New in the Library

Social media as evidence

Social Media as Evidence: Cases, Practice Pointers, and Techniques,by Joshua Briones, Ana Tagvoryan,
Law Practice Division, ABA, March 2013
KF 8947.5 .B75 2013 New Books Cart

The ABA in its advertisement says that the “smoking gun tweet” has replaced the “smoking gun” in evidentiary matters. They further claim, mixing their metaphors, that social media sites, such as Facebook, Twitter, blogs and other social media channels, are “gold mines” of discovery for discrediting witnesses and weakening a company’s litigation position. Despite the mixed metaphors, which really only bothers a small group of us English majors, the ABA is right and this handy little
book (only 109 pages) packs a lot of valuable information. The use of the internet, and social media specifically, is exploding and with it valuable information.

The authors include specific sources for gold mining and uses of those nuggets. Linkedin with its resumes is a good place to catch a witness in a contradictory statement. Linkedin connections provide contacts who might supply you with more insight into your opponents, their witnesses and experts. Social media channels are good sources for researching potential jury members and for monitoring them during trial. The major social media sites, including Facebook and Twitter, are explored for their potential value. In the next step, you will need to assay those nuggets. You must authenticate the data you have obtained from social media and this book will explain how.

The ethical rules and procedures for use and preservation of such evidence are important. Failure to comply can result in serious sanctions. For instance, compliance with litigation holds must include social media data. As for ethics, do you know if you can “friend” a represented adverse party, a judge? These and other other ethical situations are explored.

The book is full of great practice pointers and sample forms to help you draft documents such as litigation hold memos, document preservation notices, and sample interrogatories and document requests.

This is an excellent starting point for learning about the advantages and pitfalls of using social media in litigation.

New Books

New Books Shelf

Neighbor Disputes: Law and Litigation
Baxter, Todd W and Rubin, Kay F., CEB, 2013
KFC 141 .N4 5

This new title from California Education of the Bar (CEB) becomes a very useful tool in this treacherous area of law. When neighbors have problems, the results can be disastrous. While not perfect, mostly because there are no forms, the authors have managed to bring together a compendium of the most common issues between neighbors in one easy to use volume. It also includes some contemporary problems which have not been addressed before like solar and wind energy and home businesses. This is beyond the problems we usually think of: trees, encroachments, easements, fences, obstructed views, water rights, animals and noise, for example. Until now, there has been no good California treatise on these issues. This book solves that problem. Let’s hope in the future the authors and CEB decide to either incorporate sample forms or publish a companion volume with that information. Reviewed by Sheila Corman.

Understanding the Law Series (LexisNexis):
Understanding Property Law

Jonathon G. Sprankling,
2012KF 561 .S67 2012 Self-Help

This series is similar to the West’s Nutshell books in a larger physical format that is easier to read. “Property” here includes real and personal property with chapters covering topics as diverse as “Finders of Personal Property” to “Wild Animals” to “Intellectual Property”. The basics of real property are explained in chapters on the fundamentals of land title, adverse possession, nuisance, transfer at death, trespass, easements, zoning and more. The book also analyzes such cutting edge issues as current takings issues, the new Restatement (Third) of Property (Servitudes),

Understanding Constitutional Law
John B. Attanasio and Joel K. Goldstein, 2012
KF 4550 .Z9 R43 2012 Self-Help

While a foundational source on constitutional law, this guide’s value lies in bringing together analysis of relatively recent cases raising constitutional law issues. Much is made of “new justiciability decisions of the Roberts Court”. Many of the decisions included Involve “hot button” issues such as partial birth abortion, the Second Amendment, homosexuality, the Patriot Act, school desegregation, and religion.

Understanding Disability Law
Mark C. Weber, 2012
KF 480 .W433 2012 Self-Help

Did you know that the largest minority in the United States are people with disabilities? Laws, regulations and cases have increased accordingly along with questions and controversies. For one attempting to learn about or research disability issues, this title is a “compact treatise” which analyzes these as related to disability discrimination in employment, education, public accommodations, by federal, state and local governments, housing, transportation and telecommunications. Constitutional issues of due process, equal protection and the Eighth Amendment arise particularly in cases of mental disabilities. The book discusses other laws as related to controversial and unresolved issues of disability rights, such as who is a person with a disability purposes of federal statutes. This is a useful starting guide to this complex area of the law.

Opposing California Civil Motions

Opposing California Civil Motions

Do you ever have problems finding informationOpposing California Civil Motions on opposition papers, including forms and formatting? Finding them can be problematic. They can be found of course but with some difficulty. Some sources are extremely detailed and just have too much information for the layperson and even for some attorneys. Both the requestor and the librarian’s eyes start to glaze over. (Plus the print is tiny!)*

And finding an opposition form on point is only the beginning. You must also state the grounds for opposition and include Memoranda of Points and Authorities. You must understand the form and contents of the motion.

The Rutter Group comes to the rescue once again. The latest in their excellent Civil Litigation Series is Opposing California Civil Motions: Model Opposition Briefs. Others in the series include California Law and Motion Model Forms, California Law and Motion Authorities, and California Summary Judgment and Related Termination Motions.

Opposing California Civil Motions consists of filled-in sample forms (format, grounds for specific opposition), explanation, practice tips and points and authorities, in an “all in one” source. Chapters cover in detail opposing the following types of motions: General, Preliminary; Summons; Pleadings; Subpoena; Discovery, Continuance and Arbitration.

The chapter on Opposing General Motions includes Opposition to Motions to Extend or Shorten Time and Opposition to Requests for Judicial Notice. The chapter on Opposition to Discovery includes “Inserts – If Seeking Sanctions”.

The very good “How to Use this Book” in the front of the book (which unfortunately many people will not read) includes an Overview, Procedural Motion Tips (citing California Code sections and Court Rules on service and timing etc.), and a Tentative Rulings explanation and information on how to oppose a Tentative Ruling.

Ask the librarians for the Civil Litigation Series title you want. These are kept behind the Reference Desk.

*With all due respect to the venerable California Pleading and Practice and the mighty California Points and Authorities.

New Book: The CalAware Guide to Public Records and Private Information in California

Written as a reference for journalists, government officials, and others seeking access to public records, The CalAware Guide to Public Records and Private Information in California examines the California statutes that permit, limit, or bar public access to records created and maintained by California agencies, courts, and legislative bodies, including those records that contain private or confidential information about individuals. A user-friendly index helps researchers quickly determine if a particular type of record is discussed in the Guide.

The majority of the text concerns the California Public Records Act “CPRA” (Gov. Code § 6250 et seq.), the law governing access to records in the possession of state and local agencies. Although the Act creates a presumption of public access to agency records, requiring an agency to promptly comply with copying and inspection requests, some types of records are explicitly exempt from disclosure. Summarizing applicable statutory provisions and relevant case law, the author identifies the types of agency records that are subject to disclosure, and those that are exempt. Government Code § 6255 affords agencies some discretion to withhold records that contain confidential or sensitive information, articulating a balancing test that weighs public interest in disclosure against the need to preserve individual privacy rights.

The Guide discusses strategies for enforcing access rights if an agency fails to comply with an inspection request. A sample request letter advising the agency of its response obligations is provided. If the requestor believes that the agency is wrongfully withholding records, he or she may bring an action for injunctive or declaratory relief, or seek a writ to compel disclosure. Outcomes of pervious suits brought under CPRA are examined.

Later sections discuss public access to judicial and legislative records. Although there is a presumption of access to both civil and criminal case records, the author explains that some court records may be sealed, available only to the parties involved in the suit, while others are confidential by statute, or available to the public for a limited time period. Access to California legislative records is governed by the Legislative Open Records Act “LORA” (Gov. Code § 9070 et seq.). Under this Act, preliminary drafts, notes, and legislative memoranda are generally exempt from disclosure.

The CalAware Guide to Public Records and Private Information in California is available at Main Library in Oakland for in-library use.

Library Adds New Research Guides

The library has added three new research guides to assist patrons preparing pleadings and motions for Superior Court:

These tri-fold research guides list helpful print and electronic resources in the library and on the Internet for self-represented litigants drafting civil complaints, answers, or motions.

Printing Instructions: Select 2-sided print, flip on short edge. To create the tri-fold brochure, fold in the “Resources for…” page and the “Community Resources” page. When folded correctly, the “Resources for…” page becomes the front cover of the brochure, and the maps of the Main and Branch libraries appear on the back.

Nolo EBSCO Legal Reference Information Center

Nolo EBSCO Legal Reference Information Center provides more than 220 online full text legal reference books and thousands of legal forms, the majority from Nolo, the nation’s oldest provider of legal information for consumers and small businesses including: California specific books and forms, business law, property and real estate, rights and disputes and much more. These books and forms may be searched, printed and e-mailed both from within the library and outside the library. Laptop access is available to Legal Information Reference Center materials and forms within both libraries via WiFi.  Please click on EBSCO Legal Information Reference Center to connect to this database. It  will also soon be available from the public computers’ menu at the Main Library and on a public computer at the Branch Library in Hayward. It is the first database that the Alameda County Law Library is able to offer to its patrons who are not physically within the library.

Trademarks Laid Bare: Is your mark scandalous or immoral?

Why was this mark abandoned? Something to do with the description? See link below.

Trademarks Laid Bare: Marks that may be scandalous or immoral, by Anne Gilson LaLonde and Jerome Gilson, Matthew Bender, 2011                             

The title says it all, that and maybe also the large warning sign on the front cover. The book while humorous is a comprehensive commentary on a complex issue by the former and the current author of Gilson on Trademarks.  To determine if a proposed mark is scandalous or immoral, the federal law in the Trade-Mark Act of 1905 and as carried over to the Lanham Act in section 2(a) applies. The Office of Patent and Trademark has no independent standards for such determinations.  What is considered scandalous or immoral mostly depends on not offending consumer sensibilities. This is not as simple as “I know it when I see it” because even though a word regularly may be seen on the internet, spoken on television or frequently used in everyday verbal communication, the context is not the same as when part of a mark.  For example, the word “cocaine” is not in itself objectionable, as it is commonly used to refer to the drug.  However, when a mark is to be used in combination with soft drinks and energy drinks, the term cannot be considered neutral. On the other hand, a mark may be considered scandalous or immoral no matter what the product.  Scatological words fall into this category.  And don’t look to earlier registered trademarks because the PTO does not consider them of precedential value.

Sexual references and realistic images thereof, slang references and marks that are derogatory to racial and ethnic groups because of the nature of the goods or products represented are almost always determined to be scandalous.  Also, in conjunction with goods and services, references to violence such as in the application for “Baby Al Qaeda” infant t-shirts have been rejected.  The book notes however that the following mark is registered for jewelry and clothing.

                                    AGGRESSIVEKILLERGUN

Other sources the PTO uses to determine evidence of scandalousness include dictionaries, news articles (online and in print), and marketing/ advertising plans.  In the example above, application for the trademark of the word “Cocaine” for energy drinks was denied in part because the applicant’s website offered recipes such as “Cocaine Smash” and “Cocaine Snort” for alcoholic beverages using the product.  Their marketing materials promoted the soft drink, which could be bought easily and inexpensively by teens and children, as “Speed in a Can”, “Cocaine – Instant Rush” and “Liquid Cocaine”.

For an attorney just beginning to practice trademark law or as a practice guide for seasoned attorneys who want to see specific examples, this book would be valuable.

New in the Library:  Call # KF 3180 .L35 2011

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