Why Is Workers’ Compensation An Exclusive Remedy In Employee’s Death Case?


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Workers’ Compensation Is Exclusive Remedy, by Barry Zalma, Zalma On Insurance Blog


Tort Judgment Against Employer Is Only Good for Wallpaper

The workers’ compensation system across the United States provides benefits to injured workers without regard to fault. When the injury is serious or results in death the workers’ compensation benefits do not feel sufficient to indemnify the injured worker or his or her estate for the loss incurred. As a result, the injured worker or his estate will attempt a tort action and then try to collect that judgment by means of a suit against the employer’s insurer.

Employers and employees make a bargain: the employer will not require proof of negligence if the employee is injured and the employee agrees that he or his estate will accept the statutory benefits provided by state law and give up the right to sue the employer for tort damages.

In Morales v. Zenith Ins. Co., — F.3d —-, 2015 WL 265445 (C.A.11 (Fla.) 1/22/15) the estate of an injured worker successfully sued an employer and sought to recover by means of a breach of contract claim filed by plaintiff-appellant Leticia Morales, on behalf of herself, the Estate of Santana Morales, Jr., and two minor children against Zenith Insurance Company (‘Zenith’).

Santana Morales, Jr. was crushed to death by a palm tree while working as a landscaper for Lawns Nursery and Irrigation Designs, Inc. (‘Lawns’). At the time of Morales’s death, his employer Lawns maintained a ‘Workers’ Compensation and Employers Liability Insurance Policy’ with Zenith. The policy contained two types of coverage: (1) workers’ compensation insurance under Part I and (2) employer liability insurance under Part II. After Morales’s death, Zenith began paying workers’ compensation benefits to the Estate in accordance with its obligation under Part I of the policy.

Under Part II, Zenith was obligated: (1) to ‘pay all sums [Lawns] legally must pay as damages because of bodily injury to [its] employees, provided the bodily injury is covered by this Employers Liability Insurance’; and (2) to defend lawsuits for such damages. In relevant part, Part II contained an exclusion barring employer liability insurance coverage for ‘any obligation imposed by a workers compensation … law’ (the ‘workers’ compensation exclusion’).

On December 3, 1999, the Estate filed a wrongful death action against Lawns in Florida circuit court and obtained a default jury award to the Estate of $9.525 million in damages against Lawns. . . .

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Can Plaintiff Defeat Defendant’s Motion In Limine To Exclude Facebook Evidence?


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Swabbing the Decks of Admissibility, by Joshua Gilliland, Esq., Bow Tie Law’s Blog


Working as a deckhand can be extremely dangerous. There are plenty of reality TV shows with fishermen, tugboats, and salvage crews to highlight the risks professional mariners face daily.

What is also risky in litigation is posting on social media information that could hurt your case.

In Newill v. Campbell Transp. Co., a former deckhand brought motions in limine to limit social media evidence and other testimony in what apparently was a trial over a shipboard injury.

Red Skies in the Morning

The Plaintiff attempted to preclude the Defendant from introducing Facebook posts that showed the Plaintiff could engage in physical activities, despite his claimed injury. Newill v. Campbell Transp. Co., 2015 U.S. Dist. LEXIS 4350, 1-2 (W.D. Pa. Jan. 14, 2015).

The Defendant sought to introduce Facebook posts that the Plaintiff engaged in ‘painting, landscaping, flooring, going to the gym, undercoating a truck, and going physical.’ Newill, at *2. The Plaintiff further offered his skills as a handyman on social media. Id.

The Court held that the Facebook posts that reflected physical capabilities that were inconsistent with his claimed injury would be allowed at trial. Id. However, if during the trial the Plaintiff felt a social media exhibit was overly embarrassing, the Plaintiff could challenge that specific post under Federal Rule of Evidence 403 at that time. Newill, at *3.

Red Skies at Night

The Defendant had a witness [presumably an expert] who was to testify that the Plaintiff’s Facebook posts ‘probably [were] not giving the employers a good impression,’ was simply speculation and thus not admissible. Newill, at *4. This might have been different if there was some evidence that the connected the Plaintiff’s employment status to his social media posting, but none was offered. Id.

Bow Tie Thoughts

I am an Evidence geek. Love it as much as the Rules of Civil Procedure. The difference is Evidence goes to the heart of a trial: What is admissible? . . . .

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Trouble With Typos? Ten Tips To Help Get Rid of Them.


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10 Tips to Banish Typos, by Mignon Fogarty, Grammar Girl Blog


Funny Typos

Typos can seem funny after the fact. A couple of years ago I told you about someone who accidentally recommended a friend as a ‘fat and accurate typist’ instead of a ‘fast and accurate typist’ and another person who wrote to tell a friend he had written an excellent report and instead called it an ‘excrement report.’

Costly Typos

Some typos are more than embarrassing; they’re costly. Contracts, for example, are not good places for typos. A Canadian utility company became famous for the ‘million dollar comma‘ lawsuit when they had to pay another company more than $2 million because of a misplaced comma.

Old Typos

Typos aren’t a new problem either. There are a few old editions of the King James Bible that have typos. A 1612 edition known as the ‘Printers Bible’ reads ‘Printers have persecuted me without a cause’ instead of ‘Princes have persecuted me without a cause,’ and another one from 1635 is called the ‘Sinner’s Bible’ because it reads ‘Thou shalt commit adultery’ instead of ‘Thou shalt not commit adultery.’ Whoops.

When you want to avoid embarrassing yourself, incurring costly lawsuits, and leading believers astray, here are 10 tips to help.

  1. Have someone else read your work. The best way to find typos is to have someone else read your work. They don’t know what you meant to say, and their fresh eyes will almost always catch things you missed. Since that’s not always possible, here are some other solutions.
  2. When you’re writing on your computer, use the auto-correct feature.I also call this the ‘know thyself’ trick. For example, I always type ‘pateint’ instead of ‘patient.’ Always. But with the auto-correct feature in my word-processing software, I can tell the computer that every time I type ‘pateint’ it should insert ‘patient.’ Problem solved!

The best way to find typos is to have someone else read your work.

  1. Run your work through your computer’s spell-checking tool. It’s amazing how many people don’t do this. Don’t think the computer is infallible though. The first choice it gives you may not be the right one, and spell-checkers often think correct possessives such as children’s and someone else’s are wrong. The computer can highlight things you should check yourself, but it isn’t perfect.
  2. Print your work.Always proofread a printed version of your work. Many people find that if they try to proofread on a computer monitor, they miss more errors than when reading a printed copy of their work.
  3. Give yourself some time.If possible, let your work sit for a while before you proofread it. If you are able to clear your mind and approach the writing from a fresh perspective, then your brain is more able to focus on the actual words, rather than seeing the words you think you wrote.
  4. Read your work aloud.This forces you to read each word individually. I write a script for each Grammar Girl podcast, and when I read it to record the show, I almost always find an error I missed when proofreading it other ways. A long time ago, a listener told me that he felt uncomfortable reading his writing aloud at work, so he does it while pretending to talk on the phone so people don’t know what he’s doing.
  5. Force yourself to view each word.If you don’t want to read aloud, you can force yourself to consider each word by using the tip of a pencil or pen to physically touch each word. You can also force yourself to focus on smaller sections of the document by putting a ruler under each line of text as you are reading or by cutting out a small rectangular window on an index card and sliding it over your copy as you read.

[[AdMiddle]8. Read your work backward, starting with the last sentence and working your way in reverse order to the beginning. Supposedly, this works better than reading through from the beginning because your brain knows what you meant to write, so you tend to skip over spelling mistakes when you’re reading forward.

Philip Corbet recently reviewed some of his favorite proofreading tips in his New York Times column ‘After Deadline,’ and I picked up a couple of new ideas there.

  1. Separate proofreading tasks.Read the article through once to just check the spelling, and then read it through again to just check the punctuation. By separating tasks, you’ll be able to focus better on each one.

(He also showed an example of a sentence that looked like a revision gone awry–as though the writer had rewritten the sentence but forgotten to remove remnants of the earlier version–and that really struck a chord with me. Almost every time I post a terrible typo to Twitter or Facebook, it’s because I was repeatedly editing the post to make it shorter and didn’t see that something got left in from an earlier version. So the advice is to be especially careful when you’re revising things at the last second.)

  1. Print your work in a different font with different margins.Bryan Garner, the author of Garner’s Modern American Usage, posted this tip to his Twitter feed: ‘When you’re sick of editing your own work, you should print it in a different font with different margins. It works!’ I’m going to try that one on my next book.

If you want to raise a happy dog who loves to play and cuddle–but still comes when called and doesn’t chew up your favorite shoes–you need Jolanta Benal’s The Dog Trainer’s Complete Guide to a Happy, Well-Behaved Pethttp://bit.ly/upuIhO


VIDEO: ‘The Impotence of Proofreading‘ by Taylor Mali.

Email Etiquette.


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Advice on Email Etiquette, by Louis J. Sirico, Jr., Legal Skills Prof, Legal Skills, Legal Skills Prof Blog


If you are looking for a short article for your students on email etiquette, you might consider “Email Netiquette for Lawyers,” republished in “Senior Lawyer” by the New York State Bar Association (here). Judge Gerald Lebowitz offers sensible and sound advice that should help the reader use email effectively and avoid pitfalls.

iPhone and iPad Tips, Apps, and Podcasts.


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In The News, by Jeff Richardson, iPhone J.D. Blog


As usual, Mr.Richardson has shared a variety of tips and apps for iPhones and iPads well worth noting. I must find time to listen to more podcasts. There is so much great info there, and I’m missing it! -CCE

CI’ve long been a fan of using a stylus to take handwritten notes on the iPad. There are a lot of nice styluses on the market, and I’ve tried a ton of them, but in my opinion there is still no one perfect stylus because the iPad just isn’t designed to detect something smaller than a fingertip. Of course, Apple could change this, an there are now rumors that Apple might be creating a stylus for the iPad. Serenity Caldwell of iMore explains why this would make sense, and I would also love to see a stylus designed by Apple to work well with an iPad. And now, the other news of note from this week:
• If you listen to podcasts, I strongly encourage you to check out Overcast, a fantastic app that I use every day. California attorney David Sparks explains why he likes the app.
• New York attorney and iPhone J.D. reader David Rosen asked me to share that he started a new blog on New York civil procedure called Arguments & Demonstrations. In his latest post, we learn that, according to a recent New York opinion, chimps are not people with legal rights. Those damn dirty apes!
• CarPlay is a technology that is just starting to be included in new cars. In theory, it should be the best way to connect your iPhone to your car. In practice, the technology is still pretty new and rough around the edges. Jason Snell of Six Colors explains how it works, and also what doesn’t yet work.
• One of the more sophisticated features of iOS 8 is that apps can include action extensions, so that you can use features of one app from within another app. Allyson Kazmucha of iMore rounds of 11 good examples of action extensions on the iPhone.
• Rene Ritchie of iMore has some great tips for using Safari on an iPhone.
• And finally, what is a device that you use every day and every night? No, not your iPhone, I’m talking about your toothbrush. But don’t you wish that you could get those two critical devices to talk to each other? If that has been keeping you up at night, then you’ll want to learn about the Oral-B Electric Toothbrush with Bluetooth Connectivity, a toothbrush that pairs with your iPhone to make sure that you brush your teeth long enough and in the right way. You can get it on Amazon for only $125. Here is a video from Joanna Stern of the Wall Street Journal explaining why the Bluetooth in your iPhone and the white teeth in your mouth might work well together: [See post for video.-CCE.]

Drugs Found During Search of Luggage. Was Consent Sufficient?


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Driver on Cross-Country Trip Did Not Have Authority to Consent to Search Passengers’ Luggage in Trunk, by Kristin Connor, Fifth Circuit Blog


United States v. Iraheta, No. 13-30545 (5th Cir. Aug. 19, 2014) (Stewart, Dennis, Gilstrap)

The panel affirms suppression of drugs found during a traffic stop in Louisiana. The car with a California license plate was occupied by three people on a cross-country trip from California to Miami. Out of the hearing of the other two occupants, the officers asked Iraheta for consent to search the car, and he consented. Based on this consent, the officers searched the luggage in the truck and found drugs in one of the bags.

Typically, consent to search a vehicle applies to any unlocked containers within it. However, ‘[t]he sole fact that luggage is located in a car’s trunk is insufficient to show joint control over those items.’ ‘Iraheta clearly did not have actual authority to consent to the search of multiple pieces of luggage in the trunk of a vehicle occupied by him and two passengers.’ The officers were on notice of this because the car was occupied by three people on a cross-country roadtrip and there were multiple unmarked bags in the trunk.

While the defendants did not object to the search or assert ownership of the bags, the panel found this not to be determinative, particularly since the other defendants did not hear Iraheta consent and were not informed about it. Furthermore, the defendants had standing to challenge the search because they did not abandon the bag prior to the search.

Over-Delegation? Something Was Bound To Go Wrong!


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Mayer Brown Simpson Thatcher Make Epic Screwup, by Joe Patrice, Above The Law Blog


Mistakes happen. It’s why pencils have erasers. But it’s also why law firms install tier after tier of increasingly senior professionals to second-guess every ounce of work product. It’s remarkably effective — and fairly lucrative on an hourly basis.

Unfortunately, the flip side of a tiered system is a tendency toward over-delegation. And that’s how an unwary paralegal ends up costing a bank millions.

era; loaned a good chunk of cash to General Motors as part of a $300 million synthetic loan. It also, in a completely unrelated agreement, joined other lenders in loaning GM $1.5 billion. When GM paid off the first loan, it prepared documents to release J.P. Morgan’s interest in GM property used to secure the $300 million. And that’s when this happened, according to the Second Circuit’s opinion:

A Mayer Brown partner assigned the work to an associate and instructed him to prepare a closing checklist and drafts of the documents required to pay off the Synthetic Lease and to terminate the lenders’ security interests in General Motors’ property relating to the Synthetic Lease. One of the steps required to unwind the Synthetic Lease was -to create a list of security interests held by General Motors’ lenders that would need to be terminated. To prepare the list, the Mayer Brown associate asked a paralegal who was unfamiliar with the transaction or the purpose of the request to perform a search for UCC‐1 financing statements that had been recorded against General Motors in Delaware. (emphasis added)

The paralegal passed the assignment on to one of the dudes in the mailroom and the cheese stands alone. . . .

Research and Drill Down Into the Invisible Web.


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99 Resources to Research & Mine the Invisible Web, originally from College Degee.com, posted by Marcus P. Zillman at LLRX.com


Be warned. Not all resources listed here – and there are many more at the link above — are sometimes fee based. You may need to sort and give each a test run to see whether it performs as you wish. Still, it includes some interesting search engines, databases, and other resources that are not usually found. If you are a serious researcher, you will find these useful. -CCE

College researchers often need more than Google and Wikipedia to get the job done. To find what you’re looking for, it may be necessary to tap into the invisible web, the sites that don’t get indexed by broad search engines. The following resources were designed to help you do just that, offering specialized search engines, directories, and more places to find the complex and obscure.

Search Engines

Whether you’re looking for specific science research or business data, these search engines will point you in the right direction.

  1. Turbo10: On Turbo10, you’ll be able to search more than 800 deep web search engines at a time.

  2. Agrisurf: If you’re searching for information related to agriculture and farming, check out this engine.

  3. IncyWincy: This search engine canvasses the deep web.

  4. Direct Search: Direct Search covers the invisible web, offering results in books, government, and much more.

  5. SurfWax: The SurfWax search engine taps into the deep web and offers search tools for feeds, news, blogs, and more.

  6. ZoomInfo: Get information about corporations and job searchers here.

  7. Internet Archive: Here you’ll be able to find movies, music, text, and more, even including sites and pages that no longer exist.

  8. TenKWizard: This business search engine covers Forbes, specific industries, and exchanges.

  9. ZabaSearch: This search engine serves up public records like phone numbers and addresses.

  10. Clusty: Perform your search across a number of engines at once with Clusty.

  11. BusinessResearch: This deep web search scours the business web.

  12. The Online Books Page: Here you can search for more than 25,000 full-text works.

  13. E-Print: Check out E-Print to find sites and databases for scientists and engineers from one search engine.

  14. Guggenheim Museum: Search for artists through this database.

  15. Kompass: On this search engine, you’ll find entries for products, services, and companies.

  16. Scirus: Search journal sources and more with this scientific information search.

  17. TechXtra: On TechXtra, you’ll be able to search for resources in engineering, mathematics, and computing.

  18. Smithsonian National Portrait Gallery: Find portraits for more than 80,000 people in this database.

  19. Science Research Portal: In this research portal, you can search the deep web for scientific topics.

  20. Infoplease: Infoplease offers a search engine that combines reference tools like an encyclopedia, atlas and almanac.

  21. Pipl: Pipl brings together profiles, public records, and documents to serve up relevant information about people. . . .

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Link Rot – How To Archive The Internet?


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The Cobweb – Can The Internet Be Archived?, by Sabrina I. Pacifici, BeSpacific Blog


This is not my first post on “link rot.” There are groups who are looking for solutions, but I cannot in confidence say that there is yet a definitive answer. -CCE 

The New Yorker – Annals of Technology. January 26, 2015 Issue. The Cobweb Can the Internet be archived? By Jill Lepore

‘…The Web dwells in a never-ending present. It is—elementally—ethereal, ephemeral, unstable, and unreliable. Sometimes when you try to visit a Web page what you see is an error message: ‘Page Not Found.’ This is known as ‘link rot,’ and it’s a drag, but it’s better than the alternative. More often, you see an updated Web page; most likely the original has been overwritten. (To overwrite, in computing, means to destroy old data by storing new data in their place; overwriting is an artifact of an era when computer storage was very expensive.) Or maybe the page has been moved and something else is where it used to be. This is known as ‘content drift,’ and it’s more pernicious than an error message, because it’s impossible to tell that what you’re seeing isn’t what you went to look for: the overwriting, erasure, or moving of the original is invisible. For the law and for the courts, link rot and content drift, which are collectively known as ‘reference rot,’ have been disastrous. In providing evidence, legal scholars, lawyers, and judges often cite Web pages in their footnotes; they expect that evidence to remain where they found it as their proof, the way that evidence on paper—in court records and books and law journals—remains where they found it, in libraries and courthouses. But a 2013 survey of law- and policy-related publications found that, at the end of six years, nearly fifty per cent of the URLs cited in those publications no longer worked. According to a 2014 study conducted at Harvard Law School, ‘more than 70% of the URLs within the Harvard Law Review and other journals, and 50% of the URLs within United States Supreme Court opinions, do not link to the originally cited information.’ The overwriting, drifting, and rotting of the Web is no less catastrophic for engineers, scientists, and doctors. Last month, a team of digital library researchers based at Los Alamos National Laboratory reported the results of an exacting study of three and a half million scholarly articles published in science, technology, and medical journals between 1997 and 2012: one in five links provided in the notes suffers from reference rot. It’s like trying to stand on quicksand…’

Craig Ball on E-Discovery, Litigation Holds, and Evidence Preservation.


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The Path to E-Mail Production II, Revisited, by Craig Ball, Ball In Your Court


This is the seventh in a series revisiting Ball in Your Court columns and posts from the primordial past of e-discovery–updating and critiquing in places, and hopefully restarting a few conversations. As always, your comments are gratefully solicited.

The Path to Production: Retention Policies That Work

(Part II of IV)

[Originally published in Law Technology News, November 2005]

We continue down the path to production of electronic mail. Yesterday, I reminded you to look beyond the e-mail server to the many other places e-mail hides. Now, having identified the evidence, we’re obliged to protect it from deletion, alteration and corruption.

Anticipation of a claim is all that’s required to trigger a duty to preserve potentially relevant evidence, including fragile, ever-changing electronic data. Preservation allows backtracking on the path to production, but fail to preserve evidence and you’ve burned your bridges.

Complicating our preservation effort is the autonomy afforded e-mail users. They create quirky folder structures, commingle personal and business communications and — most dangerous of all — control deletion and retention of messages.

Best practices dictate that we instruct e-mail custodians to retain potentially relevant messages and that we regularly convey to them sufficient information to assess relevance in a consistent manner. In real life, hold directives alone are insufficient. Users find it irresistibly easy to delete data, so anticipate human frailty and act to protect evidence from spoliation at the hands of those inclined to destroy it. Don’t leave the fox guarding the henhouse. . . .

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Verizon Zombie Cookies Must Die!


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Zombie Cookies Slated to be Killed, by Julia Angwin and Mike Tigas, ProPublica


Tech company Turn said it would stop using tracking cookies that are impossible to delete. The decision came in response to a ProPublica article this week that revealed the controversial practice.

‘We have heard the concerns and are actively re-evaluating this method,’ Max Ochoa, Turn’s chief privacy officer, wrote in a blog post.

He said the company plans aims to suspend the practice by ‘early February.’

Turn’s zombie cookie was exploiting a hidden undeletable number that Verizon uses to track its customers on their smartphones on tablets. Turn used the Verizon number to respawn tracking cookies that users had deleted. The company said it will now re-evaluate its practices.

Turn’s decision to suspend the practice was a sharp reversal from its previous stance. It had previously argued that ‘clearing cookies is not a reliable way for a user to express their desire not to receive tailored advertising.’

Critics across the Web vocally disagreed. Jason Kint, CEO of a trade association for digital content companies, wrote that ‘this kind of surreptitious behavior does nothing to build trust between consumers, advertisers and publishers.’ The Electronic Frontier Foundation, a digital rights organization, said Turn’s action made it ‘ impossible for customers to meaningfully control their online privacy.’

Deposition Advice for Witnesses.


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Don’t Be Led (in Deposition), by Dr. Ken Broda-Bahm, Persuasive Litigator


The name ‘Discovery’ doesn’t quite do justice to the litigation phase it describes. When it’s done well and with purpose, the point of discovery isn’t so much to discover evidence as it is to create evidence. In deposition, for example, the deposing attorney’s fondest wish is not to discover the witness’s view of what happened, but instead to get that witness to confirm the attorney’s version of what the case requires. For that reason, taking a deposition is all about control. The deposing attorney would just testify on his own if he could, but the process doesn’t allow that, so the next best thing is to fully control the witness. And the best way to fully control the witness is to lead. . . .

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Tax Time Is Coming – Again.


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A new year. New tax laws. Regardless of whether you do your own taxes or use a trusty accountant, it’s time to start getting your ducks in a row. -CCE

Bankrate – Tax Laws and the IRS
Calculator for all types of things: taxes, payroll deductions, self-employment taxes, retirement plan tax deductions, and 125 cafeteria plans.

Income Tax – Cornell Legal Information Institution
Federal statutes, regulations, U.S. Supreme Court, U.S. Circuit Courts, and U.S. Tax Court cases, and references to other sources.

Tax, Accounting and Payroll Sites Directory

IRS – Tax Law Questions

Tax Law: Guide to Taxation Law

IRS – Tax Code, Regulations and Official Guidance


Time For A New Office Computer?


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Give Away your Computer, Revisited, by Craig Ball, Ball In Your Court


This is the fourth in a series revisiting Ball in Your Court columns and posts from the primordial past of e-discovery–updating and critiquing in places, and hopefully restarting a few conversations. As always, your comments are gratefully solicited.

Give Away Your Computer 

[Originally published in Law Technology News, July 2005]

With the price of powerful computer systems at historic lows, who isn’t tempted to upgrade? But, what do you do with a system you’ve been using if it’s less than four or five-years old and still has some life left in it? Pass it on to a friend or family member or donate it to a school or civic organization and you’re ethically obliged to safeguard client data on the hard drive. Plus, you’ll want to protect your personal data from identity thieves and snoopers. Hopefully you already know that deleting confidential files and even formatting the drive does little to erase your private information—it’s like tearing out the table of contents but leaving the rest of the book. How do you be a Good Samaritan without jeopardizing client confidences and personal privacy? . . . .

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Pro Bono Isn’t Charity – It’s A Duty.


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Half Court Press, by Scott H. Greenfield, Simple Justice Blog


That law is a profession, not just a business, has long been a theme here, and I haven’t been shy about pounding that theme whenever possible. And yet, I’m particularly wary when the theme is used in ways that blow beyond professionalism as a weapon against lawyers.

Aric Press, retiring from his 16 years as Editor in Chief of ALM (formerly American Lawyer Media), offered his parting thoughts in a paywalled post that was partially copied by Kevin O’Keefe. Among his ‘lessons’ learned while getting his ALM big guy paycheck was this:

Pro bono isn’t charity. I cringed recently when I heard a longtime public interest lawyer refer to pro bono work as what big-firm lawyers do so they’ll have something to put on their tombstones. I’m not that cynical. I think it’s work that lawyers do because they belong to a profession, and professions have obligations to the broader society in which they operate. Otherwise they don’t deserve the privilege of self-regulation and the honor of a special status in our courts. Part of the price for that status is serving those who can’t afford legal services. It’s a duty, in my view, but also an act of self-protection. With outside investment money beginning to slosh around the legal world, the question of bar regulation will be visited again in your futures. If you want to maintain the current framework, you have to pay the dues. It’s a profession, if you choose to keep it one. . . .

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Attorney Discipline For Drunk Driving. Agree or Disagree?


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A Not-So-Golden Oldie, by Mike Frisch, Legal Profession Prof, Legal Profession Blog


The most overdue District of Columbia hearing committee report (perhaps ever) has finally been filed.

Attorney Wayne R. Rohde was convicted of felony hit and run in Virginia way back in 2005.

After a night of heavy drinking at a D.C. bar called Rumors, he drove home to Virginia. En route, he caused a head on collision that seriously injured a woman, backed his car away from the collision and drove home.

His effort to avoid detection failed in part because he had left his car bumper (with license plate affixed) at the scene.

He managed to convince the Court of Appeals to not suspend him pending the disciplinary proceedings, a departure from the court’s usual (indeed, nearly invariable) practice for felony convictions.

The hearing was competed on January 15, 2008.

The report was filed last Friday – seven years and a day after.

And it stinks.

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Honey Pot of Federal Court E-Discovery Local Rules, Forms and Guidelines.


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Local Rules, Forms and Guidelines of United States District Courts Addressing E-Discovery Issues, Electronic Discovery Law Blog, published by K&L Gates


No doubt many of you have already have bookmarked this site. K&L Gates compiled this comprehensive list of local rules, forms and guidelines for U.S. District Courts and U.S. Bankruptcy Courts. At the bottom of their post, you will find a link that will take you directly to the U.S. Court’s website of all federal court rules. Thank you, K&L Gates. -CCE

Local Rules, Forms and Guidelines of United States District Courts Addressing E-Discovery Issues

Many United States District Courts now require compliance with special local rules, forms, or guidelines addressing the discovery of electronically stored information. Below is a collection of those local rules, forms and guidelines, with links to the relevant materials. Please note also that many individual judges and magistrate judges have created their own forms or have crafted their own preferred protocols for e-discovery. These are generally available on the website of the individual judge or magistrate judge and care should be taken to ensure you are aware of any such forms or guidelines in any court you may appear in.

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E-Discovery Is Scary!


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How NOT to Produce Facebook Evidence, by Molly DiBianca, The Delaware Employment Law Blog


Electronic discovery, the collection and production of electronic documents in litigation, is a scary thing to many lawyers. Some are so scared by it, in fact, that they just deny that it exists and continue to produce only hard-copy documents. Of course, that is a terrible idea. And not at all in compliance with the rules of procedure. But, alas, it is what it is.

There are times that a lawyer will want to produce electronic records, such as text messages, emails, and, heaven forbid, social-media content, but simply not know how to do it. I had an opposing counsel call me once and say that he was willing to produce his client’s relevant Facebook posts if I would show him how to do it. Ummmm, no.

My point, though, is that lawyers are ethically bound to understand and comply with the applicable e-discovery rules but, as a matter of practical reality, that does not mean that they comply.  Which is why e-discovery continues to be a predominant subject for discussion in the legal profession.

A recent case from South Carolina gives a pretty good example of how not to produce electronically stored information (ESI). In Wellin v. Wellin, the defendants moved to compel the production of certain ESI, including emails, text messages, and Facebook posts in ‘native format.’ (Native format means, in the most basic sense, that if it was originally in electronic form, you must produce it in electronic form, as opposed to paper form).

The plaintiffs apparently had attempted to produce the requested items but, instead of producing the responsive material in native format, they . . . [wait for it, wait for it] . . .  .-

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Federal Magistrate On Writing Discovery and Responses – “What We Have Here Is A Failure to Communicate.”


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Some Thoughts on Discovery and Legal Writing, by Judge Paul J. Cleary, Oklahoma Bar Journal, 82 OBJ 33 (2011)


Since 2002, The Hon. Paul J. Cleary has served as U.S. Magistrate Judge for the Northern District of Oklahoma.  He has the joy of overseeing discovery in civil litigation. You could say that experience makes him an expert. 

It should be no surprise that he urges counsel to use good writing habits and avoid boilerplate language. -CCE

“What we have here is failure to communicate.” Cool Hand Luke (Jalem Productions 1967).

There is a famous scene at the end of the movie Blow Up2 where mimes face off in a tennis match using an imaginary ball and racquets. It reminds me of too many discovery disputes: I sit as the linesman, watching helplessly as the lawyers roil and argue between intermittent swats at imaginary objects.

The fundamental problems that underlie most discovery disputes might be pulled from the pages of a marriage counselor’s handbook: Fear of commitment and inability to communicate. Lawyers won’t commit to a definition of the legal dispute: It’s not a simple breach of contract; it’s a contract, fraud, bad faith, conspiracy, racketeering case. The ill-defined nature of the dispute drives discovery into vast, uncharted territory. By the same token, lawyers responding to discovery requests won’t commit to a clear statement of what responsive documents exist and which of those will be produced. The purpose of this article is to examine the problem of inartful/incomprehensible discovery requests and responses and to offer some observations and, perhaps,some solutions. . . .

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Abusive Bosses Learn by Playing Follow The Leader. Is It That Simple?


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My Boss / My Self, by Vivia Chen, the careerist blog


I’ve heard bosses give this reason before. “I used to be a nice person.” At least they see it. Some don’t or won’t. So what happened? -CCE

Do you ever feel like wringing the necks of underlings who seem incapable of following your directives? Okay, so who hasn’t? But do you go one step further—like berating or humiliating them?

If you are becoming short-tempered, mean, or just nasty at work, don’t blame it on your crushing workload. According to a study described in the Harvard Business Review Blog, you might be modeling your behavior after your own boss.

It’s the child abuse syndrome: Those who were abused end up as abusers themselves.

The study, which was conducted by Christine Porath of Georgetown University and Christine Pearson of the Thunderbird School of Global Management, finds that 60 percent of employees ‘blame their bad behavior on being overloaded at work.’ But the research indicates other dyanamics in play, writes the authors in HBR Blog:

In one of our surveys, 25 percent of managers who admitted to having behaved badly said they were uncivil because their leaders—their own role models—were rude. If employees see that those who have climbed the corporate ladder tolerate or embrace uncivil behavior, they’re likely to follow suit.

Of course, it doesn’t take a management genius to figure out that having an office full of bullies and victims doesn’t make for a productive workplace. The report finds:

– 48 percent of employees intentionally decreased their work effort.

– 47 percent intentionally decreased their work time.

– 80 percent lost work time worrying about their treatment.

– 66 percent said that their performance declined.

So what can businesses do to eradicate workplace incivility? . . .

What Is The Case About And What Are You Looking For?


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Don’t Try This at Home, Revisited, by Craig Ball, Ball In Your Court


This is the fifth in a series revisiting Ball in Your Court columns and posts from the primordial past of e-discovery–updating and critiquing in places, and hopefully restarting a few conversations. As always, your comments are gratefully solicited.

Don’t Try This at Home

[Originally published in Law Technology News, August 2005]

The legal assistant on the phone asked, “Can you send us copies of their hard drives?”

As court-appointed Special Master, I’d imaged the contents of the defendant’s computers and served as custodian of the data for several months. The plaintiff’s lawyer had been wise to lock down the data before it disappeared, but like the dog that caught the car, he didn’t know what to do next. Now, with trial a month away, it was time to start looking at the evidence.

“Not unless the judge orders me to give them to you,” I replied. . . .

The Right Way to Assemble Attachments To Appellate Supervisory Writs.


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Practical Tip For Assembling A Writ Application, by Raymond P. Ward, Louisiana Civil Appeals


Today [January 14. 2015] I started working on an application to the court of appeal for a supervisory writ, and was reminded of my # 1 tip for this task: the first thing you do—before you write a word—is assemble the attachments. Uniform Rule 4-5 lists the attachments that must be included. I like to put them all together and give them provisional page numbers before I start writing the application itself, starting with A1, A2, etc. If your attachments are in PDF (if they’re not, they should be), putting them together and page-numbering them is a snap with Adobe Acrobat or other PDF-handling software.

Assembling the appendix on the front end has at least two advantages. First, when you draft the writ application, you can include pinpoint citations to items in the appendix. Second, you find out immediately if you’re missing something that you need (such as the hearing transcript).

There is one little hitch to my system: Uniform Rule 4-5(B) requires all pages of the application, including the application itself and all attachments, to be consecutively numbered. And if you don’t know how long the application itself will be until you write it, you don’t know until the end of the process the number of the first page of the attachments. But this problem is easy to solve. Once the application is in almost-final form, you know how long it will be. If it’s 25 pages, you know that the number of the first page of attachments will be 26. So when I’m finalizing, say, a 25-page application, I just add 25 to all my “An” citations to the attachments and remove the “A”. A1 becomes 26, A2 becomes 27, etc. Is this time-consuming? A bit. But not nearly as time-consuming as trying to fill in totally blank citations to the attachments.

Which leads to another tip: when, in writing a writ application, you cite one of the attachments, cite it by its consecutive-page number. If it’s a multi-volume writ application, cite by volume and page number. Example: “See writ app. vol. 2 p. 301.” Your job as the writer is to make it as easy as possible for the reader to locate what you’re citing. So give the reader the information needed to instantly locate whatever it is you’re citing.

New Law For Paid Sick Leave?


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President Obama To Push For Paid Sick Leave For American Workers, by Eric B. Meyer, The Employer Handbook


In an announcement made late in the day yesterday on LinkedIn [January 14, 2015], Valerie Jarrett, Senior Advisor to President Barack Obama, posted that President Obama will call upon Congress today to pass the Healthy Families Act.

More on this push from the President and what it will mean for American business, after the jump…

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I’ve blogged about the Healthy Families Act before here. Essentially, the Healthy Families Act would require companies with 15 or more employees to permit each employee to earn at least 1 hour of paid sick time for every 30 hours worked.

Employees could then use this accrued sick time to: (1) meet their own medical needs; (2) care for the medical needs of certain family members (including a domestic partner or the domestic partner’s parent or child); or (3) seek medical attention, assist a related person, take legal action, or engage in other specified activities relating to domestic violence, sexual assault, or stalking.

Many states and cities have already paid sick leave laws. And, of course, many companies provide paid sick leave voluntarily. The Act would not be cumulative. Rather, it would set a floor for qualifying American businesses. . . .

Martindale Hubbell’s Brand Is Not What It Used To Be.


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Martindale Hubbell: Another Legal Icon Bites the Dust. But It Was Once Worth Its Weight in Gold (and Held for Ransom), by Jean O’Grady, J.D. M.L.S., Dewey B Strategic Blog


In August 2013 LexisNexis announced that they had entered into a joint venture with Internet Brands (the owner of Cars.com) to develop ‘marketing solutions’ using the Martindale.com platform. Although Internet Brands is taking the lead in managing the joint venture there is no mention of Martindale on their website. Since LexisNexis owns InterAction,  the leading ‘contact management’ product which is used in many law firms – it is puzzling why some effort was not made to integrate Martindale with InterAction and other LN sources containing rich actionable client data such as Courtlink dockets.

Blogger Kevin O’Keefe recently posed the question ‘Does Martindale Hubbell, as we knew it still exist?‘ ‘The answer is clearly ‘no,’ and O’Keefe wonders aloud whether the Martindale brand divorced from the legacy of Martindale Hubbell has any real meaning.  The announcement of the joint venture was followed by the layoff of most of the Martindale staff. These were the people who used to curate the surveys and data collected to evaluate whether lawyers and firms qualified for the for the ‘gold standard’ AV rating. So what is left of the legacy? . . .


Rewrite Legalese – This Is How You Do It.


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Examples: Translating Legalese into Plain English, by Louis J. Sirico, Jr., Legal Skills Prof, Legal Skills Prof Blog (with hat tip to William P. Statsky!)


Having problems rewriting legalese into understandable plain English? Use these excellent examples from Joseph Kimble, one of the legal writing giants, posted by another great legal writing expert, Louis J. Sirico, Jr. – CCE


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