Thursday, October 31, 2013

Dog Bite Injury Cases and Litigation

Dog bite injury cases are becoming more common when it comes to litigation. People can suffer serious injuries from dog bites, leaving children and adults with physical and even emotional trauma. Ringler Radio host Larry Cohen, along with colleague Brenda MacGregor, and special guest, Attorney Robin Gouveia from the firm d’Oliveira & Associates discuss the seriousness of dog bite injury cases, the use of a structured settlement in these specific cases and how these incidents can be prevented.


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Is Batman Legally Dead?

On this episode of Lawyer2Lawyer, J. Craig Williams chats with Entertainment Lawyer Michael Baroni and superhero-law expert James Daily about the ending of The Dark Knight Rises. Proceed with caution – there are spoilers ahead! The city of Gotham sees Batman die at the end of the film. Does that mean that Bruce Wayne is legally dead, as well? And if so, who gets the batmobiles? Legally speaking, Warner Brothers’ design patent on the batmobile will run out, as will their patent on the story. Will another company fill the role and bring back Batman?

• Baroni has been watching the Batman films since he was a kid and continues to be an enthusiast. Batman fan by night, he works as general counsel for Palace Entertainment by day. He is also a member of the Orange County Bar Association.

• Daily is co-author of the book The Law of Superheroes and the blog Law and Multiverse. Both publications discuss the hypothetical legal ramifications behind comic book characters and their powers. When James isn’t meticulously analyzing the law of comic books and characters, he works in intellectual property and patent law.

Tune in for, what Baroni describes as, the perfect “legal cocktail chatter” on the legalities behind Batman’s death, what he left behind, and the chances of a resurrection of one of America’s most beloved comic-book characters.

Special thanks to our sponsor, Clio.


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DOJ joins suit against US contractor charged with performing background checks

[JURIST] The US Department of Justice (DOJ) [official website] on Wednesday announced [press release] that it joined a lawsuit filed against United States Investigations Services LLC (USIS) [corporate website], the company charged with performing background investigations on potential employees of various federal agencies. The suit before the US District Court for the Middle District of Alabama [official website] was brought by a former USIS employee more than two years ago under the False Claims Act [LII backgrounder] alleging that the...


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Woman And Children Stabbed; Five Die In Brooklyn Attack

Four children were killed in a stabbing attack that took place in Brooklyn Saturday night, New York officials say. Police have taken a person of interest into custody.

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You Call That A Car Chase? Fine, A “Pursuit”

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The Juice should have a separate flavor (check out the “flavors” [categories] on the right-hand side of Legal Juice) for posts like this: “What were you thinking?” You know how super-intelligent people can think 5 steps ahead. Well, not to disparage this gent, but he didn’t get to step 1. As reported by The Baxter Bulletin (Mountain Home, Arkansas)

Bull Shoals police officer David Chatman gave Stephen Lewis [age 47] a simple choice on Friday afternoon: take down a sign Lewis was putting up in Bull Shoals or receive a citation. (Lewis is the owner of Lewis Sign & Neon in Mountain Home.)

You should know that Mr. Lewis was driving a 30-foot-long, 12-foot-high bucket truck!

The incident started when Chatman informed Lewis that the sign he was erecting in Bull Shoals did not have a permit. Because sign owners didn’t have the proper documentation, Chatman told Lewis that the sign had to come down or he would receive a ticket.

Chatman described Lewis as uncooperative, saying he would not produce his driver’s license and would not get out of the truck when Chatman asked him to do so. Lewis eventually did get out of the truck and give his license to the police officer.

“I went and sat in my patrol car to write the citation out,” Chatman said. “At that time, I observed Mr. Lewis get into his truck, put it in drive and take off.”

Now that is a man with a plan.

Chatman informed his dispatcher that he was in pursuit of the large white truck heading east on Arkansas Highway 178. The pursuit was slow, never getting above 45 mph, according to authorities. Officers from Flippin, the Arkansas State Police and the Baxter County Sheriff’s Office headed out to various points in hopes of laying down spike strips.

45 mph? Shoot, even on his beater commuting bicycle, The Juice can almost hit that. Ok, maybe 30, going down a steep hill.

The pursuit ended at the intersection of AR Highway 178 and AR Highway 5 North when officers boxed Lewis in, forcing him to pull over.

Lewis was arrested by Bull Shoals police and taken to the Marion County jail, charged with fleeing and obstructing government operations, plus two additional misdemeanor offenses. He was released Friday night on $855 bond.

Think he’ll get the “proper documentation” next time? Here’s the source, including a photo of the getaway vehicle.


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LawBiz® Legal Pad: Successful Law Firms Are All Alike (Part I)

In the first of this 2-part segment, Ed discusses 5 of 10 characteristics common to all successful law firms.


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Key Appeals Court Returns to Capitol Hill Fight

A key federal appeals court returns to the spotlight this week on Capitol Hill, where Republicans will take aim at the administration's nominations and Democrats will elevate their call for the confirmation of a top lawyer to the bench.


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The Lost Art of the Online Discussion

For many years, we used email and listservs for private and public discussions. Today, the last thing we want to do is add a high-volume email list to our overloaded email inboxes. Yet, we still have the need for discussions of all kinds. What are good ways to have discussions using technology today? In this episode of The Kennedy-Mighell Report, Dennis Kennedy and Tom Mighell discuss today’s options for discussions, how to select the right forum for discussions, and whether we can improve the quality of the discussions we have with others.


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Wednesday, October 30, 2013

Paralegal Writing Skills

Fine tuned writing skills are pivotal to a firm’s success. They affect first impressions through websites, newsletters, client leads, emails or network listings, client representation, legal write ups, and the list goes on. On this edition of The Paralegal Voice, host and paralegal mentor, Vicki Voisin will speak with noted legal writing educator Gary Kinder to discuss how paralegals can improve their writing skills.

Kinder is a lawyer and New York Times bestselling author. He has taught over 1,000 writing programs to prestigious law firms nationwide. His career is dedicated to teaching legal professionals how to write precisely, vividly, concisely and memorably. Kinder channeled years of experience studying superior legal writing and editing into the creation of WordRake, a software designed to help law firms and organizations tighten their prose and become better writers. He also authors a weekly writing tips blog called

Tune in to learn more about the importance of Paralegals’ writing skills, the basics of the Plain Writing Act of 2010 and how it affects paralegals, how to avoid common mistakes, and more.

Special thanks to our sponsor, National Association of Legal Assistants (NALA).


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Child’s Play: What E-Discovery Teams Can Learn from Kindergarteners

Law Technology Now, host and editor-in-chief of ALM’s Law Technology News, Monica Bay joins U.S. Magistrate Judge David J. Waxse, to discuss his Law Technology News article, Child’s Play. Judge Waxse discusses nine ways e-discovery teams can follow the lead of elementary school students and cooperate with their opponents by listening, sharing, compromising and more.


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Innovations in Legal Technology: The Changing Landscape and How to Keep Up.

Adam Ziegler was a practicing attorney for ten years when he decided to leave his partnership at a Boston litigation boutique and become an entrepreneur. He is now co-founder and CEO of Mootus, a platform for open, online-legal argument. Lawyers and law students can open up legal discussion questions to their peers, who must provide the sources they use to validate their responses. “I always wanted something to exist like Mootus,” Ziegler said, “Since it didn’t, I figured I had to try.” Mootus was a success, and the driving force behind his pursuit in advancing legal technology.

• Adam Ziegler began his career as a law clerk for a judge on the U.S. Court of Appeals. He practiced at two large firms before becoming a partner at the aforementioned litigation boutique. Since launching Mootus, he has also started the Boston Meetup group for legal innovators and begun blogging for the site Ziegler’s career focuses on how technology can help practicing lawyers do more, better and faster for their clients.

On this episode of The Legal Toolkit, host Heidi Alexander chats with Ziegler about how to use technology to maintain an efficient legal practice, keep up with legal-tech innovations, and launch a legal technology startup.


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Technology Audits for Your Firm – By Your Clients!

On this edition of The Digital Edge, hosts Sharon Nelson, Esq. and Jim Calloway invite lawyer, friend, and co-presenter Andy Perlman of Suffolk Law School to discuss the new technology audits for lawyers. Kasey D. Flaherty of corporate counsel for Kia Motors developed a technology audit to measure how efficiently lawyers are using technology and determine how much time (and clients’ money) they could be saving. Suffolk University is partnering with Flaherty to enhance and automate the audit. Tune in to hear more about the audit, the partnership with Suffolk, how to get involved, and more.

Andy Perlman is a Suffolk Law School professor and the director of the University’s Institute of Law Practice Technology Innovation. Perlman was the co-chief reporter for the ABA Commission of Ethics 20/20, which successfully implemented changes to the Model Rules of Professional Conduct and related ABA policies to address ethical issues from globalization and technological developments. He also contributes to the blog Legal Ethics Forum.


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Straight From The Hole

It's far easier to wrap your head around torture when it involves the infliction of active pain. That doesn't make passive pain, the infliction of often unbearable psychological punishment, an less torturous. And it happens regularly, and many time arbitrarily, as explained in an op-ed by Wilbert Rideau, who served 44 years for manslaughter in Louisiana.

Before you dismiss Rideau as a killer who deserved whatever he got, bear in mind that stories from the inside aren't told by saints. Every once in a while, a former inmate emerges with the erudition necessary to put into words the world that most of us never knew existed. When this happens, it's a window through which we need to look. Rideau offers a view of solitary confinement, the hole.
I know something about solitary confinement, because I’ve been there. I spent a total of 12 years in various solitary confinement cells. And I can tell you that isolating a human being for years in a barren cell the size of a small bathroom is the cruelest thing you can do to a person.

Deprived of all human contact, you lose your feeling of connectedness to the world. You lose your ability to make small talk, even with the guard who shoves your meal through the slot in the door. You live entirely in your head, for there is nothing else. You talk to yourself, answer yourself. You become paranoid, depressed, sleepless. To ward off madness, you must give your mind something to do. In 1970, I counted the 358 rivets that held my steel cell together, over and over. Every time the walls seemed to be closing in on me, I counted them again, to give my mind something to fasten on to.

Without having been there, it's likely inconceivable to understand what happens to a mind in isolation. Some of us have trouble being alone for an hour, an evening, a day. Add day upon day, year upon year. But not the way it is for us, where we still have access to television or internet, even if there is no other living person around.  No, this is completely different.

But to add insult to injury, don't leap to the assumption that if a prisoner ends up in the hole, he must have done something pretty bad to deserve it.

In a world where authorities exercise absolute power and demand abject obedience, prisoners are almost always going to be on the losing side, and they know it.

The typical inmate doesn’t want trouble. He has little to gain and too much to lose: his job, his visits, his recreation time, his phone privileges, his right to buy tuna, ramen and stale bread at inflated prices in the commissary. The ways even a bystander to the most peaceful protest can be punished are limited only by the imagination of the authorities.

Punishment can be deserved or not. There's no due process in prison. There's no one to complain to about being punished based on a false accusation, a trumped up allegation, a guard pissed off by an attitude. Authorities own the lives of prisoners, and can be as harsh as they want to be, as arbitrary as they feel like. And there isn't a damn thing you can do about it.

Rideau explains that the prison protests in California are an outgrowth of a system run amok and no other means of addressing their grievance.

And yet, sometimes things get so bad that prisoners feel compelled to protest, with work stoppages, riots or hunger strikes. On July 8, some 30,000 inmates in the custody of the California Department of Corrections went on a hunger strike to demand improvements in prison conditions. Their biggest complaint was the runaway use of solitary confinement, the fact that thousands of prisoners are consigned to this cruelty indefinitely, some for decades.

While prisoners are sentenced to incarceration, no judge sentences them to isolation for decades. There is no requirement that any neutral party review the decision to inflict this torture on another human being. It can be imposed for a sound reason or no reason at all. Who is to disagree?  But no matter what the reason or nonreason, to put a person in the hole for years, for decades, is to impose psychological torture of a terrible kind on a human being.  And there is nothing, absolutely nothing, the prisoner can do about it. 

In California, inmates did the only thing left for them to do, protest. Not too many of us care about what happened to "criminals." After all, bad dudes who did bad things to other people. A pox on them. They get what they deserve and their out of sight, out of mind.  But there is good reason to give them just a little bit of though. For one thing, they are still people, and we are still purportedly a civilized society that doesn't condone the needless brutal treatment of people. But if you lack anything remotely resembling empathy, than do it for your own sake:

Why should you be concerned about the inhumane conditions of prolonged solitary confinement, with all the social, emotional and mental deterioration that it entails? Well, every year men from California’s Pelican Bay and other supermax prisons around the nation are released directly from the vacuum of their cells into free society, to live and work among you and your loved ones. As a matter of self-preservation, maybe we should all join the prisoners’ request for rehabilitative opportunities that will improve the mental health of those in solitary.

Go say "hi" to the guy who moved in down the block kids. So what if he spent the last two decades in the hole and seems a bit odd. I'm sure he'll get over it.

© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.



Roberta Gelb on Technology Training

Roberta Gelb, president of Chelsea Office Systems, talks about how trends such as cloud computing and bring your own device (BYOD) have law firms realizing the importance of training in the adoption of new technologies.


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Building an Effective Policy Management Program: Getting Started

This podcast takes a closer look at why a policy on policies, or meta-policy, is the foundation for any effective policy management program and what a strong meta-policy should cover. Learn about the important role that technology can play in enforcing a meta-policy, helping ensure that a policy management program is both effective and sustainable.

The podcast features Lisa Hill, former Senior Business Leader and Corporate Policy Manager at Visa and current Policy Pundit for GRC 20/20 Research / President of Policyscape Consulting and Daniel de Juan, Director of Product Management GRC at Datacert. Together, they discuss best practices and technology for successful policy management.


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LawBiz® Legal Pad: Successful Law Firms are All Alike Part 2

This week, Ed finishes his list of 10 traits that are common to all successful law firms.


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Tuesday, October 29, 2013

Israel agrees to attend UN Human Rights Council review

[JURIST] Israeli Prime Minister Benjamin Netanyahu [BBC profile] announced Sunday that Israel will participate in the UN Human Rights Council (UNHRC) [official website] review [review docket] of its human rights record, ending an 18-month boycott. All members of the UN are expected to undergo this review every four years to assess the state's human rights situation. Israel, which has repeatedly claimed that the council exhibits an anti-Israel bias, would have been the first nation to boycott a review. It is...


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Merger Talks Heat Up; Religious-Discrimination Claims Surge; Nonprofit ‘Diversions’

The AM Roundup: Law Blog rounds up the morning's news.


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Could It Be Satan? Yes, Says Union in Dispute With Law School

Sometimes the devil's in the details. Here's one case where that's not just a cliché but an allegation


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Stolen Laptops Lead to $3M Data Security Breach Settlement

An insurer settles with its customers for breaching their data security.


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Protip: Don't Screw With Old Folks

A squad of 18 deputies in Cook County were very aggressive in trying to collect money from deadbeat dads, using whatever methods they needed to bring these culprits to justice.  When they put a gun to 77-year-old Merien Macon's head, however, they messed with the wrong person. From the Chicago Tribune:

When the unit arrived at the Macons' home, two weeks before Merien's arrest, officers had two outstanding warrants for couple's son, Derrick Macon, then 50, including one for child support. Officers insisted they be allowed into the home, William Macon said.

Because the officers did not have a search warrant, William Macon refused, he said.

William Macon, 83 years old, wasn't to be easily pushed. You gotta love tough old birds. And before anyone gets all bent out of shape about his "derelict" deadbeat son, it turns out that while the team knew all about the outstanding warrants for child support, they somehow missed the order holding that he wasn't the father of the child. But let's not have facts impair a good story.

When the deputies saw Merien drive up to the back of the home, they approached with guns drawn — one pointed at her head as she sat in the car — and pressed her about her son's whereabouts, according to the lawsuit.

"I was really surprised when they walked up with their guns," Merien Macon, a retired clerical worker, said last week. "I was scared. I was shocked. I was surprised."

Macon, who had dropped off her son earlier, told them she didn't know where he was and she did not want to answer questions, [Macon's lawyer, Elizabeth] Kaveny said.

And so the deputies, duly chastised by their overly violent conduct frightening a nice old woman, apologized profusely and left her in peace outraged by her refusal to do as they commanded, decided to teach an old woman a lesson.

At that point, Merien Macon became upset and told the officers she would not speak to them. The officers handcuffed, frisked and arrested Merien Macon on a charge of obstruction of justice.

The officers then took her to a nearby parking lot, where they gave her a phone and told her to call her son and find out where he was.

Merien's husband, William, a retired electrician, called that "a hostage situation," attempting to trade off his wife for his son. The sheriff's office claimed that was not at all the case, and they were just being thoughtful.

The sheriff's office denied attempting to pressure Macon to call her son and said she was moved to the parking lot because her husband had become upset and neighbors were starting to gather.

They didn't want to upset old William by forcing him to watch her cuffed, frisked and with guns pointed at his wife's head. A very sensitive gesture in law enforcement, likely to win a medal at some point.

The Macons sued for what was done to Merien.

Merien Macon was charged with felony obstruction of justice, leading her to file a lawsuit against Sheriff Tom Dart and the officers involved. A Cook County jury recently sided with her, awarding Macon $327,500 and agreeing with her husband that what happened that afternoon went too far.

Frankly, that's a very healthy award, give that most plaintiffs in her situation could hope for a fraction of that at best. But then, picture a jury hearing the testimony in this case, looking at the 77-year-old woman and her loving 83-year-old husband, and pondering the cuffs on her wrists, the hands on her body, the gun at her head, all over a mistaken child support warrant. It doesn't get more sympathetic than this.

"I've seen this type of thing over and over and over," William Macon said. "But when it happens to you it becomes more personal."

Truth. Unless you happen to be knowledgeable about your rights, have the guts to assert them with a gun pointed at your head and, purely by happenstance, a couple of cool codgers, chances aren't good you would end up with a verdict of this magnitude. This makes it an exceptionally good reason to both applaud the Macons, and to care a whole lot about when things like this happen "over and over and over." Because next time it could be you, and it will, without question, become "more personal."

H/T Spencer Neal

© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.


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Paralegal Hiring Trends

On this episode of The Paralegal Voice Charles Volkert, executive director of Robert Half Legal, joins host Vicki Voisin to discuss the future of the paralegal profession, how it’s changing, and specific steps you can take to land your dream job.

Charles Volkert is executive director for Robert Half Legal and co-managing director of Robert Half Legal eDiscovery Services. Robert Half Legal is the premier provider of highly skilled legal professionals for law firms and corporate legal departments; it also offers legal project management and managed review services. Volkert is a noted author, speaker, and former litigator.

Volkert provides valuable advice on how to get noticed in the field, including the importance of a proactive mindset and the need to be flexible.

Special thanks to our sponsor, the National Association of Legal Assistants (NALA).


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Trial With Many F-Bombs, Including On Juror’s Shirt


One might think the f-bomb has the power of an a-bomb, the way folks deal with it. Take the recent case of a judge in New York who was not pleased with the shirt an alternate juror was wearing. Per the New York Post:

The shirt in question, worn by 19-year-old alternate No. 3, Nneka Eneorj, as she sat in the front row of the jury box, caught the judge’s eye just as the defendant was about to take the stand. “WHO THE F[UCK] IS KANYE WEST?” the shirt read, the offending obscenity resting just above the wood veneer rail of the jury box.

Manhattan Supreme Court Justice Thomas Farber ordered the other jurors out of the courtroom — directing Eneorj to stand before his bench.


“Do you think it’s appropriate to wear a shirt that says ‘f—’ on it in my courtroom?” the judge asked, anger in his voice.

Based on the reporting, The Juice is unclear. Did the judge say “f—” or “fuck”? If it was the latter, oh no you din’t! Anyway …

When Eneorj started to protest about having a sweater on — not that it covered the front of the shirt — the judge cut her off, demanding, “You’re excused.” “Sounds like a personal problem,” she sniffed of the judge as she walked out of the courthouse, indignantly.

So she’s already an alternate juror, and is not even given the opportunity to turn her shirt inside out? Oh, and here’s some of the testimony from the case later that day:

Officer David London — caught on surveillance tape delivering a violent, 20-blow baton beating to a prone suspect in an Upper West Side lobby two years ago — let at least a dozen “F-bombs” fly as he recounted what suspect Walter Harvin was purportedly threatening as the blows fell. Among Harvin’s shouts, London told the remaining jurors, were, “You can’t take me,” “I’m gonna f—ing kill you,” and, it’s derivation, “I’m gonna f—ing kill you motherf—er.”

And here’s Ms. Eneorj after leaving the courthouse:

“You will not believe what the f[uck] just happened!” she gabbed into her cell phone, as two news photographers snapped away on the sidewalk outside.

Here’s the source, including a photo.


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Do Theaters Have to Enforce Movie Ratings?

Bars can lose their liquor license for serving kids. But do movie theaters have any obligation to prevent minors from seeing adult movies?


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Monday, October 28, 2013

Hawaii Lawmakers Take Up Gay Marriage

Hawaii lawmakers are making a special trip to the Capitol on Monday to decide whether to legalize gay marriage.


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Tenth Circuit Finds that Jury Must Determine Whether “Notes Are Securities” in a Securities Fraud Action

In United States v. McKye, No. 12-6108, 2013 U.S. App. LEXIS 17297 (10th Cir. Aug. 20, 2013), the United States Court of Appeals for the Tenth Circuit reversed the conviction of Brian William McKye for securities fraud in violation of Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b).  The Tenth Circuit held that in a criminal action for securities fraud, the jury must be permitted to determine whether a “security” actually exists.  The Tenth Circuit held that the United States District Court for the Western District of Oklahoma erred in not leaving this issue for the jury to decide and instead giving the jury an instruction that “notes” are “securities.”

The United States charged McKye with eight counts of securities fraud, in violation of 15 U.S.C. §78j(b), and one count of conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h).  Heritage Estate Services, LLC (“Heritage”), an entity owned or operated by McKye, prepared revocable trusts for its clients.  Clients of Heritage who were unable to afford its trust preparation services were given an option to finance the costs and sign a promissory note agreeing to pay the balance due over a thirty-six-month period (the “trust loan”).  Heritage also marketed certain investment notes titled “Premium 60 Accounts.”  These notes guaranteed an annual return of between 6.5% and 19.275% for five years.  Investors were told their investment notes were “backed by real estate and secured by liens that would be perfected by Global West.”  Witnesses testified that some of the money received from the investment notes were used to pay investors, and Heritage and McKye’s personal and business expenses.

At trial, McKye requested the district court to instruct the jury that they must decide whether the investment notes at issue constituted “securities” under the applicable statutes.  The district court rejected McKye’s request.  It reasoned that “a note [is] considered a security, unless there are certain features to it.”  The district court found that the notes at issue met the definition of “securities” and no evidence was presented to conclude otherwise.  The jury convicted McKye on conspiracy and seven of the eight securities fraud counts.  McKye appealed.

The Tenth Circuit reversed McKye’s conviction, holding that the trial court erred in rejecting McKye’s jury instruction request.  The Tenth Circuit reasoned that under Reves v. Ernst & Young, 494 U.S. 56, 63 (1990), not all “notes” are “securities” and certain factors — e.g., motivation, distribution, expectation and risk — determine whether a “note” is a “security.”  Thus, “the question of whether a note is a security has both factual and legal components” and is not necessarily automatically outside the province of the jury.  However, the presence of a mixed question of law and fact is not sufficient to require a jury instruction.  In relying on United States v. Gaudin, 515 U.S 506, 511-13 (1995), the Tenth Circuit noted that “mixed questions of fact and law must only be submitted to the jury if they implicate an element of the offense.”  An element of securities fraud is the existence of a “security.”  Therefore, since not all notes are securities and the existence of a security is an element of a securities fraud case, the jury should have been instructed to determine whether the investment notes at issue actually constituted “securities.”

The Tenth Circuit disagreed with the government’s argument that the failure to give McKye’s requested jury instruction was harmless error.  McKye presented testimony at trial that there was insurance that ameliorated the risk to investors, which is one of the factors for determining whether a “note” is a “security,” and that the Premium 60 Accounts were partially secured by the trust loans.  This evidence demonstrated that the issue of whether the investment notes constituted “securities” for the purposes of securities fraud was, in fact, contested.

The Tenth Circuit thus makes clear that in an action for securities fraud a jury, and not the court, must determine whether the “notes” at issue constitute “securities.”  The Tenth Circuit reasons that not all “notes” are “securities,” and the presence of a “security” is a necessary element of securities fraud.  It is the responsibility of the party alleging securities fraud to establish all of the elements of securities fraud, including the existence of a security.  Consequently, the court may no longer direct a jury in such cases that the existence of a “note” is per se the existence of a “security.”

For further information, please contact David Geneson at (202) 218-0030, John Stigi at (310) 228-3717 or Mercedes Cook at (213) 617-4190.


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The iPad Practice

Do you use an iPad in your legal practice? On The Un-Billable Hour, host Attorney Rodney Dowell, chats with Tom Mighell, the author of three books about the use of iPads, iPad in One Hour For Lawyers, iPad Apps in One Hour For Lawyers, and soon to be released, iPad in One Hour for Litigators, about the explosive growth of the use of iPads in the legal profession, and Tom’s favorite productivity and entertainment apps for the legal iPad.


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IRS Issues Guidance Regarding Tax Treatment of Married Same-Sex Couples

The recent United States Supreme Court ruling in United States v. Windsor (see prior blog article here) invalidated Section 3 of the Defense of Marriage Act, which had defined marriage as a union between a man and a woman.  The ruling greatly expands the estate and tax planning techniques available for married same-sex couples who live in a state like California that recognizes same-sex marriage.

On August 29, 2013, the Internal Revenue Service (IRS) issued Revenue Ruling 2013-17, which provides technical guidance for the federal tax treatment of married same-sex couples in light of the Windsor decision.  The Revenue Ruling provides the following guidance:

  • Gender neutral terms in the Internal Revenue Code (the “Code) which refer to marital status include individuals in same-sex marriages. Terms such as “spouse”  and “marriage”, include persons in same sex marriages if the couple is lawfully married.  The terms “husband” and “wife” include same-sex spouses.
  • Marital status is based on the laws of the state where marriage was entered into.  The IRS will recognize the marriages of individuals of the same sex who were married in a state that recognizes same-sex marriage, even if the couple lives in a state that does not.
  • The term “marriage” does not include registered domestic partnerships.  This rule applies to same-sex and opposite sex couples.

While this Revenue Ruling may be relied upon for the purpose of filing tax returns, married same-sex couples should consult with their tax advisor regarding whether to file amended or protective income, gift and estate tax returns.  The Revenue Ruling indicates that the IRS intends to issue additional guidance on the application of the Windsor decision to Federal tax administration, including the application of the ruling to employee benefit plans and arrangements.

Even if the Windsor decision does not apply to you, it is important that you review your estate plan in light of the “permanent” transfer tax relief passed by Congress earlier this year.


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Will Accused Boston Marathon Bomber Dzhokhar Tsarnaev Get the Death Penalty?

Dzhokhar Tsarnaev, the surviving brother of the accused for the Boston marathon bombings, has become a face of the media lately. His prosecution and potential sentence raises many questions for both the public and the legal world. Attorneys and co-hosts Craig Williams and Bob Ambrogi join Attorney Jack Cunha and Professor Douglas Berman to discuss the prosecution and trial of the suspect.

• Jack Cunha, of Cunha & Holcomb, is a practicing criminal attorney based in Boston, Massachusetts. A former instructor at Suffolk and Harvard Law Schools, Cunha lectures nationally for various associations and schools such as The National Association of Criminal Defense Attorneys, Harvard Law, and CLE Programs mainly on criminal defense.

• Douglas Berman, Professor of Law at The Ohio State University’s Moritz College of Law, has taught a myriad of courses at Ohio State including criminal law, criminal punishment and sentencing, and the death penalty. He is co-author of a casebook, Sentencing Law and Policy: Cases, Statutes, and Guidelines. He also writes a popular blog titled Sentencing Law and Policy.

Tune in to hear what these experienced professionals have to say as they answer questions such as: Although Massachusetts outlawed the death penalty in 1984, will prosecutors use federal law to seek the death penalty for Tsarnaev? Will the fact that the suspect is only 19 call for mitigation? and more.


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CARRM: The Future of Computer Assisted Review

The ESI Report’s Michele Lange, Attorney and Director of Thought Leadership at Kroll Ontrack invited George Socha and Tom Palladino to discuss The Computer Assisted Review Reference Model (CARRM). This is EDRM’s newest venture which is being designed to make computer assisted review easy to understand.
• George Socha is the president and founder of Socha Consulting LLC, an electronic discovery consulting firm. In 2003 he and Tom Gelbmann launched the Socha-Gelbman Electronic Discovery Survey, now Apersee. and in 2005 they started EDRM. George is an advisor and expert witness who focuses on the full range of eDiscovery activities. His clients include corporations, governmental agencies, legal vertical market software and services providers, investment firms and law firms. Before launching his consulting firm, George spent 16 years as a litigation attorney in private practice.
• Tom Palladino is the President of NightOwl Discovery, a leading national provider of technology-driven corporate discovery management and litigation readiness consulting services. Tom is a certified eDiscovery specialist (CEDS) and has extensive experience in large-scale discovery management, software development and corporate managed services. Tom is active in working groups for EDRM, serves as a guest instructor at the University of Minnesota Law School, teaches frequent CLE courses and has participated in the Sedona Conference. Before joining NightOwl, Tom co-founded Hire Quality, Inc., where he designed and deployed major service programs for Fortune 100 companies including UPS, Bell Atlantic, Southwestern Bell, IKON Office Solutions and MBNA Bank.

Socha and Palladino are some of the contributors of the CARRM. This episode will focus on the development of this new computer assisted review model within the ediscovery industry.


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5 Vital Components to a Successful Custodian Interview

The ESI Report’s Michele Lange, Attorney and Director of Thought Leadership at Kroll Ontrack, looks to two experts from Kroll Ontrack’s Discovery Consulting group: David Meadows, Managing Director, and Dave Canfield, Managing Consultant, as they explore the 5 vital components to a successful custodian interview, and how these interviews impact the world of e-discovery. On the Bits & Bytes Legal Analysis segment, Kroll Ontrack legal correspondent, Alicia J. Smith, highlights the growing influence of social media in e-discovery.


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Pardon Our 100th Interruption

The Kennedy Mighell Report has reached a milestone: Episode 100! As part of the celebration your hosts will bring you today’s legal technology issues in the format of one of their favorite shows: ESPN’s Pardon the Interruption. Hear how technology can make your business more efficient, highlights from the ABA Tech Show, the future of technology for lawyers, and more


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Sunday, October 27, 2013

Twitter: A Sleeping Discovery Giant?

Attorney Daniel Cummins and staff reporter Ben Present discuss the emerging issue of social media law. In this installment, the two discuss the differences between Facebook and Twitter, and whether Twitter posts can be discoverable.


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You’re Not Really Looking For The Sympathy Vote For This, Are You?

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If something bad happens to a candidate, some voters will feel sympathy for him/her, and will vote accordingly. Nevertheless, it’s crass to play the play the sympathy card even in the event of something serious. But this? Not cool. As reported at (Burien, WA):

Campaign signs for Des Moines Municipal Court Judge Veronica Galvan were vandalized twice over the weekend. The signs, placed along Des Moines Memorial Drive, were cut off their stakes with a blade or sharp implement. Galvanʼs signs were initially vandalized sometime Friday evening. The culprit cut one side off each sign, so only half of each sign was left on the stake. A campaign volunteer replaced the damaged signs on Saturday. Then, on Saturday night, the signs were hit again. This time, both sides of the signs were cut off, leaving only the stakes.

Yeah, this is probably the only case of political signs being vandalized.  But what you clearly fail to understand is that this was not any old vandalism. Take it away judge.

Galvan noted that the manner in which the signs were taken down feels threatening. “This is more than a mere knocking down of signs,” said Judge Galvan. “Someone went to extra effort to send a message.”

Really? You’re going there? The message is that they don’t like you! Maybe you put the person in jail. Who knows, but please, don’t pander for votes off of this. Here’s the source.


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Officer Safety and Second Hand Smoke

Via John Wesley Hall at Fourth Amendment, a decision out of the 10th Circuit that puts an end to the pressing question of whether second hand smoke presents a sufficient justification to circumvent the 4th Amendment and enter a home without a warrant.  Lest you think this is too ridiculous to be worthy of consideration, bear in mind this is on appeal, the district court having denied suppression.

In United States v. Mongold, Special Agent Ashley Stephens (who apparently is male) of the Bureau of Alcohol, Tobacco, and Firearms (“ATF”) was investigating Claudia Moore, whom she knew to be a felon from prior dealings, for drug dealing. After conducting observations, she, together with three other agents, went to Moore's apartment to conduct a "knock and talk," since she lacked probable cause to get a warrant.

Aside: For those unaware, a "knock and talk" is a means of circumventing the warrant requirement by relying on submission to the shield, lies, fear and the possibility that the agents might either see or cause something to happen to give rise to an exception to the warrant requirement that would allow them to enter a home. And yes, it's been held to be perfectly lawful since anyone, cop or Fuller Brush salesman, can knock on your door and say "hi." Or scream "police", as the case may be.
According to the testimony, Stephens heard "scurrying and shuffling" inside the apartment upon her knocking on the door, "which immediately caused us concern." A male voice asked who it was, and after he responded "police," there were "loud movements" and a "short delay" before Mongold opened the door. That's when the bad stuff happened.

After the delay, Mr. Mongold, who had been living in the home for several months, opened the door. Agent Stephens smelled marijuana and recognized what he believed were prison tattoos on Mr. Mongold. Agent Stephens asked for Ms. Moore. Mr. Mongold told him that he would go get her and turned to walk to the back of the house to find her. The officers followed him inside even though they did not have permission to enter the house.

Once inside, they saw ammunition. Knowing that Moore was a prior felon, possession of ammunition was a crime, and it went downhill from there. Mongold, Moore and her two adult children subsequently consented to a search of the place, which found drugs and guns. 

The defendant moved to suppress before the district court, based on the initial warrantless entry. The government's argument below was that the smell of marijuana, combined with the "prison tats" on Mongold's arm, suggesting that he too was a felon, created a justifiable fear of officer safety, which allowed for Stephens to enter for a protective sweep. The court below also held the entry justified under exigent circumstances to preserve evidence.

The Circuit wasn't as impressed.  While the court acknowledged that the smell of marijuana is accepted as a basis to believe there is pot inside, it merely gives rise to a belief that it's basic possession of marijuana.

Based on the foregoing, if marijuana possession is the only crime for which the officers in this case had probable cause, the exigency exception for destruction of evidence should not apply because marijuana possession is not a serious crime.

But that wasn't the only argument.  There remained their deep concern for the safety from the smell (yes, I'm being facetious calling it "second hand smoke," because it's unclear whether the smell is smoke or fresh pot, and the opinion really has nothing to do with the second-hand smoke aspect in any event).

At the suppression hearing, Agent Stephens argued that he feared for his and the other officers' safety because the home's owner, Ms. Moore, was a known felon, and he suspected Mr. Mongold was a felon as well, based on his "prison tattoos."

Officer safety is not an alternative ground to affirm because the first element of the test is dispositive. The Government presented no evidence that the officers had "reasonable grounds to believe that there [was] immediate need to protect their lives or others." Before entering the home, the officers had not seen a weapon or any other indication of heightened danger.

Even the use of cool active verbs ("scurrying"), curious descriptors ("loud movements") and expressions of deep concern reflecting both the terrible, life-and-death dangers of conducting a "knock and talk" to circumvent the Constitution, didn't sway the court.  Instead, the court reached the conclusion of remarkably wisdom:

They could most easily have protected the officers' safety by leaving Ms. Moore's home, not by entering it.

An idea so radical, so outlandish, that it never occurred to either the agents or the prosecutors: walk away. While this might make for good fodder to be chiseled into the lintels over courthouses everywhere, the bad news is that the opinion, while persuasive, is not precedential:

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value.

This, of course, means that the next time a second-hand smoke case arises, the district judge may not be willing to adopt such a radical concept as expecting the agents to walk away rather than conduct a warrantless search of a home after smelling marijuana or seeing prison tats, because they're very scary to agents.

And don't discount the possibility that if the odor was of burning pot, the agents would be authorized to break down the door to protect themselves from the second hand smoke. Truth is, this opinion doesn't preclude such a holding at all. It could still happen.





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Essential iPad Apps for Lawyers

Everywhere we go, we see lawyers using iPads. But what are they using them for? There are thousands of Apps available for the iPad - so many that it's hard to know where to begin. Fortunately, Tom Mighell has written a new book called, iPad Apps in One Hour for Lawyers. In this episode, Dennis Kennedy and Tom Mighell discuss the importance of iPad apps for effective use of iPads, Tom's book, and their favorite iPad Apps for lawyers and others.


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Passing the Tech Skills Competency Audit

Casey Flaherty, corporate counsel at Kia Motors America, has gotten a lot of attention recently with a basic technology competency audit he administers to outside law firms and the failing grades lawyers at those firms have received. There has always been an ongoing conversation of what basic technology skills lawyers need. The ABA’s Ethics 2020 recommendation that a basic knowledge of common software techniques be a part of the definition of “competence,” has also shined the spotlight on this issue. In this episode of The Kennedy-Mighell Report, Dennis Kennedy and Tom Mighell discuss Flaherty’s technology audit approach, the responses it has prompted, and how this may or may not change the ways lawyers deal with technology skills. The second half of the episode will cover Apple’s much-rumored “iWatch” and the future of watch technology.


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The iPad for Litigators and Life After Google Reader

Learn why iPads are a valuable resource in the courtroom for their portability, presentation capabilities, and apps catered specifically to case intake, jury verdict, and more. Hosts Dennis and Tom elaborate further to outline why litigators especially can benefit from an iPad and Tom’s upcoming book iPad in One Hour for Litigators. The second half of the show mourns the approaching death of Google Reader, the significance and utility of an RSS reader, and what other options are out there.


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Lacking Lethal Injection Drugs, States Find Untested Backups

States are turning to new drugs for executions because of a supply shortage that's been years in the making. Now legal battles are springing up, questioning whether the new alternatives violate inmates' rights.

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Special Masters in E-Discovery

In this October edition of Digital Detectives, co-hosts Sharon D. Nelson, Esq., President of Sensei Enterprises, Inc. and John W. Simek, Vice President of Sensei Enterprises, join returning guest, attorney Craig Ball, to talk about special masters in e-discovery. Craig describes how an ESI special master gets involved in a case, what a special master does to fix broken discovery efforts and how to select an ESI special master.


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Saturday, October 26, 2013

Second Circuit Clarifies Scope of SLUSA Preclusion

In Trezziova v. Kohn (In re Herald, Primeo & Thema Sec. Litig.), No. 12-156-cv, 2013 U.S. App. LEXIS 19132 (2d Cir. Sept. 16, 2013), the United States Court of Appeals for the Second Circuit affirmed the dismissal of state law class action claims alleging, among other claims, that defendants had aided and abetted Bernard Madoff Investment Securities’ (“BMIS”) Ponzi scheme.  Plaintiffs were investors in the defendant investment companies and funds, which had, in turn, invested large sums of money in BMIS.  The Court held the claims were precluded by the Securities Litigation Uniform Standards Act of 1998 (“SLUSA”), 15 U.S.C. § 78bb(f), even though plaintiffs did not actually purchase any “covered securities” under SLUSA and did not style their claims as securities fraud allegations.  The fact that plaintiffs’ allegations centered on purported sales of covered securities by BMIS was sufficient to trigger SLUSA.

Plaintiffs brought various state law claims against defendants JPMorgan Chase & Co. and Bank of New York Mellon, both of which had provided banking services to BMIS.  Plaintiffs alleged that the banks had known about BMIS’ securities fraud, chosen not to report the fraud, and instead assisted BMIS in the commission of the fraud.  The claims, which included claims for civil conspiracy, aiding and abetting, conversion, breaches of fiduciary duty and unjust enrichment, were all purported state law claims.  Defendants moved to dismiss.

The United States District Court for the Southern District of New York granted the motion to dismiss, holding that the claims were precluded by SLUSA.  SLUSA generally bars plaintiffs from bringing actions based on state common or statutory law on behalf of more than fifty people “in connection with the purchase or sale of a covered security.”  SLUSA adopts the definition of “covered security” in the Securities Act of 1933 as one that is “listed, or authorized for listing, on [the national exchanges]” or one that is “issued by an investment company that is registered . . . under the Investment Company Act of 1940.”  Though plaintiffs’ claims sprung from their investments in what were actually “foreign feeder funds” and not “covered securities,” the court held that SLUSA nevertheless applied because BMIS’ investment strategy involved the purported purchase and sale of “covered securities.”  Since plaintiffs’ claims were “integrally tied” to BMIS’ fraud, the district court held they were precluded under SLUSA.

The Second Circuit affirmed, agreeing with the district court on two key issues.  First, the Court affirmed the district court’s holding that the fact that BMIS had only pretended to execute trades of covered securities, and had actually invested plaintiffs’ money in foreign feeder funds, did not prevent plaintiffs’ claims from being precluded by SLUSA.  Defendants’ potential liability, the Court observed, hinged not on the investment in the feeder funds, but on defendants’ alleged assistance of BMIS’ Ponzi scheme, which involved purported investments in “covered securities.”  Next, the Court affirmed that plaintiffs’ allegations were precluded by SLUSA even though plaintiffs had not framed their allegations as securities fraud claims.  The Court noted that SLUSA requires it to look past the pleadings to the realities of the underlying claims.  SLUSA does not allow plaintiffs to avoid preclusion merely by omitting references to federal securities laws.  Because the complaints essentially alleged defendants were complicit in BMIS’ securities fraud, and were thus integrally tied to that securities fraud, the allegations were “more than sufficient” to trigger SLUSA preclusion.

The Second Circuit’s decision here clarifies the scope of actions that fall within the ambit of, and may be precluded by, SLUSA.  Plaintiffs attempting to bring securities fraud class actions will not be able to avoid SLUSA preclusion by alleging only state law claims.  This decision brings courts closer to effectuating the purpose of SLUSA, and requiring plaintiffs bringing securities fraud class actions to comply with the heightened pleading requirements of the Private Securities Litigation Reform Act of 1995.

For further information, please contact John Stigi at (310) 228-3717 or Robin Achen at (213) 617-5579.


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The iPad for Litigators and Life After Google Reader

Learn why iPads are a valuable resource in the courtroom for their portability, presentation capabilities, and apps catered specifically to case intake, jury verdict, and more. Hosts Dennis and Tom elaborate further to outline why litigators especially can benefit from an iPad and Tom’s upcoming book iPad in One Hour for Litigators. The second half of the show mourns the approaching death of Google Reader, the significance and utility of an RSS reader, and what other options are out there.


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Pardon Our 100th Interruption

The Kennedy Mighell Report has reached a milestone: Episode 100! As part of the celebration your hosts will bring you today’s legal technology issues in the format of one of their favorite shows: ESPN’s Pardon the Interruption. Hear how technology can make your business more efficient, highlights from the ABA Tech Show, the future of technology for lawyers, and more


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Class Certified in 'No-Poach' Suit Against Tech Giants

In a closely watched case, a federal judge in California has certified a class of more than 60,000 skilled workers who accuse Adobe Systems, Apple, Google and Intel of illegally suppressing their pay through a conspiracy not to compete for each other's employees.


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Bombs Away: Erasing Information in the Big Data Era

In this April edition of Law Technology Now, host Monica Bay, editor-in-chief of ALM’s Law Technology News, joins Barclay Blair, founder of ViaLumina an information governing consulting service, to talk about the idea of digital data being erased. We know that simply putting it in the trash can on our desktop isn’t enough, but can it be done? They will also discuss mobile apps which claim they immediately erase data like Snapchat: Does this data actually self destruct? And is using apps like this a liability in court because it looks like there is something to hide?



Top Apps for Paralegals

On this edition of The Paralegal Voice, Vicki Voisin invites Kathy Miller, ACP, CAS and Karen Trumpower, ACP to discuss legal apps for paralegals. Miller and Trumpower presented 90 Apps in 90 Minutes at the NALA Convention in July and have done the research and tests to determine the best apps for successful paralegals. The app experts break down and organize their top apps into seven categories: fax/scan, publications, research, note-taking, PDF and PDF-signature, security, games, and miscellaneous. They also take into account the platforms each app is compatible with (iOS vs. Android) and price.

Tune in to hear what Miller and Trumpower consider the best apps for paralegals, how to use them, and how to stay updated on app technology.

Special thanks to our sponsor, NALA.


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Lawyer2Lawyer: A Retrospective

We started Lawyer2Lawyer back in August of 2005 with the idea of providing quality content and discussion of timely legal news and information for the legal profession with regularly published podcasts and often videos too. Since our inception, we have set the precedent for legal podcasting in numbers of listeners globally, but more importantly, we’ve been one of the leaders in great content - our priority over the past 7 years. On this final edition of Lawyer2Lawyer, hosts Bob Ambrogi and Craig Williams, talk about their personal experiences over the years with this legal podcast.


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What Latinos Want From Immigration Reform

President Obama recently announced that he would be turning his attention to immigration reform. But what's a realistic expectation, and what are immigrant communities really hoping for? Host Michel Martin talks with Fernando Espuelas of Univision, and Eduardo De Souza, a soccer coach at Longwood University.

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Friday, October 25, 2013

Ringler's Top Ten on Structured Settlements

Even though structured settlements have been around a long time, false impressions about products and services still remain. There are a lot of moving parts involved in a claim’s settlement, and lots of financial and legal information swirling around the process. In this podcast, Ringler Radio host Larry Cohen joins colleagues, Jim Early and Bill Wakelee, to debunk the misconceptions sometimes seen in the structured settlement industry, and clarify through their top ten on structured settlements.


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The Lost Art of the Online Discussion

For many years, we used email and listservs for private and public discussions. Today, the last thing we want to do is add a high-volume email list to our overloaded email inboxes. Yet, we still have the need for discussions of all kinds. What are good ways to have discussions using technology today? In this episode of The Kennedy-Mighell Report, Dennis Kennedy and Tom Mighell discuss today’s options for discussions, how to select the right forum for discussions, and whether we can improve the quality of the discussions we have with others.


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I’ll Tumblr for Ya

While Facebook, LinkedIn and Twitter draw the lion’s share of social media attention, there are many other social media platforms available to lawyers. Tumblr, Pinterest and Foursquare are just a few of the alternatives. How can you evaluate which of these tools might be worthy of your time and effort? On The Kennedy-Mighell Report, Dennis Kennedy and Tom Mighell survey the lesser-traveled landscapes of the social media world, identify some tools that might make sense to some lawyers in some scenarios, and speculate about the future of specialized social media tools.


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Cyber Threats to Law Firms and Businesses: How Do We Defend Ourselves?

Digital Detectives hosts Sharon D. Nelson, Esq. and John W. Simek, president and vice president of Sensei Enterprises, Inc., welcome Stewart Baker of Steptoe & Johnson to discuss the 2013 Verizon Data Breach Report, cybersecurity legislation, and more.

• Stewart Baker has been described by The Washington Post as “one of the most techno-literate lawyers around.” His long list of experience includes serving as the first Assistant Secretary for Policy for the Department of Homeland Security and the General Counsel of the National Security Agency. His current law practice covers homeland security matters, travel and foreign investment regulation, international trade, cybersecurity, and data protection.

Tune in to hear Baker explain the difference between active defense against cyber-defense and vigilantism, the meaning of the Attribution Revolution, and what President Obama Cybersecurity Executive Order means and how it may be amplified by pending legislation.


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