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Boston Bombing: Getting Your News From Internet vs. Television or Print

The recent bombing of the Boston Marathon lead to an unprecedented manhunt which shut down a city and drove a nation to watch the events unfold on live tv. But how “live” was it?  BombPhotoNew

If you were to follow the news hashtags on twitter or listen to the police scanner via Ustream, the news came much faster. The difference is that truly “breaking” events, like any sudden tragedy, involve unexpected turns and, along the way, mis-steps and bad information.  Your job, even as a (passive) reader or listener, is to use good judgment.

The Boston Marathon and Faster Breaking News” was published in the June 2013 Palm Beach Bar Bulletin and covers the difference between following breaking news on 24 hour news channels versus finding “raw” feeds on YouTube, social media, and other streams of information.

Florida Adds New Teen (Anti) Sexting Law — Here Are All of the Official Documents

There has been a rush of news stories about Florida’s new anti-sexting law which went into effect October 1, 2011.  Unfortunately, much of the coverage is inconsistent:  for example, CNN describes the new law as “easing” the penalties for this type of lewd behavior. The Sun Sentinel/Palm Beach Post simply pointed out that the new law now specifically refers to “sexting” and makes it a crime (but doesn’t clarify that, previously, sexting was a crime with potentially harsher penalties under more general statutes).  

Historically, the bill was proposed in December 2010, voted on in the House and Senate without a single “nay” vote, and signed by the Governor in June.  The statute creates new law, Florida Statute 847.0146.  Few, if any, of the news reports provides the news statute number which hampers finding the original text.  As of this writing, Florida’s Online Sunshine is not updated with the new law.  In short, it is hard to find the new law.

But no worries…

a good summary of the SB is here.

The history of the bill(s) is here.

The House Bill Analysis is here (provides the background analysis of the bill).

And the bill/law is here.

Will Your Law Firm Accept Bitcoin?

The concept of bitcoin, a virtual online currency, has been in the news in 2011.  The good news is that it has been somewhat stable, received media attention, and survived an attempted hack (arguably better than major corporations and some nations).  The bad news is that it remains a shadow-currency with no backing and some inherent risk.  But there are a handful of firms reportedly accepting bitcoin.  Will you?

Read the September 2011 article, “Will Your Law Firm Accept Bitcoin?” from the Palm Beach Bar Bulletin.

The debate continues in the New York Times and other places

The Woes of Citing Wikipedia in Court Pleadings

In a federal court case out of Kentucky, defense counsel reportedly cribbed portions of the brief from… Wikipedia.  And then from a Federal Judicial Handbook.  Both times without proper citation.

Before getting to the orders, we note the case has the narrowest connection to Florida.

In a February 2011 order, the court wrote:

The court notes here that defense counsel appears to have cobbled much of his statementof the law governing ineffective assistance of counsel claims by cutting and pasting, withoutcitation, from the Wikipedia web site. Compare Supplemental to Motion for New Trial (DN 199)at 18–19 with http://en.wikipedia.org/wiki/Strickland_v._Washington (last visited Feb. 9, 2011).The court reminds counsel that such cutting and pasting, without attribution, is plagiarism. Thecourt also brings to counsel’s attention Rule 8.4 of the Kentucky Rules of Professional Conduct,which states that it is professional misconduct for an attorney to “engage in conduct involvingdishonesty, fraud, deceit or misrepresentation.” SCR 3.130(c). See also In re Burghoff, 374 B.R.681 (Bankr. N.D. Iowa 2007) (holding that counsel’s plagiarism violated identical provision ofIowa Rules of Professional Conduct). Finally, the court reminds counsel that Wikipedia is not an acceptable source of legal authority in the United States District Courts. (emp. added)

Thereafter, in an April 2011 order, the same mischief re-appeared:

As the United States points out, defendant’s counsel has apparently continued with thismotion his practice of copying, without sufficient attribution, substantial portions of other works intohis own. The court noted in its February 9 Memorandum Opinion that defendant’s counsel had cutand pasted a portion of his brief from the web site Wikipedia. It has now come to the attention ofthe court that portions of the defendant’s motion for release pending appeal appear to have beencopied from a Federal Judicial Center handbook on the Bail Reform Act of 1984. Compare Motionfor Release Pending Appeal (DN 244) at 5, 10–11 with DAVID N. ADAIR, JR.,FED. JUDICIAL. CTR.,THE BAIL REFORM ACT OF 1984 39–40, 41–42 (3d ed. 2006). The court reminds counsel that it isinappropriate to repeat, verbatim, substantial portions of other works in a manner that makes suchwork appear to be the brief writer’s own. The court also reminds counsel that the proper way to citequotations of source material is by a direct citation to the source, not through use of a “see also”signal at the end of a lengthy string citation. See THE BLUEBOOK: A UNIFORM SYSTEM OF CITATIONR. 1.2(a) at 54 (Columbia L. Rev. Ass’n et al. eds., 19th ed. 2010) (explaining that no signal is used“when directly quoting an authority,” whereas the “see also” citation is used when “[c]ited authorityconstitutes additional source material that supports the proposition.”).

Keith Lee, at An Associate’s Mind, beat everyone to the Citations-to-Wikipedia debate with this post, where he found instances where Wikipedia was cited as an appropriate source.

While we are crediting our sources, check out this ABA Journal article, which caught our attention.  Make sure you read some of the helpful and creative comments by other readers.  We too have to credit the Legal Writing Prof blog, and its commentators, who provided the cites as well as some insights.

Finally, one person who commented on the ABA Journal article raised this 2008 article from Trial, Courting Wikipedia.

Court Decisions on Googling Jury Members

An interesting article, Voir Dire in the Age of Google, highlights two recent decisions regarding lawyers’ use of internet research during jury selection.  Florida currently has no rules/guidelines for or against counsel’s use of courthouse wireless systems.

In a Missouri case, Johnson v. McCullough, the state operates an online docketing system where lawyers can research the litigation history of jurors.  The opinion held that the lawyers should use reasonable, timely efforts to check that system — even though, in a footnote, the system has recognized limitations.  According to the Voir Dire author, this case suggests that Internet searches by lawyers during voir dire might be “imperative.”

In a New Jersey case, the trial judge held that counsel’s use of a laptop and the courthouse wifi to research jurors during voir dire was “unfair” to the other side, who did not bring his laptop.

The appellate court in Carino v. Muenzen disagreed, noting, “There was no suggestion that counsel’s use of the computer was in any way disruptive. That he had the foresight to bring his laptop computer to court, and defense counsel did not, simply cannot serve as a basis for judicial intervention in the name of “fairness” or maintaining “a level playing field.” The “playing field” was, in fact, already “level” because internet access was open to both counsel, even if only one of them chose to utilize it.”

For more discussion, see other posts on this site and the free, how-to guide, Internet Social Networking Sites for Lawyers.

What Do The Lawyer Rating Internet Sites Say About You?

U.S. News and World Reports recently issued their ranking of law firms (interestingly not in a straight list form, like the school rankings, but broken into sections).  Other sites, ranging from Avvo to Craigslist to RateAPartner.com also include rankings.  Are these useful for clients?  What do they say about lawyers?  Take a look at this month’s law technology article from the Palm Beach Bar Association September 2010 Bulletin, “What Do Internet Rating Sites Say About You?”  Hit the link or look to the right under articles for “2010 Lawyer Rankings.”

Does Your Company Need a Lawyer to Handle Social Media, Twitter and Facebook?

At least one company, Clorox, is looking for a full time, in house lawyer to clean up their social media policies and presence.  Is that necessary?

A marketing person (or even an astute college student) could likely develop and monitor Twitter feeds and a Facebook fan page.  But is that enough?

Developing a social media policy and handling questions about “new” issues (tech, advertising, responses to comments) is a task probably for a lawyer.

For businesses looking to enter the Social Networking sphere, I would recommend a Twitter feed, Facebook fan page, and an announcement on their own webpage (media release is optional).  I would further recommend setting up an automatic Google search for your business name appearing on the Internet as well as routine searches/monitoring of Twitter and Facebook.  Finally, you need a clear social media policy.

This is actually a fairly good task for a lawyer and paralegal working with the client.  The client could develop the content and have the law firm handle the updating and monitoring.  With a cost-effective paralegal on the front line with some concise supervision by counsel, this would be cost effective.  Moreover, it would ensure (a) the corporation has a social media policy, (b) the posts and entries are appropriate and not patently violating policy or laws, and (c) major social networking sites are monitored for defamation, copyright, unfair competition and other issues.

Depending upon the frequency of the posting/monitoring, this likely could be accomplished for a few hundred dollars a month.  A lot of PR firms could run up that tab in a week.  In good hands, this could be transitioned back to the company full time after 6-12 months.

Meanwhile, follow Clorox on Twitter to see how they are doing.  Some basic good advice on cleaning up your Twitter service is here.  Email if you have comments, experiences or questions about lawyers providing social media services.  I’m interested to see who else out there is providing that service.

Can a Lawyer Get a Copy of a Transcript Without Paying Court Reporter? (The Debate Continues)

There is often an unspoken understanding that lawyers who attend hearings which are transcribed need to pay the court reporter to get a copy.

Thus, if there are 10 parties to a lawsuit and everyone wants a copy of a 15-minute hearing transcript, court reporters often take the position that the party ordering the transcript pays an “ordering fee” and all nine other parties then pay lesser, but still pricey, fee for “copies.”  Pricing varies from court reporter to court reporter, but often a “copy” of a transcript is not at the Kinko’s-level copy charges of 5-10 cents per page.  It’s often over $1 per page, perhaps significantly so.stenograph

We touched upon this issue in an earlier post where we discussed posting deposition videos on YouTube (which also skirted the issue of sharing expert depositions).  A subtle theme in that “white paper” at issue in the prior post was that some court reporters lay a claim to transcripts.  Given that court reporters put in long hours in that boring deposition which was meaningful only to you and produce quality work, you can see the reasonable origin of their thinking.  But the law may not be on their side.

The Tenth Circuit Court of Appeal issued an unpublished opinion on this very same issue, specifically a battle over about $4,000 in court reporter fees.  As the court warns, that order is not precedent but simply persuasive for non-party court watchers.  The case is United Transportation Union Local 1745 et al. v. City of Albuquerque.

The case involved an overtime dispute between employees (union) and employer (city).  Of note, that claim is a statutory one which includes a right to attorney’s fees.  During litigation, hearings before a special master occurred and the City order the transcripts.  The plaintiff lawyer did not order a copy.  Instead, he sought to have the court compel the City to file the transcripts so he could pay the clerk of the court regular photocopy charges for the transcript rather than pay a higher fee charged by the court reporter.  That was denied.  He then obtained the transcripts by making a public records request (presumably, these transcripts were not time sensitive).  Clever.  Again, that way he would pay the City for their photocopy charges and avoid paying a higher charge to the reporter.

Bottom line: the court held that the court reporter could not demand a fee under the circumstances.

The court wrote, “We have found no authority to justify requiring plaintiffs… to pay a fee to a court reporter for transcript copy the reporter did not make but, rather, that they legally obtained from another source by independent means.  On the contrary, both broad principles and particular holdings undermine the notion that court reporters may demand a ‘missed fee’ whenever someone obtains a copy of a transcript that can be traced back to an original transcript the reporter had made — and was paid for making — for someone else.”

The court went on to note that a court reporter does not have a copyright since they are not the authors of the transcript.  That said, there was some precedent that a party cannot be compelled to produce transcripts in discovery in the same case.  Also not addressed is whether there might be a contract between the ordering party and the court reporter agreeing that there is no copying allowed… whether filing the transcript would alleviate that concern is unclear.

We’re of mixed minds on this issue, not so much in terms of the strict legal rights but in what is fair under the current market methods.  It seems an unnecessary windfall for a court reporter to charge a “reporter rate” for a transcripts as well as a heightened rate for copies (see the example above, where an original and nine copies are ordered — which could run hundreds of dollars).  That said, would it be “unfair” to have one ordering party and then they fire off nine copies for the other lawyers?  Or would this simply lead court reporters to increase the cost of the ordered copy?

As the 10th Circuit order is not precedent, it certainly will not end the issue.  Lawyers quietly pass these costs along to clients and typically do not want to make waves with friendly court reporters.  But, just as the billable hour is not always a reliable system for lawyer work, the “original/copy” pricing system does not seem a perfect fit for quality court reporter services.

Thanks to the ABA Journal (10th Circuit: Court Reporter Not Entitled to Fee for Copied Transcript) and the Exclusive Rights blog for the great scoop.

For related stories, take a peek at the Court Reporting blog.

California Supreme Court OK’s Employer Videotaping Employee’s Office – and no one cares?

The California Supreme Court issued an August 3 opinion holding that an employer could secretly videotape an employee’s closed office without invading workplace privacy rights — and only a few news agencies mentioned the case by name (about 50 outlets referenced the case generally).  To give you an idea of the short attention, here’s the one page coverage in the L.A. Times.  You would think a state supreme court OK’ing secret videotaping of employees would be an catchy news story..?

The case is Hernandez v. Hillsides, Inc. where an employer secretly placed a wireless videocamera in an employee’s office (which had a door lock and window blinds, which could be closed).  The court held that, while the element of “intrusion” was met, the affirmative defenses to “offensiveness” carried the day.

The defendant is a former orphanage which is now an overnight facility for abused children.  The facility had a computer policy against accessing x-rated sexually explicity websites.  The employer learned that two computers — one in a public area and one in a closed office — were being accessed at night for internet porn viewing.  The employee who used the office often failed to log off at night.  She was never suspected.

The employer, motivated both to stop the porn-viewing AND to catch the person, initially tried to put a camera on the public computer but could not sufficiently hide the computer.  He then placed it in the closed office and swore under oath that the camera was there for three weeks, he never viewed it during normal business hours, he never saw anything invasive, he kept the video camera screen out of reach of other employees, and… he saw nothing.

Also interesting, the court found that there was no requirement that the defendant try alternative, less intrusive methods (although the court excluded that other methods would have worked).

The employee apparently found the camera one day with the red light blinking, the cord plugged in, and the equipment warm to the touch.  She was concerned because she often closed her office door to change or have private conversations.  The court acknowledged, “we appreciate the plaintiffs’ dismay over the discovery of video equipment… nothing we say here is meant to encourage such surveillance measures…”

The case is fact-rich and may, indeed, be so fact-specific that it could be distinguished from other workplace situations.  This opinion should, by no means, be viewed as the “green light” for employers to videotape employees.  That said, especially for California, which we view generally as a plaintiff-favoring jurisdiction, it is remarkable that the court unabashedly relied on the self-serving testimony of the employer — to the point that summary judgment was granted.