Monthly Archives: September 2014

Warning Signs of Bad Nursing Home Care.

28 Sunday Sep 2014

Posted by in Elder Abuse, Elder Law, Nursing Home Abuse

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9 Warning Signs of Bad Care, by Kurtis Hiatt, U.S. News & World Report

http://tinyurl.com/m9q6ezr

One of the reasons I picked this post is that, on the same page, you will find a Guide to Nursing Homes, including “How to Choose a Nursing Home,” “How to Cover the Cost,” and “How to Guarantee Good Care.” It also includes a step-by-step video of actions to take before choosing a nursing home. Unless you medical knowledge or experience and know what kind of care is normal and acceptable, making decisions about elder care is confusing and difficult. –CCE

It’s frustrating to discover that the care Mom is receiving in her new nursing home falls short of expectations—yours and hers. It’s frightening to think that it might be bad.

But how would you know?

‘There are literally dozens of warning signs,’ says Dan Sewell, director of the senior behavioral health unit at the UC San Diego Medical Center. Here are what he and other experts consider especially serious red flags. . . .

Rhode Island Opens Records Law Not So Open.

28 Sunday Sep 2014

Posted by in Criminal Law, First Amendment, Government, Open Records Act

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Criminal Records Search and Background Checks, from Criminal.Com

http://www.criminal.com/revised-open-records-law-not-always-enforced-in-rhode-island/

A report released by Access/RI shows that in the two years since Rhode Island changed its open records law, enforcement of the law has been less than stellar.

Access/RI isan alliance of First Amendment advocates and MuckRock, a group that works with journalists to secure and analyze public records. They show execution of the updated rules is extremely rare. The report states what is really happening isdifferent than what policy makers had hoped would transpire when legislation went through.

When Rhode Island Governor Lincoln Chafee signed the Access to Public Records Act into law in June of 2012 it was noted that employment contracts and other documents that had been sealed in the past would now be public and readily available.

Access/RI found that restructured law was not being followed when routine documents such as arrest reports and contracts were requested. Many school systems have been unwilling to comply with the law and instead give heavily redacted copies of employment contracts. . . .

Oops – Non-Lawyers and the Unauthorized Practice of Law.

28 Sunday Sep 2014

Posted by in Ethics, Independent Paralegals, Lawyer Supervision, Paralegals/Legal Assistants, Unauthorized Practice of Law

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STAND And Deliver Legal Services, by Mike Frisch, Legal Profession Prof Blog

http://tinyurl.com/qjc6haw

There are certain things that paralegals, legal assistants, and any other non-lawyer legal professional cannot do.

  • We cannot appear in court on behalf of a client (when we’re not with our supervising attorney). Even then, we won’t be sauntering up to the judge’s bench to make argument or answer the Court’s questions).
  • And although I know some paralegals do this with their lawyer’s approval, we should not negotiate settlement on the client’s behalf. In these situations, my guess is that, the majority of the time, the client has no idea that the has delegated this task to a non-lawyers.
  • I’m going to go with faith that non-lawyers understand about client confidentiality.
    There are other things a non-lawyer cannot do, but the biggest is that we cannot give legal advice. If someone asks you a legal question, and you say, “I can’t give legal advice, but if I were you, I would . . . ,” that’s giving legal advice. The little signs you see next to discount shopping stores offering to do your divorce for a small fee are trying to sell legal advice. Even if you know the answer when a client asks you a question, the absolute best answer you can give is, “I don’t know – you’ll have to ask the lawyer.”

That brings us to this post. No doubt that the non-lawyer in this example had good intentions, and was trying to help. If you the non-lawyer in any situation, regardless of how much training or initials you have behind your name, you CANNOT GIVE LEGAL ADVICE.-CCE

Unauthorized practice decision of the Ohio Supreme Court is described by Kathleen Maloney:

A Lorain County non-lawyer and his corporation engaged in the unauthorized practice of law by providing legal advice to individuals facing criminal charges, according to an Ohio Supreme Court decision today.

The court directed King Ayettey Zubaidah and STAND, Inc., to stop practicing law and ordered them to pay a civil penalty of $20,000 for their involvement in four legal matters.

Zubaidah formed STAND (Striving Towards a New Day!) in 2008 after his experience with the justice system in the 1980s when he was convicted on a drug charge and sentenced to five years probation. STAND’s mission was ‘to help change the unfair and partial treatment against minorities in the judicial system.’

In each of the four cases brought before the Board on the Unauthorized Practice of Law (UPL), the defendant or a parent of the defendant asked for Zubaidah’s guidance during the criminal case and signed an agreement with STAND, which stated that the organization would assist them. No payment was required. Family members testified that Zubaidah did not claim to be an attorney and they knew he was not one.

In one matter, Isaiah Harris faced several charges in three different cases in 2008 involving the same victim. The court appointed a lawyer to represent him. Harris also signed an agreement with STAND.

The three cases were combined, and before Harris’ trial Zubaidah sent a letter to the judge indicating he had in-depth knowledge about the facts in the case and defending Harris’ actions.

In the midst of trial, Harris’ lawyer negotiated a plea deal for a four-year prison term. Zubaidah attended the trial, but his involvement was disputed. Harris’ lawyer claimed that Zubaidah advised Harris not to accept the deal. Harris rejected the offer and was later convicted and sentenced to 23 years, 6 months in prison.

In the other cases, Zubaidah sent letters to the judges asking for lower bonds, citing cases, and making legal arguments, though indicating that he was not an attorney.

In today’s per curiam opinion, the court noted that an individual who negotiates legal claims for another person and provides legal advice – even without charge and even when stating that he is not an attorney – is practicing law.

While a non-attorney who sends a character-reference letter for someone to a judge is not engaging in the unauthorized practice of law, the court stated that when a letter shifts to advocating specific legal positions for that person, the unauthorized practice of law occurs.

‘[D]espite the laudable desire to seek reform in the criminal system, such a desire cannot be realized by legally advising and advocating on behalf of a criminal defendant without violating our prohibition against the unauthorized practice of law,’ the opinion stated.

‘Zubaidah’s actions extended beyond the permissible conduct of endorsing a person’s character, advocating a social issue generally, advancing personal interests, or providing nonlegal advice to a family member. Despite Zubaidah’s good intentions and intermittent disclaimers, his conduct shows a pattern of advocating legal positions on behalf of defendants and providing legal advice to those defendants, leading to serious consequences for the STAND clients who trusted him.’

The court pointed out that Zubaidah held himself out as ‘an advocate with legal expertise,’ his agreements implied that he had specialized knowledge of the legal system, and his letters to judges ‘cited case law, raised legal issues, and asked for legal results.’ . . . [Emphasis added,]

Is Evidence of Defendant’s Disability Admissible in Police Brutality Trial?

27 Saturday Sep 2014

Posted by in Admissibility, Americans With Disabilities, Criminal Law, Defense Counsel, Evidence, Excessive Force, Fourth Amendment - Search & Seizure, Governmental Tort Claim Act, Law Enforcement, Police Brutality, Trial Tips and Techniques

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Disabling Condition: Should Evidence of Defendant’s Disability be Admissible in Assault/Police Brutality Trial?, by Colin Miller, EvidenceProf Blog

http://tinyurl.com/plpuz7s

According to an article in the Lake Geneva News,

‘A man who is accused of attacking a police officer, but counters that he is the victim of police brutality, is set for his second jury trial next Monday.

Daniel White, 42, of rural Elkhorn, faces three felony counts and a misdemeanor related to an incident in which his two pit bulls bit two deputies and he allegedly struck a deputy with his fist and a wood board.

White, who walked in the courthouse with a cane and collects disability checks, contends that the officer knocked down his stockade fence, beat him up and lied to conceal their actions.’

Prior to trial, the prosecution asked the judge to (1) prohibit White’s cane from being in the jury; and (2) to exclude evidence of White’s disability. How should the judge rule?

Well, the judge has already ruled ‘refused to force White to hide his cane during the trial.’ I think this seems like the only correct outcome. First, there is simply the matter of logistics. For instance, a defendant has to stand when the judge enters the courtroom. Given that, it’s difficult to see how the cane could be completely hidden from view. Second, courts have found no problem with defendants being in shackles in the courtroom when such restraint is necessary. Reciprocity would thus seem to require allowing a defendant in need of a cane to be able to use it in plain view of jurors.

The more difficult question is whether the defense should be able to present evidence of White’s disability. Part of this depends on the defense’s theory of the case. Is the claim that White’s disability made him physically unable to commit the crimes alleged in the complaint? If so, you might recall the infamous O.J. Simpson trial in which Richard Walsh was allowed to give testimony that the former running back’s football injuries caused problems with his problems with knees, back, shoulder and hands.

Is the claim self-defense, with White’s claim being that his disability should be part of the reasonable person analysis? If that’s the case, check out this excerpt from Hendrix v. State, 369 S.W.3d 93 (Mo.App. 2012):

‘Although Ransom was decided in the context of a civil claim of self-defense, its analysis of the ‘reasonable person’ standard is relevant to determining whether Hendrix’s medical records were relevant to his claim of self-defense….Hendrix’s medical records, if entered into evidence at trial, would have merely established that he suffered from degenerative joint disease in his knees. As Ransom indicated, a defendant’s ‘proclivities or propensities are irrelevant’ to the issue of whether the defendant acted as a ‘reasonable person.’…Williams was not ineffective for failing to present irrelevant evidence because it would have been inadmissible at trial….

Even if evidence of Hendrix’s disabilities would have been relevant and, therefore, admissible, Hendrix offered no evidence at the motion hearing to demonstrate that, had Williams entered Hendrix’s medical records detailing his degenerative joint disease, the jury would have acquitted Hendrix. The jury heard Paynter’s testimony that Hendrix wore knee braces, and the defense’s closing argument utilized Hendrix’s knee injuries to argue the relative size difference between Hendrix and Paynter. Despite the jury hearing that evidence and argument, it rejected Hendrix’s self-defense theory. Hendrix has not demonstrated that, had the medical records been admitted, there is a reasonable probability that he would have been found not guilty.’

Hendrix seems to stand for the proposition that some evidence of a defendant’s disabilities is admissible but that medical records are not. But, of course, those records were offered for a particular purpose which might well be different from the purpose at White’s trial. -CM

New and Improved Congress.gov – Resource Section.

27 Saturday Sep 2014

Posted by in Government

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Congress.gov: Removing the Beta Label and New Enhancements, by Andrew Weber, In Custodia Legis, Law Librarians of Congress

http://tinyurl.com/otfqt3s

The Library of Congress launched Congress.gov in beta two years ago. Today, I’m happy to announce we officially removed the beta label. That’s roughly three years quicker than Gmail took to remove its beta label, but we won’t give you the option of putting it back on Congress.gov. URLs that include beta. Congress.gov will be redirected to Congress.gov.

There are a range of new enhancements in this release. One of the exciting additions is a new Resources section. This section provides an A-to-Z list of hundreds of links related to Congress. If you are not sure where something is located, try looking through this list. I quickly jump through the list using Ctrl+F and searching. You can find the new Resources page in the navigation on the top right or in the footer on every page. . . .

Appellate Judge Explains How To Lose An Appeal – Works Every Time!

27 Saturday Sep 2014

Posted by in Appellate Writing, Bad Legal Writing, Brief Writing, Editing, Fonts, Footnotes, Legal Analysis, Legal Argument, Legal Writing, Legalese, Proofreading, Psychology, Readability

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The Wrong Stuff: How You Too Can…Lose Your Appeal, by Hon. Alex Kozinski, 1992 BYU L. Rev. 325, The Montana Lawyer, 23 Mont. Law 5 (Oct. 1997)

Webmaster’s note: This was originally presented as a lecture at Brigham Young University, J. Reuben Clark School of Law on January 21, 1992. It was later recycled as The Wrong Stuff, 1992 BYU L. Rev. 325. The lecture was repeated during the 1997 Montana State Bar Annual Meeting, and again recycled in the Montana Lawyer as How You Too… Can Lose Your Appeal (and you thought Judge Kozinski didn’t care about the environment!).

The BYU L. Rev. edition is available as a PDF scan. What follows is the Montana Lawyer edition.

[former link is broken – see new link below]

https://digitalcommons.law.byu.edu/cgi/viewcontent.cgi?article=1748&context=lawreview

 

When George Bousliman called a few months ago and invited me to come, I said, ‘What could I possibly talk about that would be of interest to members of the State Bar of Montana?’ He said, ‘The truth is, we don’t really care what you say; what we really want is a cover boy for The Montana Lawyer.’

Well, I have my pride. I want to be loved for my intellect, not just my face. So, I decided to talk on a totally irrelevant topic that I know a little something about: How to lose an appeal.

* * *

First, you want to tell the judges right up front that you have a rotten case. The best way to do this is to file a fat brief. So if the rules give you 50 *6 pages, ask for 75, 90, 125–the more the better. Even if you don’t get the extra pages, you will let the judges know you don’t have an argument capable of being presented in a simple, direct, persuasive fashion. Keep in mind that simple arguments are winning arguments; convoluted arguments are sleeping pills on paper.

But don’t just rely on the length of your brief to telegraph that you haven’t got much of a case. No. Try to come up with something that will annoy the judges, make it difficult for them to read what you have written and make them mistrust whatever they can read. Here are a few suggestions: Bind your brief so that it falls apart when the judge gets about half way through it. Or you could try a little trick recently used by a major law firm: Assemble your brief so that every other page reads upside down. This is likely to induce motion sickness and it’s always a fine idea to have the judge associate your argument with nausea. Also–this is a biggie–make sure your photocopier is low on toner or take a key and scratch the glass so it will put annoying lines on every page.

Best of all, cheat on the page limit. . . .

Philadelphia Legal Opinion on Duty to Preserve Social Media Evidence.

25 Thursday Sep 2014

Posted by in Admissibility, Authentication, Discovery, E-Discovery, Evidence, Litigation Hold, Metadata, Preservation, Social Media

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Lawyer’s Duty to Preserve Social Media Evidence, by Hayes Hunt and Jeffrey Monhait, From the Sidebar Blog

http://tinyurl.com/nn6tmor

Lawyers must take ‘appropriate’ steps to preserve their clients’ potentially relevant and discoverable social media evidence. That is the key take-away from an ethics opinion recently issued by the Philadelphia Bar Association. However, lawyers may advise a client to restrict access to the client’s social media so long as the attorney neither instructs nor permits the client to permanently destroy that information. An attorney may even instruct a client to delete information from the client’s page if the attorney preserves that information, including metadata.

You Can Hide, But You Must Preserve
Changing social media settings to ‘private’ merely restricts who may access a web page. The opposing party can still access relevant and discoverable information through discovery or by issuing a subpoena. The committee concluded that this position satisfied Rule 3.4’s prohibition against altering or destroying evidence. As long as the attorney preserves the complete evidentiary record, including metadata, an attorney may advise a client to restrict access to the client’s social media evidence, or remove social media content entirely.

You ‘Must’ Produce Complete Social Media Content
To comply with discovery requests, a lawyer ‘must’ produce the client’s complete social media content if the attorney is aware of this content’s existence. This duty arises from Rule 4.1, which prohibits attorneys from making ‘a false statement of material fact or law to a third person,’ and Rule 8.4, which prohibits ‘conduct involving dishonesty, fraud, deceit, or misrepresentation.’ A lawyer that purposefully omits portions of social media content, or permits or directs the client to destroy social media content, violates these rules.

Also, a lawyer must take reasonable steps to obtain relevant information from the client when the lawyer ‘reasonably believes’ that the client possesses relevant information, such as photographs, links, or other social media content. Despite being obligated to take reasonable steps, a lawyer need not obtain information that was neither in the client’s possession nor the lawyer’s possession.
Frankly, this isn’t groundbreaking or a new duty, it merely reinforces the need for lawyers to better understand social media for purposes of litigation.

Alimony Reform in New Jersey.

21 Sunday Sep 2014

Posted by in Family Law

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New Jersey Alimony Reform Is Here – What Does It All Mean? by Robert A. Epstein, NJ Family Legal Blog

http://tinyurl.com/mnofc5l

Change is finally here – On September 10, 2014, Governor Chris Christie signed into law substantial and significant amendments to New Jersey’s alimony law.  The law took immediate effect on that date.  I previously blogged about the now effective changes after the legislature passed the bill during the Summer, and we have prepared an Alert on the final bill that you can read here. . . .

Social Media in Law Office Marketing.

21 Sunday Sep 2014

Posted by in Law Firm Web Sites, Law Office Management, Legal Blogs, Marketing, Technology, Using Social Media

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SEO and Social Media, by Lisa Pansini, Legal Productivity Blog

http://tinyurl.com/nuj2nwp

SEO has always been about one thing: publishing high-quality content that gets seen and linked to by as many people as possible. For years, the foundation of SEO (Search Engine Optimization) has been dominated by two key elements: content and links.

Today’s online society has given rise to a third: social media. It wasn’t around during the dawn of the SEO industry, but it’s difficult to ignore the power and importance that social media has in any marketing strategy.

Social Media does more than allow companies to keep up with their competition. It allows them to reach out and interact with their customers while building their brand, creating a sense of community, and driving traffic to their website.

When it comes to social media, however, there is no ‘one size fits all’ rule. . . .

Puppy Law Students Are So Cute When They’re Little.

20 Saturday Sep 2014

Posted by in Recent Links and Articles

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Shut Up Everybody, New 1L Is Going to Explain How Smart He Is, by Joe Patrice, Above The Law Blog

http://tinyurl.com/ll2p24f

We’ve all have run into them, regardless of whether the person is a 1L or paralegal student. Thankfully, this stage is often temporary. In some cases, unfortunately, the condition is permanent. -CCE

Pack it in everybody! Mere days into the new year, there’s a 1L out there who has the ‘law’ all figured out. He can isolate the relevant aspects of a case at first glance and his agile mind can dismiss a flawed reading with ease. He’s so prepared that he’s already talking smack about law school graduates. And he did it all on Facebook so we can see how smart he is. We are truly living in blessed times. He will restore balance to the law!

Now, some naysayers would suggest that a 1L a few days into their law school career has no place calling out the work of those who’ve come before as irrelevant and untrue. That perhaps singling out by name a law school graduate and questioning his legal acumen was excessive for a mere pup. Ignore those voices. You can’t silence genius like this. . . .

Hearsay Rule Affects Texas State-of-Mind Exception – Or Does It?

20 Saturday Sep 2014

Posted by in Appellate Law, Evidence, Rule 803 Exception, Texas Supreme Court

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Back to the Future: Court of Appeals of Texas Finds State of Mind Exception Inapplicable in Duress Case, by Editor Colin Miller, Evidence ProfBlogger, EvidenceProf Blog

http://tinyurl.com/l2qfnap

Similar to its federal counterpart, Texas Rule of Evidence 803(3) provides an exception to the rule of hearsay for:

A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.

As I always tell my students, Rule 803(3) covers statements concerning present feelings of future intentions but not past events. So where did that leave the defendant in Cogdill v. State, 2014 WL 4627579 (Tex.App.-San Antonio 2014)?

In Cogdill, Nico Allen–Antoni Cogdill was charged with capital murder. At trial, Cogdill raised a duress defense, claiming that he and Isaac Milne killed the victim because Jeremy “Bounce” Bukowski threatened them with a shotgun. To prove this claim, Cogdill sought to have Bukowski’s cellmate testify that:

Mr. Bukowski told me that the night that—that all three of them, they went out to the—to the guy’s house. He said that—that at first he had told Mr. Cogdill and Mr. Isaac Milne that it was just to go out there to rob the guy of some laptops, some computer software, and some musical instruments and stuff. He said whenever they got there he said—he said the guy that they went to rob used to be an old roommate of his and said that he told them that the guy was a convicted pedophilier (sic), and whenever they got out there he pulled a shotgun from his trunk, he held it on Mr. Cogdill and Mr. Milne and forced them to proceed with the—with the murder.

Cogdill claimed that this statement was admissible under Rule 803(3), but the trial court disagreed. On appeal, Cogdill repeated his argument, but the Court of Appeals rejected his claim, concluding:

First, we disagree with Cogdill’s interpretation of Bukowski’s statement. The statements allegedly made by Bukowski are merely a rendition of the events that took place on the night of the murder, i.e., out-of-court statements of events that occurred, and as such are hearsay and not admissible under Rule 803(3). . . . Second, numerous courts have held that for the exception set forth in Rule 803(3) to apply, the statement must relate to future, not past, conduct.

I agree with the court’s conclusion but wonder whether Cogdill also raised Texas Rule of Evidence 803(24), which provides an exception to the rule against hearsay for :

A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, or to make the declarant an object of hatred, ridicule, or disgrace, that a reasonable person in declarant’s position would not have made the statement unless believing it to be true. In criminal cases, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

The opinion doesn’t reference this Rule, but threatening someone with a shotgun to kill someone would certainly qualify as a statement against interest under the Rule, assuming that there were corroborating circumstances. And, unlike its federal counterpart, Texas’ statement against interest rule does not require that the declatant be unavailable.

-CM

Log In With Your Thumb – Now There’s An App For That.

20 Saturday Sep 2014

Posted by in Apple, Apps, Cybersecurity, iPad, iPhones, Legal Technology, Mac, Passwords

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App of the Week: 1Password – Login to Apps and Sites with Your Thumb, by Tim Baran, Legal Productivity Blog

http://tinyurl.com/kw24hjs

Everyone should be using a password manager. It provides a strong, unique password for each online account and keeps them all in a secure, encrypted, yet quickly accessible place. Our favorite, 1Password, just got even better.

Here are three of the many new enhancements:

  • Login to Apps – Use 1Password to log into a growing list of your favorite apps and even update your passwords—all with just a tap!
  • Login to sites in Safari browser on your iPhone – You can now fill 1Password Logins directly within Safari.
  • Unlock with your thumb – After unlocking with your Master Password, get back into your vault in 1Password, Safari, and your favorite apps with just your thumb on devices with Touch ID. Check Settings > Security to learn how this works and pick your auto-lock time.

And, for the first time, 1Password is free for iOS devices.

I’ve used 1Password for a couple of years on my desktop, phone and iPad, and it’s quickly become indispensable. And, it keeps getting better!

Trial Tips For Paralegals.

20 Saturday Sep 2014

Posted by in Exhibits, Paralegals/Legal Assistants, Trial Notebooks, Trial Tips and Techniques

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A Paralegal’s Guide to Preparing for a Civil Trial, by Betsy Horn, CLA, Texas Paralegal Journal (Summer 1997), ©1997 Legal Assistants Division, State Bar of Texas

http://txpd.org/TPJ/08/horn.html

Do not let the date give you the notion that there’s nothing here worth your attention. Ms. Horn’s article and checklist is invaluable for any paralegal preparing for, or assisting, at trial. Although trial technology and the tools you use may have changed, the common sense and advice in this article is just as true today as in 1997.

Regardless of whether you live in Texas, please don’t ignore the Texas Paralegal Journal. As you can see, it’s been going strong for a long time. I strongly recommend that you look at the Journal’s web page, http://txpd.org/TPJ/75/default.asp. Now that you’ve found it, stay a while. Click on TLJ Online. There is a wealth of information there, just waiting to be plucked. -CCE

CaseManager iPad App – Fast, Inexpensive, And Highly Recommended.

17 Wednesday Sep 2014

Posted by in Apple, Apps, Calendar/Docketing, iPad, Law Office Management, Legal Technology, Technology

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CaseManager — Manage Your Legal Practice On Your iPhone or iPad, by Jeff Richardson, iPhone J.D.

 http://www.iphonejd.com/iphone_jd/2014/09/sponsor-casemanager.html

iPads are very popular, but not all attorneys use them to their full potential. This app sounds great. I would like to hear more from those who use it. -CCE

[C]aseManager was created by New York civil rights attorney John Upton as a fast and inexpensive solution for sole practitioners and attorneys with small firms who want to use mobile devices to manage their law practice. The app debuted in 2011, and I discussed the app in August of 2012 and January of 2014. However, the app recently received a major update to version 6.0, when the interface was revised to match the aesthetic of iOS 7 and the upcoming iOS 8. CaseManager is a beautifully designed and useful app for keeping track of all of the key information in your cases:  events, tasks, contacts, time and expenses, plus the facts, notes and documents unique to each case. 

The basic organization of the app is the same as before, but now in version 6, when you launch the app the first thing you see is the calendar entries for today, so you know immediately what is ahead of you. . . .

[Emphasis added.]

 

Insurers Using Generic Drugs To Shift Costs To Sick?

17 Wednesday Sep 2014

Posted by in Affordable Care Act, Drug Promotion, Health Care Benefits, Health Law, Health Reform

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A New Way Insurers are Shifting Costs to the Sick, by Charles Ornstein, ProPublica (This story was co-published with The New York Times’ The Upshot.)

http://tinyurl.com/kaaelvg

By charging higher prices for generic drugs that treat certain illness, health insurers may be violating the spirit of the Affordable Care Act, which bans discrimination against those with pre-existing conditions.

Health insurance companies are no longer allowed to turn away patients because of their pre-existing conditions or charge them more because of those conditions. But some health policy experts say insurers may be doing so in a more subtle way: by forcing people with a variety of illnesses — including Parkinson’s disease, diabetes and epilepsy — to pay more for their drugs.

Insurers have long tried to steer their members away from more expensive brand name drugs, labeling them as ‘non-preferred’ and charging higher co-payments. But according to an editorial published Wednesday in the American Journal of Managed Care, several prominent health plans have taken it a step further, applying that same concept even to generic drugs.

The Affordable Care Act bans insurance companies from discriminating against patients with health problems, but that hasn’t stopped them from seeking new and creative ways to shift costs to consumers. In the process, the plans effectively may be rendering a variety of ailments ‘non-preferred,’ according to the editorial.

‘It is sometimes argued that patients should have ‘skin in the game’ to motivate them to become more prudent consumers,’ the editorial says. ‘One must ask, however, what sort of consumer behavior is encouraged when all generic medicines for particular diseases are ‘non-preferred’ and subject to higher co-pays.’ . . .

Adverse Witness Direct and Cross-Examination Tips.

16 Tuesday Sep 2014

Posted by in Cross-Examination, Direct Examination, Trial Tips and Techniques, Witnesses

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Flip the Order of Your Adverse Witness Preparation, by Dr. Ken Broda-Bahm, Persuasive Litigator Blog

 http://tinyurl.com/mhz8fes

Excellent related articles at the end of Dr. Broda-Bahm’s post. -CCE

 Let’s say that in trial, your witness will be called adverse and will go through the other side’s cross-examination before getting a chance at your direct.[1]  But in your preparation sessions, you should still take them through your direct examination first. That’s what I call the ‘flipped’ order, and in this post, I aim to make the case for this as the better approach. . . .

Judge Posner Writes A Form Collections Letter.

16 Tuesday Sep 2014

Posted by in Consumer Law, Debt Collection, Legal Writing

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Judge Posner’s Collections Letter Template, by Megan E. Boyd, Lady (Legal) Lawyer Blog

http://ladylegalwriter.blogspot.com/2014/05/technical-difficulties.html

Courts don’t often help lawyers out by providing templates, but Judge Posner’s opinion in Bartlett v. Heibl, 128 F.3d 497 (7th Cir. 1997) offers a form letter for those seeking to collect certain consumer debts. . . .

Wait! Don’t Click On That Link!

16 Tuesday Sep 2014

Posted by in Computer Virus, Cybersecurity, Emails, Legal Technology, Malware, Trojans

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Three Warning Signs That Email Is Malicious, by Ian Paul, PC World

http://tinyurl.com/lsjgxv7

Email spam filtering is far better than it used to be. There was a time when nearly every scam email would land in your inbox. Thankfully that’s not the case anymore—especially if you’re a Gmail user.

But no system is perfect. Every now and then a scam message will manage to slip into your inbox. But how do you know when you’re looking at a scam or not?

Here are three basic tip-offs you can look for to figure out whether you’re looking at an email with dishonest intentions. They’re hardly an exhaustive list, but more often than not one of these tips will save you from getting suckered. . . .

Must Read Top Paralegal Blogs in 2014.

14 Sunday Sep 2014

Posted by in Education, Ethics, National Exams, Paralegals/Legal Assistants, Professional Organizations

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14 Blogs Paralegal Students Need to Read, by Jess Mansour Scherman, Ramussen College

(*Editor’s note: This article was originally published on Dec. 10, 2010. It has since been updated to reflect information relevant to 2014.)

 http://tinyurl.com/lbg5mtz

My sincere thanks to Ms. Scherman for including this blog in her list. -CCE

 You’ve likely discovered by now that there’s a lot that goes into keeping up with the pulse of a thriving career. From researching different paralegal programs to discovering leads for potential jobs—not to mention a host of obligations outside of your career like caring for your children and getting the bills paid on time—your slate probably feels pretty full right about now.

So how can you be sure to uncover the rest of that coveted industry info that you haven’t yet tapped into? Don’t worry—there are plenty of industry pros who have created an array of paralegal blogs with people like you in mind!

It can be difficult, though, to find what you’re looking for with thousands of paralegal blogs at your fingertips. To save you the trouble, we narrowed it down to a must-read list. So sit back and let some industry professionals teach you everything from résumé tips to how to locate that perfect paralegal job.

Let us introduce you to the 14 paralegal blogs you can’t miss in 2014….

When Your Witness Goes Rogue.

14 Sunday Sep 2014

Posted by in Trial Tips and Techniques, Witness Preparation, Witnesses

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Why Didn’t My Witness Do What I Told Him To Do During Witness Preparation?, by Robert Gerchen, Senior Consultant, Litigation Insights

http://tinyurl.com/kvh62we

Boy, have I been there. After spending hours to convince a Vice President of Human Relations that, no, his idea of “explaining” to the case to the jury was a bad idea, of course, that is exactly what he did. It was like a nightmare in slow motion. –CCE

It’s a universal experience. Nearly every attorney who has ever sat down for witness preparation before a deposition, or before trial, to provide clear instructions and guidelines about what to say/not say, or what to do/not do, has at some point found himself asking:

“Why didn’t s/he listen to me?!” . . . .

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Bad Stipulations To E-Discovery – Just Don’t.

11 Thursday Sep 2014

Posted by in Discovery, E-Discovery, Legal Technology, Requests for Production

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Don’t Stipulate to Not Follow the Form of Production Rules, by Joshua Gilliland, Esq., Bow Tie Law Blog

 http://tinyurl.com/kxr9gt5

Here is my advice: NEVER agree to a stipulation to produce native files when “it is more practical to do so” and agree to productions in PAPER, PDF’s, or TIFFs. Melian Labs v. Triology LLC, 2014 U.S. Dist. LEXIS 124343 (N.D. Cal.Sept. 4, 2014).

That is what happened in Melian Labs v. Triology LLC. It reads like a personal Sum of All Fears for anyone who has spent years working with ESI, because the Court denied motions to compel email and spreadsheets in native files with metadata, because of the parties’ Rule 26(f) stipulation. . . .

Valuable Life Lessons in 12 Speeches.

11 Thursday Sep 2014

Posted by in Law Office Management, Management

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12 Greatest Speeches That Will Teach You The Most Valuable Life Lessons, by Jospeh Hindy, @Lifehack

http://tinyurl.com/nfpdb6d

The most valuable thing an experience person has is their experience. People make mistakes, learn from them, and adapt their life around them to become better people. Those people would then tell tales to others to help teach those lessons so that others would not have to make the same mistakes. People still tell these stories today but in a slightly different format. These days people use speeches to express their experiences. Here are some valuable life lessons you can learn from some of the greatest speeches. . . .

Cool Evernote Tips, Tricks, and Q&A.

11 Thursday Sep 2014

Posted by in Evernote, Legal Technology

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The Evernote Q&A, Tips & Tricks Thread, by Sam Glover, Editor, The Lawyerist Lab Blog

http://tinyurl.com/jwrchn8

This thread is for questions and answers about Evernote, and for sharing your favorite tips and tricks.

You can also browse posts about Evernote on Lawyerist, and here is the old Evernote thread in the Lab.

Legal Edge From JD Supra – App Of The Week.

06 Saturday Sep 2014

Posted by in Apple, Apps, Cell Phones, iPad, iPhones, Law Office Management, Legal Technology, Technology

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App of the Week: Legal Edge- Stay Up-To-Date on Legal Developments, by Lisa Pansini, Legal Productivity Blog

This app is free – at least for now. -CCE

http://tinyurl.com/k9smzoh

In the business of law, it’s extremely important to stay on top of the latest legal developments. With Legal Edge from JD Supra, you can do just that.

Legal Edge allows you to stay up to date with the latest legal news via updates, alerts, and case filings from the nation’s legal professionals. With this app, you’ll receive a daily stream of articles, briefs, and newsletters on all areas of law. It also includes court filings from notable and newsworthy cases.

Through Legal Edge, you can browse information by industry, profession or topic of interest. You can also contact lawyers or firms directly through your iPhone with any comments or questions you may have about certain documents (this feature is only available for documents posted by JD Supra premium account holders).

The app was recently updated to include informative videos and a save/view functionality which allows you to view documents offline. All that is required is an app that supports PDF viewing on your devices (such as iBooks).

You can rest easy knowing that the content on Legal Edge is provided by Amlaw 100 law firms, attorneys, and other legal organizations and professionals.

Currently, Legal Edge is free and is only available for iOS devices. You can download it today from the Apple App Store.