Author Archives: Celia C. Elwell, RP

Why Are U.S. Employees The Weakest Link In America’s Cybersecurity?

27 Tuesday May 2014

Posted by in Cybersecurity, Law Office Management, Legal Technology, Malware, Office Procedures, Technology, Trojans, Using Social Media

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U.S. Employees Are Weakest Link In America’s Cybersecurity – Part One, by Ralph Loosey, e-Discovery Team®

http://tinyurl.com/kkltm9p

The Chinese army knows this vulnerability and attacks American employees every day to steal trade secrets and gain commercial advantage for Chinese businesses.

Criminal hackers can cause tremendous damage, whether trained in China or not. If a high level expert, such as any member of China’s elite Unit 61398, aka Comment Crew, gets into your system, they can seize root control, and own it. They can then plant virtually undetectable back doors into your systems. This allows them to later come and go as they please. . . .

Supreme Court Judges Really Use Dictionaries To Determine Legislative Intent?

26 Monday May 2014

Posted by in Appellate Judges, Appellate Law, Judges, Legal Analysis, Legal Dictionaries, Legal Writing, Legislative History, References, United States Supreme Court

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Look It Up! Or Not…, by Tiffany Johnson, Good Legal Writing

http://goodlegalwriting.com/2014/04/14/look-it-up-or-not/

I always encourage my students to look up any words that confuse them as they read opinions.  But this 2011 New York Times article  cites a few scholars who don’t think it’s the most judicious practice to undertake from the bench.  Check out this excerpt:

In May alone, the justices cited dictionaries in eight cases to determine what legislators had meant when they used words like ‘prevent,’ ‘delay’ and ‘report.’ Over the years, justices have looked up both perfectly ordinary words (‘now,’ ‘also,’ ‘any,’ ‘if’) and ones you might think they would know better than the next guy (‘attorney,’ ‘common law’).

All of this is, lexicographers say, sort of strange. . . .

U.S. Supreme Court Practice of Secretly Editing Its Published Opinions.

26 Monday May 2014

Posted by in In Custodia Legis

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Final Word on U.S. Law Isn’t: Supreme Court Keeps Editing, by Adam Liptak, The New York Times

http://tinyurl.com/lgpsqwe

Corrections to typos or bad citations do not bother me. But I did not realize that any court could make substantive changes in already published, official opinions. Perhaps I wrongfully assumed that mandate had issued? Regardless, the practice of making substantive changes to published opinions creates a significant legal research problem. -CCE 

The Supreme Court has been quietly revising its decisions years after they were issued, altering the law of the land without public notice. The revisions include ‘truly substantive changes in factual statements and legal reasoning,’ said Richard J. Lazarus, a law professor at Harvard and the author of a new study examining the phenomenon.

The court can act quickly, as when Justice Antonin Scalia last month corrected an embarrassing error in a dissent in a case involving the Environmental Protection Agency.

But most changes are neither prompt nor publicized, and the court’s secretive editing process has led judges and law professors astray, causing them to rely on passages that were later scrubbed from the official record. The widening public access to online versions of the court’s decisions, some of which do not reflect the final wording, has made the longstanding problem more pronounced.

Unannounced changes have not reversed decisions outright, but they have withdrawn conclusions on significant points of law. They have also retreated from descriptions of common ground with other justices, as Justice Sandra Day O’Connor did in a major gay rights case.

Justice Antonin Scalia corrected his recent dissent in a case involving the Environmental Protection Agency. Credit Alex Wong/Getty Images

The larger point, said Jeffrey L. Fisher, a law professor at Stanford, is that Supreme Court decisions are parsed by judges and scholars with exceptional care. ‘In Supreme Court opinions, every word matters,’ he said. ‘When they’re changing the wording of opinions, they’re basically rewriting the law.’ . . .

 

Searching Social Media | Part 2: Twitter

26 Monday May 2014

Posted by in In Custodia Legis

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Stosh Jonjak's avatariBraryGuy

This series focuses on methods of improving the relevancy of your results of social media searches, while not being logged into the services themselves. Again, social media searching is clearly trending upward in the law librarianship profession, as attorneys are increasingly making these requests while conducting informal discovery. In Part 1 of “Searching Social Media” we examined how to use Google’s advanced search features to retrieve relevant Facebook results. In Part 2, we will examine methods of conducting higher-relevance Twitter searches.

Twitter is currently the 8th most popular website on planet earth, according to Alexa. And, luckily for our purposes, Twitter provides an advanced search screen that does not require the user to log in! This is accessible here: https://twitter.com/search-advanced

And it looks like this:

SM_twitter_AdvancedSearch

Name Search

Typically, our requestors are trying to locate an individual’s Twitter account. The first and easiest search presumes the user has a portion of…

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Searching Social Media | Part 1: Googling Facebook

26 Monday May 2014

Posted by in In Custodia Legis

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Stosh Jonjak's avatariBraryGuy

GoogleFacebook

Have you experienced an increase in social media search requests? As attorneys become more likely to turn to social media during their informal discovery processes, I have found an uptick in questions like: “could you please do a social media background check on this person?” This is a growing information need I believe law librarians are excellently suited to fill, and really the next generation of public records search requests. Through conducting these searches and by leaning on the expertise of others I have put together my own toolkit on tricks to use. Below I list methods incorporating Google advanced search terms to conduct searches on Facebook quickly and with high relevancy.

Granted, results for social media searches are completely dependent on privacy settings. If a user has set their privacy settings very high, it doesn’t matter what type of tool you use to try to find them, the results will not populate, and the results will not be open to…

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A Collection of Online International Law Sources.

26 Monday May 2014

Posted by in International Law

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Electronic Information System for International Law

http://www.eisil.org/

International Law Institute

http://www.ili.org/

International Law, HierosGamos.org

http://www.hg.org/international-law.html

and International Law Articles, HierosGamos.org

http://www.hg.org/law-articles-international-law.asp

International Law, Cornell Legal Information Institute

http://www.law.cornell.edu/wex/international_law

Duke Journal of Comparative and International Law

http://scholarship.law.duke.edu/djcil/

Sources of International Law, Northwestern Law, Pritzker Legal Resource Center

http://www.law.northwestern.edu/library/research/international/gettingstarted/sourcesofintllaw/

Google, Mutuality, and Wrap Contracts – Something Doesn’t Seem Quite Right . . .

25 Sunday May 2014

Posted by in Contract Law, Wrap Contracts

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Mutuality and Wrap Contracts, by Nancy Kim, ContractProf Blog

http://tinyurl.com/m8d9f3s

As I’ve noted in a prior post, there is a lawsuit pending against Google for email scanning which was recently denied class status.  Something that’s puzzled me about wrap contracts generally, including Google’s, is that many of them don’t seem to be contracts at all – and not simply because of the (lack of) consent issue.  They typically contain modification at will clauses and termination at will clauses.  In contracts class, I teach students that generally (with the exception of employment contracts) these clauses lack mutuality unless constrained in other ways, such as a notice period.  While there may be consideration (use of service in exchange for…data?  eyeballs?  not clear), there is no consideration if the promises are illusory and don’t actually bind a party.   Google’s terms of use, for example, state:

‘You can stop using our Services at any time, although we’ll be sorry to see you go. Google may also stop providing Services to you, or add or create new limits to our Services at any time.’

and this unilateral modification clause:

‘We may modify these terms or any additional terms that apply to a Service to, for example, reflect changes to the law or changes to our Services. You should look at the terms regularly. We’ll post notice of modifications to these terms on this page. We’ll post notice of modified additional terms in the applicable Service. Changes will not apply retroactively and will become effective no sooner than fourteen days after they are posted. However, changes addressing new functions for a Service or changes made for legal reasons will be effective immediately. If you do not agree to the modified terms for a Service, you should discontinue your use of that Service.’

Google then isn’t bound to actually provide anything according to its Terms of Use.

In the email scanning case, Google is making the argument that consent to email scanning was obtained in the context of ‘consenting’ to the Terms of Use.  But if these ‘contracts’ are not really contracts because they lack mutuality, then can Google really claim that their users ‘consented’ to the email scanning?  Is there blanket assent to terms outside of the context of a contract?

What The Heck Does “SS” In An Affidavit Mean Anyway?

25 Sunday May 2014

Posted by in Affidavits, Legal Writing, Notary Jurat

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After Seven Centuries, The True Meaning of SS, by Thomas Selden Edgerton, Plain Language, Michigan Bar Journal (February 2014)

http://www.michbar.org/journal/pdf/pdf4article2333.pdf

I always wondered what that “SS” meant. -CCE

How To Remove “The Fluff” In Legal Writing.

25 Sunday May 2014

Posted by in Bad Legal Writing, Brief Writing, Legal Analysis, Legal Argument, Legal Writing, Legalese, Motions

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A Standard Motion Revised, by Judge Lynn N. Hughes, Plain Language, Michigan Bar Journal (May 2014)

http://www.michbar.org/journal/pdf/pdf4article2367.pdf

Judge Hughes eliminates unnecessary words, what he calls “the fluff.” In a simple, direct example, Judge Hughes clearly marks which words are meaningless, useless fillers.

You see this language used every day by lawyers and legal professionals. It is common as dirt. Some writers insist that archaic legalese is “required,” although there is no court rule, case law, or statute to support that opinion. It is not a “legal term of art.”

The point of legal writing is to persuade the reader – the court. Why do we add “the fluff”? Beats me. -CCE

Five Excellent Search Engines That Do Not Track Or Collect Your Data.

25 Sunday May 2014

Posted by in Legal Technology, References, Research, Search Engines

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5 Alternative Search Engines That Respect Your Privacy, by Chris Hoffman, How-To-Geek Blog

http://tinyurl.com/c3trrdn

Recently I posted about DuckDuckGo, a search engine that did not collect data about you like most major search engines. This post also mentions DuckDuckGo but four others as well that will not track you:  Start Page™, ixquick™, Blekko, and Ask.com.

I admit that DuckDuckGo is my favorite, but the others are well worth your time and attention. -CCE

Google, Bing, Yahoo – all the major search engines track your search history and build profiles on you, serving different results based on your search history. Try one of these alternative search engines if you’re tired of being tracked.

Google now encrypts your search traffic when you’re logged in, but this only prevents third-parties from snooping on your search traffic – it doesn’t prevent Google from tracking you. . . .

Law Guru – Free Internet Legal Research.

25 Sunday May 2014

Posted by in Case Law, Federal Law, Internet, Law Libraries, Legal Dictionaries, Legal Directories, Legal Directory, Mandatory Law, Primary Law, References, Research, State Law, Statutes

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Law Guru

http://www.lawguru.com/research.html

Another free Internet legal research tool. Law Guru have over 535 search engines. You can search state and federal case law, statutes and codes, and more.

It has some other nice features, too. It has a database of over 500,000 legal questions and answers. I know that sounds tempting and it may point you in the right direction. But if you are not an experienced legal researcher, please do not rely on these answers as you sole source of legal information. These questions and answers are generic – the facts of your situation may mean that the answer you get here is not the right one for your problem.

Law Guru also has a legal dictionary, links to legal articles, the Internet Law Library, and legal forms (there is a charge for these forms). -CCE

The Public Library of Law.

25 Sunday May 2014

Posted by in Case Law, Constitutions, Court Rules, FastCase, Internet, Law Libraries, Mandatory Law, Primary Law, References, Regulations, Research, State Law, Statutes

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The Public Library of Law

http://www.plol.org/Pages/Search.aspx

The Public Library of Law is free. Actually, it’s one of the largest free law libraries on the Internet. It gives you access to case law from the U.S. Supreme Court, all U.S. Circuit Courts, case law for all states (from 1997 to date), the United States Federal Code (federal statutes), states for all 50 states, regulations, court rules, state and federal constitution, and more.

One of the more interesting things about PLoL is that it provides free links to paid content on Fastcase®. If you are not familiar with Fastcase®, check it out at http://www.fastcase.com. If you need help learning how to use it, you will find free tutorials at http://www.fastcase.com/support/. -CCE

ClearView Social App – Sharing Social Media or Spam?

24 Saturday May 2014

Posted by in Advertising, Law Firm Web Sites, Law Office Management, Legal Blogs, Technology

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Pseudo Social Sharing Isn’t Smart, It’s Spam, by Robert Ambrogi, Robert Ambrogi’s LawSites Blog

http://tinyurl.com/mkqjkpu

I have to admit I was taken aback by the premise of ClearView Social, the new app being developed by social marketing consultant Adrian Dayton. Targeted at medium and large firms, the app ‘helps attorneys more easily share content with their professional networks through LinkedIn, Twitter and other platforms,’ according to the press release last February.

That sounds harmless enough. But further reading reveals more about what the app does:

ClearView Social allows one person in the firm – for example, a designated marketer – to create a queue of content to be shared in an email template. When attorneys receive the email, they can click a link, which launches the application for sharing the content via various social media platforms, including LinkedIn and Twitter, which are integrated in the tool. This allows attorneys to share on those networks without leaving ClearView Social. It’s as easy as responding to an email.

So the app doesn’t actually help attorneys share content they find worthwhile. Rather, it makes the attorneys the conduits or redistributors of content someone else chooses to share. . . .

Deposition Objections – What’s Proper and What’s Not.

24 Saturday May 2014

Posted by in Depositions, Discovery, Objections

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Proper Deposition Objections, by Susan Minsberg, Lawyerist Blog

http://lawyerist.com/16801/proper-deposition-objections/

Whether you are defending (or taking) your first or your hundredth deposition, you must be ready to handle objections. That means knowing which objections are proper and which are not. Once you know, you can keep the deposition proceeding smoothly — and avoid embarrassing yourself. . . .

Judges Share Tips With Attorneys About What They Like and What They Don’t.

24 Saturday May 2014

Posted by in Animations, Closing Argument, Jury Selection, Legal Technology, Motion in Limine, Opening Argument, Presentations, Trial Tips and Techniques

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5 Key Tips for Trial: Judges Tell Attorneys What They Do and Don’t Like In Court, by Morgan Smith, Cogent Legal Blog

http://cogentlegal.com/blog/2011/05/5-key-tips-for-trial/

When Discovery Becomes Less About The Merits of the Case And More About Obstruction.

24 Saturday May 2014

Posted by in Admissibility, Authentication, Depositions, Discovery, Evidence, Federal Rules of Discovery, Federal Rules of Evidence, Interrogatories, Relevance, Requests for Admissions, Requests for Production, Sanctions, Subpoena Duces Tecum, Trial Tips and Techniques

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Boilerplate Objections And “Good Faith” Requirements Are Ruining Civil Discovery, by Max Kennerly, Esq., Litigation and Trial Blog

http://tinyurl.com/m7wk9mz

Please make sure to catch the reference and link to: Matthew Jarvey, “Boilerplate Discovery Objections,” 61 Drake L. Rev. 913 (2013).  -CCE

‘If there is a hell to which disputatious, uncivil, vituperative lawyers go, let it be one in which the damned are eternally locked in discovery disputes with other lawyers of equally repugnant attributes.’ Dahl v. City of Huntington Beach, 84 F.3d 363, 364 (9th Cir. 1996) (quoting Krueger v. Pelican Prod. Corp., No. CIV-87-2385-A (W.D. Okla. Feb. 24, 1989). . . .

How Graphics Were Used In Historic Copyright Case.

22 Thursday May 2014

Posted by in Closing Argument, Copyright, Exhibits, Intellectual Property, Legal Technology, Opening Argument, Oral Argument, Technology, Trial Tips and Techniques

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Graphics for a Historic Copyright Case, by Michael Kelleher, Consent Legal Blog

http://tinyurl.com/q6oa8rt

As you prepare for oral argument in an important hearing, you may realize that you need quick help to create or revise graphics. Today’s blog post comes from this type of scenario, and it has the added interest of coming from a high-profile copyright dispute pending in the Supreme Court. . . .

 

The Search Engine That Doesn’t Track You Just Got Better – DuckDuckGo.

21 Wednesday May 2014

Posted by in Legal Technology, Search Engines

≈ 2 Comments

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DuckDuckGo, The Search Engine That Doesn’t Track You, Makes Terrific Overhaul Official, by Zach Miners, PC World

http://tinyurl.com/os4eyxr

DuckDuckGo, the privacy-themed search engine, has received a major redesign with enhanced search tools that could usher in a wave of new users.

The tools, announced Tuesday, include a variety of requested changes, including auto-suggest and local search, that make the site function more like Google, but with DuckDuckGo’s privacy promises still in place. 

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DuckDuckGo’s search engine is one of a number of online services that have gained increased attention following disclosures around government surveillance leaked last year by former U.S. National Security Agency contractor Edward Snowden. According to its privacy policy, DuckDuckGo keeps no record of users’ searches, prevents them from being leaked to other sites, and does not log IP addresses. The site still has ads, but they’re not targeted using personal details. . . .

Statute of Limitations And Copyright Infringement.

20 Tuesday May 2014

Posted by in Copyright, Intellectual Property, Patent Law

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Supreme Court: In Copyright, Laches Cannot Preclude Actions Taken Within Three Year Statute of Limitations, by Dennis Crouch, PatentlyO Blog

http://tinyurl.com/pqwudqa

Petrella v. MGM (Supreme Court 2014)

Frank Petrella wrote a screenplay back in 1963 based on the life of Jake LaMotta and assigned rights to UA/MGM who made the movie Raging Bull. Under the old renewal system, renewal rights went to Petrella’s heir, Paula Petrella, who renewed the copyright in 1991 in a fashion that (seemingly) eliminates the prior license. In 1998 she informed MGM that its continued exploitation of the Raging Bull movie violated her copyright. Finally, in 2009, she did sue – alleging copyright infringement.

Copyright infringement has a three-year statute of limitations indicating that ‘No civil action shall be maintained under the [Act] unless it is commenced within three years after the claim accrued.’ 17 U.S.C. §507(b). However, as in patent law, copyright follows a ‘separate-accrual rule’ that sees each successive violation of a copyright as a new infringing act with its own statute of limitations. Thus, under the statute of limitations, MGM could be liable for its post-2006 actions such as copying and distributing the work. . . .

Garner’s Interview With Appellate Judges On Oral Argument and Brief Writing.

20 Tuesday May 2014

Posted by in Appellate Judges, Appellate Law, Bad Legal Writing, Brief Writing, Court Rules, Courts, Federal District Court Rules, Federal Judges, Judges, Legal Analysis, Legal Argument, Legal Writing, Statement of Facts, Trial Tips and Techniques

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Scribes Journal Presents Interviews With Judges, By Legal Writing Prof, Legal Writing Prof Blog

http://tinyurl.com/najqatd

In the latest issue of the Scribes Journal of Legal Writing, Bryan Garner continues his series Scribes 5-14of interviews with judges. This time he talks with five United States Court of Appeals judges to collect some inside information about brief writing and oral argument. Here are some of the judges’ pithy quotes:

Judge (and former Chief Judge) Frank Easterbrook of the Seventh Circuit said a lawyer should know why the court has jurisdiction. He imagines having a button he could press to send a lawyer out to the street if the lawyer can’t explain the basis for appellate jurisdiction. ‘Because if we don’t have jurisdiction, why are we here?’

Judge Pierre Leval of the Second Circuit said the first thing he looks at in a brief is the argument headings ‘to get a sense of what’s involved.’  Then he can read the facts in context.

Chief Judge Sandra Lynch of the First Circuit said many lawyers look ‘frozen’ when a judge asks a question. But instead, they should think, ‘This is a great way that I can hit a few more balls out of the park; I can help my case.’

Judge Stephen Reinhardt of the Ninth Circuit likes briefs written in ‘simple, clear sentences.’ And he likes ‘a story that flows so you can tell what it’s about and why . . . something I can follow easily.’ . . .

In Discovery, Ask A Silly Question, You’ll Get A Silly Answer.

20 Tuesday May 2014

Posted by in Discovery, Document Review, E-Discovery, Federal Rules of Discovery

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Lessons From Drafting Overly Broad Requests, by Joshua Gilliland, Esq., bowtielaw blog

http://tinyurl.com/pzykr25

Drafting discovery is an art. While painting in oils or pastels is certainly more colorful than drafting requests in Times New Roman or Ariel, both require thought. And like any masterpiece, drafting a request for production can have its challenges.

A Requesting Party demanded an opposing party produce ‘[a]ll email and text messages sent or received on Mayo email and text messaging accounts.’

The Magistrate Judge found the request to be overly broad. . . .

A Double Treat – Two-Part Posts On Cybersecurity and Outsourcing From Ralph Losey.

19 Monday May 2014

Posted by in Computer Fraud and Abuse Act, Computer Virus, Confidentiality, Document Retention, Emails, Encryption, Heartbleed, Law Office Management, Legal Ethics, Legal Technology, Malpractice, Malware, Technology, Technology, Trojans

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The Importance of Cybersecurity to the Legal Profession and Outsourcing as a Best Practice – Part One, by Ralph Losey, e-Discovery Team®

http://tinyurl.com/oalblet

and,

The Importance of Cybersecurity to the Legal Profession and Outsourcing as a Best Practice – Part Two, by Ralph Losey, e-Discovery Team®

http://tinyurl.com/mjek896

It is worth taking the time to read the Comments for both Part One and Part Two. -CCE

Craig Ball’s Lawyers’ Guide to Forms of Production.

19 Monday May 2014

Posted by in Adobe Acrobat, Authentication, Bates Numbers, Computer Forensics, Databases, Discovery, Document Review, E-Discovery, Emails, Evidence, Federal Judges, Federal Rules of Discovery, Federal Rules of Evidence, Forensic Evidence, Judges, Legal Forms, Legal Technology, Native Format

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A Guide to Forms of Production, by Craig Ball, Ball In Your Court Blog

http://ballinyourcourt.wordpress.com/2014/05/19/a-guide-to-forms-of-production/

Craig Ball’s Lawyers’ Guide to Forms of Production! Although Mr. Ball says there is much he wants to re-organize and rewrite, I can’t wait to dive in.  You will find the hyperlink to the Guide when you go to the web site. Thank you, Craig Ball! -CCE

Semiannually, I compile a primer on some key aspect of electronic discovery.  In the past, I’ve written on computer forensics, backup systems, metadata and databases. For 2014, I’ve completed the first draft of the Lawyers’ Guide to Forms of Production, intended to serve as a primer on making sensible and cost-effective specifications for production of electronically stored information.  It’s the culmination and re-purposing of much that I’ve written on forms heretofore, along with new material extolling the advantages of native and near-native forms.

Reviewing the latest draft, there is much I want to add and re-organize; accordingly, it will be a work-in-progress for months to come.  Consider it a “public comment” version.  The linked document includes exemplar verbiage for requests and model protocols for your adaption and adoption.  I plan to add more forms and examples. . . .

Reviewer 7 App — Microsoft Documents On iPad.

19 Monday May 2014

Posted by in Apps, iPad, iPhones, Legal Technology, Legal Writing, Microsoft Office, Word

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Review: Reviewer 7 — Review And Edit Microsoft Word Documents, by Jeff Richardson, iPhone J.D. Blog

http://tinyurl.com/lysjrdl

For many years, there was no one, best way to review and edit Microsoft Word documents on an iPad, but there were lots of apps that could be used for the task, each with their own strengths and limitations.  The landscape changed in March of 2014 when Microsoft introduced the Word for iPad app – a powerful app that can handle almost everything that you would want to do with a Word document on an iPad.  Ever since then, I have wondered about the future of the other apps that handle Word documents.  Some apps may be abandoned, but my hope is that others will find ways to distinguish themselves from Microsoft’s app.

That’s exactly what has happened with the new Reviewer 7 app.  This a new name for an updated version of an app that used to be called Reader 7, and I reviewed it this past February.  Reader 7 was created by German attorney Maren Reuter and her husband, who is a software designer, and I thought when I reviewed it that it was one of the very best apps for reading Word files on an iPad.  The app’s name was changed because while it is still an excellent viewer, you can now get the app for free and spend $1.99 for the in-app Review Tools upgrade and then the app will let you create redline edits in a Word document. . . .

Lemon Law Guide By State.

18 Sunday May 2014

Posted by in Lemon Laws

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Lemon Law, at DMV.org

http://www.dmv.org/automotive-law/lemon-law.php

We at DMV.org hope you never have to read our Lemon Law guide (because it probably means your shiny new car has gone sour). But if you do, we’ve cut through the legalese in your state’s statutes to educate you about your rights under the law―in language anyone can understand.

Most states’ Lemon Laws are spelled out in their legal code. But who wants to read through all that to find out whether your vehicle qualifies as a lemon? Our state-by-state guides will explain in plain English how Lemon Law claims are handled where you live.

In most cases, your state will mediate between you and the automaker to get the vehicle repaired or replaced, or your money refunded. Don’t get stuck with a car you can’t drive. Instead, empower yourself with information. . . .