Need to Turn Your iPad Into Second Monitor? There’s an App for That.

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This App Turns Your iPad Into a Second Monitor, by Robert Ambrogi, LawSites Blog

http://www.lawsitesblog.com/2016/08/app-turns-ipad-second-monitor.html

When you start using two monitors, many of us are hooked. My favorite feature is the ability to drag documents and websites back and forth. Imagine having a spreadsheet or other document open on one screen, and the document or source of the information you need on the other screen. If you need to keep an eye on email or your docketing calendar, you can keep it up on one screen and work using the other. (If you do not have a second monitor, you can access your other open windows using Alt-Tab.)

I can understand why Mr. Ambrogi is excited about this app. -CCE

I am so dependent on a second monitor that I no longer feel productive without one. That can be a problem when I am away from my office. It is especially a problem when I travel and am hunkered down in a hotel room with important work to get done.

Then I discovered Duet Display, the app that turns your iPad into a monitor.

Written Discovery Basics.

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I admit it. I love writing and answering discovery. Too often, I have seen boilerplate discovery asking for something that is not relevant. What a waste. Do not write discovery if you know nothing about the case. Blindly sending boilerplate discovery at best makes you look busy. At worst, it makes you look sloppy.

Discovery rules change. Read and re-read the court rules, local court rules, and the applicable discovery code. At the outset of the case, send your client and the opposing party a litigation hold letter. It does not matter whether either is an individual or a big corporation. Everyone uses email and sends texts on their cell phones.

Before you start writing discovery, you have to be familiar with the facts and law of your client’s case. If you aren’t, read the pleadings. Understand why the plaintiff sued the defendant(s) and what answer the defendant gave to those allegations, including all affirmative defenses. If it helps, make a chart or an outline.

There is a basic way to determine what discovery you should request. First, make a list of what you need to prove your case. We’ll call this List #1. Second, ask yourself whether you have everything needed to prove (or defend) everything on List #1? You won’t. So, third, make a list of what you need – List #2. Your client will provide some of the evidence you need, and you will use discovery to continue your search. Revise List #2 to identify what you need but do not have.

With List #2 as your guide, use discovery to get whatever else you need to prove your case. Each type of discovery is unique. Play to their strengths, which is a post all by itself. Craft your discovery to snag that evidence and identify anyone who is a potential witness and/or document custodian.

A quick word about Definitions and Instructions. Please do not regurgitate the discovery rules. I admit that I do not follow my own advice. I like to remind opposing counsel (and the opposing party) that there is a continuing obligation to supplement discovery. In the hopes that it will save time and aggravation, I also like to add the specific language from the discovery code about when you can object and why.

Define only what is necessary. If there is room for confusion, clarify what is what and who is whom. If the case revolves around specific documents, such as a contract or an event, define it with a simple designation. Your goal is instant recognition of whatever it is. If there are more than one contract or event, make your definitions basic and easy to recognize.

As soon as you receive the responses to your discovery, mark every incomplete answer or objection. Ask for supplementation where needed, and follow up. If an objection is ridiculous or simply obstructive, challenge it while at the same time building exhibits to support a motion to compel (read the rules!). Do not wait until the discovery deadline is looming to stay on top of this.

This one should be a no-brainer, but I still see it every so often. A party objects to the most basic discovery question and refuses to answer. The other side asks a standard, basic interrogatory, and you object. Really? You cannot enforce it. You know it; I know it; and the other side knows it.

Say goodbye to your boilerplate forms. If you use a form, proofread. Know your case. Adapt your discovery plan as the case progresses. These are not all the basics, but it will hopefully give you a running start. -CCE

What’s the Top Complaint Against Lawyers?

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Top Complaint Against Lawyers Is Rude or Uncivil Behaviour, by Carolyn Anderson, Bencher’s Bulletin, The Law Society of British Columbia

https://www.lawsociety.bc.ca/page.cfm?cid=2219

Before you read the article, just for fun guess what rude or uncivil behavior comes to mind? Profanity? Naw! Profanity in a law office is almost an unwritten law in the office manual. Failing to return calls or respond to letters or emails from clients? That’s always been a favorite. You’re getting warmer! -CCE

There’s Positive Stress and Then There’s the Other Kind.

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Stress at Work: Defining the Line Between Motivation and an Abusive Workplace, by Celeste Duke, Diversity Insight Blog

http://bit.ly/29Nja5b

Regardless of whether you are a lawyer or legal professional, if you have been out there for a while, you have run into a “bad” boss. They are described in different ways – bully, perfectionist, bi-polar, belittling, and just plain unpleasant – but they are all accomplish at least one thing. They chase off good employees, and make an associates’ and staff’s miserable.

Many rules in a law office may not make sense to the uninitiated. Usually strict rules accompanied with micro-management are a red flag. New hires will likely inherit left over residue from a former employee who abused the rules so badly and frequently that management adopted more restrictive rules. It doesn’t matter that the bad apple is no longer there. New employees are stuck with jumping through the hoop actually designed for a former employee.

If you are interviewing and the office manager asks whether you mind working with difficult people, that is clearly a red flag. Ask why a position is open. Often, when all other things are equal, someone who works for a good boss rarely leaves a job.

If you have a boss who is truly making you miserable or has made it clear you are as far up the ladder as you will go, it doesn’t hurt to polish up your resume and stick your toe in the water. As a good friend once said that, when it comes to job hunting, you can always shop but you don’t have to buy.

If you have found that the nice prospective boss in the interview has turned into an extremely difficult tyrant, of course you have options. But, to be on the safe side, you may want to polish your resume and start putting out feelers. There is a difference between positive stress and the extremely destructive kind. Before this boss has destroyed any self-confidence you have left, get out of there.

Happily, not all attorney supervisors believe that intimidation and abusive behavior is the best way to encourage quality work and employees. Some people even thing that positive reinforcement, team work, and mutual respect and consideration actually improve employee performance and enhance the firm’s overall quality. What a concept! – CCE

In the movie Glengarry Glen Ross, Blake is a trainer sent by corporate to motivate a sales team. In addition to offering helpful gems like the acronym ABC to remind the salesmen that they should ‘always be closing,’ he repeatedly berates them and calls them names while bragging about his own success. He tells the team about a new sales competition that week: First place gets a Cadillac, second place gets a set of steak knives, and third place gets fired.

We hope you have never had a boss like Blake, but it’s likely that you recognize shades of his character in past managers, coworkers, or even a current manager in your organization. You want managers to push employees to do good work and get the best results for the company, but it can be hard to know how far is too far. During his ‘motivational’ speech, Blake asks one salesman, ‘You think this is abuse?’ As it turns out, it just might be, and this could be a new frontier in employee claims.

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Get Your Head Out of the Sand.

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Another Two States Adopt Ethical Duty of Technology Competence, by Robert Ambrogi, LawSites Blog

http://bit.ly/2b22uwA

Ambrogi includes a link to all states that have adopted an ethical duty of technology competence. My state is not yet one of them, but there is still no excuse.If your state has not yet adopted this ethical requirement, it is only a matter of time.

I know there are so much technology out there that it is hard to know exactly what you’re supposed to know and what you can pass by. But it’s your duty to find out, and not rely on staff to do it for you. -CCE

As I continue to track the states that have adopted the ethical duty of technology competence, I have two more to add, bringing the total to 23.

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We Should Know Better.

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Don’t Reveal Embarrassing Client Info, Cal. Bar Warns, by Casey C. Sullivan, Esq., FindLaw (with hat tip to William P. Statsky)

http://bit.ly/2aFqJOQ

I hope that everyone learned in paralegal or law school that you don’t talk in elevators, restaurants, and any other public place about clients and other embarrassing facts you may pick up along the way.  I once worked in a building with a popular restaurant on the top floor. We were close enough to the courthouse that lawyers often went there for lunch. It was amazing how many settlement discussions I heard in the elevator. It wasn’t hard to guess which case it was either.

We all have great war stories. Funny things that happened in court or depositions – things like that. Yes, truth is often funnier than fiction. Maybe thinking of it from the client’s perspective is helpful. If you were the client, would you want your attorney making your case the butt of a joke or story told in public? – CCE

How to Get Clients to Pay On Time Every Time.

15 Legal Billing Practices: The Good and the Bad, by Tim Baran, Legal Productivity Blog

http://bit.ly/2arSXdu

Bad legal billing practices have plagued law firm operations and, in turn, law firm growth for decades. Entering time, collecting time sheets, and assembling bills can steal inordinate amounts of otherwise productive time, even from the most ambitious lawyers. Clients routinely wait months to be billed after the relevant work was performed, and that results in client complaints and cash flow problems for the firm. Each of those factors does its part in handcuffing the firm’s opportunity for growth.

We examine 15 legal practices – the good and the bad – in the Better Billing Practices E-Book. Here’s a nugget from each of the chapters.

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Bad Brief!

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Effective Brief Writing Despite High Volume Practice: Ten Misconceptions that Result in Bad Briefs, by Sarah E. Ricks, Rutgers School of Law – Camden, and Jane L. Istvan, City of Philadelphia Law Department, 38 U. Tol. L. Rev. 1113, SSRN

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=996907

Excellent paper on the repeated mistakes judges and their staff see in briefs.

In a busy law practice, we may not always have the luxury of researching and editing as thoroughly as we may like when writing a brief. We are so familiar with our case that we often forget the perspective of our reader. Imagine sitting all day in trial immersed in one area of law, and then switching gears afterwards to read and absorb a brief in a completely different type of law.

This paper reminds us how to write persuasively for the court, even when under pressure to meet deadlines. -CCE

What Skills Make a Great Trial Lawyer?

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Lessons from One of America’s Greatest Trial Lawyers – Earl Rogers, by Paul Luvera, Plaintiff Trial Lawyer Tips Blog

http://plaintifftriallawyertips.com/lessons-from-one-of-americas-greatest-trial-lawyers-earl-rogers

Earl Rogers was a famous attorney who died in 1922. He defended 77 murder cases and lost only three.  He was one of the greatest trial lawyers in American history. The long running TV series, Perry Mason, was based upon Earl Rogers life. His daughter Della Rogers St. John’s wrote a descriptive book of his trial skills in Final Verdict which is not only enjoyable reading, but educational as well.

We think about Clarence Darrow as a great trial lawyer, but when Darrow was charged with jury bribery in Los Angeles, it was Rogers he selected to be his defense attorney.

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The Quintessential Contract Drafting Checklist.

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A Contract Drafting Checklist, posted by Louis J. Sirico, Jr., Director of Legal Writing, Professor of Law, Villa Nova University School of Law, Legal Skills Prof Blog (with hat tip to William P. Statsky)

http://lawprofessors.typepad.com/legal_skills/2016/07/a-contract-drafting-checklist.html

This is a gem.  It is specifically targeted for anyone interested in contract law. If contract law is not your area, I encourage you to read it anyway – and bookmark it. -CCE

Canada Revokes Paralegal’s License.

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Paralegal License Revoked, by Mike Frisch, Legal Profession Prof Blog (with hat tip to William P. Statsky)

http://bit.ly/29ASMw6

There has been increasing discussion in the United States about creating class of paralegal often called “legal technicians.” Some states already have them. There are arguments pro and con on both sides. The underlying idea is to find a way to provide legal services at a lower rate making legal services more affordable.

But here’s the sticker. There are rules and laws to address situations where lawyers commit malpractice. Are there similar provisions for legal technicians and, if so, what are they? How do they protect consumers, is there any kind if discipline, and who is responsible for that oversight and discipline?

Canada might be good example to help answer some of these questions. What do you think? -CCE

Unlike its American counterparts, the Law Society of Upper Canada has and exercises disciplinary authority over paralegals,

The Law Society Tribunal revoked a paralegal’s license.

‘[M]r. Djukic’s actions clearly brought discredit upon the paralegal profession. Through his work as an immigration consultant and his standing as a paralegal, Mr. Djukic was able to meet and, ultimately, to persuade members of two families to provide him with monies totaling more than $900,000.’

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Why Creating A Timeline Will Help Your Case.

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How to Create a Timeline For Your Case: First Steps to Take and Choices to Make, by Morgan Smith, Cogent Legal Blog

http://cogentlegal.com/blog/2011/08/how-to-create-a-timeline-for-your-case/

In litigation, almost every case will benefit from a timeline that lays out key facts and circumstances in a chronological order. The process of making a timeline can help you, the attorney, organize and strengthen your argument, and the end result is a clear and compelling visual presentation that will help all parties involved better understand your case.

But, which program should you use to create it? This is one question where there is simply no single best answer, and a lot depends on the forum you intend to use the timeline in. This post covers some benefits and drawbacks to different timeline tools and formats so you can determine which to use. To see a variety of timeline samples, please our timeline and portfolio sections of our website.

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Word Domination.

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Dear Lawyers: It’s Not Word, It’s You, by Barron Henley, Lawyerist.com Blog

http://bit.ly/28X55l1

Here are two important facts about Microsoft Word:

Fact 1: 100% of the formatting problems you’ve experienced when drafting new documents can be completely avoided before they occur.

Fact 2: When editing a document someone else drafted, any formatting glitches can be resolved in just a few clicks, no matter how bad of a mess it is.

Unfortunately, the foregoing facts are true only if you have mastered Word.

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“The Presidents and the Constitution: A Living History”

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The Presidents and the Constitution: A Living History, by Ken Gormley

If you are interested in constitutional law, I highly recommend this book. It was published in May, 2016, and can be found in your public library or ordered from any book store. It is an interesting discussion of presidential decisions or actions and the constitutional implications.

Here is just one example. If you grew up during the time of Watergate, you may find this particularly interesting. Like most people, I had always assumed that President Gerald Ford’s pardon of Richard Nixon gave Nixon a “get out of jail free” card. My guess is that this decision caused Ford the election to his first full term as President.

When the author interviewed Gerald Ford for the book, of course Nixon’s pardon came up. Ford said that he had asked a young lawyer, Denton Decker, to research all the nuances and possible issues that might occur if Ford were to pardon Nixon. The idea of pardoning Nixon was very unpopular. Ford wanted to know what possible precedent and repercussions a pardon might mean.

Decker finds Burdick v. United States, 236 U.S. 79 (1915). Burdick holds that, if one accepts a pardon, it is an admission of guilt.

Ford sent Decker to San Clemente to Nixon’s home to present the offer of a pardon to Nixon and Nixon’s lawyer. Decker gave Nixon a Miranda warning and told him that, if Nixon accepted a pardon, it would be an admission of guilt. Nixon at first didn’t want to accept the pardon because he understood what it meant. Another issue on the table at the same time was the creation of a presidential library for Nixon’s papers, which the author says Nixon badly wanted. After first resisting, Nixon decided to take the pardon.

When Ford pardoned Nixon, he thought he had given the public exactly what it wanted. Instead, it was seen as letting Nixon off, even though Nixon was obviously guilty. When interviewed by Mr. Gormley for this book, Ford was still frustrated that the public had never seemed to understand that, by accepting a pardon, Nixon admitted his guilt.

An interesting piece of history and a good read. -CCE

Tell Your Client’s Story With A Good Narrative.

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Using Narrative in Transactional Documents, by Louis J. Sirico, Jr., Legal Skills Prof Blog

http://bit.ly/26buQ9Y

Susan Chesler and Karen Sneddon have written a very interesting article on including narrative in transactional documents. Once Upon a Transaction: Narrative Techniques and Drafting, 68 Oklahoma Law Review No. 2 (2016).

Here is the introduction:  A granddaughter joins the family business as a partner. An entrepreneur licenses his newest product. Two parties decide to settle a dispute. A charitable idea materializes as a private foundation. A parent’s belief in the power of education is perpetuated by a trust agreement. Each of these events forms a narrative. A transaction is more than the scratch of pens across signature pages or the click of keys to email an executed document. A transaction is itself a story.

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Using Abbreviations and Definitions in Legal Writing.

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Don’t Use Definition-First Autonomous Definitions, by Ken Adams, Adams on Contract Drafting Blog

http://www.adamsdrafting.com/dont-use-definition-first-autonomous-definitions/

Ken Adams provides excellent examples of how to use an abbreviations and definitions. Use this for contracts, but keep in mind that it also works in pleadings, motions, discovery, etc.

When you use abbreviations and definitions for a person, a law, an event, or contract, it makes your writing tighter and more concise. It makes sense to abbreviate lengthy names, but take which definition you pick. While striving for a way to make your writing less wordy, don’t let the abbreviation or definition de-humanize your client or overly sanitize your client’s case. -CCE

Reference, Facts, News, Search Engines, Email, and More. Easy Peasy.

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Refdesk.com – Fact Checker for the Internet

http://www.refdesk.com/

Refdesk.com has been around a long time. If you have never seen it or used it, please give me the honor of making the introductions.

Go the home page: http://www.refdesk.com. There is a lot to absorb.  Take your time. Scroll down the page, and check it out.

Bothered by the ads popping up on the page? There is an easy fix. Support Refdesk. Contribute $25, and Refdesk is add free for a year. No, you don’t have to contribute $25. You don’t have to contribute at all. But, if you want to use Refdesk frequently, I encourage you to contribute something.

If you are like me, you do not want to keep scrolling to find what you want to see – you simply want to get there. Go to the top of the website, and look to the right. You will see three search tools: (1) Check Email; (2) Quick Links; and (3) Reference Desk.  Right away, you can see that this has potential as home page.

I want to look up grammar and punctuation rules. Go to Reference Desk, click the down arrow, and choose “Grammar/Style.” That’s a nice assortment of writing guides, but not exactly what I want. I’m looking for The Elements of Style. Click on More at the bottom of the page. There it is.

You have seen one small example of the information this site can give you. I leave it to you to seek out the rest.  -CCE

Posner Asks What is Obviously Wrong with the Federal Judiciary. Is This A Trick Question?

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What Is Obviously Wrong With The Federal Judiciary, Yet Eminently Curable, Part I, by Richard Posner, 188 19 GREEN BAG 2D 187 (with hat tip to William P. Statsky) (The Green Bag is Quarterly Legal Journal dedicating to good legal writing, supported in part by the George Mason University School of Law)

http://www.greenbag.org/v19n2/v19n2_articles_posner.pdf

If you’re looking for a good Bluebook bashing, here it is. -CCE

At the level of form, the first thing to do is burn all copies of the Bluebook, in its latest edition 560 pages of rubbish, a terrible time waster for law clerks employed by judges who insist as many do that the citations in their opinions conform to the Bluebook; also for students at the Yale Law School who aspire to be selected for the staff of the Yale Law Journal – they must pass a five-hour exam on the Bluebook. Yet no serious reader pays attention to citation format; all the reader cares about is that the citation enable him or her to find the cited material. Just by reading judicial opinions law students learn how to cite cases, statutes, books, and articles; they don’t need a citation treatise. In the office manual that I give my law clerks only two pages are devoted to citation format. [Footnotes omitted; emphasis added.]

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What’s It Like In Your Judge’s Shoes?

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Advice on Writing to Persuade the Court, by Louis J. Sirico, Jr., Legal Skills Prof Blog (with hat tip to William P. Statsky)

http://lawprofessors.typepad.com/legal_skills/2016/06/advice-on-writing-to-persuade-the-court.html

In her article, Standing in the Judge’s Shoes: Exploring Techniques to Help Legal Writers More Fully Address the Needs of Their Audience, Sherri Lee Keene argues that lawyers writing as advocates need to place themselves in the shoes of the judges whom they seek to persuade. Of course, this is not new advice. What is helpful here is her advice on how to do it.

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“How To” Research Administrative Law.

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How many people like to research the Code of Federal Regulations? Hands? I thought so. You are not alone. Actually, it’s not as hard as it looks.

Here is a tutorial and some great posts by law librarians that de-mystify researching this area of law. -CCE

Administrative Law Research Tutorial, Georgetown Law Library

https://www.law.georgetown.edu/library/research/tutorials/admin/
Administrative Law Research Guide, Georgetown Law Library

http://guides.ll.georgetown.edu/adminlaw

Administrative and Regulatory Law Research Guide, Harvard Law School Library (last updated by Claire DeMarco)

http://guides.library.harvard.edu/administrative

Administrative Law, Library School of Law, Loyola University of Chicago

http://lawlibguides.luc.edu/content.php?pid=128348&sid=1101470

Administrative Law Guide: Introduction, C|M|LAW Library

http://guides.law.csuohio.edu/adminlaw

Federal Administrative Law, Duke Law, Goodson Law Library

https://law.duke.edu/lib/researchguides/fedadminlaw/

The Proper Use and Interpretation of “Shall” and “Will.”

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The Legal Writer – The Problem with Shall, by Elizabeth Ruiz Frost, Oregon State Bar Bulletin (February/March)

https://www.osbar.org/publications/bulletin/12febmar/legalwriter.html

When we draft legal documents for our clients, we aim to articulate who can do what and when. Those rights and obligations are established through words of authority. But in legal writing, inconsistent use and interpretation of some words of authority can create ambiguity in our documents.

The word shall can be particularly troublesome. Drafters often use shall in place of other words like does, will, should, might or may. If we use shall sometimes to connote a mandatory term, at other times to connote a discretionary term, and once in a while to connote a future event, how can a reader accurately determine our intent? When a word of authority is used inconsistently, courts are left to determine the word’s meaning. To avoid squabbles over ambiguous terms, think through each word of authority that you write and use these words consistently.

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Using the Wayback Machine To Authenticate Evidence.

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Wayback Machine Builds Reputation with Judiciary, by CMLaw Library Blog (with hat tip to William P. Statsky)

http://cmlawlibraryblog.classcaster.net/2016/05/12/wayback-machine-builds-reputation-with-judiciary/

What is the Wayback Machine? It’s been around since 2001. It is a mega-archive of websites. If you are a serious researcher, it is worth your time to learn how to use it. It is more than just a trip down nostalgia lane. You can easily find blog posts, articles, and videos that will give you an in-depth explanation on the Wayback Machine’s creation and what it does.

I like this post because it is the first illustration I’ve seen in which someone used the Wayback Machine as persuasive evidence in court. Thanks, Bill! -CCE

An April 2016 decision from the District of Kansas has given judicial notice to information contained in screenshots from the Wayback Machine. The Internet Archive’s Wayback Machine preserves images of websites as they appeared at particular points in time. In the case at hand, Marten Transport, Ltd. v. PlattForm Advertising Inc., (D. Kan., Case No. 14-2464-JWL, 4/29/16), Marten sued PlattForm for infringement, alleging that PlattForm had continued to display Marten’s logo on PlattForm’s website after the two had stopped doing business together.

The court determined that testimony from an employee of the Internet Archive concerning the screenshots showing PlattForm’s website at the time in question was enough to meet the standards in Federal Rules of EvidenceRule 901.

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How To Use “That” and “Which,” And Why You Should Care.

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Using That and Which Correctly, Better Writing Skills, Writing Resources From Scribe Consulting

http://www.betterwritingskills.com/tip-w022.html

An easy-to-understand example of the difference between “that” and “which” and why, in legal and business writing, it is important to use each correctly.  It also provides an excellent example of how grammar and punctuation mistakes can dramatically change the meaning of your document. -CCE

For more writing tips on common grammar errors, go to http://www.betterwritingskills.com/writing-tips.html.

Russ Guberman’s Six Editing Tips.

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No Thanks: Six More Words and Phrases to Avoid, by Russ Guberman

http://legalwritingpro.com/blog/no-thanks-six-more-words-and-phrases-to-avoid/#comment-91

Small wording changes can liven up your style by speeding up and punching up your prose.

Let’s match wits with some of the world’s best judicial writers below. Or is that ‘with certain of the world’s most illustrious judicial draftspersons infra’?

The Rules of Engagement: If a word or phrase is bolded in the first part of each set, the big guns didn’t write it. For each of those bolded terms, think of a lighter or shorter replacement before you peek below.

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Just Really Good Legal Writing.

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How To Write Good Legal Stuff, by Eugene Volokh and J. Alexander Tanford, Maurer School of Law© 2001, 2009

http://law.indiana.edu/instruction/tanford/web/reference/how2writegood.pdf

This is a guide to good legal writing. Good writing consists of avoiding common clunkers and using simpler replacements. The replacements aren’t always perfect synonyms but 90% of the time they’re better than the original. Warning: Some changes also require grammatical twiddling of other parts of the sentence. This is not a guide to proper high English usage. We don’t give two hoots whether you dangle participles, split infinitives or end sentences with prepositions. We care that you can write clearly.

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