Monthly Archives: May 2012

How To Use The iPad (iPhone) And iOS 5 In Litigation

Posted on by
23

You have an iPad. You’re an attorney and, worse yet, a litigator. Now what? The iPad is nothing new. That sentence is shocking to read, but it is true. The iPad hit stores in April 2010. The iPad 2 is a success, and we are nearing the release of the third-generation iPad. What the iPad has lost in novelty, it has gained in utility. The native iOS 5 software and the App Store contain useful tools and applications to help you, the litigator, get the most out of your iPad or iPhone.

The following are some iPad and iOS features, applications and tips that litigators might find useful:

iOS Features:

– VoiceOver. (Settings > General > Accessibility). Eyes tired? Long day staring at documents? Don’t feel like reading that 500-word email? In the car at a stoplight and don’t have time to read the whole email? Why not listen to it with VoiceOver? If you have an iPad or iPhone, you already have the capability. Simply adjust your Accessibility settings so that VoiceOver is on, point to text and let your iDevice read the contents of your screen to you. For quicker access to the VoiceOver feature, go to the Accessibility settings screen and adjust “Triple-Click Home” to “Toggle VoiceOver”. Now VoiceOver can quickly be turned on and off by tapping the Home button (circular button with the square in it on the iPad body) three times in quick succession. Caution: Be sure to familiarize yourself with the touch controls while VoiceOver is on before turning VoiceOver on. The touch controls are slightly different. Here are some quick tips on VoiceOver touch controls:

  • Tap once on text to read the text aloud until the next HTML break, such as a paragraph break.
  • If you tap an on-screen button once, it will read the button function aloud and then you must double-tap the same button to activate the button.
  • You must scroll with three fingers, instead of one.
  • To jump to the next text field like Tab does on a keyboard, swipe one finger to the right. To go back, swipe one finger to the left.
  • To have VoiceOver read continuously through an email and not stop at each break, swipe two fingers in a downward direction on the screen after selecting the starting paragraph.
  • Remember, VoiceOver was designed to assist users with vision problems. If it doesn’t make sense to you why VoiceOver is doing something, consider whether it would be helpful if you could not see your screen.

– VPN and RDP. (For initial setup: Settings > General > Network > VPN). (Once settings are saved, toggle on by: (Settings > VPN). This one may require coordination with your IT department. iOS 5 on the iPhone and iPad allows for VPN (virtual private network) access to your office network. This is likely necessary to access information behind the security walls of most law firm computer networks. Plug in your firm’s VPN settings and connect to the firm’s network via VPN. Once connected, you can use a RDP (remote desktop protocol) app to remotely access your office workstation. One RDP client app that I recommend is iTap. You will need to know certain information about your computer’s identifying information and your user name and password.

– Lock Rotation. Did someone email you a file with an incorrect orientation—in landscape when it should have been sent in portrait? Well, if this happens to you, it can be a dizzying and annoying experience trying to tilt your iPhone or iPad just right so you can read the document. The gyroscope and the reorienting feature of the iPad/iPhone is great…until it’s not. There is a way to stop the screen from spinning. Go to Settings > General and review the settings under ‘Use Side Switch to:’. If ‘Mute’ is checked, a double-tap of the Home button and a swipe of the App Tray to the right is how you will access your screen orientation lock button (double-tap home button and a swipe of the App Tray to the right is also how you access Lock Rotation on your iOS 5 or later iPhone). If ‘Lock Rotation’ is selected, the slide switch on the side of your iPad above the volume controls will toggle your lock rotation feature on and off. If your screen continues to spin after locking the rotation, consult a physician.

– Mirroring. Want to project the display of your iPad or iPhone on to a television or other screen for presentations or meetings? Mirroring is a good option. With an iPad/iPhone/iPod Touch running iOS 5 or later on the same WiFi network as an Apple TV (or the proper direct connection cable), a user can create a mirror image of what she sees on her iOS device on the screen connected to the Apple TV. For instance, you can display what you see on your iPad on an LCD television. This might be useful for presenting PDF files, web pages, or even training others on how to use the iPad. Learn more about setting up and using Mirroring here.

–AirPlay. AirPlay also requires an iPad/iPhone/iPod Touch running iOS 5 or later connected to the same WiFi network as an Apple TV. If you do not need all of the features of Mirroring and simply want to play a video, song, or display photos in a slideshow type format to a group, AirPlay might be right for you. Learn more about setting up and using AirPlay here.

Apps:

– iAnnotate or GoodReader. Litigators live and breathe PDFs. Court filings, discovery productions, and client files all flood a litigator’s email account with PDF files. Inevitably, an attorney will want to markup a PDF, make notes on a document or store certain PDFs on the iPad hard drive for quick retrieval later. Attorneys with iPads should have a PDF annotation and organization app. In my opinion, there are two clear leaders in this app category, iAnnotate and GoodReader. Tip: While any PDF can be marked up and annotated in these programs, ensuring that the PDFs you use are OCRed prior to use with these apps will allow a user to make use of the full suite of features in both apps. To the extent possible, every PDF should be OCRed. (OCR is an initialism for optical character recognition. It means the PDF is no longer just a flat image of the document. An OCRed document contains text recognized by computing devices–allowing text search and character highlighting.)

  • iAnnotate. A robust PDF markup and annotation program, that allows highlighting, underlining, typed notes, call-out notes, and more. If you will be doing a lot of handwritten annotation, I would recommend the purchase of a stylus. Targus makes a good, inexpensive stylus for the iPad. Google it or find a Best Buy.
  • GoodReader. Learning from iAnnotate and similar programs that beat it to the punch, GoodReader recently updated its app to include substantial PDF markup and annotation tools. The current features of this app are too many to list in this post, but the following are a few highlights litigators may find useful:
    • Store files, such as but not limited to PDF files, on the iPad hard drive for quick, ready access;
    • Organize multiple files in folders and subfolders;
    • Highlight, markup and annotate PDFs;
    • Search OCRed PDFs;
    • Transfer files to iPad via USB, WiFi, email attachment or web download;
    • Attach files within GoodReader to emails (This is big, since the native Mail app in iOS 5 will not allow for email attachments other than pasting photos.);
    • Data protection or file encryption for locally-stored files;
    • Password protection of the entire GoodReader app or individual files with the app;
    • AirPrint; and
    • Integration with iCloud, Dropbox, other cloud data services.

-Keynote. An app version of Apple’s answer to Microsoft PowerPoint, use Keynote to create, edit and deliver slideshow presentations. For presentations, get a HDMI cable to hook up to a television or use AirPlay Mirroring with an Apple TV. Not a perfect app, but it may be the best app at what it does.

– Pages. A trimmed-down and touchscreen-friendly word processing program, this app is no replacement for Microsoft Word on a desktop or laptop. Still, it is a useful tool for creating or editing the formatting of word processing documents. This post was created primarily using Pages.

– FedCtRecords. Use PACER? Want access to PACER on your iPhone or iPad? This app is new and allows users to access PACER using their account information. Since the app is relatively new, I have not had a chance to thoroughly test the app. There is only an iPhone version of the app for now, but it works with the iPad through the iPad’s iPhone app compatibility feature. This app is free for a limited time. After that, the rumor is it will be $19.99. Act now and save your $20.

– WestlawNext. Westlaw research on your iPad, but this is not yet available for the iPhone. This app is highly functional with a WestlawNext subscription. Research case law, statutes, secondary sources and more on your iPad. Highlight text and make notes on Westlaw research materials. Save to WestlawNext’s cloud-based, user-friendly folder storage. It is great for research on the go and may help you find that case you need even while you are in the courtroom.

Accessories:

– Get the bigger hard drive? If you are going to be storing large files or a number of files of any size on your iPad hard drive, this includes all your iTunes movies and your vacation photos, pay the extra money for a larger hard drive. Sure you could use cloud storage to virtually expand your hard drive. But storing files in the cloud will require web access and patience to retrieve when those files are needed. Access to the former is sometimes difficult, and the latter is simply impossible for litigators.

– Keyboard or No Keyboard? I am comfortable using the iPad on-screen keyboard. I don’t want the bulk of a Bluetooth or dock keyboard, and that is one more thing I have to remember to carry. Some people hate the lack of tactile feedback from the on-screen keyboard. This decision is pure preference. One point I would make is that if you prefer having use of your entire iPad screen, as opposed to two-thirds of the screen when the iPad soft keyboard is in-use, you may want an external keyboard.

– Case. There is a reason there is no question mark after this header. You (or your firm if you’re one of the chosen few) just shelled out a good bit of money for an iPad. iPads break or scratch. People are clumsy. I am sure Apple is working on an indestructible iPad, but until then, why wouldn’t you protect your device? What’s that?! You prefer the look of the iPad as Steve Jobs himself intended? Ok, then don’t whine to anyone when your preference for aesthetics over practicality and protection bites you. Search the web. There is a wide array of iPad cases, covers, and shields out there to help protect your shiny object. Some even look nice. If you’re an external keyboard person, there are a number of cases on the market with external keyboards integrated into the case itself.

– Stylus? If you think you want to create handwritten notes, draw, design, or simply hate fingerprints, a stylus may be right for you. You can also digitally sign documents with a stylus and PDF annotation program.

And two to grow on . . .

– Backup your device regularly, and encrypt your backup file if you store confidential information on your iPad or iPhone. New features such as wireless syncing and iCloud make this process easier than ever (well, less wire-intensive at least). Do it or risk regret.

– Siri Dates. While this sounds like the worst name ever for a dating site for Apple fanboys and fangirls, Siri does a great job of calculating calendar dates and calendaring appointments. If you have an iPhone 4S or otherwise have access to Siri (cough…cough…hacked), here is a quick tip. Let’s say your client has been served with a complaint and under the applicable rules you have 30 days to respond. You can simply ask Siri, ‘what is 30 days from December 25, 2011?’ Siri will respond with the date of 30 days following December 25, 2011, January 24, 2012. If your client was served with a complaint on Christmas, I feel sorry for your client. But you get the idea. While Siri will not explain to you how deadlines are calculated under the applicable rules with respect to holidays, weekend and how to count the number of days (yes, I asked), a quick comparison of the result of the Siri inquiry and your own separate, educated calculation will tell you if Siri is counting the days correctly under the relevant rules. You can figure out what to do if the end date falls on a holiday or weekend on your own. Lawyer disclaimer: Siri is not a substitute for independent judgment. Heaven help us all when it is.

Exposing Construction Defect Litigation

Posted on by
31

What happens when a New Home Buyer purchases a home that has been involved in Chapter 40 (CD) litigation?  

It’s a question that remains unanswered.  With over 5,000 Chapter 40 lawsuits filed in Northern Nevada since the current law was enacted in 1995, there are thousands of homes that have undergone or are currently in litigation as a result of construction defect lawsuits.

Who is responsible for notifying potential homebuyers of the lawsuits, the alleged defects and/or the settlements that were given?

House Fax Review (HFR) is a tool for Contractors, Realtors and Consumers.  It has been designed by contractors to help provide vital information regarding litigation actions related to a specific ADDRESS or PERSON. Users will have access to the claims made by plaintiffs  information gathered from multiple sources, regarding Construction Defect (CD) individuals have made in the past, or in which they might be participating.

It’s easy to use, and works in several ways:

1- A Builder or Subcontractor can anonymously deliver their CD data for each address where they have received a notice.  Each individual submittal is added to the current database creating a center of knowledge for users.  (The site is free to use for those providing data.)

2- The use of HFR allows buyers to search any properties they are interested in purchasing.  If we have the information, they are able to reduce their risk of buying a home with unresolved Construction Defect issues and costly problems.

   Some sellers fail to disclose properly, or even at all.  To help Realtors in their quest to properly disclose, they can search by address and name to determine if the homes they choose to represent have participated in construction defect litigation.  If we have the information, you can too!

   “The Construction Defect issue is huge all on it’s own.  Despite my frustration with the issue, my growing concern is the number of homes that have been served notices, received compensation, yet the homes weren’t repaired.  With that said, I saw a need to make this information available to the general public.” stated Peter Lissner.

   Lissner goes on to explain. “I’ve had homeowners go through the entire Construction Defect process; from the knock (6 times)  on their door by a legal representative to the receiving of financial compensation. Often attorneys are awarded compensation for the clients they represent but rarely is enough money awarded to complete the repairs.  In most cases owners choose to keep the money and not repair the defect.” As a result, these homes are coming back onto the market with affirmed Construction Defects and no repairs having been made.  The question remains, who is going to let  the new homeowner know about the issue?  Shouldn’t there be a process in place for potential new home buyers to be aware of these pitfalls?  Disclosure laws are not working and don’t seem to provide any real consequences.

Enter House Fax Review. 

   Users can search by ADDRESS to see if a home has undergone a construction defect issue.  When a search of an address is conducted and a defect has been filed, it is flagged.   The user can request a report of the defect for a minimal fee.  “It is a tool that can provide peace of mind for the buyer and the REALTOR,” states Barbie Marcoe, REALTOR®, Chase International.  “As a REALTOR, I am very much aware of construction defect, as I used to work for a builder.”

   Although in its infancy, House Fax Review is growing its database of entries.  With more than 1,500 homes listed in the database, Lissner expects the number to continue to rise. As more and more contractors, law firms and insurance companies  begin to provide their information, the site will become a greater resource for everyone.   “I am very supportive of House Fax Review, “ says Lynn Crosswhite, owner of Meridian Concrete.  “Not only does it create awareness within our industry as to the number of frivolous lawsuits, but most importantly it involves two segments that need to understand  construction defect; Homebuyers and REALTORS®”.

   Creating awareness is the main goal of House Fax Review.  “I just learned about this site and I think it is sorely needed, “ says Sue Cavallero, of Cavallero Heating & Air.  “If more of the public was aware of the frivolity and unfair practices generated by these suits, we could create more support outside of the building industry.  We need that support.”

   House Fax Review is evolving every day according to Lissner.  “This is a long term project that has grown and changed since inception.” If all goes well, our plan is to cover Nevada and then move on Nationally.”

For more information on House Fax Review, visit their website at www.housefaxreview.com.

Construction Law Alert: Lien Waivers Sink Bond Claim

Posted on by
20

If you’re not being paid, then don’t provide lien waivers saying that you are. That’s the clear lesson in a recent case, J.H. Larson Electrical Company v. Rochon Corporation. In J.H. Larson, the Minnesota Court of Appeals rejected the bond claim of an electrical subcontractor’s supplier because the general contractor had relied upon full lien waivers from the supplier when making progress payments to the subcontractor. Leonard, Street and Deinard successfully represented the contractor in making this argument.

The supplier never complained about being unpaid, and did not file a bond claim, until after the electrical work was complete and the contractor had paid the electrical subcontractor over 97% of the subcontract price. The supplier then served a $167,969.12 bond claim against the contractor’s payment bond surety.

In refusing to pay the bond claim, the contractor argued that the supplier should be “estopped,” or barred, from collecting on the claim. During the project, the electrical subcontractor had provided the contractor with lien waivers from the supplier stating that the supplier had been paid in full and leaving blank the space for filling in the amounts still owed by the subcontractor. If the supplier had not provided these lien waivers or had otherwise complained about not being paid, the contactor argued, the contractor would have issued joint checks or taken other steps to ensure that the supplier was paid.

The Court noted that contractors customarily insist upon lien waivers on both public and private projects as a way to monitor payments from subcontractors to lower-tier subcontractors and suppliers. If the lien waivers do not indicate the balance, or if the lower-tier subcontractor or supplier does not otherwise complain about being unpaid, the contractor will justifiably assume that the lower-tier supplier has been paid and will pay the subcontractor.

The J.H. Larson case illustrates how insisting upon lien waivers can help protect projects from mechanic’s liens and payment bonds. This particularly applies to suppliers who furnish materials to subcontractors for a number of different jobs. When the subcontractor’s payments begin to slow, the supplier may threaten to stop delivery on active jobs unless the subcontractor keeps paying off old jobs. The subcontractor then uses money from current jobs to pay off old jobs; and the supplier knows it can rely on the payment bond on the current job to be made whole. (The supplier doesn’t have any legal obligation to file a bond claim until 120 days after last furnishing materials.) The supplier doesn’t complain to the contractor because it knows that, if it does, the contractor will start issuing joint checks and the subcontractor won’t be able to pay off older jobs on which the supplier’s lien and bond rights have already expired. At the end of the job, still within the 120 days, the supplier may file a bond claim for a large percentage of the materials that were furnished to the current job. In the J.H. Larson case, the contractor and surety were surprised by the unexpected bond claim; but they were protected by the lien waivers.

Lien waivers are a valuable tool, but contractors cannot rely upon them in the face of other information indicating that the subcontractor is not paying its lower-tier subcontractors and suppliers. If the supplier provides a full lien waiver, but also complains to the contractor about not being paid, the contractor must investigate the supplier’s payment status. If the supplier is in fact not being paid, then the contractor should issue joint checks, pay the supplier directly or take other steps appropriate to avoid lien or bond claims.

via Construction Law Alert: Lien Waivers Sink Bond Claim | Leonard, Street and Deinard.

Who is at Fault for Florida Construction Defects?

Posted on by
44

Florida has a comparative fault statute that allows contractors the opportunity to split fault with other parties that may be partially to blame for construction defects, unless the other parties caused the damage by committing an intentional tort.

When Floridians picture their dream house, one thing that doesn’t cross their minds is that their ideal home will be riddled with construction defects. Unfortunately for some, this nightmare becomes a reality when they realize contractors, or various others, have not followed through on their promises – inevitably leading to Florida construction defect litigation.

Apportioning Fault in Florida Construction Defects Cases

Florida has a comparative fault statute that allows defendants the opportunity to split fault with other parties that may be partially to blame for construction defects – thus limiting the contractor’s monetary liability.

Basically, the court allows the contractor to list other nonparties for the sole purpose of apportioning fault. But, the question becomes, who decides which nonparties are able to be listed for apportioning fault? This query was answered by the Court of Appeals for the Eleventh Circuit in an opinion issued last summer.

In the case, a woman sued her contractor for the defective construction of her home. The jury at the trial court level agreed that the woman suffered damages, fixing her damages at $225,000. However, the jury also concluded that 95 percent of the fault could be attributed to the nonparties listed by the contractor, meaning the contractor would only be liable for 5 percent of the $225,000 – a mere $11,250.

Florida Comparative Fault Statute Does not Apply With Intentional Torts

The woman appealed this decision arguing that the language of Florida’s comparative fault does not permit the contractor to list other nonparties who may be at fault in the construction litigation if these nonparties actually committed intention torts. This was done in the hopes that if fewer parties are at fault, the contractor’s apportioned fault would increase from 5 percent, meaning the contractor would be liable for more than just $11,250.

In support of this contention, the woman cited statutory language that said the Florida comparative fault statute “does not apply to any action brought by any person…to any action based upon an intentional tort.” In addition, the woman further argued on appeal that whether or not the nonparty actually committed an intentional tort was a question for the judge to decide, and thus should not have been submitted to the jury at the trial court.

Ultimately, the appellate court sided with the woman’s position, agreeing that the question of whether the nonparties actually committed intentional torts, and thus cannot be considered when apportioning fault, is a question for the judge and not the jury.

When coming to this conclusion, the appellate court also turned to the language of the statute, which requires the court to determine whether the comparative fault statute is applicable to the given situation. Specifically, the court noted that the statute applies in “negligence cases,” and when deciding whether the case is a negligence case “the court shall look to the substance of the action and not the conclusory terms used by the parties.”

Moreover, while observing that Florida’s comparative fault statute is inapplicable in instances of intentional torts, the appellate court noted that Florida courts have interpreted “this language to mean that a defendant charged with negligence cannot apportion fault to a nonparty whose intentional conduct was a foreseeable result of the defendant’s alleged negligence.” The appellate court came to the conclusion that this interpretation – in conjunction with the fact that the court is charged with determining if the case is a negligence case – made it clear that the judge, and not the jury, is appointed with the responsibility of determining whether nonparties listed by the contractor actually committed intentional torts and ultimately cannot be attributed any fault.

The appellate court concluded the trial court made an error when they permitted the jury to make the intentional tort determination, especially since they were not even given the definition of what an intention tort was. Thus the appellate court vacated the trial court’s judgment regarding the apportioning of fault and directed the trial judge to determine whether the nonparties actually committed intentional torts – meaning the contractor’s liability would rise if the judge determined intentional torts were committed by the nonparties.

If anything, this case illustrates just how complex construction defect litigation can be in Florida, which is why it is important to contact an experienced construction defect attorney if you have suffered damages as a result of a construction defect.

via Who is at Fault for Florida Construction Defects? – US Politics Today.

Jury Waivers: an Alternative to Arbitration

Posted on by
39

The practice of requiring employees to sign mandatory arbitration agreements has become more widespread, and the enforceability of those agreements are routinely accepted by the courts. The pros and cons that are typically associated with arbitration include the following:

Avoidance of Juries: Conventional wisdom is that arbitrators tend to be both more predictable in decision making and reasonable in awarding damages. However, others argue that arbitrators tend to “split the baby.”

Less expensive? Some say yes, some say no.  Attorneys’ fees may be reduced, but the costs shouldered by the employer for administering a private dispute resolution system may increase.

Private

Speed

Informality

Finality: No route to appeal absent exigent circumstances.

Potential Increase in Claims: Some employers have a concern that employees may pursue more claims if they can do so easily and relatively cheaply through arbitration.

More cases are decided on the merits than in traditional litigation.  More cases settle through traditional litigation than go to trial.

Use of screening mechanisms such as pretrial motions are done away with.

However, lately, employers have been trying something different to get the best of both arbitration and the judicial system: Jury waivers. Dispute resolution with employees may return to a judicial forum without the uncertainty of a jury, and without having to shoulder the financial burdens imposed on employers for administering arbitration.  Recently, the Texas Supreme Court ruled that an employer may make initial or continued employment conditional on an employee’s waiver of the right to a trial by jury. In In re Frank Motor Co., the Court found “There is no reason to treat the effect of the at-will relationship on a waiver of jury trial differently from its effect on an arbitration agreement. Arbitration removes the case from the court system almost altogether, and is every bit as much a surrender of the right to a jury trail as a contractual jury waiver.”

What This Means For You

If you currently require your employees to execute a binding arbitration agreement as a condition of continued employment, or you have been considering that alternative, you may wish to reconsider your practice and implement mandatory jury waivers. It could provide the best of both worlds.

via Jury waivers: an alternative to arbitration – Lexology.