Investigate THIS !

~ when legal research goes awry ~

2005-09-13T22:46:00.000-07:00

The Taubman Center for Public Policy has just released its 2005 report on State and Federal E-Government, an analysis of 1,620 state and federal government sites. This annual study of the features, advances and limitations of the websites had some especially valuable conclusions related to the Federal courts and legal research.

One of the disturbing aspects of the study reports that federal government websites have a number of quality control issues, such as broken links, missing titles and missing keywords. If your legal research at the court sites fails you, this may be why.

Using the random sample of 5,000 pages from each federal agency, the jurisdiction with the largest number of missing titles was the 6th Circuit Court of Appeals 2,710), followed by the 2nd Circuit Court of Appeals (2,023), 9th Circuit Court of Appeals (1,472), the 11th Circuit Court of Appeals (1,418), and the 4th Circuit Court of Appeals (1,375).

The site with the largest number of missing keywords was the National Labor Relations Board (5,003), followed by the 9th Circuit Court of Appeals (5,001), and the 1st Circuit Court of Appeals.

The award for the largest number of missing descriptions goes to the 9th Circuit Court of Appeals.

The site with the largest number of broken links: 5th Circuit Court of Appeals (1,641).

~ getting good background on your employees ~

2005-08-24T09:02:00.000-07:00

Just what is an employment background check anyway? Federal law circumscribes the extent and nature of background information that can be gathered on employees by outside companies. In The Truth Behind Standard Criminal Checks, the author offers a good, brief overview of the intersection of the Fair Credit Reporting Act (FCRA) restrictions on developing criminal history, the limitations inherent in the data and data providers, with the necessity to pursue less conventional means, such as a review of Internet-derived information.

~ California Supreme Court answers trial by jury issue ~

2005-08-20T13:57:00.000-07:00

It wouldn't portend a trusting relationship if, at the outset, your business partner asked you to sign away your right to a jury trial. And now the California Supreme Court agrees. Read the article

~ background screening - add blogging to the checklist ~

2005-08-03T11:05:00.000-07:00

Changes in technology may add a twist to considerations of employment background investigations. How about adding to the mix a review of your employee's blogging history? You may want to know if your potential new hire indiscreetly spouted off about their prior employer. Read on

~ internet information brokers could get attorneys into hot water ~

2005-07-13T20:02:00.000-07:00

The Electronic Privacy Information Center (EPIC) has filed a complaint with the Federal Trade Commission seeking an investigation into the web-based businesses that sell telephone toll records. There is no explicit policy or statute violated when parties sell or obtain telephone call logs without a subpoena. In fact, the U. S. Court Of Appeals, 6th Circuit ruled in favor of the defendants in a case in which an information broker (Action Research Group, Mike Lee), hired by a private investigator, impersonated a telephone company subscriber (Clemons) and obtained that subscriber's toll numbers via fax.[2003 U.S. App. LEXIS 23547,*;82 Fed. Appx. 436ROGER CLEMONS, Plaintiff-Appellant, v. RANDALL WALLER, A ACTION AUTOLINER d/b/a ACTION RESEARCH GROUP, KARL HALL, and MERIDIAN RESOURCES & INVESTIGATIONS, Defendants-Appellees. No. 02-5342] Read at LexisOne (free registration required)

In one of many news stories, EPIC suggests that they have their eyes on attorneys who may be buying this information on the Internet, not just the brokers.

Hoofnagle said EPIC also plans to file complaints with state attorneys general, state regulators of private investigators and attorney bar association ethical committees, because it believes law firms are among the most frequent clients of the online investigation firms.

I've cautioned clients [Law Technology News, July 2005, Cut to the Chase: A primer for using public records databases] (free registration) about purchasing any data obtained by a click of the mouse, not just in order to avoid grey areas of the law, but because you'll waste money on information that is usually stale or inaccurate. And don't even think it meets any standard of due diligence.

Email me for a pdf of the article.

~ washington state appellate court decision on due diligence in locating heirs to an estate ~

2005-07-07T16:22:00.000-07:00

Not surprisingly, the Court of Appeals upheld the trial court ruling that due diligence must be conducted to locate beneficiaries. Court of Appeals Division I, State of Washington, Docket Number: 54647-3-I, Title of Case: In re the estate of: Martin Little, File Date: 06/06/2005.

We agree with the trial court. Allocating the burden of proof to the executor is more consistent with the executor's role as an 'officer of the court and a fiduciary for the heirs'. Hesthagen, 78 Wn.2d at 941. Because the executor has the fiduciary duty to identify and notify those who are statutorily entitled to receive notice, it logically follows that in the event of a later challenge based on lack of notice, the executor will have the burden of showing that he used reasonable diligence to discharge his duty. Otherwise, and especially where the executor of an estate has a beneficial interest in it, the sense of fiduciary duty might easily give way to a temptation to conduct a superficial search or none at all.11 We conclude that evidence showing how Vannoy could have located the nieces and nephews was not a prerequisite for reopening the estate for lack of notice to them. Vannoy, whose 'best presentation' below included no evidence that he was diligent, was correctly found to have breached his duty to identify and notify these heirs of Martin Little. As a consequence, the decisions made in the probate are void as to these heirs. The court did not err in ordering the reopening of the estate. Affirmed. Vannoy's request for attorney fees on appeal is denied.

~ michigan appellate digest - by major topics ~

2005-07-04T18:18:00.000-07:00

The Michigan Court of Appeals website has this shortcut topical list with links to case summaries.

~ what's bloggin' on Justice O'Connor and the future of the supreme court ~

2005-07-01T10:42:00.000-07:00

Jurist claims President Bush will wait until after July 8 to offer an O'Connor replacement. O'Connor dismisses her importance as a swing vote on the Court suggesting she was just "open to persuasion", according to this Washington Post story.

Not as surprising a move as it seems, at least to the White House, which was circulating a list of possible female candidates last week. I think you can surmise who might be hot based on these biographical summaries. And then...the nomination process...

balkanization points to the bitter fight ahead, more contentious because of O'Connor's pivotal role on the Court. The problems inherent in a Gonzales nomination and Supreme Court statistics you don't need to know are all at SouthernAppeal.

Supreme Court

~ give your client the experience of her life ~

2005-06-26T16:21:00.000-07:00

Small Firm Business has a marketing article, How to Really Set Yourself Apart From the Competition, which is a bit thin in ideas, but one important message is underscored: as a provider of services you are selling an experience. The client lands, or perhaps stays, on your doorstep, not because you're the best in the field but because of the quality of your customer service. It's obvious but a good reminder.

~ missouri employers - take note ~

2005-06-26T13:14:00.000-07:00

A recently enacted Missouri statute places explicit requirements on employers when requesting employee social security numbers.

Employers may avoid running afoul of the state statute by asking job hunters to send their applications — with Social Security numbers — by fax or postal service.
Read the article [free registration required; bypass with bobross@pbs.org/happy3]

~ expand your autopsy knowledge ~

2005-06-19T17:11:00.000-07:00

Stop in for a virtual visit to an autopsy and find out what you didn't learn in law school. Not safe for viewing before lunch. Or after.

~ indiana court recognizes a google search as part of due diligence ~

2005-06-19T16:33:00.000-07:00

The notion of due diligence in locating a party with an interest in the matter being litigated is somewhat inspecific. InternetCases reports on the Indiana Appellate Opinion that identified a Google search as a component of a diligent search.

Bays does not necessarily establish the minimum that should be required for a showing of due diligence in locating a missing litigant. We do note that there is no evidence in this case of a public records or internet search for Groce or the use of a skip-trace service to find him. In fact, we discovered, upon entering "Joe Groce Indiana" into the Google™ search engine, an address for Groce that differed from either address used in this case, as well as an apparent obituary for Groce’s mother that listed numerous surviving relatives who might have known his whereabouts. Link to the opinion

~ settle down -but not so fast ~

2005-06-09T17:12:00.000-07:00

The ABA Journal reports on a possible case of an arm-twisting settlement in the Los Angeles County Archdiocese sex abuse cases.

In an appeal by the church’s insurers, the California Court of Appeal in Los Angeles vacated the settlement judge’s written orders. Noting that it hadn’t been informed of the settlement, the court said the judge had “exceeded his authority by making factual findings and otherwise preparing a coercive order in violation of the fundamental principles governing mediation proceedings.” Travelers Casualty and Surety Co. v. Superior Court, 126 Cal. App. 4th 1131 (Feb. 15).

The ADR folks argue for cooperation rather than coercion and make a case for incorporating this approach into the code regulating judicial ethics.

~ state by state guide to medical statutes of limitation ~

2005-06-09T15:46:00.000-07:00

The National Conference of State Legislatures recently revised their chart, STATE MEDICAL MALPRACTICE TORT LAWS, which lists relevant code citations related to:
Statutes of Limitation
Limits on Damage Awards
Pre-trial Screening and Arbitration
Joint and Several Liability
Expert Witnesses

~ get thee to the nearest shredder ~

2005-06-03T14:54:00.000-07:00

It seems that this is one of those words of caution and matter of law that we can't reiterate too frequently: institute a document destruction policy and implement it consistently.

A new federal rule that took effect Wednesday requires all businesses and individuals to destroy private consumer information obtained from credit bureaus and other information providers in determining whether to grant credit, hire employees or rent an apartment. Read an article

And from the geek corner. Companies are finding a niche in document destruction.

~ online legal dictionary helps you find, define and substitute words and phrases ~

2005-05-18T22:22:00.000-07:00

The People's Law Dictionary is now free and searchable online. Search computing, medical and financial terms also.

~ more tips for those with memory problems ~

2005-05-18T15:33:00.000-07:00

Firms Shorten Monikers to Give Them a Marketing Edge

~ too much knowledge can lead to imprecise memory ~

2005-05-17T13:16:00.000-07:00

The less you know, the better you remember certain details. Accuracy in recall can be hampered by the intelligent adult tendency to categorize.

"There seems to be an inverse relationship between the ability to categorize and the ability to remember details," Sloutsky said. "If you're very attentive to details - like the children in this experiment - you can't create categories. But without ignoring the details, we would be unable to categorize."
First, they found that there is a gradual decrease in recognition memory from children to adults - there is no large jump that occurs as people approach adulthood. Secondly, the study shows that it is "lack of knowledge - not something specific to children - that helps make recognition memory more accurate." That's why adults had accurate, child-like memory in the experiment in which they were tested using the imaginary animals. Read the article

This may be an argument to select jurors whose purported knowledge is far afield from the case facts in order to impress upon them your viewpoint!

~ law journal articles on the internet ~

2005-05-14T17:40:00.000-07:00

Full text search of law journals on the Internet.

~ Counting Questions: Adding Up High Court Outcomes ~

2005-05-12T10:26:00.000-07:00

It seems that the scientific method can be applied to detecting the outcome of Supreme Court decisions. Perhaps, lowly observers of the Court's oral arguments may decipher the inner workings of the Justices' minds before they do.

In a new study entitled "The Illusion of Devil's Advocacy: How the Justices of the Supreme Court Foreshadow their Decisions During Oral Argument," Sarah Shullman came up with a surprisingly simple and accurate way of predicting outcomes based on the number and tenor of oral argument questions by justices.

After seven of the 10 cases she studied were decided, Shullman looked for correlations -- and found them. In all of the cases, the justices in aggregate asked more questions, and more hostile questions, of the party that ultimately lost the case.

Shullman acknowledges that her sample was small, but the methodology has already been tested since she did her study. John Roberts Jr., one of the masters of the trade before taking the bench in 2003, used her theory for a talk he gave on oral advocacy before the Supreme Court Historical Society last year. Picking 14 oral arguments from the 1980 term and 14 from the 2003 term, Roberts found that in fact the most questions went to the losing party in 24 of the 28 cases -- an 86 percent rate of accuracy. "The secret to successful advocacy," Roberts deadpanned in conclusion, "is simply to get the Court to ask your opponent more questions."

If only trial courts allowed jurors to ask questions...

~ legal tips between meetings ~

2005-05-09T22:05:00.000-07:00

The Texas BAR provides the Ten Minute Mentor, a collection of topical presentations in audio or video. This is quickie MCLE. Scroll through the presentations, organized by theme, or search by keyword.

Here's an example presentation.

How to Obtain Health Information in Connection with Litigation and in Compliance with HIPAA by Cheryl Camin (1/05) Gardere Wynne Sewell LLP

~ police departments don't follow witness identification guidelines ~

2005-05-09T19:02:00.000-07:00

Mistaken eyewitness identifications helped convict nearly 80 percent of the 157 people nationwide who eventually were exonerated through DNA testing carried out by the New York-based Innocence Project. Other studies also have shown false eyewitness i.d.'s have led to unjust convictions.

Psychological experts on witness issues have found that inadequate, outmoded police procedures are a major part of the problem. Read all about it

~ find your way around the world ~

2005-05-09T17:26:00.000-07:00

Time, date and telephone dialing codes for any city can be found at timeanddate.com.

~ find gold, cultivate clients, become a thought-leader or just make friends - the possibilities in legal marketing ~

2005-05-05T22:22:00.000-07:00

Legal marketing on the Internet is flying high in the form of the web log hosted by attorneys of all specialties. Like any dedicated marketing effort maintaining a blog is sometimes more than any hard working professional has the time to do. But if you're so inclined, read this starter article by one of the best known legal blawgers.

Blogging and the Bottom Line
Why blogging and syndication are the hottest tools in legal marketing

~ private investigators assist the public with access to personal information - listen to the NPR report: Private Eyes Cramped by Privacy Breach ~

2005-05-01T16:49:00.000-07:00

Larry Abramson has a report today on the NPR radio program, All Things Considered, that features interviews with several investigators (including me) highlighting the detrimental effect on the public of the new policy implemented by Choicepoint that masks portions of social security numbers, driver licenses and dates of birth.

In the weeks after they announced major security breaches, data brokers like ChoicePoint and Lexis-Nexis have imposed restrictions on access to Americans' personal information. Some of their clients are no longer allowed access to social security and drivers license numbers. NPR's Larry Abramson reports on the affects this has had on private investigators, who have come to rely on personal data to solve cases. Listen to the story

choicepoint
privacy