Chalk Talk
Helping the Court Reporter
A clean, coherent, and intelligible deposition transcript is invaluable to a trial attorney. It can prevent the waste of hours of trial preparation spent decoding same. It may also be the key piece of evidence used to impeach a witness during cross-examination and question his or her credibility.
With that, know that the court reporter is your friend — help your friend help you. To do so, see this article that list best practices and suggestions for handling a court reporter at a deposition. A brief must read for any trial attorney.
When you’re taking a deposition, you know that ensuring a complete and accurate record is vital. So don’t take the person who’s dutifully taking down the proceedings for granted: Assisting the court reporter is not only polite, it might be the key to a clean depo transcript to use at trial.
Helping the court reporter start even before the deposition begins by
- Showing up early to organize documents for convenient reference and mark them as exhibits.
- Giving the reporter a copy of the case caption so the transcript will include the correct case name and court number.
- If the deponent is an expert, offering the reporter a written glossary of unusual terms that will be used during the deposition.
Read more: Give the Reporter a Hand to Get a Clean Depo Transcript
PA Supreme Court shifts the world of products liability
The PA Supreme Court recently shifted the world of products liability with its opinion in Tincher v. Omega Flex, Inc. While scholars and attorneys continue to dissect the 137 page opinion, “what can be said immediately about this landmark decision is this: (1) the Court has not adopted the Third Restatement (although the Third Restatement is extensively discussed); (2) Azzarello v. Black Brothers Company (Pa 1978), which created Pennsylvania’s idiosyncratic version of Section 402A of the Second Restatement, has been overruled. BUT (3) there are many stated variables and contingencies that will have to be carefully evaluated and clearly will have significant consequences in pending and yet to be filed cases in Pennsylvania state and federal courts.” Philadelphia Association of Defense Counsel member Bill Ricci.
Proper Objection, or Not?!?
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 two most often improperly used objections in a deposition are relevance and hearsay. It is not necessary that the question itself be non-hearsay or 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)
SCOTUS Sweeping Embrace of Digital Privacy
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.
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.
How CIPA changed everything; Wait, are you recording this?
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.
Evans’ Safe Harbor Article One of 2014’s Best, Selected for Thomson Reuters Ent Law Anthology
Excellent article with great insight:
“Law and policymakers, OSPs, and other stakeholders must recognize the value of established user- expectation and customary and accepted practices. They also must formalize those beneficial uses that currently exist in the gaps and gray areas of copyright law and that cause little, if any, market harm. Good faith users deserve safe harbor protection in the digital age.”
Well said, and achievement very well deserved. Congrats!
My law review article,
Safe Harbor for the Innocent Infringer in the Digital Age
, published recently by
Willamette Law Review
(50 Willamette L. Rev. 1 (2013)), has been judged one of the best law review articles related to entertainment, publishing and/or the arts published within the last year!
Accordingly, the editor of the 2014 edition of the Entertainment, Publishing and the Arts Handbook selected Safe Harbor for inclusion in the annual Handbook anthology published by Thomson Reuters (West).
[View & DL Safe Harbor for the Innocent Infringer in the Digital Age]
Eliminate these terms from your legal writing
Link Posted on Updated on
Legalese (noun) – the formal and technical language of legal documents that is often hard to understand.
Since its inception, the use of peculiar legal terms has become a legal writing rights of passage. Are the terms effective? Yes. But, whether they are really needed is up for debate. Young attorneys often face this decision with uncertainty. Whether to replace the murky legal terms with clear language or stick with them in an effort to show that they too can write just as confusing is the question.
This article advocates for the deletion of “such” terms. The piece is extremely informative and persuasive, as Bryan Garner does an excellent job of thoroughly explaining the reasoning for his position. Listing numerous sources on the definition/use of each word and why it should be banned.
Keeping a banned-word list is hardly unique to newspapers. The novelist Ambrose Bierce kept a “Little Blacklist of Literary Faults,” published nearly a century ago. He despised committed suicide, preferring instead killed himself (or herself). He likewise disapproved of decease for die, executed for hanged (or put to death), expectorate for spit, inaugurate for begin, prior to for before and so on. He wasn’t fond of genteelisms. No real stylists are.
Legal drafters could benefit from a similar verbal blacklist—a simple list of words that do nothing but blemish the documents that contain them. Learn them and ax them.
and/or Is it a word? Is it a phrase? American and British courts have held that and/or is not part of the English language. The Illinois Appellate Court called it a “freakish fad” and an “accuracy-destroying symbol.” The New Mexico Supreme Court declared it a “meaningless symbol.” The Wisconsin Supreme Court denounced it as “that befuddling, nameless thing, that Janus-faced verbal monstrosity.” More recently, the Supreme Court of Kentucky called it a “much-condemned conjunctive-disjunctive crutch of sloppy thinkers.”
You have the right to remain silent, anything you Tweet can & will be used against you
“When the, streets is watching Blocks keep clocking Waiting for you to break, make your first mistake…” – Jay Z
Those infamous lyrics apply now, more than ever. Yet, the glaring social media acts of others continue to amaze. Twitter, Facebook, and Instagram (just to name a few), grant us an immediate connection with the world. Our own, readily available soapbox to project (type) our voice (words), for the world to hear (read). When used properly they are amazing tools; a means to share opinions on current events and personal experiences. But, it all comes at a great price – a gift and a curse, if you will.
As the old adage goes, “to whom much is given much is required.” Convenient access to social mediums eliminate the filtering process that would naturally occur when publicizing one’s feelings. It is thus important to not allow the relaxed forum to delude you. You are still responsible for your thoughts and actions, arguably to a higher degree once those thoughts are posted and available for anyone to derive or attach their own meaning.
Every week in the news, we are confronted with a controversial post made by someone on social media. Often, followed with regret and attempts to redact or delete; but unfortunately, once posted, the damage is already done. Recently, it was Richard Incognito of the Miami Dolphins who could not help himself.
Afterwards, water cooler conversations promptly begin questioning how the offender could be so reckless (my mother taught me to never call anyone dumb, so I will refrain). From the outside looking in, it is always a terrible idea, so why do we continue to see these same mistakes? The examples are endless, Teenager threatens to shoot up school on twitter arrested, drug dealers use Instagram to distribute. The story repeats itself so often that I have concluded it can happen to anyone. I am convinced a social media troll exist, hijacking minds, perusing accounts, and wrecking havoc… No, but seriously, these transgressions have to be addressed.
Going one step further, an individual’s social media profile is often where civil and criminal investigations begin today. These accounts possess an abundance of information; one’s interests, whereabouts, inner-thoughts, perspective, and future plans. Tools such as BrightPlanet’s, BlueJay Law Enforcement Twitter Crime Scanner allow police departments to conduct pre-crime searches on Twitter. Invasive? Maybe, but the rationale is the fact that it helps to prevent future acts of crime. Yes, our very own “Minority Report.” A very slippery slope indeed, but only the future knows where it will lead us.
As an attorney it is imperative that you not only represent yourself well on social networks, but also educate your client. Many individuals consider their account to be secure simply because they mark it private, requiring others to request to view their profile for access first. While this may be quite true, do you know every follower that you accept? Are you sure that long time friend that you accepted is really him or her?
For now, If you are an active ‘social networker’ it is important to take your post seriously. Expect the world to have access to your post, forever! Consequently, post only those things that you are comfortable with anyone seeing. Taking into consideration that your feelings about any given topic may not always be as flagrant as they are now. The post or tweet should be something that with reasonable deference you are OK with 20 years from now. After all, how are you going to feel when your child accuses you of hypocrisy and presents you with your own tweet, after you tell him or her that they cannot do something that, “you tweeted?” 😦
Update:
Not long after completing this piece, I discovered that the Delaware Supreme Court recently ruled on the admissibility of Facebook and social-media evidence. This article written by Molly DiBianca, highlights the importance of social media-evidence and its evolution. See, Delaware Supreme Court Rules On Admissibility of Facebook Evidence
The Semicolon
Infelicitous is the word I would use to describe my relationship with the semicolon over the years; quite simply, its been complicated. I love its style, look, and bravado, but it seldom reciprocates the feeling. If you can relate, check out the article attached below…
In college, whenever I used a semicolon in a paper, it came back to me with a big red circle around the offending member. I thought semicolons were just inflated commas, and I realized that I had no idea how to use them, and was afraid it was too late to learn, so I decided to do without them. I stuck with what I knew: the common comma, the ignorant question mark, the occasional colon, the proletarian period.
And for a bonus see, Why semicolons are the perfect punctuation for the digital age
‘Dumb Starbucks’ parody shuts down but debate over trademark law & parody continues
I followed this story as it developed over the past week – the author here did a great job summarizing the events thus far.
Here is my response (see original article below):
On the discussion of who has the stronger argument, it gets interesting. First there is the First Amendment and parody vs trademark law. Followed by, dilution by blurring or tarnishment.
The trademark protection argument is weak because it hinges upon the “the likelihood” of consumer confusion. I find it difficult to believe that anyone here is confused. The parody literally attached the word “dumb” to Starbucks name. No one would reasonably believe the two stores are related.
Fielder also has a decent argument against dilution by blurring and tarnishment with §1125(c)(3) of the Lanham Act. In short, the section specifically permits for the parodying of the goods or services of a mark owner. While it protects against injury to the good will and reputation of the mark, here I do not believe Starbucks has suffered much harm. It was fairly clear the act was a prank; it was funny, and the coffee was free!
Over time, if the parody were to remain open (or expand), and a correlation was made with a decline in the public’s perception of Starbucks, then perhaps, an argument may be made for the good will and reputation of Starbucks’ mark. Otherwise, I think it may be considered fair game.
Either way, it will be exciting to see what comes next in this ‘kerfuffle’!
On February 9th, The Huff Post and other media outlets reported the grand opening of a store in the Los Feliz neighborhood of Los Angeles, “Dumb Starbucks”. The clever prankish parody even caught the attention of Forbes:
‘Although it looks like Starbucks, smells like Starbucks and even acts like Starbucks (the super-friendly baristas asking for your name were hired off Craigslist), the whole thing is an elaborate goof on Starbucks culture. A list of Frequently Asked Questions posted on premises compared the place to Weird Al Yankovic’s homage to Michael Jackson’s “Beat It.” Dumb Starbucks, you see, is the “Eat It” of $6 coffee drinks.’ Source: Forbes.com
Amazingly, people stood in line for hours for the Dumb Starbucks java, which reportedly was whatever the local grocery store had on hand for the few days Dumb Starbucks remained open. The locals and media alike seemed to get…
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The Burgeoning Young Attorney 