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 August 2010 | October 2010 | February 2011

The Morton Memo - APRIL 2011

 

The practice of law is rapidly changing.  Attorneys are now able to collaborative closely even when they are not in the same firm.  To celebrate this change, two of the three articles in this issue of The Morton Memo are written by two attorneys I closely collaborate with. 
Mike Ritter discusses California's statutes of limitations and reminds us that if don't act promptly to enforce our rights we might be SOL (statute of limitations).  Kellie Delaney writes about the use of cloud computing in the legal profession.  The third article implores readers to save their email since it is important.
The Morton Memo is for you, so kindly email me those topics of interest to you.

>> Save your emails! 

>> Up in the clouds

>> SOL: Can you still sue?

save your emails by eric d. morton

computer with email

Emails can be important documents.  They have the same legal weight as any paper document such as a contract or letter.  However, to paraphrase a famous comedian, they don’t get much respect.  Unfortunately, many business owners, the salespersons, agents, and employees do not know of the importance of email and routinely delete all their emails.  This can cause complications later on when disputes arise as to the conduct and agreements between the parties.

This year, to date, I have had two matters in which my clients needed to find or produce emails.  In each case, the client and another party had exchanged large numbers of emails regarding business matters.  The parties negotiated contracts, discussed the execution of contracts, settlement of issues between them, and other matters.   All of these communications were evidence of the agreements between the parties.

Later, when disputes arose between the parties, my clients had to find those emails - often a couple of years after the fact.  Finding the emails was a difficult process, at best.  Then sorting through the emails to find what was needed was very difficult and time consuming.

This is a common problem.  Parties exchanging business email don’t realize at the time that what they are writing and receiving has serious legal implications.   The exchange of emails is real evidence of what parties agree to and their course of conduct.  When the parties have trouble later, then these emails are become important.

In the past four years, I have had several disputes in which emails have been important evidence of the parties’ intentions and my clients have sometimes had great trouble finding their emails.

Emails are important.  They are written communications and are just as important as letters or any other non-digital agreement.  A series of emails between two individuals may constitute an entire contract between them and/or their companies.

I strongly urge all business owners to develop systems for saving email correspondence.  This can be as simple creating a new directory for each matter and saving emails to that directory.  If one is using Outlook, one can save emails to a separate folder within Outlook.  That is very simple since one can drag and drop an email from one folder to another. 

With large hard drives on most computers and the burden of saving this data is minimal.   The only real problem is getting into the habit of saving them.  If you are not sure what would be a good system for doing so, talk with an Information Technology (IT) expert on ways to save and organize emails. 

In addition to having to produce emails in order to prove a case, emails also take on greater significance is a lawsuit is filed concerning a dispute between the parties.  During the course of a business litigation case, the parties will typically require the other parties to produce and documents that are relevant to the case.  Emails are documents that must be produced.  If the party to the case doesn’t have a system for saving emails, then it will be forced to spend considerable time and money in finding and producing those documents. 

Even worse, if party claims that it can’t find emails or that the expense of finding them is too high, the requesting party can seek to have hard drives produced to be examined by IT experts.  Since everything that was every on a hard drive can be found, with the right software, the emails in question can be discovered.  But, who wants to hand over their hard drives to a third party in those circumstances. 

My suggestion is that individuals develop habits for saving emails organized by matter, customer, vendor, etc.  Businesses should develop means to systematically capture and retain emails so that emails can be quickly discovered, reviewed and produced if necessary.

If you have any questions about trademark law, please contact us at emorton@ericmortonlaw.com or (760) 722-6582.

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                                                                                                     up in the clouds by kellie m. delaney 

Mouse with cloudNo one can seriously doubt that technology continues to have an impact on our lives.  The range of self-service options available on the Internet or “in the cloud” is dizzying.  Scarcely a month goes by when I don’t read an article about how the “cloud” is changing the practice of law.

What is the Cloud?

So what is the “cloud” anyway, and is it really changing the way that lawyers interact with clients and address their legal problems?

Like most technology in the 21st century, cloud computer is changing quickly.  This is not an attempt to explain all the distinctions.  But while the buzz about cloud computing suggests it’s a breakthrough technology, chances are that you have personally accessed cloud services for several years.  The basic idea of cloud computing means you run software—as you do with Gmail or Amazon—by using your browser to access it on a computer that resides “in the cloud.”  The cloud software may install some components on your computer, like Skype does—but you depend on the Internet to access the software, unlike Outlook, for example, which you install on your own computer and run without a connection to the Internet.  It’s in the “cloud” because the cloud is a visual metaphor traditionally used to designate the Internet in computer diagrams.   

Since 2008, cloud computing—or “Software-as-a-Service” (aka, “SaaS”)—has become an attractive revenue model for software vendors:  you pay a monthly subscription fee and the software vendor also saves money because they no longer need to distribute software and incur the associated support costs.  During the same period, the mobility of computing has seen a dramatic increase because of laptops, smartphones and, more importantly, the speed and availability of Internet access.  This has created the perfect storm for relatively new companies like Salesforce.com and for software giants like Intuit who can now deliver QuickBooks or TurboTax to their customers “in the cloud.” 

Legal Services in the Cloud

The cloud can offer significant cost-saving and efficiency benefits to lawyers and their clients.  For one thing, it levels the playing field to enable small firms to collaborate more readily with one another.  In doing so, lawyers can reduce their fees because they no longer need to perform every task themselves.  Instead, they can use the cloud to facilitate communication and sharing of information when they engage or collaborate with other lawyers to address a client’s needs.  The Internet, and certain SaaS providers, make this possible.  As a result, attorneys can bring together the right person for the right task, and charge their clients considerably less.

The cloud can also help lawyers to better serve their clients through efficient document sharing, secured online meetings, and educational services.  While it’s not a substitute for the personal interactions that must form part of the equation, an online video prepared by the lawyer or even a third party, can be a valuable tool to help prepare a small business owner for a deposition or hearing.   Litigants, especially small business owners and individuals, are increasingly outgunned by the resources of their opponents, who may be far larger corporations or insurance companies with a staggering budget to litigate using a big law firm.  The creative and collaborative use of technology can put many clients in a better position to defend or prosecute their claims against successfully.

Many smaller law firms are beginning to form alliances with one another in non-traditional ways that inevitably rely on technology.  Those firms that do are paving the way to a new kind of law, where thoughtful, client-focused attorneys work in collaboration with each other, on a case-by-case basis, to get the best possible results for their clients.

Whether you are looking for a new kind of lawyer or you want to start a conversation with your existing legal service providers,  technology—and the cloud—is giving you more options, more transparency, and more control over how and when you interact with the legal profession. 

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sol: can you still sue? by michael h. ritter

Can I sue

When deciding whether to bring a lawsuit, one important question to ask is how much time has elapsed since the claim arose.  The next question is how much time can elapse before legal action can be brought on the claim. The answer to that question is found in California’s statutes of limitations which are codified in the Code of Civil Procedure Sections 335 – 349. 

The statutes of limitations are designed to prevent stale claims.  Without them, the already overburden legal system would be crushed by a massive volume of lawsuits.The application of statutes in the legal system means that a plaintiff must take reasonably prompt action in filing suit on a claim. When sued, a defendant may raise the statute as a defense to the suit and request that it be dismissed.  The issue of whether the statute applies to bar a plaintiff’s claim may depend up factors such as when the claim arose and whether the statute was stopped from running temporarily.

“As a general rule, a cause of action accrues and a statute of limitations begins to run when a controversy is ripe--that is, when all of the elements of a cause of action have occurred and a suit may be maintained. “ (Armstrong Petroleum Corp. v Tri-Valley Oil & Gas Co. (2004) 116 CA4th 1375, 1388, 11 CR3d 412) see also (Howard Jarvis Taxpayers Ass'n v City of La Habra (2001) 25 C4th 809, 815, 107 CR2d 369). There may be disputed facts about when the elements of a cause of action have occurred.   The court will decide and determine if the case will proceed.

The length of time afforded a plaintiff to sue varies depending on the nature of the claim.  For example, most contract claims have a four-year statute of limitations.  However, defamation claims must be brought to suit within one year.  There are also provisions in the California Civil Code for tolling of the running of the statute under certain situations.  This may allow a plaintiff more time to file suit if the plaintiff can prove facts to support the tolling claim.  Finally, California law allows parties to agree to shorten the statute as to actions between them Capehart v Heady (1962) 206 CA2d 386, 23 CR 851.  

Knowing the statute of limitations for each claim prior to filing a lawsuit is a critical first step.  Fully understanding  the applicability of the statute to a claim may require legal interpretation.  A lawyer will need to know all the facts of the case including  a detailed timeframe of events in order to render an opinion on whether the plaintiff’s claim may be affected by the statute of limitations.

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