This Is How to Redact The Mueller Report.

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Mueller? Mueller? More E-Discovery Lessons from Bill and Bob, by Craig Ball, Ball In Your Court

https://craigball.net/2019/04/23/mueller-mueller-more-e-discovery-lessons-from-bill-and-bob/

Is there anyone who knows and can explain e-discovery like Craig Ball? If so, I don’t know who it is. This is one is a keeper. If you think you understand how to redact a document, this post is for you. -CCE

Firearm Game Changer?

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Families of Sandy Hook Victims May Sue Gunmaker Over Marketing Practices, Top State Court Says, by Debra Cassens Weiss, ABA Journal

https://bit.ly/2F7FgRA

On December 14, 2012, Adam Lanza killed 20 twenty first-grade children, 6 adults, his mother, and himself in Newtown, Connecticut, with a Remington Bushmaster semi-automatic rifle and other guns. In 2014, the children’s families sued Remington and others. That wrongful death civil lawsuit was dismissed in 2016 relying on federal law that protects gun manufacturers and retailers. The families appealed. In a recent surprise decision, the Connecticut Supreme Court ruled 4-3 to reverse and remand the case to the state trial court relying on Connecticut’s Unfair Trade Practices Act (CUTPA).

The 2005 Protection of Lawful Commerce in Arms Act (PLCAA) has protected gun makers and retailers against civil liability – until now. In its analysis, the Connecticut Supreme Court specifically noted that (1) the Bushmaster is a military-style rapid semiautomatic fire rifle with a large magazine; (2) the force and velocity of its bullets create a shock wave and catastrophic injuries; and, (3) the shooter killed 26 people in less than 4 and a half minutes. The Court dismissed many of plaintiffs’ claims. But, it agreed with plaintiffs’ argument that defendants’ advertising and the way in which it did it was a CUTPA exception for illegal marketing practices.

Plaintiffs can proceed with their theory that Remington knowingly marketed and promoted the gun ‘for civilians to use to carry out offensive, military style combat missions against their perceived enemies,’ the court said.

This is a case to watch. Expect much speculation about the impact of this ruling and the case’s eventual outcome. It has the potential to be a game changer for gun makers, distributors, retailers, and victims of gun violence. -CCE

Head’s Up! How Long Will Federal Judiciary Funds Last?

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Judiciary Has Funds to Operate Through Jan. 31, United States Courts (Published on January 22, 2019)

https://www.uscourts.gov/news/2019/01/22/judiciary-has-funds-operate-through-jan-31

If you practice in any federal court, please note. Pay attention to your case’s court website and have a backup strategy. -CCE

The Administrative Office of the U.S. Courts (AO) now estimates that federal courts can sustain funded operations through Jan. 31, 2019. The Judiciary continues to explore ways to conserve funds so it can sustain paid operations through Feb. 1. No further extensions beyond Feb. 1 will be possible. The Judiciary previously had revised its estimate for exhausting available funds from Jan. 18 to Jan. 25.

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Should funding run out before Congress enacts a new continuing resolution or full-year funding, the Judiciary would operate under the terms of the Anti-Deficiency Act, which permits mission critical work. . . . Each court would determine the staff necessary to support its mission critical work.

In response to requests by the Department of Justice, some federal courts have issued orders suspending or postponing civil cases in which the government is a party, and others have declined to do so. Such orders are published on court internet sites. Courts will continue to conduct criminal trials.

The Case Management/Electronic Case Files (CM/ECF) system remains in operation for electronic filing of documents, as does PACER, which enables the public to read court documents.  

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Updates will be provided as more information becomes available.

Professor Lou Sirico, Jr. – A Tribute.

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I have a collection of favorite legal writing books. Among them is a much-loved, dog-eared, and highlighted book, Persuasive Legal Writing, by Professor Lou Sirico, Jr.

Some years ago, I saw that Professor Sirico was co-editor of the Legal Skills Prof Blog, and became an immediate faithful follower. You will find many references to his posts here at this website. His writing speaks for itself.

Sadly, this extraordinary man passed away on December 26, 2018 from cancer, and this great loss warrants note and the remembrance by someone who knew him well. With his permission, I share this January 2, 2019 post by Professor James Levy, a long-time friend of Professor Lou Sirico and co-editor of the Legal Skills Prof Blog.

https://lawprofessors.typepad.com/legal_skills/2019/01/more-about-professor-lou-sirico.html

It’s been a week since Lou, the co-editor of this blog and a friend and mentor to so many, colleagues and students alike, passed away. I haven’t posted on the blog since then out of respect for Lou’s memory and because I was waiting to find the right words to express what Lou meant to the people who knew him. But after a week I’m still at a loss to adequately describe his contributions. Instead, let me elaborate a bit on my earlier post while sharing some observations and anecdotes that speak to the kind of person Lou was and the many ways he helped others.

The first thought that comes to mind when I think about Lou is that he was one of the most authentic, genuine people I’ve ever met. I recently had the good fortune to spend a year as a visiting professor at the United States Air Force Academy in Colorado Springs (where, ironically enough, one of Lou’s former Villanova students was a JAG officer and professor in the law department) and the Air Force officers I met there, who I greatly admired, reminded me a lot of Lou. What they all have in common is their humility, putting service above self, trustworthiness, loyalty and honor. Lou didn’t have much of a social media presence, and he wasn’t one to tout his own accomplishments so many readers might not realize how much he devoted himself to the service of others. From organizing writing workshops that helped colleagues with their scholarship, to taking leadership positions in AALS, LWI and similar groups, to serving as EIC of the Journal of LWI and on the editorial board of Perspectives, Lou was the kind of guy that if he saw an opportunity to contribute to the profession, he was the first to raise his hand to volunteer. On an individual level, if you needed personal or career advice, he would always lend a patient ear and offer his sage wisdom. And he continued to serve others well into the latter phase of his career when most people are either slowing down or withdrawing altogether from such activities. Lou continued to serve others even when dealing with very serious health issues that for anyone else would have been good reason to dial it back. But Lou was always a work-horse and never a show-horse.

When Lou made a commitment to something, he meant it and kept his word. Take this blog, for example. When Lou agreed to help me start it in 2010, he was committing to blogging nearly every day for more than 8 years. Think about how many other blogs and bloggers have come and gone in that time. I’d like to think Lou continued to blog all these years, even in sickness, because he enjoyed it or found it satisfying, but I also know that he did it because he was a man of his word who honored his commitments. Related to that, Lou was a man of great integrity as evidenced by his decision to resign from an editorial board in protest over the mistreatment of a colleague.

For all these reasons (and more), many years ago I nominated Lou for the Blackwell Award which is given to the legal writing prof who makes an outstanding contribution to the discipline. By the time I’d nominated Lou for the award, I’d known him for more than ten years. During that time, I’d heard some colleagues pronounce his last name “sear-ah-coh,” though I had always pronounced it “sur-ree-coh,” like the famous Watergate judge. Since Lou never corrected me, I assumed I had it right. But during the Blackwell speech I gave on Lou’s behalf at AALS that year, I asked Lou from across the room “have I been pronouncing your name wrong all these years?” Lou sheepishly nodded “yes.” I later realized that Lou would rather endure the mangling of his last name than possibly embarrass someone by correcting them. In other words, another example of Lou putting the feelings of others ahead of his own.

When my mother passed away about a year or two after that, I was about to take over as EIC of J. Legal Writing, a job that Lou had also previously done. Lou was the first person I called for advice because I was thinking about quitting. Lou counselled me not to make any hasty decisions about important life choices like jobs, relationships, etc. following a traumatic event like the death of a parent. Instead, he told me to wait at least a year to put some distance between my mother’s death and any decision about the EIC job. During our last phone call several weeks ago, I reminded Lou of that conversation – which he remembered well – and how I’d been able to pay it forward to others in the intervening years. Yet another example of Lou’s continued service. And during our last phone call, I got emotional when Lou said he likely had less than a year due to the cancer diagnosis. Lou reassured me that he’d made peace with his situation and in so doing was clearly trying to protect my feelings a bit too.

Tom Brokaw called the generation that fought in World War II the “Greatest Generation” because of their dedication to service above self, being committed to a cause larger than oneself and their collective strength of character. Lou was born too late to be part of the “Greatest Generation” in terms of demographics. But in terms of ethos and the way he lived his life, that’s exactly who he was and why we won’t see the likes of Lou Sirico again.

Rest in peace.

(jbl).

Judge’s Benchslap Provides Unique Resolution to Deposition Dispute.

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Parties Ordered to Conduct Deposition at State Line, Lowering the Bar, by Kevin Underhill

https://loweringthebar.net/2008/06/parties-ordered.html

Because we Oklahomans are totally fine with losing the Big 12 Championship to some other team whose name I can’t recall, this discovery dispute seemed understandable. [Sarcasm intended.] Everyone knows that, when it comes to discovery disputes, nothing is too outrageous, even if the Court adds football bragging rights to its Order.

Despite what I’m sure were sincere good faith efforts by both sides, neither could agree on the location for the corporate representative’s deposition – San Antonio, Texas, or Bentonville, Arkansas. Both refused to budge and had dug in their respective heels. The Court, when faced with an Opposed Motion for Protective Order by the Arkansas corporation, chose a unique resolution to make both parties happy. – CCE

Court Reporters And Some Of The The Funniest Things Recorded In Court.

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62 Of The Most Hilarious Things That Court Reporters Have Ever Recorded To Be Said In Court, by Gierdrė, boredpanda

https://bit.ly/2GIgXO1

On Thanksgiving weekend, I had a “water mitigation event” at my house. Since that time, I have been sleeping in the living room in a blowup bed, which is actually not that bad. The holidays became even more interesting when, on Christmas Eve, a motor in the furnace suddenly went out. It was even more suddenly fixed before the coming cold spell.

Under the current circumstances, I feel the need for a hefty dose of humor. While this may not be the most scholarly post I have offered at this website, it is one of the funniest. – CCE

Make Your PDF Document Edit-Proof – Lock It Down!

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How To *Really* Lock Down a PDF Document, by Catherine Sanders, Catherine’s Call, ncbarblog

https://ncbarblog.com/how-to-really-lock-down-a-pdf-document/

Although I have worked in multiple areas of the law, I cannot think of one in which I did not use Adobe Acrobat. Even if you do not have the latest version, Adobe Acrobat DC (which I love), you need to learn how to “lock” your document so that no one outside of your office can edit it in any way.

There is a definite danger in becoming complacent and not staying up to date with technology. Keeping up to date can be expensive. You and others may also have a short learning curve to retrain on new software.

But, think about it. We constantly retrain ourselves in the legal world. Court rules, case law, and statutes change, and we are ethically bound to learn and  them. I cannot count how many versions of WordPerfect, Word, Adobe Acrobat, or case management software I’ve learned over the years. Retraining is simply a necessary fact of life when you are a legal professional.

I like this post for several reasons. First and foremost, it not only tells you, but shows you, how to lock down your .pdf document. Second, it shows you how to use some Adobe functions you might not normally use, which adds to your skill set. This one is a keeper! -CCE

Paraphrasing Mark Twain: “It is Better to Keep Your Mouth Closed . . . .”

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Don’t Mock A Legal Argument If You’re Completely Wrong, by Joe Patrice, Above the Law Blog

https://abovethelaw.com/2013/09/dont-make-fun-of-a-legal-argument-if-youre-completely-wrong/

Mark Twain said, “It is better to keep your mouth closed and let people think you are a fool than to open it and remove all doubt.” It is always awkward when the court benchslaps your legal argument.

There are useful lessons here for all of us, not just State Farm. First, when your client is relying on the terms of a contract, note its details before you say something you will wish you hadn’t. Second, be careful with hyperbole and sarcasm when writing a brief for an appellate court.

I agree with Mr. Patrice. The opening paragraph of the Sixth Circuit Court’s opinion is worth repeating. -CCE

There are good reasons not to call an opponent’s argument ‘ridiculous,’ which is what State Farm calls Barbara Bennett’s principal argument here. The reasons include civility; the near-certainty that overstatement will only push the reader away (especially when, as here, the hyperbole begins on page one of the brief); and that, even where the record supports an extreme modifier, ‘the better practice is usually to lay out the facts and let the court reach its own conclusions.’ But here the biggest reason is more simple: the argument that State Farm derides as ridiculous is instead correct.

ParkMobile App – Thank you, Jeff Richardson!

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Challenging a parking ticket with the ParkMobile app, by Jeff Richardson, iPhone J.D.

https://bit.ly/2yVIvsP

If you work or live anywhere that uses ParkMobile as a replacement for old-fashioned parking meters, you are going to love this. Imagine the ability to pay, add time to your parking meter, or even reserve your parking spot. Mr. Richardson’s post provides more interesting details that you don’t want to miss.

I have already looked and yes, ParkMobile is in my state and on the street where I work. With this app, you can find, reserve, and pay for your parking spot in 350 cities. Look for your parking spot now at https://parkmobile.io/locations. Sweet. -CCE

Be A Discovery Ace.

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6 Keys to Acing Discovery, by Katherine A. Hopkins, ABA Journal

https://bit.ly/2F5iAod

Best advice in this well-written  post? Know the case law in your Motion to Compel, know the court rules and follow them to the letter, and make it easy for the judge. -CCE

Using Hyperbole -Are You Risking Your Credibility With A Promise You Cannot Deliver?

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Avoid Hyperbole, by Dr. Ken Broda-Bahm, Persuasive Litigator™

https://www.persuasivelitigator.com/2016/12/avoid-hyperbole.html

What is hyperbole anyway? Here’s a quick example. How would you respond as opposing counsel to a statement that there are “countless obvious examples” of the opposing party’s errors? Perhaps, something like, “Oh really?” “Countless and obvious, you say? How interesting that you did not name anything specific. We did what any reasonable company would do in a similar situation.” And, then you must explain what you meant all over again – if you get the opportunity.

Simply put, hyperbole is deliberate exaggeration. Although often misguidedly used for emphasis, rhetoric, or even sarcasm, you invite an attack to prove your statement. At best, you may have illustrated that the other side’s behavior is outlandish. At worst, you have lost credibility with the court because you are unable to back up your statement with hard facts. Never imply a promise that you cannot deliver.

This is a good time to remember that your writing is more persuasive when you show, don’t tell. If the opposing party has behaved beyond the pale, telling the court or the jury what happened (who did what to whom and why) will be more persuasive than rhetorical outrage.

You will find in legal blogs on the use of hyperbole. This post is one of my favorites. As always, there is the bonus of hyperlinks to posts on similar subjects at the bottom of the page. -CCE

 

The Justice Manual.

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The Justice Manual (JM), formerly The United States Attorneys’ Manual (with hat tip to William Statsky)

https://www.justice.gov/jm/justice-manual

This is the current and official copy of the Justice Manual (JM). The JM was previously known as the United States Attorneys’ Manual (USAM). It was comprehensively revised and renamed in 2018. Sections may be updated periodically. In general, the date of last revision will be noted at the end of each section. For prior versions of the USAM, visit the USAM Archive.

Take your time with this one. There is a lot of information to digest. -CCE

Heads Up! Federal Civil Procedure Amendments Effective December 1, 2018.

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2018-2019 Amendments to the Federal Rules of Civil Procedure Approved © 2014-2018 The National Court Rules Committee

https://bit.ly/2R9XNC5

The U.S. Supreme Court approved amendments to the Federal Rules of Civil Procedure on April 26, 2018. The new amendments go into effect on December 1, 2018, which is now only a few months away. As usual, new text is underlined; deleted text is struck through.

When you review the amendments, I recommend taking the time to read the notes that explain the reasons for the changes. As for the amendment to Rule 5. I suggest that, if you serve a complaint by e-mail, use the email option to show delivery to and/or read receipt by the recipient.

This link will take you to the revised rules, but it is also a free resource that provides access to all the Federal Rules of Civil Procedure. For both reasons, worth a bookmark. – CCE

Ken Adams Makes A Standing Offer.

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How I Would Go About Redrafting Your Templates, by Ken Adams, Adams On Contract Drafting Blog

http://www.adamsdrafting.com/how-i-would-go-about-redrafting-your-templates/

Ken Adams has made a “standing offer.” If you send him one of your contract templates, he will take the time to edit it.

Wow. Even if you are the best contract writer in the world, why wouldn’t you take Mr. Adams’ up on such a generous offer? Opportunities such as this do not come along every day. Thank you, Mr. Adams! -CCE

New Bill Proposes Free Access to PACER.

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Proposed Bill Would Eliminate PACER Fees, by Joshua Tashea, ABA Journal Blog

http://www.abajournal.com/news/article/new_bill_wants_to_end_pacer_fees?icn=most_read

States have already made the leap to provide free access to cases on their judges’ dockets. You can read all documents filed by the parties and the assigned judge, the date of any hearing or trial date and their outcome, and access every document (for the most part) filed with the all state courts. Not so with the federal district, appellate, or bankruptcy courts. Your only access is through PACER, a completely different system.

The proposed Electronic Court Records Reform Act is long overdue and removes the fee to access these documents. -CCE

Ways to Improve Your Performance.

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Associates: Top 10 Questions to Ask Your Supervising Attorney, by Cordell Parvin, Cordell Parvin Blog (with hat tip to William Statsky)

https://bit.ly/2oPQqmf

Let’s go with the premise that, whenever a supervisor gives you an assignment, you are familiar with office procedures, court rules, or whatever basics you need to perform the work. This post has two sections: (1) questions to ask before starting an assignment, and (2) questions to ask after completion.

Even if you already know some or all of the answers to the first, asking the second set of questions will help you get valuable feedback to improve your performance. – CCE

“[A]t the Beginning of a Project:

  1. When would you like me to complete this project?
  2. Describe what you have been told to do and then ask: Have I missed anything?
  3. How many hours are you expecting me to take on the project?
  4. Are there any materials I should review?
  5. Would it be helpful if I gave you my initial findings/conclusions?

At the end of the project:

  1. Have I covered all the areas you wanted?
  2. Is there anything more I can do to help you with this?
  3. Can you give me some feedback on my work?
  4. Are there any areas where you think I could improve?
  5. Can I help you with any other projects now?”

E-Filing Tips.

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E-Filing Tips for Attorneys, by Smokeball

https://www.smokeball.com/blog/e-filing-tips-for-attorneys/

Are you an e-filing superstar or novice? Regardless of your court jurisdiction, Smokeball has provided tips that cross jurisdictional lines. These are more common-sense suggestions rather than tips specific to a particular court, and worth your time. Smokeball includes a commercial for its product. Even if Smokeball is not your cup of tea, the underlying premise is a good one. -CCE

With the advent of e-filing comes new challenges and opportunities for mistakes. Some e-filling mistakes are caused by poor planning, clunky software or even something as simple as a setting in your inbox. To help you stay on top of your e-filling, here are five e-filing tips to help you avoid e-filing pitfalls.

‘[A] computer lets you make more mistakes faster than any invention in human history – with the possible exception of handguns and tequila.’[1]

Use a Separate and Distinct E-Filing Email Address

Did you know that the average person receives about 120 emails everyday?

If you are like most people, you have to sift through the clutter to get to emails that are important. But, because you get so many emails everyday, you may overlook or mistakenly delete an important email.

With mandatory e-filing, every attorney is required to provide a primary email address and up to two secondary email addresses on all appearances and documents filed with the court.[2] This means that not only will you electronically file documents, you will also receive documents filed by other parties via email.

As you list your primary email address on your appearance, don’t use your personal email address as your primary address. Create a separate email address for e-filing to help you stay organized. A dedicated email address for e-filing will ensure that all notices are sent to one central address. This allows other members of your firm to access emails and look for notices from the courts specifically for your cases. Also, when you are out of the office, others can cover and look out for any actions taken on cases.

Check Your Junk and Spam Folders

Another simple but overlooked e-filing tip is checking your spam folder.

Everyday you receive junk or spam mail that clogs up your mailbox. Because of the countless number of junk mail we receive each day, our mail servers have filters that uses a set of protocols to determine what is junk and what are legitimate emails. However, there are times that legitimate emails are caught by an aggressive filter. For attorneys, that could potentially be an e-filling.

To ensure that you don’t miss a notice from the court or opposing counsel, make sure to check your junk mail folders. Also, don’t set your junk mail folder to delete automatically. You don’t want to make a mistake of missing a deadline because it was stuck in the junk mail folder and then auto-deleted.

Whitelist Important Senders

A whitelist is a list of email addresses or domain names that you provide that allows your junk mail or spam filter will allow through into your inbox. I recommend that you put the domain names of the courts and clerk’s offices on your whitelist.  Also, enter opposing counsels and key clients on the whitelist to ensure that emails are not blocked. It’s important to keep your whitelist updated as people and organizations change email addresses or domain names.

Check the Online Court Docket

It’s easy to rely on emails and notifications for new events on your cases, but don’t rely on emails to stay on top of your cases. It’s still a best practice to check the court’s docket online to ensure that no new action or orders were entered. There may be instances where emails were blocked, sent to the wrong address, or other technical glitches causing you to not receive a notice. Create a protocol to check the court’s online docket every 2 to 3 weeks on all your active cases.

Don’t Wait ’till the Last Minute

Supreme Court Rule 9(d) provides that you have until midnight to electronically file a document and still have it considered as filed that same day.  However, don’t wait till the last minute to file a document. E-Filing is a new process and there may be technical issues that you will encounter at the last minute. You may lose your internet connection, lose power, have computer issues, etc., which can cause you to miss your deadline.

Make sure your computer is up to date and have your anti-virus updated. Use a legal practice management system to ensure your data is backed up and you can collaborate with other members of your firm just in case something goes wrong with your computer.

E-filing with Legal Practice Management Software

It’s more important with e-filing to have all your case and critical data in a digital file, where you store all documents, emails, and other important case details in one central location. Enter Smokeball.

Smokeball not only allows you to keep all your information in one central place, you have access to over 14,000 automated legal forms, the most comprehensive automated legal forms library in the industry.

For attorneys in Illinois, Smokeball’s integration with InfoTrack allows you e-file directly from your practice management software. To learn more, see the software for yourself.

[1] Mitch Ratcliffe (quoted in Herb Brody, The Pleasure Machine: Computers, Technology Review, Apr. 1992, at 31).

[2] Rule 11, Rule 131(d)(1)

 

Focus!

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New Book on Attention Focusing, by Scott Fruehwald, Legal Skills Prof Blog

http://lawprofessors.typepad.com/legal_skills/2018/09/new-book-on-attention-focusing.html

In the legal profession, multi-tasking is considered a required skill for attorneys and staff alike. Depending on the project, there are times when I want – or need – a chunk of uninterrupted time to perform that particular task. At other times, I can easily juggle several things at once. It depends on the task and how many distractions are competing for my attention.

There is an opposite point of view that multi-tasking is a myth. Rather than multi-tasking, they advocate that focusing on one thing at a time is the most efficient use of your time.

This difference of opinion about multi-tasking is why this post caught my eye. We all have days when we wonder whether our brain cells decided to commit mass suicide without warning us. Conversely, there are times when we are solidly in the zone and knock out one assignment after the other.

Professor Fruehwald’s post tweaked my curiosity about a person’s short-term memory and how it works, as well as the title of Chris Bailey’s book, “Hyperfocus: How to Be More Productive in a World of Distraction.” Looks like an excellent read. -CCE

One of the most important aspects of being an effective learner is attention focusing.  Short-term memory has only about 4 to 7 slots, and an effective learner focuses her attention on the task at hand.  Chris Bailey has just published a self-help book on attention focusing for a popular audience: Hyperfocus: How to Be More Productive in a World of Distraction (2018).

From the New York Times:

‘Hyperfocus’ teaches readers to control their limited capacity to focus on and process things in the moment, which he calls our ‘attentional space.’ It turns out our brain’s scratchpad is pretty small and can only hold a handful of tasks at a time. When one of those tasks is complex — like putting together a business proposal or taking care of a toddler — that number dwindles down to one or two.

Insurance Company Must Defend Contractor Regardless of CGL Policy’s Breach-of-Contract Exclusion.

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Normally, an insurance company has no duty to defend a contractor under a construction general liability (“CGL”) policy against breach-of-contract and negligence allegations. Not this time. This time, in the Western District of Texas, the insureds won against the insurance company. The court held the breach of contract exclusion did not apply because the contractor’s subcontractor, not the contractor, could be responsible for a construction defect.

A municipality hired the general contractor to construct a sports complex that included a swimming pool, baseball and softball fields, and parking lots. The contractor hired two subcontractors – one to design and build the swimming pool, and another to do all the dirt work, grading, and storm drainage for the entire complex.

At the beginning of 2017, a contractor employee saw cracks beginning the pool and parking lot after completion of the pool and most of the sports complex. The contractor put the pool subcontractor on notice to fix the cracks. About three months later, a contractor employee noticed the cracks were worse. The contractor and the pool subcontractor were unable to agree on how to fix the pool. By the end of the year, more cracks and other defects had appeared. The city, contractor, and subcontractors could not agree on how to solve these problems.

The city sued the contractor for breach of contract and negligence. The contractor notified its insurance company and, relying on its CGL policy, asked its insurance company to defend it against the city’s lawsuit. The insurance company refused. It sued the contractor requesting a judgment declaring that it had no duty to defend the contractor in the lawsuit filed by the city based on the CGL exclusion clause.

The insurance company relied on language in its policy that specifically denied coverage to the contractor for property damage caused by the contractor. In it its lawsuit against the contractor, the city had specifically alleged that work performed by the contractor and its subcontractors was defective. The insurance policy’s exclusion did not apply to work performed by a subcontractor. The court held that, because the city’s allegations included the possibility that subcontractor alone had created the defects at issue in the city’s lawsuit, the insurance company had a duty to defend the contractor.

Mt. Hawley Insurance Company v. Slay Engineering, Texas Multi-Chem and Huser Construction, LLC, No. 5:2018cv00252 – Document 19 (W.D. Tex. 2018). You can read the entire Memorandum and Order at Justia US Law here: https://bit.ly/2wul7ka. -CCE

 

A $10 Million Punctuation Mistake.

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Take That, AP Style! Court of Law Rules The Oxford Comma Necessary, by Kelly Gurnett, The Write Life (republished here with permission)

https://thewritelife.com/is-the-oxford-comma-necessary/

Which of these two sentences look right to you?

I need a pen, my notes, and a legal pad.

I need a pen, my notes and a legal pad.

The first sentence includes the Oxford comma, sometimes called the “serial comma.” If you do not already use it, you may ask why bother? It is about clarity versus ambiguity. In this case, the Oxford comma made all the difference.

“In this class action lawsuit, drivers for Oakhurst Dairy sued the company over its failure to grant them overtime pay. According to Maine law, workers are entitled to 1.5 times their normal pay for any hours worked over 40 per week. However, there are exemptions to this rule. Specifically, companies don’t need to pay overtime for the following activities:

The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:

Agricultural produce;

Meat and fish product; and

Perishable foods

Note the end of the opening line, where there is no comma before the ’or.’”

The employer argued the employees did not qualify for overtime because “packing for shipment” and “distribution” were two different things. The employees argued that, without the comma before the “or,” they should be paid for both. The court agreed with the employees. The language determining overtime pay was ambiguous because of the missing comma.

“Without that comma, as the judge maintained, this distinction was not clearcut:

Specifically, if that exemption used a serial comma to mark off the last of the activities that it lists, then the exemption would clearly encompass an activity that the drivers perform. And, in that event, the drivers would plainly fall within the exemption and thus outside the overtime law’s protection. But, as it happens, there is no serial comma to be found in the exemption’s list of activities, thus leading to this dispute over whether the drivers fall within the exemption from the overtime law or not.”

How much did this missing comma cost the employer? Approximately $10 million. Proper punctuation matters, especially in legal writing.

Feeling the need for a punctuation refresher? Try this website: http://www.thepunctuationguide.com/comma.html

-CCE

What’s the Clue to Whom Did What, Where, and Why?

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Give A Clue (A Linguist Whodunit), by Mark Cooney, 97 Mich. B. J. 60-62 (June 2017) 

“This piece first appeared in Professor Cooney’s book, Sketches on Legal Style, published by Carolina Academic Press.”

https://www.michbar.org/file/barjournal/article/documents/pdf4article3146.pdf

In this tongue-in-cheek parody of Hasbro’s classic board game, Clue©, Professor Cooney delightfully explains the importance of using the active voice rather than the passive.

The basic tenet of good legal writing is to put the subject and verb together, place modifiers next to what they modify, and use the active voice. The passive voice causes confusion rather than clarity because it fails to communicate the writer’s intention. There is only one valid use of the passive voice – when the actor is unknown or unimportant.

Enjoy! -CCE

The ABA’s Web 100.

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Web 100 Amici, ABA Journal, American Bar Association

Every year for the last decade, the ABA has solicited votes for nominations for the favorite law-related blog. Those chosen based on your nominations become the Web 100 for that year. Over the years, it’s expanded to include other law-related technology, and added its own Blawg Hall of Fame. It’s definitely worth a look to rediscover old favorites and others goodies you might have missed.

It’s that time of year again. Nominate your favorite law-related blog, podcast, social media feed, app, or interactive feature for recognition in this year of the ABA’s Web 100. You will find the nomination form at the link below. -CCE

http://www.abajournal.com/blawgs/web100/

Lexis Advance Gets Touchy Feely. Let the Marketing Begin.

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LexisNexis launches Lexis Analytics, by Joe Hodnicki, Law Librarian Blog

https://llb2.com/2018/07/13/lexisnexis-launches-lexis-analytics/

Yesterday, LexisNexis launched Lexis Analytics. From the press release:

“The suite consists of new and enhanced products fueled by smart content from Lexis Advance and the strategic acquisitions of Lex Machina, Intelligize and Ravel Law, and integrates the most powerful technologies in the legal space, including machine learning, artificial intelligence (A.I.) and visualization tools.”

Interestingly, Thomson Reuter launched Westlaw Edge, West Search Plus, Analytics, Enhanced Citator and More, on the same day as the Lexis Advance launch. Joe Hodnicki believes that Westlaw Edge is more powerful and stiff competition to Lexis Advance. Those of you who use these products, what do you think? -CCE

 

 

Are You Happy with LexisNexis’ Ethics, Marketing, and Lexis Advance? AALL Isn’t.

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Tying Controversy: AALL Statement on July 2 Meeting with Lexis Representatives, by Joe Hodnicki, Law Librarian Blog

https://llb2.com/2018/07/06/tying-controversy-aall-statement-on-july-2-meeting-with-lexis-representatives/

If you have not noticed, there is a growing controversy with LexisNexis’ ethics and marketing practices. This affects all law schools, paralegal educators, and law firms that subscribe to LexisNexis. For a bit of the back story, see LexisNexis’ Next-Generation Solution Means End of Lexis.com at http://www.lawsitesblog.com/2016/12/last-rites-lexis-com-lexisnexis-sets-date-shutdown.html. Here is more to the point from Joe Hodnicki, who has been closely following the dialogue between LexisNexis and the AALL: https://llb2.com/2018/06/15/early-coverage-of-aall-lexisnexis-anticompetitive-tying-controversy/.

Heads’ up, LexisNexis subscribers. – CCE

A Guide to E-Discovery Terms.

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The Big List of E-Discovery Terms Every Paralegal Should Know, by Jenny Tucker, My Paralegal Place (reprinted with author’s permission)

http://www.myparalegalplace.com/2017/08/the-big-list-of-e-discovery-terms-every.html

I have paralegal friends who have had special training and received credentials for their knowledge of e-discovery. I also have paralegal friends who rarely run across the same kind of challenge. If these terms are common to you, I tip my hat. If not, I hope this helps. Thanks, Jenny, for sharing. -CCE