2013 Judicial Writing Manual: A Pocket Guide For Judges.

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

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

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

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

Jeremy D. Fogel, Director, Federal Judicial Center

 

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

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

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

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

Pushbullett App – Connect Instantly Between Computer And Mobile Devices.

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

http://bit.ly/1sOoY5P

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

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

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

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

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

Federal Judges Writing Manual.

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Judicial Writing Manual, Federal Judicial Center

http://tinyurl.com/k5x898o

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

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

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

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

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

http://tinyurl.com/8d5qfr7

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

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

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

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

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

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

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

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

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

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

http://tinyurl.com/jvqd3y3

Introduction

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

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

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

Pro Bono Resource for Immigration Attorneys.

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Immigration Advocates, Pro Bono Resource Lawyers

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

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

Avoiding PowerPoint Suicide At Your Next Presentation.

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

http://tinyurl.com/m5ozef8

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

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

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

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

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

Bad GPS Is A Defense? Who Knew?

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

http://tinyurl.com/mlm78h9

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

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

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

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

International Law: The Supreme Court of the United Kingdom.

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

http://tinyurl.com/kyg8bwz

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

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

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

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

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

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

http://tinyurl.com/k9srego

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

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

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

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

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

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

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

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

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

Can Your Witness Stand Up To Cross-Examination?

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

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

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

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

Is It Legal Malpractice If You Are Technologically Incompetent?

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

http://tinyurl.com/lo9fs45

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

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

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

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

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

Ethics rules follow practice

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

Lawyers cannot ignore technology

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

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

(Emphasis added.)

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

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

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

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

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

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

Contrary to previous rulings

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

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

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

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

Experts must scan emails, not Google employee

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

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

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

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

Library of Congress’ Introduction to Animal Law.

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

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

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

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

State Bar of Texas Paralegal Division And Texas’ Board of Paralegal Specialization Program.

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State Bar of Texas Paralegal Division

https://txpd.org/

Not all state bar associations have a paralegal division. Texas Bar Association’s Paralegal Division was the first one in the United States created in 1981. Its website has lots of cool stuff, such as:

TBLS is pleased to announce the official launch of our new website specifically for the Paralegal Specialization program. This site is an informational, public-facing web site designed to promote the presence, and exclusive status, of the TBLS paralegal certification process. It also acts as an Intranet for the Board Certified Paralegal (BCP) community and Texas attorneys interested in specialized paralegal matters.

We have just concluded final stages of development and want you to have the first look this weekend of our new site at http://www.tbls-bcp.org. This is only the initial phase of the website with plans for more video, online member services and social media options. . . .

Second Circuit Decision Gives Libraries Full Advantage of Fair Use.

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What Does the Hathitrust Decision Mean For Libraries?, by Jonathan Band, LLRX.com

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

The library community welcomed the decision of the U.S. Court of Appeals for the Second Circuit in Authors Guild v. HathiTrust, __ F. 3d __, 2014 WL 2576342 (2nd Cir. 2014). [Note - a copy of the decision is available here via EFF]. The decision has implications for libraries that go far beyond the specific facts of the case. This paper offers some preliminary thoughts on what these implications may be.

The broadest implication of decision arises out of a footnote. Ever since the adoption of the library exceptions in 17 U.S.C. § 108, rights holders have argued that section 108 limits the availability of fair use to libraries, notwithstanding the savings clause in section 108(f)(4) that states explicitly that ‘nothing in this section in any way affects the right of fair use as provided by section 107.’ In this litigation, the Authors Guild repeatedly argued that section 108 restricted fair use. Judge Baer rejected this argument in the district court, and the Second Circuit rejected it again in footnote 4. Citing the savings clause, the Second Circuit stated that ‘we do not construe § 108 as foreclosing our analysis of the Libraries’ activities under fair use….’ HathiTrust at *4, n. 4. Thus, the decision holds unambiguously that libraries may take full advantage of the fair use right.

The decision also demonstrates how the fair use right applies in the context of a specific library activity: mass digitization. . . .

Canada’s Paralegal Professional Conduct Guidelines.

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Paralegal Professional Conduct Guidelines, The Law Society of Upper Ontario

http://www.lsuc.on.ca/with.aspx?id=1067

The Paralegal Professional Conduct Guidelines help to interpret and to apply the Paralegal Rules of Conduct.  Amendments to the Model Code (see below) will be effective October 1, 2014. –CCE

http://www.lsuc.on.ca/new-rules/

NEW RULES OF PROFESSIONAL CONDUCT

CTA graphic new rules Rules of conduct amended to implement Federation’s Model Code

Convocation amended the Rules of Professional Conduct and the Paralegal Rules of Conduct to implement the Federation of Law Societies of Canada’s Model Code of Professional Conduct. The Paralegal Professional Conduct Guidelines were also amended.

Key points:

•The amended lawyer and paralegal rules, and paralegal guidelines, come into effect October 1, 2014.

•Most amendments are minor, however some changes are more substantive and introduce new standards – particularly changes to the rules dealing with conflicts of interest, undertakings and withdrawal from representation. See summary of changes – lawyers (PDF) and summary of changes – paralegals (PDF).

•The new lawyer rules include a new numbering scheme that mirrors the Model Code.

•The Law Society is developing new and updating existing resources to assist lawyers and paralegals.

The Law Society is offering free webcasts to ensure that all members can access important information on these changes.

Free webcast on amendments for lawyers – September 8

Free webcast on amendments for paralegals – September 8.

Arrogant Legal Writing Gives Texas A Horrible, Terrible Very Bad Day.

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Bad Attitude Costs Texas in Fee Dispute, by Kevin Underhill, Lowering the Bar Blog

http://www.loweringthebar.net/2014/06/bad-attitude-costs-texas.html

 Hey, I get it—sometimes when you win and you think the other side’s position was bogus, it’s hard not to get all smug and self-righteous.

But you really should try.

Not trying very hard—well, not trying at all—cost the State of Texas a lot of money on June 18, when a judge awarded other parties in a voting-rights case $1,096,770 in legal fees and costs, even though Texas had a decent argument that it was the prevailing party and so it should get paid. (McClatchy DC; thanks, Mark.)

In the U.S., normally each side has to pay its own fees, but some statutes say the ‘prevailing party’ is entitled to recover fees from the loser. But exactly who ‘prevails’ in a lawsuit is not always clear, and that was the case in this lawsuit, which involved Texas’s plans to redraw its voting districts. (Skip down three paragraphs or so if that could not sound more boring.)

Under the Voting Rights Act—Still here? Nerd. Under the Voting Rights Act, Texas was one of the states that had to get federal ‘preclearance’ for redistricting because of the history of discrimination there. Texas decided to sue for a declaration that its plans were okay, and the feds opposed. Other parties (Democrats, basically) intervened because they also wanted to oppose. Texas mostly lost in the district court, and it appealed. In the meantime, though, it came up with new plans that were more likely to comply with the court’s order.

One day before the new plans became law, the U.S. Supreme Court held in Shelby County that all this VRA preclearance stuff was unconstitutional—or had become unconstitutional at some point over the last 50 years, anyway, discrimination now being a thing of the past, you see. Told you so, said Texas, and moved to dismiss the still-pending case involving its first set of plans.

Okay, so who ‘prevailed’ in that mess? The Democratic groups said they did, because Texas lost the first ruling and changed its plans, just like they wanted it to, and they filed motions seeking over $1 million in fees. Texas did not agree.

It did not agree so much, in fact, that it didn’t even bother to file responses. Or, rather, it did file something but it couldn’t bring itself to call the document a ‘response.’ It filed this three-page thing it called an ‘Advisory,’ saying that not only did Shelby County mean Texas won, it meant Texas had essentially always been right because the law was unconstitutional all along (an ‘affront’ and a ‘nullity’), and the case never should have been brought. That’s wrong for a couple of reasons, I think, but Texas was so sure of itself that it didn’t bother to say much of anything else.

As the judge’s decision made clear, this was a Bad Idea. . . .

Jeff Richardson’s Latest for iPhones and Ipads.

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In the news, by Jeff Richardson, iPhone J.D. Blog

http://www.iphonejd.com/iphone_jd/2014/07/apple-2014-q3.html

In this version of Jeff Richardson’s “In the news,” we get a wide variety of iPhone and iPad candy. There is  information about Apple’s new partnership with IBM, smart watches, making the most of Wi-Fi on an iPhone or iPad, apps to track billable hours and listen to podcasts, the iStick – a new thumb drive with a USB and Lightning connector to transfer files between a computer and an iPad without having to use a cloud (a bit pricey for my budget), and Touch ID – a fingerprint scanner for iPhone 5s.

For those of you already in football mode, Jeff shows us how to subscribe to NFL Sunday Ticket from any iOS device for $200.

If you are a hiker, you may be interested in a new device that lets you connect to another iPhone or Android device up to 50 miles away even when there is no cell or Wi-Fi Service. You may think of other ways this kind of thing would be handy.  It is nice when traveling abroad because it will allow you to remain in touch with another GoTenna user without having to pay the high international cell roaming fees.

If you think that no one hears you, send an email to Apple COE Tim Cook. Someone sent an email about the quality of the music played while waiting on hold with Apple. Mr. Cook read the email, and fixed it. -CCE

Texas 2-Step For Spoilation of Evidence.

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

http://bowtielaw.wordpress.com/2014/07/16/spoliation-texas-style/

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.)

http://tinyurl.com/mbqqrw

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.

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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

http://tinyurl.com/k8urt5j

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!] . . . .

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