiam” is a Latin phrase that means “by the court.” It is sometimes used to distinguish an opinion written by the entire court rather than one of the judges.

When I worked for a Justice at the Oklahoma Supreme Court, I saw only one “per curiam” opinion handed down by the Court.  Courts don’t decide appeals overnight. It usually takes a year or two before the Court renders an appeal. In this one unique situation, a case had languished for an inordinately long time. I will never know why the judge to whom the appeal had been assigned never got around to it.

To resolve the situation, the Chief Justice re-assigned the case to another judge, who made this particular appeal a priority. As quickly as possible, he wrote a draft opinion circulated to the rest of the court for consideration. When the opinion was adopted and handed down by the Court, the author written on the opinion itself said “per curiam.” The judge who actually wrote the opinion did not want to be unfairly criticized for the delay.

“Per curiam” can be used for other reasons. This post by Ira Robbins at SCOTUS Blog elaborates on the history, use, and misuse of this legal term of art. -CCE

Research Candy! Sabrina Pacifici’s Latest Updated Resource Guide.

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Competitive Intelligence – A Selective Resource Guide – Completely Updated – August 2014, by Sabrina I. Pacifici, LLRX.com

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

If you are not familiar with Sabrina Pacifici, it’s time for introductions. This exhaustive research guide is a special treat. She is the founder, editor and publisher of LLRX.com. In 2002, she started her BeSpacific Blog (http://www.bespacific.com/). This is only a taste of what you will find at LLRX.com and BeSpacific Blog. This  is the good stuff. -CCE

Fine Tune Legal Interpretation and Analysis of Precedent and Stare Decisis.

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The Rule of Law and the Perils of Precedent, by Randy J. Kozel, Michigan Law Review

http://tinyurl.com/jvqd3y3

Introduction

In a world where circumstances never changed and where every judicial decision was unassailably correct, applying the doctrine of stare decisis would be a breeze. Fidelity to precedent and commitment to sound legal interpretation would meld into a single, coherent enterprise. That world, alas, is not the one we live in. Like so much else in law, the concept of stare decisis encompasses a series of trade-offs-and difficult ones at that. Prominent among them is the tension between allowing past decisions to remain settled and establishing a body of legal rules that is flexible enough to adapt and improve over time.[1]

Notwithstanding pervasive disagreement over the application of stare decisis to particular disputes, the doctrine is well established in American jurisprudence.[2] Indeed, the Supreme Court has gone so far as to describe stare decisis as indispensable to the rule of law.[3] But as Jeremy Waldron skillfully reminds us, justifying the doctrine requires more than platitudes.[4] Even a proposition as fundamental and seemingly intuitive as the ability of stare decisis to promote the rule of law conceals a considerable amount of analytical nuance. Professor Waldron concentrates on developing what we might think of as the rule-of-law case for precedent. Central to his project is the recognition that rule-of-law benefits arise at several distinct points along the path from initial ruling to subsequent application. The touchstone is the principle of ‘generality,’ pursuant to which individual jurists subjugate their personal beliefs to the vision of a unified court working across space and time to fashion generally applicable norms.[5]

In this Essay, I wish to build on Professor Waldron’s thoughtful analysis by saying something more about the other side of stare decisis. The rule-of-law benefits of stare decisis are invariably accompanied by rule-of-law costs. In light of those costs, the ultimate question is not whether there are ways in which stare decisis promotes the rule of law. Rather, it is whether stare decisis advances the rule of law on net. Some departures from precedent can promote the rule of law, and some reaffirmances can impair it. Even if the rule of law were the only value that mattered, excessive fidelity to flawed precedents would be cause for concern.[6] That rule-of-law ambivalence, I will suggest, should be brought to bear in calibrating the strength of deference that judicial precedents receive. . . .

Pro Bono Resource for Immigration Attorneys.

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Immigration Advocates, Pro Bono Resource Lawyers

http://www.immigrationadvocates.org/probono/

A simple Google search for immigration pro bono attorneys will lead you to many websites that will connect you to quality, helpful resources. This is only one of them. It provides podcasts, a volunteer guide, library, web links, and more. You will find more links to other pro bono immigration lawyer resources on the right-hand side of the page under “Partners.” -CCE

Avoiding PowerPoint Suicide At Your Next Presentation.

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12 Ways to Eliminate “But I Need Everything On That PowerPoint Slide,” by Ken Lopez, The Litigation Consulting Report

http://tinyurl.com/m5ozef8

Have you ever heard any of the following during a PowerPoint presentation?

  • ‘It may be hard to make out the details of this slide.’
  • ‘I’m not sure if you can read this in the back of the room.’
  • ‘In case you can’t read this, let me read it for you.’
  • ‘I know there is a lot on this slide, but bear with me.’
  • ‘Let me try to zoom in on this part of the slide [proceeds to fumble with remote]’

Of course you have heard these apologetic statements. If you are in the business world, you have probably heard them all. However, there is never an excuse to say these things whether in a boardroom or in a courtroom. As much as you may want everything you have to say about a key message on a single PowerPoint slide, as hard as it may be to imagine another way of doing things, I promise, you most definitely do not need everything (or even a lot) on one slide. And, you can still get your point across.

The number one video in my recent article The Top 14 TED Talks for Lawyers and Litigators 2014 as well as other articles I have written like 12 Reasons Bullet Points Are Bad and 7 Ways to Avoid Making Your PowerPoint Slides Your Handout describe methods for limiting the amount you put on your slide.

With all this said, it is important to remember that sometimes you just need everything on a slide. Sometimes it is an advantage. So, in this article, I want to offer twelve easy methods for eliminating PowerPoint slide clutter and focusing your audience’s attention on what matters – you and your message . . .

Bad GPS Is A Defense? Who Knew?

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Bank Robs House By Mistake, Refuses To Pay Up, by Joe Patrice, Above The Law Blog

http://tinyurl.com/mlm78h9

Imagine returning home from vacation and finding your home cleaned out. The thieves grabbed all the furniture, all the gadgets, all the kitchenware, and left you nothing.

That’s what happened to an Ohio woman recently, and the police are refusing to help.

That’s because the perpetrator was First National Bank. Except Katie Barnett was not behind on her payments; the bank just repossessed the wrong house.

Fair enough. Mistakes happen. The bank is going to pay her back though, right? . . . .

International Law: The Supreme Court of the United Kingdom.

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The Supreme Court of the United Kingdom, by  Donna Sokol, In Custodia Legis, Law Librarians of Congress

http://tinyurl.com/kyg8bwz

Yesterday we celebrated the fourth birthday of In Custodia Legis, and today we have reached another milestone: this is the 1,000th blog post that we’ve published!  We asked David S. Mao, the Law Librarian of Congress, to write the 1,000th post.  In it, he highlights some of the many different areas of interest for the Law Library of Congress, such as legal systems, courts, foreign law, and of course, our collection of current and historical legal materials.

On a trip to London in 2012, I walked past the Supreme Court of the United Kingdom located in Parliament Square. Unfortunately, I did not have the opportunity to visit the Court, as it was Sunday and the building was closed. I was, however, able to take a picture of the front doors.

Earlier this summer, I visited London again. This time I made sure to visit Parliament Square on a weekday so I was able to visit the Court.

While the UK has a long history as a sovereign state, the Supreme Court is a very new entity in the UK. It was created by the Constitutional Reform Act of 2005, with the Justices of the Supreme Court sitting for the first time in October 2009. The Court hears civil appeals from all parts of the UK, and criminal appeals from England, Wales, and Northern Ireland. I’ll leave it to Clare to explain the intricacies of the Court’s jurisdiction. . . .

Federal Judge Benchslaps Counsel For Discovery Abuse In A Very Special Way.

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Biglaw Firm Ordered To Make A Video Apologizing For Discovery Abuses, by Joe Patrice, Above The Law Blog

http://tinyurl.com/k9srego

Litigators get away with a lot of obnoxious stuff during discovery. For better or worse, the pre-trial discovery phase of civil litigation is every lawyer’s opportunity to relive those times when parents leave kids alone for the first time: every slight, disagreement, and jealousy on a slow boil explodes into anarchic back-biting once there’s no authority figure around to enforce civility. Bring on the mean-spirited letters and smack-talking RFAs.

When it comes to depositions, it doesn’t always reach ‘fatboy’ levels, but a federal deposition isn’t a deposition until someone threatens to call the magistrate — though never does.

Which is why this benchslap, where a federal judge levies a sanction straight out of elementary school, is so appropriate….

North American Indigenous Law Portal – A Collection of Primary Sources and Websites.

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Introducing the Indigenous Law Portal, by Tina Gheen, In Custodia Legis, Law Librarians of Congress

 http://blogs.loc.gov/law/2014/07/introducing-the-indigenous-law-portal/

At the recent American Association of Law Libraries Conference, Jennifer Gonzalez, Jolande Goldberg and I had an opportunity to unveil a new Indigenous Law Portal. The Indigenous Law Portal brings together collection materials from the Law Library of Congress as well as links to tribal websites and primary source materials found on the Web. The portal is based on the structure of the Library of Congress Classification schedule for Law (Class K), specifically the Law of the Indigenous Peoples in the Americas (Classes KIA-KIP: North America).

Indigenous law materials can be difficult to locate for a variety of reasons. Tribal laws are usually maintained by individual tribes or groups of tribal peoples who may or may not have the resources to make them available in electronic format, or they may only be passed on through oral tradition. In some cases tribal legal materials are available electronically, but they may not be available freely on the Web, or the tribe may want to restrict outside access to the materials. However, through our research, we have found many tribes compile their laws and ordinances into a code, and they often provide a digital version of their most recent code and constitution online. In the Law Library, we already have digitized copies of historic American Indian constitutions from our collection and other legal materials available on our website. It makes sense to bring all these materials together in one place.

But how to organize such a collection of digital resources? Especially when the complexity and availability of resources varies from tribe to tribe. We wanted a structure that would allow us the flexibility to organize and expand as needed. Something that would provide a basic backbone for organizing the materials and also detailed information about the tribes individually and as a whole. The answer to our dilemma came from an unexpected place: a new classification schedule developed by Jolande Goldberg of the Library of Congress Acquisitions and Bibliographic Access Directorate: the Law of the Indigenous Peoples in the Americas. . . .

Can Your Witness Stand Up To Cross-Examination?

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Counterpunch: Ten Ways to Fight Back on Cross, by Dr. Ken Broda-Bahm, Persuasive Litigator Blog

http://www.persuasivelitigator.com/2014/03/counterpunch-10-ways-to-fight-back-on-cross.html

A good witness should not see cross-examination as an argument, but neither should that witness see it as a time to be agreeable and passive with opposing counsel. Because the inherent conflict of cross piques the jurors’ interest, it can be a critical time. The two sides are in direct conflict and the jury has the ability to decide first-hand who seems to be winning at that moment. Given the stakes, it is too dangerous for a witness to just be led along by opposing counsel, comforting themselves with the knowledge that, ‘Well, at least I got to tell my side in direct,’ or, ‘My own attorney will give me a chance to fix all of this in redirect.’ Both are valid comforts, but effective direct and redirect will never completely erase the perceptual losses that can occur in cross. Substantively, the problem might be fixed, but jurors will still remember those moments where the witness looked weak, and that cannot help but influence their perception of your case and of the witness’s credibility.

The way I’ve explained it before is that cross-examination is, for the witness, a polite struggle. ‘Polite’ because the witness can’t afford to come off as too combative or uncooperative — ‘I’m just here to tell the truth…’ should be the tone. But ‘struggle,’ because there is a skilled advocate at the lectern whose job is to, at least for the moment, support his story and not yours. A good witness needs to work against that purpose. Like any advice, the message to fight back’ can be taken too far, or not far enough. It is a matter of balance and practice, and it clearly helps to get feedback during a prep session or two to make sure the communication is assertive but not aggressive. With these considerations in mind, here are ten ways witnesses can maintain their own power while being cross-examined. . . .

Is It Legal Malpractice If You Are Technologically Incompetent?

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Luddite Lawyers Are Ethical Violations Waiting To Happen, by Megan Zavieh, Lawyerist Blog

http://tinyurl.com/lo9fs45

Do you have a smart phone but only know how to make a telephone call? Do you think of a cloud as some white puffy thing in the sky that looks like a ducky? Do you have a computer on your desk but never turn it on? Is the password to your computer actually “password”? Then this article is for you. Technology is here, and it is not going away. Resistance if futile. -CCE

Technological incompetence used to be merely a competitive disadvantage. Now, it is a potential ethics violation — or even legal malpractice.

During my first year of law school, we were not allowed to do computerized research. Instead, we were taught to use the leather-bound reporters, Shepherds, and treatises. It was only during our second year that we were deemed worthy to use Westlaw and Lexis to ‘confirm’ our book findings. (Of course, I doubt any of us ventured into the stacks again.)

This approach reflected the general attitude of the legal profession in the mid-to-late 1990s. Technology was grudgingly accepted, but not required. Lawyers at big firms had online research accounts and solos went to the law library to use the books. Nobody thought anything was wrong with this, although online research did give big firms a competitive edge.

In 2013, email is ubiquitous, and just about every lawyer has some form of electronic research available on his laptop, tablet, or phone. And everyone — lawyers included — uses Google to find everything else. In law practice, that includes research on witnesses, opponents, judges, and anything else not found in a Fastcase, Westlaw, or Lexis database. Technology is an unavoidable part of practicing law.

Ethics rules follow practice

The ethics rulemakers have taken note of this evolution, and the rules have grown to require technological competence.

Lawyers cannot ignore technology

The ABA made it abundantly clear that lawyers must keep up with technology when it amended comment 8 to Model Rule 1.1 on competence. Comment 8 now reads:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

(Emphasis added.)

As Nicole Black, Director of Business Development at MyCase, puts it, ‘I think it’s pretty clear that […] lawyers can no longer turn a blind eye to technological advancements and their effect on the practice of law.’ . . .

Government Can Access Individual’s Gmail Account In Money Laundering Probe.

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Federal Judge Rules Gmail Account Can Be Accessed For Investigation, by evanino in Evanino Blog

http://www.evanino.com/federal-judge-rules-gmail-account-can-accessed-investigation/

In a landmark ruling that might fuel a nationwide debate, the New York Court issued a warrant against Google, giving access to user emails.

A New York Court issued a warrant against Google Inc ruling that the government can access all mails of a Gmail account of an individual under a money laundering probe. The judge said that courts have long been waiting for law enforcement to take the required documents in the custody if it is within the purview of the warrant.

Contrary to previous rulings

This decision is not in line with the previous court rulings including courts in the Districts of Columbia and Kansas, Magistrate Judge Gabriel W. Gorenstein of the U.S. District Court for the Southern District of New York noted on Friday. Also, this latest ruling will spark a debate over the privacy, in the country, according to Computer World.

A District of Columbia judge denied from revealing the entire content of the email as this will seize a large amount of emails for which the authorities have not given any reason.

The Court in Kansas, also, did not rule in favor of a similar warrant, stating that it failed to ‘limit the universe of electronic communications and information to be turned over to the government to the specific crimes being investigated.’

However, the New York Court ruled in favor of such warrant, allowing authorities to take into account the emails and other information from a Google inc’s Gmail account, including the address book and draft mails, and also the authority to search the emails for certain specific categories of evidence.

Experts must scan emails, not Google employee

Judge Gorenstein argued that it is not possible to search the hard-disk drives of computers and other storage devices on the spot due to the complexities of electronic searches. Thus, the authorities can seize such storage.

‘We perceive no constitutionally significant difference between the searches of hard drives just discussed and searches of email accounts,’ the judge wrote. He added that in most of the cases data in an email account will be less ‘expansive’ compared to the information contained in the hard drive.

Judge Gorenstein stated that Google employees are not expert enough to know the importance of particular emails without having been given proper training in the substance of the investigation. Judge said this in response to an opinion by the District of Columbia court that gave the government the option of getting the email scanned by the host itself.

He said that an agent, who is completely absorbed in the investigation, will be able to understand the importance of a particular language in emails contrary to the employee.

Library of Congress’ Introduction to Animal Law.

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An Introduction to Animal Law, by Ashley Sundin, In Custodia Legis Blog, Library of Congress

http://blogs.loc.gov/law/2014/07/an-introduction-to-animal-law/

Animal law is a rapidly growing area of law, especially in the past decade.  The human–animal interaction comes in a variety of forms including companionship, agriculture, and science.  As a result, animal law extends into many areas of law including criminal, torts, property, and constitutional law.

This guide will provide an overview of the resources available covering animal law, wildlife law, and animal rights and welfare. . . .

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