It took some time, but now the cases are starting to pile-up.  This week's WSJ treats us to a summary of recent "social media" eruptions in the jury trial context.

The basic problem: a jury trial is conducted in accord with the applicable rules of evidence, court rules, and statutes.  When jurors log onto the Internet to obtain additional information [about the parties to the suit, the lawyers, or the judge], or to comment, they are exposed to data and opinion beyond the scope of the applicable rules.  This can and does affect the outcome of a trial.

The case highlighted in the WSJ was a 2010 murder conviction overturned, in part, because a juror ignored the admonishment of the judge, and tweeted the jury's verdict to the public prior to it being read in court.  Now, the defendant will stand trial again this summer.

In other courtrooms, despite explicit instruction from the trial judge that jurors must not discuss the case among themselves until the proofs are complete and they are formally deliberating, jurors have been known to exchange contacts and begin texting one another.

A Florida juror recently spent 3-days in jail for "friending" a defendant on Facebook so he could either get a date with the woman, or get out of jury duty.

A case in the California appellate courts hinges on whether a juror in a case must now disclose his social media activity to defense attorneys in a gang-beating case so the attorneys can determine whether to challenge their client's conviction based on the juror's social media activity.

Judges have a range of options when juror misconduct mars an ongoing trial.  Those options include: punishing the juror for contempt (i.e. jail or a fine); removing the objectionable person from the jury (there is always at least one alternate); and declaring a mistrial and starting the trial over.

The WSJ article cites to a potential test case: the Drew Peterson case in Illinois.  In that case, defense attorney Joel Brodsky is considering ways to prevent jurors from acquiring information about the case outside the courtroom.  One idea under consideration is for the jurors to disclose their IP addresses and social media handles so they can be monitored.  Along these lines, technicians are suggesting the installation of cookies so that if a juror accesses the Internet about the case in any way, the juror's foray is reported to the trial judge.

Can the centuries-old jury trial system withstand such developments?  Is there any effective way to prevent seated jurors from accessing the media about the case to which they have been entrusted?

As litigators, we here at the Law Blogger realize this truly is a "Brave New World".  When you ramp-up for a trial, and focus on the scope of the evidentiary issues in the case, it is very unsettling to think that, with a few points and clicks, a juror can unearth a veritable treasure trove of [inadmissible] information about you, your client, or your case. 

In almost every case, such additional information will sway the juror's opinion and somehow affect the outcome.  Turning a trial into a popularity contest is not a fair way to administer justice.

www.clarkstonlegal.com

info@clarkstonlegal.com

In happier times, the Stratfords, Jude and Jayane, did what an increasing number of marital couples are doing; they froze one of Jayane's eggs that had been fertilized by Jude's sperm; i.e. they cryopreserved an embryo.  When the dust settled in their subsequent St. Clair County divorce proceeding, the now-divorced couple realized they had forgotten to address their frozen embryo in the consent judgment of divorce.

Jude went back to the family court seeking permission to allow an anonymous couple to utilize the single fertilized and frozen egg.  Jayane objected, asserting her desire to donate the embryos for research.

After carefully balancing the respective interests of the parties following an evidentiary hearing, St. Clair County Family Court Judge Elwood Brown concluded that Jude held a "superior interest" in the embryo, and promulgated a thoroughly-researched opinion and order on this ground-breaking topic that has no precedent in Michigan's statutory or common law.

Judge Brown ruled that: "[Father] may provide for the embryo to be donated anonymously by the fertility clinic for the purpose of adoption by another willing couple."  Jayane appealed Brown's ruling to the Michigan Court of Appeals.

The MCOA reversed the family court in an unpublished and thus non-binding per curiam decision, holding that the lower court erred by obligating the fertility clinic, not a party to the Statford divorce, and further held that the family court order was too vague relative to Father's right/duty to donate the fertilized egg to another "willing couple".

The appellate court was particularly troubled by the lack of a contract between the divorced parties and the fertility clinic.  Addressing the family court's creation of duties to a non-party, the MCOA stated:

Aside from the permissive nature of the order, the order imposed upon the clinic several obligations that the clinic may be unwilling to accept or unable to perform.  For example, the record does not indicate whether the clinic is able to make the embryo available for adoption.  Similarly, the record contains nothing to demonstrate that the clinic is willing or able to accept the order’s apparent restriction that the embryo be adopted only by a willing couple.  In addition, the record does not identify who, if anyone, is currently paying for any of the clinic’s costs arising from cryogenic preservation until a “willing couple” is available for adoption.  We are further left to assume from this record that there is preservation in fact, viability, and, non-abandonment of the embryo.  Moreoever, in the event plaintiff opts not to donate the embryo, the record does not indicate whether the clinic is willing or able to continue to preserve the embryo indefinitely.

In so ruling, the MCOA compared the Statford's circumstances with an earlier "zygote" case from 1999, Bohn v Ann Arbor Fertility Clinic, which involved a similar family court "custody" dispute, along with a companion "breach of contract" cause of action.

In each case, the Court of Appeals focused on the agreement, or lack thereof, between the biological donors and the fertility clinic.  In deciding each case, the MCOA emphasized the poor quality of the lower court record relative to upholding the plaintiff's claims or, in the Stratford case, the lower court's rationale.

Nor did the Stratford panel endorse the lower court's "balance of interests test", ruling that such was within the purview of the legislature and not the courts.  We here at the Law Blogger heartily agree.

Stay tuned to see whether either party applies for leave to further appeal or whether there will be additional proceedings in the family court.

Also stay tuned to see whether our state legislature passes legislation to address the proprietary rights of zygotes, oocytes, and other pre-embryonic cells.

www.clarkstonlegal.com

info@clarkstonlegal.com

By now we've all been shocked by how much information the major search engines collect and store about each of us. The reach now extends into our cell phones and possibly even into our contacts.

On March 1st, Google implemented a new, single privacy policy, replacing it's patchwork of more than 50 separate policies spread across its product line and services. In the wake of Google's new privacy policy, the Attorneys General in a majority of states are calling foul.

Speaking for at least 35 state attorneys general, the National Association of Attorneys General complains that the new policy violates consumers' policy by sharing personal information across Google's services without providing an explicit "opt in" or a meaningful "opt out" option.  NAAG sent a letter to Google's Chief Executive Officer, Larry Paige, requesting a sit down.  The NAAG letter states, in part:

Google’s new privacy policy is troubling for a number of reasons. On a fundamental level, the policy appears to invade consumer privacy by automatically sharing personal information consumers input into one Google product with all Google products. Consumers have diverse interests and concerns, and may want the information in their Web History to be kept separate from the information they exchange via Gmail. Likewise, consumers may be comfortable with Google knowing their Search queries but not with it knowing their whereabouts, yet the new privacy policy appears to give them no choice in the matter, further invading their privacy. It rings hollow to call their ability to exit the Google products ecosystem a “choice” in an Internet economy where the clear majority of all Internet users use – and frequently rely on – at least one Google product on a regular basis. 

For its part, Google claims the new policy will be easier for all to understand.  For our part, this Blog adheres to a simple basic principle: when conducting search and post activities on line, we keep in mind that we are creating a searchable and reviewable record.

Everyone seems to know the difference between posting content on sites like Google+ and YouTube and having their deepest darkest searches tracked.  In the former context, the user usually intends for the content to be discovered.  For example, we here at this blog wish our Clarkston Legal video on YouTube had more than 45 views in two years; my son thinks that's lame.

In the latter context, on the other hand, folks are sometimes embarrassed by what pops-up in the form of advertisements that the mighty and all-powerful web spider has determined to be relevant to a particular individual.  Such ads are displayed based on the aggregated content and personal information collected by the service provider.

This chapter just lets us know that privacy law is a fast-growing area of law that will take on increasing significance.  Stay tuned for the flow of developments as the lawsuits start to pile-up.

www.clarkstonlegal.com

info@clarkstonlegal.com

On Friday, I was sure that I was going to spend the entire day in a divorce trial; my first in a quarter century of practice. Didn't happen.

Why? Because trial in divorce rarely makes sense. This case, in Genesee County, had it all: a GAL for the minor children; a joint bankruptcy in the middle of the proceedings; two [failed] mediation sessions; motions from each side, jousting for the entry of temporary support and parenting orders.

The case was positioned for trial because both sides held onto rigid positions on many of the issues important in any divorce proceeding: custody, parenting time, child support, alimony and debt apportionment. My law clerk, a third year student at Wayne State, prepared an excellent trial brief; she had compiled a trial notebook, and we were prepared and ready to go.

As the case was the oldest on Judge Kay Behm's docket [18-months], I knew it was going to resolve one way or another.

The case did resolve, after 8-hours in the courtroom, because each of the parents made common-sense, strategic compromises. In the end, the parents each looked past their own personal wounds, and their self-centered agendas, and took into account the best interests of their minor children.

Don't get me wrong, I would rather conduct a trial than spend the entire day as I did Friday, painstakingly going over, discussing, negotiating, and resolving every aspect of a failed marriage and the flotsam that goes along with it. But as a divorce lawyer, I keep the best interests of the client in mind. Trial almost never makes sense.

So it may be that when I finally retire, I will have never conducted a divorce trial. Actually, that is a client-service goal of mine.

http://www.clarkstonlegal.com/

info@clarkstonlegal.com

Say it ain't so.  RadioShack may have hacked.

In an interesting privacy rights law suit being prosecuted right here in Detroit, in the U.S. District Court for the Eastern District of Michigan, Radio Shack just lost its motion for Rule 12b(6) summary judgment. 
The case, pending before Judge Victoria Roberts, now heads to trial.

The claim is that a RadioShack customer purchased a new cell phone and had his data transferred at a RadioShack store; the old phone was to be recycled.  A RadioShack employee allegedly accessed the images on the customer's old phone, saw some apparently objectionable pics from the customer taken at his place of employment, and in a "Big Brother"-like maneuver, sent the pics to the customer's employer.

The customer was fired and he is now suing RadioShack for violating his right to privacy and for breach of RadioShack's own cell phone disposal privacy policy.

Noting that very little discovery has been conducted in the case, chastizing RadioShack's counsel for raising two seminal "sufficiency-of-the-pleadings" cases in a reply brief, and intimating that questions of fact for a jury may exist, the Court denied RadioShack's motion for summary judgment.  The complete order is here.

One of the fact questions spotted by Judge Roberts was the scope of the consent the customer may have given to the store in accessing his images on his old cell phone. 

Imagine going into a RadioShack outlet to simply transfer your cell phone data [i.e. your digital life as you know it] to a new phone, and you wind-up getting fired because some entry level employee decides to police the content of your data, and forward selected portions of that data to your employer.  My guess is that this case will probably settle, and confidentially. 

In my humble yet professional opinion, RadioShack has some significant exposure on this claim.  At least they would if I was on the jury.

If you think your right to privacy has been compromised on-line and would like a free consultation to assess your potential claim, contact our law firm.

http://www.waterfordlegal.com/

info@waterfordlegal.com

With Lynn Krauss, President
Midland County Bar Association

Over the past several years, I have had the opportunity to address various bar organizations and industry groups on the topics of marketing and legal issues emerging within the social media context.  Lately, my bookings for such presentations have increased.

Lawyers now want to know how to market their wares electronically, and how to avoid the pitfalls.



Yesterday, I presented to the Midland County Bar Association.  They hold their monthly meetings in the spacious, and just-built, clubhouse at the Midland Country Club.

As bar association meetings go, it was a well-attended event.  The MCBA's Treasurer, Eric Larsen, attributed this to the topic he arranged: social medial marketing for lawyers.  Of the nearly 40 attendees, there was an even mix of general practitioners and Dow corporate attorneys.

The discussion focused on how to stay abreast of the constant wave of information; how to manage that information; and how to disseminate select portions of that information for a lawyer's prospects.  Hyper-local marketing was explained.  Tips were imparted on how to rise above the ever-present clutter that always seems to accompany search engine results.

The message in Midland was consistent with my other presentations: to get noticed on the Internet [i.e. Google, Yahoo, YouTube], lawyers marketing on the web need to frequently post relevant content that your target audience will find useful.

Now doing that, while managing a law firm, and actually practicing law, that is the challenge for the modern general practitioner.  More and more, lawyers and catching on to the social media wave.  For many, the good ole "yellow pages" ad is a distant memory.

Upcoming presentations on these topics will include a webinar sponsored by Thompson-West on Thursday, 02/23/2012, at 11:00 am EST.  Also, I will be on a panel of other practicing attorneys at the "Avvocating 2012" seminar in Seattle, WA in May.

Stay tuned as this is an ever-evolving topic.

www.clarkstonlegal.com

info@clarkstonlegal.com

Narcissus admires his reflection.

In my decades of divorce practice, I've encountered folks who, if a psychological evaluation was completed, would be characterized as having narcissistic personality disorder.  A few of these peeps have been clients; others have been on the opposing side.

Either way, everyone involved is in for a rough ride.

Over the past several years, "narcissism" has also taken on a connotation-du-jour.  The diagnosis being made by dime-store psychologists (i.e. parties to family court litigation) whenever the object takes an opposing or contrary view. 

What is narcissim, really?

According to the Mayo Clinic, narcissistic personality disorder is "characterized by dramatic, emotional behavior, which is in the same category as antisocial and borderline personality disorders."   A person with this personality disorder may exhibit some of the following characteristics, according to the Clinic:

• Believing you are better than others;
• Fantasizing about your success, power and attractiveness;
• Exaggerating your achievements or talents;
• Expecting constant praise and admiration;
• Ignoring other's feelings and emotions;
• Believing and acting like you are really, really special;
• Taking advantage of others;
• Expecting others to go along with your often super-sized schemes and plans;
• Exhibiting jealousy toward others;
• Believing others are jealous of you;
• Unable to maintain healthy inter-personal relationships;
• Easily hurt or rejected;
• Fragile self-esteem

If you know someone with more than a few of these traits, run.  If you are married to such a person, get ready for the inevitable divorce proceeding when you finally throw in the towel, realizing that your spouse will never change. 

If you are a lawyer representing such a person, affix your chin strap and bring a lunch.

In the divorce context, the narcissist fares quite poorly.  The above-listed features of this personality disorder are routinely identifed and rigorously addressed by family court professionals. 

In this process, the personality flaws of the narcissist are forced itno the lab for a full-on forensic evaluation.  Many of the tools in the family court professional's arsenal will be brought to bear upon the conduct of the narcissist in an effort to force short-term modification, and to achieve a stable platform.

Some red flags that I've gleaned over the years: a narcissist will change lawyers often, blaming the status of the case on the mistakes of prior legal counsel.  Also, the register of actions in the case of a narcissist will often be a mile long, peppered with hearings, motions, and more hearings.

When a narcissist is embroiled in a divorce proceeding, the children are used as pawns.  Any input from the Friend of the Court [either via a referee, family counselor, or social worker] or from a therapist, is rejected; the narcissistic parent must be dragged to court, kicking, screaming and cursing.

In the years leading up to such a divorce, the other spouse will often report being chronically verbally abused and bullied by the narcissist.  In fact, this dynamic will set the initial tone of the proceeding.

The process will next feature a series of attempts, which will take some time, where the professionals try to arrest the insidious and pervasive conduct of the narcissist.  Arrest, but not change; this person will not change.

The other spouse many times will exhibit classic signs of emotional abuse during this painful process: low self-esteem, exhaustion, a desire to give up or give in.  This person needs a strong focused divorce lawyer.

And counseling. 

During the divorce process, the other spouse is well advised to minimize the face-to-face contacts with the narcissist.  If children are involved, then communicate through emails and texts. 

If you feel threatened at home or during parenting exchanges, seek exclusive use of the marital home.  If you are separated, use a neutral transition point for the parenting exchanges; most family court judges will grant such a request simply to err on the side of everyone's safety.

Finally, stay focused on the process knowing that the process will eventually come to an end.  The Michigan Supreme Court has mandated that county family courts conclude divorce proceedings within a year.

http://www.clarkstonlegal.com/

info@clarkstonlegal.com