How Reading for Leisure Can Improve Your Legal Writing

Reading is part of the lawyer’s job. Reading becomes integral to our day-to-day job as we research, edit, and perfect our best arguments for our clients. In this career, we get sucked into the technical world of legalese and formulate arguments to win our cases. So why spend time outside of work reading for leisure? Because it helps us humanize the very people we represent and helps us be creative in our legal writing. Reading Humanizes Your Legal Clients Ultimately, we represent human beings with issues that affect their lives, much like the characters in the books we read for fun. Reading nonlegal material, whatever it may be, must have a problem that needs to be resolved. The main character must navigate the world alone or with others to solve their problem. Much like the characters in books, we must find a way to solve our clients’ problems. Yet characters in books inevitably find themselves along their journey. They learn something about themselves that helps them solve the problem. A hero, for example, learns they cannot rely solely on themselves to defeat the enemy; they must rely on the best characteristics of others. As lawyers, we often forget this human aspect of our work. We are narrowly focused, researching and arguing to best advocate for our client. Yet how do we accomplish this without knowing the client? What caused the client’s problem that now needs to be solved? What is the client’s goal? Winning a case is always a positive goal, but what do we learn along the journey? These questions highlight why reading for leisure has many benefits in this profession. It humanizes us and keeps us in tune with the realities of the world and how imperfect it is. Reading reflects the world back at us and presents us with challenges for which we may not have solutions. This is a good thing. It makes us change our thinking, taking us outside our respective boxes to see how to achieve our goals and tackle new challenges. Reading translates to creative legal writing. Inspiration can lie within the pages of a good, fast-paced book that may have nothing to do with the issue you are tackling at work. The creativity and humanity we gain from reading can help our legal writing by showing the reader that you are advocating for a real person, for real change. Arguments become more compelling and enlightened. Reading Clears Your Mind and Develops Your Vocabulary Reading for fun also has the benefit of cleansing the mind’s palate. It erases thoughts related to the legal task at hand and transports you into the plot of the book. With a clear head, your mind has a clean slate to build from and create better arguments in your legal writing. Reading for fun can expand your knowledge about the world, increase your vocabulary, and help you develop creative solutions to problems. Reading has brought me many benefits that are reflected in my legal writing. The mental clarity that comes with reading fiction gives my mind the respite it needs to develop better arguments for my clients and better advocate for them. Reading has exposed me to many different worlds, some of which are even like the world in which my clients live. This exposure helps me write in a compelling manner so that I can educate the reader about the kind of situation my client is going through and help them develop empathy for my client. Reading fiction has not only helped me keep my legal writing client-focused but has also helped me cultivate innovative arguments to appeal to the reader’s sense of empathy and humanity. Reading for pleasure has also helped me develop a vocabulary the reader can relate to and understand. The wide variety of material gives me insight into how readers think and relate to the world around them. Hence, when writing, I consciously try to use the tools and skills developed in my reading to make the writing understandable to the reader. While still necessary in legal writing, I try to minimize the use of complex legal jargon so the reader can easily understand legal concepts. And when legal jargon is used, I explain it in terms that the reader can comprehend. Thus, reading for fun develops my writing skills to provide understandable legal writing to my readers. Reading Keeps Us Connected In a world that is evolving toward the increased use of artificial intelligence and its influence on the legal world, reading keeps us grounded; it reminds us that we are making the best of our human minds to develop legal answers for people. Reading for fun helps us connect with one another in meaningful ways, and when you become the writer, those connections expand and reach people in ways automated writing cannot. As lawyers, we tend to think that we must read only those books that will help us in our careers, books that boost our skills in our profession. Reading for fun, even for the avid reader, becomes secondary and often abandoned because of negative biases. I used to think that my reading had to be limited to books related to law, legal writing, and books that would generally stimulate my mind to become a better lawyer. Like how parents play Mozart for their children, I was stuck in the mindset that there were only intelligent books, and those were the ones with the most value to my career and my legal writing. Reconnecting with other genres, even the most trivial ones, helped reset my mindset. It reminded me that inspiration can come in many forms. In my reading journey, I have found mystery and thriller novels to be the most helpful with my legal writing. They present a problem, a mystery that seems unsolvable at first. But as the story develops, more clues appear, leading the reader closer and closer to the ultimate revelation. Sometimes, authors add plot twists that throw you through a loop—an unexpected event the reader could not predict. The same thing happens to us in real life. Our clients’ lives are not linear and predictable. At times, your writing will need to reflect developing events. As an immigration attorney, this is especially true when developing declarations for clients. Circumstances such as trauma or newly discovered information can alter how their story will develop before a judge or immigration officer. My line of work requires me to reflect on these changes in writing and formulating arguments that match the facts of each case. Reading mystery and thriller novels has helped me narrate my clients’ stories in a way that points the reader to the ultimate revelation: the reason my clients are in the United States. Regardless of your reading level on your off time, consider reading for fun. Not only will it reshape the way you think and approach issues in real life, it will definitely improve your legal writing skills.

Lawyer went the extra 29 miles to shut down refinance scam - Paralegal and Certified Legal Document Preparer Mark Smith, LL.M.

A lawyer in Charlotte, North Carolina, put the knowledge that he gained at a fall conference to use when he visited a homeowner and averted a financial scam. WSOC-TV has the story on lawyer Charles W. Hands III of the Hands Law Firm and his paralegal Devera Alston, who became suspicious when a man seeking a cash-out refinance was a no-show for a Zoom meeting. The man claiming to be the homeowner was in touch with the broker, UMortgage, by phone and text. He provided all the needed documents, including a copy of the homeowner’s driver’s license and tax records. Hands had attended a conference that discussed refinancing fraud and advised lawyers to always meet the homeowner face to face. Hands and Alston decided that they should visit the property being refinanced and made a 29-mile round trip to the home of Samuel Helmick. Hands told WSOC-TV that Helmick’s face matched that of the driver’s license sent to them online, but Helmick “had no idea who we were or knew anything about a refinance with us at all.” Helmick’s home was completely paid off. He told WSOC-TV that he was “absolutely stunned” to learn that someone was seeking about $450,000 in cash by refinancing his home. “They shut everything down, thank God,” Helmick said of Hands and Alston. “They took the time to come to my home, knock on the door and come on inside, and lay it all out for me. And I’ll always be appreciative of that.” UMortgage gave WSOC-TV a statement crediting “a system of checks and balances” for preventing financial loss to Helmick. “UMortgage takes cybersecurity very seriously and is committed to maintaining the highest standards of integrity and security in our operations,” the statement said. WSOC-TV advises homeowners to freeze their credit and open all their mail, even if it looks like junk mail, to avoid such scams. Hands, Alston and Helmick would also like to see a rule requiring lenders to verify a homeowner’s identity in person.

'Spirit of Aloha' clashes with 'federally mandated' gun lifestyle, Hawaii Supreme Court says - Paralegal and Certified Legal Document Preparer Mark Smith, LL.M.

The Hawaii Supreme Court has upheld state laws that generally ban carrying guns in public in an opinion that criticizes the U.S. Supreme Court’s historical approach to Second Amendment cases. “In Hawaii, the Aloha spirit inspires constitutional interpretation,” the state supreme court said in its unanimous Feb. 7 decision. “The spirit of Aloha clashes with a federally mandated lifestyle that lets citizens walk around with deadly weapons during day-to-day activities.” A man named Christopher Wilson had challenged Hawaii’s “place to keep” laws that required him to keep guns and ammunition at his “place of business, residence or soujourn,” according to the decision and Bloomberg Law. The laws had an exception that allows people to carry a handgun for self-defense if they have a license. Wilson cited the Supreme Court’s June 2022 decision in New York State Rifle & Pistol Association Inc. v. Bruen, which found a Second Amendment right to carry a handgun for self-defense outside the home. In that decision, the Supreme Court said gun restrictions should be evaluated based on the nation’s historical tradition. The Hawaii Supreme Court said it would interpret the state constitution first and then the U.S. Constitution. The section of the opinion evaluating the laws under the Constitution did not begin until page 52 of the 53-page opinion. The Hawaii Supreme Court evaluated a section of the Hawaii Constitution that mirrors Second Amendment language. Despite the similarities, the state supreme court concluded that the Hawaii Constitution does not create a constitutional right to carry a firearm in public for self-defense. The state’s historical tradition supports a “collective, militia meaning” for the right to bear arms, rather than an individual right, the state supreme court said in an opinion by Hawaii Supreme Court Justice Todd W. Eddins. “When the Hawaii Constitution was first ratified, courts throughout the nation’s history had always interpreted and applied the Second Amendment with the militia-centric view,” Eddins wrote. The state supreme court also concluded that the original purpose of the Second Amendment was to protect states’ rights to have militias. “That’s what they were thinking about long ago,” Eddins wrote. “Not someone packing a musket to the wigmaker just in case.” “Bruen unravels durable law,” Eddins wrote. “No longer are there the levels of scrutiny and public safety balancing tests long-used by our nation’s courts to evaluate firearms laws. Instead, the court ad-libs a ‘history-only’ standard.” “We believe it is a misplaced view to think that today’s public safety laws must look like laws passed long ago,” Eddins said. “Smoothbore, muzzle-loaded and powder-and-ramrod muskets were not exactly useful to colonial era mass murderers. And life is a bit different now, in a nation with a lot more people, stretching to islands in the Pacific Ocean.” The Hawaii Supreme Court also quoted a Bruen concurrence by Supreme Court Justice Brett Kavanaugh that said states retain the authority to require that people have a license to carry firearms in public. Hawaii’s two “place to keep” laws at issue have an exception allowing people to carry a handgun for self-defense if they have a license, the state supreme court said. The laws “do not graze Wilson’s Second Amendment right,” the state supreme court concluded. The case is Hawaii v. Wilson.

AI-Generated Fake Case Law Leads To Sanctions In Wage Suit

The owner of a Missouri-based technology business that was ordered to pay an ex-employee roughly $311,000 in unpaid wages, damages and legal costs was sanctioned Tuesday by an appellate court for briefing "deficiencies," including submitting fake cases generated by artificial intelligence. The ruling was the first time the appellate court has had to weigh in on the "impact of fictitious cases being submitted to our court," the opinion said. (iStock.com/photoschmidt) In a ruling Tuesday, a three-judge panel of the Missouri Court of Appeals Eastern Division rejected Jonathan R. Karlen's appeal of a 2022 order levying the $311,000 penalty against him and two companies associated with him, Indigo Three Limited and The Karlen Group, in a wage fight with Molly Kruse. It was the first time the appellate court has had to weigh in on the "impact of fictitious cases being submitted to our court," the opinion said. "Due to numerous fatal briefing deficiencies under the Rules of Appellate Procedure that prevent us from engaging in meaningful review, including the submission of fictitious cases generated by artificial intelligence, we dismiss the appeal," Judge Kurt S. Odenwald wrote for the panel. "Given the frivolousness of the appeal, we also award damages to respondent [Kruse]." The appellate court ordered Karlen to pay Kruse $10,000 "in damages for filing a frivolous appeal." At issue in the case is a yearslong wage dispute between the parties. In a court filing, Kruse said she was hired by Indigo Three Limited, which operates as Indigo Three Strategies, in 2015 as its chief creative officer. She worked for the business, which identifies itself on its LinkedIn page as a builder of websites and applications, until 2019, according to the filing. After she was terminated, the company refused to pay her wages from 2018 and 2019, she said. Karlen is "the only known owner, officer and director of" Indigo Three Strategies and The Karlen Group, according to her filing. Kruse had filed a petition in 2021 seeking damages, and the following year a state judge ruled against Karlen and the two companies. The judge ordered Karlen and the companies to pay Kruse $72,936.42 for unpaid wages, $145,872.84 in damages and roughly $92,000 in attorney fees and legal costs. Karlen then mounted his appeal, "acting pro se purportedly on behalf of all defendants named in the original action," the appellate court's decision said. In its decision, the appeals court took Karlen to task for inadequate and problematic filings. Multiple issues arose during the appeal, the opinion said, including untimely filings, numerous deadline extensions and claims by Kruse that Karlen had failed to make certain required filings. "Particularly concerning to this court is that appellant submitted an appellate brief in which the overwhelming majority of the citations are not only inaccurate but entirely fictitious," the opinion said. "Only two out of the twenty-four case citations in appellant's brief are genuine." The panel said Karlen "offers citations that have potentially real case names — presumably the product of algorithmic serendipity — but do not stand for the propositions asserted." He also "erroneously" cited Missouri statutes and rules, the opinion said. "Throughout the appellate brief, appellant's cited statutory and rule authorities do not state what appellant claims," the ruling said. "For instance, some statutes and rules concern a completely different legal matter than what appellant purports, while others misstate the substance of the law." The appeals court also took aim at a reply brief in which Karlen "apologized for submitting fictitious cases and explained that he hired an online 'consultant' purporting to be an attorney licensed in California to prepare the appellate brief." "Appellant stated he did not know that the individual would use 'artificial intelligence hallucinations' and denied any intention to mislead the court or waste respondent's time researching fictitious precedent," the opinion said. "Appellant's apology notwithstanding, the deed had been done, and this court must wrestle with the results." The "bogus citations" in Karlen's filing represent "a flagrant violation of the duties of candor appellant owes to this court," the panel said. "We regret that appellant has given us our first opportunity to consider the impact of fictitious cases being submitted to our court, an issue which has gained national attention in the rising availability of generative A.I.," Judge Odenwald wrote for the panel. In its ruling, the panel referred to the Mata v. Avianca case in New York federal court, in which a judge last year reprimanded attorneys for submitting a brief prepared by artificial intelligence that cited nonexistent case law. "To protect the integrity of the justice system, courts around the country have been considering and/or enacting local rules specifically geared towards prohibiting or disclosing the use of generative A.I. in court filings," the Missouri appellate court said Tuesday. Karlen's "fictitious citations alerted us and respondents to the probability of generative A.I.'s involvement even prior to appellant's disclosure after the fact," the panel said. "We urge all parties practicing before this court, barred and self-represented alike, to be cognizant that we are aware of the issue and will not permit fraud on this court in violation of our rules," the appeals court said. Judges Odenwald, Michael E. Gardner and Renée D. Hardin-Tammons were on the panel for the Missouri Court of Appeals Eastern District. Karlen, who confirmed to Law360 that he is a candidate for a state legislature seat in Missouri, declined to comment Tuesday about the decision. Counsel for Kruse didn't immediately respond to a request for comment. Karlen is representing himself. Kruse is represented by Bridget L. Halquist of Summers Compton Wells LLC. The case is Kruse v. Karlen et al., case number ED111172, in the Missouri Court of Appeals Eastern District. --Additional reporting by Ryan Boysen. Editing by Alanna Weissman. Correction: A prior version of this story incorrectly identified the state in which Karlen is a candidate for public office. The error has been corrected.

Bank Trade Chief Warns Of Rules 'Masquerading As Guidance'

The American Bankers Association's chief executive fired off a warning shot at federal regulators on Monday over their use of agency guidance, cautioning that several recent documents addressing certain bank fees and other practices are no substitute for formal rulemaking. Speaking at a conference in Texas, ABA President and CEO Rob Nichols criticized what he described as a trend toward "regulation masquerading as guidance" at the banking agencies and said they should not be "circumventing the notice-and-comment process" by using guidance to prescribe new standards. "Banks welcome guidance that helps them understand and comply with legal requirements," Nichols said in prepared remarks at the conference, an ABA-sponsored event for community bankers. "But we're seeing a disturbing pattern lately of federal agencies — including federal bank regulators — issuing so-called 'guidance' documents that are, in fact, regulatory rules." Nichols expanded on those concerns in letters that he and other ABA officials sent Monday to top officials at the Federal Reserve, Federal Deposit Insurance Corp., Office of the Comptroller of the Currency and Consumer Financial Protection Bureau. Recent agency guidance has "too often" consisted of binding legal requirements that must go through notice-and-comment, and in the "most egregious cases," it has even exceeded their statutory authority, Nichols wrote in his letter. Other letters addressed to the FDIC and CFPB singled out five of their recent guidance documents as examples of what Nichols called "guidance gone wrong" in his Monday speech. Among the five were missives issued by the FDIC in 2022 that frowned on charging repeated non-sufficient fund fees, or NSF fees. That guidance is already the subject of an industry challenge pending in Minnesota federal court. The letters also flagged CFPB guidance from last year that warned about fees for "basic" bank account-related information, "pay-to-play" arrangements on mortgage comparison shopping sites, adverse action notices for lenders using artificial intelligence, and immigration-related credit discrimination. According to the ABA, these documents suffer from significant legal and procedural flaws, often create more uncertainty for banks, and should be scrapped until the agencies revise and re-issue them as proposals for public comment. "The failure to confer with industry about interpretive questions, operational impacts, and system constraints limits the utility of guidance, undermines its acceptance, and may limit its durability as administrations change," Nichols wrote.  Monday's letters built on an ABA white paper published last week that raised similar concerns about regulators' use of guidance and urged restraint going forward, including the adoption of a specialized notice-and-comment process for "significant" agency guidance. The paper said that while guidance can be "useful" as a way to clarify legal ambiguities and articulate enforcement approaches, regulators have frequently missed the mark by issuing guidance that is either poorly written or verges into rulemaking territory governed by the Administrative Procedure Act. This latter category of "ineffective" guidance, according to the paper, has included the FDIC and CFPB guidance highlighted in Monday's letters as well as an OCC bulletin issued last year on overdraft practices. But the paper also cited a few examples of "effective" guidance to emulate, such as an anti-money laundering-related issuance that the Fed, FDIC and OCC put out in April 2021. Neither the paper nor Monday's letters identified any specific Fed guidance documents as "ineffective" or otherwise problematic. Industry complaints about regulators exploiting guidance for backdoor rulemaking aren't new. A decade ago, for example, similar criticisms featured in debates over CFPB indirect auto lending guidance that federal lawmakers ultimately struck down as a de facto rule. During the Trump administration, the banking agencies and CFPB sought to reassure the industry by promising that they would limit how they use guidance and would not enforce based on it. The agencies codified this stance in a final rule published at the start of the Biden administration that remains on the books. But more recent regulatory efforts to rein in banks' fee practices, tighten the screws on digital assets and address other fintech-related risks have prompted renewed concerns in the industry about overuse of guidance. Bank trade groups have also shown greater willingness to push back in court on perceived agency excesses. The ABA, for example, is involved in two lawsuits against different CFPB regulatory actions and joined other trade groups last week in suing the Fed, FDIC and OCC to block their new community reinvestment rules. "It's never our preference to bring these kinds of lawsuits," the ABA's Nichols said in his Monday speech. "But we won't shy away from doing so when it's necessary and when we have no other recourse."

BREAKING: Trump Turns To Supreme Court In Criminal Case - by Certified Paralegal and Legal Document Preparer Mark Smith, LL.M., CLDP

Former President Donald Trump asked the U.S. Supreme Court on Monday to stay a D.C. Circuit panel's ruling that he is not immune from federal charges for allegedly interfering in the 2020 presidential election.  The high court's intervention is needed to "forestall ... an unprecedented and unacceptable departure from ordinary appellate procedures," Trump argues, referring to the D.C. Circuit panel's order allowing the district court to move forward with proceedings even if the former president requested review by the entire bench. Trump wants the Supreme Court to grant a stay so that he can seek an en banc review with the D.C. Circuit. He adds the prosecution of a former president would be a "breach of precedent and historic norms" that the Supreme Court shouldn't allow.  "The threat of future criminal prosecution by a politically opposed administration will overshadow every future president's official acts – especially the most politically controversial decisions," Trump says.  A three-judge D.C. Circuit panel – comprising two Biden appointees and one H.W. Bush appointee – issued a unanimous per curiam opinion Feb. 6 rejecting Trump's assertion that he has so-called presidential immunity from prosecution for any official acts taken in the White House. The panel said Trump's claim for sweeping immunity "is unsupported by precedent, history or the text and structure of the Constitution." Trump is facing a four-count indictment in D.C. federal court that accuses him of undertaking a wide-ranging strategy to overturn the 2020 election results, including pressuring state lawmakers and organizing alternate slates of electors. He is charged with conspiring to defraud the U.S., conspiring to obstruct an official proceeding, obstructing an official proceeding and conspiring against citizens' right to vote. He contends the indictment must be tossed for three reasons. The courts, Trump claims, are powerless to review official presidential acts, public policy favors immunity and the U.S. Constitution bars the prosecution of former presidents who have not already been convicted through impeachment. The D.C. Circuit panel addressed each argument separately in a 57-page opinion, first finding Trump's reading of Marbury v. Madison to say that official presidential acts "can never be examinable by the courts" was incorrect. The foundational ruling allows for judicial review of "ministerial" actions that officials are bound by law to perform while prohibiting review of discretionary decisions, the panel said. Trump had no discretionary authority to defy "generally applicable" criminal laws and must be held "answerable in court for his conduct," the panel ruled. The public's interest in criminal accountability and the executive branch's interest in upholding presidential elections also outweigh any risks that Trump alleges would arise if former presidents could be criminally prosecuted, the appellate panel held. The judges rejected claims that future presidents wouldn't take necessary actions during their time in office due to a threat of post-term prosecution. "Presidential immunity against federal indictment would mean that, as to the president, the Congress could not legislate, the executive could not prosecute and the judiciary could not review," the panel said. "We cannot accept that the office of the presidency places its former occupants above the law for all time thereafter." Finally, the panel held that Trump's argument that the impeachment clause prohibits prosecution of former presidents who have not already been convicted through impeachment rests on a "logical fallacy." The clause was explicitly written to not limit an official's criminal liability, and it shouldn't be read any other way, the panel said. Trump is represented by John F. Lauro and Gregory M. Singer of Lauro & Singer, Todd Blanche and Emil Bove of Blanche Law, and D. John Sauer, William O. Scharf and Michael E. Talent of James Otis Law Group LLC. The federal government was represented at the D.C. Circuit by Jack Smith, J.P. Cooney, Michael R. Dreeben, James I. Pearce, Molly Gaston, Thomas P. Windom, Raymond N. Hulser, John M. Pellettieri and Cecil W. VanDevender of the U.S. Department of Justice's Special Counsel's Office. The case is Trump v. United States, case number 23A745, in the Supreme Court of the United States.

BREAKING: Judge Newman Again Denied Return To Federal Circuit - Mr. Mark Smith, LL.M., Certified Paralegal and Legal Document Preparer

A D.C. federal judge on Monday shot down suspended Circuit Judge Pauline Newman's request for an injunction that would allow her to hear cases on the Federal Circuit again and largely dismissed her suit accusing her colleagues of trying to wrongfully remove her from the bench.   U.S. District Judge Christopher R. Cooper held that his court doesn't have jurisdiction to oversee many of Judge Newman's claims challenging her suspension under the Judicial Conduct and Disability Act, and that her remaining claims are too weak at this point to justify an injunction. The surviving claims deal with Judge Newman's challenges to the act itself, rather than the way it was applied against her, which requires "a demanding standard" for the 96-year-old to meet, according to Judge Cooper. He will allow Judge Newman to argue that the act is vague when it comes to deciding what counts as a mental disability, and therefore, whether it would apply to her.  "The court therefore may not entertain dismissal of the case in its entirety at this juncture," Judge Cooper wrote. "Defendants may seek dismissal of the surviving claims under Rule 12(c) or via summary judgment." The decision comes less than a week after the Committee on Judicial Conduct and Disability upheld the one-year suspension Judge Newman received for refusing to undergo a medical examination when the circuit's other judges questioned her mental competency. Judge Newman's attorney, Gregory Dolin of the New Civil Liberties Alliance, said Monday: "We are certainly gratified that Judge Cooper did not dismiss the entirety of the action, and we will proceed on the claims that remain live." Dolin said, "With respect to the dismissed claims, we are evaluating our options and will seek review in the DC Circuit in due course and as necessary." A representative for the Federal Circuit didn't immediately respond to a request for comment Monday. Judge Newman is represented by Gregory Dolin and John J. Vecchione of the New Civil Liberties Alliance. The Federal Circuit is represented by Michael Andrew Zee and Stephen Ehrlich of the Civil Division of the U.S. Department of Justice. The case is Newman v. Moore et al., case number 1:23-cv-01334, in the U.S. District Court for the District of Columbia.

Iran capable of building nuclear bomb in one week, report finds as Middle East tensions flare - Mr. Mark Smith, LL.M., Certified Legal Document Preparer

An Iran watchdog group says the country has enough weapons-grade uranium to build a nuclear weapon in just one week. The Institute for Science and International Security published the findings in a report on Monday, saying Tehran could produce a total of six bombs in a month. "The volatile situation in the region is providing Iran with a unique opportunity and increased internal justification for building nuclear weapons while the United States and Israel’s resources to detect and deter Iran from succeeding are stretched thin," the report states. "Iran's nuclear weapons capabilities are more dangerous than they have ever been, while its relations with the West are at a low point." Iran can "break out and produce enough weapon-grade enriched uranium for a nuclear weapon in a week, using only a fraction of its 60% enriched uranium," the report continued. "This breakout could be difficult for inspectors to detect promptly, if Iran took steps to delay inspectors’ access." An Iran watchdog group says the country has enough weapons-grade uranium to build a nuclear weapon in just one week. (Office of the Iranian Supreme Leader via AP) Iran has been steadily growing its ability to produce enriched uranium in recent years. The substance needs to be enriched to roughly 90% before being used in a nuclear weapon. Iran has an extensive supply of 60% enriched uranium that could quickly be siphoned off and enriched further. The report comes as tensions in the Middle East continue to skyrocket. Iran's proxy terrorist groups have launched missiles into Israel and attacked U.S. forces operating in Iraq, Syria and the Red Sea. The U.S. Navy has shot down numerous anti-ship ballistic missiles launched by incoming Iran-backed Houthi missiles in the Red Sea. President Biden's administration says it is working to prevent Israel's war against Hamas from spilling over into a regional conflict. Nevertheless, the U.S. has carried out a series of airstrikes against the Iran-backed Houthis in Yemen and other groups. The uptick in U.S. strikes came after three American service members were killed in a drone attack on a base in Jordan in late January.

Third-Party Litigation Funding Rule Gets Cold Shoulder In NJ

A New Jersey Supreme Court committee has shot down a proposal to mandate disclosure of third-party litigation funding agreements in civil cases, saying drafting such a rule could be difficult. In its 2024 report recommending rule amendments to the Supreme Court, made available on Tuesday, the civil practice committee indicated a disclosure rule may be appropriate down the road but not at the moment, citing "the need for further development through experience in this area." The rule would apply to cases where lawyers or firms receive funding to work on specific cases in exchange for a contingent interest in the litigation or in cases where a plaintiff uses a loan to pay legal bills while litigation is pending without telling the attorney, the committee said. Those loans can interfere with settlements because it could lead a party to reject an otherwise reasonable settlement offer because it would not pay off the loan. However, the committee and its discovery subcommittee ultimately determined that "there is not sufficient experience to meaningfully develop and recommend a rule change at this time." The committee report noted several potential challenges to drafting a rule to address the question of third-party litigation funding. "Often, attorneys are unaware of their clients' acceptance of TPLF and requiring disclosure by attorneys of the same would prove problematic," the committee said. "While there may be ethical implications where an attorney fails to disclose the existing of TPLF where required, where a client possesses the knowledge, the rule could not be enforced fairly against an attorney."  The committee considered the rule change at the suggestion of the New Jersey Civil Justice Institute, which proposed the change in a letter to the court in April. Anthony Anastasio, president of the NJCJI, told Law360 Pulse on Wednesday that the group is "disappointed" by the decision. "Third-party litigation funding has increased exponentially over the past decade and now constitutes a multibillion-dollar industry," Anastasio wrote in an email Wednesday. "As a result, certain types of civil litigation, such as auto accident cases, mass torts and consumer class actions, are becoming increasingly 'financialized,' with outside money having an outsized influence on case selection and disposition." With no regulation of the issue at the state level, there is a lack of transparency behind these cases, according to Anastasio. Judges and parties may lack the information to identify conflicts of interest and improper influence by funders on litigation strategies or settlement decisions, he added. The NJCJI's letter to the court recommending the change highlighted the case of Sysco Corp. v. Glaz LLC in Illinois federal court. The food distributor Sysco had sued third-party litigation investor Burford Capital, claiming it prevented Sysco from settling with defendants in a price-fixing suit because Burford wanted to continue the litigation against Sysco's wishes. Ultimately, Sysco and Burford agreed to voluntarily dismiss their suits against each other. The NJCJI's letter proposing the change to the court noted that the U.S. District Court for the District of New Jersey mandates disclosure of TPLF and that other states, such as Wyoming and West Virginia, have also enacted their own requirements. "NJCJI's proposal merely sought disclosure of these arrangements in litigation, so that the real parties in interest — namely, the courts, named plaintiffs and defendants — can all ensure that litigants remain in the driver's seat of their own cases and that the desire of third-party funders to maximize profits does not interfere with the administration of justice," Anastasio said.

Trainer Who Doped Horses Avoids Prison In Cooperation Deal - Mr. Mark Smith, LL.M., Certified Legal Document Preparer (Call or Text: (800) 590-6698 or Email: cldp@mail.com)

A New York trainer who admitted drugging horses so that the outcomes of their races could be fixed avoided prison Wednesday after a Manhattan federal judge credited his extensive cooperation with prosecutors to include testifying at two trials. U.S. District Judge Mary Kay Vyskocil directed defendant Ross Cohen, 52, of Middletown, to pay a $5,000 fine, to forfeit $40,000 and to contribute to more than $28 million of restitution in the feds' crackdown on corruption in horse racing. "You have likely offered the most significant cooperation of any defendant charged in this case," Judge Vyskocil said. "You seem to have changed and you seem to have broken the pattern of repeated drugging." Cohen, who had been a licensed racehorse trainer for 25 years working at Yonkers Raceway and other venues prior to his arrest, pled guilty in 2020 to a count of drug alteration and misbranding conspiracy. Prior to his arrest, Cohen had been fined for doping and suspended by at least one racing venue, the judge noted Wednesday. Under his cooperation deal with the Manhattan U.S. attorney's office, Cohen testified at trial against two co-defendants, veterinarian Seth Fishman and racetrack worker Lisa Giannelli-Voshell, both of whom were found guilty and sentenced to prison. More than 25 people were charged in the crackdown, including most famously thoroughbred trainer Jorge Navarro. Navarro, nicknamed the "Juice Man," pled guilty and in 2021 was sentenced to five years by Judge Vyskocil. In a tearful statement, Cohen, who now works in sales, told the court that he is still working to repair the harm his actions caused. "In simple terms, I was greedy and selfish," he said. "People lost money because they bet on races that I helped fix. Then I received money that I was not entitled to. I also could have harmed the horses I was partially charged with caring for. I did irreparable harm to the horse racing industry because there will be people who will never regain trust that the races aren't fixed." Cohen faced a five-year sentence, the maximum possible for the conspiracy count to which he pled guilty. Without getting into specifics, Judge Vyskocil also said that Cohen assisted prosecutors in matters beyond the cases that are before her. The government's sentencing memorandum detailing Cohen's cooperation is not public. Cohen's lawyer Aida Leisenring said after the sentencing that Cohen showed honest remorse. "Second chances were invented for people like Ross Cohen. We are grateful to court for recognizing that Mr. Cohen tackled many obstacles to right the wrongs he committed," she told Law360 via email. Cohen is represented by Bruce Barket and Aida Leisenring of Barket Marion Epstein & Kearon LLP. The government is represented by David Felton of the U.S. Attorney's Office for the Southern District of New York. The case is USA v. Navarro et al., case number 1:20-cr-00160, in the U.S. District Court for the Southern District of New York.

Ex-Wilmer Partner Among Biden's Latest District Court Picks - Mr. Mark Smith, LL.M., CLDP Certified Legal Document Preparer

President Joe Biden announced four judicial nominees on Wednesday morning to serve in district courts in New York, California and South Dakota. President Joe Biden, shown here on Jan. 6, announced four new judicial nominees Wednesday. (Alex Wong/Getty Images) The nominees are U.S. Magistrate Judge Sanket J. Bulsara for the Eastern District of New York, Judge Dena Michaela Coggins for the Eastern District of California, Eric Schulte, partner at Davenport Evans Hurwitz & Smith LLP, for the District of South Dakota and Judge Camela Theeler for the District of South Dakota. Judge Bulsara has served on the Eastern District of New York since 2017 and became the first South Asian American to serve on any court within the Second Circuit, according to his court bio. Before serving on the bench, he was deputy general counsel for appellate litigation, adjudication, and enforcement and then acting general counsel at the U.S. Securities and Exchange Commission. Judge Bulsara also rose through the ranks to become a partner at Wilmer Cutler Pickering Hale and Dorr LLP, served a brief stint as special assistant district attorney at the Kings County (Brooklyn) District Attorney's Office and was an associate at Munger Tolles & Olson LLP. After graduating from Harvard Law School, he clerked for Judge John G. Koeltl on the Southern District of New York, the White House announcement said. Judge Coggins has been the presiding judge for the Juvenile Court of the Superior Court of California, County of Sacramento since 2023 and a superior court judge since 2021, according to an announcement from the court.  She was previously an administrative law judge for the State of California's Office of Administrative Hearings in the general jurisdiction and special education divisions, the White House said. Judge Coggins has also served as a supervising attorney and hearing officer at the State of California Victim Compensation Board and deputy legal affairs secretary for the governor of California. In addition to her government work, she was an associate at Downey Brand LLP and at Morrison Foerster LLP, the White House said. Judge Coggins received her law degree from the University of the Pacific's McGeorge School of Law. Schulte has been a partner at Davenport Evans Hurwitz & Smith LLP since 2006 and before that was an associate there for five years, his firm bio states. Earlier in his career, he was a law clerk for the South Dakota Second Judicial Circuit in Sioux Falls. Schulte graduated from the University of South Dakota School of Law, his bio said. Judge Theeler has served on the Second Judicial Circuit of the South Dakota Unified Judicial System since 2018. She was previously an assistant U.S. attorney for the District of South Dakota, an associate then a partner at Lynn Jackson Shultz & Lebrun PC, and an associate at Morgan Theeler Law Firm LLP. Judge Theeler clerked for the First Judicial Circuit of the South Dakota Unified Judicial System after receiving her law degree from the University of South Dakota School of Law, according to the White House. Biden also announced on Wednesday his intent to nominate Col. John E. Richardson, executive assistant to the president of Alabama State University, to serve as U.S. Marshal for the Middle District of Alabama. Law360 is tracking Biden's judicial nominees from the White House to the Senate to the federal bench.

Managing Competing Priorities In Witness Preparation - Mr. Mark Smith, LL.M., CLDP

Recently, the presidents of Harvard University, the University of Pennsylvania and the Massachusetts Institute of Technology drew criticism for their congressional testimony related to antisemitism on college campuses. Penn President Liz Magill ultimately resigned from her position because of the criticism.[1] Harvard President Claudine Gay also resigned on Jan. 2, due in part to the backlash her comments received. In the weeks leading up to her resignation, Gay apologized for her remarks and stated, "I got caught up in what had become at that point, an extended, combative exchange about policies and procedures. … I failed to convey what is my truth."[2] While the criticism of the presidents' testimony is understandable, what is also understandable is that there were likely competing priorities in the process leading up to the testimony. In other words, there was probably tension between what the university presidents probably knew they should have said — i.e., "Yes, calling for the genocide of Jews violates their school's code of conduct," and what they were likely told to say, i.e., in the words of Magill, "it is ... context-dependent." Such competing priorities are commonly seen in preparing for deposition testimony, as well. This article takes a closer look at these competing priorities, and discusses ways to remedy them. Discrepancy in Goals Between Attorneys and Witnesses There is often a divide between what attorneys want and what witnesses want out of the deposition process. Attorneys want their witnesses to perform well. In other words, they do not want them to do or say anything that may harm the case. They want them to stand firm, spot any traps and react appropriately. If they are working with advanced witnesses responsible for carrying strategy forward — e.g., corporate representatives — they probably also want to make sure the witnesses clearly and succinctly get across the case themes. For most witnesses, their goal is to get out of the deposition in one piece. They do not want to mess up. They want to make everyone happy. But, most of all, they want it over with. The deposition experience is, at best, stressful, and, at worst, an overwhelming tidal wave of emotion. Either way, witnesses — like all humans — seek safety and security.[3] This typically shows up in a fight, flight or freeze response. Individuals gravitate toward built-in responses to external stimuli, like an uncontrollable emotional reaction, i.e., hyperarousal; shutting down and doing whatever is necessary to get it to stop, i.e., hypoarousal; or becoming numb. This numbness is a dissociative response: Individuals no longer have the sense they have any stake in the game. Things cease to matter. Anything goes. They have given up. Witnesses often report that their stress level increases anytime they receive an email or phone call from their attorneys. Without realizing it, some attorneys are retraumatizing their witnesses with each contact because it reminds the witnesses — especially those who have been involved in a catastrophic injury — of one of the worst days of their lives. It also reminds them that no matter how hard they may try to avoid the litigation process, it is unlikely to go away until they sit down and answer accusatory questions from opposing counsel. This remains the case no matter which side of litigation you are on. Plaintiffs and family members have unique stressors when testifying, as do named defendants, corporate representatives and company owners. How can attorneys resolve this tension? Can anything be done to incorporate both sets of priorities? We believe things can be done to minimize this tension, if not totally resolve it. But first, we need to backtrack and consider how the inherent lack of autonomy often projected onto witnesses inhibits the "good performance" everyone is seeking. Tackling Some Assumptions Why is there an assumption that testifying witnesses will happily oblige the legal team's view of the case and perform as directed without question? Why are some attorneys and clients willing to dismiss, or fail to consider, witnesses' perspectives, thoughts, feelings and reactions to the situation the witnesses find themselves in? Many witnesses decidedly do not want to be involved in litigation — many, in fact, would do almost anything to not be involved. Many are doing what they can to grit their teeth and make it through the process unscathed — attempt to perform well, meet the team's expectations and avoid embarrassing themselves. Attorneys tell witnesses to listen carefully, pay close attention to the question, take their time, do not speculate and stay calm. That is a simplistic approach to a situation that is more likely to be full of emotional land mines, manipulative questions and confusing tactics. Most of us do not spend hours in the ticking time bomb-esque feeling of a deposition or trial testimony. Attorneys with years of experience navigating the legal system are conditioned to accept the emotionality inherent in it — the ups and downs of litigation are normalized, expected and prepared for. But what about for those unfamiliar with such a situation? There is a painful fact about human behavior: You can tell someone to do something differently multiple times; however, that does not necessarily mean they have the capacity to change on command. Humans are not that simple. These things require a little more understanding and a little more work. Understanding how to empower behavior change means understanding that it begins with putting the witness at the center of the preparation process. This is what ensures good testimony. Resolving the Tension Between Priorities and Maximizing Preparation One of the first ways to resolve the tension created by competing priorities in deposition preparation is for the attorney to shift their mindset. It is a different thing to enter the preparation room with a prebuilt idea that witnesses are there to perform for the team, versus entering the room genuinely curious about witnesses' perspectives, fears and abilities. This involves asking open-ended questions and building rapport with the witness — an individual who is enduring something difficult. This also involves acknowledging that the situation can be tough, and not rushing to convince the witness otherwise. Taking the time to discuss these concerns and build rapport with witnesses is something that attorneys often overlook. Sometimes, attorneys will try to bypass the rapport-building process with witnesses and get straight to the mock questions. Some of them view building rapport and allowing witnesses to seemingly dump their emotions as a waste of precious time that could be better spent practicing answering questions and honing responses that support the case narrative. While the mock cross-examination process is vital to preparing witnesses for testimony, this process is useless if witnesses are not engaged, feel unheard or are carrying emotional baggage. Interestingly, some witnesses want to bypass the extensive training it takes to be a "good" witness and do not want to discuss how the litigation is affecting them. When attorneys oblige the witness's request to get on to the mock cross-examination questions, there is almost always a point during the preparation process in which the witness's walls begin coming down, and their underlying feelings emerge — it just had to happen on their time. Sometimes it is a document that elicits this reaction; sometimes it is a line of questioning during the mock cross-examination. Regardless of when it happens, that is the moment when the focus must shift away from the mock cross-examination questions and shift to addressing these underlying emotions and concerns. The focus on a positive outcome can cloud the team's perspective. If witnesses sense the litigation team is prioritizing a good result and concentrating on "doing well" above all, it can be difficult for the witness to acknowledge any fears around their ability to meet those expectations. The team needs to establish a climate of psychological safety, where it is clear there will not be negative consequences for acknowledging reality — even an uncomfortable, less-than-perfect one. Attorneys should meet witnesses where they are. Despite your structured witness preparation processes, witness preparation should still look different every time. It must ultimately be driven by, and focused on, the unique needs of whoever is in front of you. Attorneys and clients should also consider letting witnesses in and showing them what is going on behind the scenes in the litigation. For example, how will their "yes" response to one question be used against them later in the deposition? What is the purpose of opposing counsel showing witnesses a specific document — i.e., how does this document tie into opposing counsel's case narrative? What are the bad facts that opposing counsel will point out to try and elicit a defensive or emotional reaction from the witnesses? While we respect the need to be cautious about disclosure and discovery issues when letting witnesses know more about the case, giving them a sense of ownership over what is happening is essential. They are the ones navigating a hard situation. Yet, the litigation team sometimes fails to offer padding for the toughness. Somewhat counterintuitively, putting everything on the table helps dissipate the tension and encourage witness cohesion with the litigation strategy. Trust among the litigation team, including the witness, is essential. The team needs to hear — bad or good — what witnesses know, remember and think about critical elements of the case. Attorneys should not want to be surprised during testimony. There are horror stories recounting how attorneys have learned of witnesses' criminal histories during the deposition. This most likely occurred because the attorneys did not take the time to learn more about their witnesses before deposition. Their preparation likely focused more on the case facts, and not on a holistic view of the person who was testifying. Incorporating Behavioral Science in Litigation It is also worth noting that motivation goes a long way in making it easier for people to do hard things. Research suggests that when people are in social contexts that support their unique intrinsic or extrinsic motivations for engaging in a task, and when people are given autonomy — when they are allowed to have needs of their own within that task — they have higher levels of motivation, and ultimately perform better.[4] Witnesses are no different. Some witnesses are motivated by a team's support and understanding of their unique life circumstances. As an example, this could mean the team meets at an ideal location for the witnesses, but out of the way for the litigation team. It could also mean the team takes the time to bring witnesses to the courtroom before trial testimony to help normalize an unfamiliar environment. Perhaps preparation involves a mental health component, where witnesses get an opportunity to express their anxieties and receive support for their present situation. All these legal team concessions can help motivate witnesses to endure the extensive deposition or trial testimony preparation process. Conclusion Witness preparation involves a power differential: The witness is subordinate to rules obliging them to speak truthfully, which requires significant vulnerability on their part. The litigation team, meanwhile, has no such mandate. Their vulnerabilities are not exposed in the same manner. Ultimately, witnesses are the only ones executing what is being prepared for. They are the performers, asked to spend time in a hard situation from which they may receive little to no benefit. Litigation teams that have empathy with this situation will facilitate better connections, establish greater trust and create conditions where witnesses are comfortable sharing opinions and recollections that help the discovery and strategic process. Ava Hernández is a litigation consultant and Steve Wood, Ph.D., is a senior litigation consultant at Courtroom Sciences Inc. The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice. [1] Arkin, D. (2023, December 9). University of Pennsylvania president steps down amid criticism of antisemitism testimony. NBC News. https://www.nbcnews.com/news/us-news/university-pennsylvania-president-steps-criticism-antisemitism-testimo-rcna128712. [2] Arkin, D. (2023, December 12). Harvard president to stay amid outcry over antisemitism testimony. NBC News. https://www.nbcnews.com/news/us-news/harvard-president-claudine-gay-staying-rcna129178. [3] Mcleod, S. (2023, November 24). Maslow's hierarchy of needs. Simply Psychology. https://www.simplypsychology.org/maslow.html. [4] Edward L. Deci & Richard M. Ryan (2000) The "what" and "why" of goal pursuits: Human needs and the self-determination of behavior. Psychological Inquiry, 11(4), 227-268. doi: 10.1207/S15327965PLI1104_01.

Spouses Ran PPP Fraud In Secret, Ga. Defendants Tell Jury - Mr. Mark Smith, LL.M., CLDP

A Georgia man and woman standing trial for charges that they helped orchestrate a scheme to illegally obtain $11 million in Paycheck Protection Program loans were unwittingly implicated in the fraud by their respective spouses, the defendants' lawyers told a federal jury Wednesday. Attorneys for Teldrin Foster and Carla Jackson, whom prosecutors say were instrumental in the 22-person fraud ring, argued during opening statements that both had in fact been bystanders, wrongly accused thanks to their close connections to the real perpetrators. Jackson's attorney, David Marshall, said that despite "all of these lawyers" the government assembled, he was confident there was "no evidence" his client — who is accused of using her business to help launder the proceeds of the loans — played any part in the scheme. Instead, Marshall continued, it was Jackson's ex-husband John Gaines who kept "secrets upon secrets upon secrets" from her. Not only did Gaines hide his involvement with the scheme, he said, but he also cheated on Jackson and fathered children out of wedlock prior to their divorce. "Carla Jackson committed no crime," Marshall said, adding the planned testimony of Gaines — who pled guilty to his role in the scheme last week — would "inject into this case more than the reasonable doubt required" to acquit Jackson. This week's trial is the culmination of a nearly 4-year-old investigation into the fraud ring the government said was masterminded by Duluth, Georgia's Darrell Thomas. According to prosecutors, Thomas recruited a wide cast of accomplices to file PPP loan applications during the first months of the COVID-19 pandemic. The program, enacted as part of 2020's CARES Act, was designed to provide immediate relief to business owners by doling out hundreds of billions of dollars so they could keep workers on their payroll during the initial shutdown from the virus. Thomas pled guilty to profiting immensely from the initiative using forged IRS papers for front businesses, raking in more than $14.7 million from the PPP and other pandemic relief programs. Originally set to begin Monday, the proceedings were delayed after Jackson and Foster's co-defendant Jerry Baptiste failed to appear in court. Federal marshals were dispatched to track down Baptiste, but he remained unaccounted for as of Tuesday morning, when U.S. District Judge J.P. Boulee elected to move into jury selection without him. The U.S. Department of Justice did not immediately have an update on Baptiste's status. In presenting the government's case Wednesday, the DOJ's Siji Moore painted a portrait of a sophisticated criminal enterprise with Thomas at its head. Below Thomas were operatives like Foster, Moore added, who helped prepare falsified IRS documents, while other members recruited agents to register front businesses. The proceeds were then laundered by businesses like Jackson's "that only existed on paper"; Moore said it had no bank transactions in the first months of 2020, a period of inactivity abruptly followed by a series of six-figure deposits. "This case is about Teldrin Foster and Carla Jackson's decision to participate in fraud during a time of national crisis," Moore told the jury, a contention backed up by "a long paper trail" of bank records, computer files and digital communications. Foster and Thomas had a relationship predating the scheme, Moore said, but key to its success was the fact that Foster's wife worked for the Internal Revenue Service. Gena Pyfrom-Foster — who pled guilty to using her post to further the conspiracy and is due to begin a 41-month prison sentence this summer — served as the group's inside contact who worked with Foster to create the fake documents, he said.  But Foster's attorney, Leigh Ann Webster, argued it was Foster's wife whose dirty hands stained her client. In Webster's telling, Pyfrom-Foster and Thomas engaged in the scheme behind Foster's back. Both had access to Foster's email account, which the government says was used to communicate the details of the fraud, constituting "significant evidence" that Foster was never involved. Thomas reportedly owed Foster tens of thousands of dollars from prior business ventures together, Webster said, leaving Foster to assume any money he received from the scheme was simply a belated repayment of those debts. "From the government's perspective, this story is simple," Webster said, adding "there's more — a lot more — to this story." The government is represented by Siji Moore of the U.S. Department of Justice's Fraud Section and Nathan Parker Kitchens, Tal C. Chaiken, Radka T. Nations, Sekret T. Sneed and Samir Kaushal of the U.S. Attorney's Office for the Northern District of Georgia. Carla Jackson is represented by David D. Marshall. Teldrin Foster is represented by Saraliene Durrett of Saraliene Smith Durrett LLC and Leigh Ann Webster of Strickland Webster LLC. The case is USA v. Thomas et al., case number 1:20-cr-00296, in the U.S. District Court for the Northern District of Georgia.

A federal jury in Maryland on Tuesday found former Baltimore State's Attorney Marilyn Mosby guilty of lying on mortgage applications for one of her two Florida vacation homes, but not guilty on the application for the other home. After a more than two-week trial in Greenbelt, Maryland, the jurors convicted Mosby of making a false mortgage application, ruling after a day of deliberations that Mosby lied about receiving a $5,000 gift from her husband as she closed on a condominium in Longboat Key, Fla., according to the U.S. Attorney's Office for the District of Maryland. The jury, however, acquitted her on similar charges related to the purchase of an eight-bedroom house in Kissimmee. The split verdict is a second conviction for Mosby, Baltimore's top prosecutor from 2015 to 2023. In November, a separate federal jury convicted her of two counts of perjury in connection with her withdrawal of thousands of dollars from her city retirement account under a federal law designed to help people suffering amid the COVID-19 pandemic. Mosby is facing up to 30 years for the mortgage fraud conviction, and the perjury counts from the November trial each carry a maximum of five years' incarceration. Still, actual federal sentences are usually less than the maximum. U.S. Attorney Erek L. Barron, whose Maryland office prosecuted the case, said in a statement following the verdict Tuesday: "We humbly respect the court's considered rulings, opposing counsels' zealous advocacy, and the wisdom of both jury verdicts in this case and we remain focused on our mission to uphold the rule of law." Local media reports say Mosby did not comment as she left court. During Mosby's latest trial, federal prosecutors vied to prove that Mosby spun a web of lies — about her federal tax debts, rental intentions and the $5,000 gift — as she purchased two homes in Florida with the retirement funds that she withdrew. Mosby's lawyers contended that Mosby was a first-time homebuyer and real estate rookie who leaned on professionals throughout the home purchase processes. Evidently, jurors were pushed toward conviction by the so-called gift letter that Mosby sent to her mortgage company in February 2021. In it, she said she had received a $5,000 gift from her then-husband and Baltimore City Council President Nick Mosby. Marilyn Mosby had the money and needed it to lock in a lower interest rate on the Longboat condo, but the funds were tied up in a custodial account that she shared with her daughter and the lender wouldn't accept. So, prosecutors said, Mosby wired the $5,000 to her husband, and he sent the money to an escrow agent. Marilyn Mosby testified that she wired the money because she was not confident that her husband could come up with the cash by closing. Assistant U.S. Attorney Sean Delaney, on the other hand, said during closing statements Monday that the gift letter is a smoking gun. "On the gift letter, it's open and shut," he told jurors. Although jurors hung their hats on the letter, opening and closing statements focused heavily on the $64,000 in back taxes that Nick and Marilyn Mosby racked up in tax years 2014 and 2015. Mosby still owed thousands of dollars to the Internal Revenue Service when she applied for mortgages on the vacation homes in 2020 and 2021, prosecutors said, but she indicated that she was not in default or delinquent on any federal debt. Mosby's legal team, meanwhile, insisted that Mosby was unaware of the lingering debt because her now ex-husband lied to her for years about paying it off. The couple divorced last year, and both Marilyn and Nick Mosby testified at trial. Prosecutors also accused Mosby of signing a contract that promised to maintain exclusive control over the Kissimmee property despite having already given control to a vacation rental company. In addition, prosecutors said Mosby sent a letter to her mortgage company falsely stating that she had lived in the Kissimmee property for the past 70 days. The government is represented by Sean R. Delaney and Aaron S.J. Zelinsky of the U.S. Attorney's Office for the District of Maryland. Marilyn Mosby is represented by James Wyda, Maggie Grace, Sedira Banan and Cullen Macbeth of the Office of the Federal Public Defender. The case is U.S. v. Marilyn Mosby, case number 1:22-cr-00007, in the U.S. District Court for the District of Maryland. Read more at: https://www.law360.com/legalethics/articles/1794544?nl_pk=7089bcf1-8829-40c2-883f-4d8f8fbbf1ea&utm_source=newsletter&utm_medium=email&utm_campaign=legalethics&utm_content=1794544&read_main=1&nlsidx=0&nlaidx=0?copied=1

Mosby Guilty On One Count Of Lying For Fla. Mortgage - Mr. Mark Smith, LL.M., CLDP

A federal jury in Maryland on Tuesday found former Baltimore State's Attorney Marilyn Mosby guilty of lying on mortgage applications for one of her two Florida vacation homes, but not guilty on the application for the other home. After a more than two-week trial in Greenbelt, Maryland, the jurors convicted Mosby of making a false mortgage application, ruling after a day of deliberations that Mosby lied about receiving a $5,000 gift from her husband as she closed on a condominium in Longboat Key, Fla., according to the U.S. Attorney's Office for the District of Maryland. The jury, however, acquitted her on similar charges related to the purchase of an eight-bedroom house in Kissimmee. The split verdict is a second conviction for Mosby, Baltimore's top prosecutor from 2015 to 2023. In November, a separate federal jury convicted her of two counts of perjury in connection with her withdrawal of thousands of dollars from her city retirement account under a federal law designed to help people suffering amid the COVID-19 pandemic. Mosby is facing up to 30 years for the mortgage fraud conviction, and the perjury counts from the November trial each carry a maximum of five years' incarceration. Still, actual federal sentences are usually less than the maximum. U.S. Attorney Erek L. Barron, whose Maryland office prosecuted the case, said in a statement following the verdict Tuesday: "We humbly respect the court's considered rulings, opposing counsels' zealous advocacy, and the wisdom of both jury verdicts in this case and we remain focused on our mission to uphold the rule of law." Local media reports say Mosby did not comment as she left court. During Mosby's latest trial, federal prosecutors vied to prove that Mosby spun a web of lies — about her federal tax debts, rental intentions and the $5,000 gift — as she purchased two homes in Florida with the retirement funds that she withdrew. Mosby's lawyers contended that Mosby was a first-time homebuyer and real estate rookie who leaned on professionals throughout the home purchase processes. Evidently, jurors were pushed toward conviction by the so-called gift letter that Mosby sent to her mortgage company in February 2021. In it, she said she had received a $5,000 gift from her then-husband and Baltimore City Council President Nick Mosby. Marilyn Mosby had the money and needed it to lock in a lower interest rate on the Longboat condo, but the funds were tied up in a custodial account that she shared with her daughter and the lender wouldn't accept. So, prosecutors said, Mosby wired the $5,000 to her husband, and he sent the money to an escrow agent. Marilyn Mosby testified that she wired the money because she was not confident that her husband could come up with the cash by closing. Assistant U.S. Attorney Sean Delaney, on the other hand, said during closing statements Monday that the gift letter is a smoking gun. "On the gift letter, it's open and shut," he told jurors. Although jurors hung their hats on the letter, opening and closing statements focused heavily on the $64,000 in back taxes that Nick and Marilyn Mosby racked up in tax years 2014 and 2015. Mosby still owed thousands of dollars to the Internal Revenue Service when she applied for mortgages on the vacation homes in 2020 and 2021, prosecutors said, but she indicated that she was not in default or delinquent on any federal debt. Mosby's legal team, meanwhile, insisted that Mosby was unaware of the lingering debt because her now ex-husband lied to her for years about paying it off. The couple divorced last year, and both Marilyn and Nick Mosby testified at trial. Prosecutors also accused Mosby of signing a contract that promised to maintain exclusive control over the Kissimmee property despite having already given control to a vacation rental company. In addition, prosecutors said Mosby sent a letter to her mortgage company falsely stating that she had lived in the Kissimmee property for the past 70 days. The government is represented by Sean R. Delaney and Aaron S.J. Zelinsky of the U.S. Attorney's Office for the District of Maryland. Marilyn Mosby is represented by James Wyda, Maggie Grace, Sedira Banan and Cullen Macbeth of the Office of the Federal Public Defender. The case is U.S. v. Marilyn Mosby, case number 1:22-cr-00007, in the U.S. District Court for the District of Maryland. Mr. Mark Smith, LL.M. Certified Legal Documents Preparer (800) 590-6698 (Telephone) cldp@mail.com (E-Mail) https://cldpmarcsmith.com (Website) American Bar Association No.: 6036858 Please feel free to reach out via social media as well: https://www.instagram.com/marksmithcldp/ https://www.facebook.com/groups/marksmithcldp https://medium.com/@cldpmarksmith https://twitter.com/cldpmarksmith https://mrmarksmithllmcp.quora.com/ https://www.youtube.com/@cldpmarksmith https://www.pinterest.com/cldpmarksmith/ https://www.facebook.com/certifiedlegaldocumentspreparermarksmith

ACLU Atty On How To Protect Civil Liberties In The AI Era - Mr. Mark Smith, LL.M., CLDP

 Because artificial intelligence and algorithmic systems often operate in the shadows, there's a new need for legislation, regulation and enforcement to ensure the technology doesn't undercut civil liberties by engaging in discrimination in housing, education or employment, according to Cody Venzke, senior policy counsel for the American Civil Liberties Union.

Cody Venzke

Working on issues of surveillance, privacy and technology, Venzke applies his training as a privacy lawyer toward ensuring everyone from students to job seekers aren't having their civil rights and civil liberties infringed upon by algorithmic systems and artificial intelligence tools in either the public or private sectors.

But Venzke said this isn't just hypothetical, stressing that already marginalized groups have been seeing discrimination by algorithmic systems that can determine whether they will have access to certain housing or job opportunities.

Regulating how people's data can be used is also a high priority right now, Venzke said.

"When there are state-level attacks on vulnerable groups of people, it means that algorithmic systems and the use of our data can make them even more vulnerable," he said. "We've seen this, for example, in attacks on reproductive rights, where the lack of comprehensive privacy legislation and certain loopholes in existing privacy protections have allowed law enforcement to pursue a digital trail of data." 

Venzke spoke with Law360 about what safeguards he thinks are most needed to protect people — including marginalized groups who are already seeing harm — from discriminatory algorithmic systems and AI tools. This interview has been edited for length and clarity.

Are there AI-oriented government policies that the ACLU is concerned about?

President [Joe] Biden's executive order [Safe, Secure, and Trustworthy Artificial Intelligence] enshrined a lot of the principles that we have been advocating for [regarding] uses of artificial intelligence, including auditing and identifying potentially discriminatory uses of AI and then mitigating those discriminatory harms. Seeing civil rights centered in the administration's AI policy is a major win for us.

One of the things that we are looking forward to over the course of the next year or so is ensuring that those policy principles are enshrined in agencies' actual practices. We think that is a good building block to begin working from. There's additional work to be done, including addressing AI uses in the private sector.

What are you looking out for in the private sector's usage of AI?

I think that what we would be looking for is to see many of the principles that were in the artificial intelligence executive order and in the administration's blueprint for an AI Bill of Rights be extended to the private sector. That means ensuring that algorithmic systems aren't resulting in discriminatory harm. That means mitigating those discriminatory harms and providing people with really meaningful recourse if they've been harmed by artificial intelligence. For example, this means that you would be aware of the fact that your job application is being processed and assessed by artificial intelligence, getting notice of that assessment and the decision that's made, and getting an opportunity to either challenge that decision or correct any incorrect data that it relied on.

Are there regulations that you or the ACLU are pushing for in the year ahead?

We've been championing more detailed guidance from the Equal Employment Opportunity Commission to help ensure that both employers and the companies that develop and sell hiring tools, understand that civil rights law applies to them even when the hiring decisions are made by artificial intelligence.

We released a report earlier this year on high-tech surveillance in the education space, including monitoring kids' online activity, the use of facial recognition in schools and similar surveillance technology. We are looking forward to action from the U.S. Department of Education, including guidance for schools on how civil rights law intersects with artificial intelligence and how the [Family Educational Rights and Privacy Act] applies to artificial intelligence.

One of the places where the executive order, we think, fell short is in national security and adjacent fields such as domestic law enforcement and immigration. National security and immigration uses of artificial intelligence are some of the most impactful places where AI can affect individuals' rights and individuals' liberties. Those spaces were largely left untouched by the executive order — not entirely — but they're largely subject to a future, yet-to-be-drafted memorandum on AI in the national security space.

What kind of challenges are people coming to the ACLU with regarding AI policies?

One of the biggest ones we're seeing on the litigation side is the use of AI and law enforcement, particularly the use of facial recognition technology, which has resulted in disparate, incorrect arrests of Black people when the facial recognition technology wrongly identified them as leads in investigations and that was simply used to then make an arrest.

The executive order requires law enforcement agencies to really assess the way that algorithmic systems are used throughout the criminal legal system. So that includes not just the use of facial recognition technology for identifying leads in investigations, but other algorithmic systems that make decisions about people. For example, some algorithmic systems are used to determine the terms of parole — which individuals might pose a risk to the community. These systems are ones where we would love to see increased auditing of potential discriminatory impacts from those systems and mitigation of any discriminatory impacts, because of the significant impact those systems can have on individuals.

How might something like that be mitigated?

Well, one of the ways is ceasing to use the system if you can't address discriminatory impacts that it's having on people. Beyond that, ways that algorithmic technology can have the harms mitigated include by examining the data that's used to train the system. Often, what we see is the data that's used to train an algorithmic system, or that's fed into it to make decisions about individuals, reflects existing societal biases against people of color, people with disabilities and other vulnerable groups. In addition, providing certain procedural safeguards — like providing notice to the individual, providing an opportunity to challenge the algorithmic system and providing the opportunity to correct information — are ways that you can help mitigate those discriminatory uses.

One final way, I think, that's really essential is that as entities consider whether to deploy an algorithmic system, or are assessing algorithmic systems they've already deployed, they consult with a wide array of stakeholders, especially those that are most likely to be impacted by the system. They might be able to provide insight observations about the system's use and its potential impacts that might otherwise be missed.

What do you think needs to be cleared up when it comes to crafting AI policies?

One of the key things that I think policymakers need to ensure that they are grappling with as they think about AI is addressing algorithmic systems and AI systems that are already in place and already affecting people's lives. I think that generative AI, like ChatGPT, is sort of grabbing lots of headlines, and that means a lot of the proposals that we are seeing are focused on things like generative AI and deepfakes. And although those are probably worthy of legislative attention, that leaves lots of algorithmic systems that are making decisions in education, in governmental benefits and hiring unaddressed. For example, 99% of Fortune 500 companies are using algorithmic systems to make hiring decisions about people, where an artificial intelligence system will score resumes and advance the highest scoring resumes on to the next round. Studies have shown that these algorithmic hiring circumstances can lead to discriminatory effects where they will favor employees that have already been favored by existing biases in society.

Is there any AI regulation coming in 2024 that you're expecting?

The U.S. Department of Health and Human Services is required to develop a strategic plan on the use of algorithmic systems in governmental benefits. I think it's going to be a critical step. The ACLU has litigated against the use of algorithmic systems in various Medicaid programs, which are administered by state agents, and in some of those circumstances what we've seen is that state agency employees develop the algorithm to determine people's benefits with almost no vetting, no grounding in statistical measuring and no notice or recourse for affected individuals.

One of the major things that underlies the use of algorithmic systems is our data, and we're seeing lots of agencies respond favorably to regulating, as much as they can, the uses of our data. The Consumer Financial Protection Bureau is preparing a proposed rule on regulating data brokers under the Fair Credit Reporting Act, the Federal Trade Commission has had long-simmering rulemaking on commercial surveillance, and the Department of Education has long indicated that they are working on an update to rules under the Family Educational Rights and Privacy Act. So I think all of those would be really meaningful protections for people to control their data amid the increased prevalence of AI in those sectors.

Why is it important to you and to the ACLU to get AI policy right?

Frankly, there are many critical areas of our lives where we have long and rightfully been protected by civil rights laws and by procedural protections to ensure that entities aren't making sort of arbitrary decisions about our access to housing, to education, to employment and other critical opportunities. The advent of AI should not change that at all. Unfortunately, AI is often functioning in the shadows. We might be unaware of its use. We might be unaware of how it came to those decisions about us. Legislation, regulation and enforcement are critical for ensuring that AI doesn't undercut those long-standing protections.

Mr. Mark Smith, LL.M.
Certified Legal Documents Preparer
(800) 590-6698 (Telephone)
cldp@mail.com (E-Mail)
https://cldpmarcsmith.com (Website)
American Bar Association No.: 6036858

#Law #Legal #Lawsuit #Attorney #HarvardLaw #Lawyer #Lawyers #Justice #SupremeCourt #Lawyerlife #Justice4All #Lawsuit #LawFirm #InstaLawyer #Legally #CriminalDefense #InnocentUntilProvenGuilty #Felony #misdemeanor #cldpmarksmith

911 Call Scrutiny Should Not Be Used To Identify Suspects - Mr. Mark Smith, LL.M., CLDP

This spring, Tracy Harpster, a retired deputy police chief from Dayton, Ohio, will travel to West Virginia,[1] Michigan[2] and Indiana[3] to train police officers and other criminal legal system stakeholders in 911 call analysis — a troubling and scientifically unproven method of suspect development that threatens to ensnare innocent people in the criminal legal system.

For example, in 2019, Jessica Logan,[4] a young mother in Illinois, called 911 when her child stopped breathing. Shockingly, her attempt to seek help in this desperate moment of need was later used as evidence to convict her of first-degree murder of her baby, and she was sentenced to 33 years in prison. A key part of the prosecution's case against Logan was a detective's testimony analyzing her call for help using Harpster's unproven method.

According to an exhaustive investigatory series by ProPublica,[5] 911 call analysis has now been used by law enforcement to develop suspects in more than 100 known cases across 26 states. This concerning approach continues to spread across the country, despite the risk it poses to innocent people who were simply calling 911 to seek help.

In light of increased awareness over problems associated with 911 call analysis, prosecutors would be well advised to review any investigation and prosecution that relied on this questionable technique. And policymakers and law enforcement leaders should consider banning this technique nationwide.

In his training, Harpster promises to teach people to ascertain "indicators of guilt or innocence"[6] from the words people use when they ask for help, the tone and cadence of their call, and how they are processing their circumstances.

According to Propublica, "[s]uch linguistic detection is possible, [Harpster] claims, if you know how to analyze callers' speech patterns. ... [A] misplaced word as innocuous as 'hi' or 'please' or 'somebody' can reveal a murderer on the phone."

Not only does this questionable analysis fail to consider how people may speak when under duress, shock or pain, but it also takes data from an exceedingly small sample of just 100 callers to create a general theory of how innocent or guilty people speak on 911 calls.

Furthermore, it doesn't take into account differences in speech that can stem from one's cultural background, regional dialect, education level or socioeconomic status.

Researchers who attempted to verify this technique could not do so, and Harpster has not shared his data, despite requests for independent review.

Historically, investigators have often sought tools to detect when people are not telling the truth by analyzing verbal and nonverbal cues. But research has repeatedly shown that these methods lack a valid scientific basis — human behavior is simply too complex to allow us to distinguish between lies and truth with a simple, one-size-fits-all test.

We're seeing this play out with existing research on 911 call analysis, which confirms that this approach does not come close to meeting the standards for evidence admissibility that must be applied when life and liberty are at stake.

Although this method was unreliable from the beginning, 911 call analysis has spread to police and prosecutor offices in at least 26 states, according to ProPublica's reports. It's alarming that so many in law enforcement are embracing this unscientific method that weaponizes the language used by people experiencing the worst moment of their lives against them. And, in doing so, investigators may end up overlooking other suspects, leading to tunnel vision that opens the door to wrongful convictions.

It's sadly not surprising that this unproven method has spread. The American legal system lacks sufficient guardrails to ensure that forensic and investigative methods are based on a strong scientific foundation.

Strategies that are used to identify suspects but are not later introduced as expert testimony in court due to judicial concerns that they don't meet the standard of admissibility — as we are now seeing with 911 call analysis — escape the safeguards that do exist.[7]

As a result, unfounded or outright discredited methods can be used by police and prosecutors across the country in ways that profoundly affect the trajectory of criminal cases, and are subject to almost no meaningful oversight.

Because police and prosecutors are not in a position to conduct scientific analysis of the methods and technologies on which they rely, the availability of scientifically unproven methods — and the promise that they will help catch and convict people who commit crimes — creates the very real risk that police and prosecutors will unknowingly use flawed methods to accuse and charge innocent people of crimes.

Indeed, a quarter of people exonerated since 1989 were wrongfully convicted based on false or misleading forensic evidence, like bite mark analysis.[8]

But that hasn't stopped some in law enforcement from ushering in new and unproven methods of suspect development, which are often deployed before they are adequately tested, and many have already been demonstrated to have disparate impacts on people of color.[9]

For example, in the past year, facial recognition technology led to the wrongful arrests of a pregnant woman, Porcha Woodruff in Detroit,[10] and Randal Reid,[11] who spent nearly a week in jail in Georgia after being falsely accused of stealing.

We must ensure that suspect development methods used by police and prosecutors, including 911 call analysis, are thoroughly researched and scientifically vetted before being deployed. Failure to do so causes drastic harm and the unacceptable risk of wrongful convictions.

Elected prosecutors and law enforcement leaders have an obligation to review the investigative methods used in their offices and departments and ensure that they are reliable and based on sound science.

All parts of our justice system, as well as our local and national leaders, have a role to play in addressing these concerns. A national scientific oversight entity should be established to evaluate the validity, reliability and equity of technologies prior to their implementation in the criminal legal system.

The federal government should also establish and fund a research agenda to ensure that extant and future development of criminal investigative and forensic methods and technologies, including 911 call analysis, are properly tested and evaluated before they are widely used.

Lastly, as noted above, we call for a review of every case in the country that involves 911 call analysis and an immediate nationwide moratorium on the technique so it can be fully evaluated before it creates any further harm.

Any one of us could need to call 911 for help in a moment of crisis. Doing so should never be a pathway to a wrongful conviction.

Mr. Mark Smith, LL.M.
Certified Legal Documents Preparer
(800) 590-6698 (Telephone)
cldp@mail.com (E-Mail)
https://cldpmarcsmith.com (Website)
American Bar Association No.: 6036858

#Law #Legal #Lawsuit #Attorney #HarvardLaw #Lawyer #Lawyers #Justice #SupremeCourt #Lawyerlife #Justice4All #Lawsuit #LawFirm #InstaLawyer #Legally #CriminalDefense #InnocentUntilProvenGuilty #Felony #misdemeanor #cldpmarksmith

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Miriam Aroni Krinsky is the executive director of Fair and Just Prosecution. She formerly served as a federal prosecutor, and is the author of "Change from Within: Reimagining the 21st-Century Prosecutor."

Isabelle Cohn is a forensic science policy associate at Innocence Project.

"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Saint Albans Police Department https://saintalbanspolice.com/event/9-1-1-homicide-is-the-caller-the-killer-identifying-the-innocence-or-guilt-of-a-caller-reporting-homicide/2024-04-08/.

[2] Oakland Community College https://www.oaklandcc.edu/crest/911/911-academy-courses/911-homicide-is-the-caller-the-killer.

[3] in911.net https://www.in911.net/training-calendars.html.

[4] Murphy, Brett. (2022). How Jessica Logan's Call for Help Became Evidence Against Her. ProPublica. https://www.propublica.org/article/911-call-analysis-jessica-logan-evidence.

[5] Murphy, Brett. (2022). They Called 911 for Help. Police and Prosecutors Used a New Junk Science to Decide They Were Liars. ProPublica. https://www.propublica.org/article/911-call-analysis-fbi-police-courts.

[6] Harpster, T., Adams, S. H., & Jarvis, J. P. (2009). Analyzing 911 Homicide Calls for Indicators of Guilt or Innocence: An Exploratory Analysis.Homicide Studies, 13(1), 69-93. https://doi.org/10.1177/1088767908328073.

[7] Murphy, Brett. (2022). They Called 911 for Help. Police and Prosecutors Used New Junk Science to Decide They Were Liars. https://www.propublica.org/article/911-call-analysis-fbi-police-courts.

[8] National Registry of Exonerations (2024). % Exonerations By Contributing Factor. https://www.law.umich.edu/special/exoneration/Pages/ExonerationsContribFactorsByCrime.aspx.

[9] Associated Press. (2023). Facial Recognition Tool Led to Mistaken Arrest, Lawyer Says. U.S. News and World Report. https://www.usnews.com/news/best-states/louisiana/articles/2023-01-02/facial-recognition-tool-led-to-mistaken-arrest-lawyer-says#:~:text=%7C-,Jan.,2023%2C%20at%201%3A28%20p.m.&text=NEW%
20ORLEANS%20(AP)%20%E2%80%94%20Louisiana,use%20of%20the%20digital%20tool.

[10] Hill, Kashmir. (2023). Eight Months Pregnant and Arrested After False Facial Recognition Match. New York Times. https://www.nytimes.com/2023/08/06/business/facial-recognition-false-arrest.html.

[11] Hill, Kashmir and Mac, Ryan. (2023). 'Thousands of Dollars for Something I Didn't Do.' New York Times. https://www.nytimes.com/2023/03/31/technology/facial-recognition-false-arrests.html.