Monday, November 28, 2016

Book of Interest

I found another good book over the holiday.  IPad in One Hour for Litigators by Tom Mighell is excellent on finding the apps and technology that work in court.  I have used a number of apps suggested in there and it helps make since of how to adapt the Ipad to law practice.  A link on Amazon to the book is here

Wednesday, November 23, 2016

New Fair Labor Reg Blocked

On Tuesday, a federal judge blocked the implementation of changes to the Fair Labor Standards Act.  A link to an article about it is here.  A lawsuit challenging the rule was filed by 21 states and a variety of employer groups. The rule was set to increase the exemption threshold to $47,476, more than doubling the current threshold. 

Tuesday, November 22, 2016

Contempt vs. Incarceration

In Mississippi, there is one standard for contempt and one standard to avoid incarceration for contempt.  To defend against the contempt, an individual has to show they used all available funds over necessary living expenses to pay support.  To defend against incarceration for contempt, you have to show the present inability to comply with the court's order.  I think the line between these gets blurred a lot.  I am working on a brief now to encourage the Mississippi Supreme Court to clarify these issues and put in some procedural safeguards to prevent Due Process from being violated. 

Tuesday, November 15, 2016

App of Interest

Last night, I found a nice IPad app I like called Tablit.  A link to it is here.    The app sets up an electronic trial notebook similar to ones I still create by paper.  Personally, I still prefer hard copies but this is a good backup copy and can make it easier to get to certain pieces of information. 

Friday, November 11, 2016

Web Bugs

Lawyers should not plant “web bugs” to track the location and use of emails sent to opposing counsel, according to an Alaska ethics opinion.
The Alaska Bar Association Ethics Committee is the second bar panel to address the issue, according to the ABA BNA Lawyers’ Manual on Professional Conduct. An ethics opinion by the New York State Bar Association also found web bugs are not ethically permissible.
The Oct. 26 opinion by the Alaska ethics committee said web bugs in emails can track a variety of information. They can be used to learn when and how often an email was opened, how long it was reviewed, how long an attachment was reviewed, whether the email or attachment was forwarded, and the rough geographical location of the recipient.  Web bugs can be placed in email through an image with a unique website address that causes the recipient’s computer to look up the image and send information to the sending party, the ethics opinion explains.
Web bugs can reveal information that interferes with the lawyer-client relationship and the preservation of client confidences, the ethics opinion said. Seeking to invade the lawyer-client relationship through web bugs, even if the web bug is disclosed, violates ethics rules barring lawyers from engaging in misrepresentation and deceit, according to the opinion.
The ethics opinion provides two examples of how web bugs can intrude on the attorney-client relationship. In the first, a client has informed her lawyer she has moved to another state, but she doesn’t want her location disclosed. An email with a web bug contains a page for the client’s signature, and the receiving lawyer forwards the document to the client, revealing information about the client’s location to the lawyer who planted the bug.
In the second example, a lawyer planting a web bug sends a draft settlement agreement to opposing counsel. The opposing counsel forwards the agreement to his client. The web bug enables the sending lawyer to determine which pages the lawyer and client found most important.

Thursday, November 10, 2016

Preliminary Injunction on Arbitration Ban

A preliminary injunction was recently granted regarding the ban on nursing home arbitration.  A copy of the order is here.  It will be interesting to see how this pans out. 

Tuesday, November 8, 2016

New Frontiers in Discovery

Last Friday, I went and renewed by guardian ad litem certification.  One of the issues we discussed was new attacks on guardian ad litem opinions in discovery.  Below is a list of some of the new frontiers in discovery and attacking the opinions:
                                      (1). Subpoenas for notes from interviews
                                      (2). Depositions of guardian ad litem concerning basis of opinion
                                      (3). Designation of expert witness or alternate guardian ad litem to attack
                                             basis of opinion
                                      (4). Interrogatories and Requests for production of documents to GAL

I see these becoming more and more common in the near future. 

Friday, November 4, 2016

Reporting Child Abuse

Virtually everyone in Mississippi is a mandatory reporter if child abuse is suspected.  Here is the 800 number if needed:  1-800-222-8000.

Wednesday, November 2, 2016

Line of Demarcation

On Tuesday, the Mississippi Court of Appeals decided Ewing v. Ewing located here.  I am not going to comment too much on the case since it is one of mine that is on the way back to the trial court it appears.  However, one of the key issues in the case was the line of demarcation on the accumulation of marital property.  The Court found that:  "Though the chancellor implicitly held the date of demarcation as the date of the divorce, the chancellor erred when he failed to explicitly declare either date as the line of demarcation.”  As such, it appears the trial court has to make a specific finding on the record of what date it will use for demarcation.