Some like it, some hate it.  Here’s the story: Some lawyers, as part of the client’s preparation for deposition, have the client prepare “Cliff Notes” of their testimony.  This would be a set of notes, including time lines, photographs and diagrams to help answer the defense lawyer’s questions.

Many lawyers (especially those on the other side) will complain that the dep is “not an open book test.”  But this is not true.  I know of no rule, no case law and no statute precept that prevents a client from using those materials to help when being deposed.

There are issues however.  First, the lawyer should not prepare the notes etc.  The client should do it.  (The lawyer can and should review the package however and make suggestions of what to include so the client does not forget.)  Second, if the client brings materials to a deposition the other side is entitled to see them and even have them marked as an exhibit.

If for some wrongheaded reason the judge forces you to let your client be deposed without the help of these memory aids, the client should respond with many answers like “I don’t recall” or “I can’t really be sure without reviewing my notes but I think the answer is…”

Some of my clients ask why lawyer’s Complaints are so complicated and have different claims.  To them it seems simple: we agreed to do something, it didn’t get done, and I’m out my money.  I want my money back Mr. Lawyer, go get it.

But lawyers (like me) see various ways to accomplish the same goal. In the scenario above, for example, it could be accomplished by arguing that there was a contract and the other side broke the contract.  (The contract could be written or oral, in Virginia, D.C. and Maryland both are valid.)  But it could also be fraud, where the other person made explicit promises you relied on and they knew that they were lying.  Or it could be unjust enrichment, where they unjustly kept your property even though they owed it to you.  It might even be “conversion” which is where they take your property and convert it to their own without your consent.

So why claim all of them when only 1 will do the trick?  It’s what I call “suspenders and belt” theory of pleading cases.  Maybe you think the other person broke the contract.  But they might argue that there was no contract.  Then where are you?  Another reason for pleading in the alternative is that some types of legal claims bring different penalties if you win.  For example, fraud will bring in attorney’s fees plus punitive damages.  Breach of contract claims will not.

Bottom line: sometimes what looks like the lawyer “padding” things is actually the lawyer trying to maximize benefits to you, the client.

I don’t do patent law.  It’s incredibly complex and has many arcane rules. But sometimes clients need to know just a little bit about patent law so they can ask the right questions when they hire a lawyer.  So, as best I can, here’s a little primer about patent law.  Consult a true patent expert for more information.  (BTW, while I think I’ve got these basics correct, check carefully with your patent law expert.)

• Who gets the patent?  As I understand it, most of the world uses a “first to file” the patent papers.  But the U.S. does not.  The U.S. uses what is called the “first to invent” standard.  What does this mean?  It means that you better have good records of when you came up with your patent-able idea.
• What if 2 people come up with the same idea?  See “first to invent.”
• What if the other person (company) stole the idea?  You better have good evidence showing what you invented, when you invented it, and some credible evidence that it was stolen from you as opposed to invented simultaneously.  I am told that something called an “inventor’s notebook” that has been signed and witnessed is good to have.

Finally, I am told that similar patent applications are filed all the time.  Careful, detailed, records will be absolutely vital if you come up with something useful.

Good luck.

The recent travails of Paula Broadwell and David Petraeus and their emails has raised a lot of questions, many of which have been answered, at least partially, by citations to the PATRIOT ACT or national security.  But what about email privacy for the rest of us?  That is in flux.  Eventually (soon I hope) the U.S. Supreme court will have to rule on it.  Why will it get to the Supreme Court? Because the lower courts do not agree on what level of protection emails deserve.  I’m going to try to provide (intermittently I’m sure) some ideas of what’s going on in this area of the law.  First up:  what’s the source and basis of the issue?

The Fourth Amendment is the key.  It says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

So no “unreasonable” searches can occur without a Warrant (which is assumed to be the guarantee of reasonableness.)  In the case of “snail mail” this means that

1. You have full Fourth Amendment protection until you mail the package;
2. When you drop your mail off (in the mailbox or at the post office) both you and the person you are corresponding with enjoy full Fourth Amendment protection in the contents of the mail during delivery.  (Not the identity or the address on the mail.  This can sometimes be important for other reasons.)
3. When the mail is delivered you lose your Fourth Amendment protection and full Fourth Amendment protection vests solely in the recipient.

Thus, it’s pretty simple: You have it until you mail it; you both have it until it is delivered, and he has it once it gets there.  There are exceptions to these but this is the basic approach has governed snail mail privacy.

So how does this apply to email?  Good question.  The problem is that email is electronic, not physical.  So when you send an email to someone copies are littered about the electronic landscape.  There are copies on your computer, even after you send it out (check your “sent” folder if you doubt me); copies on the recipient’s folders even after they delete it (check your “delete” or “trash” folders) and copies on the internet service provider you use and the recipient uses (2 more).  So that’s at least 4 copies.  Are they all protected?  Are some of them protected?  Are they protected all the time or only some of the time?  Are they protected until 1 copy is delivered?  Are there laws that protect you?  Laws like the Stored Communications Act?  Are there state laws like those controlling wiretapping?

These are the questions that are being argued right now.  There aren’t many cases but the ones that are out there have huge implications for all of us.

4.  What skills are essential for a good juror?

• Active listening,
• good memory, and
• the ability to make decisions for yourself to determine the fate of the person who is charged.  In other words, stand your ground when you make your decision.

Being on a jury pool is no vacation.  It is work…pure and simple.  And it’s critically important to you, me, and our way of life.

3.  What are the lawyers looking for? 

• “Impartial,” “disinterested” and “uninterested” are words the selection process uses.  They are not synonyms however.  So what do these words mean in the legal context?*Impartial: not prejudiced towards or against any particular side or party; fair; unbiased.
• Disinterested: free from bias or partiality; objective.
• Uninterested: Not interested, not curious, not concerned, uncaring.

If you are impartial and can decide on the facts (just the facts, ma’am) of the case, both sides and the judge want and need you on that jury.

If you are disinterested you might be a swayed either way depending on who might be the most powerful juror in the jury room.  And, being swayed, you might decide the case on factors that have nothing to do with the facts in the case.

If you are uninterested, you may or may not be willing to use the essential skills all jurors must have. I don’t want you on the jury because you just don’t care.

2. Don’t lie when you do you get there.

When you get to the courthouse and they are selecting jurors for a trial, don’t lie.  Don’t tell the attorneys and judge that you are impartial, disinterested or uninterested in the case if you really do have an opinion.  It’s not fair to anyone, including yourself.  Worse, it isn’t ethical or moral.  Worse yet, if the judge finds out (and he just might) the judge will not like you.  Your lies mess up his courtroom, make him have to redo things better done only once and create embarrassment.  No one in the legal community wants to have a decision overturned because a juror says one thing at the selection process and another thing after the trial is over.  It can mean an instant appeal and more time spent determining the outcome of a case.  It can even get you in trouble for perjury–a felony.

I love juries.  I have great faith in the basic good sense of my fellow citizens. They are the bulwark of U.S. justice and our democracy.  It is not too far-fetched to argue that without juries to put a check on governmental over-reaching we would not be free.  But I’ve noticed that people hate jury duty.  I wish that weren’t so.  In the next few blog posts I’m going to try and explain what’s going on and why.

1. When you get a jury notice please show up.

When you get the jury notice, go to the court and get into the jury room.  We need you.  Even if you are busy.  Maybe especially if you are busy.  Without you, juries would not represent us.  Do you really want juries made up only of those people who have the leisure and inclination to show up? Do you want our system of justice to resemble a reality TV show?  Of course not.  So show up.

Busy, tired, stressed out citizens receive notices for jury duty every day.  So what do you do when you are “called up?”

First, when you are called up, go to the court and get into the jury room.  Second, when you go to the courtroom for the selection process, don’t lie.  Don’t tell the attorneys and judge that you are impartial, disinterested or uninterested in the case if you really do have an opinion that is fully formed.  It is not right, ethical or moral and the judge will not like you for doing it.  No one in the legal community wants to have a decision overturned because a juror says one thing at the selection process and another thing after the trial is over.  It can mean an instant appeal and more time spent determining the outcome of a case.

Impartial, disinterested or uninterested are words the selection process uses.  So what do these words mean in the legal context?

1. Impartial: Not prejudiced towards or against any particular side or party; fair; unbiased
2. Disinterested: Free from bias or partiality; objective
3. Uninterested: Not interested, not curious, not concerned, uncaring.

If you are impartial and can decide on the facts (just the facts, ma’am) of the case, both sides and the judge want and need you on that jury.

If you are disinterested you might be a swayed either way depending on who might be the most powerful juror in the jury room.  And, being swayed, you might decide the case on factors that have nothing to do with the facts in the case.

If you are uninterested, you may or may not be willing to use the essential skills all jurors must have.

Here is a list of those essential skills.

1. Active listening,
2. good memory, and
3. the ability to make decisions for yourself to determine the fate of the person who is charged.

Being on a jury pool is no vacation.  It is work…pure and simple.  Even though it can be boring it’s important to you, me and our society.  Our entire system is based on the idea that justice comes best from a jury.  Don’t fail us.

* Definition of Confidential Information. Every NDA should describe the types of information to be protected in the agreement. Common categories of confidential information include formulas (recipes), patterns (designs, blueprints, and specifications), compilations (customer lists, data collections), programs (software and computer code), devices (physical machines and inventions), methods (marketing, advertising and business plans, planned product announcements), techniques, or process (chemical, mechanical and manufacturing processes).

* Exclusions/Exceptions to Confidential Information. Not all confidential information is entitled to trade secret protection. For example, confidential information discovered prior to the creation of the confidential relationship, discovered independently and discovered by reverse engineering (i.e., by obtaining confidential information in the process of disassembling a publicly available product) is not entitled to trade secret protection.

* Period/Term of Confidentiality. A NDA should typically include a provision identifying the period in which the information must remain secret. The term in which confidentiality is to be maintained is negotiable. A term of 5 years is common in the United States, and a term of 10 years is typical in Europe.

* Obligations of Receiving Party. NDAs should include provisions making the receiving party’s obligations explicit. At a minimum, a NDA should recite the receiving party’s obligations to maintain secrecy and limit the use of the confidential information. The NDA should also make explicit that the receiving party is prohibited from breaching the confidential relationship, inducing others to breach the confidential relationship or inducing others to acquire the confidential information by improper means.

* Boilerplate/Miscellaneous Provisions. Other clauses and provisions one should consider including in a NDA are listed below:

• Choice of law provision
• Forum selection/choice of venue clause
• A clause requiring arbitration to resolve disputes
• A provision entitling a prevailing party to recover attorneys’ fees in certain situations
• A provision requiring departing employees to inform their future employers about the NDA
• A clause allowing the employer to assign the NDA to a successor, affiliate, subsidiary, etc., without employee consent
• A “tattle-tale” provision requiring an employee who becomes aware of any breach of the NDA to inform the employer of the breach
• A provision requiring an employee who is uncertain if particular information is within the NDA’s definition of confidential information to request a written clarification from the employer