Steele Schneider Lawyer Wins Case Against "Shotgun Litigator!"

Congratulations to Steele Schneider lawyer Tara Fertlemes!  She is prominently mentioned in a recently published opinion of the Court of Common Pleas of Allegheny County.  Trial court opinions are selectively published.   The publication of Tara’s case signals that the jurist issuing the opinion thought the case important for those in the legal community to read.   

In his opinion, Judge Alan Hertzberg, writes an erudite and comprehensive opinion, taking to task a defense lawyer who pursued a "shotgun litigation strategy" against a Steele Schneider client.  Judge Hertzberg aptly described the shotgun litigation strategy as defense counsel raising "every defense imaginable (similar to how a shotgun blast strikes a far wider area than a bullet) during the trial, the attorney fees petition hearings and the post-trial motions."  The court found that Tara "reasonably expended the amount of time that was needed to respond, which would have been much less had [defense counsel] adopted a different strategy (e.g., pick your battles)."

A notable accomplishment by Tara is that she convinced the court to award $21,834 in attorney’s fees in addition to the wage damages awarded our client.

Tara's advocacy in the case demonstrates that Steele Schneider lawyers stand up to opposing attorneys who employ shotgun litigation strategies to deny rightful recovery to wronged and injured persons.

For those who enjoy reading a very well reasoned and expertly written legal opinion that holds difficult lawyers accountable for their vexatious strategies, see the opinion at: http://www.acba.org/ACBA/Publications/PLJ-Opinions/2012/5-PLJ_Opinions030912.pdf

Rush Limbaugh Spews Hate and His Apology Was Only to Keep Advertisers

Rush Limbaugh's apology was pathetic:

Limbaugh said Saturday on his website that he had chosen the wrong words in his comments about law student Sandra Fluke. He said he "did not intend a personal attack" on her.

He uttered the weakest of apologies for one reason--his advertisers were running from him for being the hate monger he is. It is all about money and his shameless worship of himself.

Many people have forgotten his drug habit and embracing of the Fourth Amendment's protection against unreasonable seizures when Limbaugh challenged law enforcement's right to his medical records, such records proving that he secured pain killers from several doctors. Recall that Limbaugh sent his own employee to secure drugs for him.

Don't get me wrong. I think drugs are an illness and the criminal prosecution of drug addicts is a waste of public resources and human lives. But the fact is that Limbaugh was a criminal drug addict and got away with it.

Now Limbaugh is only addicted to himself, so much so that he has no sense of the vitriolic hate that he spews. He crossed the line and his weak apology doesn't do it for me.

Identifying Criminal Suspects in a Lineup

Eye witness testimony has always been of questionable accuracy. The human brain is not a computer, retrieving exact copies of what has been observed and placed in carbon based storage as a chemical composition. In fact, memories housed in the human brain are quite malleable and are modified in deference to a person's ego needs (sense of self) and deep rooted attitudes.

Now comes the finding that fingering a criminal suspect in a lineup is best done quickly and not after the witness is given time to ponder who he/she thinks is the criminal standing amongst innocent persons.

See excerpts from the May 3, 2012 issue of The Economist:

Neil Brewer, a psychologist at Flinders University in Australia, has devised a new type of police line-up, described in Psychological Science. Rather than simply pointing out the perpetrator, witnesses are asked how confident they are when identifying him. And they have to make up their minds quickly. Whereas a typical police officer tells a witness to take time and mull it over, Dr Brewer sets a very short deadline.

Dr Brewer knew from past research that strong memory traces are more rapidly accessed by the brain than weaker ones—and that accurate eyewitness identifications are made significantly faster than inaccurate ones. So he guessed that limiting the time witnesses had to look at suspects would yield better results.

Witnesses who were given a flexible choice but only a short time to ponder were much more accurate. They picked the correct suspects 67% of the time. The “yes or no” group picked the right man only 49% of the time. A witness delayed may be justice denied.

Homeowners Cautioned: Beware of Contract Mechanics Liens

Homeowners need to be aware of scams involving roofing and other home repairs provided by contractors! Our office recently talked to one of seventeen homeowners in the Greensburg area who had their roofs all repaired by the same Texas company in the aftermath of a tornado. The Texans never paid for the supplies they used in repairing the roofs. All homeowners paid in full for their roofing jobs, only to discover that the Texans never paid for the supplies used to repair their roofs. The local supply company filed mechanics liens on all the homes. The supplier is entitled to judgment against the homeowners, even though the Texans were paid in full. If the liens are not paid, the supplier can foreclose on the homes.

Legally, the homeowners will have to pay twice for the roofing materials, once to the Texans and once to the supply company. It isn't fair, but it is the law of mechanics liens.

Mechanics liens are intended to protect subcontractors and suppliers who are not paid by the contractor. Anytime you contract for a home repair, make sure you either have a non lien contract signed by the subcontractors or suppliers or you withhold money until you are certain all suppliers and subcontractors are paid. Otherwise, you could be in double jeopardy for paying twice.

There is an encouraging post script to the Greensburg story. The Greensburg District Attorney is investigating the Texas roofing company for theft by deception. The Texans could face criminal charges for their fraudulent conduct. The fear of being incarcerated may be what is needed for them to pay the roofing supplier so that our fellow Pennsylvanians are not stuck with paying twice for their shingles, nails, and other materials.

Religious Freedom Means No Religion in Public Schools

Marc Schneider, Charlie Steele and Jonathan Steele participated in a federal mediation last week that culminated in settling an "Establishment Clause" case against a Mercer County School District. School officials were complicit in conducting prayer groups during the school day, with a teacher facilitating the participation of local ministers in religious activities with students. Months earlier, the Superintendent invited ministers to an in-service meeting of teachers, where teachers were asked to pray with local ministers during their work day. School officials also distributed religious literature at school by having elementary students take the material home.

To some persons, religion in school sounds like a good idea, religion being the moral education of young students. However, religious freedom for all begins with separating government and religion, lest we be forced by government to worship a particular religion. All of us, believers, non believers, and doubters have the right to a public education free from the coercion of a particular religious group's teachings.

The employees who brought the suit, and suffered work place retaliation for defending the Constitutional rights of students and teachers to be free from religious coercion, were compensated for "hostile work" environment and reinstatement damages.

Steele Schneider is a civil rights law firm and we are proud to defend the Constitutional rights of our clients.

Overcharging for E-Discovery--Pet Rocks and Gunsmiths

Whenever "something new" is introduced into the marketplace, it is often overpriced. The "pet rock" comes to mind. Baby boomers will recall that the pet rock was the brainchild of a creative entrepreneur Gary Dahl. During the Christmas season of 1975 Dahl sold pet rocks for $3.98. The pet rocks were sold in a cardboard box with air holes for breathing. Purchasers were told that the pet rocks were the perfect pet because they didn't need to be fed, bathed, walked or nursed to health due to illness. In actuality, the pet rocks were gray stones purchased at a builders' supply store. Dahl became a millionaire because thousands of people purchased pet rocks.

I have a eerie feeling that charlatan techies of e-discovery are the pet rocks of 2011. These e-discovery keyboard jockeys are overcharging for their services, knowing that the legal market is scrambling to bring about fair handling of digital evidence and the prevention of spoliation in circumstances where documents aren't a stack of papers but "a block of arbitrary information, or resource for storing information, which is available to a computer program and is usually based on some kind of durable storage" http://en.wikipedia.org/wiki/Computer_file

The irony is that the digitization of documents should render it cheaper, not more expensive to produce computer files in discovery. A litigant no longer has to make "hard copies" of documents he/she wants to review. Armed with search terms, a party seeking discovery can search through thousands of documents in seconds as opposed to hours or even days. Copying the documents can be performed electronically with ease without crumpling or damaging the original files.

So why is e-discovery so expensive? In my opinion, it is because of a several factors. First, the courts are just catching up to understanding the technology of digital files, while attempting to superimpose old rules, meant for paper, onto e-discovery. Second, well heeled litigants are taking advantage of the opportunities to bleed their cash strapped opponents by charging him/her for digital scanning, storage and other services that can be performed cost effectively via collaboration between the litigants.

E-discovery experts are charging outrageous fees to sort through digitized data on hard drives and on corporate servers. These profit-minded experts frequently charge by the gigabyte, knowing that on a hard drive there are program files, movies and other large sections of the hard drive that do not need searched at all. Next, the e-experts charge expensive fees for storing the digital data produced in discovery.

The charges of these e-experts are out of line with the economies offered by technology. Storage is cheap. Litigants should ask the court to approve economical storage options that preserve the integrity of the digitized evidence being preserved. The best time to do this is at the inception of a case when e-discovery is negotiated between the parties and approved by the court.

Of course, each party should have its own e-expert. In choosing an e-expert, a party should be careful to know what they need. Is a forensic expert needed? Or is just an e-warehouse expert needed?

An e-warehouse expert knows how to secure the digital evidence from the opposing side, either by copying it via imaging or agreeing to a protocol to be followed by the other side for copying and/or imaging. The copies and/or images of the digital universe of information being preserved can be inexpensively stored. A "master image" of the imaged data can be stored with a third party or in the case of a non-party, with that non-party. This way, there is always a pristine version of the "original digital universe" of e-evidence that is relevant to the case. Preservation of a "master copy" of the "original digital universe" should ensure the integrity of the digital evidence inexpensively. Digital warehousing of evidence should be cheaper than paper discovery and the storage of paper documents. Yet that is often not the case due to ignorance of the e-discovery consumer and the fact that some courts have yet to grasp basic concepts of the digital world.

An entirely different matter is when a litigant needs a forensic expert. There are plenty of charlatans parading around as forensic experts. Many of these so-called experts' knowledge does not extend beyond the user's manual of the computer program they use. The limitations of the software they use are their limitations. If the software program they are using does not have a way to detect untoward alteration of a digital document, these pseudo forensic experts are clueless when it comes to ascertaining the true integrity of a digital document.

True forensic experts are trained to design software programs to evaluate the integrity of the digital documents within a universe of computer files. These real experts are worth their weight in gold because they are capable of finding the needle in the digital haystack, that needle being a hidden code or a fragment of a file that is inconsistent with what the digital document purports to be.

In today's world of digital authentication of documents key documents are offered into evidence as "purporting to be" digital documents that have not been tampered with. A real forensic expert is able to ensure that these digital documents pass the necessary muster to be regarded as original documents, not defiled by the deceptive tactics of a desperate and/or unsavory litigant.

Unfortunately for lawyers and their clients, it is tough to sift through the resumes of would be forensic experts and find a true expert, one who understands the technology behind commercial forensic software. Good questions to ask a self professed computer expert are:

1. Where was he/she trained? GIAC at http://www.giac.org/certified-professionals/directory is a good example of exemplary training. You can find highly trained and certified computer forensic experts on GIAC's site.

2. What tools does he/she use? If a professed forensic expert only uses forensic tools out of a box, ask him/her what training he/she underwent to use the software. Keep in mind that forensic experts tied to a single software platform have limited vision and skills. They are shills of the software manufacturer.

3. What cases has the forensic expert worked on? In connection with those cases what forensic challenge was addressed and what was the outcome? Understanding the experience and results of a forensic expert is critically important. If possible, ask to review the transcribed testimony of the expert. There is no better insight into the expertise of a forensic expert than ascertaining whether the expert withered under cross examination or rendered opposing counsel feckless.

4. Judge for yourself whether the forensic expert will perform well on the witness stand. Is the expert capable of explaining complex technological concepts in layman's terms? Is the expert likable and does he/she appear trustworthy?

Do your homework when hiring a forensic expert. If you mount a forensic challenge to the authenticity/integrity of digital evidence or defend such a challenge, your case will rise and fall on the capabilities and ability of your expert to be communicative. If you come across a forensic expert that meets your expectations after being vetted, he/she is no digital storage jockey, whittling at a digital warehouse. A true forensic expert who can convince a court that spoliation or digital skullduggery occurred is likely worth the price being asked for his/her services.

In sum, don't over pay for digital downloading, imaging and storage. When it comes to hiring a digital gunslinger, a forensic expert, don't hire an ill trained, techie salesman who professes to know forensics when all he/she is is someone who buys his gun/weapon out of a box. That pseudo expert will be as valuable as a pet rock, which in 2011 is substantially less than the $3.98 it sold for in 1975.

Hire a forensic expert who is akin to a gunsmith, someone who in a technological sense knows how guns are made and can make and shoot his own gun at a hidden target. The price you pay such an real expert will be dictated by the amount at stake and the forensic issue that may be preventing your rightful recovery.

E-Dicovery Ruling Could Prove Costly

In a case that favors well-heeled litigants, a Pittsburgh federal court equated e-discovery costs with "making copies" and ordered a plaintiff to pay $367,000 in electronic copying charges.

E-experts are taking advantage of the legal marketplace by overcharging clients for their services. Many of these "so called" experts just push buttons to software programs they don't understand. Other e-experts charge exorbitant per diem fees for electronic paper shuffling.

A wealthy litigant can bear the costs of these over-priced keyboard jockeys, knowing that if they prevail, they can saddle these costs onto the losing party.

Our solution--hire your own e-expert and have him/her do as much as possible in retrieving the electronic files. For example, if a hard drive is to be imaged, have you own expert perform this task on a laptop computer that is physically produced pursuant to a discovery request. If you are requesting email records from a file on the other party's server, request information about the server's operations and the storage of emails and have your expert give precise instructions on the downloading of emails.

If you have e-discovery issues, give us a call. We can help.