Law Tips: Smoking Guns; 3 Ways Technology has Changed Employment Law

Technological advancements such as email and the virtual office have made life easier, for sure! But these conveniences can carry challenges. Certain areas of law, such as employment law, are impacted directly by these changes in the technology arena. Our latest Law Tips participant, Danuta (Donna) Bembenista Panich, of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Indianapolis, is acutely aware of these effects on the practice of employment law. Ms Panich has been an employment law practitioner for more than 35 years and serves as chair of Ogletree Deakins’ Record Retention and E-Discovery Practice Group. I appreciate her sharing with Law Tips readers background on the “smoking guns” she encounters and the prudent advise she offers employers:

Clearly, the advent of computers and the intemet was technology change of proportions not experienced by anyone who graduated from law school after 1995. But I want to focus here on more recent, incremental changes in technology that have substantively altered employment law, as well as materially affected its practice:

  1. The virtual office
  2. Mobile communications devices
  3. Electronic communication and messaging systems
  4. Social media
  5. Big data (aka centralized databases).

Individually or in combination these advances in technology have affected employment law in at least the six ways discussed here.

I. “Off The Clock” And “Refusal To Accommodate” Claims Are Proliferating.

The virtual office has greatly expanded the ability to work from home and outside regular hours. There are positive effects flowing from the flexibility this creates: flex-time makes employees happier and makes it easier to balance work and family needs. But blurring the lines between workplace and home and on-duty/off-duty time also creates employment issues. The ability to work remotely opens the door to more accommodation claims under the Americans with Disabilities Act. The requirement to work specific hours from the confines of an office is harder to justify in today’s virtual environment. Similarly, that environment makes it far more difficult to argue against flexibility when requested by a pregnant employee, thus increasing the likelihood of Title VII liability. Prudent employers should carefully consider whether such accommodations are workable, rather than assuming they are not.

Because working from home/outside regular hours is difficult to supervise/control, the virtual office, particularly when coupled with mobile communications devices, can result in some challenging off the clock claims under state and federal wage and hour laws. If an employee checks email, or looks at a work order from a car or home, is that time compensable? And if it is compensable, does it prematurely start or extend the continuous workday?

Employers should be very deliberate in establishing and enforcing policies in order to avoid liability for unintended work time. This is particularly true since date and time stamping of all computer-related activities has provided a ready means of measuring time outside the confines of a time-clock. This ability makes proof of lost time far easier and more accurate. It concurrently increases the burden on the employer who must locate, reserve, and produce the data. In combination, these factors enhance the plaintiff employee’s chance to turn his claim into a class or collective action while also improving his or her settlement posture.

II. The Number Of “Smoking Guns” Have Increased Because We Have Changed The Formality And Frequency With Which We Communicate In Written Form.

People treat email, text messages, tweets and other electronic communications as the equivalent of oral communications. They blurt out whatever comes to mind, pay little attention to whom they direct their communications, and fail to proofread.

Electronic communication has also become a substitute for oral communication. People used to “tell” off-colored jokes to a small well-defined group. Now they broadcast them in written form, for endless redistribution. The result? The number of EEO and retaliation cases continues to grow. Nor is there any diminution in the percentage of cases found meritorious. Given the fact that 50 years of operation under equal opportunity laws must have resulted in less, not more, overt discrimination, one can only conclude that the proliferation of smoking guns has contributed to the seemingly inverse results. Employers should redouble efforts to sensitize employees to these dangers, and might wish to consider new rules on appropriate use of electronic communications.

Poor communication hygiene has also dramatically changed litigation practice. The plaintiff focuses on all forms of electronic communication as the richest potential source of helpful evidence – even if there is no true smoking gun, it is a rare case that does not include problematic or at least embarrassing electronic communications. Defense counsel’s witness preparation takes on a whole new dimension of scouring the record for any potentially harmful remark, and ensuring that the witness is cognizant of, and prepared to explain, all his/her linguistic faux pas. (Plaintiffs preparation should be similarly rigorous.)

III. Metadata and Big Data Create Unprecedented Transparency

Metadata – information about information – sometimes makes guilt or innocence irrefutable. For example, in a retaliation claim, the create date of a document in which the plaintiff’s termination from employment is discussed and agreed upon may prove beyond doubt that the decision was made before a protective activity occurred.

Conversely, metadata reflecting deletion of files, access to files, sending files, or the date of certain communications may prove the violation of a non-compete agreement or the theft of trade secrets.

Big data allows an employer to track every moment of an employee’s workday and every activity of the employee. Performance and productivity can be measured with astonishing precision both in and out of the office. The positive effects in the employment environment are that neither employees nor employers can avoid accountability and subjectivity and selective memory are removed from the decisional process. The negative impacts are greater job stress, less interdependence, trust, and loyalty. From the practitioner’s perspective, the results are more claims, more hard evidence, but less institutional knowledge and client loyalty.

Let’s take a break at this point in Donna Panich’s discussion of issues presented to employment law practitioners by technological change. But stay tuned! In next week’s Law Tips she talks about the alterations in such areas as asymmetrical discovery and the tracking of cross-country incidents.

Meanwhile, if you are interested in a comprehensive Employment Law CLE, check out the On Demand Seminar or Video Replay Seminar of 54 Practical Issues, Tips and Traps for Employment Lawyers by Clicking Here.

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About our Law Tips faculty participant:
Danuta (Donna) Bembenista Panich, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Indianapolis, has a varied practice dealing with all aspects of labor and employment law. However, since 1995, she has focused primarily on defending employers – including many of the nation’s largest companies – in class actions, multi-plaintiff and collective actions, pattern and practice claims, and other “bet the company” matters such as investigations of catastrophic industrial accidents. Ms. Panich has dealt extensively with electronic discovery and litigation preparedness. Since she joined Ogletree Deakins in 2007, she established, and has since served, as chair of Ogletree Deakins’ Record Retention and E-Discovery Practice Group.

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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Thoughts on Finding Defense Experts: A Bad Expert Can Guarantee Failure….and so on

” … Do as adversaries do in law, strive mightily, but eat and drink as friends.” Shakespeare; The Taming of the Shrew, act 1, scene 2.

It’s my pleasure to bring Jon Stowell’s counsel on selecting defense experts to Law Tips readers. Mr. Stowell is with the Law Offices of the Cincinnati Insurance Company in Indianapolis. He participates as a faculty member in our CLE entitled “Trying the Traumatic Brain Injury Case,” Jon’s advice covers a wide gamut of issues defense lawyers need to contemplate. Here are samplings of that instruction ranging from introductory remarks on the traumatic brain injury case to his general thoughts on finding experts:

“Few areas in civil litigation are more challenging and more intellectually interesting for a lawyer than a traumatic brain injury (“TBI”) case. TBI cases demand a team of qualified experts to opine on discrete and specific areas of specialty. To understand the potential exposure facing a client, a defense lawyer needs to begin thinking about damages experts as soon as a TBI case is assigned.

Finding the right expert can be a time consuming process, but it is time well spent. Finding a new expert may require the investment of five to ten hours of time. After an expert has been retained, an early in-person meeting at the expert’s location should be arranged. Although these trips can be cumbersome for the attorney’s schedule, they will in certain cases save a great deal of trouble and aggravation on the back end of a case. This initial meeting is a good chance for the defense lawyer to “Daubert” their own expert.”

Jon Stowell’s general thoughts on finding defense experts:

There are many acceptable ways to find qualified defense experts. Practitioners will be familiar with free locator services such as SEAK and JurisPro. These services have many qualified experts who generally have a good level of familiarity with the litigation process. A rich source for potential experts is to locate a practitioner or academic who has recently published in a given area but has not previously served as an expert witness. These experts can often be found using Google Scholar searches.

The benefit of using this type of expert is the person is often on the cutting edge of their topic and very well qualified to review and opine on a specific topic. The downside of using this type of expert is they may have never been involved in litigation before and may not fully appreciate the rigors of the process. Additional time and preparation must be given to this type of expert if chosen for a case.

A nonexclusive list of potential sources of experts includes:

1. Published Authors – Google and Google Scholar searches

2. Academics

3. Colleague Referral

4. Westlaw Case Queries

5. JurisPro

6. SEAK

7. Thompson Reuters

8. Linkedln

In most cases, the practitioner will want to start with the foundational experts, neuropsychologist and neurologist, and build up from there. The best source for determining what areas of the defense case need to be shored up is from the experts already retained. A good expert will not want to go beyond their area of expertise or their comfort zone. A defense attorney does a disservice to his case and the expert to ask for a stretch by the expert beyond those bounds.

A good expert does not guarantee success in a case. A bad expert can guarantee failure. The take away point should be to invest the time and effort necessary to find the right expert.

I appreciate Jon Stowell’s contribution to Law Tips. And, as always, thank you to Law Tips readers for taking the time to visit. If you would like to take advantage of the excellent CLE program that includes the presentation by Jon Stowell and other expert faculty members, look at the On Demand or Video Replay Seminars of “Trying the Traumatic Brain Injury Case,” and “Recent Developments in DUI Defense.” as well as the ever-popular 36th Annual Indiana Law Update scheduled live in September.

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About our Law Tips faculty participants:
Jon Kenneth Stowell is Associate Counsel-Managing Attorney at the Law Offices of The Cincinnati Insurance Company in Indianapolis. His areas of practice are: Traumatic Brain Injury; Wrongful Death; Nursing Home Negligence; Dental Malpractice; Product Liability; Agent Errors and Omissions; Construction Injury; Construction Defect; and Premises Liability.

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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Ten Reasons to Use Supplemental Jury Questionnaires

I want to welcome Law Tips participant, Inese A. Neiders, Ph.D, J.D., jury consultant from Columbus, Ohio. She assists lawyers in trial preparation, jury selection and trial presentation. It’s a pleasure to be sharing Dr. Neiders expertise with our readers.

How do you accurately and fairly test potential jurors’ qualifications? Do you believe that some prospective jurors are intimidated or influenced by another juror’s oral answers? Can you recall each answer you hear from each person interviewed? Dr. Neiders brings you her seasoned opinions on these and other issues encountered in the jury selection process.  Here’s her food-for-thought:

Ten Reasons to Use Supplemental Jury Questionnaires

The cornerstone of a good jury trial is the selection of a jury that is, to the greatest extent possible, free of bias. It is the duty of Court and counsel to select such a jury and to remove those potential jurors who will not be able to follow the court’s instructions and evaluate the evidence fairly.

In testing the qualifications of potential jurors to serve free of bias and prejudice, the voir dire of a prospective jury can be greatly enhanced by the use of a good jury questionnaire. Jury questionnaires are now widely accepted by the courts as a tool of modern science practice that can be cost effective and time saving in jury selection.

The important reasons for the use of a supplemental jury questionnaire:

  1. Assure Fairness for All: Both sides of the case and the Court have input in drafting the questionnaire. Everyone has equal access to the information generated by the instrument.
  1. Ask Better Questions: The questionnaire allows for a larger number and greater variety of questions of each juror. The variety of types of questions that can be drafted by the jury consultant and counsel (open ended, multiple choice, or forced choice) and the use of reliable “lie scales” can produce a better understanding of the jury than traditional oral examination.
  1. Save Time: Having each juror answer each question in writing in advance of oral examination avoids repetitious questions to the panel. Help from the jury consultant provides a chance to study and analyze responses and conserves attorney time for more strategic work.
  1. Assure Better Recall: Even attorneys with great memories tend to lose recall of juror responses to oral questions over a period oftime. This can be particularly troublesome in a case involving a lengthy jury selection process. Being able to turn directly to the jurors’ written response aids recall and analysis.
  1. Save Money: Among the tools available to help in jury selection, questionnaires are less expensive than mock juries or opinion surveys. The lower cost makes this valuable tool more widely available.
  1. Learn More about the Literacy Level of Jurors: Written answers of potential jurors can reveal a great deal about the ability of the jury to understand the case. This is especially critical in cases dealing with difficult legal issues, scientific evidence, or complex testimony, particularly from expert witnesses.
  1. Learn about All of the Jurors: Uniform questions to the entire jury panel assure that all the jury candidates, not just those in the box, answer all of the questions. The uniformity of questions also guarantees that each juror is presented each question in the same manner. Important issues are less likely to be overlooked for jurors who may be questioned late in the proceedings.
  1. Protect Jurors from Contamination by Other Juror Answers: The requirement of answering privately, in writing, insulates the panel members from being influenced by the way lawyers phrase questions or by the answers given by other, more articulate jurors. They will be unable to learn from others the kinds of answers that can assure selection to, or excuse from the panel.
  1. Get Better Answers from Jurors: The less-pressured atmosphere in which the questionnaire is administered makes it more likely that answers will be truthful and thoughtful. They are more likely to be the juror’s own response rather than no response or a response copied from others. The privacy afforded eliminates the tendency to try to please the judge or lawyer asking an oral question.
  2. Be Better Prepared: Even if the Court rejects the use of your questionnaire, or if circumstances change and you decide not to use it, the work in preparing is not wasted. The question development and pretesting with the jury consultant will assure that you are going to be prepared for court.

Jury questionnaires are just one tool to use to measure attitudes in jury selection. In high profile cases, those with high potential penalties, when bias and prejudice are particular concerns, a unique case or venue, the use of jury questionnaires prepared with the help of competent consultants is indispensable.

I appreciate Dr. Neiders contribution to Law Tips. Hopefully her review provided you with ideas to contemplate as you prepare for your next jury selection. ICLEF litigation seminars that can assist you further are available statewide as Video Replay Seminars or from your home or office as On Demand Seminars. Take a look at:  “Special Issues in Automobile Accident Cases,” “Trying the Traumatic Brain Injury Case,” and “Recent Developments in DUI Defense.”

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About our Law Tips faculty participants:
Inese A. Neiders, Ph.D., J.D. is a jury consultant who assists lawyers in trial preparation, jury selection and trial presentation. She earned her Ph.D. in sociology from The Ohio State University and her J.D. is from Case Western Reserve. She has assisted lawyers in jury selection throughout the country. Learn more about her at www.juryselectionexpertise.com.

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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Divorce Law v. Estate Law: What Divorce Lawyers Can Do To Protect Clients’ Estate Rights

Welcome back to Law Tips. I hope you took advantage of the insights Kent Jeffirs, shared a few weeks back, to kick off this two-part segment on the issues that can arise when one party dies before the final dissolution decree is entered. (Click Here to read, or scroll down) Kent’s continued guidance this week moves specifically into what divorce lawyers can do to protect clients’ estate rights. His foremost piece of advice is: Advise divorce clients about estate and beneficiary designation issues early and often!

In many cases (especially those involving employer sponsored plans) there is no clear answer to the questions that arise when a client dies who failed to change his or her beneficimy designations following a divorce. Therefore, the first and most urgent advice any lawyer should give a divorcing or recently divorced client: CHANGE YOUR BENEFICIARY DESIGNATIONS ASAP!

Divorce lawyers must advise, advise, advise. While a divorce lawyer may not be able to force clients to change their beneficiary designations (even when they are clearly in such clients’ best interests), divorce lawyers do not want to leave themselves exposed to claims that “you never said that could happen” by former clients or their family members. When it comes to making proper beneficiary designations, an ounce of prevention could be worth a substantial inheritance or years of contentious litigation.

Divorce lawyers must discuss issues of estate planning and beneficiary designations with their clients at the very beginning of representation and while the divorce is pending. If allowed to change beneficiary designations prior to the divorce being filed or while it is still pending, advise clients to change their designations unless prohibited from doing so by a court order. If the divorce is already filed or if there is a restraining order or provisional order already in effect prohibiting any changes to beneficiary designations, consider petitioning the divorce court to provisionally allow specified changes to designated beneficiaries based on the hardship or inequitable results that would occur if a party died before the divorce was finalized.

While this may seem overly precautious to some for provisional orders when there is no immediate threat to the health or life of a client, the small effort necessary to include such provisions in provisional orders and to make such beneficiary changes before or at the time the divorce is filed or even while a divorce is pending is nothing compared to the financial devastation that could occur to the deceased client’s family members without such changes. Remember, the surviving spouse in a divorce where no final decree of dissolution was entered can claim any individually titled property he stood to lose in the divorce, all jointly titled property as the surviving co-owner, plus a spousal allowance of $25,000 and an intestate or elective share of any assets of the deceased spouse’s estate that were titled in her name alone if the surviving spouse was fortuitous enough to have his spouse die while the divorce is pending.

In furtherance of divorce lawyers documenting their disclosure and advice concerning these issues, it is recommended that divorce lawyers include in their engagement agreements that it is the client’s responsibility to make appropriate changes to his or her estate plan and beneficiary designations and request that the client provide the attomey with a copy of any beneficiary designation changes for the attorney’s file when the client changes their beneficiary designations.

Finally, upon the entry of the dissolution decree and the finalizing of the representation, divorce lawyers should send an appropriate closing letter which sets forth all of the client’s responsibilities following the entry of the final dissolution decree including the client’s responsibility to make appropriate changes to his or her estate plan and beneficiary designations. Just as suggested above for inclusion in engagement agreements, the closing letter should also request that the client provide the attorney with a copy of any beneficiary designation changes for the attorney’s file when the client changes their beneficiary designations.

Thanks again to Kent Jeffirs for his generous contributions to Law Tips. FYI, Kent offers a comprehensive discussion of the situations you may encounter with your clients during his CLE presentation, addressing subjects such as, executors, ERISA and divorce court jurisdiction. If you are interested in the Video Replay or the On Demand Seminar of  “The Main Event: Divorce Law vs. Estate Law & Designated Beneficiaries,”  Click Here.

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About our Law Tips faculty participants:
Kent A. Jeffirs is a sole practitioner in Crown Point, Indiana, who for the last 22 years has concentrated his legal practice in estate planning, probate and trust administration, guardianships, real estate and small business counseling. In 2007, Mr. Jeffirs was one of the first group of Indiana attorneys to be board certified as a Specialist in Wills, Trusts Estates by the Indiana Trust and Estate Specialty Board. He has also testified in court proceedings as an expert witness on probate matters. Mr. Jeffirs received his B.A. degree, with honors, from the University of Notre Dame, and his J.D. degree, magna cum laude, from Indiana University, Bloomington.

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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