Thursday, January 27, 2005

~ Michigan Supreme Court rules private investigations is not stalking ~

From the hallowed Supreme Court of Michigan, via the Detroit Free Press:

A private investigator's surveillance for an insurance company does not constitute harassment under the state's anti-stalking law, the Michigan Supreme Court ruled Tuesday. Read the full story

The Court of Appeals' ruling included this analysis of the state stalking statute:

The civil stalking statute, MCL 600.2954, creates a civil cause of action for victims of stalking as defined by the criminal stalking statute, MCL 750.411h, regardless whether the alleged stalker is charged or convicted under the equivalent criminal stalking statute. According to MCL 750.411h(1)(d), "stalking" is the "wilful course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested and that actually causes the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested." The term "harassment" as used in subsection 411h(1)(d) is defined as: . . . conduct directed toward a victim that includes, but is not limited to, repeated or continued unconsented contact that would cause a reasonable individual to suffer emotional distress and that actually causes the victim to suffer emotional distress. Harassment does not include constitutionally protected activity or conduct that serves a legitimate purpose. [MCL 750.411h(1)(c).] {Emphasis is mine.}

You have to wonder what planet the Court of Appeals was on when it determined that the surveillance was NOT serving a legitimate purpose. Here's some more of the Appeals Court's insightful conclusions:

After the first surveillance was thwarted when plaintiff made it clear that he did not consent to being followed by Conley, Conley nonetheless continued to appear within plaintiff’s sight until the police arrived. Once plaintiff detected Conley and Stovall in the second and fourth surveillances, a question of fact arose with respect to whether their continued appearance in his sight were unconsented contacts for purposes of the civil stalking claim. {Emphasis is mine.}

This made me laugh. How do these judges think we accomplish legitimate investigative goals when the subject is an adversary of our client? Walk up to him and say, "excuse me, I would like your consent to gather evidence that may undermine your claim"?

Thankfully the Michigan Supreme Court displayed better reasoning powers.

We conclude that surveillance by licensed private investigators that contributes to the goal of obtaining information, as permitted by the Private Detective License Act, MCL 338.822(b)(i)-(v), is conduct that serves a legitimate purpose.
Now, that was easy! Private investigators are being challenged in courts and legislatures in our pursuit of information through gathering documents and in observing human activity. This is where the demand for privacy rights has gotten out of hand. Private investigators are not observing for idle curiosity. We perform information gathering in legal cases for the purpose of establishing the legitimacy of a claim, not to intrude or make contact that creates emotional distress. But that hasn't stopped the litigious!

Read the complete post!

~ reality is just a blur ~

Here's a curious finding from the Pew Internet and American Life Project, which I referred to in an earlier posting, that got me thinking about a serious problem. The Pew study findings reveal that only a small percentage of Internet "researchers" can tell the difference between returns on their search terms and the resulting advertisements. Slashdot noted this finding, citing a small story on it at the ABC News site.

The Pew Report makes this wry observation about fuzzy human logic:
Only 38% of users are aware of the distinction between paid or sponsored results and unpaid results. And only one in six say they can always tell which results are paid or sponsored and which are not. This finding is ironic, since nearly half of all users say they would stop using search engines if they thought engines were not being clear about how they presented paid results.

This disconnect between what people observe and what they think they observe got me reflecting on the widely noted fallibility of eyewitness testimony. One of the significant findings Elizabeth Loftus made was the weak correlation of confidence to accuracy. Even as event details deteriorate the witness maintains a high degree of confidence in the accuracy of their recall. James Doyle, Loftus' co-author of Eyewitness Testimony: Civil and Criminal writes here about the intersection of the psychological and legal work. A detailed, hands-on guide to working with this quandary in criminal defense matters is developed in a recent article by Lisa Steele, Trying Identification Cases.

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~ Everyday Speed In the New Year ~

Speed, speed, and more speed?

I know this doesn't apply to you but the increase in fines for speeding may affect someone you know or love. California will now impose a $750 fine, on a second conviction within three years, for driving over 100 mph. This amends Section 22348 of the Vehicle Code. The fine jumps to $1,000 per conviction for additional offenses committed within five years of the first two offenses. Just in case your foot weighs heavy on the pedal at the wrong time, you might want to consult the Nolo Press hot tips on how to beat a speeding ticket. If you feel a need to monitor your teenager's driving habits a little black box ("event data recorder") for cars is available as an add-on feature. California law provides that the black box data can only be accessed with permission of the owner or by court order. The owners manual for cars manufactured after July 2004 must disclose if an event data recorder is installed.

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Monday, January 24, 2005

~ not your everyday search tool ~

Everywhere there is Google. I bet most of you make your first sweep though the web maze starting with this popular search engine. I'll let you in on a few searcher secrets. Not all of the tools are available at the main screen. Here are a few other ones.

Google Personalized is still in beta but may help target your searches more precisely. The notion is to select from their broad categories, such as "law", "technology" or "small business", then enter your search terms. You can set the degree of personalization, which will add or eliminate links returned from your query.

If you want to select news or websites with particular keyword content, delivered to your email or in a browser, go to Google Alerts.

If you want to continually search across news, web pages, blogs, and video and image content you'll want to get a feed reader and start loading selective sites. Find out all about feeds from the Washington and Lee University School of Law. This is a great way to promote your own website. By placing some code in your website template you can get your readers to subscribe to the content at your site, without having to remember to go there. This IS the future of web based promotion. Don't be behind the curve.

Jay Rosen, Chair of Journalism at NYU, presents a succinct yet persuasive essay on the nudge online journalism is giving to traditional styles of information gathering. Increasingly, the locus of news content is the source of the news rather than the distributor.

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Snooping on kids: Court rules, do it the old fashioned way

Eavesdropping on your children's telephone conversations, not recording them but LISTENING to them, could get YOU in trouble with the Washington State Supreme Court. "...the primary issue before the high court was whether the use of an extension or speaker phone was considered eavesdropping. A secondary issue was whether there was an exception in the case of parents and their children." Read the complete decision

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Monday, January 17, 2005

~ the law office far away ~

A free program allows you to access the entire contents of your computer from a remote location. GoToMyPC has no installation software and can be set up in a matter of seconds. Wells Anderson reviews, in the current issue of ABA GP Solo Magazine, the latest easy to use, work-facilitating computer tools.

Read the complete post!

~ This Week At Work ~

The future is naked. Middle school students advised that stripping, nude dancing is lucrative. And your parents wanted you to be a lawyer! Huh!

Read the complete post!

~ Who Let the Humans Out? ~

The San Francisco politicos are legislating proper dog guardian (that's you, the human) behavior, as reported in The Political Dogs and Chronicle. A proposed ordinance outlines expected animal treatment related to shelter and refreshments. Alert fellow attorneys. We know what happened to the last San Francisco attorneys who didn't curb their dogs... Surely you haven't forgotten THAT!

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the heat in boutique

Boutique litigation is in. Personal injury is out. So sayeth the law trend meister, Bob Denny, reporting in the current ABA Law Practice Management. The sources for this "study" aren't clear and may not be scientific but it sure is fun to read. Writing for the solo and small firms, Carolyn Elephant talks of trends but mostly addresses concerns of lawyer entrepreneurs.

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Monday, January 10, 2005

~ Hire The One Who Works for You ~ Investigators in Civil Cases

Attorney Lee Milford offers tips to lawyers hiring private investigators. These are summary points he develops:

+ Investigators add value to a case by finding facts that protect your client from further harm.
+ Investigators can conduct pre acceptance case assessments to determine assets and develop background on opposing parties, and provide a profile of experts and witnesses.
+ Investigators access information, not available to the attorney, through specialty sources. They have skills in computer forensics and in deciphering a subjects' internet activity.

Read the article by selecting the highlighted link,"Read the complete post!"
Using Private Investigators in Civil Cases
By Lee Stapleton Milford

As a former federal prosecutor, I was used to working with federal agents. Indeed, cases reached the U.S. Attorney's Office for prosecution by way of a federal agent who had done the investigation. This was true whether the case was a simple arrest of an individual smuggling narcotics into the airport via another country, which requires very little investigation, or a complicated money laundering or healthcare fraud, which requires the expertise of more than one agency.

When I entered private practice and began doing commercial litigation and white-collar defense cases, it seemed intuitive and natural to continue to use investigators to handle certain aspects of my cases. I was, and continue to be, quite surprised that many litigators who have not had the benefit of working with investigators do not realize the added value that an investigator can bring to a case.

For instance, an extremely wealthy married man on the West Coast found himself in the midst of a breakup with an equally prominent married woman who had left her spouse for him. As these things often play out, she threatened to sue him for palimony, although she was no doubt getting a great deal of alimony from the husband she had left. She claimed not that she was going to be living on reduced means but that her heart was broken and she was not sure she could go on. The investigator, a soul of discretion, learned that the grieving but litigious girlfriend was going to take a trip to a sultry island, ostensibly to recuperate from the traumatic ending to her romance and to gear up for litigation. The investigator, also a lover of warm climes, took the flight after the girlfriend and checked into the same hotel. Within 36 hours he was back on the plane, armed with rolls of pictures of her frolicking with her tennis instructor. No more lawsuit and no leaks to the press, since she did not want to be embarrassed by her romance with a much younger man. The client was delighted not only that he did not have to face a messy lawsuit but also that the entire matter was dealt with privately.

An investigator hired prior to filing a lawsuit may save a lawyer and client a world of grief down the road. As a first step, an investigator will conduct an asset search so that an attorney can ascertain whether it makes sense to file a lawsuit. An investigator can also conduct background investigation on the potential opposing parties, including principals of corporate entities, and do pretext visits.

A client may ask a lawyer's advice about filing a theft of trade secrets lawsuit. Several employees have left his company, which manufactures desalinization modules, and the client is convinced that these employees stole his plans on how to construct desalinization modules. An investigator can approach the former employees and inquire whether they have desalinization units for sale. If they do, and they are the same as the closely guarded ones manufactured by the client, the lawsuit makes sense. After the suit is filed however, such pretextual visits are forbidden because of party opponent problems.

A word about confidentiality is in order at this point. If your client hires the investigator, anything the investigator learns in the course of the investigation is fair game for discovery. When you retain the investigator, however, the work product privilege generally applies, and what the investigator learns is not subject to discovery. But make sure you check the rules in your jurisdiction. Discoverability may be a function of whether the statement is verbatim and signed by the witness, or a draft of the investigator's notes interspersed with his or her impressions.

Litigation is often viewed as a battle of experts. One investigator extraordinaire discovered in one of the cases he worked on that the expert witness had a short fuse regarding challenges to his professional background. The expert, who had impeccable credentials and was potentially harmful to the case, was examined closely by counsel at a deposition. The witness became enraged when the lawyer questioned his credentials and much of his background. The expert walked out of the deposition in a snit, never to be heard from again. In another case that this investigator worked, deep research into the background of an expert real estate witness uncovered a case in which a federal judge had disallowed the witness's testimony because he had "lied."

Americans are hooked on something that is more addictive than cocaine: information. Think of how many billions of words a day are communicated via cell phones, hand-held information systems such as Blackberries, and e-mail. According to some figures, 83 percent of documents never make it to the printer. Many of us are far less guarded when we are communicating in cyberspace. To paraphrase Art Linkletter, people say the darnedest things, particularly when they think their words are lost in the ether, never to be recaptured. This is where a skilled computer forensic investigator is of great assistance.

It may be that an attorney wants to know whether a document exists, perhaps one that has never been printed. The computer forensics investigator can determine this as well. These computer-type techie cops have the ability to recover lost or destroyed evidence, assist with e-evidence gathering and analyses, and generally winnow a great deal of material into some sort of manageable form.

One such investigator describes his work as "acquisition, analyses, and presentation." He acquires the information from the computer and investigates the integrity of the system and information. Pursuant to the mandate given by the lawyer or client, he then analyzes the information. It might be a simple keyword search or attempting to determine whether intellectual property was stolen and passed on. The presentation part of his job comes with writing a report with findings in a useful format, discussing the findings with the attorney, and, if necessary, testifying in court.

Pricing for an investigator varies much like fees for lawyers—it depends on the complexity of the work and the experience of the practitioner. Make sure you hire the right person for the job. Do not assume that, because you go to the super-deluxe investigative agency or to an accounting or law firm with an investigative component, you are getting the investigator with the perfect skill set for the job you need completed.

Do your own investigative work and find out about the investigator's background. How long has the person been doing investigative work? If she had a prior life in law enforcement, what did she do? I once went to a high-powered investigative agency to have assets tracked down. The managing director of the firm tried to foist off on me a retired federal agent who could not make a case when he was with the government, much less find well-hidden money. An uneducated consumer might have heard what agency this fellow had been with and assumed he was competent, but I happened to know better. Ask the investigative agency who will be working on your matter, and ask for the person's resume. Assuming the resume looks okay, ask to interview the person. Someone with good credentials might not have the people skills needed for the job.

I have seen poorly skilled investigators get involved in cases, with disastrous results. A prominent client once hired a well-known investigator to find out what his business partner was doing. The surveillance was subcontracted to someone who must have fallen asleep in the car while the partner was in a South Beach club partying: He missed a bar fight caused by the person he was supposed to be surveilling and other misconduct, and then he lost the guy. Insist that whoever does the surveillance necessary in your case has gotten some sleep before the assignment.

Great teams make great cases. Skilled lawyers and knowledgeable experts can make a good case better and turn a bad set of facts around. An experienced investigator will add to your knowledge base and insight, as well as save you time and money.

Lee Stapleton Milford is an associate editor of Litigation and a partner at Baker & McKenzie in Miami, Florida. This article was excerpted from a longer one appearing in Litigation, 30:3, Spring 2004, at page 18.

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~ New Year Advise for Keeping Clients' Information Private ~

Protecting Your Clients from Computer-Based Identity Theft

A recent final Federal Trade Commission Rule that is part of the Fair and Accurate Credit Transactions Act (FACTA) of 2003, requires companies to protect consumers against unauthorized access to credit report derived information, through proper disposal of computer hard drives, as well as paper documentation.

The FACTA Rule applies to virtually every business and private employer in the U.S., according to an FTC press release, and requires businesses to comply by June 1, 2005, by implementing a document destruction policy.

"Penalties for violating the rule include actual damages, statutory damages up to $1,000 punitive damages per violation (with no cap on class action damages), attorneys' fees, and civil penalties up to $2,500. FTC final rule

Read the Treasury Department's digest of the FACTA process, and final determination. Read the pdf document

Related article from the ABA: Tips For Ethically Retiring Your Old Computers.
Remote Seizing of Your Private Computer Data

You've experienced this annoying problem first hand: spyware on your computer that captures your web site viewing habits. You receive unwanted email on everything from improving your sex life to shady investment schemes. In a worse-case scenario, spyware can hijack personal data, like passwords, login details and credit card numbers.

A new California State law, Consumer Protection Against Spyware Act bans the installation of software that takes control of another computer. Companies and websites must disclose whether their systems will install spyware. Victims are able to seek up to $1,000 in damages.

Earthlink and Webroot found that 90% of PCs are infested with the surreptitious software and that, on average, each one is harbouring 28 separate spyware programs.

You, and your clients can get a measure of prevention by installing FREE anti-spyware programs, such as Spybot and Ad-Aware.

Read the complete post!

~ Protect Your Clients' Web Content ~

News reports have commented on instances of web content from one site appearing on a competitor's, as if it was their own. Copyscape scours the Internet for your indexed web content that is showing up elsewhere. Just enter your site URL and receive "an alert" in your email when your indexed content drifts to another website. [Thanks to Tom Mighell of Internet Legal Research Weekly for alerting me to this site.] Kathy Biehl provides a succinct overview of ways to avoid copyright infringement on the Internet. Apparently, there's generally allot of theft of intellectual property, $45 billion worth in 1999, according to a study cited by attorney blogger J. Craig Williams.

Read the complete post!

~ Easy Answers To All Your Questions ~

The searchable database at The Straight Dope, answers "virtually everything of significance", according to the esteemed author. Most questions are good only for parties, more along the lines of, why is the sky blue? The author does answer essential legal questions such as, Will poppy-seed bagels cause you to fail a drug test? What does "the right to bear arms" really mean?

In a more serious vein, answers to many questions can be quickly answered by a FREE, 24/7 internet tool, AskNow, courtesy of the California State Library. A reference librarian is standing by.

Have you ever done an internet search to find out about a particular business sector or company? Where can you find reputable information on products, medical issues, reference topics and more? Give a viewing. This site provides succinct, easily digestible responses to your questions and keyword searches. It does not return websites or a host of unrelated links. Just simple answers drawn from published sources. They also have a useful tool that can search keywords on the web and on your computer.

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Saturday, January 08, 2005

background research on witnesses and companies

Sometimes you want to know if your client is on the up and up. Or you need to know about a company or its principals, along with witnesses and experts. You're familiar with getting your investigator on the public records trail. But these days the Internet must be culled. Including blogs, government websites, online news libraries and specialty sites. Electronically distributed information can contain admissions, profiles, and information that might just aid your client's lawsuit.

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Friday, January 07, 2005

~ New Laws, New Mandates for Your Business Clients ~

Businesses, with 50 or more employees, must educate supervisors about the laws regarding sexual harassment, every two years. What that means is open to interpretation because the law is not precise.

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