legal
Five Questions Asked and Answered for Legal Technology News
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
A Civil Justice System With No Trials
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This article was first published in the Texas Bar Journal‘s December 2013 issue. — Ed.
The steady erosion of the American trial is our dirty little secret. A majority of the American public might be surprised to learn that there is indisputable statistical evidence that the number of jury and non-jury trials in our country is, and has been, sharply declining, both in absolute and relative terms.1 For example, in 2010, only 2,154 jury trials were commenced in federal district courts, which means, on average, Article III judges tried fewer than four civil jury trials that year. While jury trials in federal court obviously have declined, the decline in bench trials has been steadier and steeper.2 Even though the number of lawyers continues to increase, the number of trials is still decreasing.3
Nor is the decline in the number of cases tried due to a reduction in case filings. To the contrary, both civil case filings and dispositions actually have increased five-fold in the federal courts during the same time that the number of trials—both the rate of trials as well as the absolute number—has diminished substantially.4
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What do these trends portend for the future? They mean that, despite its historical importance and value, we are slowly but surely losing one of our most precious institutions—a trial by jury or even any trial at all. James Madison, the drafter of the Seventh Amendment, would be puzzled by how we allowed this to happen, given his view that “[t]rial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature.”7
When a Witness Has Selective Memory
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Some witnesses have a crystal clear memory about events unfavorable to your client, but express sweeping memory loss on other contemporaneous events. Here’s how to attack such selective memory.
The following line of questioning can be used in both criminal and civil cases. Even if it doesn’t get concessions from the witness, it will remind the jury of the frequent untrustworthiness of memory.
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
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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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
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.
Trademark vs. Copyright
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.
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The Burgeoning Young Attorney 