Dad! That’s So Unfair! I’m Calling My Lawyer!

Bashing the U.S. legal system is a popular pastime. However, I often see news from other countries that confirms that the U.S. really hasn’t got a lock on silly legalism. Here’s one from Canada where a 12 year old child of divorced parents got her court appointed lawyer to petition the court to overturn her father’s decision to ground her. Her lawyer should have told her to get a life because little girls don’t always get what they want. Instead this lawyer wasted the court’s time by filing the petition. Worse yet, the judge granted the petition and overturned the grounding. Guess that kid knows whose the boss now and it isn’t her father.

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Trial By Character Assassination

As a trial attorney, I often encounter clients who want me to do anything I can to embarrass their opponent whether relevant to the case or not.  They seem to believe that embarrassing the other side is the key to winning. In this case, the Fifth District Court of Appeal admonishes defense counsel for cross-examining on embarrassing but irrelevant matters.  The Fifth DCA reluctantly affirms the jury’s verdict because counsel for the plaintiff failed to make timely objections to the “unprofessional” conduct of defense counsel.  The Fifth DCA wrote the opinion soley for the purpose of admonishing defense counsel for his conduct and to put other lawyers on notice.

The moral of this story is that there are limits on what your lawyer can do to embarrass the opposition.  If your lawyer brings up matters that are too prejudicial, a favorable verdict may be reversed so be careful what you ask for.  If your lawyer refuses to bring up matters solely to prejudice and embarrass the opposing party, she might just know what she is doing.

9th Circuit Court of Appeals Says Probable Cause Needed to View Electronic Messages

The 9th Circuit Court of Appeals, which is located in San Francisco, has ruled that law enforcement needs a probable cause warrant to read copies of your electronic messages that have been stored less than 180 days even if you have already downloaded or read them.  The ruling also prohibits employers from getting the contents of employee emails or text messages from the service provider without employee consent.  See, Quon v. Arch Wireless Quon was an Ontario, California Police Officer who was provided with a two way alphanumeric pager by the Ontario Police Department.  He used it to send both work and personal messages.  Quon sued Arch for violation of the Stored Communications Act and the Ontario Police Department for violation of the Fourth Amendment.  The 9th Circuit ruled that Arch did violate the Act and that the Police Department violated the Fourth Amendment.

The Electronic Frontier Foundation provides an analysis of the opinion on the Deeplinks Blog.  Although many headlines would have you believe that this is a broad ranging opinion that prohibits employers from reading text messages in general, the opinion may be more limited than that. Quon was a civil service employee working for a government agency that was also a law enforcement agency.  The Ontario Police Department is subject to the Fourth Amendment, but most employers are not.  The Fourth Amendment limits government not individuals.  However, there may be other limits on the ability of individuals to snoop.  The 9th Circuit is also famously liberal so it remains to be seen how other courts will interpret the Stored Communications Act as it applies to employers seeking information transmitted via devices owned and paid for by the employer.

Ironically, the 9th Circuit is the appellate court on which Judge Kozinski, who got into some trouble due to a personal web page, sits.

Vacation Notice

When I established this blog, one of the things I said I would do is inform people of office events.  This is my first, but not my last, post about office news and scheduling.  The week of June 23 to June 27, 2008 Linda will be out of the office.  I have a trial Tuesday so I’ll be preparing all day Monday and trying the case all day Tuesday.  I then have various hearings and depositions the rest of the week. Consequently, no one will be answering the phone this week.  If you call, please leave a message and I’ll call you back.  My office hours will also be unpredictable.  Thankfully Linda returns on June 30.

Get It In Writing AND Make It Clear

I was listening to a podcast of a speech recently when the speaker said something such as “Lawyers always say, get it in writing because then there is no doubt what you meant. You can’t argue with what’s written.” It was like nails on a chalkboard to my ear. The naivete! Only a non-lawyer could say that getting an agreement in writing ends all disputes.

You should get any important agreement in writing.  Without a written agreement or understanding, there can be wild variations and disagreements as to what was said or agreed upon.  However, getting it in writing won’t eliminate all disputes.  A written agreement will certainly reduce the chance of a dispute and eliminate many areas of dispute, but no agreement is ever perfect.

Even with a writing, disputes can arise in a variety of ways.  Unforeseen circumstances or events can arise leading to a disagreement over whether and how the agreement covers that situation.  A carefully drafted agreement may nevertheless contain language that is ambiguous in retrospect or in actual practice although it seemed clear at the time it was written.  Problems can even arise when a document is overwritten in an effort to address every single potential contingency.  A whole body of law deals with how contracts are to be interpreted.  For example, it is a well recognized legal principle that ambiguities in writings are construed against the drafter of the writing.  This body of law has developed because even written agreements aren’t always crystal clear and can require interpretation.

You must be careful not only to get it in writing, but to make sure that the writing is clear.  Say what you mean and mean what you say.  Merely getting it in writing alone is not always enough.

Even Judges Cause Themselves Problems Online

Judge Alex Kozinski, who is the Chief Judge of the Federal 9th Circuit Court of Appeals, found himself in the awkward position of occupying the limelight during a criminal obscenity trial due to materials on his website.  Apparently appellate judges will sometimes preside over lower court criminal trials when their schedule allows.  Thus Judge Kozinski came to preside over the criminal obscenity trial of adult film maker Ira Isaacs. Isaacs was charged with criminal obscenity for producing fetish films that featured bestiality and defecation.  Someone tipped off the LA Times that there was “similar material” posted at http://alex.kozinski.com. (This website has since been made inaccessible.)  The prosecution asked for a recess while they decided whether to seek his recusal on grounds of conflict of interest.  Actual examples of the materials on the Judge’s website are available here. (Warning: Contains some NSFW images.)

The materials at issue were contained on a subdomain of the Judge’s website that only could be reached by typing the exact URL.  It was not, however, password protected. In other words, you could only find the materials if you knew where to look, but if you knew the URL they were readily accessible.  I haven’t seen any Ira Isaacs films so I don’t know what those images are like.  But according to the video of a news report here, the Isaacs films are about as vile and disgusting as a film can get.

Ironically, Judge Kozinski is an advocate of the First Amendment and privacy rights.  When he discovered that court administrators had placed pornography blocking filters on court computers, he led the effort to get the filters removed. Frankly, I’m much more upset by the idea that he defended the ability of government employees to use government computers to view pornography (probably on government time) than I am by the idea that he has some tastelessly “humorous” photos on his private website. I can’t see any reason for government employees to have access to porn at work, including salaried Federal judges.

The Judge’s website was maintained on his private PC and used no government resources.  The Judge thought that his website was “private storage” and not publicly accessible, but the bottom line is that no one is immune from embarassing themselves online.  There is always the risk that anything posted online can be found.  The Judge could have saved himself a lot of embarassment by not posting potentially embarassing materials to a website. All he had to do was keep them offline.

This Blog Now Part of the Florida Blog Watch

I am pleased to announce that this blog can now be found through the Florida Lawyers Blog Watch, which was started by West Palm Beach attorney Ron Chapman and legal web marketing consultant Steve Matthews.  The Florida Lawyers Blog Watch is an aggregation of the RSS feeds from Florida law related blawgs.

MySpace Can Help Your “Case” Too

I’m picking on MySpace because it is the biggest social network and was involved in both of my cases. Everything I say here is equally applicable to Facebook, Flickr, Twitter, LinkedIn, and anything that you publish online or that is published about you online.  You don’t have to be a blogger or into social networking to get mentioned online.  I’m using the word “case” in the broad non-legal sense of the word as in stating your case to an employer, a friend, or the public at large.

Even innocent things may harm you. At least one prospective school teacher was allegedly denied her teaching degree due to her online activities. You may be a kind, considerate, thoughtful person, who excels in school, but if all you post are party pictures, then you may be giving the public the false impression that you’re a hard drinking, hard partying, ne’er do well. You need to post pictures and comments about your charity work, study habits, and service as the designated driver. In other words, you need to make sure your public image is an accurate view of the well rounded complex person that you are.  All it allegedly took in that one case was a single “drunken pirate” picture. So maybe the best policy is no “drunken” pictures at all. If you’re not complex and well rounded, but want to be employed — fake it!

If you’re in business or politics, you have to be careful not to offend. If you live in “red America” you don’t want to advertise your undying appreciation of all things Obama or Clinton. Likewise, if you live in New York City or San Francisco, you don’t want to advertise that you are president of the George Bush Fan Club. If you’re a small town mayor, you may not want to post pictures of yourself in lingerie posed on the town’s fire truck (no matter how good you look in lingerie.)   I have a personal blog and I think twice about anything I put there just like I think twice about every tweet.

Before you post anything online, you might want to ask yourself some questions like:

• Will I still be happy with this in five, ten, or fifteen years?

People mature and change over time. I read an advice column in WIRED magazine recently where an employer expressed doubt over hiring someone several years out of school because of their partying image on Facebook. The wise answer was to cut the kid some slack. If you’d had Facebook in college, could you have passed that test?

• Would I want my mother, father, child, student, Sunday school class, significant other, spouse, co-worker, or employer to see or read this? (This goes for both current and future members of these categories.)

You may not be married yet, you may not have children yet, but you may someday. When you do, would you want them to find what you’ve posted? Will some future boss quietly not hire you because of something he finds out about you online?  Remember employers, insurance adjusters, opposing counsel, police, school administrators and others can and will look you up online.

• Am I giving a false impression of myself?

Could I give a more balanced impression of myself if I post pictures of me helping out at the soup kitchen or tutoring kids next to the pictures of my last drunken party?

I had a friend who was involved in local politics long before the Internet.  Any time he posed for a picture he made sure his hands were empty and his tie was tightened or off. He believed any time you see a picture of someone holding a drink at a party that you assume that they’re drunk or getting drunk even if they’re drinking club soda or water. His tie was always tight for the same reason. A loose tie makes you look like a lush. I still remember his advice when I pose for a picture. It was good advice then, and it is better advice now. By the way, if you’re undressed, or half dressed and anyone takes out a camera — run! And don’t ever email anyone a digital photo you wouldn’t want the entire world to see.  Enough of these kinds of photos have found their way to the web without the subject’s permission that one Congressman thinks there ought to be a law.

If you manage your online image from the beginning, you won’t have to hire someone to clean it up for you later. Google your own name periodically, especially if you are interviewing for a job, are involved in a lawsuit, or have applied for anything that might involve investigating your background.  If you find any dirt, don’t despair! You can clean it up. For a few dollars a year, you can register your own name as a domain and set up a webpage about yourself.  If you post regularly, this will help keep a positive image of you at the top of the search engines. Just because you’re paranoid doesn’t mean you’re not being Googled! Seriously, get your online house in order, keep it in order, and social media can be your friend presenting a positive online image for you to prospective clients, employers, mates, and others. Now get out there and Google. Good luck!