Tweeting? Facebook? Be Careful What You Say and Do

Twitter may not seem related to business. Think again, what I am seeing as marketing advice is to join Twitter (I have and you can follow me, if you like).

Therefore, in the hope of preventing litigation, let me suggest reading To Avoid Libel Litigation, Lawyer Advises, Don’t Tank Up and Tweet

Following recent news that a woman is being sued by an Illinois landlord over a tweet she posted on Twitter about her apartment, a California lawyer is offering 10 suggestions to help other users of the popular micro-blog avoid being a defendant in defamation litigation.

At least some of the 10 tips offered by attorney Adrianos Fachetti in a TwiTip post may seem like common sense. For example, tanking up on alcohol and posting a tweet is not a good idea.

However, for those who don't pay sufficient attention to this issue and other potential litigation pitfalls, a horrible fate may await, the lawyer writes—losing the privilege of posting on Twitter

Remember that other social media sites exist to worry the business owner. See Social media permeate the employment life cycle for a whole range of pitfalls for the business owner.

Attorney Fees and Services

Think About What You Are Getting.

That is what I read as the point in 3 Geeks and a Law Blog's Cost Recovery…Such a deal:

You can see it in recent news items discussing the attitudes of General Counsels at large corporations as they struggle with reducing costs with major law firms. They are negotiating hourly rates aggressively and questioning every item that appears on their bill. The question of whether or not the hourly billing model has gone the way of the dodo has been debating extensively, including by 3Geeks’ own Toby Brown on this page. I think the hourly rate issue should be separate from the online research charges that appear on the bill. As you can see in my analysis below, these charges actually reflect the efficiencies these services provide.

I no linger favor the hourly rate in my practice, preferring flat fees, but I have to admit that this is a good argument for those using an hourly rate.

More importantly, the article touches on what every client should know and what every lawyer should provde: what the clients are getting for their money.

News: Settlement from IMI in Concrete Price Fixing Case

$29M deal reached in IMI price-fixing lawsuit | IndyStar.com | The Indianapolis Star

IMI's settlement must be approved by a federal judge before it's official. It would boost the amount of settlement money paid by the companies in the case to $53 million.

"This is an historic settlement. We could not be more thrilled," Irwin Levin, lead attorney for the plaintiffs, said Tuesday.

The settlement funds, minus legal fees and other costs, will be paid to a court-approved class of about 5,000 individuals and companies that bought $700 million of ready-mixed concrete from the seven companies during the four years of the conspiracy, 2000 to 2004. Of the $24 million in settlements, attorney fees and other costs have eaten up $8 million. The fees and costs for the IMI settlement are not known.

Levin, an attorney for the Indianapolis firm Cohen & Malad, said the settlements so far, counting IMI, amount to "one of the highest percentage recoveries in civil antitrust cases in history."

The settlement money will cover more than 90 percent of the estimated overcharges from the price-fixing, Levin said. The first checks to plaintiffs will be mailed late this year or early next year and amount to a kind of eagerly awaited economic stimulus check.

"A lot of contractors are going through difficult times," Levin said. "We need to get this (money) out to them as quickly as possible."

Indiana Lawyers Cannot Use Trade-Names

Another instance where the non-lawyers have us beat? I do not think so but still I thought it would be interesting to the general public.

Court reprimands attorneys for trade-name use

Three attorneys who practiced separately but advertised as an LLC were publicly reprimand by the Indiana Supreme Court for violating several Indiana Professional Conduct Rules by not letting clients know they didn't practice law as a firm.

The Supreme Court combined the disciplinary actions against J. Michael Loomis, Robert A. Grubbs, and Robert J. Wray into one order posted May 8 and agreed a public reprimand was the appropriate discipline for violating Rules 7.2(b), and 7.5(a) and (b). The sanction was consistent with discipline imposed in other cases involving misleading attorney communications.

***

The Supreme Court found the attorneys' use of "Attorneys of Aboite, LLC" and "Attorneys of Aboite" to be improper because a lawyer in private practice shall not practice under a trade name. The use of "LLC" implied that the attorneys were practicing law together as a LLC and not as individuals just sharing office facilities. Using an LLC in a name implies the LLC maintains adequate professional liability insurance or other forms of adequate financial responsibility for the protections of clients and that the State Board of Law Examiners investigated the LLC and certified it, according to the order.

HIPAAA Information

Health Information Privacy

The Office for Civil Rights enforces the HIPAA Privacy Rule, which protects the privacy of individually identifiable health information, and the confidentiality provisions of the Patient Safety Rule, which protect identifiable information being used to analyze patient safety events and improve patient safety.

Indiana's Mortgage Foreclosure Task Force

I am highlighting The Mortgage Foreclosure Task Force web page today. Mostly for the lawyers (because it gives a schedule of CLE for mortgage cases) but there is a map showing the highest foreclosures (with Madison County being one of the highest) and a link to a FTC video (homeowners should go there)

States Can Now Enforce Their Fair Lending Laws

Some news from The United States Supreme Court, Supreme Court Allows States to Enforce Fair-Lending Laws

A sharply divided U.S. Supreme Court has ruled that states can enforce their consumer protection and fair-lending laws against national banks.

Writing the 5-4 majority opinion, Justice Antonin Scalia said the federal National Bank Act does not prevent ordinary enforcement of state law.

His ruling affirms in part and reverses in part an appellate decision in favor of the federal Office of the Comptroller of the Currency in a lawsuit concerning former New York Attorney General Eliot Spitzer's investigation into alleged lending discrimination.

***

Justice Scalia said the question at issue is whether the OCC's regulation preempting state law enforcement could be upheld as a reasonable interpretation of the National Bank Act.

The regulation cannot be upheld because a state's sovereign visitorial powers and its power to enforce the law are two different things, he said. The National Bank Act preempts the former but does not preempt the ordinary enforcement of state law.

When a state attorney general sues a national bank to enforce a state law, he or she is not acting as a supervising sovereign rather than as a law-enforcing sovereign, Justice Scalia said.

Thus, such a lawsuit is not an exercise of visitorial powers, the majority held.

Now let us see how much the states do.

Has Practice in Federal Court Gotten Even Harder?

This from Drug and Device Law's On Iqbal And Twombly indicates that we will now face a higher standard in pleading a Complaint in federal court.

Iqbal v. Ashcroft, __. U.S. __ (May 18, 2009) (here's a link to the decision through the Supreme Court website), came down last Monday, holding that the more rigorous pleading standards set forth in Bell Atlantic v. Twombly, 550 U.S. 544 (2007), apply to all civil actions.

And then the implications: "Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 14. "Second, only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 14-15.

I suggest reading all of the original post as it has a wide range of opinions on the case. My own opinion remains what I have thought long of the federal courts: they want as little business as possible.

What is a Litigation Attorney?

I suspect I will get comments from other lawyers about the difference between a a litigation attorney and a trial lawyer. Relax. I did not write this post for us lawyers but for the non-lawyers. (For the record, I do think of myself as a trial lawyer and not a litigation attorney). And, Attorney at large, has written a good article for laypeople about what litigation attorney or a trial lawyer does:

What Does A Litigation Attorney Do, Anyway

Litigation Takes A Long Period Of Time.


Very rarely does the litigation process go quickly. It’s not that litigation attorneys don’t want to expedite the process as much as possible – it’s just that there are an unbelievable number of details and legal procedures that have to be followed in any type of litigation. Court systems and their rules also introduce their own level of bureaucracy that only extends the amount of time needed for litigation attorneys to cover all the bases necessary.


Again, litigation is a very complicated process. While it might sound simple to simply carry a lawsuit through the court process, every experienced litigation attorney knows that this is just not the case at all!

Yahoo and False Profiles - 9th Circuit Case

Technologist blog gave me 9th Circuit Reopens Yahoo! Case Over False Profiles and I suggest it be read at length. First as a sign that we still have a lot to figure out how to legislate for the Web and secondly as a caution for honked off ex-significant others.

After the relationship ended, her former boyfriend created fake profiles for Barnes on Yahoo! websites containing nude and semi-nude photographs and a solicitation for sex. The ex also went on chat rooms posing as Barnes and directed men to these fake profiles, which also contained the contact information for Barnes' work.

Before too long, men began calling and showing up at Barnes' place of employment expecting sex. According to the complaint, Barnes asked Yahoo! to remove the profiles in writing, but after four letters had not received a response. Finally, just before a local TV news program ran a story on the fake profiles, Yahoo!'s Director of Communications allegedly contacted Barnes and promised that she would take action to have the profiles removed.

***

The 9th Circuit held last Thursday that Section 230 of the Communications
Decency Act granted Yahoo! immunity for the negligent undertaking
portion of Barnes' claim. Section 230 states that "[n]o provider or
user of an interactive computer service shall be treated as the
publisher or speaker of any information provided by another information
content provider."

The court found, and Barnes did not contest, that Yahoo! is an
"interactive computer service." The court then declared that Section
230 barred the negligent undertaking claim since the undertaking in
question was the de-publication of third-party material. The court
interpreted Section 230 to block a claim that would be based on an
interactive computer service's actions as a publisher, and held that
the district court correctly dismissed that portion of the action.


The court determined that the opposite held true for Barnes' claim
based on promissory estoppel, since the promise to engage in the
activities of a publisher is not the same thing as actually engaging in
the activities of a publisher, according to the court. Since the
promissory estoppel claim didn't involve treating Yahoo! as a publisher
of the information from a third-party, the court said, Section 230 did
not prevent the suit from moving forward.

In distinguishing between the two claims, Judge Diarmuid O'Scannlain
wrote that "[p]romising is different [from undertaking], because it is
not synonymous with the performance of the action promised."

Having seen something like this done to a friend of mine, I am sympathetic to the plaintiff but I got to wonder about the culpability of Yahoo on this one.

Worried About Financing a Case Needing Experts?

Small Firm Business's Litigants Lacking Big Tech Bucks Can Still Play Ball has some interesting points that I have yet to really work out - at this point, I do not have this issue in any of my pending cases.

"In a survey, several federal district court judges also opined that Rule 403 permits the trial judge to bar the proponent's expert testimony when the opponent lacks the wherewithal to afford a rebuttal expert. Savikas & Silverman, 'Making the Poverty Objection: Parties Without Fancy Exhibits Could Claim Unfair Prejudice, But Not All Judges Would Agree,' NLJ, July 26, 1999, at C1.

Is it proper to invoke Rule 403 in that fashion? On the one hand, Rule 403 does not embody any egalitarian objective. Neither the text of the statute, the accompanying advisory committee note, nor any passages in the congressional deliberations over Rule 403 indicate that the drafters intended judges to resort to Rule 403 to compensate for an imbalance of financial resources between the litigants.

As quoted above, Rule 403 lists a number of probative dangers. Several other federal rules provisions contain lists. For example, Rule 404(b) lists some of the recognized noncharacter theories of logical relevance of uncharged misconduct. Likewise, Rule 407 enumerates several permissible purposes for introducing evidence of subsequent remedial measures."

Muncie - Tomorrow - Free Legal Consult

So reports The Muncie Star-Press this morning:

Free legal assistance available on Tuesday -

Low-income residents can get free legal assistance on civil matters from an attorney 9 a.m.-noon Tuesday at Maring-Hunt Library, 2005 S. High St.

Indiana Legal Services sends an attorney to Muncie twice each month to offer free assistance.

No appointment is necessary.

To be eligible for services, a person must have a household income that is less than 125 percent of the federal poverty income level, meaning an income of $13,000 for a one-person household or an income of $26,500 for a four-person household. Those ages 60 or older are automatically eligible for services.

For civil legal problems requiring immediate attention, call (800) 869-0212

Oops, seems someone else had a less than stellar week.

From The Indiana Lawyer comes Judge criticizes counsel seeking class certification

Don't expect one federal judge to re-examine a ruling by another jurist on the same court if you don't present any new facts or arguments on a similar case and issue.

That's the message to federal attorneys practicing in the Southern District of Indiana, as detailed in a decision Thursday from U.S. District Judge David F. Hamilton in Blanca Gomez and Joan Wagner-Barnett v. St. Vincent Health, No. 1:08-CV-0153. The judge denied a class-action certification motion involving two ex-hospital workers who allege their former employer didn't provide adequate notice of COBRA rights to more than 250 people qualified for that extended health insurance between May 2004 and January 2006.

Stupid Lawyers

Thanks to Google Alerts I got to read this forum exchange: drafting documents yourself. valid?. My subject line says what I took away from this short exchange.

I have written before on here about using online or computerized legal forms. They area fact of life that lawyers needs to start acknowledging and get our heads out of the sand.

Lat night, I ran across the Funded Founders Institute and its agreements page. I am still puzzling over this one, but for the lawyers reading this I think the point is their sophistication. Which might even cause more problems for consumers.

The general public will use online forms because they see a way of saving money. The general public needs educating that with these forms you get what you pay for. If you do not use them correctly, then you have a good shot at paying a whole lot more to get the problems corrected than what you spent to create the problem.

I have no problem if a client uses an online form as a draft that they want me to review and tweak. Here lies their true worth: they get the client thinking about the subject (cohabitation agreements, prenuptial agreements, power of attorney, etc.) and that can be the hardest part in any conversation about the subject (cohabitation agreements, prenuptial agreements, power of attorney, etc.).

So, people, use them but get a lawyer to review what you are doing. Yes, you will save money and maybe even more than you think.

Indiana Eminent Domain Case - Shades of Kelo

We have a new eminent domian case in Indiana. COA decides eminent domain case comes from The Indiana Lawyer.

Relying on the Supreme Court of the United States case of Kelo v. City of New London, 545 U.S. 469 (2005), the Indiana panel found that Wymberley's taking would not be transferring the property to a private entity but to a regulated public utility providing public service - not as far as the SCOTUS ruling had allowed.

"The court's decision is clearly in the mainstream, not on the outer edges of eminent domain authority, and proves the common practice by which developers pay for utility service connections," said Baker & Daniels attorney Jon Laramore, who represents Wymberley. "They've clearly said that sewer service is a traditional public purpose, even if there's some additional private benefit to the developer."

But Bose McKinney & Evans attorney Bryan Babb, who represents the landowners in this case, said this ruling is one of first impression on various fronts and means that property owners have no protection in condemnation actions.

While Kelo draws attention to the case, the Court of Appeals only citation to Kelo is as follows:

Caselaw supports this position. In Kelo v. City of New London, the United States
Supreme Court found that a municipal taking was for a public purpose even though the property that was taken was to be transferred to the hands of another private owner. 545 U.S. 469 (2005). It is apparent that the instant case does not even go that far, inasmuch as Wymberleys taking would not transfer the property to a private entity but to a regulated public utility that provides a public service.

Instead, the Court of Appeals relied relied on Indiana precedent. My reading on eminent domain was several years ago, but my impression is that there has been little protection for the property owner for a very long time.

How Do Lawyers Set Fees?

That Unsettling Feeling from IP Litigation Lawyer & Attorney may not answer that question but it hits some important points:

"There are a lot of questions we consider before taking a case and certainly before filing a complaint. Most important is, does the case have merit? Second, are potential damages sufficient to make it worthwhile? Very important is whether the defendant can actually pay if judgment is obtained? However, one question that NEVER gives us any pause whatsoever is, 'will the defendants put up a fight?' Of course they will. That is ALWAYS a possibility, and a company's reputation for defending cases vigorously simply does not enter into the calculation. Facing defense counsel and their defenses is just part of the game.

Having now been on the plaintiff's side for quite some time, I feel somewhat foolish recalling the principled speeches I once gave corporate clients regarding the need to stand up and send a strong message to the plaintiff's bar. In reality, my opponents did not care about reputations, 'messages' or the perceived nastiness of defense counsel."

***

I understand a big firm lawyer's need to hit his numbers and bring in the cash. And fighting cases is what we lawyers do, on both sides. But rational business decisions by clients should be based on more than silly claims about "messages" and "principle" and so forth. You'd think that people smart enough to get rich in the first place would know when their lawyers are blowing smoke.

Again, the overwhelming majority of cases settle, and they usually do so when when clients wake up to where their true interests actually lie.

Remember, if you want more information about retaining me for a case, please give me a call at 765-641-7906.

Swimming in the Deep Water of Policy - IP rights and human rights « Michael Dizon on Law and IT

I doubt my ability to comment on Michael Dizon's Reframing the debate - IP rights and human rights except to suggest reading the whole of his post. From my perspective, it serves as a reminder that proeprty rights are human rights a la John Locke (and a reminder of which always comes to me from Warren Zevon's Mr. Bad Example -

I opened up an agency somewhere down the line
To hire aboriginals to work the opal mines
But I attached their wages and took a whopping cut
And whisked away their workman's comp and pauperized the lot)

Back to Mr.Dizon:

"The main hindrance to thinking about IP rights as a human right is the predominant mindset that IP is primarily an economic right. I do not agree. IP “rights” even in an economic sense are more properly categorized a limited “privileges” granted to authors and creators as an incentive to create works and make them public. The inherent and essential flip side to these privileges is the underlying objective that the public has a right to access and use these creative works. The right of the public to access is part and parcel of this IP right. People normally forget about this right of the public to access and that these IP privileges have a social and cultural function and the emphasis of IP rights is not just with respect to the rights of the author but also the right of the public and the community. The right of the public to access and use creative works, which includes the freedom of expression and the right to take part in cultural life (e.g. the right to freely critique a copyrighted creative work like a novel) is properly a human right."

Read if you are not impressed with PACER

The case against PACER: tearing down the courts' paywall - Ars Technica

In this feature, Ars takes stock of online access to federal court records in the United States. We'll discuss how the system got where it is today, look at where there's room for improvement, and talk to two experts on open government about the prospects for reform. The bottom line is that the courts deserve credit for the progress they made in the 1990s, but a lot more work is needed to bring PACER into the 21st century

Indiana Court Forms and Rules

LLRX. com has a page devoted to Indiana courts - their dockets, rules and forms - here. This includes both federal and state courts.

Tips on being diplomatic

Initially, Domestic Diversions, Say the right thing: 10 ways to defuse conflict and promote harmony, has little to do with business law but I suggest looking again:

1. “Thank you for your opinion. I’ll think about it.”
2. “Is this a good time for you?”
3. “Would you like my thoughts?”
4. “Why don’t we get the facts?”
5. “I need your help. Can you please…?”
6. “Let’s wait on this until we have more information.”
7. “What did you mean by that?”
8. “I don’t like that, so why don’t we do this instead?”
9. “I’m sorry you’re upset.”
10. “Let me get back to you.”"
10 things to say to keep the peace