A Tale Of Two Legal Tech Conferences: Artificial Intelligence, Practice Management And More

By Erik Mazzone

It was the best of conferences, it was the … actually, they were both pretty good.

Not exactly Dickens, is it?

I recently attended two legal technology conferences. They were interesting both for their similarities (“The future is now!”) and their differences (evolutionary or revolutionary change). The first conference – eponymously called the Clio Cloud Conference – was put on by the maker of practice management software Clio.

The first notable thing about the Clio Conference was that it is a legal technology conference that is not put on by a bar association, trade association, or media company. It is a user conference – common in technology circles but not in legal tech. As adoption of legal technology increases, the rise of the user conference nods to the need for educational offerings that are product and platform-specific. It makes sense: Once a firm is spending lots of dough on a particular product, they’re going to be a lot more interested in how to make that product sing than in another survey course that’s a mile wide and an inch deep.

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How Well Does Your Company Keep Secrets?

snyder-steven-3252By Steven Snyder

Most of us have seen the headlines over the past couple years about massive data breaches affecting millions of people. We have all likely received at least one letter notifying us that our confidential information may have been implicated in one of these breaches. The reason for this is that most states have breach notification laws that require a company to notify individuals if the company has reason to believe that certain types of personal identifying information has been taken by a third party. While businesses of all sizes would do well to carefully consider their approach to securing such information, an additional important consideration is the protection of the trade secrets that represent the lifeblood of many companies.

Trade secrets come in many forms such as research and development, business strategy, market research, and client lists. Many of these trade secrets comprise the foundation of companies and provide the differentiators that give them an edge over their competitors. Yet many of the trade secrets do not implicate the types of personal identifying information that trigger notice requirements. For example, North Carolina requires businesses to notify people of a breach involving their personal identifying information, which includes data such as a social security number, driver’s license number, and financial account information. North Carolina’s law is consistent with the approach taken by most states and federal agencies in that its notice provisions relate primarily to concerns of individual financial harm.

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File Early: How Provisional Patent Applications Increase Protection

dan-beckerBy Daniel Becker

Many applicants make the mistake of waiting until they have an ideal embodiment reduced to a high degree of precision before drafting a patent application. While skillful application drafting is important to the value of the patent, it is a mistake to presume that one should wait to file until the invention is crafted to a state of perfection.

The value to the public of a granted patent is a fulsome disclosure that advances the state of the art. Patent protection effected by the application extends to the degree that the applicant’s claims are adequately supported by that disclosure. The requirement that the disclosure must be at least as much as is claimed seems logical with respect to the benefit of the patent to the public. However, for the applicant, it creates an inverse relationship between depth of disclosure and breadth of protection.

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Heard-Leak: Valuable Lessons for Defense Counsel

patinoBy Nicole Patino

“I kept asking how I could improve, but my supervisor would never tell me what I was doing wrong, and when I was fired, it came out of the blue.”

It’s a complaint that we repeatedly hear as clients come into our offices, sure that they are victims of wrongful termination. They often point to positive performance evaluations and a lack of “write-ups” as evidence of their strong job performance. Some say that they only had a passing conversation with a manager regarding something that they could improve on. Often these employees are angry because they believe that they could have improved their performance had they just been given more indications of what they were doing wrong before they were terminated from their employment.

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After Years Of Wrongful Imprisonment, Darryl Howard Was Sustained By Love, Redeemed By Justice

By Amber Nimocks

Darryl and Nannie Howard banter gently, laughing and smiling a bit like newlyweds, a bit like the long-married couple they are. Their ease and happiness with each other seem to belie the 24 years of physical separation they have endured.

Until late this summer, Howard was imprisoned, serving time for crimes he insisted he was innocent of from the start. He walked out of a Durham courtroom on Aug. 31 after Superior Court Judge Orlando Hudson vacated guilty verdicts against him in a 1991 double murder. The decision came after Howard’s attorneys presented the judge with DNA evidence that had not been presented to the jury that heard Howard’s case. The evidence excluded Howard from the murders of Doris Washington and her 13-year-old daughter Nishonda and linked two others to the crime scene. The Durham District Attorney’s Office did not appeal the ruling.

Howard credits his faith and his wife’s support for helping him hold onto hope through years of unjust incarceration.

“It was a lot of faith in God, and the knowledge that I knew one day – I think anybody in my situation would know – I didn’t do it and I’m going to get out one day – and Nannie,” he said. “She helped me with every single thing I went through … She came to see me every week. She based all her decisions in her life around me being out one day, around us being out one day and she stayed with me and helped me out.”

While her husband was imprisoned, Nannie kept their troubles largely to herself. She helped him petition attorneys for help. She drove to see him every week, trekking all over the state. She talked with him by phone several times each day. And 18 years ago they were married while he was behind bars. But none of her colleagues at the North Carolina Bar Center, where she worked on contract for Xerox for about a dozen years, knew about her husband until they saw it on the news. She said she was secretive because she didn’t want anyone feeling sorry for her and she didn’t want the drama.

“That would be the topic every single day, and it would become such a big issue that, you know,   I could see people walking around me whispering ‘That’s the one whose husband is in prison’ and I just didn’t want that,” she said. “I just wanted everyone to say ‘Hey, Nannie,’ and just go on with the day. I came in with a smile and I did my job I didn’t want that burden of ‘Oh my God, how are you feeling today? I didn’t want that pity.”

Like her husband, she credits her faith and their relationship for sustaining her.

“We talked a lot,” she said. “He would have a struggle or be upset about something and we would be on the phone sometimes three and four times a day just talking about random stuff. We talked about it – anything that had him upset, we talked through it because I didn’t want him to overreact and get into trouble while he was in prison. And if we had a conflict with each other we made a point of never going to bed or saying good night to each other angry. So, we had to make up or before we fell asleep or before the phone was cut off, which was like 8 or 9 o’clock.”

‘No better feeling’

Nannie wasn’t Howard’s only connection to the NCBA. One member of the legal team that helped win his freedom was Womble Carlyle attorney Jim Cooney, an NCBA member and past recipient of the NCBA’s William Thorp Pro Bono Award and the Wade M. Smith Award for criminal defense.

Cooney got involved in the case after Innocence Project founder Barry Scheck agreed to take it on. He and Scheck had worked together on the Duke Lacrosse defense and before. The result of the Howard case stands out, even in a career as a remarkable as Cooney’s.

“When a judge lets someone go in a case like this, like he did with Darryl, particularly saying he was innocent – that’s happened to me before, and for a lawyer, well, there’s no better feeling,” he said.

Cooney said fresh DNA evidence was key to the case.

“The DNA testing we were able to do was very different than what was done in 1991,” he said.

Once that evidence was in play, Cooney said, “It cascaded in a way that none of us had anticipated.”

The victims in the case were found naked and dead in their home in a Durham housing complex. Both had been beaten, and the daughter, Nishonda, had been strangled. Testing done at the time of the investigation found semen in Nishonda, and that semen could not be linked to Darryl Howard, Cooney said.

Prosecutors, including then Assistant District Attorney Mike Nifong, argued that Nishonda had engaged in consensual sex with her boyfriend and that rape had nothing to do with the murder. When Innocence Team investigators renewed an examination of the evidence, they found semen in the mother, Doris, which earlier investigators had not been able to find. That semen could not be linked to Howard either, Cooney said.

“Now we had two different semen samples from two different men, neither of whom were Darryl, one of whom is a convicted felon,” Cooney said. “There’s no trace of physical evidence [against Darryl], and you cannot have killed these women in this way without leaving some form of DNA.”

When investigators ran the DNA through a federal database of criminals’ DNA records, they got a cold hit on a felon named Jermeck Jones, who had been imprisoned in Tennessee. Jones had been living a couple of blocks from the victims at the time of the crime.

Durham police brought Jones in to get a confirmatory DNA and for interrogation in 2012. During the course of that interrogation, while he was left alone, Jones was recorded on videotape making a call, telling whomever was on the other line that he wasn’t going to be a rat, and that he needed a lawyer.

Howard’s legal team did not see the tape of that call until July of this year, Cooney said. When Jermeck Jones was called to testify in front of Judge Hudson, he invoked his Fifth Amendment rights.

But, Cooney said, Durham police knew more during the original investigation than they had shared with Howard’s defense team. Initial media reports of the crime included no mention of the victims having been raped. But prosecutors received a tip from an informant in 1993 who said he or she knew the victims were raped and murdered.

“That informant’s tip was never produced,” Cooney said. “They argued that there was no rape.  The police officer who got the tip said he never suspected this was a sex offense.”

Howard’s case points to the power of DNA testing, Cooney said, and it demonstrates the importance of open-file discovery and the videotaping of interrogations.

It also demonstrates how important pro bono work is. Cooney estimated that Womble Carlyle dedicated several hundred thousand dollars’ worth of resources to the Howard case.

Inspired By Belief

For Darryl and Nannie Howard, Cooney and the Innocence Project lawyers who worked on his case, Scheck, Seema Saifee and others, became like family.

“I love them people, I really do,” Darryl Howard said.

He said their belief in his innocence inspired him. Howard recalls a moment in court when Cooney was asked to recall a detail about the case that Howard himself could not remember. His attorney answered without missing a beat.

“He stood right up and gave them an answer like he knew it,” Howard said. “I couldn’t believe he even knew that. I said ‘Mr. Cooney, how could you know that?’ He just stopped me and looked in my face and said ‘Because I care about you.’ It almost made me cry.”

Howard said still believes in the justice system even though he has first-hand experience with its flaws. Checks on prosecutorial power would help, he said.

“Every day we’re finding out there’s more people in prison for something they didn’t do,” Howard said. “More and more and more and more …  I think it’s happening a lot more than we realize. And the reason why it’s happening is because the people that do it, nothing can be done to them.”

He would also advocate for more of an emphasis on helping prisoners prepare for a life after incarceration.

“Guys are in prison so long they lose everything around them and when they get out the state’s got to take care of them again,” Howard said. “They have to worry about them again. That’s an extra burden. … Prisons don’t rehabilitate. They give you a TV and they give you a chair and say ‘Go sit down over there.’ It’s an industry.”

But Howard says he’s not angry. He and Nannie celebrated their 18th anniversary – their first in freedom – in September. They have a lot of lost time to make up for, and it’s clear from the way they smile at each other that they aren’t wasting any of it.

Donations to Darryl Howard can be made via his Razoo fund-raising page: https://www.razoo.com/us/story/Darrylhoward


Millennial Lawyers Are Different, Except When They Are Just Like Everyone Else


Mathew CordellBy Matt Cordell

Most demographic experts define the “millennial” generation as those born in or after 1981. The Young Lawyers Division of the NCBA comprises law students, lawyers 36 years old or younger, and lawyers of any age in their first three years of practice.

This means that the Young Lawyers Division is now almost entirely composed of millennials.

          How are millennials supposed to collaborate in the workplace with their older colleagues who presumably are so fundamentally different? At the 2016 NCBA Mentoring Conference earlier this year, the Young Lawyers Division and the Senior Lawyers Division came together to explore this question.

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Upcoming Opportunity For CPE and Notary Update

We are happy to share some exciting news about the upcoming “Practical Skills for the Small Office and General Practice Paralegal” seminar scheduled for Thursday, Nov. 10, 2016.  Ozie Stallworth, Notary Enforcement and eNotarization Director with the North Carolina Department of Secretary of State will be presenting a notary session titled, “What’s New in the Notary Profession,” wherein he will provide important regulatory updates as well as educate paralegals on new notary laws.  This is a great way to refresh those notary skills and to ensure notarial requirements are being met.  In addition, we have new and improved sessions dedicated to the most popular topics.  This is a great way to get your CLE credit while brushing up on all of the “fundamentals” of general practice work.  Come early to check in and enjoy a continental breakfast before the day begins.  See you there!

Register here to join: http://gateway.ncbar.org/store/seminar/seminar.php?seminar=77130

Video replays will be available if you are unable to attend.


Cary, Wednesday, January 11, 2017, NC Bar Center, #577BAR

Gastonia, Wednesday, January 25, 2017, Gastonia Conference Center, #577GAS

Wilmington, Friday, January 13, 2017, Ward and Smith, P.A., #577WLM

Winston-Salem, Wednesday, January 18, 2017, Wake Forest Biotech Place, #577WIN

Sharif v. United Airlines, Inc.: Discharging Employee For FMLA Fraud and Dishonesty Is Not FMLA Retaliation

Murray,JoeBy Joseph S. Murray IV

A Halloween treat for employers and a trick for FMLA-abusing, dishonest employees: The 4th Circuit held that terminating an employee for abusing FMLA leave and for lying during an investigation into the FMLA abuse is not retaliation under the FMLA. Sharif v. United Airlines, Inc., No. 15-1747 (4th Cir. Oct. 31, 2016). While the ruling in this case was easy based on the facts, the 4th Circuit has provided a clear framework going forward for attorneys to defend or prosecute claims of FMLA retaliation when the circumstances surrounding the request for leave or the leave itself triggers an investigation and adverse action.

In 2009, Masoud Sharif was diagnosed with anxiety disorder. United approved every one of Sharif’s requests for FMLA leave to handle his panic attacks. Sharif used a total of 56 days of FMLA leave in the two years prior to his discharge, including days after United initiated an investigation into his FMLA use.

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Top 10 Things You Don’t Know About Adobe Acrobat

92decfde1d6e83f6737cd5c251d83103By Pegeen Turner

Even though anyone can create a PDF file now with Microsoft Office, Adobe Acrobat remains one of the most popular programs in the office today. While many attorneys and staff “think” they know about all the uses, think again. There are a number of time-saving tools that most people are not aware of. Before we dive into the details, let’s first take a look at what you already know about Adobe Acrobat.

You Know What You Know

  1. You don’t need Adobe Acrobat to create PDF files anymore. The last several versions of Microsoft Office have that ability built in when you choose Save As.
  2. The standard for emailing files outside of the office is a PDF file. With the emphasis on metadata and metadata removal, attorneys and staff should already be converting documents into a PDF format to send them out of the office.
  3. Limiting access to PDF files. Attorneys and staff should already be limiting access to PDF files by removing the ability to print, copy, and change PDF files for those receiving PDF files. By changing the file properties (FILE menu-Properties), attorney should already be limiting access and securing PDF files.

You Don’t Know What You Don’t Know

Now that we have established some things that you know about Adobe Acrobat (you knew all those, right?), let’s talk about some tips that you might not know.

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Nominate Deserving Attorneys For the Criminal Justice Section’s Gilchrist and Smith Awards

NCBA Criminal Justice Section Members:

The NCBA Criminal Justice Section is continuing the tradition of presentations of the Peter S. Gilchrist III and Wade M. Smith Awards for the ninth year.  The 2016-2017 Peter S. Gilchrist, III/Wade M. Smith Awards will be presented Jan. 26, 2017, at the annual Awards Banquet at the Embassy Suites in Cary.  The banquet will precede the NCBA Criminal Justice Section CLE/Annual Meeting, which will be held on Jan. 27, 2017, at the Bar Center in Cary.

The NCBA Criminal Justice Section Council invites you to submit nominations for both awards.  Anyone can submit nominations. Please forward this request for nominations to your local bar and encourage them to submit nominations for both awards.

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