Practical Tips to Obtain Defendant Driver’s Cell Phone Records In Car Accident Injury Lawsuits

Background: using cell phones while driving is an inherently unsafe: Everyone knows now that it is unsafe to drink and drive, but the effects of cell phone use while driving are perhaps even more devastating, because the use of cell phones while driving is so wide-spread. According to the a National Safety Council fact sheet, drivers using cell phones account for nearly 25 percent of all motor vehicle crashes annually. In fact, research has shown that driving while using a cell phone is comparable to the devastating effects that alcohol causes to the motoring public. See, A Comparison of the Cell Phone Driver and the Drunk Driver, Human Factors, Vol. 48, No. 2, Summer 2006, pp. 381-391. Sadly, 81 percent of driver have admitted to using a cell phone while driving, according to the National Safety Council fact sheet.

In bringing your motions to compel cell phone records, it is important to bring the above-referenced documents to the attention of the judge hearing your motion. It is also crucial to let juries know of these dangers, because it will affect how the jury views the defendant’s conduct, even in cases where the defense admits to liability in a rear-end collision. It is not enough to stipulate to liability and let the defendant escape accountability to the jury for the despicable nature of using a cell phone while driving. If our firm finds out that the defendant was using a cell phone, we will attach a punitive damages cause of action to the complaint, alleging that doing so was despicable conduct within the meaning of Civil Code section 3294. If you have clear facts showing that there was cell phone usage, by all means, include a punitive damages allegation with the original complaint, so that you are not forced to make a motion to amend your complaint to allege punitive damages.

Don’t get timed out: It is important to recognize the key defense that the defendants possess and neutralize that defense immediately: timing. It can often take 6 months or more to get cell phone records from the time that you first notice the deposition duces tecum until you have the records in your hands. In most aspects of a personal injury case, the defense will try to stall and delay the case until it is time for trial, and discovery has closed, leaving the plaintiff with holes in her case. That is particularly true with cell phone records. The defendant will claim to have forgotten his cell phone number and the name of his cell phone carrier. He will claim to have lost his cell phone records. The cell phone carrier will throw up road blocks, too. In most cases, the judge won’t let you get the cell phone records from the carrier until you have demonstrated due diligence in getting the records from the defendant himself.

As you will see in this article and the associated subsequent articles, there is a long process for seeking these documents through written depositions, written discovery, meet-and-confer letters, amended responses by the defense, followed by more meet-and-confer letters, and ultimately, your motion to compel. If you don’t lay the foundation, or move too quickly, the discovery judge will deny your motion to compel. So be sure to build into your discovery plan ample time to go through the whole process. Compelling cell phone records is like baking a layer cake; you have to build it one layer at a time.

Also, keep in mind that if you want to amend your complaint to allege punitive damages, California Rules of Court, Rule 3.1324, will require you to demonstrate good cause why your motion was not brought earlier. Don’t hand the defense an easy escape due to lack of diligence in bringing the motion to amend the complaint to allege punitive damages pursuant to Civil Code section 3294.

Start your hunt right away: Look for indications of cell phone usage on the part of the defense very early on in the case. Start with the intake with your client. Include a question about cell phone usage on the part of both your client and the defense in your intake questionnaire.

If your client knows that the defendant was using their cell phone, your client will usually tell you, because by now most people are aware that using a cell phone while driving is despicable conduct, particularly if the defendant was not using the phone in a hands-free way. If you client does not mention cell phone usage, be sure to ask your client about cell phone usage in the same way that you would screen for drunk driving, because, as mentioned above, cell phones are the new drunk driving and can change the entire course of the litigation, as we will see. Insurers are willing to waive liability and settle early where their insureds were using their cell phones at the time of the collision in the same way that they do with drunk driving cases.

Sometimes clients will have seen the defendant on their cell phone a few minutes before the incident happened, for example, if they were passing the defendant and were later rear-ended by the defendant, so probe your client’s memory as to the first time that they saw the defendant, and think about if they saw any signs of the defendant using the cell phone.

After speaking with your client, think about other sources of information about the collision. Look at the police report, of course, to see if the reporting officer noted cell phone use. Contact all of the witnesses listed in the report to see if they noticed the defendant using a cell phone. Be sure to ask your clients and the witnesses if they saw the defendant appearing to speak to himself, because even hands-free driving is distracted driving, and the above-cited studies show that a driver’s response time is reduced even with hands-free usage. As if they saw the defendant gesturing while driving, because of course many people will gesture with their hands while on the phone.

Even if your client and the witnesses are unable to state that they saw direct evidence of cell phone usage, such as the defendant holding a cell phone to his ear or talking to no one while driving alone, it is possible to infer cell phone usage where the defendant has no logical story to explain their odd driving behavior. For example, if your client sees the vehicle coming up on them from behind and failing to slow down, your client might not have time to focus their gaze on the driver before impact, but the fact that the driver doesn’t slow down is a flag indicating that the driver was distracted. Weaving is of course another example of distracted driving, as is odd variations in speed. You will need all of these facts to persuade a discovery judge that there are some indicia of distracted driving before the judge will let you compel the defendant’s cell phone records.

File suit early: If you see flags indicated distracted driving, file suit immediately. You will need to begin the process of investigation through formal discovery immediately, because insurers are going to fight this discovery battle tooth and nail, as they are aware that the public is disgusted with distracted driving, and that distracted driving will open up their insured’s personal assets, creating a conflict. Of course, it is exactly this kind of conflict that you want to create for the purpose of leveraging a decent settlement for your client.

If you see flags indicating distracted driving, consider serving a deposition notice on the defendant 20 days after service is effected on them, pursuant to California Code of Civil Procedure section 2025.210(b) which provides in pertinent part as follows:

2025.210(b) The plaintiff may serve a deposition notice without leave of court on any date that is 20 days after the service of the summons on, or appearance by, any defendant. On motion with or without notice, the court, for good cause shown, may grant to a plaintiff leave to serve a deposition notice on an earlier date.

The prevailing wisdom is that you should serve form interrogatories by mail after receiving the defendant’s answer, but it is exactly that kind of supposed “common sense” that you want to avoid in these cases. You want to send the defense a signal that you are different, and they should not expect “the usual” from you in any aspect of this case. It also sends the defense a signal that you are not going to permit them to enjoy their primary defense tactic, that of stall and delay. This practice also gives you access to the defendant before the defense adjuster and defense attorney have had extra time to help the defendant formulate false testimony. In their haste to prepare an answer, the defense might not have time to screen the defendant for cell phone usage, and so the defendant might be unwary of the need to prevaricate about his cell phone usage.

After serving the complaint and summons, fax and mail the defense adjuster to let them know that service has been effected, and let them know that you expect a timely answer to the complaint. Then serve the deposition notice, and again fax and mail the defense with a letter saying that you expect the defendant to appear on the date noticed for the deposition. Make sure that you give yourself enough time to actually get the deposition notice served. Code of Civil Procedure section 2025.270(a) requires 10 days’ notice.

The defense attorney will likely phone you to say that there is a conflict in their schedule, but you should politely and persistently insist on an early deposition for the defendant. When the defense attorney asks what the rush is all about, tell them that it is the plaintiff’s job to move the ball, and that the defense should expect to see this pace continued all throughout the case. Do not, of course, talk about your interest in getting discovery of cell phone usage at this point. The defense will not understand why you are pushing the case so quickly, and it will make them start to question their assumptions about what is “normal” in a case, including their “usual” evaluation of the ultimate case value.

The purloined letter, hidden in plain view: You are going to want to include a duces tecum demand with your deposition notice. In that duces tecum demand, you are going to want to ask for cell phone records. Be sure to bury the request for the cell phone records in the middle of the demand somewhere, well after the usual request for photographs and statements of the plaintiff and witnesses, etc, unless you have alleged punitive damages in your complaint, in which case the cell phone usage will be front and center. Be sure to serve along with the deposition subpoena set of form interrogatories, a standard request for production of documents, a set of specially-prepared interrogatories, if that is needed in your case, and a request for admissions. All of these documents can be served any time that is 10 days after service of the summons on the defendant. See C.C.P. sections 2030.020, 2031.020, and 2033.020, respectively.

It is important to serve a standard set of requests for admissions, along with the deposition notice and the other documents. The requests for admissions should certainly ask the defendant to admit the facts of liability from your client’s perspective, and should ask them to admit the ultimate fact that the defendant is at fault for causing the collision. This is particularly true if the case is a rear-ender, because the defense attorney will oppose the motion to compel cell phone records on the basis of that the cell phones are not relevant in a rear-end collision. When the defendant denies liability in the request for admissions, as they inevitably will, you now have ammunition to show the discovery judge that liability is disputed, and therefore the cell phone records will go to the issue of fault.

Be thorough in deposing the defendant on how the collision happened: If you have spotted one of the flags of distracted driving, typically the defendant will not admit cell phone use. You will need to first lay the foundation for the erratic driving. Be sure to begin the deposition with a benign tone toward the deponent. Don’t clue them into the fact that you are going to press them later in the deposition, because they will become defensive, and they won’t give you the key facts that lay the foundation for the flags of distracted driving.

The defendant will typically admit that they rear-ended your client, if that is the case, but they will gloss over the facts leading up to the impact. You will definitely want to ask them when it was that they noticed that your client was stopped, and what they did to avoid the collision. You can ask them lead-in questions such as “it sounds like you were a bit distracted” or “it sounds like your attention drifted off of the road for a little bit.” Then, ask them if their windows in the car were rolled up or rolled down. Ask them if their radio was playing. Ask them if they had some trouble keeping their vehicle in their lane.

Then ask them if they were using their cell phone at the time of the collision. If they say no, ask them when the last time was that they used their cell phone before the collision. Ask them where they kept their cell phone. Was it attached to their belt? Was it in a purse or brief case? If there were other occupants in the defendants’ vehicle, be sure to set their depositions for a time immediately following the defendant’s deposition, so that the defendant will be clued into the fact that his fabrications might be contradicted by other sworn testimony.

Sample duces tecum demand in commercial driving cases: You can count on the defendant to be evasive in deposition. It is not uncommon for the defendant to say that they don’t remember their cell phone number or the name of their cell phone carrier! If that is the case, you will need to make sure that you have requested collision reports and bills of lading applicable to the shipment that the defendant was carrying, in case the driver’s cell phone number is there. Here is some language that would cover those items:

All written collision reports prepared by defendant Donald T. Driver pertaining to the subject collision.

All drivers’ time sheets, log books (regardless of form) involved in recording the subject tractor truck’s usage and mileage by all drivers in the 72 hours prior to the subject collision.

Don’t assume that the defense attorney will object to the collision report prepared by the driver. It might be that the defense attorney will need to use the collision report to refresh the recollection of the driver, and so might give up the collision report, rather than argue that it was an attorney-client communication prepared by the driver for the insurance adjuster to prepare for litigation.

Sample language for special interrogatories seeking the defendants’ cell phone info: If the defendant claims in deposition to have forgotten their cell phone number or the name of their carrier, you will need to serve specially-prepared interrogatories to elicit that information. Here are some sample questions:

State the name of all mobile telephone carriers used by defendant Donald T. Driver on the date of the subject incident which is the subject of this lawsuit.

State the name of any mobile telephone carrier with whom defendant Donald T. Driver had a contract for mobile telephone service on the date of the subject which is the subject of this lawsuit.

State the mobile telephone number(s) of any mobile telephone(s) for which defendant Donald T. Driver had active service on the date of the subject incident.

State the name of the mobile telephone carrier providing service for each of the mobile telephone numbers for which defendant Donald T. Driver had active service on the date of the subject incident.

State the mobile telephone number(s) of any active mobile telephone(s) provided to defendant Donald T. Driver by his employer on the date of the subject incident.

State the name of the mobile telephone carrier providing service for each of the mobile telephone numbers provided to defendant Donald T. Driver by his employer on the date of the subject incident.

Was defendant Donald T. Driver using a mobile telephone for driving directions at the time of the subject collision?

Was defendant Donald T. Driver using a mobile telephone for voice communications at the time of the subject collision?

Was defendant Donald T. Driver using a mobile telephone for text communications at the time of the subject collision?

Was defendant Donald T. Driver using a mobile telephone for any purpose at the time of the subject collision?

When was the last time before the subject collision that defendant Donald T. Driver used a mobile telephone for any purpose?

IDENTIFY the last person that defendant Donald T. Driver spoke with by mobile telephone preceding the subject collision?

As used in these interrogatories, “IDENTIFY” means to provide the name, address, and a telephone number of the person to be identified.

Sample language requesting cell phone records: Below is an example of language that you can use in requesting cell phone records. Be sure to include questions that are both narrowly directed to the time of the collision, as well as questions that are broader, so that the defense won’t say that they don’t have records which are precisely that exact. Bear in mind that the defendant will typically say that they are not in the possession, custody, and control of the requested records. Your primary purpose in requesting these records is to demonstrate to the discovery judge that it will be necessary to compel the defendant to sign a release of records, because the defendant will, by that time, have answered these questions saying that they don’t have possession of the records. In most cases, the only custodian of the records will be the carriers, but you have to set up the defendant by asking these questions first.

Produce all contracts for the delivery of mobile telephony service entered into between defendant Donald T. Driver and any mobile telephony carrier which was in effect at the time of the subject collision.

Produce all contracts for the delivery of mobile telephony service entered into between defendant Donald T. Driver’s employer and any mobile telephony carrier which provided service for defendant Donald T. Driver’s use in effect at the time of the subject collision.

Produce any and all billing statements in the possession, custody or control of the responding defendants for mobile telephony service used by defendant Donald T. Driver for mobile telephony service which was in effect for the billing period which covered the date of service for May 1, 2008 [insert the date of your subject collision].

Produce any and all billing statements covering the period of 10:00 a.m. through 2:00 p.m. on the day of the subject collision for mobile telephony service used by defendant Donald T. Driver.

You are going to have to customize the language above to fit your case. If the collision happened at 12:00 noon, for example, you will want to go back to 10:00 a.m. and forward to 2:00 p.m. to make sure that you get the data for the subject call, in case the parties or the reporting police officer got the time of the collision a bit off.

Conclusion: It may be a long haul to get cell phone records in car accident litigation, start now: You can count on both the defendant and the defense attorney to fight tooth and nail to prevent you from getting your hands on the requested cell phone records. Start your hunt early, or you will find that you are right up against the discovery cut-off without your records, or without adequate time to amend your complaint to allege punitive damages.

Immigrate To Canada – How To Start The Procedure And Not Spend All My Savings Before I Go There

Assume that you are prospective immigrant hoping that one day you will settle your family in Canada. Due to the fact that Canada is one of the most attractive immigration destinations you will be literally cross fired by different offers for immigration services that promise you to become Canadian citizen in no time. Yes it is possible for everyone to become Canadian Citizen because all humans are equal despite of their nationality, religion, financial situation, etc. In no time – IMPOSSIBLE. Usually using the services offered in those advertisements would cost you from $2000 to sometimes $15000 for every person in your family.

But lets stop accusing those consultants and agents, they will be out there getting those money for literally no work done by them unless people stop using their services. In order to stop using their services people must be informed so they get the knowledge of how to do it and how to complete the procedure for getting Canadian visa and eventually immigrate there. Below you will find out the first steps that have to be done to start the procedure.

Step 1. First of all you have to select your appropriate Immigration Class.

Immigration Classes are:

1. Federal Skilled Worker Class ( this class is divided into 4 subclasses )

a. Skilled Worker And Professionals Class

b. Canadian Experience Class

c. Provincial Nominees Class

d. Business Class

2. Family Class

3. Quebec Selected Immigration

4. Refugees Class

5. Others

So lets analyze those classes because it is of crucial importance and actually it is the foundation of success right from the beginning.

1. Federal Skilled Worker Class ( this class is divided into 4 subclasses )

a. Skilled Worker And Professionals Class

The cases of those applicants are proceeded on the basis of their individual skills and the likelihood to contribute to the Canadian economy. They have to meet the minimal work experience requirements, and prove that they have sufficient funds to settle in Canada.

b. Canadian Experience Class

This class is for temporary foreign workers and international graduates who want to become permanent residents.

c. Provincial Nominees Class

This class is for people that want to immigrate to specific province of Canada. First they have to apply to the Province authority. Those immigrants are usually selected based on their skills.

d. Business Class

Those are investors, businessman and self employed immigrants that will invest and help the improvement of the Canadian economy.

2. Family Class

Those immigrants must be sponsored by close family members ( parents or spouse ) that are Canadian citizens or already permanent residents

3. Quebec Selected Immigration

These are skilled workers and professionals that wish to settle in Montreal or another city in the Province of Quebec. They are selected to comply with the rules of the Province of Quebec and they have to prove that will be able to settle there.

4. Refugees Class

Those are immigrants that are admitted under special rules

5. Others

Those are Students, Permanent Workers, Visitors, Information Technology Workers, etc.

The above mentioned classes are all the categories that qualify for Canadian visa, so the first step for anyone who wants to immigrate there is to determine the class that suits him.

Copyright Law and Dying Newspapers – Congressional Hearings

Newspapers probably are the biggest victims of copyright infringement and generally they didn’t care much, as that was old news by the time anyone copied it and the new news is today. Yesterday is gone; “That was Yesterday!” like the lyrics in “Foreigner” the Rock Band’s famous song.

Today, however everything has changed. Recently, in the congressional hearings the dying newspaper industry had several of the largest newspaper owners in the country complaining that they were being ripped off, that their content was being displayed on blogs, e-mail newsletters, and copied directly off their websites. In many cases, these so-called electronic copyright infringement violations were completely legal, as only 200 words or less were copied and the newspaper was cited.

Unfortunately, in many Internet forums the posters to discussions, often using only screen names, will copy and paste the entire article into the discussion group. And do this without even citing where it was from, and rather than putting up a link that people could click on to go to the newspaper’s website. The newspapers during the Congressional hearings were considered by many to be “grabbing at straws,” looking for help from Congress to crack down on online media (something they themselves are now trying to break into), and using copyright law as their reason.

Of course, luckily the Internet media was there also during these Congressional Hearings and made their case. It appeared that the legislators did not side with the newspapers. Although many newspapers are having their content lifted, almost in real time, not the next day; and the newspapers admit there is nothing they can do about it, as they cannot chase every single blogger around the Internet. Please consider these issues in copyright law, as they are very much part of our modern information age.

Common Legal Penalties For Computer Crimes

Computer technology is becoming increasingly more advanced and there is a lot of money to be made surrounding it. Where there is more money to be made, there is more criminal activity, punishable by law. The Information Act of 2000 states that there should be different penalties for different types of technological crimes. The following are common legal penalties for computer crimes.

Telecommunication service theft involves the unlawful obtainment of any telecommunications technology. This crime is punishable with a heavy fine and an undefined term of imprisonment. The legal consequences vary depending on the severity of the theft. Communications intercept crime is a Class-D crime that involves the interruption of communication technology. It is punishable by one to five years in prison along with a fine and can include other infractions such as offensive material dissemination, telecommunication piracy, and other cyber frauds.

When someone changes a source code on a computer program or website, this is called computer source tampering. Those found guilty of this crime can face up to three years in prison, or a fine. Computer hacking also carries a prison sentence of up to three years.

Though all technological crimes are taken seriously, government computer systems hold the most serious consequence when violated. Trying to obtain access to a system protected by the government is a very serious crime that can have major consequences on government operations. Anyone found guilty of tampering with a government computer faces ten years in prison and a major fine.

Protecting computer technology crimes is extremely important because the world now relies heavily on the use of computer systems to operate. With one of the most common legal penalties for computer crimes being a prison sentence, the legal system has been very effective in putting new laws in place with the changing technology. Technology crimes are taken very seriously and punished harshly.

New York Speeding Ticket Costs

A New York Speeding Ticket Can Be Very Costly

You are running late to an appointment. You press on the gas pedal and try to steal a few minutes by speeding. After reviewing the fines and points for speeding tickets, you will agree that a New York speeding ticket is too costly and that it is wise to contact a New York traffic lawyer.

If you are ticketed for driving up to 10 mph over the speeding limit, the fine is up to $150. Speeding between 10 mph and 30 mph over the posted limit may bring you a fine of up to $300. If you are convicted for travelling more than 30 mph over the speed limit, the fine may cost you up to $600. A ticket for “speed not reasonable and prudent” carries a maximum fine of $150.

It is important to note that the above fines do not include the state surcharge which is either $80 or $85 depending on the court.

The amount of the fine varies depending on a number of factors:

· If you have more than one speeding conviction within 18 months, the amount of the fine increases.

· Three convictions for speeding (or two work zone speeding convictions) in 18 months result in your license being suspended.

· The location of the speeding ticket impacts the amount of the fine. For example, school zones, restricted highway or work zones can have higher fines.

Accumulate 6 points within 18 months and you will have to pay a Driver Responsibility Assessment of $100 per year for 3 years and $25 per year for three years for each point over 6.

These fines and surcharges don’t even take into account the increase in insurance premiums that you can experience.

The amount of points that are tacked to your driving to your NY record driving for every NY speeding ticket is important. A motorist ticketed for driving 1- 10 mph over the limit is given 3 points. A violation of 11-20 mph over the limit results in 4 points on your driver record. A conviction for speeding 21 -30 mph over the limit lands 6 points on your DMV record. 11 points are tacked on your record for a ticket for more than 40 mph over the limit.

It is noteworthy that if you accumulate more than 11 points in 18 months, the DMV may suspend your driving privileges. In addition, points amassed from tickets in other jurisdictions will also apply in NY.

Copyright Law

What is a copyright?

A copyright is a type of legal protection afforded to creators of original works, including literary, musical, dramatic, choreographed, and architectural works, motion pictures, sound recordings, and works of art, such as paintings, and sculptures.

Copyright protection prevents another individual from copying, performing or using the piece of work without the express consent of the author or creator and establishes the ownership of the piece of work. Protection is available to both published and unpublished works. To be able to be copyrighted, a work must be original and must have already been written or recorded. This is because a copyright does not protect an idea or plan; instead, it protects the expression of that idea or plan.

Can a website be copyrighted?

Any original work or authorship appearing on a website can be protected under copyright law. This may include any text or articles, digital artwork, photographs and animation to appear on the website. Because a website cannot be sent to the Copyright Office in the mail, the procedures for registering the contents of a website are different than a standard document or photograph.

A key aspect of a website that cannot be copyrighted is the website’s domain name. Responsibility for domain names falls under the jurisdiction of the Internet Corporation for Assigned Names and Numbers, a nonprofit organization located in California that has assumed the responsibility for assigning domain names by means of accredited registers.

Who can obtain a copyright?

Copyright protection exists from the time a piece of work is created. A copyright is obtainable by the author or creator of a piece of work or, in the case of work made for hire, the employer or contractor.

The authors of a joint piece of work are co-owners of the copyright unless there is an agreement to the contrary. Mere ownership of a piece of work does not give that owner the copyright. Transfer of ownership does not automatically transfer the copyright to the individual who received the piece of work.

While minors may claim a copyright, many state laws regulate the business dealings involving the copyrighted work own by the minor.

Being a Cyber Stalking Target Can Strike Fear in Even the Strongest People

While it may be true that many individuals do not scare very easily, there are instances when even these people become frightened when they are faced with the problem of cyber stalking. This occurrence is an issue that can affect many people in very different ways depending on the severity of the situation and the specific circumstances involved. Being the victim of a cyber stalker can be terrifying and many people are simply not equipped to deal with this kind of terror, largely because they do not know what to do to identify the guilty party, or stop the undeserved threats from coming.

Internet investigators can perform a variety of investigations to find the source of these threatening emails, as well as the identity of the person sending them. The type of investigation that is most commonly used is a reverse email look-up. This process can obtain such information as the name, address and phone number of the person thought to be cyber stalking innocent victims, as well as their place of employment, their internet service provider and browser type, what websites they visit and how often, the location of the computer used, and the operating system of the computer. This information is highly valuable in identifying the individual that is sending threatening emails and give you the tools you need to put a stop to this type of harassment.

The best way to obtain this much needed information is to turn to a professional and experienced internet investigator to perform a reverse email look-up. These investigators are highly trained and have many tools available to get whatever information can be found in regards to individuals suspected of being stalked on the Internet. Once information is obtained there are numerous other steps that can be taken to stop this frightening type of communication.

The investigators who conduct cell phone forensic investigations have many years of experience and know exactly what to do to obtain this information safely, effectively and legally. This type of investigation often leads to the victims of cyber stalking feeling much safer and getting the information which is necessary not only to identify these individuals, but also to take the appropriate actions to put a stop to the threats and communication which is the source of the fear in which these people have been forced to endure. A reverse email trace may take anywhere from one day to two weeks and includes a detailed report on the information which is discovered during this process.

This Article Is Brought To You By The Letter Blank

Most of the American public including most all entertainment lawyers, heard about one of Oprah Winfrey’s well-publicized litigations a number of years ago. My understanding was that she was sued in Texas by a commercial cattle-oriented conglomerate. The plaintiffs apparently claimed that Oprah had inaccurately and unfairly maligned the culinary safety of cow meat, during one of her television programs. The Texas case seemed vaguely surreal and comic, even from the perspective of an entertainment lawyer – sort of like an overly-imaginative law school exam question. But next we must go from the sublime to the ridiculous. This next case was an entertainment lawyer and trademark lawyer’s delight. Talk about the eradication of your sacred cows. The local press in New York reported that a German “fetish magazine” named “O” sued one of Oprah’s companies and her publisher, over the sale of Oprah’s magazine bearing the equally-expansive title of “O”. Query if it was really a service mark dispute as opposed to a trademark dispute.

Perhaps even more befuddling, from the entertainment lawyer or publishing lawyer perspective or otherwise, the German “fetish” magazine somehow derived its own title from the erotic novel “Story of O” – serving as even more of a reminder that there is truly nothing new under the sun. And if this were not bizarre enough, the local press reported that Oprah’s company and publisher were prepared to change the name of her magazine to “O, The Oprah Magazine”, in an apparent attempt to assuage the seething service mark or trademark plaintiff and make the distinction between the two magazines more apparent.

Coincidentally, this lawsuit received even more attention from trademark lawyers, entertainment lawyers, and others, than usual, since Lions Gate was slated to release a film called “O” around the same time the suit materialized. I understand the Lions Gate film was somehow loosely based upon Shakespeare’s “Othello”. The Bard himself referred to the Globe Theatre as “this wooden ‘O'”. Maybe if we find Shakespeare’s heirs – perhaps arguably incarnate in the Bacon Brothers – we can thereby locate the real plaintiff who has something to complain about?

But come on. All kidding aside, could this trademark (or service mark) lawsuit really be happening? Yes. Yes it could. But maybe it shouldn’t be allowed to happen. The minds of reasonable trademark lawyers, entertainment lawyers, and others, may differ.

Let’s back up a step. Generally speaking, as entertainment lawyers or trademark lawyers will advise, one acquires trademark rights or service mark rights under U.S. law, by consistently using a trademark or service mark in connection with goods or services, and/or by registering the trademark or service mark with one or more appropriate governmental authorities.

Most people and businesses pick lousy names from a trademark or service mark perspective, and most people pick those names without the assistance of an entertainment lawyer or a trademark lawyer. The majority of marks go unregistered, and the majority of trademarks or service marks are never properly searched and cleared by a trademark lawyer, entertainment lawyer, or anyone else before use. Again, there is very little new under the sun, and as most all trademark and entertainment lawyers will attest, most word-paths have been tread upon by someone else previously. Then again, searching and registering a trademark or service mark, with or even without a trademark lawyer or entertainment lawyer, is not without cost. So, many cost-constrained start-up businesses elect to just “wing it” and dispense with the search until they can afford to “get around to it”. And surprisingly, sometimes even major-league companies who can otherwise afford to so it, dispense with the trademark or service mark search, dispense with the services of the trademark lawyer or entertainment lawyer, and just go ahead and use the proposed name. Ironically, this type of decision keeps trademark and entertainment lawyer litigators who work the back-end of these fact patterns, in business.

Trademark lawyers and entertainment lawyers may sometimes advise their clients to select multiple-word names rather than one-word names – as rock-band-name trademarks or service marks, for example – since the statistical chances of infringing some other band’s name and trademark or service mark are likely thereby somewhat reduced. Most artists, on the other hand, are solely concerned about the aesthetics of the band name, and if a one-word band name sounds right to them, they will use it and darn the torpedoes. This type of decision can also keep trademark and entertainment lawyer litigators who work the back-end of these fact patterns, in business.

I have admittedly not yet trademark-searched any of the following band names. But as a trademark and entertainment lawyer, a proposed one-word band name like “Blur”, at first blush, would trouble me a bit more than the two-word “Def Leppard”, from a trademark or service mark perspective – since, without knowing anything else about the underlying facts, I would assume that the statistical chances were somewhat higher that another band might be named (or might have been recently named) “Blur”. When a trademark lawyer or entertainment lawyer performs a search on a trademark or service mark or proposed mark, these kinds of concerns and historical analyses come into play.

Trademark lawyers and entertainment lawyers may also sometimes advise their clients to try to use more incongruous word combinations as band-name trademarks or service marks, rather than predictable word combinations. By this rationale, “Squirrel Nut Zippers” (the first time, for the candy, that is!), or “Stone Temple Pilots” start to look pretty good as far as their trademark or service mark prospects, to say nothing I suppose about “Orchestral Manoeuvres In The Dark”. After all, what are the odds, the trademark lawyer queries, that the full name “Orchestral Manoeuvres In The Dark” name was used as a trademark or service mark by any other pop or rock band prior to or contemporaneously with 1986’s “If You Leave”? Then again, apart from entertainment lawyer legal concerns, the band and its handlers may have had trouble fitting the full name onto a record jacket sleeve, and may also have had trouble convincing record label A&R executives that the choice of name should be supported.

One must understand, therefore, that the prospect of trying to protect, let alone enforce and prevent others from using – a one-letter trademark or service mark, is the trademark lawyer’s or entertainment lawyer’s equivalent to fingernails scraping on a chalkboard. If a client walks into the office of a trademark lawyer or entertainment lawyer and says “Hi. I’d like to protect, for my own exclusive use, the letter ‘W'” – well, then absent some extreme fact pattern perhaps relating to a powerful Texas family, that lawyer can expect at least a long and tough road ahead – and perhaps a few broadsides of ridicule from the bench and other trademark lawyers and entertainment lawyers at the bar as well. They might think that the so-subscribing lawyer took Sesame Street’s commercial endorsement announcement “This program was brought to you by the letter ‘W'”, a little too seriously when younger.

Most Americans conceive of “monopolies” as something anti-competitive, unfair to the consumer, and ultimately evil – especially given publicity in recent years accorded to the Microsoft case. But what is interesting about copyrights and trademarks and service marks, as a trademark lawyer or entertainment lawyer will tell you, is that they are in fact legal monopolies protected by federal statute. A property right is, essentially, the right to exclude others from using that same property. That is conceptually quite similar to a monopoly. If I own my house, I can keep you off my land with a fence, and the law will back me up on that. If a company owns a registered trademark in “Chock Full o’ Nuts”, for example, then, through the efforts of its trademark lawyer or entertainment lawyer counsel or otherwise, that company owns the right to exclude others from using the same name in connection with the sale of coffee, and perhaps related goods and services as well.

So here is the trademark lawyer entertainment lawyer philosopher question. Haven’t we as a society gone too far, when we even entertain the prospect of a company, or a celebrity, laying claim to a single LETTER of the ALPHABET as a service mark or trademark? Indeed, should any prior claimant be able to use the services if a trademark lawyer or entertainment lawyer to legally monopolize the use of a letter of the alphabet, in connection with ANY kind of goods or services, magazine or otherwise? Should they and their trademark lawyers and entertainment lawyers even be allowed into court with that kind of argument?

Are all individual Arabic numerals also now in play for trademark lawyers and entertainment lawyers? We might as well allow some corporate behemoth to pull the character of Santa Claus out of the public domain, into the realm of copyright-protection, and charge a royalty whenever the fat man’s name or image is evoked. As for trademark versus service mark, does Mr. Claus provide goods or a service, when you get right down to it? And what about prior sources? Do the publishers of the first edition of Webster’s dictionary, or their successors, now have a valid trademark claim to assert through their trademark lawyer or entertainment lawyer litigators, against Oprah and the German magazine, for the use of “their” letter of the alphabet as a service mark or trademark?

Harkening back to the Oprah cattle litigation, some cows are sacred. Some things should simply stay in the public domain. Section 105 of the U.S. Copyright Act, for example, excludes works “of the United States Government” from copyright protection. Shouldn’t letters of the alphabet be treated the same way, as non-service mark non-trademark public commodities exempt from any monopolistic endeavors, upon instruction to all trademark lawyers and entertainment lawyers who might try to argue otherwise? There may well already be case law holding unitary alphabet letters to be disqualified from trademark and service mark protection under certain circumstances. The U.S. Patent and Trademark Office likely has trademark application and registration procedures, possibly reading to similar effect. If so, why not simply codify that common-sense principle in all applicable trademark statutes and other laws, as a de facto and de jure standing instruction to all trademark lawyers and entertainment lawyers and their clients? Among other things, a decisive action like this one could eliminate, or at least mandate a shorter life-span for, court-clogging trademark and service mark lawsuits like the “O” story.

And what’s next? Will the adjudicated winner of the O litigation also be awarded a legally-sanctioned monopoly as trademark or service mark over the corresponding three dashes in “- – -“; that is, in the International Morse Code symbol for the letter “O”? Will that be some other trademark lawyer’s or entertainment lawyer’s next argument? Or should that control instead now be awarded to the heirs of Morse, wherever they may be? And what about our National Anthem? Am I at risk of being enjoined by another trademark lawyer or entertainment lawyer from singing “O(h) say can you see… ” at the start of baseball games at Shea Stadium – I mean, CitiField? And what about Tic-Tac-Toe? Must there now be a Congressional mandate that “X” must always win, and must always occupy all 9 cells on the grid, so as not to “infringe” the trademark or service mark rights of the clients of any other trademark lawyers or entertainment lawyers? And if so, what about the fate of Whoopi Goldberg and Hollywood Squares in syndication?

A number of entertainers use single-word names, and we as a society tolerate that – as do, apparently, the trademark lawyers and entertainment lawyers that represent and enable the talent. We tolerate the Gilbert Gottfried “One-Named Boy” routine moreso if the entertainer has the talent to back it up: “Elvis”. “Sting”. Now, “Prince” is, of course, a variation on the theme, an entertainer who at one point dispensed with his chosen one-word name in favor of an arcane symbol not found in the American alphabet – with or without his trademark lawyer’s or entertainment lawyer’s imprimatur. The general point here is that, Prince aside, the trademark lawyer and entertainment lawyer will advise the entertainer that he or she may be able to build up some trademark or service mark protection in his or her continuous and uninterrupted use of the [a]rtist’s one-word name, particularly if that entertainer is extremely well-known.

But some of us trademark and entertainment lawyers and others may feel that claiming one of the 26 letters of the alphabet as your own, takes its own special brand of… uh… chutzpah. Basketball’s Oscar Robertson was known as “The Big O”, probably because fans and the press tagged him with that moniker – probably not because his trademark lawyer or entertainment lawyer told him to use it – and probably not because Oscar adopted it for himself. Oscar Robertson may not have been as well-liked a guy, if instead he himself had arrogated “The Big O” nickname for his own use! And speaking of Oscar, asks the trademark and entertainment lawyer, how ‘come he hasn’t appeared yet in this lawsuit?

In similar vein, some trademark lawyers, entertainment lawyers, and others may feel that Oprah should have been satisfied to call her magazine “Oprah” rather than, simply, “O”. It is unlikely that Oprah’s decision as to how to name the magazine was forced upon her by her colleagues – entertainment lawyers or otherwise. In other words, a different P.R. decision may have had incidental legal benefit, too.

Sure, there is precedent in the entertainment field, as trademark and entertainment lawyers are aware, for trademark or service mark use predicated upon a single letter of the alphabet. The musical group “M” had a number-one hit with “Pop Muzik” in 1979, and that was kind of cute – but the group seemed to disappear from the music scene before anyone even began to consider the trademark or service mark implications of their continued use of their band name. Perhaps the group’s trademark lawyer or entertainment lawyer will read this article and write to this website to weigh-in.

The television company “E!” of Chelsea Handler and Talk Soup renown has apparently been successful in establishing a brand name for itself, presumably with trademark lawyer and entertainment lawyer counsel and assistance, accepting the inherent challenge in generating trademark and service mark rights in a one-letter name. But the E! Network’s use of the exclamation point, and their occasional use of the linked phrase “entertainment network”, arguably properly distinguishes them from the alphabet-usurping pack. The Motion Picture Association of America (MPAA), along with the help of its trademark lawyer counsel, lays claim to its single-letter-ratings as trademarks or service marks in some fashion – that is, currently, “G”, and “R”. But then again, I suspect that the MPAA would carefully refrain from threatening another company’s use of the letter “G” or “R”, unless that use was made in the context of ratings or otherwise in connection with motion pictures or filmed entertainment.

The point is, there is something disturbing about this O lawsuit filed in the district court in Manhattan, from the perspective of an entertainment lawyer and trademark lawyer, and perhaps to others as well. What if a schoolteacher reads about this lawsuit, and now tries to find a trademark lawyer lay personal service mark claim to the letter grades “A” through “F” as used on student-graded papers? What if that same teacher starts invoicing all other teachers who grade papers in the U.S., demanding trademark royalty payments? And speaking of damage to the world of education, what will Grover, Elmo, and the gang at Sesame Street do, when they can no longer boast that a particular program is “brought to you by the letter ‘W'”, at least not without their entertainment lawyer or trademark lawyer counsel present on set? Worse yet, will that entertainment lawyer or trademark lawyer be required to wear an over-the-head costume or be a muppeteer to blend-in on the set when doing so? The consternation is enough to press the ghost of O. Henry and his trademark lawyer back into active service – the only question being, if O. Henry rejoins the non-ethereal world and joins the lawsuit, will he join as party-plaintiff or party-defendant on the advice of counsel? And, will O. Henry’s apparently-prescient use of the period after his “O” render him impervious to trademark or service mark liability?

But seriously folks, in defense of Oprah and the trademark and entertainment lawyers that love and enable her, it is apparently not her or her entertainment or trademark counsel or entities that initiated the aggressive attempts to exclude others from use of the letter “O”. Rather, according to the news reports, it was the German “kinky fashion” magazine promoting leather and garters that decided to attack Oprah’s company in the context of the New York court, and the magazine then sought out a trademark lawyer for that purpose. And in response, Oprah and her affiliates, presumably on trademark lawyer or entertainment lawyer advice, apparently decided to expand her magazine title, to make the bright-line distinction between the two magazines more apparent to all, including the consumers. Maybe as a matter of reciprocal international courtesy, and in an effort to keep this dispute from wasting further judicial resources or using up more trademark lawyer or entertainment lawyer time, the leather and garter crew should agree to change their magazine’s name from “O” to “Ouch!” But query if they thereby would risk receiving an adverse trademark or service mark claim from the ‘E!’ network based upon the use of ‘E!’s exclamation point.

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A Brief for Lawyers in Spain on Sexual Harassment in the Workplace

Spanish courts are punishing those companies that do not offer specific procedures that can facilitate as well as reduce the need for complaints of sexual harassment within the workplace.

The High Court in Galicia highlighted the matter in a recent judgment in which a company was reprimanded for damages caused to a female worker as a result of failing to implement programme to prevent sexual harassment in the workplace.

Equality Law

The regional High Court noted that Section 48 of the Equal Rights Law, signified that companies ought to promote an atmosphere in the workplace that would avoid sexual harassment and sexual discrimination and that it was not establishing a mere recommendation. In that regard, the rule created an obligation on the part of the company to adopt preventative measures.

In the case before the court, it was considered proven that the company not only had failed in adopting preventative measures but that its complete indifference towards an act of sexual harassment by one of its workers, of which it was aware, had also been demonstrated.

For this reason, the judge reading the decision of the court said, that even where the company did not have knowledge of the sexual harassment (although in this case it did), such failure would not exculpate it from responsibility for the damages caused to the plaintiff.

The court did not disagree that the Supreme Court in a previous case had decided that, upon lack of knowledge of the sexual harassment that it would be absolved of responsibility. However, it resolved that it could not be overlooked that the facts of that case took place before the enactment of the Equal Rights Law.

Award Upheld

As a result, the High Court of Galicia decided to uphold the sentence of the judge of First Instance against the company as well as the award of damages in the amount of 4000€. Furthermore, the Court decided not to reduce the amount originally awarded given the failure of the company to implement preventative measures and, moreover, as a result of its passivity in the matter.

In addition, the Court also decided to set aside the company’s decision to terminate the employee’s employment contract for disciplinary reasons. The court concluded by expressing that, having proven the sexual harassment had occurred, everything pointed towards an unfair dismissal on the basis of gender.

Consequently it was decided that the company, upon awareness that sexual harassment had taken place, decided to remove the problem by firing the victim of the harassment and not the perpetrator.

How To Obtain The Finest Legal Representatives

In life, things happen unexpectedly and the hard thing about it is that you can’t predict when events will take place. For years, you might not have gotten any speeding ticket. But tomorrow or the day after you might get one because who didn’t notice the red light and you are in a hurry to be at your office. Same goes with disputes or misunderstandings with your family, relatives and neighbors. Today, you might be friends or in good terms with them. However, the following day, you might be at war with them that you can no longer settle your differences amicably. Whatever kind of situation you are in, it really pays off to plan ahead and prepare for any instances you will be needing a good legal representative.

At present, the market is full of legal companies offering their service or assistance. Some experts claim that the rise in the number of law agencies is caused by the increasing quantity of graduates who are interested in pursuing a career in law. As it has been observed, more and more students go to law school right after they graduate. As a result, clients have a hard time picking one as not everyone is equal. Not surprisingly, there are those that do not actually commit to the promise they have made. Some law firms fail to fulfill their responsibilities. On the other hand, there are also those that really provide quality service and they are the ones you need to look for.

To help guide you pick the best lawyer you can partner with and rely on, professionals give out a couple of advice:

Look for a legal representative ahead of time. Most people only do the search if they are already in a situation where they need someone to represent them in court. This is actually one of the biggest pitfalls as this could result to the hiring of an unreliable lawyer. Note that when folks are running out of time, they tend to settle with the first one they see. This is not good as you are not guaranteed that they are the best legal practitioners to entrust the job to. Before you decide to employ someone, you first have to check if they are credible and capable of doing the job. Therefore, as early as you can, go look for a good lawyer and scrutinize his skills and capabilities to make sure that he can do the job well.

Take into account the type of problem you are facing. Each attorney practices a specific branch of law. Hence, it would certainly pay off to consult a legal representative who specializes in the area you need help. Certainly, it wouldn’t make sense to consult a family lawyer, when your problem is related to criminal law.

Go for solicitors who have good communication skills. In the field of law, there are lots of legal terms as well as procedures that regular individuals can’t understand, unless they have a law background. Therefore, when you are searching for a legal representative, opt for one who can explain these concepts to you in a simpler and understandable manner. Arrange first a meet up or consultation to find out if they can do this task or not.

These are just simple tips but adhering to them will really pay off in the end. Read more here.

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