10 Sunday Aug 2014
Posted in Immigration Law
≈ Comments Off on Pro Bono Resource for Immigration Attorneys.
Immigration Advocates, Pro Bono Resource Lawyers
http://www.immigrationadvocates.org/probono/
A simple Google search for immigration pro bono attorneys will lead you to many websites that will connect you to quality, helpful resources. This is only one of them. It provides podcasts, a volunteer guide, library, web links, and more. You will find more links to other pro bono immigration lawyer resources on the right-hand side of the page under “Partners.” -CCE
10 Sunday Aug 2014
Posted in Legal Technology, PowerPoint, Presentations
≈ Comments Off on Avoiding PowerPoint Suicide At Your Next Presentation.
Tags
Ken Lopez, Legal Technology, PowerPoint, Presentations, TED Talks, The Litigation Consulting Report
12 Ways to Eliminate “But I Need Everything On That PowerPoint Slide,” by Ken Lopez, The Litigation Consulting Report
Have you ever heard any of the following during a PowerPoint presentation?
- ‘It may be hard to make out the details of this slide.’
- ‘I’m not sure if you can read this in the back of the room.’
- ‘In case you can’t read this, let me read it for you.’
- ‘I know there is a lot on this slide, but bear with me.’
- ‘Let me try to zoom in on this part of the slide [proceeds to fumble with remote]’
Of course you have heard these apologetic statements. If you are in the business world, you have probably heard them all. However, there is never an excuse to say these things whether in a boardroom or in a courtroom. As much as you may want everything you have to say about a key message on a single PowerPoint slide, as hard as it may be to imagine another way of doing things, I promise, you most definitely do not need everything (or even a lot) on one slide. And, you can still get your point across.
The number one video in my recent article The Top 14 TED Talks for Lawyers and Litigators 2014 as well as other articles I have written like 12 Reasons Bullet Points Are Bad and 7 Ways to Avoid Making Your PowerPoint Slides Your Handout describe methods for limiting the amount you put on your slide.
With all this said, it is important to remember that sometimes you just need everything on a slide. Sometimes it is an advantage. So, in this article, I want to offer twelve easy methods for eliminating PowerPoint slide clutter and focusing your audience’s attention on what matters – you and your message . . .
06 Wednesday Aug 2014
Posted in Consumer Law, Finance and Banking Law, Foreclosure
≈ Comments Off on Bad GPS Is A Defense? Who Knew?
Tags
Above the Law (blog), First National Bank, Foreclosure, GPS, Joe Patrice, Lender Processing Services, Repossession, Safeguard Properties, Wells Fargo
Imagine returning home from vacation and finding your home cleaned out. The thieves grabbed all the furniture, all the gadgets, all the kitchenware, and left you nothing.
That’s what happened to an Ohio woman recently, and the police are refusing to help.
That’s because the perpetrator was First National Bank. Except Katie Barnett was not behind on her payments; the bank just repossessed the wrong house.
Fair enough. Mistakes happen. The bank is going to pay her back though, right? . . . .
06 Wednesday Aug 2014
Posted in Appellate Law, International Law, United Kingdom
≈ Comments Off on International Law: The Supreme Court of the United Kingdom.
Tags
Constitutional Reform Act of 2005, Donna Sokol, Great Britain, In Custodia Legis, Law Library of Congress, Supreme Court, UK, United Kingdom
The Supreme Court of the United Kingdom, by Donna Sokol, In Custodia Legis, Law Librarians of Congress
Yesterday we celebrated the fourth birthday of In Custodia Legis, and today we have reached another milestone: this is the 1,000th blog post that we’ve published! We asked David S. Mao, the Law Librarian of Congress, to write the 1,000th post. In it, he highlights some of the many different areas of interest for the Law Library of Congress, such as legal systems, courts, foreign law, and of course, our collection of current and historical legal materials.
On a trip to London in 2012, I walked past the Supreme Court of the United Kingdom located in Parliament Square. Unfortunately, I did not have the opportunity to visit the Court, as it was Sunday and the building was closed. I was, however, able to take a picture of the front doors.
Earlier this summer, I visited London again. This time I made sure to visit Parliament Square on a weekday so I was able to visit the Court.
While the UK has a long history as a sovereign state, the Supreme Court is a very new entity in the UK. It was created by the Constitutional Reform Act of 2005, with the Justices of the Supreme Court sitting for the first time in October 2009. The Court hears civil appeals from all parts of the UK, and criminal appeals from England, Wales, and Northern Ireland. I’ll leave it to Clare to explain the intricacies of the Court’s jurisdiction. . . .
03 Sunday Aug 2014
Posted in Depositions, Discovery, Federal Rules of Discovery, Objections, Sanctions, U.S. District Court of the Northern District of Iowa
≈ Comments Off on Federal Judge Benchslaps Counsel For Discovery Abuse In A Very Special Way.
Tags
Above the Law (blog), Deposition Objections, Discovery Abuse, Discovery Sanctions, Joe Patrice, Judge Mark Bennett
Biglaw Firm Ordered To Make A Video Apologizing For Discovery Abuses, by Joe Patrice, Above The Law Blog
Litigators get away with a lot of obnoxious stuff during discovery. For better or worse, the pre-trial discovery phase of civil litigation is every lawyer’s opportunity to relive those times when parents leave kids alone for the first time: every slight, disagreement, and jealousy on a slow boil explodes into anarchic back-biting once there’s no authority figure around to enforce civility. Bring on the mean-spirited letters and smack-talking RFAs.
When it comes to depositions, it doesn’t always reach ‘fatboy’ levels, but a federal deposition isn’t a deposition until someone threatens to call the magistrate — though never does.
Which is why this benchslap, where a federal judge levies a sanction straight out of elementary school, is so appropriate….
03 Sunday Aug 2014
Posted in American Indian, Constitutions, Law Libraries, Primary Law, Research, Statutes, Tribal Law
≈ Comments Off on North American Indigenous Law Portal – A Collection of Primary Sources and Websites.
Tags
American Indian, In Custodia Legis, Indigenous People, Library of Congress, Tina Gheen, Tribal Law
Introducing the Indigenous Law Portal, by Tina Gheen, In Custodia Legis, Law Librarians of Congress
http://blogs.loc.gov/law/2014/07/introducing-the-indigenous-law-portal/
At the recent American Association of Law Libraries Conference, Jennifer Gonzalez, Jolande Goldberg and I had an opportunity to unveil a new Indigenous Law Portal. The Indigenous Law Portal brings together collection materials from the Law Library of Congress as well as links to tribal websites and primary source materials found on the Web. The portal is based on the structure of the Library of Congress Classification schedule for Law (Class K), specifically the Law of the Indigenous Peoples in the Americas (Classes KIA-KIP: North America).
Indigenous law materials can be difficult to locate for a variety of reasons. Tribal laws are usually maintained by individual tribes or groups of tribal peoples who may or may not have the resources to make them available in electronic format, or they may only be passed on through oral tradition. In some cases tribal legal materials are available electronically, but they may not be available freely on the Web, or the tribe may want to restrict outside access to the materials. However, through our research, we have found many tribes compile their laws and ordinances into a code, and they often provide a digital version of their most recent code and constitution online. In the Law Library, we already have digitized copies of historic American Indian constitutions from our collection and other legal materials available on our website. It makes sense to bring all these materials together in one place.
But how to organize such a collection of digital resources? Especially when the complexity and availability of resources varies from tribe to tribe. We wanted a structure that would allow us the flexibility to organize and expand as needed. Something that would provide a basic backbone for organizing the materials and also detailed information about the tribes individually and as a whole. The answer to our dilemma came from an unexpected place: a new classification schedule developed by Jolande Goldberg of the Library of Congress Acquisitions and Bibliographic Access Directorate: the Law of the Indigenous Peoples in the Americas. . . .
01 Friday Aug 2014
Posted in Cross-Examination, Litigation, Trial Tips and Techniques
≈ Comments Off on Can Your Witness Stand Up To Cross-Examination?
Tags
Cross-Examination, Direct Examination, Dr. Ken Broda-Bahm, Litigation, Persuasive Litigator Blog, Witness Preparation
Counterpunch: Ten Ways to Fight Back on Cross, by Dr. Ken Broda-Bahm, Persuasive Litigator Blog
http://www.persuasivelitigator.com/2014/03/counterpunch-10-ways-to-fight-back-on-cross.html
A good witness should not see cross-examination as an argument, but neither should that witness see it as a time to be agreeable and passive with opposing counsel. Because the inherent conflict of cross piques the jurors’ interest, it can be a critical time. The two sides are in direct conflict and the jury has the ability to decide first-hand who seems to be winning at that moment. Given the stakes, it is too dangerous for a witness to just be led along by opposing counsel, comforting themselves with the knowledge that, ‘Well, at least I got to tell my side in direct,’ or, ‘My own attorney will give me a chance to fix all of this in redirect.’ Both are valid comforts, but effective direct and redirect will never completely erase the perceptual losses that can occur in cross. Substantively, the problem might be fixed, but jurors will still remember those moments where the witness looked weak, and that cannot help but influence their perception of your case and of the witness’s credibility.
The way I’ve explained it before is that cross-examination is, for the witness, a polite struggle. ‘Polite’ because the witness can’t afford to come off as too combative or uncooperative — ‘I’m just here to tell the truth…’ should be the tone. But ‘struggle,’ because there is a skilled advocate at the lectern whose job is to, at least for the moment, support his story and not yours. A good witness needs to work against that purpose. Like any advice, the message to fight back’ can be taken too far, or not far enough. It is a matter of balance and practice, and it clearly helps to get feedback during a prep session or two to make sure the communication is assertive but not aggressive. With these considerations in mind, here are ten ways witnesses can maintain their own power while being cross-examined. . . .
01 Friday Aug 2014
Posted in Law Office Management, Legal Ethics, Legal Technology, Malpractice, Social Media, Technology, Technology, Technology, Trial Tips and Techniques, Using Social Media
≈ Comments Off on Is It Legal Malpractice If You Are Technologically Incompetent?
Tags
ABA's Model Rules, Law Office Management, Lawyerist Blog, Legal Ethics, Legal Malpractice, Legal Technology, Luddite, Megan Zavieh
Luddite Lawyers Are Ethical Violations Waiting To Happen, by Megan Zavieh, Lawyerist Blog
Do you have a smart phone but only know how to make a telephone call? Do you think of a cloud as some white puffy thing in the sky that looks like a ducky? Do you have a computer on your desk but never turn it on? Is the password to your computer actually “password”? Then this article is for you. Technology is here, and it is not going away. Resistance if futile. -CCE
Technological incompetence used to be merely a competitive disadvantage. Now, it is a potential ethics violation — or even legal malpractice.
During my first year of law school, we were not allowed to do computerized research. Instead, we were taught to use the leather-bound reporters, Shepherds, and treatises. It was only during our second year that we were deemed worthy to use Westlaw and Lexis to ‘confirm’ our book findings. (Of course, I doubt any of us ventured into the stacks again.)
This approach reflected the general attitude of the legal profession in the mid-to-late 1990s. Technology was grudgingly accepted, but not required. Lawyers at big firms had online research accounts and solos went to the law library to use the books. Nobody thought anything was wrong with this, although online research did give big firms a competitive edge.
In 2013, email is ubiquitous, and just about every lawyer has some form of electronic research available on his laptop, tablet, or phone. And everyone — lawyers included — uses Google to find everything else. In law practice, that includes research on witnesses, opponents, judges, and anything else not found in a Fastcase, Westlaw, or Lexis database. Technology is an unavoidable part of practicing law.
Ethics rules follow practice
The ethics rulemakers have taken note of this evolution, and the rules have grown to require technological competence.
Lawyers cannot ignore technology
The ABA made it abundantly clear that lawyers must keep up with technology when it amended comment 8 to Model Rule 1.1 on competence. Comment 8 now reads:
To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.
(Emphasis added.)
As Nicole Black, Director of Business Development at MyCase, puts it, ‘I think it’s pretty clear that […] lawyers can no longer turn a blind eye to technological advancements and their effect on the practice of law.’ . . .
27 Sunday Jul 2014
Posted in Android Phones, Appellate Law, Apple, Blackberry Phones, Cell Phones, Computer Forensics, Crime Scene Investigation, Criminal Law, Cybersecurity, Discovery, E-Discovery, Emails, Evidence, Experts, Forensic Evidence, Forensic Evidence, Forensic Expert Witness, Fourth Amendment - Search & Seizure, Google, Internet, iPad, iPhones, Legal Technology, Mac, PC Computers, Privacy, Search Warrants, Tablets, Trial Tips and Techniques, U.S. District Court for the District of Columbia, U.S. District Court for the Southern District of New York
≈ Comments Off on Government Can Access Individual’s Gmail Account In Money Laundering Probe.
Tags
Computers, Email, Evidence, Forensic Experts, Gmail, Google, Hard Drives, Magistrate Judge Gabriel W. Gorenstein, Money Laundering, Search & Seizure, Warrants
In a landmark ruling that might fuel a nationwide debate, the New York Court issued a warrant against Google, giving access to user emails.
A New York Court issued a warrant against Google Inc ruling that the government can access all mails of a Gmail account of an individual under a money laundering probe. The judge said that courts have long been waiting for law enforcement to take the required documents in the custody if it is within the purview of the warrant.
Contrary to previous rulings
This decision is not in line with the previous court rulings including courts in the Districts of Columbia and Kansas, Magistrate Judge Gabriel W. Gorenstein of the U.S. District Court for the Southern District of New York noted on Friday. Also, this latest ruling will spark a debate over the privacy, in the country, according to Computer World.
A District of Columbia judge denied from revealing the entire content of the email as this will seize a large amount of emails for which the authorities have not given any reason.
The Court in Kansas, also, did not rule in favor of a similar warrant, stating that it failed to ‘limit the universe of electronic communications and information to be turned over to the government to the specific crimes being investigated.’
However, the New York Court ruled in favor of such warrant, allowing authorities to take into account the emails and other information from a Google inc’s Gmail account, including the address book and draft mails, and also the authority to search the emails for certain specific categories of evidence.
Experts must scan emails, not Google employee
Judge Gorenstein argued that it is not possible to search the hard-disk drives of computers and other storage devices on the spot due to the complexities of electronic searches. Thus, the authorities can seize such storage.
‘We perceive no constitutionally significant difference between the searches of hard drives just discussed and searches of email accounts,’ the judge wrote. He added that in most of the cases data in an email account will be less ‘expansive’ compared to the information contained in the hard drive.
Judge Gorenstein stated that Google employees are not expert enough to know the importance of particular emails without having been given proper training in the substance of the investigation. Judge said this in response to an opinion by the District of Columbia court that gave the government the option of getting the email scanned by the host itself.
He said that an agent, who is completely absorbed in the investigation, will be able to understand the importance of a particular language in emails contrary to the employee.
27 Sunday Jul 2014
Posted in Animal Law
≈ Comments Off on Library of Congress’ Introduction to Animal Law.
An Introduction to Animal Law, by Ashley Sundin, In Custodia Legis Blog, Library of Congress
http://blogs.loc.gov/law/2014/07/an-introduction-to-animal-law/
Animal law is a rapidly growing area of law, especially in the past decade. The human–animal interaction comes in a variety of forms including companionship, agriculture, and science. As a result, animal law extends into many areas of law including criminal, torts, property, and constitutional law.
This guide will provide an overview of the resources available covering animal law, wildlife law, and animal rights and welfare. . . .
27 Sunday Jul 2014
Posted in Education, Ethics, Paralegals/Legal Assistants, Professional Organizations
≈ Comments Off on State Bar of Texas Paralegal Division And Texas’ Board of Paralegal Specialization Program.
Tags
Paralegal Specialization, Paralegals, State Bar of Texas Paralegal Division, Texas Bar Association, The Texas Board of Legal Specialization
Not all state bar associations have a paralegal division. Texas Bar Association’s Paralegal Division was the first one in the United States created in 1981. Its website has lots of cool stuff, such as:
TBLS is pleased to announce the official launch of our new website specifically for the Paralegal Specialization program. This site is an informational, public-facing web site designed to promote the presence, and exclusive status, of the TBLS paralegal certification process. It also acts as an Intranet for the Board Certified Paralegal (BCP) community and Texas attorneys interested in specialized paralegal matters.
We have just concluded final stages of development and want you to have the first look this weekend of our new site at http://www.tbls-bcp.org. This is only the initial phase of the website with plans for more video, online member services and social media options. . . .
27 Sunday Jul 2014
Posted in Fair Use, Intellectual Property
≈ Comments Off on Second Circuit Decision Gives Libraries Full Advantage of Fair Use.
Tags
Authors Guild v. HathiTrust, Fair Use, Google Book Search, Intellectual Property, Libraries, Mass Digitization, Savings Clause, United States Court of Appeals for the Second Circuit
The library community welcomed the decision of the U.S. Court of Appeals for the Second Circuit in Authors Guild v. HathiTrust, __ F. 3d __, 2014 WL 2576342 (2nd Cir. 2014). [Note – a copy of the decision is available here via EFF]. The decision has implications for libraries that go far beyond the specific facts of the case. This paper offers some preliminary thoughts on what these implications may be.
The broadest implication of decision arises out of a footnote. Ever since the adoption of the library exceptions in 17 U.S.C. § 108, rights holders have argued that section 108 limits the availability of fair use to libraries, notwithstanding the savings clause in section 108(f)(4) that states explicitly that ‘nothing in this section in any way affects the right of fair use as provided by section 107.’ In this litigation, the Authors Guild repeatedly argued that section 108 restricted fair use. Judge Baer rejected this argument in the district court, and the Second Circuit rejected it again in footnote 4. Citing the savings clause, the Second Circuit stated that ‘we do not construe § 108 as foreclosing our analysis of the Libraries’ activities under fair use….’ HathiTrust at *4, n. 4. Thus, the decision holds unambiguously that libraries may take full advantage of the fair use right.
The decision also demonstrates how the fair use right applies in the context of a specific library activity: mass digitization. . . .
27 Sunday Jul 2014
Posted in Canada, Canada Licensing, Paralegals/Legal Assistants, Regulation
≈ Comments Off on Canada’s Paralegal Professional Conduct Guidelines.
Tags
Canada Paralegals, Conflicts of Interest, Federation of Law Societies of Canada, Paralegal Professional Conduct Guidelines, Paralegal Regulation, The Law Society of Upper Ontario
Paralegal Professional Conduct Guidelines, The Law Society of Upper Ontario
http://www.lsuc.on.ca/with.aspx?id=1067
The Paralegal Professional Conduct Guidelines help to interpret and to apply the Paralegal Rules of Conduct. Amendments to the Model Code (see below) will be effective October 1, 2014. –CCE
http://www.lsuc.on.ca/new-rules/
NEW RULES OF PROFESSIONAL CONDUCT
CTA graphic new rules Rules of conduct amended to implement Federation’s Model Code
Convocation amended the Rules of Professional Conduct and the Paralegal Rules of Conduct to implement the Federation of Law Societies of Canada’s Model Code of Professional Conduct. The Paralegal Professional Conduct Guidelines were also amended.
Key points:
•The amended lawyer and paralegal rules, and paralegal guidelines, come into effect October 1, 2014.
•Most amendments are minor, however some changes are more substantive and introduce new standards – particularly changes to the rules dealing with conflicts of interest, undertakings and withdrawal from representation. See summary of changes – lawyers (PDF) and summary of changes – paralegals (PDF).
•The new lawyer rules include a new numbering scheme that mirrors the Model Code.
•The Law Society is developing new and updating existing resources to assist lawyers and paralegals.
The Law Society is offering free webcasts to ensure that all members can access important information on these changes.
Free webcast on amendments for lawyers – September 8
Free webcast on amendments for paralegals – September 8.
26 Saturday Jul 2014
Posted in Appellate Law, Appellate Writing, Bad Legal Writing, Brief Writing, Legal Analysis, Legal Argument, Legal Writing, U.S. District Court for the District of Columbia, U.S. District Courts, Voting Rights Act
≈ Comments Off on Arrogant Legal Writing Gives Texas A Horrible, Terrible Very Bad Day.
Tags
Attorney Fees, Bad Legal Writing, Judge Rosemary M. Collyer, Kevin Underhill, Legal Writing, Lowering the Bar Blog, Prevailing Party, Shelby County, State of Texas, Voting District, Voting Rights Act
Bad Attitude Costs Texas in Fee Dispute, by Kevin Underhill, Lowering the Bar Blog
http://www.loweringthebar.net/2014/06/bad-attitude-costs-texas.html
Hey, I get it—sometimes when you win and you think the other side’s position was bogus, it’s hard not to get all smug and self-righteous.
But you really should try.
Not trying very hard—well, not trying at all—cost the State of Texas a lot of money on June 18, when a judge awarded other parties in a voting-rights case $1,096,770 in legal fees and costs, even though Texas had a decent argument that it was the prevailing party and so it should get paid. (McClatchy DC; thanks, Mark.)
In the U.S., normally each side has to pay its own fees, but some statutes say the ‘prevailing party’ is entitled to recover fees from the loser. But exactly who ‘prevails’ in a lawsuit is not always clear, and that was the case in this lawsuit, which involved Texas’s plans to redraw its voting districts. (Skip down three paragraphs or so if that could not sound more boring.)
Under the Voting Rights Act—Still here? Nerd. Under the Voting Rights Act, Texas was one of the states that had to get federal ‘preclearance’ for redistricting because of the history of discrimination there. Texas decided to sue for a declaration that its plans were okay, and the feds opposed. Other parties (Democrats, basically) intervened because they also wanted to oppose. Texas mostly lost in the district court, and it appealed. In the meantime, though, it came up with new plans that were more likely to comply with the court’s order.
One day before the new plans became law, the U.S. Supreme Court held in Shelby County that all this VRA preclearance stuff was unconstitutional—or had become unconstitutional at some point over the last 50 years, anyway, discrimination now being a thing of the past, you see. Told you so, said Texas, and moved to dismiss the still-pending case involving its first set of plans.
Okay, so who ‘prevailed’ in that mess? The Democratic groups said they did, because Texas lost the first ruling and changed its plans, just like they wanted it to, and they filed motions seeking over $1 million in fees. Texas did not agree.
It did not agree so much, in fact, that it didn’t even bother to file responses. Or, rather, it did file something but it couldn’t bring itself to call the document a ‘response.’ It filed this three-page thing it called an ‘Advisory,’ saying that not only did Shelby County mean Texas won, it meant Texas had essentially always been right because the law was unconstitutional all along (an ‘affront’ and a ‘nullity’), and the case never should have been brought. That’s wrong for a couple of reasons, I think, but Texas was so sure of itself that it didn’t bother to say much of anything else.
As the judge’s decision made clear, this was a Bad Idea. . . .
26 Saturday Jul 2014
Posted in Android Phones, Apple, Apps, Cell Phones, iPad, iPhones, Law Office Management, Legal Technology, Tablets, Technology, Time Management
≈ Comments Off on Jeff Richardson’s Latest for iPhones and Ipads.
Tags
Apple, Apps, GoTenna, IBM, iOS, iPads, iPhone J.D. Blog, iPhones, iStick, Jeff Richardson, Wi-Fi
In the news, by Jeff Richardson, iPhone J.D. Blog
http://www.iphonejd.com/iphone_jd/2014/07/apple-2014-q3.html
In this version of Jeff Richardson’s “In the news,” we get a wide variety of iPhone and iPad candy. There is information about Apple’s new partnership with IBM, smart watches, making the most of Wi-Fi on an iPhone or iPad, apps to track billable hours and listen to podcasts, the iStick – a new thumb drive with a USB and Lightning connector to transfer files between a computer and an iPad without having to use a cloud (a bit pricey for my budget), and Touch ID – a fingerprint scanner for iPhone 5s.
For those of you already in football mode, Jeff shows us how to subscribe to NFL Sunday Ticket from any iOS device for $200.
If you are a hiker, you may be interested in a new device that lets you connect to another iPhone or Android device up to 50 miles away even when there is no cell or Wi-Fi Service. You may think of other ways this kind of thing would be handy. It is nice when traveling abroad because it will allow you to remain in touch with another GoTenna user without having to pay the high international cell roaming fees.
If you think that no one hears you, send an email to Apple COE Tim Cook. Someone sent an email about the quality of the music played while waiting on hold with Apple. Mr. Cook read the email, and fixed it. -CCE
24 Thursday Jul 2014
Posted in Evidence, Spoilation, Texas Supreme Court
≈ Comments Off on Texas 2-Step For Spoilation of Evidence.
Spoilation, Texas Style, by Joshua Gilliand, Bow Tie Blog
http://bowtielaw.wordpress.com/2014/07/16/spoliation-texas-style/
The Texas Supreme Court has clarified the standards for spoliation (in Texas). The rule is that Texas has a two-step process: (1) the Trial Court must determine, as a question of law, whether a party spoliated evidence, and (2) if spoliation occurred, the Court must assess an appropriate remedy. Brookshire Bros., Ltd. v. Aldridge, 2014 Tex. LEXIS 562, 3-4 (Tex. July 3, 2014).
This Allemande Left and Do So Do requires a Trial Court to find that (1) the spoliating party had a duty to reasonably preserve evidence, and (2) the party intentionally or negligently breached that duty by failing to do so. Brookshire Bros., Ltd., at *3. This is to be done outside the presence of the jury, so the accused party is not swung around before the jurors, causing any prejudicial effect by the presentation of evidence that is unrelated to the facts underlying the lawsuit. Id. (and memories of 7th grade square dancing). . . .
23 Wednesday Jul 2014
Posted in Computer Forensics, Cybersecurity, Identity Theft, Legal Technology
≈ Comments Off on Canvas Fingerprinting – The Online Computer Tracking Device Almost Impossible To Block.
Tags
AdBlock Plus, AddThis, Canvas Fingerprints, Computer Code, Computer Forensics, Computer Tracking, Julia Angwin, Mashable, Privacy, ProPublica, User Profiles
Meet the Online Tracking Device That is Virtually Impossible to Block, by Julia Angwin, ProPublica
(This story was co-published with Mashable.)
Update: After this article was published, YouPorn contacted us to say it had removed AddThis technology from its website, saying that the website was ‘completely unaware that AddThis contained a tracking software that had the potential to jeopardize the privacy of our users.’ A spokeswoman for the German digital marketer Ligatus also said that is no longer running its test of canvas fingerprinting, and that it has no plans to use it in the future.
A new, extremely persistent type of online tracking is shadowing visitors to thousands of top websites, from WhiteHouse.gov to YouPorn.com.
First documented in a forthcoming paper by researchers at Princeton University and KU Leuven University in Belgium, this type of tracking, called canvas fingerprinting, works by instructing the visitor’s Web browser to draw a hidden image. Because each computer draws the image slightly differently, the images can be used to assign each user’s device a number that uniquely identifies it.
* * *
Like other tracking tools, canvas fingerprints are used to build profiles of users based on the websites they visit — profiles that shape which ads, news articles, or other types of content are displayed to them.
But fingerprints are unusually hard to block: They can’t be prevented by using standard Web browser privacy settings or using anti-tracking tools such as AdBlock Plus.
The researchers found canvas fingerprinting computer code, primarily written by a company called AddThis, on 5 percent of the top 100,000 websites. . . .
22 Tuesday Jul 2014
Posted in Abbreviations, Acronyms, Appellate Law, Bad Legal Writing, Brief Writing, District of Columbia Circuit Court of Appeals, Initialisms, Legal Writing, Readability, Style Manuals
≈ Comments Off on Senior Judge Shares Tip To Avoid “Lousy Brief Writing.”
Tags
Acronymns, Brief Writing, Bryan Garner, Garner’s Dictionary of Legal Usage, Initialisms, Legal Writing, Louisiana Appeals Blog, Raymond Ward, Senior Judge Laurence Silberman
Don’t Let Your Brief Be DOA, by Raymond Ward, Louisiana Civil Appeals Blog
Here is a briefwriting tip courtesy of Senior Judge Laurence Silberman of the D.C. Circuit: avoid overuse of uncommon initialisms.
Petitioner’s brief, unfortunately, was laden with obscure acronyms notwithstanding the admonitions in our handbook (and on our website) to avoid uncommon acronyms. Since the brief was signed by a faculty member at Columbia Law School, that was rather dismaying both because of ignorance of our standards and because the practice constitutes lousy brief writing. [Ouch!] . . . .
22 Tuesday Jul 2014
Posted in Appellate Writing, Legal Writing, Proofreading
≈ Comments Off on It Could Happen To Anyone – But Justice Scalia Isn’t Just Anyone.
Would You Like Salt on That Crow?, by Tiffany Johnson, Good Legal Writing
http://goodlegalwriting.com/2014/07/22/would-you-like-salt-on-that-crow/
So, the Honorable Justice Antonin Scalia — renown legal genius and reigning undisputed heavyweight champion of biting rhetorical snark — has now been reduced to making clandestine corrections to one of his famously condescending dissents. . . .
20 Sunday Jul 2014
Posted in Law Office Management, Management, Marketing
≈ Comments Off on How To Recognize A Bad Client The Easy Way.
The Bad Clients You Don’t Take Will Be the Best Money You Never Made, by Randall Ryder, Lawyerist Blog
http://lawyerist.com/75147/bad-clients/
Wouldn’t it be nice if every client who called to retain a lawyer were completely honest and forthright during that first meeting or telephone call? Have you ever been burned by believing your client and finding out the hard way that the facts are not what you’ve been told? You ask all the right questions. They seem to give all the right answers. Perhaps you do not see had bad it was until you have spent time and money on the case. Here are some warning signs that will help you avoid bad clients. -CCE
Not all clients are created equal. Great clients will enhance your legal skills, your reputation, and your bottom line. Bad clients can make you question your skills, destroy your reputation, and result in the worst money you have ever made.
Once you have a better understanding of how bad clients can wreck your practice, you will get better at spotting them and avoiding them. And it will be the best money you never made. . . .
20 Sunday Jul 2014
Posted in Montana Supreme Court, Self-Defense
≈ Comments Off on Stand Your Ground Law and the Doctrine of Communicated Character.
Tags
Colin Miller, Communicated Character, EvidProf Blog, Montana, Reasonable Apprehension, Self-Defense, Stand Your Ground Law
Defendant Has To Testify To Support Self-Defense Claim, Despite Stand Your Ground, by Colin Miller, Editor, EvidProf Blog
I’ve written a few posts about the doctrine of ‘communicated character,’ which allows a defendant to present evidence of the alleged victim’s prior violent acts, not to prove the victim’s violent tendencies, but instead to prove the defendant’s reasonable apprehension. Of course, what this means is that a defendant must have knowledge of the victim’s violent past to present such character evidence. So, can a defendant prove that knowledge without himself testifying at trial? And how might a Stand Your Ground law change matters? Let’s take a look at the recent opinion of the Supreme Court of Montana in State v. Montana Ninth Judicial District Court, 2014 WL 3430350 (Mont. 2014). . . .
20 Sunday Jul 2014
Posted in Bad Legal Writing, Computer Forensics, Computer Fraud and Abuse Act, Computer Virus, Copyright, Criminal Law, Cybersecurity, Digital Millenium Copyright Act, Discovery, Encryption, Evidence, Finance and Banking Law, Fraud, Google, Government, Identity Theft, Intellectual Property, Law Office Management, Legal Technology, Legal Writing, Legalese, Malware, Management, Patent Law, PC Computers, Plain Language, Presentations, Search Engines, Trial Tips and Techniques, Trojans, Video
≈ Comments Off on 10 Top Law-Related TED Videos.
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Copyright, Crime, Eyewitness, Fashion Industry, Government, Internet, Legal Productivity Blog, Legalese, Patent Troll, Plain Language, TED, Tim Baran
Top 10 Legal TED Talks, by Tim Baran, Legal Productivity Blog
http://www.legalproductivity.com/op-ed/top-10-legal-ted-talks/
Have you heard of TED? It began in 1984 as a conference and now covers a wide range of topics in more than 100 languages. Think of it as a massive brain trust that shares great ideas and information.
Each of the law-related TED talks listed in this article are worthwhile on their own: (1) four ways to fix a broken legal system; (2) eliminate legalese by using plain English; (3) how to beat a patent troll; (4) how the Internet will change government; (5) laws that choke creativity; (6) copyright law; (7) why eyewitnesses get it wrong; (8) how technology could make crime worse; (9) the Internet and anonymity online; and (10) how great leaders inspire. -CCE
14 Monday Jul 2014
Posted in Closing Argument, Trial Tips and Techniques
≈ Comments Off on Working On Your Closing Argument? Use the Persuasion Slide.
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Closing Argument, Dr. Ken Broda-Bahm, Litigation, Neuromarketing Blog, Persuasive Litigator, Persuasive Slide
Use the ‘Persuasion Slide,’ by Dr. Ken Broda-Bahm:, Persuasive Litigator
http://www.persuasivelitigator.com/convincing-closing/
Some great practical ideas for persuasion come from the field of marketing. To be sure, not all apply in legal settings, but marketing offers a laboratory where the practical aspects of human influence can be addressed in a situation that often carries high stakes and measurable results. I recently came across one marketing idea from Roger Dooley’s Neuromarketing blog that provides a perfect way of explaining and differentiating the various forces at work in any persuasive situation. The idea is called ‘The Persuasion Slide,’ and it starts with the simple physics involved in an ordinary playground slide. Like a good trial metaphor or demonstrative exhibit, the illustration provides a simple and immediately meaningful way to understand a more complex process. . . . .
14 Monday Jul 2014
Posted in Damages, Litigation
≈ Comments Off on Bifurcation Explained By An Eleventh Circuit Court Judge.
To B…or Not to B…: B…Means Bifurcation, by Judge David L. Tobin, The Florida Bar Journal, 2000 Volume LXXIV, No. 10.
An excellent analysis and explanation. -CCE
From 1997 through May 2000, as judge in the 11th Circuit Court, I have bifurcated hundreds of cases in which the issues of liability and damages were involved. The most surprising statistic is that during this three and one-half years I have tried only one case in which the issue was damages! Do I have your attention?
Sometime in 1997, I was discussing calendar control and judicial efficiency with one of my colleagues, Judge Amy Donner, who said that she was bifurcating most of her cases. After our conversation, I examined the trials in my division for the year 1995 and found that of the 40 jury trials, eight of them were slip-and-fall cases. Of these eight, seven resulted in a verdict for the defendant. It occurred to me that if we tried only liability, between seven and 14 days of jury time would have been saved, enabling us to try several more cases. Accordingly, I then decided to screen our cases and began bifurcating slip-and-fall cases only. I hope that this article will assist judges and attorneys in selecting those cases in which bifurcation would benefit litigants and attorneys, as well as the court. . . .
13 Sunday Jul 2014
Posted in Child Witnesses, Cross-Examination, Direct Examination, Experts, Making Objections, Trial Tips and Techniques, Witnesses
≈ Comments Off on Direct and Cross-Examination – Links, Tips, and Resources.
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Child Witnesses, Cross-Examination, Direct Examination, Expert Witnesses, Pace Law Library, Trial Lawyers, Trial Practice Skills
Examination and Cross-Examination: Getting the Facts, Trial Practice Skills, Pace Law Library
http://libraryguides.law.pace.edu/content.php?pid=149008&sid=1265851
Links on Direct Examination, Cross-Examination, Examining Expert Witnesses, Child Witnesses, and other related links. -CCE
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