Proper Objection, or Not?!?

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Two of the potentially most important areas to understand for a deposition are proper and improper objections. You’d be amazed at just how many improper objections are frequently asserted.

And so the saying goes, “one lie can ruin a thousand truths.” In the context of depositions, “one improper objection can erase your good standing, while one waived objection can ruin your case.”

The most often improperly used objection in a deposition is relevance. It is not necessary that the question itself be relevant, only that it must be reasonably capable of leading to admissible evidence. Put simply, “If the question may lead to admissible evidence than it is relevant.” (See link below)

I’ve found that it is also helpful to briefly explain to your client the procedure for when an objection is made. In the event that you do object, they are to answer the question unless you specifically instruct them otherwise.

Here is an excellent article that briefly outlines both proper and improper deposition objections. See – Proper Deposition Objections – Lawyerist

The NEXT Chapter…

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Philadelphia City Hall Backdrop

This is a professional legal blog and I aim to operate it as such. Yet, there are exceptions to every rule and here is the place where one applies. The recent lapse in post, as well as changes that may occur moving forward call for an explanation. Here it is…

I married the love of my life on August 10, 2014. Very soon thereafter, I accepted an attorney position as a litigator practicing insurance defense at Baginski, Mezzanotte, Hasson, & Rubinate in Philadelphia, PA.

The change has been met with nonstop movement and a huge increase in responsibility. I mention this because naturally as I continue to increase my depth of knowledge in this new practice area a majority of my post may center around it. To do so without notice would be inapt.

Practicing in Philadelphia has been both exciting and overwhelming. On one hand, there is the ever-changing rules and practices of Pennsylvania courts and on the other, there is the thrill of walking into City Hall every other day. The two contrast – among many – balance out quite nicely. Nonetheless, the objective of this blog is to share everyday lessons learned by a young up and coming attorney. I plan to continue doing so only in a slightly different form. Be sure to follow…

Publication: Social Media 101 – The Rules of Engagement

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Social Media 101

Social media is a cluster of global Tweets, shares and content embedded in every corner of the web. No longer is it only used by the young and restless. Each day over 190 million Tweets are sent, while approximately 265 million people check their Facebook pages. The dynamics of Social Media has changed everything, making it more imperative than ever that we use it properly. One mis- Tweet, mis-share or upload can cause you, your client or your firm tons of money and irreparable harm.

You are what you Tweet

Those words ring true now, more than ever. Despite this notion, the glaring social media gaffes of others continue to amaze. Social media titans such as Twitter, Facebook and Instagram grant us an immediate connection with the world — our own, readily available soapbox to project our voice for the world to hear. When used properly, they are amazing tools: a means to share opinions, personal experiences and information. However, it all comes at a great price of responsibility.

As the old adage goes, “to whom much is given, much is required.” Quick and convenient access to social media elimi- nates the filtering process that would natu- rally occur when publicizing one’s feelings. Therefore, it is important not to allow the relaxed forum to delude you. You are still responsible for your thoughts and actions, arguably to a higher degree when those thoughts are posted and made available for anyone to derive their own meaning.

I originally wrote this article in February of 2014. This piece is an updated version of that post, geared toward young attorneys and their clients, further highlighting the importance of proper use of social media. It was published by the PA Bar Association Young Lawyers Division in the Summer 2014 At Issue publication.

To read the article in its entirety see, Social Media 101: The Rules of Engagement

 

Widener’s Delaware Journal of Corporate Law Receives Top Honor

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Delaware Corporate Law Journal

The Delaware Journal of Corporate Law recently took a distinguished top honor in a national ranking of law reviews.

The Journal ranked first among student-edited journals that specialize in “corporations and associations” and in “commercial law,” based upon citations in federal and state court opinions over the last eight years. The ranking, from data compiled by Washington & Lee University School of Law, also placed theJournal seventh out of 372 specialized student-edited law reviews for citations overall.

This means that courts cite articles published by the Delaware Journal of Corporate Law more often than any other corporate and commercial journal in the country, and that only six other journals in any field are cited by courts more than the Delaware Journal of Corporate Law.

The ranking was based on printed law journals published in the United States.

Established in 1975 to keep business-law practitioners abreast of critical issues, the Journal has continually provided the nation’s legal community with well-researched and analytical articles. Its location at Widener Law in Wilmington, Del. puts the Journal in a unique position to maintain a corporate law focus. It is published three times each year. Subscribers include The United States Supreme Court, the U.S. Department of Justice, the Delaware Supreme Court, Delaware Court of Chancery, Time Warner Inc., DIRECTV Group and numerous national and local law firms…

It is great to see my law school alma mater doing great things. Congratulations to all of the students, both past and present, that worked so hard to achieve this accomplishment.

See more, Widener’s Delaware Journal of Corporate Law leads national ranking.

SCOTUS Sweeping Embrace of Digital Privacy

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Since 1914, the “search incident to arrest” exception to the Fourth Amendment warrant requirement, has allowed police to search any items that a person had on them, or within reach in a car when arrested. Over time, natural progression led to the inclusion of cell phones in these searches.

In Riley v. California, an individual was stopped for a traffic violation that led to an arrest on weapons charges. Upon arrest, the police officer searched the defendant’s cell phone and found photographs and videos that were used to charge him for a previous shooting.

Opinion: Riley v. California, No. 13-132

Today, the Supreme Court ruled in Riley, that the “search incident to arrest” exception does not apply to cellphones because of their nature. Chief Justice Roberts wrote in his opinion for the Court, “it is no exaggeration to say that many of the more than ninety percent of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives — from the mundane to the intimate.” As a result, individuals should be protected from the search of these devices without a warrant. See, Opinion Analysis: Broad Cloak of Privacy for Cellphones.

In ruling so, the Court rejected every argument placed before it that an officer should be permitted to search a cellphone taken from an arrestee. It left open just one option for such searches without a court order: if police are facing a dire emergency, such as trying to locate a missing child or heading off a terrorist plot. Even then, it ruled, those “exigent” exceptions to the requirement for a search warrant would have to satisfy a judge after the fact.Id. The protection also applies to remotely stored private information that can be accessed by the cellphone.

The reasoning behind the decision was that substantial privacy interests are at stake when digital data is involved, and that this is not comparable to inventorying personal items. The Court explained that cell phones have an immense storage capacity and prior searches of a person was limited by physical realities that individual could only carry a small number items. See, Supreme Court Rules that Police Need Warrant to Search iPhones.

Very few things are as common to us all as cellphones today. Quite frankly, I often marvel at the thought of how we functioned without them — I realize what this says about my dependency on technology. Nonetheless, our cell phones posses a vast array of personal information, from the most basic to the most intimate. The Court’s decision reflects their appreciation for this reality. Chief Justice Roberts, in discussing the importance of cell phones and its common place wrote, “the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” The court went on to state that a cell phone — due simply to its ability to hold tons of data — may contain more information in total than an individual’s entire home. Surely, access to this level of one’s privacy should require a warrant.

Whether you agree with the opinion of SCOTUS or not, at a time when many legal issues are becoming more complex, it is refreshing to have our Country’s high court unanimously agree on a bright line rule that should assist and make easier to administer the proper search of cell phones in practice.

Uber Wars

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While unbeknownst to half the world, a war is erupting amongst ridesharing services and the taxicab industry. New ridesharing companies, Uber and Lyft, offer high quality services at a fraction of the cost of traditional taxicabs. Unlike those taxicabs, they are not heavily regulated and taxed, enabling them to undercut the competition. This has left longstanding taxicab companies screaming foul, as opposed to acknowledging the greater issue, stagnation.

Ridesharing on the Rise

Uber is now operating in more than 100 cities in 37 countries. Just last week it launched in Miami, Orlando and Austin, while in other areas the company openly defies orders to cease and desist. In most jurisdictions, the argument as to whether ridesharing companies should be regulated along with taxicabs, hinders upon whether they are considered a true ride pairing service or cars operating with meters. Uber’s position is that its app is simply an electronic means to hitch a ride, and that their vehicles do not classify as meter operated taxis because the smartphone running the app does not have to be attached to the vehicle. The opposing view is that Uber’s smartphone app operates as a meter and thus must be regulated under the same laws as other taxicabs. For now the debate continues; however, what we do know is that taxicab drivers are losing money and they want it fixed fast.

We want something that’s fair to everybody,” said Parminder Cheema, a taxicab driver and elected member of the association’s leadership council. Taxi drivers frustration stems from the fact that they’ve had to abide by city rules — which include licensing fees, commercial insurance laws, and a bevy of other requirements — for decades, while Uber and others have come into town and conducted business in their own manner. The taxi medallion that permits one to operate a yellow cab in New York cost upwards of 1 million dollars.

Interestingly enough, while governments are moving swiftly to limit the expansion and growth of Uber and similar companies they are “tripping over themselves to lay down a legal framework for an impending wave of driverless cars—and autonomous car services would eliminate labor from transportation entirely.” This ongoing conundrum teaches a great lesson, at the expense of the taxicab industry. Never stop innovating. Never stop moving forward.

The Importance of Innovation

Stagnation of the taxicab industry is what created the opportunity for companies like Uber and Lyft to innovate and revitalize the industry. For many, the taxicab industry has been akin to a utility company for years – no real growth or improvement, but also no readily available alternative. The rise of Uber and Lyft has spawned new competition and left the taxicab industry scrambling.

Meanwhile, Uber continues to innovate and improve, safely simplifying necessities that were nearly impossible a short time ago. Recently, Uber began allowing riders to notify their previous driver if he or she accidentally left something in the vehicle. The driver can then read, and respond to the message directly within the app. Additionally, Uber often runs unique promotions that can be exciting for users. Offering brand new luxury cars to experience, as well as cars equipped with candy bars or breakfast bars for the rider to enjoy. This past winter, the company delivered Christmas Trees to customers upon request through the app. These innovative examples are what connects the users to the company and spark an instant relationship.

Protest Backfire – Uber Sign ups Spike 850%

This week’s recent protest in Europe left traffic all but immobile. Thousands of European cab drivers lined the streets with parked cars. The drivers feel that, “Uber and other similar companies are not competing on a level playing field.” While the protest made worldwide headlines, it may have ultimately done more harm than good. Since the protest, Uber’s sign ups have spiked 850%. This move has left many re-considering their recent statements that Uber’s valuation of 17 billion is too high – now many wonder if it is too low.

Uber isn’t the first company to challenge the status quo of an industry, and it certainly won’t be the last. Nonetheless, as pointed out here, at the center of every “new technology upsets an industry” story, the real change is driven by the people using that technology. It’s often the people’s disdain for the current system that perpetuates the new one. If the new system doesn’t deliver then the people won’t use it and not much change is caused at all. While it remains to be seen where things go from here, it appears that the taxicab industry may have won this week’s battle, but Uber and Lyft are winning the war.

Update: Septa workers in Philadelphia are currently on strike. Uber has taken advantage of the opportunity by offering users half price fares when fees are split between riders. Yet another move that shows the company’s true commitment to its users and an attempt to further humanize the industry.

How CIPA changed everything; Wait, are you recording this?

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Audio Waves & Microphone

Communication recordings without one’s consent is a hot topic today. The leaking of banned NBA team owner Donald Sterling’s conversation has undoubtedly further ignited the debate, causing individuals to question the real law. What limitations or guidelines are set in place to protect individual’s privacy rights during phone call communications? Is it sufficient to have one party consent to the recording or are both parties required to consent? These are just a few of the questions being pondered. Let’s take a brief look.

First up is the Californa Invasion of Privacy Act or in short, CIPA. While not first in order of precedence, its overreaching applications have caused it to become first priority for businesses determining their communications recording procedures and protocols. CIPA was enacted in 1967 to protect Californian’s right of privacy. The California legislature declared that “the development of new devices and techniques for the purpose of eavesdropping upon private communicates … has created a serious threat to the free exercise of personal liberties.” Thus, section 632 of CIPA was enacted to require all-party consent for recording confidential communications. Later CIPA was amended to add section 632.7. This section specifically prohibits the recording of any telephone call in which at least one of the recipients is using a cordless or cellular telephone. Note, that section 632 is limited to confidential communications while 632.7 is not – we will come back to this!

Next, there is the Federal Wiretap Act, which governs call recording under federal law. The Act permits the recording of calls, so long as at least one party consents. Approximately 37 states follow this same concept, rendering the taping of calls by a business and its customers ok, since at least one party involved (the business) gives consent. In stark contrast, twelve states and the District of Columbia mandate that all participants in the call must provide consent before it can be recorded.

So, at this point things seem pretty straight forward right? When deciding the applicable law of communications recording on a federal level apply the Federal Wiretap Act, and for each state depending on their law apply one of the two rules previously stated… But no so fast, the ever long reaching CIPA puts quite a wrinkle on all of this. While in a vacuum CIPA only applies to communications that take place in California, cases such as Kearney have exponential multiplied its effect. In *Kearney*, the California Supreme Court unanimously held that CIPA protects all Californians while in California – even against the recording of communications by people located in other states where the other states’ laws would permit the recording. Thus in effect, CIPA has become what controls businesses’ decisions with respect to recording customer calls. While CIPA is primarily a criminal law, it permits civil claims with statutory damages of $5,000 per violation, making it a lucrative target for plaintiffs.

All of this has led most business to err on the side of caution and implement a system to ensure that all callers hear an automated notice before recording begins, “This call may be recorded for quality assurance purposes.” It’s the same notice that we all hear anytime we pick up the phone to call a business. I focus on the ramifications felt here by businesses because they prefer to record calls for a large number of reasons; accuracy, quality assurance, in-discrepancies, etc…

You may remember that section 632 of CIPA is limited to confidential communications and sect 632.7 strictly prohibits the recording of calls involving a wireless or cellular phone. Due to the verification methods used to confirm each customer almost all business calls with a customer are considered to have “confidential communications”. Moreover, because such a large majority are made involving either a cellular or cordless cordless telephone it would not only tremendously expensive for a company to attempt to parse these calls out, but likely not effective either. Hence why most companies have decided to go with the blanket notice statement. As the laws continue to develop there may be some clarity obtained, but until then you can expect to continue hearing our favorite disclaimer, “this call will be recorded…”

Sidebar:
Im interested to know, does the notice actually affect anyone? To a large degree I feel that we have been desensitized to the warnings. A few businesses have been hesitant in applying the notice for fear that it will affect their customer perception, but I doubt that it will. Personally, when I hear the notice today I don’t think, “ah, sketchy business” I think, “oh, business as usual.” What about you?

Read this attorney’s entertaining and informative article about his experience with CIPA and how it impacted his client’s business, The Tricky Business of Call-Recording Litigation.

Wait, are you recording this?!?