More Advice for Online Contact

Following up on my post regarding email negotiation last week, the ABA Journal noted this week that there are limits on the use of social spaces in order to gather information:

A lawyer who wants to see what a potential witness says to personal contacts on his or her Facebook or MySpace page has one good option, a recent ethics opinion suggests: Ask for access.

Alternative approaches, such as secretly sending a third party to “friend” a Facebook user, are unethical because they are deceptive, says the Philadelphia Bar Association in a March advisory opinion.

Not telling the potential witness of the third party’s affiliation with the lawyer “omits a highly material fact, namely, that the third party who asks to be allowed access to the witness’s pages is doing so only because he or she is intent on obtaining information and sharing it with a lawyer for use in a lawsuit to impeach the testimony of the witness,” the opinion explains.

“The omission would purposefully conceal that fact from the witness for the purpose of inducing the witness to allow access, when she [might] not do so if she knew the third person was associated with the inquirer and the true purpose of the access was to obtain information for the purpose of impeaching her testimony.”

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Tribe on the Use of Foreign Law

In an earlier post, I outlined the basic themes of Laurence Tribe’s The Invisible Constitution.  One specific section that was of particular interest to me was Tribe’s defense of the use of foreign law in constitutional interpretation.  I run into this controversial practice every spring when I teach Atkins v. Virginia, 536 U.S. 304 (2002), and Roper v. Simmons, 543 U.S. 51 (2005).  Interpreting the Cruel and Unusual Punishment Clause of the Eighth Amendment, Atkins banned execution of the mentally retarded, while Roper outlawed the death penalty for juvenile defendants.  In both cases, the majority drew intense criticism for citing foreign law in support of its holding.

Based on Atkins and Roper anyway — I am admittedly not as familiar with some of the Court’s other uses of foreign law — I think that Tribe is right about at least two things.

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American College of Trial Lawyers Task Force Recommends Use of ADR

As reported in the April edition of the Resolution System Institute’s Court ADR Connection e-newsletter (a great e-newsletter devoted to information on Court ADR): 

A report recently released by the American College of Trial Lawyers Task Force on Discovery includes a recommendation that courts should “raise thepossibility” of pre-trial mediation and other ADR processes, and in some cases should order its use. The report, conducted in association with the Institute for the Advancement of the American Legal System, was based on a survey of ACTL members to identify perceived problems with the discovery process in the civil justice system. In that survey, 82% of respondents said court-related ADR was a “positive development,” and 72% said it led to settlements without trial. The majority of respondents also said ADR decreased their clients’ costs and led to a shorter time to disposition. These results led to the task force’s recommendation. However, the task force also noted that it hoped its other recommendations for decreasing the cost of discovery would help to increase the use of judicial trials, as opposed to ADR.

For the full report, click here.

Cross posted at Indisputably.

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