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There are 171 Journal Items on 22 page(s) and you are on page number 19
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Never let your client's memory be at odds with his e-mail
Law.com reports on a case where e-mail produced during discovery directly contradicted the testimony of its author. Not surprisingly, the judge ruled against the forgetful witness.
The witness testified that he did not remember entering into any form of exclusive negotiating agreement. His later-produced e-mails established that there had been such an agreement and the witness had violated it.
The judge, a former prosecutor, did not buy the purported memory loss, likening it to his days as a prosecutor, when he asked a witness if he was on an airplane that crashed in the Colombian jungle with 4,000 pounds of narcotics on it, and the witness said he could not remember.
Corporate handling of e-mail and discovery has been a subject of much discussion over the past few years. Here are two good articles from 2003 and 2004. Both articles demonstrate that e-mail presents novel legal problems for businesses.
Companies cannot efficiently conduct business without e-mail. Unfortunately, employees are often unguarded, too casual, or forget that e-mail is often just another paper trail. Instances of sexual harassment, for example, are now often proved by e-mail when the same instances would have been dismissed for lack of proof previously. Supervising employee e-mail is a challenge for corporations.
But it’s not the only e-mail challenge. Deciding how and when to save e-mail is also a challenge. Destruction of e-mail known to be relevant to pending litigation can be destruction of evidence just as much as more traditional methods. Meanwhile, over-retention has its own very real costs and problems.
There are no clear answers. At a minimum, e-mail should be handled with the following in mind:
1. There should be an understandable corporate e-mail policy that makes it clear that corporate e-mail is company property and company business. All improper uses of corporate e-mail should be grounds for discipline.
2. There should be complete implementation of the policy. As the American Management Association noted in 2003, policies are written far more often than they are enforced.
3. The retention/detention policy should make business sense. Destruction schedules should not be so short that obviously “everything” in being destroyed, yet not so long as to be cost prohibitive. If there are indications of litigation, the detention policy should require that relevant e-mails be saved regardless of any standard destruction schedules.
Posted by Joseph R. McFaul on Sunday, August 28, 2005 at 00:00
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Sometimes it's not the sharks you need to worry about
Sometimes we sharks get a bum rap, it’s not our fault at all. SODDI.
Alligators are not native to Southern California. [Hold on to your seats. I'm sure that was shocking bit of information.] That’s why the local news has made a big fuss about the LA version of the Loch Ness monster.
An eight foot alligator has been observed loitering in a local “lake.” [This so-called "lake" would be smaller than the 10,001st largest lake in Minnesota]
This story possibly answers the question, "How did it get there?"
Judge Bedsworth could do a better job on this subject, [Yet he "claims" not to own a snake...how expert can he be?] but the article notes that “Reggie” was placed in the lake by a former LA police officer who resigned from the force after two, yes-two, DUI convictions. According to the story, Reggie’s former owner was in possession of three more alligators, some piranha, a scorpion and a rattlesnake, along with some snapping turtles. [I don't know their names.] I bet he didn’t bring too many dates back to his place. In any event, his dating life will probably get even slower, as he was arrested.
But with one answer comes so many more questions.
What was the charge?
What will be the defense? Is insanity a possibility?
You can’t make up stories like this.
Serious topics tomorrow, I promise.
Posted by Joseph R. McFaul on Wednesday, August 24, 2005 at 00:00
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Can you spell
Once in a while, somebody sues because Mother Nature herself is dangerous. It’s possible to increase the thrill--and danger-- by taking up a challenging and hazardous sport. What goes up does inevitably come down. Lawsuits, however, should not be as inevitable as the law of gravity. They just seem that way. One of my favorites, Overlawyered, brings us the news of a 10 million dollar lawsuit by the parents of a man killed in a rock climbing accident in Yosemite.
I’m very sympathetic to the parents who have lost a son. Unfortunately, nature happens and people die. This is a frivolous lawsuit fueled by bad science. Overlawered hints at the same conclusion. SoCal Law Blog, another favorite, wisely observes without comment. Gravity is just another law we must obey.
Posted by Joseph R. McFaul on Tuesday, August 23, 2005 at 00:00
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Fair enough.
The Association of Trial Lawyers of America argues that the plaintiffs’ bar is not responsible for frivolous lawsuits. The ATLA claims, instead, that the real frivolous lawsuits are often brought by businesses against other businesses. And they have examples.. I agree with the examples.
This is a partial reaction to the recent announcement of a large drop in the number of federal civil trials. The ATLA makes the point that the litigation explosion is overblown, so to speak.
Of course, federal court is different from state court. Federal question jurisdiction forces some cases into federal court. I once filed a $600 admiralty case in federal court, for example. Meanwhile, diversity jurisdiction keeps a number of cases in state court, skewing federal statistics. Nevertheless, there has also been a gradual drop in state court civil trials, as well. I suspect that this is the result of the diversion of minor cases to arbitration and more cases being resolved in the increasingly popular ADR arena.
Of course, that could mean that some or most of the rest are indeed frivolous. None of the statistics can answer the question: “How many lawsuits are “enough?”
Posted by Joseph R. McFaul on Sunday, August 21, 2005 at 00:00
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Fantasy environmental risks and real environmental risks.
This one is too ridiculous. It’s relatively easy to determine if there is any scientific validity to this, and, from the story, it’s apparent there is no scientific validity. False claims like this distract from the real problems.
This is another matter, however. E-waste is a real problem. First, the “generators” of the waste are not the stereotypical metal plating firm or chemical manufacturer. The typical generator of e-waste is person who...well, looks a lot like you and me. Second, most of us just don’t think that old monitor will make much of a difference in the long run. But it will. Many computers and computer monitors contain heavy metals, including cadmium, mercury and lead. The cumulative effect of many small "consumer" waste generators can be significant. Electronic components should be disposed of properly.
The Europeans are just getting around to addressing this subject.
California is ahead of the crowd. The Department of Toxic Substances Control has a great website that will answer most of your questions. If you are interested you can subscribe to a mailing list to stay up to date. It's a good thing Popular Mechanics was wildly inaccuracte in 1949. (See "Quote of the Day")
Get the rest answered here.
Posted by Joseph R. McFaul on Tuesday, August 16, 2005 at 00:00
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Friviolus lawsuits: truth or fiction?
The LA Times reports on "Urban Legend" lawsuits, including the famous hot McDonald’s coffee case involving Stella Liebeck.
Oh, man!! That's an UGLY dog!!
The "Stella Awards" for outrageous and frivolous lawsuits are named after her. As the L.A. Times article notes, separating the “real” frivolous lawsuits from the “urban legend” lawsuits can sometimes be very difficult. In lawsuit lore, truth really is often stranger than fiction, so perhaps people aren’t surprised and a little more gullible when hearing of "plausible" frivolous lawsuits.
It’s also no doubt true that truth is often the first casualty in the lore of frivolous lawsuits, as special interests hype their own agenda. Mr. Cassingham’s websites ( he also hosts "This is True") are dedicated to truthful reporting of unusual lawsuits. Before you get outraged at the current atrocity, I recommend a stop at Mr. Casingham's websites or at the Urban Legends homepage.
It's not healthy to waste energy on false frivolous lawsuits when there are so many genuine ones to get worked up over.
Posted by Joseph R. McFaul on Sunday, August 14, 2005 at 00:00
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This is easy to test...why hasn't somebody done it?
I’m going to interrupt this broadcast to preach.
The state of science in our courtooms is a complete disaster.
Here’s a story that is amazing, but shouldn’t be. A scientific test of this would be child’s play. Considering what is at stake, why hasn't it been done? When careers and lives are riding on a single test, it’s a good idea to at least make a show of establishing the test is reliable.
And here’s Exhibit "B" of of my proof that courts mangle good science.
The quotation makes my point.
We now return you to your regular broadcast.
Posted by Joseph R. McFaul on Thursday, August 11, 2005 at 00:00
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