Texas 2-Step For Spoilation of Evidence.


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Spoilation, Texas Style, by Joshua Gilliand, Bow Tie Blog


The Texas Supreme Court has clarified the standards for spoliation (in Texas). The rule is that Texas has a two-step process: (1) the Trial Court must determine, as a question of law, whether a party spoliated evidence, and (2) if spoliation occurred, the Court must assess an appropriate remedy. Brookshire Bros., Ltd. v. Aldridge, 2014 Tex. LEXIS 562, 3-4 (Tex. July 3, 2014).

This Allemande Left and Do So Do requires a Trial Court to find that (1) the spoliating party had a duty to reasonably preserve evidence, and (2) the party intentionally or negligently breached that duty by failing to do so. Brookshire Bros., Ltd., at *3. This is to be done outside the presence of the jury, so the accused party is not swung around before the jurors, causing any prejudicial effect by the presentation of evidence that is unrelated to the facts underlying the lawsuit. Id. (and memories of 7th grade square dancing). . . .

Canvas Fingerprinting – The Online Computer Tracking Device Almost Impossible To Block.


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Meet the Online Tracking Device That is Virtually Impossible to Block, by Julia Angwin, ProPublica

(This story was co-published with Mashable.)


Update: After this article was published, YouPorn contacted us to say it had removed AddThis technology from its website, saying that the website was ‘completely unaware that AddThis contained a tracking software that had the potential to jeopardize the privacy of our users.’  A spokeswoman for the German digital marketer Ligatus also said that is no longer running its test of canvas fingerprinting, and that it has no plans to use it in the future.

A new, extremely persistent type of online tracking is shadowing visitors to thousands of top websites, from WhiteHouse.gov to YouPorn.com.

First documented in a forthcoming paper by researchers at Princeton University and KU Leuven University in Belgium, this type of tracking, called canvas fingerprinting, works by instructing the visitor’s Web browser to draw a hidden image. Because each computer draws the image slightly differently, the images can be used to assign each user’s device a number that uniquely identifies it.

*      *     *

Like other tracking tools, canvas fingerprints are used to build profiles of users based on the websites they visit — profiles that shape which ads, news articles, or other types of content are displayed to them.

But fingerprints are unusually hard to block: They can’t be prevented by using standard Web browser privacy settings or using anti-tracking tools such as AdBlock Plus.

The researchers found canvas fingerprinting computer code, primarily written by a company called AddThis, on 5 percent of the top 100,000 websites. . . .

Senior Judge Shares Tip To Avoid “Lousy Brief Writing.”


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Don’t Let Your Brief Be DOA, by Raymond Ward, Louisiana Civil Appeals Blog


Here is a briefwriting tip courtesy of Senior Judge Laurence Silberman of the D.C. Circuit: avoid overuse of uncommon initialisms.

Petitioner’s brief, unfortunately, was laden with obscure acronyms notwithstanding the admonitions in our handbook (and on our website) to avoid uncommon acronyms. Since the brief was signed by a faculty member at Columbia Law School, that was rather dismaying both because of ignorance of our standards and because the practice constitutes lousy brief writing. [Ouch!] . . . .

It Could Happen To Anyone – But Justice Scalia Isn’t Just Anyone.


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Would You Like Salt on That Crow?, by Tiffany Johnson, Good Legal Writing


So, the Honorable Justice Antonin Scalia — renown legal genius and reigning undisputed heavyweight champion of biting rhetorical snark — has now been reduced to making clandestine corrections to one of his famously condescending dissents. . . .

How To Recognize A Bad Client The Easy Way.


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The Bad Clients You Don’t Take Will Be the Best Money You Never Made, by Randall Ryder, Lawyerist Blog


Wouldn’t it be nice if every client who called to retain a lawyer were completely honest and forthright during that first meeting or telephone call? Have you ever been burned by believing your client and finding out the hard way that the facts are not what you’ve been told? You ask all the right questions. They seem to give all the right answers. Perhaps you do not see had bad it was until you have spent time and money on the case. Here are some warning signs that will help you avoid bad clients. -CCE

Not all clients are created equal. Great clients will enhance your legal skills, your reputation, and your bottom line. Bad clients can make you question your skills, destroy your reputation, and result in the worst money you have ever made.

Once you have a better understanding of how bad clients can wreck your practice, you will get better at spotting them and avoiding them. And it will be the best money you never made. . . .

Stand Your Ground Law and the Doctrine of Communicated Character.


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Defendant Has To Testify To Support Self-Defense Claim, Despite Stand Your Ground, by Colin Miller, Editor, EvidProf Blog


I’ve written a few posts about the doctrine of ‘communicated character,’ which allows a defendant to present evidence of the alleged victim’s prior violent acts, not to prove the victim’s violent tendencies, but instead to prove the defendant’s reasonable apprehension. Of course, what this means is that a defendant must have knowledge of the victim’s violent past to present such character evidence. So, can a defendant prove that knowledge without himself testifying at trial? And how might a Stand Your Ground law change matters? Let’s take a look at the recent opinion of the Supreme Court of Montana in State v. Montana Ninth Judicial District Court, 2014 WL 3430350 (Mont. 2014). . . .

10 Top Law-Related TED Videos.


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Top 10 Legal TED Talks, by Tim Baran, Legal Productivity Blog


Have you heard of TED? It began in 1984 as a conference and now covers a wide range of topics in more than 100 languages.  Think of it as a massive brain trust that shares great ideas and information.

Each of the law-related TED talks listed in this article are worthwhile on their own: (1) four ways to fix a broken legal system; (2) eliminate legalese by using plain English; (3) how to beat a patent troll; (4) how the Internet will change government; (5) laws that choke creativity; (6) copyright law; (7) why eyewitnesses get it wrong; (8) how technology could make crime worse; (9) the Internet and anonymity online; and (10) how great leaders inspire. -CCE

Working On Your Closing Argument? Use the Persuasion Slide.


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Use the ‘Persuasion Slide,’ by Dr. Ken Broda-Bahm:, Persuasive Litigator


Some great practical ideas for persuasion come from the field of marketing. To be sure, not all apply in legal settings, but marketing offers a laboratory where the practical aspects of human influence can be addressed in a situation that often carries high stakes and measurable results. I recently came across one marketing idea from Roger Dooley’s Neuromarketing blog that provides a perfect way of explaining and differentiating the various forces at work in any persuasive situation. The idea is called ‘The Persuasion Slide,’ and it starts with the simple physics involved in an ordinary playground slide. Like a good trial metaphor or demonstrative exhibit, the illustration provides a simple and immediately meaningful way to understand a more complex process. . . . .

Bifurcation Explained By An Eleventh Circuit Court Judge.


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To B…or Not to B…: B…Means Bifurcation, by Judge David L. Tobin, The Florida Bar Journal, 2000 Volume LXXIV, No. 10.


An excellent analysis and explanation. -CCE

From 1997 through May 2000, as judge in the 11th Circuit Court, I have bifurcated hundreds of cases in which the issues of liability and damages were involved. The most surprising statistic is that during this three and one-half years I have tried only one case in which the issue was damages! Do I have your attention?

Sometime in 1997, I was discussing calendar control and judicial efficiency with one of my colleagues, Judge Amy Donner, who said that she was bifurcating most of her cases. After our conversation, I examined the trials in my division for the year 1995 and found that of the 40 jury trials, eight of them were slip-and-fall cases. Of these eight, seven resulted in a verdict for the defendant. It occurred to me that if we tried only liability, between seven and 14 days of jury time would have been saved, enabling us to try several more cases. Accordingly, I then decided to screen our cases and began bifurcating slip-and-fall cases only. I hope that this article will assist judges and attorneys in selecting those cases in which bifurcation would benefit litigants and attorneys, as well as the court. . . .

Direct and Cross-Examination – Links, Tips, and Resources.


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Examination and Cross-Examination: Getting the Facts, Trial Practice Skills, Pace Law Library


Links on Direct Examination, Cross-Examination, Examining Expert Witnesses, Child Witnesses, and other related links. -CCE

New York’s New Privilege Log Rule.


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Rule Limiting Privilege Log Practice to Take Effect, by Suevon Lee, New York Commercial Litigation Insider Blog


In an age of exploding electronic discovery that has multiplied the cost and scope of document review, litigants in New York’s Commercial Division will soon have the benefit of revised privilege log practice.

Starting September 2, new Rule 11-b, signed Tuesday by Chief Administrative Judge Gail Prudenti, will instruct parties to meet at the outset of the case and afterward to discuss the scope and parameters of privilege review. It also will strongly encourage using categorized designations for documents as opposed to itemized listings to help streamline the process.

Parties who resist the categorized approach may be subject to attorney fees upon a showing of good cause by the other side or a protective order from the judge.

Modeled after guidelines set forth in such jurisdictions as the Southern District of New York and Delaware Court of Chancery, the rule offers ‘a meaningful way for courts and parties to assess the assertion of privilege,’ said David H. Tennant, a partner at Nixon Peabody, who co-drafted the language with Jonathan Lupkin, of Rakower Lupkin. They are members of an advisory group charged with proposing changes to Commercial Division practice to offer a more efficient and cost-effective forum for litigants and their business clients. . . .

More Yummy Candy for Writers.


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UW Madison Writer’s Handbook, The Writing Center @ The University of Wisconsin-Madison


For all writers, I strongly recommend a review of all the sections under “Grammar and Punctuation,” but especially: “Subject-Verb Agreement,” “How to Proofread,” “Twelve Common Errors: An Editing Checklist,” and “Clear, Concise Sentences.”

If you are a legal writer, please note that this style manual’s rules on citations are not in sync with The Bluebook, ALWD, or court rules. -CCE

Lawyer Explains How TrialPad 4.0 Made Trial Presentation A Piece of Cake.


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TrialPad 4.0: Trial Presentation Made Easy, by Todd Hendrickson, Lawyerist Blog


I recently put TrialPad 4.0 through its paces during  a two-week trial — but not from the start. As in the past, I felt to overwhelmed to add figure out a new app to my trial prep to-do list.

So I started trial using Acrobat to display documents. I am very comfortable with Acrobat, and I knew I would not have to wonder about how to find a particular feature or function in the middle of trial.

After all, like most paperless lawyers, I use Acrobat on a daily basis. But by day two of what I knew would be a two-week trial, I was frustrated with the limitations of Acrobat, particularly the inability to do a call-out on the fly. This was hampering my ability to really emphasize key pieces of evidence.

A heavenly light should have descended.

I had a copy of TrialPad from Ian O’Flaherty, who developed it. Ian was kind enough to provide me with a code to download TrialPad at no cost. This is probably why I felt no need to use it, since I wasn’t invested in it. But now I had to get up and running overnight if I wanted to use something better than Acrobat during my trial. And I did get up and running overnight. I went back to my hotel room, loaded up the documents I knew I would be working with the next day, ran through the process of presenting and annotating, and then set back to prepare for the next day of trial.

With more than a little trepidation, I hooked my iPad up to my projector the next day at trial.

A heavenly light should have descended. I’m not kidding, TrialPad was nearly magical. To say that ease of use is built in is a vast understatement. . . .

Texas Prosecutor Fired for Using Racial Remarks In “Batson Challenge.”


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Travis County Prosecutor Fired Over Racial Remarks, by Tom Crane, San Antonio Employment Law Blog


Poor choice of words, bad judgment, racially inappropriate or all three? -CCE

The ’Batson challenge’ allows a lawyer to challenge the strike of a potential jury member. The challenge is based on the decision in Batson v. Kentucky, 476 U.S. 70 (1986), which found it unconstitutional to strike a potential jury member on the basis of race. The Batson challenge does not require much. So long as the lawyer can articulate a non-discriminatory reason for the peremptory strike, then the strike will likely stand.  A prosecutor, Steve Brand, in Travis County struck a potential jury member because she was a member of the NAACP, because she wanted to be a member of the jury, and because she had a link on her Facebook page to Negro Motorist Green Book, a book for safe travel during the Jim Crow era. Mr. Brand said he wanted to avoid an having an ’activist’ on the jury and would have done the same in regard to a perceived white activist. . . .

ProPublica’s Ongoing Series and Investigation Into Medicare Waste And Fraud.


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Fanny Pack Mixup Unravels Massive Medicare Fraud Scheme, by Charles Ornstein, ProPublica


This article is part of an ongoing investigation by ProPublica into Medicare fraud. This is just one of several articles currently at ProPublica about its investigation. -CCE

Two secretaries in a doctor’s office have pleaded guilty and a pharmacy owner faces charges in a scam that Medicare allowed to thrive for more than two years.

The fraud scheme began to unravel last fall, with the discovery of a misdirected stack of bogus prescriptions — and a suspicious spike in Medicare drug spending tied to a doctor in Key Biscayne, Fla.

Now it’s led to two guilty pleas, as well as an ongoing criminal case against a pharmacy owner.

Last year, ProPublica chronicled how lax oversight had led to rampant waste and fraud in Medicare’s prescription drug program, known as Part D. As part of that series, we wrote about Dr. Carmen Ortiz-Butcher, a kidney specialist whose Part D prescriptions soared from $282,000 in 2010 to $4 million the following year. The value of her prescriptions rose to nearly $5 million in 2012, the most recent year available.

But no one in Medicare bothered to ask her about the seemingly huge change in her practice, Ortiz-Butcher’s attorney said. She stumbled across a sign of trouble last September, after asking a staffer to mail a fanny pack to her brother. But instead of receiving the pack, he received a package of prescriptions purportedly signed by the doctor, lawyer Robert Mayer said last year. Ortiz-Butcher immediately alerted authorities.

Since then, investigators have uncovered a web of interrelated scams that, together, cost the federal government up to $7 million, documents show. . . .

What are you revealing online? Much more than you think

Celia C. Elwell, RP:

Makes You Think Twice About Using Facebook -CCE

Originally posted on ideas.ted.com:


What can be guessed about you from your online behavior? Two computer privacy experts — economist Alessandro Acquisti and computer scientist Jennifer Golbeck — on how little we know about how much others know.

The best indicator of high intelligence on Facebook is apparently liking a page for curly fries. At least, that’s according to computer scientist Jennifer Golbeck (TED Talk: The curly fry conundrum), whose job is to figure out what we reveal about ourselves through what we say — and don’t say — online. Of course, the lines between online and “real” are increasingly blurred, but as Golbeck and privacy economist Alessandro Acquisti (TED Talk: Why privacy matters) both agree, that’s no reason to stop paying attention. TED got the two together to discuss what the web knows about you, and what we can do about the things we’d rather it forgot. An edited version of the conversation follows.


View original 2,479 more words

Android Users – Good Advice And Alternative Options For Google Calendar Sync.


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How to: Alternative Options for Google Calendar Sync, by Jeffrey Taylor, The Droid Lawyer Blog


Android users who sync their Google calendars with Outlook received a shocking email:

Important Announcement about Google Calendar Sync

Almost two years ago, we announced that we ended support for Google Calendar Sync. Starting on August 1, 2014, this app will no longer sync events between your Google Calendar and Microsoft Outlook Calendar.

As a Google Apps for Business, Education, or Government customer, you can use Google Apps Sync for Microsoft Outlook®.

Follow these instructions to uninstall Google Calendar Sync from your computer.

- The Calendar Team

This is frustrating, because as some folks point out, Microsoft should provide this integration for Outlook users. But the truth is, instead of helping its loyal Android customers, Microsoft wants more people using Windows phones and Office 365. This news makes many Android-Outlook users want to abandon their Android devices all together.

Purely out of coincidence, I have a local friend who emailed me a similar question about syncing his calendar with Outlook:

You know that I am fairly stupid when it comes to this stuff!  LOL!  I use [a big name telephone company] as my primary email, and too many people have it to change it after so many years.  I guess I could keep that as my primary email address and just use Google Calendar exclusively.  I just hate to have to log in to use the calendar.  Lazy I guess.  I do, however, also have a Gmail address!  Any suggestions other than ‘using all of Google’s products’?

Stop the insanity: software solutions

There are a number of third party applications available for syncing Google Calendar with Outlook. However, a lot of questions remain about whether Google Calendar will still sync with third party programs.

If you want to test them, here’s a short list of some programs with good reviews:

•gSyncit ($19.99 single license)

•Outlook4Gmail ($19.99 single license)

•Calendar Sync Pro for Outlook ($9.99)


•CompanionLink ($49.95)

I’m not sure how well these will work after the August 1 deadline, though gSyncit indicates they’ve rewritten their program to coordinate with Google’s API demands. If I was going to pick an option, I’d probably select gSyncit based on that statement.

I also suggest you keep up to date with any advances by following this Google products forum thread.

Submit yourself to “the Borg”

I think my friend’s easiest option is to commit himself to Google’s services, and here’s why.

First, no attorneys should be using free Google accounts for their business work. Thus, if you’re using a yourname@gmail.com to send and receive firm and client related information, stop right now. Sign up for a Google Apps account — ask me for a referral partner discount discount code — that offers more features (including no scanning), security, and encryption of email. Having a Google Apps account also enables you to access Google Apps Sync for Microsoft Outlook. . . .

Don’t stop here! There’s more. -CCE

Casino Valet Service Not Liable For Returning Car To Intoxicated Driver.


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No Liability for Valet Service for Returning Car to Visibly Intoxicated Patron, by Daniel E. Cummins, TORT TALK


In its recent decision in the case of Moranko v. Downs Racing LP, 2014 Pa.Super. 128 (Pa. Super. June 24, 2014 Panella, J., Mundy, J., and Platt, J.)(Op. by Panella, J.), the Pennsylvania Superior Court held that Pennsylvania law does not impose a duty upon a casino’s valet service to withhold the keys from a motorist if that person appears to be visibly intoxicated. . . .

This Time, Employer’s Social Media Policy Does Not Violate Employee’s Rights.


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Employer’s Social Media Policy Found Not To Violate Employees’ Rights, by Jason Shinn of Shinn Legal, PLC, Michigan Employment Law Advisor


A recent social media case involving the NLRB should be cause for celebration for employers. Specifically, in Landry’s Inc., Case No. 32-CA-118213 (June 26, 2014), an NLRB administrative law judge (ALJ) had found a social media policy concerning its subsidiary, Bubba Gump Shrimp Co. Restaurants, Inc., did not violate the National Labor Relations Act (NLRA).

Initially, the General Counsel argued that Bubba Gump’s social media policy infringed on employee’s rights under the NLRA because it would tend to prohibit employees from discussing terms and conditions of employment with coworkers or third parties. That social media stated as follows:

‘While your free time is generally not subject to any restriction by the Company, the Company urges all employees not to post information regarding the Company, their jobs, or other employees which could lead to morale issues in the workplace or detrimentally affect the Company’s business. This can be accomplished by always thinking before you post, being civil to others and their opinions, and not posting personal information about others unless you have received their permission.’

The ALJ agreed that without ‘more,’ the first sentence could violate the NLRA. But the ALJ noted that the social media policy did not outright restrict speech on job related issues – job related subject matters – but, instead, the manner in which such issues are being discussed and debated, i.e., being civil to others and their opinions:

‘Without more, it would be reasonable for employees reading this language to conclude that the Respondent generally frowns upon all job-related postings of any type. However, the cautionary language is modified by the language in the next sentences which may be understood to clarify that the 40 avoidance of morale problems may be ‘accomplished’ by simply being civil to others and their opinions.’

Employer Take-Aways

From an employer’s perspective this case is a good result. But it is also a reminder that the NLRB’s General Counsel continues to closely scrutinize employers’ social media policies. For this reason, it continues to be important to carefully draft social media policies that will give ALJs the opportunity to sensibly read the policies so as to not find a violation of employees’ rights under the NLRA. . . .

The Latest Changes at the SEC.



What’s New on the SEC Website


 This [link] provides a daily list of the most recent materials posted to the SEC website. Note that the official release date of a document may differ from the posting date, in which case, the release date is indicated in parentheses.

New and Amended California Court Rules and Local Rules.


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California Courts, The Judicial Branch of California, New & Amended Court Rules


California County Court Local Rules effective July 1, 2014:


Alameda County, Butte County, Calaveras County, Contra Costa County, El Dorado County, Fresno County, Humboldt County, Imperial County, Kern County, Kings County, Lake County, Lassen County, Los Angeles County, Madera County, Marin County, Merced County, Monterey County, Napa County, Nevada County, Orange County, Placer County, Riverside County, Sacramento County, San Bernardino County, San Diego County, San Francisco County, San Joaquin County, San Luis Obispo County, San Mateo County, Santa Barbara County, Santa Clara County, Santa Cruz County, Shasta County, Siskiyou County, Solano County, Sonoma County, Stanislaus County, Tulare County. Tuolumne County, Ventura County, and Yuba County. -CCE

Children as Witnesses.


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The Child as a Witness, from Child Welfare Information Gateway


Good, basic information. I recommend that you check out the entire website. This is only a taste of what it contains. -CCE

Is A Blink A Dying Declaration?


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Blink: Court of Special Appeals of Maryland Finds Eye Blinking by Shooting Victim Admissible as Dying Declaration, by Colin Miller, EvidenceProf Blog


On November 26, 2010, Prince George’s County Detective Latasha Green visited the Shock Trauma Unit to see if Pate could identify a picture of his shooter from a photographic array. Just prior to the session, Nurse Keener had asked Pate a series of questions to determine whether he was ’alert and oriented.’ She determined that he was. Nurse Keener later testified that blinking hard is a primary method of communication for patients who are unable to speak. She elaborated on how the technique works.

Detective Green showed Pate a series of six photographs and asked him to blink hard if he saw a picture of the person who shot him. Pate blinked hard when he was shown the third picture in the photographic array but did not blink hard when shown any of the other five pictures. The third photograph was that of the appellee,  Jermaine Hailes. The photographic array procedure was recorded on videotape and was entered into evidence at the suppression hearing. State v. Hailes, 2014 WL 2191405 (Md.App. 2014).

Was Pate’s eye blinking admissible as a dying declaration? . . . .

The New ALWD Citation Guide.


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The Inside Scoop About The New ALWD Citation Guide, by Legal Writing Prof, Legal Writing Prof Blog


Let’s not forget that the 20th edition of the Bluebook is coming, although the publication date has yet to be announced. -CCE

At the LWI conference, members got inside information about ALWD’s new citation guide. It’s no longer called a manual–the title of the fifth edition is the ALWD Guide to Legal Citation. Chief editor Coleen Barger and contributor Brooke Bowman explained that the new guide has eliminated the differences between it and the Bluebook. That means, among other things, that large-and-small caps are now prescribed for certain law review citations and abbreviations and citations have been standardized to comport with traditional formats.  But the new guide will be easier to use than the Bluebook. Plentiful symbols clarify when spaces are needed, and law review formats are integrated into the subject matter sections but clearly labeled by a title, an identifying marginal line, and a warning symbol.

A companion site includes exercises that students who purchase the book can access. An on-line teacher’s manual will be available soon and will include comparison charts between the fourth and fifth editions and between the fifth edition and the Bluebook. . . .

Internet’s Largest, Comprehensive Directory, and Search Engine for Acronyms, Abbreviations. and Initialisms.


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Abbreviations.com, a Member of the Stands4 Network


What the heck is an initialism? Happily, Mark Nichol at DailyWritingTips Blog has a complete explanation here: http://www.dailywritingtips.com/initialisms-and-acronyms/. -CCE

We are the world’s largest and most comprehensive directory and search engine for acronyms, abbreviations and initialisms on the Internet. Abbreviations.com holds hundreds of thousands of entries organized by a large variety of categories from computing and the Web to governmental, medicine and business and it is maintained and expanded by a large community of passionate editors. Read more about our awards and press coverage.


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