Source: http://jurist.org/paperchase/2014/01/ukraine-parliament-passes-amnesty-law-for-protesters.php
Friday, January 31, 2014
Ukraine parliament passes conditional amnesty law for protesters
[JURIST] The Verkhovna Rada [official website], the Parliament of Ukraine, on Wednesday passed a law granting conditional amnesty to protesters arrested during the weeks of unrest that have gripped the nation. The passage of this measure came during the parliament's extraordinary session [JURIST report], which began earlier in the day on Wednesday. Opposition parties refused to take part [BBC report] in the vote, due to the condition which states that amnesty will only apply if protesters abandon government buildings that...
NYC, Plaintiffs Reach Accord in Stop-and-Frisk
At a press conference Thursday, New York City Mayor Bill de Blasio and Police Commissioner William Bratton said they will pursue changes in the city's stop-and-frisk policies found unconstitutional by a federal judge and keep a court-appointed monitor on the job.
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Pakistan top court dismisses Musharraf petition to review prior ruling
[JURIST] The Pakistan Supreme Court [official website] dismissed [text, PDF] former military leader Pervez Musharraf's [BBC profile] petition on Thursday to review its 2009 verdict [JURIST report] declaring the 2007 imposed emergency as unconstitutional. The 14 justices, led by Chief Justice Tassaduq Hussain Jillani [JURIST report], dismissed the petition stating that it was barred by length of time since the original ruling. The court also found that Musharraf's grounds for appeal do not fall within the purview or review jurisdiction....
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The Implications of NSA Surveillance for Lawyers
Edward Snowden’s leaks about NSA surveillance have been a hot topic in the media for the last few months. But what do lawyers, specifically, need to worry about? The answer is: a lot. On this edition of Digital Detectives, hosts Sharon D. Nelson and John W. Simek take the stage and examine NSA surveillance as it relates to lawyers. Tune in for an overview of Snowden and the NSA surveillance controversy, how effective (or ineffective) encrypting data is, whether the surveillance is having a chilling effect on lawyers, how to abide by the Model Rules of Professionalism 1.6, and an answer to the underlying question - has George Orwell’s dystopia, 1984, arrived a few decades late?
Plaintiff on Hook for Patent Office's Attorney Fees
An "odd" federal law requires plaintiffs who bring lawsuits challenging the U.S. Patent and Trademark Office's trademark rulings to pay all of the agency's expenses including attorney fees, no matter which side wins, a Virginia federal judge has ruled.
Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202636754148&rss=rss_nlj
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Comity Prompts Court’s Deferral
A Richmond Circuit Court denies plaintiff’s motion to add party defendants, and says these proposed defendants are the same ones named as defendants in a companion case pending before another judge of this court and it appears plaintiff is seeking an end run around an adverse ruling by another court. Since the issue of whether ...
Source: http://valawyersweekly.com/2014/01/02/comity-prompts-courts-deferral/
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Banks Shun Sensitive Customers; The Limits of Executive Power; Judge Suspended
The AM Roundup: Law Blog rounds up the morning's news.
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Martin Lipton: Poison Pills Are ‘Critical in the Face of Increased Activism’
Martin Lipton, the lawyer credited with the creation of the poison pill, has some thoughts on the corporate defense’s makeover.
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SEC Suspends Corporate Lawyer Over $26M Ponzi Scheme
The Securities and Exchange Commission suspended corporate lawyer Fredric Aaron from practicing before the agency for five years, citing his role in an alleged Ponzi scheme that bilked investors out of $26 million.
Pared Down Calif. Privacy Bill Aims at Online Retailers
After high profile breaches, one state senator is pushing a bill to limit data collection by online shops that sell "downloadable" products.
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Thursday, January 30, 2014
Panel Considers Bin Laden Bodyguard's Stay At Guantanamo
Steve Inskeep talks to Carol Rosenberg of the Miami Herald about the parole hearing of an alleged bodyguard for Osama bin Laden. Abdul Malik Wahab al Rahabi, 34, was one of the first detainees at the Guantanamo Bay prison camp in Cuba.
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California Court of Appeal Makes It Easier to Add Business Owners to a Judgment
Individuals form limited partnerships, limited liability companies and corporations to limit their personal liability. These legal structures encourage entrepreneurs to take risks. The California Court of Appeal, Second Appellate District, however, has made it easier to add a business owner to a judgment that initially was entered only against the corporate or limited partnership entity he or she owns. In Relentless Air Racing LLC v. Airborne Turbine Ltd Partnership (Dec. 31, 2013) 2d Civil No. B244612, the Second Appellate District reversed the trial court’s finding that the business owner could not be added to the judgment under an “alter ego” theory. The Court of Appeal required the limited partners, as well as current and former general partner entities to be added to the judgment against the limited partnership.
In order to add a party to a judgment, the plaintiff must show that:
- the parties to be added as judgment debtors had control of the underlying litigation and were virtually represented in that proceeding,
- there is such a unity of interest and ownership that the separate personalities of the entity and the owners no longer exist, and
- an inequitable result will follow if the acts are treated as those of the entity alone.
Greenspan v. LADT LLC (2010) 191 Cal.App.4th 486, 508, 509, 511. The first two elements were easily established in the Relentless case. The only issue on appeal was whether recognizing limited liability would lead to an inequitable result.
Relentless obtained a $180,000 judgment against Airborne for breach of contract. The Plaintiff could not collect the judgment because Airborne had no assets. Airborne was a limited partnership. The limited partners were a husband and wife, Wayne and Linda Fulton. The initial general partner during the time period in question was Airborne Turbine, Inc. (“ATI”). The Fultons were the sole shareholders and officers of ATI. During the trial of the Relentless case, the Fultons changed Airborne’s general partner from ATI to Paradise Aero, Inc. (“Paradise”). The Fultons were the sole shareholders and officers of Paradise. The Fultons directed and controlled Airborne’s defense of the Relentless case.
The Fultons and their entities operated their business from the Fultons’ home. The Fultons had partnership and shareholder meetings “several times a day” but kept minutes only of their annual meeting once a year. The Fultons used funds from Airborne to pay ATI’s utility bills in lieu of rent based on an “oral agreement”. The Fultons used Airborne’s money to pay the Fulton’s personal bills by deciding to take a draw from Airborne “when the bills came up”. There was no formal meeting before deciding to take a draw. The Fultons were the sole officers, members, shareholders, owners, and operators of the business entities. The Fultons freely transferred money from the businesses to the Fultons and there was some disregard for the legal formalities. The Court had no problem finding that there was a unity of ownership and that the separate personalities of the entities and owners no longer existed.
The trial court, however, found that there was not sufficent evidence to show that an unjust or inequitable result would occur if Airborne was treated as separate from the Fultons, ATI and Paradise. The trial court appeared to rely heavily on the fact that there was no evidence that the Fultons transferred assets for purposes of avoiding payment of a judgment.
The Court of Appeal held that a plaintiff need not prove that a defendant acted with “wrongful intent,” i.e., with a purpose of avoiding payment of a judgment. According to the Court of Appeal, the defendant’s intent is irrelevant as the only issue was whether recognizing the corporate form would lead to an inequitable result. The Court then held that “it would be inequitable as a matter of law to preclude Relentless from collecting its judgment by treating Airborne as a separate entity.” Stated differently, the Court stated that “there is an inequitable result if the Fultons, ATI and Paradise are not added as judgment debtors” because the judgment would not be collected otherwise.
However, the only time a plaintiff would need to add business owners to a judgment would be if the judgment were not otherwise collectible. In this way, the Court of Appeal’s holding could be construed as effectively eliminating the third “alter ego” element. In this way, the Relentless case could make it somewhat easier to meet the requirements of adding business owners to a judgment against the entity they own. This is particularly true for entities whose owners control the operations of the business. So, what lessons can we learn from Relentless?
- Business owners can be added to a judgment after it is entered even if they were not named as parties throughout the case. This is not new, but it is useful to remember. The Fultons wrongly assumed they could not be personally liable. Had they appreciated their personal exposure, they might have handled the case differently.
- Member-managed limited liability companies, closely held corporations, wholly owned subsidiaries, and limited partners with few limited partners who control the general partner may not have the liability protection they assume they have. In these situations, the first element of control over the litigation may be easy to prove.
- Business owners should create at least the appearance of separateness by having separate physical space for business operations, separate books and records, formalized agreements between commonly held business entities (particularly if costs are to be shared), separately documented shareholder/member/limited partner meetings, and formal compensation guidelines. Activity that blurs the distinction between the corporate forms is to be avoided.
- Business owners should refrain from paying personal bills with a corporate account.
- Businesses should consider having outside directors or managers.
- Consider having an outside firm conduct an “alter ego” audit.
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United States Supreme Court Holds That Non-U.S. Corporations Are Subject to General Personal Jurisdiction in U.S. States Only in States Where They Are “At Home”
In Daimler AG v. Bauman, No. 11-965, 2014 U.S. LEXIS 644 (U.S. Jan. 14, 2014) (Ginsburg, J.), the Supreme Court of the United States held that a court may not exercise general personal jurisdiction over a non-U.S. corporation unless that corporation’s contacts with the forum state are so continuous and systematic as to render the corporation “at home” there. The Supreme Court also held that a non-U.S. corporation will not be subject to a state’s general jurisdiction simply because the corporation’s subsidiary is “at home” in the forum state and the subsidiary’s contacts with the state are imputed to the corporation. Daimler limits the situations under which a large, multinational corporation will be subject to general personal jurisdiction. As a result, plaintiffs may have more difficulty establishing jurisdiction over an foreign corporation when the claims sued upon do not arise in or relate to the forum state.
Defendant DaimlerChrysler Aktiengesellschaft (“Daimler”) is a German public stock company that manufactures Mercedes-Benz vehicles in Germany. Plaintiffs were twenty-one residents and citizens of Argentina and one resident of Argentina who was also citizen of Chile. They alleged that MB Argentina, a wholly owned subsidiary of Daimler’s predecessor in interest, collaborated with Argentinian state security forces to kidnap, detain, torture and kill plaintiffs and their relatives during the military dictatorship in place from 1976 through 1983. Plaintiffs sued Daimler in the United States District Court for the Northern District of California asserting claims under the Alien Tort Statute, 28 U.S.C. § 1350, and the Torture Victim Protection Act of 1991, 106 Stat. 73 (1992), as well as claims for wrongful death and intentional infliction of emotional distress under the laws of Argentina and California. Plaintiffs made no allegations that MB Argentina’s purported collaboration with Argentinian authorities took place in California or in the United States.
Daimler moved to dismiss the action for lack of personal jurisdiction. Plaintiffs argued that jurisdiction over Daimler was proper because Daimler’s indirect subsidiary, MBUSA, has significant contacts with California. MBUSA, which is a Delaware limited liability company that operates in New Jersey, is Daimler’s exclusive importer and distributer of cars in the United States. Plaintiffs argued that MBUSA’s contacts should be imputed to Daimler based upon an agency theory and that those contacts were sufficient to establish general personal jurisdiction over Daimler in California.
The district court granted Daimler’s motion to dismiss for lack of personal jurisdiction. The court held that plaintiffs failed to demonstrate that MBUSA acted as Daimler’s agent, and therefore, its contacts with California could not be imputed to Daimler. On appeal, the United States Court of Appeals for the Ninth Circuit reversed and held that MBUSA acted as Daimler’s agent for jurisdictional purposes. Bauman v. Daimler-Chrysler Corp., 644 F.3d 909 (9th Cir. 2011). The Supreme Court granted certiorari to decide whether, consistent with the Due Process Clause of the Fourteenth Amendment to the United States Constitution, Daimler is amenable to suit in California courts for claims involving only foreign plaintiffs and conduct occurring entirely abroad.
First, the Supreme Court rejected the Ninth Circuit’s holding that MBUSA acted as Daimler’s agent for jurisdictional purposes. The Ninth Circuit’s agency finding rested primarily upon the observation that MBUSA’s services were “important” to Daimler. The Ninth Circuit held MBUSA’s services were “important” because Daimler would perform those services itself if MBUSA did not exist. The Supreme Court held this agency analysis unfairly tipped the scales in favor of finding an agency relationship. Under this analysis, the services of a subsidiary would almost always be “important.” However, the Court only held that the Ninth Circuit’s agency analysis was erroneous, and it did not pass judgment on the invocation of an agency theory in the context of general jurisdiction.
Second, the Supreme Court addressed whether Daimler was subject to general personal jurisdiction when assuming that MBUSA’s contacts with California could be imputed to Daimler. The Supreme Court explained that general personal jurisdiction over a corporation is appropriate when the corporation is deemed “at home” in a forum. Paradigm bases for general jurisdiction are a corporation’s principal place of business or place of incorporation. Additionally, a corporation may be amenable to general jurisdiction if the corporation’s connections with the forum state are so continuous and systematic as to render it essentially “at home” in the state.
The Supreme Court held that, even assuming MBUSA is “at home” in California and that MBUSA’s contacts were imputable to Daimler, Daimler still was not subject to California’s general jurisdiction because Daimler lacked sufficient contacts with the state. For Daimler to be subject to general jurisdiction in California, Daimler had to have such continuous and systematic contacts as to render it essentially “at home” there. In its analysis, the Supreme Court compared Daimler’s California contacts to its business operations worldwide. In light of the magnitude of Daimler’s worldwide business activities, Daimler’s activities in California, even after imputing MBUSA’s business activities to it, were too few to render Daimler “at home” there. Furthermore, Daimler was not “at home” in California under the paradigm bases because it was not incorporated in California and it did not have its principal place of business in California. Thus, Daimler was not subject to California’s general jurisdiction.
Lastly, the Supreme Court commented on how an expansive view of general jurisdiction affects international relations. According to the Solicitor General, foreign governments’ objections to an expansive view of general jurisdiction have impeded negotiations of international agreements on the reciprocal recognition of the enforcement of judgments. The Supreme Court held that embracing a more limited view of general jurisdiction also supported and helped protect international agreements.
Daimler limits the circumstances in which general jurisdiction will be applied to large, multinational corporations. Unless a defendant corporation is incorporated or has its principal place of business in a forum state, a court will rarely have general jurisdiction over it. This decision may make it more difficult for plaintiffs to sue non-U.S. corporations for their activities that take place entirely outside of the United States.
Leading-Edge Litigation Management Decision Support Technologies for Claims
This podcast looks at decision support technologies that can help claims organizations more effectively manage their litigation, specifically focusing on predictive modeling and decision tree analysis templates.
Learn what the "critical 20%" is and how technology can help identify these claims.
Find out how to get key insights into ongoing litigation strategy to get the most accurate assessment of fair settlement value.
Hear how claims organizations can better assess which are the "right claims to settle, at the right time."
Learn what the "critical 20%" is and how technology can help identify these claims.
Find out how to get key insights into ongoing litigation strategy to get the most accurate assessment of fair settlement value.
Hear how claims organizations can better assess which are the "right claims to settle, at the right time."
Source: http://legaltalknetwork.com/?p=14917
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2013 Year in Review: E-discovery Embraces its Roots
The more things change, the more they stay the same. Although the French writer Jean-Baptiste Alphonse Karr certainly didn’t have legal technologies in mind when he wrote this famous epigram, his sentiments ring true to the current state of e-discovery. While 2012 was the battle ground in which the “disruptive” technology-assisted review and its early adopters emerged victorious, 2013 provided something of a “back to basics” approach as courts applied the fundamental tenets of e-discovery to the newer, more efficient technologies and methodologies that are revolutionizing e-discovery. In this edition of ESI Report, host and Director of Thought Leadership for Kroll Ontrack Michele Lange invites e-discovery expert Phil Favro to highlight this year’s key e-discovery cases, analyze key trends, and explore the predictions for the e-discovery realm of 2014.
Currently providing independent litigation counsel, Favro is a recognized expert in e-discovery, information governance, and data protection. He has advised technology companies and other enterprises regarding complex business disputes, and he has written over 50 byline articles and several law review pieces that have appeared in reputable publications such as the ACC Docket, Law Technology News, and the Michigan State Law Review.
Currently providing independent litigation counsel, Favro is a recognized expert in e-discovery, information governance, and data protection. He has advised technology companies and other enterprises regarding complex business disputes, and he has written over 50 byline articles and several law review pieces that have appeared in reputable publications such as the ACC Docket, Law Technology News, and the Michigan State Law Review.
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Strine Confirmed as Delaware Chief Justice
The Delaware state Senate on Wednesday confirmed Leo E. Strine Jr. as chief justice of the state's Supreme Court, elevating one of corporate law’s most influential figures to a higher perch
Source: http://blogs.wsj.com/law/2014/01/29/strine-confirmed-as-delaware-chief-justice/?mod=WSJBlog
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Target Security Breach: Litigation and Impact
We now know that 70 million shoppers were impacted by a major security breach involving Target during the height of the holiday shopping season. Ringler Radio host, Larry Cohen joins colleague Heather Anderson and special guest Attorney Larry Golston, from the Beasley Allen Law Firm, as they discuss the current litigation following the security breach, the impact, and what lies ahead to protect their customers' private information.
Source: http://ringlerradio.com/podcasts/ringler-radio/2014/01/target-security-breach-litigation-and-impact/
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Punishment for former Tax Court Judge George Perez stands
The Minnesota Supreme Court agreed with the Board on Judicial Standards. Former Tax Court Judge George Perez should be censured and his case should be forwarded to the Wisconsin Office of Lawyer Registration.
The Supreme Court also said it would supervise any future application Perez submits to the Minnesota Bar.
In November 2012, the BJS filed a disciplinary petition against Perez alleging that he failed to issue his opinions in a timely manner, falsified court records to show he had no cases pending, refused to accept new cases and demonstrated a “pattern of delay” in issuing decisions
Chief Justice Lorie Gildea appointed a three member panel to hear the case. That body ruled the BJS proved two of the claims by “clear and convincing evidence”, but did not prove two others.
Among other findings, the panel concluded Perez made “a substantial number of false certifications over an extended period of time.”
For punishment, the panel recommended a nine month suspension, a prohibition on serving out the rest of the term and for Perez to submit monthly status reports on his pending cases. The BJS pushed to have Perez removed from office, effectively ending his judicial career.
None of that mattered however because Perez was up for reappointment. In the waning days Gov. Mark Dayton recommended he not be confirmed. The Minnesota Senate vote was unanimous and Perez’s tenure as a Tax Court judge ended.
But Perez appealed the panel’s decision arguing it was moot because he was no longer a Tax Court Judge and secondly, he argued the BJS did not prove its case. He also claims the damage has been done. He also argues that any discipline should be mitigated because since January 2012, the time when he engaged with the BJS’ investigation, all of his decisions were decided within the three month deadline.
“Judge Perez argues we should not discipline him. He contends his removal from office… and the news media coverage of the panel’s findings constitute sufficient discipline for his misconduct.”
The Supreme Court disagreed with Perez and affirmed the discipline handed down by the panel. Doing so, “protects the integrity of the judicial system and should help restore the public’s confidence.”
Justice David Lillehaug took no part in the decision.
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2013 Year in Review: E-discovery Embraces its Roots
The more things change, the more they stay the same. Although the French writer Jean-Baptiste Alphonse Karr certainly didn’t have legal technologies in mind when he wrote this famous epigram, his sentiments ring true to the current state of e-discovery. While 2012 was the battle ground in which the “disruptive” technology-assisted review and its early adopters emerged victorious, 2013 provided something of a “back to basics” approach as courts applied the fundamental tenets of e-discovery to the newer, more efficient technologies and methodologies that are revolutionizing e-discovery. In this edition of ESI Report, host and Director of Thought Leadership for Kroll Ontrack Michele Lange invites e-discovery expert Phil Favro to highlight this year’s key e-discovery cases, analyze key trends, and explore the predictions for the e-discovery realm of 2014.
Currently providing independent litigation counsel, Favro is a recognized expert in e-discovery, information governance, and data protection. He has advised technology companies and other enterprises regarding complex business disputes, and he has written over 50 byline articles and several law review pieces that have appeared in reputable publications such as the ACC Docket, Law Technology News, and the Michigan State Law Review.
Currently providing independent litigation counsel, Favro is a recognized expert in e-discovery, information governance, and data protection. He has advised technology companies and other enterprises regarding complex business disputes, and he has written over 50 byline articles and several law review pieces that have appeared in reputable publications such as the ACC Docket, Law Technology News, and the Michigan State Law Review.
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Wednesday, January 29, 2014
Pick Up the Phone!
While doom-sayers proclaim that the legal profession’s problem is too many lawyers, practical experience often tells a different story. A friend recently shared this story with me:
“When we needed an immigration attorney, only one returned our calls of enquiry from the several my husband called locally, (she got our business) and when we were looking for a lawyer for wills and other family matters recently, only one was interested in the bread and butter stuff we're looking for help with. Couple this with the 'non-lawyer' who dealt with our house sale (very efficiently) in the UK, as consumers we see the 'lawyer' crisis differently!”
There may be an oversupply of lawyers for jobs at Biglaw (the high paying positions too many law school graduates still want), but the demand (the bread-and-butter business with the Main Street folks who can’t pay $1,000 an hour legal fees) is still there.
My friend’s experience suggests this simple solution for any lawyer worried about having enough business: pick up the phone! The teachings of my father many years ago come to mind. When the phone rings, and you respond, you will be hired. But, if you don’t respond, you won’t be hired. This is similar to the adage that if you don’t swing the bat, you can’t hit the ball.
Marketing efforts are designed to make people aware of you and to encourage them to call. But all the effective marketing in the world won’t make up for calls missed or not promptly returned. Service is fundamental. If clients want you, it’s because of the quality service you can and should provide. If you’re there right from the start it shows what you will do going forward.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/2FIWpnmoCCw/
NSSTA, Congress and the Value of a Structured Settlement
The National Structured Settlements Trade Association (NSSTA) is a driving force educating Americans about the value of a structured settlement. Ringler Radio host, Larry Cohen and colleague, John Machir, a founding member and current President of NSSTA and head of National Marketing for Ringler Associates, discuss the many issues that NSSTA champions behind the scenes on Capitol Hill. Larry and John take a look at tax reform and Congress, protecting the tax free status of annuity payments to people with serious injuries and how a structured settlement expert is vital for a successful settlement outcome.
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Mladic refuses to testify at Karadzic ICTY trial
[JURIST] Ratko Mladic, former leader of the Bosnian Serb army during the Bosnian civil war, refused to testify on Tuesday at the trial of Radovan Karadzic [BBC profile], which is ongoing at the UN International Criminal Tribunal for the former Yugoslavia (ICTY) [official website]. The ICTY had granted Karadzic's motion [JURIST report] in December to subpoena Mladic to testify at his trial. Karadzic has been charged [ICTY case summary, PDF; JURIST news archive] with genocide, crimes against humanity and violations...
Source: http://jurist.org/paperchase/2014/01/mladic-refuses-to-testify-at-karadzic-icty-trial.php
The Best of the Plaintiffs Bar
These 19 firms are at the cutting edge of plaintiffs' work -- and are giving defense players a run for their money.
Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202624154645&rss=rss_nlj
Don't send your clients elsewhere
Linda Popky, marketing consultant of Leverage2Market, writes her Top of Mind piece this week about a serious marketing blunder, as follows:
“.... (T)he local Orchard Supply Hardware (OSH) store featured a great buy on a tabletop propane heater....There was only one problem. A propane heater naturally requires propane to work. And even though OSH carries small portable propane tanks, they didn't have the ones in the proper configuration to fit the heater. Whoops.
“So making this (purchase) work required an additional trip to ... Home Depot (to get the correct propane tank) ... Driving your customers to visit your competition to complete their product experience with you (is) not the best way to keep the flames of loyalty burning bright.”
As Linda suggests, make it easy to do business with you, not hard. Examples include answering phone calls quickly (as on the first ring) and messages returned promptly (no later than the next day. Being astute in The Business of Law® will create loyal clients.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/8rObHq0Twzk/
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Dayton’s contract with Lillehaug for shutdown work violated statute
Justice David Lillehaug
When he first signed on to serve as legal counsel to Gov. Mark Dayton during the 2011 shutdown, David Lillehaug agreed to do so pro bono.
That arrangement changed, however, as the shutdown wore on. Lillehaug and his former law firm Fredrikson & Byron billed for their time. [LiIllehaug was appointed to the Minnesota Supreme Court last March.] Ultimately Fredrikson charged $77,000 for the work.
There is nothing wrong with hiring an outside lawyer, but the Minnesota Office of Legislative Auditor said that when Dayton’s office decided to pay Lillehaug, it violated state statute and policy. The OLA recently published its audit of the Governor’s Office.
The report said that when Dayton’s office hired the firm it did not draft a professional contract and instead used an engagement letter. The letter did not specify an end date for the legal work and did not set a cap on the attorney fees. The Governor’s did not free up funds to pay for the services either.
The report recommended the Governor’s office develop procedures to execute contracts that comply with state statute.
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Judge Blocks Google From Appeal in Gmail Scanning Suit
U.S. District Judge Lucy Koh has refused to allow Google to use a mid-stream appeal to suspend a closely watched privacy class action over email scanning, saying that the "long and tortuous procedural history" of the case demonstrates why further delay is "unwarranted."
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Texas executes Mexico national convicted of murder
[JURIST] On Wednesday, Texas executed [official Texas DCJ website] a Mexican national who was convicted of murdering a police officer in 1994. Controversy grew after the arrest because Edgar Arias Tamayo was not notified of his rights under Vienna Convention on Consular Relations [text] to notify Mexican diplomats of the arrest. Because of this, Tamayo's legal team argued that Tamayo was not provided the potential legal protections of the counselor's office. The Mexican Capital Legal Assistance Program (MCLAP), funded by...
Source: http://jurist.org/paperchase/2014/01/texas-executes-mexico-national-convicted-of-murder.php
Tuesday, January 28, 2014
Fighting Video with Video
Sheriff's deputies in Clark County, Ohio, have been given dispensation to wear "pocket cameras" on the job. Not because someone decided it was a good idea for them to video their interactions with member of the public, which is not only a perfectly fine thing to do, but one that has been embraced by other department. According to the Dayton Daily News:
But what the Clark County Sheriff's office is doing shows the danger of playing this game. Inexplicably, police haven't quite gotten the memo that they are rather unique public employees. They aren't let loose on the streets with guns and shields because they are just a bunch of cool guys, but because they hold a special authority that society has entrusted to them to protect and serve.
When they take the oath and strap on theSam Browne body armor, they do with the knowledge that they are no longer acting as ordinary people who just happen to be entitled to seize other ordinary people by pointing a gun at their head. Their authority comes from the job, from the People, who put up the money for their uniform allowance.
Are there rules for the use of pocket cameras in Clark County? Who decides when the camera gets turned on? Must deputies preserve what the camera sees, whether it's good for them or not? Does Gene Kelly, the Sheriff, get to decide what's of "evidentiary value" and what's not? Who preserves the integrity of the video? On whose computer does it get downloaded? Or deleted? Or altered?
A picture may be worth a thousand words, but that's true whether the picture is accurate or modified to show something false. And if the picture shows a cop doing something bad, then the lack of a picture is worth even more words, the words of argument that there is no proof of a beating, a false arrest, a killing.
But the set up of deputies carrying personal video to offset the public having video of their own smacks of a deeply entrenched "us" versus "them" problem, and provides all sorts of opportunity for facile abuse. Cops want to video their interactions for everyone's benefit? Cool. But then it has to be done right, used from the initiation of all interactions and remain on until the bitter end, preserved in a manner that secures it from any alteration and available to everyone, cop or non-cop alike, should it be needed.
Why isn't the public required to do so if that's what you demand of cops? Because you are cops, whose function is to protect and serve at the behest of the public. This is the life you chose and the obligation that goes with it.
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Clark County Sheriff’s deputies are wearing pocket cameras that record their work to help their cases and to protect themselves against accusations of misconduct.So that's how it's going to be, if we record them, they record us. Tit for tat. Fight fire with fire. So nobody in Dayton will be arrested or hassled for videotaping police anymore? What's wrong with that?“Every call we go on, someone’s going to record us,” Clark County Sheriff Gene Kelly said. “We have that same technology.”
Deputies are not required to wear the cameras but can purchase them independently or with their uniform allowance.
Of course, that's not how it worked out when Rory Bruce was tried, but it reveals the one-way street attitude that video is going through on its way to maturity. When the cops want to use it, because it benefits them, it's perfect. A picture is worth a thousand words. When it reflects poorly on cops, it never tells the full story and should be completely disregarded.Kelly said that law enforcement can use the cameras to their benefit if there are false allegations.
“They say a picture is worth a thousand words,” Kelly said.
What Elliott records with his camera can be used for evidence.
“If I feel there are evidentiary purposes, I will submit it to the courts,” said Elliott, who has worn his for about a year.
But what the Clark County Sheriff's office is doing shows the danger of playing this game. Inexplicably, police haven't quite gotten the memo that they are rather unique public employees. They aren't let loose on the streets with guns and shields because they are just a bunch of cool guys, but because they hold a special authority that society has entrusted to them to protect and serve.
When they take the oath and strap on the
Are there rules for the use of pocket cameras in Clark County? Who decides when the camera gets turned on? Must deputies preserve what the camera sees, whether it's good for them or not? Does Gene Kelly, the Sheriff, get to decide what's of "evidentiary value" and what's not? Who preserves the integrity of the video? On whose computer does it get downloaded? Or deleted? Or altered?
A picture may be worth a thousand words, but that's true whether the picture is accurate or modified to show something false. And if the picture shows a cop doing something bad, then the lack of a picture is worth even more words, the words of argument that there is no proof of a beating, a false arrest, a killing.
Members of the Clark County Sheriff’s office are not permitted to have original copies of the digital media evidence after their shifts, according to digital media evidence policies for the office.
And what happens to the deputies if they do? Who decides what gets uploaded after a shift? Is this intended to prevent a deputy from screwing with videos at home or uploading embarrassing videos on Youtube of their interactions on the job?
There probably isn't anyone who disagrees with this, though its hardly as simple as Kelly would have it. We're still a ways off from figuring out how video will best serve "deputies and civilians," ignoring, of course, that deputies are civilians, but I hesitate to be overly critical of Ben Hunt, human resources and labor relations administrator at the Clark County Sheriff’s Office, for his confusion. It's got Tale of Two Cities potential, best and worst at the same time.“They can be used to protect deputies and civilians to be sure everything is safe and appropriate,” Hunt said.
Officials believe that the cameras will be helpful in protecting themselves and the community.
“I think there will be a time when everyone carries one,” said Kelly.
But the set up of deputies carrying personal video to offset the public having video of their own smacks of a deeply entrenched "us" versus "them" problem, and provides all sorts of opportunity for facile abuse. Cops want to video their interactions for everyone's benefit? Cool. But then it has to be done right, used from the initiation of all interactions and remain on until the bitter end, preserved in a manner that secures it from any alteration and available to everyone, cop or non-cop alike, should it be needed.
Why isn't the public required to do so if that's what you demand of cops? Because you are cops, whose function is to protect and serve at the behest of the public. This is the life you chose and the obligation that goes with it.
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Source: http://blog.simplejustice.us/2013/07/14/fighting-video-with-video.aspx?ref=rss
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EEOC briefs on line
This is pretty cool.
EEOC briefs are now on line. [Here]
They cover briefs filed in the US Circuit Courts of Appeals in which the EEOC was a party, plus amicus briefs filed in the US Circuit Courts of Appeals, District Courts, and state courts.
And there is a user-friendly search function.
Briefs filed in the US Supreme Court are not in this collection, and can be found through the US Solicitor General's collection [here].
Source: http://www.lawmemo.com/blog/2012/06/eeoc_briefs_on.html
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Entropy: It's Not What It Used To Be*
In thermodynamics, entropy is the measure of how things go from order to disorder. Its application is far broader, however, applying to life in general. For those of us, like me, who strive to maintain order, it is the enemy.
My ability to do what I do, to function, depends on my maintaining order. In a world of chaos, it's a constant battle. No man is an island, and so almost every function relies to some greater or lesser extent on interactions with others. In order to prepare an affidavit, a person must take or return my phone call, do so in time for me to get their words on paper in both an accurate and comprehensible manner, make sure I've captured their thoughts properly, get it executed and file and serve the document. If the person decides that he would rather go to the beach than speak with me, but will get back to me later, the entire scheme can fall apart. A call back on Monday at 11 doesn't help when the papers are due Monday at 9.
When I explain how their conduct affected my ability to do my job, the response is one of two things: "Oh, I didn't realize," or "you should have told me that before." Of course, I can't tell you anything if you don't take or return my call. "Oh."
It's a fragile set up at best. Some people are reliable in a way that allows other to count on them, to plan ahead and not find themselves in a quagmire from which they can't emerge. These are people who make other people's lives go smoothly. They tend to be somewhere along the anal compulsive spectrum, which sounds pretty nasty but is actually a really good thing for organized people, especially lawyers.
Others are chaos personified, off in the thousand directions without any thought whatsoever to the consequences for themselves or those who rely on them. Their alternative to order is their tolerance of disorder. It's not that they don't eventually come to realize what they failed to accomplish because of their chaotic approach to responsibility, but that they can live with themselves that way.
The other day, a massive failure to accomplish a task upon which I relied was explained to me as the result of unforeseen circumstances. It wasn't quite true. Getting hit by a truck is an unforeseen circumstances. Making overly optimistic promises which you chose not to keep when time or interest gets tight is not an unforeseen circumstances. It's life.
There is a difference between explanations and excuses. When something doesn't go as intended, which happens despite best efforts and planning, there is either an explanation or it was just a screw-up. If the former, then there is a reason. If there is no reason, then it's a screw-up. Yes, screw-ups happen. No, they don't have to. Are they your fault? Yes. That's why we call them screw-ups.
Excuses are a different animal. Excuses are explanations that shift the fault onto the party who caused the problem. Most are imperfect, in that fault is born by more than one party, often all parties, who either failed to do what they should have, or said they would, as well as parties who failed to anticipate or accommodate the chaos wrought by others involved. See how that works? We knew that other people screw-up, and so we assume the responsibility of inserting that potential in our equation of order. When we organize our world, we do so in anticipation of entropy.
It's all a choice. Frankly, the failure to realize this, to conduct oneself as an island of order in a world tending toward chaos, to both live an ordered life and recognize that others don't or won't, is a choice. If you want to do what you can to do better, be more responsible, keep your promises to others despite reliance on those who infuse their chaos into your world, you can. But you must make the choice.
It's hard to fight entropy, but those who do keep the world running.
* The title is brazenly stolen from Buzzfeed's 21 Jokes Only Nerds Will Understand.
© 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.
My ability to do what I do, to function, depends on my maintaining order. In a world of chaos, it's a constant battle. No man is an island, and so almost every function relies to some greater or lesser extent on interactions with others. In order to prepare an affidavit, a person must take or return my phone call, do so in time for me to get their words on paper in both an accurate and comprehensible manner, make sure I've captured their thoughts properly, get it executed and file and serve the document. If the person decides that he would rather go to the beach than speak with me, but will get back to me later, the entire scheme can fall apart. A call back on Monday at 11 doesn't help when the papers are due Monday at 9.
When I explain how their conduct affected my ability to do my job, the response is one of two things: "Oh, I didn't realize," or "you should have told me that before." Of course, I can't tell you anything if you don't take or return my call. "Oh."
It's a fragile set up at best. Some people are reliable in a way that allows other to count on them, to plan ahead and not find themselves in a quagmire from which they can't emerge. These are people who make other people's lives go smoothly. They tend to be somewhere along the anal compulsive spectrum, which sounds pretty nasty but is actually a really good thing for organized people, especially lawyers.
Others are chaos personified, off in the thousand directions without any thought whatsoever to the consequences for themselves or those who rely on them. Their alternative to order is their tolerance of disorder. It's not that they don't eventually come to realize what they failed to accomplish because of their chaotic approach to responsibility, but that they can live with themselves that way.
God, grant me the serenity to accept the things I cannot change,Then again, it has nothing to do with God. It has to do with us. We make choices. If you're inclined to believe in a deity, then know that the deity imbued you with the power to make wise or foolish choices, and left it to you to decide which.
The courage to change the things I can,
And wisdom to know the difference.
You can choose a ready guide in some celestial voice.When I'm asked how I manage to get as much done in a day as I do, the answer is order. I organize. I plan ahead. I try to anticipate the chaos I will confront in the course of trying to get things done so that I can accommodate it as much as possible, and will give myself enough room so that someone else's choice of disorder won't completely undermine what I need to accomplish.
If you choose not to decide, you still have made a choice.
You can choose from phantom fears and kindness that can kill;
I will choose a path that's clear-
I will choose Free Will.
The other day, a massive failure to accomplish a task upon which I relied was explained to me as the result of unforeseen circumstances. It wasn't quite true. Getting hit by a truck is an unforeseen circumstances. Making overly optimistic promises which you chose not to keep when time or interest gets tight is not an unforeseen circumstances. It's life.
There is a difference between explanations and excuses. When something doesn't go as intended, which happens despite best efforts and planning, there is either an explanation or it was just a screw-up. If the former, then there is a reason. If there is no reason, then it's a screw-up. Yes, screw-ups happen. No, they don't have to. Are they your fault? Yes. That's why we call them screw-ups.
Excuses are a different animal. Excuses are explanations that shift the fault onto the party who caused the problem. Most are imperfect, in that fault is born by more than one party, often all parties, who either failed to do what they should have, or said they would, as well as parties who failed to anticipate or accommodate the chaos wrought by others involved. See how that works? We knew that other people screw-up, and so we assume the responsibility of inserting that potential in our equation of order. When we organize our world, we do so in anticipation of entropy.
It's all a choice. Frankly, the failure to realize this, to conduct oneself as an island of order in a world tending toward chaos, to both live an ordered life and recognize that others don't or won't, is a choice. If you want to do what you can to do better, be more responsible, keep your promises to others despite reliance on those who infuse their chaos into your world, you can. But you must make the choice.
It's hard to fight entropy, but those who do keep the world running.
* The title is brazenly stolen from Buzzfeed's 21 Jokes Only Nerds Will Understand.
© 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/2013/07/14/entropy-its-not-what-it-used-to-be.aspx?ref=rss
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MILOfest: A Conference for Mac-User Attorneys
MILO, short for Macs in the Law Office, started as a listserv for attorneys using Apple products in their law practices. Since it’s inception, the interest has increased to support MILOfest: a conference centered around how to use Apple products to benefit law practice. In this edition of Legal Toolkit, host Heidi Alexander invites the founder of MILOfest, Victor Medina, to discuss the goals and benefits of his unique conference, how it’s growing, and what to look forward to for MILOfest 2014.
Medina is an estate planning attorney in New Jersey. In addition to being the managing member of his practice, he is also an avid contributor to the MILO listserv.
Medina is an estate planning attorney in New Jersey. In addition to being the managing member of his practice, he is also an avid contributor to the MILO listserv.
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36th Edition: Anatomy of a Law Firm Audit
Jim and Sharon take a look at the little-discussed topic of law practice management audits. Hopefully you will never have an audit ordered on you or your law practice. But what can you learn from the items that an auditor might examine that will help you be a better lawyer?
Source: http://feeds.feedburner.com/TheDigitalEdgeLawyersAndTechnology
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Kansas' Unauthorized LL.M. Program Draws ABA Censure
The University of Kansas School of Law must pay a $50,000 fine for admitting two foreign attorneys into a new LL.M. program that the American Bar Association had not approved.
Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202634055202&rss=rss_nlj
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OPINION: A Calculation of Fido's Value Must Include Warm, Fuzzy Factor
Awarding traditional property damages in cases of injured or killed pets falls short.
Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202631180028&rss=rss_nlj
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Seattle In-House Legal Departments of the Year
Corporate counsel leading the way in compliance, outside counsel management, diversity and deal work.
Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202638733050&rss=rss_nlj
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Lawyer suspended for five years
Owatonna attorney Jeremy Thomas Kramer has been suspended for five years, following an investigation into allegations of misconduct.
Kramer has admitted that he misappropriated client funds and interest due under the IOLTA program, failed to reconcile his client trust account, allowed a non-lawyer to be a signatory on a client trust account and failed to cooperate with the Office of Lawyers Professional Responsibility in an investigation into the allegations. Kramer will be suspended for a minimum of five years, after which time he can petition for resinstatement.
The Supreme Court order noted that family matters causing Kramer stress during the period in which he committed misconduct were taken into account as mitigating factors.
Attorney Frances S. Li received a public reprimand this week from the Minnesota Supreme Court for committing misconduct. Li has admitted that she failed to supervise a suspended attorney she employed. The suspended attorney was allowed to handle client funds and engage in the practice of law.
Source: http://minnlawyer.com/minnlawyerblog/2014/01/17/lawyer-suspended-for-five-years/
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Protip: Don't Screw With Old Folks
A squad of 18 deputies in Cook County were very aggressive in trying to collect money from deadbeat dads, using whatever methods they needed to bring these culprits to justice. When they put a gun to 77-year-old Merien Macon's head, however, they messed with the wrong person. From the Chicago Tribune:
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When the unit arrived at the Macons' home, two weeks before Merien's arrest, officers had two outstanding warrants for couple's son, Derrick Macon, then 50, including one for child support. Officers insisted they be allowed into the home, William Macon said.
Because the officers did not have a search warrant, William Macon refused, he said.
William Macon, 83 years old, wasn't to be easily pushed. You gotta love tough old birds. And before anyone gets all bent out of shape about his "derelict" deadbeat son, it turns out that while the team knew all about the outstanding warrants for child support, they somehow missed the order holding that he wasn't the father of the child. But let's not have facts impair a good story.
When the deputies saw Merien drive up to the back of the home, they approached with guns drawn — one pointed at her head as she sat in the car — and pressed her about her son's whereabouts, according to the lawsuit.
"I was really surprised when they walked up with their guns," Merien Macon, a retired clerical worker, said last week. "I was scared. I was shocked. I was surprised."
Macon, who had dropped off her son earlier, told them she didn't know where he was and she did not want to answer questions, [Macon's lawyer, Elizabeth] Kaveny said.
And so the deputies, duly chastised by their overly violent conduct frightening a nice old woman, apologized profusely and left her in peace outraged by her refusal to do as they commanded, decided to teach an old woman a lesson.
At that point, Merien Macon became upset and told the officers she would not speak to them. The officers handcuffed, frisked and arrested Merien Macon on a charge of obstruction of justice.
The officers then took her to a nearby parking lot, where they gave her a phone and told her to call her son and find out where he was.
Merien's husband, William, a retired electrician, called that "a hostage situation," attempting to trade off his wife for his son. The sheriff's office claimed that was not at all the case, and they were just being thoughtful.
The sheriff's office denied attempting to pressure Macon to call her son and said she was moved to the parking lot because her husband had become upset and neighbors were starting to gather.
They didn't want to upset old William by forcing him to watch her cuffed, frisked and with guns pointed at his wife's head. A very sensitive gesture in law enforcement, likely to win a medal at some point.
The Macons sued for what was done to Merien.
Merien Macon was charged with felony obstruction of justice, leading her to file a lawsuit against Sheriff Tom Dart and the officers involved. A Cook County jury recently sided with her, awarding Macon $327,500 and agreeing with her husband that what happened that afternoon went too far.
Frankly, that's a very healthy award, give that most plaintiffs in her situation could hope for a fraction of that at best. But then, picture a jury hearing the testimony in this case, looking at the 77-year-old woman and her loving 83-year-old husband, and pondering the cuffs on her wrists, the hands on her body, the gun at her head, all over a mistaken child support warrant. It doesn't get more sympathetic than this.
"I've seen this type of thing over and over and over," William Macon said. "But when it happens to you it becomes more personal."
Truth. Unless you happen to be knowledgeable about your rights, have the guts to assert them with a gun pointed at your head and, purely by happenstance, a couple of cool codgers, chances aren't good you would end up with a verdict of this magnitude. This makes it an exceptionally good reason to both applaud the Macons, and to care a whole lot about when things like this happen "over and over and over." Because next time it could be you, and it will, without question, become "more personal."
H/T Spencer Neal
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Source: http://blog.simplejustice.us/2013/07/13/protip-dont-screw-with-old-folks.aspx?ref=rss
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