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

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

http://tinyurl.com/mrm3ucz

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

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

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

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

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

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

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

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

Appellate Legal Writing – This Is How You Do It.

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

http://tinyurl.com/mg88sy7

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

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

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

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

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

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

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

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

Using Location And Time To Exonerate Or Implicate.

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

http://tinyurl.com/mq2u5zv

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

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

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

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

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

The Five Basic Excel Functions That Make Your Life Easier.

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

http://tinyurl.com/ndql3ks

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

Cool Tip – How To Re-Number Your Exhibits’ Bates Stamps For Trial.

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Trial Tech Tips – TrialDirector Bates Numbering, by Ted Brooks, Court Technology and Trial Presentation Blawg  

http://tinyurl.com/ok53uvl

This tip is one of the best ways to use Adobe Acrobat’s Bates-numbering feature. Not to take away from TrialDirector, but you can do this entirely with Adobe Acrobat. It is fast and easy. If you have not tried it, I strongly encourage it. Mr. Brooks’ post will explain why. -CCE

This article is the first in a series entitled ‘Trial Tech Tips.’ Focused on the crossroads of law and technology, and in no particular order, we will share a collection of proven and tested methods for accomplishing a wide variety of common and/or critical tasks encountered during trial preparation or presentation. We will also try to rank them from one to ten on a ‘geek scale,’ with one being not too technical, and 10 being very technical.

On a geek scale of one to ten, this article would be rated at about an 8.

In litigation, it is generally a good idea to make sure that when a certain document is referred to, it is that exact document, and not another version of the same. In situations where there are more than one, and it can be proven, it can result in an interesting trial.

Bates numbering has been around for some time, and is one good method of making sure that everyone is on the same page – literally. Through the years, inked stamps have been used, printed stickers, and nowadays the method most commonly used adds them via software – generally in the lower right corner of each page. Although the most efficient methods can handle a large volume all in one operation, this can also be done at the individual document level.

There are many reasons for adding a Bates number to your exhibits, and there are many for adding yet another Bates number. For instance, if your exhibits have already been numbered according to document productions, it may be helpful to add another set of numbering tied to trial exhibit numbers. This makes it easier for counsel, judges, witnesses and jurors to quickly get to any given exhibit page. Rather than having some lengthy production-based Bates number (e.g., PLTF000024) that may or may not be followed by its next numerical page (PLTF000025) when used in a trial exhibit, we can simply make reference to the trial exhibit and page number (e.g., 0178-002 would be trial exhibit 178, page 2). . . .[Emphasis added.]

Justice Scalia’s Interpretation of Criminal Statutes And “Rule of Lenity.”

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Scalia Weighs In On One of the Most Important Questions in the World of White-Collar Criminal Defense, by Matt Kaiser, Above The Law Blog

http://tinyurl.com/kahbnvm

Justice Scalia is not a man known for mild opinions. I hear the other Justices have voted him ‘least likely to say ‘this is a question on which reasonable minds could disagree.’

While a conservative, Scalia has done good work for those charged in criminal cases in recent years. He’s been good on Fourth Amendment issues, the Confrontation Clause, and federal sentencing.

And, at oral argument recently, on what is perhaps the most significant criminal justice issue of the day — how broadly we should interpret criminal statutes — Scalia has turned his considerable intellect again in a defense-friendly way.

How, you ask?

Whether to interpret a criminal statute broadly or narrowly is an intricate question. The ‘Rule of Lenity says that criminal statutes should be interpreted narrowly. Yet courts often read in a meta-‘Rule of Lenity’ that says that the Rule of Lenity itself should be interpreted narrowly.

Moreover, judicial review of the scope of a criminal statute is tricky. There are thousands of federal criminal statutes on the books and Congress makes more every year. About 95% of the time, people charged with federal crimes plead guilty. Courts are highly resistant to litigate the meaning and breadth of a federal criminal statute before trial, which means that challenges to the interpretation of a statute are possible in a very small number of cases.

What that means is that prosecutors’ interpretations of federal statutes are highly unlikely to be meaningfully challenged. And, when they are, generally they are interpreted broadly. . . .

Illinois Pension Law Ruled Unconstitutional.

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Judge Rules Illinois Pension Law Unconstitutional, by Elizabeth LaForgia, JURIST (Supported by the University of Pittsburg School of Law)

http://tinyurl.com/oppjhg8

An Illinois judge on Friday ruled [opinion, PDF] a law intended to fix the pension crisis in the state violates the Illinois constitution. Sangamon Country Circuit [official website] Judge John Belz ruled in favor of state employees and retirees who sued to block the law. Last December, state lawmakers passed [JURIST report] the bill [text, PDF], which amended the state’s pension plan in an effort to cut spending and lower the state’s debt. The law would raise the retirement age and lower annual increases in pensions to retired employees, which would be based on the number of years worked. Public employee unions challenged the measure under the Pension Protection Clause of the Illinois Constitution [materials], arguing that the constitution prohibits reducing benefits or compensation. In response, the state argued that pensions can be modified in times of fiscal emergency. ‘The state of Illinois made a constitutionally protected promise to its employees concerning their pension benefits,’ wrote Judge Belz. ‘Under established and uncontroverted Illinois law, the state of Illinois cannot break this promise. Illinois Attorney General Lisa Madigan [official website] announced [statement] that they “plan to immediately appeal the decision to the Illinois Supreme Court.’

Pension rights have been a controversial issue recently. In December, a judge for the US Bankruptcy Court for the Eastern District of Michigan [official website] ruled [JURIST report] that the city of Detroit is eligible for bankruptcy [JURIST op-ed]. The insolvent city’s debt [JURIST op-ed] includes 3.5 billion dollars in pension funds. The bankruptcy was allowed to go forward despite a Michigan state court ruling [JURIST report] last year which held that the city’s filing for bankruptcy violated the Michigan Constitution. The bankruptcy court held that the pension funds could not be treated any differently than other unsecured debt. In March 2013 the US District Court for the Southern District of New York [official website] denied [JURIST report] a motion to dismiss a lawsuit brought by a pension plan holder against JPMorgan (JPM) [corporate website; JURIST news archive]. The court found that sufficient allegations were raised to support a claim for breaches of both the duty of care and the duty of loyalty.

Writing the Opening Of A Brief – The Right Way.

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Open A Brief With Substance, Not Bluster, by Kenneth F. Oettle, Newsroom Publications, Sills Cummis & Gross, P.C.

http://tinyurl.com/l7jk5a8

Ken Oettle is one of my favorite legal writers. In my opinion, his book, Making Your Point!, should be on the reference shelf of every serious legal writer. Yes, it’s that good. There are many excellent legal writers. Ken is one of the best.

To comply with copyright, no excerpts can be published. You will still find the entire article at the link from Sills Cummis & Gross, P.C. -CCE

Beginner’s Guide to U.S. Treaties.

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U.S. Treaties: A Beginner’s Guide, co-authored by Barbara Bavis and Robert Brammer, In Custodia Legis, Law Librarians of Congress

http://blogs.loc.gov/law/2014/11/u-s-treaties-a-beginners-guide/

Article II, Section 2 of the U.S. Constitution states that the President ‘shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur…. ‘ An early attempt by the President and Senate to negotiate the exercise of this power provided an interesting anecdote. According to the Senate Historical Office, on August 22, 1789, President Washington traveled to the Senate to submit a treaty concerning Native American Indian Tribes. While the President waited, the Senate decided to postpone consideration of the treaty rather than debate the questions in front of the President. According to Maclay’s Journal an irritated, President Washington exclaimed, “This defeats every purpose of my coming here!” and resolved to submit subsequent treaty communications to the Senate in writing. To learn more about the development of the treaty power and its application, please refer to the United States Constitution: Analysis and Interpretation’s discussion of Article II, Section 2.

There are several options for researchers trying to find copies of treaties to which the United States is or was a party. In fact, we were inspired to write this post by the new Treaties digital collection added to the Law Library of Congress website. As of now, the digital collection includes a digital copy of the first four volumes of Charles I. Bevans’s Treaties and Other International Agreements of the United States of America, 1776-1949, which includes copies of the English version (or English translation) of multilateral treaties to which the United States was a party. Digital copies of the remaining volumes (5-12), which include the bilateral treaties to which the United States was a party during this period, will be added in the near future.

The Treaties page also links to the United States Department of State’s Treaties and Other International Acts webpage, which includes PDF copies of the ‘executed English-language original of [each published international] agreement and certain other key documents’ for published international agreements entered into from 1996 to the present. The Treaties and Other International Acts series (also known as TIAS), which is ‘the official print publication format for treaties and agreements that have entered into force for [the] U.S.,’ was published by the Government Printing Office in paper form from 1945 to 2006, but is now available online. . . .

iPhone Candy Courtesy of iPhone J.D. Blog’s Sixth Anniversary!

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Six Years Of iPhone J.D., by Jeff Richardson, iPhone J.D. Blog

http://tinyurl.com/oc2ptjb

Congratulations and thanks to Jeff Richardson for six years of iPhone J.D. Blog. As usual, Jeff shares a sweet collection of apps in honor of his yearly anniversary. Thank you, Jeff! -CCE

Facebook And Its Big Brother Complex.

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Facebook: You Post It, We Can See It, And That’s That, by Zach Miners, PC World

http://tinyurl.com/lqylv3j

If you still think that Facebook allows you to have control over your privacy and no one is collecting your data, I have a dry well in Oklahoma that I know you’ll just love. Call me. -CCE

In fact, Facebook doesn’t think it would make sense to let users do that.

‘With most online services, there’s an understanding that when you use those services to share information, you’re also sharing information with the company providing the service,’ said Matt Scutari, manager of privacy and public policy at Facebook.

‘For users who are truly concerned with sharing their information with a particular platform, honestly, you might not want to share information with that platform,’ he said, speaking during a conference on digital privacy in Palo Alto, California, on Friday.

‘I don’t think there are many services out there who could claim they’re not using your information that you’re sharing with them for any purpose. They have to at least use that information to provide the service,’ he added.

Scutari was responding to a question from the audience about what tools, if any, Facebook might provide to people who want to post and share information but keep it from Facebook itself.

Lately, the company has been trying to improve its controls for sharing among friends. In September it introduced a ‘privacy checkup’ feature. And just this week it released a revamped privacy policy designed to be easier to use. The company also gives users information about how their data is used for advertising. But it has never offered users tools to limit what data Facebook can ingest when they share.

Data collection—what companies collect, and how it’s used—is an area of concern for Internet users in general, highlighted by some dramatic findings in a recent Pew survey. . . .

Westlaw Public Records Database Breached. Who Is Affected?

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Westlaw Discloses Breach Of Public Records Database, by Sabrina I. Pacifici, BeSpacific Blog

http://tinyurl.com/pffqhny

News release: ‘West Publishing Corporation, a unit of Thomson Reuters, has notified the New Hampshire Attorney General’s Office of a breach involving their Westlaw subscription-only public records database. In a letter dated November 4th to those affected, Senior Vice President Andy Martens explained that on October 14, they detected unusual search activity. Investigation revealed that some subscribers’ passwords had been compromised and used to access the database. The types of information involved included addresses, date of birth, and in some cases, driver’s license numbers and Social Security numbers. No bank account or credit card information was involved. In response to the breach, West removed external access to full sensitive identifiers in public records, forced a password reset on all public user accounts, and implemented  additional technological controls to detect and respond to searches of more limited public records that also appeared unauthorized. Federal law enforcement was also contacted. West offered those affected two years of free credit monitoring with Experian ProtectMyID Elite. Nine NH residents were notified. The total number of individuals notified was not indicated in their report to New Hampshire.’

Permacookies – AT&T’s and Verizon’s Way Of Saying “Hello.”

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AT&T Kills The ‘Permacookie,’ Stops Tracking Customers’ Internet Usage (For Now), by Nick Mediati, PC World

http://tinyurl.com/kff7k94

In recent weeks, Verizon and AT&T have been caught up in a privacy firestorm over their use of so-called ‘permacookies,’ a method of tracking what their users do while browsing the Web with the intent of sharing that data with advertisers. Verizon’s permacookie program lives on, but AT&T has ceased the practice, ProPublica reported on Friday.

At least for now.

AT&T tells ProPublica that its use of permacookies was ‘part of a test,’ which has since wrapped up, but the company says that it ‘may still launch a program to sell data collected by its tracking number.’ For its part, AT&T says that it will allow customers to opt out of the program if—or when—it decides to use permacookies for advertising purposes.

The story behind the story: Permacookies aren’t cookies in the traditional sense: Instead, they’re unique identifiers appended to website addresses you type in on your device that let carriers see what kinds of sites you visit.

Permacookies exist for the same reason traditional tracking cookies exist—so advertisers can see what sorts of things you might be interested and serve up related ads in the hopes that you’ll click on them. But unlike regular tracking cookies, which you can easily delete from your browser or block entirely, there’s no way of removing or blocking permacookies since they’re handled entirely by the carrier. . . .

Whatever Can Be Misunderstood, Will Be.

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This Should Be Every Trial Lawyer’s Mantra, by Paul Luvera, Plaintiff Trial Lawyer Tips Blog

http://tinyurl.com/myfv5oo

One of my favorite quotations! Mr. Luvera hit the nail on the head, not only for trial presentations, but for any type of writing regardless of your profession. Some people think that their writing should be complex, with lots of Latin, jargon, and legalese. Technical writers often use complicated terms and words understood (barely) by people who work in their industry, but no one else.

Most readers skim or skip the long, single-space block quotations often found in legal briefs. Wouldn’t you? Imagine having to slog through poorly written briefs day after day? Or imagine that you are a juror who must decipher poorly written jury instructions. If what you say is that important, why risk losing the reader even for a moment?

Just like Murphy’s Law, in writing, whatever can be misunderstood, will be. What is the point of writing anything if you are not easily understood? No, you are not “dumbing down” your writing or treating the reader like a child. You are communicating and facilitating your goal — to be understood. -CCE

enstein

Malpractice Immunity And Defensive Medicine.

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Giving Physicians Immunity From Malpractice Claims Does Not Reduce ‘Defensive Medicine,’  Medical News Today (Rand Corporation)

Changing laws to make it more difficult to sue physicians for medical malpractice may not reduce the amount of ‘defensive medicine’ practiced by physicians, according to a new RAND Corporation study.

Studying the behavior of emergency physicians in three states that raised the standard for malpractice in the emergency room to gross negligence, researchers found that strong new legal protections did not translate into less-expensive care.

The findings are published in the Oct. 16 edition of the New England Journal of Medicine.

‘Our findings suggest that malpractice reform may have less effect on costs than has been projected by conventional wisdom,’ said Dr. Daniel A. Waxman, the study’s lead author and a researcher at RAND, a nonprofit research organization. ‘Physicians say they order unnecessary tests strictly out of fear of being sued, but our results suggest the story is more complicated.’

It is widely said that defensive medicine accounts for a substantial part of the hundreds of billions of dollars of unnecessary health care spending that is estimated to occur annually in the United States. Malpractice reform has been advocated by many experts as a key to reining in health care costs.

RAND researchers looked at three states — Georgia, Texas and South Carolina — that about a decade ago changed the legal malpractice standard for emergency care to gross negligence. Other states use the more common ordinary negligence standard, or a failure to exercise reasonable care.

The higher standard means that for physicians accused of malpractice in the three states examined, plaintiffs must prove that doctors consciously disregarded the need to use reasonable care, knowing full well that their actions were likely to cause serious injury. . . .

Should Attorneys, Not Judges, Conduct Voir Dire At Trial?

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Let the Lawyers Ask: Five Reasons for Attorney-Conducted Voir Dire, by Dr. Ken Broda-Bahm, Persuasive Litigator

http://tinyurl.com/new9t3c

You may think that trial attorneys are the only ones who conduct voir dire at trial. That is not necessarily the case. Not all judges agree, especially in federal court. Dr. Broda-Bahm argues here that the parties’ lawyers should have this role. -CCE

Ever had the experience of asking someone to ask someone else something on your behalf? It’s like a sixth-grader’s attempt to find out if someone likes you. Sometimes you need a little plausible deniability but, in most cases now, it’s easier and more direct to just ask on your own. And that is pretty much what attorneys want in voir dire. It is nice for the judge to explain the procedures and deal with some of the more obvious hardship and cause challenges, but I think it’s safe to say that every trial lawyer wants the chance to ask their own questions in voir dire. Unfortunately, in some states and in most federal courtrooms, attorney-conducted oral voir dire is either limited or nonexistent.

The judges in those courtrooms, however, have discretion, and can allow attorney-conducted oral voir dire if they think the case or the circumstances call for it. So, when attorneys do have an opening to argue for their own chance at the lectern during voir dire, how do they make the case? If the judge is firmly convinced that it’s wasted time or an unwelcome opportunity for lawyers to ask panelists to prejudge the case, then nothing is going to change that judge’s mind. But if judges are on the fence, then a joint request from the parties, along with a few good reasons, might be enough to sway them. This post offers five reasons, along with some supporting research, that could buttress a brief or an oral argument in favor of attorney-conducted oral voldir dire. . . .

Improve Your Brief With The Curse of Knowledge Test.

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The Curse Of Knowledge: The Root Of Incomprehensible Writing, by Raymond P. Ward, the [new] legal writer blog

http://tinyurl.com/kjpzl9a

Bryan Garner tells participants in his seminars that good writing makes the reader feel smart, while bad writing makes the reader feel stupid. What is the root of this kind of bad writing? Mark Herrmann has an idea about that, drawn from cognitive scientist Steven Pinker: we think that our readers already know what we are trying to tell them. Pinker calls this phenomenon ‘the curse of knowledge.’

So what is the cure for this affliction? Herrmann recommends empathy for the reader. ‘Put yourself in the reader’s state of ignorance,’ he counsels, “and write for that audience.’ Pinker suggests testing your draft on people who don’t already know what you’re trying to tell them:

A better way to exorcise the curse of knowledge is to close the loop, as the engineers say, and get a feedback signal from the world of readers—that is, show a draft to some people who are similar to your intended audience and find out whether they can follow it. Social psychologists have found that we are overconfident, sometimes to the point of delusion, about our ability to infer what other people think, even the people who are closest to us. Only when we ask those people do we discover that what’s obvious to us isn’t obvious to them.

Garner has a similar recommendation in The Winning Brief, at least for cases where the amount at stake is worth the expense: Convene a focus group of lawyers unfamiliar with the case to play the part of appellate judges by reading and reacting to your draft brief. This exercise has many benefits. One of them is to tell you whether the curse of knowledge has infected your brief.

 

 

Copyright Infringement and Fair Use.

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Law Firm Copying and Fair Use: An Examination of Different Purpose and Fair Use Markets, by Sabrina I. Pacifici, BeSpacific Blog

http://tinyurl.com/lfs2g9v

Jones, D. R., Law Firm Copying and Fair Use: An Examination of Different Purpose and Fair Use Markets (September 29, 2014). South Texas Law Review, Vol. 56, No. 2, 2014 – Forthcoming; University of Memphis Legal Studies Research Paper No. 144. Available for download at SSRN: http://ssrn.com/abstract=2503089

‘In several recent lawsuits, publishers sued law firms for copyright infringement. The lawsuits focused on making unlicensed copies of scholarly articles to file with patent applications, including copies for the firms’ internal use and for the firms’ clients. In two of these cases, lower court judges determined that the making of unlicensed copies was fair use. The decisions hinged on transformative use, focusing on the defendant’s purpose for using the works. There was no alteration or change in the works. The judges found fair use, despite the possible availability of licensing. These patent application cases fit within a larger category of cases involving the use of copyrighted works in judicial and quasi-judicial proceedings. This article uses these cases as a vehicle to review the use of purpose in fair use analysis. It advocates that the review of the character and purpose of a use should include a deeper examination of the policies and societal interests underlying the use. This broader consideration is especially important if a plaintiff asserts the presence of a ready market for the payment of fees for use of a copyrighted work. This article explores the determination of a fair use market as a way to support the unlicensed use of copyrighted works although a ready market exists for the payment of fees. These cases offer an excellent model for the analysis necessary to determine a fair use market.’

Basic Evidence Presentation Tips For Young Lawyers.

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Letter To Young Lawyers—Basic Tips And Presentation Of Evidence, by Hon. E. Kenneth Wright Jr.,YLD News, Illinois State Bar Association™, Vol. 55, No. 1 (August 2010)

Dear Attorney Jane Doe and Attorney John Doe:

As a young lawyer, you are in a place that I left some time ago. However, I have watched you step into jury courtrooms with a level of anticipation and excitement that is refreshing. While a few of you mask it well, I know there is also some anxiety lurking in the background. Don’t worry, because that anxiety strikes even the most seasoned litigators. Now I sit on the bench, and I sometimes wish I could call a time out during the trial to share with you some simple tips that will put you more at ease as you proceed with your case.

Being a member of the judiciary is an honor that comes with extraordinary powers and responsibilities. These powers do not include a coach’s ability to call for substitution of players, so in this note I want to briefly address some basic practical pointers to improve your overall practice as well as touch upon the specific issue of presentation of evidence to a jury. I hope by doing so I give you peace of mind and contribute, in a small way, to your growth as a fine attorney.

Basic Pointers

How quickly you acclimate yourself to courtroom practice depends in large part on you, your learning style, and how many opportunities you have to appear before the court. In the beginning, you may feel overwhelmed by the number of items you must remember, track and recall at a moment’s notice. In your haste, you may overlook a few very basic points that can actually help you. . . .

How To Research Corporations.

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From Due Diligence to Corporate Intelligence, by Internet for Lawyers Blog

http://tinyurl.com/po56fuh

Say you’re working on a big case, and you need as much information on the opposing company as possible. Or perhaps you’re pitching a potential new client, and want to know everything about their business for your presentation. Maybe your client’s competition is developing a new product or you want to read all the news stories about some development that will affect your business or your clients’. Do you know how to get that information quickly? And for free?

There was a time not so long ago when a law firm would have to use an ‘information specialist’ to find this information, or in extreme cases, hire a ‘corporate spy’ to dig up the most sensitive competitive business information. But today, with so much business, legal and news information available on the Internet, getting this kind of ‘business intelligence’ is infinitely easier. If you know where to look, you too can be a corporate 007. . . .

What to Know About do-it-yourself Wills

Celia C. Elwell, RP:

Good advice! -CCE

Originally posted on Grand Junction Lawyer Blog:

You know it, and I know it: A good lawyer can be expensive. With all of the companies out there that are providing fill-in-the-blank, do-it-yourself Wills and other estate planning documents on the cheap, it may be awfully tempting to try to save money using them. Many start at only around $100.

In some instances, using estate planning software or websites may actually be a good idea. For example, if you have a very simple estate plan with no estate tax issues, and you are leaving the bulk of your estate to your spouse or kids, you should consider it.

All estate planners and estate planning experts agree that any Will, even a fill-in-the-blank, do-it-yourself Will, is almost always better than not having one at all, especially if your family and financial situation is basic and straightforward. However, you need to make sure that if you do your own estate…

View original 193 more words

Collection of Judges’ Best Advice On Legal Writing.

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Judges on Effective Writing: The Importance of Plain Language, by Bryan A. Garner, Vol 84 Mich. B. J. 44 (February 2005)

http://tinyurl.com/kk6trum

Each quote here is a pearl of wisdom – classical and timeless. Look no further to find the heart and soul of effective legal writing. Click on the hyperlink to find the footnotes for each quotation. -CCE

I trust that, after more than 20 years, some of the Plain Language columns are worth reprinting. This one appeared in March 1994. As I noted then, the survey that Mr. Garner mentions in his introduction is the same one that we first did in Michigan, with very similar results. See the October 1987 and May 1990 columns. The judges are identified by their judicial positions when they make their remarks. —JK (Joseph Kimble)

Lawyers are notoriously poor at gauging what judges prefer in legal writing. Too many of us believe, for example, that judges expect us to use legalese. In 1991, when the Texas Plain-Language Committee surveyed all the state district and appellate judges in Texas, we found that more than 80 percent prefer plain language (Plaintiff complains of Defendant and says) over legalese (Now comes the Plaintiff, by and through his attorneys of record, Darrow and Holmes, and for his Original Petition in this cause would respectfully show unto the Court the following). Indeed, several judges responded to the survey with a plea that we stamp out legalese once and for all.

The results of that survey surprised many Texas litigators—and many changed the form of their court papers. But many more have persisted in the old, legalistic style—perhaps out of a fondness akin to what some people feel for the language of the King James Version of the Bible. Judge Lynn Hughes of Houston speaks directly to those litigators: ‘Anyone who thinks Comes now the Plaintiff is anything like the King James Version has no sense of poetry.’

Literary tastes may differ, of course, but it’s worth knowing what judges say—and have been saying for a long time—about the language we lawyers use. Following are some choice quotations I’ve recently collected. Bryan A. Garner

Judicial Diagnoses

‘Lawyers spend a great deal of their time shoveling smoke.’ Hon. Oliver Wendell Holmes1, U.S. Supreme Court

‘[Too many lawyers believe that] it is essential to legal English that one write as pompously as possible, using words and phrases that have long since disappeared from normal English discourse.’ Hon. Antonin Scalia2 , U.S. Supreme Court

‘The reason legal writing has gotten to such a low point is that we have had very bad teachers—judges who wrote years ago and wrote badly. We learned bad habits from them and their opinions in law school.’
Hon. William Bablitch3, Supreme Court of Wisconsin

Stick to the Mother Tongue

‘[The advocate] will stock the arsenal of his mind with tested dialectical weapons. He will master the short Saxon word that pierces the mind like a spear and the simple figure that lights the understanding. He will never drive the judge to his dictionary. He will rejoice in the strength of the mother tongue as found in the King James version of the Bible, and in the power of the terse and flashing phrase of a Kipling or a Churchill.’  Hon. Robert H. Jackson4, U.S. Supreme Court

‘[A]void as much as possible stilted legal language, the thereins, thereofs, whereinbefores, hereinafters, and what-have-yous. Use English wherever you can to express the idea as well and as concisely as in law or Latin. A healthy respect for the robust Anglo-Saxon appeals more than does the Latin, whether or not it is Anglicized. The home-grown product in this case is better than the imported, not to say smuggled, one.’ Hon. Wiley B. Rutledge5, U.S. Supreme Court

‘Write so that you’re understood. English is a hard language to learn, but it’s an easy language to communicate in. There’s no reason to put Latin in your brief.’ Hon. Craig T. Enoch6, Fifth Court of Appeals, Dallas

‘Don’t use legalese. It causes you to put your contentions in stale ways.’ Hon. Thomas Gibbs Gee7, U.S. Court of Appeals for the Fifth Circuit, 1974-91

‘Legalese is an impediment to clear, logical thinking.’ Hon. F. Lee Duggan8, First Court of Appeals, Houston

‘It’s easier for a judge when you’re using common usage. Judges are only human, after all.’ Hon. Carolyn Wright9, Family District Court, Dallas

Simplify, Simplify!

‘For a hundred years, good lawyers have been writing without all the garbage and in a simple, direct style.’ Hon. Lynn N. Hughes10. U.S. District Court, Houston

‘A lawyer should write the brief at a level a 12th grader could understand. That’s a good rule of thumb. It also aids the writer. Working hard to make a brief simple is extremely rewarding because it helps a lawyer to understand the issue. At the same time, it scores points with the court.’ Hon. William Bablitch11, Supreme Court of Wisconsin

‘When a judge finds a brief which sets up from twelve to twenty or thirty issues or ‘points’ or ‘assignments of error,’ he begins to look for the two or three, perhaps the one, of controlling force. Somebody has got lost in the underbrush and the judge has to get him—or the other fellow—out. That kind of brief may be labeled the ‘obfuscating’ type. It is distinctly not the kind to use if the attorney wishes calm, temperate, dispassionate reason to emanate from the cloister. I strongly advise against use of this type of brief, consciously or unconsciously. Though this fault has been called over-analysis, it is really a type of under-analysis.’ Hon. Wiley B. Rutledge12, U.S. Supreme Court

‘The key is to make the brief easy for the judge to follow.’ Hon. Lloyd Doggett13, Supreme Court of Texas

Cut the Verbiage

‘You want your brief to be as readable as possible . . . . If I pick up a brief of 49 and a half pages, it has a little less credibility than one that succinctly argues its points in 25 pages . . . . There’s nothing better to read than a well-written brief from a really good lawyer.’ Hon. Jerry E. Smith14, U.S. Court of Appeals for the Fifth Circuit

‘Eye fatigue and irritability set in well before page 50.’ Hon. Patricia M. Wald15, U.S. Court of Appeals for the D.C. Circuit

‘A brief should manifest conviction . . . . [That] is virtually impossible . . . if it contains an excessive number of quotations or is larded with numerous citations to the authorities. Short quotations sometimes clinch a point, but long ones fail in that objective.’ Hon. George Rossman16. Supreme Court of Oregon

‘Start in the very first sentence with the problem in this case. Put it right up front. Start early. Don’t bury it under a lot of verbiage and preliminaries.’ Hon. Nathan L. Hecht17, Supreme Court of Texas

Does Style Matter?

‘Style must be regarded as one of the principal tools of the judiciary and it thus deserves detailed attention and repeated emphasis.’ Hon. Griffin B. Bell18, U.S. Court of Appeals for the Fifth Circuit

‘Lawyers are excused from the necessity of interesting their readers, and all too often—let’s face the evidence—they take advantage of this enviable exemption.’ Hon. Jerome Frank19, U.S. Court of Appeals for the Second Circuit

‘Is good writing rewarded? I used to think it doesn’t matter much, in comparison with legal authority, justice, and the like. Now I know better: Good writing is rewarded so automatically that you don’t even think about it.’ Hon. Murry Cohen20, Fourteenth Court of Appeals, Houston

Bryan A. Garner (bagarner@att.net), president of Dallas-based LawProse, Inc. (www.lawprose.org), is the author of many books on writing, including Legal Writing in Plain English (2001) and The Elements of Legal Style (2d ed. 2002). He is also editor in chief of all current editions of Black’s Law Dictionary. He teaches at Southern Methodist University School of Law.

To Decide Motion To Compel, Court Asks Whether Discovery Was “Fair.”

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Considering Motion to Compel, Court Asks Whether Discovery Responses Have Been “Fair,” by K&L Gates

http://tinyurl.com/kkgomaa

Finjan, Inc. v. Blue Coat Sys., Inc., No. 5:13-cv-03999-BLF, 2014 WL 5321095 (N.D. Cal. Oct. 17, 2014)

In this patent infringement case, Defendant objected to ‘producing custodial email from archival systems when [the Plaintiff] is not able to do the same in return.’ Plaintiff filed a motion to compel. In assessing the motion, the court recognized potential limitations on discovery, pursuant to Fed. R. Civ. P. 26(b)(2)(C)(iii).  The court indicated that, ‘[r]educed to its essence, Rule 26(b)(2)(iii) [sic] requires this court to decide: have Blue Coat’s discovery responses been fair?’  In response, the court concluded that the defendant’s responses had ‘largely been fair, but not entirely.’ Turning specifically to the question of custodial emails, the court reasoned:

Where Blue Coat has been less than fair is with respect to archival email for its eight custodians. Blue Coat may largely be in the right that it should not have to dig through legacy systems when Finjan is unable to the same for its custodians. But one party’s discovery shortcomings are rarely enough to justify another’s. And here, at least with respect to documents mentioning Finjan—the one specific category of documents Finjan could identify that it needed from archived email—Finjan’s request is reasonable.

A full copy of the court’s opinion is available here.

Witness Credibility When Witness Has A Criminal History.

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Credibility Proxies: Violence, by JSK, Evidence ProfBlogger, EvidenceProf Blog

http://tinyurl.com/pr3nqtl

Yesterday [November 7, 2014], we saw the Colorado Supreme Court grappling with whether an act of shoplifting is admissible as evidence bearing on a witness’s credibility. In that same opinion, People v. Segovia, the C.S.C. noted that acts of violence have typically been excluded when offered to impeach credibility.

This frequently cited notion, that acts of violence are not particularly relevant to credibility, is worth interrogating further. To do so, I turn to another opinion from the past decade. This one is a frequently cited opinion by then Judge Sotomayor of the Second Circuit, U.S. v. Estrada, 430 F.3d 606. The case was an appeal of the convictions of two men who were found to have conspired to sell cocaine and heroin. At trial, the government called cooperating witnesses. Defense counsel sought to impeach the two witnesses with evidence that between them they had burglary, larceny, felony drug and murder convictions. Acknowledging that F.R.E. 609(a)(1) suggest that felony convictions are presumptively relevant to credibility, the trial court held in camera hearings to probe into the nature of the larceny, felony drug and murder convictions.  It found that they weren’t especially probative of truthfulness. The court therefore ruled that defense counsel could not name the particular felonies committed or ask about the nature of the convictions, but instead could simply elicit the fact of the convictions and the dates.

The Second Circuit disagreed with the blanket prohibition on naming the felonies. It held that unless a conviction fails 403 balancing and is excluded entirely, ‘it is the jury’s function to assess the probative value of a witness’ specific conviction or convictions as part of its overall evaluation of the witness’s credibility.’ Judge Sotomayor wrote that the trial court must examine ‘which of a witness’s crimes have elements relevant to veracity and honesty and which do not’ because while all felonies are not equally probative of credibility ‘many are significantly probative of a witness’ propensity for truthfulness.’

Judge Sotomayor then offered a taste of how the trial court should go about making these determinations. And this is where it gets really interesting. With heavy reliance on earlier authority, she distinguished acts of violence from crimes that “reflect adversely on a person’s integrity.’ Crimes of violence ‘generally have little or no direct bearing on honesty and veracity’ because they result from provocation, carelessness, impatience or combativeness. By contrast, she explained, theft and escape crimes, which don’t fall under 609(a)(2), are nonetheless highly probative of credibility because they involve ‘deliberate and injurious violation of basic standards rather than impulse or anger, and usually . . . some element of deceiving the victim.’ In addition, the gravity and/or depravity involved in the offense should be considered both for their ability to prejudice the jury and because ‘particularly heinous crimes may be high in probative value insofar as they reflect a rejection of social mores.’

Once again, then, rejection of social mores and ‘violation of basic standards” are held up as clear indicators of lack of credibility. Strangely, though, crimes of violence seem to fit those definitions quite well. The very criminalization of such acts suggest that society demands that one maintain self-control and refrain from violence in most circumstances. A violent lack of inhibition or a deliberate indifference to the injuries caused by ones’ actions arguably run contrary to basic standards that glue society together just as fundamentally as the decision to steal from another person.

Even if, instead, lying is linked to the ability to scheme or plan, then this is not much more helpful as a way to distinguish crimes of violence. Certainly, many theft crimes may happen without much thought (shoplifting, for example) and they may be more excusable as the result of thoughtlessness than violence that causes bodily harm to another person. Why is it likely that someone who steals $100 on a whim is more prone to lying than someone who lashes out at another with a beer bottle during a brawl? Why isn’t it equally likely that people who are prone to fly into a violent rage at a perceived slight or recklessly injure others would be careless of the courtroom oath or think nothing of fabricating facts in order to protect themselves? Judge Sotomayor doesn’t answer these questions.

Ironically, even as she offered this fairly detailed explanation of how to weigh felonies under Rule 609(a)(1), Judge Sotomayor illustrated the subjectivity of such line drawing. Coming to the opposite conclusion of the Colorado Supreme Court, she found that it was not error for the district court to conclude that the circumstances of one of the witness’ shoplifting conviction did not ‘involve falsity or deceit such as to fall within the ambit of Rule 609(a)(2).’ Her explanation: stealth and dishonesty are not the same thing.

iPriviledge – Is It Legal To Be Forced To Use Your Fingerprint To Unlock Your iPhone?

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iPrivilege: Virginia Beach Judge Finds Prosecution Can Force Defendant To Supply Fingerprint To Unlock iPhone, by Evidence ProfBlogger, Editor Colin Miller, EvidProf Blogger

 http://tinyurl.com/lyvlk4o

In relevant part, the Fifth Amendment states that:

“No person…shall be compelled in any criminal case to be a witness against himself….”

The Supreme Court has stated that the Fifth Amendment only covers “testimonial” evidence that results from compelled communicative acts, i.e., acts which disclose the content of one’s mind. Therefore, the Fifth Amendment does not cover a suspect’s act of appearing in a lineup or giving a blood sample to determine whether there are drugs in his system. The Fifth Amendment also does not cover the act of completing a handwriting exemplar. Imagine that the police find an alleged confession note written by the defendant. The prosecution can force the defendant to complete a handwriting exemplar in which the defendant writes a pre-printed paragraph in his handwriting so that a handwriting expert can compare the exemplar and the confession note. All of these and similar acts are not communicative because they are nontestimonial in that they do not force the defendant to disclose the contents of his mind.

What about if the defendant has encrypted files on his computer? Can the prosecution force the defendant to decrypt them? Some courts have said no. Other courts have said yes.

Can the prosecution force a defendant to supply his fingerprint to use for the TouchID on his iPhone? For the last year, I’ve used this article to teach my students that a judge could likely order a defendant to supply his fingerprint to unlock his iPhone. Recently, this possibility has become a reality.

According to an article in SlashGear:

[A] judge has ruled that you can be forced to relinquish your fingerprint to investigators seeking access to your device. The reason, says the judge, is that the fingerprint isn’t knowledge like a password, but is instead a physical object of sorts, like a key or a DNA sample.

The ruling was made recently by Virginia Beach Circuit Court Judge Steven Frucci, and was the result of a case against EMS captain David Baust, who was accused of attempted murder. The case’s prosecutors wanted access to Baust’s phone, believing that it might have a video of the alleged crime, but the defendant’s lawyer argued against this.

And, according to an article in the Huffington Post:

[I]t’s unclear how the ruling will impact Baust’s case. If his phone is protected by Touch ID, prosecutors could access it using Frucci’s ruling. If the phone is protected by a passcode or both a passcode and Touch ID, they can’t . . . .

One workaround to this issue could be to just turn off your phone if cops approach. In that case, you’d have to enter your four-digit pin when you turn it back on, even if you use Touch ID. . . .

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