Law Tips: Expert Input on Estate Planning for Digital Assets – With Forms!

It’s my pleasure to share with you a timely pointer from John O’Drobinak, ICLEF Estate Planning faculty member. Mr. O’Drobinak reminds fellow practitioners of the importance of assisting clients with a plan for their digital assets. Getting to the heart of the matter, he’s also providing the forms he uses in his practice.

Digital assets are becoming commonplace in estates and trusts. The fiduciaries charged with the valuation and access to the Decedent’s assets now face a new challenge. This challenge is not one traditionally encountered.

Digital assets consist of information that is electronically stored or accessed on an electronic device. It can be stored on hardware or in online accounts. This could be for social networking and media sites, blogs, cloud storage, banking services, and investment services. Even if the fiduciary knows that these are digital assets, accessing them may still be a problem.

The only way to insure against this is for the Decedent to prepare a list of digital assets and passwords. Needless to say, this must remain confidential, and needs to be updated from time to time.

To access the forms that Jack utilizes to insure his clients digital assets are handled per their wishes and efficiently click here: Confidential Record of Digital Assets-Passwords

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Gather more beneficial pointers from our expert panel during the 120 Hot Tips in Estate, Trust and Probate Practice CLE. This program is available on our Video Replay calendar or as an On Demand CLE option.

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About our Law Tips faculty participants:
John M. O’Drobinak, O’Drobinak & Nowaczyk, P.C., Schererville, IN
Mr. O’Drobinak has practiced law in Lake County, Indiana, since 1960. He graduated cum laude from the University of Notre Dame in 1957 and received his Juris Doctor Degree from Indiana University in 1960. An attorney with a broad range of experience, Jack’s areas of concentration include estate planning, guardianships, trusts and probate. A widely sought speaker and seminar leader, Mr. O’Drobinak frequently makes presentations in the fields of estate planning, probate and pre-disability planning

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Law Tips: Trying Cases in a World of Media Overload: Adapting to the Audience’s Expectations

Welcome back to our Law Tips discussion by Tony Paganelli on issues a trial lawyer can encounter in today’s world of media overload. Last week Tony provided pointers on preparing your client for the litigation process. (If you missed that article, it’s below.) In this week’s blog he takes the case to the judge and jury. Mr. Paganelli believes that even though TV and movies create an image removed from real life litigation, there are ways a trial lawyer can adapt successfully in the courtroom. I’m pleased to provide to our Law Tips readers his insights on adapting to the audience’s expectations:

Although a lawyer can (hopefully) communicate in advance with a client in such a way as to condition him or her to understand that lawsuits in real life are far removed from what they see in the movies or on TV, a lawyer has no such opportunity with a judge or jury. To a large extent, a lawyer must adapt to meet those expectations as much as possible in hopes of winning a case. Put simply, Johnnie Cochran and the cast of CSI have ruined it for the rest of us. Fortunately, there are many ways to create a polished and sophisticated impression without breaking the bank or distracting from the message that you want to convey on your client’s behalf. The two main areas where these issues come into play are courtroom visuals and “theatrical” performances of counsel.

First, lawyers must decide whether theirs is a case that lends itself well to multimedia presentations, and whether their judge and courtroom are good candidates for such presentations. If the answers to these questions are “yes,” then it is worth considering using these tools to enhance a courtroom performance.

While certain courtroom animations and computerized visual effects can be cost-prohibitive for many lawyers, and in addition to being complicated to use in a courtroom and temperamental to the point of being unreliable, recent advances in technology have made impressive-looking presentations both easier to use and less expensive than in the recent past. In fact, Microsoft PowerPoint, that staple of meetings and conferences, is both powerful and flexible enough to allow lawyers to quickly and easily create impressive visuals to use in a courtroom, either to project and emphasize exhibits, or to emphasize key points made in oral arguments. Most lawyers already own the software as part of the Microsoft Office suite that they use daily as they run Word, Excel, and Outlook. The hardware is almost equally accessible. Most lawyers either have or can borrow a laptop computer. Similarly, most law firms have a projector and screen and, if not, they can be rented inexpensively or purchased in many cases for a onetime investment of less than $1,000.00. Several books are available to help. Lawyers use these tools to create polished and impressive (and persuasive) visuals, including Cliff Atkinson’s Beyond Bullet Points, Jerry Weissman’s Presenting to Win, Christopher Ritter’s Creating Winning Trial Strategies and Graphics, and Slide:ology by Nancy Duarte.

In the area of courtroom demeanor, the solution is equally achievable. Contrary to popular belief, judges and juries do not expect (or want) lawyers to be blow hards or bullies. Rather, studies show that jurors sympathize with witnesses who are badgered and are put off by arrogant and pretentious trial lawyers. What they want you to show, however, is sincere passion for your client’s case and poised, polished presentation. Standing at counsel table and reading your examination questions or your closing argument in a monotone from your legal pad places you in a stark (and unfavorable) contrast from the actors and actresses they see going through the same motions in the movies, and from the celebrity lawyers whose cases are covered on the news.

Even in an era where jurors have seen hundreds of fictional closing arguments and cross-examinations, their expectations of how a lawyer should act in a courtroom will be met by a well-dressed and groomed (but not flashy) lawyer who appears prepared, organized, and confident, who advocates passionately and confidently (but not obnoxiously) for his or her client’s cause.

Here, like in most aspects of litigation, there is no substitute for simple preparation. A well-prepared lawyer will naturally be confident-and therefore appear confident-as he or she presents a client’s case. Argue with passion and conviction, but don’t pound the table theatrically or turn on the crocodile tears. You won’t be perceived as a movie star, but rather as a bad actor. Put another way, don’t bury your emotions-they can be a powerful tool for communicating your client’s message. But at the same time, don’t manufacture emotions because you think that’s what your audience wants to see. That insincerity will backfire every time.

Movie stars and famous lawyers with unlimited budgets have certainly made it harder for the rest of us to look good in comparison. But with some planning it’s still possible to manage your client’s expectations of what a lawsuit looks like and how a trial lawyer acts so that you won’t fall short in your client’s eyes when your case takes longer than 44 minutes (not counting commercials) to get from first meeting to trial. At the same time, with just a little work you can put on a case that’s (almost) worthy of a Hollywood production without compromising your client’s interests or blowing your litigation budget.

Break a leg!

I want to express our appreciation to Tony Paganelli for his candid advice on real-life trial work in today’s media world. Perhaps you’re interested in the CLE presentation where Mr. Paganelli brings a sharper image to these pointers. There are opportunities for you to hear his presentation from the Federal Civil Practice seminar either as a Video Replay seminar at various locations around the state or as an On Demand seminar, available anywhere, anytime.

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About our Law Tips faculty participant:
Tony Paganelli is the principal of the Paganelli Law Group, Indianapolis. Before leaving to found his own law firm in 2013, Tony was a litigation partner for several years with one of the largest law firms in the United States. Tony is an experienced trial lawyer with nearly 20 years of experience representing people and companies of all sizes in courtrooms across the United States. He also advises businesses on a wide range of issues, including employee relations, contracts and transactions, regulatory compliance, and intellectual property issues.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Law Tips: Experts and the Ethics of Scientific Evidence from Judge Chezem

Scientific evidence is an expanding and challenging field. The popularity of ICLEF’s recent seminar entitled Admissibility of Scientific Evidence and Expert Testimony points directly to the value of lawyers keeping abreast of this topic. Are you aware of the ethical pitfalls lurking on the path of scientific evidence? Fortunately, our Law Tips blog readers have this opportunity to hear from Hon. Linda Chezem on the duties of the attorney in using scientific evidence. I am privileged to present her counsel for you:

The ethical duties of the attorney in the use of scientific evidence are beyond the obvious duties that apply to any evidence proffered by the attorney. The complexity of science and the general lack of science informed lawyers, judges and juries suggest that the lawyer has to consider how to choose an expert for something more than “junk science”. Assuming the science and the expert who will present the science applicable to the case at hand meet the rules of evidence and the expert’s testimony is admitted into evidence, the hard part lies ahead.

The real challenge is facilitation of the comprehension and application of the testimony favorable to the case. How should the lawyer devise adequate communication strategies so that the science is understandable yet reliable and honest? So what is the attorney’s duty? In a Note titled “Lawyer Competence and Neglect” published in 1991, Laura A. Naide states, “The concern of the legal profession regarding the issues of lawyer neglect and incompetence has grown dramatically in recent years.” Ms. Naide continues, explaining that “The issues of neglect and incompetence are closely inter-related. An incompetent attorney is likely to neglect legal matters because of feelings of inadequacy and anxiety. Courts are more likely to sanction an attorney for neglect than incompetence, however, because incompetence is extremely difficult to prove.” (Naide,L., 5 Geo. J. Legal Ethics 191 1991-1992)

An equal factor in the reluctance to characterize the lack of lawyerly or judicial scientific knowledge as incompetence is that- after all these years- some lawyers remain uncomfortable with science and with Daubert, Joiner, Kumho and the federal and state Rules of Evidence. The forests of trees sacrificed and the billions of little electrons inconvenienced by the academic and lawyerly attempts to explain the requirements for scientific evidence support likelihood of a science fear factor. One explanation for a clear reluctance to openly hold lawyers and judges accountable to understand scientific evidence they use to present to or to decide cases is that some lawyers may see themselves at risk.

The Model Rules and the Indiana Rules of Professional Conduct contain the same language in this section. Rule 1.1 Competence: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

Arguably, the phrase “thoroughness and preparation reasonably necessary for the representation” includes the study and effort required to thoroughly understand the scientific issues in the case and the proper vetting of the experts. Not that there are many cases out there that address science testimony as a competency issue, however, a portent may be found in California. A proposed opinion from the California State Bar’s Standing Committee on Professional Responsibility and Conduct states that a lawyer engaged in litigation in which e-discovery is sought has an ethical duty of competence for e-discovery. The California Sate Bar would hold the lawyer responsible to recognize and take appropriate action to protect clients in e-discovery. If the e-discovery challenges presented exceed the lawyer’s current command of e-discovery issues, the lawyer must take one of three courses:

  • Take steps to acquire the necessary skills;
  • Retain technical consultants to provide the required skill set; or
  • Decline the representation.

Could this proposed opinion on the competence and use of e-discovery by a small stretch supply a rationale for competence with science evidence?
Judge Nancy Gertner, a former federal district court judge in Massachusetts, expressed her concern regarding The National Academy of Sciences’ call for change in forensic sciences in a law review commentary. “I am concerned that suggestions that focus on changes within the field of forensic science itself, rather than changes in the larger judicial and adversarial culture in which forensic science operates, are doomed to failure. It is unquestionably important to encourage the creation of a research culture – upgrading forensic science journals, developing scientific standards to guide casework, improving access to data, etc. – as the article does, but I do not believe that these efforts can succeed without parallel changes in courts and in advocacy.” (UCLA Law Review at http://www.uclalawreview.org/pdf/58-3-S.pdf)

Judge Gertner entered an order that was intended to require lawyers and judges to more carefully consider the admission of expert testimony. As she addressed the proper consideration of scientific testimony she stated: “The NAS report suggests a different calculus– that admissibility of such evidence ought not to be presumed; that it has to be carefully examined in each case, and tested in the light of the NAS concerns, the concerns of Daubert/Kumho case law, and Rule 702 of the Federal Rules of Evidence.” (Full order below.)

The real concern is not that the record is devoid of judicial disapproval or concern about the competent use and presentation of scientific evidence; it is that that client pays the costs of bad science in the courts. The many errors found by the Innocence Project in criminal cases call attention to the science testimony failures. Sometime the order on the post-conviction relief will note the ineffective assistance of counsel in the use of the testimony. Usually, there is no disciplinary sanction for incompetence or at least the sanction is couched in terms other than in competent presentation or rebuttal of scientific evidence. There is no comparable Innocence Project, a true facts type project for civil cases. Once the civil case is done, the practical likelihood of any remedy for the client is none.

The solution is not more lawyer discipline but recognition of the need for lawyers and judges to remedy their science aversions. Instead of catching a horse of scientific injustice, the legal profession should not get out of the barn. Science and the need for rules of evidence have come a long way since Frye.

Thank you for stopping in at Law Tips. Let us know if there are any topics, or specific faculty, you would like to see included in the future. I want to express appreciation to Judge Chezem for bringing her valuable knowledge on the ethics of scientific evidence to our readers. The training she provides as a member of the faculty for ICLEF’s Admissibility of Scientific Evidence and Expert Testimony covers additional relevant topics, such as, choosing an expert witness and preparing the expert report. This seminar is available at your convenience as an On Demand Seminar, Click Here. Setup your personal viewing as your calendar allows. It only takes a few clicks.

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FULL ORDER:

ICLEF presentation by Hon. Linda Chezem, The Duty of the Attorney in Using Scientific Evidence:
Order issued by Judge Nancy Gertner, a former federal district court judge in Massachusetts:

Case 1: 08-cr-1 01 04-NG Document 45 Filed 03/10/2010 Page 1 of 3
Case 1: 08-cr-10104-NG Document 45 Filed 03/10/2010 Page 2 of 3

…of the processes used in the forensic science disciplines are … not based on a body of knowledge that recognizes the underlying limitations of the scientific principles and methodologies for problem solving and discovery …. [S]ome of these activities [encompassed by the term “forensic science”] might not have a well developed research base, are not informed by scientific Knowledge, or are not developed within the culture of science.

NRC 2009- 1-3

While the report does not speak to admissibility or inadmissibility in a given case, it raised profound questions that need to be carefully examined in every case prior to trial: “1) the extent to which a particular forensic discipline is founded on a reliable scientific methodology that gives it the capacity to accurately analyze evidence and report findings and (2) the extent to which practitioners in a particular forensic discipline rely on human interpretation that could be tainted by error, the threat ofbias, or the absence of sound operational procedures and robust performance standards.” NRC 2009 S-7.

The Report noted that these fundamental questions have not been “satisfactorily dealt with in judicial decisions pertaining to the admissibility” of evidence. Id. To be sure, the court’s treatment of this evidence relates directly to the adequacy of counsel’s treatment. See, e.g.

Sturgeon v. Quarterman, 615 F. Supp. 2d 546, 572-573 (S.D. Tex. 2009) (defense counsel’s failure to prepare a witness to testify about the unreliability of eyewitness identifications prevented defendant from presenting testimony that would have called into question the only direct evidence against him and was ineffective assistance of counsel warranting habeas relief); Richter v. Hickman, 578 F.3d 944, 946-947 (9th Cir. Cal. 2009) (en bane) (defense counsel’s failure to conduct an adequate forensic investigation with respect to blood spatter, serology, and pathology comprised ineffective assistance of counsel warranting habeas relief). See also United States v. Pena, 586 F. 3d 105 (1st Cir. 2009 affirmed) the court’s decision not to hold a Daubert hearing on fingerprint testimony where counsel offered no expert or evidence. Affirmed.

In the past, the admissibility of this kind of evidence was effectively presumed, largely because of its pedigree– the fact that it had been admitted for decades. As such, counsel rarely challenged it, and if it were challenged, it was rarely excluded or limited. But see United States v. Hines, 55 F. Supp. 2d 62 (D. Mass. 1999) and United States v. Green, 405 F. Supp. 2D 104 (D. Mass. 2005) .

The NAS report suggests a different calculus — that admissibility of such evidence ought not to be presumed; that it has to be carefully examined in each case, and tested in the light of the NAS concerns, the concerns of Daubert/Kumho case law, and Rule 702 of the Federal Rules of Evidence. This order is entered to accomplish that end.

SO ORDERED.

Date: March 8, 2010

NANCY GERTNER, U.S.D.C.

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About our Law Tips faculty participant:
Hon. Linda L. Chezem is a Professor and Adjunct Professor with Purdue University and Indiana University School of Medicine as well as a former Indiana Appellate Court Judge. She resides in Mooresville, IN. Judge Chezem provides a glimpse at her background: For example, I served as the judicial scholar in residence to the Arizona Supreme Court working in the Judicial Education Division for a semester. Much of my work has been to provide education about underage drinking and impaired driving. The impaired driving assessments (for 15 states) that I chaired are an evaluative mechanism that has been consistently supported by the National Highway Traffic Safety Administration (NHTSA). I surveyed judges and prosecutors to determine their continuing education needs and responses to science content in their education and piloted educational materials with success. I also teach law students, graduate students and lawyers about ethical and legal issues in alcohol research. As a result of an appointment to the Indiana Toxicology Advisory Board, I created a Forensic Science Ethics Class.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Law Tips: Are There Unique Challenges for Gray Divorce Clients?

Americans over the age of 50 are getting divorced at a record rate – doubling since 1990. Sociologists have coined the term “Gray Divorces” to describe this phenomenon. In a Gray Divorce, each spouse often leaves the marriage with assets unlike members of any other age group getting divorced.

So goes the scenario presented by Jim Reed and Lisa Goddy, our Law Tips faculty participants. They draw attention in their estate planning CLE presentation to several important trending issues for this developing group. Perhaps you have clients who need to consider “The Unique Challenges of Gray Divorce:”

  • While “gray divorces” often eliminate some issues associated with younger divorces (e.g., child custody), gray divorces often create their own novel challenges.
  • One of the biggest challenges of gray divorce is that the parties usually have little or no remaining years of income earning potential. When a 30-something gets divorced, the financial repercussions of divorce are offset by the ability to “earn a way out” in future decades. In a gray divorce, the existing assets to be divided often constitute all that the parties will ever have, or nearly so.
  • It is usually good advice to tell a gray divorce client who is contemplating retirement to wait until the divorce is over and a better understanding of the post-divorce financial situation can be evaluated. The longer that the client can defer spending down savings, the better.
  • In addition, the couple may have spent decades coming up with a financial plan that allows them to retire and maintain a similar standard of living after their retirement. Such a plan is almost always deeply jeopardized- for both parties- by a gray divorce.
  • A gray divorce will typically involve a disproportionately high amount of retirement assets. It is imperative to understand the related tax consequences when evaluating any division of the marital estate so that the intrinsic “discount” associated with tax-deferred retirement accounts can be factored.
  • There may also be defined benefit retirement plans, which were more common decades ago and seen less frequently now in younger divorces. Further, since defined benefit pensions tend to reach their greatest present value in the years just before retirement, these assets can have substantial value and usually require professional, actuarial valuation.
  • Dividing the marital estate in a gray divorce often takes away the option of having one party make extended property settlement payments over time, due to questionable future income and the heightened risk of disability or mortality before the property payment stream is completed (a factor made even more complicated by the added difficulty of securing that obligation with life insurance.)
  • More so than with a younger couple, it is often disadvantageous to seek possession of a marital residence, since downsizing and reducing expenses is often a consideration.
  • In a gray divorce, the parties might have forgone long-term care insurance, assuming that the other spouse would be available to help provide that care. A gray divorce provides an opportunity to re-evaluate whether long-term care insurance is an option that should be reconsidered.
  • Healthcare issues can also be more complicated in a gray divorce. Because of age, a gray divorce spouse is more likely to have health issues. Further, a non-employed spouse who relied on the other spouse’s employer-provider insurance may be too young for Medicare eligibility. Here, it is important to ascertain COBRA and/or private insurance options and costs.

Even though remarriage is often the last thing on a gray divorce client’s mind, I always leave them with the parting wisdom to consider a premarital agreement in the event of remarriage. (Or a cohabitation agreement in the event of cohabitation.) Few clients are aware of elective share and other restrictions that remarriage can impose upon their desire to leave most or all of their estate to children from a previous marriage.

I appreciate Jim Reed and Lisa Goddy providing this timely review of the issues surrounding “Gray Divorces.” If you are interested in the one-hour CLE update in this area, register for our On Demand seminar entitled: Estate Planning for “Gray” Divorces. Jim Reed is also scheduled as a speaker for the 2015 Indiana Law Update. Be sure to block out time for ILU on September 9-10

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About our Law Tips faculty participants:

Lisa B. Goddy, Of Counsel, Bingham Greenebaum Doll LLP, Indianapolis. Lisa works in the firm’s Estate and Wealth Transfer Practice Group. She focuses her practice on estate planning, probate and trust administration, special needs trusts and wealth transfer planning.

James A. Reed, Partner, Bingham Greenebaum Doll LLP, Indianapolis. Jim Reed has concentrated his practice in the legal aspect of relationship transitions of all types since graduating from law school. He has been involved in divorce cases with some of the largest marital estates in Indiana. He represents many professionals (medical, legal, accounting, financial), business owners and executives, community leaders, high-profile individuals in entertainment, sports and politics, and the spouses/partners of these individuals.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Law Tips, News0 Comments

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