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Free legal research, educational info for lawyers

Stacked3This week's Daily Record column is entitled "Free legal research, educational info for lawyers."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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Free legal research, educational info for lawyers

It used to be that the only place that lawyers could obtain free access to legal research and information was at the law library. My how things have changed!

Nowadays, lawyers have available to them a vast array of free online and mobile-based legal resources, including free legal research portals, online legal databases and educational videos. The problem is that many lawyers simply don’t realize that these resources exist.

Well, that’s going to change right here, right now. In this article you’ll learn about some of the latest tools, resources and legal research portals available to lawyers. And, guess what? They don’t cost an arm and a leg. In fact, they won’t cost you anything — they’re free.

First, there’s Fastcase. If you’re not familiar with Fastcase, it is a company that offers lawyers an affordable online legal research alternative to the traditional mainstays of legal research, Lexis and Westlaw.

But, in addition to its reasonably priced research platform, it also offers lawyers free tools as well. First, Fastcase offers lawyers a free legal research app for iPhones and iPads so that you can conduct legal research on the go. It gives you full access to their legal database of case law and statutes, but you can’t save your searches, nor can you email or print cases from the app.

Fastcase also just announced that it is making Advance Sheets available in e-book format for free. In other words, you no longer have to pay $850 for an annual subscription to Advance Sheets in paper format; you can now receive the same information in e-book format for free.

You can also conduct free online legal research with Google Scholar. Using Google Scholar, lawyers can search the opinions of all federal and state courts, in addition to journals and other legal publications.

One of the drawbacks of Google Scholar has long been the inability to reliably cite check cases. However, Google Scholar recently improved upon that feature, so that when you search Google Scholar for a case name and cite, it sorts the results by placing those that involve the most discussion of the case at the top of the results. This improvement brings Google Scholar one step closer to replacing traditional — and expensive — legal research platforms.

You can also access most U.S. laws online for free. So, if you’re looking for a statute or regulation, you access all state and federal laws for no charge at Cornell’s Legal Information Institute.

Finally, Lawline, a long-time provider of reasonably priced online CLEs, just announced last week that all of its online content can now be viewed for free. That means that there are now hundreds of hours of video CLEs available for instantaneous viewing on just about every conceivable topic, ranging from criminal law and bankruptcy law to corporate law, education law, and more.

CLE credits aren’t available unless you pay a fee, however. But even so, you now have a ton of useful, professionally produced CLE programs right at your fingertips — and at no cost to you!

So what are you waiting for? There are a ton of incredibly useful legal resources and tools available to you for free. Fire up your computer, download an app to your iPad or iPhone, and get started!

Nicole Black is a Rochester, New York attorney and the Vice President of Business Development and Community Relations at MyCase, an intuitive cloud-based law practice management platform for the modern law firm. She is also a GigaOM Pro Analyst and is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at nblack@nicoleblackesq.com.


Court rules juror’s Facebook posts not protected

Stacked3This week's Daily Record column is entitled "Court rules juror’s Facebook posts not protected."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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Court rules juror’s Facebook posts not protected

Social media and jury trials don’t always play well together. The instant Internet access made possible by smart phones and the vast reach of social media have caused judges across the country much dismay when the trials over which they were presiding unraveled before their very eyes due to an off-the-cuff tweet or Facebook status posted by a clueless juror.

Judges have addressed jurors’ misconduct in any number of ways, including holding them in contempt and requiring the wayward jurors to pay fines, perform community service, or even spend a the night in jail.

However, an issue not addressed until a recent California decision, was whether a juror must cooperate in obtaining copies of alleged improper postings.

In Juror Number One v. Superior Court, 2012 WL 1950184, the California Court of Appeal, Third District, a juror was accused of engaging in misconduct by posting to a social network about jury duty during the pendency of the trial. The trial court conducted a hearing to determine the extent of the misconduct and then, upon completion of the hearing, a rather broad subpoena was issued by a real party in interest upon Facebook which sought: “‘[a]ll postings for [Juror Number One] dated 3/01/2010 to 10/06/2010.’ Attached was an order from respondent court compelling Facebook to ‘release any and all information, including postings and comments for Facebook member [Juror Number One].’”

Facebook moved to quash, asserting the protections of the Stored Communications Act (SCA) (18 U.S.C. § 2701 et seq.), but then suggested in its reply that the data sought could be obtained from the juror himself since he “owns and has access to his own Facebook account, and can disclose his Facebook postings without limitation.” In other words, Facebook passed the buck and threw its user under the bus.

The judge took Facebook’s suggestion and ordered the juror to execute a consent form pursuant to the SCA to allow Facebook to release all postings made by the juror during the trial for the court’s review. The juror then filed a petition for writ of prohibition with the Third District, seeking to bar the enforcement of the trial court’s order. The juror alleged violations of the SCA and his Fourth and Fifth Amendment rights, among others.

The court began by ruling out the applicability of the SCA to the juror’s situation. The court concluded that the protection of the SCA applied only to website owners: “(E)ven assuming Juror Number One’s Facebook postings are protected by the SCA, that protection applies only as to attempts by the court or real parties in interest to compel Facebook to disclose the requested information. Here, the compulsion is on Juror Number One, not Facebook.”

The court also rejected the juror’s federal constitutional arguments on the grounds that the juror had failed to provide sufficient information to support those claims, holding, in part, that “the extent of Juror NumberOne’s ‘legitimate expectation of privacy’ under the Fourth Amendment would depend on the extent to which his wall postings are disseminated to others or are available to Facebook or others for targeted advertising. Where a point is raised in an appellate brief without argument or legal support, ‘it is deemed to be without foundation and requires no discussion by the reviewing court.’”

Finally, the court disposed of the juror’s claim that the trial court’s order violated his privacy rights pursuant to California’s Code of Civil Procedure sections 206 and 237 — statutes which protect jurors from the involuntary disclosure of personal identifying information. The court explained that the right to a fair trial outweighed any privacy interest in the Facebook data: “(E)ven if Juror Number One has a privacy interest in his Facebook posts, that interest is not absolute. It must be balanced against the rights of real parties in interest to a fair trial, which rights may be implicated by juror misconduct … The present matter no longer involves a claim of potential misconduct. Misconduct has been established without question. The only remaining issue is whether the misconduct was prejudicial. This cannot be determined without looking at the Facebook posts.”

Accordingly, the court held that, in the interests of a fair trial, the juror was required to consent to the disclosure of all Facebook postings made during the trial.

What I find to be the most interesting aspect of this case, legal issues aside, is the way that Facebook responded to the subpoena. Facebook wanted nothing to do with the situation and efficiently removed itself from the pesky proceeding by hanging its user, Juror Number One, out to dry. Of course, this is par for the course, since Facebook seemingly has little, if any concern, for the privacy of its users. So, I suppose the lesson to be learned for those of us who use social media is be careful what you put out there folks — and be careful where you do it. Caveat emptor.

Nicole Black is a Rochester, New York attorney and the Vice President of Business Development and Community Relations at MyCase, an intuitive cloud-based law practice management platform for the modern law firm. She is also a GigaOM Pro Analyst and is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at nblack@nicoleblackesq.com.

 


Lawyers’ use of social media during trials

Stacked3This week's Daily Record column is entitled "Lawyers’ use of social media during trials."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

*****

Lawyers’ use of social media during trials

As social networking use becomes mainstream, social media sites are proving to be an incredibly useful source of information for attorneys. Postings on social media sites are being used to disprove allegations made by a party or witness. Lawyers are also mining social media sites during voir dire to locate background information about potential jurors or to monitor juror postings during the course of a trial.

Of course, mining social media creates an ethical minefield for lawyers and, for that reason, ethics committees are beginning to establish guidelines for lawyers seeking to obtain evidence online.

For example, in January, I wrote about Formal Opinion No. 743, issued by the New York County Lawyers’ Association Committee on Professional Ethics, which addressed the issue of how lawyers can ethically use social media for juror research during trials. The committee concluded that pursuant to RPA 3.5 it is ethically permissible for attorneys to conduct research and follow jurors’ social media interactions only if the jurors are unaware of the monitoring.

More recently, the New York City Bar Association’s Committee on Professional Ethics addressed a similar issue in Formal Opinion 2012-2 (online : tinyurl.com/NYCSocMed-Eth). The specific issue addressed was: “What ethical restrictions, if any, apply to an attorney’s use of social media websites to research potential or sitting jurors?”

The committee reached the same conclusion as the New York County Ethics Committee and concluded that lawyers can use social media to research jurors, so long as the jurors remain unaware that the research is occurring.

The committee explained that it was important to ensure that a juror did not learn of of the attorney’s actions, whether in the form of a notification from the social media site or otherwise. If the attorney knew a juror would be aware of the monitoring, then it would be unethical to conduct the research on that particular site. Furthermore, even if the attorney was unaware that a notification would be sent, if the juror subsequently learned of the monitoring, then it could still qualify as a prohibited communication in violation of RPE 3.5.

The committee cautioned that attorneys and their agents must refrain from using deception, “such as pretending to be someone else,” when attempting to obtain information about a juror. Additionally, the committee advised that lawyers who learn of juror misconduct while researching social media have an obligation to inform the court of their knowledge.

And, last but not least, the committee addressed the overarching impact of easy access to information online and offered advice for attorneys seeking to use online tools during trial: “Just as the Internet and social media appear to facilitate juror misconduct, the same tools have expanded an attorney’s ability to conduct research on potential and sitting jurors, and clients now often expect that attorneys will conduct such research … In the context of researching jurors using social media services, an attorney must understand and analyze the relevant technology, privacy settings and policies of each social media service used for jury research.”

Thus, the committee acknowledged that the increasing availability of online tools for factual research is a double edged sword, with both benefits and downfalls, while at the same time emphasizing the need for lawyers to stay abreast of the rapidly changing technological landscape. In other words, avoiding social media is no longer an option, so you may as well learn as much as you can about it so that you can effectively use it to your clients’ advantage.

Nicole Black is a Rochester, New York attorney and the Vice President of Business Development and Community Relations at MyCase, an intuitive cloud-based law practice management platform for the modern law firm. She is also a GigaOM Pro Analyst and is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at nblack@nicoleblackesq.com.


Book review: Kowalski envisions the future of law

Stacked3This week's Daily Record column is entitled "Book review: Kowalski envisions the future of law."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

*****

Book review: Kowalski envisions the future of law

I recently finished reading Mitchell Kowalski’s new book, “Avoiding Extinction: Reimagining Legal Services for the 21st Century,” which was published by the American Bar Association earlier this year.

This highly informative and innovative book is written in narrative form and reads like a novel. At first, this took some getting used to, since I had an unmet expectation for character development, given the format. But once I got over that hurdle, it became readily apparent that the narrative format was a great choice because it made the complex concepts more easily digestible — and memorable.

This book is about Mitchell’s vision of reinventing the delivery of legal services to conform with the 21st century world that we now live in. He theorizes that law firms that fail to do so will soon be extinct. He explores these ideas by following the path of a fictional and highly innovative law firm, Bowen, Fong and Chandri (BFC).

As the story unfolds, we learn about BFC’s 21st century law firm and how it differs from the failing business model used by most law firms — one based on the billable hour and high-priced, increasingly mobile partners. Despite overwhelming proof that the current way that most firms operate is unsustainable, evidence of which is provided throughout the book, most law firms are nevertheless resting on their laurels, steadfastly reliant upon an outdated business model set to implode, just as Dewey & Leboeuf did.

At one point in the book, this phenomenon is examined by the CEO and chairman of BFC, Sylvester Bowen, as he explains why the business model used by most law firms is no longer viable in the 21st century:

“(T)here is a disincentive for lawyers to act in a way that assures the long-term interest of the firm, because acting in the long-term interests of the firm will reduce the amount of money that each lawyer makes in the short term … And success further compounds the problem … (E)ach successful year perpetuates a sense that this is the correct model … This gives law firms a distorted sense of reality … (where) greed rather than proper business practice, is driving pricing to clients … (and creates) a firm that (will) be blown apart by the greed of a new group of partners … years from now.” (pp. 115-16)

Throughout the book, Mitchell hammers home the idea that firms wishing to avoid this fate must re-envision their business practices to conform with the times. He explains that the key to success is to avoid conducting business as usual and to constantly revaluate the delivery of legal services:

“Truly successful law firms will be those that can combine an ability to respond to a changing market with scale. Agility means moving to the ‘cloud’ to take advantage of its scale and technology or it means achieving scale quickly through home-sourcing or off-shoring. Agility is simply not possible in a large partnership structure where partners can derail a proposal because it will reduce their draws.” (p. 15)

Mitchell envisions a world in the very near future where a typical large law firm discards traditional practices and embraces alternative billing and ownership structures, reduces overhead costs by outsourcing, and utilizes technology and collaboration to efficiently and effectively serve its clients.

This importance of innovation and and the use of collaborative technologies is emphasized on the last page of the book when Bowen, the CEO of the fictional law firm BFC, announces that he is stepping down as CEO of BFC to pursue entrepreneurial endeavors in the legal field, one of which is to create “a Facebook-type of product for law firms that would allow communication among all lawyers in our jurisdiction, the housing of all transactional documents — including the ability to draft and comment — as well as the transfer of funds, all housed in one secure cloud environment.” (pp. 150-51)

Of course, I was tickled pink when I read this, since the fictional cloud-based law practice management portal of the future envisioned in Mitchell’s book is nearly identical to the platform developed by MyCaseInc.com, the company for which I am now employed. Knowing that Mitchell’s reimagination of the legal profession includes cloud-based platforms already in existence is heartening, to say the least. It means that our profession is on the right track.

So, if you’re interested in understanding the pitfalls of our profession and learning how to avoid them and create a viable business model for your law firm, this book is for you. It is an instructive, innovative and engaging book about the future of the legal profession. I highly recommend it.

Nicole Black is a Rochester, New York attorney and the Vice President of Business Development and Community Relations at MyCase, anintuitive cloud-based law practice management platform for the modern law firm. She is also a GigaOM Pro Analyst and is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at nblack@nicoleblackesq.com.


Mass., Fla. courts chime in on jurors and social media

Stacked3This week's Daily Record column is entitled "Mass., Fla. courts chime in on jurors and social media."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

*****

Mass., Fla. courts chime in on jurors and social media

In November 2011, the Federal Judicial Center issued a report on jurors’ use of social media during trials (http://tinyurl.com/FedSocMedRpt) and found that only 6 percent of the 508 federal district court judges who responded to the FJC’s electronic survey reported encountering instances of jurors using social media during trial or deliberations. Furthermore, of those 6 percent, the vast majority of judges (93 percent) reported having seen jurors use social media on only one or two occasions.

The results of this study seem to suggest that the use of social media by jurors isn’t the massive problem that the over-sensationalized media reports of the last year would seem to suggest. Even so, as I’ve discussed in past columns, judges have gone so far as to fine and even jail jurors who have used social media during trial, and legislators have proposed enacting laws that would criminalize such conduct.

All of this despite the fact that jurors violating the mandate of trial judges is nothing new. It’s not the behavior that’s changed; it’s the medium through which it occurs. But it’s change nonetheless, and it’s change that can’t be ignored. Thus, the legal profession has been forced to awaken from its blissful slumber and is bellowing in fury at this century’s newfound Internet-based technologies and their inescapable effect upon the legal process.

Of course, some of the concern is warranted, even though the incidence of mistrials arising from juror misconduct via social media is low. It’s indisputable that social media and mobile computing are here to stay and, for that reason, it’s significant that the courts are now recognizing this fact and instituting procedures designed to limit the use of social media by jurors during trials.

For example, the Massachusetts Appeals Court issued an opinion earlier this month, Commonwealth v. Werner, Docket No.11-P-368, which provides Massachusetts judges with guidance when issuing instructions to jurors about their conduct during trial and the inappropriate use of social media:

“We take this opportunity to comment upon what additional steps may be necessary to address jurors’ inappropriate use of social media such as Facebook and Twitter, a growing problem faced by courts around the country.

“In the instant case, the trial judge had been quite explicit in her instructions … Apparently, even these instructions were not enough to keep jurors from at least alluding to their jury service on social media websites. More explicit instructions about the use of social media and the Internet may therefore be required … Instructions not to talk or chat about the case should expressly extend to electronic communications and social media, and discussions about the use of the Internet should expressly go beyond prohibitions on research. Jurors should not research, describe, or discuss the case on- or off-line … Jurors must separate and insulate their jury service from their digital lives … The Jury Commissioner also may wish to consider including in the Trial Juror’s Handbook, which is distributed to all prospective jurors, an explicit warning about the use of social media during service as a juror.”

Similarly, in In Re: Standard Jury Instructions In Criminal Cases-Report No. 2010-01 And Standard Jury Instructions In Civil Cases, Report No. 2010-01., the Florida Supreme Court issued a decision last week that adopted an updated version of the Standard Jury Instructions to include a section admonishing jurors to refrain from using social media and mobile devices during the trial. For example, the newly adopted instructions include the following admonition:

“In this age of electronic communication, I want to stress that you must not use electronic devices or computers to talk about this case, including tweeting, texting, blogging, emailing, posting information on a website or chat room, or any other means at all. Do not send or accept any messages, including email and text messages, about your jury service. You must not disclose your thoughts about your jury service or ask for advice on how to decide any case.”

These decisions are signs that the legal profession is, at long last, acknowledging the massive societal change that has occurred because of the widescale adoption of social media. While it’s taken longer than I would have hoped, at least there is acceptance and steps are being taken to understand and address the issues presented by Internet-based technologies and mobile computing. They’re baby steps — and belated steps. But they’re better than nothing.

Nicole Black is a Rochester, New York attorney and the Vice President of Business Development and Community Relations at MyCase, a powerful and intuitive cloud-based law practice management platform. She is also a GigaOM Pro Analyst and is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at nblack@nicoleblackesq.com.