Monthly Archives: March 2015

No Sandbagging!

13 Friday Mar 2015

Posted by in Appellate Law, Appellate Record, Issues On Appeal, Preservation of Error

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Thou Shalt Not Sandbag, by Raymond P. Ward, Louisiana Civil Appeals Blog

http://raymondpward.typepad.com/la-appellate/2015/03/thou-shalt-not-sandbag.html

In the last post, we looked at the jurisdictional foundation of the law on preserving error. Today we will look at one of two purposes of this law: prevention of sandbagging.

What is sandbagging? Black’s Law Dictionary defines it as ‘[t]he act or practice of a trial lawyer’s remaining cagily silent when a possible error occurs at trial, with the hope of preserving an issue for appeal if the court does not correct the problem.’ Black’s Law Dictionary 1542 (Bryan A. Garner, ed., 10th ed., Thomson Reuters 2014). Justice Scalia once described sandbagging as ‘suggesting or permitting, for strategic reasons, that the trial court pursue a certain course, and later — if the outcome is unfavorable — claiming that the course followed was reversible error. Freytag v. Commissioner of Internal Revenue, 501 U.S. 868, 895 (1991) (Scalia, J., concurring).

Appellate courts hate sandbagging. As proof of this proposition, here are some quotable quotes:

  • ‘The Sixth Circuit’s decision to require the filing of objections is supported by sound considerations of judicial economy…. The Sixth Circuit’s rule, by precluding appellate review of any issue not contained in objections, prevents a litigant from ‘sandbagging’ the district judge by failing to object and then appealing.’ Thomas v. Arn, 474 U.S. 140, 147–48 (1985).
  • ‘The rationale behind this Court’s opinion in Lewis was distaste for the ‘sandbagging’ practice in which defendants circumvent district judges and raise objections for the first time on appeal.’ Perales v. Casillas, 950 F.2d 1066, 1071 (5th Cir. 1992).
  • ‘If the record indicates that counsel for the complaining party deliberately avoided making the proper objection or request, plain error will almost never be found. This court will not tolerate ‘sandbagging’ defense counsel lying in wait to spring post-trial error.’ U.S. v. Sisto, 534 F.2d 616, 624 n. 9 (5th Cir. 1976).

Ththere no-sandbagging rule is a consequence of the appellate court’s jurisdiction, which is limited to reviewing the trial court’s actions. It is also a matter of fairness to the district court. In the appellate courts’ view, it is unfair to the district court to complain of that court’s error on appeal without having given that court a fair opportunity to avoid or correct its own error.

10th Circuit Tips and Resources For New Attorneys and Infrequent Attorney Filers.

12 Thursday Mar 2015

Posted by in Appellate Writing, Brief Writing, U.S. Courts of Appeal

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Filing Your Appeal – For New and Infrequent Attorney Filers, The United States Court of Appeals for the Tenth Circuit

https://www.ca10.uscourts.gov/clerk/filing-your-appeal/atty

Introduction

If this is your first time in this court, welcome. If it has been a while since you filed a brief with us, welcome back. Practicing in a federal appeals court is different from practicing in a trial court, state or federal, and there are even notable differences from state appellate work. With this in mind, there are a number of resources available to assist you.

As an initial matter, if you intend to practice in this court, you can count on referring frequently to the Federal Rules of Appellate Procedure, and especially our local Tenth Circuit Rules. Our Practitioner’s Guide is also a good source of information.

If you can’t find the answer to a question in the rules or if you have a special concern about an appeal, do not hesitate to call the clerk’s office at 303-844-3157. We have real people answering the phone and a well-trained staff who can assist you.

The following sections provide general information you may find useful. However, this information is no substitute for a careful review of the federal and our local rules. . . .

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Patent Law’s Most Influential Supreme Court Decisions From 2005 through 2015.

12 Thursday Mar 2015

Posted by in Appellate Law, Case of First Impression, Intellectual Property, Patent Law, United States Supreme Court

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Most Cited Supreme Court Patent Decisions (2005-2015), by Dennis Crouch, PATENTLYO Blog

http://tinyurl.com/mpd5ue

The list below considers all of the U.S. Supreme Court patent cases decided during the past decade (Since January 2005) and ranks them according to the number of citations.  Citation offers some insight into the influence of decisions, but is obviously limited for a number of reasons. Cases may be cited because of their importance in changing the doctrine (KSR, eBay) or simply as the court’s most recent statement of the law on an important issue (Microsoft v. i4i and KSR) or for a narrow procedural issue that applies in many cases (Unitherm). Bay’s high citation rate is also boosted because its principles have been applied broadly to injunctive relief across many areas of law. Some cases with low citation counts may also have major impacts. They may, for instance impact a small number of very important cases (Caraco) or perhaps they cause folks to change behavior so that the issue stops arising.

With this list we also have the timeline problem where older cases are more likely to be highly cited since there has been more opportunity for those cites. I Alice Corp to rise in the ranks Nautilus and Teva, on the other hand, may well flounder (based upon the Federal Circuit’s treatment of those cases thus far). . . .

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Preserving Issues On Appeal.

11 Wednesday Mar 2015

Posted by in Appellate Law, Appellate Record

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Series Of Posts On Preserving Issues For Appeal, by Raymond P. Ward, Louisiana Civil Appeals

http://raymondpward.typepad.com/la-appellate/2015/03/series-of-posts-on-preserving-issues-for-appeal.html

The first of Mr. Ward’s series on this subject. -CCE

Monday’ blog post reminded me of some materials I’ve accumulated on preserving errors for review in Louisiana state courts. Recently I shared those materials with a colleague, who suggested writing an article about the topic. I decided instead to self-publish a series of posts here on preservation of error. I figured that breaking down the topic into a series of short blog posts and self-publishing them would be easier than trying to write one big lengthy article and then shopping for a publisher.

Let’s begin by defining preservation of error. Black’s Law Dictionary defines it as ‘the taking of all steps necessary under the rules of procedure or at common law in bringing an improper act or statement to the trial court’s attention so that, if not corrected, the mistake can be reviewed on appeal.’ Black’s Law Dictionary 1375 (Bryan A. Garner, ed., 10th ed.,Thomson Reuters 2014). In Louisiana, substitute Code of Civil Procedure for rules of procedure, and substitute case law or jurisprudence for common law. This definition is reflected in La. Ct. App. Unif. R. 1-3, under which the court of appeal ‘will review only issues which were submitted to the trial court ….’

But why must an error in the trial court be brought to the trial court’s attention before it can be argued in the court of appeal? The next few posts will answer that question.

 

Oh Joy! Oh Rapture! The 20th Edition of The Bluebook Will Be Out Soon!

08 Sunday Mar 2015

Posted by in Citations, Legal Writing, The Bluebook

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20th Edition of the Bluebook Expected by this Summer, by Mark E. Woicik, Legal Writing Prof Blog

http://lawprofessors.typepad.com/legalwriting/2015/03/20th-edition-of-the-bluebook.html

Be still my heart! -CCE

Professor Brian Sites of Barry University Dwayne O. Andreas School of Law shared the news that the 20th edition of The Bluebook ‘will be available in the late spring/early summer of 2015.’ Oh, goodie! Click here for more information.

A Valuable Cache of Legal Writing Articles by George Gopen.

08 Sunday Mar 2015

Posted by in Brief Writing, Editing, Legal Analysis, Legal Argument, Legal Writing, Readability, Style Manuals

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Excellent Legal Writing Articles by George Gopen, by Louis J. Sirico, Jr., Legal Skills Prof Blog

http://tinyurl.com/psygoox

There are many really superb experts in legal writing. Mr. Sirico is one of them. Mr. Sirico has provided us with a link to not one, but all of Mr. Gopen’s legal writing articles published in Litigation since 2011 to date. Do not lose this, and save under “must read”! -CCE

George Gopen has been writing columns on legal writing for “Litigation,” the magazine of the ABA Section on Litigation. You can access them here.

I cannot speak too highly of George’s work. Years ago, I attended one of his workshops and discovered a new way to think about writing. I have passed the lessons down to my students, and now, even years after they graduate, they tell me how greatly those lessons transformed their writing and contributed to their success.

The Marshall Project Asks How Hard Is It To Count Deaths By The Police?

07 Saturday Mar 2015

Posted by in Criminal Law, Law Enforcement, Police Brutality

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Missed by a Mile – How Hard Is It To Count Deaths By Police?, by Eli Hager, The Marshall Project

https://www.themarshallproject.org/2015/03/05/missed-by-a-mile?ref=hp-4-112

A day before administering a searing condemnation of the police department of Ferguson, Mo., where an unarmed black teenager was shot and killed by a white police officer, the Department of Justice quietly published a separate report on the number of Americans killed at the hands of law enforcement.

The verdict? In a startling admission, the Bureau of Justice Statistics confirmed that the government’s own data on so-called police-involved deaths have been off for more than a decade — by more than 100 percent.

The report estimates that there were ‘an average of 928 law-enforcement homicides per year’ from 2003-2009 and 2011 — which means that previous yearly tallies by the BJS and the FBI included fewer than half of all such deaths. The FBI, for example, reported an average of only 383 ‘justifiable homicides by law enforcement’ per year over the same period. The BJS was slightly closer to reality, averaging 454.

These numbers, by the way, do not include the deaths of bystanders, deaths during vehicular pursuit, or deaths at the hands of federal agents.

The new report was released at a pivotal moment in the national conversation about policing and the use of force. Not only was the ‘Ferguson Report’ released on Wednesday, but national outrage about violence by the police has spawned recent calls from President Obama and top officials for reforms, beginning with more accurate data on just how many people are killed by the police.

‘There was a great emphasis on the need to collect more data,’ the president said after a meeting of his task force on policing. ‘Right now, we do not have a good sense…of how frequently there may be interactions with police and community members that result in death.’

In February, in a moment of candor during a speech at Georgetown University, FBI Director James Comey admitted that, ‘It’s ridiculous that I can’t tell you how many people were shot by the police in this country — last week, last year, the last decade. It’s ridiculous.’

The dearth of reliable statistics, widely suspected but never before acknowledged in such detail by a government report, goes to show why Congress last year reauthorized the Death in Custody Reporting Act. The law, an earlier version of which expired in 2006, requires the BJS to compile data on killings by law enforcement and in prisons. That data is to be gathered from a wide range of sources, including coroner’s reports, direct reports from police, media reports, Google alerts, and analysis by program staff. The notion is that this mesh of information will offer a more complete picture than the FBI data, which rely mainly on self-reporting by the police.

However, even in the years before the old reporting law expired, when the BJS was supposedly harvesting information from a wide range of sources, the bureau fell far short of a complete tally. In its best year, it identified only 49 percent of police-involved deaths.

More File Naming Convention Tips.

07 Saturday Mar 2015

Posted by in File Naming Conventions, Law Office Management, Legal Technology, Office Procedures

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File Naming Conventions  

This supplements a previous post listing file naming conventions. See https://researchingparalegal.com/2014/03/29/please-use-electronic-file-naming-conventions/. If none of those were a good fit for you, perhaps one of these will hit the mark. -CCE

Best Practices For File Naming, Stanford University Libraries
http://library.stanford.edu/research/data-management-services/data-best-practices/best-practices-file-naming

File Naming Conventions, Data Management for Undergraduate Researchers, Purdue University Librarians
http://guides.lib.purdue.edu/content.php?pid=440001&sid=4901667

Getting Organized: Great Tips for Better File Names, by Jill Duffy, PC Mag
http://www.pcmag.com/article2/0,2817,2385613,00.asp

File Naming Guidelines, The Center for Teaching and Learning, Division of Academic Affairs, UNC Charlotte
http://teaching.uncc.edu/learning-resources/articles-books/best-practice/web-accessibility/file-naming-guidelines

Why FCC Gives E-Readers Another Year to Exclude “Text To Speech” And Ignore The Disabled.

07 Saturday Mar 2015

Posted by in FCC, Government

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No Paperwhite Read-Aloud For You! FCC Again Lets Amazon And Friends Diss People With Disabilities, by David H. Rothman, posted by Sabrina I. Pacifici, BeSpacific Blog

http://www.llrx.com/features/fccrulingereaders.htm

Text to speech would cost a pittance to add to current E Ink readers like Amazon’s Paperwhite and the $200 Voyage. In fact, some earlier Kindles even came with read-aloud. No longer, though. With all the laws on the books, can’t Washington stop this dissing of people with disabilities?

In one form or another, the Kindle is so common that it’s become ‘The Official E-reader of the National PTA.’

Yet despite TTS’s potential benefits to millions of Americans, the Federal Communications Commission has just granted the e-reader industry another year’s exemption from the Twenty-First Century Communications and Video Accessibility Act of 2010.

The waiver announced January 28 wouldn’t have necessarily guaranteed TTS. But long term, it still would have helped people ranging from vision-impaired 90-year-olds to school children with dyslexia. . . .

Continue reading →

Why Aren’t All Lawyers And Law Students Trained In E-Discovery And Should They Be?

07 Saturday Mar 2015

Posted by in Continuing Legal Education, Diligence, Discovery, E-Discovery, Ethics Opinions, Federal Rules of Discovery, Legal Ethics, Technology

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The Conundrum of Competence in E-Discovery: Need Input, by Craig Ball, Ball In Your Court Blog

https://ballinyourcourt.wordpress.com/2015/03/07/the-conundrum-of-competence-in-e-discovery-need-input/

I frequently blast lawyers for their lack of competence when it comes to electronic evidence. I’m proud to be a lawyer and admire all who toil in the fields of justice; but I cannot hide my shame at how my brilliant colleagues have shirked and dodged their duty to master modern evidence.

So, you might assume I’d be tickled by the efforts of the American Bar Association and the State Bar of California to weave technical competency into the rules of professional conduct. And I am, a little. Requiring competence is just part of the solution to the competence crisis. The balance comes from supplying the education and training needed to become competent. You can’t just order someone who’s lost to ’get there;’ you must show them the way. In this, the bar associations and, to a lesser extent, the law schools have not just failed; they’ve not tried to succeed.

The legal profession is dominated by lawyers and judges. I state the obvious to expose the insidious: the profession polices itself. We set the standards for our own, and our standard setters tend to be our old guard. What standard setter defines himself out of competence? Hence, it’s extraordinary that the ABA commentary to Model Rule 1.1 and the proposed California ethics opinion have emerged at all.

These laudable efforts just say ‘get there.’ They do not show us the way. . . .

Continue reading →

How A Dental Board Decision Could Affect The Business of Practicing Law.

07 Saturday Mar 2015

Posted by in Federal Trade Commission, Government, Legal Ethics, Paralegals/Legal Assistants, Rules of Professional Responsibility, Supervising Support Staff, Unauthorized Practice of Law, United States Supreme Court

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Could Dental-Board Decision Unlock Lawyer Control Of State Bar Regulations?, guest post Ken Friedman, Forbes

(Mr. Friedman is the Vice President of Legal and Government Affairs for LegalZoom Inc.)

http://www.forbes.com/sites/danielfisher/2015/03/04/dental-board-decision-could-unlock-lawyer-control/

Many state regulatory agencies are controlled by active members of the very professions they oversee. Last week, this fox-and-hen-house scenario was addressed by the United States Supreme Court, which ruled that such agencies are not immune to federal antitrust laws unless their actions are actively supervised by politically accountable government officials. While the case dealt specifically with dentistry (teeth whiteners everywhere, rejoice!), the ruling will have far broader ramifications for many professions, including how the practice of law is regulated.

In North Carolina State Board of Dental Examiners v. Federal Trade Commission, the Supreme Court upheld the FTC’s ruling that the Dental Examiners violated antitrust laws when they sent dozens of ‘cease and desist’ letters to teeth whiteners, claiming that they were engaged in the ‘unauthorized practice of dentistry.’ The letters and other strong-arm tactics worked – dentists in North Carolina established a monopoly over teeth-whitening services until the FTC intervened.

The Dental Examiners monopolistic campaign was modeled after a similar, if less successful, campaign engaged by the North Carolina State Bar.

The Supreme Court’s decision will have broad positive effects throughout the country. The Court’s ruling recognizes that letting professionals enforce their own monopolies creates a ‘real danger’ that they will act to further their ‘own interests,’ rather than the public interest. These practices increase prices to the detriment of consumers while decreasing consumer choice. The Court recognized that the problem is far worse when the boundaries of the state-granted monopoly are not ‘clearly articulated and affirmatively expressed as state policy,’ and the professionals are given the power to decide what is the ‘unauthorized practice’ of their profession.

This lack of clarity is not uncommon. For example, Rhode Island opens the door to this defining the unauthorized practice of law as the ‘doing of any act for another person usually done by attorneys at law in the course of their profession.’ They list a few examples, ‘without limiting the generality of the definitions.’

The active supervision concept is important. While the requirement is ‘flexible and context-dependent,’ the Court made clear that the ‘supervisor must review the substance of the anticompetitive decision, not merely the procedures followed to produce it.’ The supervisor cannot be a market participant and needs to have the power to veto or modify decisions. This will require significant interaction.

Regulating the practice of law is the classic example of active market participants protecting their monopoly. In its amicus brief, the NCSB states that its authority is vested in the State Bar Council, 65 of whose 68 members are lawyers.

The threat this poses is not idle. . . .

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Three States Consider Non-Lawyers’ Limited License and Registration Programs.

05 Thursday Mar 2015

Posted by in Lawyer Supervision, Limited License Legal Technician Program, Paralegals/Legal Assistants, Regulation

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Three Notable Updates on Non-Lawyers Providing Legal Assistance, by Robert Ambrogi, Law Sites Blog (with hat tip to William Statsky!)

http://blog.oregonlegalresearch.com/2015/03/non-lawyer-legal-assistance-limited-license-legal-technicians-oregon.html

 

In the January 2015 issue of the ABA Journal, I had an article about Washington state’s limited license legal technician (LLLT) program, which will formally license non-lawyers to deliver legal services in limited circumstances independently, without a lawyer’s supervision. The article also discussed New York’s program of court navigators and reported on other states considering programs similar to Washington’s, including California and Oregon. Since that article came out, there have been three notable developments.

Oregon Task Force Calls for Legal Technicians

In the ABA Journal piece, I noted that the Oregon State Bar had convened a Task Force on limited license legal technicians in 2013 and that its final report was expected soon. On Feb. 13, the Task Force issued its report. In it, the Task Force recommended to the OSB’s board of governors ‘that is consider the general concept of a limited license for legal technicians as one component of the BOG’s overall strategy for increasing access to justice.’ The report noted that a large majority of the Task Force members — but not all of them — concurred in the recommendation.

Should the Board decide to proceed with this concept, the Task Force recommends a new Board or Task Force be established to develop the detailed framework of the program. For the reasons set out herein, the BOG should review the recently established Washington State Bar Association LLLT program and consider it as a potential model.

The report praised the Washington LLLT program as ‘comprehensive and well thought-out’ and urged the OSB, should it decide to proceed with a legal technician program, to ‘review, consider and learn from Washington’s program.’

The Task Force further recommended that the first area to be licensed be family law, including guardianship. . . .

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We Have Proof! Clients Really Do Prefer Plain Language Over Legalese.

04 Wednesday Mar 2015

Posted by in Legal Writing, Legalese, Plain Language

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Does Plain English Make a Difference to Clients?, by Louis J. Sirico, Jr., Legal Skills Prof Blog

http://tinyurl.com/mgf49tn

According to an empirical study by Christopher Trudeau, the answer is yes. I think his 2012 article deserves greater attention–The Public Speaks: An Empirical Study of Legal Communication, 14 The Scribes Journal of Legal Writing 121 (2012) (here).

In a carefully designed study, subjects compared passages written in plain English and similar passages that contained the failures that plain English attempts to eliminate. The study provides a good bit of valuable information. It also results in 10 practical pointers.

First, do not underestimate the importance of oral communication. Over half of all respondents preferred some type of oral communication to written communication.

Second, deliver written documents electronically even when you must send a hard copy.

Third, use clear, understandable written communication.

Fourth, do not assume that all readers will understand commonly used legal terms. Instead, define these terms if you must use them.

Fifth, avoid complicated terms and Latin words. They generally bothered or annoyed nearly seven out of ten clients.

Sixth, prefer the active voice. Respondents preferred it almost 70% of the time — and clients at a higher rate than non-clients.

Seventh, avoid multi-word prepositions like pursuant to and prior to and with regard to. They are among the worst aspects of legalese.

Eighth, remember that the more confusing the sentences become, the more likely that a reader will prefer plain language.

Ninth — and this needs to be proclaimed repeatedly, ceaselessly— the vast majority of clients and non-clients prefer plain language. For the choice-of-language questions, readers chose the plain-language version 80% of the time.

Finally, use plain language no matter what the reader’s educational level. Contrary to my original theory, as the level increased, so did the respondent’s preference for plain language.

It’s National Grammar Day!

04 Wednesday Mar 2015

Posted by in Editing, Legal Writing

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National Grammar Day, by Kristin Hare, Poynter.org

http://www.poynter.org/tag/national-grammar-day/

Turns out we have a lot of pet peeves about grammar.

Happy National Grammar Day! On National Grammar Day eve, we shared the pet peeves of a handful of journalists and asked people to share their own. We got a lot. Enjoy!

[View the story ‘’Don’t make me kill you’‘ on Storify]

If you’re ready for more National Grammar Day fun, Poynter’s News University has the Webinar ‘National Grammar Day 2015’ at 2 p.m. Eastern. Use the code 15PPGRAM50 for a discount. News U’s ‘Language Primer: Basics of Grammar, Punctuation and Word Use’ is also always popular. The American Copy Editors Society is having a grammar day #ACESchat today from 4 p.m. to 5 p.m. Eastern on Twitter.

Here are a few of the pet peeves we shared yesterday: . . . .

Continue reading →

Defendants Recover E-Discovery Costs And How They Did It.

04 Wednesday Mar 2015

Posted by in Discovery, Document Review, E-Discovery, Legal Writing, Motions, Requests for Production

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Court Finds Defendants Are Entitled to Recover $55,649.98 In e-Discovery Costs, by K&L Gates

http://tinyurl.com/pdqnz3a

Comprehensive Addiction Treatment Center, Inc. v. Leslea, No. 11-cv-03417-CMA-MJW, 2015 WL 638198 (D. Colo. Feb. 13, 2015)

Plaintiffs brought a ‘Motion to Review Clerk’s Taxing of Costs Under F.R.C.P. 54(D)(1).’ Specifically, Plaintiffs sought review of the clerk’s determination “concerning the costs taxed amount of $55,649.98, which accounts for Defendants contracting with a private consulting company, Cyopsis, to retrieve and convert ESI into a retrievable format to produce information requested by Plaintiffs.” The court held that ‘[b]ecause Defendants’ costs related to the electronically stored information (‘ESI’) are expenses enumerated in 28 U.S.C. § 1920(4), and Plaintiffs were aware that Defendants would have to retain an outside consultant to retrieve and convert the ESI into a retrievable format, Plaintiffs’ Motion is denied.’ . . .

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Is Claustophobia A Viable ADA Lawsuit?

04 Wednesday Mar 2015

Posted by in Disabilities, Employment Law, Wrongful Termination

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Lawyer’s Claustrophobia ADA Suit Survives Motion To Dismiss, by Debra Cassens Weiss, Undisputed Legal Inc.

https://undisputedlegal.wordpress.com/2015/03/02/lawyers-claustrophobia-ada-suit-survives-motion-to-dismiss/

A Philadelphia lawyer who claimed her law firm failed to accommodate her claustrophobia may proceed with her lawsuit, a federal judge has ruled. E refused to dismiss the disability suit against the law firm Marshall Dennehey Warner Coleman & Goggin, the Legal Intelligencer (sub. req.) reports. The plaintiff, former law firm associate Erica Serine, had claimed the law firm refused to accommodate her disability and then fired her.

According to Schiller’s Feb. 25 opinion (PDF), Serine had requested a transfer in 2012 from a Marshall Dennehey office in Moosic, Pennsylvania, to an office in Philadelphia or Cherry Hill, New Jersey, to be close to family in the area. The firm allowed a transfer to the Philadelphia office.

But Serine says she experienced anxiety and other symptoms of claustrophobia beginning with her elevator ride to the 24th floor of the Philadelphia office on Oct. 1, 2012. She ‘obsessively researched evacuation plans’ and had trouble sleeping and eating, the opinion said. She was extremely nervous at work, particularly when in the elevator or when away from a window.

The law firm allowed Serine to work from home while she sought treatment with a psychologist, but turned down her request to work at the Cherry Hill office or Pennsylvania offices in King of Prussia or Doylestown.

In December 2012, Serine was advised she could work in Philadelphia or Moosic, but she could not continue to work from home. She was fired the next month. . . .

Continue reading →

A Legal Analysis of Shaken Baby Syndrome.

04 Wednesday Mar 2015

Posted by in Case Law, Evidence, Expert Witnesses, Health Law, Law Journals, Law Reviews, References, Research, Secondary Resources

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Shaken Baby Syndrome: A Differential Diagnosis of Justice, by Ken Strutin, LLRX.com

http://www.llrx.com/features/shakenbabysyndrome.htm

When King Solomon resolved history’s best-known custody dispute, he implicitly divined that the death of the absent child was due to accidental infanticide, not intentional homicide.1 And his method was an early testament to truth finding. Today, the investigation of infantile death is too often accompanied by hurried accusations and false confessions.2 And the search for truth is left to lawyers and experts who have become as adversarial as the testificants in Solomon’s court. The concept of Shaken Baby Syndrome (SBS)3 has become a battleground where medical evidence and legal presumptions clash, testing the limits of judicial wisdom.4

The investigation and prosecution of SBS cases5 has revealed an historical and ongoing tension among medical experts6 and legal practitioners and scholars.7 From the Supreme Court on down, judges in these cases have had to struggle with complex emotions, societal impulses, conflicting witness and expert testimonies, as well as ineffectiveness of defense counsel, need for appointed experts, admissibility under Frye-Daubert, and assessment of newly discovered evidence.8 Thus, legal investigation into the reasons behind infant deaths has turned into a medical “who done it” with the suspects ranging from accident and natural causes to the criminal conduct of parents and caretakers.9

This is a collection of recent and select court decisions, law reviews and news articles that explore the ongoing scientific and legal arguments about the definition and exclusivity of shaken baby syndrome evidence. . . .

Continue reading →

Can You Use iPads or iPhones in Court? Maybe – Maybe Not.

03 Tuesday Mar 2015

Posted by in 5th Circuit Court of Appeals, Android Phones, Appellate Law, Apple, Blackberry Phones, Cell Phones, Court Rules, Courts, Federal District Court Rules, iPad, iPhones, Laptop, Legal Technology, Local Rules, Oral Argument

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Court Rules on iPhone, iPad Use, by Jeff Richardson, iPhone J.D. Blog (with hat tip to Ray Ward, Louisiana Civil Appeals Blog)

http://www.iphonejd.com/iphone_jd/2015/03/court-rules.html

If there are rules for or against using any type of technology in a courtroom, you will normally find the court’s preference in its local rules. Courts don’t write local rules just for fun. They mean it when they say they don’t like something. If your court clearly states in its local rules that certain types of technology are not tolerated, don’t temp fate by assuming that you will be the exception.

Please note the comments at the end of the article. There is more valuable information about other court rules. -CCE

There are countless ways that an iPhone and iPad can be useful to an attorney while in court — whether you are at counsel table or just monitoring proceedings from the cheap seats in back. I often use my iPhone to look up a statute, check my calendar, get some information from an email, or remind myself of the name of another attorney in the courtroom. I often use my iPad to look at a case cited by an opponent, review the key part of an exhibit or transcript, or take notes. But you cannot do any of this unless the court lets you use electronic devices in the courtroom. I remember a time many years ago when the Eastern District of Louisiana did not allow any cell phones, even if turned off, and if my Palm Treo was still in my pocket, I had to walk back to my office, a few blocks away, and leave it there. Many courts are now more lenient, but attorneys should not just assume that it is okay to plan to use an iPhone and iPad in court. Instead, it is wise to first determine if there is an applicable court rule on the issue.

I write about this today because Ray Ward, an appellate attorney at my law firm, has a case that is soon set for oral argument before the U.S. Fifth Circuit, and in connection with that case, yesterday he received a notice from the Fifth Circuit of a new policy on electronic devices in the courtroom. Ray wrote about the notice (and attached a copy) in this post on his Louisiana Civil Appeals blog. In short, you can now have an iPhone or iPad in the courtroom, but it must be turned off unless you are presenting argument or at counsel table. And even then, you cannot take pictures or video, nor can you use social media. . . .

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Ken Adams Shares What It Takes To Be A Great Contract Writer.

02 Monday Mar 2015

Posted by in Boilerplate Forms, Boilerplate Forms, Contract Law, Editing, Legal Writing, Legalese, Readability, Style Manuals

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What It Takes to Be a Great Contract Drafter, by Ken Adams, Adams On Contract Drafting

http://www.adamsdrafting.com/what-it-takes-to-be-a-great-contract-drafter/

If you write or work with contracts, this is a “must read” post by Ken Adams. Drafting a good contract is a special type of legal writing. A good, solid contract is a work of art. Also, please don’t ignore the Comments at the end of the post. There’s more good information there as well. -CCE

Here’s what it takes to be a great contract drafter:

Know the deal mechanics. As a drafter, it’s your job to express the transaction in a way that advances your client’s interests most effectively. You can’t do that unless you’re aware of the full range of options for structuring the deal. I don’t mean to suggest that you yourself have to possess that information—it’s enough if you’re able to pick the brains of people with that information.

Know the law. With some transactions, there’s no need for the law to rear its head in the contract. In other transactions, it would be appropriate, or necessary, for the law to feature in the contract. I discuss that in this 2013 post. As drafter, it’s your job to figure out what role, if any, the law plays in your transaction. Again, it’s enough if you can get that information from others.

Follow a comprehensive style guide. You don’t follow a comprehensive set of guidelines for the building blocks of contract language? Sorry, you’re not a great drafter. You’re not even a good drafter. Instead, you’re parroting whatever contract language you copy, which is likely dysfunctional. You’re following conventional wisdom, which more often than not is bogus. Don’t throw at me your education, your reputation, your long list of publications, your compensation, your track record as a dealmaker. They’re all beside the point. Of course, the only set of guidelines out there is A Manual of Style for Contract Drafting, but don’t hold that against me. I’m not stopping anyone else from producing their own comprehensive set of guidelines. And following my guidelines isn’t rocket science. . . .

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No Question About It – Bad Legal Writing Squanders Your Money.

01 Sunday Mar 2015

Posted by in Bad Legal Writing, Economics, Law Office Management, Legal Writing, Legalese, Management, Plain Language, Readability, Time Management

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Face It — Bad Legal Writing Wastes Money, by Matthew Salzwedel, The Lawyerist Blog

https://lawyerist.com/60599/face-it-bad-legal-writing-wastes-money/

A recent article on FindLaw.com called Five Ways Attorneys Waste Money claimed that attorneys can cut clients’ costs by avoiding needless motions, staffing cases leanly, focusing on the important issues, avoiding petty spats with the opposition, and being smart about when to settle.

But the article ignored the most important way attorneys can save money for their firms and clients: by learning how to write in plain English.

Most attorneys don’t believe that writing style matters. They might concede that writing in plain English can be aesthetically pleasing to the reader; but they also say that it’s not worth the time to learn how to do it because there’s no evidence that writing in plain English saves time or money.

But these attorneys ignore what legal-writing experts have taught — and what the empirical evidence has shown — for more than 50 years: that plain English saves time and money by increasing the ability of readers to understand and retain what they have read. . . .

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Using Legal Citations to Persuade the Reader.

01 Sunday Mar 2015

Posted by in Citations, Legal Analysis, Legal Argument, Legal Writing, String Citations

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The Art of Persuasion Through Legal Citations, by Susan W. Fox and Wendy S. Loquasto, 84 Fla. B. J. 40 (2010).

http://www.floridabar.org/divcom/jn/jnjournal01.nsf/Author/A8B63DC72FCE7882852576F10068ECD6

Persuasive citation of legal authority is an essential part of legal writing. Proper citation involves knowing not only the basic form for citing cases, constitutions, statutes, rules, books, articles, and other legal authority,1 but also requires understanding the purposes and best practices for citing legal authority. The purpose of this article is to help you develop a more persuasive and effective citation style by discussing development of a citation plan, the hierarchy of authority, the role of courts and precedent; the use of pinpoint cites, parentheticals, and signals; and placement of citations.

The primary purposes of citation are support and attribution for the propositions advanced by the author. Proper citation further requires consideration of the source of the applicable law, whether the authority is binding or merely persuasive and the credibility attributable to the author or authority cited. In short, persuading a court to follow precedent, distinguish it, or overrule it — as the case requires to advance your client’s position — is in large part dependent upon credible citations and sound reasoning based upon the citations. . . .

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