Tag Archive | "ICLEF"

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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Wife Looses Healthcare Coverage for Failure to Prove Medical Condition

Case: In the Matter of the Adoption of J.L.J. and J.D.J., Minor Children; J.J. and T.H. v. D.E. 
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: The Family Law Arbitration Act permits a party to file a motion to correct errors with the trial court within 30 days of the trial court entering a final judgment based upon the arbitrator’s findings of fact and conclusions of law.

HELD: A spousal maintenance order, which required Husband to provide healthcare coverage to Wife for 12 months following Decree, was reversed because it was contrary to a specific finding of fact that Wife failed to prove she had any medical conditions.

HELD: Property division was reversed where Wife’s request for a deviation from the statutorily presumed equal division of the marital estate was specifically denied by the arbitrator, but then the arbitrator separately stated that the property division awarded 61% of the marital estate to Wife.

FACTS AND PROCEDURAL HISTORY: Husband and Wife married in 1992. Wife filed for divorce in 2011. After an unsuccessful mediation, the parties agreed to binding arbitration. The arbitration proceeding was held on March 4, 2013, and the arbitrator filed written findings and conclusions with the trial court on April 12, 2013. The trial court accepted the findings and entered them as a final Decree. The resulting Decree awarded certain property to Husband, certain property to Wife, and Husband was further ordered to provide and pay for Wife’s healthcare coverage for one year.

Husband filed a motion to correct errors on May 1, 2013. Because the MCE was not ruled upon or set for hearing, it was deemed denied 45 days later. Husband filed his notice of appeal within 30 days of the MCE being deemed denied.

On appeal, Wife asserted that Husband failed to file his notice of appeal timely. Wife argued that, under the Family Law Arbitration Act, a motion to correct errors cannot be filed, and the only avenue to relief from judgment is to file an appeal. Thus, Wife argued, because Husband failed to file a notice of appeal within 30 days of the trial court’s entry of the Decree, Husband’s appeal was not filed timely. The Court of Appeals disagreed with Wife, concluding that Husband was permitted to file a motion to correct errors and, thus, his appeal was initiated timely.

Turning to the merits of Husband’s appeal, the Court of Appeals determined the arbitrator’s findings and conclusions were internally inconsistent. For example, the arbitrator made a finding that “there was no credible evidence presented by [Wife] in support of her” claimed medical conditions, yet the arbitrator awarded Wife one year of healthcare coverage.

On the property division, the Court of Appeals found similar inconsistencies between the arbitrator’s findings and conclusions. Wife had requested of the arbitrator a deviation in her favor from 50/50, which the arbitrator expressly denied; however, the arbitrator subsequently indicated an intent to distribute the property 61% to Wife and 39% to Husband. Further, the findings and conclusions contained too little information, including as to asset values, for the Court of Appeals to conduct an intelligent review of the division of the marital estate.

Thus, the trial court’s judgment was vacated and remanded for further proceedings to remedy these inconsistencies.

To view the text of this opinion in its entirety, click here: In Re the Marriage of: Frank J. Ozug v. Karen S. Ozug

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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

Posted in Family Law Case ReviewComments (0)

Upcoming Live CLE in March

Below is a list of our upcoming Live CLE Seminars in March. Click any seminar below for additional information or to register. To see which CLE seminars are near you, Click Here to search our Video Replay CLE Seminars. Once there you can choose a location and/or legal topics, as well as a date, all on the left side of this search/info page. You can also, Click Here to see our On Demand CLE Seminars which are available online Anywhere, Anytime.

 

Advanced Worker’s Compensation
An ICLEF Masters Series Seminar
6 CLE – This seminar is no longer available. Please join us next time. For additional Worker’s Compensation On Demand Seminars, Click Here.

Probate Litigation
6 CLE - This program is no longer available as a Live In-Person Seminar. However, you can still view the Video Replay, the On Demand Seminars or purchase the Publication of this Seminar by Clicking Here.

The Ethics of Legal Marketing A Law Practice in a Social Media Environment
Featuring National Speaker Cynthia Sharp
3 CLE / 3 E - This seminar is no longer available. Please join us next time.

Strategies for Taking Charge of Your Law Practice
Featuring National Speaker Cynthia Sharp
3 CLE / 3 E - This program is no longer available as a Live In-Person Seminar. However, you can still view the Video Replay, the On Demand Seminars or purchase the Publication of this Seminar by Clicking Here

14th Annual Property Tax Institute
6 CLE / 6 CE Level I or II - This program is no longer available as a Live In-Person Seminar. However, you can still view the Video Replay, the On Demand Seminars or purchase the Publication of this Seminar by Clicking Here.

17th Annual TASC – Trial Advocacy Skills College – “Trial Camp”
28 CLE / 3 E  - This program is no longer available. Please join us next year for the 18th Annual TASC.

Long Term Care Planning
3 CLE - Tuesday,  March 25, 2014    9:00 A.M. – 12:15 P.M.
Live In-Person Seminar - ICLEF Conference Facility, Indianapolis
Live Group WebcastMuncie
Live Individual WebcastFrom your home or office computer

The Big 3 in IP: Copyright, Trademarks & Patents
3 CLE - Wednesday,  March 26, 2014    9:00 A.M. – 12:15 P.M.
Live In-Person Seminar - ICLEF Conference Facility, Indianapolis
Live Individual WebcastFrom your home or office computer

Bankruptcy & Your Family Law Case
2 CLE - Thursday,  March 27, 2014    11:00 A.M. – 1:00 P.M.
Live In-Person Seminar - ICLEF Conference Facility, Indianapolis
Live Group Webcast - Mishawaka
Live Individual WebcastFrom your home or office computer

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis 

 

 

 

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5 Hot Tips On Trust Administration

If you are involved in trusts, this is your opportunity to brush up. I have five tips for you on trust administration from Ellen Deeter, a lawyer with extensive background in the area. Ms. Deeter spent most of the past 35 years working in bank trust departments, including as senior trust counsel.  Ellen generously agreed to share her expertise with Law Tips readers.

Tip #1 – Read the entire trust agreement!

• After you have read the trust agreement from beginning to end, including the “boilerplate”, read it again. And then a third time.

• Next, write out a synopsis of the trust agreement, highlighting key provisions. Pay particular attention to the provisions identifying the beneficiaries (current and future), noting mandatory and discretionary distributions, termination provisions, and allocations between principal and income.

• Every time you receive a request for a distribution refer back to the document and make sure that the request is:

1. from someone entitled to receive it.

2. for a purpose that is allowed in the document.

Tip #2 – Read and know the Indiana statutes on trusts (make Indiana Code Title 30 your friend).

• In addition to the Indiana Trust Code, also become familiar with the Indiana Probate Code, the Uniform Principal and Income Act, Total Return Unitrusts. Don’t forget the Internal Revenue Code and the provisions governing the taxation of trusts.

Tip #3 – Establish a process, follow it consistently; communicate.

• Don’t wait until you get a request from a beneficiary for a discretionary distribution to let him or her know the type of information you will need to evaluate the request. Establish ground rules ahead of time for how the request is to be made and the types of documentation that they will need to provide.

• Explain to beneficiaries that the trustee has a duty to both income beneficiaries and remaindermen.

• Let beneficiaries know how the trust (and beneficiaries) are taxed on income earned in the trust and when to expect to receive their Schedule K -1s.

Tip #4 – Understand the difference between accounting income and accounting principal.

Become familiar with the Indiana Uniform Principal and Income Act. Read the document to detennine if the trust agreement makes provisions contrary to the act (which it may) or whether the trust agreement gives the trustee discretion on allocating receipts and disbursements between income and principal.

• Explain to the beneficiaries what the term “net income” means. General (simplified) rule: interest, dividends, rents, royalties less 1/2the trustee fee.

Tip #5 – Document your files.

• Beneficiaries are entitled to inspect your files. Remember that as you write notes to the file.

• Beneficiaries have been known to be litigious (surprise, surprise). Keep copies of all correspondence and emails. Make written, contemporaneous notes of telephone conversations and meetings. Follow meetings up with letters confirming the discussion

Ms. Deeter’s bonus tip: Realize what you DON’T know and engage professionals to assist you. 

I hope you polished your trust administration skills through Ellen Deeter’s review. If you would like to take advantage of the CLE program that includes her discussion of trusts, look for the Video Replay or On Demand Seminar of 120 Hot Tips in Probate, Guardianships, Trusts and Tax by Clicking Here.

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About our Law Tips faculty participant:
Ellen M. Deeter earned her J.D. magna cum laude from Indiana University School of Law at Indianapolis in 1982. She started her career as an inheritance tax examiner for the Indiana Department of Revenue in 1978. Since that time Ms. Deeter has spent most of her career with bank trust departments, including Indiana National Bank, Wachovia Bank, N.A. and Merchants National Bank. She recently retired from The National Bank of Indianapolis, where she worked in various roles over 18 years, including serving as the Manager of the Personal Trusts and Estates Group and as Senior Trust Counsel.  She also is a Certified Trust and Financial Advisor.

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, NewsComments (0)


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