Beginning September 14, 2005, The Arkansas Bar Association has been posting summaries of Arkansas Supreme Court and Appellate Court decisions.  These summaries are freely available on their website.  Opinions are organized by the main subject of the opinion.  Docket numbers are provided, but no link to the full decisions.  Full opinions can be found at the Arkansas Judiciary opinions page by date or party name.

Competitive Intelligence is the use of information on your competitors obtained through raw data to analyze their actions in the marketplace.  This is all done legally, the providers of these services hasten to add.  The practice is not so new to certain businesses.  For example, a chain store looking to expand will examine real estate transaction records nationwide to find out where and how their competitors are expanding.  Competitive Intelligence is just starting to be talked about in the legal sector.  No doubt the tremendous volume of publicly available records related to the practice of law has made the idea attractive to the consultants who offer their services.

Recently National Law Journal published an article covering the recent introduction of the idea.  Since two popular legal research and technology blogs on the daily Wherelaw reading list, TVC Alert and Technolawyer picked up on this, your intrepid author quickly spotted the trend.  Then LexisNexis comes out with a pre-packaged product: LexisNexis Market Intelligence. 

Of course the practice has existed long before there was a catchy phrase, and a consultant's pitch to sell it.  Most Mid-South lawyers regularly glanced at the lists of court filings in the Daily News to see who's doing what or not doing what.  The legal profession has become sufficiently DIY that any lawyer who researches online can imagine how this process works even if he has never done it.  Now that the idea is evolving in to it's own area, it bears thinking about how much data you can use and how much data you yourself generate that can be used to deduce what your practice is doing.  Plus now you'll want to include the term on your buzzword bingo card.

Private Information Data Theft Just Beginning to Affect Law Practice 3/15/05

In the middle of Congressional hearings over ChoicePoint's compromised personal consumer information database come revelations of more unauthorized access to other data that could lead to identity theft most notably from LexisNexis subsidiary Seisint.  The Virtual Chase has been keeping on top of the headline from various sources with their TVC Alert. This is an issue that's going to impact the practice of law in several ways.

First of all, access by researchers to consumer/personal data is already being affected and will likely continue.  Another aspect is Congressional interest in the data provider industry with an eye to implementing new regulations. And lastly, in the author's opinion, chances are high that liability will ensue for companies whose data bases of personal information have been accessed by identity thieves for any resulting losses.  This last point affects not only the information providers, but potentially any retail operation or other business that keeps records of customers and clients.

TVC first reported last week, and was later confirmed that access to LexisNexis's public records database has been restricted from access by pay-as-you-go users, or those using credit cards and LexisNexis AlaCarte.  These restrictions are apparently temporary, but a permanent change that requires verification of users is likely.  LexisNexis privacy policy was revised again last week.  This will impact small and infrequent users who rely on LexisNeixs to make quick work of public record searches.  One alternative is to use the free directory of public records sites, Portico.  While it is free as are many of the official public records site to which it links, it takes more time, and the content is not 100% stable but dependant on the upkeep of government agencies and trade associations that actually provide these databases.  In an earlier post on Westlaw and Senator Schumer, Westlaw explained it's policies and already have in place a much stricter verification process than other providers before allowing access to consumer information.

The Senate Banking Committee held hearings on possible regulations on data security and included testimony from the CEOs of ChoicePoint and LexisNexis. On top of that, many of the states looking to emulate California's notification and "security freeze" laws.  These laws were perhaps the only reason the ChoicePoint matter became public at all.  Though many consumers' data were potentially stolen, only those who were residents of California were required to be notified.   A good story on the security freeze laws which allow consumers to put a hold on all access to their credit information appeared in the Memphis Commercial Appeal today.  However, no state in the Mid-South is currently considering this type of regulation. 

The area of data sharing is already regulated under the Gramm-Leach-Bliley Act (GLB), but most of the protections afforded require the consumer to know the law and be proactive in protecting their credit information.  An guide to using these right can be found at the Privacy Rights Clearinghouse.  By using the opt-out option under GLB and the 90 day Fraud Alert option provided by the three major credit reporting companies, consumers can temporarily freeze their credit, albeit they have to know what to do and spend the time and effort getting it done in time to prevent damage.  Also see the FTC's guide to recovery from ID theft.

Some lawmakers will likely conclude, as Bruce Schneier does, that new regulations on data security ought to permit civil penalties to data providers who fail to secure data or adequately verify customers who access data.  By comparison the Driver's Privacy Protection Act, 18 U.S.C. 2721 - 2125, protects information contained in state motor vehicle records from unauthorized access.  Persons responsible for unauthorized disclosure, including negligent state employee actions, can incur severe civil penalties.  See 183 A.L.R. Fed. 37.  Already suits have been filed against ChoicePoint under existing theories of liability.  Up until now, the primary sources of ID thieves had focused on stolen receipts, intercepted mail, email fraud or unsecured internet connections.  Last week's Congressional hearing were only the first of several hearings focusing on the the data brokers role in ID theft leading to more and more media attention to these companies.

The emerging fear in this issue is the lack of control consumers have on their information held by data brokers when those brokers cannot secure that data.  And data brokers are just the first to be examined for breaches of security.  Last week retailer DSW Shoe Warehouse revealed that customer credit card information in their system had been hacked.  Except for California, no state requires consumer notification when their information has been stolen.  Should that change, victims of ID theft will, in some cases, know the source where the thieves acquired their personal information.  All of this paves the way for potential liability to even the smaller retailers or any business holding consumer data.  Now would be the time to reassess your business client's systems for securing that data. 

Further fueling this shift in ID theft targets is the growing sophistication of thieves.  ChoicePoint was not hacked in the conventional sense, but deceived by thieves posing as legitimate business customers using, what else, stolen identities.  Since ID theft is the largest growing crime in the U.S. the potential for loss could increase exponentially.  Lawyers will have to anticipate where they will be able to access the public records with personal data that they need, how the law will change to protect data, and how to advise their clients on protecting their own data or the data of others they hold.

-toof

New Code Sections Effective January 1st, 2005

These are the primary code sections affected. Not included are smaller changes such as the amendments to referring chapters that go along with a major revision.  The chapter numbers are linked to the Secretary of State's version and code sections will be linked once the free Lexis T.C.A. has been updated.  The Legislature's site now has an official list in .pdf format listed by chapter number.  This change preceded LexisNexis own revelation that

Sections Amended/Added   Chapter   Title of Act

36-5-101(a)(6)           906       CHILDREN AND MINORS--CHILD SUPPORT--
36-5-503 and 36-6-104              TERMINATION

40-11-150, 40-15-105     780       SOCIAL SERVICES--HEALTH CARE PROVIDERS--
40-35-313                          CRIMINAL PROCEDURE

40-39-111                777       CRIMINAL PROCEDURE--SEXUAL OFFENDERS

43-38-101 to 43-70-101   534       AGRICULTURE--PROCESSING COOPERATIVE LAW
(all replaced)

45 chs. 1, 5 and 13      747       BANKS AND BANKING--MORTGAGE BROKERS AND 
                                   LENDERS--DEFINITIONS

49-7-107                 879       EDUCATION--COLLEGES AND UNIVERSITIES--
                                   CODE OF ETHICS

50-6-101 et seq.         962       LABOR AND EMPLOYMENT--WORKERS
                                   COMPENSATION

56-5-2 to 8              527       INSURANCE--PERSONAL INSURANCE RATES AND
                                   RENEWABILITY--USE OF CREDIT SCORES

62-26-225                555       PROFESSIONS AND OCCUPATIONS--EDUCATION--
                                   INVESTIGATIONS AND INVESTIGATORS

62-32-312                895       PROFESSIONS AND OCCUPATIONS--ALARM
                                   SYSTEMS CONTRACTOR--TRAINED REGISTERED
                                   EMPLOYEE

62-32-317(a)             509       PROFESSIONS AND OCCUPATIONS--ALARM
                                   SYSTEMS CONTRACTORS--RENEWAL OF
                                   CERTIFICATIONS, LICENSES AND
                                   REGISTRATIONS

67-4-2 - 13              803       TAXATION--LAW ENFORCEMENT AGENCIES--
                                   UNAUTHORIZED SUBSTANCES

67-4-2301 et seq.        852       TAXATION--DISABLED VETERANS--TAX
                                   EXEMPTIONS (applies to tax years
                                   beginning January 1, 2005 or later)

67-4-2701 et seq.        852       TAXATION--DISABLED VETERANS--TAX
                                   EXEMPTIONS (applies to tax years
                                   beginning January 1, 2005 or later)

67-5-704                 852       TAXATION--DISABLED VETERANS--TAX
                                   EXEMPTIONS (applies to tax years
                                   beginning January 1, 2005 or later)

68-11-254, 1004          780       SOCIAL SERVICES--HEALTH CARE PROVIDERS--
                                   CRIMINAL PROCEDURE

71-6-102, 120            780       SOCIAL SERVICES--HEALTH CARE PROVIDERS--
                                   CRIMINAL PROCEDURE

Effective March 1, 2005

6 chs. 4,17,18,21,33     914       COURTS--MUNICIPAL COURT REFORM ACT OF
  and 56                            2004

16 chs. 17,18,21         914       COURTS--MUNICIPAL COURT REFORM ACT OF
                                   2004

17 chs. 3 and 5          914       COURTS--MUNICIPAL COURT REFORM ACT OF
                                   2004

55-10-3                  914       COURTS--MUNICIPAL COURT REFORM ACT OF
                                   2004

67-4-6                   914       COURTS--MUNICIPAL COURT REFORM ACT OF
                                   2004

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Top Ten Underutilized Tennessee Law Resources
11/23/04

In my experience, only pro se types readily admit to a librarian they don't know what they are looking for. Attorneys must see this type of behavior as a sign of  weakness.  Typically, they ask for what they know even if it is not exactly what will do the job and then, as if making small talk, wonder out loud.  "Why isn't there a good form book on Tennessee trust provisions" they'll say. 
Or they simply make their request with very unlawyer-like hesitation and doubt in their voice.  We take that as an invitation to suggest tactfully the possibility, however remote, an item which they may not know about could help.  If I kept statistics of such recommendations, this would likely be the top ten resources you would use if you already knew to ask. 

1. West's Tennessee Code Annotated
West Publishing is looking to become the official code in as many states as they can.  Mississippi is a recent convert from Lexis (Michie's).  The real drawback to West's T.C.A. in the writer's opinion is the lack of court rules as part of the set.  So why does a wanabee T.C.A. top my list?  Annotations, annotations, annotations.  With it's massive Key Number system database already in place, West's code out-annotated Michie's version by some margin when they first published it in 2002.  After acquiring Harrison last year with it's dozen or so Tennessee titles, West's T.C.A. now references more cases, and more secondary sources too. Don't rush out and buy a set.  Check it out the Bar Library or the Law School first.

2. Tennessee Circuit Court Practice by Lawrence Pivnick
If you haven't driven Professor Pivnick's Tennessee procedure treatise lately, take it out for a test soon. It's size, now two volumes, has grown every year and so have sales.  Although there are other books covering some aspects of pre-trial and trial and post-trial procedure, this is the most complete, go to manual for the litigator. If I could pick only one book to issue to every new attorney this would be it. No wonder this was the first title published by West after acquiring Harrison Publishing's entire catalog.

3. Tennessee Supreme and Appellate Court Opinions online for free at www.tsc.state.tn.us/geninfo/courts/AppellateCourts.htm
I know that you already know where to find opinions from every Tennessee appellate court and ethics opinions and rules and proposed rules and all that, Mr. and Ms. web-savvy legal professional.  Yet every week I manage to enlighten several more of your colleagues to this wonderful resource.  Do your librarian a favor and tell a friend.  Somewhere a computer-phobic of counsel is just waiting for your help.  And while you're at it tell them about...

4. Tennessee Rules and Regulations online at www.state.tn.us/sos/rules/index.htm
Here's another 24 volume set you don't have to keep on your shelf or pay somebody to update.  'nuff said.

5. Tennessee Legal & Business Forms, Vol. 4 Estate Planning by Thomas M. Leveille
Yes there is a good resource for Tennessee trust provisions, for now.  West acquired this title from Lawyer's Cooperative.  While most of the subjects in this set are well covered by other volumes of West's venerable Tennessee Practice Series, the Estate Planning volume is unique and valuable.  You won't find trust covered to any extent in Pritchard's and the old once useful First Tennessee manual on estate planning ceased publication.  If you know of any other good resource on trusts, please let me know.

6. Tennessee Practice Vols. 5 and 6  Civil Procedure Forms, 3d ed. by Nancy Fraas McLean and Matthew Jeffery McLean
Are you still sitting at your keyboard late at night drafting documents already written?  This two volumes of complaints, answers, motions, interrogatories, and well, there isn't room to list it all and besides you don't have the time to read it what with your busy schedule of reinventing sections and provisions that took someone else years to compile. Take a break and check it out at the Bar Library or the Law School.

7. www.firstgov.com
As an example, the other day a friend, not an attorney, asked me a seemingly simple question about Social Security benefits.  This is not my area of law, but I am an attorney and we know what kind of basic expectations clients have about us.  I found the answers in less than five minutes starting with this search engine that focuses on government and law resources. It covers federal, all states, and municipalities then ranks them in order of usefulness that helps with practical research better than any other single site.  The federal government especially has shifted to online publication to such an extent that better than 90% of what used to be in print is web only now.  This is your starting point.

8. Appellate Advocacy: a Handbook on Appellate Practice in Tennessee, 3d ed. Donald Capparella, Editor
This is the only book on the subject, period, and it is no longer printed.  It is kept up to date and available to download for free from the Nashville Bar Association's web site.  Donald Capparella is the author of Tennessee Practice Series vol. 17 Comparative Fault and does a professional job here also.  The focus of this "book" is on procedure.  With the majority of appeals taken by attorneys whose primary practice is not in appellate court, this is a service to the court as much to the practitioner.

9. University of Memphis Law School Library Catalog Online
This is not the Law Library's own online catalog, that will happen later.  Since the Law Library merged systems with the McWherter Library, the public can access their catalog and restrict searches to Law Library holding only.  Use the drop down menu below the keyword search to restrict your search.  When the Law Library rolls out it's own web based catalog, it will not remain underutilized.

10. www.google.com
You may find this link forehead slappingly obvious.  Nevertheless, this is the Reference Desk's most used resource to answer questions.  Ok, after giving directions to the restrooms, this is the most often cited resource for answers.

-toof brown                                               / link / print /

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Disclaimer: This site is hosted and maintained by Toof Brown, III who is solely responsible for its content.   All Information on this site is intended for use by legal professionals and is not legal advice. The application of laws and opinions expressed on this site will necessarily not be the same when applied to differing specific facts of individual cases.  If you want to know how the law will apply to your case, consultation with a licensed attorney is the only advice I will recommend.
 

Toof Brown, III is a native of Memphis, Tennessee; He received his B.A. and J.D from the University of Arkansas and has been licensed to practice law in Arkansas and Tennessee since 1997.   Most recently he has written the Tennessee section for State Practice Materials: A Selective Annotated Bibliography published by the American Association of Law Libraries and William S. Hein.