Monthly Archives: May 2012

How can personality win over a jury?

Marty Dolan, principal at Dolan Law, and his associate Karen Munoz represent victims of wrongful death and personal injury. His column “Law and Wellness” appears in the Chicago Lawyer and her column appears regularly in the Law Bulletin. This week’s blog is written by Karen Munoz.

Trial lawyers among us are probably all familiar with the experience of the difficulties of proceeding with a complex case. There is a lot to keep on top of. There may be a huge volume of evidence on both sides, a lot of witnesses to get through and the tactics of your opponent to consider. When trying to stay in control of all of this, we can get bogged down in the minutiae of our cases and lose sight of the bigger picture. By “the bigger picture,” what I basically mean is the fundamental goal of any civil trial: persuading 12 ordinary people that your client is right and your opponent is wrong.

While attention to detail is obviously crucial as well, this post will focus more on some of the personal elements that can help win the jury over to your side, regardless of the strength or weakness of your case.

1. Show them you’re a normal person during jury selection
Jury selection is a time to make a good impression and one that can be used to connect with the jury on a personal level. Some jurors may have a bad impression of the legal profession. Some may have a view of lawyers as ivory tower academics. Some may think we are cold, mechanical robots. Use jury selection to show them that’s not true.

So, in addition to asking basic questions like what they do for a living or what their hobbies are, go a bit further and get them talking. For example, ask what about their hobbies do they really enjoy and how long they’ve been doing it. If you can come across as a nice, friendly, ordinary person who actually cares about getting to know the jury rather than a machine programmed to eliminate the people who won’t vote in your favor, it may give you an edge over your opposing counsel.

2. Don’t be too aggressive
Too much aggression is a bad thing in nearly all walks of life. This can be particularly true in court when you are trying to persuade 12 strangers of the merits of your client’s case. Most people don’t like having a point of view hammered into them. Thus, most jurors will warm to a calmer, confident attorney who gives the impression of a person simply providing the jury with the information it needs to reach the right result rather than force a decision upon them.

Accomplished lawyers with strong cases and a great mastery of the law and facts can lose cases to attorneys who connect with the jury better. Whether we like it or not, winning over people can be just as important as presenting winning arguments in jury trials.

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‘High profile,’ like beauty, is in the eye of the beholder

Debra Pickett is president of Page 2 Communications (www.page2comm.com).  A former newspaper columnist and television commentator, Pickett offers consulting and training services to law firms and lawyers who deal with the media.  She writes here each week on topics related to law and media.  To learn more, reach her at deb@page2comm.com.

When I say that I work with lawyers handling high profile matters, attorneys often smile a reply, with evident relief, that they don’t deal with those kinds of cases.

And, to be sure, most attorneys – even most litigators – aren’t involved in celebrity murder trials or defending alleged mobsters or securing zillion dollar class action settlements.  Those are the kinds of cases we’ve all traditionally thought of as “high profile” – the stuff from which “Law & Order” episodes are made.  But, in this age of chat boards and blogs and tweets and LinkedIn groups and Facebook friends, issues that once existed outside of public view and comment are now fair game for the focused attention of interested (and highly vocal) folks.

So, while there might not be a correspondent from “Entertainment Tonight” sticking a microphone in your face to talk about it, that environmental issue your client is working on resolving might well be the topic of conversation among activists, neighbors, employees and others.  And those people, who can connect to one another more easily than ever before, via social media, might well be showing up to speak at the next public meeting.  Or sending letters to the editor.  Or picketing the front gate.

Whether it’s a labor matter at a large local employer or a zoning change that requires neighborhood approval, the case you’re handling right now has the potential to become “high profile” very quickly.  We’ve all seen images, videos and remarks that have gone viral: taken out of context and spinning out of control.

Do you have a plan in place to deal with that?  Does your client?

Planning a communication strategy in parallel with your legal strategy is the best way to be prepared for the unexpected.  A few simple steps will have you ready to cope with public attention to your case and help you get your message out to the right audiences.

First, as always, begin by listening.  List the key constituencies that have interest in the matter at hand – is there a union, a neighborhood group or an issue advocate who might have a stake in what’s happening?  Search the Web and social media sites to find where, in cyberspace, those folks are talking to and connecting with each other.  Search for key words and names to see what tweets and posts come up.

Next, assemble a team: you, your client and the resources you both have (in-house or externally) to craft messages and disseminate them to the public.  Marketing, public relations and media relations professionals can all help with these tasks.

Then you can move forward with a plan, based on what’s being said.  Are there facts that need to be corrected?  Are there conversations that need to happen?  Are there groups with opposing views who are being left out of the dialogue?  Put your team to work doing what needs to be done.

Social media can amplify and complicate public responses to legal actions.  But, fortunately, it can also be used to address misconceptions and clear up confusion.  You can make it work for you – and your client, even if you don’t typically deal with those kinds of cases.

Leveraging Your Reputation: Three more tips for when you get tired of blogging

Tom Ciesielka is president of TC Public Relations (www.tcpr.net). Tom has over 25 years of marketing and public relations experience, working with individual lawyers and midsize law firms. He is also a former board member of the Legal Marketing Association in Chicago and has spoken at The Chicago Bar Association’s CLE programs. Reach him at tc@tcpr.net.

A couple of months ago, I gave a few tips about what to do when you’re tired of blogging: interview someone, create a quiz and have a guest blogger. At the end of that blog post, I said that I’d share some more tips in the future, and I’d like to do that now because hopefully you’ve already applied at least one of the tips that I shared before. So here are three more things that you can do that will make you feel more motivated to blog:  

1)      Create a poll. Interact with your audience by creating a poll and then post the results in another blog post. This is a great way to make your blog more interactive, attract new readers and find out what your audience cares about. And it’s fun! Create a poll schedule of once a month and ask questions that are related to legal matters, current events or just favorite places to eat. One site that offers an easy way to create polls is Polldaddy, which is part of the same company that also owns WordPress.

2)      Promote another blogger. One way to increase readers and to spread goodwill in the blogging community is to feature another blogger who has an upcoming event or has posted interesting content. Whether they’ve posted a good article, a pretty photo or a compelling video, add it to your own post with your comments and a link back to their blog, of course.

3)      Post a photo of the week. You might be tired of blogging because you don’t want to write so often. One option that will keep you on schedule and engage your readers is to post a photo of the week. Initially, you can post your own photos, but it’s a better idea to ask readers to submit theirs and assign a weekly or monthly theme to them. For instance, some attorneys have to travel a lot, so ask your readers to submit their favorite photos from their trips. Other photos can be of courthouses or views from attorneys’ offices. You can also choose themes that are not related to work or the legal profession, such as architecture, boats, flowers or anything you can think of. If you end up getting too many submissions, ask your readers to vote on their favorite one and post the one they’ve chosen as the “winner.”

I think if you use at least a couple of the tips I’ve shared, you’ll find that you’re enjoying blogging again and will probably see your network grow.

People v. Kent: Let the little children suffer

Elizabeth Yore was special counsel to Harpo Inc., Oprah Winfrey’s production company. She also served as child protection counsel on a range of matters, including at the Oprah Winfrey Leadership Academy in South Africa. Yore was general counsel of the Illinois Department of Children and Family Services. She served as the general counsel and director of the International Division of the National Center for Missing and Exploited Children in Virginia. She consults on child protection issues with corporations, non profits and international child abuse cases and issues.

“For children are innocent and love justice, while most of us are wicked and naturally prefer mercy.” G.K. Chesterton.

To borrow from Chesterton, innocent children are denied justice in the recent New York Court of Appeals decision of People v. Kent. No. 70, N.Y. Ct. App., May 8, 2012.   Child pornography is the photographic record of the sexual abuse of a child.  It is an outrage that the highest court in New York has decriminalized the act of viewing of child pornography on a computer.

The New York Court of Appeals found that simply viewing child pornography online is not a crime. The court decriminalized the purposeful viewing of child pornography on the Internet absent an affirmative act. One wonders if the justices viewed the gut wrenching graphic evidence of child rape and molestation. If not, would they have rendered a different decision?

Beyond the trauma of actual sexual abuse, children suffer unimaginable shame and pain knowing that a permanent photograph or video of their sexual abuse circulates among millions on the Internet. The child is revictimized each time their photos are viewed on the Internet.  The victimization is memorialized permanently in cyberspace. It can never be retrieved.

The issue for the court was whether evidence proffered at defendant’s trial was legally sufficient to support his convictions. The court must consider, among other issues, the evidentiary significance of “cache files,” or temporary internet files automatically created and stored on a defendant’s hard drive, and defendant’s awareness of the presence of such files.  The court concluded that where the evidence failed to show that defendant had such awareness of the presence of such files, the people have not met their burden of demonstrating defendant’s knowing procurement or possession of those files. The court further concluded that merely viewing Web images of child pornography did not, absent other proof, constitute either possession or procurement within the meaning of the New York Penal Law.  The court upheld the convictions for those child pornography images that were downloaded into files, but not the child sex abuse images residing in his temporary internet files.

The rationale of the court defies logic. The defendant’s computer was flush with over 30,000 downloaded child sex abuse images. Like a typical child pornographer, these photos were stored, categorized and named in folders and subfolders on the defendant’s computer. The defendant was obviously a highly active and skilled purveyor of child pornography. For the court to suggest that since some child pornography photos were not actively downloaded and, hence did not fit the meaning of possession and awareness in the New York Penal Code, is the height of naiveté about the behavior of pedophiles and their collecting behavior.

This case involves your typical child pornography possession criminal case: an educated man (a college professor), with a huge collection of child sex abuse images that were stored in folders, categorized and named.  During the trial, the defendant typically pled the worn-out defenses, such as some stranger must have used his computer and/or he was collecting the child porn for a research project. 

The New York legislature is already drafting a legislative fix to address the devastating consequences of the court’s ruling. Nevertheless, this decision raises the troubling specter of the judiciary dealing with the growing complexity of computer technology coupled with the sophistication and duplicity of Internet child predators.  

Why is trading and possessing child pornography such a vile crime?

These pictures are crime scene photos of child sex abuse. They are violent photos involving younger and younger children, including infants.  The crime is forever enshrined on the Internet as it is sought, traded and viewed millions of times by child predators. The child can never reclaim either his innocence or the image. It is irrelevant to the child victim whether the photo is downloaded or saved. The innocent child victims are further traumatized and violated because their abuse is viewed by a stranger who delights in viewing the pain of the molestation. Tragically, the appellate court legalized the viewing of child rape and gave child predators license to view child molestations.

What are the consequences of decriminalizing the viewing of child pornography photos?

Here’s a window into the dark and disgusting world of child predators: Thanks to the Kent decision, it is now open season for traders of child pornography. The Kent ruling has been sent, forwarded and read by millions of pedophiles and hailed as the long awaited breakthrough.  The pedophile message boards are inundated with gleeful discussions about the wisdom and brilliance of the New York appellate court. Victory is  declared by the child predators and a new deluge of photos of children being raped is flooding the Internet.

 Let’s hope the New York legislature moves quickly to address the court’s dangerous precedent.  In case everyone has forgotten, the children need justice and quickly.

Who Owns Your Tweets?: The big questions – and the big answers – about social media for lawyers

Debra Pickett is president of Page 2 Communications (www.page2comm.com).  A former newspaper columnist and television commentator, Pickett offers consulting and training services to law firms and lawyers who deal with the media.  She writes here each week on topics related to law and media.  To learn more, reach her at deb@page2comm.com.

Twitter gets a bad rap, partly because it’s hard for a lot of people to believe that doing something called “tweeting” could actually be important in any real way.

But Twitter, in addition to being the best way to keep up with your friends’ gripes about slow-moving lines at Starbucks, happens to be a fantastic way to connect with journalists.  For attorneys who are handling high-profile matters or for anyone who is building a reputation as a subject matter expert, Twitter is a great tool for getting out your information to the folks who’ll be most interested in it.  I recommend it, along with LinkedIn, as a gateway to social media marketing for lawyers building their practices.

That recommendation, though, comes with an important caveat: Tweets are public statements, not just messages to certain recipients (“followers”).

There are two big unanswered questions about Twitter and its value (and risks) for attorneys.

First, legally, the issue of who owns your tweets and who can see them, for how long, is not totally settled.  (SocialMediaToday has an analysis of a relevant case here.) 

Second, ethical standards for attorneys’ use of social media are also still similarly very much in flux.  It is certainly conceivable that a tweet promoting your work could be construed as a solicitation for business and could, therefore violate Rule 7.3’s prohibition of direct contact with prospective clients, even if those prospective clients elected to follow you on Twitter. 

With these (and other) questions still lingering, avoiding social media entirely might seem like the prudent course.  But it’s not 2009 out there anymore, folks.  And even if these big questions don’t exactly have settled answers, they can be dealt with.  The two big questions yield two important guidelines:

1.) It’s prudent to assume that tweets are absolutely public and absolutely permanent, even though they don’t feel that way.

2.) If you’re wondering about how to square tweets with the Rules of Professional Conduct, a decent rule of thumb is to think of each tweet as an email message being sent to all your followers and, potentially, on to the public at large.

With these in mind, there’s no reason at all to avoid taking the social media plunge.  Or, at the very least, dip a toe in the social media water: get a Twitter account going and start following @BitterLawyer, @taxgirl and @kevinokeefe for lively and engaging examples of how this stuff is done.

Supreme Court case elicits ‘shenanigans,’ demonstrates need for professionalism

Marty Dolan, principal at Dolan Law, and his associate Karen Munoz represent victims of wrongful death and personal injury. His column “Law and Wellness,” appears in the Chicago Lawyer and her column appears regularly in the Law Bulletin. This week’s blog is written by Karen Munoz.

Filarsky v Delia, a recent Supreme Court case, turned out to be a lot more interesting, not for the facts that are straightforward, but for the shenanigans following the ruling. Essentially, the case issue turned on whether the defendant was entitled to qualified immunity for performing work on a contract basis for a city government.  

The case started when Nicholas B. Delia, an employee of the city of Rialto, Calif., took three weeks off work due to illness. The city subsequently became suspicious of his extended leave and hired a private investigator who observed Delia buying business supplies including fiberglass insulation. Believing Delia to be performing building work on his home, the city hired a private attorney, Steve A. Filarsky, to interview Delia.

Delia admitted to buying the materials but denied using them for work on his home. Filarsky asked Delia to allow fire department officials to enter his home in order to inspect the allegedly unused materials. Delia, on the advice of his attorney, refused so Filarsky ordered him to bring the materials outside for an inspection. Delia brought a section 1983 action against the city, claiming his Fourth and Fourteenth Amendment rights were violated by the order to bring the materials outside.

The issue before the Supreme Court was whether Filarsky was entitled to qualified immunity. The Supreme Court, in a unanimous verdict, answered that question in the affirmative. In reaching that conclusion, the court looked to the leading rationales behind government tort immunity. The focus of Chief Justice John G. Roberts’s opinion was on the allowing the government freedom to perform its public duties to best of its ability with the best available talent and without the deterrent effects and potential distractions of lawsuits.

This is where the story gets bigger and stranger.

After the Supreme Court delivered its verdict, Filarsky sent the plaintiff a letter on his firm’s letterhead.

It read: “Dear Mr. Delia: Congratulations. You are now in the history books! You will be able to read about it for eternity. From hell. Not so sincerely, Steve A. Filarsky.”

Obviously, litigation can be acrimonious sometimes. And there is part of us deep down that might get some satisfaction from sending a bitter letter like that after winning a big case. But we, as lawyers, should know better.  We must be bigger than that. This kind of conduct really serves no purpose. Filarsky’s professional reputation, which I am sure has taken a long time to build, has now been called into question. And for what? A chance to gloat at a defeated opponent? This episode reminded me of how important it is to always treat peers with respect and conduct ourselves with dignity.

Facebook status: Unfriendly

Elizabeth Yore was special counsel to Harpo Inc., Oprah Winfrey’s production company. She also served as child protection counsel on a range of matters, including at the Oprah Winfrey Leadership Academy in South Africa. Yore was general counsel of the Illinois Department of Children and Family Services. She served as the general counsel and director of the International Division of the National Center for Missing and Exploited Children in Virginia. She consults on child protection issues with corporations, non profits and international child abuse cases and issues.

It has become appallingly obvious that our technology has exceeded our humanity. -Albert Einstein

Last week Facebook CEO Mark Zuckerberg arrived in New York for the record $10 billion IPO. The Facebook hype on Wall Street is tempered by an investigative report on WND.com, which uncovered countless child pornography images lurking in plain sight on Facebook.

The investigation found posted Facebook Groups with the following titles: Kidsex Young, Preteen Lesbians, 10-17 Teen Bisexual, PTHC (or preteen hard-core pornography), 12 to 13 Boy Sex, Young Gay Pics and Movie Trade, Gangbanging, Teen Sex, Love Little Kids, Incest Forever, Men or Baby girls, Sex Little Girls and Nude Teens. Even worse, WND.com also found several graphic child pornography photos posted of children being raped and sodomized on Facebook pages.  Child predators, who are users on Facebook, are sharing and trading these illegal photos on the site.

WND.com determined that Facebook is serving as a platform for child predators to post and trade child pornography. Despite PhotoDNA, the highly touted Microsoft filtering software, there is an alarming number of Facebook pages and groups that engage in trading and posting child abuse images. These illegal and vile images evaded the PhotoDNA filter. Not only are the victims in these photos being brutally violated, but each time these photos are traded and shared among pedophiles, the victims are re-victimized. When these photos go viral, the victim’s suffering is magnified exponentially by cyber trading. Tragically, child pornography images are growing more violent and involving younger and younger victims.

Predators search for children, and children are hanging out on Facebook. Twenty million children use Facebook. Users are required to be 13 years of age, although age verification is impossible. Consumer Reports uncovered in their “State of the Net” survey that 7.5 million Facebook users are younger than 13. Even more shocking, five million Facebook users are 10 years old and younger. Millions of Facebook users are at grave psychological harm if they stumble upon and view these violent images.  Even worse, millions of children are also unwittingly at risk to grooming, luring and molestation by these child predator roaming Facebook. Warning parents! This is no Mr. Roger’s neighborhood.

If children are at risk on the platform, the users will migrate elsewhere.

Here is the stark reality: Facebook does not have the resources to quickly intercept all illegal child abuse images, pages or predator groups. The network relies on users to monitor and report illegal content, with the backup of its PhotoDNA filter and other filters. Both approaches are flawed, creating security gaps on the platform and leaving children vulnerable to view, to be lured into and to participate in these groups. Facebook offers a report link so users can report inappropriate, offensive and dangerous content.

Community policing is woefully inadequate in the cyber world, as it is in the real world. While encouraging Facebook users to monitor and report child pornography and other inappropriate content may sound empowering, it’s like asking children to monitor the registered sex offenders in the neighborhood.

Facebook will soon announce the attainment of the quintessential goal of one billion users. However, the lightening speed growth of Facebook is now exposing its fault lines as it struggles to handle the complex world of 901 million users. 

The massive Facebook IPO could raise over $12 billion. Financial experts are calling it the largest global internet offering ever. With the shocking abuses exposed by WND, Facebook needs to commit its new influx of cash to develop technology to ensure a safe social media network for all its users, especially the children.  Let’s be clear, if a neighborhood is not safe because predators roam undetected, and flaunt their illegal activity, then families will move out. People leave in droves, when institutions don’t protect children.

Zuckerberg propounds that  “if we want to have the biggest impact, the best way to do this is to make sure we always focus on the most important problems.”

Mark, it’s time you focus on safety, and children.