Delaware Law Office
of Larry D. Sullivan, Esquire

A Weblog?
The column to the right, is a news/editorial/comment column. It is a weblog, also know as a blog.

The weblog thing comes from www.blogger.com, which offers us a convenient way to manage the posting, administratively. You don't really need to know all of that, but we have included this explanation so that you won't be confused by the term "blog".

Another important topic here is that since the column includes editorials and comments, you can be sure that we are just exercising our free speech rights as guaranteed by the Constitution and as not yet abridged by a reactionary opportunistic vocal minority.

opinions, everybody's got one...
If you would like your opinion published here, forward it for consideration and editorial review to: info@delawoffice.com.
Or add a comment. Comments by: YACCS

We encourage the exchange of responsible ideas.

Saturday, June 22, 2002

 
electronic discovery

How much has email and the storage of records in electronic databases changed the exchange of information between parties to a lawsuit? Typical requests during the discovery phase of a case include such things as asking for the production of documents, depositions of parties and possible witnesses, and the exchange of written questions, or interrogatories. More and more businesses are conducting a greater share of their every day work with the use of computers.

An article on the pages of the Law Library Resource Xchange (llrx.com) called Electronic Discovery - Or, the Byte that Bit does a very good job of discussing some of the issues that you might be faced with if you're an attorney receiving discovery from opposing counsel in an electronic form. Do you have the right hardware and software to read the information? Is it in a format that you can use, and on media that you can read? Will it need to be converted in some manner, and do you have the personnel with the technical skills to help? Is there hidden data, or missing data? The article is very useful, but it's three years old, which is a lifetime in internet years.

Electronic Discovery: A How-to Guide for Litigators is a special feature this month on law.com, and it has a wider scope in its coverage of digitalized discovery than the llrx.com article. For example, in the section on Responding to Electronic Discovery:
Successful electronic discovery response means more than just gathering information reactively; it means maintaining control over information creation and storage in the regular course of business. This mandates a new way of thinking for in-house attorneys, their outside counsel, and corporate IT personnel as electronic discovery preparedness becomes part of the company's business strategy, rather than simply a case-by-case reaction to pending subpoenas or document requests. In this important three-way communication, each party has an important role to play.
Some of the other issues discussed are the potentially staggering costs of retrieving information, methods that can be used to index electronic documents, and a need to possibly review and update discovery rules in this new electronic age. It's worth reading as much for the suggestions it offers as it is for the questions it raises.


 
death penalty cases

A decision this week from the US Supreme Court receiving a great amount of press attention is Atkins v. Virginia, where the Court held that:
We are not persuaded that the execution of mentally retarded criminals will measurably advance the deterrent or the retributive purpose of the death penalty. Construing and applying the Eighth Amendment in the light of our ?evolving standards of decency,? we therefore conclude that such punishment is excessive and that the Constitution ?places a substantive restriction on the State?s power to take the life? of a mentally retarded offender. Ford, 477 U.S., at 405.
The Court, in a footnote, pointed towards the definition of mental retardation adopted by the American Association on Mental Retardation (AAMR). It will be up to the states to determine how exactly to follow the guidelines that definition describes, and there's some concern over how that will be done.

There's some speculation on the pages of Capital Defense Weekly that the decision may open the doors for other challenges to the death penalty, such as its use against juveniles:
The language of the Court's decision, however, is not tightly drawn to just the issue of mental retardation but was very sweeping and seemed to lay down the gauntlet for additional "per se" challenges. Where the Court may lead next, whether it is just to the issue of juvenile executions (diminished capacity & the rarity of such executions) or as far as Texas's Special Questions Procedure ("The practice [ ] has become truly unusual, and it is fair to say that a national consensus has developed against it.") is an issue for brighter minds & another day to contemplate.
The Capital Defense Weekly includes a great amount of information about the law involved with death penalty cases. (Amongst many others, one case that they point towards as a "must read" for litigators interested in using possibly exculpatory DNA evidence is the Mississippi Supreme Court case Brewer v. Mississippi.) Another site that includes news and information on the death penalty from the defense perspective is the Capital Defense Network. An article in the New York Times also considers the impact of the ruling, but from a slightly different vantage.

What impact will this decision have on Delaware? One consideration would be whether or not it would be used in an appeal for anyone currently under a death sentence in the State. The State of Delaware Department of Corrections' web site has a section on the History of the Death Penalty in Delaware and includes a list of defendants currently sentenced to death in Delaware. Whether or not any of them will appeal based upon this ruling is unknown. An article citing the reaction of the region's critics of the death penalty tells us that
Nationwide, the mentally retarded make up 2 percent to 3 percent of the general population, but they comprise 10 percent of the inmates on death row.
Participants in future cases will have to consider the Supreme Court's decision in Atkins and make some decisions as to how the AAMR guidelines will be followed in determining whether a defendant is mentally retarded.

An interesting analysis of Justice Scalia's dissent can be found in Howard Bashman's June 21st entry in How Appealing, and it is definitely worth taking some time to read over his thoughts on the case and the links that he provides.


 
less music on the internet?

The Library of Congress has set broadcasting rates for music web-casters, and both the recording industry and internet stations have admitted to disliking the way that those rates are set. Many web-based stations are concerned that they cannot afford to continue to broadcast. It would be a shame to lose stations like the excellent Live 365. While these rates apply to internet stations, radio stations do not have to pay similar fees.

The Radio and Internet Newsletter suggests that maybe it's time for recording industry representatives and web-based broadcasters to sit down together at a table and work towards a positive solution to this problem -- to enable the smaller stations to continue. I know that I've purchased at least a dozen CDs over the past two months that I heard songs from through an internet station. I don't think I'm the only one listening before buying, and I don't believe I would buy as much music if I didn't get a chance to hear a few songs first.


Thursday, June 20, 2002

 
be kind, please rewind

Sometimes you just have to wonder about the labels that show up on something that you purchase. Like when you buy a bag of peanuts, and it has a warning on the side telling you that it contains nuts. I thought that was the point. The web site Dumb Warnings has compiled many of the instructions, rules, and warnings that you might be surprised to see on products. I especially enjoyed their take on labels on DVDs, from a large video chain, asking that people rewind the DVD after watching:
I asked the manager of my local Blockbuster why that label would be on DVD cases, he told me, "DVDs can be rewinded like VHSes, so please rewind it, if we get a message from the central headquarters of Blockbuster stating otherwise, we will keep those labels on the DVD cases."
Sure they can. That little label they put on videotapes does get me to rewind. Warning labels can keep people from getting harmed. But, they should make sense.(via bOing bOing)


 
spies of the founding fathers

The new international spy museum, opening sometime in July, just made a showcase addition to their list of exhibits by purchasing a letter written by George Washington. In the document, General Washington authorizes a man in New York to set up a network of spies in the region.

This is a departure from the tales we hear of our founding fathers during our studies in grade school. How common were espionage and intrique in those days? I came across another letter online which may have been the one to influence our first president to send the spy museum's newest acquisition.

Two letters don't make a spy ring, but there's reason to believe that there was much more going on behind the scenes then we've been made aware of in our history books. According to an article on the CIA web site called The Founding Fathers of American Intelligence, George Washington, John Jay, and Ben Franklin were quite good at intelligence. Washington's specialty was the gathering of foreign intelligence. John Jay excelled at American counter intelligence. Benjamin Franklin was the master of propaganda and covert actions.

The best of the spies was a man that we may never have known about. It's said that he was the inspiration for James Fenimore Cooper's novel The Spy, even though Cooper never learned the man's name, and based his words on stories relayed to him second hand by John Jay. In 1832, at the age of 82, Enoch Crosby dictated a 12 page deposition to a county clerk in New York while applying for a federal pension. Hidden within the clerk's dry diction and difficult punctuation is the compelling tale of Crosby's life as a spy.

Crosby had made the claim that he was Cooper's Spy, shortly after the novel was published. This article disagrees, and guesses at a couple of other sources for the novel. Regardless, I'm hoping that Washington DC's International Spy Museum will tell us more about some of these revolutionary spies when it opens next month.


 
law library of congress

One of the sections of the Webby Award winning Library of Congress web site that I hadn't visited before tonight was the Law Library of Congress. If I had known what a great resource it was, I would have been singing this site's praises long before now. Their Guide to Law Online is excellent, and I've found a number of Delaware sites that I'm compelled to visit from their Delaware page. They also have a special feature in their gallery called A Century of Lawmaking for a New Nation: US Congressional Documents and Debates 1774-1873. It's the place where you can find out something like "what else happened on July 4th, 1776, during the Constitutional Convention," by looking at the Journal entry for that day.


Wednesday, June 19, 2002

 
public domain images online

gray wolf

The U.S. Fish and Wildlife Service has a searchable gallery of public domain pictures for you to use. There's some really great stuff there. (via metafilter)


 
webby awards

The 2002 Webby Award Winners have been announced. The winners and nominees in the Government and Law category:

Webby Aware winner: Library of Congress http://lcweb.loc.gov/
People's Voice Winner: NASA http://www.nasa.gov

Remaining nominees:

Copyright Website http://www.copyrightwebsite.com
Council on Foreign Relations http://www.cfr.org
U.S. Geological Survey http://www.usgs.gov


 
pdf in the lawyer's office

Ernest Svenson, of Ernie the Attorney has an insightful and instructive article on LLRX.com called Adobe Acrobat for Lawyers, which describes how he uses the program in his daily practice.


 
delaware river and bay authority unveil new travel policy

On the heels of a great amount of criticism in recent weeks, the Authority has adopted new requirements regarding travel that make its members more accountable to the public. Maybe someone needs to start up a river and baywatch site. I'm thinking more like this than this.


 
iolta program to go before the supreme court

The Interest on Lawyers' Trust Accounts (IOLTA) program in Washington State will be reviewed by the U.S. Supreme Court next fall, according to law.com. For those of you who don't know what an IOLTA program is, an explanation. Attorneys are often required to hold on to money that belongs to their clients. Sometimes the amount is large enough so that it can earn interest without the interest being swallowed up by bank fees. That money is held in an account where interest accrues, and can be turned over to the client. Sometimes the amount is fairly small, or will be held for a very short period of time. A page on the Lawyers' Fund for Client Protection of the Bar of Delaware web site tells us this about those funds:
When a client gives you a "nominal" amount of money, or you will be holding a client?s money for a "short period of time," Rule 1.15(g) states that these funds shall be maintained in a "pooled interest-bearing depository account" which is set up so that the interest the account earns will be paid to the IOLTA program administered by the Delaware Bar Foundation.

The idea behind the Delaware Bar Foundation is that attorneys often hold amounts of money for clients that are so small or will be held for such short periods of time that the interest the money could earn for the client if it were held in a separate interest-bearing account for that client would be less than the cost involved in earning or accounting for the interest. However, when these amounts of money are held in a pooled client trust bank account, they collectively can generate substantial interest. The Delaware Bar requires that this aggregate interest, which would otherwise benefit only the bank, is used to ensure that poor Delawarians have access to legal services.
(The rest of the page, Client Trust Accounting for Delaware Attorneys is a great source of information on handling client's money.) The Washington class action is claiming that the interest earned through the IOLTA program still belongs to the clients, and that the use of that money by the government is an unconstitutional taking of property "without just compensation" under the fifth amendment. The law.com article also states that. "According to the American Bar Association, IOLTA programs represent the second-largest funding source of civil legal services in this country."


Tuesday, June 18, 2002

 
volokh on terrorism and the fourth amendment

Eugene Volokh, who teaches constitutional law at UCLA, and writes about law on the Volokh Conspiracy, has written a thought provoking opinion piece for Slate, called Searching for the Enemy, about when requirements of the Fourth Amendment, such as a search warrant and probable cause, are faced off against extraordinary circumstances such as the possible presence of a dirty nuclear bomb.


 
abandoned property

Delaware's fourth largest source of revenue last year was $163 million from abandoned property. In addition to property that gets separated from its owners, who can't be found, there's a fair amount of property that belongs to someone else, but remains on the books of a business such as uncashed paychecks, unredeemed gift certificates, and unclaimed vendor checks. While this type of property no longer belongs to the businesses, they may be the only ones who know about it. Delaware tends to receive a lot of money from businesses that hold abandoned property because of legal rulings that have stated that if a property-owner cannot be found, the money should go to the State of the creditor's last known address. If that can't be determined, or if that State doesn't provide for the escheat process, the property would then go where the business holding the property is incorporated, (see Delaware v. New York, 507 U.S. 490 ).

How is the existence of abandoned property held by businesses uncovered? Delaware often relies upon the amounts being disclosed voluntarily by businesses during the merger and acquistion process:
Companies looking to buy other companies worry that if they don't spot the abandoned items on a seller's books before the states do, they could get hit later with a huge tab, including interest and penalties for not paying up.
For more on unclaimed property, visit the pages of the National Association of Unclaimed Property Administrators.


 
minnesota v. army

In what looks to be a bit of a battle to come, the Minnesota Historic Society is refusing to turn over a Civil War Era flag to the Army's chief of military history, Brig. Gen. John S. Brown. While I understand Virginia wanting their flag back, I sort of admire the North Star State's gumption here.


Sunday, June 16, 2002

 
jazz festival request

This year's Clifford Brown Jazz Festival at Rodney Square in Wilmington starts tomorrow night. There's a slightly different feel to the concerts this year. It's focus will be more on local bands the first few nights, before national acts start taking the stage on Thursday night. There's also more variety in the types of jazz being performed. According to the Wilmington News Journal, one of those national acts has a request to the crowd. John Scofield is a big fan of Clifford Brown.
In fact, Scofield is such a fan that he has an appeal to make to jazz fans in this area: He's trying to find a copy of an album Brown made with Sonny Rollins called "Live at the Beehive."

"It's not on CD, I guess," Scofield said. "Maybe somebody has a copy and can make me a cassette."
Scofield performs on Sunday, so if you have the ability and inclination to share some Clifford Brown music with him, we may see a very happy guitarist take the stage that day. Sunday's show starts at 2:00 pm. Here's the rest of the schedule.


 
licensing in russia

Lord of the Rings bubble gum is now on sale in Russia, joining a number of "properties" that are, or will be featured on products there, including the Simpsons, Marvel Comics, Harry Potter, and many others. The Moscow Times is reporting on official licensing in Russia, in an article called Pushing Wizards and Fighting Pirates.


 
inside the supreme court

While we occasionally hear about the Justices of the U.S. Supreme Court, very little media attention ever focuses upon staff members of the highest federal court. The Associated Press is carrying a feature on a staff attorney within the Court called, Supreme Court's 'death clerk' deals with toughest cases, which provides a glimpse of the inner workings of the Court.


 
on credit cards, wilmington, and debt

A long, but very readable look at the credit card industry in Wilmington, Delaware, from the Style section of the Washington Post, called Just One Word: PLASTIC, Why we owe our souls to Wilmington, Delaware. The descriptions of downtown Wilmington, and places outside of town like the Charcoal Pit are terrific.








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