2015 Federal Sentencing Guidelines And More From The Sentencing Commission.

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United States Sentencing Commission

http://www.ussc.gov/

There simply is too much at this website to describe it all. The list below is only a portion of the data. Most importantly, it includes the 2015 USSC Guidelines Manual, updated November 1, 2014, as well as a wealth of research, statistics, training, tables, demographics, sentencing information, and more. Here is a quick summary.

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A Novel Approach To Circuit Court’s Word Limit Rule. If Only It Had Worked!

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Squished-Together Words Don’t Count As One, Federal Circuit Says; Appeal Is Tossed, by Debra Cassen Weiss, ABA Journal (with hat tip to William P. Statsky!)

http://tinyurl.com/kqmddjt

A litigant that squeezed multiple words together and resorted to abbreviations didn’t satisfy word limits in its briefs and won’t be able to pursue its appeal, according to the U.S. Court of Appeals for the Federal Circuit.

The appeals court tossed the patent appeal by Pi-Net International in an April 20 order (PDF). How Appealing links to the opinion and a story by Law360 (sub. req.), which dubbed the creative wording ‘a trick straight out of high school English class.’ . . .

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On appeal, JPMorgan objected to Pi-Net’s first brief, saying it attempted to evade the 14,000 word limit by deleting spaces between various words and squeezing them together, according to the Federal Circuit. The Federal Circuit offered an example: One case citation consists of 14 words, but Pi-Net squeezed them together to make them into one word. . . .

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2015’s 60 Apps in 60 Minutes from The ABA TECHSHOW.

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60 Apps in 60 Minutes 2015, by Jeff Richardson, iPhone J.D. Blog

http://www.iphonejd.com/iphone_jd/2015/04/60-apps-2015.html

This past Saturday morning [April 18, 2015] at ABA TECHSHOW in Chicago, I teamed up with Dallas attorney Tom Mighell, Ohio attorney Joe Bahgat and Florida legal tech consultant Adriana Linares to present the 2015 installment of 60 iOS Apps in 60 Minutes.  Lots of useful and fun apps were discussed during the session, and the enthusiasm from the standing-room-only crowd was fantastic. I know that the session was fast-paced, so for those of you who attended and who may have missed an app or two, and for those of you who could not make it to ABA TECHSHOW 2015 this year, here is a list of the apps that we discussed. . . .

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Intellectual Property Links and Resources.

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Patent Litigation – Been Sued or Gotten a Demand Letter? by uspto – United States Patent and Trademark Office Blog

Regardless of whether you are a novice or expert in intellectual property law, you should find this website helpful. It has many FAQs, resources, and other tools to help the inventor and those you work in this area of the law.

Click on http://www.uspto.gov/learning-resources for more links to resources for the legal profession, educators, inventors, and others, including instructions for filing online. Nice laid out, comprehensive, and easy set up alerts for fee and rule changes. Definitely worth a look. -CCE

Answers To Common Questions About Abusive Patent Litigation

Received a letter about or been sued over a patent? You’re in the right place. See below for answers to common questions: (Trademark-related resources) are also available.) . . .

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Pleading Code In Poetry.

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The Pleading, by Mark Cooney, Plain Language, 94 Mich. B.J. 3, 42 (March 2015)

http://www.michbar.org/journal/pdf/pdf4article2570.pdf

Another article from the Plain English Subcommittee of the Michigan Bar Journal. As always, each article makes a case for using plain English in legal writing. This group has been, and remains, a strong proponent for elegant legal writing without legalese.

This selection is a clever take off Edgar Allen Poe’s poem, The Raven, that cautions the reader against writing pleadings with stuffy, archaic language. Its author, editor in chief of The Scribes Journal of Legal Writing and author of Sketches on Legal Style, Mark Cooney, is a legal writing professor at Western Michigan University Cooley Law School. -CCE

Once upon a docket dreary, as I pondered
after hearings,
Over many a curious case then pending
with the busy court,
While I read, attention sapping, suddenly
there came a tapping,
As of someone gently rapping, rapping at
my chambers door.
‘Tis my clerk again,’ I grumbled, ‘tapping
on my chambers door—
Oh, yet another matter more.’

Pausing just a moment further, bracing
for the fresh-faced fervor,
Up I turned my heavy head to bid my
clerk in through the door.
In he stepped with youthful stride,
brand-new filing at his side,
Still another motion coming briskly
through my chambers door—
A docket full and motions more, another
through my chambers door—
Coming through my chambers door. . . .

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“Read Receipt” Email Message Is Not Hearsay.

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Court Rules that Automatically Generated Read Receipt is Not Hearsay: eDiscovery Case Law, by Doug Austin, eDiscoverydaily

http://tinyurl.com/ozbratn

In Fox v. Leland Volunteer Fire/Rescue Department Inc., 7:12-CV-354-FL. (E.D.N.C. Mar. 10, 2015), North Carolina District Judge Louise W. Flanagan ruled that a Read Receipt automatically sent from the defendant’s email address to the plaintiff (when the defendant opened an email sent by the plaintiff) was not hearsay.

Case Background

In this wrongful termination case, the court was considering the defendants’ motion for summary judgment, as well as the defendants’ motion to strike certain exhibits attached to plaintiff’s brief in opposition to summary judgment for failure to comply with Federal Rule of Civil Procedure 56(c) & (e). One of the items that the defendants sought to exclude was a read receipt sent from defendant Grimes email address to plaintiff, triggered when an email plaintiff sent defendant Grimes was opened, arguing that the Read Receipt was ‘unauthenticated hearsay’.

Judge’s Opinion

Judge Flanagan made a swift ruling on this issue when she stated ‘Defendants’ argument fails. The Read Receipt is not hearsay.’ . . .

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The Art of Well Written Judicial Opinions.

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The Seven Writing Strategies of Highly Effective Trial Judges, by Ross Guberman, Legal Writing Pro Blog

http://legalwritingpro.com/blog/the-seven-writing-strategies-of-highly-effective-trial-judges/

Asked to name the world’s best opinion writers, traditionalists might rattle off Lord Denning, Learned Hand, or Oliver Wendell Holmes. Modernists often prefer Antonin Scalia or Richard Posner. And the trendy might cite new kids on the block like Lord Sumption or Elena Kagan.

Those august names all deserve heaps of praise. But the fame that these judges enjoy raises questions of its own: Can you write a ‘great’ opinion if you’re a judge who’s not a household name, or even especially influential? And can you write a ‘great’ opinion in a case that’s not a high-profile constitutional crisis, but just another run-of-the-mill dispute in an overflowing docket?

I say ‘yes’ on both counts. No matter how routine a case, and no matter how little time you have, you can write a great opinion. It may not be ‘great’ for the ages, but it can offer readers a clear, accessible, and easy-to-follow analysis of your reasoning, with even a bit of flair or personality for good measure. . . .

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The ABA’s List of the Top 25 Legal Movies.

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The 25 Greatest Legal Movies, by Richard Brust, ABA Journal

http://www.abajournal.com/magazine/article/the_25_greatest_legal_movies

There is a unique group of movies that show the best — and worst — traits and practices by the legal profession. We all have our favorites. Check out the ABA’s list. Are your top choices there? If not, please leave a comment, and share your favorite. -CCE 

What would Hollywood do without lawyers? In a town built on copyrights and cosmetic surgery, lawyers have done far more than pen the small print in studio contracts or post bail for hollow-eyed stars on the way to and from rehab. From the incisive Henry Drummond and the droll Mr. Lincoln to the callow Danny Kaffee and the regal Atticus Finch, lawyers have provided some of Hollywood’s most memorable cinematic heroes and some of its most honorable and thoughtful films.

Earlier this year, the ABA Journal asked 12 prominent lawyers who teach film or are connected to the business to choose what they regard as the best movies ever made about lawyers and the law. We’ve collated their various nominees to produce our jury’s top picks.

Together these films represent 31 Oscar wins and another 85 nominations as befits the best work of some of the greatest actors, writers and directors of their time.

So quiet, please. A rap of the gavel, a pull of the curtain, and ‘Hear ye! Hear ye!’ for the 25 greatest law films ever made. . . .

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Too Many Acronyms = Alphabet Soup.

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Check Your Briefs For Acronym Overuse, DC Circuit Clerk Tells Lawyers In Campaign Finance Case, by Debra Cassen Weiss, ABA Journal

http://tinyurl.com/mff4sqx

Acronyms continue to bedevil the U.S. Court of Appeals for the D.C. Circuit.

Parties before the court are advised in circuit rules to avoid little-known acronyms; lawyers who didn’t heed the advice were called out in a 2012 opinion. Now the clerk’s office is doing its part to police the briefs. . . .

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Tax Day Fun – Frivolous Tax Arguments And Their Penalties.

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A Few Tax Arguments Not to Make, by Kevin Underhill, Lowering the Bar Blog

http://tinyurl.com/l85bydj

Hey, your taxes are due this week—or are they?

Yes, they are, that was a figure of speech and not a suggestion that you should treat federal taxes as optional. That is one of the many arguments you should not bother making on Wednesday.

Turns out that the IRS has a publication that lists and summarizes a number of arguments not to make, entitled ‘The Truth About Frivolous Tax Arguments.’ . . .

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A Special Treat For Civil Procedure Geeks.

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A Reader’s Guide to Pre-Modern Procedure, by Louis J. Sirico, Jr., Legal Skills Prof Blog

http://tinyurl.com/lqodu5n

In this short article, David Noll explains procedural terms with which students often are unfamiliar. These terms predate the Federal Rules of Civil Procedure, which most Civil Procedure classes seem to pass over.

These terms, like ‘demurrer’ and ‘nonsuit,’ may pop up not only in old court cases that students may study, but also in state court procedural rules. . . .

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Updated Your Employee Manual And Policies Lately? Maybe You Should.

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Employer Charged with Unfair Labor Practice Because Employee Manual and Agreements Were Unlawful, by Jason Shinn of Shinn Legal, PLC, Michigan Employment Law Advisor Blog

http://tinyurl.com/l9pw82d

Two annoyances in life often involve cliches and living out a cliche. This is especially true when the cliche is ‘shooting yourself in the foot.’ But T-Mobile got to experience both last week when the National Labor Relations Board (NLRB) ruled that it engaged in unfair labor policies.

The ruling arose out of T-Mobile’s employee handbook, code of conduct, and a confidentiality form that all employees are required to sign. However, because of the manner in which T-Mobile drafted these documents, the NLRB found they obligated T-Mobile employees to comply with unlawful labor rules. The full NLRB opinion is available here (NLRB_T_Mobile_Opinion_2015_3_18).

We previously explained that employers need to be mindful that the NLRB would be focusing on employee manuals, sometimes called employee handbooks, and other employee agreements that violate employee rights under the National Labor Relations Act (NLRA) (an act that applies to union and non-union employees). See Employee Manuals Need Spring Cleaning Thanks to the NLRB. We also expressed our concern that many provisions in employee manuals and agreements could violate the NLRA and, therefore, subject companies to an unfair labor practice charge similar to what T-Mobile got hit with.

A review of the T-Mobile opinion substantiates these concerns in that the offending provisions were construed or otherwise interpreted to prevent workers from communicating with one another about wages, from speaking to the news media about workplace conditions and from speaking with co-workers to marshal evidence against disciplinary charges. Over all, administrative law judge found that 11 of the 13 policies subject to the litigation were illegal. . . .

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Take Depositions To The Next Level With High Tech.

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4 High Tech Ways to Improve Your Depositions, by Brian Focht, The Cyber Advocate Blog

http://www.thecyberadvocate.com/2015/04/08/4-high-tech-ways-improve-depositions/

Last week I had the (good?) fortune to attend two depositions spanning three days in a construction defect case. We represent a fairly peripheral sub-contractor, so despite exceeding 20 total hours, I didn’t get the opportunity to ask a single question. However, we’re not so peripheral that I could completely space out.

Over the course of three days, which included the introduction of about 100 exhibits (I’m impressed at the plaintiff’s counsel’s restraint, except when you consider that many exhibits exceeded 250 pages each), I listened intently. Or as intently as possible.

Until the other part of my brain, the part that writes this blog, kicked in. I analyzed what I thought was an intelligent, if complicated, system put in place that uses Dropbox for sharing exhibits. But that was really it. No video, no digital exhibits, remote participants listening by phone. I couldn’t help but think that there had to be a better way than this. . . .

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Excessive Use of Force and “Fair Warning” – Part 2.

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Fair Warning, Take 2: When Is It Feasible to Give Some Warning Before Using Lethal Force Against a Suspect?, by Colin Miller, Evidence Prof  Blog

http://tinyurl.com/kv5gxu8

I’ve gotten some good feedback and questions in response to my post [April 10, 2015] yesterday regarding the shooting of Walter Scott. The point of that post was to note that, even if it was otherwise reasonable for the officer to shoot Scott, this use of lethal force was still unreasonable if (1) the officer failed to give a warning prior to shooting; and (2) such a warning was feasible. The main question I have gotten is: When is such a warning not feasible? . . . .

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Excessive Use of Force And “Fair Warning.”

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Fair Warning: Why the Officer Who Shot Walter Scott Likely Had to Give Some Warning Before Shooting, by Colin Miller, EvidenceProf Blog

http://tinyurl.com/mcpn6xm

I’ve been asked a lot today [April 9, 2015] about the shooting of Walter Scott. The topic that always comes up is the so-called ‘fleeing felon’ rule. Here is the thumbnail explanation of this rule by the Supreme Court in Tennessee v. Garner:

This case requires us to determine the constitutionality of the use of deadly force to prevent the escape of an apparently unarmed suspected felon. We conclude that such force may not be used unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.

Obviously, anyone watching the video of the shooting likely has serious doubts about whether such probable cause could have existed. Even if those doubts could be quelled, however, there is a second problem for the police officer who shot Scott….

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Jeff Richardson’s Honey Pot of iPhone and iPad Apps.

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Index of iPhone J.D., by Jeff Richardson, iPhone J.D. Blog

http://www.iphonejd.com/iphone_jd/index-of-iphone-jd.html

I have died and gone to Heaven. -CCE

This index allows you to browse through the more significant posts on iPhone J.D. since I started the website on November 17, 2008, including reviews of iPhone and iPad apps and accessories plus other significant posts. Also, remember that there is a helpful search box at the top right of every page if you are trying to find something specific. . . .

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Would You Report A Data Breach At Your Law Firm?

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Has the Law Firm Holding Your Data Ever Suffered a Breach? You May Never Know: eDiscovery Trends, by Doug Austin, eDiscoverydaily Blog

http://tinyurl.com/lruvc2j

In February, we discussed a report about data breach trends in 2014 and how those trends compared to data breaches in 2013. That report provided breach trends for several industries, including the healthcare industry, which suffered the most breaches last year (possibly because stolen health records are apparently worth big money). But, according to a recent report, you won’t see any trends for law firms because the legal profession almost never publicly discloses a breach. . . .

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Beginner’s Research Guide to Lemon Laws and Consumer Protection Law.

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Lemon Laws: A Beginner’s Guide, Barbara Bavis and Robert Brammer, In Custodia Legis, Law Librarians of Congress

http://blogs.loc.gov/law/2015/04/lemon-laws-a-beginners-guide/?loclr=eaiclb

You are really getting two for one (and more) with this post. Please note the hyperlink to consumer protection law in the first sentence. Both posts provide guides on how to research both subjects. Click on “Legal Research” to the left once you are at the website, and you will find the link to all posts at this website on how to research other laws. -CCE

In response to our last post on consumer protection law, we determined there was additional interest in ‘lemon laws.’  Lemon laws are defined by Black’s Law Dictionary as statutes ‘designed to protect a consumer who buys a substandard automobile, usu[ally] by requiring the manufacturer or dealer either to replace the vehicle or to refund the full purchase price.’ So, if you find that the new car of your dreams is actually a waking nightmare, you can use this guide to determine what recourse you might have. Lemon laws vary by state, but this guide should help get you started with your research. . . .

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Injunctions and Temporary Restraining Orders.

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The Injunction: One of the Tools in the Litigator’s Toolbox, by Tony T. Liu, Orange County Business Attorney Blog

http://www.orangecountybusinessattorneyblog.com/2015/02/12/injunction-one-tools-litigators-toolbox/

Legal actions can result in one party paying the other for damages, but a judge can also order a party to do, or not do, something to protect the plaintiff’s rights and interests. This can be accomplished through an injunction or restraining order, which can be temporary or permanent.

A judge can issue an injunction pursuant to a statute of through his or her equitable powers when not specifically authorized by statute. Equitable powers of a judge allow a decision based on the overall fairness of the situation. Given how broad this could be and the potential for abuse, judges are normally not eager to exercise equitable powers.

A party wanting a temporary restraining order or preliminary injunction must show that the relief sought in an underlying lawsuit depends on preventing the occurrence or continuance of an act that would result in waste or irreparable injury. . . .

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“How To” On Preparing And Using Timelines In Court.

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Timelines: The Jury’s Roadmap to Your Case, by Adam Bloomberg, Director, Visual Communications, Litigation Insights Blog

http://www.litigationinsights.com/trial-graphics/timelines-jury-roadmap/

You and your attorney have worked on this complicated case for months – maybe years. You both know every nuance and the meaning of every exhibit and which witness will say what. To you, it all makes sense but you have had months to learn all about the case.

The jury does not have that luxury – they have to “get it” and absorb all the evidence and testimony from both sides presenting the case. You and your attorney are positive that, if only the jury understands your client’s case, it will return a verdict in your client’s favor.

Some people are more visual than auditory. Would a timeline as part of your trial presentation help the jury understand the details it took you months to piece together? Maybe – read this and then decide whether this tool would indeed work as a jury’s roadmap to navigate the intricacies of your case. -CCE

‘You can’t miss this event!’ your friend exclaims. ’It’s simple. The event is on the left-hand side of the street, two blocks down Lincoln Avenue. You’ll hang a right onto Third, before the gas station. Third is a few miles straight ahead once you exit – when you’re on the freeway, just keep your eyes open for exit 42. Alright, then just continue down Third for a few blocks and hang another right on Lincoln. Don’t forget to grab a bottle of wine, too…. There should be a supermarket near the freeway entrance.’

Confused? Tempted to skip the event and stay home for the evening?

Then consider how a jury must feel when a complicated story gets told in bits and pieces, out of order, and is still expected to find its way to the proper destination (i.e., a verdict for your client). Now include a second attorney who provides a different set of directions altogether!

Timelines, by nature, are often the perfect graphic to solve this problem. They’re the jury’s navigation app. That may be why they’re the most widely used trial graphic of the last 20 years. . . .

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Attorney Refusing Mental Health Eval Is Suspended By Florida Bar Association.

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Attorney Suspended For Refusing Mental Health Evaluation, by Mike Frisch, Legal Profession Prof

http://lawprofessors.typepad.com/legal_profession/2015/04/attorney-suspended-for-refusing-mental-health-evaluation.html

Janice L. Jennings, P.O. Box 103, West Palm Beach, suspended for 91 days, effective immediately, and indefinitely thereafter, until she complies with the terms and conditions set forth in a Feb. 19 court order and demonstrates rehabilitation. (Admitted to practice: 1985) Jennings refused The Florida Bar’s request that she schedule a mental health evaluation with Florida Lawyers Assistance. The request came after the Bar learned of a written filing and statements in which Jennings advised the court, among other things, that her former employer had caused the implantation of a microchip in her left ear that was designed to harm and disrupt her ability to function. (Case No. SC14-1218)

The Tampa Bay Times reported on the situation in June 2014

A June 16 Times article showed that she had been  telling federal judges for more than a decade that she was the victim of mind control and torture, with no apparent effect on her license to practice law….

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Slip-and-Fall Evidence Spoilation A Slippery Slope?

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Slippery Slope: Harrell v. Pathmark, by Craig Ball, Ball In Your Court Blog

https://ballinyourcourt.wordpress.com/2015/04/06/2318/

One e-discovery blog I never fail to read is Doug Austin’s eDiscoveryDaily. It’s hard to come up with a post every day; yet, Doug makes it look easy. Each post is a quick read with little editorializing; and, Doug faithfully includes a link to the opinion. That last may seem a small thing; but, some bloggers don’t do it (or only share the full text of the decision with paying customers). There’s no substitute for reading the case.

Today, Doug posted on Harrell v. Pathmark, (USDC EDPA, February 26, 2015), where the Court dismisses the plaintiff’s slip-and-fall injury claim on summary judgment. I don’t think the Court got it wrong on the merits; but, in weighing in, sua sponte, on the e-spoliation issue, I’m reminded of the maxim, ‘hard cases make bad law.’ . . .

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This Is So Wrong On So Many Levels.

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Florida Lawyers Face Disciplinary Charges After Representing “Bubba the Love Sponge Clem” Blog, by Tom Feher, Thompson Hine LLP, The Law for Lawyers Today, © Copyright 2006-2015 Globe Business Publishing Ltd (with hat tip to William P. Statsky!)

http://www.lexology.com/library/detail.aspx?g=7369afdc-2305-4a44-aa15-ee76a6effe33

There has been a long, ongoing discussion in our profession about whether paralegals should have a certain level of paralegal education or whether it is sufficient to have experience alone. This article makes a good argument that, one way or another, in-depth education in legal ethics is critical for paralegals and all support staff. This subject deserves, and needs, special attention.

We make the mistake of thinking that lawyers know every nuance to supervising paralegals, and that is not always the case. It is not enough pick up a short review of legal ethics at a CLE seminar. You should be brushing up constantly, just as you would court rules or any other integral part of your job.

This example is one of the most extreme ethical violations I have ever seen by paralegals and attorneys. You cannot make up this stuff. -CCE

Sometimes our lessons come in more bizarre ways than others. As reported by Law360 last week (subscription required), three Florida lawyers were charged by disciplinary authorities over a January 2013 incident involving the firm’s paralegal. The three lawyers were defending defamation claims against their client, who was a local radio talk show host known as ‘Bubba the Love Sponge Clem.’ The plaintiff was another radio personality.

Reports at the time suggested that, on the evening after the media-focused defamation trial started, the defense firm’s paralegal spotted plaintiff’s counsel at a local bar near his home. She contacted lawyers at her firm, returned to the bar with a friend, and sat down next to opposing counsel. Over the next two hours, the paralegal is reported to have lied about where she worked, flirted with opposing counsel and ordered drinks, including buying defense counsel a vodka cocktail and shots of Southern Comfort. She also stayed in touch with the three lawyers from her firm, sending them more than 90 texts and emails over the course of the evening. . . .

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Hey Jurors — Look This Way!

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Simple Jury Persuasion: “Hey, Look Over Here For A Second!” posted by Douglas Keene, The Jury Room Blog

http://tinyurl.com/p83amyh

This is sort of scary research. We all like to think our views on moral issues are pretty consistent and not easily shaken. That would be incorrect. They are not consistent and they are easily shaken. At least these are the conclusions reached by this research.

We’ve written before about on which side of the courtroom you want to place your exhibits (it’s on the left), but this is far above and beyond that. According to these researchers, you can actually change someone’s mind about an ethical issue by where you have them looking. And, this is the worst part: it takes less than a second! Here is what they did. . . .

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Legal Writing Tips from “Dear Scrivener.”

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A Potpourri Of Tips About Legal Writing, by Judith D. Fischer, Legal Writing Prof Blog

http://lawprofessors.typepad.com/legalwriting/2015/03/a-potpourri-of-tips-about-legal-writing.html

For a potpourri of tips about legal writing, see Dear Scrivener by Scott Moise in the March 2015 South Carolina Lawyer. . . .

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