The Risks of Innovation Through Technology in Legal Practice

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With the increased use of technology in legal practice, it is imperative that we remain aware of current best practices and precautions. While the use of such technologies may increase productivity, we must first be sure to protect our client and business.

Lawyers have always been innovators; any time an attorney crafts a novel legal theory or creates a contract to manage a new type of risk, he or she is innovating. Business innovation, though, has been less common among lawyers, but in recent years, technology has driven and empowered attorneys to pursue innovation in all areas of their practices. Faced with competitive pressures from lawyers and other legal service providers throughout the world, cost-cutting mandates from clients, and a need to remain relevant, attorneys are adopting technologies for research, collaboration and communications at an astonishing rate.

These technologies, however, are not without risks of their own. Attorneys may face ethical and business risks, and may entangle their clients in risks as well, through misuse or misunderstanding of innovative technologies. Among the biggest potential pitfalls:

See the link for more, The Risks of Innovation Through Technology in Legal Practice.

One-on-One with Delaware’s Two Kings of Criminal Law

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Hurley vs. Maurer

During my clerkship in the New Castle County Court of Common Pleas, there were two criminal defense attorneys who stood apart from the pack. Two attorneys whom law students watched intensely, eager to derive anything they could from an observation. The two attorneys, at one point, represented Tom Capano in Delaware’s most popular murder trial. Those two attorneys are Joe Hurley and Eugene Maurer, Jr. – Delaware’s kings of criminal law.

The first voir dire (jury selection) that I observed was that of Joe Hurley. Amazingly, I still have my notes. Many of my thoughts are validated by the conversation between Hurley and Maurer. I remember thinking Hurley was a bit dismissive to his peers, but incredibly sharp with the judge and jury. He was great at commanding the room and phrasing things in plain language, a skill known to many as, “dumbing it down”. All the while maintaining a wry, clever, and edgy kind of humor, keeping it interesting.

Hurley’s client was accused of resisting arrest and assaulting an officer. His client was a fairly large intimidating man, but Hurley did not shy away from the facts. Instead, Hurley used his client’s size and demeanor to his advantage. Like a skilled Aikido fighter, he motivated your mind’s initial impression, connecting it with assumptions the police must have made at the time in question. To use force first or risk danger. The tactic took a strong defendant and made him appear vulnerable to the jury. He was now the victim, but not in a corny charitable case sort of way, but an unfortunate victim of circumstance. Needless to say, at the closing of the case Hurley obtained a positive verdict from the jury for his client.

While I was not so fortunate, to sit in on one of Maurer’s cases, I did have the opportunity to review a large number of his motions and briefs to the court. His style was revered. Extremely confident but not cocky.

Reading the conversation between the two, one can identify numerous similarities: Impeccable Work Ethic, Confidence, Self-Awareness, and Respect. All excellent traits. But, even Delaware’s top criminal minds made mistakes in their career. In fact, Hurley’s history shows that a large number of plans may not work, but with hard work and dedication one may become successful. While the independent causes for the success of the two men may be argued, one thing is for certain, their work ethic is superior to all and second to none. They both possess extreme confidence in their ability, along with a strong sense of respect and self-awareness. Mr. Hurley may come off as arrogant but it appears that he is quite aware of tactics and Maurer’s confidence, while a bit more polished, remains glaring.

I question whether this interview would have been possible early on in their careers? Its no coincidence that they were able to converse candidly, often complimenting and insulting each other in the same breath. The awareness of themselves and their opponent developed over time. Lessons reinforced through experience and crossing paths paved the way for an intimate but humorous conversation. The result is priceless and I am thankful to Delaware Today for featuring such a great article. I only hope that one day I to can take part in a similar conversation with one of my peers…

See the interview by Delaware Today here (begins in the middle of article).

No Mercy for Pro Se Litigant

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No Mercy for Pro Se Litigant

Pro se parties normally enjoy relative leniency from the courts. But in a recent case before the U.S. Court of Appeals for the Third Circuit, an unrepresented party’s behavior was so egregious with respect to discovery obligations and compliance with court orders that the appellate court affirmed a more than $1 million default judgment, including punitive damages, against the pro se litigant. The ruling reinforces the importance of being responsive to opposing counsel and the court.

Judge fears $765 million concussion settlement not enough

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For months we have heard that the $765 million dollar proposed settlement between the NFL and over 4,500 retired players, who sued the league for hiding the dangers of concussions, is not enough. Today, Judge Brody agreed.

Judge Anita B. Brody of the United States District Court for the Eastern District of Pennsylvania rejected the proposed settlement because the league and the plaintiffs’ lawyers had not produced enough evidence to convince her that $765 million would cover the potential costs for 18,000 retirees over the 65-year life of the agreement.

“I am primarily concerned that not all retired N.F.L. football players who ultimately receive a qualifying diagnosis or their related claimants will be paid,” Brody wrote.

The players’ lawyers have said that economists and actuaries they hired said that there would be sufficient money available.

“Unfortunately, no such analyses were provided to me in support of the plaintiffs’ motion,” Brody said. “In the absence of additional supporting evidence, I have concerns about the fairness, reasonableness and adequacy of the settlement.”

See, NY Times Article.

From here, if nothing else, the initial payments to the retired players will be delayed. The NFL and the plaintiff’s lawyers will need to provide evidence showing that the proposed settlement amount is sufficient to pay the retired player’s claims. A Special Master will likely review the documents and advise the Judge of his/her opinion. If those efforts are unsuccessful, the two sides will be forced to rework the agreement by adding more money to the settlement or adjusting the payout categories.

Either way, there is still much work to be done in this groundbreaking case. The decisions made here “will provide a framework for the settlement of other concussion-related lawsuits, including those brought by former hockey players against the N.H.L. and by former college football players against the N.C.A.A.” Today’s order shows that Judge Brody is well aware of the implications and wants to ensure that this is done correctly.

‘Blurred Lines’ Lawsuit: Sony/ATV Settles With Marvin Gaye’s Family

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Breaking news in one of Hollywood’s top legal disputes of 2013. Definitely a step in the right direction for Sony/ATV, but they are not out of the woods just yet. Parties remaining will likely want to hear why Sony originally concluded that the songs were not similar.  See the link below for details.

‘Blurred Lines’ Lawsuit: Sony/ATV Settles With Marvin Gaye’s Family (Exclusive)

Trademark vs. Copyright

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Trademark vs. Copyright

Copyrights and Trademarks are important protection devices essential to the growth and success of a business or brand. Without protection your work is free for anyone to use without seeking permission or giving credit. While not protecting your work may result in loss profit, what is sometimes more important to a brand is proper credit.

Not only is it important to protect your work but also to use the proper method of protection. Improper protection will result in the same effect as no protection at all.

  • A copyright is used to protect “original works of art” including literary, musical and artistic. Copyrights protect the form of expression rather than the subject matter of the writing. For example, the description of of a machine could be copyrighted, but this would only prevent others from copying the description; it would not prevent others from writing a description of their own or from making and using the machine.
  • A trademark is a word, name, symbol or device used commercially to identify the source of the goods and distinguish them from others. Trademarks prevent others from using a confusingly similar mark, but not from making similar goods. Apple’s trademark protection is what prevents another company from using an “apple” or anything that closely resembles such on an electronic device. Those companies however, are free to build and create electronics.

Note: This brief summary is in no way intended to be a complete explanation of copyright and trademark – only a simple illustration of the difference between the two. Patents are a totally different beast within itself.

Farewell to the Delaware Way

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I originally wrote this piece in June of 2013. Its application is just as important today, as it was then.

“If opposing counsel request a reasonable extension of a deadline you give it to them.” This was perhaps one of the first lessons bestowed upon me early in my legal career. For as long as I can remember, common practice in Delaware was for attorneys to work with one another with regard to deadlines. Many reasons were given for providing such accommodations. One simple justification was to give the courtesy so that if ever you needed the same one would likely grant it to you. Of course, the likelihood of working with the same counsel at some point again in your career is highly probable within Delaware’s small legal world.

On January 2, 2013, all of this changed. This practice, while readily used and accepted among practicing lawyers was causing problems for the courts. Lawyers would quickly grant request for extensions and permit opposing counsel to submit discovery late but as the trial date approached the consequences of extensions would have greater effect.

For example, counsel may grant an extension for opposing counsel to submit discovery. Later, when discovery is presented, counsel that granted the extension realizes that this piece of evidence alters the nature of the case. As a result, counsel request for the trial to be rescheduled so that they may adequately prepare. The trial court must then decide whether counsel that granted the extension would be prejudiced by the shorter time period. This is where the problems arises…

Because these friendly extensions do not adjust the scheduling order or trial date, lawyers would grant extensions but file motions to exclude discovery filed too close to trial because of the inability to prepare within the shorter time period. In Christian, et al v. Counseling Resource Associate, Inc. et al, counsel granted an extension, this continued for quite some time until counsel finally submitted the required discovery. Afterwards, Counsel that originally granted the extension filed for a continuance to allow time for them to adequately prepare. Counsel argued that the shorter time period put his client at a disadvantage in preparing for trial; however, the trial court would not entertain a motion to review the scheduling order or adjust the trial date. As a result, counsel filed a motion to deny admittance of the late discovery. The trial court granted the motion finding that the admittance of the evidence would overly burden the party in preparing for the trial and adjusting the trial date was not an option. Consequently the case was dismissed since that discovery was necessary to continue.

Trial Courts have a grave responsibility to keep trials on schedule. But, they also must balance the equities in the interest of both parties. Forcing a party to prepare for trial in a shorter time period because of accommodations they granted for another is not fair, but neither is rescheduling the trial…

This led to the Delaware Supreme Court’s ruling in *Christian“,. This opinion modifies all previous accommodations given under the ”Delaware Way.“ From this point forward, ”counsel that grants any extensions is prohibited from later requesting relief from the court.” One extreme example given is where the day before trial a party presents new discovery. If opposing counsel previously granted a request for extension then that party may not seek relief from the court.

The Court made it clear that litigants who grant discovery extensions to opposing counsel without court approval, do so at their own risk.

“If the party chooses not to involve the court, that party will be deemed to have waived the right to contest any late filings by opposing counsel from that point forward. There will be no motions to compel, motions for sanctions, motions to preclude evidence, or motions to continue the trial. It is entirely possible, under this scenario, that some vital discovery will not be produced until the day before trial. Still, the party prejudiced by the delay accepts that risk by failing to promptly alert the trial court when the first discovery deadline passes.”

The Court also noted that extensions to deadlines granted by the trial court should not alter the trial date except in “unusual” circumstances.

Now, attorneys will likely deny all request made for extensions and require opposing counsel to file a motion with the court. The Supreme Court acknowledges that this will lead to an increase in the filing of these types of motions, but they also feel that it will lead to greater consistency. Alleviating a large number of issues that the trial courts face.

I look forward to witnessing this change of practice, for it will surely be remembered and forever connected to one of my first legal lessons…

Cite: Christian, et al. v. Counseling Resource Associates, Inc., et al.

2014 May be the Year to Find Your Lawyer Online

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Here is an interesting article that notes the paradigm shift taking place in our legal community. The author predicts 2014 as the year that the search for legal services catches up with technology. I would have to agree — the writing is on the wall. A firm’s online presence is more important today than ever  before…

The legal services market is notoriously slow when it comes to adapting to technology. As a result, those in need of lawyers have historically been reluctant to use technology to find them. Think about it. You need a lawyer for your startup. Where do you turn? A friend? A business advisor? Someone else in your personal network? Now there are substantially greater options.Finding your lawyer online will become pervasive in the next 12 months. This is especially good news for entrepreneurs who would benefit from legal advice, but given the friction in the process, may be slow to find it.

Innovation in law has been slowly creeping along since 2001, when LegalZoom was founded to bring legal documents to the public. LegalZoom’s offering of deep discounts on standardized legal documents was transformative to the traditional industry. All of a sudden, consumers who might otherwise have forgone legal formalities had a viable alternative.

But that hasn’t translated to how consumers find and work with actual lawyers. Until now.

Read more:

Create, sign and send legally binding agreements in seconds with the Shake App

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Shake App Icon

Every so often, there is an idea so novel and genius that you wonder why you did not think of it yourself. For me, the Shake App is just that. It is a contract writing app that allows individuals to choose from pre-written or custom contract templates to form an agreement. Not only does the app look and operate beautifully; but its utility value is remarkable.

Here is a brief description on iTunes:

Create, sign, and send legally binding agreements in seconds, all from your phone.

  • Hiring a freelancer?
  • Need a nondisclosure agreement (NDA)?
  • Buying something on Craigslist?
  • Loaning money to a friend?
  • Selling or Renting something for your small business?

Getting on the same page with the other person is the best way to avoid disputes down the road. Shake makes it simple to document the important terms and get the deal done quickly and confidently. Making it legal doesn’t have to be complicated!

On any given day, I may toy with approximately three to five iOS/OS apps. And whether discovered while doing my daily blog reading or an app search, I come across interesting and unique concepts often. Given the pure volume of apps that I have tried, it requires quite a bit for an application to stand out; but, the Shake App does just that!

Take a moment to look at the Shake App now. Even if you don’t see an immediate use, download it to have for that “just in case” moment. When you wish you could create a binding agreement or contract on the go…

The Innocent Infringer

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Word cloud for Copyright infringement

Copyright Law is an obscure subject for many. It combines antiquated laws with a myriad of artistic individuals and dares them to gleam from the text its true meaning or intention. The notorious use of mis-leading phrases such as “innocent infringer” furthers the confusion. It leads one to believe that intent is necessary for the infringement of a copyright. When, in actuality, intent is not a determinative element of copyright infringement. In fact, intent in a copyright infringement claim is not a part of the analysis. This article further highlights the misconception.

Section 504(c)(2) of the 1976 Copyright Act provides for an “innocent intent” response to claims of copyright infringement. Its use does not preclude the defendant from being found in violation of copyright infringement, but if found in violation, it allows the court flexibility to reduce statutory damages below the minimum. It is important to note however that proving innocent intent on the part of the defendant is not easy. The Defendant must show that they did not know and that they should not have known that their conduct constituted an infringement. The Defendant’s belief must be both in good faith and reasonable.

A few examples of where “innocent intent” may be found are: 1. Defendant’s work is based upon an infringing work furnished by a third party; and 2. Defendant consciously and intentionally copies from the plaintiff’s work, with a good faith belief that the conduct is not infringing.

Cite: Innocent Infringement – The IT Law Wiki