17 Tuesday Feb 2015
Posted in Bad Legal Writing, Boilerplate Forms, Boilerplate Forms, Contract Law, Legal Writing, Legalese
≈ Comments Off on “Know All Men By These Presents” — Who’s Getting All The Gifts?
Presents? Thank You Very — Oh, by Raymond Ward, the (new) legal writer blog
http://raymondpward.typepad.com/newlegalwriter/2012/01/presents-thank-you-very-oh.html
Every time I see the silly phrase ‘Know all men by these presents,’ I think of Christmas. Perhaps a statement the Magi wanted to make about their presents for the Christ child. Nevertheless, I’m no expert on drafting contracts: on that subject, I defer to Ken Adams, who riffs on the silly phrase in this post.
Can I get a witnesseth?
16 Monday Feb 2015
Posted in Depositions, Discovery, Evidence, Transcripts, Trial Tips and Techniques, Witness Preparation, Witnesses
≈ Comments Off on At Depositions, Ask the Witness To Show, Not Tell.
Tags
Court Record, Depositions, Elliott Wilcox, Evidence, Transcripts, Trial Theater©, Trial Tips & Techniques
Impeach Witnesses by Creating an Effective Record at Depositions, by Elliott Wilcox, Trial Theater©
The depositions were taking longer than expected, and they were some of the most boring depos I’ve ever attended. As we approached 3 o’clock, I could barely keep my eyes open. Luckily, closing my eyes for a brief moment helped me see what the deposition transcript would look like, and pointed out the difference between talking to the witness and talking to the record. Take a look at two sample questions that were asked:
“This blood here, is that from this general area here, or is that from another area?”
“Is this photograph here a photograph of this area here?”
Huh? Do you have any idea what they’re talking about? Do you know where the blood is? Neither will they when the attorney if she tries to impeach the witness using this deposition during trial. . . .
16 Monday Feb 2015
Posted in Breach, Contract Law, Intentional Promise, Performance
≈ Comments Off on Impose An Obligation On Someone To Control Something They Can’t Really Control – What’s The Point?
A Reminder About “Shall Cause,” by Ken Adams, Adams On Contract Drafting
http://www.adamsdrafting.com/a-reminder-about-shall-cause/
Reed Smith has published an inaugural issue of Contract-Drafting Bulletin. One item was of particular interest to me. It’s about an October 2014 opinion from the U.S. District Court for the Southern District of New York, World of Boxing LLC v. King (PDF copy here).
Here’s the gist of it: In May 2013, boxers Guillermo Jones and Denis Lebedev fought, with Jones winning. But after the bout Jones failed a drug test and was stripped of the win. In January 2014, boxing promoters Don King and WOB entered into an “agreement in principle” in which King promised to “cause Jones [ ] to participate” in a rematch. But before the rematch, Jones failed another drug test, so Lebedev withdrew.
In the resulting litigation, WOB claimed that King breached their contract by failing to cause Jones to participate in the match. The court agreed (footnotes omitted):
If Jones could not participate in the bout, it follows a fortiori that King could not have caused Jones to participate in the bout. Therefore, King breached the Agreement.
King protests that this interpretation of the Agreement yields “unreasonable and illogical” results. It would require of King “nothing less than … personal supervision of Jones’s every action between the execution of [the Agreement] and the scheduled date of the [bout against Lebedev].” Indeed, in order to avoid liability, King avers that he would have had “to imprison Jones to prevent him from having any access to a banned substance”—clearly an untenable outcome.
While these arguments might have force, they are addressed to the wrong issue. King could be right: under the circumstances, it is possible that his contractual obligations were too onerous to be enforceable. But that question goes to whether King’s failure to perform may be excused, not to whether King in fact failed to perform. As to the latter, Jones’s disqualification plainly put King in breach.
The court then went on to hold that King’s impossibility defense didn’t excuse his breach.
So, what does this case have to say to contract drafters? . . . .
16 Monday Feb 2015
Posted in Android Phones, Attorney Discipline, Blackberry Phones, Cell Phones, Confidentiality, Cybersecurity, E-Filing, Emails, iPad, iPhones, Law Office Management, Legal Ethics, Legal Technology, Malpractice, Office Procedures, Passwords, Rules of Professional Responsibility, Supervising Support Staff, Technology, Technology
≈ Comments Off on Don’t Have A PIN Lock On Your Phone? Hope Your Malpractice Insurance Is Up To Date.
Tags
Android Phones, Confidentiality, Cybersecurity, DARKReading, Ed Hansberry, InformationWeek©, iPhones, Legal Ethics, Malpractice, PIN Lock, Smart Phones
Most Consumers Don’t Lock Mobile Phone Via PIN, by Ed Hansberry, DARKReading, InformationWeek©
My guess is that most people who use a smart phone access some kind of confidential information, such as your bank account or conversations with a client or the office. If you do not have a PIN lock on your smart phone, this truly is special kind of stupid.
This is not a hard one to understand. If you use your cell phone to communicate with clients, sync your phone to your office computer and docket, or attach yourself to your office and confidential information – without taking simple, basic security measures – you are inviting a dangerous breach of confidentiality. -CCE
44% of respondents say it’s too much of a hassle, new survey reports.
People put a lot of sensitive info on their phones, but they often give little though to how secure their data is. In a survey by a security company, over half of the respondents said they didn’t bother with a PIN lock. This takes on a whole new dimension when you begin to understand how many of these people keep corporate data on the device.
Losing an unlocked phone can be far worse than losing a wallet. Emails on the device alone can reveal a wealth of information about the person, including where they bank, where they live, names of family members, and more. If company email is on the device, and it often is, there can be competitive information, salaries, system passwords, etc. If any of those emails contain links, often clicking on it will take you into the website, be it Facebook or a corporate portal.
According to Confident Technologies, 65% of users have corporate data on their phone, even though only 10% actually have a corporate issued device.
For that majority that don’t lock their phone at all, 44% said it is too much of a hassle to lock it and 30% said they weren’t worried about security. These are likely the same people that store things like social security numbers, passwords, and other sensitive information in text files or basic note applications. They may even store their computer’s password on a Post-It Note in their center desk drawer. . . .
15 Sunday Feb 2015
Posted in Daubert Motion, Evidence, Litigation, Product Liability
≈ Comments Off on Failure-To-Warn Case – Can Your Expert Beat The Warning Label?
Tags
Burden of Proof, Daubert Motion, Ernie Goodwin, Evidence, Expert Witness, Product Liability, Product Liability Advocate, Warning Labels
WARNING! If You Assume Your Case Will Survive Because You Have a “Creative” Warnings Expert, You Do So At Your Own Risk, by Ernie Goodwin, Product Liability Advocate
Those of us in the business of defending products look at the world in a slightly different way. When I come across a warning label, I actually study it because in a failure to warn case, the language of the warning, the color of the label and its location on the product are relevant to the effectiveness of the warning. In my experience defending manufacturers of various types of products, I have seen plaintiffs make speculative failure to warn claims. Less-experienced plaintiffs’ attorneys assume that a creative theory developed by a well-credentialed “warnings expert” will be enough to leverage a settlement in an otherwise weak case on liability. That is a dangerous assumption to make.
The case law in all jurisdictions is clear when it comes to the burden of proof for a warnings claim; there has to be a direct link between the failure of the manufacturer to warn about the hazard and the cause of the incident. Moreover, the plaintiff’s expert must consider, among many other things, all of the available accident data and not rely only on select facts from the record to support his findings. A manufacturer who is facing a speculative warnings claim has a few options for dealing with these types of claims. The most effective and frequently used tool is the Daubert motion to exclude the expert from testifying at trial. . . .
14 Saturday Feb 2015
Posted in EEOC, Employment Law, Harassment, Sexual Harassment
≈ Comments Off on Valentine’s Day Regrettable Bad Influence at The Workplace.
Tags
Connecticut Employment Law Blog, Daniel Schwartz, Employment Law, Sexual harassment, Valentine's Day
More Examples of Why Valentine’s Day is a Bad Day for Employers, by Daniel Schwartz, Connecticut Employment Law Blog
A little something for Valentine’s Day. -CCE
Two years ago, I wrote of the perils of Valentine’s Day. While it may be a day for lovers, it is also a day where people do crazy (read: stupid) things.
I am not talking about Crazy. Stupid. Love. (Good movie, silly name.)
I’m talking about things that can lead to a sexual harassment lawsuit.
Not convinced? Well, since 2011, there are still more cases that have arisen where Valentine’s Day figures prominently. Here are two prime examples. . . .
14 Saturday Feb 2015
Posted in Consumer Law, Finance and Banking Law, Foreclosure, Standard & Poor
≈ Comments Off on S&P Settlement For Defrauding Investors That Led To Financial Crisis.
Tags
beSpacific Blog., Collateralized Debt Obligations, Financial Crisis, McGraw Hill Financial Inc., Residential Mortgage-Backed Securities, Sabrina I. Pacifici, Standard & Poor
DOJ and State Partners Secure $1.375 Billion Settlement with S&P for Defrauding Investors in Lead Up to the Financial Crisis, by Sabrina I. Pacifici, BeSpacific Blog
News release: ‘Attorney General Eric Holder announced today [February 3, 2015] that the Department of Justice and 19 states and the District of Columbia have entered into a $1.375 billion settlement agreement with the rating agency Standard & Poor’s Financial Services LLC, along with its parent corporation McGraw Hill Financial Inc., to resolve allegations that S&P had engaged in a scheme to defraud investors in structured financial products known as Residential Mortgage-Backed Securities (RMBS) and Collateralized Debt Obligations (CDOs). The agreement resolves the department’s 2013 lawsuit against S&P, along with the suits of 19 states and the District of Columbia. Each of the lawsuits allege that investors incurred substantial losses on RMBS and CDOs for which S&P issued inflated ratings that misrepresented the securities’ true credit risks. Other allegations assert that S&P falsely represented that its ratings were objective, independent and uninfluenced by S&P’s business relationships with the investment banks that issued the securities. The settlement announced today is comprised of several elements. In addition to the payment of $1.375 billion, S&P has acknowledged conduct associated with its ratings of RMBS and CDOs during 2004 to 2007 in an agreed statement of facts. It has further agreed to formally retract an allegation that the United States’ lawsuit was filed in retaliation for the defendant’s decisions with regard to the credit of the United States. Finally, S&P has agreed to comply with the consumer protection statutes of each of the settling states and the District of Columbia, and to respond, in good faith, to requests from any of the states and the District of Columbia for information or material concerning any possible violation of those laws. ’On more than one occasion, the company’s leadership ignored senior analysts who warned that the company had given top ratings to financial products that were failing to perform as advertised,’ said Attorney General Holder. ’As S&P admits under this settlement, company executives complained that the company declined to downgrade underperforming assets because it was worried that doing so would hurt the company’s business. While this strategy may have helped S&P avoid disappointing its clients, it did major harm to the larger economy, contributing to the worst financial crisis since the Great Depression.’ . . . [Emphasis added.] Continue reading
14 Saturday Feb 2015
Posted in Adobe Acrobat, Legal Technology
≈ Comments Off on Trouble Finding Words and Terms in Adobe Documents? Not Any More.
Searching and Marking Multiple Words in a PDF, by Rick Borstein, Rick Borstein’s Acrobat for Professionals Blog
http://blogs.adobe.com/acrolaw/category/case-analysis/
Legal Professionals often need to search across a large number of documents. Finding a key fact, name or term is an important part of how you will apply your knowledge to a case.
For example, recently a paralegal sent me this email:
An attorney I work with just gave me a list of about 50 words and phrases as part of a case. I need to mark these terms each time I find them in my case documents. Help! Is there a way I can list all of the search words in a PDF?
While many folks have discovered the Search functionality in Acrobat, Acrobat 9 and below do not offer the ability to save searches or report the results.
Oddly, the only tool in Acrobat that allows you to search for terms and mark them in a PDF is part of the Search and Redact feature. . . .
12 Thursday Feb 2015
Posted in Estate Planning, Probate and Trusts, Wills
≈ Comments Off on What Will Happen To Your Facebook Account When You Die?
Option Added To Designate Facebook Heir, by Gerry W. Beyer, Wills, Trusts & Estates Prof Blog
Facebook is now offering additional options to treatment of an account after the user dies in addition to memorialization. As of today, Facebook users in the U.S. can designate a ‘legacy contact,’ which includes choosing a Facebook friend to take over the account in a limited capacity after the user dies.
The legacy contact is given the ability to download posts and photos, respond to new friend requests, and post memorial posts to the page. However, the legacy contact cannot delete anything from the account or view private messages. Users can also choose an alternative option to have the account deleted after their death. If neither option is opted for, the default of freezing the account through memorialization will occur.
See Geoffrey A. Fowler, Facebook Heir? Time to Choose Who Manages Your Account When You Die, The Wall Street Journal, Feb. 12, 2015.
Special thanks to Eric G. Reis (Thompson & Knight LLP) for bringing this article to my attention.
12 Thursday Feb 2015
Posted in Android Phones, Cell Phones, Criminal Law, iPhones, Legal Technology, Video
≈ Comments Off on Using Social Media In Police Criminal Investigations.
Tags
Cell Phones, Criminal Law, EvidenceProf Blog, Facebook, Jeff Bellin, Social media, Text Messages, Twitter
Monitoring Social Media: The New Face of Criminal Investigations, by Jeff Bellin, EvidenceProf Blog
A recent story illustrates the bonanza of social media evidence police can obtain without ever leaving the station.
From the Richmond Times Dispatch, someone allegedly crashed a van into a Richmond area high school.
‘After the crash, which occurred about 1:30 a.m., investigators monitored Twitter, Facebook and other social media sites for information on who may have been responsible. The effort paid off, police said.
In addition to incriminating tweets, text messages and phone calls, detectives recovered a cellphone video of the crash itself — footage that shows a 1996 Ford Club Wagon van slamming into the school, said Chesterfield police Lt. Steve Grohowski.’
12 Thursday Feb 2015
Posted in iPad, Laptop, Legal Technology
≈ Comments Off on Use Technology In Court, But Keep It Quiet!
Tags
Apple Wireless Keyboard, Court Reporter, Depositions, Goodnotes, iPad, iPhone J.D., Jeff Richardson, Stenomask, Trial, Typing Keyboard, Wacom Bamboo Stylus
Quiet Keyboards For Court?, by Jeff Richardson, iPhone J.D.
I recently received an email from Baton Rouge, Louisiana litigator Ross Dooley of Roedel, Parsons, Koch, Blache, Balhoff & McCollister. He is looking for a quiet external keyboard that he can use with his iPad to take notes in court. He told me that he was recently using his iPad with the Apple Wireless Keyboard during a hearing when the judge’s minute clerk alerted him that his typing was too loud. This was a courtroom in which the court reporter was wearing headphones and speaking into a stenomask, and apparently the sound of the typing was somehow amplified in the court reporter’s headphones.
I don’t often encounter a court reporter using a stenomask, but even so, I rarely type using a keyboard with my iPad in court because I do think that the noise can be distracting. If I am going to use my iPad to take notes, I instead use a quiet stylus like the Wacom Bamboo Stylus duo and an app like GoodNotes. But I cannot write using a stylus as fast as I can with a pen, so for those times in court when speed matters, I just use pen and paper.
On the other hand, in depositions, I use a keyboard with my iPad all the time. In that setting, I have never found the Apple Wireless Keyboard to be too loud, nor have I found the sound of other keyboards to be too distracting. . . .
12 Thursday Feb 2015
Posted in Civil Rights, Excessive Force
≈ Comments Off on Public Schools’ Limits on Student Restraints And Isolation.
Tags
Children, Discipline, NPR, ProPublica, Public Schools, Virginia
Virginia Passes Bill to Rein in Restraints of School Kids, by Heather Vogell, ProPublica
Virginia lawmakers have passed a bill requiring state leaders to set limits on how public schools can restrain or isolate students.
Last summer, ProPublica and NPR reported that new federal data showed the practices – which can include pinning down or tying up students or locking them alone in dark rooms – were used more than 267,000 times nationwide in the 2012 school year. Hundreds of children are injured each year and at least 20 have died as a result. . . .
12 Thursday Feb 2015
Posted in Insurance Coverage, Insurance Law, Nonrenewal
≈ Comments Off on When Insurance Is Not Renewed, What Constitutes Legal Notice?
Mailing is All Needed to Perfect Nonrenewal, by Barry Zalma, Zalma On Insurance Blog
http://zalma.com/blog/mailing-is-all-needed-to-perfect-nonrenewal/
Some cases go on and on with trial decisions reversed, remanded, retried and appealed again. In Collins v. State Farm Ins. Co., ___ So.3d ___, 2015 WL 468970 (La. App. 4 Cir.), 2014-0419 (La. App. 4 Cir. 2/4/15) after eight years of litigation over damages resulting from Hurricane Katrina the insured ended up with nothing. His last attempt at recovery was to sue his agent for negligence because he did not inform the plaintiff that his policy had been non-renewed well before Katrina hit New Orleans.
The insured, Edward Collins, brought this suit against his insurer, State Farm Fire and Casualty Company (‘State Farm’), and his insurance agent, Reggie Glass. From the trial court’s judgment granting Mr. Glass’ motion for summary judgment. Mr. Collins appeals.
FACTUAL BACKGROUND
In January 2000, Mr. Collins filed a claim under his homeowner’s policy with State Farm for roof damage to his property located at 7508 Lafourche Street in New Orleans, Louisiana. State Farm adjusted the claim and paid the damages due under the policy. In September 2004, Mr. Collins submitted another claim under his homeowner’s policy. During its investigation of this claim, State Farm discovered that Mr. Collins failed to repair his roof after he was paid for his 2000 claim. State Farm thus decided not to renew Mr. Collins’ homeowner’s policy when it expired on May 30, 2005. . . .
11 Wednesday Feb 2015
Posted in Google Map
≈ Comments Off on Want To Remove Your House From Google Map’s Street View? No Problem.
Tags
Bloomberg Business, Google Maps, Google Street View, Mark Zuckerberg, Patrick Clark, Privacy, Tom Hall
It’s Surprisingly Simple to Get Your House Off Google Street View. It’s Also Permanent, by Patrick Clark, with assistance from Tom Hall, Bloomberg Business
You may have a good reason for your house to be on Google Map. But if you don’t, you’ll like this. -CCE
Like your privacy? So does Facebook CEO Mark Zuckerberg, as we see here.
Just one question: Why does his house vanish into thin air when you drive past it?
At least, that’s what happens in Google Street View, the Google Maps feature that lets you switch to a panoramic view of a building or block. . . .
11 Wednesday Feb 2015
Posted in Cybersecurity, Litigation, Motor Vehicle, Product Liability
≈ Comments Off on Problems With Automobile Security and Privacy Vulnerabilities.
Tags
Automobile Manufacturers, Cyber Attacks, Hacking, Motor Vehicles, Privacy, Security, Technology, Tracking
Markey Report Reveals Automobile Security and Privacy Vulnerabilities, by Sabrina I. Pacifici, BeSpacific Blog
http://www.bespacific.com/markey-report-reveals-automobile-security-privacy-vulnerabilities/
‘New standards are needed to plug security and privacy gaps in our cars and trucks, according to a report released today by Senator Edward J. Markey (D-Mass.). The report, called Tracking & Hacking: Security & Privacy Gaps Put American Drivers at Risk and first reported on by CBS News’ 60 Minutes, reveals how sixteen major automobile manufacturers responded to questions from Senator Markey in 2014 about how vehicles may be vulnerable to hackers, and how driver information is collected and protected. The responses from the automobile manufacturers show a vehicle fleet that has fully adopted wireless technologies like Bluetooth and even wireless Internet access, but has not addressed the real possibilities of hacker infiltration into vehicle systems. The report also details the widespread collection of driver and vehicle information, without privacy protections for how that information is shared and used. ‘Drivers have come to rely on these new technologies, but unfortunately the automakers haven’t done their part to protect us from cyber-attacks or privacy invasions. Even as we are more connected than ever in our cars and trucks, our technology systems and data security remain largely unprotected,’ said Senator Markey, a member of the Commerce, Science and Transportation Committee. ‘We need to work with the industry and cyber-security experts to establish clear rules of the road to ensure the safety and privacy of 21st-century American drivers.’ Senator Markey posed his questions after studies showed how hackers can get into the controls of some popular vehicles, causing them to suddenly accelerate, turn, kill the brakes, activate the horn, control the headlights, and modify the speedometer and gas gauge readings. Additional concerns came from the rise of navigation and other features that record and send location or driving history information. Senator Markey wanted to know what automobile manufacturers are doing to address these issues and protect drivers.’
11 Wednesday Feb 2015
Posted in Law Office Management, Legal Technology, Technology, Time Management
≈ Comments Off on Jim Calloway’s New Legal Technology Column – This Will Be A “Must Read!”
Tags
Jim Calloway, Jim Calloway's Law Practice Tips Blog, Law Office Management, Legal Technology, Time Management
It’s Time To Love Technology, by Jim Calloway, Jim Calloway’s Law Practice Tips Blog
http://www.lawpracticetipsblog.com/2015/01/ime-to-love-technology.html
Lawyers tend to have a love/hate relationship with technology. Of course, that’s often true for any of us who use today’s technology for our work. But for many lawyers, these feelings are quite pronounced and, without offering any amateur psychological diagnosis, I feel many members of the legal profession evidence a split personality when using technology.
So begins my column, It’s Time To Love Technology, in the January/February issue of Law Practice Magazine. I know that statement is easier for me to say, having an interest in technology rather than the very-typical lawyer aversion to technology. But it is time, past time actually, to be updating to technology-based digital work flows. It is time to embrace the fact that the tools of our trade are mainly technology-based tools. We would certainly judge others who did not know how to use the basic tools of their trade properly. It is time. I appreciate that you are too busy and think you don’t have the time.
But, as I noted in my column:
If you are billing a client for four hours to do something that could be done in 20 minutes, you are not doing right by your law practice or your client.
10 Tuesday Feb 2015
Posted in Confidentiality, Legal Ethics, Legal Technology, Technology
≈ Comments Off on You Could Be Unintentionally Violating Client Confidentiality In Public.
Tags
Client Confidentiality, Inadvertent Disclosure, Lawyerist Insider, Lawyerist.com©, Legal Ethics, Public Wi-Fi
If You Are Reading This Over Public Wi-Fi, You Are Probably Putting Your Clients’ Information At Risk, Lawyerist Insider, Lawyerist.com©
Most legal professionals know that conversations about a client’s case should never happen in a public place. Regardless, there are times when we seem to forget. If you have ever eaten in a popular restaurant close to the courthouse, then I will bet you’ve overheard trial and settlement strategy openly discussed within earshot during lunchtime. This post discusses what should be obvious – keep all confidential information about clients private, not public. -CCE
On several occasions, I have overheard lawyers talking very loudly on the phone to their clients. Coffee shops, of course, but courthouse bathroom stalls seem to be an especially popular place to hold attorney-client phone conversations at length and in great detail, quite loudly. While inadvertent disclosure does not void the privilege, talking loudly from a public bathroom stall is only ‘inadvertent disclosure’ in the sense that the lawyer is a dumbass.
Using public wi-fi without taking appropriate security precautions isn’t quite as bad as discussing settlement strategy in the bathroom at opposing counsel’s firm, but it’s not too far from it. A couple of weeks ago I was curious to see how easy it actually is to see what other people connected to a public wi-fi router are doing. I found out it is really easy. In a couple of minutes, I got explicit instructions that let me scan the network for other computers, pick one, and see the websites it was accessing. I didn’t even have to install anything on my MacBook.
It’s so easy that you could do it, too. It’s so easy that plenty of people are doing it, every day, probably on the public wi-fi networks you use.
Before you send or receive client information over a public wi-fi network (by email, for example, unless you know your email connection is secured), read Lisa’s post, ‘Beware Public Wi-Fi When Accessing Client Information.’ Don’t be the lawyer talking loudly in a public bathroom — er, wi-fi network.
10 Tuesday Feb 2015
Posted in Damages, Litigation, Negligence, Product Liability, Torts
≈ Comments Off on Pennsylvania’s New Standards for Strict Liability Claims.
Tags
Duane Morris LLP & Affiliates®, Negligence, Pennsylvania, Product Liability, Second Restatement of Torts, Strict Liability, Torts
Pennsylvania Supreme Court Adopts New Standards for Strict Liability Claims, by Duane Morris LLP & Affiliates®
While the Tincher decision clarifies some issues regarding strict liability cases, there are many issues left to be determined by future case law.
On November 19, 2014, the Pennsylvania Supreme Court issued its much-anticipated decision in Tincher v. Omega Flex, Inc. (No. 17 MAP 2013), in which it addresses the proper standard under Pennsylvania law for strict liability claims relating to allegedly defective products. Although the court declined to adopt the Restatement (Third) of Torts, it overruled its prior holding in Azzarello v. Black Brothers Company, 391 A.2d 1020 (Pa. 1978), which created roadblocks to the introduction by defendants of the reasonableness of their actions in designing products.
Strict liability for defective products developed from the social policy determination that the cost of injuries resulting from defective products should be borne by the manufacturers of the products rather than by the injured persons.[1] For almost 50 years, strict liability under Pennsylvania law has been governed by Section 402A of the Second Restatement of Torts, which provides that ‘one who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability [for the harm caused] . . . .’
The term ‘unreasonably dangerous’ naturally involves a balancing between what is reasonable and what is not, which is similar to the fault-based notions encompassed by negligence claims. However, in Azzarello, the Pennsylvania Supreme Court drew a bright line between strict liability and negligence causes of action. . . .
08 Sunday Feb 2015
Posted in Concept Search Tools, Discovery, Document Review, E-Discovery, Emails, Federal Rules of Discovery, Legal Technology, Microsoft Office, Native Format, Outlook, Preservation, Requests for Production, Rule 34
≈ Comments Off on Do-It-Yourself E-Discovery? Is There Such A Thing?
Tags
Ball In Your Court Blog, Computer Forensics, Craig Ball, Discovery, E-Discovery, E-Mail, Evidence, Native Format, PST Files
Do-It-Yourself Digital Discovery, Revisited, by Craig Ball, Ball In Your Court Blog
In case you have not noticed, Craig Ball is re-posting older articles, as he explains below. Truly folks, when it comes to e-discovery, when Craig Ball speaks, I listen. Maybe you should too.
I have posted many of his revisited posts. To find them all, visit his blog, Ball In Your Court at https://ballinyourcourt.wordpress.com/. -CCE
This is the thirteenth in a series revisiting Ball in Your Court columns and posts from the primordial past of e-discovery–updating and critiquing in places, and hopefully restarting a few conversations. As always, your comments are gratefully solicited.
Do-It-Yourself Digital Discovery [Originally published in Law Technology News, May 2006]
Recently, a West Texas firm received a dozen Microsoft Outlook PST files from a client. Like the dog that caught the car, they weren’t sure what to do next. Even out on the prairie, they’d heard of online hosting and e-mail analytics, but worried about the cost. They wondered: Did they really need an e-discovery vendor? Couldn’t they just do it themselves?
As a computer forensic examiner, I blanch at the thought of lawyers harvesting data and processing e-mail in native formats. ‘Guard the chain of custody,’ I want to warn. ’Don’t mess up the metadata! Leave this stuff to the experts!’ But the trial lawyer in me wonders how a solo/small firm practitioner in a run-of-the-mill case is supposed to tell a client, ‘Sorry, the courts are closed to you because you can’t afford e-discovery experts.’
Most evidence today is electronic, so curtailing discovery of electronic evidence isn’t an option, and trying to stick with paper is a dead end. We’ve got to deal with electronic evidence in small cases, too. Sometimes, that means doing it yourself.
As a computer forensic examiner, I blanch at the thought of lawyers harvesting data and processing e-mail in native formats. ‘Guard the chain of custody,’ I want to warn. ‘Don’t mess up the metadata! Leave this stuff to the experts!’ But the trial lawyer in me wonders how a solo/small firm practitioner in a run-of-the-mill case is supposed to tell a client, ‘Sorry, the courts are closed to you because you can’t afford e-discovery experts.’
Most evidence today is electronic, so curtailing discovery of electronic evidence isn’t an option, and trying to stick with paper is a dead end. We’ve got to deal with electronic evidence in small cases, too. Sometimes, that means doing it yourself.
The West Texas lawyers sought a way to access and search the Outlook e-mail and attachments in the PSTs. It had to be quick and easy. It had to protect the integrity of the evidence. And it had to be cheap. They wanted what many lawyers will come to see they need: the tools and techniques to stay in touch with the evidence in smaller cases without working through vendors and experts.
What’s a PST?
Microsoft Outlook is the most popular business e-mail and calendaring client, but don’t confuse Outlook with Outlook Express, a simpler application bundled with Windows. Outlook Express stores messages in plain text, by folder name, in files with the extension .DBX. Outlook stores local message data, attachments, folder structure and other information in an encrypted, often-massive database file with the extension .PST. Because the PST file structure is complex, proprietary and poorly documented, some programs have trouble interpreting PSTs.
What About Outlook?
Couldn’t they just load the files in Outlook and search? Many do just that, but there are compelling reasons why Outlook is the wrong choice for an electronic discovery search and review tool, foremost among them being that it doesn’t protect the integrity of the evidence. Outlook changes PST files. Further, Outlook searches are slow, don’t include attachments (but see my concluding comments below) and can’t be run across multiple mail accounts. . . . .
.
07 Saturday Feb 2015
Posted in Android Phones, Apps, Cell Phones, iPad, iPhones, Law Office Management, Legal Technology, Management, Marketing, Trial Tips and Techniques
≈ Comments Off on The New and The Best Lawyer Apps for 2015.
Tags
Android Phone Apps, Brian Focht, Cell Phones, iPhone Apps, Lawyer Apps, Legal Technology, Management, Marketing, Styles Byrum & Horne LLP, thecyberadvocate.com, Windows Phone
Best New Apps for Lawyers from January 2015, by Brian Focht, Civil Litigation Attorney at Styles Byrum & Horne LLP
Whether you’re looking to market your firm, increase your practice’s productivity, prepare and present information at trial, or increase your practice management capacity, there’s an app for you! Check out the best new apps for lawyers, for iOS, Android and Windows Phone, from January 2015!
And,
The Best New Apps for Lawyers – January 2015, thecyberadvocate.com
Whether you’re looking for marketing, practice management, or litigation strategy, here are the best new apps for lawyers from January 2015.
07 Saturday Feb 2015
Posted in Brief Writing, Editing, Legal Argument, Legal Writing, Plain Language
≈ Comments Off on You’ve Written The Brief. Now What About The Conclusion?
No more copying and pasting. Draft a strong conclusion. by Rebecca Phalen Blog
http://www.rebeccaphalen.com/draft-strong-conclusion/
You finally finished drafting the argument section of your brief; you are mentally spent. So for the conclusion you copy and paste: ‘For the foregoing reasons, Defendant asks this Court to grant its motion.’ Yes, it feels a little anticlimactic and abrupt, but at least the brief is done. Perhaps you think that judges aren’t paying attention by the end anyway.
But the next time you are tempted to end your brief this way, consider that Bryan Garner, in Legal Writing in Plain English, called this type of conclusion ‘a formulaic cop-out that says nothing.’ Yikes.
Writing a strong conclusion that actually says something can be hard work. But here are some tips to get you started on ending strongly: . . . .
05 Thursday Feb 2015
Posted in Duty to Defend, Insurance Law, Litigation, Motion in Limine, Summary judgment
≈ Comments Off on Duty to Defend In Insurance Case.
Tags
Barry Zalma, Duty to Defend, Insurance, Motion for Summary Jugdment, Motion in Linine, Zalma on Insurance Blog
Duty to Defend Not Effected by Denial of Motion for Summary Judgment, by Barry Zalma, Zalma on Insurance
http://zalma.com/blog/duty-to-defend-not-effected-by-denial-of-motion-for-summary-judgment/
Defense Can’t Be Avoided by Use Of Limine Motions
The duty to defend owed by an insurer is very broad and requires an insurer to defend even if there is only a potential for coverage on the facts of the case and the policy wording. Usually, an order denying a motion for summary judgment seeking an order that there is no duty to defend will usually be sufficient to reveal the potential for coverage and a requirement for defense – at least under a reservation of rights – to those insured. In McMillin Companies, LLC v. American Safety Indemnity Company, — Cal.Rptr.3d —-, 2015 WL 270034 (Cal.App. 4 Dist., 1/22/15) the right to claim no duty to defend will still exist even after a motion for summary judgment is denied if the motion order is not dispositive of the claims made by the motion for summary judgment. It also criticized the use of a motion in limine (to limit testimony allowed at trial) when it had the effect of a motion for summary judgment without the protections of a motion for summary judgment. . . .
31 Saturday Jan 2015
Posted in Court Orders, Courts, Humor, Judges, Legal Writing
≈ Comments Off on Time For Some Levity. Here’s The Case Law Hall of Fame.
Case Law Hall of Fame, Lowering the Bar Blog
http://kevinunderhill.typepad.com/lowering_the_bar/case-law-hall-of-fame.html
Cold wet day here. (Hey, not complaining – we need the rain!) Others digging out from monster snow banks. Time for a giggle or two provided by Lowering The Bar. Each of these is worth a snicker, and some might evoke a full belly laugh. It is hard to find one favorite. Which one is yours? -CCE
Bradshaw v. Unity Marine Corp. (S.D. Tex. 2001) (‘Both attorneys have obviously entered into a secret pact . . . to draft their pleadings entirely in crayon on the back sides of gravy-stained paper place mats, in the hope that the Court would be so charmed by their child-like efforts that their utter dearth of legal authorities in their briefing would go unnoticed.’).
Brown v. Swindell (La. Ct. App. 1967) (holding plaintiff could not recover damages for emotional distress allegedly due to embarrassment of owning a three-legged dog).
Bruni v. Bruni (Ontario Super. Ct. 2010) (‘Here, a husband and wife have been marinating in a mutual hatred so intense as to surely amount to a personality disorder requiring treatment . . . . I am prepared to certify a class action for the return of all wedding gifts.’)
Collins v. Henman (S.D. Ill. 1987) (dismissing case because, even accepting petitioner’s claim that he was the Prophet Muhammed, he was still required to exhaust remedies in state court before filing federal habeas action).
Denny v. Radar Industries (Mich. Ct. App. 1971)(‘Appellant [tried to distinguish his case.] He didn’t. We couldn’t. Affirmed.’)
Fisher v. Lowe (Mich. Ct. App. 1983) (‘We thought that we would never see/A suit to compensate a tree’). Bonus points: Westlaw did the summary and headnotes in verse, too.
Lodi v. Lodi (Cal. Ct. App. 1985) (‘This case started when plaintiff Oreste Lodi sued himself in the Shasta County Superior Court.’).
Miles v. City Council (S.D. Ga. 1982) (relating the story of Blackie the Talking Cat).
Moore v. Moore (Mo. Ct. App. 1960) (recognizing husband’s right to fish without female interference, but ruling that minor infringements on it are not grounds for divorce; also finding that the term ‘hillbilly’ is not an insult, at least when used in Southern Missouri).
Nance v. United States (D.C. Cir. 1962) (‘How do you know it was me, when I had a handkerchief over my face?’)
Noble v. Bradford Marine Inc. (S.D. Fla. 1992) (ruling, not long after ‘Wayne’s World’ was released, that ‘very excellent’ authorities showed that removal to federal court was ‘most bogus and way improvident’; ordering defendants to ‘party on in state court.’).
Norman v. Reagan (D. Or. 1982) (dismissing case against former President Reagan for allegedly causing plaintiff’s ‘civil death’ and also certain unspecified claims regarding a suspicious mailbox).
Pardue v. Turnage (La. Ct. App. 1980) (‘An exhaustive reading of the entire record convinces this court that Kenneth Turnage did give his stuffed bear to the Lessards. For the trial court to find otherwise was manifest error.’).
People v. Foranyic (Cal. Ct. App. 1998) (ruling that there was probable cause for police to detain someone they see riding a bike at 3 a.m., carrying an axe)
R. v. Duncan (Ontario Ct. Justice 2013) (‘There is an ancient proverb to the effect that ‘those whom the gods would destroy, they first make mad.’‘)
Stambovsky v. Ackley (N.Y. 1991) (holding that a homebuyer could seek recission of sale contract based on his claim that he did not know house was allegedly haunted by poltergeists; based on estoppel, court ruled that ‘as a matter of law, the house is haunted’).
United States ex rel. Mayo v. Satan and His Staff (W.D. Pa. 1971) (dismissing case against Satan and unidentified staff members for lack of jurisdiction and uncertainty as to whether case could properly be maintained as a class action).
Washington v. Alaimo (S.D. Ga. 1996) (ordering plaintiff to show cause why he should not be sanctioned for ‘filing a motion for improper purposes,’ such as those hinted at in the title of the pleading, ‘Motion to Kiss My Ass.’)
In re Marriage of Gustin (Mo. Ct. App. 1993) (holding that wife’s chopping through door of marital residence with a hatchet was not ‘marital misconduct’ sufficient to affect distribution of property).
31 Saturday Jan 2015
Posted in Editing, Legal Analysis, Legal Dictionaries, Legal Writing, Primary Law, Proofreading, References, Research, Spell Checking
≈ Comments Off on William P. Statsky’s Legal Thesaurus/Dictionary.
Tags
Common Law, Justice Marian P. Opala, Legal Dictionary, Legal Reference, Legal Terminology, Legal Thesaurus, Oklahoma Supreme Court, Statsky’s Legal Thesaurus/Dictionary, William P. Statsky
Recently, I saw a Dictionary of Legal Terms advertised on Amazon. I am sure there are many excellent dictionaries, including Black’s, that are useful. I have for many years now relied on Statsky’s Legal Thesaurus/Dictionary, which was a gift from a former boss.
At one time, I worked for Justice Marian P. Opala at the Oklahoma Supreme Court. Justice Opala was simply brilliant – I can think of no other description. He was precise in his choice of words, and worked diligently to craft his formal opinions for the Court. He was absolute stickler for legal writing perfection in every way imaginable, and he abhorred legalese.
One of my tasks was to proofread and make editing suggestions for his draft opinions. I found Statsky’s book to be invaluable. In one instance, I used it to find an alternate clause to edit an old common law phrase.
When Justice Opala asked how I had come up with the suggestion, I sweated bullets and expected to be chastised for my choice. Instead, he explained that he wanted to know how I had been able to come up with an alternative that did not change the legal meaning of his original phrase. He was impressed. I was relieved.
It would have been wonderful if I could have truthfully said that I came up with it completely on my own. Instead, I shared how I had found it in Statsky’s book.
Over time, Justice Opala got the notion that the book belonged to him. When I left his chambers for another position, Justice Opala protested when I packed it with my other belongings. I had to show him the flyleaf where my former boss had written a message to me to assure Justice Opala that it was indeed my book, and not his.
I can think of no greater endorsement than Justice Opala’s opinion. I take the book with me to legal writing seminars as a recommended addition to anyone’s reference library. And I keep a copy at the house and at the office. If you are looking for such a resource, I can endorse it without hesitation. -CCE
30 Friday Jan 2015
Posted in Contract Law
≈ Comments Off on Write Contracts That Avoid Confusion When Circumstances Change.
Being Specific in Contracts Can Help Avoid Confusion When Circumstances Change, by Ken Adams, Adams On Contract Drafting
Recently Eric Goldman (otherwise know as @ericgoldman) alerted me to In re SuperMedia, Inc., an opinion by the Delaware U.S. Bankruptcy Court. (Go here for a PDF copy.) It has a lesson to offer regarding how to avoid confusion over whether contract terms apply to changed circumstances. . . .
The Researching Paralegal 
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