Suffering the Consequences of Incomprehensibility

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Haven’t posted one of these in the while. The ABA Journal reports here on another lawyer taking a beating from a judge for poor writing. The Dayton, Florida lawyer, David W. Glasser, was the attorney on the receiving end of U.S. District Judge Gregory Presnell’s ire. Apparently, Attorney Glasser filed a Motion to Dismiss with the District Court and Judge Presnell denied the Motion without prejudice. Attached to the Judge’s Denial is a copy of the original Motion complete with red editing marks. The Judge ordered Glasser to copy his client on the criticism.

I read the ABA’s blurb listing the grammatical errors pointed out by the Judge: several examples of excess spacing; typographical errors; incorrect placement of punctuation outside of quotation marks; incorrect capitalization; wrong word use; and, one very long sentence. Procedural errors aside, I thought to myself “sure, these are problems, but the Judge’s actions seem pretty harsh.” And then I read the example quoted by the Journal:

“A review counsel’s file subsequent to the court order indicates that for some reason full which counsel is unaware, the defendant named in the complaint was changed to the current defendant. Counsel believes this was changed by counsel’s prior assistant it was no longer with counsel’s firm.”

Whaaaat? Case closed.

[if you really want to, you can read the Motion here]

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Paper: A Thing Of The Past? No More Bound Rulings!

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First prep school libraries and now state courts. The Arkansas Supreme and Appellate courts have announced the end of printed, bound opinions and rulings. The official versions of the court rulings will be found exclusively on-line, reports Arkansas news sources. In exchange for the more than $250,000 in annual savings, the Arkansas courts counter the hacker concern by assuring the public that there are sufficient safeguards in place to maintain the integrity of the rulings. Okay. The printings ended with the July, 2009 rulings. Trees in Arkansas have been cheering ever since.

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Got Social Media Policy?

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Are you an attorney or professional looking to develop a social media policy for your own enterprise or for that of a client? Do you know where to start?

At some point along your social media policy drafting journey, consider paying a visit to Social Media Governance where you will find a sizeable list of links to social media policies in actual use at various commercial and non-profit institutions and political subdivisions. The site is maintained by Chris Boudreaux, a former Naval officers who has led product development and business transformation initiatives at many large companies.

Check out this great list and stay up to date on the intersection of social media and business.

Hat tip to Resource Shelf

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Building A Better Pencil

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Alerted this morning to a new book, A Better Pencil: Readers, Writers and the Digital Revolution by Professor Dennis Baron. Professor Baron appears to be providing the larger context to counter the argument that technology is destroying our ability to write.

It doesn’t take a rocket scientist, or even a professor, to grasp that every meaningful innovation affecting writing (and perhaps every innovation period) has been met with some degree of skepticism, scorn, disdain, fear or anxiety from some sector. Every technology adds to and subtracts from the prior experience, forcing us into a perpetual cost-benefit analysis when faced with the choice of tools to apply to the writing trade.

So, how does that cost benefit analysis play out in the current digital writing environment? How are our students, immersed in short form blogging and texting, faring in more demanding intellectual writing pursuits? Well, never fear (or fear less), as Professor Baron suggests that these students grow out of their “childish” writing styles to address their audience appropriately when the time comes to do so. Just like some children are born to be writers, while others are not, technology ultimately should not hamper or hinder their efforts to communicate.

Hat tip to Legal Writing Prof Blog.

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Data Security & Compliance

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I have notice a lot of attention paid lately to issues regarding data security and online privacy issues. Today, from a somewhat unlikely source, I read an article regarding some of the laws affecting how to handle data and privacy issues . David Perkins writes at the Insurance Journal about What to Know About Red Flags, Notification Laws and the Hi Tech Act. The article is not exhaustive, but it does offer a primer for the practitioner interested in where privacy laws are now and where they appear to be headed.

Perkins hits on the Hi-Tech Act, enacted as part of the Stimulus package, which establishes a federal layer of protection for patients. On the one hand, the Act mandates electronic transmission of more patient information, ostensibly to modernize the manipulation of medical information, while at the same time tightening up the notification process in the event of data breach.

Perkins also hits on a broad Massachusetts regulation enacted one year ago, 201 C.M.R. 17.00, which applies to persons anywhere who “own, license, store or maintain personal information about a resident of the Commonwealth of Massachusetts.” Protections are expanded under the regulation and fines can be imposed. At least 44 states have enacted their own data privacy and notification laws and regulations, with mechanisms for fines and penalties.

The “Red Flags Rule” also applies broadly to “financial institutions” and “creditors” with “covered accounts” and addresses the establishment of identity theft protection programs.

Coming down the road is the Data Accountability and Trust Act, which appears imminent. The Act contains notice requirements when data breaches occur and sensitive information is tapped.

The article does not deal with the ethical burdens and additional losses occasioned by data breach in the context of a legal practice. Client confidences are akin to patient privacy; in the case of legal representation, the potential downside of a breach may implicate both the data privacy and notice rules and professional codes of ethics.

While much of the data privacy and notice area remains uncharted, it certainly helps to understand the legislated concerns and the mechanics of how our electronic systems operate in order to assess and address the potential risks.

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