Monthly Archives: May 2015

When A Divorcing Spouse Hides Assets, How Do You Find The Red Flags?

12 Tuesday May 2015

Posted by in Family Law, Hidden Assets, Marital Asset

≈ Comments Off on When A Divorcing Spouse Hides Assets, How Do You Find The Red Flags?

Tags

, , ,

Divorce & Hidden Money: Searching For Assets By Recognizing Red Flags, by Fred Abrams, Asset Search Blog

http://www.assetsearchblog.com/2015/04/20/divorce-hidden-money-searching-for-assets-by-recognizing-red-flags/

If a divorcing spouse hides marital assets there usually are red flags. Red flags are also often found when assets have been hidden by tax fraudsters, Ponzi schemers, bankruptcy debtors, money launderers & narco-traffickers. This 16th post in the ‘Divorce & Hidden Money ‘ series examines the red flags.

Red flags indicating assets might have been hidden are listed at my post ‘Locating Hidden Assets By Spotting The Red Flags.’ The list describes 18 red flags including the use of: multiple jurisdictions, sham trusts, bulk-cash smuggling, etc. In addition to the 18 on the list, below are 6 more red flags of asset concealment. The 6 red flags or money laundering indicators were published by the Egmont Group, an international organization which fights money laundering and terrorist financing.¹   Even though some of them discuss criminals or laundering, the 6 red flags might be used to help locate assets hidden by a divorcing spouse ….

Continue reading →

Who Knew Adverbs Were So Dangerous?

10 Sunday May 2015

Posted by in Appellate Writing, Legal Writing

≈ Comments Off on Who Knew Adverbs Were So Dangerous?

Tags

, , , ,

Using Adverbs Recklessly Can Hurt Your Appeal And Vex The Courts, by Debra Cassens Weiss, American Bar Journal – Appellate Practice (with hat tip to William P. Statsky)

http://tinyurl.com/mvggq6p

Adverbs can be a boon and a bane to lawyers who argue over the meaning of words such as ‘knowingly,’ ‘intentionally’ and ‘recklessly’ and sprinkle them throughout their briefs.

Indeed, the number of disputes over how to interpret adverbs in criminal statutes has surged since the 1980s, the Wall Street Journal (sub. req.) reports, citing research by Brooklyn Law School professor Lawrence Solan. But losing an argument over statutory construction isn’t the only downside to adverbs. . . .

Continue reading →

Objection! Argumentative!

09 Saturday May 2015

Posted by in Cross-Examination, Direct Examination, Evidence, Making Objections, Objections, Trial Tips and Techniques

≈ Comments Off on Objection! Argumentative!

Tags

, , , ,

“Objection! Argumentative” Is That Really A Valid Objection During Cross Examination?, by Paul N. Luvera, Plaintiff Trial Lawyer Tips Blog

http://plaintifftriallawyertips.com/objection-argumentative-is-that-really-a-valid-objection-during-cross-examintion

An outstanding Seattle plaintiff’s trial lawyer & I have been discussing the common objection made during cross-examination that the question is ‘argumentative’ because  of a trial we  have a common interest in where the  judge  sustains cross-examination questions that directly challenge the witnesses testimony as untruthful where the objection of ‘argumentative’ is made. My position is that cross-examination is confrontational and a testing ground for witness credibility by challenging the witness. I believe that judges who sustain an objection to the confrontation as ‘argumentative’ do not fully understand the function of cross-examination and the rules of evidence. I decided to share my viewpoint for your consideration. . . .

Continue reading →

West Virginia Supreme Court of Appeals Rules On Fee-Splitting Between Lawyers and Non-Lawyers.

09 Saturday May 2015

Posted by in Contract Law, Legal Ethics, Paralegals/Legal Assistants, Rules of Professional Responsibility, Unauthorized Practice of Law

≈ Comments Off on West Virginia Supreme Court of Appeals Rules On Fee-Splitting Between Lawyers and Non-Lawyers.

Tags

, , , , ,

West Virginia Supreme Court of Appeals Refuses to Enforce Unethical Fee-Splitting Agreement, by Jeremy Telman, Contracts Prof Blog

http://tinyurl.com/pxrloyc

Gary Rich and Joseph Simioni met in connection with an asbestos case involving West Virginia University. Rich is an attorney. Simioni has a J.D. but was never admitted to the bar. Starting in the 1990s, the two men collaborated on two additional asbestos cases and contracted with out-of-state law firms to help them class action litigation. It appears that until 2002, the men agreed that they would split the proceeds of their work 50/50. but then Rich announced there would be an 80/20 split in his favor. The parties then proceeded on this basis and committed their agreement to writing in 2005.

Rich now contends that he was under the impression that Simioni was a licensed attorney, and he did not realize that Simioni was not licensed until 2000 or 2001. He consulted with the former Chief Lawyer Disciplinary Counsel of the West Virginia State Bar, who told him that Sinioni ‘might not be able to get paid ethically.’

Simioni eventually filed sued in District Court against the out-of-state law firms, seeking recovery based in quantum meruit, unjust enrichment and breach of an implied contract. The District Court certified the following question to the Supreme Court of Appeals:

Are the West Virginia Rules of Professional Conduct statements of public policy with the force of law equal to that given to statutes enacted by the West Virginia State Legislature?

The Supreme Court of Appeals answered in the affirmative, at least with respect to Rule 5.4 of the Rules of Professional Conduct. which prohibits fee-sharing between lawyers and non-lawyers. The Court held for the first time (but based on numerous authorities) that fee-sharing agreements between lawyers and non-lawyers violate public policy. . . .

Continue reading →

Excellent Editing Tips From Jonathan Van Patton.

09 Saturday May 2015

Posted by in Bad Legal Writing, Editing, Legal Argument, Legal Writing, Readability

≈ Comments Off on Excellent Editing Tips From Jonathan Van Patton.

Tags

, , , , , , ,

“On Editing,” by Louis J. Sirico, Jr., Legal Skills Prof Blog (with hat tip to William P. Statsky)

http://lawprofessors.typepad.com/legal_skills/2015/05/on-editing.html

 

Excellent article on editing! Editing is no easy task. You have to practice to do it well.

This article focuses on editing, but also on persuasive writing. Anyone interested in writing a winning brief, motion, or opening and closing argument will like this one. -CCE

An excellent treatise on editing and writing is Jonathan Van Patten’s article “On Editing,” 60 South Dakota Law Review 1 (2015). Employing an extremely clear writing style, he states and explains his propositions on good writing. I plan to distribute the article to the editors of my school’s law reviews.

You can access the article here.

An Employee Manual Predicament.

07 Thursday May 2015

Posted by in Employee Manuals, Employment Law, FMLA Leave, Health Care Benefits

≈ Comments Off on An Employee Manual Predicament.

Tags

, , , ,

Flag on the Play: Court Takes Away Employer’s Victory Because of Mistake in the Employee Manual, by Jason Shinn, Michigan Employment Law Advisor [originally published February 5, 2015]

http://tinyurl.com/pkld6yo

This past week saw the Seattle Seahawks skillfully avoid winning back-to-back Super Bowls because of (arguably) bad decision-making (all the Seahawks had to do was move the ball 36 inches into the end-zone – the only other decision worse than passing in that situation was having Katy Perry perform at half-time, but I digress).

An employer found itself in a similar situation and after further review its victory in an employment-related discrimination claim was reversed because of poor decision-making in relation to its employee manual.

Specifically, the Sixth Circuit Court of Appeals (the federal circuit that covers Michigan employers) reversed a trial decision in favor of an employer in Tilley v. Kalamazoo Cnty. Rd.Comm’n (1/26/2015). The employer was sued for claims under the Family Medical Leave Act (FMLA) (29 USC § 2601 et seq.) and under Michigan’s Elliott-Larsen Civil Rights Act.

The FMLA and Eligibility

For background purposes, the FMLA provides employees ‘a total of 12 workweeks of leave during any 12-month period for . . . a serious health condition that makes the employee unable to perform the functions of the position of such employee.’ 29 U.S.C. § 2612(a)(1)(D). Importantly, these FMLA benefits are not available to all employees. Only an ‘eligible employee’ who works for an ‘employer’ – as both terms are defined under Act – may obtain such benefits.

The Court of Appeals agreed with the district court that the plaintiff employee was not FMLA eligible pursuant to what is called the FMLA’s 50/75 Employee Threshold (to be FMLA eligible, an employer must employ at least 50 employees at, or within 75 miles of, the employee’s worksite at the time the FMLA leave was requested). Again, it was undisputed that the Road Commission did not employ at least 50 employees at, or within 75 miles of, his worksite at the time the plaintiff sought FMLA leave.

At this point, the employer should have been well into its touchdown dance. But there was a flag on the play – an incorrectly drafted employee manual. . . .

Continue reading →

Free Legal Research With Google Scholar – Part I.

04 Monday May 2015

Posted by in Research

≈ Comments Off on Free Legal Research With Google Scholar – Part I.

Tags

, , ,

How To Conduct Free Legal Research Using Google Scholar In 2015 (Part 1), by Nicole L. Black, LLRX.com

http://www.llrx.com/features/googlescholar2015p1.htm

It used to be that access to legal research databases cost an arm and a leg, but this was back in the good ol’ days when Lexis  and Westlaw had cornered the legal research market. How times have changed! Today you have more options than ever before, ranging from the old stand bys, Westlaw and Lexis, more affordable legal research options such as Fastcase and CaseMaker, and entirely free alternatives such as Google Scholar.

For many lawyers, Google Scholar is an incredibly appealing option since it’s free. I last wrote about Google Scholar back in 2012 and some of the features have changed, while others have been added. So that’s why I’m writing this updated two-part blog post series on Google Scholar. I’ll explain the ins and outs of using Google Scholar to conduct legal research, focusing on the basics in this post and then in next week’s post, I’ll highlight some of the more advanced features.

For starters, here’s what’s included in the Google Scholar database, as described on the ‘Search Tips’ page at Google Scholar. . . .

Continue reading →

Why It’s A Bad Idea To Use Both Words and Digits When Writing Numbers.

02 Saturday May 2015

Posted by in Contract Law, Legal Writing, Numbers

≈ Comments Off on Why It’s A Bad Idea To Use Both Words and Digits When Writing Numbers.

Tags

, , , , ,

Revisiting Use of Words and Digits to Express Numbers, by Ken Adams, Adams on Contract Drafting

http://www.adamsdrafting.com/revisiting-use-of-words-and-digits-to-express-numbers/

Some legal writers advocate writing out a number and then adding digits in parentheses. In this post, Ken Adams argues against this practice. If anything, it makes what your writing more verbose and harder to read regardless of the type of document.

Most people do not argue with Strunk and White. Its 3rd edition says to spell out numbers under 100, and use digits for numbers 100 and above. The 4th edition, which came out in 2000, specifically admonishes against spelling out numbers, unless they are used in dialogue. -CCE

More often than not, contract drafters use words and digits to express numbers, as in no later than thirty (30) days after the Closing. That’s a bad idea, for two reasons:

First, it creates clutter that distracts the reader. And the more numbers a contract contains, the greater the distraction.

And second, it violates a cardinal rule of drafting—Thou shalt not state the same thing twice in a contract! Whenever you say the same thing twice, you introduce a potential source of inconsistency. . . .

Continue reading →

Top Ten Checklist For Reviewing Discovery.

02 Saturday May 2015

Posted by in Discovery, Exhibits, Federal Rules of Discovery, Interrogatories, Requests for Admissions, Requests for Production, Trial Tips and Techniques

≈ Comments Off on Top Ten Checklist For Reviewing Discovery.

Tags

, , , , ,

Top Ten Things To Do With Discovery Responses, by Carol Treasure, RN, PhD, JD, Cooper & Scully, P.C., The Bar Association of San Francisco

http://www.sfbar.org/basf-bulletin/2012/dec-2012/discovery-responses.aspx

Attorneys expend tremendous effort drafting interrogatories and requests for admissions or documents. Having a checklist will assist you when reviewing the discovery responses. Below is a list of ten things you can do with discovery responses which can save you time and help with case management. . . .

Continue reading →

No Perfection Standard In E-Discovery?

02 Saturday May 2015

Posted by in Discovery, E-Discovery, Federal Rules of Discovery, Requests for Production

≈ Comments Off on No Perfection Standard In E-Discovery?

Tags

, , , , ,

Is There a Right to Fail in E-Discovery?, by Craig Ball, Ball In Your Court Blog

https://ballinyourcourt.wordpress.com/2015/05/01/is-there-a-right-to-fail-in-e-discovery/

Disagreements about scope and process in e-discovery shouldn’t split between plaintiffs’ and defendants’ interests. After all, everyone is a requesting and producing party, whether north or south of the ‘v.’ Yet, the reality is that most defense counsel see themselves as producing parties, and most plaintiffs’ counsel identify with requesting parties. That unfortunate alignment poisons our ability to set aside allegiances and be officers of the Court mutually determined to find the most effective and efficient means to discover evidence illuminating the issues.

Cooperation in e-discovery is derided as naive in an adversarial system of justice, and ‘discovery about discovery’ is vilified as a diversionary tactic, a modern take on the maxim, ‘if you can’t try the case, then try your opponent.’ Counsel for responding parties are quick to note that no party is obliged to deliver a perfect production. They’re absolutely right. Perfection is not the standard. But, is a producing party entitled to fail before a requesting party may inquire into the scope and process of e-discovery? Must we wait until the autopsy to question the care plan? . . . .

Continue reading →