Monthly Archives: June 2015

Service of Process Proper on Corporate Franchisee, Not Local Franchisee.

30 Tuesday Jun 2015

Posted by in Civil Procedure, Service of Process

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Where Corporate Franchisor is Named Defendant, Service of Process on Local Franchisee is Insufficient, by Daniel E. Cummins, Tort Talk Blog

http://www.torttalk.com/2015/06/where-corporate-franchisor-is-named.html

In the case of  Trexler vs McDonald’s Corporation, 2015 Pa. Super. 131, 903 MDA 2014 (Pa. Super. June 3, 2015 Ford Elliott, P.J.E.,  Shogan, J., Stabile, J.)(Op. by Stabile, J.), the Pennsylvania Superior Court recently clarified that, where the named Defendant in a lawsuit is the Corporate Franchisor, . . . for service of a Complaint as original process to be proper, the Complaint must be served upon that Corporate Franchisor Defendant, and not the individual franchisee who may own the local establishment. . . .

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Are iPad Text Messages Protected Under Your State’s Wiretapping Laws?

30 Tuesday Jun 2015

Posted by in Admissibility, Appellate Law, Case of First Impression, Evidence, Government, Intellectual Property, iPad, Legal Technology

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iPad Texts Not Private Under Wiretap Act | The Legal Intelligencer*, The Democratic Underground.com

(The Legal Intelligencer requires subscription but is free for 5/mo articles.)

http://www.democraticunderground.com/10026893652

iPads are popular in the legal and business world. It would be a good idea to check your state’s wiretapping law and determine whether your client’s and your own text iPad messages have a reasonable expectation to privacy. -CCE

An iPad does not fall within the telephone exemption under the Pennsylvania Wiretapping and Electronic Surveillance Control Act, and users of the device do not have a reasonable expectation of privacy when it comes to sending text messages, the state Superior Court has ruled in a case of first impression. . . .

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Litigator’s Honey Pot – Top 9 Recent Litigation Posts From Ken Lopez.

30 Tuesday Jun 2015

Posted by in Exhibits, Jury Persuasion, Jury Selection, Litigation, Opening Argument, Technology, Timelines, Trial Tips and Techniques, Voir Dire

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Top 9 Litigation Consulting Articles from Q2-2015, posted by Ken Lopez, The A2L’s Litigation Consulting Report Blog

http://tinyurl.com/ob6ma8g

What luck! Ken Lopez kindly has gathered 9 of his recent top posts. There’s a little something for anyone who practices litigation – voir dire and jury selection, trial graphics, persuasive opening arguments, a discussion of the Reptile Trial Strategy, and more. Thank you, Ken! -CCE

It’s been another great quarter of publishing blog articles on A2L’s Litigation Consulting Report Blog. . . . Since we post 2-3 articles every week, I’ve heard from our readers that it is sometimes hard to keep up with the latest articles. To help remedy that and organize the information better, roughly six times a year we publish a mini-retrospective at the end of the quarter, at the end of a year and/or to celebrate blogging milestones.

This quarter, I’m listing the top nine articles from April, May and June of 2015 reverse sorted by the number of times each article was read. This way, this list serves as an excellent reader-curated guide to the very best articles we have published recently. . . .

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The ABC’s of Fielding Data.

29 Monday Jun 2015

Posted by in Computer Forensics, Discovery, E-Discovery, Fielded Data, Legal Technology, Metadata, Native Format

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The Virtues of Fielding, by Craig Ball, Ball In Your Court

https://ballinyourcourt.wordpress.com/2015/06/29/the-virtues-of-fielding/

I am a member of the typewriter generation. With pencil and ink, we stored information on paper and termed them ‘documents.’ Not surprisingly, members of my generation tend to think of stored information in terms of tangible and authoritative things we persist in calling ‘documents.’ But unlike use of the word ‘folder’ to describe a data directory (despite the absence any folded thing) or the quaint shutter click made by camera phones (despite the absence of shutters), couching requests for information in discovery as demands for documents is not harmless skeuomorphism.  The outmoded thinking that electronically stored information items are just electronic paper documents makes e-discovery more difficult and costly. It’s a mindset that hampers legal professionals as they strive toward competence in e-discovery.

Does clinging to the notion of ‘document’ really hold us back? . . .

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More Goodies from iPhone J.D.

27 Saturday Jun 2015

Posted by in Apple, Apps, Cell Phones, iPad, iPhones, Legal Technology, Passwords

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In the news, by Jeff Richardson, iPhone J.D. Blog

http://www.iphonejd.com/iphone_jd/2015/06/in-the-news297.html

The latest and greatest from Jeff Richardson. Good discussion on ways to make text messages look good at trial. New iPhone apps. The sale on the password manager app is too good to pass up. I particularly like the idea of using the Apple Watch for map directions. As always, Mr. Richardson shares the good stuff. -CCE

How Many Types of Metadata Can You Name?

27 Saturday Jun 2015

Posted by in Diligence, Legal Ethics, Legal Technology, Metadata, Technology

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Production of System Metadata, by Joshua Gilliland, Bow Tie Law Blog

https://bowtielaw.wordpress.com/2015/06/27/production-of-system-metadata/

Have you ever been bit because you ignored metadata? Hands?

The legal profession is embracing technology to the point where it is considered a lawyer’s duty to know it, understand it, and use it. Paralegals and other legal staff, I am talking to you too.

Do you know what metadata is or how many types there are? This post is a good illustration of why all types of metadata should be on your radar. -CCE

A New York state judge confronted the issue of producing system metadata in a medical malpractice case where the plaintiff had to have a foot amputated due to post surgical complications. Vargas v Lee (Sup.Ct.) 2015 NY Slip Op 31048(U), ¶¶ 3-5. The case is direct and thoughtful on the issue of system metadata. . . .

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We Are Going To Miss Jon Stewart.

27 Saturday Jun 2015

Posted by in Humor

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When Jon Stewart Didn’t Do His Job—He Really Made Us Think, by Douglas Keene, The Jury Room

http://keenetrial.com/blog/2015/06/26/when-jon-stewart-didnt-do-his-job-he-really-made-us-think/

 

Like Mr. Keene, I am really going to miss Jon Stewart. -CCE

Attorney Fee Awards For Misconduct On A Winning Streak In Federal Court.

27 Saturday Jun 2015

Posted by in Intellectual Property, Legal Ethics, Patent Law, Sanctions

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Federal Circuit: Bad Lawyering! = Sanctionable Litigation Misconduct, by Dennis Crouch, PATENTLYO Blog

http://tinyurl.com/qylp9zq

“The opinion here was authored by Judge Dyk and joined by Chief Judge Prost and Judge Bryson.(Read the decision: Gamma v. CSU).”

Attorney fee awards have been on a hot-streak since the Supreme Court’s 2014 Octane Fitness decision lowering the standard for proving an ‘exceptional case’ under 35 U.S.C. § 285.

Under the statute, a district court judge is empowered to award ‘reasonable attorney fees to the prevailing party’ to a patent infringement lawsuit, but only in ‘exceptional cases.’ Id. In Octane Fitness, the Supreme Court gave the lower court fairly wide latitude in deciding exceptional case judgment and the award of fees. In particular, courts are given authority to consider the totality-of-the-circumstances when determining whether a fee award is appropriate. In the parallel case of Highmark, the court held that those lower-court determinations should be given deference on appeal. . . .

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Professional Civility In The Legal Profession.

27 Saturday Jun 2015

Posted by in Legal Ethics, Professional Civility, Rules of Professional Responsibility

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What About Professional Civility In The Law? by Paul N. Luvera, Plaintiff Trial Lawyer Tips  

http://plaintifftriallawyertips.com/what-about-professional-civility-in-the-law

The subject of professional civility has been widely discussed and promoted in the past few years. Some states have incorporated the requirement in their oath of attorneys. All of the states  have emphasized it in recent years. The United  States Supreme Court, the ABA and even The National Judicial College promote the principles of civility. Here, for  example,  is part of the language of the core principles from the Judicial College written for judges  nationally:

‘Civility encompasses a form of courtesy and behavior and speech that is essential to the role of courts in a democratic society. It is therefore, important that all involved with the court – judges, attorneys, jurors, witnesses, court staff, parties – act with civility to ensure the fair administration of justice and resolution of disputes . . . . Civility in action and words is fundamental to the effective and efficient functioning of our system of justice and public confidence in that system.’

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The Capitol Steps on July 4th!

27 Saturday Jun 2015

Posted by in Humor

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The Capitol Steps On The Air

http://www.capsteps.com/radio/

Every 4th of July and New Year’s Eve, The Capitol Steps give a free performance on the radio. If you are not familiar with The Capitol Steps, think Monty Python satire but in song about American politics and politicians. It is hilarious. No 4th of July would be complete without tuning in on the radio to hear their program. The free performance can be found on selected radio stations – see times and dates at the link.

As I’ve mentioned before, if this kind of thing is up your alley, check out Austin lawyers who call themselves the Bar and Grill Singers at http://www.barandgrillsingers.com/.

This Independence Day, enjoy the Capitol Steps one-hour long special, ‘Politics Takes a Holiday!’

It’s the most wonderful time of the year when Presidential candidates emerge from their political slumbers and proclaim themselves fit to rule this Nation. The singing political comedians the Capitol Steps will take on Jeb Bush, Hillary Clinton, Ted Cruz, Bernie Sanders and all the other ‘76 Unknowns’ who have thrown their hat (and your money) into the ring. It’s time to ‘Mock the Vote’ in 2015! . . .

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Spoiled Evidence On Both Sides – What Else Could Go Wrong?

24 Wednesday Jun 2015

Posted by in Depositions, Discovery, E-Discovery, Evidence, Intellectual Property, Preservation, Spoilation

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Court Finds Wife Liable for Agent-Husband’s Intentional Deletions, Recommends Default Judgment, by K&L Gates in CASE SUMMARIES

http://tinyurl.com/o9p3kmn

Malibu Media, LLC v. Tashiro, No. 1:13-cv-00205-WTL-MJD, 2015 WL 2371597 (S.D. Ind. May 18, 2015)

In this copyright infringement case, the court found that Defendants ‘spoiled evidence, committed perjury, and failed to discharge their duties to conduct discovery reasonably and in good faith’ and recommended default judgment. Notably, in addition to more familiar issues surrounding the topic of spoliation, the court’s opinion addressed the question of whether spoliation occurs when information is still recoverable (yes) and the propriety of imputing an agent’s bad acts in discovery where, as in this case, Defendant Wife ‘left it to her agent—her husband—to respond to Plaintiff’s document requests.’ . . .

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9th Circuit Rules Google Earth Coordinates Are Not Hearsay.

24 Wednesday Jun 2015

Posted by in Admissibility, Authentication, Evidence, Hearsay, Legal Technology

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How to Get Google Earth Images Admitted for Litigation, by Morgan C. Smith, Cogent Legal 

http://tinyurl.com/ngxpzxc

Many attorneys rely on Google Earth as the primary source for finding visual information for specific locations, all over the world, involved in litigation (see my prior post discussing how to use Google Earth for images and obtaining archival images). However, when finding great images, or determining precise locations based on GPS coordinates, the next question is always:

‘How do I get this into evidence?’

This is not an easy question to answer, yet a recent decision by the Ninth Circuit Court of Appeals helps resolve one issue of admissibility for such imagery: Google Earth coordinates are not hearsay. . . .

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A Few Reasons NOT to Handle Your Own Injury Case

24 Wednesday Jun 2015

Posted by in Recent Links and Articles

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Print this out, and keep it with your car’s insurance verification. -CCE

The Haubrich Law Firm, P.C.

Right now I’m working on a personal injury case where a couple got rear-ended.  They, and their passenger, were injured.  One of my clients has two herniated discs is his low back, which is a serious and very painful permanent injury.  Initially, they tried to negotiate and handle the case themselves, because they thought the liability insurance company would “do the right thing”.

Not so much.  They got frustrated and came to me a year later, after really mis-handling their own claim.  Now, about another year later, I’ve about got the mess they created straightened out and am able to reach a settlement which more closely resembles reasonable compensation.

So, Here are a few reasons to at least consult a lawyer immediately after getting injured, and BEFORE talking to an insurance liability adjuster.

1.  You don’t know how to put a liability insurance claim together.

Insurance adjusters consider “specials” — special…

View original post 865 more words

PayPal Has A New Agreement.

24 Wednesday Jun 2015

Posted by in Consumer Law, Contract Law, FCC, Finance and Banking Law, Government, Telemarketing, Telephone Consumer Protection Act

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PayPal’s New Agreement and the FCC, Editor: D. A. Jeremy Telman Valparaiso Univ. Law School, ContractsProf Blog

http://tinyurl.com/odzogfg

Last week, the Federal Communications Commission acted to approve a number of proposals that update the TCPA (Telephone Consumer Protection Act), popularly known as the  “Do Not Call” law that prohibits companies from interrupting consumers’ dinner time conversations with pesky telemarketing calls. . . .

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Ex-Wife Cross-Examines Former Husband – No Squabbling!

20 Saturday Jun 2015

Posted by in Cross-Examination, Divorce, Family Law, Trial Tips and Techniques

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Biglaw Divorce Gets Nasty As Ex-Wife Cross-Examines Former Husband, by Joe Patrice, Above The Law

http://abovethelaw.com/2015/06/biglaw-divorce-gets-nasty-as-ex-wife-cross-examines-former-husband/

It’s hard to imagine a scenario where this was a good idea.

Hydee Feldstein, a retired Sullivan & Cromwell partner, decided to cross-examine her ex-husband Peter Gregora, a former tax litigator at Irell & Manilla, in their contentious divorce case — a case where Feldstein alleges Gregory stole nearly $20 million from her. They say a lawyer representing herself has a fool for a client. Well, Feldstein has outside counsel — indeed counsel from two firms, Miller & Ayala LLP and the Rudd Law Firm — yet it was Feldstein who cross-examined her ex in open court. After reading the resulting train wreck, perhaps there are fools on all sides of Feldstein’s defense. . . .

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An Expert’s Guide To Formatting An Appellate Brief.

20 Saturday Jun 2015

Posted by in Appellate Law, Appellate Writing, Brief Writing, Citations, Citations to the Record, Court Rules, Courts, Legal Writing, Local Rules, Table of Authorities

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How to Format an Appellate Brief, by Deborah Savadra, Lawyerist Blog

(Deborah Savadra is editor and chief blogger at Legal Office Guru, which offers The WordPerfect Lover’s Guide to Word as well as Microsoft Office video tutorials. You can follow her on Twitter at @legalofficeguru.)

https://lawyerist.com/70334/format-appellate-brief-microsoft-word/

Appellate briefs are not a project for beginners. And, regardless of what you read in this tutorial, you must follow your appellate court rules to the letter.

When your court’s rules tell you that it wants citations done a certain way, it mean exactly that. If the court’s rules say a brief must not go over a certain number of pages, do not even think about “fudging” the rules by changing the font, page size, or line spacing.

You see, all courts, not just appellate ones, write local rules for a reason. Whatever “trick” you may try to skirt around those rules, that court has already seen it and knows it when it sees it again. Courts take their local rules seriously, and so should you.

There are many posts and articles posted on my blog about the strategy and nuances of writing appellate briefs, as well as many excellent books on the subject. This tutorial will help you with the nuts and bolts of writing the bare bones, which is always useful regardless of your writing proficiency.

I also highly recommend Ms. Deborah Savadra’s blog, Legal Office Guru. She does an excellent job. -CCE

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The appellate brief is undoubtedly one of the most complex pleadings, formatting-wise. Formatting requirements vary from court to court, going so far as to dictate the size and font of your type, your margins and your line spacing. (If you’ve ever had to do a U.S. Supreme Court brief, I feel your pain.) Even before you consider the text of your argument, you have to wrap your head around which pages have which style of page numbers, whether you must furnish a table of authorities, and how you have to deal with any appendices or references to the record. . . .

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Let’s Think About Going Paperless.

19 Friday Jun 2015

Posted by in Economics, File Naming Conventions, Law Office Management, Legal Ethics, Legal Technology, Office Procedures, Scanners, Technology, Technology, Time Management

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How One Law Firm Went Paperless: An Interview with Andrew Kucera, by Tim Baran, Rocket Matter

http://tinyurl.com/noy2suz

For years, law firms have talked about going “paperless.” It took some time to catch on. Scanners were sometimes more trouble than they were worth. It took money and many hours to convert all the files to a paperless system. It sounded like a good idea, but not everyone was convinced.

Things have changed. These days, going paperless makes good sense and good economics. No more filing or indexing pleadings? I can live with that.

This post from Rocket Matter makes good sense. If you decide to go that route, do not start until you look into file naming conventions. Pick one that is logical and easy to understand. Now you are on your way. -CCE

While putting together the Paperless Law Office E-Book, we thought, who better to learn from than a firm who went through the process? So we interviewed Andrew Kucera who was instrumental in helping move six-person Cuttone & Kucera, PC (now, Cuttone & Associates), a real estate and business law firm in Fresno, California, to a paperless operation. . . .

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Lawyers Have Ethical Duty To Ensure Password Security.

19 Friday Jun 2015

Posted by in Cybersecurity, Legal Technology, Passwords

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Hackers Are Hacking; You Need A Password Manager, by Jeff Richardson, iPhone J.D.

http://tinyurl.com/ofet7ar

Password security has been in the news again this week, and I’m using this as an opportunity to remind all iPhone J.D. readers — especially all of us attorneys with a duty a protect confidential attorney-client information — that we ought to be using complex, different passwords. . . .

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GetHuman™ — Talk To A Real Person, Not A Machine.

17 Wednesday Jun 2015

Posted by in Internet, References, Research

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GetHuman™

http://gethuman.com/

Every so often, you need information from a company or business. Your boss wants it yesterday, and all you have is a telephone number you found on the Internet. Each time you call, you end up in a never-ending voice machine loop.

If you haven’t heard of GetHuman™, take a minute to check it out. This is what I like about it. I can use its database to find a direct number to the company. It gives me instructions to bypass the voice machine, and talk to an actual person. Better yet, it is the person who has the answer to my question.

The last time I used it, it gave me an 800 number to call and then told me to press the star button four times when asked for an account number. A voice machine asked one easy question and, after a few minutes’ wait, someone from the legal department asked how he could help. I could ask all my questions, and get the answers I needed. From there, it was a short step to finish the assignment.

If you are unsuccessful, tell GetHuman™ what happened. How long did you have to wait? What was the problem? Did it have the company you needed? GetHuman™ takes that information, and uses it to fix improve its database.

It may not always be perfect, but it has helped me more often than not. Give it a try. -CCE

 

A New Bluebook Citation Guide.

16 Tuesday Jun 2015

Posted by in Citations, Legal Writing, The Bluebook

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FYI – A New User’s Guide To The 20th Edition Of The Bluebook Will Be Released Next Month, by James B. Levy, Legal Skills Prof Blog

http://tinyurl.com/pb8ane3

The new 20th edition of the Bluebook is out now and thus West Academic Press plans to publish next month a new user’s guide to go along with it called Anthon’s The Bluebook Uncovered: A Practical Guide to Mastering Legal Citation. . . .

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New And Amended Oklahoma Uniform Jury Instructions – Juvenile.

13 Saturday Jun 2015

Posted by in Jury Instructions, Legal Writing, Oklahoma Supreme Court

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Order Adopting New and Amended Oklahoma Uniform Jury Instructions and Verdict Forms – Juvenile.

http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=475710

On June 8, 2015, The Oklahoma Supreme Court published its new and amended Uniform Jury Instructions and Verdict Forms – Juvenile. The District Courts of the State of Oklahoma are to implement these instructions effective thirty days from the date of the Order. -CCE

 

Judge’s Benchslap for Missing E-Filing Deadline By Three Minutes.

13 Saturday Jun 2015

Posted by in Benchslap, Calendar/Docketing, E-Filing, Judges, Law Office Management, Legal Technology

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Judge Shames Lawyers Over Midnight Filings In Awesomely Sarcastic Order, by Staci Zaretsky, Above The Law

http://tinyurl.com/oeld5yg

Thanks to the advent of electronic filing, lawyers get to work nearly 24 hours a day. You’re not expected to work that much, of course, but your firms certainly wouldn’t mind it if you did. Got a motion due at midnight? No problem! You’re overworked and you’ve got a million other things on your plate, so putting one filing on the backburner can’t hurt. After all, you can just furiously write it the night it’s due, and click a few buttons to get it filed by 11:59 p.m. But for some, until the last minute will come back to bite you in the ass. . . .

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So What Happened To The Body?

13 Saturday Jun 2015

Posted by in Crime Scene Investigation, Criminal Law, Forensic Evidence

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Livor Mortis & Placing a Victim in the Trunk of a Car, by Colin Miller, EvidenceProf Blog

http://tinyurl.com/q6b63mk

For the past week, I’ve been trying to find a case involving lividity and a body in a trunk. The only case that I was able to find is State v. Persitz, 518 N.W.2d 843 (Minn. 1994). The Persitz case isn’t especially factually similar to the Adnan Syed case, but it does provide some interesting points of comparison/contrast. . . .

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Excellent Argument About Technology and Citation Placement.

13 Saturday Jun 2015

Posted by in Apple, Brief Writing, Citations, E-Briefs, E-Briefs, E-Filing, Footnotes, iPad, Laptop, Legal Technology, Legal Writing, Mac, Microsoft Office, PC Computers, Readability, Tablets

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If the Judge Will Be Reading My Brief on a Screen, Where Should I Place My Citations? by Peter Martin, Jane M.G. Foster Professor of Law, Emeritus, Cornell Law School, Citing Legally Blog

http://citeblog.access-to-law.com/?p=149

 

As pointed out in this article, more courts require e-filing and are using tablets and other technology to read what you file. If you do not use technology, then you do not know how your document appears on the screen. It is quite different than reading something on a printed page.

So what to do? Keep writing as you always have and ignore changes brought about by technology or adjust? -CCE

A. Introduction

In a prior post I explored how the transformation of case law to linked electronic data undercut Brian Garner’s longstanding argument that judges should place their citations in footnotes. As that post promised, I’ll now turn to Garner’s position as it applies to writing that lawyers prepare for judicial readers. . . .

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How Juror With Ties To Defendants’ Law Firm Stayed On The Jury.

10 Wednesday Jun 2015

Posted by in Implied Bias, Jury Selection, Peremptory Challenges, Trial Tips and Techniques, Voir Dire

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Motion to Strike Potential Juror Represented by Law Firm Involved Denied, by Daniel E. Cummins, TortTalk Blog

(Source for Mr. Cummins post: “Panel Upholds Decision Not to Strike Juror With Ties to Firm” by P.J. D’Annunzio of The Legal Intelligencer (June 3, 2015).)

http://www.torttalk.com/2015/06/motion-to-strike-potential-juror.html

In the non-precedential Pennsylvania Superior Court case of DeFrancesco v. Lehigh Valley Health Network, No. 742 EDA 2014 (Pa. Super. May 26, 2015 Panella, Olson, Fitzgerald, J.J.) (slip op. by Fitzgerald, J.), the appellate court affirmed a trial court’s decision not to strike a juror from a medical malpractice case during voir dire even though the juror was a client of the same firm representing defendants in the case. . . .

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