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Author: Schlecht Law

Digital Forensics for Lawyers – The Electronic Commandments

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What is forensic evidence in a criminal matter. It’s a near certainty in today’s mobile culture that your criminal lawyer will need to deal with traces of digital evidence somewhere in your criminal case. In cases where information is hidden, erased or altered in some way forensics allows us to discover more information, to draw additional conclusions about existing evidence and even find new material.

It’s important to know where to find the digital bread crumbs. Each day new locations for data are created, new methods of communication, new programs designed to store, encrypt, or automatically erase critical information are deployed. But where should you look? It’s important to have a checklist that is growing all the time but includes at least the following:

  • Computers: Servers, Laptops, Desktop Computers, and Tablets
  • ISPs (Internet Service Providers). Comcast, Viacom, etc.
  • Cell Phones: Smart phones, iPhones, Android devices, Blackberries (yes, they are still in use)
  • Tablets: Android, iOS (iPads)
  • Wearables: Android glasses, Google glasses, smart watches, fitness tracking devices (e.g. fitbit)
  • Cloud providers: iCloud accounts, Google docs, Dropbox, Windows Live, Social Media (LinkedIn, Facebook, Twitter, Snapchat, etc.)
  • Emails: Computer-based, mobile devices, cloud based (Gmail, etc.)

Forensic evidence may even be available from “old school” technology such as

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Parenting Plans – How to Negotiate and How to Draft

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Creating an effective parenting plan in a divorce takes forethought and a solid understanding of family law to know what make up a good plan.  Some preliminary thoughts to consider are:

  • Choosing: Most courts uphold a biological parent’s right to raise their child as he/she sees fit.  This isn’t an unlimited right since there are obviously life choices and lifestyles that could be harmful to a child, which is why #2 is so important.
  • Interests of the Child: The overriding criteria most courts will use when examining a parenting plan are the “best interests of the child.”  Different jurisdictions have their own standards, but there is amazing commonality among most courts:
    • The mental and physical health of the child
    • The mental and physical health of the parents
    • Parents’ ability to adequately address the needs of the child.
    • The thoughts, feelings and reasonable preferences of the child, based on their age and level of maturity.
    • Stability in the home environment
    • Siblings or other children whose custody and circumstances are relevant to the child.
    • The child’s school and adjustment to their community
    • Any history of abuse or domestic violence in the home
    • Any history of drug abuse or alcohol abuse.

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Transgender Persons and the Law

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A host of issues face transgender persons when trying to obtain fair access to the legal system.  Some of the most important concerns are:

  • Cost
  • Inexperienced legal counsel due to lack of education or familiarity with transgender issues
  • Distrust of those unfamiliar with transgender issues
  • Attorneys who reject transgender cases
  • Unfriendly or hostile court or law enforcement environments
  • Unacceptable paperwork or administrative hurdles
  • Some services may require the disclosure of the transgender status

How can attorneys make their offices a safe place for transgender persons.  Here are a few ideas:  Make sure your office is a non-discriminatory environment.  Make sure to include gender identity and sexual orientation in your official non-discrimination policy.  Be careful with pronouns and issues surrounding transition.

Make sure your restroom are non-gendered and available to your transgender clients but do not “require” that transgender persons use them.  Have a policy that allows trans people to use the gendered bathroom of their choice and educate staff and about your restroom policies.   Be accommodating but don’t make assumptions when providing directions or keys to restrooms.

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The Ten Commandments (of Cross) – Are They Still Good In Criminal Cases?

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Famed prosecutor, criminal lawyer attorney, civil litigator and judge Irving Younger is well known for his “Ten Commandments of Cross Examination”.  Lauded as some of the best advice ever for trial lawyers, are these rules to live by still valid for today’s modern courtroom? 


Let’s take a look:

  • Commandment 1: Be brief. Jurors are notoriously “short-memoried” and to have an impactful cross examination the jurors must remember the questions asked. Imagine the juror as a “cup” with a limited capacity to remember, if you overfill it, the juror will not remember whatever had drained down the side and spilled on the counter.  Keep cross brief and impactful.
  • Commandment 2: Short and Plain. In other words, jurors respond to short questions and simple language, lawyers do themselves no good using $64 words in long paragraphs.  Talk like a real person and “real” people will understand you.  The lawyer wants to convey that he may be an attorney, but deep down he’s the same as the juror, just a regular person.
  • Commandment 3: Lead me, period.  Lawyers should only ask leading questions on cross, they should try to put words into the witness’s mouth, to essentially testify for them.  Never let the answer to one of your questions be anything more than “yes” or “no”.

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Drafting Asset Purchase Agreements

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Acquisitions can be effected in various ways. It may be best to structure the acquisition as an asset purchase, a stock purchase, a stock purchase treated as an asset purchase for tax purposes, or a merger. This article focuses on drafting asset acquisitions.

Clarity is key. Conciseness helps. Lawyers must pay special attention in providing clear descriptions of the following: (1) purchase price; (2) purchase price adjustments; (3) included assets; (4) excluded assets, (5) assumed liabilities; (6) excluded liabilities; (7) seller’s representations and warranties on the physical condition of assets and the financial condition of the related business; (8) the parties’ pre-closing covenants [commitments] and negative covenants [prohibitions]; (9) the parties’ post-closing covenants and negative covenants; (10) indemnification by seller and buyer; (11) conditions to closing; and (12) remedies for breach.

Most relatively complicated asset purchase agreements place the definitions of terms at the front of the document following the recitals that provide the background of the transaction. Some practitioners prefer to place the definitions at the end of the document. In general, the more complicated the transaction, the more important the definitions. A term may be defined in an uncommon way. Reference to the precise definition is the only way to make sense of the body of the agreement. Placing the definitions front and center emphasizes their importance. A novice who reads the body of the agreement before referring to the definitions may be in for a rude awakening.

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Sample Limited Liability Company Operating Agreement (TX-Single-Member LLC)

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LIMITED LIABILITY COMPANY OPERATING AGREEMENT
FOR
_________________________
A Single Member-Managed Limited Liability Company

ARTICLE I
Company Formation

1.1 FORMATION. The Member agrees to form a Limited Liability Company (“Company”) in accordance with the provisions of title 3, chapter 101 of the Texas Business Organizations Code. The Company will be formed as an LLC, effective immediately upon filing of a Certificate of Formation with Secretary of State of Texas.

1.2 NAME OF LLC. The name of the Company shall be:
____________________________________.

1.3 REGISTERED AGENT AND REGISTERED OFFICE. The initial registered agent and registered office for the Company shall be:

<Address>

A statement will be filed with the Secretary of State of Texas to effect a change to the Certificate of Formation if the registered agent or registered office changes.

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