Nashville Lawyer Blog

Today, technology is an essential part of how lawyers and business professionals operate. Lawyers are familiar with discovery and the requirements set forth by the courts for complying with discovery demands. Likewise, they also understand that they are only required to provide the documents and data set out in the discovery demand. However, if you are providing electronic versions of your documents you may in fact be unintentionally supplying more information than you realize.

Similarly, it is common practice for lawyers to circulate proposed documents around the office via e-mail, as people add comments or suggestions. Eventually, the comments are removed from the final document and expected to remain within the privacy of the office. This is not so, however, as the right tools can be used to reveal document revisions and comments. This is due to the extensiveness of metadata that is integrated into a digital document or other computer generated files.

Metadata is "data about data" that is not evident when viewing a digital file. For example, standard data would include the number of words typed or the date it was last edited. Metadata on the other hand, can reveal significantly more information about a document, including but not limited to:

• who worked on the document


• the name of the company / organization that created or worked on it


• the name of the network server or hard disk where the document was saved


• prior versions of the document


• recent revisions/ highlighted changes ("Track Changes" or "Fast Saves")


• hidden text or cells


• personalized views


• hyperlinks


• graphics


• non-visible portions of embedded OLE objects


• comments inserted in the document during the drafting and editing.

The purpose of metadata is to add functionality to the editing, viewing, filing, and retrieving capabilities of a program. In addition, metadata is used to substantiate core authenticity functions, which case law has mandated is necessary for outputs to be admitted into a legal proceeding. Unfortunately, it is possible for some or even all of this information to be passed on to an inappropriate party (opposing counsel), thus creating adverse consequences for you and your client. Furthermore, lawyers have a duty to protect the information and evidence they have related to their clients' cases. Lawyers who attempt to conceal or erase metadata must exercise extreme caution, as the destruction/concealment of evidence is an ethical violation. Likewise, liability exists for lawyers who mine (to look for changes or discover information the other side intended to keep confidential) electronic documents, especially when the electronic document is not a discovery item. Therefore, as part of a lawyer's required competence, it is essential for them to understand the facts and effects of metadata.

Consequently, it is likely the courts will be addressing the various issues surrounding metadata, such as its definition, the mining of it, and how such data can be deconstructed. This will result from the implementation of new digital methods, such as federal and state tax e-filings, electronic medical records (EMRs), and other general sharing of digital data. Currently, there are steps that can be taken to reduce the transmission of damaging metadata, including:

• Disabling the "Track Changes" and "Fast Saves" functions in Microsoft Word


• Use IT tools such as Payne Metadata Assistant, Workshare, iScrub and others, to strip out the metadata from Microsoft Word, Excel, PowerPoint, PDF documents and digital photos.


• Never use "Track Changes," for it is better to use other document comparison technologies that show text changes in PDF or RTF formats. (Note: PDF documents carry their own metadata, including Keywords, Author, Title, and Subject.)


• Convert soft copy files into Adobe PDF documents because these don't contain metadata


• Strip out metadata from all incoming e-mailed Microsoft Word, Excel PowerPoint and PDF documents, as well as digital photos, before opening them, so that you do not unfairly learn anything that you ought not to learn.

While it remains to be seen how this emerging issue will develop in response to future legal opinions and analysis, the best approach for the time being is for lawyers to develop sound internal practices to keep metadata from "escaping" in the first place. Such practices will not only uphold the professional and ethical reputation of lawyers, but will also ensure fairness and integrity in the practice of law.

Sources:
Metadata, Law, and the Real World

Metadata and Issues Relating to the Form of Production

Find and remove metadata (hidden information) in your legal documents

Metadata - What Is It and What Are My Ethical Duties?

The DNA of a document - Legal ramifications of 'Metadata' to be discussed at April seminar

Critical Computer Skills Every Attorney Should Know - Understanding Metadata

Posted By: Eston Vance Whiteside

Recent court decisions emphasize a growing trend in the acceptance of the notion that battered partners can use force to defend themselves and even kill their abusers. This domestic violence concept, referred to as "battered woman syndrome," is based on the abusive and occasionally life threatening situations in which partners can find themselves. Such violent situations cause them to firmly believe that killing their partner is the only way to ensure their survival. This concept has been controversial however, as neither the DSM nor the ICD medical classification guides include battered woman's syndrome as a condition severe enough to excuse alleged offenders.

The latest judicial decision evidencing such a broad understanding of domestic violence was the Tennessee Board of Probation and Parole's decision to release Gaile Owens, 58. Owens received the death penalty for being an accessory to the first-degree murder of her husband, Ron Owens, in 1984. Owens contracted with a man named Sidney Porterfield to kill her husband while she and her two sons were away. Porterfield beat Ron Owens to death with a tire iron in the couple's home, and also received the death penalty. However, testimony of sexual assaults and physical abuse suffered by Gaile at the hands of her husband Ron led Tennessee Governor, Phil Bredesen, to believe Gaile could have been suffering from "battered woman syndrome." Therefore, Bredesen abandoned Gaile's sentence of death by lethal injection and arranged for her to be released on the condition she would regularly report to a parole officer in Nashville.

While the courts were originally hostile to this "defense," battered woman syndrome (BWS) has now gained widespread acceptance not only as a mitigating circumstance, but even as a complete defense in some circumstances. Christopher Slobogin, a law and psychiatry professor at Vanderbilt University, gave some explanations for this change in judicial opinion. One element of BWS is "learned helplessness," where the victim of domestic abuse believe they are powerless and don't try to remove themselves from abusive and dangerous relationships. In addition, the number of social services, such as crisis hotlines and domestic violence shelters, has grown rapidly over the last 20 years. This increase in support coupled with the learned helplessness characteristic of BWS has persuaded courts to accede BWS as a "legitimate source of mitigation of punishment."

Although BWS is not a legal defense, it can be used as a method of defending a woman accused of a crime. Likewise, BWS may legally constitute self-defense, provocation, insanity (according to the M'Naghten Rules), and diminished capacity. BWS helps a jury understand the woman's motive for murdering her abuser, which from her perspective was self-defense. David Raybin, a Nashville attorney with Hollins, Raybin, and Weissman, discussed this tactic in one of his recent articles, stating that BWS works and can be used to support duress not only in homicide cases, but in any case where the woman claims she committed a criminal act because she was forced to do so by her boyfriend/spouse. Furthermore, since the courts have found battered woman have a self-defense right when killing in a non-beating situation, many have become hopeful that the steps being adopted by the courts will help end violence against women once and for all.

Sources:
Court attitudes shift to accept use of battered woman defense

Battered Woman's Syndrome: Trial Tactics

Tennessee woman released after 25 years on death row

Posted By: Eston Vance Whiteside

Anyone who watches police or detective television shows is familiar with a person's Miranda rights. "You have the right to remain silent, anything you say can and will be used against you in a court of law. You have the right to an attorney, if you cannot afford one, one will be appointed to you." However, a recent proposal under the consideration of the Tennessee Supreme Court could negatively impact the fundamental right to counsel in a criminal case. In an attempt to cut costs, the Tennessee Administrative Office of the Court has proposed a new system of payment for attorneys representing underprivileged defendants. The current structure calculates an attorney's compensation by an hourly rate with a cap on total payment. However, in complex cases requiring significant amounts of time, the cap can pose a potential problem.

The proposed system eliminates the time factor and seeks to establish a flat-fee contract, awardable to the attorney who is the lowest bidder. Therefore, the issue of an attorney's time and effort becomes moot, as an attorney's compensation would be a lump sum derived purely from the number of cases handled. In speaking with the Tennessean, state courts spokeswoman Laura Click stated that the bidding system would only be used in two types of cases: contempt proceedings for the nonpayment of child support and proceedings involving the involuntary commitment of a person to a mental health institution. Conversely, AOC general counsel David Haines expressed the possibility that the system could be expanded to include other types of cases, such as criminal defense.

Critics of the new system worry that it could result in lower quality representation by creating a race to the bottom. Under the proposal, attorneys are only allowed to bid down, as they would be restricted from receiving more compensation than under the current system. Likewise, the system fails to establish the minimum experience and workload a lawyer must possess to participate in bidding. Moreover, since lawyers are would no longer be compensated for their time there is less of an incentive for quality representation, in addition to the possibility of clients being pressured to plead guilty more often. The potential for decrease in the quality of representation makes it likely that spending would actually increase as lengthy appeals and retrials would become necessary to correct attorney mistakes. "While it is important to conserve resources in the difficult budgetary times, savings should not come at the expense of the Constitution," Virginia Sloan, president of the Washington-based Constitution Project.

Sources:
TN court proposal endangers right to counsel

Tenn. Proposal Would Give Some Indigent Defense Work to Low-Bidding Lawyers

Tennessee Proposes Controversial Method For Providing Indigent Legal Services

Tenn. Supreme Court considers bidding system

Posted By: Eston Vance Whiteside

Handwriting analysis, also known as graphology, is the study of handwriting to determine a person's personality. Graphologists study script characteristics such as pressure, continuity, letter proportions, the length and angle of strokes, and the slope of the writing to create a profile of the writer. The use graphology is estimated to be used by 70% of companies in France during the hiring process and has become more common in the U.S. in recent years. The rise in the usage of graphology in the U.S. can be partially attributed to the passage of the Employee Polygraph Protection Act of 1988 ("EPPA"). The EPPA prohibits private employers from submitting future or current employees to lie detector tests. This has led employers to turn to other methods to assess the characteristics of an individual's personality.

However, many groups, such as the American Civil Liberties Union, scientists and scholars consider graphology to be a pseudoscience with little reliability and compare it to practices like palm reading or astrology. It should be noted that this form of handwriting analysis is separate from forensic science, where writing is studied to determine the authenticity of documents or to connect a handwriting sample to a crime suspect by examining the materials used and comparing previous writing samples. In neither of these instances are any predictions made concerning the writer's psychological profile.

Inadequate testing and dependability concerns have been the basis of arguments by groups against the use of graphology in employment decisions. Likewise, many fear that such opposition may result in successful claims against employers who use handwriting analysis. Possible causes of action include defamation, invasion of privacy, and discrimination under fair employment practice statutes or the Americans with Disabilities Act. In the U.S., testimony based on graphology is usually inadmissible, as courts have routinely expressed uncertainty in its accuracy. Similarly, despite the notion that handwriting analysis can be useful in preventing negligent hiring claims, it is typically unhelpful as the majority of hiring suits are linked to employee violence, which a graphological study is not designed to predict.

Furthermore, the Supreme Court's holding in Daubert v. Merrell Dow Pharmaceuticals (1993) created the Daubert standard. Under this standard, federal judges must consider if a practice has been tested, whether it has been subject to peer review, as well as its purpose and accuracy. Moreover, handwriting analysts are held to the same professional standard as a psychologist or psychiatrist, which often requires them to prove the scientific validity of their work. Graphologists are frequently unable to do so due to the inherent difficulty in proving the consistency and reliability of such a prediction. Comparably, in United States v. Salee (2001), a federal court concluded graphology to be lacking in merit and completely subjective.

In Tennessee, Rule 702 of the Tennessee Rules of Evidence regarding expert testimony is different from the federal rule. Although, each allow properly qualified forensic document examiners to testify in regards to subtle differences or similarities in writings and consider conclusions about the writer's personality to be unfounded. The federal rule holds that the scientific, technical, or specialized knowledge must "assist" the trier of fact, whereas the stricter Tennessee rule requires an expert to "substantially assist." However, because state courts often use the same factors as federal courts during their evaluations and because handwriting analysis has historically been accepted in Tennessee, there is a predisposition to allow it. Consequently, it is important to investigate recent judicial decisions, as well as the training and professional affiliations of a handwriting expert if one must be retained. It should also be expected that any testimony by a handwriting expert to be limited to the comparison of the similarities and differences between several writings.

Sources
The Legal Implications of Graphology

World of Forensic Science

Is Your Handwriting Expert's Testimony Admissible?

Is Handwriting Analysis Legit Science?

Tennessee Rules of Evidence

Posted By: Eston Vance Whiteside

Oftentimes, the success of a case can be greatly influenced by an attorney's approach to jury selection. Likewise, the aspect that an attorney is in the most control over during this process is the construction and justification of cause challenges. A challenge for cause is a request by an attorney that a certain juror be dismissed because they cannot be impartial, fair, or competent to serve. A cause challenge must be supported by an explicit reason, such as a relationship with a party to the case, an obvious bias, or an inability to serve. Successful cause challenges can decrease the likelihood of jury misconduct, which can be detrimental to a case. To do this, attorneys must be capable of keeping jurors relaxed and at ease during examination, so they will feel more comfortable admitting any prejudices they may have.

Many attorneys who are proficient at producing challenges for cause use similar techniques. For instance, skilled attorneys remain non-judgmental in the behavior and questioning when interviewing jurors. It is unlikely a juror will admit their true opinion on a controversial issue if they feel people will be critical of them. A juror must feel their views are acceptable and legitimate, regardless of your own opinion. Moreover, a juror is also more likely to voice their opinion if they hear another juror voice a similar one first.

Next, an attorney must determine if a juror can remain fair and impartial despite any potential bias they may have. However, most people will never admit being unable to be fair and impartial because they like to view themselves as good, impartial, logical people. Therefore, skilled attorneys will begin by agreeing that they believe a juror will do their best to remain fair and objective, before following up by questioning if despite their best efforts, they may have difficulty in abandoning their feelings.

Additionally, it is equally important that an attorney shield their jurors who are more open about their opinions from a challenge for cause by the opposing side. An effective way to do this is by creating an opportunity for a juror to promise to set their ideals and opinions aside and only consider the facts of a case. It is acceptable for a juror be suspicious that the law has been broken, but it is important that they can promise not to assume so in the absence of any supporting evidence.

However, the most difficult element of this process comes at the end, getting the judge to consent. There are no set factors used to decide if a challenge for cause is legitimate and no two judges weigh the same factors equally. Sometimes the most obvious cause challenges are declined and this aspect is heavily influenced by what judge is hearing your case. Nonetheless, jury selection remains a factor with the potential to make or break an attorney's case. Likewise, a proficient, knowledgeable approach to the selection process can significantly increase the probability that a case is decided by the most competent jurors possible.

Sources
Building and Defending Cause Challenges

Posted By: Eston Vance Whiteside

David and Ben Raybin authored an article that was recently published in the Tennessee Bar Journal on this topic. Such article highlights the many concerns that attorneys should have about their client having a facebook, my space, twitter, etc. account. Individuals tend to post significant personal information on their social media accounts, which can be accessed by investigators, prosecutors, opposing attorneys, and the other party, etc.

To read the full Tennessee Bar Journal Article Click HERE

LEGAL FACTS ABOUT THE NASHVILLE, TENNESSEE FLOOD OF 2010
Now that the flood waters are receding, we as Tennesseans have to start dealing with the aftermath of the greatest natural disaster to ever hit Middle Tennessee. As we assess the damage, we are encountering problems from places we never even considered- our insurance companies.

Many Tennesseans, being forced to confront dramatic life-altering events, are trying to pick up the pieces. Unfortunately, a large number of people are contacting their insurance companies, only to find they are not covered for water damage caused by the storm. A great many homeowners wrongly thought they were protected, only to find their insurance agent neglected to sell them the proper and necessary insurance.

What are you going to do if you are not covered from water damage? Did your insurance agent fail to tell you about flood insurance? Did he or she explain the difference between damage from flood waters and damage from surface water? Did he or she tell you that you could have been protected from the storm? If he did not, and you are damaged as a result, you may have recourse in court.

Continue reading "Did your Insurance agents do all they could to get you flood insurance before the Nashville flood?" »

5 things you should know if someone takes out an Order of Protection against you in Davidson County (Nashvlle, Tennessee)?

1. Do not have any direct contact with the person that took out the order of protection against you. Do not call them, do not email them, do not text message, do not send flowers etc. Do not have any contact whatsoever. Any direct contact will lead to you being arrested and potentially convicted and jailed for a violation of an order of protection.
2. Don't have any indirect contact with them. Don't call their mom to talk about it, don't call their best friend, don't get your friend to call the alleged victim to ask them to drop it, don't post a facebook status update that they might read.
3. Do defend yourself. You need an attorney to best defend yourself. Every day individuals justifiably seek and obtain orders of protection against their abusers. However, there are many people that unfortunately use orders of protections to gain an upper hand in a divorce, child custody matter, or just to have control over the other person that are not justified. Courts are often inclined to grant orders of protection due to the fear that if they deny the request and the victim is legitimately in danger in the future that the court will be blamed for failing to issue the order of protection. If you truly did not abuse the victim or threaten danger, you need an attorney that can help prove to the court that yours is the type of case where the victim is abusing the system and to show that you are not an abuser.
4. Don't trust anyone. Rest assured that if a person has already gone to court once to exaggerate or fabricate things about you that enabled them to get an order of protection against you that they are just as likely to call the police to fabricate a violation of an order of protection and that would put you in jail. You need to defend yourself now. If you do not defend yourself now, then the court will likely grant the order of protection and for the next year you would be subject to going to jail at the direction of the alleged victim for any alleged contact.
5. Protect your right to bear arms. If the order of protection is granted you will lose your right to possess a firearm for the duration of the order of protection, which is one year but can be extended beyond that.

Should you have any questions about this article, or any other legal matters, please call Vince Wyatt at 615-256-6666.