In the June edition of Law Technology Now, host Monica Bay, an attorney and Editor-in-Chief of ALM's Law Technology News invites her American Association of Law Libraries (AALL) co-presenters, Steven Lastres and D. Casey Flaherty to chat about the recent and upcoming changes in technology affecting law librarians and legal research. Bay, Lastres, and Flaherty will be presenting at AALL’s annual conference this month in Seattle. Learn how librarians are leading the charge for faster, better, and cheaper legal services!
• Lastres, an attorney, is director of library and knowledge management for Debevoise and Plimpton. He is responsible for the firm’s information and knowledge management initiatives. He is the co-founder of the OnFirmerGround blog — a collaborative effort of international law library associations seeking to promote the value that law firm librarians bring to the business and practice of law.
• Flaherty is corporate counsel of Kia Motors America. He manages all legal matters from transactional to litigation. Before moving in-house he worked at BigLaw where he focused his practice in commercial litigation and e-discovery. Flaherty is known for his meticulous auditing system made specifically for law firms, on which he regularly speaks and writes about.
Tune in for a sneak preview of their upcoming presentation and the future of legal research.
Monday, September 30, 2013
Why Go with a Structured Settlement?
After an individual suffers a severe injury and a settlement is reached, he or she is left with the option of either taking a lump sum of cash, or a structured settlement. Today on Ringler Radio, Larry Cohen joins co-host and colleague, Keith Christie, to get a lawyer's perspective from Attorney Trey Haik from the law firm of Haik, Minvielle & Grubbs, on the benefits of the structured settlement and how a structure can financially support clients and their families for years to come.
Source: http://legaltalknetwork.com/podcasts/ringler-radio/2012/08/why-go-with-a-structured-settlement/
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Justice Department Pushes New Thinking On Kids And Crime
"We believe firmly that children should be kept in school and out of courts," says Justice Department official Robert Listenbee. In his new role leading the Office of Juvenile Justice and Delinquency Prevention, he's trying to help stop what experts describe as a "school-to-prison pipeline."
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Absolute Novelty Worldwide - Not Always So Absolute
In this Intellectual Property webcast, Thomas McNulty and Sandra Szela Congdon of Lando & Anastasi, LLP discuss absolute novelty worldwide. Learn more about Lando & Anastasi, LLP at http://www.lalaw.com.
How You Could Be Sued for Sending a Text Message
The New Jersey State Appeals Court recently ruled that texting someone while that person is driving may cause the sender to be liable if an accident occurs. Supporting arguments say those texting drivers are “virtually present” at the accident. This potential liability affects the distribution of responsibility amongst drivers when a collision occurs. On this edition of Lawyer2Lawyer, your hosts Bob Ambrogi and J. Craig Williams invite Attorneys Ted Frank and Marc Saperstein to the discuss the case ruling, whether this advisory ruling will effectively prevent distracted driving, if it’s a fair allocation of responsibility, and more.
• New Jersey Attorney Marc Saperstein is a founding member of Davis, Saperstein, and Solomon and a part of the New Jersey Association for Justice. He regularly lectures to fellow lawyers on current case law, class actions, and injury law. Saperstein has a special interest in distracted driving education and prevention.
• Manhattan Institute Attorney Ted Frank is the founder and president of Center for Class Action Fairness. He has written law reviews for The Washington Post, The Washington Journal, and The American Spectator. Frank is also on the executive committee of the Federalist Society Litigation Practice Group.
Thanks to our sponsor, Clio.
• New Jersey Attorney Marc Saperstein is a founding member of Davis, Saperstein, and Solomon and a part of the New Jersey Association for Justice. He regularly lectures to fellow lawyers on current case law, class actions, and injury law. Saperstein has a special interest in distracted driving education and prevention.
• Manhattan Institute Attorney Ted Frank is the founder and president of Center for Class Action Fairness. He has written law reviews for The Washington Post, The Washington Journal, and The American Spectator. Frank is also on the executive committee of the Federalist Society Litigation Practice Group.
Thanks to our sponsor, Clio.
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2013 Legal-Tech Surveys Say . . .
The end of summer marks the release of two legal-tech surveys that create the benchmark for solos and firms on legal technology practices and spending. The ILTA / InsideLegal Technology Survey and the ABA Legal Technology Survey Report define key trends and give lawyers a look at the current state of legal technology. On this episode of The Kennedy-Mighell Report, Dennis Kennedy and Tom Mighell discuss the highlights and conclusions of each survey and what they mean for today's and tomorrow’s legal technology trends. The second half of the show will cover personal branding and how it has turned into meaning much more than just active social media channels.
Source: http://legaltalknetwork.com/podcasts/kennedy-mighell-report/2013/09/2013-legal-tech-surveys-say
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LawBiz® Legal Pad: Charging for the Initial Consultation
This weeks topic is how to charge a client for the initial consultation.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/0U4FID2_ICs/
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NSSTA’s Leadership
Whether you are a member or just someone interested in structures, National Structured Settlement Trade Association (NSSTA) is the voice of the industry. Ringler Radio host, Larry Cohen joins colleagues, Randy Dyer, the current President of NSSTA and John Machir, President‑elect of NSSTA, to talk about the bigger issues that are facing the structured settlement industry today and some of the leading items on their agenda for 2012.
Source: http://legaltalknetwork.com/podcasts/ringler-radio/2012/09/nsstas-leadership/
Wisconsin public employee collective bargaining statute amendments declared unconstitutional
A teachers' union sought declarative and injunctive relief against the governor, claiming that statutory amendments dealing with municipal employees' collective bargaining rights and payroll deductions of dues and pension contributions were unconstitutional.
The trial court declared the statute unconstitutional. Madison Teachers v. Walker (Wisconsin Circuit Ct 09/14/2012)
(1) Certain portions of the statute violated the free speech clauses of the Wisconsin and US constitutions. Although there is no constitutional right to collective bargaining, the statute imposes burdens on the speech and associational rights of employees represented by unions which burdens are not imposed on other employees. They cannot negotiate wage increases greater than the cost of living, they cannot pay dues by payroll deductions solely because the dues go to labor organizations. A ban on fair share agreements means that union members bear the cost of bargaining for non-members who receive the befits of bargaining. Requiring unions to be recertified annually burdens members with the full costs of the election.
(2) The trial court applied strict scrutiny to the equal protection claims because of the infringement on speech rights. The statute creates two classes of employees (represented and non-represented), and the defendants "offer no defense of the statute that would survive strict scrutiny."
(3) Certain portions of the statute violated the Wisconsin constitution's home rule amendment, violated the constitutional bar on impairment of contracts, and deprived employees of property without due process.
Source: http://www.lawmemo.com/blog/2012/09/wisconsin_publi.html
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Sunday, September 29, 2013
Comment sought on unauthorized practice opinions
The Virginia State Bar’s standing committee on unauthorized practice of law is seeking public comments by Sept. 9 on two proposed UPL opinions.
One opinion addresses a situation highlighted by a case this year in the Amherst County courts. A juvenile and domestic relations judge allowed a husband involved in a custody case to serve as prosecutor when the wife was charged with criminal contempt for disobeying a visitation order.
Lynchburg lawyer M. Paul Valois – the one-time lawyer for the wife – objected to the litigant serving as a state lawyer, but neither the J&DR judge nor a circuit judge were persuaded to change the arrangement.
Now, the VSB panel proposes UPL Opinion 217 stating that it is the unauthorized practice of law for a non-lawyer party in a civil domestic relations matter to act as prosecutor for criminal contempt proceedings arising from the case.
The proposed opinion will be considered in October by the VSB Council, according to the VSB.
Another proposed UPL opinion would state that a state probation officer is not engaged in the unauthorized practice of law in making a sentencing recommendation or giving an opinion about the appropriate outcome of a criminal matter in a pre-sentence report.
The VSB committee found a “range of legal authority” indicating a probation officer was not straying into legal practice while performing statutory duties to bring issues to the attention of a court.
Written comments about the proposed UPL opinions can be sent to VSB executive director Karen Gould.
Source: http://valawyersweekly.com/vlwblog/2013/08/28/comment-sought-on-unauthorized-practice-opinions/
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2013 Legal-Tech Surveys Say . . .
The end of summer marks the release of two legal-tech surveys that create the benchmark for solos and firms on legal technology practices and spending. The ILTA / InsideLegal Technology Survey and the ABA Legal Technology Survey Report define key trends and give lawyers a look at the current state of legal technology. On this episode of The Kennedy-Mighell Report, Dennis Kennedy and Tom Mighell discuss the highlights and conclusions of each survey and what they mean for today's and tomorrow’s legal technology trends. The second half of the show will cover personal branding and how it has turned into meaning much more than just active social media channels.
Source: http://legaltalknetwork.com/podcasts/kennedy-mighell-report/2013/09/2013-legal-tech-surveys-say
New American Bar Association President James Silkenat Outlines His 2013-2014 Agenda
On this edition of Lawyer2Lawyer, hosts Bob Ambrogi and J. Craig Williams speak with ABA President James Silkenat, on his first day in office, about his goals and initiatives for the ABA agenda.
James Silkenat has been working in international law for more than forty years. He joined the ABA’s first delegation to China in the mid-1970s and since then has chaired the International Law Section. He is a member of the Council on Foreign Relations and of the American Law Institute, and has served as a Fellow in the U.S. State Department Scholar/Diplomat Program. As well as numerous other positions in and outside of the ABA, he will now serve as the president of the nation’s largest legal organization.
Silkenat will discuss his major platform goals for his presidency, including the legal education financing system and student debt, a legal job corps, the ABA’s stance on gun violence, and more.
Special thanks to our sponsor, Clio.
James Silkenat has been working in international law for more than forty years. He joined the ABA’s first delegation to China in the mid-1970s and since then has chaired the International Law Section. He is a member of the Council on Foreign Relations and of the American Law Institute, and has served as a Fellow in the U.S. State Department Scholar/Diplomat Program. As well as numerous other positions in and outside of the ABA, he will now serve as the president of the nation’s largest legal organization.
Silkenat will discuss his major platform goals for his presidency, including the legal education financing system and student debt, a legal job corps, the ABA’s stance on gun violence, and more.
Special thanks to our sponsor, Clio.
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No district court jurisdiction for federal employee challenging adverse employment action (6-3)
The US Supreme Court held this morning that the Civil Service Reform Act (CSRA) precludes district court jurisdiction over Elgin's claim that his removal from federal service was based on an unconstitutional statute. The procedural route prescribed by the CSRA is by appeal to the Merit Systems Protection Board (MSPB) and, if dissatisfied with the result, appeal to the Federal Circuit, whose decisions in turn are reviewable by the Supreme Court.
Elgin v. Dept of Treasury (US Supreme Ct 06/11/2012)
A federal statute bars employment in the executive branch of male citizens who failed to register for the draft. Elgin, who had been discharged from his job, first challenged the decision before the MSPB - arguing that the statutory bar was unconstitutional - but an ALJ dismissed his case on the ground that the MSPB lacked authority to review the constitutionality of a federal statute. Rather than appealing from that decision, Elgin sued in federal district court.
The US Supreme Court held that the district court lacked jurisdiction because it is "fairly discernable" from the CSRA's text, structure, and purpose that Congress precluded district court jurisdiction over Elgin's claims. Based on CSRA's text and structure, there is no exception for constitutional challenges to federal statutes. If the MSPB lacks power to hear such claims, they can be meaningfully addressed by the Federal Circuit.
The DISSENT argued that Elgin's "constitutional claims are a far cry from the type of claim that Congress intended to channel through the [MSPB]."
Source: http://www.lawmemo.com/blog/2012/06/no_district_cou.html
Straight From The Hole
It's far easier to wrap your head around torture when it involves the infliction of active pain. That doesn't make passive pain, the infliction of often unbearable psychological punishment, an less torturous. And it happens regularly, and many time arbitrarily, as explained in an op-ed by Wilbert Rideau, who served 44 years for manslaughter in Louisiana.
Before you dismiss Rideau as a killer who deserved whatever he got, bear in mind that stories from the inside aren't told by saints. Every once in a while, a former inmate emerges with the erudition necessary to put into words the world that most of us never knew existed. When this happens, it's a window through which we need to look. Rideau offers a view of solitary confinement, the hole.
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Before you dismiss Rideau as a killer who deserved whatever he got, bear in mind that stories from the inside aren't told by saints. Every once in a while, a former inmate emerges with the erudition necessary to put into words the world that most of us never knew existed. When this happens, it's a window through which we need to look. Rideau offers a view of solitary confinement, the hole.
I know something about solitary confinement, because I’ve been there. I spent a total of 12 years in various solitary confinement cells. And I can tell you that isolating a human being for years in a barren cell the size of a small bathroom is the cruelest thing you can do to a person.Deprived of all human contact, you lose your feeling of connectedness to the world. You lose your ability to make small talk, even with the guard who shoves your meal through the slot in the door. You live entirely in your head, for there is nothing else. You talk to yourself, answer yourself. You become paranoid, depressed, sleepless. To ward off madness, you must give your mind something to do. In 1970, I counted the 358 rivets that held my steel cell together, over and over. Every time the walls seemed to be closing in on me, I counted them again, to give my mind something to fasten on to.
Without having been there, it's likely inconceivable to understand what happens to a mind in isolation. Some of us have trouble being alone for an hour, an evening, a day. Add day upon day, year upon year. But not the way it is for us, where we still have access to television or internet, even if there is no other living person around. No, this is completely different.
But to add insult to injury, don't leap to the assumption that if a prisoner ends up in the hole, he must have done something pretty bad to deserve it.
In a world where authorities exercise absolute power and demand abject obedience, prisoners are almost always going to be on the losing side, and they know it.
The typical inmate doesn’t want trouble. He has little to gain and too much to lose: his job, his visits, his recreation time, his phone privileges, his right to buy tuna, ramen and stale bread at inflated prices in the commissary. The ways even a bystander to the most peaceful protest can be punished are limited only by the imagination of the authorities.
Punishment can be deserved or not. There's no due process in prison. There's no one to complain to about being punished based on a false accusation, a trumped up allegation, a guard pissed off by an attitude. Authorities own the lives of prisoners, and can be as harsh as they want to be, as arbitrary as they feel like. And there isn't a damn thing you can do about it.
Rideau explains that the prison protests in California are an outgrowth of a system run amok and no other means of addressing their grievance.
And yet, sometimes things get so bad that prisoners feel compelled to protest, with work stoppages, riots or hunger strikes. On July 8, some 30,000 inmates in the custody of the California Department of Corrections went on a hunger strike to demand improvements in prison conditions. Their biggest complaint was the runaway use of solitary confinement, the fact that thousands of prisoners are consigned to this cruelty indefinitely, some for decades.
While prisoners are sentenced to incarceration, no judge sentences them to isolation for decades. There is no requirement that any neutral party review the decision to inflict this torture on another human being. It can be imposed for a sound reason or no reason at all. Who is to disagree? But no matter what the reason or nonreason, to put a person in the hole for years, for decades, is to impose psychological torture of a terrible kind on a human being. And there is nothing, absolutely nothing, the prisoner can do about it.
In California, inmates did the only thing left for them to do, protest. Not too many of us care about what happened to "criminals." After all, bad dudes who did bad things to other people. A pox on them. They get what they deserve and their out of sight, out of mind. But there is good reason to give them just a little bit of though. For one thing, they are still people, and we are still purportedly a civilized society that doesn't condone the needless brutal treatment of people. But if you lack anything remotely resembling empathy, than do it for your own sake:
Why should you be concerned about the inhumane conditions of prolonged solitary confinement, with all the social, emotional and mental deterioration that it entails? Well, every year men from California’s Pelican Bay and other supermax prisons around the nation are released directly from the vacuum of their cells into free society, to live and work among you and your loved ones. As a matter of self-preservation, maybe we should all join the prisoners’ request for rehabilitative opportunities that will improve the mental health of those in solitary.
Go say "hi" to the guy who moved in down the block kids. So what if he spent the last two decades in the hole and seems a bit odd. I'm sure he'll get over it.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Source: http://blog.simplejustice.us/2013/07/17/straight-from-the-hole.aspx?ref=rss
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Passing the Tech Skills Competency Audit
Casey Flaherty, corporate counsel at Kia Motors America, has gotten a lot of attention recently with a basic technology competency audit he administers to outside law firms and the failing grades lawyers at those firms have received. There has always been an ongoing conversation of what basic technology skills lawyers need. The ABA’s Ethics 2020 recommendation that a basic knowledge of common software techniques be a part of the definition of “competence,” has also shined the spotlight on this issue. In this episode of The Kennedy-Mighell Report, Dennis Kennedy and Tom Mighell discuss Flaherty’s technology audit approach, the responses it has prompted, and how this may or may not change the ways lawyers deal with technology skills. The second half of the episode will cover Apple’s much-rumored “iWatch” and the future of watch technology.
Sound The Retreat (Update)
Remember when the word "wilding" was introduced into the general lexicon so that we would have a word to capture the "super-predator" gangs of youths who were intent on destroying society? It came out of the Central Park Five case, and produced a huge shift in our approach to juvenile prosecution and punishment.
"Justice," people cried. They demanded justice. Don't let these super-predator kids destroy our world with wilding.
Except it didn't happen. The kids never beat and raped a woman in Central Park, and were coerced into false confessions. Of course, we didn't learn that until much later, after the wilding scare had done its damage to our laws, procedures and psyches, to save us from the super-predators and give us justice.
The New York Times has a post-Zimmerman-verdict editorial today that threatens to do the same. It's titled "Trayvon Martin's Legacy," a blatant appeal to emotion. Invoking the name of a dead child has proven one of the most utilitarian methods of manipulation available, and the Times unabashedly uses it to further its point.
But the point of the editorial is just plain wrong:
Stand Your Ground laws apply to one aspect of the larger concept of self-defense, and only one: they eliminate the requirement that a person retreat if he can safely do so. To be clear, I believe that Stand Your Ground laws are fundamentally wrong. The balance is a human life, on the one hand, and some machismo principle that a person should not have to endure the humiliation of retreat on the other.
The argument is that they have a right to stand their ground and fight rather than be forced to run away in the face of an attack, even if they can safely do so. Life is not so cheap that it should be taken to protect ego. Many disagree with me, and they're allowed. This isn't a legal judgment, but a moral balance. I come out in favor of life, and have no plans to change.
But that's not how the Times plays the game in its editorial. While blaming Stand Your Ground, they are attacking the basic concept of self-defense having absolutely nothing to do with Stand Your Ground. It's not merely intuitive, which is used to suggest the inherent fight or flight instinct in human beings, but characterized by the Times as some unnatural shift imposed by law to empower "self-deputized" gun nuts with "a grudge."
This is an artfully crafted diversion from the law that existed long before anybody came up with the cool phrase, Stand Your Ground. We always had the right to defend our lives when threatened with death or serious physical injury. If we could safely retreat, then that was the best option and we were required to do so. If not, then we defended our lives.
The underlying gripe is twofold, neither of which have anything to do with Stand Your Ground. The first is playing the race card. Like most people, I can't let go of the assumption that race influenced perceptions here, even though I have no basis for the assumption. But there is no law, nor can there be, that requires us to behave one way when the interaction is black and white versus white and black, or people of the same race. Does the Times suggest we start writing two sets of laws, maybe more, to accommodate the races of participants?
The second is the gun card, as reflected in the "Kel-Tec 9 millimeter" language. New York, not being at all gun-friendly, is easily shaken by words that make guns sound particularly vicious and high tech. And again, I'm no personal fan of guns, having no interest in strapping one on. But a great many other people are fans, and the Second Amendment protects their right to be fans. It's irrelevant whether that's my favorite amendment, just as it's irrelevant whether cops like the Fourth.
The same Constitution we invoke to protect the rights we favor protects some things that we don't. Either we honor the Constitution or not, and that includes all the parts, even the ones that aren't as dear to us as others.
A guy is cornered, there is no escape. The other guy is big. Huge. Strong. And is about to bash his head in. The cornered guy has a gun (give it whatever nasty gun-type name you want). Should the law prohibit him from using it to save his life? But that's not the facts in Zimmerman, you say. True, but laws don't exist for every conceivable set of facts and circumstances people can come up with, and the law of self-defense applies to this scenario the same as it did in Zimmerman. Would it make you feel better to have the cornered guy die because the law prohibited him from using his gun to save his life?
While the New York Times editorial may fairly argue for racial tolerance and the evils of guns, Second Amendment be damned, what it cannot do is lie to people by claiming that Trayvon Martin would not be dead but for Stand Your Ground laws, and then call for the evisceration of our basic, age-old right to self-defense. The alternative to self-defense when one cannot safely retreat is to die.
While it's painfully hard to know whether a person's fear of harm was "reasonable," especially when there is only one side to the confrontation who is alive to tell the story, it's a necessary evil in distinguishing whether force can be lawfully used. The choice was made hundreds of years before anyone ever heard of Trayvon Martin or George Zimmerman, and it's been the right choice for all those years since.
As much as many feel that it played out poorly here, it was always understood that some variations in fact on the same theme would touch our sensibilities differently than others. But the flaw was never with the law. The flaw is that we're human and subject to feelings that may defy reason, and not every application of sound and neutral law will make us feel good about what happened. It's what we must suffer in a society of laws. And the New York Times should know this and be ashamed of itself for engaging in this deception.
Update: In an interview on Anderson Cooper 360, one of the jurors spoke:
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
"Justice," people cried. They demanded justice. Don't let these super-predator kids destroy our world with wilding.
Except it didn't happen. The kids never beat and raped a woman in Central Park, and were coerced into false confessions. Of course, we didn't learn that until much later, after the wilding scare had done its damage to our laws, procedures and psyches, to save us from the super-predators and give us justice.
The New York Times has a post-Zimmerman-verdict editorial today that threatens to do the same. It's titled "Trayvon Martin's Legacy," a blatant appeal to emotion. Invoking the name of a dead child has proven one of the most utilitarian methods of manipulation available, and the Times unabashedly uses it to further its point.
But the point of the editorial is just plain wrong:
The jury reached its verdict after having been asked to consider Mr. Zimmerman’s actions in light of Florida’s now-notorious Stand Your Ground statute. Under that law, versions of which are on the books in two dozen states, a person may use deadly force if he or she “reasonably believes” it is necessary to prevent death or great bodily harm — a low bar that the prosecutors in this case fought in vain to overcome.It's been explained, calmly and rationally, over and over. It's impossible to believe that the editorial board of the Times, a smart bunch of folks, didn't hear it or grasp it. If so, then what's written here can only be attributed to disingenuousness and a deliberate effort to deceive.These laws sound intuitive: who would argue that you may not protect yourself against great harm? But of course, the concept of “reasonable belief” is transformed into something deadly dangerous when firearms are involved. And when the Stand Your Ground laws intersect with lax concealed-carry laws, it works essentially to self-deputize anyone with a Kel-Tec 9 millimeter and a grudge.
Stand Your Ground laws apply to one aspect of the larger concept of self-defense, and only one: they eliminate the requirement that a person retreat if he can safely do so. To be clear, I believe that Stand Your Ground laws are fundamentally wrong. The balance is a human life, on the one hand, and some machismo principle that a person should not have to endure the humiliation of retreat on the other.
The argument is that they have a right to stand their ground and fight rather than be forced to run away in the face of an attack, even if they can safely do so. Life is not so cheap that it should be taken to protect ego. Many disagree with me, and they're allowed. This isn't a legal judgment, but a moral balance. I come out in favor of life, and have no plans to change.
But that's not how the Times plays the game in its editorial. While blaming Stand Your Ground, they are attacking the basic concept of self-defense having absolutely nothing to do with Stand Your Ground. It's not merely intuitive, which is used to suggest the inherent fight or flight instinct in human beings, but characterized by the Times as some unnatural shift imposed by law to empower "self-deputized" gun nuts with "a grudge."
This is an artfully crafted diversion from the law that existed long before anybody came up with the cool phrase, Stand Your Ground. We always had the right to defend our lives when threatened with death or serious physical injury. If we could safely retreat, then that was the best option and we were required to do so. If not, then we defended our lives.
The underlying gripe is twofold, neither of which have anything to do with Stand Your Ground. The first is playing the race card. Like most people, I can't let go of the assumption that race influenced perceptions here, even though I have no basis for the assumption. But there is no law, nor can there be, that requires us to behave one way when the interaction is black and white versus white and black, or people of the same race. Does the Times suggest we start writing two sets of laws, maybe more, to accommodate the races of participants?
The second is the gun card, as reflected in the "Kel-Tec 9 millimeter" language. New York, not being at all gun-friendly, is easily shaken by words that make guns sound particularly vicious and high tech. And again, I'm no personal fan of guns, having no interest in strapping one on. But a great many other people are fans, and the Second Amendment protects their right to be fans. It's irrelevant whether that's my favorite amendment, just as it's irrelevant whether cops like the Fourth.
The same Constitution we invoke to protect the rights we favor protects some things that we don't. Either we honor the Constitution or not, and that includes all the parts, even the ones that aren't as dear to us as others.
A guy is cornered, there is no escape. The other guy is big. Huge. Strong. And is about to bash his head in. The cornered guy has a gun (give it whatever nasty gun-type name you want). Should the law prohibit him from using it to save his life? But that's not the facts in Zimmerman, you say. True, but laws don't exist for every conceivable set of facts and circumstances people can come up with, and the law of self-defense applies to this scenario the same as it did in Zimmerman. Would it make you feel better to have the cornered guy die because the law prohibited him from using his gun to save his life?
While the New York Times editorial may fairly argue for racial tolerance and the evils of guns, Second Amendment be damned, what it cannot do is lie to people by claiming that Trayvon Martin would not be dead but for Stand Your Ground laws, and then call for the evisceration of our basic, age-old right to self-defense. The alternative to self-defense when one cannot safely retreat is to die.
While it's painfully hard to know whether a person's fear of harm was "reasonable," especially when there is only one side to the confrontation who is alive to tell the story, it's a necessary evil in distinguishing whether force can be lawfully used. The choice was made hundreds of years before anyone ever heard of Trayvon Martin or George Zimmerman, and it's been the right choice for all those years since.
As much as many feel that it played out poorly here, it was always understood that some variations in fact on the same theme would touch our sensibilities differently than others. But the flaw was never with the law. The flaw is that we're human and subject to feelings that may defy reason, and not every application of sound and neutral law will make us feel good about what happened. It's what we must suffer in a society of laws. And the New York Times should know this and be ashamed of itself for engaging in this deception.
Update: In an interview on Anderson Cooper 360, one of the jurors spoke:
COOPER: Because of the only, the two options you had, second degree murder or manslaughter, you felt neither applied?
JUROR: Right. Well, because of the heat of the moment and the stand your ground. He had a right to defend himself. If he felt threatened that his life was going to be taken away from him or he was going to have bodily harm, he had a right.
This mention of stand your ground gave rise to an apology from Eugene Volokh, who had also written about this Times editorial subsequent to this post.
It thus appears that at least one of the jurors did “consider Mr. Zimmerman’s actions in light of the ... Stand Your Ground provision in Florida’s self-defense law,” and on that the Times editorial was right, and I was wrong to criticize it; my apologies to the editorialists, and to our readers.
While there is no issue that stand your ground had no legal bearing on the case, Eugene apologized for arguing that the aspect of the editorial suggesting that the jury somehow relied on it in reaching its verdict. My view is that these were empty words to the juror, having been uttered too many time in the media before trial, and she offered them in the interview either without any grasp of what they meant or inadvertently.
It was a loose phrase, not a reflection that an unrelated legal concept, mentioned in passing as part of pattern jury instructions, and never argued to the jury, played a role. Loose language shouldn't be taken too seriously and serve as a basis for assuming scholar-like attention to something that scholars universally agree had no place in the case.
While it was gracious of Eugene to apologize, it was both unnecessary and, perhaps, a mistake to feed misguided understandings about a law which is being blamed for a role it never played.
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Source: http://blog.simplejustice.us/2013/07/15/sound-the-retreat.aspx?ref=rss
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How You Could Be Sued for Sending a Text Message
The New Jersey State Appeals Court recently ruled that texting someone while that person is driving may cause the sender to be liable if an accident occurs. Supporting arguments say those texting drivers are “virtually present” at the accident. This potential liability affects the distribution of responsibility amongst drivers when a collision occurs. On this edition of Lawyer2Lawyer, your hosts Bob Ambrogi and J. Craig Williams invite Attorneys Ted Frank and Marc Saperstein to the discuss the case ruling, whether this advisory ruling will effectively prevent distracted driving, if it’s a fair allocation of responsibility, and more.
• New Jersey Attorney Marc Saperstein is a founding member of Davis, Saperstein, and Solomon and a part of the New Jersey Association for Justice. He regularly lectures to fellow lawyers on current case law, class actions, and injury law. Saperstein has a special interest in distracted driving education and prevention.
• Manhattan Institute Attorney Ted Frank is the founder and president of Center for Class Action Fairness. He has written law reviews for The Washington Post, The Washington Journal, and The American Spectator. Frank is also on the executive committee of the Federalist Society Litigation Practice Group.
Thanks to our sponsor, Clio.
• New Jersey Attorney Marc Saperstein is a founding member of Davis, Saperstein, and Solomon and a part of the New Jersey Association for Justice. He regularly lectures to fellow lawyers on current case law, class actions, and injury law. Saperstein has a special interest in distracted driving education and prevention.
• Manhattan Institute Attorney Ted Frank is the founder and president of Center for Class Action Fairness. He has written law reviews for The Washington Post, The Washington Journal, and The American Spectator. Frank is also on the executive committee of the Federalist Society Litigation Practice Group.
Thanks to our sponsor, Clio.
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How People Search for Lawyers: The Consumer Law Revolution
On this edition of The Digital Edge, co-hosts Sharon D. Nelson, Esq. and Jim Calloway chat with Stephanie Kimbro about her new book, The Consumer Law Revolution: The Lawyer’s Guide to the Online Legal Marketplace. The book focuses on how to join a branded-legal network to acquire leads and create an online marketing strategy. She stresses the importance of small and solo firms benefiting from having a large-branded network behind them to market their presence.
Kimbro is a practicing attorney at Burton LLC and a member of the North Carolina State Bar. Burton LLC is a virtual law firm that delivers legal services in North Carolina, D.C., and Ohio. In addition to her practice, she writes a blog, www.virtuallawfirm.com, covering the ethics and technology issues of delivering legal services online.
Tune in to learn more about branded networks for lawyers, why you want to join one, how to choose the right one for your practice, and more.
Kimbro is a practicing attorney at Burton LLC and a member of the North Carolina State Bar. Burton LLC is a virtual law firm that delivers legal services in North Carolina, D.C., and Ohio. In addition to her practice, she writes a blog, www.virtuallawfirm.com, covering the ethics and technology issues of delivering legal services online.
Tune in to learn more about branded networks for lawyers, why you want to join one, how to choose the right one for your practice, and more.
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Saturday, September 28, 2013
Pardon Our 100th Interruption
The Kennedy Mighell Report has reached a milestone: Episode 100! As part of the celebration your hosts will bring you today’s legal technology issues in the format of one of their favorite shows: ESPN’s Pardon the Interruption. Hear how technology can make your business more efficient, highlights from the ABA Tech Show, the future of technology for lawyers, and more
Virtual Staffing: Implementation and Management
On this edition of The Legal Toolkit, host Jared Correia talks with Chad Burton about how to use virtual staff in your law practice. Burton’s law firm employs virtual staffing services to manage its phones, accounting, documents and secure email. Chad covers the use of virtual staff to assist in other areas, as well, including: managing social media channels, making travel arrangements, creating presentations, and more.
Burton is the founder of Burton Law, a virtual law firm which focuses on representing businesses and individuals in litigation matters. He also serves as outside general counsel to small and mid-sized businesses, including new and existing franchises. He is a leading member of both the Dayton Bar Association and the Ohio State Bar Association. He is also a member of the American Bar Association.
Virtual staffing saves Burton Law a significant amount of overhead costs, and those cost savings are passed along to its clients. Tune in to hear more on virtual staffing, including: what to look for, how to manage the staff, and more.
Burton is the founder of Burton Law, a virtual law firm which focuses on representing businesses and individuals in litigation matters. He also serves as outside general counsel to small and mid-sized businesses, including new and existing franchises. He is a leading member of both the Dayton Bar Association and the Ohio State Bar Association. He is also a member of the American Bar Association.
Virtual staffing saves Burton Law a significant amount of overhead costs, and those cost savings are passed along to its clients. Tune in to hear more on virtual staffing, including: what to look for, how to manage the staff, and more.
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Workers’ Compensation for Harbor Workers and Longshoremen
Before The Longshore and Harbor Workers’ Compensation Act, policy covered those working on land and those working within navigable waters, and neglected worker’s on the harbor. This left harbor workers with nowhere to turn but litigation when they were injured on the job. On this edition of Worker’s Comp Matters your host Attorney Alan Pierce has invited Steven M. Birnbaum to discuss The Longshore and Harbor Workers’ Compensation Act, The Defense Base Act, and coverage for workers’ on the harbor.
Steven M. Birnbaum, Esq. started his private practice in 1983 specializing in workers’ compensation under The Longshore and Harbor Worker’s Compensation Act and the California Labor Code. He is a certified specialist in workers’ compensation by State Bar of California and a certified specialist in Admiralty and Maritime Law by State Bar of California. Birnbaum is a frequent lecturer on the topic of worker’s compensation and The Longshore and Harbor Workers’ Compensation Act.
Listen to the interview as two worker’s compensation specialists discuss coverage for those working on and along the water.
Steven M. Birnbaum, Esq. started his private practice in 1983 specializing in workers’ compensation under The Longshore and Harbor Worker’s Compensation Act and the California Labor Code. He is a certified specialist in workers’ compensation by State Bar of California and a certified specialist in Admiralty and Maritime Law by State Bar of California. Birnbaum is a frequent lecturer on the topic of worker’s compensation and The Longshore and Harbor Workers’ Compensation Act.
Listen to the interview as two worker’s compensation specialists discuss coverage for those working on and along the water.
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NLRB "recess" appointments were unconstitutional; Board lacked a quorum
Noel Canning v. NLRB (DC Cir 01/25/2013)
The DC Circuit this morning held that the President's attempt to make "recess" appointments of three NLRB Members was invalid under the constitution.
On February 8, 2012 the Board issued its decision finding that the employer violated the NLRA by refusing to reduce to writing and execute a collective bargaining agreement reached with Teamsters Local 760. At that time the Board purportedly had five members. Two of these had been confirmed by the Senate. Three of these were appointed on January 4, 2012, purportedly pursuant to the constitution's recess clause.
At the time of the President’s purported recess appointments, the Senate was operating pursuant to a unanimous consent agreement, which provided that the Senate would meet in pro forma sessions every three business days from December 20, 2011, through January 23, 2012. The DC Circuit held that "recess" appointments must occur during an "intersession" recess of the Senate, that is to say, the period between sessions of the Senate when the Senate is by definition not in session and therefore unavailable to receive and act upon nominations from the President.
Because the appointments were invalid, the Board lacked a quorum (three Members) and its order was "void."
Lots of chatter from all over:
- New York Times
- Wall Street Journal
- Workplace Prof Blog
- New York Labor and Employment Law Report
- Faculty Lounge
- Jottings by an Employer's Lawyer
- SCOTUSblog
- Employment Law Watch
Source: http://www.lawmemo.com/blog/2013/01/nlrb_recess_app_1.html
IRS Dispute With Tax Preparers Is Horse of a Different Color
At the center of a dispute between the Obama administration and tax-return preparers is a 19th-century law involving horses.
Should a Chimpanzee Have Human Rights?
If it’s not legally a human, it’s a thing. But animal rights advocates argue these alternatives fail to recognize that there are many cognitively complex species who deserve to be treated as people. The Nonhuman Rights Project is planning to file a writ of habeas corpus on behalf of a chimp to grant her the right to bodily liberty. This will release her from the cage she is currently living in, and the project will have her admitted into a cageless sanctuary. Steven M. Wise, president of The Nonhuman Rights Project, has been researching and planning this case for 20 years.
Steven M. Wise has been practicing animal protection law nationwide for for the past 30 years. He was the first professor to teach animal law at Harvard University and is still teaching animal law courses all over the world. He has published four books on the matter, including Rattling the Cage – Toward Legal Rights for Animals.
On this edition of Lawyer2Lawyer, hosts Bob Ambrogi and J. Craig Williams will talk with Wise about the case to grant a chimp the right to bodily liberty and The Nonhuman Rights Project’s long-term plans for animal rights
Special thanks to our sponsor, Clio.
Steven M. Wise has been practicing animal protection law nationwide for for the past 30 years. He was the first professor to teach animal law at Harvard University and is still teaching animal law courses all over the world. He has published four books on the matter, including Rattling the Cage – Toward Legal Rights for Animals.
On this edition of Lawyer2Lawyer, hosts Bob Ambrogi and J. Craig Williams will talk with Wise about the case to grant a chimp the right to bodily liberty and The Nonhuman Rights Project’s long-term plans for animal rights
Special thanks to our sponsor, Clio.
Source: http://legaltalknetwork.com/podcasts/lawyer-2-lawyer/2013/07/should-a-chimpanzee-have-human-rights
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A Really Strange Way To Sneak Into A Country
Let’s say you really want to emigrate to Canada. How far would you go? These folks took it to another level. You won’t believe the disguises they used. To see for yourself, and read more, click here.
Source: http://rss.justia.com/~r/LegalJuiceCom/~3/uNzCJ-SrWgs/a_really_strange_way_to_sneak_1.html
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Civility as an Art Form in Diplomacy and the Law
Civility is a skill in the management of differences, disagreements and conflict and is good for the law profession. So how essential is civility to the legal profession? And is it practiced well by lawyers? Lawyer2Lawyer hosts Bob Ambrogi and Craig Williams join Dick A. Semerdjian from the firm Schwartz Semerdjian Ballard & Cauley LLP and chair of the ABA Tort Trial and Insurance Practice Section (TIPS), to discuss the status of civility in the legal profession.
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African American Bar Associations Cry Foul Over Judge List
Bar groups expressed dismay to President Barack Obama that a list of proposed candidates to fill six Georgia federal judgeships includes just a single African American, and said lawmakers failed to consult black bar leaders for the first time in decades.
Friday, September 27, 2013
Demythologizing the Mythical Paperless Office
For many years, lawyers have chased after the holy grail of the paperless office. While the basic techniques and strategies have largely stayed the same and the technology and tools have gotten better, most lawyers and firms have not attained the elusive goal of a “paperless” office. Is the goal simply unachievable or is it just too hard to execute on what it takes to achieve the goal? In this episode of The Kennedy-Mighell Report, Dennis Kennedy and Tom Mighell discuss the history and current state of paperless office efforts, approaches that might (or might not) work for you, and whether the end of paper is within sight. The second half of the episode will cover Georgetown University's new "Iron Tech" Contest where students create a new application, platform, or system to improve access to justice and/or legal representation.
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Top Legal Blogs & State of the Blawg-osphere in 2013
There seems to be a resurgence in law-related blogging. But which blogs will have a significant impact on your practice this year? In this episode Dennis and Tom discuss recently-published lists of notable blogs, briefly chat about Dennis’s own “Blawggie Awards” and share their recommended blogs, why they enjoy them and how they might affect your practice. Dennis and Tom will also share their own, personal technology resolutions for 2013 and as always, give their parting shots… that one tip, website or observation you can start using immediately after this podcast.
Source: http://legaltalknetwork.com/podcasts/kennedy-mighell-report/2013/02/best-legal-blawgs-blawgosphere/
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Transvaginal Mesh Complications and Litigation
Serious complications stemming from transvaginal mesh prompted an FDA warning and lawsuits by women against device manufacturers. On this Ringler Radio podcast, host Larry Cohen joins co-host, Heather Anderson and guest, Attorney Leigh O'Dell from the Beasley Allen law firm, to discuss the dangers, litigation, physical complications, Leigh’s role on the Plaintiffs’ Steering Committee and next steps.
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Ohio, Other States Running Out Of Lethal Injection Drug
The Danish company that makes pentobarbital has refused to supply any more of the drug because the European Union opposes the death penalty.
Comment sought on unauthorized practice opinions
The Virginia State Bar’s standing committee on unauthorized practice of law is seeking public comments by Sept. 9 on two proposed UPL opinions.
One opinion addresses a situation highlighted by a case this year in the Amherst County courts. A juvenile and domestic relations judge allowed a husband involved in a custody case to serve as prosecutor when the wife was charged with criminal contempt for disobeying a visitation order.
Lynchburg lawyer M. Paul Valois – the one-time lawyer for the wife – objected to the litigant serving as a state lawyer, but neither the J&DR judge nor a circuit judge were persuaded to change the arrangement.
Now, the VSB panel proposes UPL Opinion 217 stating that it is the unauthorized practice of law for a non-lawyer party in a civil domestic relations matter to act as prosecutor for criminal contempt proceedings arising from the case.
The proposed opinion will be considered in October by the VSB Council, according to the VSB.
Another proposed UPL opinion would state that a state probation officer is not engaged in the unauthorized practice of law in making a sentencing recommendation or giving an opinion about the appropriate outcome of a criminal matter in a pre-sentence report.
The VSB committee found a “range of legal authority” indicating a probation officer was not straying into legal practice while performing statutory duties to bring issues to the attention of a court.
Written comments about the proposed UPL opinions can be sent to VSB executive director Karen Gould.
Source: http://valawyersweekly.com/vlwblog/2013/08/28/comment-sought-on-unauthorized-practice-opinions/
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8th District judges appointed
Jennifer K. Fischer and Rodney C. Hanson have been appointed as District Court Judges in Minnesota’s Eighth Judicial District. Fischer will replace the Honorable Kathryn N. Smith and Mr. Hanson will replacethe Honorable Jon Stafsholt, who both retired earlier this year. . Fischer will be chambered at Willmar in Kandiyohi County while Hanson will be chambered at Glenwood in Pope County.
Fischer is the Kandiyohi County Attorney, where she prosecutes crimes and serves as the legal advisor to the County Board of Commissioners. She previously was a partner at Jones & Fischer, P.A., and, prior to that, served as an assistant public defender for the Eighth Judicial District. Fischer earned her B.S. from St. Cloud State University and her J.D. with honors from the William Mitchell College of Law.
Hanson is a partner with Anderson, Larson, Hanson & Saunders P.L.L.P., where he practices primarily in civil litigation. He has maintained a local practice in Willmar since 1985 and is a qualified neutral and arbitrator for the American Arbitration Association. Hanson earned his B.A. with honors from Concordia College and his J.D. from the William Mitchell College of Law.
Source: http://minnlawyer.com/minnlawyerblog/2013/09/10/8th-district-judges-appointed/
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New bankruptcy judge takes office
Keith L. Phillips has taken the oath of office as the newest U.S. Bankruptcy Court judge for the Eastern District of Virginia.
Phillips, a veteran Richmond bankruptcy lawyer, was appointed in April to take the bench seat vacated by the retirement of Judge Douglas O. Tice Jr. Tice officially retired June 30 and is serving as a recalled judge for a six-month term.
Phillips was sworn in Monday by U.S. District Judge Henry E. Hudson. A more formal investiture ceremony will be scheduled for a later date, according to the bankruptcy court.
Source: http://valawyersweekly.com/vlwblog/2013/08/26/new-bankruptcy-judge-takes-office/
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Social Media and Lawsuits
From "tweets" to Facebook status updates, social media has taken over how we communicate with the outside world. It has also become a large part of our legal system. Social media is now considered key evidence in both criminal cases and civil lawsuits. Lawyer2Lawyer co-hosts and attorneys, Craig Williams and Bob Ambrogi examine the surge in social media-based evidence and claims in litigation, as well as the importance of educating attorneys on the ins and outs of social media with Attorney Antigone Peyton, Founder and CEO of Cloudigy® Law, PLLC and Attorney Ernest Svenson, solo attorney and blogger.
Source: http://legaltalknetwork.com/podcasts/lawyer-2-lawyer/2012/07/social-media-and-lawsuits/
Straight Up – Hold The Brownies
Regular Juice readers will recognize this method of attempting to get rid of the evidence. As reported by WDRB (Louisville, Kentucky):
Police say 21-year-old Casey Mancuso was a passenger in a car that was stopped Monday night by officers for ignoring a stop sign at the corner of 25th and Oak Street.
According to the arrest report, when officers approached the car they could smell the strong odor of marijuana. Police say officers were given permission to search the car, and that’s when they found a baggie with marijuana seeds in the back seat where Mancuso was sitting.
Just seeds? Hmm.
Police records say officers searched Mancuso and noticed him chewing something. When officers asked him to open his mouth they noticed marijuana on his teeth and in his mouth.
Police say Mancuso admitted to officers he ate the marijuana before the traffic stop.
The charges?
Mancuso … faces charges of possession of marijuana and tampering with physical evidence.
Click here for the source.
Source: http://rss.justia.com/~r/LegalJuiceCom/~3/68sneRjy67A/post_776.html
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Android Devices for Lawyers
We are happy to announce that The Digital Edge is now a part of Legal Talk Network. Since 2007, Digital Detectives co-host Sharon D. Nelson, Esq. has been co-presenting another podcast, The Digital Edge: Lawyers and Technology, with Jim Calloway. Calloway is the director of the Oklahoma Bar Association’s Management Assistance Program. He frequently writes and speaks on legal technology issues, Internet research, law office management, and ethics for lawyers. The Digital Edge invites noted legal technologists, authors, and lecturers to discuss topics related to lawyers and technology.
This episode of The Digital Edge features guest Jeff Taylor, also known as “The Droid Lawyer,” to discuss how lawyers can efficiently use Android phones, tablets and computers in their practice.
Jeffrey Taylor is an Oklahoma City Attorney. He has been writing the popular blog “The Droid Lawyer” since 2011, educating lawyers on how to get the most out of their Android devices. His first Android device was the original Motorola Droid, which he discovered was a useful tool for his profession. His practice focuses on personal injury, small business litigation and immigration.
Learn more about Android’s newest operating system, Jelly Bean, the top Android apps for lawyers, how to prevent security and malware issues with Android devices, and much more.
This episode of The Digital Edge features guest Jeff Taylor, also known as “The Droid Lawyer,” to discuss how lawyers can efficiently use Android phones, tablets and computers in their practice.
Jeffrey Taylor is an Oklahoma City Attorney. He has been writing the popular blog “The Droid Lawyer” since 2011, educating lawyers on how to get the most out of their Android devices. His first Android device was the original Motorola Droid, which he discovered was a useful tool for his profession. His practice focuses on personal injury, small business litigation and immigration.
Learn more about Android’s newest operating system, Jelly Bean, the top Android apps for lawyers, how to prevent security and malware issues with Android devices, and much more.
Source: http://legaltalknetwork.com/podcasts/digital-edge-podcasts/2013/05/android-devices-for-lawyers
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Thursday, September 26, 2013
IP Intensive Industries: Part One
Professor David L. Lange, Melvin Shimm Professor of Law at Duke University Law School, joins us for our latest Intellectual Property podcast. Learn more about Professor Lange at http://www.law.duke.edu/fac/lange.
Source: http://legaltalknetwork.com/podcasts/suffolk-law/2012/05/ip-intensive-industries-part-one/
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IRS Dispute With Tax Preparers Is Horse of a Different Color
At the center of a dispute between the Obama administration and tax-return preparers is a 19th-century law involving horses.
How People Search for Lawyers: The Consumer Law Revolution
On this edition of The Digital Edge, co-hosts Sharon D. Nelson, Esq. and Jim Calloway chat with Stephanie Kimbro about her new book, The Consumer Law Revolution: The Lawyer’s Guide to the Online Legal Marketplace. The book focuses on how to join a branded-legal network to acquire leads and create an online marketing strategy. She stresses the importance of small and solo firms benefiting from having a large-branded network behind them to market their presence.
Kimbro is a practicing attorney at Burton LLC and a member of the North Carolina State Bar. Burton LLC is a virtual law firm that delivers legal services in North Carolina, D.C., and Ohio. In addition to her practice, she writes a blog, www.virtuallawfirm.com, covering the ethics and technology issues of delivering legal services online.
Tune in to learn more about branded networks for lawyers, why you want to join one, how to choose the right one for your practice, and more.
Kimbro is a practicing attorney at Burton LLC and a member of the North Carolina State Bar. Burton LLC is a virtual law firm that delivers legal services in North Carolina, D.C., and Ohio. In addition to her practice, she writes a blog, www.virtuallawfirm.com, covering the ethics and technology issues of delivering legal services online.
Tune in to learn more about branded networks for lawyers, why you want to join one, how to choose the right one for your practice, and more.
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New bankruptcy judge takes office
Keith L. Phillips has taken the oath of office as the newest U.S. Bankruptcy Court judge for the Eastern District of Virginia.
Phillips, a veteran Richmond bankruptcy lawyer, was appointed in April to take the bench seat vacated by the retirement of Judge Douglas O. Tice Jr. Tice officially retired June 30 and is serving as a recalled judge for a six-month term.
Phillips was sworn in Monday by U.S. District Judge Henry E. Hudson. A more formal investiture ceremony will be scheduled for a later date, according to the bankruptcy court.
Source: http://valawyersweekly.com/vlwblog/2013/08/26/new-bankruptcy-judge-takes-office/
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The LinkedIn Lawyer
Are you on LinkedIn? Un-Billable Hour host Attorney Rodney Dowell, Executive Director at Lawyers Concerned for Lawyers and Director of LCL’s Massachusetts Law Office Management Assistance Program chats with Dennis Kennedy, lawyer and co-host of The Kennedy-Mighell Report and Allison Shields, author of Legal Ease Blog, about their recently published book, LinkedIn in One Hour for Lawyers. Dennis and Allison talk about how attorneys are using LinkedIn, and the key features that make LinkedIn a valuable networking and client development tool without consuming all of an attorney’s time.
Source: http://legaltalknetwork.com/podcasts/un-billable-hour/2012/06/the-linkedin-lawyer/
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Cyber Threats to Law Firms and Businesses: How Do We Defend Ourselves?
Digital Detectives hosts Sharon D. Nelson, Esq. and John W. Simek, president and vice president of Sensei Enterprises, Inc., welcome Stewart Baker of Steptoe & Johnson to discuss the 2013 Verizon Data Breach Report, cybersecurity legislation, and more.
• Stewart Baker has been described by The Washington Post as “one of the most techno-literate lawyers around.” His long list of experience includes serving as the first Assistant Secretary for Policy for the Department of Homeland Security and the General Counsel of the National Security Agency. His current law practice covers homeland security matters, travel and foreign investment regulation, international trade, cybersecurity, and data protection.
Tune in to hear Baker explain the difference between active defense against cyber-defense and vigilantism, the meaning of the Attribution Revolution, and what President Obama Cybersecurity Executive Order means and how it may be amplified by pending legislation.
• Stewart Baker has been described by The Washington Post as “one of the most techno-literate lawyers around.” His long list of experience includes serving as the first Assistant Secretary for Policy for the Department of Homeland Security and the General Counsel of the National Security Agency. His current law practice covers homeland security matters, travel and foreign investment regulation, international trade, cybersecurity, and data protection.
Tune in to hear Baker explain the difference between active defense against cyber-defense and vigilantism, the meaning of the Attribution Revolution, and what President Obama Cybersecurity Executive Order means and how it may be amplified by pending legislation.
Paralegal Writing Skills
Fine tuned writing skills are pivotal to a firm’s success. They affect first impressions through websites, newsletters, client leads, emails or network listings, client representation, legal write ups, and the list goes on. On this edition of The Paralegal Voice, host and paralegal mentor, Vicki Voisin will speak with noted legal writing educator Gary Kinder to discuss how paralegals can improve their writing skills.
Kinder is a lawyer and New York Times bestselling author. He has taught over 1,000 writing programs to prestigious law firms nationwide. His career is dedicated to teaching legal professionals how to write precisely, vividly, concisely and memorably. Kinder channeled years of experience studying superior legal writing and editing into the creation of WordRake, a software designed to help law firms and organizations tighten their prose and become better writers. He also authors a weekly writing tips blog called WriteToThePoint.com.
Tune in to learn more about the importance of Paralegals’ writing skills, the basics of the Plain Writing Act of 2010 and how it affects paralegals, how to avoid common mistakes, and more.
Special thanks to our sponsor, National Association of Legal Assistants (NALA).
Kinder is a lawyer and New York Times bestselling author. He has taught over 1,000 writing programs to prestigious law firms nationwide. His career is dedicated to teaching legal professionals how to write precisely, vividly, concisely and memorably. Kinder channeled years of experience studying superior legal writing and editing into the creation of WordRake, a software designed to help law firms and organizations tighten their prose and become better writers. He also authors a weekly writing tips blog called WriteToThePoint.com.
Tune in to learn more about the importance of Paralegals’ writing skills, the basics of the Plain Writing Act of 2010 and how it affects paralegals, how to avoid common mistakes, and more.
Special thanks to our sponsor, National Association of Legal Assistants (NALA).
Source: http://legaltalknetwork.com/podcasts/paralegal-voice/2013/07/paralegal-writing-skills
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It's Not Easy Being Weev (Update)
Appellants and amici briefs are now in at the Third Circuit on the appeal of Andrew Auernheimer's conviction for somehow violating the Computer Fraud and Abuse Act. I say "somehow" as the government was never pinned down on whether it was exceeding authorized access or unauthorized access. But they were clear that what he did was wrong, wrong enough to get him convicted and sentence to 41 months imprisonment.
Weev didn't help himself. Whether he wanted to be a martyr to the cause of geekdom or just unwilling to win except on his terms isn't clear. But his lawyer, Tor Eckland, couldn't control him, and had enough on his hands trying to defend Weev in what I believe to be his first trial*. While the prosecution was huge within the computer hacker community, it didn't garner the attention of Lori Drew's prosecution, lacking a dead child. But make no mistake, Weev's prosecution raises issues of monumental significance for all computer users.
Orin Kerr, who joined the defense team on appeal, gives a summary of the case.
Here are the basic facts. When iPads were first released, iPad owners could sign up for Internet access using AT&T. When they signed up, they gave AT&T their e-mail addresses. AT&T decided to configure their webservers to “pre load” those e-mail addresses when it recognized the registered iPads that visited its website. When an iPad owner would visit the AT&T website, the browser would automatically visit a specific URL associated with its own ID number; when that URL was visited, the webserver would open a pop-up window that was preloaded with the e-mail address associated with that iPad.
The basic idea was to make it easier for users to log in to AT&T’s website: The user’s e-mail address would automatically appear in the pop-up window, so users only needed to enter in their passwords to access their account. But this practice effectively published the e-mail addresses on the web. You just needed to visit the right publicly-available URL to see a particular user’s e-mail address. Spitler realized this, and he wrote a script to visit AT&T’s website with the different URLs and thereby collect lots of different e-mail addresses of iPad owners. And they ended up collecting a lot of e-mail addresses — around 114,000 different addresses — that they then disclosed to a reporter. Importantly, however, only e-mail addresses were obtained. No names or passwords were obtained, and no accounts were actually accessed.
Or to put it a bit more succinctly, Weev and Spitler stumbled on pages that were publicly accessible, but AT&T figured no one would find because there was no way to access them other than to have its iPad or, as stumble on them. They then did what geeks do, and exploited their discovery to see how far they could go. Rather than hand it over nicely to AT&T so it could cover its tracks and deny its screw-up, they gave it to a reporter to publish. AT&T was pissed, and the government was happy to prosecute as payback for quick and easy disclosure of your cellular communications the heinous crime of publicly embarrassing AT&T for being a computer idiot.
The appellant's brief, after a disturbing opening to the main argument that repeats the conventional wisdom from 1986 analogizing computers to physical trespass, takes the view that this just isn't a crime. As the pages were public, it cannot be unlawful access. The brief reads more academic than advocate, but does an admirable job of making its points.
There are two amici briefs, one arguing that this is how everybody uses the internet, and the other arguing that this is how sophisticated internet security experts use the internet, both reaching the same conclusion that affirmance of Weev's conviction would criminalize normal and lawful practices.
As everybody else involved relies on analogies, it seems appropriate despite my view that it's critical to stop using real world analogies to explain digital world conduct, to do the same. The prosecution's argument is that just because someone leaves their door unlocked doesn't mean a person can walk in and take what he wants. The defense argument is that when someone leaves their stuff in front of a picture window, passersby commit no crime by looking in and seeing what the person put on display. Neither analogy strikes me as fully satisfying.
The question for the rest of us is where the line is drawn between lawful and unlawful conduct based on a law crafted at the birth of public computer use and before there was any world wide web to consider. The language of the CFAA fails miserably to provide an answer, and there is certainly no "originalist" view since there was no internet in existence. What we are left with is empty, meaningless language being shoehorned into technology that didn't exist. It might have seemed like a good idea back in 1986, but we're paying for it now.
Nonetheless, Congress can't be bothered to do its job of crafting a law that might apply, and the court is left with trying to decipher criminality from inapt words and their limited grasp of how the tubes work (or that of their kids, their law clerks, or maybe the kid down the street).
The prosecution has a huge glaring hole that needs answering: Is there any middle ground for a URL that can be accessed without hacking a password but is otherwise not intended to be found, accessed or used except by a discrete, chosen group of users? The government wants the crime to depend on the subjective and transitory intent of the website owner, where "unauthorized" is defined as undesired. The defense wants a brightline test that says if it can be publicly accessed, then there can be no crime.
The government's position is not only untenable, but presents a threat to users that can't be tolerated. And indeed, it's so highly subjective, and selective, that it ignores that Google et al. violate it constantly with impunity. Do we want cookies and bots crawling all over us, capturing our personal info to feed back to people so they can sell us crap? I don't think so. But it prevailed below anyway.
The problem now is that the burdens shift on appeal, and it's the appellant's position that will be subject to scrutiny. Is there no limit to what we can access on the internet, as long as we don't hack the password? What if all the surrounding circumstances leave us with no doubt that the website owner doesn't want anybody coming in uninvited, so that no reasonable person can not be aware that he's entering a URL where he isn't welcome? Is that still okay?
Since the lines are drawn at polar extremes, and the arguments remain couched in poor analogies, and the judges will have a terrible time getting into the mindset of sophisticated computer users who think nothing of screwing around with user agents to see what they can find, and Weev felt compelled to handle himself in the typical, snarky, computer whizkid way that tends to just piss the crap out of everybody who isn't a snarky computer whizkid, this is going to be a tough fight.
But there remains one detail that I would have pounded hard, far harder than either the appellant or amici. Fair notice requires that the language of the CFAA, for smarter or stupider, state clearly what constitutes criminal conduct so that a person will know what not to do. By the Rule of Lenity, the failure of the law to adequately define a crime given the state of technology as it currently exists must resolve all ambiguities in favor of the defendant.
While no one knows what Congress might do if it is forced to recraft the CFAA, and they could make it even worse, what seems clear now is that it is far too unclear to imprison anyone whose conduct falls within that middle ground of not hacking a password and breaking through a brick wall. Maybe they would criminalize what happened here, but until the law makes clear where the line is drawn, the government can't just make it up at will. And the Third Circuit should not be so activist as to give a 2013 meaning to a 1986 law that the government pulls out of its butt to nail Weev.
Weev's conviction must be reversed, despite his attitude and mouth, because the rest of us used the internet too and if Weev is a criminal, so too are we all.
* I hasten to add, lest anyone think otherwise, that I think Tor did an exceptional job with this case, even the more remarkable given the circumstances.
Update: Via Volokh, the amicus brief of the National Association of Criminal Defense Lawyers has just become available. While I'm still going through it, my initial impression is that it's excellent, and fills in some of the gaps in the other briefs. Notably, putting them all together, the argument on behalf of Weev is overwhelming.
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