Hack Attack? Call Your Lawyer, Not Your IT Department

Every organization should have a formal data incident response plan, but most can be simplified to one overarching element: call your cybersecurity counsel immediately. This puts your best player on the field in the first minute of the game. In doing so, you can establish an attorney-client privileged communication channel at the outset. Your outside counsel will serve as your advisor and concierge, coordinating the incident response.

Amicus Briefs

Amicus briefs are still formal documents, not just a comment in a website’s comments section. This means that, even though a brief may nominally come from a person or organization, it is really written by a lawyer and in the style of a legal argument. The brief must explain who the “amicus” (the “friend of the court” who is offering the brief) is, why they have an interest in the case, and then set forth the amicus’s argument.

Gathering Information

I sometimes work with private investigators who call and meet with people to learn more about the subjects of an investigation. And sometimes I do this work myself, picking up the phone or writing emails, contacting people who may have helpful information.

Closing Arguments

A trial may drag on for awhile, and so the closing statement gives a lawyer the chance to get the fact finder to recall important evidence from the beginning of the trial. And to assign some weight to the evidence: a witness who spoke for three days may not be more important than the one who spoke for an hour, and so the closing statement lets the lawyer spend more time on the important details and convey to others the relative importance of evidence.

Products Liability Litigation

In some situations, the law will impose “strict liability” on a defendant. This means that, if a plaintiff is injured, it does not matter whose fault it is. This is meant to give manufacturers an incentive to make their products so safe that the risk of any injury, even one they could claim is not their fault, is low.

TV and AI: Mixing Two Topics and Four Letters

A few years ago, I wrote posts about technology and the law and about how litigation is depicted on television. As kind of a mash-up of these posts, I asked Google Bard to write a blog post about litigation on television. And, to my surprise, the post was actually pretty insightful. So I’m sharing that post and my commentary on it and on legal insights written by AI.

Surprises

Surprises also arise before trial. Sometimes in discovery, lawyers will discover emails that contradict their understanding of the case. And sometimes, parties will make surprising offers to settle (or not to settle) or decisions about what arguments to pursue. Lastly, I am often surprised by lawyers acting weird, which they frequently do.

When Not to Litigate

Some defendants may also litigate cases that cost more money to defend than to settle because they want to set their own internal precedent. They want potential plaintiff to know that they will not hand out easy settlements to anyone who sues them, but instead will fight. This may cost short term losses, but may save money in the long run by discouraging additional weak lawsuits.

Qui Tam Litigation

Plaintiffs normally sue defendants to recover for a loss they suffered. In fact, a plaintiff often must show “standing,” or the fact that they are the right party to sue the defendant because they are the ones who suffered the loss the defendant caused. But in some situations, a plaintiff may sue to recover money that the defendant stole from the government.

Beyond Ink: Navigating the New Age of Contracts

Emojis, once seen as playful expressions, now carry significant legal implications. A recent Canadian court ruling offers a stark example. It determined a thumbs-up emoji acted as a digital signature, binding a business to an $82,200 contract.This ruling underscores that emojis are not mere decorative flourishes; rather, they can bear legal significance in business transactions.

Jury Strategies

Everyone is different, and there is no secret to persuading any individual person. But in general, people respond to messages tailored to them. And so a good presentation to a jury often involves speaking directly to them. This means eye contact with the jury, and it means speaking towards the jury.

Anti-SLAPP Statutes

Anti-SLAPP statutes do not apply to every lawsuit involving speech. Instead, just as the right to free speech has exceptions for commercial speech, these statutes do, too.