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.

*      *     *

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!] . . . .

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

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

http://goodlegalwriting.com/2014/07/22/would-you-like-salt-on-that-crow/

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

How To Recognize A Bad Client The Easy Way.

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

http://lawyerist.com/75147/bad-clients/

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

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

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

Stand Your Ground Law and the Doctrine of Communicated Character.

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

http://tinyurl.com/ppo8udd

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

10 Top Law-Related TED Videos.

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

http://www.legalproductivity.com/op-ed/top-10-legal-ted-talks/

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

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

Working On Your Closing Argument? Use the Persuasion Slide.

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

http://www.persuasivelitigator.com/convincing-closing/

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

Bifurcation Explained By An Eleventh Circuit Court Judge.

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

http://tinyurl.com/p5vkklg

An excellent analysis and explanation. -CCE

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

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

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

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

http://libraryguides.law.pace.edu/content.php?pid=149008&sid=1265851

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

New York’s New Privilege Log Rule.

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

http://tinyurl.com/p8wwuhq

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

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

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

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

More Yummy Candy for Writers.

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

http://writing.wisc.edu/Handbook/index.html

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

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

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

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

http://lawyerist.com/74651/trialpad-trial-presentation/

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

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

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

A heavenly light should have descended.

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

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

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

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

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

http://tinyurl.com/o3m82b4

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

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

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

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

http://www.propublica.org/article/fanny-pack-mixup-unravels-massive-medicare-fraud-scheme

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

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

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

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

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

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

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

What are you revealing online? Much more than you think

Celia C. Elwell, RP:

Makes You Think Twice About Using Facebook -CCE

Originally posted on ideas.ted.com:

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

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

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