Electronic Law Libraries in Prisons

The report of the California Performance review, called Government for the People for a Change, has been released and "Statewide Operations" recommendation 23 is to replace current legal publication purchases at jails with electronic kiosks powered by Lexisnexis's research databases. The report states that moving from $4 million in print publications to 300 kiosks would enable a savings of $1.9 million per year. Lexisnexis will apparently be providing free printing to the inmates.

The story popped up in Ohio because of the LN link, of course, and was reported by the Dayton Daily News (registration required).

Free CLE! Workers' Compensation

The Ohio Bureau of Workers' Compensation is holding its fall, one day conference called Workers' Compensation University at locations around the state. The Sharonville Convention Center will host the conference, available either September 27 or 28, 2004, for Cincinnati. Course materials will be available for continuing legal education credit. You can sign up online. Questions? Try e-mailing the BWC or calling 1-800-OHIOBWC.

"Electronic Government" news

There've been several items in the past couple of days relating to developments in "electronic courts & government" trends.


First of all, there was an article on USA Today's online version on Aug. 19th. about state and local governments increasing using electronic services. "


A Law.com article on Aug. 24th. relates a decision by Nassau County Supreme Court Justice Leonard Austin's tackling the growing, but largely uncharted, area of the law-- in New York, at least-- dealing with who bears the cost of electronic discovery.
"In issues over paper discovery," the article says, "a judge must determine whether the demanded material exists, whether its material & necessary for the case, and whether or not it's priviledged."
Ruling in what appeared to be an absence of precedent, Justice Austin applied the rule that governs paper document production: The extraction of information from an old computer will be borne by the side requesting it.


And finally, an article in the Aug. 17th. issue of U.S. Law Week relates the National Conference of Commissioners on Uniform State Laws' approving a proposed uniform law that would "streamline real estate transactions by gradually replacing paper-based land recording systems with electronic ones."
The law can be viewed @ http://www.law.upenn.edu/bll/ulc/urpera/Approvedfinal2004.htm

California Overtime Pay Ruling

Employers in California, at least, got bad news Thursday when the California Supreme Court unanimously ruled a class certification was appropriate for hundreds of wage-and-hour suits.

A Law.com article this morning relates the Superior Court of Los Angeles' having found that "employees had established by a proponderance of the evidence that common issues predominated" and declared the case a class action. Los Angeles' 2nd. District Court of Appeals, however, reversed that decision in 2002, holding that because "the employees' job descriptions were so different, regardless of their titles, there could be no class-- the first time that a California appeals court ruled that class certification was not appropriate in a wage-and-hour case.

California's Supreme Court disagreed, saying ".. individual issues do not render class certification inappropriate so long as such issues may effectively be managed. Nor is it a bar to certification that individual class members may ultimately need to itemize their damages."
(Sav-on Drug Stores Inc. v. Superior Court, 04 C.D.O.S. 7902,
2004 Cal. Lexis 7806, 2004 WL 1902370 (Cal.) )

Lexisnexis Continues Portal Partnership

The Dayton Business Journal reports that Lexisnexis and Plumtree have renewed their strategic alliance. As the two major legal research vendors continue to broaden their domains, the portal market has beckoned to each. But both Thomson-West and Lexisnexis opted out of building their own. Lexisnexis' portal ally has helped it get into some big firms, just as Westlaw developed customizable portlets, small components that could be embedded into portal products like those from Plumtree, Hummingbird, and iManage/Interwoven. Anyone using Microsoft's Sharepoint Server should take a look at the Westlaw components.

Indiana "Pro Se Guide to Appellate Procedure"

On July 22nd. the Indiana Supreme Court announced publication of its first "Pro Se Guide to Appellate Procedure."
The Guide, said David Lewis, Clerk of the Indiana Supreme Court, Court of Appeals & Tax Court, "promises to be an important tool for litigants attempting to navigate the complex appeals process without the assistance of an attorney."

There is a press release with more information @ http://www.in.gov/judiciary/press/2004/0722.html , or the guide itself can be downloaded at http://www.in.gov/judiciary/cofc

Law Librarians in Demand!

The August 20, 2004 print edition of Business First of Columbus highlights the legal profession, focusing particularly on corporate and litigation topics. Law librarians, ably represented by Maggie Toole of Schottenstein, Zox & Dunn, Susan Hanrahan of Vorys, Sater, Seymour and Pease, Nancy Clark of Jones Day's Columbus office, and Pat Christian of Squire, Sanders, and Dempsey, are the focus of one article that looks at the increasing demand of law firms for librarian skills. While demand for print resources is challenged by the cost and access of electronic resources, librarians are doing far more non-legal research than ever before. Law firms who look to law librarians solely for legal research assistance may be missing valuable skills; law firms not engaged in business research about opponents and clients may be omitting an important source of competitive intelligence.
Other topics include corporate e-mail retention policies and how they might reduce liability and electronic data discovery.

DOL Overtime Rules

The Department of Labor's new overtime & exemption rules go into effect today, amid headlines still using terms like "murky" and questionable.

Several of this morning's can be found at:

CNN http://www.cnn.com/2004/US/08/22/overtime.pay.ap/index.html
MSNBC http://www.msnbc.msn.com/id/5790276/

The Department of Labor's site is @ http://www.dol.gov/esa/regs/compliance/whd/fairpay/

Mayor's Court Registry

The Ohio Supreme Court on July 21st announced the inclusion of quarterly electronic reports of all active mayor's courts in Ohio.

To view these reports, go to the Supreme Court's website (http://www.sconet.state.oh.us ) and click on "Public Access to Mayor's Courts Registration & Reporting."

Searches can be done by county, court name, or court code. Information such as whether a particular Mayor's court is active, how large a caseload it has, and what types of cases are heard are posted, but court dockets or the outcome of cases are not.

Mississippi joins Casemaker

When it rains, it pours. The Casemaker database consortium now has 19 states participating, with the addition of the Mississippi Bar, as reported by the Columbus Business First. Colorado was state number 18, as reported here.

Blakely Implications for State Courts

The National Association of Criminal Defense Lawyers has a resource platform posted @
http://www.nacdl.org/public.nsf/newsissues/blakely?opendocument

The site lends access to decisions in Blakely, Hammoud, Pineiro, Booker, and other major related cases from around the country. The Department of Justice memorandum to federal prosecutors, and a lenghty list of news articles are also available.

Also posted are several state-specific commentaries including:

"Blakely v Washington: Implications for State Courts" (Nat'l. Center for State Court )
"Aggravated Sentencing:Blakely v Washington-- Practical Implications for State Sentencing Systems" (Vera Institute of Justice)

Colorado joins Ohio Casemaker

Columbus Business First reports that the Colorado Bar Association has joined the consortium of state bar associations led by Ohio. The addition of Colorado brings to 18 the states participating. Each state's appellate court opinions are added to the electronic database, and members of the bar associations of each state have access to all of the other state's opinions. Casemaker is the brainchild of the Ohio State Bar Association, whose goal is to have all 50 states' opinions included.

The legal research product is interesting because it is moving into a space that is below the threshold of the mega products like Thomson Westlaw and Reed Elsevier's Lexisnexis. Sites like Aspen's Loislaw, Versuslaw, Quicklaw, Fastcase, and National Law Library are providing 50 case coverage in various ways and with varying enhanced tools already. Getting the case law as a member benefit for the bar association creates substantial additional value by giving the members what is essentially a free option for part of their legal research needs that is far more reliable than what they might have on the Internet.

Kudos to our home town (Cincinnati!) Lawriter Corporation for providing the technology backbone to Casemaker.

Personnel Issues; At-Will in Ohio and More

The Daily Reporter, Columbus' daily legal paper, published a special feature today on personnel issues, heavily patronized with lawyer advertising as you might expect. There are interesting pieces on at-will employment, employment contracts, non-compete covenants, and workers compensation.

Blakely

With half of the legal profession waiting for the Supreme Court's decision on Blakely, the 2nd. Circuit has decided, for the time, at least, that the federal sentencing guidelines are constitutional, releasing a per curiam opinion in U.S. v. Mincy saying it was appropriate to give direction to lower courts given the "considerable consternation & concern" caused by Blakely.
( http://www.law.com/jsp/article.jsp?id=1090180337638 )

The case is posted on the 2nd. Circuit's website under "recent decisions" @ http://www.ca2.uscourts.gov

Federal Sentencing Guidelines

The eyes of most every criminal trial attorney are, or will be next month, at least glancing in the direction of the U.S. Supreme Court when it reconsiders Blakely v. Washington and its effect on &, constitutionality of , the Federal Sentencing Guidelines which were established back in 1984.

Justice Sandra Day O’Connor in her dissenting opinion, prophetically stated that, “The Court ignores the havoc it is about to wreck on trial courts across the country… Over 20 years of sentencing reform are all but lost, and tens of thousands of criminal judgements are in jeoprody.”

“Inside of the two weeks following Blakely,” the Aug. 2nd. issue of Lawyers Weekly, U.S.A. quotes Indiana University law professor Frank O. Bowman, III, “four federal circuit have reached four different results. And in a single federal district in Utah, four judges have had results somewhat different than the four courts of appeals.”

The outcome of the Supreme Court’s decision, though, may not be limited to just the federal arena. While Ohio, Indiana, and Kentucky do not, Alaska, Arkansas, Florida, Kansas, Michigan, Minnesota, North Carolina, Oregon, Pennsylvania, and Tennessee all have sentencing structures similar to the one being questioned in Blakely.

While there apparently no state sentencing systems – yet – having to contend with the sweeping turmoil being endured at the federal level, there are several websites where that kind of information is, or soon will be, available.

The U.S. Sentencing Commission’s website is @ http://www.ussc.gov/

The Ohio Sentencing Commission is @ http://www.sconet.state.oh.us/sentencing_commission/default.asp
Indiana’s Criminal Justice Institute is @ http://www.in.gov/cji/home

There’s the Indiana Law Blog @ http://www.indianalawblog.com/


The National Association of Sentencing Commissions (NASC) has already posted responses from Kansas, Michigan, Minnesota, and Pennsylvania; along with a "membership contact list" @ www.ussc.gov/states/nascaddr.htm )

And finally, Douglas Berman, professor of law , Moritz College of Law at Ohio State University, man-ages an impressive undertaking called “Sentencing Law & Policy” @ http://sentencing.typepad.com/

Overtime/ White-collar Exemption Alert

Thompson-West law publishers issued a memo yesterday saying that “a recent report issued by three former Department of Labor officials on the new Fair Labor Standards Act white-collar exemption regulations alleges that more workers will lose their overtime pay protection when the new rules take effect on August 23rd.

The report, part of a study commissioned by the AFL-CIO, “notes that judging the exemption status of a worker based on his or her ‘most important duty’ is much more subjective than examining how much time that person spends doing exempt work. As a result, the report concludes, employers will be able to classify more employees as exempt and thereby avoid having to pay them overtime wages.

“Meanwhile, a study recently released by the Economic Policy Institute (EPI), a Washington, D.C.-based liberal think tank, estimated that nearly six million workers will lose their right to overtime pay under the new regulations.” (http://www.epinet.org/briefingpapers/152/bp152.pdf )

Sunshine Seminars Announced by AG Petro

The Attorney General has announced the locations and dates for public seminars on Ohio's so-called Sunshine Laws - related to making public meetings and records open - at locations around the state. The meetings are open to the public but there is limited space
You can download the Ohio Sunshine Laws update from the AG's Web site, as well as a letter from the Attorney General..

Ohio Jury Reality TV

A documentary series called "In the Jury Room" produced by ABC News will take viewers into the jury deliberations of an Ohio court room. The participants in the case, in Judge McDonnell's court in Cuyahoga County, agreed to the ABC News crew filming the proceedings, although at least one of the attorneys was withholding judgment on the success of the endeavor. The case resulted in the jury recommending a life sentence without parole rather than the death penalty.

The focus on juries coincides with some policy efforts at the American Bar Association (ABA), where a recent poll conducted by the organization found that most people preferred jury trials and wanted to serve on juries.

Department of Labor Final COBRA Notice Rules

An article in Thompson/West’s July Mandated Health Benefits newsletter reports that now that the Department of Labor’s new COBRA notice rules have been finalized, “employers and plan administrators should review the new guidelines carefully and begin to address changes to their COBRA administration procedures & documentation as soon as possible. This is particularly important because noncompliance could lead to significant costs—including penalties under ERISA, unanticipated medical claims, and even attorney fees—if notice disputes are litigated. Additionally, DOL will likely be increasing audit activities on COBRA notice and election issues.”

“According to COBRA’s legislative history,” the article continues, “DOL has the authority to issue guidance only on matters related to COBRA notice & disclosure requirements. The Department of Treasury (through IRS) has the regulatory authority over all other substantive requirements. Similarly, the U.S. Dept. of Heath & Human Services (thru the Centers for Medicare & Medicaid Services) has jurisdiction over COBRA application to plans of state and local governments.”

The new rules create requirements—and, potentially, new liabilities— new time frames for certain notices, and new model notices for use as initial COBRA notices & qualifying event notices. This model notice is an update from the one provided in the 2003 proposed rules, and, as indicated in those proposed rules, DOL’s original model COBRA notice from 1986 may no longer be used to demonstrate good faith compliance.

The DOL final rules also include two additional requirements for plan administrators: a notice of unavailability of COBRA coverage, and a notice of early termination of COBRA coverage.

“Some plan administrators,” the article says, “are under the impression that they can rely on their COBRA service providers to ‘take care of’ the appropriate updates, a generally false assumption. COBRA service providers fill a valuable role in assisting plan administrators in complying with their COBRA administrative responsibilities, (but) COBRA service providers typically are not responsible for updating plan documents and summary plan descriptions (SPDs), or internal plan procedures that might affect qualified beneficiaries, such as identifying organizational units within the employer responsible for receiving notices of divorce or loss of dependant child statuses.”



West’s Mandated Health Benefits: The COBRA Guide is available at the Cincinnati Law Library to members for use in the library or to check out.

The new COBRA notice requirements are available online

Additional material is available by searching “COBRA notice requirements” on the Department of Labor’s website

New Circulation Policy Being Announced

Effective September 1, 2004, the Law Library circulation policy will undergo a few changes. They will be published in the September newsletter, or can be viewed @
http://www.hamilton-co.org/cinlawlib/resouces/policies/circulation.html

E-Filing Challenge in Franklin (OH) County

The 8/6/2004 edition of Columbus Business First discusses the challenges Franklin County Clerk of Courts is having upgrading its court filing system. Currently using microfiche when many counties, including Hamilton County and Cuyahoga County, have gone to electronic filing and Internet-based systems that eliminate much of the interactions citizens must have with the court clerk's office.

The United States Administrative Office of Courts has been implementing its case management / electronic court filing project and the use of this system in the bankruptcy courts has pushed electronic court filing across the country.

But as the Franklin County government is finding, the technology can be expensive, particularly when you have already adopted what has turned out to be an intermediate technology, like microfiche. Hopefully, as more courts gain current electronic capabilities, the cost for maintaining them will become increasingly manageable.

Ohio Supreme Court Reporter Changing to PDF

The Portable Document Format continues its role as the reliable document format for the legal profession. Many electronic court filing systems require the use of encrypted PDF files, as we do here Hamilton County, Ohio.

Now the Supreme Court of Ohio's Reporter of Decisions is making the switch as well. There is nothing inherently wrong with the Microsoft Word format, although some may feel uncomfortable downloading a file that has a high risk of computer virus and worm infection. The use of PDFs for the official opinions will settle that concern. If you haven't used the latest version of the free Adobe Acrobat Reader, the search capabilities are getting better within a document, enabling the reader to do more than just print a nice copy!

Unauthorized Practice of Law - Update on Cleveland Bar Ass'n v. Compmanagement

The Federal Trade Commission has filed an amicus brief in the Cleveland Bar Association's suit against Compmanagement, supporting neither side. The brief actually says that, "absent any evidence of consumer harm ...", the court should not severely restrict or ban lay practice before the Industrial Commission.

The Supreme Court of Ohio's Web site hosts a complete listing of briefs filed in the case at the Board of Commissioners on the Unauthorized Practice of Law home.

"Crawford"/"Blakley" not Retroactive

Thomas McAvoy, Senior U.S. District Court Judge for the Northern District of New York, has ruled "Crawford v. Washington" and "Blakely v. Washington" are not retroactive in their application.

Both "Crawford" and "Blakley" have created wide confusion, leaving trial courts speculating on their impact and eager for clarification. On Monday, Aug.2nd., the U.S. Supreme Court agreed to look at & settle whether federal sentencing rules were unconstitutional ( http://www.cnn.com/2004/LAW/08/02/scotus.sentences.ap/index.html )
The case before McAvoy (Garcia v. U.S., 04-CV-0465), raised both Crawford and Blakley issues which were addressed in his decision. Article in New York Law Journal on Aug. 6th. exemplifies.
( http://www.law.com/jsp/article.jsp?id=1090180295836 )

U.S. v. Leon Carmichael

The U.S. District Court for the Middle of Alabama, Northern District, on July 20th. , held that a criminal defendant, charged with drug conspiracy & money laundering, could set up a website on the Internet with photographs of DEA agents and potential witnesses asking for information from the general public about those people.

The Court, in explaining its holding, stated the website constituted the defendant's protected speech rights under the First Amendment, and his right to gather evidence in his defense under the Fifth & Sixth Amendments.

It is the first case of its kind in the country.

An in-depth, subscriber, article can be found @ http://www.lawyersweeklyusa.com/subscriber/archives.cfm?page=usa/04/802044.htm&QueryText=info%20via%20website )

Large Law Firm E-Billing Trends

The large (and mid-size) law firm technology association, LawNet, released a survey on e-billing in July. 68 law firms belonging to the group responded to questions related to invoice processing, vendor fees, and other process-oriented factors of electronic billing. LawNet maintains an excellent collection of white papers related to large law firm technology and business practices.

Charitable Donations of Automobiles

The July 30th. issue of RIA's Tax-exempt Organizations reports that the IRS has posted two new publications on its website; a donor's guide to car donations, and a charity's guide to car donations.

RIA makes the observation that "the issuance of these new publications, which make no reference to pending legislation, seems ill-timed since both the Senate and House have passed versions of the 2004 JOBS Act which would retroactively add more restrictive rules on charitable contributions of motor vehicles.

"In annoucing the release of the publications IRS Commissioner Mark Everson said,
'Supporting charitable activities through tax dedutible contributions is an important element of tax law and serves the national interest. But we encourage people to proceed carefully when donating vehicles. There are instances where the donations may provide little benefit to the charity.'"

"The Charity's Guide to Car Donations" is available online at http://www.irs.gov/pub/irs-pdf/p4302.pdf.

"The Donor's Guide to Car Donations" may be obtained at http://www.irs.gov/pub/irs-pdf/p4303.pdf.

A general "Tax Information for Charities & Other Non-Profits" is available on IRS's website at http://www.irs.gov/charities/index.html.

Achieving Partner Becoming Harder

An article in the Boston Business Journal reports that it is becoming increasingly difficult for associates to achieve partner in law firms, although once reached, the position provides increased financial benefits and employment security, as well as greater exposure to the business side of the practice. The National Association for Law Placement has recently studied second-career lawyers, and found that it neither helps - nor hinders - the path to partnership to have come to the legal profession after another career.

Ohio Files Brief in US Supreme Court Liquor Case

Ohio Attorney General Jim Petro filed a brief on behalf of 33 states with the U.S. Supreme Court, supporting a Michigan state law governing liquor sales from out-of-state vendors. See the Attorney General's press release. (Source: Cincinnati Business Courier)

NYSE electronic trading system

The New York Stock Exchange announced yesterday that it plans to scrap limits on electronic trading & expand computer-driven orders in a historic move that could erode the two-century dominance of its open-outcry auction system. ( http://www.msnbc.msn.com/id/5580331/ )

JFK

Researchers at the National Archives are using optical scanning in an attempt to preserve the only known sound recording of the gunshots that killed President John F. Kennedy. ( http://www.cnn.com/2004/US/Southwest/08/02/jfk.tape.ap/index.html )

Overtime Regulation Seminars

The Ohio State Bar Association will present continuing education seminars on the new federal overtime regulations & overtime in Columbus on Aug. 18th. and Cleveland on Aug. 25th.

"Microsites"

In the world of internet websites the longer it takes someone to find what they're looking for the worse it is. As a matter of fact, it's often the case that if they can't find it right away, they're likely to look somewhere else.

An article by Andy Havens, posted on llrx.com on July 26, says "it's pretty much an industry standard that 50% of all visitors to a website only look at the home page... They peek in the front window, and if they don't see exactly what they're looking for, they move on down the block.