Federal Judge Sez Judges Are All Too Old To Understand Technology

By Joe Patrice

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/ Jul 21, 2015 at 3:28 PM

Judge Shira A. Scheindlin (S.D.N.Y.)

Is the rise of eDiscovery and the proliferation of relevant social networks getting you down? Not as much as it’s bugging federal judges who have to make decisions about the admissibility of posts on Woo Woo while they’re still struggling to figure out a Speak and Spell.
That may be a bit of an exaggeration, but not much, according to the Southern District of New York’s Judge Shira Scheindlin, one of the more tech-savvy judges in the federal system. Judge Scheindlin told the Big Law Business Summit on VCR tape that “[a]ll of us over 60 are getting nervous. But the rules have changed and require attorneys to be competent in technology.”
Judge Scheindlin could only think of one group with less technological knowhow than federal trial judges: “I can tell you that appellate judges know nothing about it.”
Burn.
Check out the whole video below:

Judge Scheindlin: Appellate Judges Know Nothing About Tech [Big Law Business / Bloomberg BNA]

Topics

Benchslaps, Big Law Business Summit, Bloomberg BNA, Bloomberg Law, Conferences / Symposia, E-Discovery, eDiscovery, Federal Judges, Judge Shira Scheindlin, Litigation, Litigators, Old People, Reverse Benchslap, Shira A. Scheindlin, Shira Scheindlin, Technology

LEGAL ETHICS

Suspension recommended for lawyer who blogged about probate corruption and lawyer 'feeding frenzy'

POSTED DEC 03, 2014 05:45 AM CST

BY DEBRA CASSENS WEISS

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Image from Shutterstock.

An Illinois patent lawyer accused of blogging with a reckless disregard for the truth is facing a proposed three-year suspension.

The hearing board of the Illinois Registration and Disciplinary Commission recommended the suspension for lawyer JoAnne Marie Denison because of her blog comments about judges and lawyers. The Legal Profession Blog links to theproposed suspension, filed Nov. 21, and summarizes the accusations.

According to the hearing board, Denison oversaw a blog about a probate matter in which she alleged corruption in the probate court, both generally and in the probate matter. Specific individuals were identified in a “table of torts,” which Denison described as “TEN PAGES of questionable behavior, corruption, misfeasance, malfeasance, perpetration of misdemeanors and felonies” in the case.

Denison’s blog had alleged a guardian was appointed for an elderly woman at the center of the case, though she did not need one, and the guardian had stolen from the woman and did not take proper care of her. The elderly woman, the blog alleged, had been “fleeced out of her home,” and “court-connected lawyers” were added to the case to “churn the feeding frenzy.”

Denison began blogging after a judge refused her application to represent the elderly woman’s daughter.

A disclaimer on the blog warned that “portions of this blog have to be entertaining so we can get the word out” and readers should do their own investigation of the facts.

The hearing board found that there was no rational basis to support Denison’s allegations about improprieties. In reality, the board said, the lawyers working on the case were not compensated for the vast majority of their work. Despite the disclaimer, other blog sections suggested the unfounded allegations were true, the board said.

In mitigation, the hearing board said Denison “genuinely, though unreasonably, believed something was wrong with the proceedings” in the probate matter and had a “sincere desire” to help the elderly woman.

“From our perspective,” the hearing board said, “it appears respondent has genuine concern for senior citizens and perceives the senior population as vulnerable, especially to financial exploitation. This concern, as a general matter, is a legitimate one, even though respondent had no reasonable basis for believing the judges or attorneys in [the specific] case were corrupt.”

In aggravation, the hearing board cited Denison’s “tendency to inappropriately personalize matters. This tendency was apparent in conduct by Respondent which included filing multiple lawsuits, which had been dismissed, against the attorneys in the [probate] matter.”

Related articles:

ABAJournal.com: “Lawyer’s blog posts about ‘sleazy world of probate’ bring ethics complaint”

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Top New York Court Protects The Right To Annoy

Date posted: May 27, 2014 | Posted in First Amendment, Litigation | 0 comments

AAA

By IT-Lex Intern Kristin Bergman (Twitter / LinkedIn)

Anyone that thinks that the world of academia is dull, is in for a surprise with a recent decision from New York’s highest court. As we wrote over a year ago, (then disbarred) attorney Raphael Golb “concocted an elaborate scheme” impersonating scholars in emails and posting anonymously to blogs in order to defend and promote his father’s research on the Dead Sea Scrolls. For this campaign, Golb was convicted of identity theft, criminal impersonation, forgery, aggravated harassment, and unauthorized use of a computer. The New York appellate court affirmed Golb’s sentence of six months in jail and five years probation.

This month, the New York Court of Appeals vacated several of these convictions—including all of the counts of identity theft, aggravated harassment, and unauthorized use of a computer, and about one-third of the counts of criminal impersonation. This leaves Golb with misdemeanor convictions for on nine counts of criminal impersonation and 10 counts of identity theft.

In its opinion, the Court considered the harm contemplated by criminal impersonation charges. Under a New York criminal statute, a person is guilty of criminal impersonation when he or she “impersonates another and does an act in such assumed character with intent to obtain a benefit or to injure or defraud another.” The Court determined that the harm may come in a form other than monetary loss, such injury to reputation—very important in academia. That said, to be criminalized, a prosecutor must demonstrate “intent to cause a tangible, pecuniary injury to another . . . more than a prank intended to cause temporary embarrassment or discomfiture, and that he acted with intent to do real harm.” The Court distinguished creating email accounts in other scholars’ names from the malicious use of those accounts, holding:

[T]he mere creation of email accounts [impersonating scholars] (in contrast to the use of those accounts to send emails) does not constitute criminal conduct under Penal Law § 190.25. The mere creation of email accounts that are not used does no substantial harm to anyone.

It therefore dismissed those counts involving solely the creation of the email accounts or emails where Golb merely asked for the recipient’s opinion.

The Court went on to hold that New York’s aggravated harassment statute “is unconstitutionally vague and overbroad,” vacating Golb’s conviction under the statute. Extending People v Dietze’s reasoning, in which the Court struck down a harassment statute prohibiting use of obscene language with the intent to even annoy another, the Court quoted “any proscription of pure speech must be sharply limited to words which, by their utterance alone, inflict injury or tend naturally to evoke immediate violence.” Invoking the incitement doctrine, the Court found New York’s current statute similarly overbroad and unconstitutional. It said simply: “The statute criminalizes, in broad strokes, any communication that has the intent to annoy”—and its sweeping language violates free speech clauses in the First Amendment and New York’s own Constitution.

The Court remitted the case to the appellate court for resentencing in accordance with this order dismissing about one-third of the convictions.

Political Post Leads To Police Officer’s Demotion, Is Not Entitled To First Amendment Protection

Date posted: February 13, 2014 | Posted in First Amendment, Litigation | 0 comments

AAA

Back in November 2012, just after President Obama’s reelection, plaintiff Rex Duke posted the phrase “It’s time for the second revolution”, along with a picture of the Confederate flag, to his Facebook profile page. This isn’t too big of a deal in and of itself – there’s no shortage of anti-Obama, or anti-anyone-in-authority, sentiment on social media. Duke, however, was the Deputy Chief of Police of the Clayton State University (Georgia) Police Department, and so his posting of this particular status update led to trouble. Last week’s opinion can explain the context more fully:

Plaintiff intended only those with direct access to his page, such as close friends and family, to view the post. He was not on duty at the time, and neither the post nor Plaintiff’s Facebook profile referenced his employment at the CSU Police Department or his job as a police officer. He expressed no grievances related to the Department’s policies or his colleagues; instead he claims that “the intention behind the post was to express his general dissatisfaction with Washington politicians.” At the time, the Department had no social media policy that would have prevented the post.
Plaintiff took down the post within an hour, but during that period someone provided an image of the post to Atlanta television station WSB. A reporter contacted Plaintiff and CSU officials, and the station subsequently ran an evening news story discussing both the Facebook post and Plaintiff’s position as Deputy Chief the CSU Police Department. The Department received anonymous complaints against Plaintiff, prompting CSU officials to commence an official investigation.

Following the investigation, Plaintiff was reassigned, “to the less desirable morning shift, which is typically assigned to less experienced officers”, and so he sued, claiming that his demotion – and subsequent $15,000 pay cut – was a First Amendment violation. He claimed that he was reassigned ”to punish [him] for privately advocating for his personal political beliefs, and [that defendants] sought to restrain his ability to privately advocate for those personal beliefs.”

The court begins by trying to establish whether Plaintiff’s “speech was constitutionally protected and that the speech was a substantial or motivating factor in Defendant’s decision to demote him”, and that leads to the Pickering test:

the Court must find that (1) Plaintiff’s speech involved a matter of public concern; (2) Plaintiff’s interest in speaking outweighed the government’s legitimate interest in efficient public service; and (3) the speech played a substantial part in the government’s challenged employment decision. If the employee can make the above showing, the burden shifts to the government to show that (4) it would have made the same employment decision even in the absence of the protected speech.

For the first element, it is clear that Plaintiff was speaking in his capacity as a private citizen, and not as a representative of his employer, and the court holds that his “speech was thus a matter of public concern because it expressed disapproval of elected officials, certainly a topic “upon which ‘free and open debate is vital to informed decision-making by the electorate.’”" So the first Pickering factor worked out in Plaintiff’s favor, but the second would not. Firstly, it could be problematic internally for the Deputy Chief to express such strong opinions on divisive matters:

[W]hile the Court acknowledges that Plaintiff intended to express his disapproval of Washington politicians, on its face his speech could convey a drastically different message with different implications. Many of these messages are controversial, divisive, and prejudicial to say the least… Given Plaintiff’s supervisory responsibilities, such speech could undermine “loyalty, discipline, [and] good working relationships among the [Department's] employees” if left unaddressed.

The court also observes that, thanks to Plaintiff’s post making it onto the evening news, “the public attention the speech received also implicated the Department’s reputation and the public’s trust.” Here’s the key passage about how Plaintiff’s status update could undermine the police department’s reputation and standing:

But the politically charged context also heightens the potential for Plaintiff’s particular speech to damage the Department’s interests. Appearing to advocate revolution during a presidential election, and to associate that idea with a Confederate flag, Plaintiff likely sent a partisan, if not prejudicial, message to many in the CSU Police Department and the community it serves.

Ultimately, it’s held that the department’s interest in “providing efficient public service” outweighs Plaintiff’s speech rights, and so his demotion is upheld.

13 May 2013 at 3:08 PM

Biglaw, Brooklyn Law School, Law Schools, Litigators, Money, Technology

Third-Party Litigation Financing: The Latest Chimerical Lifeline For The Legal Profession

By Joe Patrice

The legal industry has taken its lumps. At the top, growth is modest at best. At the bottom, law school applications have dropped off dramatically. There are scary book titles like Steven Harper’s The Lawyer Bubble: A Profession in Crisis (affiliate link) to spook the industry even more.
But some are pushing back against the gloom and doom and projecting a bright future ahead. The new hope for Professor Bradley T. Borden is third-party litigation financing (“TPLF”), dropping millions into lawsuits in exchange for a hefty cut at the end so they can party like a champ(erty).
Litigation finance is drawing considerable talent and will certainly change the way law firms and clients do business. But it’s no pathway to rekindle the pre-recession boom.

Professor Borden laid out his argument for bringing the unblemished success of the private equity industry to law in a Huffington Post piece last week:

First, the capital infusion will make more lawsuits viable and increase the complexity of lawsuits. The increase in the number and complexity of lawsuits will drive up the demand for more and better litigating attorneys.

Professor Borden’s first point also translates to “it will clog the courts with more frivolous lawsuits” — which is a boon to an ATL writer trawling for content, but that’s about it.
The problem is that “moar lawsuits equals moar lawyers” is just a flawed and dated argument. Borden fails to grasp that lawsuits are no longer litigated that way. Technology and the learned experience of law firms and clients have fundamentally shifted the legal landscape. The document management firms that take on the economies of scale involved in investing in high-end review software and employ temp attorneys at bargain-basement prices in less desirable legal markets (I’m looking in your direction, Detroit), as well as the advances in predictive coding and artificial intelligence, are not going away. Increasing complex litigation no longer requires the firm to bring on more bodies to read hundreds of thousands of pages — it will all be outsourced either to struggling lawyers or the HAL 9000 — keeping the lid on the job market for litigators.

Second, faced with the increased likelihood of having to defend their actions and incur the costs of litigation and the higher costs of losing lawsuits, businesses will take greater care to structure transactions and practices legally. Such efforts will require the skills and expertise of competent transactional and regulatory attorneys, further increasing the demand for attorneys.

For this to make a lick of sense, one must assume that (a) both in-house and outside counsel phone it in when structuring deals in the status quo, and (b) having more lawyers looking at documents alleviates future legal issues. First, I doubt any lawyer will admit to sloughing it, and the hours logged by transactional and regulatory attorneys bear this out. Second, I’m confident every attorney will admit — if only in hushed tones — that bringing more lawyers into the process invariably compounds future legal problems. Too many cooks and what-not.

Third, TPLF, combined with an improving economy (which can’t hold back indefinitely) and the relative dearth of attorneys that will result from the decreasing law school enrollment, portend a perfect storm that will hit the legal market.

But some law firms (and most clients) are realizing that the era of big staffing is over. The “manual labor” of document review and due diligence can be farmed out to the glut of out-of-work attorneys willing to make peanuts to service their loans. An improving economy will drive up the wages they can demand (because they could leave the law entirely to take advantage of better opportunities), but not to the level that once enticed students to law school in droves. If law students aren’t guaranteed of getting boom-era salaries — and the majority of law students never will — there is nothing that will convince students to take on the debt law schools create unless the schools embrace fundamental change.
Professor Borden seems to be holding out for TPLF to rejustify the status quo legal landscape. TPLF may be a lot of things, but a TARDIS is not one of them.
The challenges facing a stagnant legal market cannot be addressed when you begin from the premise, “How can we go back to exactly where we were before?” It’s the kind of “everything’s cyclical” thinking critiqued in Bruce MacEwan’s new book, Growth Is Dead: Now What? (affiliate link).
Or, if you will, the episode of the Simpsons where Homer desperately hopes that the pig he’s roasting will return.
Homer: “It’s just a little airborne, it’s still good, it’s still good!”
Bart: “It’s gone.”
Homer: “I know.”
Third-Party Litigation Financing and the Impending Resurgence of the Legal Profession [Huffington Post]
Law School Applications Are Collapsing (as They Should Be) [The Atlantic]
Earlier: Litigation Finance: The Next Hot Trend?
The 2013 Am Law 100: A Year of ‘Slow Growth’
Calling All Law Firm Partners: The Future of Big Law Reception

6 Comments

• Tags: Biglaw, Bradley Borden, Bradley T. Borden, Brooklyn Law School, Bruce MacEwen, Law Schools, Litigation, Litigation Finance, Litigators, Steven Harper, Technology, Third party litigation financing, TPLF

A Legal View From America

A Legal View From America


Posted: 20/07/2012 00:00 React Amazing


Follow Hollywood , America , British Legal Framework , Law , Lawyers , Legal Culture , Litigation , Wild West , UK Politics News .

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 My home country, the US, is famous for many things, including a mythical 'Wild West' immortalised in numerous Hollywood movies. Less glamorously, it is also famed for a 'Wild West' legal culture that allows an enormous amount of frivolous and abusive litigation, such as lawsuits against restaurants for excessively hot coffee or cases against cruise liners for provoking seasickness.



From a distance, these lawsuits may be entertaining. But for businesses in the US, frivolous litigation brings severe costs, including lost jobs, increased costs and less foreign investment. In addition, consumers face higher prices as businesses are forced to cover these litigation costs.



No-one disputes that an open and fair justice system is absolutely necessary. The problem is the spread of practices that encourage litigation not out of necessity, but out of a desire to make money. In particular, one of these practices could facilitate the spread of US-style abusive litigation in the UK: third party litigation funding (TPLF).



Third party litigation funders are typically investment vehicles backed by hedge funds or other financial institutions. They buy into a lawsuit as an investment and recover that investment by receiving proceeds of any judgement or settlement. The practice, which started in Australia, has become especially prevalent in the UK, where studies estimate that funders have as much as 500 million pounds at their disposal.



The problems with TPLF are numerous. First, this model of funding skews the British legal system away from its core purpose of delivering justice and toward the profit incentive. Litigation funders are solely interested in getting returns on their investments, a goal incompatible with the values of the legal system.



Secondly, if left unregulated, funders will have the ability to direct the strategy and direction of cases - threatening to withdraw funding from clients at any stage they wish, or forcing the client to continue to court when they may wish to settle. This threatens the long-standing client-lawyer relationship, potentially breaking the bonds of trust which lie at the heart of the British legal system.



Furthermore, following a decade of criticism of 'no-win, no-fee' litigation, third party funding is likely to lead to a huge upsurge in litigation. As in the US, this litigation increase will hurt businesses - hindering job creation, discouraging investment and raising prices for consumers.



My organisation, the US Chamber Institute for Legal Reform, is concerned about TPLF because many US businesses have significant operations in the UK and could be dissuaded from further investment and job creation by a TPLF-driven litigation increase. As a result, we are encouraging the Ministry of Justice to move away from the current weak self-regulation model for the litigation funding industry and to adopt a robust system of statutory regulation, including requiring disclosure of funder contracts, ensuring cases are controlled by litigants and not funders, and banning formal business ties between law firms and funders.



The UK Government is taking important steps to promote growth and free businesses from the entangling web of red tape. At the same time, changes to the British legal framework, such as the rise of TPLF, risk undermining those positive developments. Therefore, the Government should act promptly to identify the problems with TPLF and introduce appropriate regulation. Only swift action can ensure that the contagion of "Wild West" abusive litigation does not spread across the Atlantic.





http://www.huffingtonpost.co.uk/lisa-rickard/a-legal-view-from-america_b_1685927.html