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How-to: Hyperlinks in federal court documents on a Mac

I follow Hercules and the Empire, a blog written by a federal trial judge in Nebraska. I was poking around the archives today and found a couple of gems on legal writing, including a list of "Top ten legal writing hints when the audience is a cranky federal trial judge". Judge Kopf suggests we make life easier on law clerks by inserting hyperlinks to caselaw and the electronic record.

I appreciate good legal writing, so I immediately started exploring the process. The Nebraska USDC ECF page has several links and tutorials on how to create hyperlinks in e-filed documents. The tutorials are a really good starting place on the mechanics of how to create hyperlinks. For instance, I never knew you could link to particular pages of PDF documents online simply by adding ?page=<pagenumber> to the end of the link. However, the tutorials identified a few issues that our particular Mac-based workflow would cause, so I thought I'd write up how I addressed the problems.

We use Macs and Microsoft Word in our office. We have Adobe Acrobat 11. Lexis is our legal research provider. From what I can tell, this setup creates at least two issues that requires alternative solutions to that posted in the Nebraska USDC hyperlink manual.

Problem 1: Clean Lexis Links

Solution: Use the Copy with Cite link from your Lexis case page to get a permalink to the document.

Pro Tip: Instead of the page number of the beginning of the opinion, you can use the page number for the pinpoint cite. So, instead of: "http://www.lexis.com/research/xlink?app=00075&view=full&searchtype=le&search=347+Ark.+423", the last part becomes "347+Ark.+429".

Explanation: For Lexis links, the tutorial suggests copying and pasting the link from the address bar in the browser; however, the tutorial also notes some attorneys have difficulty using this method. In looking at the url for a case I pulled up in Lexis, I can tell it will cause problems simply because it contains a lot of HTTP session information that will expire in a few hours.

The hyperlink needs a permanent link to the Lexis document. The workaround is to click the (Copy w/ Cite) link at the top of the Lexis page for your document. This will open a popup window. Make sure the Copy reference as hyperlink box is checked, and you can then click the text and copy the citation with the hyperlink embedded. Here's a screenshot showing the Copy w/ Cite link and the popup:

Screen Shot 2015-05-13 at 09.26.25.png

When you paste into Word, you might have to click the little clipboard icon that pops up and select "Match destination formatting...", like this:

You'll need to work on the cite to get it in Bluebook format (de-bold and italicize the caption), unless your an anarchist. This will give you a permanent link to Lexis in your Word document.

Problem 2: Exporting Links to PDF

Solution: This requires a couple of different workarounds for me, as follows:

  • Upgrade Adobe Acrobat to version 2015 (this is the Document Cloud version).
  • Use File > Save As Adobe PDF... in Word 2011, not Word 2016 Preview.
  • Don't put hyperlinks in footnotes for now.

Explanation: While reading through the Nebraska USDC tutorial, I saw that you can't simply do a File > Print > Save as PDF from Word because it doesn't preserve the links. I tried it, and sure enough, the links didn't work. I also tried the Save as Adobe PDF from the File > Print > Save as... menu, but that didn't work either. Finally, File > Save As... and selecting PDF was a dud too.

I found this Adobe support page discussing the link exportation issue. I wound up upgrading Adobe Acrobat to the latest version in order to able to embed links in a PDF created from Word. They now work in the body of the document, but not the footnotes. I like using footnotes for citations, but I'll have to modify my behavior until this problem gets fixed.

Of the three ways to create the PDF from Word suggested on the Adobe forum, I could only get one to work. I figured out this is due to having the Office 2016 Preview installed on my computer. The File > Save as Adobe PDF link works in the 2011 version of Word, but the link between the programs appears to be broken in the 2016 preview.

Other Features...

According to the Nebraska USDC tutorial, you can link to particular documents previously filed in your case simply by inserting the link from the email you received when the document was filed.

The really cool feature, I think, is linking to documents you're currently filing. I haven't tried this yet. If you've been able to do it, or have discovered any issues with the process on a Mac, please drop me a line @chaneylawfirm on Twitter. We'd also appreciate a follow on our blog at http://www.chaneylaw.com/blog. Thanks for reading.

U.S. Supreme Court issues trademark decision - Check out our decision highlight hashtag

The U.S. Supreme Court issued a decision today in B&B Hardware v. Hargis, the second trademark decision from the high court this term. The issue in the case was whether the Trademark Trial and Appeals Board (TTAB) decision finding a likelihood of confusion between two trademarks had a preclusive effect in a federal court lawsuit that was going on at the same time. The TTAB decision involved the same two parties and the same issue, so the Supreme Court ruled the TTAB's decision should have been considered conclusive by the federal court.

I'll embed the tweets a little later. In the meantime, if you want to check out the tweet stream from my reading of the decision, the hashtag is #BBHardwarevHargis. As usual, it's probably easiest to start at the bottom.

Be sure to give us a follow on Twitter (chaneylawfirm) and Facebook (chaneylaw). Thanks for reading.

A picture is worth 1000 words – especially in injury cases

We've previously discussed how injury clients need to be cautious when posting to social media. A Florida appeals court recently showed why this is important. In Nucci v. Target Corp., the Florida Court of Appeals ruled that an injury plaintiff had to disclose over 1200 photos on her Facebook page, even though her privacy settings were set to "Friends Only".

The court rejected the argument that the "Friends Only" setting created a reasonable expectation of privacy in the photos. Target had an investigator perform surveillance on the plaintiff, and took pictures of her "carrying heavy bags, jugs of water, and doing other physical acts, suggesting that her claim of serious personal injury is suspect." The court pointed to this evidence in ruling that the photos must be turned over. The court stated:

If a photograph is worth a thousand words, there is no better portrayal of what an individual’s life was like than those photographs the individual has chosen to share through social media before the occurrence of an accident causing injury. Such photographs are the equivalent of a “day in the life” slide show produced by the plaintiff before the existence of any motive to manipulate reality. The photographs sought here are thus powerfully relevant to the damage issues in the lawsuit. The relevance of the photographs is enhanced, because the postaccident surveillance videos of Nucci suggest that her injury claims are suspect and that she may not be an accurate reporter of her pre-accident life or of the quality of her life since then.

People involved in a lawsuit should pay attention to this case for a couple of reasons:

  • Social media accounts are, by definition, designed to share personal information. So, that information isn't private.
  • In lawsuits, corporations and insurance companies will go to great lengths to try and prove someone is a liar. Even if a plaintiff tried an activity she formerly enjoyed just one time and had problems afterwards, defense lawyers will use a photo of the activity to try and prove the plaintiff is faking.
  • Context for posts is important. People usually want to present their best outward appearance to friends on social media.

This last part is crucially important. Just like in real life, most folks don't run on and on about the bad parts of their lives on social media — otherwise they would be defriended or blocked. It can be explained like this (warning: mild language):

So the next time you’re driven to jealousy by a Facebook friend’s humblebragging about his or her awesome life, don’t forget: They’re probably embellishing it for social media, even if it’s unconsciously.

Ultimately, Facebook is a narcissistic playground where the best, the funniest, the most charming aspects of our lives are publicized and the s*&%y stuff, the boring stuff, the beige that is most of our daily grind almost never gets posted. All those walls are edited at some level and that makes them, at best, a deformed mirror image of real life or, at worst, nothing more than a fictional movie of how we want people to see us.

If people involved in lawsuits post stuff on Facebook, defense lawyers will present small snapshots of a person's life and represent those as the average of a person's life, rather than the "best of" snapshots they really are.

We advise clients to limit posts to social media to avoid these problems during insurance claims and lawsuits.

Trademarks and Confusion – What is an Overlapping Market?

I saw a good writeup from Dennis Crouch of Patently-O, an award-winning patent law blog. Professor Crouch's article talks about the key requirement for a trademark registration — the applied-for mark can't be likely to cause confusion with a previously-registered trademark. This is the same test juries must apply in trademark infringement cases. 

Most courts use a 6- or 8-part test to determine whether confusion is likely. You may be surprised to learn that actual confusion is not required and is usually pretty far down the list.

In Professor Crouch's article, he discusses a recent case involving an application for the word TakeTEN, which is used for a hospital's 10-day inpatient "lifestyle shift" program (for things like tobacco use, diabetes, weight control, etc.). The application was rejected due to a likelihood of confusion with Take 10!, a registered trademark used to encourage kids to have 10-minute classroom intervals involving physical activity. The two marks appear below:



On appeal, the rejection was reversed because the trademark examiner didn't meet the required burden of substantial proof that the two marks were likely to be confused with one another. The appeals court found that the services were sufficiently different, even though both owners advertise on the Internet. Did the court get it right? Do you think these two uses are likely to be confused with one another?

Trademark law invariably involves judgment calls over whether two names or symbols are likely to be confused with one another, taking into account things like relevant markets; similarity in sight, sound, and meaning; industry significance of all or portions of the two marks; intent; instances of actual confusion; and the type of product and its conditions of purchase. These factors are discussed in perhaps my favorite trademark infringement case, Gaston's White River Resort v. Rush.

It's important to select a trademark lawyer with experience in both registration and infringement matters to assist you in the trademark procurement process — experience helps a lawyer predict what a trademark examiner or jury would do with any given case.

The Power of Perseverance

All of the Chaneys except my wife, who's from Virginia, are University of Arkansas alumni. Those in Razorback country know well the struggles of our football team. For those that don't, here's a recap:

  • 2010 – BCS appearance in the Sugar Bowl, where we were defeated by a bunch of tattooed (and ineligible) players from Ohio State. Bobby Petrino's third year. The game was close, and we all looked forward to Petrino's recruits maturing.
  • 2011 – A dominating Cotton Bowl victory over K-State in Bobby Petrino's third year. 10 wins on the season. Truly, a cause for celebration and optimism.
  • 2012 – Ah, 2012. Truly, this was a year to forget. April Fool's Day brought a headline worthy of the day but, alas, it was no joke. Coach Petrino had a wreck on his Hog-red Harley with a woman not his wife on the back. He then lied about it to his boss, repeatedly, who fired him during a press conference televised on national TV. A bankrupt interim coach took over for the season. 3 players were charged before the season started with nine felonies EACH, making the Hogs the winner of the 2012 Fulmer Cup (an offseason tally of criminality, so not something you want to be winning). Still, we carried a top-10 ranking into the season, but many fans were uneasy. They proved to be right, as a lowly directional school in Louisiana-Monroe beat us in overtime the second game of the season and we tumbled out of the rankings. We finished 4-8. One of the four was against Kentucky in what would be the last SEC win for a long while.
  • 2013 – Athletic Director Jeff Long hired Bret Bielema to take over the program. The fanbase collectively said, "Huh"? Reactions were of two varieties when fans learned of his track record at Wisconsin (three consecutive Rose Bowl appearances, but no wins in two coaching appearances). Some fans thought he'd be great at putting together a running team like he had at Wisconsin with Russell Wilson, who won the 2014 Super Bowl at Seattle. Other fans thought he was only good playing with the players of his mentor, Barry Alvarez. The season was a long one, ending with a 3-9 record and 0 wins in conference play.
  • 2014 – A long offseason saw quarterback Brandon Allen's name besmirched daily on talk radio and his truck torched before the season started. The schedule was brutal. Most of Petrino's recruits were gone, and the ones that stayed were losing jobs to more talented youngsters. Every SEC school played through last weekend ranked in the top 17, and five of six were in the top 10 at game time. The season picked up where last season left off — a slew of conference losses. There were bright spots, to be sure, in dominating non-conference wins over inferior opponents and close games against superior opponents.

This 5-year history brings us to the present. Last weekend brought LSU to town, a team that is usually in the top two of the SEC West. LSU was ranked 17. Arkansas was on a 17-game SEC losing streak. Arkansas dominated from start to finishing, winning 17-0. The 17-degree windchill* didn't stop jubilant fans from rushing the field to celebrate with the players.

Who has been kicked in the teeth 17 times in a row by their peers? How does that affect one's psyche? Most folks would really be down on themselves after such a long period without success. It really says something for the leadership abilities of Coach Bielema to keep his players motivated during such a long losing streak. The players haven't quit this season and have played most teams close with the exception of Georgia. They have broken the cycle. #WPS

There is a corollary to trial work. People like me who represent individuals against insurance companies and other big corporations often face repetitive and distasteful behavior. A common tactic of insurance company lawyers is to ask questions to clients about things that happened 17 years ago, then try to find a piece of paper from a doctor to make the client out to be a liar. For example: "Have you ever been treated for neck pain or headaches?" If you went to the doctor 17 years ago after a waterskiing fall with headaches and neck pain, you better believe the insurance company will point to it in denying your claim. Nevermind the hypocrisy of arguing, on one hand, that soft-tissue injuries should heal within 6-8 weeks, but, on the other hand, the treatment 17 years ago was to the same body part so the defendant couldn't have caused the injury.

The toughest clients are the ones willing to take their case to a jury of their peers. A jury trial is grueling on clients in its own right: everything in the client's life is placed under a microscope — work history, social life, tax returns. However, a jury is sometimes the only way clients are ever able to persevere after a life-altering injury. A jury has the power to make right all the things that went wrong for the client. The jury is the difference between what could have been, and what is.

*I may or may not have made the windchill up, but it was in the 20s during the game.