Sui Generis--a New York law blog

The following is one of the funnier stories from my tenure as an assistant Public Defender.

I was assigned to represent a guy with a long misdemeanor record on some sort of small charge--a petit larceny, if I recall correctly. He was one of literally hundreds of my clients (I usually had about 600 open misdemeanor files at any given time), about 50 of whom were incarcerated, including this guy--let's call him "Joe." I generally made it into the jail to see all of my clients once each week, although I tried to meet with them more often, if possible. I hadn't met with Joe yet, though, and, as I quickly learned, he was desperate to see me.

The only outgoing phone calls allowed from county lock up were collect calls. And we weren't allowed to accept collect calls from the jail. But, Joe still managed to get his message across.

If you haven't made a collect call from jail recently, let me explain how it works. After indicating that you're making a collect call, you have approximately 3 seconds to leave your name immediately following the automated announcement "You have a collect call from..."

Joe was all too familiar with this system, since he'd been in and out of it forever. And, he knew how to get around it. Until I was able to get to the jail to see him, he left about 10 messages in rapid succession on my voice mail each day, and they went something like this:

(Automated voice)You have a collect call from: "Ms. Black, it's Joe. You have to..." Would you like to accept it?

You have a collect call from: "Come down to the jail.." Would you like to accept it?

You have a collect call from: "Tonight to talk to me..." Would you like to accept it?

You have a collect call from: "Come see Joe, Ms...." Would you like to accept it?

You have a collect call from: "Ms. Black, PLEASE come see..." Would you like to accept it?

You have a collect call from: "Ms. Black, it's Joe..." Would you like to accept it?

Joe knew that he had about 3 seconds each time, and he took full advantage of each and every 3 second opening. It was quite creative, actually, but the novelty of it wore off by about the third message. After 2 days, I was thoroughly annoyed with Joe and his constant barrage of 3 second messages.

Fortunately, I was finally able to get down to the jail and shortly thereafter was able to dispose of his case quite favorably.

The next day, I was checking my messages, and to my chagrin, there was another set of messages from him. I sighed and thought, "What the hell does he want from me now?"

You have a collect call from: "Hey Ms. Black, it's..." Would you like to accept it

You have a collect call from: "It's Joe, Ms. Black..." Would you like to accept it?

You have a collect call from: "I just wanted to tell..." Would you like to accept it?

You have a collect call from: "Thanks Ms. Black..." Would you like to accept it?

You have a collect call from: "Thanks for your help..." Would you like to accept it?

I actually laughed out loud. That was the last thing I'd expected. I didn't get thanked all that often in that job. And I certainly hadn't expected it from Joe. It made my day.

Posted at 09:27 AM in life as a PD | Permalink | Comments (0)

I'm tired of spam comments. Here are some offenders.

May 25, 2010

Image by Getty Images via @daylife

I'm so tired of spam comments. A good number sneak past my spam filters all the time. I had to enable comment moderation in order to prevent them from benefiting from my blog's Google juice.

I'm going to out some recent offenders in this post. If only to make me feel better. Here it goes:

In the comments to a post on cloud computing: "We understand the complexities involved with a DUI in Orange County, and can create a strategy and represent you before the Orange County Criminal Courts and the Department of Motor Vehicles ~ YOU HAVE A 10 DAY DMV DEADLINE FOR YOUR ATTORNEY TO CONTACT DMV TO STOP THE LICENSE SUSPENSION ~" (Compliments of Christopher Koch & Associates in California)
"How to choose a bankruptcy attorney-If you go on the internet these days you will find a growing number of bankruptcy attorneys advertising their services. Bankruptcy filing in California is increasing at a record pace due to ongoing financial struggles consumers are facing due to job losses and toxic home loans. While many Californians consider filing bankruptcy, the need for a good bankruptcy lawyer...(blah blah blah blah goes on for much longer...)" (Compliments of...you guessed it..Law offices of Zhou and Chini)
"Ya, what you about legal Reacher is having good Or bad....Now the age of internet and modern communication networks now allows high quality legal research and legal back office services to be performed around the world." (Compliments of Law Wave)
"That’s great to hear! Please let us know what you think of it. I am greatly enjoying it, myself. Thanks for the update." (Again, inanity from Koch & Associates)
"You definitely have a great post over here! I am starting to understand better how making money using blog works. Thank you." (More inanity from Law offices of Zhou & Chini)
"That’s great to hear! Please let us know what you think of it. I am greatly enjoying it, myself. Thanks for the update." (Again, Koch & Associates, if you can believe it)
"Great job! This one is an instant classic! I really enjoy this post. Thanks for your info." (From, wait for it...Law office of Zhou & Chini)
"That’s great to hear! Please let us know what you think of it. I am greatly enjoying it, myself." (More witty satire from Law office of Zhou & Chini)
"That is one of the most incredible feelings on Earth." (Law office of Zhou & Chini. Again. Just shoot me now)
"Nice site! Very professional and full of information." (Koch & Associates. Calgon, just take me away already)
"It's really amazingly well written article." (Habla ingles Koch & Associates?)
"I am always up for a thoughtful discussion like this. Thank you for bringing a well thought out and reasoned comment to the discussion." (Wow. Thanks for the fantabulous insight, Koch & Associates)
"I believe that privacy has to be looked at more and more the way that the social world is moving. It is so important to take precautions when partaking in online activity." (Attorney Disability Insurance .com)

Posted at 01:45 PM in Other | Permalink | Comments (0)

Cloud computing, time tracking, voice command apps, digital dictation, online collaboration and more.

May 19, 2010

Image via Wikipedia

Also, you may know that I recently began guest blogging at the Firmex Online Document and Collaboration blog. My posts appear every Tuesday. If you're interested in cloud computing and other technology issues for lawyers you may enjoy these posts. Here are some of my most recent posts:

Posted at 07:00 AM in Law & Technology | Permalink | Comments (0)

Looking forward to trying out Westlaw Next

May 18, 2010

Image via Wikipedia

A few weeks ago I lamented that it appeared that I would not have access to Westlaw Next this summer as I researched cases for the annual update of the Thomson West treatise that I co-author, Criminal Law in New York.

I'm happy to report that my editor contacted me last week and advised me that I'll have access to Westlaw Next within the next few weeks. I'm really looking forward to giving it a spin, since I've heard great things about the new interface.

Once I've had a chance to try it out, I'll report back regarding my experiences with it.

Posted at 01:59 PM in Other | Permalink | Comments (0)

A Call to Legal Cloud Computing Providers (please RT)

May 18, 2010

Image by factoryjoe via Flickr

I'm writing a book about cloud computing for lawyers that will be published by the American Bar Association in early 2011. A section of the book will profile the legal cloud computing products that are currently available to attorneys for use in their practice. I'm aware of many of the legal cloud computing products on the market, in part due to my screencasts at lawtechTalk, but new ones are released every day and I'm sure there are some that I've not yet come across.

If you'd like your product to be included, please get in touch with me and provide me with information about your product and your company via the contact form in the navigation bar above. Please reference this post in the first sentence of the email so I'll know that you're writing to me pursuant to this post.

I only plan to include products made specifically for the legal field, not business-users generally. Otherwise this section of the book would be never ending. I may not include all products and will exercise my discretion regarding those which are included.

Thanks and looking forward to learning about more cloud computing products.

Posted at 10:51 AM in Other | Permalink | Comments (0)

Minimize Cloud Computing Risks

May 17, 2010

This week's Daily Record column is entitled "Minimize Cloud Computing Risks."

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

*****

Mainstream adoption of cloud computing is a relatively new phenomenon, as is the introduction of cloud computing products into the legal marketplace.

Most legal cloud computing vendors are start-up companies that haven’t been in the business of providing legal cloud computing products for more than two years.

Also noteworthy is the fact that most of the owners of those companies are software developers, not lawyers. The products that have been created undoubtedly are useful and most certainly will aid lawyers in simplifying their practices. The vast majority of cloud computing services, however, were created by software developers with lawyers’ work flow in mind, rather than lawyers’ ethical obligations to keep client data safe, secure and confidential.

Therein lies the problem with many cloud computing products currently available: They simply do not provide the security measures lawyers require in order to meet their ethical obligations.

It’s not just small scale cloud computing products that have that problem. Until very recently, even Google didn’t provide its enterprise customers with geo-redundancy — a practice by which data is backed up frequently on servers located in different geographic regions.

Fortunately, the North Carolina State Bar recently issued a proposed formal ethics opinion (proposed 2010 FEO 7), which may assist lawyers in assessing the risks of using a particular cloud computing product in a law practice.

The opinion offered a broadly framed, elastic standard that permits individual attorneys to make careful choices about the technologies that best fit their individual practices. I submitted a letter to the NCSB as an interested party supporting just such a standard, so when the NCSB notified me of its proposed opin- ion, I was very happy indeed.

In the opinion, the NCSB offers lawyers a detailed list of ques- tions to ask Software-as-a-Service vendors, suggesting that satis- factory answers may reduce risk to confidentiality and security of client data:

What is the history of the SaaS vendor? Where does it derive funding? How stable is it financially?
Has the lawyer read the user or license agreement terms, including the security policy, and does he or she understand the meaning of the terms?
Does the SaaS vendor’s Terms of Service or Service Level Agreement address confidentiality? If not, would the vendor be willing to sign a confidentiality agreement in keeping with the lawyer’s professional responsibilities? Would the ven- dor be willing to include a provision stating the employees at the vendor’s data center are agents of the law firm and have a fiduciary responsibility to protect client information?
How does the SaaS vendor, or any third-party data hosting company, safeguard the physical and electronic security and confidentiality of stored data? Has there been an evaluation of the vendor’s security measures, including firewalls, encryption techniques, socket security features and intrusion-detection systems?
Has the lawyer requested copies of the SaaS ven- dor’s security audits?
Where is data hosted? Is it in a country with less rigorous protections against unlawful search and seizure?
Who has access to the data besides the lawyer?
Who owns the data — the lawyer or the SaaS vendor?
If the lawyer terminates use of the SaaS product, or the service otherwise has a break in continuity, how does the lawyer retrieve the data and what happens to the data hosted by the service provider?
If the SaaS vendor goes out of business, will the lawyer have access to the data and the software or source code?
Can the lawyer retrieve data off of the servers for his or her own offline useful backup?
If the lawyer decides to cancel the subscription to SaaS, will he or she get the data? Is data supplied in a non-proprietary format compatible with other software?
How often is the user’s data backed up? Does the vendor back up data in multiple data centers in different geographic locations to safeguard against natural disaster?
If clients have access to shared documents, are they aware of the confidentiality risks of showing the information to others?
Does the law firm have a back-up for shared document software in case something goes wrong, such as an outside server going down?

All in all, the NCSB’s opinion is very helpful for lawyers con-sidering using a cloud computing products in their practice. It allows them the flexibility to determine the technologies that best fit their individual law practices while providing much- needed guidance

Make no mistake about it — cloud computing undoubtedly is the wave of the future, but ample room remains for improvement. As lawyers learn more, they’ll begin to ask more compelling questions of SaaS vendors.

Cloud computing providers who wish to succeed in the legal marketplace will need to ensure a number of security measures are in place in order to make their products palatable to their target market. The NCSB’s list of questions is a very good place to start.

Posted at 08:46 PM in Daily Record--Legal Currents Column, Law & Technology | Permalink | Comments (2)

Episode #9: Keep track of your time using Chrometa, which offers time tracking software for lawyers

May 17, 2010

Image by kylemac via Flickr

I've just released a new lawtechTalk episode that you can watch for FREE.

Episode #9 (Part 1 & Part 2) features, and is sponsored by Chrometa, which offers time tracking software for attorneys. Part 1, the introduction, is approximately 7 minutes long and Part 2, the demo and interview portion, is approximately 10 minutes long.

In this episode of lawtechTalk, you'll learn how Chrometa helps you track your time, allowing you to keep track of and bill for time that you would have otherwise forgotten about. Chrometa operates quietly in the background on your PC, logging all the time that you spend on your computer, as you view documents and emails, use applications, make phone calls, attend meetings, and everything else that you do on a day-to-day basis.

During this episode I interview Brett Owens, the CEO and one of the co-founders of Chrometa.

There are 2 parts to this episode, which can be viewed here: Part 1 & Part 2.

Posted at 10:37 AM in Other | Permalink | Comments (0)

Dear Judge Kaye

May 13, 2010

This week's Daily Record column is entitled "Dear Judge Kaye."

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

*****

Dear Judge Kaye

In early May you sat on a panel sponsored by the American Bar Association held during the Women in Law Leadership Academy in Philadelphia.

As reported in a Legal Intelligencer article, “Judges Provide Tips for Female Litigators,” there were more than 500 women in the audience. Also sitting on the panel were U.S. District Judge for the Eastern District of Pennsylvania, Norma L. Shapiro, and U.S. District Judge for the Northern District of Texas, Barbara M.G. Lynn.

Advice offered during the seminar addressed the appropriate attire for women attorneys, the levels of confidence that women should exude while in court, how loudly women should speak in court and that women should “woman up” and avoid crying in court.

As I understand it, during the discussion you indicated that you “endured” private practice for 21 years before becoming a judge and suggested that women lawyers should “agonize privately” in the face of difficulties at work. You also lamented that women were leaving the practice of law saying, “If you don’t stay, then the rest of this conversation becomes kind of academic.”

Before I address those comments, I would like to preface my remarks by saying that I admire you greatly. You are a beacon of light in the upper ranks of an otherwise male-dominated profession and have always been an inspiration to me.

I have followed your tireless attempts to eradicate the inequities in our profession and forward the careers of women lawyers, and I have the utmost respect for your efforts in this regard. Your hard work and altruistic spirit is unrivaled. You are a true leader and you are undoubtedly one of my heroes.

For those reasons, it pains me to say that I disagree with the advice you offered women attorneys.

First and foremost, I don’t think female attorneys, or male attorneys for that matter, have an obligation to “stick it out” as a lawyer if they are absolutely miserable with their career choice. We’ve all been handed just one life to live, and it can change quite suddenly, when you least expect it, as I unfortunately learned when my husband was diagnosed with testicular cancer just three weeks before our wedding. He’s long since recovered from that illness, but the experience drastically changed my worldview.

As far as I’m concerned, we’d best make the most of this life while we still have it. “Enduring” an unhappy, day-to-day existence out of some sense of obligation to a profession that seems reluctant to accept you for the person you are seems pointless at best, and torturous at worst. As women, we bring a different set of experiences,
skill sets and perspectives to the practice of law, whether due to socialization, biology or a combination of the two. Our profession currently seems unwilling to accept that which we bring to the table. We are expected to behave like men in our professional lives and are penalized for failing to do so.

On the flip side, we’re also penalized if we allow those “masculine” behaviors to cross over into our social and private lives. Our lives have become a bizarre, complex waltz wherein we wear different hats, depending on our environment, and attempt to modify our behavior accordingly lest we face the wrath of a judge, colleague, neighbor or preschool teachers.

Perhaps one day our profession will accept women for who they are and embrace the unique skills and perspectives they bring to the table. Until then, many women will abandon the profession for greener pastures rather than endure the misery of non-stop scrutiny and unending attempts to alter their “feminine” personalities.

I don’t blame women for leaving, I blame our profession; however, I have faith that attitudes will change over time and more women will stay on the legal career path.
Judge Kaye, I’m quite sure your hard work and tireless efforts on behalf of women in our profession has not been wasted. Slowly, but surely, more women lawyers will rise through the ranks and hold positions of power, inspired in large part by the shining example of women like you.

Posted at 03:41 PM in Daily Record--Legal Currents Column, Finding Balance | Permalink | Comments (1)

Gee Mister, you sure look nice in those bike shorts.

May 13, 2010

Image by richardmasoner via Flickr

Here's another tale from my years as an Assistant Public Defender.

During my first year as an Asst. PD, I was assigned to represent a guy who was charged with exposing himself--a misdemeanor. The accusatory alleged that he pulled down his pants while in his mother's back yard and told a man who was riding by on his bike that he "sure looked nice in those bike pants."

Sounds pretty cut and dry, right? Well, it turns out my guy was mentally disabled. He was functional, but he definitely had issues. And, not just mental issues--physical issues as well. Urinary issues, to be exact.

When I first met him, he told me all about his urinary incontinence issues. Apparently, he had sudden, overwhelming urges to urinate, and he had a tendency to whip it out wherever he happened to be. And, he was in the process of doing so on the day in question, when a guy rode by on his bike, and my client felt the need to compliment him on his biking attire. It was fairly obvious to me that my client was being sincere. And it was pretty clear that the guy was mentally challenged. If nothing else, that was quite obvious.

The ADA and I were both new at the job, and handled only misdemeanors. Generally, we only dealt with a slew of shoplifting cases from the mall, occasional assaults, and minor property damage (It wasn't until we were promoted to city court that we were exposed to the dirty underside of human existence: drugs, prostitution, public lewdness--the revolving door of the criminal justice system). We weren't sure what to do with him. He had minimal contacts with the criminal justice system, but the case wasn't a typical case for a suburban town court.

We discussed my client's case briefly and decided to adjourn it so that we could talk to higher ups at our respective offices for guidance.

On the adjourned date, my client approached me and pressed a manila envelope exploding at the seams into my hands. He advised me that it contained medical records that established his medical condition and thus his need to drop trousers whenever the need arose. As he walked away from me, I started to remove the documents from the folder when I noticed that they were damp--peculiarly damp. And, they smelled funny. They smelled kind of like--urine.

Somehow, I managed to keep my lunch down. I'm still not sure how.

I held the driest corner of the envelope between my thumb and forefinger and quickly approached the judge's clerk. I asked her if we could call my guy's case right away. As soon as his case was called, I asked to approach the bench and explained the situation to both the judge and ADA. "I swear. He peed on the papers. Here, see for yourself. Can't we just unload this one now?"

Surprisingly, they weren't all that interested in examining my urine-soaked offering.

The good news was that the ADA had spoken to his supervisor, and was authorized to extend a very reasonable offer. We gladly accepted it and my mentally disabled, urinary challenged, client was free to leave.

My parting advice to him was try to pee in the bushes in the future--and to keep his fashion opinions to himself.

Posted at 03:19 PM in life as a PD | Permalink | Comments (1)

My first jury trial

May 09, 2010

Image by aprilzosia via Flickr

I've decided to write about my experiences as an assistant public defender in Monroe County.

Today--my first jury, in 1996, I think it was. This was, all things considered, the least interesting of all my jury trials, but it's as good a starting point as any.

I had been assigned to a town court rotation and was about to rotate out of that court into a different town court rotation, as was the ADA assigned to that court with me. Neither of us had ever done a jury trial.

Our judge was offended at the thought that we'd leave his court without having done a jury trial so he forced our hand. I had a client who was charged with Criminal Mischief in the Fourth Degree (Class A misdemeanor, punishable by up to one year in jail) and Attempted Petit Larceny (Class B misdemeanor punishable by up to 90 days in jail).

My client didn't have an extensive record, but had done a a short stint in jail on a probation violation in the past. He was accused of breaking into a car in the middle of the night and attempting to steal a cell phone, breaking the charger in the process.

He's been discovered in the car by a neighbor of the complainant. They both lived in the same apartment complex and this witness (who was, if I recall, a part-time security guard who really, really wanted to be a cop) testified that he watched my client walk up the street, trying the door handles of each car until he happened upon the complainant's, which happened to be unlocked.

The witness then ran outside, confronted my client, and asked him what he was doing. My client allegedly said he was the boyfriend of the owner of the car, but wasn't able to state her name.

The cop-wanna-be yelled for someone to call the cops and restrained my client until the cops showed up.

The ADA's plea offer was fairly reasonable, but the judge indicated that he'd only accept a plea to the top charge and would sentence my client to 1 year in jail. As I'd mentioned, the judge wanted a trial, and damned if he was going to get one. Obviously, there was absolutely no incentive to plea, so we set a trial date.

The trial started on 10 pm on a week night--yep--10 pm. This was a town court that met at night, and the trials occurred after regular court.

We picked a jury, the gung-ho cop-wanna-be witness showed up--of course. His testimony didn't differ much from what I'd expected, although he clearly exaggerated what he could see, given that it was pitch black outside when he "witnessed" the break in. The key point I brought out on cross was that he really couldn't see what my client was doing inside the car given the lighting and his location inside the building when he first saw my client.

His big mistake was that he was so eager to convict my client that he made up all kinds of details about the interior of the car. He was like the Energizer bunny on crack--he kept going, and going, and going. I asked him question after question about the phone, the charger and the car and he oh-so-helpfully came up with all sorts of random details that the owner later contradicted when she testified.

In fact, she seemed downright confused when I asked her about them. I'd describe the ridiculously crazy, detailed description of the phone, the charger or the dashboard and then she'd look at me like I was on drugs and say "no, it actually looked totally different than that..." and then she'd go on to tell me what it really looked like. It was classic.

She also stated that the phone had been moved, but was never removed from her car. According to her, a very small piece of plastic had broken off of the charger. She also admitted that it wasn't necessary to damage the charger in order to steal the phone. And, she testified that my client was NOT her boyfriend. Big shocker there.

My client did NOT testify. Are you surprised?

The jury was out for maybe 20 minutes and returned with their verdict at 2 am. Yep. You read that correctly--2 am.

They'd apparently come to the conclusion that my client was trying to steal the phone but failed and inadvertently (ie. unintentionally) damaged the charger in the process. Accordingly they convicted him of Attempted Petit Larceny and acquitted him of the more serious charge. Although he'd been charged with the reckless sub-division of Criminal Mischief, I think they simply compromised in order to get the damn thing over with. It was late and everyone was tired.

The judge promptly (and unhappily--he'd been gunning to send him away for a year and my client knew it) sentenced him to 90 days, on the spot, in front of the jury. The best part then followed. My client jumped up, shouted "Yes!", grabbed a garbage bag with his clothes from underneath the table and walked over to the court deputy, his arms extended. As he was lead away, he yelled over his shoulder "Thanks Ms. Black!"

The look on the face of some of the jurors was priceless. They clearly wondered if they'd made the wrong decision. Too little, too late, I guess.

Although I hadn't technically won in that I'd not gotten a "not guilty", I had a (very) happy client and a trial under my belt. All in all, it was a good night--albeit a really late one.