Month: September 2016 (page 1 of 2)

Want To See the Future Of Law Practice? Attend a Tech Conference

92decfde1d6e83f6737cd5c251d83103By Pegeen Turner

I recently returned from the Clio Conference in Chicago. Clio is cloud-based practice management software for law firms. But, don’t stop reading this post just because your firm does not use Clio or the cloud. This post is pertinent to you as long as you continue to practice law in 2016.

The Clio Conference offers more than just information on a product. It is a conference on the future of law. Unlike any other legal technology conferences that I have attended, the Clio Conference exposes attendees to technology used in other law firms today (read – your competitors). From AI (artificial intelligence) to online intake processes, and practice specific technology, firms are moving their data online. Today. Clio brings together a wealth of resources under one roof to show you the direction of where your firm should be moving.

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EEOC v. Catastrophe Management Solutions: Title VII Does Not Prohibit Race Discrimination Based On Mutable Characteristics

Murray,JoeJoseph S. Murray IV

In the 50 years since Congress enacted Title VII, scientists, contemporary thinkers, and society in general have reassessed the concept of race. No longer do we view race solely in terms of biology (immutable characteristics). We now understand that race includes social context, culture, and life experiences (mutable characteristics). While society’s understanding of race has changed, Title VII’s original definition — or lack thereof — remains stuck in 1964. Whether a racial characteristic is mutable or immutable matters, as the Court of Appeals for the United States Court of Appeals for the 11th Circuit recently reminded the EEOC: Title VII only protects against discrimination based on immutable characteristics. EEOC v. Catastrophe Mgmt. Solutions, No. 14-13482, 2016 U.S. App. LEXIS 16918 (11th Cir. Sep. 15, 2016).

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The Birds and the Bees and the TLC: What I Wish I’d Known When I Was a YLD Member

scruggsmarkBy Mark Scruggs

Bees are fascinating little critters. Their lifespan is only six weeks. In the spring, they gather pollen to store in their hives. As spring blooms into the summer, bees begin gathering nectar to make honey. As the weather becomes cooler in the fall, they gather sap to caulk the cracks in their hives to prepare for winter. The bees of summer were different from the springtime bees who gathered pollen, and the autumn bees know nothing of summertime and have never experienced a winter. How do they know what to do?

We humans are the same way. While we have some insight into our lives looking backward, we have no real understanding of what lies ahead. We can remember childhood when we knew nothing about the birds and the bees. Many of us were grossed out when we first heard about the mechanics of sex from older kids. Surely our parents did not do that. Surely they are not doing it now! We also remember the social awkwardness of adolescence and the angst of our teenage years. Today, as young lawyers, we remember those developmental stages well. Today, struggling with the time and attention demands of balancing our personal and professional lives, starting families and striving to get ahead in our careers, retirement is the last thing on our minds. While we have contemporaries in the financial world urging us to buy insurance products and invest for the future, the eventualities seem remote.

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Knowing When a Bonus Must Be Included In Overtime Pay

murphyfletcher2By Murphy H. Fletcher

Everyone likes a bonus, right?  Employees enjoy receiving them, for obvious reasons, and employers use them as a means of rewarding employee achievements and increasing morale.  But while paying employees a bonus can seem like a relatively straightforward benefit, depending on how the employer structures the bonus, the bonus can have long-reaching affects by increasing a non-exempt employee’s regular rate of pay for overtime purposes.

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Fourth Circuit Approves Legislative Prayer

willjamisonEditor’s note:  On Oct. 31, 2016, the 4th Circuit Court of Appeals agreed to re-hear the case en banc.  Oral arguments are tentatively scheduled for Jan. 24-26, 2017.

By Will Jamison

On March 4, 1789, the First United States Congress met in Federal Hall in New York City.  The air was (probably) thick with dust from the street and powder from their wigs.  With the ink still drying on the U.S. Constitution, the actions of that First Congress shed light on how the founders of our nation interpreted the supreme law of the land…that is, according to our U.S. Supreme Court.

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Take a Deep Breath: Five Tips For Dealing With Highly Emotional Clients

By Kelly E. Thompson

Effectively dealing with highly emotional clients can be one of the most difficult aspects of practicing family law. Emotional clients may find it difficult to make rational decisions about their case, causing them to become entrenched in untenable positions. Emotional clients may also be challenging to communicate with effectively, sometimes hearing what they want to hear as opposed to what you are truly saying. Even worse, highly emotional clients may lash out against us or our staff when their anger actually comes from the circumstances they find themselves in, not our representation of them in those circumstances. Because representing highly emotional clients is a nearly unavoidable hazard in our profession, we must all find a way to reach past those emotions to help our clients make sound decisions about their case and future. When dealing with highly emotional clients, keep the following in mind:

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Economic Liberty Challenges In the 21st Century

By Drew Erteschik and J.M. Durnovich

erteschik_drew_LHIntroduction

Most of us left law school with the understanding that so-called “economic liberty” challenges to state regulations will generally fail under rational basis review.  That area of the law, however, has changed dramatically.

This article looks at the change in three parts:

The first part offers a brief refresher on the history of economic liberty challenges in the 20th century.

The second part describes a flurry of recent cases involving successful economic liberty challenges on substantive due process grounds.

The third part examines some possible legal and policy explanations for the modern trend.

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NCBA Out & About: A Hike Along England’s South Downs Way

jon-sdw-1By Jonathan Maxwell

There are few better opportunities for relaxation and rejuvenation than a long walk.  English national trails take it to a new level.

In the bracing air along the Seven Sisters, the prominent chalk cliffs overseeing the English Channel, I encounter a fellow hiker who recommends a 13th-century inn in Alfriston as a perfect first night‘s stay. Laterin the gloaming along the Cuckmere River, a gentleman farmer pauses while working in his field to point out a distant steeple, advising that if I stick to the river path I will be in Alfriston ere long.

Of the English walks officially designated as “national trails,” one of the most historic and varied is but a 50-mile train ride south of London. Beginning in Eastbourne on the English Channel, the South Downs Way wends westward one hundred miles through a national park – along coastal cliffs, inland atop an escarpment, and through the woods, to Winchester. (See www.nationaltrail.co.uk/southdowns.) I cannot resist taking six days to walk it solo.

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Tully v. City of Wilmington: The Constitution Requires Public Employers To Play By Their Own Rules

parkerkaty-2By Katy Parker

The North Carolina Court of Appeals recently ruled that a police officer has a valid property and liberty interest in requiring his employer, the City of Wilmington, to comply with its own established promotional process.

When Corporal Kevin Tully of the Wilmington Police Department sat for the sergeant’s test in fall of 2011, he felt pretty good about his chances for promotion.  Aside from being named “Wilmington Police Officer of the Year” for 2011 and receiving several other commendations and awards, Corporal Tully is also an avid student of police policy and procedure, and the United States Constitution.  He is often the guy that other officers go to with questions about the finer points of Fourth Amendment search and seizure law.  After taking the test, Corporal Tully felt even better, feeling certain that he had answered most of the questions correctly.  And so it was quite a shock when Corporal Tully was informed that he had failed the test.  He asked for copies of the answers, as he is entitled to do under WPD policy.  Upon receipt of the answer key, Corporal Tully immediately realized that the answer key was wrong – and that the so-called “correct answers” on questions related to Fourth Amendment search and seizure issues were actually based on outdated law.

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Arbitrability Of Arbitration: Judge Takes Backseat to Arbitrator in 9th Circuit Uber Case

kornbluthmichaelBy Michael A. Kornbluth

Last week the U.S. Court of Appeals for the 9th Circuit held that whether or not a contract should be arbitrated was a question to be decided by an arbitrator, not a judge. In Mohamed v. Uber Technologies, 15-16178 (9th Cir. Sept. 7, 2016), the circuit court used scathing language in reversing the district court, which had held that the issue of arbitrability was properly before  the district court and went on to determine that the arbitration clause at issue was unconscionable.

This case originated in 2015 in the U.S. District Court for the Northern District of California, where a number of Uber drivers filed a class action against Uber and a few other companies, alleging violations of the Fair Credit Reporting Act, the Massachusetts Consumer Credit Reporting Act, and the California Consumer Credit Reporting Agencies Act, for improperly using consumer credit information to effectively terminate the plaintiffs’ ability to work for Uber.

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