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The Researching Paralegal

Monthly Archives: September 2017

Why Automatic Deletion of Spam Email Causing Failure to File a Timely Appeal Is Not Excusable Neglect.

30 Saturday Sep 2017

Posted by Celia C. Elwell, RP in Calendar/Docketing, Emails, Law Office Management, Legal Ethics, Legal Technology, Office Procedures, Technology

≈ 1 Comment

Tags

Appellate Procedure, Email Configuration, Excusable Neglect, Spam

(With hat tip to William P. Statsky)

My home email software has a spam folder where unwanted emails go to die – eventually. I must deliberately choose to send an email to the spam folder. Then, I must decide whether let it remain in perpetual limbo as spam, block it, or delete it.

Imagine the number of emails routinely sent and received by most law firms.  My computer’s email setup would not be practical.  But, when it comes to email configuration, there are good choices and bad ones. A Florida law firm rejected recommended safeguards to snag spam and allow someone, other than the computer, to decide whether to delete the email. That decision, along with others, turned out to be a bad call.

Here are the facts. The trial court’s court clerk served an order by email on the parties. The order awarded a significant amount of attorney fees to the appellee. The appellant claimed it did not receive the emailed order, which is why it failed timely to file an appeal. What happened? The firm’s email system automatically deleted the court clerk’s email and attached order as spam.

The appellant appealed and asked the court to vacate the original order and reenter the order to allow the appellant to appeal. Its email deletion error was “excusable neglect.” Not so said that trial court, and the Florida’s First District Court of Appeal affirmed.

The appellate court gave several specific reasons for rejecting the appellant’s argument.  First, the review of the court clerk’s email logs confirmed that the email with the court’s order was served and received by the law firm’s server. Second, the law firm’s email configuration made it impossible to determine whether the firm’s server received the email. Third, the law firm’s former IT specialist’s advice against this configuration flaw was deliberately rejected by the law firm because its alternative cost more money.

The trial court concluded the law firm made a conscious decision to use a defective email configuration merely to save money, which was not “excusable neglect.”

Another nail in the coffin was testimony by the appellee’s attorney. His firm assigned a paralegal to check the court’s website every three weeks to safeguard that his firm would not miss any orders or deadlines.  The court held that the appellant had a duty to check the court’s electronic docket.

What’s the moral here? Lawyers must configure their computer systems to prevent this costly error. And they must employ a “meaningful procedure” to prevent the series of events that caused this fatal error.

I rather liked the idea of the paralegal assigned to check the court’s online file. In this instance, the paralegal checked it every three weeks. I would modify this depending on the notice time required by your court’s rules.

I recommend reading the entire opinion for its analysis on “excusable neglect.” You can find the opinion here: http://bit.ly/2xI3gGB. -CCE

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Identity Theft is Real and Scary. So What Are You Going To Do About It?

21 Thursday Sep 2017

Posted by Celia C. Elwell, RP in Consumer Financial Protection Bureau, Consumer Law, Consumer Privacy, Identity Theft

≈ Comments Off on Identity Theft is Real and Scary. So What Are You Going To Do About It?

Tags

Identity Theft, United States Computer-Readiness Team

Security Tip (ST05-019) – Preventing and Responding to Identity Theft, United States Computer-Readiness Team (with hat tip to Sabrina I. Pacifici, BeSpacific Blog) t.(Original release date: September 17, 2008 | Last revised: January 31, 2017)

https://www.us-cert.gov/ncas/tips/ST05-019

I would love to stick my head in the sand, and pretend that identity theft does not exist. It is a foolish reaction to a real threat, especially after the recent Equifax hack.

Some people think that, if they do not use the Internet to pay their bills or make purchases, they are safe. I wish that were true; it isn’t. Hackers are more sophisticated, which means we should take additional precautions.

This security tip will help, and there is another link to an earlier tip that is likewise helpful. I encourage you to research further and take whatever precautions you deem necessary. -CCE

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What Judges Want.

16 Saturday Sep 2017

Posted by Celia C. Elwell, RP in Bad Legal Writing, Legal Argument, Legal Writing, Persuasive Writing, Readability

≈ Comments Off on What Judges Want.

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Legal Writing, Legal Writing Pro, Ross Guberman, William P. Statsky

Judges Speak Out Behind Closed Doors: How Your Briefs Might Bug Them, and How You Can Make Them Smile Instead, by Ross Guberman, Legal Writing Pro (with hat tip to William P. Statsky)

https://www.legalwritingpro.com/blog/judges-speak-out/

Ross Guberman is one of my favorite legal writing experts. Mr. Guberman conducted an anonymous and broad survey of judges’ likes and dislikes on legal writing. If you are serious about winning, then you care whether your judge not only reads and understands what you write, but also likes it. -CCE

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The New Standard for Password Protection.

08 Friday Sep 2017

Posted by Celia C. Elwell, RP in Cybersecurity, Legal Technology, Passwords

≈ Comments Off on The New Standard for Password Protection.

Tags

Nick Statt, Password Protection, The Verge

Best Practices for Passwords Updated After Original Author Regrets His Advice, by Nick Statt, The Verge

http://bit.ly/2ujlSyz

Did you ever use the word “password” as your password or work for someone who did? Maybe you added “1” at the end to make it more difficult to crack? Before we knew about the dangers of Internet hacking, we often used the same password for everything.

Now most of us use intricate passwords with upper and lowercase letters, numbers, and symbols, and never use the same password twice. Why? Because people like Bill Burr told us that was the best way to stay secure on the Internet.

Unfortunately, using irregular capitalization, numbers, and special characters, made our passwords easier to predict. We made it worse. We got lazy.  When we changed our passwords, often we would replace only a character or two at the most. This made our passwords easier to crack, and did little or nothing to make them more secure.

Now Mr. Burr encourages us to ignore his earlier advice, even though some of these complex passwords have stood the test of time. Unless you use a password generator, the advice now is to use random phrases that have no apparent connection. Happily, they are easier to remember and harder to crack at the same time. -CCE

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Managing Distractions.

06 Wednesday Sep 2017

Posted by Celia C. Elwell, RP in Law Office Management, Office Procedures, Time Management

≈ Comments Off on Managing Distractions.

Tags

Alliance Work Partners, Distractions, Interruptions, Nicola Leach

How to Manage Interruptions and Distractions at Work, by Nicola Leach, Alliance Work Partners

https://www.awpnow.com/main/2016/07/07/manage-distractions-at-work

I admit that one of the things I like about working as a paralegal is that I never know exactly what will happen every day. I may have a mental list of target goals I want to accomplish that day. I may even get to start on at least one. But, emails, telephone calls, co-workers, demands of your clients, and unexpected and last-minute assignments often interrupt my work day. It’s what I call a normal day at the office.

I rely on checklists and our office software to keep me apprised of upcoming deadlines and when an average project has turned into a critical one. Prioritizing what comes first can be a challenge. But the biggest challenge I face is interruptions and distractions that eat away at my productivity.

If you have your own office, you can shut your door. If office drama occurs, heading back to your assigned work area and focusing on anything but the uproar is always the best policy.

But, remember that this door swings both ways. If you have no door to shut or share space with someone else, you must remember that you are not alone. Whenever you talk on the phone, mumble to yourself (I often talk to my computer as if it will pay attention to my demands), or make unnecessary noise, YOU have become the distraction.

Checklists work best for me to be prioritize my work load and make sure that nothing falls through the cracks. Your case management software might have built-in checklists you can use. If not, write your own. What works for me may not work for you. Regardless of your method, be faithful and turn it into a habit rather than a chore. -CCE

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An Analysis of the Unauthorized Practice of Law.

04 Monday Sep 2017

Posted by Celia C. Elwell, RP in Legal Analysis, Legal Writing, Litigation, Unauthorized Practice of Law, Wrongful Death

≈ Comments Off on An Analysis of the Unauthorized Practice of Law.

Tags

Case Analysis, Legal Profession Prof, Mike Frisch, Unauthorized Practice of Law

Wrongful Death Case Filed for Late Spouse Not Null and Void as Unauthorized Practice, by Mike Frisch, Legal Profession Prof (with hat tip to William P. Statsky)

http://bit.ly/2xK44uo

A man’s wife dies in a hospital due to complications after surgery. He sues the hospital and other defendant in a wrongful death lawsuit. You can represent yourself in court without a lawyer, but can you represent someone else without a lawyer? No, you can’t. It’s called the unauthorized practice of law. So, how did he do it? -CCE

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