The Legal Advocate

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Monthly Archives: August 2012

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Hootsuite Goes g+

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If you or your firm were an early adopter of Google’s social media platform Google Plus (g+ or Google+), then you most likely felt the pain of how seemingly disconnected the site was from the rest of the internet. With so few users, it was challenging to see the importance of the social platform. Additionally, Google didn’t allow any third party integration with g+ which meant that it was even more difficult and time-consuming to publish content onto g+.

Then Google decide to update it’s social platform to incorporate the ability to make search results more personal and social (Search, plus Your World). This made g+ accounts more valuable by making it easier to connect with people and post content. But g+ still hadn’t integrated with any third parties.

Until, finally, in late July, Hootsuite announced that it had integrated with Google+ pages. The Hootsuite integration has been extremely valuable. Users can now more easily and more efficiently produce and manage content for Google+, and are able to manage all of their online communities in a single location.

If you have been waiting to start up your Google+ account until it could be integrated with your other social platforms, now might be the time. Or, if you’ve been looking for a better way to manage your social platforms, it might be time to look into Hootsuite.

If you are interested in more information you can checkout the Hootsuite & Google+ sneak peak video from Hootsuite.

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TAKING BREAKS DURING A DEPOSITION

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Author: Mark S. Caldwell

You are taking the deposition of an important party witness. At the beginning of your deposition you and the witness discussed all of the commitments traditionally presented and made, including when you would take breaks and speaking with her attorney. The witness agreed with you about taking a break every hour. She agreed that if she needed a break before that point she would tell you. You discussed when she could speak with her lawyer. Finally, she agreed that if you have a question pending she would answer the question before taking the break. You have just asked a question and the defending lawyer announces they are taking a break. He and the witness get up and leave the room. What should you do?

  1. Make a record that the witness and counsel will be conferring while a question is pending before they leave the room.
  2. After they have left the room, make a record the witness and counsel have just left the room while a question is pending.
  3. Make your record and then call the judge or magistrate to ask for intervention.
  4. When they return ask the witness what was said during the break.
  5. Do nothing. When the witness returns ask your question again and get the answer or a response from counsel.

In their brand new 4th edition of The Effective Deposition, Peter Hoffman and David Malone discuss the importance of Set-Up and Commitments so the witness understands the deposition process and his rights and obligations. In Chapter 6.2, Malone and Hoffman suggest talking with the witness about breaks to “show the jury that this deposition was not a ‘third-degree’ interrogation.” They also suggest an instruction about talking to your attorney as a means of generating leverage so the witness will not attempt to speak with counsel before answering the tough question.

Hoffman and Malone then offer the caveat that a witness is going to take a break whether or not the deposing attorney gives the break instruction or not. The witness and opposing counsel will decide when the witness is too tired to go on, no matter what instruction you give. Like wise, the instruction regarding talking with counsel is trumped when it may be a matter of privilege. Although there is conflicting case law on even this matter points out NITA’s Executive Director John Baker citing a ruling in the tobacco class action cases where even matters of privilege were deemed waived for discussions while a question was pending.

Professor Louis Natalli, of Temple law school, says he does not give an instruction regarding breaks for the reasons discussed above. He prefers to follow the directions given by the court in the 1993 Pennsylvania case, Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa 1993). In that decision Judge Gawthrop provided guidelines for deposition conduct in the Eastern District of Pennsylvania, including a prohibition of any off the record conferences between the attorney and the witness during breaks or recesses, except to decide whether to assert a privilege.

Texas lawyer Mark Shoffner, of Andrews Kurth, LLP, in his article Be Careful On Break: Privilege and the Deposition Recess (http://www.dallasbar.org/content/be-careful-break-privilege-and-the-deposition-recess), talks about how other jurisdictions have dealt with conferring on breaks. In New Jersey, a federal court held the examining attorney was entitled to explore whether discussions during a break interfered with the fact-finding goal of the deposition process, see Chassen v. Fidelity Nat’l Title Ins. Co., 2010 WL 5865977 (D.N.J. July 21, 2010) aff’d 2011 WL 723128 (D.N.J. Jan. 13, 2011).

Other Federal Courts address conferring with the client through local rule. South Carolina’s rule prohibits conferences between counsel and deponents during breaks or recesses. The exception to the rule is to assert a privilege, make an objection or move for a protective order. The rule further requires that the lawyer who confers with the deponent then report the results of the conference on the record. The rule also permits the inquiring lawyer to ask questions about the conferences. D.S.C. L.R. 30.04.

Delaware’s local rule provides: “From the commencement until the conclusion of deposition questioning by an opposing party, including any recesses or continuances, counsel for the deponent shall not consult or confer with the deponent regarding the substance of the testimony already given or anticipated to be given, except for the purpose of conferring on whether to assert a privilege against testifying or on how to comply with a court order.” D. Del. L.R. 30.6.

Shoffner comments:

These out-of-state decisions and local rules are anathema to the principle that attorney-client communications for the purpose of seeking, obtaining, or providing legal advice are sacrosanct. However, the attorney-client privilege, like all privileges, is not absolute, and these jurisdictions have determined that excluding these conversations from the privilege altogether assists in the truth-finding mission of discovery.

In his blog, Drug and Device Law, Jim Beck comments in a post entitled Depositions – When Can You Talk To Your Own Witness? Beck offers five suggestions.

  1. If a question is pending any conference with the witness, except for matters of privilege, is asking for trouble;
  2. Taking a break during questioning for the sole purpose of talking with the client may cause problems. If the deponent testifies no coaching occurred you may avoid sanctions;
  3. Discussions over lunch or other breaks during the deposition that are taken for unrelated reasons may be viewed as acceptable. It again helps if the witness says no coaching occurred.;
  4. If there is an over night break discussions with the witness are likely to be allowed;
  5. If there are multi-day adjournments, with possible exceptions being in South Carolina and Delaware, conferences with the deponent are all right.

See, http://druganddevicelaw.blogspot.com/2011/02/depositions-when-can-you-talk-to-your.html.

Even if the reason for conferring with the witness is not a matter of privilege there are reasons for speaking with the witness during the deposition – confusion over a question, correcting mistakes, or instances of false or misleading answers. Certainly, matters of ethical responsibility should allow for a discussion with the client and be permissible. It still raises questions of witness credibility in the eyes of the deposing lawyer.

Commentators and some courts comment that the pendulum has swung too far in one direction with these limitations. Dennis Suplee and Diana Donaldson in their book, The Deposition Handbook (5th Ed. Aspen Publishers 2011) suggest the Hall decision may go too far in prohibiting conferences during normal breaks, lunch breaks, and overnight breaks (§6.11). In Colorado, Federal Magistrate Boyd Boland seems to have thought so, when he wrote in McKinley Infuser, Inc. v. Zdeb, 200 F.R.D. 648 (D.Colo.2001):

I agree with the reasoning of In re Stratosphere and our local rule 30.1C that the truth finding function is adequately protected if deponents are prohibited from conferring with their counsel while a question is pending; other consultations, during periodic deposition breaks, luncheon and overnight recesses, and more prolonged recesses ordinarily are appropriate. McKinley Infuser, Inc. v. Zdeb, 200 F.R.D. at 650.

Judge Boland reasoned further that to follow the Hall blanket order of all attorney deponent conferences once the deposition starts would lead to absurd results as follows:

The relief requested by the plaintiffs here is particularly inappropriate. It would have the effect of barring Mr. Zdeb from conferring with his counsel for the entire period between the sessions of his deposition, in this case several weeks. Taken to its logical extreme, the plaintiffs’ argument would bar consultation between a party and his lawyer from the time of his deposition through trial, because there might be “coaching” which would cause a party-witness to alter his deposition testimony at trial. That result is absurd. McKinley Infuser, Inc. v. Zdeb, 200 F.R.D. at .650.

What should happen if counsel and the witness take a break when a question is pending? Make a record of the conference while a question is pending. When lawyer and deponent return, inquire about the subject of the conference. Ask if the deponent received coaching of any type during the meeting. Confirm that the question did not involve a matter of privilege. Ask the question again. If this occurs more than once, make sure you have made a good record and raise the issue with the judge or magistrate.

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State v. Bloodworth

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Three days before his death, Kenneth Fletcher was found unconscious on the floor of Gene Bloodworth’s condo. Bloodworth claims that Fletcher broke into his home and had a knife. Bloodworth also claims he was defending himself when he struck Fletcher and knocked him out. Fletcher claimed that he and Bloodworth had been drinking together that night and that Bloodworth invited him to his condo and then attacked him.

Three days after the incident at Bloodworth’s condo, Fletcher was found dead. Cause of death was blunt force trauma to the head. Bloodworth was charged with first degree murder and has pleaded not guilty. He contends that he was acting in self-defense and that Fletcher’s alcoholism contributed to his death.

There are four witnesses for both sides, including forensic pathologist experts. This criminal case file is designed to be used as a full trial.

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NITA Goes Back to School Shopping

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As an educational institute, NITA takes great pride in giving back to our students and our schools. Recently, we worked with Impact on Education to identify needs for school supplies within our local community. Each department at NITA was tasked with strapping on their shopping shoes and purchasing items that Impact on Education desperately needed to fulfill their needs for this school year. We donated nearly $200 worth of school supplies, filling four backpacks with everything the new student needs, from crayons to markers to calculators. The future lawyers of America could be wearing SpongeBob Squarepants backpacks this school year!

Micronesia Advocacy Journey – Update from Michael and JoAnne Roake

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Michael and JoAnne Roake, long-time NITA faculty members and program instructors, have written a blog post on their recent experiences teaching advocacy in Micronesia. They are on a 42-day mission to provide training in seven different locations (Majuro, Kosrae, Pohnpei, Chuuk, Saipan, Yap, and Palau) staffed by The Micronesian Legal Services Corporation.

“Well, we just completed the training in Pohnpei, and feel quite proud. The MLSC attorneys and the AGs did a great job, incorporating everything we taught and expressing to us how much they appreciated the training. Most of your lawyers were over the moon with the training and hoped they could build on it. This, despite the fact we worked them to the bone, as you know. They are real troopers.

I also mention that your visit was a great incentive to take the training and you are very well regarded. On Kosrae, we had a few meals with Fred something, the former AG of the Federation and currently defending a murder case in Kosrae. Needless to say, we bonded, given both our dark backgrounds and sick fascination with crime. He is quite accomplished, having been over here for years, having had three wives, and having represented the Federation in the Law of the Sea negotiations. But best of all, he, like others, have a very high regard for you. It is nice to hear this and better to pass it on.

The additional folks at the training here in Pohnpei ((65 MLSC attorneys, 4 AGs a,d 3 private attorneys) , while a bit adrift (many were new lawyers), also learned quite a bit.

I will mention that every day, there were more observers in the back. Judges, judicial clerks, probation officers, etc., Things must be slow here or they really were pretty excited.

The next to best piece was the large Sakau ceremony they threw us after the program. That is truly a regal drink, especially when accompanied by ceremony and a feast. Food was abundant and they made Sakau for us right in front of us and honored us with a party. I really am quite unaccustomed to this sort of hospitality! The Chief Justice also attended and thanked us publicly…apparently he had also seen some of the training. The coconut express is really quite formidable.

But the best was to pull up to The Village. It is fantastic and we are in your debt forever. We introduced ourselves to our hosts, were discreet, and felt their warmth and deep affection for you. Thanks, Ben.

Tomorrow we are off to Nan Madol on a boat with some skin diving thrown in. What a treat.

My best to you and my eternal gratitude.”

Michael Roake combines the skills of an accomplished practitioner with pertinent teaching experience. He has taught and acted as Program Director for over 135 NITA programs in a mix of Custom, Public Service and Public Programs. 

JoAnne Roake has been a valued faculty member with NITA for many years. She teaches with NITA at its National Program, in various regional programs, domestic violence programs, Tribal Court Programs and private firm programs. She was most recently named the Deputy Director of the Bar Association’s Rule of Law Program in Jordan. 

NITA’s team of practicing lawyers, professors and judges from around the nation dedicates its efforts to the training and development of skilled and ethical legal advocates to improve the adversarial justice system. NITA's Goal is to:
  • Promote justice through effective and ethical advocacy.
  • Train and mentor lawyers to be competent and ethical advocates in pursuit of justice.
  • Develop and teach trial advocacy skills to support and promote the effective and fair administration of justice.
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