But our case was not a criminal one.  An aunt was appointed guardian for the children while another family member apparently informed the family (and court) that she was going to write a book about the nationally-publicized incident.  The aunt was able to convince a trial judge to enter an order restricting the other family members from publishing information about the children or the family.  The writer, armed now with the ACLU, appealed.  The Third DCA, in a short 1-2 page opinion, held that this was a well-publicized event and that the special circumstances necessary to put prior restraints on free speech under the First Amendment do not exist here.

A marketing person (or even an astute college student) could likely develop and monitor Twitter feeds and a Facebook fan page.  But is that enough?

Developing a social media policy and handling questions about “new” issues (tech, advertising, responses to comments) is a task probably for a lawyer.

For businesses looking to enter the Social Networking sphere, I would recommend a Twitter feed, Facebook fan page, and an announcement on their own webpage (media release is optional).  I would further recommend setting up an automatic Google search for your business name appearing on the Internet as well as routine searches/monitoring of Twitter and Facebook.  Finally, you need a clear social media policy.

This is actually a fairly good task for a lawyer and paralegal working with the client.  The client could develop the content and have the law firm handle the updating and monitoring.  With a cost-effective paralegal on the front line with some concise supervision by counsel, this would be cost effective.  Moreover, it would ensure (a) the corporation has a social media policy, (b) the posts and entries are appropriate and not patently violating policy or laws, and (c) major social networking sites are monitored for defamation, copyright, unfair competition and other issues.

Depending upon the frequency of the posting/monitoring, this likely could be accomplished for a few hundred dollars a month.  A lot of PR firms could run up that tab in a week.  In good hands, this could be transitioned back to the company full time after 6-12 months.

Meanwhile, follow Clorox on Twitter to see how they are doing.  Some basic good advice on cleaning up your Twitter service is here.  Email if you have comments, experiences or questions about lawyers providing social media services.  I’m interested to see who else out there is providing that service.

Anyhow, it is probably not the silliest Disney suit we’ve seen.

Legal Pad had the scoop (don’t let the real Disney folks see your post image!) and ABA Journal Mobile picked it up as well.

If you are new to the issue, there are reportedly “dozens” of lawsuits around the country seeking proof the President has an American birth certificate.  This is the so-called birther-movement.

We’ll leave the decidedly political rhetoric to others and, instead, give you first-hand access to the 43-page October 13, 2009 opinion in Connie Rhodes v. Col. Thomas MacDonald, United States of America, et al.

Some great quotes are littered throughout the opinion, although one wonders whether 43-pages is necessary to deliver what appears to be an intended death blow to this case and this lawyer’s career.  Whether the 11th Circuit will see this case remains to be seen.

Reading from the source documents (here, a court order) often gives you insight which the news media can’t provide:

1.  ”Counsel here has an affidavit from someone who allegedly paid off a government official to rummage through the files at a Kenyan hospital to obtain what counsel contends is the President’s “authentic” birth certificate.”

2.  After referencing the hypothetical claim that President Obama may be… a martian, the court wrote, “The Court does not make this observation simply as a rhetorical device for emphasis; the Court has actually received correspondence assailing its previous order in which the sender, who, incidentally, challenged the undersigned to a “round of fisticuffs on the Courthouse Square,” asserted that the President is not human.”

3.  ”While the Court derives no pleasure from its imposition of sanctions upon counsel Orly Taitz, it likewise has no reservations about the necessity of doing so. A clearer case could not exist; a weaker message would not suffice.”

At the risk of turning this political, we turned to see how the news media handled the legal analysis.  In all fairness, coverage was matter of fact, with the Associated Press contributing the point that the judge was appointed by George Bush.  The various blogs were dutifully aligned with their political slants.  Fox News apparently did not see the value in reporting the story.

Flu Season Update #1 – Court Policy Statement

The new school year has begun and due to the large gathering of students, combined with the existence of the H1N1 virus and the usual onset of the regular seasonal flu, we felt it prudent to communicate the policy of the court regarding our response to the seasonal flu and H1N1 virus and the effects on Court Personnel^[1] and operations.  The more you know about how to prepare yourself and your family and about the court’s policies, the easier the situation will be to handle for all of us.

1) We will maintain a cooperative and flexible relationship with court personnel that are ill or have to take care for ill children and/or other family members.

2) In the current situation, existing attendance and leave policies apply (Sick Leave, Annual leave, FMLA or Unpaid Leave, if necessary, must be used by court personnel.)  NOTE: Should the Chief Judge decide to activate our Pandemic Continuity of Operations Plan (COOP) and temporarily change the operating schedule and functionality of the court, this policy may change at that time.

3) We continue to promote that court personnel should stay home when ill.  According to the Center for Disease Control and Prevention (CDC), the best way to mitigate the spreading of the flu is to …stay home if you are sick with flu-like illness until at least 24 hours after they are free of fever (100 degrees Fahrenheit or 38 degrees Celsius) or signs of a fever (have chills, feel very warm, have a flushed appearance, or are sweating), except to get medical care or for other necessities.  This should be determined without the use of fever-reducing medicines (any medicine that contains ibuprofen or acetaminophen). http://www.cdc.gov/H1N1flu/qa.htm .

4) Should a member of the court personnel come to work exhibiting flu like symptoms, that person should be sent home.  According to the CDC, H1N1 flu like symptoms are described below:

a. The symptoms of novel H1N1 flu virus in people are similar to the symptoms of seasonal flu and include fever, cough, sore throat, runny or stuffy nose, body aches, headache, chills and fatigue. A significant number of people who have been infected with this virus also have reported diarrhea and vomiting. http://www.cdc.gov/H1N1flu/qa.htm .

b. If unsure as to whether the member of the court personnel should be sent home for any reason, please contact the AOC Human Resources Division at (305)349-7351 for guidance.

c. If a member of a different justice agency exhibits flu like symptoms, call AOC Human Resources so that they can call the emergency contact from that agency.

5) The Building Managers in all the courthouses are assisting in keeping the facilities safe and clean.

a. They have the Spartan disinfectant on hand and use it nightly when cleaning.  They are wiping down the elevator call buttons, bathroom fixtures and door handles nightly; these are the most widely touched areas.

b. They have placed posters in all the public restrooms written in English/Spanish/French (they don’t have Creole) regarding how to cover your mouth when you cough, to use tissues and wash your hands.

c. If someone is known to be infected and/or suspected of being infected in your facility, you should notify the building manager’s office so that they can clean the affected area.

More information will be sent to you next week regarding preparations, staying healthy, etc.

Additionally, below are links to various expert resources of information regarding the influenza A (H1N1) infection, the status of the situation around the world, suggestions for protecting yourself and families, and answers to frequently asked questions.

a. World Health Organization (WHO): http://www.who.int/en/

b. Center for Disease Control and Prevention (CDC): http://www.cdc.gov/H1N1flu/qa.htm

c. Florida Department of Health: http://www.doh.state.fl.us/DEMO/php/FluInfo.htm

d. Miami-Dade County Department of Health: http://www.dadehealth.org/

e. Miami-Dade County Emergency Management & Homeland Security (EOC): http://www.miamidade.gov/oem/swine-flu.asp

]]> http://www.floridalawcommentary.com/2009/09/11/miami-dade-courthouse-prepares-for-swine-fluh1n1/feed/ 0 http://www.floridalawcommentary.com/2009/09/07/can-a-lawyer-get-a-copy-of-a-transcript-without-paying-court-reporter-the-debate-continues/ http://www.floridalawcommentary.com/2009/09/07/can-a-lawyer-get-a-copy-of-a-transcript-without-paying-court-reporter-the-debate-continues/#comments Mon, 07 Sep 2009 13:30:42 +0000 admin http://www.floridalawcommentary.com/?p=288 There is often an unspoken understanding that lawyers who attend hearings which are transcribed need to pay the court reporter to get a copy.

Thus, if there are 10 parties to a lawsuit and everyone wants a copy of a 15-minute hearing transcript, court reporters often take the position that the party ordering the transcript pays an “ordering fee” and all nine other parties then pay lesser, but still pricey, fee for “copies.”  Pricing varies from court reporter to court reporter, but often a “copy” of a transcript is not at the Kinko’s-level copy charges of 5-10 cents per page.  It’s often over $1 per page, perhaps significantly so.

We touched upon this issue in an earlier post where we discussed posting deposition videos on YouTube (which also skirted the issue of sharing expert depositions).  A subtle theme in that “white paper” at issue in the prior post was that some court reporters lay a claim to transcripts.  Given that court reporters put in long hours in that boring deposition which was meaningful only to you and produce quality work, you can see the reasonable origin of their thinking.  But the law may not be on their side.

The Tenth Circuit Court of Appeal issued an unpublished opinion on this very same issue, specifically a battle over about $4,000 in court reporter fees.  As the court warns, that order is not precedent but simply persuasive for non-party court watchers.  The case is United Transportation Union Local 1745 et al. v. City of Albuquerque.

The case involved an overtime dispute between employees (union) and employer (city).  Of note, that claim is a statutory one which includes a right to attorney’s fees.  During litigation, hearings before a special master occurred and the City order the transcripts.  The plaintiff lawyer did not order a copy.  Instead, he sought to have the court compel the City to file the transcripts so he could pay the clerk of the court regular photocopy charges for the transcript rather than pay a higher fee charged by the court reporter.  That was denied.  He then obtained the transcripts by making a public records request (presumably, these transcripts were not time sensitive).  Clever.  Again, that way he would pay the City for their photocopy charges and avoid paying a higher charge to the reporter.

Bottom line: the court held that the court reporter could not demand a fee under the circumstances.

The court wrote, “We have found no authority to justify requiring plaintiffs… to pay a fee to a court reporter for transcript copy the reporter did not make but, rather, that they legally obtained from another source by independent means.  On the contrary, both broad principles and particular holdings undermine the notion that court reporters may demand a ‘missed fee’ whenever someone obtains a copy of a transcript that can be traced back to an original transcript the reporter had made — and was paid for making — for someone else.”

The court went on to note that a court reporter does not have a copyright since they are not the authors of the transcript.  That said, there was some precedent that a party cannot be compelled to produce transcripts in discovery in the same case.  Also not addressed is whether there might be a contract between the ordering party and the court reporter agreeing that there is no copying allowed… whether filing the transcript would alleviate that concern is unclear.

We’re of mixed minds on this issue, not so much in terms of the strict legal rights but in what is fair under the current market methods.  It seems an unnecessary windfall for a court reporter to charge a “reporter rate” for a transcripts as well as a heightened rate for copies (see the example above, where an original and nine copies are ordered — which could run hundreds of dollars).  That said, would it be “unfair” to have one ordering party and then they fire off nine copies for the other lawyers?  Or would this simply lead court reporters to increase the cost of the ordered copy?

As the 10th Circuit order is not precedent, it certainly will not end the issue.  Lawyers quietly pass these costs along to clients and typically do not want to make waves with friendly court reporters.  But, just as the billable hour is not always a reliable system for lawyer work, the “original/copy” pricing system does not seem a perfect fit for quality court reporter services.

Thanks to the ABA Journal (10th Circuit: Court Reporter Not Entitled to Fee for Copied Transcript) and the Exclusive Rights blog for the great scoop.

For related stories, take a peek at the Court Reporting blog.

The New York Times broke the story suggesting that, at least in New York City, bedbugs are “the new mold.”

Here in Florida, a professional but clear statement in the closing documents likely would go a long way to avoid future hassles.  Consider it a limitation of liability… with many little legs.

The Supreme Court of Montana wasn’t so sure and found that a new trial was warranted.  Relying on similar weird courtroom incidents from other jurisdictions,  the court found, “Based upon the extraordinary events observed by the jury, we conclude that a mistrial should have been granted or, failing that, a new trial should have been granted after the verdict.”  Case is Amy Heidt as PR of Estate of Gerard Heidt v. Faranak Argani, M.D., and Deaconess Billings Clinic.

Interestingly, what was not addressed in the decision was whether the technique of “channeling” the decedent was improper inflammation and prejudice of the jury.  Driving a juror to be ill suggests something – whether it is improper or simply good speaking skills and a gruesome topic.  But the Montana court either dodged or was not given that issue.

One wonders, if the doctor did not help (or could not help), if that too would be grounds for a mistrial?

The story broke on the AP.   The source of the news is the FDA “early communication about an ongoing safety review,” found here.

With the recent focus on the risks of common medications (Tylenol) as well as the Michael Jackson homicide case, it will be interesting to see if the name “Alli” appears in lawyer ads soon.

The case is Hernandez v. Hillsides, Inc. where an employer secretly placed a wireless videocamera in an employee’s office (which had a door lock and window blinds, which could be closed).  The court held that, while the element of “intrusion” was met, the affirmative defenses to “offensiveness” carried the day.

The defendant is a former orphanage which is now an overnight facility for abused children.  The facility had a computer policy against accessing x-rated sexually explicity websites.  The employer learned that two computers — one in a public area and one in a closed office — were being accessed at night for internet porn viewing.  The employee who used the office often failed to log off at night.  She was never suspected.

The employer, motivated both to stop the porn-viewing AND to catch the person, initially tried to put a camera on the public computer but could not sufficiently hide the computer.  He then placed it in the closed office and swore under oath that the camera was there for three weeks, he never viewed it during normal business hours, he never saw anything invasive, he kept the video camera screen out of reach of other employees, and… he saw nothing.

Also interesting, the court found that there was no requirement that the defendant try alternative, less intrusive methods (although the court excluded that other methods would have worked).

The employee apparently found the camera one day with the red light blinking, the cord plugged in, and the equipment warm to the touch.  She was concerned because she often closed her office door to change or have private conversations.  The court acknowledged, “we appreciate the plaintiffs’ dismay over the discovery of video equipment… nothing we say here is meant to encourage such surveillance measures…”

The case is fact-rich and may, indeed, be so fact-specific that it could be distinguished from other workplace situations.  This opinion should, by no means, be viewed as the “green light” for employers to videotape employees.  That said, especially for California, which we view generally as a plaintiff-favoring jurisdiction, it is remarkable that the court unabashedly relied on the self-serving testimony of the employer — to the point that summary judgment was granted.