LEGAL
RESEARCH 101: CLASS 6
By Joan Olson, CLA, MACP President
Case Law
In the common law system, judicial decisions form one of
the major sources of legal authority. The recording of judicial decisions is
related to the quest for certainty and fairness in the law. From its beginnings,
law reporting has aided in the search for predictability in law. The doctrine of
precedent and stare decises (let the decision stand) seeks to ensure that people
in like circumstances are treated alike.
Case law is published chronologically in sequentially
numbered volumes called court reports or reporters. The need for speed in legal
publishing has created the chronological publication. Why is there this need for
speed? Best answer—the minute a decision is handed down, it applies to those
below.
There are two types of publications:
1.
Official
2.
Unofficial
THE VARIOUS PUBLICATION STEPS OF CASE LAW
1.
Slip Opinion—official decisions by the courts. These are not paginated
chronologically as they will appear in the bound volume.
2.
Advanced Sheets—paginated in continuous sequence. These are paperback
books that sequentially follow the bound volumes. Advanced sheets must be
published volume by volume.
3.
Bound Volume
FEDERAL LEVEL
Supreme Court (term goes from October to July)
1.
Official Publication: United States Reports—The Supreme Court began
publishing court decisions in 1790. In the beginning, each report bore the
individual name of official at the court in charge of publishing the opinions,
i.e. Dallas, Black, Wallace. These books are known as the Nominative Reports.
In 1875 the official reports of the Supreme Court were
renamed United States Reports.
Contents of a United States Reports decision:
1.
The case name;
2.
Syllabus—preliminary paragraphs summarizing the case and the Court’s
holding; and
3.
Opinion of Court
a)
The Opinion is first;
b)
Concurring Decisions follow the Opinion;
c)
Lastly, Dissenting Opinions are published.
The publishing of the official publication is extremely
slow. For example, the slip opinion is not issued by the Government Printing
Office until several weeks after a decision is announced. Almost two years pass
before a decision appears in the advance sheet, called “preliminary print”,
and another year before its inclusion in a bound volume.
1.
Unofficial Publications: In response to the need for more timely
publication, two commercial reporters publish Supreme Court decisions.
a.
Supreme Court Reporter (S.Ct.)—West Publishing began this publication
in 1882 with volume 106 of the U.S. Reports.
Decision Enhancements:
1.
Editorial synopses; and
2.
Headnotes—designated by topic and assigned a numbered subdivision
within the topic.
a.
United States Supreme Court Reports, Lawyers’ Edition (L. Ed. and L.
Ed. 2d)—Lawyers Cooperative Publishing prints this reporter, which contains
all Supreme Court decisions since the Court’s inception in 1790.
Decision Enhancements:
1.
Editorial summaries;
2.
Headnotes—only good for Supreme Court research;
3.
Summaries of the briefs of counsel—helps provide a better understanding
of the Supreme Court’s decisions; and
4.
Annotations—egal analysis.
Summaries of counsel briefs and annotations are located at
the end of each volume. References appear at the beginning of the decisions.
a.
United States Law Week (U.S.L.W.)—The Bureau of National Affairs
publishes the official slip opinions of Supreme Court cases weekly in this
looseleaf service.
d.
U.S. Supreme Court Bulletin—The Commerce Clearing House also publishes
official slip opinions of Supreme Court cases weekly in the U.S. Supreme Court
Bulletin.
Both U.S.L.W. and the U.S. Supreme Court Bulletin provide
information about the Supreme Court’s docket, arguments, and other
developments, making them the leading sources of current information on the
Supreme Court.
Lower Federal Courts—
District and Circuit Courts
The district and circuit courts do not have official
reports for their decisions, other than individual slip opinions issued by the
courts themselves.
In 1880, West Publishing initiated the Federal Reporter
(which is now in its 3d series) to publish decisions of both the district and
circuit courts. In 1932 with the increasing volume of litigation in the federal
courts, West Publishing began printing U.S. District Court decisions in a series
called the Federal Supplement. Cases from the lower federal courts before the
inception of West’s Federal Reporter are found in a separate West publication
called the Federal Cases. In 1940, West began another series called the Federal
Rules Decisions, which publishes a limited number of U.S. District court
decision not published in the Federal Supplement dealing with procedural issues
under the Federal Rules of Civil Procedure and the Federal Rules of Criminal
Procedures.
1.
Federal Reporter—This report publishes decisions from the thirteen
United States Courts of Appeals consisting of the Eleven Circuits, each covering
several states, the District of Columbia Circuit and the Federal Circuit.
2.
Federal Supplement—The decisions of the general trial courts, called
the United States District Courts, are published in the Federal Supplement.
There are ninety-four district courts and several other specialized trial
courts, including the United States Bankruptcy Courts and the United States
Claims Court.
Unlike Supreme Court decisions, not every case considered
by the lower federal courts is represented by a decision published in one of the
reporter series.
STATE LEVEL
1.
Official Publication—Texas no longer has an official reporter. Texas
did publish Texas Supreme Court decisions in Texas Reports until 1962.
2.
Unofficial Publication—West Publishing created the National Reporter
System to publish decisions of all state Supreme Court and Intermediate
Appellate Court decisions. Texas decisions, along with Arkansas, Kentucky,
Missouri and Tennessee, are located in Southwestern 3d.
FORMAT OF JUDICIAL DECISIONS PUBLISHED IN A WEST REPORTER
(Supreme Court Reporter, Federal Reporter, Federal Supplement, Southwestern 3d)
1.
Case name—listing the parties involved;
2.
Docket number;
3.
Citation indicating the volume number, reporter series, and page number
at which the case appears;
4.
Date of decision;
5.
Synopsis or brief descriptive paragraph of the case’s facts and
holdings;
6.
Headnotes summarized the points of law discussed, with digest
classification numbers;
7.
Names of lawyers who represented the parties;
8.
Name of judge writing the majority opinion;
9.
Full text of majority opinion;
10.
Names of concurring or dissenting judges, if any, and additional
opinions; and
11.
Star pagination, if available, providing references in unofficial
reporters to page numbers in official reports.
LOCATING CASE LAW
1.
Digest System—These publications reprint the headnote summaries of
cases in a subject arrangement and then organize them into numerical
subdivisions within each topic. The most widely used digests are the United
States Supreme Court Digests and West’s American Digests.
2.
Table of Cases—They are located at the front of each volume. However,
if you do not know the year or volume number of the reporter, you can use either
the digests such as United States Supreme Court Digest, Shephard’s Federal
Case Name Citators, or Shepards Parallel Reference Tables.
EXAMPLES OF CITATIONS
United States v. Stauffer Chemical, Co., 464 U.S. 165
(1984)
United States v. Stauffer Chemical, Co., 464 U.S. 165, 104
S. Ct. 575, 78 L.Ed. 2d 388 (1984)
Campbell v. Sirak, 476 F. Supp. 21 (S.D. Ohio 1980)
United States v. Huntley, 535 F. 2d 1400 (5th Cir. 1976),
cert. Denied, 430 U.S. 929 (1977)
Subsequent history of a cited case must be shown. Prior
history is shown only in the situation where the prior history is necessary to
explain the point at which the case is cited. Therefore, you will need to cite
the entire case history to alert the reader that further action could occur or
to show that there will not be any further action, i.e. in a case of a writ of
certiorari being denied.
Joan Olson is the Assistant Vice President of
Regulatory and Corporate Compliance for Swiss Re Life & Health America
Inc. Joan received a Bachelors of Art in Government from the University of
Texas in 1991 and her Certificate of Completion from the Paralegal Program at
University of Texas at Arlington in 1992. She is a Certified Legal Assistant
and the President of the Metroplex Association of Corporate Paralegals.
HELPING
YOUR CLIENT PREPARE FOR DEPOSITION
By R. Lee Livingston
Most of us recognize that preparation is the linchpin of
good trial work. As one trial lawyer said, “Everything else—felicity of
expression, improvisational brilliance—is a satellite around the sun. Thorough
preparation is that sun.”1 Hence, we spend substantial time preparing our
clients to testify at trial. In most cases, however, the client’s deposition
is his trial testimony, because most cases settle before trial. Maximizing
results for our clients may depend on thorough preparation of the client for
deposition.
The client’s presentation, credibility and competence in
deposition influence the value of her case. Of course, thorough preparation does
not guarantee results. Many of us have sat perplexed beside a client in her
deposition, listening incredulously as she agrees with paraphrased answers, even
after being specifically cautioned against letting opposing counsel put words in
her mouth. If you follow a thorough plan of preparation, however, though you may
still sit perplexed in your client’s deposition, it will not be because you
have failed to do your part. The following comments encompass a broad range of
advice you may want to give a personal injury plaintiff. These ideas should be
tailored for individuals based on their personality, intelligence and other
strengths and weaknesses you think may be important to their performance in
deposition.
The Conference and Teaching Aids
Preparation takes time. A client cannot adequately prepare
for a deposition if you don’t discuss the deposition until the day it is
taken. Your preparation meeting should take place several days prior to the
deposition to give your client time to reflect on your advice, form questions
that can be answered in advance of the deposition, and review substantive
materials, including supplemental handouts or videos, used by some attorneys as
additional teaching tools. Meet no more than a week prior to the deposition so
your client will have your advice fresh in his mind.
Psychologists tell us people learn by listening, seeing and
doing. Supplementing your advice with a handout or videotape is helpful. Lawyers
and Judges Publishing Company publishes a handout titled, “About Your
Deposition,” which is a useful guide. The Wisconsin Bar Association has
produced a videotape titled, “Preparing for Your Deposition,” which has
received favorable reviews from trial lawyers. These materials should be
supplementary, however, because nothing substitutes for a face-to-face meeting
in which you focus your client on points she most needs to understand. For
example, you may have a verbose client who will volunteer volumes of information
unwittingly. A stoic client, in contrast, will need help recognizing that his
deposition provides an opportunity to emphasize the depth of harm caused by the
defendant. Individual attention to these details precludes a cookie cutter
handout or video which may save time at the expense of actual preparedness.
Focusing Preparation
Rather than beginning your pre-deposition conference with a
list of dos and don’ts, it is better to ask your client what she knows about
depositions and what questions or concerns she has initially. Listening to your
client’s questions and concerns will help you identify strengths and
weaknesses and allow you to focus your advice. If you simply regurgitate a
standard, long list of dos and don’ts, your client may be 1) unlikely to
absorb and remember all of the advice, and 2) overwhelmed by the volume of rules
and unlikely to listen to any of it. While dos and don’ts are important,
and—in seeming contradiction to the advice just given!—a long list of them
appears below, focusing on addressing core issues important for the individual
person and the specific claim involved may yield better results.
Generally, if a client does not understand basic questions
about what a deposition is and how it will be used, these issues should be
discussed first. Explaining the whys of a deposition will make hows make more
sense. Understanding why something is done will often help a client understand
how to do it without specific advice concerning how. Hence, you should discuss
the defendant’s theory of the case and what defense counsel expects to
accomplish during your client’s deposition. It is probably more important for
your client to understand these larger picture issues than for the client to
memorize of list of “orders” about how to speak and how to watch for tricks.
For some clients, showering them with technical advice will undermine their
confidence, which often diminishes the quality of their performance. Make every
effort to point out your client’s strengths, and the areas in which you
believe your client will perform well. As you give your client the cardinal
rule, i.e. to tell the truth, also remind your client that the truth is on her
side, and she need not fear gimmicks by opposing counsel or her own mistakes if
she follows your advice about preparing for the deposition.
The substance of your pre-deposition meeting can be broken
down into several categories: 1) the basics, 2) good presentation, 3) overcoming
nervousness, 4) avoiding traps, and 5) questions to anticipate.
Helping Your Client Understand the Basics
1.
Explain who will be at the deposition, when and where it will take place.
2.
Explain how the deposition may be used, including the fact it may be read
by claims representatives who may have authority to place a settlement value on
the case. Also, under the rules of court, it may be used at trial. It can be
used not only for impeachment on cross examination, but as direct evidence.
3.
Explain the testimony will be under oath, so it is essential to tell the
truth.
4.
Emphasize the deposition is serious business which will have a
significant impact on the case. Ask the client to set aside a reasonable amount
of time to review materials in preparation for the deposition and to think about
the points you will discuss in your meeting.
5.
Explain the defense theory of the case and what opposing counsel expects
to accomplish. Although this may seem to fall more appropriately under the
substantive issues discussed in section 5 below, it is important at the outset
to provide context, i.e., the big picture. Make sure your client understands
defense counsel is creating a record from which to look for inconsistencies with
other testimony or documents, such as medical records—all in an effort to
undermine his credibility. In addition, defense counsel will be examining the
client’s ability to communicate, likeability, personality, as well as
attempting to estimate how much sympathy a jury will have for the client, and
assessing how much weight a jury is likely to give her testimony.
6.
Critical liability issues should be covered early in the meeting. For
example, in a slip and fall case, your client must be prepared for the “Catch
22” line of questions concerning whether your client saw the foreign object or
defect, whether she was watching where she was going, and why the defendant
should have seen the foreign object or defect if she did not. Burying critical
points such as this in a list of dos and don’ts places inadequate emphasis on
issues that may sink a claim. While role-playing or rehearsing potential
questions may be counterproductive, because you do not want your client to
memorize answers or come across as rehearsed, an exception may be made where you
expect tricks and traps, such as the “Catch 22” slip and fall questions.
Helping your client make a good presentation
The points below are in a form you can present to your
client.
1.
Do not treat the opposing attorney as an enemy, even though she is not
your friend. Answer even what you think are unreasonable questions with a polite
and cooperative attitude.
2.
While courteous, you should not volunteer information; you should answer
only the question asked. If possible, you should answer the question as briefly
as possible with a “yes” or “no.” Being courteous does not mean
volunteering information; you should maintain a professional, businesslike tone,
but provide only the precise information called for by the question asked. You
are not there to help opposing counsel understand anything; you are there only
to answer questions you are asked. You may think you know what opposing counsel
is trying to ask you, though he hasn’t asked the right question; but remember,
he has not asked the right question, and your job is only to answer the question
he has asked. It is not your job to correct questions or expand upon them.
Resist this. Not only will you be helping a person who will make every effort to
defeat or minimize your claim, but you will probably prolong the deposition as
you answer questions that are not asked and thereby lead counsel into areas he
never thought about covering.
3.
I will object to questions which you should not answer. If I do object,
listen carefully to the objection so you understand the problem with the
question and see what opposing counsel may be attempting to do.
4.
Remember, no matter how nice opposing counsel may seem, you have to avoid
slipping into a conversational mode. This may make you feel more at ease because
you don’t want to be in an adversarial situation, but keep your businesslike,
to-the-point attitude, because defense counsel’s “chummy” attitude is
designed to make you feel comfortable and to open up like a long-lost
friend—and while he’s not your enemy, he’s not your friend either.
5.
Dress as if you were going to court.
6.
Speak clearly with confidence.
7.
Keep good posture and don’t fidget.
8.
Do not ask whether you have to answer a question during the deposition. I
will object if there is a basis to object. If you must discuss something
sensitive, we can ask for a break and discuss your concerns privately.
Generally, you have to answer every question unless it involves communications
between us or a trade secret. I do not anticipate questions in these areas.
9.
Do not allow opposing counsel to cut you off. You control your answers,
and you should finish what you want to say without interruption.
10.
Avoid nodding or shaking your head “uh-uh” or “huh, huh.” Say
“yes” or “no.”
11.
Avoid expressions such as “I think” or “I guess,” especially if
you are answering questions about favorable facts. Be unequivocal in asserting
what you know.
12.
I may ask you questions after opposing counsel has finished. If you are
asked questions at the end or your deposition, it is because a correction or
further explanation may be necessary. Listen carefully to the question and
cooperate as best you can in clarifying what you said.
Helping your client overcome nervousness
1.
While you may feel as if your deposition is a test, try to think of it
more as an opportunity for counsel to get answers to questions for which you
already know the answer. Because you have lived through the events in question,
you need not fear getting an answer wrong. Stick only to what you recall
clearly, and you will be fine. If you find yourself thinking the answer “must
be…” you are probably about to speculate about facts beyond your
recollection. Do not guess. “I don’t recall” is as good as “yes” or
“no,” if it is the truth.
2.
Your deposition is not a test where you will be graded on your responses
(although you may feel that way given the instructions I’m explaining to you
today). You have substantial control over the deposition. The transcript will
not show how long you took to answer a question, so a brief pause to think about
each question before answering may be prudent. Take a breath when you need it.
3.
You will inevitably hear questions for which you think you should know an
answer, but your memory has faded. Feel no obligation to answer. A deposition is
not a test of knowledge or memory. Rather, it is opposing counsel’s
opportunity to learn what you know at the time of your deposition.
4.
It is doubtful you will need a break, but if you do for any reason, you
can take a break to use the restroom or take a breather. Especially if your
deposition is in the afternoon, you may need a few minutes to stay fresh and
focused, and you should not be reluctant to take a break. Chances are the
lawyers need a break as well, and you are not infringing on anyone’s schedule
by asking for a break.
5.
If you realize you’ve made a mistake before the deposition is over, you
can fix it. Do not worry about interrupting opposing counsel’s train of
thought. If you think of something you need to clarity, do it when you think of
it. You will have an opportunity to ready your deposition and make changes to is
before it becomes final. You will do better if you do not worry about making
mistakes, and since they can be corrected, you can relax.
Helping your client avoid traps
1.
Watch out for questions that paraphrase your answers. Lawyers often ask a
series of questions and then try to summarize what you said. Opposing counsel
may summarize something you said earlier in the deposition later in the
deposition after the subject has been changed. Listen carefully to how the
lawyer phrases the question, and if you feel better about the way you said it,
say so. When your answers are put in other words, the meaning may be changed in
a way you might not catch at the time, so be careful.
2.
Beware of questions that ask you to estimate time, speed and distance.
Generally, people tend to overestimate speed and underestimate distance. Don’t
be pinned down to a range with which you are not comfortable and make sure the
range is broad enough to cover potential errors in judgment.
3.
Opposing counsel will try to block you from saying anything else about a
subject by asking you, “Is that all?” Tell her that’s all you remember
now, and be wary of absolute statements that you have said everything there is
to say about a topic, because you may recall or learn something later. Beware of
absolutes. When you hear the words “always” or “never,” don’t be
afraid to qualify your response. Don’t get boxed in.
4.
Be sure you understand the question and agree with any assumptions in the
question before you answer. You are not required to answer every question
without explanation. If anything is confusing to you or you disagree with what
you think is assumed by the question, stop and think about it. Ask for
clarification and explain if the question assumes a falsehood or doesn’t make
sense for any reason.
5.
Admit preparing for the deposition. Tell opposing counsel you met with
your attorney and what you read. You have been sensible in preparing for what is
an important part of your claim.
6.
Bring nothing with you to the deposition. Anything you bring with you is
likely to be fair game for opposing counsel to peruse and will likely spark
additional questions and prolong your deposition.
7.
During breaks, avoid informal talk with opposing counsel. You are being
evaluated during breaks and outside the deposition, so maintain your
businesslike , courteous demeanor at all time.
Questions to anticipate
Personal injury depositions always cover several areas, so
you can describe many questions that will be asked. The following points will
help your client anticipate questions and begin to develop substantive answers:
1.
Biographical information will be requested. You may feel some of it
intrudes upon your privacy, but generally, opposing counsel will be able to ask
you about your family, employment, education, finances, and similar issues.
2.
You will be asked about every conversation you have had about the
incident and your injuries. You will also be asked who knows about the incident
or your injuries. Only the discussions you have had with your lawyer cannot be
discussed.
3.
A description of how the incident occurred. You should review your
interrogatory answers which include a description of the incident, as well as
the motion for judgment, to be sure you can explain what happened clearly and
concisely.
4.
The nature and extent of your injuries will be discussed in detail. This
is the only area where you may want to volunteer information that is not
specifically asked. Volunteer examples to show how you were hurt. Explain what
you can no longer do since the injury. Explain what you can do now only with
pain. Describe how the injury has changed your ability to perform your job, your
hobbies and interests, and how it has affected your family life. As an example:
it is better to say, “My arm aches so badly after I play tennis that I have
had to give up my weekly tennis outing with my friends,” than to say, “My
arm hurts when I try to do things.”
5.
Explain exactly what parts of your body were injured, being careful not
to exaggerate. Do not be afraid to concede areas where you have suffered no
injury or limitations that do not exist. Tell the truth about activities you
have done since the incident.
6.
If you have a lost wage claim, you will be asked to describe why you
could not work and how you have determined the amount of money you lost. You may
refer to your interrogatory answers for this calculation, but it would be
helpful for you to have a working knowledge of it.
7.
You will be asked about your medical care. While you may refer to your
interrogatory answers, you should have a general outline of who treated you and
what they told you about your care. Do not be afraid to admit you do not know
something you think you should know about your medical care.
8.
You will be asked about any prior statements or testimony you have given.
Your best answer is to agree you made the statement, as long as it is one you
actually wrote or signed, or if it is a court reported statement. You can always
explain what you meant. If you do not recall making the statement or its
content, simply state that you do not remember.
9.
You may be shown photographs, drawings or records. Ask questions about
them. Take your time and examine them carefully to see what they show. You may
be asked to draw a diagram. Be careful to qualify what you are doing, which will
not be to scale and may only be a rough estimate. If you find it impossible to
depict something, say so.
Conclusion
After the pre-deposition conference, you are left with
relatively little control over how your client performs in deposition. Without
resorting to speaking objections, improper interruptions, or other subterfuge,
you cannot manipulate the course of your client’s deposition. While there is
no guarantee our clients will be blesses with “felicity of expression and
improvisational brilliance,” we can at least avoid any regrets upon a
lackluster performance, if we have provided thorough preparation. Moreover, that
preparation will minimize painful moments when things do not go as planned.
1. Louis Nizer,
Newsweek, 11 Dec. 1978.
R. Lee Livingston is a partner in the Charlottsville
firm of Tremblay & Smith, L.L.P. He is a graduate of The College of
William & Mary, where he received his undergraduate and law degrees. Prior
to joining Tremblay & Smith, Livingston was law clerk to U. S. Magistrate
Judge B. Waugh Crigler. This article is reprinted with permission from the
Journal of The Virginia Trial Lawyers Association, Volume 14, Number 1, Winter
2001–2002.
E-MAIL AND INTERNET
MONITORING IN THE WORKPLACE
By Leila C. Sarmecanic
A lab manager for Microsoft in Dallas thought the e-mail he
placed in “personal folders” on his computer at work were private and safe
from his employer’s intruding eyes. As far as the employee understood, only he
was allowed access to his personal folder via a password he created himself, and
which the company did not know. Microsoft suspended this employee’s employment
pending an investigation into accusations of sexual harassment and “inventory
questions.” The employee requested access to his e-mail to disprove the
allegations against him, but was told he could only access his e-mail by
requesting it through company officials and telling them the location of a
particular message. After the employee was terminated, he filed suit against
Microsoft for invasion of privacy, claiming Microsoft decrypted his password,
broke into some or all of the personal folders maintained on his office
computer, and released the contents of the folders to third parties.
The trial court dismissed the employee’s suit and the
employee appealed. The Dallas Court of Appeals rejected the employee’s
argument, reasoning that the workstation was provided to the employee by
Microsoft so that he could perform the functions of his job, and that the e-mail
messages contained on the company’s computer were merely an inherent part of
the office environment. The Court also noted that even if the employee had a
“reasonable expectation of privacy” in the contents of his e-mail messages
sent over the company e-mail system, a reasonable person would not consider
Microsoft’s interception or retrieval of those communications to constitute a
“highly offensive invasion” because the employee had himself notified
Microsoft that some of the e-mails were relevant to the sexual harassment and
inventory investigation. The Court held that the company’s interest in
preventing inappropriate and unprofessional comments, or even illegal activity,
over its e-mail system outweighed the employee’s claimed privacy interest in
those communications.
In another case, an auditor for Hartford Fire Insurance
Company in Dallas thought his right to religious expression allowed him to
express his Christian faith to co-workers and clients by attaching verses of
scripture to his e-mails. This expression of the employee’s faith, however,
violated a company policy on electronic communications that required all
“systems,” including computers, faxes, voice mail, the intranet, and
electronic mail, to be used for “company business purposes and authorized use
only.” The policy further prohibited any use of company systems for
“solicitation or proselytizing on behalf of any entity or person.” The
employee continued to make references to scripture in his e-mails even after he
was told that someone had taken offense to this practice and that the practice
violated company policy. The employee was subsequently terminated for
performance reasons, and the employee brought suit for wrongful termination. The
United States Northern District Court in Dallas held that the employee failed to
state a claim for religious discrimination because he did not inform his
employer that he had a bona fide religious belief that conflicted with an
employment requirement.
Courts have generally allowed employers to terminate
employees for their online activities at work. Employers have legitimate
concerns about their employees’ online activities, which has provoked some
employers to routinely monitor employee use of e-mail and the internet. In fact,
a recent survey of 670 employers by vault.com found that 41.5% of employers
either restrict or monitor employee use of e-mail or the internet. Some
employers use specialized software that is designed specifically to monitor
employee internet and e-mail usage. When Dow Chemical decided to start
electronic monitoring of employees, the company was astounded by the amount of
personal use of e-mail and the internet that was taking place, including the
sending of pornographic and violent images. The company’s investigation of the
a plant in Freeport, Texas alone led to the termination of 24 workers and the
reprimanding of 235 more.
Late last year, the Administrative Office of the United
States Courts installed a software system that allows the office to detect if
any of the courts’ 30,000 employees, including judges, use the internet to
access pornography, streaming video, or music. Then, earlier this month, the
Judicial Conference’s Committee on Automation and Technology issued a
unanimous recommendation that federal courts monitor employee e-mail and Web
usage for signs of “inappropriate” use, such as downloading music or
pornography, or playing games online. The full 27-member Judicial Conference is
slated to vote on the recommendations at its next meeting on Sept. 11. Several
federal courts, however, have vehemently opposed the monitoring of court
employees’ Internet use. In May, 2001, the 9th Circuit Judicial Council
ordered staff to disable intrusion detection software at the national Internet
gateway in San Francisco, which handles all traffic from the 8th, 9th, and 10th
circuit court networks. The Judicial Conference’s Executive Committee
ultimately agreed to reactivate the intrusion detection system, but without
features that would detect and log transfers of large music and movie files.
Judge Edith H. Jones, a federal judge for the 5th Circuit Court of Appeals, has
urged members of the Judicial Conference to reconsider rubber-stamping the
committee’s “privacy-invading recommendations,” arguing that although no
one condones using government property to download pornography, to gamble, or to
conduct personal profit-making business during office hours, subjecting every
judicial employee to random snooping and wiretapping of Internet communications
is a drastic measure that should only be justified by proof of the most serious
and systemic measure. Jones contends that “the recommendations do not take
account of legitimate privacy interests and foreordain a workplace in which
suspicion and paranoia may become rampant.”
This article has been reprinted with the permission of
the law firm of Jackson Walker, L.L.P. It was previously published in the
Winter 2001–2002 issue of the JW TechLaw newsletter.
PARALEGAL TO THE GOVERNOR
By Michele Boerder
While statistics show most paralegals work for law firms
and corporate law departments, Krystyn Garcia has a unique paralegal position
with the highest office of the Executive Branch in Texas: the Governor’s
office.
Texas Paralegal Journal recently interviewed Krystyn about
her role and responsibilities working for the Governor.
Krystyn has worked in the Governor’s office for three
years, under Governor Bush and Governor Perry. Krystyn graduated from South
Plains College in Levelland in 1997 and lived in Lubbock, Texas. In 1999 Krystyn
noticed an opening in the Governor’s Office on the Governor’s website. She
applied, was interviewed and hired two weeks later as a legal assistant for the
Governor’s General Counsel. Her actual title is “Legal Assistant II.”
Krystyn describes the work she performs as a paralegal in
the Governor’s office: “A majority of my work is assisting the General
Counsel’s office with criminal issues that are handled by our office. Some of
those issues are: Executive Clemency (both capital and non-capital cases),
International Prisoner Transfers, Extradition matters.
“I am the record keeper and organizer of all of the
applications that are received by the Governor’s office applying for executive
clemency and international prisoner transfers. I also assist and act as back-up
to our extradition coordinator in our office. This involves processing
requisitions and Governor’s warrants that are sent to our office.
“I am also the contact person regarding executive
clemency matters and international prisoner transfer matters. I assist
constituents, other state agencies, and other divisions within the Governor’s
office with questions or concerns regarding these issues.
“During the legislative session, I assist the attorneys
in our office in researching and gathering necessary and requested bill
information.”
Krystyn says the most interesting part of her work is
“being able to provide assistance and being part of the process of handling
issues that are of great importance, not only to the state, but also to the
citizens. I know that I am very lucky to be a part of a great team whose primary
concern is the safety, well-being, and success of the great state of Texas and
her citizens.”
A typical day in the Governor’s office is full of
activity, involving handling 10-15 calls from constituents, phone calls from
consulates of different foreign countries regarding international prisoner
transfers, and from family members of the prisoners. Krystyn relates, “I am
usually in contact with the Texas Board of Pardons and Paroles regarding a
scheduled execution or a pardon application that is in our office. I receive one
or two executive clemency applications that must be entered into our tracking
system, and I also receive case reports or supplements regarding a scheduled
execution. Because I am responsible for distributing information regarding
scheduled executions throughout the Governor’s office, I get many phone calls
and inquiries from other divisions in our office about the status of a case that
is scheduled. I log in extradition requisitions and Governor’s warrants that
are received by our office. I also reply to correspondence that is sent to the
Governor’s office inquiring about or requesting a pardon or other type of
executive clemency.”
Not many paralegals have the “great state of Texas” as
their employer. To summarize her paralegal position, Krystyn said: “I feel
that I am very lucky to have had this unique and rare opportunity. I have the
experience of dealing with everything from very high profile cases to helping
constituents with issues that are difficult for them and their families. This
position is not glamorous and at times the issues are difficult, but it is a
good feeling when you know that what you do at work is for the good of Texas.”
Michele Boerder is a legal assistant at Hughes &
Luce, LLP (Boerdem@hughesluce.com) and is a Board Certified Legal Assistant -
Civil
Trial Law, Texas Board of Legal Specialization. She is a former board member
who served as Chair of the Legal Assistants Division (1990-91) and is also a
member of the State Bar’s Standing Committee on Legal Assistants.
“What
You Need to Know…As a Notary-Employer”
by the National Notary Association
The Notary you need to employ is a valuable asset whose
role is to prevent fraud and ensure the smooth and successful transaction of
business.
What many people don’t understand, however, is that
Notaries are required to follow state Notary laws, even if the laws conflict
with your wishes. Should you ask your Notary-employee to perform an improper
notarization you could be asking him or her to break the law.
An error could cause a document to be rejected by the
receiving agency. This could create inconvenience, embarrassment—and even
cause an important deal to fall through.
There are also serious financial and legal risks. If your
employee’s improper notarization causes a financial loss, the injured party
could sue your Notary-employee, you and your organization for damages. There’s
even the possibility of criminal penalties.
More and more employers are being named in lawsuits because
courts are finding that they are responsible for instructing Notaries to violate
the law.
It is not only ethically, but financially wise for you to
insist that notarizations be performed according to the law. You thereby protect
your Notary-employee, yourself, your organization and your clients from
potentially disastrous consequences.
Here are common requests for improper notarizations… and
why Notaries can’t perform them.
To Notarize the Signature of an Absent
Signer…Cannot be done because the Notary’s role is to
identify signers and authenticate their signatures—which cannot occur if the
signer does not appear before the Notary.
To Just Stamp and Sign a Document…Does not constitute a
valid and legal act because every notarization requires certificate wording to
indicate exactly what the Notary is certifying.
To Give Legal Advice…Is illegal for any Notary who is not
an attorney. Helping to prepare a document, explaining a document or advising
how to proceed can be considered the unauthorized practice of law.
To Notarize a Birth Certificate…Is improper for a Notary
because only an official custodian of vital records has the authority to certify
such a document.
To Re-notarize Without the Signer…Is a violation of law
because a fundamental requirement for every notarial act is the personal
appearance of the signer before the Notary.
To Help With Immigration…Is illegal for a non-attorney
Notary Public because it would constitute giving legal advice, which a Notary
cannot do.
To Notarize an Incomplete Document…Violates the role of
the Notary, which is to prevent fraud. Notarizing a document with blank spaces
would allow fraudulent information to be included later.
To Select the Notarization…Could be considered giving
legal advice, which Notaries cannot do unless they are also attorneys or
qualified specialists.
To See Only Part of a Document Being Notarized…Is not
acceptable since the Notary’s job is to help prevent fraud. The Notary must be
presented with the entire document at the time of notarization.
Reprinted with permission of the National Notary
Association. Founded in 1957, the NNA has been the primary source for Notary
education, service and advocacy in the United States, and is the largest and
oldest organization of its kind. Based in Chatsworth, CA, with state offices
in Florida and Texas, the NNA has 182,000 members nationwide. Contact the NNA
at (800) 876-6827 or online at www.nationalnotary.org
Local
Government Law
by David B. Brooks
Local government in Texas is more than just cities,
counties, and school districts. It is also more than the law appearing in the
Texas Local Government Code or in the black statutes. The law governing local
governments as a whole is an intricately woven labyrinth of legislation,
judicial rulings, and attorney general opinions handed down, enacted, or
approved over the course of Texas history—since 1836. Researching local
government law is difficult, even for an expert.
One starts off first with the statutes governing local
governments. Local governments comprise a bizarre group of local public entities
including such things as mosquito control districts, crime control districts,
library districts, and jail districts. The most common notion of local
governments are municipalities, although strictly speaking, counties were the
first form of local governments designed to carry out state policy on the local
level. Counties were first charged with responsibility for maintenance of the
judicial system (courts, prosecution, sheriffs, jails), roads, education, and
public welfare, generally support of paupers. Soon after Texas independence, the
congress of Texas, and later the state legislature, began to incorporate cities,
towns, and villages by either special or general legislation. Special
legislation, which is still used today, directly created a particular local
government, gave it its powers, gave it its governing body, and defined its
geographical limits. Cities were also allowed to be established under the
“general law” under which general rules were adopted by the legislature by
which citizens could petition for an election to incorporate. Special laws are
still used extensively today, most commonly for the creation of conservation
districts, usually some form of water district.
After cities and counties, the next formal local government
that developed in Texas was the independent school district. Prior to these
entities, schools were operated usually by the county or the city. Eventually,
schools became “independent” of these local governments and were established
on their own.
Later, around 1900, the legislature began to establish
water districts, drainage districts being the first, again under either general
or special legislation.
In recent years, the legislature has found little
limitation to legislative imagination when it comes to establishing special
districts for special purposes. There are hospital districts, river authorities,
housing authorities, and many more.
In looking at local government law in Texas, one would
assume that the law can be found in the Local Government Code. Well, yes and no.
The Local Government Code, like the other miscellaneous codes enacted in a
piecemeal fashion by the legislature over the last 20 years or so, is a
codification of existing laws. The codes are designed to clean up existing
statutory language with no substantive change. Obsolete, repealed, or otherwise
ineffective provisions of legislation are left out of the codification. Thus,
the codes do nothing more than roll over both bad and good law. The Local
Government Code was adopted by the legislature in 1987. It largely addresses
cities and counties, although some provisions are applicable across the board to
all local governments. The format of the Local Government Code addresses cities
first, counties second, and then general provisions applicable to more than one
type of local government. As for researching the Local Government Code, like
other codes, it is helpful to perusethe table of contents, rather than the
detailed index, to understand the organization of the code and where to find
what you are looking for. The Local Government Code comprises 14 “titles.”
These include:
Title 1—General Provisions
Title 2—Organization of Municipal
Government
Title 3—Organization of County Government
Title 4—Finances
Title 5—Matters Affecting Public Officers and Employees
Title 6—Records
Title 7—Regulation of Land Use, Structures, Businesses,
and Related Activities
Title 8—Acquisition, Sale, or Lease of Property
Title 9—Public Buildings and Grounds
Title 10—Parks and Other Recreational and Cultural
Resources
Title 11—Public Safety
Title 12—Planning and Development
Title 13—Water and Utilities
Title 14—Parking and Transportation
Many other significant aspects of local government law are
contained in the other various codes. These include the manner for conducting
elections, contained in the Election Code; the manner of providing utilities,
contained in the Utilities Code; and the Open Meetings Act and the Open Records
Act, contained in the confusingly similarly named code, the Government Code.
This code, the largest of all of the codes, contains, among other things, the
laws regulating nepotism, public officeholding, and the issuance of bonds. The
Government Code also has the laws regulating the courts, from small claims
courts, municipal courts, and justices of the peace, up to the supreme court.
The Government Code also contains the laws regulating county and district
attorneys. The Government Code also has laws for the interpretation of
laws—this includes two chapters, the Code Construction Act, chapter 311; and
Miscellaneous Laws Governing the Construction of Laws, chapter 312.
Other aspects of local government law are contained in the
codes whose names indicate their content. Streets, county roads, and highways
are addressed in the Transportation Code; the manner of collecting taxes in the
Tax Code, and the furnishing of health care in the Health and Safety Code.
The most significant aspect of local government law in
Texas is the 1912 amendment to the Texas Constitution allowing the adoption of
home-rule charters by cities with a population of at least 5,000. Thus, in
researching the powers of local government from a municipal point of view, it is
necessary to determine whether the city is a home-rule city, or a “general
law” city operating under the general laws largely contained in the Local
Government Code. A home-rule city has the authority to organize itself with a
voter approved charter in any manner not inconsistent with state law. Cities
also have general ordinance-making authority, unlike any other local government,
again, so long as the ordinances do not conflict with state law. Counties, on
the other hand, have no such general ordinance-making authority. The home-rule
powers of cities, thus, makes it a bit cumbersome to research because it is
necessary to acquire a copy of the home-rule charter and a copy of the city’s
code containing the city’s ordinances.
The second most difficult aspect of research in local
government law is the power of the legislature to adopt special laws, although
this is limited by the Constitution. As indicated, many local governments are
established during each legislative session by a special act of the legislature
that does not appear in the published statutes, but appears only in the Session
Laws. For example, many of the river authorities of the state were first
established in the 1930s and their organic laws have been amended over the
years, requiring a research of 70 years of Session Laws.
Other than the Texas Constitution and legislation, the
powers of local governments are also defined by rulings from the courts, both
state and federal, and opinions issued from the attorney general’s office to
those state and local officials who are statutorily authorized to request such
opinions. On the local level, this includes county and district attorneys. City
officials are not authorized to request opinions from the attorney general.
Nevertheless, some city questions are answered when requested by other
officials, most commonly chairmen of legislative committees.
A final note about Texas laws. The first comprehensive
codification of Texas laws occurred in 1879, with the adoption of the Revised
Statutes of 1879. Similar revisions were made in 1895, 1911, and 1925. Since
1925, there has been no comprehensive revision of the statutes. Along the way,
there have been various “codes” adopted or amended, such as the Penal Code,
Insurance Code, and Probate Code. Starting in the 1960s, the legislation has
embarked upon a revision of the 1925 statutes into the current codes. Among the
first of these codes to be adopted was the Water Code. Eventually, the
legislature contemplates revising all of the 1925 civil statutes into the new
codes, although there are currently still many 1925 civil statutes, amended over
the years since, that are still in effect.
Lastly, an editorial observation: the laws regulating local
governments, primarily counties and cities, are in desperate need of a modern
revision. As said, many of the existing laws were adopted in the horse and buggy
days and are difficult to apply in the year 2002. One gets the impression that
the legislature itself has a tenuous grasp on its own body of enactments and is
timid to throw out and rewrite. In lieu of this, the legislature acts in smaller
steps, either with new legislation, or amendments of existing legislation. And
while rewriting new laws, it would not hurt to have a new state Constitution.
The current Constitution, which governs largely counties, cities, and water
districts, was adopted in 1876—the same year that both George Custer and Santa
Ana died.
Austin attorney David B. Brooks is the author of
County and Special District Law and Muncipal Law and Practice, titles in the
multi-volume Texas Practice Series issued by West Publishing Company. David is
a legal consultant to local governments and the Texas House of
Representatives.
Signature
Security
By Kay Micklitz, CDE, BCFE
You have taken precautions to protect your valuable assets
such as your home, your car, your personal belongings. You have even gone
further and security the safety of your spouse and children with added coverage
by appropriate insurance programs. You have never divulged your Social Security
number without caution. All the while, every time you sign your name, you may be
making your identity and security of everything valuable to you available for
possible loss by fraud or forgery.
How can this happen? What are you doing and what can you do
to prevent loss by forgery? First, take a look at your signature. Is it easily
readable and each letter identifiable? If not, you are making the imitation of
your signature easy. By making each letter of your name in your signature
identifiable you are putting the forger to the task of imitating or simulating
many detailed characteristics of your individual writing habits. As Albert
Osborn, considered the father of document examination, states in Questioned
Documents, “To forge a writing with entire success, one must first be able to
see the significant characteristics of the writing of another and then must have
the muscular skill necessary to reproduce them and at the same time eliminate
all the characteristics of his own writing. The result usually shows a failure
in both phases of the performance.” What is meant is that means the forger
must incorporate all of the characteristics of the writing he is imitating and
keep out all the identifying characteristics of his own writing.
The more individuality identifiable in your signature, the
more effort and work the forger must put into his craft of imitating your
signature. If your signature is merely the resemblance of a capital letter or
two, followed by a thready line or unidentifiable letter or letters, or a long,
squiggly stroke, then the forger has little work on which to concentrate. And,
if he has some practice in his craft, he may be able to replicate the
“pictorial” appearance of your signature quite well. Perhaps well enough to
help himself to some of your valuables.
An individual who must sign his or her name many times in a
day frequently finds it more efficient and less time consuming to write their
signature in just such an illegible manner. A few seconds more dedicated to the
details of your signature may save your many hours, days, even months of
frustration in clearing your name and identity from the acts of a forger.
Take the time to examine how you write your signature.
Then, make the time to ensure that you do not become vulnerable to forgery by
omitting the detailed characteristics required to identify you as the genuine
author. The more legible your signature, the more difficult it is to imitate.
Protect one of your most valuable possessions—your signature.
Kay Micklitz is a board certified and court qualified
Forensic Handwriting and Document Examiner. She is the owner and operator of
Alamo Area Forensic Labs in San Antonio, Texas and may be reached at
830-980-4083 or www.micklitz.com.
To
Pre- or Not to Pre-(Pay the mortgage, that is)
By Craig Hackler, Raymond James Financial Services
Homeowners are often faced with the decision whether to
prepay their home mortgage. This
decision can be significant given the amount of interest that could be paid over
15, 30 years or more.
There are
several ways to shorten the life of the mortgage.
Taking a shorter term is the most direct, e.g. taking a 15-year mortgage
instead of a 30-year term. This is
often referred to as a “forced
savings” plan because you are paying less interest and building equity.
Refinancing an existing mortgage at lower rates but keeping your payments
the same size is another way. Or
you can put extra money toward the mortgage principal periodically.
Typical methods of prepayment include making an extra payment per year,
paying next month’s principal or sending a flat amount with each month’s
payment.
Speeding up
principal payments can save thousands in interest costs over the life of the
loan. Yet, it is often stated that
due to the deductibility of mortgage interest and the smaller payment of a
longer term, the saved monthly funds may be invested at a higher rate (assuming
the increased risk is acceptable) to offset the advantages of a shorter term
mortgage.
Let’s look
at when it might make sense to pay the mortgage off early: when the
psychological benefits of being out of debt are worth it; when low-risk
investments are paying low interest rates, prepaying and building equity can be
viewed as a “tax-free” investing alternative; when an owner is not
disciplined enough or are unwilling to take on risk to achieve higher rates of
return; or if the property has lost value, an owner might end up owing the
lender money if the house was sold because he/she was “upside down.”
Here’s when
it might not make sense to prepay: when there are better investment
alternatives, i.e. that may earn a higher return than the mortgage rate; when an
owner should be saving elsewhere, such as in tax-advantaged vehicles for
retirement; when nearing the end of the loan, prepaying has less impact because
most of the interest is already paid; when paying off other debts, such as
double-digit credit card interest, might be wiser.
There are many
other variables to consider including whether there is a prepayment penalty;
future earnings growth and the ease of prepayment over time; future inflation
and the value of paying off the loan with “cheaper” dollars; and the tax
ramifications of the $500,000 home sale exclusion for joint taxpayers ($250,000
per taxpayer). There is no easy
answer. Consulting a financial
professional is often a wise idea to address all the necessary considerations
and make the best decision regarding each particular
