Category: News Feeds

Today marks the 18th anniversary of the launch of LawSites blog. My first post was on Nov. 19, 2002.

My initial focus was on tracking web sites of interest to legal professionals. Over time, I expanded to cover legal technology and legal media more broadly, and eventually to also include legal ethics and legal innovation.

Never did I imagine I would still be at it 18 years later — more “at it” than I ever was in those early days. And never could I have imagined the degree to which legal technology and legal practice would continue to evolve and transform all these years later.

For my blog’s continued existence, I owe a big thanks to two companies and the people behind them.

Ten years ago, I almost shut this blog down. The platform on which I’d published was disappearing. The prospect of transferring to another platform was daunting.

Then I heard from the founders of Justia, Stacy Stern and Tim Stanley. As I related in this 2010 post, they offered a lifeline. They would migrate my blog to WordPress, create a new design, and host it — all for free.

Justia became my blog’s home for eight years. I can’t say enough about the amazing people who work there. But, in addition to Stacy and Tim, I am forever indebted to Justia’s CTO Vasu Kappettu and to the tireless Nick Moline, senior software engineer.

In 2018, I joined LexBlog as publisher and editor-in-chief and moved my blog there. While I am no longer with LexBlog in a formal role, I am honored that they continue to host and support my blog, as they do so many outstanding legal blogs around the world, and thrilled to have had the opportunity to work with the great people who are the backbone of that company.

In particular, I owe a great debt of gratitude to LexBlog’s founder and CEO Kevin O’Keefe, who I would never have met but for blogging. Kevin has been a true friend to me and supporter of this blog in so many ways and for so long that I could never begin to express my appreciation.

But something remarkable about Kevin is that he has been that friend and supporter to so many bloggers. I’ve lost track of how many people have told me that Kevin was their inspiration to start blogging, their cheerleader to keep going, and their trusted advisor on how to make thier blogs succeed.

While all of the people I’ve named so far provided much-needed technical and moral support for me to keep at it, the real fuel that keeps this all going is you, the reader.

You all have been extremely kind and gracious in your support and feedback over the years. I have come to know many of you as virtual friends, and many even as real friends.

I view this as a service. I endeavor to help keep you better informed so you can better understand the tools and options available to you. I hope you continue to find it useful and informative, and that you will let me know how this blog can better serve your interests.

As Black Lives Matter protests against police brutality remain a major theme in a tumultuous year, the doctrine of qualified immunity is having a moment in the spotlight. Long a controversial doctrine among legal scholars and civil rights attorneys, the defense has been expanded over the years to shield police officers who use force against civilians from liability. On the federal level, a proposed bill to end qualified immunity has not made any progress since its introduction in Congress.

In SCOTUS Review: Police Misconduct Under Section 1983, author and former administrative appeals judge Wayne Beyer discussed several Supreme Court cases that majorly impacted the doctrine of qualified immunity in recent years. Here are three legal principles plaintiff and defense attorneys alike need to be aware of:

Bystander Requirements. Some police departments require officers to stop or intervene with misconduct of other officers. To succeed in bystander liability, a plaintiff must show (1) a law enforcement officer knew that fellow officer was violating the plaintiff’s rights; (2) had reasonable opportunity to prevent harm; and (3) the officer did not act (Stevenson v. City of Seat Pleasant, 743 F.3d 411 (4th Cir. 2014).

Municipal Liability. Plaintiff attorneys may be able to claim municipal liability for “deliberate indifference” in hiring (Board of Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397), training (City of Canton, Ohio v. Harris, 489 U.S. 378 (1989), supervision, and discipline. To utilize this cause of action, plaintiffs attorneys must be able to demonstrate proximate causation.

Loss of Life under Section 1983. Large settlements in highly publicized cases raise issues of how §1983 death cases should be valued. Practitioners must know who has standing to sue in survival and wrongful death statutes of forum state and to what extent they have been applied in §1983 actions. Plaintiffs may also argue for supplemental federal remedies such as “hedonic” damages for loss of victim’s life or non-economic losses to family members such as grief or loss of companionship. Under 42 U.S.C. §1988, federal courts can borrow from state law if it meets compensation and deterrence goals of Section 1983.

Suggested Resources. In his program, Mr. Beyer provides a list of resources to help attorneys establish whether an officer’s conduct fell below the standard of best practices for police use of force, from leading organizations such as the International Association of Chiefs of Police (IACP), the Police Executive Research Forum, and the United States Department of Justice’s National Institute of Justice.

Over the past several months, the Supreme Court has denied eight petitions of certiorari for qualified immunity cases, and there are no new qualified immunity cases scheduled for the 2020-2021 docket. This may be a relief for civil rights attorneys, given the current composition of the Court, but we will certainly be watching the Court for more developments.

To learn more about the doctrine of qualified immunity and obtain further resources, check out the full program here.

Related Content:

1. Protest Lawyering: Mass Arrest Arraignments
2. Using Police Misconduct Databases in Criminal and Civil Litigation
3. Updates on Civil Rights Litigation in Response to the COVID-19 Crisis in Jails and Prison

This article was prepared with help from Elsie Tan, a New York Law School student.

As of this typing, the president’s lawyers are holding a press conference to accuse President-elect Joe Biden of waging a nationwide campaign to steal the election.

Rudy Giuliani did a reenactment of his favorite scene from the movie “My Cousin Vinny,” before leaking hair dye all over the lectern. Sidney Powell insisted that George Soros and Hugo Chavez are behind the plot, seemingly oblivious of the fact that the Venezuelan leader died in 2013. Trump campaign lawyer Jenna Ellis referred to the assembled crew as “an elite strike force team,” despite the GOP allies going exactly 1-29 thus far in court.

As lawyers, how do we even talk about this? What comes after BATSHIT CRAZY on the Richter scale?

And that’s before we even get to the past 24-hours worth of nutbag filings in Pennsylvania as Rudy ‘n’ the Gang try to convince U.S. District Judge Matthew Brann to overturn the results of the election and award the commonwealth’s twenty electoral votes to Donald Trump.

Having finally grokked that the court would have to grant him permission to file another amended complaint, Giuliani and local counsel Marc Scaringi petitioned for leave to put back all the due process claims relating to Republicans being excluded from the canvass. Over the weekend, previous counsel slashed twenty pages and a demand that votes in Pittsburgh and Philadelphia not be certified after the Third Circuit ruled that candidates lack standing to sue to enforce state law; and that was before the Pennsylvania Supreme Court ruled on Tuesday that there was nothing illegal about the access accorded to canvass observers.

Having admitted in open court on Tuesday that they’re not alleging fraud, the motion now promises that, “Plaintiffs will also show that Defendants’ conduct was part of an improper scheme to favor Biden over Trump by counting improper votes in violation of the Equal Protection, Due Process, and Electors and Elections clauses under the Constitution and Civil Rights Act. Ultimately, Plaintiffs will seek the remedy of Trump being declared the winner of the legal votes cast in Pennsylvania in the 2020 General Election, and, thus, the recipient of Pennsylvania’s electors.”

And how will they prove it? Just check out this Rudy Math™:

In accord with Marks v. Stinson, Plaintiffs will examine these envelopes to determine the percentage of mail ballots which were illegally counted – of which Biden won approximately 75% and Trump 25%, a 50% margin for Biden. Plaintiffs, through statistical expert analysis will then extrapolate this percent to the 1.5 million mail ballots. This simple exercise will determine whether Plaintiffs can prove their case – that sufficient illegal ballots were counted that changed the result of the election. If so, the Court should set aside these votes and declare Trump the winner.

[…]

For example, if 10% of the 1.5 million mail ballots were improperly counted because they lacked signatures, dates, or inside security envelopes, 75% x 150,000 votes should be deducted from Biden, and 25% x 150,000 votes should be deducted from Trump, a margin of 75,000 votes for Biden which would be sufficient to overturn reported results.

So, the Commonwealth of Pennsylvania will turn over all the envelopes for absentee ballots, Rudy et al will examine them and say which ones are kosher, and then they’ll disenfranchise some portion of the voters in the state’s two largest counties based on “statistical analysis.” It’s a bold move when the other half of the Trump campaign’s claims rest on a violation of equal protection because voters in red counties were at a disadvantage because they weren’t allowed to cure defective ballots.

And speaking of bold moves, the Trump campaign’s reliance on Marks v. Stinson, a 1994 case which overturned the results of a State Senate election due to widespread, provable fraud, seems somewhat misplaced. First, because the fact pattern was entirely different in that case, where Democrats submitted enough fraudulently obtained ballots that it might have swung the race — here the issue is Guliani’s evidence-free assertion that Democrats counted legally cast ballots which should have been discarded because they lacked signatures or for other technical reasons. And second because in Stinson, while the trial judge did toss out the absentee ballots and declare the Republican candidate the victor, the Third Circuit reversed and ordered a new election. There was no “statistical” disenfranchisement; it was an arithmetic certainty that there were enough fraudulently cast votes that the winner of the election could not be determined.

Meanwhile, the clock is ticking. The Trump campaign has asked for a delay so that Rudy and the Pussycats can get up to speed, but Pennsylvania’s deadline to certify the results of the election is Monday, November 23. And while the plaintiffs have assured the court that the request is not dilatory — Heaven forfend! — the Washington Post reports that Giuliani’s plan is to delay certification long enough that legislatures will step in and nominate their own slates of electors in contravention of the will of the voters.

It’s a hot mess, made even hotter by the apparent misunderstanding of federal procedure by the Super Friends Strike Force .

Because who among us hasn’t signed a judge’s name on an electronically filed proposed order. You know, as a courtesy.

This is fine.

Donald J. Trump for President, Inc. v. Boockvar [Docket at Court Listener]

Elizabeth Dye lives in Baltimore where she writes about law and politics.

Ed. note: This is the latest installment in a series of posts on motherhood in the legal profession, in partnership with our friends at MothersEsquire. Welcome Eden Davis Stephens to our pages. Click here if you’d like to donate to MothersEsquire.

I, like you, am ready for this pandemic to be over. I’ve stared at my phone too much, I am tired of looking at the smudges in my house, and I just want to be in public without weirdly half-holding my breath. But rainbows do emerge from storms. Many pandemic pluses have been listed already: working from home, extra time for hobbies, societal pass for day drinking and other modest vices. My personal addition to this list is the removal of the invitational birthday party. Not great for the economy, but EXCELLENT for my anxiety.

Social selection has not been my forte. Nuptial planning was a prime example. A small wedding with family with a larger casual reception became a “micro-wedding” and giving in to my mom’s selection for an officiant. It all ended with the very predictable elopement that upset my parents and made a handful of friends feel weird. Once I succeeded at social estrangement for a major life event, I leaned into more, not less, awkwardness. Why have a conversation when you can just feel periodically ashamed?

When I became pregnant, I envisioned all the ways my daughter’s childhood would differ from mine. She would not wear hand-me-downs. We would go to Disney World for vacation. She would attend and host birthday parties. All the semi-privileged experiences of the middle class. This was the upside of being a lawyer! Now I can backdate the justification for all the law school debt, right?

When the time came in pre-K years to celebrate the passing of time, the first natural reaction was gasping at the the cost-per-attendee. $25 a head for mediocre pizza, colored sugar water, and two hours of screaming on inflatables? OK. Great. MEMORIES.  (“But only for half your class. I guess just the girls? Yes. We will do this on birth gender.”)

It wasn’t fun to be on the other side. No one wants to give their child explanations or excuses when peers talk about an event she was not invited to attend. But overall, a circuit was made with children from daycare and our neighborhood school. We started a routine. I’d get a wadded invitation from a cubby, and we’d buy the respective gift in the hour preceding the party. I’d snap and post some photos of my daughter having a GREAT time, and the silent pact among parents in the circuit would remain intact. She attends theirs, we invite them to ours.

My family likes a good festival, and our city is big enough to discover new things each year. This past Christmas we went to a nearby community center to see Santa and play games. Several children waved hi to my daughter, who gave the tepid response that often embarrasses parents. (“Well, say HELLO back. That wasn’t a response — that wasn’t even a twitch. She seems NICE.”)  It occurred to me that none of these children, despite also attending a small neighborhood school, were in the “birthday circuit.” How can that be? Why do I not know their names?

I knew why, but I didn’t want to admit it to myself. This program was designed to provide children and families with Christmas activities they might not otherwise enjoy due to financial limits: dinner and seasonal treats, pictures with Santa in matching gear, and games and activities with coveted prizes at the end. My daughter’s reluctance to acknowledge a classmate mirrored the times as a child when I felt like an outsider simply because my family was economically different. Friends were not allowed to play at my house because poor is often equated with dangerous. My face would burn in shame when an adult assumed I didn’t know about something because it was an activity that cost money. Often, their assumption was correct.

In this bizarre period of time, I’ve come back to unpack that moment among the other items in my Unconscious Bias bag. Do children like who they like?  Yes. They are a person with preferences just like anyone else, adult or child.  Am I shaping her world though? Also yes. The choices her father and I have made about her education also affect her sense of community. Is that community circle wide enough? Probably not. It is up to us to help her understand and accept the different economic and cultural background of her parents and her peers. Perhaps this is through a party invitation, perhaps it is by participating in more events offered by the city.

I dream of the time when I no longer doom scroll the newsfeeds, can sit inside a coffee shop for hours and ignore my dirty house, and accidentally mouthbreathe when I get lost in thought among strangers. Dreams aren’t enough though if I want to change the things I can, starting at home with the children I am raising. When the opportunity to intentionally build a better world arrives, I hope to awkwardly and resolutely meet it.

Eden Davis Stephens is the Deputy Executive Director of the Office of Administrative Hearings within Kentucky’s Public Protection Cabinet. She has adjudicated a variety of administrative hearings over the last 8 years, from parole revocation to tax appeals.  Eden recently led the pilot re-entry program modeled after Drug Court under Kentucky’s Department of Corrections.  She is proud to be a former Public Defender, and strives to increase the public’s access and understanding of the judicial system.  Eden likes to write, but rarely does so outside of professional prose for adversarial situations.  Her parenting wish to not have boring children was granted.  She is very excited for her creative and headstrong daughters’ futures, but is very tired from the mothering patience required in the present. If you feel so led, you can Friend her on Facebook at Eden Davis Stephens or follow her on Instagram @superedentica.

Julissa’s appointment continues a long-standing tradition of Winston partners accepting leading roles in public service. We’re proud of the outstanding work she has done on behalf of our clients and wish her great success in her new role.

— a Winston & Strawn spokesperson, offering a statement following an announcement made by President-elect Joe Biden’s transition team that partner Julissa Reynoso Pantaleon will serve as chief of staff for incoming first lady Dr. Jill Biden. Reynoso served in the Obama administration as ambassador to Uruguay and deputy assistant secretary of state for Central American, Caribbean, and Cuban affairs in the U.S. State Department.

Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

As pressure mounts on Trump’s election attorneys, Jones Day has doubled down on the sinking effort. While declaring that it is not representing Trump per se, the firm is behind the Pennsylvania “stop the count” effort and with advocacy groups urging corporations to pull business and reports emerging of internal strife, the firm seems willing to stay the course. It worked for the Titanic, after all. Meanwhile, a family law attorney pursuing the case makes an interesting complaint about the size of Kirkland & Ellis. In more heroic news, a lawsuit takes aim at Confederate monuments and we talk about the state of annual bonuses.

Every year the American Bar Association (ABA) and the International Legal Technology Association (ILTA) release technology surveys based on interviews with lawyers from firms of all sizes, and the results always provide lots of interesting data on how the legal profession is using technology. This year was no exception, but the results of the surveys were all the more interesting since both were conducted during the early months of the pandemic.

Certainly things have changed since the early months of the pandemic, but the results of these surveys are nevertheless interesting and provide insight into how firms are and will be using technology in the months and years to come, especially when it relates to how lawyers will use legal cloud computing software to work remotely.

Cloud Computing Adoption

First, let’s take a look at how the firms surveyed approach cloud technology. ILTA survey respondents were asked how they would describe their firm’s cloud philosophy, and 21% reported that their firms were mostly in the cloud. 35% reported that their firms philosophy was to transition to the cloud with every software upgrade, and 33% shared that their firms were considering the cloud.

According to the ABA survey, nearly two-thirds of lawyers (59%) reported that they used cloud computing for work-related purposes. The larger the firm they worked at, the more likely lawyers were to report using cloud-based software, with 63% of lawyers from firms of 100 or more attorneys using cloud computing for work-related tasks (compared with 51% in 2019, 44% in 2018, and 42% in 2017), followed by 62% of respondents from firms of two to nine attorneys (compared to 61% in 2019, 58% in 2018, and 56% in 2017), 57% from firms of 10-49 attorneys (compared with 60% in 2019, 56% in 2018, and 52% in 2017), and 52% of solo respondents (compared to 59% in 2019 and 2018, and 56% in 2017).

According to the ILTA survey results, at the time of the survey, law firms had plans to migrate or were already using the cloud for the following types of processes: document management (37%), time and billing software (23%), and case management (9%). Undoubtedly those firms intending to migrate functionality to the cloud within the next year have fast-tracked their plans in order to ensure stability throughout the duration of the pandemic.

These findings are in keeping with recent trends indicating that firm leaders are increasingly likely to view the move to the cloud as inevitable. The shift to remote work because of the effects of COVID-19 only served to accelerate this transition, as explained in the executive summary for the ILTA survey:

(T)here are a few notable findings and trends worth highlighting. Among them was a slight acceleration of cloud acceptance. Granted, the lockdown encouraged cloud-mindedness — with the workforce scattered across the landscape, we suddenly reflected a hybrid model of private/public cloud — but the sudden jump in some numbers could not have happened in so short a time.

Secure Communication Trends

Also included in the ABA survey report are a variety of interesting statistics on how lawyers are using technology to communicate and collaborate online. Now that many lawyers are working remotely either full- or part-time due to the pandemic, this data is all the more relevant.

Of particular import are the statistics on secure communication methods, since the standard for secure communication is in flux, with jurisdictions now requiring lawyers to avoid unencrypted email and use a more secure method of communication, such as encrypted client portals, for particularly sensitive matters. I discuss this trend more fully in this post.

Because of the effects of the pandemic and the trend to move to more secure forms of communication, I fully expect that the number of lawyers using secure portals for client communication will continue to go up throughout the pandemic. But as the report showed, even during the early stages of the pandemic, use of client portals was increasing — especially with larger firms. When lawyers were asked about their use of client portals to communicate and collaborate with clients, lawyers from firms of 100 or more attorneys were the most likely to report offering clients access to a secure client portal (65%), in contrast to 23% from firms of 10-49 attorneys, 14% from firms of two to nine attorneys, and 11% from solo firms.

Other Remote-Working Tools

Lawyers were also surveyed about the top remote tools that their law firms were relying on during work-from-home mandates. Not surprisingly, the most popular tools were those that replaced the face-to-face functions that were necessary for work to continue even when employees were displaced from the office (i.e., videoconferencing), or tools that were already in place that offered that functionality (i.e., email).

The tools lawyers reported using ran the gamut from videoconferencing and fax to chat and text messaging. And not surprisingly, reliance on certain categories of communication increased quite a bit in 2020 compared to prior years, even as early as the spring of this year when these surveys were conducted.

For example, according to the results of the ABA survey, usage of videoconferencing tools increased dramatically in 2020, with nearly half of lawyers (48%) reporting that they used it at least occasionally compared to 24% in 2019 and only 19% in 2018. Lawyers are also texting with clients more than ever before, with nearly half of lawyers surveyed (48%) sharing that they at least occasionally texted with clients in 2020, compared to 42% in 2019. Lastly, 10% of lawyers reported that they at least occasionally used online chat to interact with nonclients for work-related purposes and 7% reported that they at least occasionally used online chat to communicate with clients.

The ILTA survey results were similar in this regard. According to survey respondents, the most popular technology relied upon by law firms during the pandemic has been videoconferencing, with 94% of responding lawyers reporting that their firms used it to facilitate collaboration. Next up was email (68%), followed by chat (54%), and document sharing (43%).

The results of both surveys offer further evidence that law firms of all sizes are beginning to see the move to cloud-based software as inevitable, and many are fast-forwarding that transition due to the pandemic. Also of note is that remote-working tools that firms already use or that fill unanticipated remote-working gaps are the ones being adopted the quickest and that trend will likely continue throughout the pandemic.

Nicole Black is a Rochester, New York attorney and Director of Business and Community Relations at MyCase, web-based law practice management software. She’s been blogging since 2005, has written a weekly column for the Daily Record since 2007, is the author of Cloud Computing for Lawyers, co-authors Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York. She’s easily distracted by the potential of bright and shiny tech gadgets, along with good food and wine. You can follow her on Twitter at @nikiblack and she can be reached at niki.black@mycase.com.

The fact that there are state election boards currently contemplating invalidating tens of thousands of votes is the only thing that keeps this off the top of every news outlet right now but the Attorney General potentially using his office to help his private book of business is… not great.

Last night, Reuters broke the story that Attorney General Bill Barr, while working at Kirkland & Ellis, represented Caterpillar in a billion-dollar tax case that miraculously was dropped by the DOJ one week after Barr took over the Justice Department:

A week after Barr was nominated for the job of attorney general, Justice officials in Washington told the investigative team in the active criminal probe of Caterpillar to take “no further action” in the case, according to an email written by one of the agents and reviewed by Reuters.

The decision, the email said, came from the Justice Department’s Tax Division and the office of the deputy attorney general, who was then Rod Rosenstein.

Ah, well, if Rod Rosenstein blessed it while fresh off telling his department to kidnap children then it must be legit! This is a quick reminder that no one should ever do business with these dirtbags forever… looking your way, King & Spalding clients. The Justice Department makes mistakes… but when the allegation is “you stole 2.3 billion from the government” the question is whether it should really be $1.8 billion, not “maybe it’s zero.”

Potential conflicts of interest, whether real or apparent, often arise when high-powered lawyers switch between private practice and government service. Bruce A. Green, a former federal prosecutor who teaches at Fordham Law School, said it is not unheard of for attorney generals to have clients who had business before the DOJ. He noted that in 2009, President Barack Obama’s attorney general, Eric Holder, recused himself from a case involving Swiss Bank UBS, a prior client.

But Green said he could not recall a case where agents were told to take no further action on a matter involving an incoming attorney general’s former client without some kind of explanation. “Why would you just stop?” he asked.

Why the f**k indeed!

Caterpillar was routing profits through Switzerland where they had negotiated a massive tax break for themselves. Those facts don’t seem to be in dispute. They just said their massive dodge scheme was legal. A grand jury had already heard these allegations and said, “Yup, those guys look dirty.” The DOJ sent agents to raid Caterpillar’s corporate offices, which — and I cannot stress this enough as a former white-collar defense attorney myself — is NOT NORMAL. Usually in cases against a blue chip company the government will just politely ask you to turn over documents. They raid your offices when they think you’re laundering El Chapo’s money, not when they think you’ve under withheld.

Say what you will about the United States Department of Justice under the Trump administration but it does not pursue criminal matters against corporations lightly. This was a case that they clearly saw as a slam dunk and one that every level of the Justice Department was cool with pursuing from 2017, when the grand jury rendered its thoughts, until the week after Barr got the job.

And then… it all stopped. When Caterpillar’s defense attorney became the Attorney General.

If the country ever gets a chance to come up from a rampaging pandemic, economic meltdown, and bungling coup attempts, hopefully this can get more attention.

Exclusive: U.S. investigators were told to take ‘no further action’ on Caterpillar, ex-client of Barr [Reuters]

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.