The Legal Advocate

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Monthly Archives: November 2013

Legal Writing Part Four: Privacy Policies—Drafting Pitfalls for Clients and Lawyers

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written by guest blogger Jonathan I. Ezor

One of the drafting tasks attorneys are increasingly faced with is to create privacy policies for their clients’ websites and other online resources. These policies are supposed to provide sufficient detail about a company’s personal information collection and use such that consumers can make informed choices about whether they will provide their information to the company. As with website terms of service, privacy policies often include contract-related provisions regarding consent, jurisdiction, notice, amendment, and other such elements.

There is no overall U.S. federal law requiring privacy policies on websites. While there are a number of state and federal laws that impose specific mandates regarding privacy policies (especially in certain contexts, such as health or children’s privacy), the biggest legal risks for companies posting privacy policies, and the biggest potential challenges for the attorneys charged with drafting them, arise from general consumer protection principles. The FTC and attorneys general, the primary enforcement bodies for consumer protection, evaluate privacy policies as disclosure documents, and in too many situations, privacy policies fail because they are simply inaccurate. As a result, even when the company’s practices are fully in compliance with applicable law, the privacy policy statement itself can result in liability if it doesn’t disclose the practices correctly. A review of the FTC’s privacy enforcement over the past decade shows a number of settlements where the FTC uses its general Section 5 consumer protection jurisdiction to sanction companies for inaccurate statements in their privacy policies.

Why do so many companies, even large and sophisticated ones, find themselves facing litigation and enforcement actions based on their privacy policies? Often, this is because those responsible for drafting the policy, whether in-house counsel, outside attorneys or non-lawyers, did not ensure that the policy was actually an accurate reflection of the company’s current and future practices. Too many privacy policies are cut and pasted from those on other sites, even when the other sites’ data practices have no relationship to those of the site using their text. This is a bad enough methodology when dealing with contractual language; in a disclosure document, which is primarily factual, it can be disastrous.

Further, policy drafters may not understand the relevant technology well enough to provide accurate language. For example, numerous websites include in their privacy policies something like the following statement: “We will not share your personal information with third parties.” This sounds comforting, but is essentially never true: the owner of a website will share its users’ data with multiple third parties merely in the process of transmitting a webpage containing the user’s name back to the user, from the website hosting company, to the telecommunications companies providing bandwidth along the way, to the user’s Internet service provider. In e-commerce situations, the user’s data will (and must) be shared with the user’s payment processing company, the courier delivering any ordered products, and so on. Again, the issue is not that the sharing is illegal or even undesired by the user; rather, the fact that the statement is in the privacy policy, and is inaccurate, is sufficient to expose the website owner to liability.

How, then, should those drafting privacy policies proceed in order to reduce the exposure of the site owner to consumer protection enforcement? There are a few key best practices:

  • Collect relevant information on information practices from all relevant stakeholders before drafting. This may be most effectively done through a written questionnaire that can be shared among IT, marketing, business, and other professionals within the site owner organization, and that can ask about both current and possible future practices. The questionnaire should also consider issues such as third-party access to the data (backup services, data analytics firms), information collection other than through website forms (via web server log analysis, e-mails, telephone calls, faxes, postal letters, etc.), the different jurisdictions in which the company may do business (and whose privacy laws may be different), and whether there are specific legal, regulatory, or contractual obligations that may impact on the company’s data practices.
  • Write simply and flexibly. Because so much of the potential risk from privacy policies arises out of inaccuracies, it is best to say too little rather than too much, and to use flexible words such as “may” rather than limiting ones like “shall” to encompass as many potential situations as possible.
  • Be ready for revisions. Because the company’s data collection and use practices may change over time, the policy may have to do so as well. It is important to build into the policy a process for revisions that does not require consent or overly burdensome notice before putting the change into effect. (Note, though, that based on past FTC actions, a material change affecting use of previously collected data may require affirmative consent from those prior users.)
  • Keep apprised of relevant law and regulation. Legislators and regulators in the United States and throughout the world are paying close attention to privacy issues, and the relevant legal requirements may change quickly. It is crucial that those responsible for privacy risk management keep up with governmental statements and trade publications to stay aware of possible changes to requirements for both data collection and use and disclosure.

Beyond the benefit of avoiding legal exposure, companies that demonstrate a commitment to responsible privacy practices and clear and accurate disclosure of those practices will also generate greater consumer confidence (and of course those organizations whose privacy practices are lax may well lose the trust of customers and business partners, let alone invite legal action). Attorneys, in their role as risk managers for their clients, can and should be an active part of a well-designed data collection and use strategy, especially when it comes to drafting privacy policies.

Jonathan I. Ezor is an Assistant Professor of Law and the Director of the Touro Law Center for Innovation in Business, Law and Technology and counsel to Olshan Frome Wolosky in New York City. He has been practicing technology business law for twenty years, and is a frequent speaker and writer on cutting-edge issues of Internet law. He is the author of multiple works, including Privacy and Data Protection in Business: Laws and Practices (LexisNexis 2012). He can be reached at jezor@tourolaw.edu and followed on Twitter as @ProfJonathan.

Legal Writing Part Three: The Trial From Hell, A Movie Review

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theDevilAndDanielWebsterwritten by NITA guest blogger, Judge Robert McGahey

(I know this month’s blog theme is “Legal Writing.” I have to admit I was stumped on a movie that would fit in here. Then Mark Caldwell, Whitney Untiedt, and I were having dinner before the start of a program in Houston and I asked them for help. We kicked around some ideas – and then Mark suggested a film that starts with a piece of legal writing – a contract – and grows from there. Props for the suggestion, my friend!)

We often hear courthouse folk talk about “the case from Hell,” “the lawyer from Hell,” “the jury from Hell”—sometimes, I’m sorry to say, even “the judge from Hell.” This month’s movie has every one of those—literally.

1941’s The Devil and Daniel Webster is based on a short story of the same title by Stephen Vincent Benét. Its setting is an American version of Faust. Jabez Stone, a struggling New Hampshire farmer, sells his soul for seven years of prosperity. As the contract is signed, the purchaser, “Mr. Scratch,” assures Stone that he won’t miss his soul at all. During the seven years that follow, Stone is amazingly successful, but he becomes arrogant and unfeeling as his wealth and power grow. Stone alienates his wife and mother and falls under the spell of a new servant, Belle (sent from where do you think by who do you think?). And, as always when a contract is signed, Stone is eventually called on to fulfill his side of the bargain.

But Stone resists, and like so many people unhappy with a deal, he hires a lawyer: Daniel Webster, Senator from New Hampshire, brilliant orator and known as the best lawyer in the country. After a failed negotiation with Scratch for an extension of the contract (on utterly unacceptable terms), Webster demands a trial by jury. Scratch agrees, but only if Webster is willing to wager his own soul in exchange for such a trial. Webster does so, demanding an American judge and an American jury. Scratch gives Webster what he asks for, but certainly not what he wants; after all, the jury includes Benedict Arnold. There follows the trial from Hell. While you might be able to guess the verdict, how it’s arrived at is wonderful display of advocacy; Webster’s “ask” at the end of his closing argument is a classic, almost up to par with Atticus Finch’s in Mockingbird. It’s also as honest and heart-felt a plea for the value of freedom that you’ll ever hear.

Veteran character actor Edward Arnold portrays Webster, who, as you know, was an actual historical figure. Walter Huston was nominated for Best Actor for playing Mr. Scratch. Huston was the son of one of our great directors, John Huston, and is best remembered for his cackling portrayal of Howard, the old prospector, in The Treasure of the Sierra Madre, for which he did win an Oscar. The cast also includes Jane Darwell (Ma Joad in The Grapes of Wrath) as Stone’s mother and, as Belle, the truly bewitching Simone Simon (best known for her appearance in one of the most frightening movies ever made, Val Lewton’s Cat People).

The movie was originally released under the title All That Money Can Buy, but when edited for TV, had the title changed to what it’s called today; the DVD you can find is the full, unedited version. The movie originally starred Thomas Mitchell, who broke his leg during filming and was replaced by Edward Arnold. Although Huston didn’t win an Oscar, Bernard Hermann did, for Best Music, Scoring of a Dramatic Picture.

The Devil and Daniel Webster is not as famous as many other movies about the law and about trials, but it deserves a better place in that pantheon. It is well acted, and well directed, and it speaks to timeless values. How can you go wrong watching a movie like that?

Child Advocacy: Hearsay From the Child Witness in Civil Dependency Proceedings

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Ledesma_Stephanie2Written by Guest Blogger Stephanie Ledesma NITA Programs Teacher

The Confrontation Clause of the Sixth Amendment to the United States Constitution ensures that in criminal cases the accused has a right to confront the witnesses against him or her. This right to confront is usually face-to-face. The Sixth Amendment Confrontation Clause protection applies even when the witness is a child, Coy v Iowa, 487 U.S. 1012 (1988); Maryland v. Craig, 497 U.S. 836 (1990); Crawford v. Washington, 541 U.S. 36 (2003); and Davis v. Washington, 547 U.S. 813 (2006).

However, this Sixth Amendment Confrontation Clause protection does not apply in civil dependency proceedings. Thus, the question of whether the statements of a child witness in a sexual abuse or other civil dependency proceedings may be entered into evidence without the child being present in court so the accused may confront the child is governed by Due Process protections of the Fourteenth Amendment. The distinction between the Confrontation Clause protection of the Sixth Amendment and the Due Process protection of the Fourteenth Amendment raises a set of distinct issues for trial lawyers representing parties in civil abuse and neglect and termination of parental rights cases.

In light of the constitutional distinction, virtually all states have written child testimony hearsay exceptions into their evidence codes, and most courts have generally upheld them. Foundationally, these hearsay exceptions for child testimony in civil proceedings are premised upon the same rationale discussed in Maryland v. Craig, 497 U.S. at 856-57. The child testimony hearsay statutes allow into evidence the out of court, hearsay statements made by the child victim who suffered sexual abuse provided the statements contain the appearance of trustworthiness. To successfully introduce the child’s hearsay statement into evidence, the trial attorney must establish two things: 1) the child must be “unavailable” as a witness, by virtue of distance from the court, or if the child is, while physically available, subjected to significant emotional or psychological trauma in the presence of the defendant such that the child becomes unavailable as in the case of a criminal proceeding; and 2) as required by many civil child sexual abuse statutes, there must be a finding of corroboration of the child’s out of court statement.

This being said, practitioners should not forget that a child’s hearsay statement, and in particular those of a sexual abuse witness, may come into evidence based upon other exceptions to hearsay such as the excited utterance and the exception for statements made for purposes of medical diagnosis or treatment.

At this time, Stephanie Ledesma, would like to take the opportunity to thank her research assistant, Brandon Davenport; her teaching assistant, Anthony Hynes; and one of her many mentors, Professor Michael Dale.

November 2013 Executive Director’s Letter: Legal Writing And the Performing Advocate

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Lockwood_KarenBefore you read further, answer this question:  What is the definition of legal writing?  (Take your time.)

Perhaps you defined it; if you did, your answer likely differs from that of our other readers.  Or perhaps you gave my usual response: “B-hah! There is no such thing.”

Wikipedia disagrees.  An entire article characterizes “legal writing.” It states, “many practicing lawyers, busy as they are with deadlines and heavy workloads, often resort to a template-based, outdated, hyperformal writing style . . . . This is understandable, but it sometimes unfortunately perpetuates an unnecessarily formal legal writing style.” (Wikipedia, “Legal Writing” (Nov. 15, 2013).)

Brian Garner disagrees too, really.  His seminal book title centers on that term:  Legal Writing in Plain English.  Lawyers do, after all, write about the application of law to life. Bryan’s prescription for Plain English starts with thinking, being sure of what points to make. Using fifty sets of exercises, Garner progresses from how to decide the point to be made, through creating a logical sequence of supporting thoughts, to disciplines for organization and efficient expression. (I highly recommend Garner’s teachings on writing by lawyers.)

Why, then, would I disdain the concept of “legal writing”? Because to me it connotes an imagined virtue in learning to write undisciplined, arcane, and dense prose.  Take away that assumption, however, and I readily admit that most of us suffer from relaxing into so-called legal writing. It is laden with prepositions, dependent clauses, reflexive verb phrases, and afterthoughts.  Our writing can resemble a boxwood shrub left unpruned for years—branches projecting at random, without direction or purpose, on which grow other undisciplined branches with minds of their own. They catch your clothes on your way by.  A witty example:

Insofar as manifestations of functional deficiencies are agreed by any and all concerned parties to be imperceivable, and are so stipulated, it is incumbent upon said heretofore mentioned parties to exercise the deferment of otherwise pertinent maintenance procedures.

In plain words:  “If it ain’t broke, don’t fix it.”

Why should the oral advocate care? Ironically, Garner elevates spoken advocacy to a higher position. Among Garner’s fifty exercises is number 20:  “Make everything you write speakable.”  While his exercises on Rule 20 address written expression, Rule 20 invites careful scrutiny by every courtroom lawyer.

What, after all, is admirable about “speakable” expression?  Saying it out loud renders it no more speakable than any loosely conceived thought, or boxwood bundle of words. Our rule 20 for trial lawyers must be, “Make everything you say speakable.”  That is, make it understandable in the milliseconds it takes to listen to it as it passes you by.

So, the question I posed above is worth extended reflection. If we cannot personally distinguish the effective character and purpose of legal writing, we surely will suffer as trial lawyers in our legal speaking.

Rather than “B-hah,” take time to consider carefully your definition of legal speaking. Consult Garner. Hear yourself. In NITA trial and deposition programs, our students speak all day. On each try, they learn how a more simple point, a better logical backbone, a more direct expression, and non-technical language immediately improve their performance.

“Legal speaking for the performing advocate”—worthy of unending practice and critique.

Best wishes to you all for a glorious Thanksgiving,

 

Karen_ShortSig

Karen M. Lockwood, Esq.
President & Executive Director
National Institute for Trial Advocacy

Legal Writing Part 2: A Few Thoughts for Better Legal Writing

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Swett_Tomwritten by Guest Blogger and NITA Faculty member Tom Swett

“The minute you read something that you can’t understand, you can almost be sure it was drawn up by a lawyer.”  Sometimes, despite our best intentions, Will Rogers’s statement is true.  How can you avoid writing that will make you the subject of ridicule and likely result in your defeat?

Our readers—judges, juries or the public—are often skeptical about our motives and means.  After all, we are paid to take a side, so how can our readers trust that we are telling the truth and not putting our spin on the facts or the law?  There is no single answer to these questions, but I will share some pointers that I have learned from my practice.

First, decide what you need to say and what you cannot say. You need the law supporting your argument and the facts – nothing more or less.  What is more?  All the other good stuff you want to say but is not necessary to prove your case. That extra stuff must be cut to keep your readers focused and to stay within page limits.

What you cannot say is another issue.  It is tempting to tell your client’s story with the perfect words to describe why your case is strong and you should win. However, sometimes you do not have that client or those facts. Ethical writers cannot change the bad facts or attempt to distract a reader from an adverse legal authority on point. Do not exaggerate your good facts or ignore the bad ones. Do not misstate any legal authority. Do not believe every word your client tells you. Rule 11 is good to read before you sit down to write a brief. Once you lose your credibility, you cannot buy it back.

Second, organize your writing to make your story clear and your case simple to understand.  Your reader should know what your client is asking for and why you should win.  You must explain the facts and why those facts compel a legal result in your client’s favor. After you have finished your research, make an outline before you begin writing.  Stick to the outline and make sure your writing explains, first, why you win, and, second, the problems with the other side’s arguments or facts.  Explain how their “facts” are untrue, exaggerated, or irrelevant, or how their legal analysis is off the mark. A focused argument flows naturally and the reader never feels lost. You must write to help your reader, not to impress with elegant words or long sentences.

Third, step back from your writing to see if it helps the reader understand why you should win. This next step requires editing, rewriting, simplifying, and deleting anything extra. Put aside your work and read it after a break.  If you can, put it aside overnight and read it the next day.  Does it still make sense?  What is missing? What is distracting?  Then ask someone else to read it and tell you if they understand it and if they are persuaded by it, or not.

Review it again to confirm that you followed your outline with each topic sentence guiding the reader to understand what each paragraph proves.  Make sure each sentence is on point and written concisely and clearly.

When you think you are done, go back and edit it again.  Get rid of as much legal words and jargon as you can.  Then read it aloud.  When you get stuck on something you are reading aloud, your reader likely would have stumbled as well. Proofreading your work again and again helps prevent embarrassing errors that detract from your argument and erode your credibility.

Etiquette and tone are also important considerations.  If you would not say in person what you are writing, then do not write it. With time and the humility that comes from an occasional loss, your writing will be a refreshing treat for readers who await a story that makes sense and gets to the point.  Will Rogers also said, “Good judgment comes from experience, and a lot of that comes from bad judgment.”  So, if you lose, go back and read your work afterwards. Learning from mistakes is better than ignoring and repeating them.  Good luck, and remember to take your work seriously, not yourself.

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 Goals are 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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