What if I am in a Car Accident While at Work?

Posted on November 27, 2011 by admin

Consider the following…

Sally Accident works for Take It To ‘Em – a going concern among delivery service companies. As a delivery driver, Sally is on the road most of the day, driving the vehicle provided by Take It To ‘Em. While hustling (not speeding) from one customer to the next, Sally is frustrated that the stoplight gods seem to be picking on her. Resisting the temptation to accelerate through an intersection, she knows her job is at stake, and so acknowledges the yellow caution light and stops short of the crosswalk. The driver behind Sally, upon seeing the initial changing of the green to yellow light, had punched his accelerator, assuming Sally would do the same. Driving a heavy truck, that driver was unable to stop in time and rear-ended Sally. Like most accidents of this nature, and at this speed, Sally got to experience the reality of whiplash – wherein the seat of the car drives the torso ahead while the head momentarily remains stationary. What results for many, and did indeed for Sally, is what the medical community refers to as hyperflexion followed by hyperextension of the cervical region. The adrenaline of the crash led Sally to believe she was shook up, but not badly injured. However, by the time her vehicle was towed, Sally had a headache, her shoulders began to tighten, turning her neck to the left was painful, and she craved an anti-inflammatory to address the pain coming from her upper back.

If you were recently involved in an auto accident like Ms. Accident’s,  there are number of issues of which you should be made aware:

1. Much of Your Out-of-Pocket Expense is Covered by Workers’ Compensation Insurance.

As with any personal injury which occurs on the job in Oregon, your injury is covered by workers’ compensation insurance. Common insurable damages provided through workers’ compensation insurance include medical bills, lost wages, and disability payments. It is my opinion that if you are injured at work, you should immediately contact a workers’ compensation attorney to “watchdog” the insurance carrier’s handling of your claim.  A workers’ compensation attorney does not generally charge for their services unless they discover a mistake by the insurance company (i.e. unless the lawyer is able to secure additional funds for your claim).  Because of this, workers’ compensation attorneys do not get paid on every case.  This makes hiring a workers’ compensation attorney a very simple decision: get one.  While I specialize in personal injury cases, I do not handle workers’ compensation claims. Knowing a few competent workers’ compensation attorneys,  I would be happy to refer you; these are specialists who have obtained excellent results for my clients.

2.  In addition to the workers’ compensation claim, you are entitled to damages from the responsible party.

If your auto accident was caused by another’s negligence, you are entitled to make a personal injury claim against the at-fault driver and his or her insurance.  However, as workers’ compensation insurance is available, in seeking damages, there are applicable rules. If you pursue a personal injury claim against the responsible driver, the workers’ compensation insurer is entitled to reclaim a portion of any money they provided for your damages. Accordingly, in Oregon, the workers’ compensation carrier will send the injured party (you) an election form, where the injured person must choose whether they want to exercise their right to pursue the personal injury claim independently from the workers’ compensation carrier.  Damages awarded through the personal injury claim are subject to what is called subrogation; in other words the workers’ compensation carrier has the right to some reimbursement.

To a lay person, this sounds complicated. Actually, it is not difficult for the injured person to elect to pursue an injury claim directly against the at-fault driver.  The complexity lies in resolving the claim equitably – making sure the injured party is fairly compensated.

3.  PIP is not applicable, because Workers’ Compensation is the primary insurance.

As you may be aware, personal injury protection (PIP) is Oregon’s no-fault required coverage as  provided on auto insurance policies. PIP covers the medicals and wage loss of any individual injured in an automobile related accident.  PIP, however, is not the primary insurance in situations where a party is injured while operating their vehicle as part of their job description (the policies specifically exclude it). Why? If an employee is injured in the course of related activities of their job, worker compensation insurance becomes the primary insurance.

4. Workers’ Compensation will not pay 100% of your damages; to realize 100%, you need to bring a claim against the responsible party.

Workers’ compensation does not pay 100% of your wage loss and, quite frankly, generally does not pay a fair sum for your injuries. In order to recover damages to the extent of what you will feel is truly fair, an injury claim directly seeking damages from the driver of the other vehicle will most likely be necessary. While this may seem inconvenient and complicated, a competent personal injury attorney can help you through the process and help you maintain financial stability – without taking too much of your time.

5. Conclusion

The bottom line: If you were in an auto accident while working, it would be a good idea to talk to an auto insurance attorney about your case. If you are in Oregon (or were in an auto accident in Oregon), feel free to call me at 971.227.8947. The consultation is free.

DISCLAIMER:  The article is intended for information purposes only and is NOT intended to create an attorney client relationship or give you specific advice regarding your claim.  The information below regarding personal injury claims may not apply to your case, even if it appears applicable.  You are encouraged to take your personal injury case to a qualified attorney in your area immediately.  Your injury claim may be barred by a statute of limitations, which in some cases could be as little as a month.  If you do not file a notice of claim or a lawsuit within that time period you may lose your right of recovery for your personal injury claim.

Posted in Automobile Accident, Personal Injury, Slip and Fall, Worker's Copmensation | Leave a comment

How much will I get for an injury claim?

Posted on October 5, 2011 by admin

The answer to that question is based on several factors, among which are the extent of the injury and associated treatment comparative fault, whether loss of wages plays a role, the existence of related insurance, and the degree of pain and suffering recognized. For the sake of this article, we will assume that the circumstances leading to the injury include the existence of insurance. In other words, the person responsible for your injury has insurance related to the cause of your injury.

Is there insurance?
People purchase insurance for a variety of exposures. For instance, if you drive a car, you buy insurance protecting others for your possible negligence which could lead to your damaging their property or causing bodily injury. Owners of property purchase insurance which provides protection in the event a visitor is injured due to the owner’s negligence. The same could be said for those who fly airplanes, pilot boats, run entertainment parks, etc. If you have an exposure wherein you might damage the property of others, or cause injury to others, chances are you have some form of insurance – or perhaps, should.

“Insurance is designed to pay for your injuries IF the insured person is liable for the injury.”

How do insurance and liability relate?
The existence of insurance does not automatically mean you will be paid for your injury. Insurance is designed to pay for your injuries IF the insured person is liable for the injury. When would they be liable? In most cases, their liability is based upon an interpretation of their acting in a negligent manner. Negligence generally means that the person failed to do what a “reasonable person” would do in order to provide for the safety and well-being of others under the insured’s influence. A driver running a red light is negligent by failing to observe traffic laws meant to protect other drivers, bicyclists, and pedestrians – therefore that driver is liable for damage caused to others. A homeowner may be negligent for allowing their dog to roam the neighborhood should the dog bite a neighbor. The owner of a store may be negligent for an unaddressed trip hazard in the parking lot which results in a patron falling and being injured. To conclude, in order for negligence to stick, the person being accused of the damage/injury, a) had a duty owed to protect others, b) failed to fulfill that duty, c) was the cause of the damage/injury, and d) the harm caused is provable.

“…future medical costs become somewhat more elusive.”

Then, what are considered Damages?
In the case of injury, there are medical expenses, loss of wages, mental anguish, loss of companionship, pain and suffering, long-term disability, disfigurement, and more. As you can expect, it’s relatively simple to document actual medical expenses and loss of wages. However, future medical costs become somewhat more elusive. Then, putting a dollar amount on items such as companionship, pain and suffering, and disfigurement – these items are subjective and evaluated based on the probable juror verdicts of each case.

“There is no “one size fits all” formula…”

So, is coming up with a damage amount simply left up to each individual insurance adjuster?
There is no “one size fits all” formula for this question. In most cases, an adjuster will go through some variation of the following considerations:
•    Does the insurance policy provide coverage for the damages? If not, the company is technically off the hook. If yes…
•    Is their insured at fault or liable? If so, (the insurance company) should provide coverage.
•    Are there policy limits which dictate how much the company is required to pay?
•    Will there be future and/or recurring medical costs? If so, what are the best estimates?
•    Based on the severity of the injuries, how much pain and suffering shall the insurance company  attribute to the victim?
•    What would a jury do?

Let’s take a simple example. Party A, who was texting on their cell phone, rear-ends Party B at a stoplight.  Party A’s insurance company does not contest liability. Party B has obvious injuries sustained as a direct result of the accident. Party B’s medical treatments, over the course of a year, amount to $20,000 and all issues are resolved – there is no need for future medical treatment. Party B has documented wage loss of $10,000. At this point, the quantified damages amount to $30,000.

Next, there is the more subjective elements: pain and suffering. A number of factors which may be examined by a potential jury enter the realm of pain and suffering. Beyond having to deal with actual pain of an injury, considerations include scarring, activity limitations, shortened earning capacity or life span, depression, impact on family structure, and more. Convincing the insurance adjuster of the undeniable impact on the claimant’s life in such a way that encourages the insurer to settle before allowing the claim to move toward trial, is somewhat of an “art-form.”

What about partial, or comparative negligence?
Oftentimes, injuries are the result of both parties sharing responsibility for the event. For example, a driver hits a pedestrian who crosses the street halfway between one controlled intersection and the next. In this case, both parties have a degree of excuse, and both have a degree of responsibility. The circumstances of these “comparative fault” injuries are considered, negotiated, and the settlement reflects the degree of responsibility attributed to each party.

Again, subjectivity enters the equation. The adjuster for Company ABC may contend that the injured party was partially to blame. Their position is, for argument sake, that this is a 70/30 at-fault situation – arguing their insured is 70% to blame, while the other party is 30% to blame. Company ABC, therefore, reduces their settlement offer by 30%, deriving a settlement offer of $42,000.

What’s the chance of getting rich from the accident?
The idea that victims get rich from accidents is largely a myth. The real costs for a serious injury add up quickly. Loss of income can prove devastating to an individual’s or family’s financial security. An accident related injury can lead to the need for SERIOUS money. Fortunately, these costs can be quantified and are, therefore, not highly contestable. Future medical costs become much more difficult – doctors are trying to look into a “crystal ball” in anticipation of the patient’s recovery, future needs, and predicted inflation of medical costs. Then, there is the pain and suffering – which is very difficult to measure. The injury victim may experience anything ranging from inconvenience and discomfort, to never regaining nor enjoying the life they once knew. How do you put an accurate number on that cost?

“The idea that victims get rich from accidents is largely a myth.”

Navigating through these waters is the specialty of accident injury attorneys. A competent accident injury attorney understands the system better than a layperson ever could. The attorney takes over the role of your advocate – and interacts with the insurance companies involved during your recovery period and for the crucial negotiation phase. The records are organized and presented along with the existing medical bills, estimates of future costs, and loss of wages. Where the competent attorney truly excels is seen in their negotiating the pain and suffering aspect as well as future costs of the claim. The seasoned insurance claims adjuster considers a settlement clinically and seeks the least expensive resolution on behalf of the insurance company. Your attorney’s job involves forcing the insurance company to see your claim realistically, or face the prospects of settling in court before a jury. (Fortunately, most claims never go to court as terms are met before that option becomes necessary.)

“If you hire a contingency-fee attorney, there is generally no out-of-pocket cost.”

What does this cost you?
If you hire a contingency-fee attorney, there is generally no out-of-pocket cost. The attorney takes the case and his or her office works for “free” on your behalf banking on the expectation of earning a settlement which adequately compensates the client for real costs, future costs if applicable, pain and suffering, while including enough to pay for the work of the attorney and his or her staff. In other words, the contingency fee attorney contracts with the client to take a pre-determined percentage when the settlement is disbursed from the insurance company. If a case goes to litigation, generally, an injured party is asked to pay a portion of the litigation expense.

How much will you get for your injury claim?
As you can see, there are many variables involved. Chances are great that you will receive more by having the expertise and advocacy of a competent accident injury attorney representing you.

Posted in Automobile Accident, Personal Injury, Slip and Fall, Worker's Copmensation | Leave a comment

Get it Right the First Time: Settling Ownership of Vehicles

Posted on June 16, 2011 by admin

Get it Right the First Time:
Settling Ownership of Vehicles
By William Leslie

Handling a titled vehicle in a divorce, bankruptcy or estate doesn’t have to be hard, but simple mistakes are made by new and experienced attorneys alike. Whether the context is settling a simple estate, handling a bankruptcy or struggling through a protracted divorce, simple mistakes in handling vehicles and vehicle titles can be excruciatingly painful — and expensive — to clean up. Fortunately, the simplest mistakes are also the easiest to avoid.

Here are some common mistakes made by attorneys in handling vehicles. The concepts apply equally well to boats, airplanes and anything else with a title issued by a state agency.

Improper Valuation of Vehicles
What a customer paid for a vehicle may be a poor guide to value, even if it was purchased just a month or two ago. Book values, such as the NADA guide and Kelly Blue Book, are merely guides to value and the actual value may vary from vehicle to vehicle and from region to region. During the past two years, wholesale and retail values of many vehicles have actually been increasing.

Not long ago, a recently divorced woman arrived at a dealership to trade in her ex-husband’s pride and joy, a late model 4×4 pickup. The truck had every gadget and toy, including a navigation system, chrome wheels, oversized tires, an expensive stereo system and a fancy paint job. The couple had invested more than $40,000 in the truck. (Perhaps the energy that the husband spent on the truck should have been spent on his marriage.) The woman bragged to the sales staff at the dealership that she had “won” the truck in the divorce, one last dig at an unfaithful spouse. With the truck she accepted responsibility for paying off the bank loan on the truck.

The wife had punished her husband for his inattentiveness by taking his favorite toy away from him, but when the dealership ran the numbers they had to advise her that the truck was worth about $8,000 less than the balance owing. Most of the improvements and gadgets that her husband had poured into the truck hadn’t significantly increased its value. It may have been worth a little something to the woman to deprive her ex-husband of his prize possession, but it was clear that she had no idea that equity in the truck (calculated as trade-in value less loan balance owing) was negative.

The attorney and the wife had used the invoices showing what her husband spent on the truck to determine its value. The real value that the wife could expect to receive if the truck were traded in at a dealership would be low or “wholesale” book, adjusted for local market conditions, adjusted for the current condition of the vehicle, but not adjusted for all the glitter and expensive toys that the husband had added. A dealership can’t normally pay more for a vehicle than a bank will lend and most accessories and expensive paint jobs don’t change book value very much, if at all.

As she left the lot in the truck, on her way to her attorney’s office to complain, the wife was heard repeating over and over, “But I won, but I won.” Chances are she had a very interesting chat with her attorney.

Solution: Use book values only as a guide to value. For rare or heavily customized vehicles, get a written buy offer from one or more dealers. What was paid for the vehicle is irrelevant.

Imprecise Divorce Decrees
For many newly divorced people, part of the process of recovering from a bad marriage involves buying a new vehicle. Shortly after the divorce is final, one or both spouses may arrive at a dealership only to find that there is a problem with trading in the vehicle that they received through the divorce settlement. Instead of actually completing the process of changing the titled owner on the vehicle, many attorneys rely on the divorce decree to arrange for the transfer. Often, that doesn’t work.

Most states allow an ex-spouse to be removed from the title to a vehicle by using the divorce decree only if the vehicle is properly described. Many decrees fail to adequately describe the vehicle. A typical divorce decree reads “Respondent will retain 2009 Chevrolet” or even “2009 Chevrolet with license plate XYZ 123.” Neither description provides the specificity required by most state agencies. The first description provides only the make and year of the vehicle. That’s not specific enough. The second description adds the license number, but since plates are routinely moved from vehicle to vehicle, most states won’t accept this description either.

Solution: The best practice is to have each party sign new application for title for each vehicle — removing one titled owner where appropriate. Then the attorneys should submit the paperwork to the appropriate state agency on behalf of their clients. Local auto dealers will be glad to help with this matter for a small fee. Don’t rely on the clients to take care of this. Too often, one or both parties to the divorce fail to follow through. Getting the appropriate signatures at the time of the divorce is easy. Getting an autograph from an angry spouse months later — after a child support check has bounced — may be impossible.

If a simple application for a new title isn’t possible, such as when a lien holder holds the title, carefully identify each vehicle in the decree using the name of the manufacturer and the full Vehicle Identification Number, or VIN, associated with the vehicle. Don’t include the license number or the model of the vehicle. Models names often aren’t even tracked by state motor vehicle agencies. Worse, they may confuse matters. Is that a pickup, a double cab or a Tundra? Instead, include only the name of the manufacturer and the VIN.

Failure to Confirm the Vehicle in Question
Decrees are often built around inadequate documentation or around no documentation at all. The husband advises that the vehicle he will keep is a 2008 Chevrolet and provides the license plate number or perhaps a repair order, which includes the Vehicle Identification Number. Six months later it is determined that the mechanic transposed two numbers or the title was for a vehicle sold several years before.

Solution: Confirm the VIN by physical examination of the vehicle itself. Don’t rely on the title or on an insurance card.

Failure to Confirm the Titled Owner
Paper titles are often superceded through lost title applications and mechanics’ liens. In other states, the registration may show a different name than the title. Your client may find that a divorce decree or power of attorney is worthless in delivering title that the deceased never owned, because it is still in the name of a deceased grandfather.

Solution: Verify the current titled owner to the vehicle, not by the title document, but by inquiry to the appropriate state motor vehicles department. This is often free, but will never cost more than a few dollars. In many states, new car dealerships are recognized as agents of the state motor vehicle agency and can confirm the titled owner for free.

Conclusion
Transferring title to a vehicle is a routine part of handling a divorce or of settling an estate. With a little care, it can be trouble free.

ABOUT THE AUTHOR
William Leslie is a freelance writer and CFO of Gresham Toyota in Gresham. His articles have been published articles in a broad range of magazines, including Auto Dealer Monthly, Ward’s Auto Business, Auto Rental News, Family Chronicle and others. Reach him at williamleslie99@ocmusa.com.

© 2011 William Leslie

http://www.osbar.org/publications/bulletin/11jun/tips.html

 

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Alive and Well: More Proof That Law Blogs are Thriving

Posted on January 25, 2011 by admin

Alive and Well: More Proof That Law Blogs are Thriving

By Robert J. Ambrogi

Two months ago in the November 2010 LegalOnline column, I wrote about a number of newly launched blogs that demonstrated that blogging is alive and well within the legal profession. Rarely have I had such a response to a column.

Some applauded me, some criticized me. Of those who criticized me, they fell into two camps. In one camp were those who were unhappy with the blogs I chose to highlight. In the other were those who were unhappy with the blogs I overlooked.

Nothing I can do now will fully ameliorate either set of concerns. However, what I can do is offer additional evidence to bolster my argument. To that end, I present round two of my review of recently launched blogs.

My selections are listed in alphabetical order. If you don’t like what you see here, then keep those cards and letters coming. Sooner or later, I’ll get around to round three.

American Academy of Estate Planning Attorneys, http://blog.aaepa.com. The AAEPA is an organization devoted to the practice of estate planning law. Its blog, launched earlier this year, covers court decisions, legislative developments and news stories related to estate planning. Various members of the AAEPA staff contribute to the blog, including its two co-founders, Robert Armstrong and Sanford M. Fisch.

Entertainment & Media Law Signal, www.entertainmentmedialawsignal.com. From the Canadian firm Heenan Blakie, this blog provides information and observations on the newest developments in entertainment and media law. Two members of the firm’s entertainment law group, Bob Tarantino and Paul Chodirker, serve as its editors and several others are contributors. “Though we’re Canadian,” Tarantino writes in an e-mail, “we think U.S. readers might find it of interest as well.” No doubt they will, as the blog covers a wide range of entertainment law issues.

Entertainment Law Matters, www.entertainmentlawmatters.com. From the New York City firm Frankfurt Kurnit Klein & Selz, this group-authored blog focuses on disputes and litigation in the film, television, publishing, theater, music, art, gaming and fashion industries. The blog promises summaries and analysis of “some of the hottest entertainment industry law battles,” all written in plain English. Key areas of focus are copyright, trademark, right of publicity and advertising law.

IP In Brief, www.ipinbrief.com. Launched last April, this blog focuses on changes and developments in copyright and trademark law. It is written by Andrew Berger, an IP partner with Tannenbaum Helpern Syracuse & Hirschtritt in New York City. His goal in launching the blog is to “engage all who create, distribute, publish or exploit intellectual property or who litigate IP issues.” In an e-mail, he told me that he prefers to write longer posts that go deeply into the subject. Berger is co-chair of the copyright subcommittee of the IP Litigation Committee of the Litigation Section of the ABA. He teaches trial practice at Hofstra Law School.

IP Litigation Update, www.iplitigationupdate.com. This is the sixth blog launched by the firm Perkins Coie. With posts contributed by several of the firm’s IP litigation attorneys, it provides summaries and analysis of copyright and trademark cases, with a particular focus is on how new developments apply to technology companies. Each post about a case includes a “Lesson Learned” that distills the case’s broader lesson.

Law Marketing Monitor, www.lawmarketingmonitor.com. The two principals of AttorneySync, a Web marketing firm for lawyers, write this blog. It covers Internet marketing, search engine optimization and broader topics relating to legal technology.

LawWebMarketing.com, www.lawwebmarketing.com. This blog is published by ConsultWebs, a legal marketing and Web design company. It offers news and insights on legal marketing, social media, search engine optimization, pay-per-click and display advertising, video and more. ConsultWebs founder Dale Tincher tells me that readers should expect at least three substantive posts each week, along with news and announcements.

Law Without Borders, http://lawwithoutborders.typepad.com/legaloutsourcing. Don’t let this blog’s title confuse it with organizations such as Lawyers Without Borders or Doctors Without Borders. The focus of this blog is not humanitarian, but utilitarian. Its subtitle tells more: “Adventures in Legal Outsourcing to India and Beyond.” The blog is written by Russell Smith, a lawyer who operates both a law firm in New York, Smith Dehn, and a legal-outsourcing company in India, SDD Global Solutions. The focus of his blog, as with his businesses, is on how outsourcing can “revolutionize the way that legal services are performed and delivered, in the West and beyond.”

Legal As She Is Spoke, http://lasisblog.com. In 1884, two Portuguese men who could not speak a word of English wrote a guide to conversational English, English as She is Spoke. The result was so hilariously absurd that Mark Twain said of it, “Its immortality is secure.” This blog, a project of the Program in Law and Journalism at New York Law School, takes its title from that 19th century classic. Its focus is legal journalism and “the accuracy and felicity of reporting on law.” Given the choice of title, we must assume that the authors believe that law does not always survive the translation to journalism.

Legal Malpractice Decisions, http://legalmalpracticeillinois.blogspot.com. Chicago lawyer Edward X. Clinton Jr., writes this blog in which he covers legal malpractice decisions. His focus is on cases out of Illinois, but he covers cases from other jurisdictions as well and comments on significant ethical issues and cases discussing the attorney-client communication privilege.

LexTekReport, http://lextekreport.com. Reporting on legal technology, this blog is a companion to Chicago Lawyer, a magazine published by Law Bulletin Publishing Co. It covers various topics related to legal technology and social media.

OneWorld, http://blog.internationalpractice.org. This blog is part of a larger international practice mini-site launched recently by the law firm Cadwalader, Wickersham & Taft. Written by partner Louis M. Solomon, the blog covers judicial and regulatory decisions as well as topics and trends in international litigation, international dispute resolution, and international investigations, regulatory compliance and enforcement. The broader site of which this blog is part includes an e-book that covers international practice in depth.

Our Family Business at Odds, http://blog.tbhr-law.com/family-business-at-odds. In September, as the spectacle of the Frank and Jamie McCourt divorce played out in a Los Angeles courtroom, the Boston law firm Tarlow Breed Hart & Rodgers launched this blog, focused on the legal issues that arise when family-owned businesses suffer internal meltdowns. Written by various lawyers at the firm, the blog describes itself as “dedicated to the unique issues of helping family members in family businesses avoid, mediate and litigate (if you must) family business disputes.”

Social Media Law Blog, www.blogspot.com. As the name suggests, this blog covers legal issues related to social media. The author, Dan Goldman, is a lawyer for a large Midwestern academic medical center that is active in its use of social media. Goldman’s practice includes advising the center on all issues related to social media, brand advertising and marketing. You can expect him to cover those topics and more at his blog.

The Justice Brennan Blog, http://justicebrennan.com/blog. In October, two decades after Justice William J. Brennan Jr. retired from the Supreme Court, Houghton Mifflin Harcourt published a new biography, Justice Brennan: Liberal Champion, written by journalists Seth Stern and Stephen Wermiel. As a companion to the book, Stern and Wermiel launched this blog about Justice Brennan. In an introductory post to the blog, Stern wrote that they hope to use the blog to highlight the ways the late justice remains relevant today. Stern is a legal affairs reporter at Congressional Quarterly. Wermiel is a former Supreme Court reporter for the Wall Street Journal who now teaches constitutional law at American University.

In my November 2010 column, I cited SCOTUSblog, www. scotusblog.com, as the gold standard of what a legal blog can be. I would be remiss if I closed this column without noting that, since then, SCOTUSblog unveiled a complete overhaul. Its new format strays from the reverse-chronological array typical of blogs to better highlight featured posts and different kinds of information. Be sure to check it out.

ABOUT THE AUTHOR
Robert Ambrogi, who practices law in Rockport, Mass., is the former editor of National Law Journal and Lawyers Weekly USA. He is internationally known for his writing about the Internet and technology. He is the author of three blogs, which can be read at www.legaline.com.

© 2011 Robert Ambrogi

http://www.osbar.org/publications/bulletin/11jan/legalonline.html

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Delete Me: Can Acrobat PDF Redaction be Trusted?

Posted on January 25, 2011 by admin

Delete Me:
Can Acrobat PDF Redaction be Trusted?
By Mark Niemann-Ross

Former Illinois Gov. Rod Blagojevich issued a subpoena to President Barack Obama in April 2010. Not so surprising. Then the Chicago Tribune did what newspapers are supposed to do and reported on the subpoena. They not only reported on it, but also published a copy of the legal document, with certain elements redacted. Unfortunately, the document provided by Aaron Goldstein, Blagojevich’s lawyer, wasn’t redacted correctly, and the complete text is available to any kid with a copy of Acrobat Professional.

Oops.

What got Aaron Goldstein in trouble was assuming if you can’t see the text on screen, or in print, then the text isn’t available. Someone in Goldstein’s office used the text background paint bucket to draw a black background, and also made sure the text was also black. But the text was still there, waiting to be discovered.

Oops.

By the way, there are Microsoft Word redaction add-ins that do work — they draw a black background, but also convert the underlying text into “||||||||||||||||||” — no text remains.

Nobody wants to have their name appear in the document properties dialog when this mea maxima culpa appears on the Internet. It’s embarrassing at best, cause for serious disciplinary sanctions at worst. It’s certainly not impressive to a client. So isn’t there a way to confirm that redaction has actually happened and that there isn’t any chance for error?

Ensuring That All is Well
There is a fairly good way to confirm that things are not astray. The first step is to use the right tools. The second step is to confirm you’ve used them correctly.

To perform redaction in an Adobe Acrobat document, use the official tool: Adobe Acrobat Professional. Invest in the latest version. Last I checked, it costs $449 for a single copy purchased directly through the Adobe store. Look around, you can get it for cheaper. You could save money and get a third party Acrobat editor, but they don’t have Adobe’s reputation. Adobe is really concerned about security, as it reflects on their share price. Given the current state of the market, that’s a great motivator for them to get it right. By the way — I do not get a kickback from Adobe; I just sincerely believe that buying the original is the cheapest solution in the long-run.

You may not be aware that Acrobat has a redaction tool because you’ve never seen it. If you are using the free Adobe Acrobat Reader, then you are missing this tool. Reader is great for, well, reading. But it doesn’t have editing tools such as redaction. Only Adobe Acrobat Professional has the redaction tool.

There are several excellent tutorials about using the redaction tool, but it’s actually rather simple. Open the Acrobat document. Select the redaction tool from the “Advanced” menu. Select the text or object you want to redact, then apply the redaction. Save the new document, and you’re done. There are more steps you could take, and some precautions regarding metadata, but for the purposes of this article, that’s enough to know to get it to work.

Acrobat not only produces a big black box, but also removes the text or image that was redacted. Not there, not to be found. You can also elect to use US FOIA or US Privacy Act codes, as well as search and redact through an entire document.

If everything goes right, the document, when released into the wild, will not embarrass you, or your firm. But as the great philospher Woody Allen reminds us, “Paranoia is knowing all the facts.” And the facts are that redaction sometimes gets done incorrectly, in spite of best intents.

How to Confirm That the Text is Gone?
Here are three ways.

First, simple. Open the document in Adobe Acrobat, and go to the “Tools” menu. Select “Select & Zoom” and then “Select Tool.” Use the cursor to drag-select text that is supposed to be redacted, copy it, and then paste it into a blank word-processing document. If the redacted text appears, you have your fears confirmed.

Second, paranoid. Open the redacted PDF in Acrobat, and the original in whatever word processor it was created with. From the original, find some of the text that is supposed to be redacted, then search for it in the redacted PDF. If that text has been properly redacted, you will get a dialog that states: “Acrobat has finished searching the document. No matches were found.” That is a pretty good indicator that text is gone. Two warnings about this: First, check that you didn’t introduce a typo in the search string. Second, Acrobat sometimes treats the spaces between words in odd ways. It’s best to search for a single word, not a phrase.

If the text is found, Acrobat will jump to the page. (A dead give-away that something was found.)

Third, complex. This time, open the document in Acrobat Professional. Look in the “Tools” menu for “Advanced Editing” and then for the “TouchUp Object Tool.” Now you are using the tool that all the other document hackers are going to use to discover nonredacted text. The cursor has changed to an arrow… Move it to where there is supposed to be redacted text, and click. You may notice a long rectangle become highlighted, which indicates the presence of text. That highlighted rectangle can be dragged to a different place on the page, after which you’ll be able to read its contents. If you can do it, so can the rest of the world!

With a bit of care, redaction can be done effectively and permanently. But it does require that you spend a moment learning the tools of the trade. Or you can simply hope for the best, and blame it on the intern. Just make sure it’s their name in the document properties dialog — and not yours!

ABOUT THE AUTHOR
Mark Niemann-Ross is an Adobe certified expert on Acrobat Professional 8 and 9, and has spent most of his professional career in software product management as well as developer relations. He can be found at www.niemannross.com

http://www.osbar.org/publications/bulletin/11jan/practice.html

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Is Blogging Dead? These Blawgs Prove Not

Posted on November 15, 2010 by admin

Is Blogging Dead? These Blawgs Prove Not
By Robert J. Ambrogi

“I can see the amusement value in these things, but I can’t see how they are of any use in a law practice.”

That was a direct quote from a lawyer speaking to me in 2002. He was referring to blogs. That was at a time when the number of law-related blogs was still small and when many blawgers were still finding their sea legs. (It was also the year the word “blawg” was coined, its origin credited to blogger Denise Howell.)

Eight years later, blogs have firmly established their usefulness in law practice. A blog such as SCOTUSblog, www.scotusblog.com, demonstrates the gold standard of what a blog can be, having become the preeminent resource on all things Supreme Court.

But if what goes around comes around, I am now hearing murmurs that blogs are dead — or at least dying — within the legal profession. The universe of blogs has become too crowded, too noisy and too cluttered with spam to have any value, some say. Services such as Twitter and Facebook are easier, more direct and more personal, they contend.

So I come today to declare blogging alive, well and thriving within the legal profession. As evidence, I could refer you to any number of established blogs such as the one I already mentioned. But the future is foretold by what is new, so allow me to highlight some recently launched blogs, all of which show the continuing vitality of the medium. (My listing is alphabetical, not preferential.)

• AOTUS, http://blogs.archives.gov/aotus. AOTUS stands for archivist of the United States, and this is his blog. The current archivist is David S. Ferriero. His job and that of the agency he runs, the National Archives and Records Administration, is to protect and preserve the records of the federal government. What does that entail? Read his blog and find out.

• California Corporate & Securities Law, www.calcorporatelaw.com. Keith Bishop, a partner with the California law firm Allen Matkins, covers California securities laws and regulations, corporate governance, the California Department of Corporations, the California Public Employees’ Retirement System, the California Secretary of State, pending legislation and rulemaking, quirky California laws and other topics.

• CaseClothesed, www.caseclothesed.com. If blogging is fashionable, this blog makes fashion law bloggable. Created, edited and run by students at New York Law School, it covers fashion law and offers legal perspectives on developments in the fashion industry.

• Crime in the Suites, http://crimeinthesuites.com. From the Washington, D.C., Ifrah Law Firm, this blog covers white-collar crime, DOJ enforcement, federal sentencing and similar topics. Contributors include the firm’s founding partner, Jeff Ifrah, and several associates.

• First One @ One First, http://f11f.wordpress.com. Call me late to the party. Although this is my first time writing about this blog, it has already been mentioned in The New York Times and the ABA Journal and on National Public Radio, to name but a few places. Georgetown 3L Mike Sacks started it in January with this introduction: “This semester, I have no morning classes. As such, I will be taking advantage of living only minutes from the Supreme Court to pursue a rather unorthodox extracurricular activity: reporting from the Court as the first one in line at One First Street.” This he did — and did well. Now, the semester is over, but the blog continues.

• Government Contracts Legal Forum, www.governmentcontractslegalforum.com. From the law firm Crowell & Moring, this blog provides news and commentary on legal issues relating to government contracts. With nearly a dozen contributors from the firm’s government contracts group, the blog covers such issues as the False Claims Act, cost accounting, public-private partnerships and General Services Administration schedule contracting.

• In Custodia Legis: Law Librarians of Congress, http://blogs.loc.gov/law. Launched early in August by the Law Library of Congress, this blog features a team of bloggers writing about current legal trends in the United States and elsewhere, developments and enhancements to the THOMAS legislative research service, and cultural intelligence and the law.

• Internet and E-commerce Law Blog, www.internetecommercelaw.com. Since 2005, California solo lawyer David D. Johnson wrote the well-regarded Digital Media Lawyer Blog. In March, he moved his practice Epstein, Becker & Green in San Francisco. Soon after, he transformed his former blog into this new one.

• Just Books, www.brennancenter.org/content/pages/JustBooks. The Brennan Center for Justice at New York University School of Law launched this unique site in April, “dedicated to justice, books and ideas.” Part blog, part literary review, Just Books features reviews, criticism, essays and excerpts contributed by a range of prominent writers.

• Law Firm Transitions, www.lawfirmtransitions.com, and Legal Vendor Advisory, www.legalvendoradvisory.com. Here are two blogs launched this summer by principals of the legal-marketing firm Legal Vertical Strategies, both focused on how the legal industry can improve the delivery of legal services. Law Firm Transitions, written by Debra Baker, addresses the issue from the perspective of law firms. Legal Vendor Advisory, written by Cathy Kenton, addresses companies that offer products and services to legal professionals.

• Legal Divas Blog, www.legaldivasblog.com. Four women partners with the law firm Bowman and Brooke write this blog focused on diversity law. The blog is intended as a resource for women in law and other professions to keep them up to date on best practices, benchmarking, current issues and trends that impact women in leadership, business and law.

• LobbyBlog.com, http://lobbyblog.com. This new blog targets Washington, D.C., lobbyists, providing news and information on ethics, campaign finance, pay to play, and other lobbying issues. The blog is published by Lobbyists.info, a website with various resources related to federal lobbying and lobbying compliance.

• Trademarks + Brands, www.trade marksandbrands.com. Launched by the trademark research company CT Corsearch, this trademark blog is intended to be a resource for industry best practices, expert opinions and news. Topics it covers include trademark infringements, industry buzz, vertical happenings, unique marks and major events.

• The ZRG Blog, http://zimmermansguide.wordpress.com. For roughly a decade, legal researcher Andrew Zimmerman has published Zimmerman’s Research Guide, http://law.lexisnexis.com/infopro/zimmermans, an online encyclopedia for legal researchers. At long last, he has launched this blog to keep his readers informed of updates to the guide.

I have no idea how many law-related blogs exist. I doubt anyone can say for certain. But these blogs show that there is always room for new ideas or for novel approaches to established topics. With new and clever blogs continuing to emerge, it would seem that reports of blogging’s death have been greatly exaggerated.

ABOUT THE AUTHOR
Robert Ambrogi, who practices law in Rockport, Mass., is the former editor of National Law Journal and Lawyers Weekly USA. He is internationally known for his writing about the Internet and technology. He is the author of three blogs, which can be read at www.legaline.com.

© 2010 Robert Ambrogi

http://www.osbar.org/publications/bulletin/10nov/legalonline.html

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Riding the Wave: So You Want to Hang Out Your Own Shingle?

Posted on November 1, 2010 by admin

Riding the Wave:
So You Want to Hang Out Your Own Shingle?
By Randal Acker

Whether due to the economy, technological advances, or clients demanding individualized attention, more and more attorneys are contemplating hanging out their own shingle. Starting your own practice resembles learning to surf. The following is intended to help others benefit from my experiences catching the wave as a sole practitioner and riding it as manager/owner of a small law firm.

The Business of Law
Law school may have taught us general legal principles, research skills and even how to speak legalese. Few, if any of us, learned how to run a law business. Many attorneys have started but were unable to continue their own practices, because they never understood a fundamental concept: a law firm is a business. Like any other business, you have to focus on things like keeping revenue up and costs down. If you went to law school to only practice law, then you should not start your own firm.

Most of my clients are business owners. So, running my own business seemed a natural fit. I could better identify with the problems facing my clients as a fellow business owner. Also, operating my own practice was a good selling point. Few business lawyers can claim that they have successfully started and run their own business.

You must also have the skills or willingness to learn the many aspects of running a business. A few large firms have hired non-attorney CEOs to run their firms as businesses. As a sole practitioner or owner of a small firm you will have to be your own CEO.

Before Acker & Associates, it was just Acker (myself). I answered my phone, prepared my own billing and emptied the trash. As a sole practitioner, you will perform such tasks, at least until you have the finances to hire others. By performing all tasks of your business, you will both save on overhead and become acquainted with the different facets of your business to help you better manage others in the future.

Budgeting
Some may want to immediately hire others to perform non-legal tasks. However, you need to make sure that you have adequately budgeted for any such costs. I started my own practice as an experiment, to see if it would work. I was convinced I would join another large firm and did not want to invest any funds into my practice. I used a card table as a desk, borrowed a computer, and used a small back office next to the building’s bathroom for minimal rent.

I watched some of my peers suffer from more aggressive financial practices. One of their biggest mistakes was spending fees before actually collecting them. It may be tempting to start your business by buying new, fancy furniture and equipment on credit. However, high start-up costs can sink your practice.

Perhaps the best financial approach is somewhat less conservative than the path I chose. You will need to attract clients, and your surroundings must exude a degree of success and stability. I eventually realized that the card table and back office did not provide that impression.

What Are You Selling?
Like any business in the service industry, you need to decide which services you are offering. At one extreme is the general practitioner that will work on any legal matter that comes through the door. Aside from the possible malpractice issues, this approach may prevent you from specializing in any particular area. Consequently, not only will you be unable to convey the expertise demanded by a prospective client, but you will prevent yourself from efficiently providing a service. You will constantly face steep learning curves in each specialized area and may have to substantially reduce your fees to remain competitive.

At the other extreme is overly restricting your practice area. You may find yourself without any work. You also risk discarding the challenge or intrigue of a more varied practice, which can result in the domino effect of less enthusiasm, lower client satisfaction and fewer referrals.

Set parameters for your practice but maintain some flexibility. Although my experience and interest was in business law and litigation, during the first years I broadened my practice to include criminal defense. I received indigent criminal defense cases from the state. The experience was invaluable, even for my commercial litigation practice of today. It sharpened my litigation skills and provided me with familiarity with the courtroom and staff.

Risk Tolerance
On your own, there is no ceiling to what you can earn. However, there is also no basement. Some just do not have the stomach for running a business. Others thrive. It all depends on your personal risk tolerance as well as your personal circumstances.

When I started my practice, I was single and without any dependents. I could work long hours and survive without a steady paycheck. Now, married and with four children, I do not have the same risk tolerance.

Bosses/Clients
A common misconception of owning your own business is that you do not have a boss. You actually have many bosses — your clients. They pay your salary and can fire you. Hence, good client relationships are invaluable for your business. Each of your clients should feel like your only client. Clients are not interested in your other matters or your schedule, except to the extent it involves them. To succeed with your practice, you must be responsive to your clients. You must answer their calls or return their calls promptly. Many of my clients came to me from other firms because of the lack of individualized attention.

Your own clients can be your best referral source. In my experience, clients from referrals are already sold on me and my firm before they even enter my office.

Like investing in stock, you should try to maintain a “portfolio” of many clients. This will ensure that you have a steady stream of work. Many sole practitioners, as well as law firms, find themselves working primarily for a single client. This can become dangerous for the viability of your business. You may become too dependent on this single client, who may then acquire leverage to negotiate down your fees. Worse, the client could decide to use another firm or take its needs in-house, effectively putting you out of business.

At the beginning, you may be anxious for any work. As another attorney once said to me, “It’s not the clients you have but the ones that you turn down that make your practice.” If you intend to make money with your practice, like most of us, make sure that you and your client have the same expectations regarding payment of your fees, and make appropriate arrangements to ensure you will receive such fees. Only take on matters/clients that interest or motivate you. Otherwise, your services will be subpar and you will not enjoy your work.

Peers
Inevitably, you will need to bounce ideas off of another attorney. In a large firm, you need only walk down the hall. As a sole practitioner, you will need to make more of an effort. Form your own informal network of attorneys. I have been pleasantly surprised at the lengths other attorneys will go to assist each other. You just need to initiate the contact.

I was fortunate to be surrounded by other sole practitioners in the building where I began my practice. We shared everything from business ideas to office equipment. I especially enjoyed the lunches. Around noon, we would usually grab lunch together, which served as a good social break as well as the opportunity for feedback and the exchange of ideas.

Time Management
As a service provider, your time is your primary commodity. If you spend all of your day doing administrative work, you are not billing and not making any money. On the other hand, if you work on client matters but do not send out bills, you will not get paid. At the beginning, you may not have many client matters. However, you should still put in a full day of work.

If I did not have enough billable work, I devoted any extra time to marketing. I remember thinking, when I first started on my own, “I can go see a matinee.” Eighteen years later, I have not yet seen that matinee.

Make lists and prioritize items on the lists. You can use your PDA, computer or even a pen and paper. Check off items on your lists to give you the satisfaction of completion and so that you can look back on your day and evaluate your productivity. While the practice of law requires diligence in performing tasks and adhering to deadlines, running your own firm takes such discipline to an even higher level.

Separating Work & Play
Avoid burnout. Harness your initial enthusiasm by occasionally taking breaks, even just to eat, sleep and socialize. You will come back rejuvenated and with a fresh approach.

I made a conscious effort to keep my worlds separate to avoid burnout and preserve my sanity. I have always maintained a separate office from my residence and tried to keep work at the office. I also am a proponent of the “monkey suit” as opposed to casual Friday attire. By putting on my work clothes, even if I do not have court or a client meeting, I keep my worlds separate. Also, appearances can be important, especially if you are interested in attracting clients.

Perseverance
Keep at it. I had worked briefly for a large firm and decided to hang out a shingle as an experiment. I made below-poverty-level income for the first year (after a large firm salary) but noticed an upward trend. So, I rode the wave and, 18 years later, I am still on that board. No longer a sole practitioner, we are now a small firm. Instead of a card table in a back office, we now have our own building. The seas may be choppy or calm. Yet, over time, your network and client base grows, and so will your practice.

Hanging out a shingle is not for everyone. Like surfing, with a little balance and finesse, it can be both rewarding and fulfilling. Surf’s up.

ABOUT THE AUTHOR
Randal Acker has a B.A in philosophy, politics, and economics from Claremont McKenna College and a J.D. from Cornell Law School. Currently, he is the managing attorney of Acker & Associates P.C., a small firm that specializes in business law and litigation. For more information or to contact Randal go to www.ackerlaw.com.

from http://www.osbar.org/publications/bulletin/10oct/practice.html

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