Civ Pro 101: “No Trial By Ambush”

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paper glasses

It’s 10:00pm the night before my first binding ADR. I am extremely nervous and anxious, but everything is coming together. My major points are outlined in detail, and with a little luck a defense verdict is attenable. While my client has exposure, there is a high-low agreement in place so our damage is capped. Who wants to lose small when they can win big? I open our electronic filing system to print a few pictures to show the minor damage to plaintiff’s vehicle as a result of the accident. And then I see, “Plaintiff’s Medical Records.” But wait, this is new. I open the document and begin to browse. Right away, I spot records from 2012, but we’ve had an ADR agreement in place since 2010, what are these new records? I continue to peruse. I see a three-day hospital stay in 2012, and then the words that forever changed my night, “lumbar laminectomy surgery in 2014.” My mouth dropped. The entire case has changed.

We have an Independent Medical Examination (IME) from 2009. There was an initial delay in agreeing on the arbitrator, followed by plaintiff counsel’s numerous continuance requests, but no mention of any additional treatment or surgery. This was Civ Pro Ambush 101, and I was in the middle of a full onslaught attack.

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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 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)

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E-Discovery’s Next Big Challenge – ‘BYOD’

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The hot phrase for E-Discovery in 2014 will be “bring your own device” (BYOD). BYOD is a policy that permits employees to bring their own electronic communication devices (smartphones, tablets, computers) to their place of work to access company information. The phrase was first used in a paper by Ballagas et al., at UBICOMP in 2005. By 2011, the term was used frequently in blog articles and conversation.

As BYODs grew in popularity, companies found themselves in need of protocols and procedures to ensure company information was safe. This is how BYOD strategies were created.

Over time, BYODs have become beneficial for both parties. Employers often reimburse the employee for a portion of the device cost, some even going so far as to cover plan fees as well. BYODs enable employers to reduce their training budget since employees are often already familiar with their personal device. Additionally, reports show that BYOD employees feel empowered in their position, which yields greater productivity.

As employee’s personal devices are used more frequently with the employer’s system, the race continues to fully understand and address the legal implications. Gartner, reports that “by 2017, more than half of companies will require their employees to supply their own devices on the job…”

Employers currently have IT restrictions and programs in place to prevent employees from inadvertently releasing confidential information or accessing protected files while using the employer’s devices; however, this is not as simple with BYODs. While the employee may be more productive due to the increase in access, the employer is exposed to greater liability.

The issue now becomes, with so many questions left unanswered, how do employers ensure they do everything necessary to protect confidential information? And, what happens when things do not go as planned such as termination or early departure?

A recent survey by Acronis found that 21% of companies “perform remote wipes when an employee quits or is terminated.” In my opinion, this is a huge problem for BYOD growth. According to the Wall Street Journal, the most common complaint the nonprofit National Workrights Institute receives from workers is phone wiping — companies remotely clearing out the contents of personal smartphones that employees sometimes use for work purposes. One employer even complained of losing photos of a family member that had passed when the company wiped their device.

While the future of BYODs appear strong, the manner in which companies adopt strategies moving forward will be key. The most prudent course of action is for companies to invest money into the development of mobile application programs. While the initial investment may be substantial, over time it will be extremely advantageous. This strategy would prevent companies from drastic routes, such as wiping an employee’s device upon termination or early departure. Instead, the employer could simply restrict the access of the employee’s device to the application. Similar strategies could also be used to adjust restrictions as best practices further develop. This would allow companies with BYOD policies to adapt quickly.

The future of BYODs remains to be seen for now, but the best advice for an employee is to have a clear understanding of the synching guidelines and rules. Employees are encouraged to back up their device often, without the companies confidential information so that in the event your employer wipes your device, all your information will not be lost.

Key sources: – The Evolution of BYODYes Your Company can Wipe Your DeviceBYOD Is the No. 1 E-Discovery Challenge for 2014

Should Rap Lyrics Be Admissible Evidence?

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It seems hard to justify the use of lyrics like this as anything other than a cynical attempt to influence the jury with what is likely unfair character assassination. Any “gangster rap” artist is going to have lyrics in their songs that read like the manifesto of a criminal. That, however, does not make that person a criminal. Music is art, after all, and nobody goes around suggesting that Gwar actually wants to eat your children, that Martin Scorsese is part of the mob, or that John Carmack murders uber-demons in his spare time. Gangster rap has grown up and been commercialized so that it’s as authentic as Kraft American Singles cheese and mostly as palatable. Some gangster rappers are as “gangster” as the teenage surburbanite children who listen to it so faithfully. In the case of Skinner, the other evidence used against him was testimony by witnesses that told more stories than Stephen King. Still, he was convicted by the jury, though that conviction was later overturned.

See, Should Rap Lyrics Be Admissible Evidence?

Five Questions Asked and Answered for Legal Technology News

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Just before Thanksgiving, Ari Kaplan Advisors conducted a flash telephone survey of 26 predominantly administrative professionals from Fortune 500 (or Global 500) companies with knowledge of, and responsibility for, their organization’s electronic discovery protocols and litigation practices. Half of the respondents were either the director of legal operations or the director of electronic discovery. They shared their views on the key trends that are likely to shape e-discovery in 2014, which should be noted before you review product offerings at LegalTech New York from Feb. 4 to 6 at the Hilton New York, 1335 Avenue of Americas, New York, N.Y.

1. Do you anticipate the volume of litigation to change significantly in 2014 and 2015 versus 2013?

Answer: Litigation volumes will increase.

Read more: Five Questions Asked and Answered for LegalTech New York

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.