Wednesday, March 27, 2013

10 Things Every Reader Wants From A Writer |

see - 10 Things Every Reader Wants From A Writer |


"x x x.

Here are 10 things every reader wants from a writer, no matter what their experience level. Follow these guidelines and your readers will love you.
1. What intrigues you? – If you’re intrigued about something, your readers will find it intriguing, too, no matter what their experience level. Tell them why you find it so interesting and let them share in your excitement. On the other hand, if you find it boring, they probably will, too, so why bother blogging about it?
2. Outline a simple path – Draw a direct line from Point A to Point B and make it a clear path that’s easy to follow. If the path is easy to follow it won’t matter if your reader is an expert or a beginner.
3. Write for someone just like you – Write like you’re explaining something to a friend, but a friend who doesn’t have all the knowledge you have. Your tone will be appealing to your experienced readers and the beginners will appreciate the attention to detail.
4. Trim the fat – Stick to the topic. Before you even start writing make firm decisions about what you’re going to cover and don’t cross the line. Even experienced readers can only absorb so much information in one sitting.
5. Include the obvious – You may think it’s obvious but if I’ve never done it before I need to know about it. Include every single step and detail necessary to understand your message. But only include the necessary information. Anything else will be distracting and confusing for all readers.
6. Use simple language – Industry jargon is fine, as long as you explain it. But leave your 14-syllable words at home, please. Use simple, little words that everyone can understand.
7. Be respectful – Don’t talk down to your readers and don’t try to talk over their heads. Talking down makes you look arrogant. Talking up makes you look stupid.
8. Be firm and strong – If you’re expressing an opinion, don’t apologize for it. If you’re telling your readers how to do something, don’t back-pedal. Nobody wants to follow a wishy-washy leader.
9. Include a recap – Include a brief recap at the end of your post that ties everything together and drives your point home.
10. Respond to all questions – Respond to all comments and don’t answer some questions and leave others hanging. Their name is right there for all the world to see and they’re embarrassed that you’re ignoring them.
x x x."

High court rules against drug-sniffing dog search

see - High court rules against drug-sniffing dog search


"x x x.

A drug-sniffing dog at your doorstep is a step too far, the Supreme Court has decided.
While the high court had ruled last month that a Florida police officer's use of a drug-sniffing dog to search a truck during a routine a traffic stop was OK, it drew the line Tuesday at the entrance to a private home.
Writing for a 5-4 majority, Justice Antonin Scalia said a dog sniffing at a house where police suspect drugs are being grown constitutes a search under the Fourth Amendment of the U.S. Constitution, and the circumstances did not justify the officers' entry to the home.
"This right would be of little practical value if the state's agents could stand in a home's porch or side garden and trawl for evidence with impunity," Scalia wrote in a majority opinion. "The right to retreat would be significantly diminished if the police could enter a man's property to observe his repose from just outside the front window."

x x x,"

Where grant of demurrer to evidence in criminal case is void, certiorari is proper remedy.

see  -

"x x x.

Respondent judge committed grave
abuse of discretion in granting the

It has long been settled that the grant of a demurrer is tantamount to
an acquittal. An acquitted defendant is entitled to the right of repose as a
direct consequence of the finality of his acquittal.15 This rule, however, is
not without exception. The rule on double jeopardy is subject to the exercise of judicial review by way of the extraordinary writ of certiorari under Rule 65 of the Rules of Court. The Supreme Court is endowed with the power to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.16 Here, the party asking for the review must show the presence of a whimsical or capricious exercise of judgment equivalent to lack of jurisdiction; a patent and gross abuse of discretion amounting to an evasion of a positive duty or to a virtual refusal to perform a duty imposed by law or to act in contemplation of law; an exercise of power in an arbitrary and despotic manner by reason of passion and hostility; or a blatant abuse of authority to a point so grave and so severe as to deprive the court of its very power to dispense justice.17 In such an event, the accused cannot be considered to be at risk of double jeopardy.18

The trial court declared that the testimonies of PO2 Frando, PO2 Cubian, P S/Insp. Manaog, and AIDSOTF Chief Leonardo R. Suan were insufficient to prove the culmination of the illegal sale, or to show their personal knowledge of the offer to sell and the acceptance thereof. In granting the demurrer filed by the accused, respondent judge surmised that it was the CI who had initiated the negotiation of the sale and should have thus
been presented at trial.

x x x."

Gay Marriage Transcript: Oral Arguments of Prop. 8 at US Supreme Court - CourtSide

see - Gay Marriage Transcript: Oral Arguments of Prop. 8 at US Supreme Court - CourtSide


"x x x.

Gay Marriage Transcript: Oral Arguments of Prop. 8 at US Supreme Court

Did the Supreme Court move too quickly to address whether gay and lesbian couples have a constitutional right to marry?
Should the states instead be left to continue the gay marriage experiment for a while?
Those were some of the sentiments expressed by Supreme Court Justices as California’s Proposition 8, which banned same-sex marriage, was argued before the High Court.
This full oral argument transcript may shed light on where the Justices stand on this issue. Or maybe not. After all, trying to extrapolate where the Justices will ultimately vote is fraught with pitfalls.
For what it’s worth, here are are some of the Justices’ comments (followed by the full transcript after the jump).
“I just wonder if this case was properly granted,” said Justice Anthony M. Kennedy.
“You want us to step in and assess the effects of this institution, which is newer than cellphones and/or the Internet?” said Justice Samuel A. Alito Jr.
“Why is taking a case now the answer?” Justice Sonia Sotomayor asked.
Justice Kennedy, who likely holds the decisive vote, also voiced sympathy for the children of gay and lesbian couples.
“There’s some 40,000 children in California that live with same-sex parents. They want their parents to have full recognition and full status. The voice of those children is important.”
Of course, Justice Kennedy also spoke of uncertainty about allowing same-sex marriage.
“We have five years of information to pose against 2,000 years of history or more.”

Philippines Top In Women’s Advancement - Yahoo! News Philippines

see - Philippines Top In Women’s Advancement - Yahoo! News Philippines

"x x x.

The Philippines ranks third in women's socioeconomic standing, next to New Zealand and Australia, in the Worldwide Index of Women's Advancement released by global financial firm MasterCard on March 7, 2013. The index measures the women's socioeconomic standing in 14 Asia-Pacific countries. The Philippines has an overall gender parity score of 70.5 points this means there are 70.5 females for every 100 males in both government and private sector. New Zealand has 77.8 points, and Australia 76 points.
The Philippines overall score is higher than those of its neighbors in Southeast Asia - Singapore, 67.5 points; Vietnam, 64.4; Thailand, 61.3; Indonesia, 56.5; and Malaysia, 54.3. Other scores were Taiwan, 64.7; Hong Kong, 63.3; China, 61.5; Korea, 49.7; Japan, 48.1; and India, 38.
The annual index compares the socioeconomic level of women to men in education, employment, and leadership. A perfect score of 100 indicates gender equality between men and women, less than 100 is in favor of men, and over 100 is in favor of women. Access to education is the area where the Philippines had the highest score: 107.5 for secondary education and 128.4 in tertiary education. Education continues the banner indicator for gender equality, indicating that opportunity and achievement are equal or may even be better for Filipino women.
The Philippines also scored high in women's workforce participation (63) and regular employment (93.4). Filipino women get better employment opportunities, higher education, and equal representation in business and government than most in Asia-Pacific. The country ranked fourth in terms of overall employment with 76.7 score, behind New Zealand, Australia and Taiwan. The index showed there are still fewer women leaders in business and government. Except for New Zealand, the rest had fewer than 50 women leaders for every 100 male leaders. Only Australia (49.7) and the Philippines (45.6) came close to gender parity.
We congratulate the Philippine Commission on Women, headed by Chairperson Remedios I. Rikken and Executive Director Emmeline L. Verzosa, and other Officers, in their programs and policies that ensure Filipino women's full integration in socioeconomic and cultural development in the Republic of the Philippines. CONGRATULATIONS AND MABUHAY!
x x x."

Cal. Supreme Court Affirms SVPA Psychotherapist-Patient Privilege - Criminal Law - California Case Law

see - Cal. Supreme Court Affirms SVPA Psychotherapist-Patient Privilege - Criminal Law - California Case Law


"x x x.

Cal. Supreme Court Affirms SVPA Psychotherapist-Patient Privilege

The Sexually Violent Predator Act (SVPA) allows the state to keep sexually violent predators (SVPs) locked up even after they complete their prison sentences. It’s not an automatic lock-em-up-and-throw-away-the-key ordeal, but it’s pretty close. SVPs get a civil commitment trial, but the evidence suggesting a likelihood of recidivism is always strong. Nationwide, there’s a high commitment rate for SVPs.
That commitment rate could be even higher if courts waived the psychotherapist-patient privilege during SVPA trials based on the dangerous patient exception.
Last week, however, the California Supreme Court upheld the privilege in an SVPA appeal.
In January 2007, the Santa Clara County District Attorney filed a petition seeking to commit Ramiro Gonzales as a SVP under the SVPA. Before trial, the district attorney tried to obtain access to Gonzales' psychological records from his mandatory outpatient psychological evaluation and counseling sessions. Gonzales opposed the disclosure as a violation of California's statutory psychotherapist-patient privilege. The trial court concluded that disclosure of the records in an SVPA proceeding was permissible under the dangerous patient exception to the privilege.
Just prior to trial, the trial court further determined -- again on the basis of the dangerous patient exception -- that the therapist who had provided one-on-one counseling to Gonzales during the counseling sessions would be permitted to testify at the SVPA trial regarding Gonzales' statements during those counseling sessions.
At the conclusion of trial, the jury found that Gonzales was an SVP within the meaning of the SVPA, and committed him for an indefinite term.
The Court of Appeal reversed that decision, concluding that the trial court erred in ordering disclosure of Gonzales' psychological records and permitting his former therapist to testify about statements made during his counseling sessions.
The Court of Appeal also determined that the trial court's error constituted not only state law error, but also a violation of Gonzales' federal constitutional right of privacy. The appellate court reasoned that the question whether the admission of the challenged evidence was prejudicial must properly be evaluated under the stringent beyond a reasonable doubt prejudicial error standard generally applicable to federal constitutional error under Chapman v. California
Last week, the California Supreme Court agreed with the Court of Appeal's holding that the privilege, but disagreed with the determination that the trial court's error constituted an error of federal constitutional dimension.
Instead, the state's highest court concluded that the prejudicial nature of the error must properly be evaluated under the usual prejudicial error standard applicable to state law error set forth in People v. Watson: Whether it is reasonably probable that the error affected the result. Applying that standard, the court decided that the trial court error was not prejudicial and did not require reversal.
Related Resources:

The RH law; Pope Francis Should Look East to End Poverty - Bloomberg

see - Pope Francis Should Look East to End Poverty - Bloomberg

" x x x.

Philippine President Benigno Aquino faces a huge roadblock in his push to end the poverty weighing on his 106 million people: the Catholic Church.
I was in the predominantly Catholic nation earlier this month when the Vatican named the first non-European as pope in more than 1,200 years. Filipinos rejoiced in the choice of a Latin American pontiff with a passion for helping the poor. One- fifth of Filipinos live in slum conditions even as the economy grows 6.8 percent.
William Pesek

About William Pesek»

William Pesek is based in Tokyo and writes on economics, markets and politics throughout the Asia-Pacific region. ... MORE
News of Pope Francis’s election came just days before Philippine bishops stymied Aquino’s bid to curb the overpopulation that perpetuates poverty, pressuring the Supreme Court to reject the Responsible Parenthood and Reproductive Health Act, which Aquino signed into law in December. The law, blocked repeatedly since 1998, provides free contraceptives to the poor. Its implicit message is that families shouldn’t have more children than they can realistically afford.
There is still a chance the law may go into effect. The court’s 10-5 vote called for a 120-day restraining order, with hearings set for June 18. But the Philippines has already waited too long to rein in one of the most obvious impediments to higher living standards. As of mid-2012, one in four Filipinos lived on less than $1.25 a day and more than 10 percent of workers have gone abroad for work. It is no coincidence that the Philippines population-growth rate is twice the Asian average.

Case Study

The archipelago nation is a timely case study of how religion and economic developmentoften don’t mix. The church professes to help those most in need and preaches the gospel of protecting society’s weakest -- poor women and children. How, then, can the bishops who wield such disproportionate power over Southeast Asia’s fifth-biggest economy fight a step that might do much to achieve those goals?
The United Nations is hardly doing the devil’s bidding by arguing that less population growth would reduce Philippine poverty. Nor is former World Bank economist William Easterly being religiously intolerant when he points out that, “the most unprepossessing candidate for the Holy Grail of prosperity is seven inches of latex: a condom.” Although priests or religious leaders of any order should always stay out of politics, that’s especially so when they don’t understand basic economics.
The nexus of God and prosperity has long fascinated economists. In his seminal 1776 tome “The Wealth of Nations,” Adam Smith explored how religion impacts growth, and vice versa. In the mid-1800s, Karl Marx famously concluded: “Religion is the opium of the people.” In 2009, Robert Barro and Rachel McCleary of Harvard University looked at how religion affects behavior in the Internet age. Their conclusion? Countries in which a belief in hell is strong often grow faster than average.
In the Philippines, though, the church’s influence undermines democracy. Recall that in July 2005 the Catholic Bishops’ Conference of the Philippines literally decided whether the nation would experience a coup and whether then President Gloria Arroyo would resign. That made it all too clear how much leverage ordained officials have over elected ones.
It’s beyond irresponsible for church officials to call family planners propagandists who espouse a “culture of death.” Condoms and diaphragms aren’t the same as abortions. Anyone who argues as much to a nation’s people should go to confession. Maybe the new pope will realize how antiquated beliefs about contraception are at odds with his determination to address poverty and environmental degradation.

Misplaced Anger

Religious leaders in other nations also fall prey to misplaced anger. Take Indonesia, an economy beset by endemic corruption. Rather than demanding that public officials root out fraud, religious leaders opt to keep pop performers such as Lady Gaga out of their arenas. In Malaysia, spiritual leaders seem more obsessed with Beyonce’s wardrobe than graft. If only the bishops in the Philippines focused all this energy on the scourge of rent-seeking.
Aquino, let’s remember, hails from one of the nation’s most celebrated dynastic families. His much beloved mother, Corazon Aquino, held power from 1986 to 1992 after the assassination of her opposition-leader husband. And Aquino knew the seriousness of the fight he was picking, enduring threats of ex- communication from the church and a torrent of criticism that ranged from boxing champion Manny Pacquiao to former first lady Imelda Marcos. Aquino’s father was killed for trying to unseat her dictator husband, Ferdinand Marcos.
So why did Aquino choose this battle? Because it’s so necessary. His predecessors, from Arroyo to Joseph Estrada to Fidel Ramos to his mother, avoided the confrontation because they knew their presidencies depended on clerical support. After early successes in battling corruption, Aquino took his high approval ratings out for a ride with family-planning legislation -- only to be impeded by religious dogma.
If you are a credit analyst at Standard & Poor’s or Moody’s Investors Service mulling whether to grant the Philippines an investment-grade rating, you have to wonder how this will shake out. Bishops in the Philippines have every right to guide their flock to a better, more fulfilling life. Thwarting efforts to end poverty isn’t the way to do it.
(William Pesek is a Bloomberg View columnist. The opinions expressed are his own.)
x x x."

Manila’s South China Sea Gambit | Flashpoints

see- Manila’s South China Sea Gambit | Flashpoints

"x x x.

Ever since the South China Sea disputes resurfaced a few years ago, country after country has insisted that the issue be managed, clarified and resolved in line with international law.  From Jakarta to Tokyo, Washington to Brussels, Singapore to Seoul, Canberra  to New Delhi, the refrain has been broadly familiar – the solution to security tensions near the world’s busiest sea-lanes needs to involve a rules-based order.
Yet for a full two months since one claimant country decided to put this idea into practice, the rule-of-law cheer squad has been strangely mute. On January 22 this year, Manila notified Beijing that it would be seeking international arbitration under the United Nations Convention on the Law of the Sea. The process is due to go ahead in ITLOS, an international tribunal under that convention, not in the International Court of Justice, because that would require the consent of both parties. China is most pointedly withholding its consent. It is refusing to acknowledge the proceedings.
Why the almost worldwide silence? One explanation is that not encouraging the Philippines will help perpetuate regional stability, however fragile that may be. The logic here is that a public round of praise for Manila’s decision to take legal action would further isolate China, adding to its perceptions of being encircled and therefore playing to the arguments of China’s hawks. But surely a chorus of moral support for the principle of international arbitration under a UN convention could also feed into the necessary debate in China about its self-inflicted failures in projecting a non-threatening image to the world.
Another argument is that this bid will damage further the prospects for the Association of Southeast Asian Nations (ASEAN) and China to negotiate a binding code of conduct to manage South China Sea disputes. If this really amounts to the Philippines letting down ASEAN, surely it can say it was let down by ASEAN first. After last year’s debacle, in which China successfully used Cambodia as its proxy to prevent ASEAN consensus in support of a binding code, what are the prospects for a serious agreement anyway?
In the South China Sea, as in the East China Sea, Chinese maritime agencies seem repeatedly to have used the risk of an incident at sea as a tool of policy, a tactic to draw attention to China’s claims – and there’s no evidence yet they are willing to give that instrument away.
Manila’s quest could take several years of legal proceedings, but it is not quixotic. The submission was carefully put. It is not asking for maritime boundaries to be delineated. Instead, it is asking for a ruling on the validity under UNCLOS of China’s expansive ‘Nine-Dashed Line,’ and on whether the land features in the South China Sea are rocks or submerged features rather than islands. Of course, this latter point would affect the limits of the territorial waters that China could claim. In addition, the Philippines has submitted that China is occupying rocks, not islands, on the contested Scarborough Reef, that China is building illegal structures on submerged features, and that Chinese harassment of Philippine nationals at sea is also illegal under UNCLOS.
Unless China or others somehow persuade it to withdraw its case, the Philippines presumably stands a chance of eventually obtaining a ruling that suits its interests on one or more of these points. Even if China refuses to recognize the outcome, this could still provide precedent and arguments for other countries to advance in other circumstances. Even that could prove to be in the wider interests of a rules-based maritime order for the Indo-Pacific commons. It would be curious to see which countries, silent now, might welcome such an outcome.
x x x."

Tuesday, March 26, 2013

Five things everyone should know about US incarceration - Opinion - Al Jazeera English

see - Five things everyone should know about US incarceration - Opinion - Al Jazeera English


"x x x.

In the next few weeks, the US Congress will likely pass gun control legislation. President Obama will sign it into law and both Democrats and Republicans will walk away feeling that they did something to stem the tide of gun violence. That something likely will be to increase the criminal penalties for transferring, buying and using a gun illegally. 

It will not be the first time that Congress has skirted the real issue in favour of symbolic measures that "look tough" and make legislators look good by putting more people in prison for longer. 

Since the late 1980s, the US federal and state governments have sold imprisonment as the solution to myriad problems that have their roots in much more complex social and economic conditions. 

The criminalisation tendency is politically expedient. This "prisons-first" political culture has one big downside: it has created mass incarceration. 

Here are five things that everyone should know about mass incarceration in the United States. 

1. The US incarcerates more people per capita than any other nation in the world: Approximately 1 in 100 adults or more than 2.2 million people are behind bars in the US, according to the Pew Center on the States. In addition, another 4.6 million (or a total of almost 7 million) people live under some form of correctional supervision. 
Although the US is widely recognised as a "land of liberty", it could also be described as a nation of prisons. It incarcerates more people per capita than any other nation. Its imprisonment rate (per capita) is almost 50 percent higher than Russia's and 320 percent higher than China's. 

Within the western hemisphere, the US incarcerates five times as many people per capita as Canada and almost 2.5 times as many as Mexico. 

2. Mass incarceration is not a result of higher crime rates: The US has the highest incarceration rate in the world not because it has higher crime rates, but because it imprisons more types of criminal offenders, including non-violent and drug offenders, and keeps them in prison longer. 

With the exception of homicide, US crime rates are comparable to other European countries with much lower incarceration rates. 

High incarceration rates are the result of "truth in sentencing", "mandatory minimum" and "three strikes" laws which have limited judicial discretion in sentencing and parole release. As a result, sentences are now mainly determined by what the prosecutor decides to charge. And prosecutors routinely over-charge defendants in order to encourage plea agreements. 

An egregious, but not unusual, recent example illustrates this point. In 2012, a Florida woman, who fired a "warning shot" in the direction of her physically abusive ex-husband (who was not hit by the bullet), was charged with aggravated assault with a deadly weapon. 

The judge, as a result of mandatory sentencing legislation, was given no discretion in her sentencing. He sentenced her to 20 years in prison.

 US prisons face increasing dementia
3. Mass incarceration disproportionately impacts US racial minorities: Mass incarceration has had a devastating effect on blacks and Hispanics in the US. African Americans are six times more likely to be incarcerated than a white person and non-white Latinos are almost three times more likely to be incarcerated, according to the Pew Center on the States. 
Incarceration hits hardest at young black and Latino men without high school education. An astounding 11 percent of black men, aged between 20 and 34, are behind bars. 

Much of the racial disparity is a result of the US' war on drugs - started by President Ronald Reagan in the 1980s. By 1988, blacks were arrested on drug charges at five times the rate of whites. 

By 1996, the rate of drug admissions to state prison for black men was 13 times greater than the rate for white men. This is despite the fact that African Americans use drugs at roughly the same rate as white Americans. 

4. Mass incarceration is expensive: Imprisoning people is not cheap. The average cost of housing an inmate is approximately $20,000 to $30,000 per year. This price tag comes at the direct expense of public money that could be spent on public education, medical care and public assistance. And it is one reason why so many states face fiscal crises today. 

To put this in perspective, the state of California spends 2.5 times more money housing and feeding its inmates than it does educating students. California is not alone: five states "spend more on corrections than higher education", a 2008 Pew Center study revealed. 

5. Mass incarceration disguises the US' real unemployment rate and exacerbates inequality: The current unemployment rate in the US is high. And if we factored in all the people who are not looking for work because they are behind bars, it would be higher - especially among young black Americans and people without a high school diploma. 
recent research by Becky Petit reveals: 
"Employment-population rates adjusted to include inmates suggest that only 26 percent of young black, male dropouts were employed in 2008, while over 37 percent were in prison or jail. Over half of the joblessness of young, black, and male dropouts is linked to incarceration." 
Incarceration also negatively impacts former prisoner's ability to earn a decent living. Several studies suggest that there are at least six million "ex-prisoners" living within society and when they look for a job, they are 50 percent less likely to be hired than job seekers without a criminal record. 

Former prisoners are paid less than those who have not been to prison. In addition, incarceration of a parent reduces a child's prospects for economic mobility. 

Heather Schoenfeld is an assistant professor of sociology at Ohio State University. Her most recent article on mass incarceration will appear next month in the American Journal of Sociology. She is currently writing a book tentatively titled Growing Prisons: Race, Politics and the Capacity to Punish in Florida.
The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera's editorial policy.

X X X."

Still, advice | Inquirer Opinion

see - Still, advice | Inquirer Opinion

On new lawyers...

"xx x.

The advice is this:

Never forget that the law serves justice. Your relatives, who spent a great deal for your education, or who sacrificed a great deal while you toiled in the night to become lawyers, will naturally be elated that you have become what you sought to become. I do not know though that that will be the same feeling of the general populace. I suspect they will not be elated, they will be fearful. In this country, the prospect of having more lawyers is not a promise, it is a threat.

For good reason: In ordinary times in these parts, the law is subjected to the most strenuous exercises. Lawyers like to bend the law, stretch the law, twist the law. They call this a display of legal erudition, the public calls it  palusot. The result being that if you’re rich, you can, and will, get away with murder. That is by no means metaphorical.

Spurn that kind of law. Scorn that kind of lawyer. Be part of the cure, not the disease.

x x x."

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11 Steps to Preparing Your Trial Notebook | CEB Blog - Your Partner In Practice

SEE - 11 Steps to Preparing Your Trial Notebook | CEB Blog - Your Partner In Practice


"X XX.

The following should be included in the preparation of your trial notebook:
  1. Assemble evidence and create a list to keep track of exhibits. Give numbers (if you represent the plaintiff) and letters (if you represent the defendant) to the evidence you will offer as exhibits or use as demonstrative evidence at trial. Add a description, the witness who will introduce it, and leave columns to check off whether the evidence is either admitted or offered but not admitted.
  2. Complete your trial outline. List every issue you need to prove or disprove at trial. Next to each issue write:
    • the numbers or letters of relevant physical evidence;
    • the names of relevant witnesses;
    • any relevant cases or statutes..
  3. Make a list of witnesses in order of anticipated appearance. Include a column to check off whether a subpoena has issued and has been served.
  4. Prepare a trial brief (if the judge accepts trial briefs) showing your summary of the law and the facts of the case.
    • Pro: This is helpful to alert the court to important issues and areas the judge may want to research.
    • Con: it also reveals your approach to the other side, alerting them to possible proof or evidentiary problems.
  5. Prepare a separate file for each witness (plaintiff and defense) listing the facts to which you want them to testify (either on direct or cross-examination).
  6. Include any pretrial orders that may regulate the trial’s course and prepare written objections with points and authorities to anticipated evidence issues.
  7. Prepare sample questions for jury voir dire.
  8. Prepare witness lists to present to the judge for use during voir dire. In civil cases, be sure you also prepare a brief factual statement of the case for the judge to use during voir dire.
  9. Write an outline of your opening statement and closing argument(s).
  10. Prepare sample verdict forms.
  11. Arrange to have all charts and other demonstrative evidence prepared. X X X."

How Lawyers Get Their Hands on “Private” Facebook Posts | Law of Social & Emerging Media |

see - How Lawyers Get Their Hands on “Private” Facebook Posts | Law of Social & Emerging Media |


"x x x.


It happens every day.  First, someone gets sued (or starts a lawsuit).  Then the “discovery” process of gathering information starts.  Today, one of the first places lawyers look in many types of litigation is their opponent’s Facebook page.  But that page is shielded from public view by its privacy settings.  Its owner refuses to comply.  Motions are filed.

Who wins?  It depends.
Discovery Rules Are Permissive By Default
Generally speaking, parties can “discover” (that is, force the other side or a third party to disclose) any documents or information that are relevant to any claim or defense in the lawsuit. And it doesn’t have to be admissible in court to be “relevant”; it only needs to be “reasonably calculated” to lead to the discovery of admissible evidence.
But there are safeguards. If discovery requests are too burdensome, the party receiving the request can seek the court’s protection. The court then performs a balancing test, weighing the value of the information to the requestor against the burden on the requestee. If the requesting party can’t give a valid explanation of why the information it seeks is “reasonably calculated to lead to the discovery of relevant evidence,” courts often call the request a “fishing expedition.” In other words, the requestor didn’t have a good reason to believe that the requested documents are relevant to the case; they simply threw the request out there like a fishing line, hoping to catch a lucky break.
Several courts have expressly followed the conclusion of Magistrate Judge R. Steven Whalen of the Eastern District of Michigan in the 2012 decision Tompkins v. Detroit Metropolitan Airport that ”consistent with Rule 26(b) and with the cases cited by both Plaintiff and Defendant, there must be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence.”

Proving That “Private” Social Media Content is Relevant

This creates a dilemma for the party seeking the discovery.  How can they demonstrate that the content is relevant (and therefore discoverable) without knowing what’s there?
There are at least a couple approaches.
          1. Leveraging Public Portions of a Social Media Account 
Many, if not most, of the cases in which an order compelling social media evidence has been sought involve allegations of physical or emotional injury.  When a plaintiff alleges that she has been injured, she puts her well-being at issue, and evidence suggesting either that her alleged injuries are not genuine, or that they were caused by something else, becomes relevant.  Social media is a natural outlet for sharing information about one’s personal condition (via text, photos, and videos), so it has become a natural target for discovery by defendants defending against injury claims.
In several cases in which discovery was ordered, defendants found information in the public portions of a plaintiff’s Facebook page that tended to contradict the plaintiff’s claims.  This was enough to suggest that the private portions of the accounts might also contain such information, thus making them discoverable.  For example, in Richards v. Hertz Corp(N.Y. App. Div., 2d Dept. 2012), the “portions of [the plaintiff's] Facebook profile that were not blocked by privacy settings … [contained] photographs, dated [after the alleged injury], depicting [plaintiff] on skis in the snow.”  That was enough to make “all status reports, e-mails, photographs, and videos posted on [plaintiff's] Facebook profile since the date of the subject accident” potentially discoverable (although the court intervened to review the materials first, as discussed below).
Similarly, in Zimmerman v. Weis Markets (Penn. Comm. Pleas 2011), plaintiff alleged that scarring from a forklift accident had deprived him of the ability to enjoy life and that he always hid his leg out of embarrassment.  Yet the public portions of plaintiff’s MySpace page contained pictures of him wearing shorts and performing motorcycle stunts, including one that caused him more recent injuries.  Following the example of the New York Romano case cited above, the court found “a reasonable likelihood of additional relevant and material information on the non-public portions of [plaintiff's Facebook and MySpace accounts].”
This leveraging of public social media information to obtain private content demonstrates why attorneys should investigate their opponents’ accounts as soon as possible, before the opponent changes their privacy settings.  In Thompson v. Autoliv ASP, Inc. (D. Nev. 2012), the defendant gathered photos and other content from the plaintiff’s Facebook page relevant to ten separate issues in the case, including her ability to play sports, care for her children, her social activities, and sleep habits.  But just over a year into the litigation, plaintiff changed the settings on her account to make it private.  Defendant then brought a motion to compel discovery of the entire account–citing the information it had already gathered–and prevailed.
The quantum of evidence required to satisfy this threshold showing is not high.  But courts have disagreed as to just how low it is.  Two court opinions from 2012 involving allegations of plaintiff’s “loss of enjoyment of life” illustrate this disagreement.  In Walter v. Walch, a trial court in Suffolk County, New York found “a single [profile] photograph of [plaintiff] smiling” enough to justify discovery of plaintiff’s entire Facebook account where the issue was plaintiff’s “loss of enjoyment of life.”  But in the Tompkins case, defendants found “photographs showing the Plaintiff holding a very small dog and smiling, and standing with two other people at a birthday party in Florida.”  Magistrate Judge Whalen did not find these photos inconsistent with plaintiff’s alleged injuries.  ”If the Plaintiff’s public Facebook page contained pictures of her playing golf or riding horseback, Defendant might have a stronger argument for delving into the non-public section of her account.”  But these photos were not enough, and the magistrate judge refused to order the discovery.
          2.  Narrowly Tailored Discovery Requests
Even if a party has no direct evidence that the private portions of a social media account are relevant, the party may still serve discovery requests that are specifically tailored to issues that are relevant in the case.  This will place the burden on the producing party to comply with the request, or at least to explain why the request is objectionable.
Federal Rule of Civil Procedure 34(b)(1)(A) requires that requests for production “describe with reasonable particularity each item or category of items to be inspected.”  In Mailhot v. Home Depot USA, Inc. (C.D. Cal. 2012), the Court denied as not “reasonably particular three categories of requests (including requests “that reveal, refer, or relate to any emotion, feeling, or mental state of Plaintiff,” for ”third-party communications to Plaintiff that place her own communications in context,” and ”any pictures of Plaintiff taken during the relevant time period and posted on Plaintiff’s profile or tagged or otherwise linked to her profile,”) but compelled compliance with requests seeking all social media communications ”between Plaintiff and any current or former Home Depot employees, or which in any way refer . . . to her employment at Home Depot or this lawsuit,” because “a search for the[se] communications … is both technically feasible and not overly burdensome.”
Limited Only By Imagination
To date, these are the methods of proving relevance that have been recited in most social media-related case law.  But there are others.  Taking deposition testimony of the account holder or their friends, for example, may lead to helpful admissions about what’s in the account.  The particular circumstances of a case may offer additional methods.  But one thing is for sure: the lawyers will keep asking for this information.
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Monday, March 25, 2013

Pinoy domestic helpers lose residency bid in HK | Pinoy Abroad | GMA News Online

see - Pinoy domestic helpers lose residency bid in HK | Pinoy Abroad | GMA News Online

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Thousands of foreign domestic helpers, mostly from the Philippines, on Monday lost their bid for permanent residency in Hong Kong.
The development came after the Hong Kong Court of Final Appeal, in a unanimous decision, denied the petition of two Filipino domestic helpers seeking permanent residency in Hong Kong, a report on the South China Morning Post said.
The report said this means that the two Filipino domestic helpers, identified as Evangeline Banao Vallejos and Daniel Domingo, will not be allowed to apply to settle permanently in Hong Kong even after seven years of living there.
In September 2011, a lower court ruled that Vallejos had the right to seek permanent residency in Hong Kong. The HK government, however, won an appeal in March 2012.
A previous Reuters report said that under Hong Kong's constitution, foreigners are entitled to permanent residency — which brings the rights to vote, claim welfare and other services — if they have lived there for an uninterrupted seven years.
Immigration law, however, denies that right to foreigners who work as home helpers, most of whom are from the Philippines and Indonesia.

'Highly restrictive'

A separate report on Hong Kong's The Standard said the Hong Kong Court of Final Appeal ruled on Monday that the nature of the residence of foreign domestic helpers was "highly restrictive" since the helpers have to return to their countries of origin once their contracts end.
It also quoted the judges as saying that the helpers were made to understand at the start that their purpose in going to Hong Kong was not for residency.
"The foreign domestic helper is obliged to return to the country of origin at the end of the contract and is told from the outset that admission is not for the purposes of settlement and that [dependents] cannot be brought to reside in Hong Kong," it quoted the Court of Final Appeal as saying in its ruling.
The report on the South China Morning Post quoted Mark Daly, lawyer of the two domestic helpers, as saying they are "very disappointed" and that the ruling was "not a good reflection of the values we should be teaching youngsters and people in our society."
But he was also quoted as saying that although they do not agree with the court's decision, they respect it.
According to the Commission on Filipinos Overseas, there are almost 175,000 Filipinos residing and working in Hong Kong as of December 2011. — with Kimberly Jane Tan/RSJ/KBK, GMA News
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January 2013 Philippine Supreme Court Decisions on Legal and Judicial Ethics | LEXOTERICA: A PHILIPPINE BLAWG

see - January 2013 Philippine Supreme Court Decisions on Legal and Judicial Ethics | LEXOTERICA: A PHILIPPINE BLAWG

"x x x.

Here are select January 2013 rulings of the Supreme Court of the Philippines on legal and judicial ethics:
Attorney; forum shopping as contempt of court. A disbarment complaint against Atty. Gonzales was filed for violating the Code of Professional Responsibility for the forum shopping he allegedly committed. The court held that the respondent was guilty of forum shopping. Lawyers should be reminded that their primary duty is to assist the courts in the administration of justice. Any conduct that tends to delay, impede or obstruct the administration of justice contravenes this obligation. The Court has repeatedly warned lawyers against resorting to forum shopping since the practice clogs the Court dockets and can lead to conflicting rulings. Willful and deliberate forum shopping has been made punishable either as direct or indirect contempt of court. In engaging in forum shopping, Atty. Gonzales violated Canon 1 of the Code of Professional Responsibility which directs lawyers to obey the laws of the land and promote respect for the law and legal processes. He also disregarded his duty to assist in the speedy and efficient administration of justice, and the prohibition against unduly delaying a case by misusing court processes. Thus, the court subjected Atty. Gonzales to censure. Anastacio N. Teodoro III vs. Atty. Romeo S. Gonzales. A.C. No. 6760. January 30, 2013
Attorney; neglect. Complainant filed a disbarment complaint against Atty. Gacott who allegedly deceived the complainant and her husband into signing a “preparatory” Deed of Sale that respondent converted into a Deed of Absolute Sale in favor of his relatives.
The respondent is reminded that his duty under Canon 16 is to “hold in trust all moneys and properties of his client that may come into his possession.” Allowing a party to take the original TCTs of properties owned by another – an act that could result in damage – should merit a finding of legal malpractice. While it was his legal staff who allowed the complainant to borrow the TCTs and it does not appear that the respondent was aware or present when the complainant borrowed the TCTs, the court still held the respondent liable, as the TCTs were entrusted to his care and custody; he failed to exercise due diligence in caring for his client’s properties that were in his custody.
Moreover, Canon 18, Rule 18.03 requires that a lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable. What amounts to carelessness or negligence in a lawyer’s discharge of his duty to his client is incapable of an exact formulation, but the Court has consistently held that the mere failure of a lawyer to perform the obligations due his client is per se a violation. InCanoy v. Ortiz, the court held that a lawyer’s failure to file a position paper was per se a violation of Rule 18.03 of the Code of Professional Responsibility. Similar to Canoy, the respondent clearly failed in his duty to his client when, without any explanation, he failed to file the Motion for Leave to Intervene on behalf of the spouses Ylaya. Fe A. Ylaya vs. Atty. Glenn Carlos Gacott. A.C. No. 6475. January 30, 2013
Attorney; lack of diligence. Complainant filed a case for disbarment against Atty. Cefra for violating Canon 18 of the Code of Professional Responsibility and Rules 138 and139 of the Rules of Court. The court held that Atty. Cefra was guilty of negligence in handling the complainants’ case. His acts in the present administrative case also reveal his lack of diligence in performing his duties as an officer of the Court. The Code of Professional Responsibility mandates that “a lawyer shall serve his client with competence and diligence.” It further states that “a lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable.” In addition, a lawyer has the duty to “keep the client informed of the status of his case.” Atty. Cefra failed to live up to these standards as shown by the following: (1) Atty. Cefra failed to submit a formal offer of documentary evidence within the period given by the RTC; (2) He failed to comply with the two orders of the RTC directing him to submit a formal offer of documentary evidence; (3) Atty. Cefra failed to file an appropriate motion or appeal, or avail of any remedial measure to contest the RTC’s decision; (4) He failed to file an appropriate motion or appeal, or avail of any remedial measure to contest the RTC’s decision which was adverse to complainants.
Thus, the above acts showing Atty. Cefra’s lack of diligence and inattention to his duties as a lawyer warrant disciplinary sanction. The court has repeatedly held that “[t]he practice of law is a privilege bestowed by the State on those who show that they possess the legal qualifications for it. Lawyers are expected to maintain at all times a high standard of legal proficiency and morality, including honesty, integrity and fair dealing. They must perform their fourfold duty to society, the legal profession, the courts and their clients, in accordance with the values and norms of the legal profession as embodied in the Code of Professional Responsibility.” Sps. Arcing and Cresing Bautista, et al. vs. Atty. Arturo Cefra A.C. No. 5530. January 28, 2013.
Attorney; reinstatement in the Roll of Attorneys; guidelines in resolving requests for judicial clemency; good moral character requirement. In Re: Letter of Judge Augustus C. Diaz, Metropolitan Trial Court of Quezon City, Branch 37, Appealing for Clemency, the Court laid down the following guidelines in resolving requests for judicial clemency, to wit:
(a) There must be proof of remorse and reformation. These shall include but should not be limited to certifications or testimonials of the officer(s) or chapter(s) of the Integrated Bar of the Philippines, judges or judges associations and prominent members of the community with proven integrity and probity. A subsequent finding of guilt in an administrative case for the same or similar misconduct will give rise to a strong presumption of non-reformation.
(b) Sufficient time must have lapsed from the imposition of the penalty to ensure a period of reform.
(c) The age of the person asking for clemency must show that he still has productive years ahead of him that can be put to good use by giving him a chance to redeem himself.
(d) There must be a showing of promise (such as intellectual aptitude, learning or legal acumen or contribution to legal scholarship and the development of the legal system or administrative and other relevant skills), as well as potential for public service.
(e) There must be other relevant factors and circumstances that may justify clemency.
Moreover, to be reinstated to the practice of law, the applicant must, like any other candidate for admission to the bar, satisfy the Court that he is a person of good moral character.
In a previous Decision, the Court disbarred respondent from the practice of law for having contracted a bigamous marriage with complainant Teves and a third marriage with one Constantino while his first marriage to Esparza was still subsisting. These acts, according to the court, constituted gross immoral conduct.
In this case, the court held that Respondent has sufficiently shown his remorse and acknowledged his indiscretion in the legal profession and in his personal life. He has asked forgiveness from his children by complainant Teves and maintained a cordial relationship with them as shown by the herein attached pictures. After his disbarment, respondent returned to his hometown in Enrile, Cagayan and devoted his time tending an orchard and taking care of his ailing mother until her death in 2008. In 2009, he was appointed as Private Secretary to the Mayor of Enrile, Cagayan and thereafter, assumed the position of Local Assessment Operations Officer II/Office-In-Charge in the Assessor’s Office, which office he continues to serve to date. Moreover, he is a part-time instructor at the University of Cagayan Valley and F.L. Vargas College during the School Year 2011-2012. Respondent likewise took an active part in socio-civic activities by helping his neighbors and friends who are in dire need.
Certain documents also attest to Respondent’s reformed ways such as: (1) Affidavit of Candida P. Mabborang; (2) Affidavit of Reymar P. Ramirez; (3) Affidavit of Roberto D. Tallud; (4) Certification from the Municipal Local Government Office.
Furthermore, respondent’s plea for reinstatement is duly supported by the IBP- Cagayan Chapter and by his former and present colleagues. His parish priest certified that he is faithful to and puts to actual practice the doctrines of the Catholic Church. He is also observed to be a regular churchgoer. Respondent has already settled his previous marital squabbles, as in fact, no opposition to the instant suit was tendered by complainant Teves. He sends regular support to his children in compliance with the Decision dated February 27, 2004.
The Court notes the eight (8) long years that had elapsed from the time respondent was disbarred and recognizes his achievement as the first lawyer product of Lemu National High School, and his fourteen (14) years of dedicated government service from 1986 to July 2000 as Legal Officer of the Department of Education, Culture and Sports; Supervising Civil Service Attorney of the Civil Service Commission; Ombudsman Graft Investigation Officer; and  State  Prosecutor  of the  Department  of Justice. From the attestations and certifications presented, the Court finds that respondent has sufficiently atoned for his transgressions. At 58 years of age, he still has productive years ahead of him that could significantly contribute to the upliftment of the law profession and the betterment of society. While the Court is ever mindful of its duty to discipline and even remove its errant officers, concomitant to it is its duty to show compassion to those who have reformed their ways as in this case.
Thus, the court reinstated respondent to the practice of law. He was, however, reminded that such privilege is burdened with conditions whereby adherence to the rigid standards of intellect, moral uprightness, and strict compliance with the rules and the law are continuing requirements. Florence Teves Macarubbo vs. Atty. Edmundo L. Macarubbo; Re: Petition (for Extraordinary Mercy) of Edmundo L. Macarubbo. A.C. No. 6148. January 22, 2013
Court personnel; refusal to perform duty. Section 1, Canon IV of the Code of Conduct for Court Personnel enjoins court personnel to perform their official duties properly and with diligence at all times. Clerks of Court are primarily responsible for the speedy and efficient service of all court processes and writs. Hence, they cannot be allowed to slacken on their work since they are charged with the duty of keeping the records and the seal of the court, issuing processes, entering judgments and orders, and giving certified copies of records upon request. As such, they are expected to possess a high degree of discipline and efficiency in the performance of their functions to help ensure that the cause of justice is done without delay.
As an officer of the court, respondent Clerk of Court was duty-bound to use reasonable skill and diligence in the performance of her officially-designated duties as clerk of court, failing which, warrants the imposition of administrative sanctions. In this case, respondent unjustifiably failed to issue the alias writs of execution to implement the judgment in a Civil Case, despite orders from the RTC. Moreover, she failed to file the required comment in disregard of the duty of every employee in the judiciary to obey the orders and processes of the Court without delay. Such act evinces lack of interest in clearing her name, constituting an implied admission of the charges. Mariano T. Ong vs. Eva G. Basiya-Saratan, Clerk of Court, RTC, Br. 32, Iloilo CityA.M. No. P-12-3090. January 7, 2013
Judge; disciplinary proceedings against judges; presumption of regularity.Jurisprudence is replete with cases holding that errors, if any, committed by a judge in the exercise of his adjudicative functions cannot be corrected through administrative proceedings, but should instead be assailed through available judicial remedies. Disciplinary proceedings against judges do not complement, supplement or substitute judicial remedies and, thus, cannot be pursued simultaneously with the judicial remedies accorded to parties aggrieved by their erroneous orders or judgments.
Even if the CA decision or portions thereof turn out to be erroneous, administrative liability will only attach upon proof that the actions of the respondent CA Justices were motivated by bad faith, dishonesty or hatred, or attended by fraud or corruption, which were not sufficiently shown to exist in this case. Neither was bias as well as partiality established. Acts or conduct of the judge clearly indicative of arbitrariness or prejudice must be clearly shown before he can be branded the stigma of being biased and partial. In the same vein, bad faith or malice cannot be inferred simply because the judgment or order is adverse to a party. Here, other than AMALI’s bare and self-serving claim, no act clearly indicative of bias and partiality was alleged except for the claim that respondent CA Justices misapplied the law and jurisprudence. Thus, the presumption that the respondent judge has regularly performed his duties shall prevail. Re: Verified complaint of AMA Land, Inc. against Hon. Danton Q. Bueser, et al. A.M. No. OCA IPI No. 12-202-CA-J. January 15, 2013
Judge; gross ignorance of law. Judge Sarmiento, Jr. was charged with gross ignorance of the law, manifest partiality and dereliction and neglect of duty. The court held that the judge did not commit gross ignorance of the law. Gross ignorance of the law on the part of a judge presupposes an appalling lack of familiarity with simple rules of law or procedures and well-established jurisprudence which tends to erode the public trust in the competence and fairness of the court which he personifies. The complaint states that respondent judge, in arbitrary defiance of his own September 25, 2006 Decision which constitutes res judicata or a bar to him to pass upon the issue of Geoffrey, Jr’s. custody, granted, via his March 15, 2011 Order, provisional custody over Geoffrey, Jr. to Eltesa. The Decision adverted to refers to the judgment on compromise agreement.
Respondent judge cannot be held guilty of the charges hurled by the complainant against him since there is no finding of strong reasons to rule otherwise. The preference of a child over 7 years of age as to whom he desired to live with shall be respected. Moreover, custody, even if previously granted by a competent court in favor of a parent, is not permanent. Geoffrey Beckett vs. Judge Olegario R. Sarmiento, Jr., RTC, Branch 24, Cebu CityA.M. No. RTJ-12-2326. January 30, 2013
Judge; misconduct. Misconduct means intentional wrongdoing or deliberate violation of a rule of law or a standard of behavior. To constitute an administrative offense, misconduct should relate to or be connected with the performance of the official functions of a public officer. In grave misconduct, as distinguished from simple misconduct, the elements of corruption, clear intent to violate the law or flagrant disregard of an established rule must be established.
In this case, the actions of the Sandiganbayan Justices respecting the execution of the final judgment against accused Velasco were shown to be in respectful deference to the Court’s action on the various petitions filed by the former. Records are bereft of evidence showing any trace of corruption, clear intent to violate the law or flagrant disregard of the rules as to hold the Sandiganbayan Justices administratively liable for grave misconduct. Re: Complaint of Leonardo A. Velasco against Associate Justices Francisco H. Villaruz, Jr., et al. A.M. No. OCA IPI No. 10-25-SB-J. January 15, 2013
Judge; no abuse of authority when judge did not renew a temporary appointment. Complainant, a former Court Stenographer III at the RTC, failed to show any proof that she was entitled to a permanent position. Other than her allegation that she was given two “very satisfactory” and one “satisfactory” rating, there was no evidence presented that she has met the prescribed qualification standard for the position. “Such standard is a mix of the formal education, experience, training, civil service eligibility, physical health and attitude that the job requires.” Respondent judge, who is the immediate supervisor of complainant, is in the best position to observe the fitness, propriety and efficiency of the employee for the position. It should be impressed upon complainant that her appointment in the Judiciary is not a vested right. It is not an entitlement that she can claim simply for the reason that she had been in the service for almost two years.
The subsequent filing of complaint against Atty. Borja (officer-in-charge of the PAO-Virac) manifests complainant’s propensity to file complaints whenever she does not get what she wants. Such attitude should not be tolerated. Otherwise, judges will be placed in hostage situations by employees who will threaten to file complaints whenever they do not get their way with their judges.
Since there is no proof that respondent judge abused her position, the case against her should be dismissed. Respondent judge should, however, be reminded to be circumspect in her actuations so as not to give the impression that she is guilty of favoritism. Kareen P. Magtagñob vs. Judge Genie G. Gapas-AgbadaOCA IPI No. 11-3631-RTJ. January 16, 2013
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