Law Firm Email Encryption – Are You Ethically Compliant?

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ABA Issues New Ethics Opinion on Encryption of Attorney-Client Email, Jim Calloway’s Law Practice Tips Blog

http://bit.ly/2qy8J2a

Does your state have an ethics opinion about encryption of your firm’s email? Do you use encryption? Do you use a secure cloud based platform? If you are not sure, don’t you think you should check?

Most law firms frequently use email over fax and regular mail to communicate with their clients, their expert witnesses, and opposing counsel. What is your obligation to ensure confidentiality of your firm’s email, and are you meeting it?

The ABA’s ethics opinion is instructive, as well as the Texas ethics legal opinion referred to by Mr. Calloway at the end of his post. -CCE

Why Are Nursing Homes Often Understaffed?

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How Do Understaffed Nursing Homes Affect Patients, posted on behalf of D’Amico & Pettinicchi, LLC (April 28, 2017)

http://bit.ly/2pWhPEr

This is a subject I’ve witnessed myself when taking care of a family member in a nursing home, so I admit my personal bias. While it may not be true for all nursing homes. I was told by nursing home staff that it is more often true that nursing home residents receive better care when family are frequent visitors and are paying close attention to the care. Unfortunately, not all nursing home residents have family advocates who are committed to their quality of care provided by nursing homes.

Understaffing is only one of the usual chronic problems in most nursing homes, which is the topic of this post. -CCE

Need to Discover Insurance Coverage? Try This.

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Interrogatories Asking for Insurance Coverage Information, by Paul Luvera, Plaintiff Trial Lawyer Tips

http://bit.ly/2phvhiP

When your discovery rules allow the plaintiff to get the defendant’s insurance coverage, never miss the opportunity to get all the details you can. Here are some excellent examples of interrogatories and strategy. -CCE

Trial Witnesses And Depositions Transcripts.

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Use Your Deposition as Your Sword and Shield, by Dr. Ken Broda-Bahm, Persuasive Litigator™

http://bit.ly/2piUoBR

Depositions can be taken months, even years, before a case goes to trial. Even though you may routinely provide every deponent with a copy of the transcript of his or her deposition, does the witness or your client really understand how important it truly is to study it thoroughly? Sometimes I wonder whether they see it more as a bother. Including a copy of this post might help. -CCE

See also Overlearn Your Deposition, by Dr. Ken Broda-Bahm, Persuasive Litigator™ at http://www.persuasivelitigator.com/2017/02/overlearn-your-deposition.html.

A Benchslap By Judge Gorsuch. And It’s A Really Good One, Too.

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Benchslap Of The Day: No More Mr. Nice Guy, by David Lat, Above The Law Blog

http://abovethelaw.com/2015/03/benchslap-of-the-day-no-more-mr-nice-guy/

It’s Monday, which makes it a good day for a good old-fashioned benchslap!

Our Judge for today’s benchslap is none other than newly appointed Justice Neil Gorsuch of the United States Supreme Court, back when he was at the United States District Court for the Tenth Circuit. Judge Gorsuch’s opinion is an excellent lesson on the basic elements of a successful appeal. An immigration lawyer ignored the Court’s local rules. A serious mistake, and a thorough benchslap. -CCE

Litigation Tip – Balancing Emotion and Logic.

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Human Nature: “Facts are White Noise & Emotions Rule” & Why We Continue to Believe Objectively False Things, by Paul Luvera, Plaintiff Trial Lawyer Tips

http://bit.ly/2oVw6P5

Does your head or your heart make your decisions? Are you sure? While your argument, evidence, and testimony may be perfectly reasoned and logical, how does it rank on a positive or negative on an emotional scale or preconceived beliefs? -CCE

 

Use Plain English Rather Than Medical Jargon.

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Plain English Helps Explain Medical Issues Clearly, A Case Study, by Dr. Oscar Linares, David Daly, and Gertrude Daly, 36 Mich. B J. (Jan. 2017)

http://www.michbar.org/file/barjournal/article/documents/pdf4article3039.pdf

Professionals, like doctors, often speak using medical jargon. Other doctors understand it, but not necessarily everyone else. This is true for anyone who uses technical language specific to their work. But in a legal matter, communication is critical. A good reason to use plain English, isn’t it? -CCE

Obtaining, Organizing, and Analyzing Medical Records.

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Tips for Unlocking Medical Records That Will Make a Paralegal’s Job Easier, by Karen Clark, MS, RN; Patricia Iyer, RN, MSN, LNCC; Barbara Levin, BSN, RN, ONC, LNCC; and Mary Ann Shea, JD, BS, RN, Paralegal Today (Originally appeared in print as “Unlocking Medical Records” July/August 2004)

http://paralegaltoday.com/issue_archive/features/feature2_ja04.htm

“How to” on obtaining, organizing, and analyzing medical records, complete with chart for tracking them. -CCE

Excellent Example of Appellate Court’s Use of Persuasive Legal Writing Tools.

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Contrasting Introductions in Kolbe v. Hogan, by Megan E. Boyd, Lady (Legal) Writer Blog

http://ladylegalwriter.blogspot.com/2017/03/contrasting-introductions-in-kolbe-v.html

The Fourth Circuit Court of Appeals recently held that Maryland’s Firearm Safety Act (FSA), which bans AR-15s, other military-style rifles, and certain large-capacity magazines, is constitutional and does not violate the Second or Fourteenth Amendments.

This decision is controversial for a number of reasons (aren’t all cases involving guns?), but the introductions in the majority and dissenting opinions are particularly interesting. You’d expect an opinion about the constitutionality of a firearm-related statute to start with an exposition of Second Amendment law or a discussion of the specific language of the statute itself.

Not this majority opinion. It starts with a literal bang . . . .

Continue reading

2017 United States Sentencing Commission Website.

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United States Sentencing Commission

http://www.ussc.gov/

This federal government website has a honey pot of information. It has six categories. Here are some highlights you will find under each category:

1. About (includes Mission Statement and online seminar titled ‘An Insider Look at the United States Sentencing Commission’);

2. Guidelines (the 2016 Guidelines Manual, Sentencing Table, and Organizational Guidelines, including the most recent primers on various areas of criminal law);

3. Policymaking (Rules of Practice and Procedure);

4. Education (Guideline Training Materials);

5. By Topic; and

6. Research (Public Access to Commission Data and Documents List Of all Publications, 2016 Sourcebook, Quick Facts, and Data Reports).

The information you will find here is current and up to date. You can be sure that you are researching the most recent and updated guidelines, primers, sentencing table, policy, and laws. -CCE

State and Federal Cyber Bullying Laws.

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Bullying Laws Across America, Cyber Bullying Research Center
http://cyberbullying.org/bullying-laws

(Please also note “Recent Updates” under the “Resources” button.)

Cyberbullying Laws, The Huffington Post©2017 http://www.huffingtonpost.com/news/cyberbullying-laws/

Bullying and Cyber Bullying Laws, Megan Meier Foundation
http://www.meganmeierfoundation.org/laws.html

Is Cyber Bullying Illegal? A Breakdown by State, TeenSafe®
https://www.teensafe.com/blog/cyberbullying-illegal-breakdown-state/

Cyberbullying + Laws, Charges & Statute of Limitations, FederalCharges.com
https://www.federalcharges.com/cyberbullying-laws-charges/

Storytelling Trial Lawyer’s Honey Pot.

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The Key Elements of a Good Narrative – at Trial or Anywhere Else, by Tony Klapper, The Litigation Consulting Report, A2L Consulting

http://www.a2lc.com/blog/the-key-elements-of-a-good-narrative-at-trial-or-anywhere-else

Every good trial lawyer is a storyteller. Good storytelling is the same as a good book or movie with a great plot and dialogue. It’s that kind of storytelling that wins trials.

Mr. Klapper has written a wonderful post. At its end, you’ll find a honey pot of links with posts that are a variation on this theme. Sweet. -CCE

Will Your Standard Boilerplate Discovery Objections Cut the Mustard in Federal Court?

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Don’t Risk Waiving All Objections to Discovery Responses, by Daniel M. Braude, Wilson Elser, Product Liability Advocate

http://bit.ly/2mQTYon

Remember the changes made to the Federal Rules of Civil Procedure in December, 2015? Mr. Braude strongly urges us to update our discovery form files. He has a convincing reason. -CCE

A Federal Discovery Rule Quiz.

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Treating Physicians & Non-Retained Expert Witnesses: What Do Parties Have to Disclose Before Trial? by Max Kennerly, Esq., Litigation and Trial, The Law Blog of Plaintiff’s Attorney Max Kennerly

http://bit.ly/2mvxvg1

Under Rule 26 of the Federal Rules of Civil Procedure, who is a “non-retained expert witness” and when does that witness need to provide a thorough report rather than a summary report?  And what would you expect a judge to say if you do not disclose a non-retained expert witness? As always, it depends. -CCE

Punctuation – The Devil Indeed Is In the Details.

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Legal Writing is Precise Writing, by Suzanne E. Rowe©2007, Oregon State Bar Bulletin — NOVEMBER 2007

https://www.osbar.org/publications/bulletin/07nov/legalwriter.html

A colleague appeared in my office with a pressing question about hyphens. He was writing an article about people who own small businesses. But he was concerned that a punctuation mistake might make the article about small people, instead of small businesses. That concern (and perhaps a touch of procrastination) propelled him to my office. Was he writing about small business owners or small-business owners?

Legal writing is precise writing. Sometimes the missing hyphen, misplaced word or extra comma can change the meaning of a sentence. In quotations, lack of precision can hurt your reputation (or just make you look sloppy). The devil’s in the details.

Continue reading

Tips on Writing Persuasive Propositions.

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How to Write Effective Argument Headings, by Lisa Solomon, NOW Counsel Network (with hat tip to William P. Statsky!)

http://bit.ly/2ljxJbg

Ms. Solomon calls them argument or point headings. I call them propositions. Regardless, their importance as a persuasive writing tool in any brief should never been overlooked.

A proposition or heading is a succinct statement that states the question or issue to be discussed and answered in your brief. If done correctly, the reader – your judge – should follow the logical flow of your brief’s argument by simply reading the propositions and sub-propositions.  

A proposition that is a positive statement is more persuasive than a question.  Even better, your proposition should state positively what the court ought to do and why. X should happen because of Y or, because of Y, X should happen.  Regardless of the format you use, a proposition that says why the court should rule as you want is always more persuasive. -CCE

Do You Use the Cloud for Document Storage or Production? Read This First.

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Upload To File-Sharing Site Was Like Leaving Legal File On A Bench, Judge Says; Privilege Is Waived, by Debra Cassens Weiss, ABA Journal©

http://bit.ly/2mxwEcF

Many use the cloud for file storage and sharing when attachments are too big to send by email. If you use the cloud for storage, file-sharing or transfer, document management, project management, or anything similar, here is a cautionary tale.

The plaintiff insurance company sued the defendants, and sought a declaratory judgment on the defendants’ claim of loss by fire. The plaintiff’s investigator uploaded the entire claims file, including surveillance footage, to a drop-box cloud, Box, Inc. The link had no encryption or password. Access to the link alone allowed anyone to see the file.

He then sent the link by email to the plaintiff insurance company, who sent it to the insurance company’s attorneys, who inadvertently sent it the defendants’ counsel in response to a subpoena duces tecum.

The defendants’ counsel looked at it, but didn’t tell the plaintiff they had seen the privileged and confidential information. Inevitably, the defense sent the information back on a thumb drive to the plaintiff’s attorneys during discovery.

After vigorous arguments about confidentiality, work-product doctrine, attorney-client privilege, and disqualification of defense counsel, the facts and court’s reasoning make this an interesting read. -CCE

Excellent Advice for Witness Preparation.

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Witnesses: Know Your Seven Ways Out of the ‘Yes or No’ Trap, By Dr. Ken Broda-Bahm, Persuasive Litigator

http://www.persuasivelitigator.com/2017/02/witnesses-know-your-seven-ways-out-of-the-yes-or-no-trap.html

This post caught my eye. I was trained to prepare prospective witnesses to keep their answers brief, preferably to “yes” or “no.” If further explanation was needed or wanted, my lead attorney would ask appropriate questions during direct or cross-examination.

This post takes a different – and better – approach to respond using a variety of answers, regardless of the question asked. Although there may be times when a simple “yes” or “no” answer is the right thing for the witness to say, this post provides excellent advice that is well worth your notice. -CCE

Why We Need Clear Legal Writing in Contracts.

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Sesquipedalianism and an Expatiation Upon Its Antithetical Impact on Interpersonal Communications: Big Words and Why They’re Bad, by Sherry Altshuler, Aird & Berlis, LLP (with hat tip to Louis J. Sirico, Jr., Legal Skills Prof Blog)

http://www.airdberlis.com/Templates/Blog/Entry.aspx?Page=71&ID=11120

This post on using plain English does what good legal writing should. Rather than telling you that big or complicated words are a sure way to lose your reader, it shows you with a wonderful example.  I love “show, don’t tell.” It also provides an excellent list of good legal writing tips. This one is worth a bookmark. -CCE

Legal Aid Federal Practice Manual.

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Federal Practice Manual for Legal Aid Attorneys, Sergeant Shriver National Center on Poverty Law © 2016

http://federalpracticemanual.org/

Well written by qualified contributors. Please note that each section is updated, but not more recently than 2015. Anytime you use a secondary research source with dated information, research the data and law to determine whether it is current. Always check the law in your case’s jurisdiction as part of your ethical duty of due diligence, as well as all relevant court rules. -CCE

An Easier Way to Research The Code of Federal Regulations.

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Electronic Code of Federal Regulations, GPO: U.S. Government Publishing Office

 http://www.ecfr.gov/cgi-bin/ECFR?page=browse

How many of you enjoy researching the Code of Federal Regulations? Hands? I thought so. Have you tried the Electronic Code of Federal Regulations (e-CFR)? If you haven’t, I highly recommend that you check it out. Look to the left to find search tips, FAQs, and a link to a parallel Table of Contents and Authorities. This web site is kept up to date, unlike the print version which is updated once a year. This will remain an “unofficial” version while it’s “technical and performance issues are satisfactorily resolved.” Don’t let that put you off. This website will become the official government Code of Federal Regulations. -CCE

Free Online 2017 Edition of the Federal Rules of Civil Procedure.

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Federal Rules of Civil Procedure, 2017 Edition, The National Court Rules Committee©2014-2017

https://www.federalrulesofcivilprocedure.org/frcp/

Like many firms, we do not keep a hardback or soft back set of the Federal Rules of Civil Procedure because we can access them for free online. I usually go to the Cornell Law Library Institute for federal statutes and court rules for statutes and court rules. After finding this website, I’ve changed my mind. It is amended through December 1, 2016. It also includes links to the Federal Rules of Evidence, Federal Rules of Bankruptcy Procedure, Federal Rules of Criminal Procedure, and the U.S. Bankruptcy Code. So far, I haven’t seen anything not to like. -CCE

Legal Writing Myths

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Legal-Writing Myths, by the Hon. Gerald Lebovits, Plain English Subcommittee Column, 50 Mich. B.J. (February 2017)©2017

https://researchingparalegal.wordpress.com/?p=4848&preview=true

 

Are longer briefs more persuasive? Is it a legal writing faux pas to start a sentence with “and”? Do judges care if you follow Bluebook citation format? Judge Lebovits has some thoughts on these and other legal writing myths to share, some of which may surprise you. -CCE

New Federal Rules in Evidence in 2017 Will Affect The Hearsay Exception and E-Discovery.

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‘Ancient’ Data (and Documents): Prepare for Federal Changes to a Long-standing Hearsay Exception, by Carey Busen and Gilbert S. Keteltas, BakerHostetler, Discovery Advocate Blog

http://bit.ly/2jeUNW2

If you hadn’t heard, there are changes to the Federal Rules of Evidence that will become effective in 2017. Among the changes are rules on hearsay exception for “ancient documents” and rules specifically addressing electronic evidence. Because technology is never static, e-discovery has looked forward rather than backward. These new rules will address e-discovery older than 20 years. -CCE

If wish to do more research into this area, I recommend:  Gregg Kettles, Ancient Documents and the Rule Against Multiple Hearsay, 39 Santa Clara L. Rev. 719 (1999). http://bit.ly/2jOIujM

New and Updated GPO Style Manual.

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GPO Style Manual: new edition, Barco 3.0: Law Library Reference

http://bit.ly/2is1ipN

The Government Publishing Office has published a thorough and updated Style Manual, which includes rules for punctuation, grammar, abbreviations, and computer terms, among other things. You will find “New Features and Enhancements” at https://www.govinfo.gov/features/release-notes/govinfo-beta-launch.