Another Major Hack. Checked Your Law Firm’s Cyber Security Lately?

05 Friday Jun 2015

Posted by in Computer Forensics, Confidentiality, Cybersecurity, Disaster Preparedness, Law Office Management, Legal Ethics, Legal Technology, Technology, Technology

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The Real Reason You Need Cyber Liability Insurance, by Brian Focht, The Cyber Advocate

http://tinyurl.com/p8y5k2y

Another day, another hack. Yesterday brought news that four million current and former government employees may have had their personal information stolen by Chinese hackers.

Of course, this comes on the heels of what has been a staggering 18 months of hacks. Starting with the Home Depot and Target hacks, we’ve been barraged with story after story about major companies and retailers being hacked for their customers’ data. It’s not just big companies and big-box retailers, though. Law firms are increasingly the target of hackers, due to a combination of factors including relatively lax security and large quantities of organized, valuable information. . . .

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Where Should Citations Go? Texas Appellate Judges Have An Opinion.

05 Friday Jun 2015

Posted by in Appellate Judges, Appellate Writing, Brief Writing, Citations, Footnotes, Judges, Legal Writing

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The End of the Great Footnote War in Texas? by Rich Phillips, Texas Appellate Watch

http://tinyurl.com/oq8z9va

I have posted before (and here and here) about a debate that confirms that appellate lawyers are the nerds of the legal world: should citations go in footnotes or in the text?. . . .

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Employment Law Fallacies – How Many Will You Get Right?

01 Monday Jun 2015

Posted by in At-Will Employment, Employee Manuals, Employment Law, Whistleblower, Wrongful Termination

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Nine Employment Law Myths, by Thomas J. Crane, San Antonio Employment Law Blog

http://tinyurl.com/o2xdkpa

Many potential clients, friends and some folks I barely know share their knowledge with me about employment law.  Unfortunately, many of them are flat wrong. Here are a few of the more common employment law myths I encounter. . . .

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Is The Bluebook Protected By Copyright?

31 Sunday May 2015

Posted by in Citations, Copyright, Intellectual Property, Legal Writing, Public Domain, The Bluebook

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Legal Minds Differ On Whether The Bluebook Is Subject To Copyright Protection, by Leslie A. Gordon, ABA Journal

http://tinyurl.com/o228qkc

Controversy is probably not the first thing that comes to mind when you think of The Bluebook, but the bible of legal citation is at the center of an increasingly nasty dispute over whether it is subject to copyright protection.

Open-source advocates are contending that the style and citation manual is an essential piece of legal infrastructure and can’t be preserved as private property under copyright law. The book’s publishers say otherwise. . . .

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Bloomberg BNA’s New Search Tool For Corporate Transactions.

31 Sunday May 2015

Posted by in Corporate Law, Market Standard, Transactional Law

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Bloomberg BNA Launches New Tool For Corporate Transactions, by Barco 2.0: Law Library Reference, University of Pittsburgh School of Law

http://tinyurl.com/qgeeyz5

Bloomberg BNA today announced the launch of Bloomberg Law: Corporate Transactions, a  web-based product that includes a technology-driven drafting workflow tool with its analytics powered by Bloomberg’s financial databases, primary resources, secondary materials and practical guidance. This new offering allows corporate lawyers to know what deal terms are ‘market standard.’ . . .

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The 20th Edition of the Bluebook Has Finally Arrived.

30 Saturday May 2015

Posted by in Citations, Legal Writing, Link Rot, The Bluebook

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The Bluebook!, by Barco 2.0: Law Library Reference, University of Pittsburg (with hat tip to William P. Statsky)

http://tinyurl.com/qgxnokh

The approximate cost for the 20th Edition is around $30. If you buy it online to get the free month of the Bluebook Online, it will cost $38.50:  https://www.legalbluebook.com/Purchase/Products.aspx?op=Book.

You will find the changes made to the 20th Edition at the beginning of the book. Each new edition provides this information to allow you to see up front to show what has been revised and added to the book.

I am glad to see that this Edition of the Bluebook is addressing the problem of link rot by using Perma.cc. I’ve blogged previously about Perma.cc. I used it exclusively on this blog for a time until more than one posts were lost because the link no longer worked. Perma.cc is still the best tool available now to address link rot. Let’s hope that it works out its reliability problems. -CCE

The 20th Edition of The Bluebook is now available. For this edition, when you purchase a printed copy of The Bluebook, you will get a FREE 30 day trial to the Bluebook Online; look for your free trial key on the back of the title page. The Bluebook for iPad, iPhone and iPad Touch are available via the Rulebook app in the App Store. Perma.cc is pleased to see that this Bluebook now recognizes Perma.cc as a reliable tool for preserving internet sources. . . .

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iPhone Weather App – Will It Help Me Dodge Tornados And Floods?

28 Thursday May 2015

Posted by in Apple, Apps, iPad, iPhones, Legal Technology, Mac

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Review: Weather Line — iPhone weather app, by Jeff Richardson, iPhone, J.D.

http://www.iphonejd.com/iphone_jd/2015/05/review-weather-line.html

You might have heard that folks here in Oklahoma and other states are having a spot of trouble with the weather. If it is not hail or tornados, it’s flooding.

Our weather channels are doing a great job, but I have not found my current weather app that useful. This one looks as if it might do the job. -CCE

There are a ridiculous number of iPhone apps that can tell you the weather.  I have purchased a whole bunch of them, partly because weather apps are inherently useful, but also because whenever I find one with an interface or a feature that I like, it is often not long before another one comes along that seems like it might be better.  But for quite a while now, I’ve stuck with just one Weather app on the home screen of my iPhone:  Weather Line, which is currently on sale for only $1.99.  Here’s why this has been my favorite weather app, and perhaps it will appeal to you as well. . . .

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A New Way To Get The Latest Adobe Acrobat Software – Acrobat DC.

28 Thursday May 2015

Posted by in Adobe Acrobat, Legal Technology

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A New Way To Buy Acrobat DC: Subscription, by Rick Borstein, Acrobat for Legal Professionals Blog

http://blogs.adobe.com/acrolaw/

Adobe Acrobat is one of sharpest tools used in a law office. It would definitely be on my list of indispensable technology. I keep hearing about Acrobat DC, but have not had the opportunity to run it through its paces. Which option is more practical? Buying the license or trying the subscription route?

For those of you who are interested in the many various ways you can use Adobe Acrobat – any version – look to your right at the website. You might see something you like. -CCE

Before going further, I need to make sure that you know that you certainly can continue to buy and upgrade Acrobat as you have in the past without buying a subscription.

Subscription is a new additional purchase option for Acrobat.

Adobe has other software subscription offerings such as the Creative Cloud. The idea of subscription software is new to some folks, so I thought I would offer some background here and discuss some factors you might consider in making a decision of Buy versus Subscribe.

Note that purchase considerations will vary quite a bit between an individual or small firm and that of a large enterprise and that the opinions below are my own. . . .

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2015 Amendments to Delaware’s General Corporation Law.

27 Wednesday May 2015

Posted by in Corporate Law

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2015 Amendments to the General Corporation Law of the State of Delaware, by Richards Layton & Finger

http://www.rlf.com/Publications/6017

Please note the links at the bottom of their post, which will take you to other earlier amendments. -CCE

Legislation proposing to amend the General Corporation Law of the State of Delaware (the ‘DGCL’) has been approved by the Corporation Law Section of the Delaware State Bar Association and is expected to be introduced to the Delaware General Assembly. If the amendments become effective, they would result in several significant changes to the DGCL.

If enacted, the amendments (other than the amendments to Section 204 (ratification of defective corporate acts and stock), Section 205 (proceedings regarding validity of defective corporate acts and stock), Section 262 (appraisal rights), and Section 363(b) (appraisal rights of stockholders of a corporation that is not a public benefit corporation in connection with certain amendments to the certificate of incorporation to become a public benefit corporation or certain mergers or consolidations involving a public benefit corporation)) would become effective on August 1, 2015. The amendments to Sections 204 and 205 would become effective with respect to resolutions adopted by the board ratifying defective corporate acts or stock on or after August 1, 2015. The amendments to Section 262 would become effective with respect to agreements of merger or consolidation entered into on or after August 1, 2015. The amendments to Section 363(b) would become effective with respect to agreements of merger or consolidation entered into on or after August 1, 2015 and with respect to amendments to the certificate of incorporation approved by the board of directors on or after August 1, 2015. . . .

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Research Your Judge!

26 Tuesday May 2015

Posted by in Judges, Research

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21 Ingenious Ways to Research Your Judge, by Ken Lopez, A2L Consulting, The Litigation Consulting Report

http://tinyurl.com/nsca2lu

For small town attorneys, it is possible to get to know a local judge quite well. Not only do you spend time in front of the local judges frequently, but you very likely see them socially as well.

Most of our clients, though, work in large and medium sized law firms in big cities. They likely try more cases outside of their home town than they do within it. They likely appear in court more often on a pro hac vice (temporary) basis than they do in the jurisdiction where they are admitted to practice. So for these lawyers and the teams that support them, it can be a real challenge to understand your judge’s likes and dislikes. . . .

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BALLOTPEDIA’s Judicial Misconduct Reports.

25 Monday May 2015

Posted by in Judges, Legal Ethics

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BALLOTPEDIA *an interactive almanac of U.S. politics

BALLOTPEDIA has all types of interesting information. If you want to browse, here is the link to its Index of Contents: http://tinyurl.com/k8u4p6h. The section that caught my eye was its monthly judicial Misconduct Report.

http://ballotpedia.org/Misconduct_Report

Misconduct Reports

The monthly Misconduct Report discusses judges facing complaints or formal charges of judicial misconduct across the nation. The report includes updates about judges charged with misconduct during previous months, as well as the results of completed investigations. Note that any misconduct or other charges mentioned in our stories should be considered allegations, unless otherwise indicated. . . .

 

Judge Uses The “Mommy Voice.”

25 Monday May 2015

Posted by in Depositions, Discovery, Federal Rules of Discovery, Relevance, Requests for Production, Subpoena Duces Tecum

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Benchslap Of The Day: Just. Produce. The Documents!, by David Lat, Above The Law Blog

http://abovethelaw.com/2014/02/benchslap-of-the-day-just-produce-the-documents/

What’s the “Mommy Voice?” We have all been there, and may have used it ourselves.  It’s when your parent – usually your mother — calls you using your first, middle, and last names in a no-nonsense voice. Usually, whatever happens next, it isn’t pretty. -CCE

Yes, benchslaps are great fun to read about, especially if you enjoy a little schadenfreude. But benchslaps are not fun to receive — and they’re not always justified.

Because of the prestige of judicial office, judges generally get the benefit of the doubt when dishing out benchslaps. But sometimes judges go too far. For example, some observers felt that Judge Richard Posner crossed the line when interrogating a Jones Day partner during a recent Seventh Circuit argument.

This brings us to today’s benchslap — directed at a lawyer for the federal government, no less. It’s harsh, but is it warranted? . . .

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The Role and Power of Amicus Curiae.

25 Monday May 2015

Posted by in In Custodia Legis

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Amicus Curiae: Information in the Service of Justice, by Ken Strutin, LLRX.com

http://www.llrx.com/features/amicuscuriae.htm

From the pleas of Abraham on behalf of Sodom and Gomorrah1 to the appeals of Voltaire2 and Zola,3 intercessors for humanity4 have called for mercy and justice.5 In the legal system, such intonements have taken on the form of specialized briefs called amicus curiae (‘friend of the court’).6 And through extension and by complement they have appeared in the form of law reviews, media articles, exposes, and books.7 Indeed, there is an oscillating relationship between amici and law reviews, which has been beneficial for scholarship and public discourse. In the end, it is the passion for justice that drives individuals, governments, academics, lawyers, journalists and other interested groups to befriend the courts.8

The amicus has the power to speak to many audiences simultaneously. In the courtroom, it is the honest broker; in the public media, it is the educator; in academia, it is scholarly analysis and historical perspective. Bounded by common law, court rules, and the conventions of publishing (briefs, articles or books), the amicus can yet move knowledge into venues where it is most needed. An amicus can serve as an ‘oral shepardizer,’ expert witness, or quasi-litigant that extends the range of judicial notice and culls, concentrates and vets information into a case-specific resource.9

Still, there is a tension between the role of the amicus as independent expert offering facts and a party arguing an agenda, which can ultimately impact the quality and constitutionality of decision-making.10 . . .

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Learning From Past Mistakes.

24 Sunday May 2015

Posted by in Litigation, Product Liability

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A Lesson from the Lusitania 100 Years Later, by Jason A. Botticelli, Product Liability Playbook

http://gsriskmitigationblog.com/a-lesson-from-the-lusitania-100-years-later/

The famous quote by George Santayana that ‘those who cannot remember the past are condemned to repeat it’ can be an important reminder to companies and manufacturers to learn from past mistakes. And it is always best to learn from others’ mistakes before making them yourself. The misuse of a safety device during the sinking of the Lusitania 100 years ago can provide a powerful lesson still today. . . .

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Yes, Lawyers Have An Ethical Duty Of Technology Competence.

23 Saturday May 2015

Posted by in Law Office Management, Legal Ethics, Rules of Professional Responsibility, Technology, Technology

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13 States Have Adopted Ethical Duty of Technology Competence, by Robert Ambrogi, Law Sites Blog

http://www.lawsitesblog.com/2015/03/11-states-have-adopted-ethical-duty-of-technology-competence.html

If this standard has not yet hit your state, it is only a matter of time. If technology intimidates you, take a deep breath and jump in. I promise the water is nice and warm. As technology has evolved, it has become more intuitive, which makes it easier to learn.

Regardless of whatever excuse you use to avoid updating technology in your law office, you cannot avoid the requirement imposed by an ethical duty. It is not a question of whether your state’s bar association will adopt this standard – it’s when.

Paralegals and other legal support staff — same goes for us too. -CCE

[Update: It is now 14 states. See my 3/27/15 post on the rule’s adoption in Massachusetts.]

In 2012, something happened that I called a sea change in the legal profession: The American Bar Association formally approved a change to the Model Rules of Professional Conduct to make clear that lawyers have a duty to be competent not only in the law and its practice, but also in technology. . . .

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Let’s Play With Apple’s Menu Bar.

23 Saturday May 2015

Posted by in Apple, Legal Technology, Mac

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The HTG Guide to (Probably) Everything You Can Show on OS X’s Menu Bar, How To Geek Blog

http://www.howtogeek.com/217372/the-htg-guide-to-probably-everything-you-can-show-on-os-xs-menu-bar/

Apple’s operating system’s menu bar is truly old school; it’s been around for as long as there have been Macintoshes. The menu bar is extensible, though some users may not realize just how much, so we’ll show you the many ways you can add functionality to it.

If you have ever heard anyone use the phrase ‘the more things change, the more they stay the same’ then they could have been very well talking about Apple’s menu bar.

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The menu bar can be extended with a wide array of clickable icons for quick access to system preferences.

Today, the menu bar lets you add all kinds of extra functionality to it. You can easily check your Mac’s energy status (particularly helpful if you’re using a laptop), or you can start Time Machine backups, or log into another account with fast user switching, etc.

In fact, many of the System Preferences have icons you can add, and many applications will also use the menu bar so users have convenient access to features and functions.

In this article, we’re going to show and talk about all the different things you can add to the menu bar using only what you’ll find in the system preferences. This includes not only the things we’ve already mentioned, but all the other preference menu bar items we could find. . . .

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Limited License Legal Technicians – Can They Really Practice Law?

23 Saturday May 2015

Posted by in Family Law, Limited License Legal Technician Program, Paralegals/Legal Assistants, Regulation, Unauthorized Practice of Law, Washington Supreme Court

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Future or Folly: Limited License Legal Technicians, by 2Civility, Illinois Supreme Court Commission on Professionalism (with hat tip to William P. Statsky)

http://tinyurl.com/lk9jap6

It’s graduation time. This year, there is a brand new class of graduates in the State of Washington: Limited License Legal Technicians (LLLTs). These graduates are from a unique legal educational program—not a traditional law school. Yet they will eventually have a law license to perform limited legal services in family law. . . .

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Promises, Promises.

23 Saturday May 2015

Posted by in Contract Law, Legal Writing

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“Promises That” and “Promises To, by Ken Adams, Adams On Contract Drafting Blog

http://www.adamsdrafting.com/promises-that-and-promises-to/

For the sheer heck of it, let’s look at how the verb promises is used in contracts. . . .

E-Discovery Red Herring?

20 Wednesday May 2015

Posted by in Discovery, E-Discovery, Privilege and Confidentiality

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Riley Cell Phone Decision a Red Herring in E-Discovery, by Craig Ball, Ball In Your Court Blog

https://ballinyourcourt.wordpress.com/2015/05/20/riley-cell-phone-decision-a-red-herring-in-e-discovery/

Yesterday’s post on the Digital Strata blog reported on a 2014 order of a U.S. District Court in Connecticut that applied the U.S. Supreme Court’s decision in Riley v. California, 573 U.S. _, 134 S. Ct. 2473 (2014) to civil discovery. I think the Court’s reliance on Riley is misplaced in the civil discovery context; not just because Riley involved state action, but because civil discovery affords a litigant greater protection from oppression and intrusion than that attendant to the search and seizure in Riley. . . .

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Angry Judge Sanctions Defendants For E-Discovery Spoilation.

19 Tuesday May 2015

Posted by in Discovery, E-Discovery, Preservation, Sanctions

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Tired of the “Crap”, Court Sanctions Investors and Lawyers for Several Instances of Spoliation, by Doug Austin, eDiscoverydaily Blog

http://tinyurl.com/k3d74yu

In Clear-View Technologies, Inc., v. Rasnick et al, 5:13-cv-02744-BLF (N.D. Cal. May 13, 2015), California Magistrate Judge Paul S. Grewal sanctioned the defendants $212,320 and also granted a permissive adverse jury instruction that allows the presumption that the defendants’ spoliated documents due to a series of ‘transgressions’ by the defendants and their prior counsel.

You’ve got to love an order that begins this way:

‘Deployment of ‘Crap Cleaner’ software—with a motion to compel pending. Lost media with relevant documents. False certification that document production was complete. Failure to take any steps to preserve or collect relevant documents for two years after discussing this very suit. Any one of these transgressions by {the defendants} and their prior counsel might justify sanctions. Taken together, there can be no doubt.’ . . .

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If You Still Enter Your Billable Time On Paper, This Post Is For You!

16 Saturday May 2015

Posted by in Economics, Law Office Management, Technology, Time Management

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Those Hated Timesheets – Are You Still Using Them?, by Jim Calloway, Jim Calloway’s Law Practice Tips Blog

http://www.lawpracticetipsblog.com/2015/05/those-hated-timesheets.html

“Most lawyers hate filling out timesheets to record their billable time. Lawyers are also not perfect at Time sheet accomplishing this, leading every company with a time and billing product to tout how much money can be made if only every bit of ‘lost’ time was recorded. But the practice of recording time by hand on paper timesheets really does need to go the way of the Dodo bird.

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‘[T]here’s one observation that I can make today with a great deal of certainty. A lawyer entering their time by using pen and ink on a paper timesheet is employing an inefficient practice that should no longer be used. You need to enter your time digitally. This means you.’ . . .

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Texas Supreme Court Agrees That Compounding Pharmacy Is “Health Care Provider.”

16 Saturday May 2015

Posted by in Appellate Law, Damages, Health Law, Litigation, Negligence, Texas Supreme Court

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Texas Supreme Court Holds That Compounding Pharmacies Are Health Care Providers Under Texas Medical Liability Act, by Elinor H. Murarova, Duane Morris Health Law Blog

http://tinyurl.com/k75hx7m

On April 24, 2015, the Texas Supreme Court dismissed claims against a compounding pharmacy and its individual pharmacists which alleged negligence in compounding a lipoic acid medication, finding that the defendants were health care providers entitled to the protections in the Texas Medical Liability Act (‘TMLA’).

In the case Randol Mill Pharmacy et al. v. Miller et al., Case No. 13-1014 (Tex. Sup. Ct.), the plaintiff’s physician prescribed and administered weekly intravenous injections of 200 mg/ml lipoic acid, an antioxidant supplement. The plaintiff alleged that she underwent nine weeks of treatment without incident, but in the tenth treatment she suffered a severe adverse reaction and as a result was hospitalized for several weeks, received multiple blood transfusions, and went permanently blind in both eyes. Randol Mill Pharmacy compounded the lipoic acid that allegedly caused the adverse reaction.

In her complaint against the compounding pharmacy and its individual pharmacists, the plaintiff alleged that these defendants gave inadequate and inappropriate warnings and instructions for using the compounded lipoid acid; that the compounded lipoid acid was defective, ineffective and unreasonably dangerous; and that the compounding pharmacy and pharmacists generally breached implied warranties with respect to the design, manufacture, inspection, marketing, and/or distribution of the compounded lipoid acid. . . .

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The Rule of Short.

16 Saturday May 2015

Posted by in Editing, Legal Writing, Readability

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Manage Your Sentence Length, by Wayne Scheiss, Legible Blog from Legalwriting.net

http://sites.utexas.edu/legalwriting/2015/04/29/manage-your-sentence-length-2/

“The shorter the sentence, the easier it is to understand.” Practical Legal Writing for Legal Assistants. -CCE

What’s a good average sentence length for legal writing?

I once asked a group of lawyers at a CLE seminar that question. ‘Thirteen words,’ one lawyer volunteered. ‘Seven,’ said another. Wow. Writing about legal matters with an average of seven words per sentence isn’t realistic, is it? That means for every sentence of ten words, you’ve got to write one of four words to bring the average to seven. That would be tough.

But the instinct is right. Steven Stark, author of Writing to Win, says the more complex the material, the shorter the sentences should be. So what’s a more realistic goal? The experts say between 20 and 25 words:

  • below 25—Wydick in Plain English for Lawyers
  • about 22—Enquist & Oates in Just Writing: Grammar, Punctuation, and Style for the Legal Writer
  • about 20—Garner in Legal Writing in Plain EnglishHow do you know your average sentence length?

You can program Microsoft Word to tell you. . . .

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Sprint and Verizon Will Repay Millions For Illegal Billing.

16 Saturday May 2015

Posted by in Consumer Financial Protection Bureau, Consumer Law

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Sprint And Verizon Will Refund $120 Million To Consumers Harmed By Illegal Billing Practices, by Genessa Stout, Consumer Financial Protection Bureau

http://tinyurl.com/n5l3q6q

Today [May 12, 2015] we’re announcing settlements with Sprint and Verizon, who illegally billed consumers over a hundred million dollars in unauthorized third-party charges. If approved, these will return $120 million directly to affected consumers.

Sprint’s and Verizon’s customers became victims by clicking on ads for ‘free’ digital content such as ring tones or daily horoscopes, and were then charged without their consent. Many people did not know that third parties could add charges to their wireless bills. The illegal billing often continued undetected for months.

Sprint’s and Verizon’s billing systems invited illegal third-party charges and the companies did little or nothing to root them out. Sprint and Verizon also failed to properly track and respond to consumer complaints about these charges, while collecting hundreds of millions of dollars in revenue by serving as payment processors for these third-party companies. Sprint and Verizon received a 30-40 percent cut of every third-party charge. . . .

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Abandon Weak Points To Bolster Your Stronger Legal Arguments.

13 Wednesday May 2015

Posted by in Brief Writing, Editing, Legal Argument, Legal Writing

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First Impressions Endure, Even In Brief Writing, by Bryan A. Garner, ABA Journal

http://www.abajournal.com/magazine/article/first_impressions_endure_even_in_brief_writing

We have a long history of judges saying that (1) little errors in a brief betoken bigger mistakes, (2) less is more, and (3) good briefs demand little physical or mental effort from the reader. Even so, briefs in most courts are astonishingly ill-proofread, they are rarely tight, and lawyers seldom confine themselves to two or three points. There’s a disconnect between what judges say they want and what lawyers give them. Curious.

There’s also a tendency to disbelieve things that can’t be scientifically proved. Hence I’ve heard lawyers say they don’t care so much about what judges say they find persuasive in written arguments. Those judges might not actually know what motivates them, the skeptical lawyers say. They want proof.

So let’s take the three points mentioned at the outset and see whether, when it comes to judging, there’s any scientific evidence to back up the anecdotal evidence that good writing enhances persuasion. We’ll use the findings of Nobel laureate Daniel Kahneman, the Princeton psychologist and economist who wrote a superb book: Thinking, Fast and Slow. What he says is most illuminating. . . .

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