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Text, Tinder, and Twitter….oh my….

Like so many New Englanders, I am excited about the Patriots’ recent Super Bowl win. I actually thought of how to integrate the win into my monthly newsletter. Deflategate was an obvious topic, but it’s been over discussed by every reporter and person in the country. Then, out of nowhere, a photo of fan favorite Julian Edelman started spreading quicker than a Gronk spike. I am not going to speculate whether the photograph was authentic or ponder the ethical issues involved with posting it, but it did get me thinking about the exposure that we all have in our digitally obsessed world.

So many people innocently put information online.We all  post funny stories, cartoons, and photos. We think that our social media  accounts are protected, because we have customized privacy settings and security software. We see the photos that are circulated on Facebook, trying to provide a lesson to young students about how quickly people can “borrow” your content, but think our photos are safe, because of those protections.

The digital world offers less protection than most of us feel comfortable admitting.  Sometimes, it results from the innocent time when your friend copied your photo from Twitter,  to show someone else how cute your children are,  but, somehow, the photo travels into the wrong hands. What happens when a hacker or child perpetrator gets hold of the photo? How would you react if the photo is used for advertising without your knowledge or consent?

Often, potential employers actively search online for “dirt” on perspective employees. For every photo or statement that an employer examines, someone  is interpreting  what they think it says about the character and personality  of  the potential employee. How does a hiring manager react when all they find are photos of you with cocktails in your hand or constant posting during traditional work hours? Do they interpret it differently depending on your work history?

What is rarely discussed  is the privacy of electronic messaging. Many people realize that a text, instant message, or email can be forwarded or copied; however, what a lot of people don’t realize is that the contents of the text, instant message, or email can be found long after it is “deleted.”

In my world, everything is potential evidence. Photos, text messages,  and social media  posts can be used to prove my client’s case or discredit the other side’s argument. Your text and emails are proof of what you say to someone else. As the often quoted Miranda Rights suggest, “anything you say,  can and will be used against you,” under Massachusetts Rules of Evidence Section 901

When deciding if electronic evidence can be used in a case, the Court considers five (5) factors:

  1. Is the electronic evidence relevant to the case?  If you are getting a divorce and your spouse is claiming infidelity, a photo posted online or text, of you with a friend at a Red Sox game,  could be relevant if your spouse suspects that the other person is your new partner.  Moreover, mere membership or profile on a dating website, such as Tinder,  could support that you are unfaithful (or trying to be).
  2. Can it pass the test of authenticity?  If a witness confirms that the evidence is real and accurate, it will likely be allowed to either by the Court to support or discredit your case  Commonwealth v. Oppenheim, 86 Mass. App. Ct. 359 (2014).If someone, who has first hand or expert knowledge, testifies that it was taken on April 10,2014,  at the Red Sox/ Yankees game at Fenway, their statement will likely authenticate the photo as real and accurate.
  3. Is it hearsay? When information is received from other people that cannot be adequately confirmed, it is hearsay. Unless an exception  to the hearsay rule applies, the information cannot be used as evidence. If you heard from Alex that Jeff committed a crime, it is probably hearsay; however, if you witness the crime being committed, your description of the event is not hearsay.
  4. Is the electronic evidence the “best evidence?” If the original document is no longer available, but a copy is, it will likely be allowed by the Judge. If a text conversation is deleted,  but somebody saved a screen shot, a judge would likely accept a copy of it as best evidence.
  5. Is the probative value of the electronic evidence outweighed by unfair prejudice?  If the evidence makes a reasonable person wonder “who DOES  that,” it is likely prejudicial.  If you are engaged in a child custody dispute, where safety is an issue, a text photo of you, happily playing on the swings with your delightful child, is usually wonderful and suggests good parenting. If the photo is of you, with your five year old child,  at a shooting range and the child is firing a weapon,  it would likely cause an intense reaction from most people; however, that prejudice would be outweighed by value of what the  photo is likely being used to prove, such as recklessness.

What should this mean to you? Be careful of what you put online; those online rants about your job or significant other could be a problem later and in an unplanned way. Be careful of how you appear in photos; perspective employers understand that you like to have fun, but do not want to hire someone who is irresponsible. Be careful of what you write in a text, email, or instant message; the words that you write are powerful and speak volumes about who you are, what you do, and how you think.

As always, please feel free to contact me for additional information or a consultation. Please feel free to send this newsletter to anyone who may be interested. Receipt of same is not intended to offer specific legal advise or create an attorney-client relationship.

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Is Aaron Hernandez guilty?

Given that both my practice and home are in the same town in which Aaron Hernandez resides (when not in prison) and also where the murder of Odin Lloyd was allegedly committed, I should not be surprised that I have been asked so many times within the last couple of days, “Why is the Aaron Hernandez verdict taking SO long? Does this mean that the jury is going to find him not guilty?”

Overall, people seem frustrated that the verdict has taken more than “10 minutes.” Popular opinion convicted Hernandez a couple of years ago; however, the actual process of trial by jury is much more complicated.

There was a substantial amount of evidence presented in Commonwealth v. Hernadez. Even the most casual follower of the case knows that there was a lot of evidence not allowed to be presented by the prosecutor during the trial. Excluded evidence was either irrelevant to proving the alleged crimes or too prejudicial given the probative value (what it is intended to prove). Even after all of those exclusions,  the jury has an enormous amount of information that they need to review and discuss during deliberations.

The Court provides instructions to the jury prior to any deliberation. All jurors are given a mini-lesson in legal proceedings and substantive law, which can be complicated and extensive. Often, such as happened in this case, the jury requires clarification on the meaning of a law.

The real work begins once a jury enters the deliberation room. First, the jury must elect a presiding juror or foreperson. Depending on the number and personalities of the jurors involved, this process can take a while to determine who should serve in this important position. In a high profile case, like Commonwealth v. Hernandez, there may be hesitation to be chosen as foreperson, due to concerns of notoriety or, potentially, safety.

The foreperson must be organized and assertive. In addition to making any needed inquiries of the Court and delivering the verdict, he or she is responsible for focusing and guiding the discussion.  The foreperson must be careful to allow everyone an opportunity to speak,  respect all opinions and viewpoints, review and follow jury instructions, examine all evidence, and discuss each alleged crime, one at a time. He or she must also organize any and all voting during the deliberations.

Voting in the jury room can occur at several times during deliberation. Some juries vote soon after entering into deliberations, but most wait until all evidence and corresponding law has been discussed and reviewed extensively. Voting can be anonymous, by written ballot, or out in the open, by verbal commitment or raising of the hand. There often multiple rounds of voting, as well as persuasive and heated discussions, prior to the verdict.

A verdict is the most common outcome of a trial. When a verdict is delivered to the Court, it means that the entire jury has voted and agreed upon the decision about whether a defendant is guilty or not-guilty. Often, the prosecutor will poll the jury, or ask each juror to separately confirm the verdict,  to assure that the reported verdict is accurate. Occasionally, a verdict cannot be reached.

Mistrials usually occur when a jury cannot agree on a verdict. If a mistrial seems likely, the Court may attempt to intervene and provide additional instruction or clarification, hoping that it will help the jury to reach a verdict.  Mistrials are fairly unusual, but often result in a new trial and with a different jury.

Is Hernandez guilty? That is not a question for me to decide (you didn’t actually think that I was going to answer that, did you?). Even if I followed the case religiously, which I did not, it would not be my decision. The jury has the tough task of deciding whether he killed Odin Lloyd. They must use evidence presented, not gut instinct, speculation, or media reports, in reaching their verdict- and it must be beyond a reasonable doubt.

As always, please feel free to contact me for additional information. Please feel free to send this newsletter to anyone who may be interested. Receipt of same is not intended to offer specific legal advise or create an attorney-client relationship.

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Finding the Perfect Lawyer

Everybody seems to know a good lawyer joke. Here’s one to add to your collection:

What do dinosaurs and good lawyers have in common? They are both extinct.

Some attorney jokes are quite funny, but this one makes me cringe. There are plenty of great attorneys in alive and practicing.

At some point, you may need a dinosaur, I mean attorney, to help you with a problem or to plan for the future. If you know an attorney, you would probably call him or her. If it is me, I will gladly either help you or refer you to someone who can. If you don’t know an attorney personally, you might ask some friends or conduct an online search.  Regardless, you want to be sure that you find the correct attorney for you.

Experience is important in hiring any professional.

It is not only important to find an attorney, but to find the right one.  Look for someone who handles the type of cases or matters with which you need help. Even general practitioners, like myself, do not handle all types of legal matters. Although my practice includes doing basic estate plans, I have limited knowledge regarding elder law, which is pretty specialized.  If I were to accept a Medicare or Social Security case, it would not be a service, but rather a disservice, to my clients; however, as a service to my clients who need help with those issues, I am happy to provide them with the names of people who can better assist them.

Understanding your goals should be a priority.

Your attorney should understand both your short term and long term goals. A good attorney incorporates your income, family, education, personality, and lifestyle when presenting legal options that might be appropriate for you. For example, if you are getting divorced and have a two (2) year old child, your attorney should be thinking not only about child support, day care, and activities, but also future college tuition; if not, you are likely 16 years away from appearing before the court to discuss how to pay for college.

Communication between you and your attorney should be simple and basic.

You should be able to easily understand what your attorney is telling you and should always feel comfortable asking for clarification or additional information.   There might be moments when you may misunderstand or disagree with what your attorney is saying, and that is okay, as long as you can discuss your concern and have it rectified to your satisfaction. I always try to end conversations with my clients, by asking, “Did I answer all of your questions?” Sometimes I forget to make the inquiry, but I always hope that they remember that I am open to additional questions.

Availability and accessibility are crucial.

I often hear people state (with frustration) that their attorney has not called them back. Your attorney likely has a busy caseload and outside life, but you should always feel as though you are a priority. Generally, it is reasonable to receive a return telephone call or email within 24 hours, weekends excluded, and with the exception of emergency situations. When I opened my practice ten years ago, I made a conscious decision to use my cellular phone as my exclusive office phone; while this is not the typical phone arrangement, it works for me and my clients seem to appreciate the accessibility.

First impressions should be positive.

When you meet a potential attorney for the first time, you should feel comfortable with that person. Regardless of what kind of case he or she is  helping you with, you will spend a significant amount of time talking with that person. It is very important that you feel as though you can talk with the attorney and confide private information, when necessary and relevant. Don’t be afraid to ask specific questions about the practice. Attorneys have different styles, so it is not uncommon for people to meet with one or two attorneys prior to choosing one to retain.

Fees should be reasonable.

Fees can vary greatly and be assessed in various ways. Some cases are typically billed by the hour, such as a divorce, while others are one price for the entire case, such as an estate plan or some criminal matters, yet others are a percentage of the settlement and contingent upon resolution in your favor. Fees are established on many factors, including, but not limited to, location, size of the practice, experience, reputation, and case load.  Your attorney should explain how you will be billed for services rendered and provide a Fee Agreement for you both to sign. The Fee Agreement should not only explain the fees, but also state the responsibilities of both the client and the attorney.  Similarly, he or she will likely expect a payment or “retainer” prior to beginning your case.  A smaller retainer is not always better, because the attorney will likely ask for replenishment of the retainer when it is running low; the larger retainers often are based on a better assessment of what the case will actually cost to litigate.

Fending off problems before they occur.

A good attorney can identify potential problems before they occur and assist you to avoid them.  Similarly, your attorney should be prepared to aggressively argue your case, including up to and through a trial; however, your attorney should also be discussing how to minimize conflict if and when it is in the best interest of resolution.

As always, please feel free to contact me for additional information.

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