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Overview of U.S. Supreme Court’s Gun Law Case

Wednesday, March 3rd, 2010

The current news cycle is replete with coverage of US Supreme Court oral argument in the handgun ban case, McDonald v. Chicago.  The appeal arises from a Seventh Circuit opinion from June 2009.

Gun enthusiasts and opponents will likely find the actual pleadings and legal arguments less than exciting since the debate circles around whether the Privileges and Immunities (P&I) Clause of the U.S. Constitution applies, wholesale or selectively, to the Bill of Rights (P&I is the “comity” clause which says states cannot discriminate against citizens of other states when it comes to civil rights).

The 7th Circuit declined to apply the P&I clause since prior SCOTUS cases dating back to the late 1800′s (!) indicate otherwise, although the reason in those cases has since been “undermined.”

There’s more in the 7th Circuit decision about constitutional debates, stare decisis vs. whether cases can be “bypassed as fossils,” and other academic legal wranglings which likely will not stir the interest that the public gun debate, uh, musters.

For those interested in the pleadings (including over 30 amici briefs from groups as varied as Jews for the Preservation of Firearms and the Safari Club), visit the ChicagoGunCase.com website.

If you are interested in scouring the 2008 D.C. gun case, District of Columbia v. Heller, for clues (it cites the 1800 cases in a footnote) or you are interested in seeing the procedural history of the Chicago case in the context of other post-Heller cases, Wikipedia has some fairly good coverage.

The prevailing media opinion is that the SCOTUS will apply the Second Amendment to the states and municipalities but may leave in place the right to regulate.  I’m guessing that the Court will save this opinion for the end of their term, since they often like to drop “big” decisions and then hightail it out of D.C. for the summer.

Admissibility of Prior Non-Occurrence

Wednesday, February 24th, 2010

Proving something didn’t happen  sounds like an impossible task, inside or outside of the courtroom.  Not surprisingly, getting “evidence” of a non-event admitted can be  difficult.

In Robert Hogan v. Gray Gable, Nassau Village Volunteer Fire Dept, Inc. (First District: Wetherell, Lewis and Thomas), the plaintiff lacerated his hand on metal mesh while entering a dunk tank at a charity event.  The tank-owner claimed that there were no prior incidents with the tank going back to its original construction in 1990 and sought to admit the same.

Plaintiff argued that there was evidence of modification in 2000-2002 (including the mesh) and that the Defendant could not establish it was the same equipment under the same circumstances (e.g., used at night under same lighting conditions) going back to 1990.

A trial judge’s decision to admit evidence of occurrence or nonoccurrence of prior accidents under substantially similar conditions is within the sound discretion of the trial court.  It must be the “same type of equipment” under “substantially similar conditions.”  Interestingly, if the item is not modified/changed, one case suggests that a google manufacturer did not have to establish “substantially similar use.”

Herein, the evidence of modification required strict compliance with both parts of the test.

Lawyers: Foursquare & Yelp May Be New Discovery and Marketing Tools

Wednesday, February 17th, 2010

Lawyers were fairly quick to catch onto the trend of Twitter and, to a lesser extent, Facebook.  It is now common for lawyers to ask deponents about email addresses, Internet usage, and social networking activities.

A new Internet trend is afoot and savvy lawyers may want to at least be aware of the new media.  No, it’s not Google Buzz, which both the Wall Street Journal and CNET recently panned here and here.

Foursquare and Yelp are similar social networking systems which integrate, rather than replace, Facebook and Twitter into a person’s real world social life (indeed, that’s how they overcome the hurdle of creating a new Internet space, which is Google Buzz’s hurdle).  Both are apps which are used on a person’s smartphone (iPhone, BB, and Android).

Yelp began and remains a solid restaurant/bar/hotel finding app to be used on the go via the smartphone.  You can get names of places near you and read quick reviews.  A small community has developed, especially now that users can “check in” when they arrive — letting friends (real and internet-y) know where they are AND giving the business owner a chance to offer specials just for Yelp users.  You can even post the fact you’ve “checked in” to a certain place go to Facebook or Twitter.

Over the weekend, I saw a Yelp sticker at a business and, when I fired up the iPhone app, it beamed me a 10% off coupon while I was in line to pay.

Foursquare is a similar — if not better —  concept which, in their words, is “a cross between a friend-finder, a social city-guide and a game that rewards you for doing interesting things.”  Each time you check in to a place, you receive points.  If its a new place, you get more points.  As you check in to different types of places, you get badges.  As you drop Twitter-like “tips” about a restaurant, business or place, it will reward you with more points and even badges — if you are familiar with Xbox Achievement Points, you’ll realize this is a Barnum-like tool which does, indeed, drive participation.

Foursquare also lets you check-in and share via Twitter and Facebook; businesses likewise can reward you with specials for checking in.  If you are the person who “checks in” the most at a particular location, you will become the “Mayor” of that place.  In short, Foursquare takes Yelp and incentivizes it with a game.

Why should lawyers care?

One, if you are interested in a person’s activities, this provides their personal experiences, a timeline, and some of their commentary about their day.  For a personal injury plaintiff, this might amount to  jaw-dropping disclosures since Foursquare amounts to a breadcrumb trail mixed with a Twitter-like diary of the person’s day.

Second, on the business side, it may be interesting to ferret out defamation; determine whether there were witnesses to a particular event; find out how often someone have visited the location; or it may help locate potentially favorable witnesses who frequent the establishment.

Third, lawyers may  want to use these services to market their practice.  While clients may be hesitant to publicly “check in” that they have gone to their lawyer’s office (much less be the “Mayor”), it does list your business on the Yelp and Foursquare maps when users are looking around to see what “locations” are near them when they are playing with the app.  There’s even room for comments/tips.

Florida Supreme Court and Bar Need to Follow FINRA’s Example on Internet Use and Regulation

Monday, February 15th, 2010

The non-governmental entity which regulates securities firms issued guidance to firms and brokers on the proper use of social networking websites such as Facebook, Linked In, and Twitter.  The Financial Industry Regulatory Authority (FINRA), issued Regulatory Notice 10-06 in January 2010 — on the heels of a prior Guide to the Internet for Registered Representatives.  Additionally, FINRA had a Social Networking Task Force up and running… and podcasts to provide further explanations.

The Florida Supreme Court and Bar, on the other hand, are still working on Internet advertising regulations for Florida lawyers which they have been kicking around since the pre-Twitter era.  FINRA, which handles brokers on a national scale, has repeatedly addressed Internet and social networking issues — touching upon record keeping, advertising, and book/record requirements, according to their press release.  Conversely, the Bar has not been user-friendly in getting a clear explanation into the hands of lawyers.

False YouTube Ad and Padded Resume Leads to Reprimand of Florida Judge

Tuesday, February 9th, 2010

The Supreme Court of Florida commanded Leon County Circuit Court Judge Angela Dempsey to appear for a public reprimand due to (1) a YouTube election advertisement entitled “re-elect” when she had been previously appointed to the bench and (2) a flyer claiming she had 20 years of legal experience when she had been admitted to practice in 1994.  According to the opinion, she admitted the allegations which the Court concluded “was done for the purpose of bolstering her own experience and credibility to the voting public.”

In August 2008, Judge Dempsey won by nearly 60% of the votes.

We could not find the YouTube video with the title “re-elect” but we did find this election ad.  At least one website suggested that the video title was written by the judge’s campaign manager without her knowledge.  Another website suggests that “re-elect” is an appropriate term under election laws.  However, the YouTube ad coyly mentions “18 years” in an incomplete sentence while the remainder of the advertisement focuses on “experience” — even challenging others for how they “talk” about experience.

This article points out that, in 2008, the judge had 14 years of experience NOT 20 years or even the “18 years” mentioned in the video.  Looking at Judge Dempsey’s attorney profile, she graduated from law school in 1993.  Presumably, that means she entered law school in 1990 right after college.  Is she is calculating “18 years” beginning the moment she stepped in law school?  Given that the voiceover simply says the words, “18 years,” with nothing more, the viewer may be left to assume she’s been a member of the Florida Bar for 18 years.

While on the topic of peering into a candidate’s questioned resume, one might wonder if there is a gap of time between her 1993 graduation and 1994 bar admission.  Also unclear is how she lists her work as an assistant state attorney beginning in March 1994 when she was not admitted to practice until May 2, 1994.

The Supreme Court did not specifically indicate if a campaigning judge could pack in time during law school as legal experience.

Taxable Costs: From Ridiculous to Court Reporter Fees for *ALL* Depositions

Monday, February 8th, 2010

After a verdict, the battle over taxable costs can be a vicious and cruel additional hit.  The case of The Landmark Winter Park, LLC v. Thomas and Gail Colman reflects the potential brutal nature of post verdict claims for costs.

By way of background, the Florida Supreme Court’s current statement on taxable costs come from In Re Amendments to Uniform Guidelines for Taxation of Costs.

In Landmark of Winter Park, the court denied the following costs as “overhead”: postage, envelopes, copying, online research, fax charges, overtime for paralegals, after-hours heat and AC, mileage, meals, and long distance charges.

Permitted were costs such as court reporter fee for all depositions (not just those used at trial) and charges for photocopies of trial exhibits.

“The facts of this case are enough to make any legal ethics professor cringe.”

Monday, February 1st, 2010

So says the Second DCA on Friday in William H. Winters v. Richard Mulholland v. Marc E. Yonker (Villanti, Casanueva, and Fulmer).

A 15-year associate plotted his move from a law firm to solo practice and reportedly (1) removed and copied at least one client filed, (2) kept client files with him and returned the files with some documents missing, and (3) knew of his girlfriend and former paralegal “hacking into the firm’s system to obscure client contact information.

The case went to trial and resulted in a $1.47 million judgment based upon a civil theft claim.  The appellate court acknowledged that the plaintiff law firm had successfully proven civil theft — but not causation.  In short, the copying of the file; the holding of the files; the missing documents; and the hacking were never proven to proximately cause the loss of the clients.

UPDATED || The Florida Bar reports that all of these lawyers above possess active Florida law licenses.

Does Your Company Need a Lawyer to Handle Social Media, Twitter and Facebook?

Friday, January 29th, 2010

At least one company, Clorox, is looking for a full time, in house lawyer to clean up their social media policies and presence.  Is that necessary?

A marketing person (or even an astute college student) could likely develop and monitor Twitter feeds and a Facebook fan page.  But is that enough?

Developing a social media policy and handling questions about “new” issues (tech, advertising, responses to comments) is a task probably for a lawyer.

For businesses looking to enter the Social Networking sphere, I would recommend a Twitter feed, Facebook fan page, and an announcement on their own webpage (media release is optional).  I would further recommend setting up an automatic Google search for your business name appearing on the Internet as well as routine searches/monitoring of Twitter and Facebook.  Finally, you need a clear social media policy.

This is actually a fairly good task for a lawyer and paralegal working with the client.  The client could develop the content and have the law firm handle the updating and monitoring.  With a cost-effective paralegal on the front line with some concise supervision by counsel, this would be cost effective.  Moreover, it would ensure (a) the corporation has a social media policy, (b) the posts and entries are appropriate and not patently violating policy or laws, and (c) major social networking sites are monitored for defamation, copyright, unfair competition and other issues.

Depending upon the frequency of the posting/monitoring, this likely could be accomplished for a few hundred dollars a month.  A lot of PR firms could run up that tab in a week.  In good hands, this could be transitioned back to the company full time after 6-12 months.

Meanwhile, follow Clorox on Twitter to see how they are doing.  Some basic good advice on cleaning up your Twitter service is here.  Email if you have comments, experiences or questions about lawyers providing social media services.  I’m interested to see who else out there is providing that service.

11th Circuit Suggests “Bitch” and “Whore” May Create Hostile Work Environment

Tuesday, January 26th, 2010

If you like court opinions which repeatedly quote bad words — and sometimes define them — then consider Ingrid Reeves v. C.H. Robinson Worldwide, Inc. from the Eleventh Circuit.

On the other hand, if offensive words… well, offend you, then stop reading here.  If our federal court can brave their use and memorialize them in the F.3d, we’ll include them on this vaporous little blog.  Using the visceral terms provokes thought as to whether words alone can create a hostile environment while  phrases like “gender specific derogatory comments” or words like “scatological” tend to dull the mind.

The court held that evidence of gender-specific derogatory comments made about women on account of their gender (e.g., bitch, whore and variations thereof) could create an actionable hostile work environment under Title VII.

On the other hand, “general, indescriminate vulgarities” (e.g., fucking [noun], asshole, and, “the intensely offensive ‘Jesus fucking Christ’”) apparently do not trigger the gender-related protections of Title VII.  We question whether that last one might trigger a claim on the basis of religion.

The critical mass of the case was that the gender-specific derogatory comments do NOT have to be directed at the plaintiff.  Simply, where the environment existed and, upon receiving complaints, management did not respond, there was a jury question whether that satisfied the “intent” element of a hostile work environment.

Two factual aspects are worth noting:

One, contrary to what one might expect, the Plaintiff was a former merchant marine and “no stranger to the course language endemic to the transportation industry.”

Two, part of the hostile environment was the fact that employees played a raunchy morning radio program in the office.  It is interesting that what is permissible under FCC standards (presuming it is terrestrial and not satellite radio) could create an actionable hostile work environment…

Thanks to Law.com for their twitter post and article, “Sex Specific Profanity Could Win Discrimination Case.”

“Blogging for Lawyers” at Palm Beach Bar Association

Monday, January 25th, 2010

We recently offered a lunch-time seminar for lawyers interested in learning about blogging at the Palm Beach Bar Association.  This was one in a series of lawyer-technology seminars, much like our prior Tweet Meet and Eat.

Thanks to Matt Kakuk of Webmanagement.us who jumped in with some technical help on issues relating to Google Analytics, Adsense, and Google Local.

If you couldn’t make it, the Palm Beach Bar Bulletin article is here and the powerpoint is here.

A Frustrating Attempt to Find Current Lawyer Web Advertising Rules in Florida

Sunday, January 17th, 2010

Confused by what you can put on your law firm website, blog, Facebook or Twitter?  Who isn’t.  Here’s a primer… to the extent we could find the most current information.  If you are looking to develop a new advertisement or simply confirm your website is in compliance… good luck trying to find the rules.

As a starting place, the Florida Supreme Court is working off of proposals which began BEFORE TWITTER EVEN EXISTED.

* The good news is that there is a Florida Bar Standing Committee on Advertising.  Further good news is that they offer a “handbook on advertising” which is available on the web.  Too bad the link is broken.

* But we jest.  In part.  The Bar has a page regarding website advertising, including the handbook, here.

* By the way, if you want to find out information about the Bar’s Standing Committee on Advertising, do a Google search for it.  Yes, you’ll get results like that, where the first page of hits includes a site from… 1996.

* What does NOT readily come up in a Google search for “Florida Bar Standing Committee on Advertising” is this page, with the committee member names, which you can find by meandering and aimlessly drilling down on links in the Bar website.  The page provides nothing on the Committee’s recent activity.  I was unable to find more current information (can you?).

* The Standing Committee on Advertising has an (undated) set of Guidelines for An Attorney’s Statement of Qualifications and Experience.

* November 19, 2009: Florida Supreme Court issues In Re: Amendments to the Rules Regulating the Florida Bar – Rule 4-7.6, Computer Accessed Communications. This allows lawyers to create an “upon request” section for solicited communications by potential clients to lawyers, which would then exempt the lawyer’s communication advertisement from Rule 4-7.2.  Effective date was January 1, 2010.

* The Bar petitioned an extension to the January 1, 2010 date.  In this January 1 Bar News Article, there’s no indication of the status of the request for an extension (nor is there a clear indicator in the January 15 article, below).

* After this ruling, in mid-December 2009, the Board of Governors determined that the Bar will not review attorney websites, even if voluntarily submitted but will answer calls from lawyers asking specific questions.

* On December 29, the Florida Bar’s Standing Committee on Advertising issued guidelines to help lawyers meet the new rules.  Good thing the Florida Bar News’ January 15, 2010 article, “Panel Offers Guidance to Bring Lawyers’ Web Sites into Compliance” is available online with excerpts from those guidelines, since doing a Google search for the guidelines will get you nowhere.  The article is here.

* The front page of the Florida Bar site does not provide patent guidance.  The “Rules Update” page is confusing… but here it is.

* Were you thinking about joining the Standing Committee to see if you could change things?  The instructions on how to apply are here.  Were you able to find the link to the form?  (hint: hidden in the upper right corner)

If I am off the mark and missing some readily-apparent resources, someone please clue me in.

Florida Paralegal Association & Internet Social Networking

Thursday, January 14th, 2010

Thank you to the Paralegal Association of Florida – Boca Raton Chapter for the very kind invitation to speak about “Social Networking Websites for Fun and Research” at their January 14, 2010 meeting.

This presentation grew out of the Spring 2009 article, “Internet Social Networking Sites for Lawyers,” which was one of the first published articles to discuss using Facebook, Twitter, and others for law firm marketing as well as jury selection.  That article was published in the Trial Advocate Quarterly; it also is available under “Articles” on the right column of this website.

Since that article, there have been a number of developments including the fact that Facebook reset its community’s privacy settings to “Everyone.”  This creates greater potential researching options for lawyers and paralegals — as well as greater need for individuals to pay attention to their privacy settings.

The powerpoint for the presentation can be found under “Materials” along the right column at FloridaLawCommentary.com (scroll down).

At the meeting we discussed steps to secure your own privacy rights — for further discussion, take a look at this article, “8 Steps to Regain Control of Facebook Privacy.”

CA Federal Court Finds Bit Torrent Search Engines Violate Copyright Laws

Tuesday, January 5th, 2010

Several major motion picture production companies scored a new victory in their fight against Internet piracy by obtaining a summary judgment order finding a “bit torrent” search engine operator liable for copyright violation by end users.

The nearly 50-page order reflects the one-side nature of this legal “battle” and references a number of case citations indicative of the string of successes that major music and movie studios have won in the last decade.

The copyright holders hired forensic computer and statistics experts from major universities across the nation to submit affidavits which essentially tutor the court with explanations of how “file sharing” works on the Internet, down to nitty-gritty distinctions between vari0us peer-to-peer protocols.

The Defendant managed to summon at least one expert however it appears he had to concede all of the relevant incriminating principles.  Meanwhile, the Defendants’ use of file descriptions (“Top 20 Movies”), accolades for frequent users, and interviews where the operator admits knowledge and purpose of the torrent sites, make this “battle” fairly easy to win for the copyright holders.

The case is Columbia Pictures v. Gary Fung.  WIRED Magazine provides an interesting write-up here.  The site still exists, for the moment, here.

First District Rules on Production of Incident Reports in Nursing Home Case

Wednesday, December 23rd, 2009

The First District handed down a decision  confirming that production of nursing home incident reports was appropriate when the plaintiff met the two-prong test to overcome the work product privilege.  Oddly enough, there was no discussion of the application of the nursing home-specific incident report production standards set forth in Florida Statute Chapter 400.  The case is Paradise Pines Health Care Associates d/b/a Harts Harbor Health Care v. Estate of Bettye Jean Benekin (Hawkes, Kahn, Clark).

We are provided few details of the underlying claim or the information sought.  If we’re interpreting the decision correctly, the resident suffered from dementia and died — thus, the plaintiff and counsel could not obtain information — presumably about accident(s) or condition(s) — from the resident.  The incident reports in question therefore appear to specifically involve or relate to the parties; this does not appear to be a situation where a nursing home plaintiff is seeking production of incident reports for other residents.

Also worth noting, the opinion reported that names of employees and other witnesses were only available on the incident reports.  The Panel informs us that there was “no serious argument has been made that the incident reports at issue do not contain relevant information that the [plaintiff] need.”  Under Rule 1.280(b)(3), the court then held that the only issue was the second prong: undue hardship.

In interpreting that second step, the split panel concluded, “ [t]o determine whether a moving party will experience undue hardship, courts must balance the moving party’s burden in obtaining information with the non-moving party’s burden of production. Here the trial court determined the [plaintiff] had no realistic way to independently procure the information and the [defendant] had the incident reports at their immediate disposal.”

Under this analysis, once a defendant essentially forfeits the first prong of the privilege, the remaining analysis is a battle-of-hardship, where, if the defendant actually has the documents, their “hardship” in handing over incident reports is likely marginal at best.

Some deeper case-specific analysis may be warranted but it seems that the defendant may have been able to avoid this dispute by simply identifying personnel who were present/witnessed the events in question.  The plaintiff would then depose those individuals but the actual incident report(s) would remain privileged.  Shielding the identity of the only witnesses behind a privilege seems like a scenario where a court might reasonably conclude that the requesting party has no other recourse but to obtain the privileged documentation.

If the analysis in the opinion holds, the plaintiff might still be entitled to the incident reports even if they receive the names of witnesses since taking depositions of witnesses is likely more of a “hardship” than receiving an incident report (as the court put it, “[the trial judge] determined the burden faced by the [plaintiff] was unduly difficult in comparison to the ease with which the defendant could produce the reports.”).

Google Scholar’s Legal Search and Fast Flip

Friday, December 18th, 2009

The ABA Journal Daily alerted us to “Google Offers Legal Research for Average Citizen… and Lawyers Too” so we had to take Google Scholar out for a test drive.  Along the way, we also stumbled across another Google product, Fast Flip.  Both are free.

Apparently Google wants to dip a toe into the legal research world by adding a “legal opinions and journals” radio button to Google Scholar search.  In our unscientific testing, Scholar did not find a recent Fourth DCA case which was issued that same day.  A “regular” Google search, however, pulled the case right up.  Depending on when you read this, test it out using that same case.  Email when that case makes it to Scholar.

Testing slightly older cases, we searched for a relatively new case, Perez v. Life Care Centers, and obtained no results in Scholar but, again, “regular” Google pulled the case right up.  Even a few cases we tested which date back a few months fail to appear in Scholar but pop right up in Google.

Searches by case names and attorney names seems to work fairly well, although not necessarily in chronological order.  There is even an attempt to reference whether the case has been cited (a rough version of Westlaw’s KeyCite or, for we old-timers, “Shepardizing”).  Like anyone with a  Google search bar and a few moments on his hands, I searched my own name and it dutifully pulled up some appellate decisions but no journal articles.

A good start for a Google Lab project.  We like it.

Also of interest is the current events reader, Fast Flip, which needs little explanation.  Watch the media, they’ll likely pick it up soon as the new internet toy…

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