Clocks Change on Sunday, March 8, 2009

Clocks change Sunday, 2 a.m., March 8th, 2009: Jump, spring, fall, collapse FORWARD (and sadly lose) one hour.

I know. It feels as if we just went through this - and we did!

You’re not really saving any daylight (what a thought!), and, the clocks don’t really change - they just hiccup, forward or backward. But you have to go with the plan, or miss a lot of great dinner dates.

It could be worse. The clocks might be in charge of whomever is in residence at the White House or NASA or or this guy - or you could travel a lot and have to keep up with everyone’s time changes.

Here is a Time Change grid (with a nifty little toggle in the Year column), for those who plan ahead.

And if you’re wondering what Standard Time is, I haven’t a clue - and desperately need a nap.

The Meaning of "Illegal Gambling": Why Legal Definitions Matter

You might not have read this chapter book, Frindle, by Andrew Clements, but ...

Lawyers aren’t the only ones who want to know Definitions, Words & Phrases, and the Meaning of it All (and even the Meaning of Liff itself). Non-attorneys frequently ask us to show them where a word or phrase is defined, surely one of the hardest things a law librarian has to explain to a pro se litigant.

You might want to read this article, just one of many where the courts have to figure out what the meaning of a word is:

Judge Rules Poker Is Game of Skill, But Convicts Five Men for Gambling, posted Feb 19, 2009, by Debra Cassens Weiss:

“A South Carolina judge has ruled that Texas Hold ’em is a game of skill, but that fact doesn’t require the acquittal of five men nabbed in a poker bust.

The lack of a clear definition of illegal gambling in the state contributed to the mixed ruling (PDF), the Poker News Daily reports.

A South Carolina law bans any game with cards or dice in "a house used as a place of gaming." State Attorney General Henry McMaster has interpreted the statute to ban games that rely more on chance than skill. And for years, the office has viewed Texas Hold ’em as an illegal game of chance barred by this predominance test.

But Judge Lawrence Duffy Jr. said in his decision that the legislature has never “explicitly and precisely” defined the words “gaming” and “gambling house” in the state law, and he can't definitively conclude that Texas Hold 'em is legal, even if it is a game of skill….” (link to full article from the ABA Journal)

And keep it in mind the next time you run out of ideas for defending your case.

(Thanks to Rob at Law in the News for the lead!)

Oregon Historical Society Library Closing

Oregon Historical Society Library Closing

A librarian colleague brought this to my attention:

“Researchers needing to access OHS collections before then should make plans immediately…. Due to budget cuts, the Oregon Historical Society Research Library will be closing on February 28, 2009. After that date, collections will no longer be available to the public. At this point, photo and film reproduction orders will still be taken.

If you'd like to make your voice heard, you can send your questions or comments to George Vogt, Executive Director of OHS, at george.vogt[at]ohs.org or 503-306-5203. Check the website at for any future news about the status of the library….” (link to full announcement)

Update: "Rumors are flying that the OHS Library is planning to close permanently. The reality, that I have straight from the OHS Director, is that the Library will close temporarily, starting this Saturday, to allow staff to complete various projects, but by mid-March the Library will reopen with limited hours and collection access, with a staff of 2.5 FTE. I am planning to participate in a meeting with the OHS Director next week to discuss strategies that might help the OHS Library recover in the short or long term." Oregon State Librarian.

Reserve Your Child’s Domain Name - Now? (With a side of SEO)

From Jim Calloway’s Law Practice Tips blog, link to: Site of the Week: The Invent Blog®, and find this provocative suggestion: Purchase Your Kid’s Domain Names (and their nicknames, maybe, while you’re at it? :-)

It’s not enough to feed, clothe, school, and love them ….

There are additional SEO tips from The Invent Blog (and from Jim’s blog):

E.g. How your domain name renewal term can affect your SEO and lots more.

Landlord and Property Manager Training in Washington County (Oregon)

On March 14, 2009, 8:00 a.m. to 5:00 p.m:

The Washington County Sheriff's Office and the Westside Crime Prevention Coalition is offering an 8-hour training class help landlords and managers protect property from illegal activity, learn to properly screen prospective tenants, and gain an understanding of landlord rights and responsibilities. The class is being taught by John Campbell of Campbell Delong Resources. Mark your calendar for March 14, 2009, 8:00 a.m. to 5:00 p.m., at the Beaverton City Hall, City Council Chambers, 4755 SW Griffith Drive in Beaverton. Registration is $30 and includes a manual plus a continental breakfast and lunch.

For more information contact Christine Rouches, (503)846-2579. The registration deadline is March 13, 2009

Pocket U.S. Constitutions on Sale

Our source for our most popular pocket U.S. Constitutions is having a sale: 100 for $30: http://www.nccs.net/ (the National Center for Constitutional Studies).

(Constitution Day isn't until September, but I like to think ahead :-)

We get pocket U.S. Constitutions from other sources too, but these are the most popular ones and excellent value.

Criminal Background Checks on Employees and Volunteers

A recent story in the Portland Tribune (and many other similar ones lately) reminded me how many questions law librarians get from people who think conducting background checks is a quick, easy, cheap, and routine thing to do “on the Internet.”

Volunteering ... to steal?: Portland mom repeatedly accused of theft while working for charity clubs (by Jennifer Anderson, The Portland Tribune, Feb 19, 2009)

Excerpt: “…Embezzlement happens all too often in volunteer organizations, Shen said, because many times fundraisers involve cash passed hand to hand, without receipts in place.

And whomever is in charge of the finances gets free reign unless accountability measures are in place.

“What tends to happen is the person who volunteers gets to do whatever they want because everyone else is glad they don’t have to do it,” he said. “That’s kind of a setup for disaster, because no one is watching the money.” (link to full article)


CRIMINAL BACKGROUND CHECKS

A thorough, or even a moderately thorough, background check is not quick, easy, cheap, or routine. Ask anyone who does this professionally. It takes training, practice, instinct, and judgment. It’s an art and a craft.

(And remember how hard it can be just to find out if someone is married!)

This is not to say that nonprofit organizations or small businesses on tight budgets can’t do some kind of background checking themselves. But you won’t learn how in 3 minutes. You can, however, online learn enough about criminal records searching to gain a fair amount of knowledge and judgment on when and how to hire a professional. (You can also learn about good business accounting practices. Most libraries have lots of books on how to run businesses and bookstores are awash in them. Nolo Press too has excellent legal self-help books on starting and running a business.)


(And a word to the wise: if your accountant/bookkeeper says, “oh, you don’t need to look at the books - I have it all under control,” you need to look at the books, now, right now.)

Learning something about background checking is also necessary if you plan to talk to or hire a professional investigator to find out what different levels of background checks would cost.

If you want to find a licensed professional investigator, there are several routes to go. There are professional associations, your own, whose members may be able to recommend investigators who are trustworthy and competent, and there are private investigator professional associations that would be glad to explain how one goes about finding the right investigator to meet your needs. You can also try these:

1) Nonprofit organizations can call TACS for advice and guidance (please!).

2) For-profit businesses have lots of resources of their own, from their professional associations, to the many Small Business services available in Oregon, e.g. here (and here) and here.

My previous posts on criminal background checks: here and here.

How to Find a Lawyer in Oregon: Free, Low-Cost, Licensed

Update: See this 4/30/09 OLR Blog post for new links to guides.

In addition to the usual source, Oregon State Bar (OSB) Information and Referral Service, don’t forget there are other sources of referrals. For example:

1) For attorneys who specialize in elder law issues.

2) For attorneys who specialize in nonprofit issues.

3) Here is my post on how to find free legal advice.

4) And, here is my guide on How to Find a Lawyer in Oregon.

5) And the directory to lawyer licensing databases has been updated: A Compilation of State Lawyer Licensing Databases (thank you to Andrew Zimmerman and Trevor Rosen!)

Filing for Bankruptcy without an Attorney

Information on bankruptcy for people who do not have lawyers is available from a U.S. Court website, Filing for Bankruptcy without an Attorney. (You can also link to the United States Bankruptcy Court, District of Oregon.)

Thanks to the Lane County Law Library Newsletter for the lead!

Foreclosures: Trail of Tears (but for whom?)

Was it Kierkegaard who said: "Life is lived forward but understood backward”?

In any case, the sentiment comes to mind when reading this article reprinted in Sunday’s print Oregonian Business Section:

“Three words fend off foreclosure: Produce the note,” by Mitch Stacy (AP)

(Use Google and the search words, mitch stacy foreclosure, to find the article today, which is not yet findable on Oregonlive.)

Excerpt:
“… In interviews with The Associated Press, lawyers, homeowners and advocates outlined the produce-the-note strategy. Exactly how many homeowners have employed it is unknown. Nor is it clear how successful it has been; some judges are more sympathetic than others.

More than 2.3 million homeowners faced foreclosure proceedings last year and millions more are in danger of losing their homes. On Wednesday, President Obama will unveil a plan to spend at least $50 billion to help homeowners fend off foreclosure.

Chris Hoyer, a Tampa lawyer whose Consumer Warning Network Web site offers the free court documents Lovelace used to file her request, has played a major role in promoting the produce-the-note strategy….” (link to article)

This is not new information (see, e.g. this NYT article: A Mortgage Paper Trail Often Leads to Nowhere, by Gretchen Morgenson, December 26, 2008), but awareness of all its dimensions is slowly making its way through the system.

My previous foreclosure posts here, here, and here.

(The Oregonian Business section does have a very interesting story you can find about the Grange trademark!)

Following a House Bill in the Oregon Legislature: Uniform Power of Attorney Act

Legal research is seldom quick and easy, but it sure is interesting. If you are at all inclined to dip your toe(s) into the Oregon Legislative process, here's one way to start. Let's say you want more information about a bill that was mentioned in a recent news story. I use one bill number for an example, but there are thousands more to choose from!

Re: 2009 HB 2537: Relating to powers of attorney; creating new provisions; amending ORS 93.670, 125.445 and 125.710; and repealing ORS 127.005,127.015, 127.025, 127.035 and 127.045.

1) Visit the Oregon Legislature’s 2009 Laws/Bills pages to track down the full text of this bill in PDF or HTML.

2) Look at the Measure History, to find out its status in the Legislature - and note the Committee(s) that will consider the bill.

3) This bill was sent to the Judiciary Committee. Visit the Committee’s webpage.

4) Search the Committee Agenda’s Online to find out when a public hearing will be held. (Tip: CTRL-F 2537) (Notice that there will be the first public hearing on March 11.)

5) On or before you settle in with popcorn and your computer on March 11th, make sure the date or time has not been changed. Note the location of the hearing.

6) Visit the Audio/Video page to listen/view the hearing online. (Tip: you won’t see the link to the hearing until shortly before it starts.) (Tip 2: Phone the AV staff if you have trouble. They are terrific!) Both the Archived hearings and the Live Audio Today can be linked to from this page.

7) There is a lot of useful information at the Legislature’s website: background briefs, fiscal office publications, legislative counsel, and more.

These actions all lead to the dreaded Legislative Histories!

(Note: Uniform Laws are unique creatures. States can adopt them in full, in part, or not at all. The NCCUSL is the primary source of uniform laws. But there are also Model Laws.)

Who’s Regulating the Regulators?

In my law library we not infrequently refer people to state (or federal) regulators, whether the question is about professional licensing, premises inspections, or other service within the purview of a government regulator.

But who regulates the regulator? This is not a new question and in fact has probably been around since there was anything to regulate (including the oldest of the oldest of professions).

In the news recently we hear about the stunning, stupefying, failures in the regulation of the food industry (peanuts, for example) and the financial industry (the SEC and Mr. Madoff, for example), and state and local examples of regulatory failures could be trotted out too (buildings, bridges, fire safety, etc.).

So, who does regulate the regulator? In part, it is a legislative function, but in large part it is you! It's not easy to keep your representatives and their delegates on the straight and narrow, but it can be illuminating and rewarding. A recent reminder of this is the 2/18/09 story in the Willamette Week, by James Pitkin (on p. 8 of the print edition):

Big Blue’s Big Break: One woman challenges the state’s rollover for health insurer Regence.

“When Karen Kirsch’s health-insurance premium jumped from $444 a month to $559 a month in one year, she did what no Oregonian has done before.

The 63-year-old retired psychotherapist from Northwest Portland called bullshit on the state Insurance Division by challenging a rate increase it approved.

Her case could affect 88,000 Oregonians who took a collective $11.8 million hit when the Insurance Division let Regence BlueCross BlueShield of Oregon raise its premiums on individual accounts in July. Kirsch wants July’s quarterly increase rescinded.

Her attorney says the case shows just how easy it can be for Oregon’s largest insurer to strong-arm the agency charged with preventing insurers from gouging customers….”(read full article)

What is a regulator or a regulatory agency or a regulating body? For a brief description, try the Library of Congress administrative law webpage. Visit a law library or look at their research guides, e.g. Georgetown’s or the University of Washington Law Library’s guide.

See the Oregon Blue Book for descriptions of the various Oregon administrative agencies and regulatory bodies (and then visit their individual websites).

Peanut Product Recall Continues

The list of peanut products affected seems to grow every day. Please keep up with it if you eat or if anyone you love eats, especially if you eat any processed food: the FDA website

Washington State Supreme Court Briefs Now Online

KCLL Klues reports that Washington State appellate court briefs from June 2006 forward are now online.

For Oregon appellate court briefs, see the guide on How to Find Oregon Appellate Court briefs. (And see here for more information on appeals in Oregon courts.)

Appellate court briefs are a terrific source of information for all legal researchers.

Oregon Constitution in Small Bites: Bite #15 (Article IV, Legislative Department, Sections 7-9)

Links to Previous Bites can be found here at, "Oregon Consitution in Small Bites: So Far"

Today: Oregon Constitution in Small Bites: Bite #15 (Article IV, Legislative Department, Sections 7-9) copied from this version at the Oregon Legislature's website)

ARTICLE IV
LEGISLATIVE DEPARTMENT

….

7. Senatorial districts; senatorial and representative subdistricts
8. Qualification of Senators and Representatives; effect of felony conviction
9. Legislators free from arrest and not subject to civil process in certain cases; words uttered in debate ….


Section 7. Senatorial districts; senatorial and representative subdistricts. A senatorial district, when more than one county shall constitute the same, shall be composed of contiguous counties, and no county shall be divided in creating such senatorial districts. Senatorial or representative districts comprising not more than one county may be divided into subdistricts from time to time by law. Subdistricts shall be composed of contiguous territory within the district; and the ratios to population of senators or representatives, as the case may be, elected from the subdistricts, shall be substantially equal within the district. [Constitution of 1859; Amendment proposed by H.J.R. 20, 1953, and adopted by the people Nov. 2, 1954]


Section 8. Qualification of Senators and Representatives; effect of felony conviction. (1) No person shall be a Senator or Representative who at the time of election is not a citizen of the United States; nor anyone who has not been for one year next preceding the election an inhabitant of the district from which the Senator or Representative may be chosen. However, for purposes of the general election next following the operative date of an apportionment under section 6 of this Article, the person must have been an inhabitant of the district from January 1 of the year following the reapportionment to the date of the election.

(2) Senators and Representatives shall be at least twenty one years of age.

(3) No person shall be a Senator or Representative who has been convicted of a felony during:

(a) The term of office of the person as a Senator or Representative; or


(b) The period beginning on the date of the election at which the person was elected to the office of Senator or Representative and ending on the first day of the term of office to which the person was elected.

(4) No person is eligible to be elected as a Senator or Representative if that person has been convicted of a felony and has not completed the sentence received for the conviction prior to the date that person would take office if elected. As used in this subsection, “sentence received for the conviction” includes a term of imprisonment, any period of probation or post-prison supervision and payment of a monetary obligation imposed as all or part of a sentence.

(5) Notwithstanding sections 11 and 15, Article IV of this Constitution:

(a) The office of a Senator or Representative convicted of a felony during the term to which the Senator or Representative was elected or appointed shall become vacant on the date the Senator or Representative is convicted.

(b) A person elected to the office of Senator or Representative and convicted of a felony during the period beginning on the date of the election and ending on the first day of the term of office to which the person was elected shall be ineligible to take office and the office shall become vacant on the first day of the next term of office.

(6) Subject to subsection (4) of this section, a person who is ineligible to be a Senator or Representative under subsection (3) of this section may:

(a) Be a Senator or Representative after the expiration of the term of office during which the person is ineligible; and

(b) Be a candidate for the office of Senator or Representative prior to the expiration of the term of office during which the person is ineligible.

(7) No person shall be a Senator or Representative who at all times during the term of office of the person as a Senator or Representative is not an inhabitant of the district from which the Senator or Representative may be chosen or has been appointed to represent. A person shall not lose status as an inhabitant of a district if the person is absent from the district for purposes of business of the Legislative Assembly. Following the operative date of an apportionment under section 6 of this Article, until the expiration of the term of office of the person, a person may be an inhabitant of any district. [Constitution of 1859; Amendment proposed by H.J.R. 6, 1985, and adopted by the people Nov. 4, 1986; Amendment proposed by S.J.R. 33, 1993, and adopted by the people Nov. 8, 1994; Amendment proposed by S.J.R. 14, 1995, and adopted by the people May 16, 1995]


Section 8a. Applicability of qualification for legislative office. [Created by S.J.R. 14, 1995, and adopted by the people May 16, 1995; Repealed Dec. 31, 1999, as specified in text of section adopted by the people May 16, 1995]


Section 9. Legislators free from arrest and not subject to civil process in certain cases; words uttered in debate. Senators and Representatives in all cases, except for treason, felony, or breaches of the peace, shall be privileged from arrest during the session of the Legislative Assembly, and in going to and returning from the same; and shall not be subject to any civil process during the session of the Legislative Assembly, nor during the fifteen days next before the commencement thereof: Nor shall a member for words uttered in debate in either house, be questioned in any other place.–

Whole meal: Oregon Constitution.

Lawyer Billing, Agita, and the Absence of A [Year’s] Best Legal Writing Compilation

This recent post at f/k/a will take you to previous ones on lawyer billing, all worth reading. It will also take you to a definition of agita, a condition not unknown to those of us who don’t get a chance to get it all out of our systems (though blogging does help).

This leads me to my current lament (but no agita), which is: "why isn’t there a satisfactory legal equivalent to The Best American Science Writing?" (I’m working through the 2008 edition now.) Or is there?

There are a lot of “The Best American xxx Writing”: science and nature writing, short stories, mystery stories, comics, erotica, political writing, plays, sports writing, etc. Why not law?

I suppose you can take a look at most of the legal writing and figure out that it’s because most legal writing is for lawyers (on the whole a not very cheerful bunch) with an occasional article in the New Yorker, New York Times, or other popular periodical meant for the inquiring lay person (and Arts and Letters Daily is one place to look for quick links). There is also the Green Bag (which has their own “best of” the year) and the National Law Journal, both of which will not infrequently publish articles that remain free of useless jargon (vs. useful jargon), are productively provocative (vs. simply salacious), and, more to the point, are well-written, which makes them especially appealing to the intellectually curious layperson.

One day … surely it could be a fun and productive endeavor for a law-wonk to compile such a collection. I would hope someone other than an academic would do it, for obvious reasons (see Fred Rodell webpage, courtesy of HALT).

Note: The Green Bag’s “best of” includes an Oregon Court of Appeals decision, 210 Or App 315 (2006), Doherty v. Wizner, written by pro tem judge, Daniel Harris.

Missing Bodies and Death Declarations (with a side of road kill and zombie debt - oh my!)

How do you declare someone dead when there is no body?

I should probably save this for a Day of the Dead post, but, appearances notwithstanding, I’m blogging about Legal Research and the Living so ... full speed ahead. (Previous posts about road kill & zombie debt.)

1) Check your state laws, forms, and procedures first and, if you are a lawyer, ask your lawyer colleagues for shortcuts and anecdotes too.

2) Context, context, context: declarations of death may be an insurance matter, a police matter, a probate matter -- and it all matters!

3) Sometimes what is required is a petition for a declaratory judgment. In Oregon, you might start with ORS Chapter 28, but don’t forget that Index! You’re a legal researcher, not a drone or a zombie, remember? (And, please, consult an attorney. It can save you a lot of time and money, and heartbreak, not to mention the cost of a few trips to the law library, and court, in a few years by an attorney who is trying to fix what should have been done right to begin with.)

4) You will also want to look for case law, partly because the PROOF is in the pudding, or in the petition, and you need some idea of the standards of proof and review in your jurisdiction. (Aside: if you get a chance to see Proof, the play, do so. One of my favorites.)

5) You will also want to look in one of the best but most frequently overlooked legal reference sources available to lawyer-kind. Zillions of new lawyers look at me blankly when I ask, “have you checked Am Jur’s Proof of Facts?” Then, after they “do as I say,” there is joy all around.

6) As of this date, there is at 45 AmJur POF 3d 307 (2008), this article: “Presumption or Inference of Death from Unexplained Disappearance.”

7) There is more, but if I told you then you’d never visit the law library and experience the joy too.

Isn’t legal research grand?

Hyperlinking, Newspapers Disappoint Us, and the Oregon National Guard

It won’t be the first time (nor the last) that I connect dots in a way that makes your eyes cross, but work with me here:

(First, here is some comic relief from Courtoons (thanks to Jim Calloway for the lead!).

Now, full speed ahead:

Once upon a time (pre-web days), one of my favorite ways to teach legal research, especially administrative and legislative research, was to hand out a copy of a newspaper article (on a current hot topic) where reporters would cite to a dozen or more government documents. I would then challenge my students to identify and locate each of the documents. This is harder than you think, but very effective and much more fun that the mind-numbing show and tell -- “this is the CFR,” “this is the USC and this is the USCA,” approach.

Nowadays (the past 13+ years), however, we have had (ubiquitously - the technology is older than 13 years) something called hyperlinks, the power of which you would think newspapers would have grasped by now. But they haven’t!

I happily read newspapers in print (and expect no hypertext there), but when I read them online I expect value-added, in the form of hyperlinks to cited sources. A blog or other online publisher can do this, why can’t the newspapers? Some newspapers do this sporadically, but most of the time I’m gnashing my teeth and growling, “why can’t they link to that brief, that case, that document they just referred to in the article?”

As a blawger, I often refer to articles in newspapers that are worth a second look, but I usually have to add a lot of hyperlink value so the reader can, uh, read the case, the article, the brief, the document referred to. Hyperlinking is not rocket science (and one of the funniest interviews about rockets scientists is here, from This American Life). No, not all documents referred to in newspaper articles can be hyperlinked, but many, and maybe even most of them can.

FOR EXAMPLE:

Take this very interesting op ed piece: Dan Handelman’s In My Opinion article from the Monday, Feb. 2nd, print Oregonian (appearing online on Sunday):

“An unlawful deployment,” by Dan Handelman, guest opinion, Sunday February 01, 2009

I would use this article, in a heartbeat, for a legal research class. Not only is it a good read, but it cites to so many intriguing sources (for a law librarian-teacher, at least). Ten years ago, I would have photocopied the article, circled the 13+ documents referred to, and asked my students if they could identify and locate them.

Today, you would think (!), that while reading the document online one could hyperlink to at least some of these documents or at least the source of the documents or even just a definition of these documents (some are pretty obscure). In fact, the reporters are fact-checking anyway and probably have these hyperlinks at their fingertips so it’s not as if there is a lot of extra work.

The newspapers could also require that their guest’s opinion pieces include the hyperlinks in their submissions.

Taking Mr. Handelman’s article and including hyperlinks (and deleting all but the portions that should be linked) I get the following. Granted it’s a bit hyper-hyperlinked, but you get my point, I hope. And this is just the first couple of paragraphs.

And, think what a tool for education online newspapers could be if they did this!

Take a look at the actual article without hyperlinks - and here are the hyperlinks I'd add:

“In a recent editorial, xxx Oregonian's editorial board xxx a bill being introduced in the Oregon Legislature xxx ("Calling out the Guard, again," Jan. 23). Xxx petition xxx a bill, xxx Rep. Kurt Schrader, xxx federal law. Xxx pursuant to a valid directive. Companion resolutions in the House and Senate xxx the current authorizations xxx.

The U.S. Constitution gives Congress the power xxx (Article 1, Section 8). The War Powers Act of 1973 limits the power ...."

I could go on …

"The force authorization for Iraq passed by Congress in 2002 [hyperlink] U.N. Security Council resolutions
[hyperlink] the 2001 authorization for the use of military force.
[hyperlink] Congress passed the Montgomery Amendment,
[hyperlink] The status of forces agreement
Even if the 2002 authorization [hyperlink]
[hyperlink]Similar measures are being introduced [hyperlink] … [link to full text of article, san hyperlinks]"

Whew. Yes, it’s a lot of work, but worth it.

Peanut Recall Includes “Organic” Items

Woe unto you (and salmonella is definitely a woe) if you're not checking this list regularly. New recalled products are added daily:

Link here for the FDA’s database of peanut contaminated products.

Previous posts here and here.

What Happens When Your Oregon Lawyer Dies?

First things first: If your lawyer dies, call his/her law firm. If your lawyer dies and the law firm has died too (e.g. if the lawyer was a solo practitioner) and you want to know what happened to your case files, if the law firm no longer exists, or any other similar scenario occurs … call the Oregon State Bar (OSB): 503-684-3763. They will advise you.

Second things: Lawyers do think about these things (or they should) and they even get wonderful honky-tonk titled articles out of their deliberations on the subject:

From Jim Calloway’s Law Practice Tips blog, you'll go to:

When You Go to Heaven, Will Your Practice Go to Hell?, by Courtney Kennaday and Reid Trautz, January 2009.

Excerpt: “…Lawyers are always encouraged to plan for their untimely death or disability, so that their clients are not left unrepresented and open to potential harm, and so their families are not faced with the problem of what to do with the practice while still mourning their loss. Articles abound from state bar associations, the ABA Law Practice Management Section, and more. In spite of this, many, many solo lawyers never make a plan….” (source)

Oregon Probate Law: Unsecured Creditors, Non-probate Property, and Appealability

“Rights of an Unsecured Creditor to Recover from a Decedent’s Nonprobate Property,” by Daniel C. Re and Hurley Re, in the January 2009 issue of the OSB Estate Planning and Administration section newsletter (previous issues online).

Another article in the same issue: “Appealability of Decisions in Probate and Trust Proceedings,” by Philip N. Jones.

Oregon and Electronically Stored Information

Willamette Law Review (Winter 2008, vol. 45, no. 2) has this article: “A Last Vestige of Oregon’s Wild West: Oregon’s Lawless Approach to Electronically Stored Information," by Leroy J. Tornquist & Christine R. Olson.

(This article is not yet at the Willamette Law Review website, but will be, eventually. Please contact your local law library for a copy of the article, which will be available from a number of online subscription services.)

Measure 37 and 49 Commentary

Researching legislative history can sometimes require more than plowing through dusty hearing transcripts. Guides to legislative history and intent always suggest searching the secondary literature, e.g. newspaper and journal articles that are written before the legislation is passed, shortly thereafter, and reflective articles long after the law has been enacted:

Willamette Law Review (Winter 2008, vol. 45, no. 2) has this Comment:

“The Battle Over Property Rights in Oregon: Measures 37 and 40 and the Need for Sustainable Land Use Planning,” by David J. Boulanger.

(This article is not yet at the Willamette Law Review website, but will be, eventually. Please contact your local law library for a copy of the article, which will be available from a number of online subscription services.)

U.S. Senator Reid and Oregon Secretary of State Kate Brown

If you think federalism means that in the United States the federal government operates independently of state government, or vice versa, see this blog post for an interesting civics lesson:

Isaac Laquedem’s take: Harry Reid gives Kate Brown an unexpected power over the United States Senate

Keeping Up With the Judiciary in Oregon: Willamette Law Online

For many of us, keeping on top of federal case law is a lower priority than tracking changes to our state’s laws. But we still like, and need, to stay in the loop, especially since these cases affect our day-to-day lives as much as our own state laws do: family law, criminal procedure, employement law, etc.

For U.S. Supreme Court opinions (and other courts’ opinions too), you have a number of quick ways to stay current, one of which is the Willamette Law Online service:

“Willamette Law Online functions as a notification service, alerting users to legal decisions and trends, and is neither intended to be a comprehensive resource of case law nor a substitute for in-depth legal research…."

WILLAMETTE LAW ONLINE
245 Winter Street SE
Salem, Oregon 97301

Here’s an excerpt from the email that is sent to you (full case summaries are included in the actual email):

Willamette Law Online - Willamette University College of Law
- - - - - - - - - - - - - - - -
On January 26, 2009 the United States Supreme Court decided the six cases summarized below.
- - - - - - - - - - - - - - - -
In this issue:

(1) SENTENCING (Whether the United States Sentencing Guidelines are to be seen as mandatory and presumed to be reasonable by State courts)

(2) CRIMINAL LAW (Supervising prosecutors are subject to absolute immunity in civil suits arising from failure to set policies guaranteeing the defendants’ Constitutional rights)

(3) FOURTH AMENDMENT (The search of a passenger during a traffic stop is Constitutional when the officer suspects that the passenger is armed, but has no reason to suspect a crime has been committed)

(4) INTERNATIONAL TRADE (The uranium enrichment service contract constituted the sale of merchandise under 19 U.S.C. 1673)

(5) PENSION LAW (Whether a limitation on assignment or alienation invalidated the act of a designated beneficiary under her ex-husband’s Employee Retirement Income Security Act (ERISA) pension plan, who supposedly waived her entitlement in a divorce decree that was not a qualified domestic relations order (QDRO))

(6) CIVIL RIGHTS (Protection under the Civil Rights Act of 1964 extends to an employee who reports workplace discrimination during an employer-initiated investigation and is not limited to an employee-initiated report)

Oregon Attorneys Gone Wild: Free Legal Information and Advice

Oregon, and especially the Portland-metro area, is awash in lawyers talking about the law to all and sundry - for no charge. (You don’t even have to buy them lunch - how much better than that can it get?)

There are pedestrian and bicycle legal clinics, bankruptcy clinics, small business legal clinics, homebuyer clinics, patent law programs (e.g. at CubeSpace), expungment clinics, and many more.

You just need to know where to look for the announcements. Despite what you think, many lawyers are just not that good at marketing. Until some of us figure out a way to maintain a website or blog where these programs can be posted, here are some tips on how to find them. Like most things that are worthwhile, it will take some effort, but it may surely pay off in the end:

1) Find the legal association or organization that specializes in the area of law you are interested in and contact the organization or one of its members. No one knows this better than Oregon bicyclists!

2) Contact the Oregon State Bar (OSB): they may be the logical group to keep a running list of these free events, but in the meantime, they may still be able to give you some contacts.

3) Contact a Legal Aid (LASO) office. They too will know about various free legal programs.

4) Local police and sheriff’s departments frequently host landlord-tenant clinics and mediation programs.

5) If you have a neighborhood association, call the reigning Chair and ask about inviting a lawyer speaker to your meetings. If you coordinate this, you get to choose the topic - and talk to the lawyer personally yourself.

6) If you belong to any association, talk to fellow members to find out what they want to have a lawyer talk about and have someone contact the Oregon State bar (OSB) to ask for some names of local lawyers. A visit from a lawyer who know about foreclosures, investing safely, neighbor law, dog law, small business legal matters, and other subjects would attract more people to your meetings!

7) Ask your state legislator to set up a meeting in your community to talk about a particular bill that has been introduced during the current legislative session.

But remember, if you’re going to sponsor a free legal talk (rather than just attend one), don't rely on that lawyer to advertise it. Use your own creativity to get the word out, be it through your association’s newsletter or Twitter and everything in between.

Does Your Lawyer Know What Metadata Is?

I hear far too many lawyers say, “I don’t understand technology. I do just fine with the telephone and my legal assistant.” This is a far more dangerous situation than “I don’t need no stinkin’ email.”

As a public librarian, I’m in favor of self-help and I know my way around a law library, but I’m also smart enough to know when to hire lawyers (and doctors). And I sure want to know the professionals I hire to protect my legal interests also know how to protect my privacy interests. If there is a computer in the law office, but no one who knows about protecting data, let alone understanding how those computers work ... well .... good grief.

Not knowing about scrubbing legal documents submitted electronically could lead to a Bad Outcome, for all. And, it can be as fatal to clients (their cases and their privacy) as it is to that lawyer (or public servant or financial advisor or bank or doctor) who doesn't lock up paper files or encrypt electronic data. (And why DO we keep hearing about custodians of personal records leaving laptops, with unencrypted data, unattended in garages, driveways, cars, airplanes, etc.?)

Metadata - What Is It and What Are My Ethical Duties?, By Jim Calloway, LLRX, January 5, 2009

Excerpt:

“An attorney looks in his inbox and finds a long-awaited settlement proposal from opposing counsel attached to an e-mail. The attorney opens the document and hits the print command. While the document is printing, the attorney eagerly looks at the monitor for details. “Good, the settlement figure is probably still too high, but very close to reasonable.” The document is quite short, actually. How long could drafting it have taken? Idly, the attorney clicks on the properties tab and sees the document was open on opposing counsel’s computer for three hours.

“Wait,” the attorney thinks. “Didn’t I get that metadata scrubber utility? ….
…
The lawyer sits up with a cold chill, quickly closing the document. Then he stands up and starts pacing the room. What had the lawyer done? What was the lawyer supposed to do going forward? Was there something wrong with taking advantage of this information? Why does he already feel guilty? Finally, with a flash of anger, he thinks, “Why was that opposing lawyer dumb enough to send me that information?”

As the above example should illustrate, every lawyer needs to understand a few basic things about metadata. The legal ethics implications of metadata “mining” are no longer just of interest to the lawyers processing electronic discovery or the ethics mavens….” (link to full article)

On the other hand (and there is always another hand!), read this article about metadata and discovery: FRCP And MetaData - Avoid The Lurking E-Discovery Disaster, by Dennis Kennedy, in the Metropolitan Corporate Counsel and these blog posts. Or just do a literature search on discovery and metadata and prepare to do some hard thinking.

Justice Bedsworth Gets Education: Via Planet Mercury and the Donner Pass

Justice Bedsworth welcomes you to February 2009, via the heat of August 2008 (LOL!):

MCLEmentary: “Beds has to forego a forgettable knowledge seminar.”, by Justice William W. Bedsworth:

Excerpt: “The National Judicial College is located in Reno, Nevada. I don’t know why. I always assumed that is where the founders’ wagon train ran out of food and water.

Whatever the reason for the location, it’s problematic. Say what you will about Reno, it is geographically undesirable for the vast majority of judges. The vast majority of judges, like the vast majority of everything else, is not in northern Nevada.

They have, what, nine judges in northern Nevada? Everybody else in America has to hop a plane, rent a car, hire a stagecoach, whatever, to get to Reno. Putting the National Judicial College in Reno was like putting the Mexican embassy in Milwaukee.

So they’ve always had to work very hard to get judges to attend their programs – a problem made especially exasperating by the fact California, which has more judges than gas stations, and is right across Donner Summit from the College,(1) has never taken full advantage of the proximity of this resource. California has enough judges to run its own continuing education programs, so the NJC has never been able to tap into the judicial mother lode that runs along the Sierras, just the other side of Truckee….
...
So I polished up my blackjack technique, re-read the Fourth Amendment, and hightailed it off to Reno. It was August. It was like spending a week in a hairdryer. Reno in August is the world’s largest outdoor convection oven. Nobody missed a class; we were all afraid if we left the building before sundown, we’d combust.” (read full essay)

Previous Bedsworth tales of woe and law can be found at May it Please the Court.