Wednesday, February 1, 2017

Lexis Practice Advisor and Practical Law

Lexis Practice Advisor (LPA) and Practical Law (PL) are two products sold by LexisNexis and Thomson Reuters. Members of the Western New England University School of Law community have access to both of these products. The advertising literature for both of these products suggest they are intended to be practice oriented. Both companies employ attorneys who maintain these materials constantly. Both products offer forms with integrated practice notes and checklists. The products seem to have quite a bit in common so I am going to look at one form covering the same subject from each and discuss differences.

Since, each service mostly has the same coverage in terms of practice areas,* I will look at a form from a practice area common to both products—real estate.  In particular, I will be looking at a ground lease under each system.

In LPA, I was able to drill down to ground leases. From the LPA front page I selected Real Estate, then scrolled down and selected Ground Lease. The top item displayed is an expert form titled “Ground Lease (Tenant Constructed Improvements)” and this is the one I am using. In PL, I drilled down as follows: from PL’s main page I selected Real Estate and then selected Commercial Leasing. From there I searched for “Ground Lease.” The top document returned is a Ground Lease classified as a Standard Document.

Both offer a usable form with comparable download options. Most striking about LPA’s form is it includes information about the form’s authors by name and links to bios of each author. LPA also includes section specific drafting notes throughout the form. You can view the drafting notes by hovering over the icon. LPA’s form also has optional clauses that can be inserted in the form and editable fields,** both of which are included when the form is downloaded.

LPA's icons

The first thing I noticed about PL’s form is a box at the top of the form labeled “Note: Read This Before Using Document.” Clicking on it revealed an outline of important considerations for drafting a ground lease. Other notes embedded throughout the document are related to the sections in which they are found. Another great feature of PL’s form is that it has a Table of Contents on the left hand side of the window. Clicking on a topic within the Table of Contents will bring the user to that place within the form.

PL's note icon

In comparing the two, I felt both products could be improved by implementing the best features of the other. LPA was easier to navigate from the front page to the form.  I also liked LPA’s ability to download a customized document. Most of all, I really like the explicit statement about who is creating the content. The document itself on PL is a bit easier to navigate. I also liked the overview of the law embedded at the top of PL’s form.
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* PL has a few more categories listed as practice areas than LPA.

** Unfortunately, the editable fields are not linked (i.e. filling in the first landlord field does not insert the landlords name into subsequent fields.)

Thursday, January 19, 2017

Inauguration 1. A formal ceremony inducting someone into office ... 3. The formal commencement of a period of time or course of action. Black's Law Dictionary, 10th ed.



Inauguration 2017 has been fraught with so many side issues (Women’s Marches, No Legal Sea Food Chowder, Girl Scouts Marching, Rockettes Kicking or Not) – it dawned on me that I know nothing about the underpinnings of this event … so I thought I would do some research!

Before I describe some inauguration research sources, however, here are some basic inauguration facts. First of all, it turns out that the only Constitutional requirement for the inauguration is that the president-elect take an oath or affirmation before that person can enter on the Execution of the office of the presidency. The wording of that oath is specified in Article II, Section One, Clause 8 of the United States Constitution:  "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

The Constitution does not specify who shall administer the oath to the president, but by and large that role has been performed by the Chief Justice of the Supreme Court. Interestingly, George Washington was sworn in by Robert Livingston, an eminent New York lawyer, a member of the Committee of Five who drafted the Declaration of Independence, and considered a Founding Father of the United States, but not a member of the Court.

As for the day of the inauguration, that day was not established as January 20 until 1933 with the passage of the Twentieth Amendment to the Constitution, adopted on January 23 of that year. The previous inauguration date was March 4th and was set by the Congress of the Confederation in September 1788 after the necessary nine states had ratified the Constitution.

And now for the research component of this post:  The Library of Congress has a comprehensive digital collection (Washington to Obama) of inauguration material including diaries and letters written by presidents and those who witnessed the inaugurations, handwritten drafts of inaugural addresses, broadsides, inaugural tickets and programs, prints, photographs, and sheet music. Unbelievable that we can see George Washington’s handwritten inaugural speech. Check out the link for President Obama, including his 2009 official portrait painted when he still had dark hair.
One can also view video of inauguration addresses from President Franklin D. Roosevelt to President Barrack Obama at this C-SPAN link. Recent events have made me nostalgic – it was interesting to look back at previous January 20ths. 

Since 1901, the Joint Congressional Committee on Inauguration Ceremonies has plied the laboring oar in putting together the day’s events. That Committee has put together this website that chronicles inaugurations going back to 1901 and the site collects a fascinating assortment of memorabilia including prayers said, hymns sung, the day’s weather and first facts – for example, Truman’s inauguration in 1949 was the first inauguration televised.   

For an in-depth look at past inaugurations, consult Democracy's Big Day: The Inauguration of Our President, 1789-2013 by Jim Bendat, author of the most recent Washington Post’s Five Myths column available here.

Enjoy the day!

Wednesday, January 4, 2017

Blockchain

What is blockchain?

Blockchain provides a way for multiple individuals who may not trust each other to work on the same ledger or document without a trusted intermediary (such as a bank in the case of crypto-currency). In more technical terms, a blockchain is a way to maintain the integrity of information on a distributed decentralized network. Blockchains work by utilizing software which generates a “cryptographic hash”* from the information stored in a network. Each time the information is changed anywhere on the network the blockchain software generates a new block from the new information, a timestamp, and the previous block’s hash. These new blocks are then added to the previous blocks to create a chain, thus a blockchain. The updated blockchain is then sent to all the computers on the network. Since the majority of the computers on the network have to agree on the values contained in the blockchain** unauthorized changes to the information become more difficult with each block added to the chain.  For example, Bitcoin, an entirely online form of crypto-currency, was created using the first blockchain and has never been hacked.*** The Bitcoin blockchain has been running since January 2009.

How does blockchain relate to law?

Some have labeled blockchain as next year’s disruptive technology in the field of law. For instance, Ethereum, another crypto-currency created by a former Bitcoin programmer, includes a programing language designed to create “smart contracts.” Smart contracts are computer programs which act as agreements. Since the negotiation and execution of such contracts can be entirely electronic and without intermediaries, the transactional cost of such contracts can be much lower than traditional contracts.
Smart contracts can also be self-executing. For instance, farmers could buy crop insurance using such a system to cover them in the event of crop failure. The insurance would pay if the temperature fell below freezing between a particular range of dates. The smart contract program would monitor the temperature via the internet and pay automatically if the conditions were met according to the terms of the policy—without further intervention from either the insured or the insurer.

Other legal aspects

Blockchain technology development has been mostly done using open source practices. However, this may change since big businesses are realizing the potential of this technology. Since 2013 about 1.4 billion dollars have been invested and over 2,500 patents filed for blockchain technologies. It remains to be seen how open blockchain technology will remain.

Conclusion

This blog post only outlines a few plausible uses of blockchain technology. Other uses being developed include real estate registry, medical records, financial services, and countless others. One thing is certain though, this technology will have widespread impact on business transactions and thus on the practice of law.
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* A cryptographic hash is a string of text with a set number of characters produced by feeding information to a computer program.  If the exact same information is fed into the same hash producing program in different locations the resulting hash strings should be identical.
** The longest blockchain will be chosen in the event of inconsistent information.
*** While this is true of Bitcoin’s blockchain itself, some Bitcoin related businesses have been hacked see e.g. http://money.cnn.com/2016/08/03/technology/bitcoin-exchange-bitfinex-hacked/

Tuesday, November 29, 2016

HeinOnline – a different kind of legal database

In law school we tend to focus on the major commercial legal databases, Lexis and Westlaw. For many, these two databases represent the universe of legal materials. While these databases are very useful in obtaining current law and secondary legal materials they often fall short in older materials. For instance the coverage for most law journals in those databases begins in the 1990s, but what if you need a law review article from 1950? Fortunately, HeinOnline exists.



HeinOnline provides coverage of most law reviews and journals all the way back to volume 1. For instance, the Western New England Law Review is covered, beginning full coverage with volume 16 on Westlaw* and Lexis while HeinOnline provides access to all issues. The extended coverage on HeinOnline doesn’t stop with law review articles. HeinOnline also includes many historical legal resources including: session laws, statutory codes, federal legislative history materials, and English Reports. This is only a sample of what HeinOnline offers since it has dozens of databases and thousands of titles.**

Another difference between HeinOnline and the major commercial databases is that instead of using just the text of the materials in its database, HeinOnline provides OCRed pdf scans of all the materials which it provides. This preserves the layout of the original publications. It can also be useful for the lay reader who may be unfamiliar with star pagination or to the law review cite checker who needs to check the pagination of a footnote. 

How do I access HeinOnline?


HeinOnline can be accessed from the terminals within the Western New England University School of Law. It can also be accessed remotely by faculty and current students using your barcode and PIN. If you are not a Western New England University affiliate or  you  are not near our Springfield campus, you may be able to access HeinOnline through the Massachusetts TrialCourt Libraries either by visiting one of their locations or through their website ifyou have a current borrowing card. HeinOnline may also be available on public terminals at state run universities.

So the next time you’re looking for rare or historical legal materials remember, try HeinOnline.

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* Partial coverage begins with Volume 8.
** The links in this paragraph assume the reader has access through Western New England University.



Wednesday, November 2, 2016

Protecting Metadata in a Word Document

What is Metadata?

Metadata is literally ‘data about data.’ In the modern world just about every aspect of our life generates metadata. For example, every email you send has a surprising amount of additional information attached to it which is hidden by most email client programs. Legal professionals need to be aware that the metadata generated by various technologies needs to be accounted for to prevent inadvertently transmit confidential information to opposing counsel.* The ethics committees in several jurisdictions have issued opinions stating that attorneys have a duty to scrub metadata prior to sending.  In its Formal Ethics Opinion 06-442, the ABA discussed the duty to protect confidential client information under Rule 1.6 as applied to metadata.

Metadata Generated by Word

One example is the use of the ‘track changes’  feature of Word. Microsoft developed this feature to help people collaborate when writing a document.  This feature, when turned on, saves changes made to a document and allows the collaborators to compare the original to the changes. For example, if attorneys within a firm were working together to draft a contract and were using ‘track changes’ they could easily discern where and what changes were made from one version to another.


If opposing counsel were to receive a copy in Word format of the shown contract with the tracked changes intact, they could learn a lot about the strategy of the contract’s drafters.

How to ‘Scrub’ Metadata From a Word Document

I will cover two methods of scrubbing metadata: Word’s built in feature and creating a PDF.

Using Word’s Built in Feature

Go to the ‘File’ tab.  In the middle of the screen will be the ‘Inspect Document’ section. Hit the button marked ‘Check for Issues.’ Then hit ‘Inspect Document’ from the dropdown menu.


This will launch the ‘Document Inspector’ window. From here Word gives several categories of metadata which it will search for. Here, you have the option of not searching specific categories.


Then hit inspect.  Word will then show you the results of the search and give you the option to remove metadata wherever it was found.


Note, some categories of metadata which Word might remove using this method might be items the user actually wants in the document such as page numbers within the footer.

Creating a PDF

A lot of the metadata in a Word document will not be converted if you save the document in another file format, such as the PDF. To save the file as a PDF, go to the file menu and click ‘Save As.’ Word will then determine in which directory you want to save your file. From the ‘Save As’ dialog box make sure you select PDF from the ‘Save as type’ drop down menu.


When saving in the PDF format for the purpose of scrubbing metadata, the user should be aware that certain types of hidden text such as white on white or black text highlighted black might still be selectable and thus capable of being copied and discerned.

Conclusion

The metadata generated by Microsoft Word is just one example of possibly confidential information of which the practicing attorney should be aware. Most technology products an attorney might use have the potential for inadvertent transmission of confidential information. The attorney has the responsibility of finding this out since, keeping confidential information safe is part of the ethical responsibilities of attorneys regardless of whether or not jurisdictional rules explicitly require attorneys to scrub metadata.
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* See E.G. Blake A. Klinkner, Metadata What Is It? How Can It Get Me into Trouble? What Can I Do About It?, Wyo. Law., April 2014, at 18, and Crystal Thorpe, Metadata:The Dangers of Metadata Compel Issuing Ethical Duties to "Scrub" and Prohibit the "Mining" of Metadata, 84 N.D. L. Rev. 257 (2008).