Tag Archives: Barry Scheck

The Facts Speak For Themselves — Or Do They?

You’ve heard the cliche, “the facts speak for themselves,” but actually, they can’t.  It takes a lawyer skilled in the fine art of trial presentation with the ability to tell the story to make the facts speak to a judge or jury. Elaine’s background as a print journalist for eight years before she went to law school in the United States puts her light years ahead of most lawyers in the art of trial presentation.  It’s in vogue today for a lawyer to take courses on “finding the client’s story,” or “learning how to tell a story.”  Elaine has been doing this for 35 years.   Here are  a few samples of Elaine’s storytelling abilities.

Influenza Vaccine and GBS

There is a higher incidence of Guillain-Barre Syndrome (GBS) among those who get the flu vaccine and those who do not.  This higher incidence of GBS is recognized by the U.S. Government’s Department of Health and Human Services (Dep’t HHS).   Here at Whitfield Sharp & Hitchcock, LLC, we have successfully settled many GBS cases caused by the flu vaccine.  Call us at 781.639.1862, if you or someone you know is injured by a flu vaccine (or any vaccine) for that matter.

Guillain-Barre Syndrome has symptoms that generally start as muscle weakness, joint aches and/or tingling in the extremites (arms and/or legs).  The symptoms spread quickly over days and become severe.  The spread of weakness can travel to the lungs and cause difficulty in breathing.  Breathing can become so difficult that the victim has to be placed on a respirator to assist with the breathing process.  Guillain-Barre Syndrome is most often considered a medical emergency.

Many people who contract GBS suffer the symptoms mildly, but in some cases the symptoms can become life-threatening.

It’s time to spread the word — medical negligence kills some 98,000 people every year.

Abstract

Objectives: Based on 1984 data developed from reviews of medical records of patients treated in New York hospitals, the Institute of Medicine estimated that up to 98,000 Americans die each year from medical errors. The basis of this estimate is nearly 3 decades old; herein, an updated estimate is developed from modern studies published from 2008 to 2011.

Methods: A literature review identified 4 limited studies that used primarily the Global Trigger Tool to flag specific evidence in medical records, such as medication stop orders or abnormal laboratory results, which point to an adverse event that may have harmed a patient. Ultimately, a physician must concur on the findings of an adverse event and then classify the severity of patient harm.

Results: Using a weighted average of the 4 studies, a lower limit of 210,000 deaths per year was associated with preventable harm in hospitals. Given limitations in the search capability of the Global Trigger Tool and the incompleteness of medical records on which the Tool depends, the true number of premature deaths associated with preventable harm to patients was estimated at more than 400,000 per year. Serious harm seems to be 10- to 20-fold more common than lethal harm.

Conclusions: The epidemic of patient harm in hospitals must be taken more seriously if it is to be curtailed. Fully engaging patients and their advocates during hospital care, systematically seeking the patients’ voice in identifying harms, transparent accountability for harm, and intentional correction of root causes of harm will be necessary to accomplish this goal.

What Matters to a Jury? What you Wear or How You Were?

Here’s an excellent article by Attorney Randi McGinn to which I have posted a follow-up comment:

Elaine Whitfield Sharp says:
August 14, 2011 at 9:09 am
Maybe it’s just me.  I am usually in smart business dress and jacket, but with some color, such as a scarf, and some modest jewelry, such as a broach and simple necklace.  I wear comfy shoes.  My hair always looks a litte less than perfect.  It’s just the way it is.  I’ve done cross in my snow boots on winter days.  No one seems to care, and they are really comfy.  What jurors do care about most, in my experience of 25 years, is delay.  No matter how much we micro-analyze the jury, they have one thing on their minds: themselves and all that surrounds their existence.  Years ago, PBS aired a UK-produced, two-part series, “The Jury.”  It was excellent because it illustrated the fact that the jurors all had so many things going on in their personal lives.  The trial in which they sat as triers of fact was but a somewhat (to say the least) inconvenient interruption in their lives.  (Of course, that was before the days of demoralizing unemployment when a trial might be welcome and an empowering reprieve to some.)   Thanks to Randi’s well-thought out comments about clothing, and all of the other follow-up comments, but I continue to believe that it isn’t what you’re dressed in that matters.  It’s whether you are well prepared, don’t waste time, and get jurors in and out of their civic duty and back to their own lives for which they are most grateful.  More than the togs, it’s the teacher in you that wins the day.

Casey Anthony, post-trial 2

Boston Herald reports - Casey Anthony after the trial
Brit au pair’s lawyer: Casey Anthony should lay low

Casey Anthony, post-trial 1

Boston Herald reports - Casey Anthony after the trial
Experts advise Casey Anthony to stay out of headlines

The Atlantic interview


Are All Murderers Mentally Ill?

Cloud computing: Hidden danger to everyone’s civil liberties?

In Google’s latest move to take over the world, it is touting its newest shiny toy — the “Chromebook” — as technology empowering us to reach into “The Cloud” (aka, off-site digital storage) for all our needs in computer operating systems, software and data storage.

But, will this technology free us or enslave us?  My view is that Chromebook and any other device that relies on “Cloud Computing,” creates stormy skies for lawyers and their clients by risking the loss of privacy and liberty at the hands of Big Brother.

Let’s get down to brass tacks: Storing data on the “The Cloud” is just a trendy term for storing data on someone else’s server so that when you are away from your desk, you can access that data by WiFi or 3G network.

Lawyers disagree about the security of so-called “cloud computing.” But what about clients? Do clients really want their lawyers to entrust their confidences and secrets (that is, the kind that we lawyers swear to take to the grave) to “The Cloud”?

One implication of storing client data on “The Cloud” is that a government entity may issue a subpoena to the third party (that is, the administrators of the remote server where the data is stored, aka, “The Cloud” server) commanding them to produce the data.

In America, The lawyer would not be notified of this. (Sharp says she has not checked out the UK position yet) The lawyer would have no opportunity to be heard by a US  court to try to prevent access by raising, for example, the attorney-client privilege.

You disbelieve? Under the US Patriot Act, third party hosts of data areforbidden to inform customers if the FBI issues a subpoena for data.  It would be a federal crime to tell.

If it’s on The Cloud, where’s the need for a search warrant for your office (protected under the fourth amendment to the US Constitution from unreasonable searches and seizures).  If it’s on The Cloud, a subpoena will do very nicely.

One supposed benefit of The Cloud is that your computer won’t crash because the operating system, the virus and the software updates are all automatic. Who among us isn’t sick and tired of all these software updates and patches?  Who among us hasn’t experienced the dread of a blinking cursor on a black screen after a disabling virus? To be sure, convenience is a big plus in The Cloud.

But, Cloud hackers are NOT looking to disable the server or shut you down; they want you very much alive. Cloud hackers are aiming at infiltration and colonization.  They are blood-sucking, opportunistic data vampires. Take the recent Sony Play Station debacle where hackers got into the server cloud space (rented from Amazon) used for Play Stations and lynched personal information of some 80 million customers.

This is quite separate from the outage, also damaging to the Cloud computing concept, which disabled  a large chunk of Amazon’s network in the US a few weeks ago

In a short video of interviews with experts (very outspoken!) about the Play Station  attack, Tom Kellerman, a member of US President’s Barack Obama’s commission on cyber security, states, “Cloud infrastructure has yet to be secured.”

As a lawyer, that statement scares the Hell out of me. If The Cloud has “yet to be secured,” I say to Chromebook and to The Cloud, “Thanks; but, no thanks.”

Years ago, even before “The Cloud” became the trendy name for off-site data storage, I was approached by a company selling space for off-site data storage for lawyers.

For about two weeks, I went back and forth with various sales people, middle management and finally upper management on the issue of security and privacy.  Not one of the people with whom I spoke — from minion to magnate —  was able to guarantee me that the data could not be accessed by a hacker; and not one of them was able to guarantee me that I would be given notice of a subpoena to access the data by a third party, such as the FBI.

The US Patriot Act forbids it.  And, if you think that the government can be trusted to only use that law to stop terrorism, just remember that absolute power corrupts absolutely. Cloud computing — data stored on off-site servers — is nothing new. And, according to Tom Kellerman, it is still not safe.

Yet, many state bars in the US —  Alabama, Arizona, Massachusetts, New York, North Carolina and Nevada have either issued ethics opinions, or proposed ethics opinions, permitting cloud computing for lawyers. California has set forth standards for the storage and transmission of electronic client data, which arguably permits cloud computing.

Personally, I still believe that the best way to protect your data is to keep it close to you, in your office.  If you need to access your data remotely, then set up a virtual private network (VPN) and make sure everything is heavily encrypted.

Better yet, don’t use a VPN. Take what you need on a flash drive zipped up in a pocket.  Or use an iPhone and put all the documents you need on that.  Back it up before you leave.  And, if you lose it, nuke it remotely.

Call me slow to change. But colour me “safe” — not chrome.

Published in The Drum, 21 May 2011

Elaine Whitfield Sharp elected as a trustee of the Civil Justice Foundation

Attorney Elaine Whitfield Sharp has been elected as a trustee of the Civil Justice Foundation.   The CJF provided some of the early sponsorship for documentary film maker Susan Saladoff who made “Hot Coffee,” the movie.

The Civil Justice Foundation is a national charitable organization dedicated to safeguarding justice for all Americans by strengthening the alliance between trial attorneys and consumer advocacy groups. The Foundation was founded in 1986 by members of the American Association for Justice (formerly ATLA) and a group of consumer advocates who believed that all Americans – particularly working families, individual workers, and consumers – deserve unobstructed access to the civil justice system.

It is the only national foundation devoted solely to protecting the individual rights, health, and well-being of the injured – providing small but significant grants to the tireless organizations fighting for injury prevention and justice preservation across the country. Since its inception, CJF has awarded over $1.4 million to 112 consumer advocacy organizations throughout North America. By providing a voice to the voiceless, these pioneering groups seek to preserve the constitutional rights afforded to all Americans by the civil justice system.

To date, the Foundation has awarded more than $1,000,000 to more than 100 organizations.

Cloud computing: Hidden danger to everyone’s civil liberties?

Published in The Drum / UK
SAT 21 MAY 2011

By Elaine Whitfield Sharp, distinguished British-born US lawyer

In Google’s latest move to take over the world, it is touting its newest shiny toy — the “Chromebook” — as technology empowering us to reach into “The Cloud” (aka, off-site digital storage) for all our needs in computer operating systems, software and data storage.

But, will this technology free us or enslave us?  My view is that Chromebook and any other device that relies on “Cloud Computing,” creates stormy skies for lawyers and their clients by risking the loss of privacy and liberty at the hands of Big Brother.

Let’s get down to brass tacks: Storing data on the “The Cloud” is just a trendy term for storing data on someone else’s server so that when you are away from your desk, you can access that data by WiFi or 3G network.

Lawyers disagree about the security of so-called “cloud computing.” But what about clients? Do clients really want their lawyers to entrust their confidences and secrets (that is, the kind that we lawyers swear to take to the grave) to “The Cloud”?

One implication of storing client data on “The Cloud” is that a government entity may issue a subpoena to the third party (that is, the administrators of the remote server where the data is stored, aka, “The Cloud” server) commanding them to produce the data.

In America, The lawyer would not be notified of this. (Sharp says she has not checked out the UK position yet) The lawyer would have no opportunity to be heard by a US  court to try to prevent access by raising, for example, the attorney-client privilege.

You disbelieve? Under the US Patriot Act, third party hosts of data areforbidden to inform customers if the FBI issues a subpoena for data.  It would be a federal crime to tell.

If it’s on The Cloud, where’s the need for a search warrant for your office (protected under the fourth amendment to the US Constitution from unreasonable searches and seizures).  If it’s on The Cloud, a subpoena will do very nicely.

One supposed benefit of The Cloud is that your computer won’t crash because the operating system, the virus and the software updates are all automatic. Who among us isn’t sick and tired of all these software updates and patches?  Who among us hasn’t experienced the dread of a blinking cursor on a black screen after a disabling virus? To be sure, convenience is a big plus in The Cloud.

But, Cloud hackers are NOT looking to disable the server or shut you down; they want you very much alive. Cloud hackers are aiming at infiltration and colonization.  They are blood-sucking, opportunistic data vampires. Take the recent Sony Play Station debacle where hackers got into the server cloud space (rented from Amazon) used for Play Stations and lynched personal information of some 80 million customers.

This is quite separate from the outage, also damaging to the Cloud computing concept, which disabled  a large chunk of Amazon’s network in the US a few weeks ago

In a short video of interviews with experts (very outspoken!) about the Play Station  attack, Tom Kellerman, a member of US President’s Barack Obama’s commission on cyber security, states, “Cloud infrastructure has yet to be secured.”

As a lawyer, that statement scares the Hell out of me. If The Cloud has “yet to be secured,” I say to Chromebook and to The Cloud, “Thanks; but, no thanks.”

Years ago, even before “The Cloud” became the trendy name for off-site data storage, I was approached by a company selling space for off-site data storage for lawyers.

For about two weeks, I went back and forth with various sales people, middle management and finally upper management on the issue of security and privacy.  Not one of the people with whom I spoke — from minion to magnate —  was able to guarantee me that the data could not be accessed by a hacker; and not one of them was able to guarantee me that I would be given notice of a subpoena to access the data by a third party, such as the FBI.

The US Patriot Act forbids it.  And, if you think that the government can be trusted to only use that law to stop terrorism, just remember that absolute power corrupts absolutely. Cloud computing — data stored on off-site servers — is nothing new. And, according to Tom Kellerman, it is still not safe.

Yet, many state bars in the US —  Alabama, Arizona, Massachusetts, New York, North Carolina and Nevada have either issued ethics opinions, or proposed ethics opinions, permitting cloud computing for lawyers. California has set forth standards for the storage and transmission of electronic client data, which arguably permits cloud computing.

Personally, I still believe that the best way to protect your data is to keep it close to you, in your office.  If you need to access your data remotely, then set up a virtual private network (VPN) and make sure everything is heavily encrypted.

Better yet, don’t use a VPN. Take what you need on a flash drive zipped up in a pocket.  Or use an iPhone and put all the documents you need on that.  Back it up before you leave.  And, if you lose it, nuke it remotely.

Call me slow to change. But colour me “safe” — not chrome.