Updated Research Guide from Sabrina Pacifici.


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Competitive Intelligence – A Selective Resource Guide – Updated June 2017, by Sabrina I. Pacifici, LLRX.com


Sabrina Pacifici is, and has been, a prolific and reliable legal research resource for as long as I can remember. The quality of her work is without question. Here, she has given us a gift of a large compilation of excellent research sources, updated this month, and a “must bookmark.” I highly recommend her. -CCE


Former FBI Director Comey Acknowledged As Legal Writing Star.

Why Does Comey Get an “A” in Legal Writing for His Written Testimony? by Megan E. Boyd, Lady (Legal) Writer Blog


Guest post writer, Kirsten Davis, J.D., Ph.D., and Megan Boyd, the author of the Lady (Legal) Writer Blog, know great legal writing when they see it. Last Thursday, when appearing before the Intelligence Committee, Idaho Senator James Risch described former FBI Director James Comey’s written testimony as “clear,” “concise,” and “as good as it gets.”  You don’t hear that every day. So, what made Comey’s writing deserve such high praise? Enjoy this lesson on excellent legal writing. -CCE

Legal Writing Benchslaps – Big Ouch!

How Poorly Drafted Pleadings and Bad Writing Can Hurt Your Client and You, Online Writing Center, Writing Tools, PennState Law


There are some basic rules of legal writing that are fatal to ignore. This post illustrates some of the most common errors that cost the author dearly. When the court goes to the trouble to benchslap the lawyer’s writing, take the court’s criticism to heart and avoid making the same writing mistakes.

This post also has a bonus. Look at the bar on the left to find legal writing exercises and answers. -CCE

The Basics of Legal Writing for Legal Professionals.


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The Writing Process for New Lawyers: Getting it Written and Right, by Gerald Lebovits, The Legal Writer, 89 N.Y. St. B.J. 80 (May 2017) (with hat tip to William P. Statsky)


Although this article is about the basics of legal writing, even seasoned legal writers will find it useful and instructive. Regardless of how well we think we write, we can always improve.

This article puts an emphasis on focusing on the purpose of your document, organizing your thoughts, considering your reader, researching, and editing. In short, all the basics you need to write well. -CCE

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


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)


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


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™


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


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


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)


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)


“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


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


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.


Bullying Laws Across America, Cyber Bullying Research Center

(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

Is Cyber Bullying Illegal? A Breakdown by State, TeenSafe®

Cyberbullying + Laws, Charges & Statute of Limitations, FederalCharges.com

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


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


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


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


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!)


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©


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


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)


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


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


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