This is the actual flag at our office. Feels great to see it waving every morning! Thanks to all those who make that happen! Happy and Safe Memorial Day everyone!
The 5 Worst Kids of the Year
As Mother’s Day looms closer, you may feel the need to take stock of just how well you’ve raised your kids. Have they always been perfect? Probably not. But they’re probably decent enough to buy a card or make a short phone call on Sunday, right?
If not, just remember that it could be worse. Not only could your children have made your life infinitely more difficult up until this point, they could have made this list. So take pride in the fact that your little ones don’t even come close to being one of the worst kids of the year.
1. Juice box stabber. This unnamed 5-year-old is accused of stabbing three family members over a juice box. His mom disputes the motive, but admits that he took a knife to two cousins and an aunt. She also told local reporters that he’s always been prone to outbursts.
If your kids never threatened you with a knife, you win.
2. Kathryn & Steven Miner. These two siblings are the epitome of ungrateful. In 2008,they sued their mom, accusing her of ruining their posh Chicago childhood. They spent 2011 defending the suit in an appeals court. They say their mom set curfews! She made them wear seat belts! And (gasp), she enforced a party dress budget!
If your kids haven’t yet sued you for setting boundaries, you win.
3. Jessica Rodriguez. This 22-year-old concocted a fake international kidnapping scheme so she could visit her fugitive boyfriend in Mexico. She even called her mom with the news. The entire ruse was an immature attempt to avoid mom’s side-eye — she doesn’t approve of the man in her daughter’s life.
If your kids keep their secret liaisons in the country, you get a point. If they’ve never dated a fugitive, go ahead and give yourself another.
4. Disrespected teen. This 15-year-old called 911 to report her mom’s loud sex. According to the police report, she “stated that there was no form of abuse or neglect in the house but she only felt disrespected.”
If your kids haven’t reported your nighttime activities, give yourself a point. You’ve taught them discretion — and the beauty of placing a pillow over one’s head.
5. Scott Bennett. Some people never grow up, including this 45-year-old man. Hepublished a fake obituary for his living mother in order to get paid time off. The worst part? He actually thought no one would notice that his mom wasn’t actually dead. They did.
If your kids haven’t yet faked your death, pat yourself on the back. You’re really not as embarrassing as they make you out to be.
Is A Facebook Page Worth Your Job? E-Discovery And Spoliation In The Age Of Social Media
Social media has become a vital way to communicate with friends, family and colleagues. Status updates, tweets and texts have rapidly replaced letters and telephone calls as the preferred methods of communication for a large segment of the population. Indeed, recent figures indicate that one out of seven people in the world belongs to a social media site, such as Facebook, LinkedIn or Twitter. It was inevitable, then, that this pervasive force would wend its way into civil litigation. Just since the beginning of 2010, social media evidence has been addressed in more than 600 published decisions. Some recent cases of interest include Tompkins v. Detroit Metropolitan Airport, 2012 WL 179320 (E.D. Mich. Jan. 18, 2012) (court found that defendant must make a sufficient predicate showing that the private Facebook material sought in discovery is reasonably calculated to lead to the discovery of admissible evidence); Offenback v. L.M. Bowman, Inc., 2011 WL 2491371 (M.D. Pa. June 22, 2011) (court granted a defense request for an in-camera review of plaintiff’s private Facebook page to determine whether or not the content was responsive to the defendant’s discovery requests); and State of Connecticut v. Eleck, 23 A.3d 818 (Conn. App. 2011) (court did not allow Facebook postings to be used to impeach prosecution witness, stating that the postings had not been properly authenticated as being posted by witness, even though they originated from witness’s Facebook account).
Accompanying social media’s increased presence in cases and in the courtroom are rules and sanctions related to spoliation of social media evidence. Thus far, spoliation sanctions in this realm have been rare. A recent Virginia state court decision, however, demonstrates the ramifications of poor decisions by both counsel and parties when dealing with run-of-the-mill discovery requests that have a social media element.
Lester v. Allied Concrete Co., No. CL 08-150 (Va. Cir. Ct. Oct 21, 2011), was a wrongful death case stemming from a tragic set of circumstances. In 2008, truck driver William Donald Sprouse pleaded guilty to charges of involuntary manslaughter for the accidental death of Jessica Lester. According to news reports, Sprouse’s “truck rounded a corner on two wheels, flipped and rolled over onto Lester’s car, a crushing 60,000 pounds landing where Jessica sat.” Jessica Lester’s husband of two years and her parents subsequently sued Allied (Sprouse’s employer) and Sprouse, eventually winning a jury verdict of over $10 million, making it reportedly one of the largest wrongful death verdicts in the state’s history.
That verdict, however, was short-lived. The court’s post-verdict order in the case addressed a plethora of complaints from defense counsel regarding Lester’s conduct and the conduct of his attorney, Michael Murray, both before and during trial. Among other things, the court found that Lester and his counsel intentionally spoliated evidence found on Lester’s Facebook page. Even though all material on the page was ultimately recovered and produced and the court found that defendants suffered no prejudice, the court found that sanctions were warranted.
During the course of discovery, Allied’s counsel learned that Lester had a photo on his Facebook page of himself in an “I [heart] hot moms” t-shirt, holding a beer can, and standing with other young adults. Sensing that this activity was inconsistent with his self-portrayal as a grieving widower, Allied served discovery requests along with a copy of the photo, asking for screenshots of Lester’s Facebook page “as of the date the request was signed.”
Upon receiving this request, Murray instructed his assistant to contact Lester and tell him to “clean up” his Facebook page because “we don’t want blowups of this stuff at trial.” His assistant e-mailed Lester the next day. Murray then instructed his client to deactivate the page entirely, so that he could represent in his response to the discovery requests that he had “no page as of the date of the response.” After further wrangling between the parties, the page was re-activated so that screenshots could be taken, but Lester then “cleaned up” the page consistent with the prior instructions, deleting 16 photographs and other evidence. Lester later denied during his deposition that he ever deactivated his account.
Suspicious about these activities and Lester’s testimony, defense counsel subpoenaed from Murray all e-mails between Murray and Lester that related to the Facebook account. Not surprisingly, Murray and Lester resisted, claiming work product and attorney-client privilege. When the court ordered Murray to produce a privilege log, he did so, but he withheld the e-mail from his assistant instructing Lester to clean up his Facebook page. Murray subsequently produced the e-mail to the judge, claiming the omission was an oversight by a paralegal.
The court found this behavior to be aberrant and that due to “the extensive pattern of deceptive and obstructionist conduct of Murray and Lester … most of the substantial fees and costs expended by Defendants were necessary and appropriate to address and defend against such conduct.” The court also found specifically that Lester intentionally spoliated evidence.
Ultimately, the wrongful death verdict was slashed to $4.45 million for reasons ostensibly unrelated to Lester’s and Murray’s conduct. Moreover, the court sanctioned Murray in the amount of $542,000, and Lester in the amount of $180,000, citing as primary reasons their actions relating to Lester’s Facebook page. Murray’s conduct was referred to the Virginia State Bar. Since the court’s October 2011 ruling, Murray reportedly has left his position at his law firm and quit the practice of law.
While this case obviously involves extreme behavior on the part of counsel, it gives rise to some important tips to keep in mind when dealing with any case involving social media:
- Don’t Forget That the Rules Still Apply. When new technology is introduced to discovery, many attorneys try to stretch the limits of discovery as far as possible. For example, when parties first began to produce documents in electronic rather than paper form, many attorneys would purposely not produce load files, searchable text, or any metadata – all things now considered to be commonplace – in order to “one-up” their opponents. Similarly, there may be a tendency to think that social media accounts provide a strategic opportunity for gamesmanship, because social media can be mercurial and capable of manipulation. Attorneys should be aware, however, that the same rules of evidence apply to social media sites as to other evidence. Accordingly, in the same way you would not instruct a client to shred files or trash a hard drive, no changes should be made to relevant or potentially responsive evidence on social media accounts once litigation is reasonably anticipated. Also, know the rules of your jurisdiction – courts are becoming increasingly savvy with e-discovery and several of them have particular guidelines to guide parties through e-discovery disputes. Two good examples are (1) the U.S. District Court of Maryland’s Suggested Protocol for the Discovery of Electronically Stored Information, which can be found at http://www.mdd.uscourts.gov/news/news/ESIProtocol.pdf; and (2) the New York State Bar Association’s “Best Practices In E-Discovery In New York State and Federal Courts,” which can be found at http://www.nysba.org/AM/Template.cfm?Section=Home&ContentID=58331&Template=/CM/ContentDisplay.cfm.
- Ensure That Social Media Is Preserved. Facebook pages (for individuals and companies), web pages, tweets and electronic boards are often overlooked in current litigation hold notices. Make sure that the appropriate individuals at a client company have received litigation hold notices that specifically mention that, to the extent they may contain potentially relevant information, social media must be preserved. To the extent possible, have your e-discovery vendor, IT support personnel or client download a complete copy of any such social media as soon as a hold goes in place; impress upon them the fact that information cannot be deleted; and regularly check to make sure that no new data has been added and/or changed on the site during the course of litigation. Also, most social media sites operate by using cloud computing, which often has shorter electronic retention policies than most companies with dedicated server space. Be aware that since social media may involve outside organizations that operate with their own set of restrictions, it is important to start early.
- If Inadvertent Spoliation Occurs, Report It. It is doubtful that the sanctions against Murray and Lester would have been as severe as they were if it were not for their repeated and systematic cover-up of the deleted information. Courts realize that the discovery of electronically stored information, while increasingly prevalent, still creates unique challenges. If counsel is able to make the case early on that the spoliation was inadvertent and that the party took reasonable steps to identify, recover and/or quantify the information lost, sanctions are likely to be less severe.
- Engage Competent Vendors and Counsel Early for Advice. Make sure that your vendor has experience with collection and/or analysis of social media specifically, including preservation of associated metadata, and that your counsel likewise is on top of current social media issues that may affect your case. Importantly, while an e-discovery vendor should always be a key member of the discovery team, your outside counsel must be able to identify both technical and legal issues to make sure that the vendor is operating efficiently and effectively.
* * *
While Virginia may have been one of the first states to delve into the social media sanctions waters, it certainly will not be the last. Lester teaches us that, despite the novel format, the rules of civil procedure still apply to e-discovery. Claims professionals and counsel should be alert for social media issues in their cases and should question insureds (and claimants) about their social media practices in order to assure that all relevant information is captured for discovery. The Lester case also demonstrates the importance of addressing these issues early – if you know information exists that may be helpful (or damning) to your case, it is best to assess any potential social media pitfalls as soon as practicable, not to wait until a discovery request with a potentially damaging photograph appears in your inbox.
ScienceDaily (May 8, 2012) — People of all ages and cultures gesture while speaking, some much more noticeably than others. But is gesturing uniquely tied to speech, or is it, rather, processed by the brain like any other manual action?
A U.S.-Netherlands research collaboration delving into this tie discovered that actual actions on objects, such as physically stirring a spoon in a cup, have less of an impact on the brain’s understanding of speech than simply gesturing as if stirring a spoon in a cup. This is surprising because there is less visual information contained in gestures than in actual actions on objects. In short: Less may actually be more when it comes to gestures and actions in terms of understanding language.
Spencer Kelly, associate professor of Psychology, director of the Neuroscience program, and co-director of the Center for Language and Brain at Colgate University, and colleagues from the National Institutes of Health and Max Planck Institute for Psycholinguistics will present their research at the Acoustics 2012 meeting in Hong Kong, May 13-18, a joint meeting of the Acoustical Society of America (ASA), Acoustical Society of China, Western Pacific Acoustics Conference, and the Hong Kong Institute of Acoustics.
Among their key findings is that gestures — more than actions — appear to make people pay attention to the acoustics of speech. When we see a gesture, our auditory system expects to also hear speech. But this is not what the researchers found in the case of manual actions on objects.
Just think of all the actions you’ve seen today that occurred in the absence of speech. “This special relationship is interesting because many scientists have argued that spoken language evolved from a gestural communication system — using the entire body — in our evolutionary past,” points out Kelly. “Our results provide a glimpse into this past relationship by showing that gestures still have a tight and perhaps special coupling with speech in present-day communication. In this way, gestures are not merely add-ons to language — they may actually be a fundamental part of it.”
A better understanding of the role hand gestures play in how people understand language could lead to new audio and visual instruction techniques to help people overcome major challenges with language delays and disorders or learning a second language.
What’s next for the researchers? “We’re interested in how other types of visual inputs, such as eye gaze, mouth movements, and facial expressions, combine with hand gestures to impact speech processing. This will allow us to develop even more natural and effective ways to help people understand and learn language,” says Kelly.
SURAT: In an example of courts going tech-savvy, a couple got their divorce approval from local court after the statement of the husband living in the US was recorded through video conferencing on Saturday.
The divorce approval was announced on Tuesday after the couple agreed to all the terms. Court of T K Gurnani, principal judge, family court, approved the divorce application.
Amish Jivan and his wife Dipti Gheewala lived together only for six days after getting married in 2008. Jivan then went to the US for his business and never returned.
The couple remained separated for the four years and agreed to get separated legally after mutual understanding that they could not continue the relationship.
“As expected, it was not possible for Jivan to remain present in India during legal procedure and according to law, the person himself or his attorney should remain present in the court. In this case, Jivan handed over the power of attorney to his relative who filed the divorce application,” said Hemant Topiwala, lawyer for the couple.
“The couple had difference of opinion since the day of marriage following which they decided to mutually discontinue the relationship,” he said.
It was second marriage of both the individuals and after meeting each other through a common friend, they decided to marry. The marriage took place on December 23, 2008 and Jivan left for the US on December 29. Due to busy schedule in his fast food business, he could not return to India, his lawyer informed.
The court used live video chat software available online and the video conferencing was carried out on a laptop.
“The court asked Jivan to identify his signature and the people related to case. After confirmation, his statement was recorded and his application was approved,” said Topiwala.
The couple decided on a one-time settlement amount of Rs 21 lakh, which Jivan agreed to pay Dipti. After the application was filed in August 2011, the court asked the couple to discuss compromise for six months. However, they could not reach to any agreement.
Your Children – Should They Be Involved in Your Divorce?
February 16th, 2012
The most important thing to understand as a parent going through a divorce is not to involve your children. No matter what the ages of your children, they should be left out of the divorce process to whatever extent possible.
Children will be more or less aware of what is transpiring depending on their age. A 12 year old might ask questions that a 3 year old would not think about. Do answer their questions briefly and in an age appropriate manner, but most importantly, assure them that both of their parents love them. Parents must recognize that the divorce is between them, and that their children are innocent bystanders, not active participants.
Unfortunately, what frequently happens is that both parents become so embroiled in the emotion of the divorce process that they temporarily lose the ability to focus on what is best for their children. At times, parents will speak of adult matters either directly to or in the presence of their children. Sometimes parents will use their children as pawns to try to “get back” at the other parent, without realizing the harm that they are causing the child.
Frequently a parent will badmouth the other parent either directly to the children or in their presence. For example:
“Your mother is taking all my money. I will be stuck living in my car.”
“Your father is not giving me enough money. Ask HIM to buy you sneakers. I can’t afford them.”
Regardless of how accurate these statements are or may seem to be, they should not be expressed to the children. Likewise, if you have learned that your spouse has a “significant other”, this subject should not be discussed with the children.
In extreme circumstances, parental alienation can occur. This happens when one parent engages in a course of conduct that turns a child against the other parent. The child then aligns him or herself with one parent against the other. The child may refuse contact with the other parent, shutting him or her out of the their life to the point that the relationship deteriorates substantially. Allegations of parent alienation are difficult to prove as it is not easy to determine whether the child’s conduct is a direct result of parental alienation, or simply a result of the stressors that the child is experiencing during the divorce process.
It is also important to shield the children from court proceedings. There is no reason that they should know what happened during your court appearance. Some parents are of the belief that their children “deserve to know the truth” about the other parent. It is important to remember that each parent has his or her own truth, and the child should not be asked to decide which truth to believe.
Children have the right to love both their parents. No matter what is going on in the divorce process the children almost always need both parents in their lives. (An exception may exist if the children have been subject to abuse.) No parent should ever lead a child to believe that he or she must choose one parent over another, nor should a child be made to feel guilty about having a positive relationship with either parent.
Remember, when going through the divorce process, try to put aside the difficult and emotional nature of the process enough so that you can put the needs of your children first:
- – Do not bad mouth your spouse directly to the children or in their presence.
- – Do not talk to your children about financial problems as a result of the divorce.
- – Do not make your children feel guilty about enjoying a relationship with the other parent.
- – Love your children and let them love both of you.
By Debra L. Rubin, Esq.
Americans have learned to carefully craft their Facebook postings, and edit and spell-check e-mails. But apparently we don’t give text messages much thought, and they’re providing abundant and effective fodder for divorce attorneys.
“A lot of people will draft a text at the spur of the moment, feeling hot and bothered about something, and off goes the text message” says Ken Altshuler, president of the American Academy of Matrimonial Lawyers. “But it’s the same kind of written documentation that lawyers just love to go to town on.”
In a recent survey, more than 80 percent of the academy’s members reported an increased use of text messages in court. And Altshuler says once your words are in print, they’re hard to disown.
“I have one husband, frankly, who said in a text message, ‘I’m so angry at you right now I could kill you,'” Altshuler says. “He got charged with criminal threatening.”
Tips For Keeping Your Texts Out Of Court
Attorney Ken Altshuler has this advice for anyone going through a divorce.
Don’t write (text, Facebook, email, etc.) anything you wouldn’t want a judge to see.
If you’re receiving inappropriate messages from your spouse, don’t respond inappropriately, because a judge will see that.
Don’t send messages that clearly set your spouse up for an inappropriate or angry response.
If you’re worked up and want to send your spouse a message, take time to calm down before putting anything in writing.
Just as with anything we say, these little missives can be taken out of context. But they can also reveal a stark truth. Altshuler says they have become key to cross-examination as a powerful way to undermine someone’s credibility. Consider one husband’s text to a secret lover that came out in one of Altshuler’s cases: “We had a great time in Boston, I can’t wait to see you again.”
“Of course, you know, the person in that case said he was on a business trip in Denver,” Altshuler says.
In one custody battle, Altshuler says a text message single-handedly won the case. The mother claimed the father’s drinking problem compromised his parenting. But the father was an excellent witness. He said he hadn’t had a drink in a year, and even his substance abuse counselor vouched for him. It was a classic case of “he said, she said,” until Altshuler’s client displayed a recent text from her husband asking her to pick up beer on the way home.
“He sat there and stared at the text message for about 2.5 minutes,” says Altshuler. “He had no answer. Case is over.”
A Treasure Trove Of Information
Stephen Ward is a private investigator with Pinkerton Consulting and Investigations. He says as technology improves, so does the potential for texts as evidence.
Teen Texting Soars; Will Social Skills Suffer?
“Some people have text messages that go back years. It depends on the size of the phone,” Ward says. “If you actually look at cell phones now, the size of the phone’s memory is what most standard desktops were about two to three years ago.”
It’s a treasure trove of information, he says. But getting texts into court as evidence can be tricky, especially if it’s a spouse’s texts you’re after. If you’ve stolen a password to access them, they can be ruled inadmissible. And if they’re on a company phone?
“You could be looking at things that are trade secrets, that you’re not entitled to see,” Ward says. “It’s actually corporate property, it’s not yours, and you’ve done something completely illegal.”
Ward says it’s always best to let a lawyer subpoena a spouse’s texts.
But even using messages from your own phone isn’t always a sure thing. Lee Knott tried to submit texts from her ex-husband during a custody battle. She used an app to send them to her email account.
“And so each text message, even if it was only four words long, ended up taking a page,” she says. “So that’s hundreds of pages.”
Knott says she got the sense the judge, in a rural part of Washington state, was overwhelmed and wary.
“The judge said that he didn’t understand the technology, and that he could not be certain that it wasn’t able to be tampered with,” she says.
In fact, some states only accept electronic evidence if it’s been gathered by a professional.
Lawyers love getting their hands on these smoking gun texts. But for their own clients, they have one overriding piece of advice: Don’t write anything you don’t want a judge to read.
How Family Law Attorneys Use Social Media Evidence in Court Cases [infographic]
Posted on April 03, 2012 by David
The infographic, “How Family Law Attorneys Use Social Media Evidence in Court Cases,” provided by Dishon & Block Family Law Attorneys, illustrates how lawyers are turning to social media sites like Facebook, Twitter, and Flickr to help them identify “smoking gun” evidence for their cases.
Things You Should Never Say To Your Divorce Lawyer
I have specialized in family law for over 40 years. I have seen almost every possible scenario, and I would like to share some things clients have said to me that often are better left unsaid. Here are some things you should never say to your divorce lawyer. In no particular order, they are as follows:
1. I don’t care what it costs, I would rather give you everything than give anything to my wife/husband. The reality is that no matter what you pay, you are going to give something to your spouse. Things said in anger or in the heat of passion will be taken back later. This is especially true when a client receives my final bill. You may want revenge, but that rarely happens in a divorce. It is better to spend your hard-earned money on your family, for your children’s college education, or a vacation. Divorces are expensive enough, both economically and emotionally, without adding revenge to the equation.
2. I would like to bring my “friend” with me to the interview. We have attorney/client privilege, and once you bring a third party in, whether it’s a relative, a lover or whoever, the attorney/client privilege is gone. Unless a third party is officially associated with your case, there is no attorney/client privilege. If a friend or lover is in a meeting, and the case gets nasty, in the event a deposition or trial ever occurs, there is no privilege and all these secrets can spill out in a deposition or in court.
3. My friend or neighbor has told me to do this … There is nothing worse than having all your friends and relatives — who mean well — give you advice. Every divorce is different. Every divorce is unique. What makes sense for your friend and relative may make no sense for you. In addition, people often tell you only part of the story. You often get a lot of misinformation from well-meaning friends and relatives. Think about this: There are at least five variables in every divorce. The first is you — your personality, your reasons for wanting to save or end the marriage. The second variable is your spouse — his/her personality and motivations. The third is your attorney — the attorney’s personality, motivations and experience. Fourth is your spouse’s attorney. And last but not least, the fifth variable is the judge. Change any of these people and variables, and you may get a different result. For these reasons, sideline quarter backing is often very detrimental to your divorce.
4. I’m in a hurry to get this over with. Saying this immediately puts you at a disadvantage. Compromise is critical in any divorce. It is also necessary to come to a resolution. If you let your spouse know how desperate you are, and the other attorney knows that as well, then the divorce is going to cost you a lot more and you will regret it in the future. I was in court this past week on a case where my client had been in a hurry to end the marriage because of a new relationship. I have seen these scenarios time and again. In this case, the relationship is lasting, but my client has a lot of regrets and remorse over the fact that she sold herself out for far less than she might have been entitled to if she had not been so desperate to end the marriage. Don’t rush. A divorce is one of the most critical events in your life, and while it is important get it over with, hurrying can be very costly. You do not want to have regrets once the divorce is final.
5. I’ve been promised that I will see the children more and pay less. I just have to sign the papers. Be careful. There is often a hidden motive behind a promise, and if someone told you this — especially if this is a hotly litigated case — there is often a hidden agenda. Remember, there is no Easter Bunny, and someone who is pushing you to sign the papers too quickly has something up his or her sleeve. This is where it is important to make sure that your attorney fully understands all the aspects of the case and is there to protect you and advocate for you where necessary.
6. Showing your biases and prejudices. I’ve had clients who will come to me and start using racial, religious or ethnic slurs. I think it’s wrong. I think it also shows something about the person that is highly unattractive.
7. Never say never. Never say that you will not pay any spousal support. Never say that your spouse can have everything. Never say that your spouse is going to get nothing. Never say that you are going to leave your children. Every case has an upside and downside, but saying “never” is the worst thing that you can do. There are exceptions to every rule, especially in a divorce situation. Keep an open mind. Remember that your attorney is there to counsel and advise you and help you go forward as you try to rebuild your life.
What are some other thoughts that you have as to things you should never say to your attorney? Share them with us.
By: HENRY S. GORNBEIN
Family Law Attorney & Legal Correspondent
40900 Woodward Avenue, Ste. 111
Bloomfield Hills, MI 48304-5116
248/594-3444; Fax 248/594-3222