Insurance Defense Blog

New federal rules on computation of time to go into effect on Dec. 1, 2009

Here is a link to an excellent blog post that summarizes the new rules for the computation of time under the Federal Rules of Civil Procedure.

Recap of Pacer -- what's the point?

I read about Recap, and of course immediately downloaded it to try it out.  In case you haven't heard, it is the Firefox plug-in that comes alive when you use Pacer, and sends a copy of any filing you download to the Internet Archive to improve public access.  Recap already has its fans and its detractors.

A couple of points should be mentioned.  The first is that the Recap plug-in only works if you log in to Pacer.  If you log in through the ECF system as a filing attorney, and download a pleading that way, no Recap copy is sent to the Internet Archive.  The second is that the Recap plug-in only works if you log in to Pacer using Firefox.  The third is that usually you do not have to download copies of your own filings, since you uploaded them and had to have the pdfs to do it.  All obvious, practical points, which lead to me to the conclusion that to "Recap" a pleading is usually going to be a conscious decision for somebody.  That is, someone has to conclude that the case filings have importance or public interest, and should have easier public availability, and then log in to Pacer using Firefox with the Recap plug-in.  I don't think it is likely that run-of-the-mill pleadings are going to be "Recapped" by accident.  For that reason, I think the privacy concerns are overblown. 

Now after using it, however, I'm wondering what's the point of it?  Or to put it bluntly, what's in it for me, or for my clients? 

The thing is, you can't go to the Internet Archive and do a text search of a law library of Pacer downloads.  That's deliberate, as the "Recap Repository" makes clear here. 

Okay, so if I want to run a search, I've got to use Pacer, and I guess that means I would have to go to each individual Pacer site, log in, and run the search.  And maybe then I might see some Recap icons on the docket sheets that would tell me that there is a free copy available.  That makes no sense from a time management point of view.  

Anyway, I get this uneasy feeling that all Recap would accomplish is to allow other counsel in federal cases to get free copies of pleadings I download.  That's not a very compelling reason to use it.

One suggested benefit of Recap is that it would allow an attorney to view a document through Pacer a second time without having to pay the per page fee again.  I have to agree that that could be a benefit; however, usually it is just as easy to save a copy of the pdf on your own hard drive for future reference.  In complex, multi-party litigation, use of Recap could effectively create a cost-free pleadings archive for the litigants, organized by the Pacer docket sheet itself. Maybe all counsel could come to an agreement to download pleadings through Pacer-Recap.  I can't see that anyone would undertake it on their own.

To the extent one's client could view even public filings on Pacer as sensitive, the client would probably object to the pleadings being copied wholesale to the Internet Archive.  Even though Pacer is open to the public, the requirement to have a Pacer account and pay the 8 cents a page viewing fee, discourages casual access.  All those $2.40 fees add up.

Journalists, political "opposition research" operatives, and other gadflys will be glad to get free access to court pleadings through Recap, but the people paying the bills probably will not like it.

On personnel evaluations

A fitness report doesn't need to be flowery or verbose to be effective, as this one by George S. Patton shows: Download Omar Bradley fitrep

 

Reviewing your law firm network security - a framework

    I was asked by our managing partner to outline possible steps to enhance our network security, and I thought I would share them more widely.
 
I.  At the individual work station level
 
        1. Use stronger passwords for system login, and change them quarterly. 
 
        2. Encrypt client files on laptops with Truecrypt, which is free, opensource and highly recommmended.  www.truecrpt.org  It would be possible to encrypt only the folder(s) that contain confidential materials.  This would be protection not only against malware threats but also against breach of confidentiality following the theft or loss of the laptop.
 
        3. Make sure that most users are operating with limited accounts. not admin accounts.  E.g., I can't see any reason why a legal secretary should be logging in daily as an admin account user.
 
        4. Make sure software firewalls are enabled on all machines. This will help prevent malware from spreading through internal network.
 
        5. Regularly scan for malware with one of the top rated products.
 
        6. Keep all software updated. It is now said that applications are a more significant security vulnerability than Windows. A good example is adobe acrobat reader, which is used to view pdfs. Recently Adobe has issued a whole slew of security patches.  All of the firm computers should be running the latest patched version of Adobe Acrobat Reader.
 
        7. Use firefox browser running noscript addon except when you absolutely need ie.  It is said that Firefox is more secure than IE.  Noscript is a free addon to Firefox that prevents websites from running javascript or activeX sc
 
        8. Use roboform, or a cheaper equivalent, to manage passwords. This will facilitate use of strong passwords, and will be some protection against keylogging malware (since the passwords will not be typed in).
 
        9. Use special diligence to secure and regularly scan any firm computers used for internet banking.  Special diligence now means more than you probably think.  Basically, a small business ideally should have a highly secure, dedicated computer for online banking chores, that is not used for emailing or web surfing or anything else.  That probably means a non-Windows operating system too.
 
        10. Periodic training of all employees never to open an attachment to any email unless it was expected.  Even if from a known person, an attachment should not be opened without confirming that that person sent one.  E.g., we have had malware attached to emails that were "spoofed" to look like they came from members of our law firm.  Also, there should be training to never click on a hyperlink in an unexpected email.  Aside from infected attachments, internet criminals want to trick you into visiting a website that is infected with malware set up to exploit known security vulnerabilities in Windows, IE, and common applications.
 
        11. As we upgrade computers, move to windows 7 which has more powerful security, or apple machines.
 
        12. Use a commercial email scanning and filtering service.  On one day recently, our service (AppRiver) picked off 5 emails containing viruses that were addressed to me, and it is picking off about 50 spam emails a day.  
 
        13. I don't think it is necessary for all machines to run the exact same antivirus and antispy software.  I think there is value to having "biodiversity", since not all software catches all the threats.  However, all the AV software that we run should be set to update daily on an automatic basis.
 
        14. Turn desktop computers off at night, unless there is a specific reason to keep it on.  Used to be that people thought turning the computers on and off each day would cause them to wear out quicker.  Now, leaving a machine on all night just makes it a valuable target for hackers.
 
        15. No file sharing software, such as LimeWire or bittorrent,should be allowed.  Too risky.
 
II.  Network Security
 
        1. Use opendns as the network dns server to limit exposure to dns hijacking and phishing attacks. Use opendns settings to deny access to known porn and gambling sites, at minimum.
 
        2. Need to keep servers and router patched.
 
        3. Consider a network security appliance, such as Astaro.  www.astaro.com
 
III.  Website security
 
        1.  Again, there is a need to use a strong password.
 
        2.  Do you know whether the software that runs your website has vulnerabilities?  Better look into it.  The most prevalent form of malware is now trojan horse programs served up by legitimate websites that have been infected by malware.  If and when you visit such a website, you will be bombarded with scores of different types of malware, testing every sort of vulnerability.  You do not necessarily have to click on anything or download anything there to pick up a malware infection, but clicking on links on such a website would increase the chances of infection.  Again, this situation can exist on any legitimate website which has been hacked into, including your own law firm website.  As aptly quoted by Brian Krebs in his excellent Security Fix blog on the Washington Post website:

"There is no such thing as safe browsing today and it is no longer the case that only the red light district sites are responsible for malware," writes X-Force Director Kris Lamb. "We've reached a tipping point where every Web site should be viewed as suspicious and every user is at risk."

See Brian Krebs, Phishing Attacks on the Wane, Security Fix, Aug. 27, 2009.  Krebs recommends using the Firefox browser with the Noscript add-on as one means of reducing this risk. 

 
IV      Wireless security
 
        1.  Wireless routers are a huge security risk. If there are patches to the router operating software, the patches should be downloaded and installed.  The routers should be checked periodically to make sure they do not have the default passwords (like "admin") to access the router.  If someone does a hard reset to the wireless router, that could result in the default password being enabled again, and the wireless router could then be easily compromised.
 
        2.  The encryption for the wireless router should be the highest level.  By the way, in recent news reports it has been said that the basic form of WPA encryption has been cracked in 60 seconds.
 
        3.  Smart phones.  Do you realize that smart phones can be set up to access everything on a Windows Exchange network, by remote access to a computer on the network?  For instance, there is an application for the IPhone that allows such access, called  "WinAdmin."  But there are others too.   This capability would add a whole new level of freakout if your Iphone is stolen.  I would recommend thinking twice or thrice about security before setting up your Iphone to do this.

Failure to order complete trial transcript results in dismissal of Virginia appeal of $8.3 million verdict

A simple clerical error -- failing to order the complete trial transcript -- resulted in the dismissal of the Virginia appeal of a $8.3 million verdict and also spawned two other lawsuits.  These events and their consequences are worth reviewing, as many lawyers will have to admit "there but for the grace of God . . . ."

A 17 year old girl sustained severe injuries, including brain injuries, when skiing in Virginia.  Essentially she collided with a snow grading machine that was being driven up the intermediate slope to reach a snow tubing run.  On July 16, 2004, after a week long trial, a jury returned a verdict in the amount of $8.3 million against the resort.  Read the plaintiff's counsel's closing argument: Download Grigg closing argument 

The defendant and its insurer certainly anticipated a possible bad result, as they retained  prominent appellate counsel shortly before the trial had even begun.

An appeal was noted to the Virginia Supreme Court.  Somehow, someway, at least one trial transcript was apparently not timely filed on the appellant's behalf.  For that reason, the Virginia Supreme Court ultimately dismissed the appeal in July 2005.

Subsequently, the insurer of the ski resort filed a legal malpractice suit against the trial defense counsel in the Circuit Court for the City of Richmond in July, 2007.  Shortly thereafter, the case took on political overtones, as it was revealed in a newspaper story that one of the attorneys involved in the failed appeal was under nomination to the U.S. Court of Appeals for the Fourth Circuit.

On September 10, 2008, one of the defendants in the legal malpractice case filed his own suit against the involved insurers and their counsel, for defamation, abuse of process, and conspiracy to injure the plaintiff in his business.  Essentially, he claimed that he had no involvement in the post-trial matters in the skiing accident case, since it was all turned over to appellate counsel.

The latter suit was recently dismissed on Jan. 6, 2009 by U.S. District Court Judge Norman K. Moon, in part due to the absolute litigation privilege and the statute of limitations.

An appeal was taken to the Fourth Circuit concerning the latter ruling.  Apparently while on appeal, a settlement was worked out, and as part of the settlement it was agreed that there would be a vacatur of Judge Moon's opinion.  Judge Moon, however, denied the request for vacatur.Download Spencer-denial of vacatur

Meanwhile, the legal malpractice suit arising from the failed appeal was non-suited on March 30, 2009.

 

 

Defamation per se in Virginia arising from summary of a judicial opinion

In Vaile v. Willick, 2008 U.S. Dist. LEXIS 53619 (W.D. Va. July 14, 2008), a law student's defamation action against two lawyers survived the defendants' motion for summary judgment.

The defendants practiced family law in Nevada, and represented the plaintiff law student's ex-wife.  The defendants represented the ex-wife and their children in a series of lawsuits in state and federal courts in Nevada to recover damages from Vaile's removal of the children from their mother's custody without her consent.

The plaintiff, who was in law school, decided to cease his defense to one of the civil actions in Nevada federal court, and as a result, the federal judge found against him and awarded compensatory damages of $688,500 and attorneys' fees and costs of $272, 255.

One of the defendants subsequently wrote to the plaintiff's law school to advise that had been found guilty of multiple violations of State and Federal law, including kidnapping, passport fraud, felony non-support of children and violation of RICO.  The letter requested the law school to reconsider the plaintiff's fitness for continued enrollment, and attached a copy of the federal court's decision.

When the law school seemingly took no action, the co-defendant, who was an attorney with the same firm, sent a letter to the ABA to inform it of the law school's recalcitrance, repeated the summary of the Nevada decision, and attached a copy of the Nevada opinion.  The letter called for the ABA to rescind the law school's accreditation as a result of the law school's failure to act.

The plaintiff filed an action for defamation, on the grounds that the letters were false and defamatory.

On cross-motions for summary judgment, the plaintiff argued that the letters were sent with malice and an intent to defame.  Plaintiff argued that he has never been convicted of criminal offenses under state or federal law, and the letters were false and defamatory because they suggested that he was.

Defendants argued that the letters were true or at worst, substantially true, do not necessarily suggest a criminal conviction, and that when read as a whole with the attached judicial opinion, cannot be construed as defamatory per se.

The Court found that the letters were defamatory per se, because they impute the commission of a crime upon the plaintiff that he did not commit.  Further, the letters were defamatory per se as a whole because they suggested that the plaintiff is unfit to continue at law school or lacks the integrity to continue in the study of the law or to perform the duties of a lawyer.

The Court found that the absolute privilege to publish matters of public record applied to the letters.  The publication of public records to which everyone has a right of access is absolutely privileged in Virginia.  The privilege is not lost if the record is incorrect or if it contains falsehoods.  The privilege exists so long as the published account of the public record is a fair and substantially accurate account of the public record or proceeding.  If the publication substantially departs from the proceeding or record, then the privilege is lost.

The Court found that the issue whether the letters substantially departed from the Nevada opinion, such that the privilege was lost, is a question left for the jury, because reasonable people could disagree whether the letters are an impartial and accurate account of the opinion.

Recent legal malpractice cases

I have blogged about a bunch of recent legal malpractice cases here. 

Protective Order to allow ex parte communications by defense counsel with treating physicians

As the attached order shows, in the Superior Court for the District of Columbia, it is possible to obtain such an order.  This one was obtained by Farrell & Gunderson.

.Download Retchin - Order Permitting Ex Parte Communications

Medical research on the internet

Thanks to Bespacific.com for the link to a fine up-to-date article about medical research on the internet.

The article itself is here.  My only criticism of it is that I don't think it covers the British medical sites.

However, in my opinion, if you consider the value of your time, your best bet is to sign up for MDConsult.com, which is not free, but is reasonably priced.

I've recently posted some other Research Links on this blog, some medical, which I rescued from my firm's website when it was redesigned.  Law firms don't offer pages and pages of research links on their websites anymore, it seems.  It's a pain in the neck to maintain them, as a certain number of the links "go dead" every year.  It takes a lot of work to put them together and maintain them, and it is pretty much a thankless task.  Also, the reasoning goes, why offer the reader a multitude of paths leading away from your site?   With Google and other powerful search engines, directories of research links are arguably obsolete anyway.  On the other hand, there are so many websites now that the researcher's problem is more likely to be sorting out the valuable websites from the chaff.  So there's value to a guide to doing medical research on the internet.  In the end I couldn't bear to just delete all of mine with the old website, so I copied them here, where they will be of continued use to me at least.   

Selected law school websites

Regional Law School Sites	Description
Georgetown University Law Center	Wide array of internet links, attractively organized, but takes some time to drill down.
American University
Catholic University	Useful links for internet research.
George Washington University	Most notably, at this site you can find U.S. Court of Federal Claims On Line (formerly Court of Claims), plus Armed Services Board of Contract Appeals info.
University of Virginia	UVA internet services include links to scores of online databases, covering science, psychology, and much more.
George Mason School of Law
Howard University Law School	Library site
University of Maryland
University of Baltimore
John Marshall School of Law	Extensive internet links put together by this Chicago law school
Washburn University (Kansas)	A leader in online legal research.