Monthly Archives: February 2015

Formatting for Persuasive Legal Writing Makes A Difference.

28 Saturday Feb 2015

Posted by in Citations, Court Rules, Courts, Legal Technology, Legal Writing, Local Rules, Readability, Style Manuals

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Paragraphs and Indentation Formatting for Persuasive Writing, by Collin Walke, Vol. 86 OBJ No. 5 (2014).

http://www.okbar.org/members/BarJournal/archive2015/FebArchive15/OBJ8605Walke.aspx

Contrary to that pesky little voice in your head at this very moment, formatting is not a boring topic and is absolutely critical when writing a legal brief. Aside from the technical rule requirements for formatting briefs, which will be discussed in greater detail below, formatting is essential for persuasion. One of the best legal writers I have ever had the privilege of working with has a paperweight on his desk that reads: ‘Good writing is clear thinking made visible.’ Without good formatting, quality content will be lost in the mire of facts, law and argument.

The point of this article is to outline what good formatting looks like. First, the brief must be written in accordance with the formatting rules of your particular court. A brief for the district court of Oklahoma County will look different from a brief for the Western District of Oklahoma. Second, the format of the brief must be laid out so that it assists the reader in understanding your position. Finally, your format should match the needs of the particular brief. . . .

[Emphasis added.] Continue reading →

What A Judge Needs To Give You What You Want.

27 Friday Feb 2015

Posted by in Brief Writing, Judges, Legal Analysis, Legal Argument, Legal Writing, Motions, Plain Language, Readability, Statement of Facts, Summary of the Argument

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Effective Legal Writing: One Judge’s Perspective, by Retired Judge Wayne Alley, originally published in the Oklahoma Bar Journal, Feb. 14, 2015– Vol. 86, No. 5.

http://www.okbar.org/members/BarJournal/archive2015/FebArchive15/OBJ8605Alley.aspx

This is one of the best articles I have read on how to write to win your case. Judge Alley tells you exactly what a judge wants to read in your brief. So put yourself in the judge’s shoes, and imagine that you’re reading yet another brief at the end of a long day at the end of an extremely long week.

Here you will find what a judge needs to give you what you want. -CCE

What does a judge want in writings (motions, briefs, applications, reports, proposed orders) filed in his or her cases? There is an easy answer; the judge wants an easy out. The judge wants a clear, simple, substantiated solution to the problem at hand — a solution with which he is comfortable. To this end, consider the following suggestions.

Tell the judge why. Except for uncontested applications, such as for extensions of time, both sides typically submit persuasive statutes, cases and secondary authorities in support of their respective positions. Not many positions are “slam dunks.” The judge needs to be educated not merely that the respective authorities are out there, but why one set of authorities leads to a better result than the other. The judge shouldn’t have to figure it out for him or herself. . . .

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A Classic — “The Becky Klemt Letter.”

25 Wednesday Feb 2015

Posted by in Humor

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The Becky Klemt Letter, published in Law And Disorder, Legal Assistants Division State Bar of Texas ©1999

http://www.txpd.org/TPJ/18/law_disorder.htm

If you have been around long enough, my bet is that you will recognize this right away. If not, then enjoy. It’s a classic.  -CCE

Becky Klemt is a lawyer in Laramie, WY (with the five-person firm of Pence & MacMillan). On Aug. 17, 1988, she wrote a letter. It was only one letter—’just one funny letter’ as Becky describes it. But these are the ‘reviews’ of The Becky Klemt Letter, by various lawyers, judges and clients, as quoted in an article in The Wall Street Journal (Sept. 6, 1990) ‘A Lady Lawyer in Laramie Writes A Landmark Letter’:

‘Hilarious’. . . ‘a masterpiece’. . .’ a jewel’. . . ‘brutal’. . . ‘skewers the pretentiousness of big-city lawyering with incomparable wit’. . . ‘the pot-shot heard round the world’. . . the ‘most photocopied letter in legal history’. . . ‘the best writing (ever done) on legal stationery.’

Tom Scott of Midland (Bullock, Scott, etc.) got copies of the letters from Becky after reading The Wall Street Journal article and—since The Letter was not printed in that article—suggested that it be published in full in this column. So here it is, together with two other letters which set the scene for The Becky Klemt Letter. . . .

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Why Circuit Courts Reassign Cases To Different District Judges On Remand.

24 Tuesday Feb 2015

Posted by in Appellate Judges, Civil Procedure, Court Orders, Federal Civil Procedure, Federal Judges, Judges

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Standards For Reassignment To A Different Judge On Remand, by Raymond P. Ward, Louisiana Civil Appeals

http://raymondpward.typepad.com/la-appellate/2015/02/standards-for-reassignment.html

In U.S. ex rel. Little v. Shell Exploration & Production Co., 14-20156 (5th Cir. Feb. 23, 2015) (unpublished), the Fifth Circuit not only reversed a summary judgment, but also ordered that, on remand, the case be reassigned to a different district judge. Why? Here is the sequence of events in a nutshell:

  1.  The district court rendered summary judgment in defendants’ favor.
  2.  On appeal, the Fifth Circuit reversed, holding that the district court applied the wrong legal standard. The Fifth Circuit remanded with instructions for the district court to apply the correct legal standard.
  3.  A year later, the district court again rendered summary judgment in defendants’ favor, apparently applying the same legal standard that the Fifth Circuit had rejected. The Fifth Circuit concluded that, in rendering this judgment, the district court disregarded the Fifth Circuit’s instructions on remand.

Starting at page 25, the decision includes a survey of case law enunciating various standards applied by circuit courts in deciding whether to reassign a case to a different judge on remand. So this decision is worth tucking away for future reference in case you ever find yourself in need of similar relief.

I Have A Little List . . . .

23 Monday Feb 2015

Posted by in Law Office Management, Management, Marketing, Office Procedures, Time Management

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40 Essential Rules Of Client Management (Collected Over 10 Years), by Matthew Stibbe, Bad Language Blog

http://tinyurl.com/kuovcje

For the last decade, I’ve been compiling a list of ‘rules’ for client management based on very personal, subjective reactions to things that happened to me, mainly in the business world. I was partly inspired by NASA’s 100 rules for project managers.

I always meant it to be very personal and some of the rules relate to very specific things that happened to me. But I realised that with proper scrubbing it might be interesting for you too. . . .

Arbitration Panel Makes Come Back, Giving Lance Armstrong $10 Million Bench Slap.

22 Sunday Feb 2015

Posted by in Arbitration, Functus Officio Doctrine

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Lessons From Lance Armstrong About the Finality of Arbitration Awards, by Liz Kramer, Arbitration Nation Blog (with hat tip to Karl Bayer, Disputing Blog)

http://tinyurl.com/ngquns4

On February 4, an arbitration panel ordered Lance Armstrong to pay $10 million to his former promotions company, SCA, as a result of his ‘unparalleled pageant of international perjury, fraud and conspiracy’ that covered up his use of performance-enhancing drugs. (Read the NYT story about it here.) What is curious about the award, from an arbitration law standpoint, is that SCA essentially re-opened an arbitration that it had lost with Armstrong in 2005 to obtain this new award.

The general rule of thumb is that arbitrators lose jurisdiction once they issue the final award. Other than the short period within which parties may request that arbitrators correct a clerical or computational error under the arbitral rules (AAA gives 20 days; JAMS gives only 7), the arbitrators turn into pumpkins for all practical purposes after the final award is issued. The arbitral rules do not have any equivalent to Rule 60, which in state and federal courts allows a judge to re-do a judgment or order based on newly discovered evidence, fraud, or mistake. (But even Rule 60 sets a deadline of one year after the judgment is entered to request that the judgment be vacated…)

There is even a fancy Latin name for the reason that arbitrators turn into pumpkins after they issue final awards: functus officio. The policy is that arbitration awards are supposed to bring finality, and we wouldn’t want arbitrators revisiting awards based on improper or ex parte information. However, one of my favorite arbitration resources, Domke on Arbitration, suggests that there are now so many exceptions to the functus officio doctrine that they just about swallow the rule. Courts have allowed arbitrators to revisit their awards to correct mistakes, to rule on an issue that was submitted but not decided, to clarify an ambiguity, and always, if the parties contractually authorize the same panel to hear a new issue.

That last exception explains how the SCA got a second bite at its arbitration with Armstrong. . . .

Continue reading →

Teensy Change To Rule 41 Would Change Scope of Technology Search Warrants.

22 Sunday Feb 2015

Posted by in Computer Forensics, Criminal Law, Cybersecurity, Federal Rules of Criminal Procedure, Law Enforcement, Legal Technology, PC Computers, Rule 41, Search Warrants

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Small Rule Change That Could Give the U.S. Government Sweeping New Warrant Power, posted by Richard Salgado, Legal Director, Law Enforcement and Information Security, by Sabrina I Pacifici, BeSpacific Blog

http://www.bespacific.com/small-rule-change-give-u-s-government-sweeping-new-warrant-power/

‘At the request of the Department of Justice, a little-known body — the Advisory Committee on the Rules of Criminal Procedure — is proposing a significant change to procedural rules that could have profound implications for the privacy rights and security interests of everyone who uses the Internet. Last week, Google filed comments opposing this change. It starts with the Federal Rule of Criminal Procedure 41, an arcane but important procedural rule on the issuance of search warrants. Today, Rule 41 prohibits a federal judge from issuing a search warrant outside of the judge’s district, with some exceptions. The Advisory Committee’s proposed change would significantly expand those exceptions in cases involving computers and networks. The proposed change would allow the U.S. government to obtain a warrant to conduct ‘remote access’ searches of electronic storage media if the physical location of the media is ‘concealed through technological means,’ or to facilitate botnet investigations in certain circumstances. The implications of this expansion of warrant power are significant, and are better addressed by Congress. First, in setting aside the traditional limits under Rule 41, the proposed amendment would likely end up being used by U.S. authorities to directly search computers and devices around the world. Even if the intent of the proposed change is to permit U.S. authorities to obtain a warrant to directly access and retrieve data only from computers and devices within the U.S., there is nothing in the proposed change to Rule 41 that would prevent access to computers and devices worldwide. The U.S. has many diplomatic arrangements in place with other countries to cooperate in investigations that cross national borders, including Mutual Legal Assistance Treaties (MLATs). Google supports ongoing efforts to improve cooperation among governments, and we are concerned that the proposed change to Rule 41 could undermine those efforts. The significant foreign relations issues associated with the proposed change to Rule 41 should be addressed by Congress and the President, not the Advisory Committee.’

iAnnotate App For iPad — Annotate And Manage With Lots of Tools!

22 Sunday Feb 2015

Posted by in Apps, iPad, Legal Technology

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iPad App: iAnnotate – A Powerful PDF Tool for Lawyers, by Travis Francis, Legal Productivity

http://tinyurl.com/mgzommq

iAnnotate is a powerful document mark-up and management app that allows users to annotate, manage and share PDF, DOC, PPT and image files.

With iAnnotate, documents can be synced and imported from Box, Dropbox, Google Drive, Microsoft SkyDrive or WebDAV, and other iOS apps.

Once downloaded, the app includes numerous annotation tools including pen, highlighter, typewriter, stamp, straight-line, note, underline, strikeout, photo, voice recording, and date stamp. Locating these tools is easy and you can even customize the toolbar to include your most-used tools.

Users are also given the option of saving and syncing their annotations to either the original document or to a copy of the document.

The $9.99 iAnnotate iPad App (also available for Android devices) is particularly useful for lawyers. Jeff Richardson over at iPhone JD notes:

“All federal court pleadings on PACER are in PDF format and many state courts are moving to PDF electronic documents, other counsel frequently send me files in PDF format, when I do legal research I download the cases in PDF format, exhibits are in PDF format…[and iAnnotate] seems to be the most powerful and sophisticated app that I’ve seen for working with PDF files on the iPad.”

Check out also, Using iAnnotate to Review Court Decisions on your iPad: A paperless way to highlight text and take notes, then email or upload into Dropbox.

If you are looking for a powerful, comprehensive tool to annotate and review documents while on the go, iAnnotate is definitely worth the try.

Google Now Voice Commands for Android Phones.

22 Sunday Feb 2015

Posted by in Android Phones, Apps, Legal Technology, Recent Links and Articles

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Updated 20/20/15 – A List of All The Google Now Voice Commands, by Jason Cross, greenbot blog

http://tinyurl.com/qbncg4e

You pick up your phone and say ‘OK Google’… and then what? Your phone is listening. The microphone icon is pulsing. What do you say to your phone? What can you say to it? Google Now’s voice function has become surprisingly robust over the years.

Here’s a list of just about everything you can say to Google Now. Try experimenting with different phrasing, you’ll be surprised how much it understands. The part of the phrase in [brackets] can be replaced with any similar term you choose.

If Google Now doesn’t get your spoken commands right, you can correct it by saying ‘No, I said…’ and trying the phrase again. . . .

Continue reading →

Seat Belt Use Evidence Now Admissible In Texas.

19 Thursday Feb 2015

Posted by in Admissibility, Authentication, Damages, Discovery, Evidence, Motor Vehicle, Negligence, Personal Injury, Product Liability, Relevance, Torts, Wrongful Death

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TX: Evidence of Seat Belt Non-Use is Admissible to Apportion Responsibility, by Christopher J. Robinette, Torts Prof Blog (with hat tip to Jill Lens (Baylor)!)

http://tinyurl.com/kmbeph9

For years, evidence of seat belt use was prohibited at trial. The Texas Supreme Court changed that rule of law with this case. This ruling will have a major impact on this area of the law. -CCE

The Texas Supreme Court case, which was announced on Friday, is Nabors Wells Services, Ltd. v. Romero. The case (pdf) is here:  Download TX Sup Ct = Seat Belt Admiss  From the opinion:

We hold relevant evidence of use or nonuse of seat belts, and relevant evidence of a plaintiff’s pre-occurrence, injury-causing conduct generally, is admissible for the purpose of apportioning responsibility under our proportionate-responsibility statute, provided that the plaintiff’s conduct caused or was a cause of his damages.

How “Readable” Is Your Writing?

19 Thursday Feb 2015

Posted by in Editing, Legal Writing, Plain Language, Proofreading, Readability, Spell Checking

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Check Your Language Level, by Dr. Ken Broda-Bahm, Persuasive Litigator Blog

http://www.persuasivelitigator.com/2015/02/check-your-language-level.html

Dr. Brada-Bahm makes a good point. Our job is to be understood, regardless of the method of communication. There is, however, an easy way to check your document’s readability statistics if you use Microsoft Word.  

To set readability statistics for in Word, click on “Options,” then “Proofing.” Scroll down to “When correcting spelling and grammar in Word.” Check the box for “Show readability statistics.” Afterwards, when you run a spell check on any Word document, it will show the readability statistics for your document. -CCE

The image of the trial lawyer that comes closest to our ideal might involve the advocate standing in front of the jury or the bench, waxing eloquent in oral argument. But the reality is that, even for lawyers who get to trial frequently, they’re writing more often than they’re speaking. Before, after, and often instead of those opportunities for oral persuasion, they are drafting briefs, motions, and memos. As attorneys get used to that written style, it can become difficult to gauge how comprehensible they are. You think you’re being perfectly clear — and you are, to you — but you may have lost track of how much work is falling on the reader. There is, however, a tool that can help, and lawyers should be aware of it. Contently, the content-marketing blog, writes about ‘reading level analysis‘ as a free online service you can use in order to test whether you’re writing at, say, a 5th, 9th or 12th grade reading level. The test itself is easy. You simply navigate to the ‘readability-score‘ site, paste any text you want into the window, or upload a file if it is in pdf, or paste in a URL if the text is already online. Then, click ‘calculate score’ and you instantly get a ‘reading ease’ number that varies between 0 (most difficult) and 100 (easiest), along with a more understandable identification of the grade-level that you are writing at. . . .

Continue reading →

10th Circuit Uses Sentence Diagramming To Decipher Federal Gun Statute.

19 Thursday Feb 2015

Posted by in 10th Circuit Court of Appeals, Bad Legal Writing, Legal Writing, Readability, Statutory Interpretation

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The Tenth Circuit Applies The Art of Sentence Diagramming, by Judith D. Fischer, Legal Writing Prof Blog (with hat tip to Brian Glassman!)

http://lawprofessors.typepad.com/legalwriting/2015/02/the-art-of-sentence-diagramming-helps-a-court.html

he Tenth Circuit recently interpreted a statute so confusing that the court decided to diagram some of its language. In United States v. Rentz, the court observed that ‘Few statutes have proven as enigmatic as 18 U.S.C. §24(c),’ which concerns crimes committed while using a firearm. Puzzling over what the statute’s modifiers mean, the court used the same device some of us learned in grade school—setting out a clear diagram of how words relate to one another grammatically. The court thus reached enough clarity to affirm the district court’s decision. Still, the court stated, ‘Even now plenty of hard questions [about the statute’s meaning] remain.’

My conclusions: 1) The art of diagramming sentences should be revived, and 2) Congress should focus more on clear drafting.

Which Party Bears The Responsibility For The High Cost of Litigation? Plaintiff or Defendant?

18 Wednesday Feb 2015

Posted by in Intellectual Property, Litigation, Patent Law

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Who Is To Blame For High Litigation Costs: Plaintiffs For Filing The Lawsuits Or Defendants For Refusing To Deal And Instead Fighting?, by Dennis Crouch, PatentlyO Blog

http://tinyurl.com/l7peu4h

The recent WSJ op-ed by John Chambers (CEO Cisco) and Myron Ullman (CEO JCPenny) is interesting, but largely not compelling. What the article does do is indicate that patent lawsuits is the avenue being by non-practicing patent holders and it is pretty clear that manufacturers and retailers would be better off (at least in the short term) without being charged with patent infringement. The core of their argument is here:

A 2012 study by Boston University researchers estimated that companies spent upward of $29 billion a year defending patent lawsuits, and the problem has not let up. According to RPX Corp., more than 3,600 companies and named defendants were sued by so-called patent-assertion entities in 2014, triple the number in 2006. Patent-assertion entities—aka non-practicing entities, or as some would call them, trolls—that own patents but do not make products or sell services based on them file more than 60% of patent litigation in the U.S.

A civil lawsuit generally comes about based upon a failure of the parties to negotiate a just solution. Of course, for any given lawsuit, we don’t know beforehand whether it is the plaintiff or the defendant who is being more unreasonable.

The op-ed suggests that the plaintiffs are to blame for filing the lawsuits, but there is also a strongly compelling case for arguing that the defendants are to blame for refusing to deal and instead fighting every lawsuit tooth-and-nail. When reach a point where out-of-litigation resolutions are rare, we should recognize that it is a systemic problem. And, at this point – where the primary complaint is high litigation costs – the solution is not to favor one side or the other, but instead to look for systemic changes that substantially decrease the cost of resolution.

Gene Quinn provides his take on the op-ed at IP Watchdog.

“Know All Men By These Presents” — Who’s Getting All The Gifts?

17 Tuesday Feb 2015

Posted by in Bad Legal Writing, Boilerplate Forms, Boilerplate Forms, Contract Law, Legal Writing, Legalese

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Presents? Thank You Very — Oh, by Raymond Ward, the (new) legal writer blog

http://raymondpward.typepad.com/newlegalwriter/2012/01/presents-thank-you-very-oh.html

Every time I see the silly phrase ‘Know all men by these presents,’ I think of Christmas. Perhaps a statement the Magi wanted to make about their presents for the Christ child. Nevertheless, I’m no expert on drafting contracts: on that subject, I defer to Ken Adams, who riffs on the silly phrase in this post.

Can I get a witnesseth?

At Depositions, Ask the Witness To Show, Not Tell.

16 Monday Feb 2015

Posted by in Depositions, Discovery, Evidence, Transcripts, Trial Tips and Techniques, Witness Preparation, Witnesses

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Impeach Witnesses by Creating an Effective Record at Depositions, by Elliott Wilcox, Trial Theater©

http://trialtheater.com/trial-skills/cross-examination/impeach-witnesses-by-creating-an-effective-record-at-depositions/

The depositions were taking longer than expected, and they were some of the most boring depos I’ve ever attended. As we approached 3 o’clock, I could barely keep my eyes open. Luckily, closing my eyes for a brief moment helped me see what the deposition transcript would look like, and pointed out the difference between talking to the witness and talking to the record. Take a look at two sample questions that were asked:

“This blood here, is that from this general area here, or is that from another area?”

“Is this photograph here a photograph of this area here?”

Huh? Do you have any idea what they’re talking about? Do you know where the blood is? Neither will they when the attorney if she tries to impeach the witness using this deposition during trial. . . .

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Impose An Obligation On Someone To Control Something They Can’t Really Control – What’s The Point?

16 Monday Feb 2015

Posted by in Breach, Contract Law, Intentional Promise, Performance

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A Reminder About “Shall Cause,” by Ken Adams, Adams On Contract Drafting

http://www.adamsdrafting.com/a-reminder-about-shall-cause/

Reed Smith has published an inaugural issue of Contract-Drafting Bulletin. One item was of particular interest to me. It’s about an October 2014 opinion from the U.S. District Court for the Southern District of New York, World of Boxing LLC v. King (PDF copy here).

Here’s the gist of it: In May 2013, boxers Guillermo Jones and Denis Lebedev fought, with Jones winning. But after the bout Jones failed a drug test and was stripped of the win. In January 2014, boxing promoters Don King and WOB entered into an “agreement in principle” in which King promised to “cause Jones [ ] to participate” in a rematch. But before the rematch, Jones failed another drug test, so Lebedev withdrew.

In the resulting litigation, WOB claimed that King breached their contract by failing to cause Jones to participate in the match. The court agreed (footnotes omitted):

If Jones could not participate in the bout, it follows a fortiori that King could not have caused Jones to participate in the bout. Therefore, King breached the Agreement.

King protests that this interpretation of the Agreement yields “unreasonable and illogical” results. It would require of King “nothing less than … personal supervision of Jones’s every action between the execution of [the Agreement] and the scheduled date of the [bout against Lebedev].” Indeed, in order to avoid liability, King avers that he would have had “to imprison Jones to prevent him from having any access to a banned substance”—clearly an untenable outcome.

While these arguments might have force, they are addressed to the wrong issue. King could be right: under the circumstances, it is possible that his contractual obligations were too onerous to be enforceable. But that question goes to whether King’s failure to perform may be excused, not to whether King in fact failed to perform. As to the latter, Jones’s disqualification plainly put King in breach.

The court then went on to hold that King’s impossibility defense didn’t excuse his breach.

So, what does this case have to say to contract drafters? . . . .

Continue reading →

Don’t Have A PIN Lock On Your Phone? Hope Your Malpractice Insurance Is Up To Date.

16 Monday Feb 2015

Posted by in Android Phones, Attorney Discipline, Blackberry Phones, Cell Phones, Confidentiality, Cybersecurity, E-Filing, Emails, iPad, iPhones, Law Office Management, Legal Ethics, Legal Technology, Malpractice, Office Procedures, Passwords, Rules of Professional Responsibility, Supervising Support Staff, Technology, Technology

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Most Consumers Don’t Lock Mobile Phone Via PIN, by Ed Hansberry, DARKReading, InformationWeek©

http://tinyurl.com/plw76ut

My guess is that most people who use a smart phone access some kind of confidential information, such as your bank account or conversations with a client or the office. If you do not have a PIN lock on your smart phone, this truly is special kind of stupid.

This is not a hard one to understand. If you use your cell phone to communicate with clients, sync your phone to your office computer and docket, or attach yourself to your office and confidential information – without taking simple, basic security measures – you are  inviting a dangerous breach of confidentiality. -CCE

44% of respondents say it’s too much of a hassle, new survey reports.

People put a lot of sensitive info on their phones, but they often give little though to how secure their data is. In a survey by a security company, over half of the respondents said they didn’t bother with a PIN lock. This takes on a whole new dimension when you begin to understand how many of these people keep corporate data on the device.

Losing an unlocked phone can be far worse than losing a wallet. Emails on the device alone can reveal a wealth of information about the person, including where they bank, where they live, names of family members, and more. If company email is on the device, and it often is, there can be competitive information, salaries, system passwords, etc. If any of those emails contain links, often clicking on it will take you into the website, be it Facebook or a corporate portal.

According to Confident Technologies, 65% of users have corporate data on their phone, even though only 10% actually have a corporate issued device.

For that majority that don’t lock their phone at all, 44% said it is too much of a hassle to lock it and 30% said they weren’t worried about security. These are likely the same people that store things like social security numbers, passwords, and other sensitive information in text files or basic note applications. They may even store their computer’s password on a Post-It Note in their center desk drawer. . . .

Continue reading →

Failure-To-Warn Case – Can Your Expert Beat The Warning Label?

15 Sunday Feb 2015

Posted by in Daubert Motion, Evidence, Litigation, Product Liability

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WARNING! If You Assume Your Case Will Survive Because You Have a “Creative” Warnings Expert, You Do So At Your Own Risk, by Ernie Goodwin, Product Liability Advocate

http://tinyurl.com/plkxj4t

Those of us in the business of defending products look at the world in a slightly different way. When I come across a warning label, I actually study it because in a failure to warn case, the language of the warning, the color of the label and its location on the product are relevant to the effectiveness of the warning. In my experience defending manufacturers of various types of products, I have seen plaintiffs make speculative failure to warn claims. Less-experienced plaintiffs’ attorneys assume that a creative theory developed by a well-credentialed “warnings expert” will be enough to leverage a settlement in an otherwise weak case on liability. That is a dangerous assumption to make.

The case law in all jurisdictions is clear when it comes to the burden of proof for a warnings claim; there has to be a direct link between the failure of the manufacturer to warn about the hazard and the cause of the incident. Moreover, the plaintiff’s expert must consider, among many other things, all of the available accident data and not rely only on select facts from the record to support his findings. A manufacturer who is facing a speculative warnings claim has a few options for dealing with these types of claims. The most effective and frequently used tool is the Daubert motion to exclude the expert from testifying at trial. . . .

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Valentine’s Day Regrettable Bad Influence at The Workplace.

14 Saturday Feb 2015

Posted by in EEOC, Employment Law, Harassment, Sexual Harassment

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More Examples of Why Valentine’s Day is a Bad Day for Employers, by Daniel Schwartz, Connecticut Employment Law Blog

http://tinyurl.com/pnzmh49

A little something for Valentine’s Day. -CCE

Two years ago, I wrote of the perils of Valentine’s Day.  While it may be a day for lovers, it is also a day where people do crazy (read: stupid) things.

I am not talking about Crazy. Stupid. Love. (Good movie, silly name.)

I’m talking about things that can lead to a sexual harassment lawsuit.

Not convinced? Well, since 2011, there are still more cases that have arisen where Valentine’s Day figures prominently. Here are two prime examples. . . .

Continue reading →

S&P Settlement For Defrauding Investors That Led To Financial Crisis.

14 Saturday Feb 2015

Posted by in Consumer Law, Finance and Banking Law, Foreclosure, Standard & Poor

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DOJ and State Partners Secure $1.375 Billion Settlement with S&P for Defrauding Investors in Lead Up to the Financial Crisis, by Sabrina I. Pacifici, BeSpacific Blog

http://tinyurl.com/l8lykkr

News release: ‘Attorney General Eric Holder announced today [February 3, 2015] that the Department of Justice and 19 states and the District of Columbia have entered into a $1.375 billion settlement agreement with the rating agency Standard & Poor’s Financial Services LLC, along with its parent corporation McGraw Hill Financial Inc., to resolve allegations that S&P had engaged in a scheme to defraud investors in structured financial products known as Residential Mortgage-Backed Securities (RMBS) and Collateralized Debt Obligations (CDOs).  The agreement resolves the department’s 2013 lawsuit against S&P, along with the suits of 19 states and the District of Columbia. Each of the lawsuits allege that investors incurred substantial losses on RMBS and CDOs for which S&P issued inflated ratings that misrepresented the securities’ true credit risks.  Other allegations assert that S&P falsely represented that its ratings were objective, independent and uninfluenced by S&P’s business relationships with the investment banks that issued the securities. The settlement announced today is comprised of several elements. In addition to the payment of $1.375 billion, S&P has acknowledged conduct associated with its ratings of RMBS and CDOs during 2004 to 2007 in an agreed statement of facts.  It has further agreed to formally retract an allegation that the United States’ lawsuit was filed in retaliation for the defendant’s decisions with regard to the credit of the United States. Finally, S&P has agreed to comply with the consumer protection statutes of each of the settling states and the District of Columbia, and to respond, in good faith, to requests from any of the states and the District of Columbia for information or material concerning any possible violation of those laws. ’On more than one occasion, the company’s leadership ignored senior analysts who warned that the company had given top ratings to financial products that were failing to perform as advertised,’ said Attorney General Holder.  ’As S&P admits under this settlement, company executives complained that the company declined to downgrade underperforming assets because it was worried that doing so would hurt the company’s business.  While this strategy may have helped S&P avoid disappointing its clients, it did major harm to the larger economy, contributing to the worst financial crisis since the Great Depression.’ . . . [Emphasis added.] Continue reading →

Trouble Finding Words and Terms in Adobe Documents? Not Any More.

14 Saturday Feb 2015

Posted by in Adobe Acrobat, Legal Technology

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Searching and Marking Multiple Words in a PDF, by Rick Borstein, Rick Borstein’s Acrobat for Professionals Blog

http://blogs.adobe.com/acrolaw/category/case-analysis/

Legal Professionals often need to search across a large number of documents. Finding a key fact, name or term is an important part of how you will apply your knowledge to a case.

For example, recently a paralegal sent me this email:

An attorney I work with just gave me a list of about 50 words and phrases as part of a case. I need to mark these terms each time I find them in my case documents. Help! Is there a way I can list all of the search words in a PDF?

While many folks have discovered the Search functionality in Acrobat, Acrobat 9 and below do not offer the ability to save searches or report the results.

Oddly, the only tool in Acrobat that allows you to search for terms and mark them in a PDF is part of the Search and Redact feature. . . .

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What Will Happen To Your Facebook Account When You Die?

12 Thursday Feb 2015

Posted by in Estate Planning, Probate and Trusts, Wills

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Option Added To Designate Facebook Heir, by Gerry W. Beyer, Wills, Trusts & Estates Prof Blog

http://tinyurl.com/qz7amdm

Facebook is now offering additional options to treatment of an account after the user dies in addition to memorialization. As of today, Facebook users in the U.S. can designate a ‘legacy contact,’ which includes choosing a Facebook friend to take over the account in a limited capacity after the user dies.

The legacy contact is given the ability to download posts and photos, respond to new friend requests, and post memorial posts to the page. However, the legacy contact cannot delete anything from the account or view private messages. Users can also choose an alternative option to have the account deleted after their death. If neither option is opted for, the default of freezing the account through memorialization will occur.

See Geoffrey A. Fowler, Facebook Heir? Time to Choose Who Manages Your Account When You Die, The Wall Street Journal, Feb. 12, 2015.

Special thanks to Eric G. Reis (Thompson & Knight LLP) for bringing this article to my attention.

Using Social Media In Police Criminal Investigations.

12 Thursday Feb 2015

Posted by in Android Phones, Cell Phones, Criminal Law, iPhones, Legal Technology, Video

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Monitoring Social Media: The New Face of Criminal Investigations, by Jeff Bellin, EvidenceProf Blog

http://tinyurl.com/lccsvkq

A recent story illustrates the bonanza of social media evidence police can obtain without ever leaving the station.

From the Richmond Times Dispatch, someone allegedly crashed a van into a Richmond area high school.

‘After the crash, which occurred about 1:30 a.m., investigators monitored Twitter, Facebook and other social media sites for information on who may have been responsible. The effort paid off, police said.

In addition to incriminating tweets, text messages and phone calls, detectives recovered a cellphone video of the crash itself — footage that shows a 1996 Ford Club Wagon van slamming into the school, said Chesterfield police Lt. Steve Grohowski.’

Use Technology In Court, But Keep It Quiet!

12 Thursday Feb 2015

Posted by in iPad, Laptop, Legal Technology

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Quiet Keyboards For Court?, by Jeff Richardson, iPhone J.D. 

http://tinyurl.com/ool4gwt

I recently received an email from Baton Rouge, Louisiana litigator Ross Dooley of Roedel, Parsons, Koch, Blache, Balhoff & McCollister. He is looking for a quiet external keyboard that he can use with his iPad to take notes in court. He told me that he was recently using his iPad with the Apple Wireless Keyboard during a hearing when the judge’s minute clerk alerted him that his typing was too loud. This was a courtroom in which the court reporter was wearing headphones and speaking into a stenomask, and apparently the sound of the typing was somehow amplified in the court reporter’s headphones.

I don’t often encounter a court reporter using a stenomask, but even so, I rarely type using a keyboard with my iPad in court because I do think that the noise can be distracting. If I am going to use my iPad to take notes, I instead use a quiet stylus like the Wacom Bamboo Stylus duo and an app like GoodNotes. But I cannot write using a stylus as fast as I can with a pen, so for those times in court when speed matters, I just use pen and paper.

On the other hand, in depositions, I use a keyboard with my iPad all the time. In that setting, I have never found the Apple Wireless Keyboard to be too loud, nor have I found the sound of other keyboards to be too distracting. . . .

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Public Schools’ Limits on Student Restraints And Isolation.

12 Thursday Feb 2015

Posted by in Civil Rights, Excessive Force

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Virginia Passes Bill to Rein in Restraints of School Kids, by Heather Vogell, ProPublica

http://tinyurl.com/n5t4omb

Virginia lawmakers have passed a bill requiring state leaders to set limits on how public schools can restrain or isolate students.

Last summer, ProPublica and NPR reported that new federal data showed the practices – which can include pinning down or tying up students or locking them alone in dark rooms – were used more than 267,000 times nationwide in the 2012 school year. Hundreds of children are injured each year and at least 20 have died as a result. . . .

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