06 Friday Dec 2013
Posted in Adobe Acrobat, E-Discovery, Federal District Court Rules, Legal Technology, Metadata, Native Format, Requests for Production, Trial Tips and Techniques, Word
≈ Comments Off on Was It Appropriate to Produce Word Documents as PDF Files?
Tags
.pdf, Bow Tie Law Blog, E-Discovery, Joshua Gilliland, Magistrate Judge William Hussmann, Microsoft Word, Native Files, Request for Production
Who Knew What When About the Form of Production, by Joshua Gilliland, Esq., Bow Tie Law Blog
http://bowtielaw.wordpress.com/2013/12/06/who-knew-what-when-about-the-form-of-production/
Magistrate Judge William Hussmann put a new spin on form of production analysis in Crissen v. Gupta: What form was discovery in and when was it in that form?
06 Friday Dec 2013
Posted in E-Discovery, Emails, Evidence, Forensic Evidence, Legal Technology, Metadata, Trial Tips and Techniques
≈ Comments Off on Craig Ball Answers His Mail.
http://ballinyourcourt.wordpress.com/2013/12/06/good-questions/
As always, Craig Ball delivers. Great answers to e-discovery terminology and best practices. -CCE
03 Tuesday Dec 2013
Posted in Legal Ethics, Technology, Trial Tips and Techniques
≈ Comments Off on Is Failing to Keep Abreast of Latest Technology Tantamount to a Possible Ethical Violation?
Tags
ABA, Duty of Competence, Lawyerist Blog, Legal Ethics, Legal Technology, Megan Zavieh, Model Rules
Luddite Lawyers Are Ethical Violations Waiting To Happen, by Megan Zavieh, Lawyerist Blog
http://lawyerist.com/luddite-lawyers-ethical-violations-waiting-happen/
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.)
01 Sunday Dec 2013
Posted in Intellectual Property, Patent Law, Trial Tips and Techniques
≈ Comments Off on Five Important and Volatile Issues in Current Patent Law.
The 5 Biggest Issues in Patent Law Right Now, by Ryan Flax, The Litigation Consultant Report Blog
30 Saturday Nov 2013
Posted in Appellate Law, Arbitration, Class Actions, LexisNexis, Research, Trial Tips and Techniques
≈ Comments Off on The Sixth Circuit Wrestles With When to Pull the Trigger on the Unconscionability Doctrine in Arbitration Clauses.
Tags
Arbitrations, Class Action, ContractsProf Blog, D.A. Jeremy Telman, LexisNexis, Unconscionability Doctrin
Sixth Circuit Affirms District Court, Rejects Attorney’s Bid for Class-Wide Arbitration, by Kprofs2013, edited by D.A. Jeremy Telman, ContractsProf Blog
This case started as a disagreement between a law firm and LexisNexis over billing practices. The parties’ disagreement was bound by an arbitration agreement. The law firm decided to bring two class actions over 500 million dollars against LexisNexis. The terms of the arbitration agreement and the lack of any definitive U.S. Supreme Court ruling on whether classwide arbitrability is a “gateway” or “subsidiary” question places the Sixth Circuit in an interesting conundrum.
What follows in this post at ContractsProf Blog is an analysis of the Sixth Court’s opinion, the ambiguous arbitration agreement, and the use, or lack thereof, of the unconscionability doctrine. -CCE
30 Saturday Nov 2013
Posted in Admissibility, Appellate Law, Court Rules, Cross-Examination, Direct Examination, Evidence, Research, Tennessee Supreme Court, Trial Tips and Techniques
≈ Comments Off on Court Precludes Testimony of Rehabilitation Witness
In Pyle v. Mullins, 2013 WL 6181956 (Tenn. Ct. App. 2013), the plaintiff sought to bolster his credibility after it had been attacked by the defense, but the court precluded this rehabilitation. Why?
Pyle then sought to elicit
character testimony from Jeff Boggan, one of Pyle’s customers. Boggan, a resident of Village Green Subdivision, testified Pyle mowed his lawn and he had known Pyle for 5 years. He testified Pyle was under contract by the homeowner’s association to mow all of the lawns in the subdivision. Pyle asked Boggan whether he was “familiar with [Pyle’s] reputation in that area for honesty?” In response, defense counsel objected as to relevance. The trial court sustained the objection.
Then . . . .
27 Wednesday Nov 2013
Posted in Appellate Law, Court Rules, Jurisdiction, Michigan Supreme Court, Trial Tips and Techniques, Venue
≈ Comments Off on Michigan Court of Claims Changed Rule for Cases Against the State of Michigan.
Tags
Amy Ronayne Krause, Deborah Servitto, Ingham County Michigan, James Woolard Jr., Michigan Court of Appeals, MillerCanfield, Pat Donofrio, Paul Hudson, State of Michigan
Parties engaged in litigation against the State of Michigan in the Court of Claims will do so under new jurisdictional rules that were signed into law on November 12, 2013. The law, PA 164, moves the Court of Claims from the Ingham County Circuit Court to the Court of Appeals, where cases will be assigned to one of four designated judges. Those judges are Pat Donofrio (Troy), Deborah Servitto (Troy), Michael Talbot (Detroit) and Amy Ronayne Krause (Lansing). Their terms on the Court of Claims end in May 2015.
The new law takes effect immediately.
27 Wednesday Nov 2013
Posted in Affirmative Action, Courts, Employment Law, Judges, Race Discrimination, Research, Trial Tips and Techniques
≈ Comments Off on Are Judges Are Killing the Civil Rights Act of 1964?
Tags
1964 Civil Rights Act, Harvard University, Hercules and the umpire Blog, Judge Richard George Kopf, Nancy Gertner, Northern District of Georgia, Summary judgment
When it comes to employment cases, judges are killing the Civil Rights Act of 1964, by the Hon. Richard George Kopf, Hercules and the umpire Blog
After providing some background about rulings on employment cases, Judge Kopf reveals that:
[M]y summary judgment dismissal rate was higher than the aggregate rate for the Northern District of Georgia. That is, my dismissal rate was four points higher than the rate in the Northern District of Georgia (86% v. 82%). That caused me to write this: “The fact is that the law on summary judgment motions in employment cases favors the granting of summary judgment motions in a high percentage of the cases and, not surprisingly, that is what you see happening in the Northern District of Georgia and with ‘yours truly’ too.”
* * *
[V]ince Powers, my friendly nemesis, advised me about a powerful article that Nancy Gertner has written on this subject. Gertner now teaches law at Harvard, and was for many years one of the most distinguished federal trial judges in the nation. She is also a really great person with a warm and funny sense of humor. Here is Nancy’s article. I urge you to read what she has written. It will make you think hard.
If you have trouble accessing the link to the Nancy Gertner’s article, you can find it here: http://tinyurl.com/olfpxdz. CCE
24 Sunday Nov 2013
Posted in Adobe Acrobat, Databases, Discovery, E-Discovery, Emails, Evidence, Legal Technology, Pre-Trial, Trial Tips and Techniques
≈ Comments Off on When You Want Fast and Cheap, Adobe Acrobat Does the Trick in a Pinch.
Acrobat to the Rescue: Searching Unsearchable Productions, by Craig Ball, Ball In Your Court Blog
24 Sunday Nov 2013
Posted in E-Discovery, Evidence, Intellectual Property, Legal Technology, Patent Law, Texas Supreme Court, Trial Tips and Techniques
≈ Comments Off on Trial of Historical Patent for Common Web Encryption of SSL in East Texas.
Tags
Amazon, Dennis Crouch, East Texas, Encryption, Erich Spangenberg, Michael Jones, Newegg, Patent, Ron Rivest, SSL, TQP
Newegg on trial: Mystery company TQP rewrites the history of encryption, by Joe Mullin, Law & Disorder/Civilization & Discontents (with hat tip to Dennis Crouch’s Patently-O!)
The story of Michael Jones, his mysterious invention, and the massive patent enforcer he’s working with is finally coming out at a patent trial underway in this small East Texas town.
Jones’ patent, now owned by famed patent enforcer Erich Spangenberg, has scared corporate America into writing one hefty check after another to avoid a trial just like this one. He and his lawyers say the patent covers the common web encryption scheme of SSL combined with the RC4 algorithm. The sums of those checks were revealed in court here on Tuesday when a TQP attorney displayed to the jury a spreadsheet with many of the payments.
23 Saturday Nov 2013
Posted in Legal Technology, Pre-Trial, Presentations, Trial Tips and Techniques
≈ Comments Off on Going to Trial – Not Boxes of Documents Anymore.
Tags
Databases, Michael Skzypek, Pre-Trial, The Trial War Room Handbook Blog, Trial, Trial Techniques
Pre-Trial and Presentation Databases – Assembling Your Materials, by Michael Skzypek, The Trial War Room Handbook Blog
http://www.thetrialwarroomhandbook.com/?p=878
Back in the analog days, a parade of lawyers and paralegals would march into the courtroom right before a trial started, carrying dozens of bankers’ boxes filled with documents and other evidence. These days, attorneys in most medium-to-large cases digitize everything from contracts to deposition transcripts, photos, and video and organize them in databases. As such, a trial presentation technician walks into the courtroom carrying just a laptop – but one loaded with a database that contains the equivalent of hundreds of bankers’ boxes of material.
23 Saturday Nov 2013
Posted in Discovery, Evidence, Legal Technology, Personal Injury, Requests for Production, Trial Tips and Techniques
≈ Comments Off on Court Denies Facebook Discovery Requests by Both Parties.
Tags
Daniel E. Cummins, Discovery, Facebook, Judge Wettick, Personal Injury, Personal injury lawyer, Traffic collision
Judge Wettick Rules on Facebook Discovery Issues, by Daniel E. Cummins, TORT TALK
After providing a detailed review of the issue over a 22 paged Opinion, which includes a background on Facebook itself and a review of decisions from both within Pennsylvania and from outside jurisdictions, Judge Wettick ruled that both the Plaintiff’s and the Defendant’s motions to compel access to the other’s Facebook pages would be denied in this motor vehicle accident litigation.
20 Wednesday Nov 2013
Posted in Legal Writing, Trial Tips and Techniques
≈ Comments Off on What Do Soap Opera Writers and Master Litigators Have in Common? The Ability to Tell a Great Story.
Tags
Ken Lopez, Laurie Kuslansky, Legal Writing, Soap opera, Storytelling, The Litigation Consulting Report, Trial Techniques
Are You Smarter Than A Soap Opera Writer?, by Laurie Kuslansky, The Litigation Consulting Report (with hat tip to Ken Lopez!)
As Ms. Kuslansky points out, “There’s always a story, but if you don’t tell yours, jurors will use their own.“ The same is true in documents submitted to the Court. Who else will tell your client’s perspective of events and interpretation of the law? You are the one who tells your client’s story, whether to the Court in a brief or motion or to the jury at trial. CCE
Believe it or not, soap opera writers are better at storytelling than some litigators. Why? Not because of their subject matter or their wisdom, but because they know how to activate more of the brain than some lawyers. They put events into a story context, and they know how to use language to activate the brain better. If they can do it, so can you.
19 Tuesday Nov 2013
Posted in Closing Argument, Legal Technology, Trial Tips and Techniques
≈ Comments Off on Show the Jury How to Fill in the Verdict Form in Closing Argument
How to Guide the Jury Through the Verdict Form in Closing Argument, by Michael Kelleher, Cogent Legal Blog
http://cogentlegal.com/blog/2013/11/verdict-form/
While I can see how persuasive this would be, I am curious as to whether a judge would rule against this presentation if opposing counsel filed an appropriate motion in limine. CCE
18 Monday Nov 2013
Posted in Appellate Law, Contract Law, Insurance Law, Trial Tips and Techniques
≈ Comments Off on There’s No Place Like Home For Homeowner’s Insurance
Seventh Circuit: Mailing Addresses Don’t Necessarily Identify What’s Insured, by Brian Jones, The Bose Insurance Blog
17 Sunday Nov 2013
Posted in Discovery, E-Discovery, Evidence, Federal District Court Rules, Legal Technology, Trial Tips and Techniques
≈ Comments Off on Court Says E-Discovery Search is “Easier Said Than Done”
Triangulating Discovery Productions, by Joshua Gilliland, Esq., BowTie Blog
Judge William Orrick summed up a basic truth of eDiscovery: In the age of electronically-stored information (“ESI”), production of all relevant, not privileged and reasonably accessible documents in a company’s custody and control is easier said than done. Banas v. Volcano Corp., 2013 U.S. Dist. LEXIS 144139, at *5 (N.D. Cal. Oct. 4, 2013).
17 Sunday Nov 2013
Posted in Discovery, E-Discovery, Emails, Evidence, Trial Tips and Techniques
≈ Comments Off on Email Preservation of Gmail Can be Tricky and Tedious, But Not Difficult.
Collecting Gmail for Preservation, by Craig Ball, Ball in Your Court Blog
As Mr. Ball points out in this excerpt below, Gmail preservation is tedious, but not difficult:
[T]hough collecting and validating the complete contents of a Gmail account can be tricky and tedious, it’s not all that difficult to do. Happily, unless you do something really dumb, it’s unlikely that even a botched Gmail collection effort will harm the contents of the account.
17 Sunday Nov 2013
Posted in E-Discovery, Evidence, Glossaries, Legal Technology, Research, Trial Tips and Techniques
≈ Comments Off on The Sedona Conference® Glossary
The Sedona Conference® Glossary, The Sedona Conference® (Reproduced with permission by Richard Braman.)
The Sedona Conference® is a non-profit organization created in 1997 by Richard Braman. Although it is better known for its work and publications on e-discovery, it addresses many other areas of law. You can find a list of its publications here: https://thesedonaconference.org/publications.
The Sedona Conference® will present its Commentary on Information Governance in a webinar on December 5, 2013. Information about all upcoming events can be found at https://thesedonaconference.org/conferences.
17 Sunday Nov 2013
Posted in Admissibility, Court Rules, Evidence, Experts, Trial Tips and Techniques
≈ Comments Off on Handwriting Expert’s Report and Testimony Are Inadmissible Under Daubert/Rule 702 Test.
13 Wednesday Nov 2013
Posted in Appellate Law, Court Rules, Legal Technology, Legal Writing, Research, State Appellate Courts, Trial Tips and Techniques
≈ Comments Off on The Civil Appeals Profile Database for State Courts.
Tags
Appeals, Civil Appeal State Profiles, Civil Appellate Procedure, National Center for State Courts
The National Center for State Court has created this compilation of civil appellate court practices and procedures.
The link takes you to a map of the United States. Click on your state, and you will get a breakdown of appellate procedures. The information is somewhat like a “cheat sheet” for the state’s rules of appellate procedure.
Please note that the website recommends setting your printer to “landscape” for best results.
12 Tuesday Nov 2013
Posted in Case Law, Court Rules, Federal District Court Rules, Judges, Research, Statutes, Trial Tips and Techniques
≈ Comments Off on Judge Scheindlin and the Second Circuit to date.
Tags
Hercules and the Umpire, Hon. George Richard Kopf, Judge Scheindlin, Removal of federal judge, Stop-and-frisk, United States Court of Appeals for the Second Circuit
I have been following the updates about Judge Scheindlin on Judge Kopf’s blog, Hercules and the umpire. If you recall, this series began with Judge Scheindlin’s ruling on the current stop-and-frisk law in her jurisdiction, and her subsequent, hasty, and unprecedented (to my knowledge) removal by the Second Circuit of the Court of Appeals. All related posts are below, and start with the first post by Judge Kopf. The Comments are equally interesting. CCE
What do you think about the Second Circuit’s removal of Judge Shira Scheindlin? – http://bit.ly/1cyvhiH (Posted here on November 2, 2013)
A Cheat Shot – http://herculesandtheumpire.com/2013/11/03/a-cheap-shot/
More on “relatedness,” Judge Scheindlin and the Second Circuit — http://bit.ly/1cTmax4
In answer to Scott H. Greenfield regarding the Second Circuit’s treatment of Judge Scheindlin — http://bit.ly/17EEqZ9
“Do not go gentle into that good night . . . ” Dylan Thomas and Judge Scheindlin – http://bit.ly/1a39Re3
The filing by counsel for Judge Scheindlin — http://bit.ly/1c1GXcL
Kopf’s questions about the continuing but utterly depressing cage match at the Second Circuit? — http://bit.ly/1blVy2F
End it quickly – http://herculesandtheumpire.com/2013/11/11/end-it-quickly/ (Posted here on November 12, 2013)
A must read essay on Judge Scheindlin and the Second Circuit — http://bit.ly/19XlseL (Posted here on November 12, 2013)
Judge Scheindlin was wrong to enter the fray at the Second Circuit — http://bit.ly/1eJ21tw
09 Saturday Nov 2013
Posted in Brief Writing, Case Law, Citations, Legal Writing, Trial Tips and Techniques
≈ Comments Off on An Excellent and Persuasive Legal Writing Tool – Parentheticals
For lovers of parentheticals, two articles, by Raymond Ward, the (new) legal writer
09 Saturday Nov 2013
Posted in First Amendment, Legal Writing, Motions in Limine, Trial Tips and Techniques
≈ Comments Off on A Rose by Any Other Name . . . .
Tags
Hercurles and the Umpire, Hon. George Richard Kopf, Motion in Limine, Name Designations, Tennessee Supreme Court
Counsel on both sides petition the Court to be called “specific” names. The jury, as juries sometimes do, may be able to think of some on its own. CCE
A response to a motion in limine that I wish I had received, by Hon. George Richard Kofp, Hercules and the umpire Blog
09 Saturday Nov 2013
Posted in Contract Law, Discovery, E-Discovery, Litigation Hold, Sanctions, Trial Tips and Techniques
≈ Comments Off on Where Plaintiff Knew Likelihood of Possible Litigation, Magistrate Judge Sanctions Plaintiff for Inexcusable Failure to Issue Litigation Hold.
Tags
2nd Circuit Court of Appeals, Discovery, E-Discovery, Legal Hold, Legal Pro Blog, Sam's Club, Sanctions
Plaintiff in Diaper Lawsuit Hit with Adverse Inference to Remedy Spoliation from Failure to Issue Legal Hold, by Legal Pro Blog
06 Wednesday Nov 2013
Posted in Corporate Law, Depositions, Discovery, Evidence, Fraud, SEC, Trial Tips and Techniques
≈ Comments Off on Billionaire Hedge Fund Titan Stumbles Over Questions About Insider Trading in Video Deposition
Exclusive: Watch Billionaire Steven Cohen Stumble Over Insider Trading Rules, by Nick Verbitsky, Martin Smith, and Dan Sugarman, FRONTLINE
In a never-before-published video, hedge fund titan Steven A. Cohen, whose firm this week agreed to plead guilty to securities fraud, describes federal securities laws as “vague,” and asks for an explanation of the basic Securities and Exchange Commission rule that prohibits insider trading.
* * *
The video offers a rare glimpse of the secretive billionaire investor at the center of the biggest insider trading prosecution in U.S. history talking about the very issues that have put him and his firm under such intense scrutiny.
The Researching Paralegal 
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