Tag Archive | "ICLEF"

Tips for Negotiating with Accommodative Counterparts

By Marty Latz, Latz Negotiation Institute

In our last post, we shared several tips for negotiating with competitive counterparts (Scroll down to read). Here are three negotiation strategies to consider when your counterparts’ style is more accommodative, e.g., they value relationships highly, they enjoy being liked, they’re good listeners and they dislike open conflict.

1.  Don’t do all of the talking and ask back

Because of their likeable and empathetic nature, accommodators are master information gatherers.  Before engaging with them, decide what information to share and what not to share and stick with your plan.  And be sure to ask them lots of questions back. Require reciprocity when you share information.

2.  Recognize the importance of the relationship

Because accommodators are likely to view the negotiation through its impact on relationships, be sensitive to the interpersonal dynamic that develops as you negotiate. And consider that accommodators are likely to avoid choices they perceive as harmful to the relationship, which can be good or bad.  For example, they might unnecessarily concede to preserve the relationship.

3.  Focus on objective criteria

Finally, accommodators love independent objective standards and procedures, which can take the focal point away from competing personal opinions. Finding a “fair and reasonable” solution will appeal to them because it allows them to reach agreement while nurturing the relationship.

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Marty Latz is the founder of Latz Negotiation Institute, a national negotiation training and consulting company, and ExpertNegotiator, a Web-based software company that helps managers and negotiators more effectively negotiate and implement best practices based on the experts’ proven research.  He is also the author of Gain the Edge! Negotiating to Get What You Want (St. Martin’s Press 2004). He can be reached at 480-951-3222 or Latz@ExpertNegotiator.com

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Electronic Spying & Your Cell Phone: Protecting Your Family Law Clients

Welcome back to Law Tips. I’m pleased to continue the discussion of digital evidence with valuable commentary on electronic surveillance by Tim Wilcox, of International Investigators, Inc. In last week’s Law Tips our family law panel offered interesting information on current trends in digital evidence and a few pointers for keeping your clients private activities private. If you missed it, you’ll find that post at the conclusion of this article.

Have you had experiences with clients, or perhaps on your own, that made you suspicious that activities may have been surveilled through a cell phone? Would you recognize the signs of spyware? Tim Wilcox assures you  that illegal surveillance through a cell phone is a definite possibility. The following are facts and examples he offers to assist you in providing counsel and making a decision on how to proceed in this digital age.

Cell Phone Spyware Facts:

  • The manner in which spyware is installed on the phone is dependent upon the capabilities of the phone itself.
  • Smart phones can have spyware downloaded from websites, Bluetooth connection, mms messages, and pc connection.
  • There is no single spyware program that can be installed on all phones since there are many different OS’s and each one must have code written for the specific OS.
  • Symbian OS is the most common OS but has hundreds if not thousands of different versions depending on the software development intended on the device. Many spyware programs cannot work for more than a few versions, if even more than one version.
  • Spyware programs that can be installed via Bluetooth connection claim to be able to install software remotely but as with all Bluetooth devices it must have been paired with the target phone first.
  • It is possible for the remote installation of spyware onto a target phone, but this involves “tricking” the user into downloading and installing the malware.
  • Sending bogus mms messages with the intent to install malware is the easiest way to trick a target user. By sending messages with fake links could get the user to unknowingly download spyware programs. Most of these attacks involve making the user think the messages came from the carrier and posing as upgrades to the firmware on the phone especially through email. Some techniques use photos embedded with third party stegnography hiding the spyware.
  • Some spyware claims that it can extract data and voice from a target phone without installing any spyware on the target phone. We are still researching a specific software with this claim but at this time we can neither confirm nor deny this possibility.
  • Spyware programs can collect the following information and possibly more: contact data, mms, sms, phone call history, email history, webpage history, pictures, video, GPS location, cell tower triangulation history (less accurate), file system information.
  • Spyware programs can remotely become a covert third party to conversations as well as use the phone as a bug so that room audio is available whenever the bad guy chooses. The spyware can alert the bad guy when a call is made as well as texts and emails so they can call the phone and listen in. No call history for the bad guys phone is saved on the phone although it will show up in the service providers records.
  • As far as prevention of spyware installation is concerned, Blackberry’s have the best protection by far. The security code can only be guessed a certain number of times before it completely erases all information from the phone and has no obvious “backdoor” to circumvent this issue. Other phones can be protected more or less by passwords but the password must not be too easy to guess and some phones can allow a reset of the password, which is not that hard to accomplish in the wrong hands.
  • There is no known blanket spyware protections that will protect all cell phones.

What Are Some Indicators That My Cell Phone Might Have Malware/Spyware?

Top 10 suspicious indicators that your cell phone might have illegally installed spyware:

  1. Battery is warm when not in use
  2. Battery life is noticeably diminished each day.
  3. Some Blackberry’s; communication icon on right screen is flashing.
  4. Small pauses of audible communication while talking.
  5. Light audible tones, beeps or clicks throughout conversation.
  6. Flashing or flickering on display or change of brightness.
  7. Some spyware programs require the spy to manually mute their phone, therefore you might hear them in the background at the beginning of conversation or when they tap in.
  8. Slower internet access.
  9. Suspicious 3rd parties have detailed knowledge of your private conversations and locations. (GPS)
  10. You have opened a suspicious email or one from a potential spy. (Allowing Trojan horse to install spyware remotely)

The smarter the cell phones the easier it is to hide spyware. If the eavesdropping perpetrator has effectively installed spyware on your phone, then that perpetrator has total control, i.e. obtain all text messages, emails, internet sites visited GPS location, photos and videos obtained, etc.

Can I Examine the Cell Phone Myself to Obtain Evidence?

It is nearly impossible on most phones to detect malware without the use of sophisticated software. Not only is forensic spyware detection software expensive, it is also highly complex and difficult to master. Furthermore, the software is only as good as the examiner who utilizes it. The examiner must not only know how to operate the software to its full potential but also be able to manually search through the data (lines of code) to find the spyware. This is particularly useful if any evidence obtained is to be introduced into a court of law.Credibility is very important in technical evidence.

Making the right decisions on acquiring and protecting digital evidence is becoming more important every day in the family law practice. I thank Tim Wilcox for providing an introduction to the cell phone spyware facts that could be effecting clients as we speak. Find more digital surveillance information at: www.iiiweb.net.   And keep an eye on this blog for more advice.

If you are interested in viewing the comprehensive On Demand or Video Replay presentation of “Electronic Spying and Tracking Spouses in Divorces:  What’s Available? What’s Appropriate?” from ICLEF’s Annual Family Law Institute, Click Here.

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About our Law Tips faculty participants:
Tim Wilcox, International Investigators, Inc, CEO, Indianapolis, is a skilled and well-known Indiana investigator.  He specializes in security consultation, internal theft investigations, protection of proprietary information and communications, computer and cellular forensics, and litigation support.  He has been instrumental in reducing corporate shrinkage and eliminating vulnerabilities for companies worldwide. Mr. Wilcox is a member of the World Association of Detectives, the National Assn. Of Legal Investgators, the Society for Competitive Intelligence Professionals, the American Society for Industrial Security and the Indiana Association of Professional Investigators.

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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Trial Court Denies Mothers Move to Hawaii as Not in Best Interest of Child

Case: H.H. v. A.A. 
by Mike Kohlhaas, Bingham Greenebaum Doll (with thanks to Tamara McMillian)

HELD: Trial court’s decision to deny Mother’s requested relocation to Hawaii, to live with her new husband, was affirmed as not being in the child’s best interests.

FACTS AND PROCEDURAL HISTORY: Mother and Father divorced in 2006. Their only Child was born around the time of the divorce. Father has regularly and consistently exercised parenting time with Child since birth.

Mother remarried in 2008, and Father remarried in 2010.

In early 2012, Mother filed a notice of intent to relocate to Hawaii, where her husband  was looking for employment. Father objected to the relocation. After a hearing, the trial court denied Mother’s requested move. While Mother’s request to relocate was pending, Mother’s husband accepted a job in Hawaii and he later moved there.

In 2013, Mother filed a second notice of intent to relocate, along with a motion to change the trial judge. A new trial court assumed jurisdiction, and Father made a timely objection to the relocation. Another evidentiary hearing was held. After the hearing, the trial court denied Mother’s second request to relocate to Hawaii. Mother appealed.

Indiana’s relocation statute involves a two-step burden shifting analysis. First, the parent proposing relocation must prove that the relocation is proposed in good faith and for a legitimate reason; then, if that burden is met, the burden shifts to the non-relocating parent to show why the relocation is not in the child’s best interests. Here, the trial court had found that Mother failed to establish that the proposed move was in good faith and for a legitimate reason, and, further that Child’s best interests would not be served by the move.

Reviewing applicable case law, the Court of Appeals noted that the burden on the relocating parent to show the move is contemplated in good faith and for a legitimate reason is designed to be a very low bar. Disagreeing with the trial court, the Court of Appeals concluded that, based upon Mother’s husband being in Hawaii, and some unique employment opportunities that were available to Mother in Hawaii, that Mother’s proposed move was made in good faith and for a legitimate reason.

However, turning to the best interests analysis, the Court of Appeals agreed with the trial court. Child had a very involved relationship with Father and Father’s extended family. A move to Hawaii would have involved Child and Father seeing each other only during the summer and Christmas break. Child was thriving and doing well in Indiana. Noting the discretion afforded to the trial court in decisions involving the best interests of a child, the Court of Appeals concluded that the evidence supported the trial court’s decision that Child’s best interests would not be served by moving to Hawaii.

The judgment of the trial court to deny Mother’s proposed relocation to Hawaii was affirmed.

To view the text of this opinion in its entirety, click here: H.H. v. A.A.

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The Indiana Family Law Update is a free service provided by the Matrimonial Law Group of Bingham Greenebaum Doll, LLP. While significant efforts are made to ensure an accurate summary and reproduction of each opinion, readers are advised to verify all content and analysis with a traditional case law reporter before relying on the content and analysis offered here.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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The Age of Digital Evidence: Protecting Your Family Law Clients

Whether you find the digital evidence age interesting and challenging or consider it a frustration and nuisance, it makes no difference. The evidence is clear.  Among the many fields of law taking a head on plunge into this arena is family law. Lawyers are busy preparing clients for the electronic exposure that is possible in their everyday activities.  Otherwise, these challenges may sneak up on you.

Fortunately, our faculty members are willing to share their expertise in these electronic tracking developments. I appreciate the contributions of  Ryan Cassman, Judge Andrea Trevino, Tim Wilcox, and Bob Zoss. Following is a sample of their training session during ICLEF’s 11th Annual Family Law Institute  entitled “Electronic Spying and Tracking Spouses in Divorce: What’s Available? What’s Appropriate?”

Our panel begins by looking at the trends that are bringing digital evidence into play for many practitioners:

The Trend of Digital Evidence
94 percent of 1,600 lawyers recently surveyed by the American Academy of Matrimonial Lawyers (AAML) claimed that text messages had increasingly become the most damaging evidence in divorce cases. The same survey shows sharp increases in evidence via texting (62 percent), social media (81 percent) and emails (23 percent).  (http://www.aaml.org/about-the-academy/press/press-releases/divorce/lawyers-finding-divorce-app-smart-phones)

The New Addiction?
Facebook currently estimates its monthly active users at 845 million and its daily active users at 483 million. This means that more than half of all active Facebook users access the site daily.  (http://jamesburchill.com/how-many-active-users-does-facebook-really-have)

And in case that doesn’t amaze you, how about these stats:

  • 65% of online adults use social media.
  • 89% of those under 30 use social media.
  • 69% of those under 30 use social media DAILY.

Courts are entering orders impacting social media data
In the Gallion case in Connecticut (http://www.forbes.com/sites/kashmirhill/2011/11/07/judge-orders-divorcing-couple-to-swap-facebook-and-dating-site-passwords) the husband saw things on their shared computer that made him suspect incriminating evidence would be found in the wife’s social media accounts.  The Court ordered the divorcing couple to hand over the passwords to their online dating accounts to their opposing counsel.

Truth Trumps Privacy
Divorcing parties may be granted full access to MySpace and Facebook, including private and deleted data. See Romano v. Steelcase, Inc., 907 N.Y.S.2D 650 (Sept. 2010) And another example of divorcing parties being ordered to turn over passwords, usernames and logins for social networking sites is Zimmerman v. Weis Markets, Inc. (May 19, 2011, Pennsylvania).  (http://www.scribd.com/doc/59083827/Zimmerman-v-Weis-Markets-Inc)

Considering the looming reality of these activities, what should be the lawyer’s instructions to his/her clients? Following is succinct advice offered by these experts for preventing problems:

Litigation Checklist for Your Clients

  • Don’t brag.  Think twice about “bragging” to your ex via any social networking post.  Party pics can get you in trouble in more ways than just one.
  • Block your ex.  Block your ex-spouse from all your social media sites and consider blocking or limiting availability to certain family, friends and colleagues who are sympathic to your ex-spouse.
  • Change your passwords and protect your digital equipment. It is possible your ex-spouse has or had access to your laptop or smart phone and can hijack passwords and even install spyware software. Take the time to change all your important passwords. If you suspect spyware or are just curious, you can take your laptop or smart phone to a spyware detection specialist.
  • Stop Checking In and Geotagging. Don’t let everyone know your whereabouts during this sensitive time in your life.  It’s time to chill out on any location services software such as “check ins” on your iPhone or with Instagram’s newfangled “geotagging” capabilities.

Of course, the legalities pertaining to digital evidence is a topic for an in-depth discussion. These faculty members’ presentations extend into such areas as Authentication and Preservation of Social Media Evidence, the Electronic Communications Privacy Act of 1986 and the Indiana Voyeurism Law. For their thorough training session the 11th Annual Family Law Institute is available as an On Demand Seminar and as Video Replay’s by Clicking Here.

One could say that the overall advice from this family law panel is: Be aware of the impact of your digital activity and the possibilities of digital watching!  Fortunately, I’m able to add to the discussion of digital surveillance with further commentary by our security expert, Tim Wilcox, CEO of International Investigators, Inc. Stay tuned for next week’s Law Tips when Tim provides enlightening information about malware and spyware that may be lurking on your clients’ cell phone.

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About our Law Tips faculty participants:
Ryan H. Cassman, Coots, Henke and Wheeler, Carmel, Indiana, focuses his practice on representing individuals in divorce, collaborative divorce, custody, adoption, guardianship and support matters. His practice also includes drafting and negotiating premarital agreements, and with other attorneys at Coots, Henke and Wheeler, assisting clients in preserving their business interests and investments, pre and post-divorce. Ryan is a Certified Domestics Relations Mediator and a Certified Family Law Specialist.

Andrea R. Trevino, Magistrate, Allen Circuit Court, Fort Wayne, Indiana, was appointed to her position in August 2013. She presides primarily over the IV-D Division of the Circuit Court. Ms. Trevino grew up in Fort Wayne, Indiana and received her J.D from IU Law School Bloomington in 2003. Prior to her appointment as Magistrate, Andrea practiced law for ten years, concentrating in family law, civil litigation and appellate work.

Tim Wilcox, International Investigators, Inc, CEO, Indianapolis, is a skilled and well-known Indiana investigator. He specializes in security consultation, internal theft investigations, protection of proprietary information and communications, computer and cellular forensics, and litigation support.  He has been instrumental in reducing corporate shrinkage and eliminating vulnerabilities for companies worldwide. Mr. Wilcox is a member of the World Association of Detectives, the National Assn. Of Legal Investgators, the Society for Competitive Intelligence Professionals, the American Society for Industrial Security and the Indiana Association of Professional Investigators.

Robert E. “Bob” Zoss, Sr., Bob Zoss Law Office LLC, Evansville, was born and raised in South Bend, Indiana.  He received his JD from Indiana University Law School Bloomington. He has practiced law in Evansville, Indiana, since 1974, initially working for a local law firm and then as Deputy Prosecutor until his retirement from that office in March, 2012. During his some 35 years as a felony trial deputy, Bob has handled many murders and other high profile cases on behalf of the State of Indiana.

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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