· web viewa minnesota native, ross lives with his wife and two children outside washington, dc....

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ROSS GUBERMAN is the president of Legal Writing Pro LLC and the founder of BriefCatch LLC. From Alaska and Hawaii to Paris and Hong Kong, Ross has conducted thousands of workshops on three continents for prominent law firms, judges, agencies, corporations, and associations. His workshops are among the highest rated in the world of professional legal education.

Ross holds degrees from Yale, the Sorbonne, and the University of Chicago Law School.

Ross’s Point Made: How to Write Like the Nation’s Top Advocates is an Amazon bestseller that reviewers have praised as a “tour de force” and “a must for the library of veteran litigators.” Ross also wrote Point Taken: How to Write Like the World’s Best Judges, which Court Review called “the best book . . . by far . . . about judicial writing.” He coauthored Deal Struck: The World’s Best Drafting Tips with Gary Karl and created the online contract editor ContractCatch.

Ross’s newest product, BriefCatch, is a first-of-its-kind editing add-in. Its devoted users include lawyers and law firms, judges and courts, and corporations around the world. BriefCatch was named one of TechnoLawyer’s Top 10 Products of 2019.

An active member of the bar and a former attorney at a top law firm, Ross has also worked as a translator, professional musician, and award-winning journalist. Slate called his investigative reporting about Fannie Mae “totally brilliant and prescient,” and Pulitzer Prize–winner Gretchen Morgenson wrote that his article “made even the most jaded Washingtonian take note.”

For nearly a decade, Ross has been invited to train all new federal judges on opinion writing. He has presented at many other judicial conferences and for the Association for Training and Development, the Professional Development Consortium, the Appellate Judges Education Institute, and the Corporate Counsel Summit, among others.

Ross is a founding “Trusted Adviser” for the Professional Development Consortium and consults for Caren Stacy’s OnRamp Fellowship. He is often quoted in such publications as the New York Times and American Lawyer.

Ross won the Legal Writing Institute’s 2016 Golden Pen award for making “an extraordinary contribution to the cause of good legal writing.” He was also honored as one of the 2016 Fastcase 50 for legal innovators, and his feed has been named to the ABA’s Best Law Twitter list.

© Legal Writing Pro 2020. All Rights Reserved.

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A Minnesota native, Ross lives with his wife and two children outside Washington, DC. Family travel has taken them everywhere from Argentina and Bhutan to Greenland and Zambia.


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Warm-Up I: Poll Position

1) What font is this? Which is your favorite font? 2) One space or two after periods? 3) Any changes to “40 year history”? 4) What does “to the extent” mean? 5) What punctuation mark follows “points”?


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Warm-Up II: Brainstorm

1) Why “two (2)”? 2) Typo in the first one?3) Relationship between “acknowleding” and “assume”? 4) Why the semicolons?


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Part One: From Raw to Refined: Structure, Speed, and Style

Five Steps

Based on a Paul Clement memo for Clearview.

Step One: Raw Material

Step Two: Logical Moves


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Which four points should start the paragraphs and in what order?

___Fourth Amendment inquiry starts with whether an individual has an “expectation of privacy” that “society is prepared to recognize as reasonable.”

___Problem: Carpenter does limit these uses when subject’s physical location is implicated.

___When a user uploads an image for matching, Clearview compares that image against images from publicly available sources (social media, news media, employment networking sites).

___The specific concerns in Carpenter and related cases do not apply to Clearview.

___Law enforcement agencies’ use of Clearview as intended does not trigger Fourth Amendment protections.

Step Three: Authorities in Service

(1) The starting point for any Fourth Amendment inquiry is whether an individual has an “expectation of privacy” that “society is prepared to recognize as reasonable.” If not, then Fourth Amendment safeguards do not attach.


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CarpenterSmithMiller

(2) Law enforcement agencies’ use of Clearview as intended does not trigger Fourth Amendment protections.

Clearview factsSmithBurkeMeregildoBowery

(3) Carpenter did limit these uses when a subject’s physical location is implicated.

CarpenterCell-phone info tracker

(4) The specific concerns in Carpenter and related cases do not apply to Clearview.

Tech differences cell phone location vs. Clearview

Step Four: Conciseness

Pursuant to these principles, law enforcement agencies’ use of Clearview as intended does not, in our view, “trigger Fourth Amendment protections.”

In instances in which a user uploads an image for purposes of matching, Clearview compares such image


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against publicly available images from publicly available internet sources—namely, social media, news media, employment networking sites, etc. Individuals do not have a reasonable expectation of privacy with respect to images or additional information that they (or others) have . . . .

The Fourth Amendment would not be implicated by using a Google search in order to obtain information made available on the internet.

. . .when the government obtains cell phone records demonstrating an individual’s physical location, notwithstanding the fact that the location information was . . . .

That the technology (and records capturing that technology) formed the basis of an “exhaustive chronicle” of a person’s “physical movements” was particularly troubling to the Court.

The Court made much of the fact that the cell phone location information both was incidentally generated. . . . the images against which it compares a user-generated image are made publicly available to a range of third parties by voluntary acts as opposed to the incidental operation of a device utilized for other purposes . . . .


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Step Five: Transitions

___But___Indeed___Just as___So too___That remains true ___To be sure___To the contrary

A person “has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Smith v. Maryland, 442 U.S. 735, 743-44 (1979). ___________ “even if the information is revealed on the assumption that it will be used only for a limited purpose.”


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Individuals do not have a reasonable expectation of privacy in images or other information that they (or others) have ”voluntarily turn[ed] over to third parties” like social media sites or directly transmitted into the public sphere. Smith, 442 U.S. at 734-44; see also California v. Greenwood, 486 U.S. 35, 40-41 (1988) (no Fourth Amendment interest in trash placed at a curb for pickup; individuals had put out garbage “for the express purpose of conveying it to a third party” and for, “in a manner of speaking ... public consumption”). That remains true even if an individual uploaded an image for a “limited purpose” (for example, a job networking site). Miller, 425 U.S. at 443. _________ the Fourth Amendment would not be implicated by using a Google search to obtain information made available on the internet, _________ is the Fourth Amendment not implicated by using Clearview to do the same.

________, the Supreme Court observed in Carpenter that “[a] person does not surrender all Fourth Amendment protection by venturing into the public sphere.” 138 S. Ct. at 2217. The Court held in that case that . . . . _______ Carpenter was a “narrow” decision that focused on one particular set of circumstances—obtaining cell phone records that provide a “ comprehensive chronicle of the user’s past movements.”

None of these concerns is implicated in the case of Clearview: it does not track a person’s “ physical


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movements”; the images against which it compares a user-generated image are made publicly available to a range of third parties by voluntary acts rather than the incidental operation of a device used for other purposes. _______, the Court expressly stated in Carpenter that it was not “call[ing] into question conventional surveillance techniques and tools . . . . _________, the fact that four Justices did not think there was a Fourth Amendment problem in Carpenter goes a long way to underscoring the absence of . . . .

Precision: Celebrity Sighting

Please analyze these provisions from Felicity Huffman’s plea agreement. Consider (1) what type of provision it is, (2) whether it arises upon execution or only post-execution, (3) whether it applies to a party or to a non-party, and (4) what language would best reflect those points.

Provision (1) Affirmative

covenant/ (2)

negative covenant

/ (3) right/ (4)

future occurrence/ / (5)

legal construct

?

Time? Party?

Language choice?

1. No later than April 30, 2019, Defendant will waive Indictment and plead guilty to count


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one . . . .

2. Defendant also agrees to waive venue . . . .

3. The U.S. Attorney agrees that . . . no further criminal charges will be brought against the defendant . . . .

4. Defendant . . . reserves the right to argue that her offense level should be increased by 2, not 4.

5. Defendant may not withdraw her guilty plea if . . . .

6. The U.S. Attorney agrees to recommend the following sentence to the Court: restitution in an amount to be determined by the Court at sentencing.

7. Defendant agrees that . .


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. [s]he will not challenge her conviction on direct appeal . . . .

8. Defendant keeps the right to later claim that her lawyer rendered ineffective assistance . . . .

9. Defendant hereby waives and releases any claims . . . .

Interlude: Email TrapsThe Tone Wars I


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The Tone Wars II

Imagine that a supervisor named Linda sends you the email below. How would you respond in a way that is professional yet unpretentious? (1) What would be your greeting? (2) How would you let her know that you can meet? (3) How would you sign off?


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[Name],i need a status update on your assignment memo can you come by my office tomorrow at 11 thx L.


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Part Two: Polish

Copyedit This!

Instructions from the Times: “Each of the passages below, from recent Times articles, contains one clear error in grammar or word usage. I’m not counting less-than-elegant phrasing that could be improved, or other more subjective editing judgments.”

Bet up to ten dollars in total. Distribute your bets as you like.

1. The constant haze and unnatural color palate make “Sabrina” a dead ringer for CW’s murder-soaked spin on the Archie comics, “Riverdale,” which is no surprise.

2. What, after all, does a mother do when her adolescent daughter announces, with an age-appropriate mix of uneasiness and defiance, “Ma, I’m having holy visions?” (Bet: $__)

3. Each of the three candidates vying to replace Mr. Flake, who is retiring after a single term, aligned themselves with Mr. Trump. (Bet: $__)

6. In 1954, senators voted to condemn one of their own, Senator Joseph R. McCarthy of Wisconsin, for contempt for flaunting the body’s norms. (Bet: $__)


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7. West Wing aides had hoped to keep the Kansas race away from Mr. Trump’s line of sight[] but were uneasy about what he may do during an extended, and unsupervised, trip to his New Jersey golf resort. (Bet: $__)

8. Genetic analysis of bones discovered in a Siberian cave hint that the prehistoric world may have been filled with “hybrid” humans. (Bet: $__)

9. White residents, who comprise about 8 percent of the population, own roughly 70 percent of the private farmland, according to government figures. (Bet: $__)

11. The jury deliberated for fewer than eight hours—a shorter period than some people had expected—and some jurors told reporters after the verdict was announced that two of them had first leaned toward acquittal. (Bet: $__)


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Notes


· web viewa minnesota native, ross lives with his wife and two children outside washington, dc....

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