I wasn't even going to post today; that is, until I happened to spot this gem from my friends at Above the Law. Forget my advice. Post stupid photos on Facebook. Get into public pissing contests. Solicit sex via text message, it's all good!
Because, while you're doing all of those things, everyone will be looking at this…
Is that what they mean by Winnipeg "Free" Press? Maybe a little too free, perhaps.
Oy Canada…thanks for providing me with the perfect Friday post.
They laughed at the academy…
Do you remember when I said I maintain a password on my PDA? Do you remember how I said it sucks having a password on my PDA, but I felt it was extremely necessary? Fine – you don't remember. Here's what I said this past February:
"My PDA is password-protected. It's an incredible pain. I hate it. It makes things cumbersome. For all I know, it isn't even that effective. But you know what? At least I'm doing everything within my power to protect my client information."
Well, it just became a great decision. Why? Because the Supreme Court of California recently ruled that if arrested, the government is entitled to search your cellular device! The Court seems to be basing the opinion on the concept, misguided as it may be, that a cell phone is akin to a closed container, like a pack of cigarettes (prior 4th Amendment decisions hold that authorities may search containers under these circumstances). Meanwhile, a warrant is still required to search a briefcase!
Think about it for a moment. If this trend continues, how long do you think it'll be before this right is extended to portable devices in general? My next thought is, what if you happen to be driving your desktop PC to the local repairman at the time of your arrest?
As to the issue of password-protection, there's no case law controlling at the moment, so here's my 'ruling'; you have the right to remain silent. I don't care if I'm threatened with bodily harm – nobody will compel me to give them the password to my PDA (until the day arrives that a court of competent jurisdiction rules otherwise).
The Federal 9th Circuit already allows for warrantless tracking devices, but now this? So much for "liberal" California. Try your luck with the Ohio Supreme Court, among others, who disagree with this ruling.
But don't push your luck with the Supreme Court of the United States. With the current makeup of that body favoring government intrusion over individual protections, there's no Emerald City at the end of that yellow brick road.
Then again, a lot of powerful people carry cell phones – including Supreme Court justices. Maybe now's not the time for that vacation in wine country…
An Ohio judge sanctioned three jurors for conducting their own investigation during a criminal case, causing a mistrial. Nope, it has absolutely nothing to do with e-discovery per se, but we need to see more of these penalties to discourage jurors from breaking the rules.
Bravo to Justice Stephen Breyer! Why? Because I respect anyone who is willing to admit they don't know or understand something (in this case, Facebook). Seems it's one of the toughest things for some people to do. Haven't you been in a meeting where it's obvious the speaker doesn't know something, but rather than admit it, they 'fake' it?
The Canadians made up a whole program around it, "This Hour has 22 Minutes". The premise is that if they approach someone and question them on any subject – including ones they make up out of thin air – the person will attempt to speak intelligently instead of admitting they know nothing about it. Lesson learned:
Beware of the Canadians…
Let's hope the Judges in Ohio understand Facebook better than you do…
I've always taken the opposite track. If I don't know something, I'll state it then and there; "I don't know, but I'll find out the answer and get back to you." That position is even more accute as an attorney, where mistakes can be deadly to the client. Some see it as a sign of weakness, but I don't – nor have I ever experienced any negative reaction from a client.
What Breyer is really saying is that, at 72 years of age, he's still open to learning. I've used a consistent approach since I've been doing this line of work; know what you don't know. All it really means is, understand where your limits are, then seek out the resources necessary. Don't fake it and hope to be right later.
I guess it surprised me that Roberts and Scalia had no qualms establishing that neither one of them had a clue to life about how texting works – this while hearing a case about…texting (Quon). Gentlemen, the answers we were looking for were "router", "gateway" and/or "server".
Indulge me for a moment. In a case regarding privacy, where waiver might be at issue, do you think it might be of some import for the judges to understand that if a message passes through other devices on its way to its final destination – and any one of those devices may retain a copy of the message – and, stay with me, a party knew that these messages pass through other devices, this knowledge might create a waiver?
I'm not theorizing about Quon specifically, by the way, I'm simply making a point. Kind of reminds you of that old saying, "Out of the facts, the law arises", not the other way around.
How in the world are we going to solve this problem!?!?!?
I don't know, but I'll find out the answer and get back to you…
Before anyone is offended by my use of the word "f**k", this is in a legal context and I'll explain at the conclusion of this post.
I've written a few posts about jurors ignoring their oaths and researching trials via the Internet or commenting on them via social media (heck I just wrote about it a week ago), but I hadn't seen any hard numbers to illustrate how pervasive the problem is; until now…
"The data show that since 1999, at least 90 verdicts have been the subject of challenges because of alleged Internet-related juror misconduct. More than half of the cases occurred in the last two years." [Bold & italics added]
Yes, I'm well aware of the ratio of 90 verdicts to the total amount of verdicts in any given year, but there are two things that concern me:
The illness is spreading. The courts are addressing the issue by fine-tuning jury instructions, but if a juror is inclined to break the rules in the first place, I don't think an instruction will have much value unless it's followed up by punitive measures when the rules are violated.
Now, to the headline. One of the things that was shocking to me when I was in law school was how specific case language can be. It's not that I'm sensitive to those things, just that I didn't expect it. This story reminded me of such a 1st Amendment case (anyone remember Cohen v. California?), but I was slightly amazed to read about a juror who was so out to lunch that he openly flouted the rules by posting "F**k the judge." on his Facebook page – about the judge overseeing the very case he was currently sitting on!
Wait a minute. I sat on juries myself and have tried both civil and criminal cases. I'm not that amazed…
If you’re a lawyer, you’ve probably come across “The Twinkie Defense” at some point in your studies. But what about “The Twitter Defense”?
I suppose it was inevitable, but defense attorneys in a heinous Cheshire, Ct. rape and murder trial intend to argue on appeal that – among other issues – the jury succumbed to the undue influence of over 140,000 inflammatory tweets about the case that were publicly available.
If you’re me (which I am), the entire premise is fascinating because of where the issues take us. How often do you think you’ll hear a Supreme Court decision from 1966 (specifically, Sheppard v. Maxwell) cited in support of a claim incorporating Twitter in 2010?
To me, it boils down to whether one believes that the tail is wagging the dog or vice versa. Does the use of “new media” such as Twitter require new court rules? Will the judges who consider the appeal even know what Twitter is or how it functions?
That’s ok; I guess they’ll just ask their young associates…
Following in the footsteps of Napster, Grokster, et al, a federal judge has issued an injunction forcing LimeWire to stop distributing its file-sharing software. What does this really solve? It's kinda like a game of whack-a-mole, isn't it? For each service the authorities shut down, there are several more ready to take its place.
I'm not saying they shouldn't try; just that technology will always be one step ahead unless the law finds a way to respond more rapidly.
Don't hold your breath…
What do these three things have in common? They're all expected to be speedy. However, only one of them is a right guaranteed under the 6th Amendment to the U.S. Constitution. Now, due to a shortage of judges in Riverside County, California, 18 criminal cases have been dismissed, with 300 more in the pipeline that were on appeal. The California Supreme Court upheld the dismissals.
It would be intellectually dishonest to blame this solely on the budget crisis. I attended a judges symposium about three weeks ago at which Riverside County's issues, among others, were discussed; and they aren't all monetary.
Andele!
Attorneys – why should you read the fine print if the Chief Justice of the Supreme Court, John G. Roberts, Jr., doesn't?
Specifically, he discusses those 'disclaimer' boxes we all have to read and check before being granted access to web sites, but he also mentions those fold-out documents we receive with prescription medications. Of course, that made me think of accordions…
Hey, it's Friday afternoon after a long week…
Today is one of those days where I get to blog on a subject that interests me; not quite an e-anything, but possibly something that might matter to us down the road – strategy. A lot of people, lawyers included, fail to take into account the importance of strategy in a legal context. Sure, I touched on early case assessment the other day – and that’s definitely an element – but I’m drilling a little deeper than that. My thought process was piqued by an article in the New York Times regarding the life cycle of cases as they meander up the chain to the Supreme Court.
Let’s put it this way. If you’re in the camp that stakes out a firm position, then pursues it at warp speed, this article will make you crazy. But you know what? It’s reality. Not every case is appropriate for the SCOTUS, even if they’re willing to grant certiorari. In fact, they may hear it with the idea of ruling against your position.
Where is the connection to our concerns? Well, obviously we deal in evidence. And, although sometimes I think I’m one of the few who believes so, criminal procedure is prominant. And of course, how many times has the right to privacy been cited? That’s just for starters. It’s only a matter of time before one of these cases meanders its way to the top.
I’m thinking, maybe the one where that guy might get two years in prison…
