Showing posts with label #Lawyer. Show all posts
Showing posts with label #Lawyer. Show all posts
Friday, November 29, 2024
Florida judge cites crosswording juror in mistrial grant; 'I didn't know it was a bad thing,' juror says By Paralegal Mark Smith, LL.M., Certified Legal Documents Preparer November 26, 2024, 8:45 am CST
BigLaw firm and ex-partner who sued for age bias agree on dismissal By Paralegal Mark Smith, LL.M., Certified Legal Documents Preparer November 26, 2024, 2:09 pm CST
A former Fox Rothschild equity partner who claimed that he was demoted to a position with lower pay and required to work under a series of one-year contracts has ended his age-bias lawsuit against the law firm.
Former partner Michael J. Kline and the firm stipulated to dismissal of the suit without fees or costs against either party, Law360 reports. The stipulation does not say whether the suit settled.
Kline, a former chair of the corporate department at Fox Rothschild, was 79 when he filed the suit in May in Mercer County, New Jersey, superior court.
He alleged that, when he turned 73 in 2018, he was required to transition to the role of income partner and to accept a reduced annual salary of $200,000. He was later appointed as an assistant general counsel with lower pay of $150,000.
When he complained about lower pay, the firm offered to pay him a $500,000 vested retirement benefit, at $100,000 per year for five years, to supplement his income, the suit said.
Kline said the firm pressured him to sign a final contract that ended in March 2024. When he complained, he allegedly was told that it was time to “hang up [his] spurs.”
Friday, February 16, 2024
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.
Wednesday, February 14, 2024
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.
'She Didn't Ask, And I Didn't Tell,' Ex Says Of Fraud Scheme
Both federal prosecutors and defense counsel for a Georgia woman accused of using her small business to hide hundreds of thousands of dollars in illegally obtained pandemic loans agreed Tuesday that her ex-husband was not just a philanderer, but a fraudster to boot.
But where their agreement ended — and the question for jurors weighing the guilt or innocence of defendant Carla Jackson — is just how much she knew about her former husband John Gaines' illegal activities.
John Gaines, who is divorced from Jackson and was convicted last month of money laundering charges, took the witness stand to tell jurors during week two of a federal trial that he'd kept his wife in the dark about the scheme he was involved in with Darrell Thomas.
Thomas, according to prosecutors, was the mastermind of a fraud ring encompassing more than 20 defendants who orchestrated the scheme to illegally obtain $11 million in Paycheck Protection Program loans.
"I didn't tell her anything," John Gaines insisted Tuesday, later adding, "She didn't ask, and I didn't tell."
John Gaines' criminal behavior, Jackson's attorney David Marshall said, was just the latest in a series of secrets he'd kept from his wife over the course of their nearly 20-year marriage. He'd had affairs behind her back and fathered two children out of wedlock, Marshall said. Why, he suggested, should the PPP scheme have been any different?
By John Gaines' own admission, he had partnered with Thomas and his cousin, Andre Gaines, during the early months of the pandemic to prepare fraudulent PPP applications on behalf of businesses that effectively existed only on paper. Also allegedly involved in the scheme was Teldrin Foster, who is being tried alongside Jackson and is accused of working with Thomas to prepare his own bogus applications.
After securing the loans, which were intended to help small businesses shuttered by the pandemic keep their workers on their payroll, John Gaines then moved the money into a business run by Jackson in an attempt to hide the fraud from the government.
John Gaines said Jackson believed the money was for a purportedly above-board real estate development project they were undertaking together in Alabama. The project never came to fruition because, as John Gaines put it, "Everything went to shambles before we got a chance ... the FBI showed up, and things got ugly."
But on cross-examination, Assistant U.S. Attorney Tal Chaiken first hammered John Gaines' credibility by casting doubt on Andre Gaines' role in the scheme. She noted Andre Gaines had suffered a stroke in 2018, and he was in his late 60s with cognitive disabilities by the time of both the fraud scheme and the joint real estate venture.
Chaiken then pointed to email exchanges between John Gaines and a woman who, for years before the PPP scheme, had helped him prepare forged documents of all kinds: drivers' licenses, tax records, pay stubs, car titles, utility bills and more.
"Is it fair to say you've used her to make so many fake documents over the years that you don't even remember what you've asked her for?" Chaiken asked as John Gaines continued to say he didn't remember the emails in question.
Chaiken further scorned the notion that John Gaines and his disabled, retired cousin had "all of a sudden decided to do a construction project together" on a property that didn't appear to have been listed for sale. John Gaines, for his part, said his recollections of a visit to the property were hazy, thanks to having "had a couple drinks" before scoping out the parcel in 2020.
Finally, Chaiken circled around the claim that Jackson was unaware of the scheme John Gaines was involved in, even as he was moving six-figure sums of cash into her business's bank accounts. As Chaiken pressed John Gaines on his assertion that his ex-wife never questioned the transactions in the midst of a global pandemic, he continued to maintain her ignorance.
"She didn't know how we obtained that money," he said.
Marshall, meanwhile, implied John Gaines' and Jackson's continued contact and work together after their divorce stemmed not just from business concerns, but more personal ones as well.
At one point, Marshall asked John Gaines why he still stayed at his ex-wife's house on occasion even after their divorce. John Gaines, not making eye contact with Marshall or the jury, took a long pause before answering.
"She still loved me," he said.
The government is represented by Siji Moore of the U.S. Department of Justice's Criminal Division, 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.
John Gaines is represented by Deana Timberlake-Wiley of the Law Offices of Deana Timberlake-Wiley.
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.
Monday, February 12, 2024
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.
Brown Prof Testifies That Fluoride IQ Studies Have Gaps - Mr. Mark Smith, LL.M., Certified Paralegal and Legal Document Preparer
A Brown University epidemiologist testified Friday on behalf of the U.S. Environmental Protection Agency in a bench trial over fluoride's risks Friday that there are data "gaps" in studies linking fluoride exposure to lower IQ, while acknowledging under cross-examination that he hadn't reviewed studies assessing the effects of high-dose fluoride exposure.
Brown University professor of epidemiology David Savitz's testimony came during the EPA's defense case on the sixth day of a two-week bench trial before U.S. District Judge Edward Chen in San Francisco in high-stakes litigation launched by Food & Water Watch Inc., the Fluoride Action Network and others against the U.S. Environmental Protection Agency in 2017.
The groups seek to force the EPA to make a new federal rule under the Toxic Substances Control Act that would ban fluoride from being added to drinking water. Local municipalities have added the chemical to public water for decades to boost public dental hygiene and prevent dental decay, but the groups' experts have testified during the trial that the latest scientific studies suggest that fluoride is neurotoxic and that even low levels of exposure lowers IQ.
The EPA called Savitz as its first witness on Wednesday, and he testified that he recently participated in a Canadian health panel reviewing the latest scientific studies on the potential effects of fluoride exposure.
Savitz testified that there's too much uncertainty in the scientific data on the neurocognitive impacts of fluoride exposure from drinking water, which typically has 0.7 mg/L of fluoride, and it would be premature to regulate fluoridated water based on its potential neurotoxicity. Before trial recessed Wednesday, Savitz said his panel recommended that Canadian water regulators instead focus on moderate dental fluorosis — a condition resulting from taking in too much fluoride as a kid — that can occur with fluoride exposure above 1.56 mg/L.
Trial resumed Friday morning with the EPA continuing Savitz's direct examination, and over the course of about three hours, the professor took issue with various aspects of the dozens of fluoride IQ studies that were analyzed by the plaintiffs' epidemiological expert.
Savitz explained that his panel was also tasked with closely reviewing the recent National Toxicology Program's fluoride monograph, which included multiple studies showing a steep drop in IQ points over a fluoride range from 0.2 mg/L to 1.5 mg/L.
"We were really scrutinizing the document, looking at it in detail, as we were charged to do, and we remained concerned," Savitz said.
Savitz took issue with various aspects of the studies, claiming that some had "double counting" issues with overlapping populations and "in broad terms, there was a bit of a disconnect" between the studies' analysis and results. He also took issue with certain studies he said didn't adjust for keratin.
"It's not to say that their conclusions were wrong, but that trail from raw evidence to assessments, [there were] gaps and concerns," he said.
Savitz also acknowledged that there wasn't a single problem definitively showing the studies' conclusions were wrong. Instead, he said, there were a series of issues, including various methods of fluoride testing and population demographics, that "might seem to be modest initially, but cumulatively ... it's not making its case well."
"They were not being as direct as we would want them to be," he said of the NTP's monograph.
"It sounds like nitpicking, and I suppose in a way it is, but when you look at the details there were some troubling issues," he said, adding, "The question is did they implement their strategy effectively, not if it's the best strategy."
Although the professor acknowledged the fluoride IQ studies do appear to "follow the pattern" that NTP researchers suggest, showing a link between IQ drops and levels of fluoride exposure above 1.5 mg/L, Savitz cautioned against drawing strong inferences from them.
"I'm not saying they were completely off base — not at all," he said. "They probably got it right, but there are some real concerns about the description of the process and the details."
The EPA's counsel asked how fluoride compares to lead. During trial, the judge has heard testimony from the plaintiffs' experts that the resistance to regulating fluoride is similar to resistance to lead regulations in the 1970s. In 1976, the U.S. Supreme Court eventually required the EPA to prohibit companies from adding lead to gasoline, even in small amounts, due to its risks, despite significant pushback from industry, according to trial testimony.
Savitz testified that he believes lead is different from fluoride, because "in the early days" of lead research, scientific studies clearly showed that lead was dangerous at high exposures, and the question was the "ratcheting down" of lead exposures.
"It wasn't moderate confidence. It was airtight. You weren't taking a leap when you pushed [lead exposure] further and further in that direction," he said. "It's very different where we stand with fluoride."
But the plaintiffs' counsel objected repeatedly, arguing that some of Savitz's testimony constitutes undisclosed opinions. The plaintiffs also noted that Savitz acknowledged that he has not analyzed studies analyzing the effect of high levels of fluoride exposure, or even exposures above 1.5 mg/L, so he can't claim fluoride doesn't follow the same risk pattern as lead exposure. But the judge mostly overruled the objections.
Savitz's cross-examination began with the plaintiffs' counsel reading the professor quotes from his own textbook stating that the precise "causal nature of any given effect is almost never known" in epidemiological studies. The counsel also tried to get Savitz to concede that at least one other member on his panel had a conflict of interest in assessing the risks of fluoride, but Savitz denied knowing about the other panelist's purported conflicts, and the judge sustained objections to further questioning on the issue.
During cross-examination, Savitz acknowledged that he had never conducted a fluoride study himself, and that when he joined the panel he wasn't an expert on fluoride.
Savitz also acknowledged that confounding of data "probably could not" explain the relationship between fluoride and IQ, and he agreed that he never reviewed fluoride studies involving doses of fluoride of 1.5 mg/L or higher. Before trial recessed for the day, Savitz also repeatedly acknowledged that he's not a risk assessor, and that he doesn't know how the EPA evaluates "risk" under TSCA.
Trial will resume Monday morning, and it's expected to conclude Wednesday.
The legal fight went to a first bench trial in 2020, with the plaintiff groups asking the court to declare that fluoride in tap water posed a risk to human health. But Judge Chen suspended litigation so the EPA could conduct another study and reevaluate fluoride's risks. Litigation resumed in October 2022.
The groups are represented by C. Andrew Waters and Michael Connett of Waters Kraus & Paul LLP and Christopher T. Nidel of Nidel & Nace PLLC.
The EPA is represented by Brandon N. Adkins and Paul A. Caintic of the U.S. Department of Justice's Environment and Natural Resources Division and Emmet P. Ong of the U.S. Attorney's Office for the Northern District of California.
The case is Food & Water Watch Inc. et al. v. Environmental Protection Agency et al., case number 3:17-cv-02162, in the U.S. District Court for the Northern District of California.
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.
Sunday, February 11, 2024
Pentagon Secretly Institutionalized DEI In Its K-12 Public Schools - Mr. Mark Smith, LL.M., CLDP
In a Congressional hearing last spring, Gil Cisneros, then-Under Secretary for Military Readiness, announced that the Pentagon was closing its newly formed Office of Diversity, Equity, and Inclusion within its K-12 school system and reassigning its controversial DEI chief after a ten-month internal investigation.
The Pentagon’s climb-down was a big win for OpenTheBooks.com. We had worked alongside whistleblowers, journalists, other investigative non-profits, and ranking members of Congress to expose alleged conflicts of interest, violations of military ethics policies, and radical ideologies being forced on the kids of servicemen and servicewomen.
Today, we are announcing Cisneros was actually faking. The radical curriculum was not dismantled. Instead, it was stealthily embedded into the lesson plans and classrooms throughout the entire school system.
The Pentagon, under Secretary of Defense Lloyd Austin, is preventing details of their DEI policies from coming to light by abusing the Freedom of Information Act. They bamboozled the public with window dressing in Congressional hearings while forcing woke extremism on the roughly 70,000 children of our military service members.
It’s critical that taxpayers understand the scope of the DEI philosophy within the DoD’s schools – deployed servicemembers often have no alternative but to use the Pentagon-run school system, called the Department of Defense Education Activity (DoDEA).
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Troubling Curriculum
DOD relentlessly promotes DEI-ideologies to school children of serving families through educational contractors with millions of dollars of taxpayer funding.
Here are some examples of what’s happening in the Pentagon’s schools:
Chat rooms to facilitate teacher-student conversations that are closed off to parents about sexuality and gender, and likely without their knowledge or consent.
Engaging four-year-olds in LGBTQ+ conversations. Elementary schools are the “perfect time” to “really show students the diversity of the gender expression and gender activity.”
Solidarity with the neo-Marxist Black Lives Matter organization to encourage teachers to “challenge our beliefs, examine our own biases, and reflect on how we need to evaluate the structures and systems in our classrooms.”
Video content on “dissent” and “equity” to “help educators facilitate classroom conversations and much-needed discussions about implicit bias and systemic racism, human rights, equity, social justice, dissent, protest, and empathy."
Marxist activism to dismantle systems of “power” and “privilege.” Suggesting a refusal to teach a “white-washed” curriculum and instead teach “social justice rather than heroes, holidays, and celebrations.”
A teaching handbook that recommends “critical conversations” with students about race, identity, and privilege and the way “injustice” affects our lives and society. These “explicit conversations” provoke “strong emotions” and crying students are expected.
Read the details about these vendors, their payments, and the full background dossier on our investigation here.
Transparency Problems
The Pentagon is assiduously attempting to hide its biased left-wing extremist curriculum from public view. It is deleting public access to links, driving DEI infrastructure underground, and liberally redacting the most basic Freedom of Information Act requests.
For example, OpenTheBooks.com filed a FOIA request for the agency payroll just as we have at nearly 13,000 public schools across America. Stunningly, the DoDEA refused to disclose the individual salaries of its staff, unlike public schools nationwide and almost every other federal agency. No names, job titles, or compensation details on the $1.4 billion payroll.
It’s not just our organization having problems.
In September 2022, The Claremont Institute published a groundbreaking report on left-wing extremism in DoDEA classrooms, called “Grooming Future Revolutionaries.” The report highlighted content from dozens of video presentations from staffers at a 2021 “Equity and Access Summit” discussing what they were doing to turn schoolchildren into social justice activists.
Days later, all videos were taken down from the publicly available links and are no longer accessible. While the agency originally refused to release relevant documents via our FOIA request, we appealed, and the subsequent production confirmed that the videos were taken down in response to the report.
Last spring, at the Congressional hearing, Gil Cisneros announced that the Pentagon was dissolving the DoDEA’s DEI department and reassigning its chief. However, key documents we captured via FOIA suggest that DEI-ethos is still at the core of agency mission.
Here is what we were able to find out:
The Pentagon “integrated” DEI specialists into “four key divisions” in the agency last March while also launching a DEI Steering Committee. The committee is comprised of top executives including the agency’s CEO Thomas Brady, Chief Operating Officer, Chief Academic Officer, and twelve others.
We sought more information on the steering committee, but our DoD redacted, or, “hid”: 1. member names; 2. agendas, materials, minutes and discussions; and 3. impact the committee is having on the whole education environment at the Pentagon.
The extent of these redactions is so ridiculous that almost every slide from the 14-page slide-deck presented at a committee meeting had been redacted except for the title page and a page defining DEI.
The only non-executive staffer we can confirm attended these meetings is DEI Specialist Michelle Woodfork. See her redacted slide deck and calendar information here.
Key Quote
During the agency’s 2021 Equity and Access Summit, Woodfork made her devotion to the Pentagon’s DEI initiatives abundantly clear in her presentation:
“When headquarters published their initiative for REDI [an earlier name for DEI at DoDEA] I got heart palpitations because it felt so affirming of the work I’ve been doing for so long.”
Woodfork’s presentation centered on her then-role as a principal at a Pentagon school, where she led “equity audits” on school materials and practices.
The background and ideological orientation of Woodfork only underscores the need for the public and DoDEA parents to know who exactly is on this committee, and how much power they have over system-wide education.
Background
DoDEA made headlines in recent years for practices like hiding “gender transitions” from parents, forcing children into “difficult conversations” about race, class, gender, and sexuality, and the antics of a self-described “woke” Diversity, Equity, and Inclusion chief who allegedly hawked her own books to her colleagues.
DoDEA’s focus on DEI, Thomas Brady said, is compelled by President Biden’s 2021 Executive Order 14035, which among other items charges all agencies with “assessing the current state of diversity, equity, inclusion and accessibility within their workforces.”
But even before EO 14035, Brady strived to inculcate DEI ideology at the agency, announcing on Juneteenth 2020 that DEI must be “embedded in everything we do.”
In December 2024 the National Defense Authorization Act was signed into law by President Joe Biden. The law delineates “rights” for the parents of children attending DoDEA schools, authored by Representative Elise Stefanik (NY-21) which will go into effect in two years.
The parental rights include, among other items:
The right to review the curriculum of the school
The right to review all instructional materials used by their students
While these measures are certainly progress for military families, much can still be obfuscated. Teacher training, such as the Equity and Access Summit, should be included as well. And it is not clear if the full spectrum of tools included, such as the secret LGBT chatrooms, would be disclosed as “instructional materials.”
Moreover, if extremist materials are disclosed, there does not seem to be a recourse for opting children out of these lessons.
Conclusion
Secretary Austin and then-Under Secretary Cisneros devoted themselves to hiding their DEI bait-and-switch.
With the fanfare of a Congressional platform, Cisnero sought credit for shutting down DEI. But under our scrutiny, we found DoD instead made DEI a stealth weapon against the kids of our fighting men and women in service to an anti-American neo-Marxist ideology.
We have further found that DoD under Secretary Austin is leveraging public record laws to the hilt to prevent parents and the public from knowing details of its efforts, while spending millions of taxpayer dollars on objectionable content for school children.
DoDEA did not dismantle its DEI efforts. It redoubled those efforts and added deceit and dissembling to its mix.
Given DoDEA’s recent history and press regarding extremist content in schools, heads must roll, and the agency must provide full transparency of teaching methods and its DEI-related policy operations.
Parents, taxpayers, and the kids themselves deserve no less.
Note: We reached out to DoDEA and all educator employees who were quoted or gave presentations as referenced in this article. If they are no longer employed by DoDEA, we couldn’t reach them. We will update our piece if we receive a response.
Furthermore, no employee or vendor is accused of any breach or violation of statute, military policy, or agency policy. In fact, they just might be abiding by agency rules or Biden’s executive order, if anything.
Will Griffin, DoDEA Director of Communications responded to our comment request:
DoDEA remains committed to maintaining a school system where military-connected students can excel and prepare for success in college and careers and where all employees are treated with dignity and respect. We will continue to comply with all applicable Federal laws, Department of Defense policies, and applicable executive orders.
Friday, February 9, 2024
UC Beats Suit Over SF Law School Name Change
A San Francisco judge tossed all claims in a lawsuit challenging the name change of the University of California, Hastings College of the Law to the University of California College of the Law, San Francisco.
The lawsuit contended the name change was illegal because a nearly 150-year-old state act creating the law school had also stipulated the school would forever be known as Hastings, after the man who founded the college.
"The act that created the law school is a statute, not a contract," said Judge Richard B. Ulmer Jr. in his Tuesday ruling. "The act 'authorized' S.C. Hastings to found the law college. The act does not include any covenanting language; the act is not couched in the terms of a contract."
In dismissing the case, Judge Ulmer did not provide leave to amend the lawsuit.
Attorneys for the plaintiffs said they will appeal the ruling.
"Although we are disappointed by yesterday's ruling, we remain undeterred in our pursuit of justice for the family of Serranus Hastings, and we look forward to appealing the court's ruling," attorney Gregory Michael told Law360 in an email.
A group of school alumni and Hastings descendants calling themselves the Hastings College Conservation Committee filed the lawsuit in October 2022 upon news that the San Francisco law school's name would change, dropping the Hastings name, in January 2023.
They argued the new name would violate an agreement enshrined in state law that the college would always bear the Hastings name after Serranus Clinton Hastings gave the state $100,000 in gold in 1878 to establish the law school and served as its inaugural dean. Hastings was also a former state Supreme Court justice.
The law school initiated the name change as a way to distance itself from Hastings after commissioning a report that uncovered evidence that he orchestrated the killings of hundreds of Native Americans of the Yuki tribe in the late 1850s to remove them from ranchland he had purchased in what is now Mendocino County in Northern California.
Both houses of the California Legislature unanimously approved the law school's name change in August 2022 and Gov. Gavin Newsom signed the bill, AB 1936, the following month.
The suit also sought to keep the hereditary board seat given to the Hastings family by the 1878 act establishing the school. The bill authorizing the name change also eliminated the hereditary seat.
However, Judge Ulmer dismissed that part of the lawsuit as well, saying the case "does not present the situation where the Legislature is attempting to dictate university policy."
Attorney Eduardo Santacana of Willkie Farr & Gallagher LLP, representing the law school's dean and board of directors, said the judge made the proper ruling.
"We are pleased the court agreed with our fundamental argument, which rejects the notion that the California Legislature made a contract with Hastings when it agreed to name the law school for him and provide for a board seat in his honor," Santacana told Law360 in an email. "The Legislature did not and cannot contract away its fundamental powers to private parties, because to do so would be to take the administration of public matters out of the hands of the electorate and put them in the hands of individuals who can afford it."
Among the famous graduates of the law school are former San Francisco Mayors Willie Brown and George Moscone and U.S. Vice President Kamala Harris.
The plaintiffs are represented by Harmeet Dhillon and Karin M. Sweigart of Dhillon Law Group and Gregory R. Michael and Dorothy C. Yamamoto of Michael Yamamoto LLP.
The law school's dean and board of directors are represented by Eduardo E. Santacana, Benedict Y. Hur and Joshua D. Anderson of Willkie Farr & Gallagher LLP.
The state of California is represented by Rob Bonita, Lisa Chao and Kara Siegel of the state attorney general's office.
The case is Hasting College Conservation Committee v. State of California, case number 22-602149, in San Francisco Superior Court.
Georgia's Top Judge Asks Legislators To Keep Judges Safe Explains Mr. Mark Smith, LL.M., CLDP
Attacks on and threats to judges across the nation are a serious threat that must be addressed in order to ensure "the very independence of our judiciary," Georgia's chief justice told legislators during his second State of the Judiciary address in Atlanta on Wednesday.
Chief Justice Michael P. Boggs of the Georgia Supreme Court urged the Georgia General Assembly to support legislation proposed by the Judicial Council of Georgia that would require state and local governments to keep the personal identifying information of judges confidential.
Such protections are needed due to the increased threats and attacks faced by judges across the country over the last two years, Justices Boggs said, citing the June 2022 murder of retired Wisconsin state Judge John Roemer, the October murder of Maryland state Judge Andrew F. Wilkinson and the December arrest of a Nevada man who was charged with solicitation to murder two state court judges.
Roemer, Justice Boggs said, was murdered in his home by a man he had sentenced to prison, while Wilkinson was murdered outside his home by a man involved in a child custody dispute.
"No doubt, these attacks and threats are meant to intimidate and influence courts away from serving as fair and impartial arbiters of justice," Justice Boggs said. "Georgia's judges will not be threatened or intimidated into abandoning their constitutional duties, but incidents like these are repugnant to the rule of law and, if left unchecked, they threaten the very independence of our judiciary."
Justice Boggs, who became Georgia's top judge in July 2022, said one way the legislature could help address the problem would be to support legislation proposed by the Judicial Council of Georgia's standing committee on judicial security.
Under the proposed legislation, which the council discussed at its most recent meeting, states and local authorities would not be allowed to publicly post or display the personal information of those identified as "protected."
In the event that a protected person's information was shared, the draft legislation says, authorities would have 30 days to remove the posts before injunctive relief could be sought.
Justice Boggs also emphasized the importance of addressing "workforce development challenges" that make it more difficult for Georgia's courts to run quickly, smoothly and efficiently.
Seven rural Georgia counties have no licensed attorneys, Justice Boggs said, and there are 41 assistant district attorney vacancies statewide. Eight of Georgia's 50 judicial circuits have assistant district attorney vacancy rates of 25 percent or higher.
Similarly, Justice Boggs said the Georgia Supreme Court had undergone a staff attorney turnover rate of more than 57% since January 2019, and 10 law clerks and administrative assistants have left the Georgia Court of Appeals for "better pay or retirement" over the last 18 months.
Even the Georgia Legal Services Program, which arose in the late 1960s to address the dearth of lawyers in rural areas, is facing challenges with more than a dozen openings in Albany, Valdosta, Columbus, Dalton, Macon and Savannah and in its Piedmont region, Justice Boggs said.
That's a problem, he said, as it makes it more difficult for survivors of domestic violence, those in need of housing and others to receive the civil legal services they need.
"The ugly truth is that many people in Georgia simply do not have access to a lawyer at the most critical time in their lives, either because of where they live or because they cannot afford one," Justice Boggs said.
Analyzing the issue, the justice said that while 732 new lawyers passed the July Georgia bar exam, many of them likely plan to practice in and around Atlanta, where private-sector jobs tend to pay higher salaries. Pay for attorneys willing to work in the public sector, he said, is not as competitive today as it was in the 1980s and 1990s.
"We must reckon with the fact that this trend depletes our pool of seasoned legal professionals and necessitates time-consuming recruitment and training efforts for their replacements," Justice Boggs said.
Age is another factor affecting talent retention, the justice said. The average age of court reporters in the state, whom he identified as vital "spokes on the wheels of justice," was 54 before the pandemic began, with 70% of those court reporters being over the age of 50.
Many of these people are now approaching retirement or have retired already, he said, and fewer new court reporters are becoming licensed. This, he said, means "there won't be new ranks to replace the outgoing ones."
"Just as it is critical to have enough doctors, nurses and teachers to adequately deliver health care and education services to our citizens, so too must Georgia have enough law enforcement and public safety officers, lawyers and court staff professionals to effectively and efficiently keep the wheels of justice turning," Justice Boggs said. "Without enough court reporters to meet the demand, trials and other proceedings will slow once again."
Even so, Justice Boggs, said the state of Georgia's judiciary remains "strong."
The number of pending serious violent felony cases in Georgia has decreased by 11% in recent years thanks to American Rescue Plan Act funding allocated by the governor's office to the judicial branch, Justice Boggs said.
That is "significant progress," he said, given the challenges affecting judges' efforts to move backlogged dockets that are "still feeling the aftershocks" of the COVID-19 pandemic.
"I want to assure you that despite challenges, we remain steadfast in applying and interpreting — not making — the laws and constitution of our state," Justice Boggs said. "And, as always, I want to again express our appreciation for the trust and support that you all in our legislative branch have shown us as we seek your partnership in addressing a wide array of issues affecting our courts."
In his first State of the Judiciary address last year, Justice Boggs also lamented workforce challenges that impeded the effort to address case backlogs after the worst of the pandemic.
Jackson Walker Steps Down From 4E Ch. 11 Amid Fees Probe Mr. Mark Smith, LL.M., CLDP
Jackson Walker LLP, the firm at the center of a legal ethics scandal over the undisclosed relationship between a lawyer and a bankruptcy judge, has stepped down as Chapter 11 counsel to hand sanitizer maker 4E Brands Northamerica LLC as a Texas bankruptcy judge considers revoking $800,000 in legal fees paid to the firm in the case.
Jackson Walker on Tuesday exited a Chapter 11 case in which its client's claimants and the U.S. Trustee's Office are demanding that the law firm return $800,000 in legal fees. (iStock)
In the brief notice filed Tuesday and signed by Jackson Walker attorneys Matthew D. Cavenaugh and Genevieve M. Graham, the firm told the court it no longer represents the debtor or its plan agent. The announcement comes as the court is considering requests from creditors and the Office of the U.S. Trustee to order the return of legal fees in the case after it came to light that ex-Jackson Walker attorney Elizabeth Freeman was the live-in romantic partner of former U.S. Bankruptcy Judge David R. Jones, who oversaw the case.
4E is one of over a dozen cases where the Office of the U.S. Trustee, the U.S. Department of Justice's bankruptcy watchdog, is trying to claw back payments to Jackson Walker in cases overseen by Jones between 2017 and 2022 when Freeman worked at the firm. Jackson Walker has represented 4E since it filed for bankruptcy in 2022.
During that time period, neither Jones nor Freeman, who left Jackson Walker at the end of 2022 to start a solo bankruptcy practice, disclosed that they were live-in-romantic partners. In December 2023, the Office of the U.S. Trustee said it plans to file up to 35 disgorgement motions to recover tens of millions of dollars in legal fees Jones approved for the firm while Freeman worked there.
Jones resigned in October 2023, hours before the Fifth Circuit Court of Appeals issued a complaint against him stating there was probable cause that his actions rose to judicial misconduct.
4E, a Mexican subsidiary of consumer products maker Kimberly-Clark, filed for bankruptcy to wind down its business following a 2020 recall of its hand sanitizer products for potential methanol, or wood alcohol, contamination. The company also faced a wave of personal injury and wrongful death litigation connected to the recall. In October 2022, 4E confirmed a Chapter 11 liquidation plan.
According to information from the Office of the U.S. Trustee in November 2023, Jones awarded Jackson Walker $859,462 in legal fees and $7,301 in expenses in connection with representing 4E.
Following Jones' resignation, the trustee and one of 4E's creditors, the estate of Joshua Maestas, who died after consuming 4E sanitizer, asked U.S. Bankruptcy Judge Marvin Isgur, who took over the case after Jones resigned, to order Jackson Walker to return fees from the case.
Judge Isgur, who survived a bid to remove him from the case due to his friendship with Jones, is currently considering the matter alongside a motion from 4E's official committee of unsecured creditors to amend the confirmed Chapter 11 plan.
The committee argued in January that any recouped Jackson Walker payments should be added to the $2.6 million set aside for unsecured creditors under the Chapter 11 plan. It also argued that the plan hasn't been fully consummated and can be amended since the plan agent, David Dunn, hasn't taken possession of the $2.6 million pool, has left claims from the IRS and others unresolved and hasn't met the requirements of the plan.
The notice of withdrawal filed Tuesday did not indicate if 4E has a successor lined up to take over from Jackson Walker.
A spokesperson for Jackson Walker declined to comment. Counsel for Dunn did not respond to request for comment Wednesday.
Since his resignation, Jones' caseload has been redistributed to Judge Isgur and U.S. Bankruptcy Judge Chris Lopez. Before his resignation, Jones and Judge Isgur made up the Southern District of Texas' controversial "mega" bankruptcy panel. The Jackson Walker scandal added fuel to critiques of the district's method of diverting complex cases, which it defines as bankruptcies involving over $200 million in liabilities, to select judges.
Dunn, in his capacity as the plan administrator, is represented by Ken Green, Aaron Guerrero and Bryan Prentice of Bonds Ellis Eppich Schafer Jones LLP.
Jackson Walker is represented by Jason L. Boland, William R. Greendyke and Julie Harrison of Norton Rose Fulbright LLP.
The official committee of unsecured creditors is represented by Thomas D. Berghman of Munsch Hardt Kopf & Harr PC and Thomas R. Fawkes and Brian J. Jackiw of Tucker Ellis LLP.
Maestas' estate is represented by Johnie Patterson of Walker & Patterson PC.
The Office of the U.S. Trustee is represented in-house by Millie Aponte Sall.
The case is In re: 4E Brands Northamerica LLC, case number 5:22-bk-50009, in the U.S. Bankruptcy Court for the Southern District of Texas.
GOP Sens. Blast Ill. Judges' Moves For Diversity In Oral Arguments - Mr. Mark Smith, LL.M., CLDP
Two Republican senators are questioning what they say are "unethical and unconstitutional" standing orders issued by at least three judges in the Southern District of Illinois that aim to promote participation by newer, female and minority attorneys.
Sens. Ted Cruz, R-Texas, and John Kennedy, R-La., the top Republicans on the Senate Judiciary Committee's Constitution and Federal Courts, Oversight, Agency Action and Federal Rights subcommittees, respectively, questioning the judges' alleged practice of granting oral argument requests based on an attorney's race or sex.
In a letter sent Wednesday to Chief U.S. Circuit Judge Diane S. Sykes of the Seventh Circuit, which oversees the Illinois court, Cruz and Kennedy cite a legal complaint against the court's purported practice brought late last month by the conservative legal advocacy group America First Legal, which was founded by two top Trump administration officials.
"In January 2020, Chief Judge Nancy J. Rosenstengel, along with Judge Staci M. Yandle, and later in October 2020, Judge David W. Dugan, issued nearly identical standing orders implementing a new policy regarding oral arguments in an effort to 'encourage the participation of newer, female, and minority attorneys in proceedings' in reaction to concerns about 'increasing opportunities for courtroom advocacy,'" reads the letter, shared exclusively with Law360, ahead of its public release.
There were some variations between the orders, but "each establishes a policy under which oral argument requests are granted based on an attorney's race or sex rather than the substantive merits of the case or the importance of oral argument in clarifying the issue before the court," Cruz and Kennedy wrote.
"Those disfavored notice. So do potential clients who realize they can get a leg up by hiring lawyers whose sexes and races are preferred by the court," the group said in a complaint. "Few judicial acts are as confidence-shaking as an announcement by a judge that she will handle a case depending in part on the sex or race of a litigant's attorney."
They added this is "unethical and unconstitutional," especially since the U.S. Supreme Court over the summer struck down affirmative action in higher education admissions.
Cruz and Kennedy asked Judge Sykes for answers to a list of questions to better understand the scale and scope of what they deem a "discriminatory" practice. They also ask for information about any training the Seventh Circuit or Administrative Office of the U.S. Courts has provided for judges following the high court decision in Students for Fair Admissions v. Harvard .
The district judges could not be immediately reached for comment, and the Seventh Circuit said it could not comment currently.
Thursday, February 8, 2024
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.
Tuesday, February 6, 2024
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
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Saturday, February 3, 2024
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
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
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