Understand Your Rights. Solve Your Legal Problems
The General Data Protection Regulation (GDPR) will be a major element of data law in 2018. When it comes into effect on 25 May 2018, businesses will need to show careful consideration of their clients and employee’s data as well as a willingness to reveal if their company has suffered a data breach. For law firms and the legal profession in general, compliance with the GDPR should not be taken lightly and must be a priority for the sector.
Lay of the land – what will implementation look like?
While each firm will have bespoke requirements related to their sector and size, the GDPR’s implementation will have some components that all companies need to adhere to. The onus on the regulation is transparency, encouraging businesses to show a clear data trail and allowing specific data to be removed at the client’s request.
Businesses will need to clearly communicate what data they are collecting and for what reasons. Pre-ticked boxes or assumptions of consent will no longer be tolerated as individuals will need to actively and positively “opt-in” to their data being collected and used by the company. This added autonomy that clients have can be a challenge on a company’s internal processes. Should they request specific data points be removed, the business will need to comply and respond to the request effectively.
The GDPR also requires businesses to implement certain technical measures to ensure data is protected appropriately. Encryption is one recommended solution, however exact security measures business undertake will depend on the nature, scope, context and purpose of their personal data use. Ensuring data is secure is also a vital part of compliance. Another recommended solution is pseudonymisation, which involves processing data in such a way that it cannot be attributed to a specific individual without the use of additional data. For personal data to be pseudonymised the “additional data” must be securely kept separately to reduce the risk of identification. Although pseudonymisation is not a cast-iron guarantee of protection, it is a beneficial privacy enhanced method which reduces the risk to the individual.
In short, implementation will involve a careful balance between providing more liberties to clients and employees while ensuring the data held in the company is more secure than it has ever been.
What about law firms?
Client data is a hugely important factor of day-to-day operations, and the regulation will naturally cause some firms to fear the its implementation. While the Data Protection Act of 1998 has many similarities to the GDPR, one important change lies in the way firms communicate data breaches. Historically, businesses were under little to no obligation to reveal when a cyber-attack had taken place – leading to cases of companies revealing a loss of client data years later.
Under the GDPR, businesses will now be required to notify the Information Commissioners Office (ICO) within 72 hours of a breach occurring and they may also need to notify the individuals affected as well. While the idea of admitting when a cyber-attack has taken place can seem damaging to business operations, it is also an opportunity to showcase the procedures put in place and the defences the business has against these threats. With updated data processing, firms can identify the exact information that has been lost and using the latest encryption can ensure the data stolen is worthless to the cybercriminal.
Paying the piper – what does non-compliance look like?
Whenever discussing upcoming regulation, non-compliance becomes a key issue. Under the GDPR, failing to meet the regulation will have serious repercussions on the business. Whether it is failing to notify the ICO or having insufficient data protection methods and protocols in place, businesses that fail compliance will suffer both financially and reputationally.
Fines can be up to 4% of the firm’s annual turnover or €20 million – whichever is higher. This marks a stark contrast to the fines currently in place. For example, Carphone Warehouse’s recent fine of £400,000 over 2015 data breach pales in comparison to the changes that the GDPR will bring. With a harsher punishment for non-compliance, firms cannot ignore the regulation’s requirements.
However, it goes beyond money. If a firm is found to be non-compliant, they will be named and shamed by the regulator. For the legal sector, this reputational damage could cost the business more than the fine itself. A firm prides itself on confidentiality and trustworthiness. If the company is named and shamed, they will lose client confidence and face a long-term damage to their business.
The GDPR will affect all businesses and industries. However, the legal sector stands to lose a considerable amount if they are not compliant. It is vital to ensure that compliance goes beyond technology. The new rulings also require companies ensure they can deliver to clients while meeting the regulation’s trying demands.
The Chinese government has formalised its restrictions on foreign investments, which will curb investment in US real estate and require further scrutiny from relevant Chinese agencies on properties over $1 million.
“This restriction will cause a decrease in available capital and buyers, especially for high-end real estate, where, historically, transactions with astronomical prices had foreign buyers at play”, said Samantha Ahuja, Partner at Morris, Manning & Martin, LLP, an adviser to owners and developers of hotels, casinos, retail and shopping centres, and data centres. “With the current, natural down cycle in real estate, we will see more bid/ask gaps, a dearth of inventory as well as more sellers becoming hesitant to work with Chinese companies out of fear of regulatory hold ups.”
We speak with Samantha about how this will affect the US real estate market, the decrease in transactions using Chinese capital in real estate and why such restrictions were put in place.
What accounted towards the Chinese formalising these restrictions?
In late July of 2017, Chinese governmental agencies released their updated ‘list’ on restricted and permitted outbound investments. This release modified their previous release from 2015, which puts real estate over 1M and other property and hotels in the restricted category. Essentially and simply put, this will limit the ability of the Chinese to invest in real estate in the US (and other locations) and will require scrutiny and approval by the relevant Chinese agencies. These restrictions are stated to curb ‘irrational’ or ‘non-genuine’ investments, including acquisitions in real estate to entertainment.
The policies that are modified reflect the governments prevailing view on current economic, political and socioeconomic goals and policies. This includes curbing currency outflow and limiting risks in the financial sector. The type and number of high-end, trophy or other large commercial real estate purchases will now be subject to additional scrutiny and therefore very limited in nature, at least in the short term. While the measures do not address investments by Chinese insurance companies, it is expected that there may be additional guidelines or regulatory framework released at a later date for such companies.
This process of updating the guidelines and lists occurs every three years or so, and was part of a regular process undertaken by the Chinese governmental agencies.
What restrictions are now in place, that will have the most impact on clients?
In the immediate future, the restrictions on investments in real estate will impact the inflow of Chinese capital available for the acquisitions and development deals that we have been used to seeing over the past years. Further, some of the Chinese based companies have recently either announced their desire to sell some of the assets acquired over the last few years or otherwise begun to sell certain assets in the marketplace. While many of these company’s holdings span multiple asset classes, the impact will vary based on geographic location and timing of disposition. The impact within the marketplace will certainly vary based on location, asset class and the state of the asset (income producing/profitable, requires significant refurbishment or development etc).
What was the initial effect seen once these restrictions had been announced? What further changes are you expecting?
Initially there was a real decrease in transactions using Chinese capital with respect to real estate. That trend should continue into the future so long as such guidelines and restrictions are in place. However, the revised guidelines include those investments which are encouraged. Those investments, which align with the current political and socioeconomic goals of the Chinese government, include, without limitation to:
What do you think 2018 will now look like following on from this?
With respect to real estate, a continued downturn in acquisitions, however, we may see greater inventory of notable assets if any of these companies look to dispose of their assets.
By Anna Beaumont, CEO of gunnercooke
Starting at your first law firm is an exciting yet daunting time for a young lawyer. It is a time of rapid transition from academic to working life, and involves a steep learning curve.
After years of hard work making your way into the legal sector, the challenge is then to put into practise what you have learnt and understand the working dynamics of a law firm, including what skills you need for your career to progress.
Standing out as a young lawyer is difficult. Law is a competitive industry and all new starters are working hard. The traditional legal career path, which saw young lawyers progress by simply getting on with the work they’re given, is out of date.
Nowadays, young lawyers need to go above and beyond to show proactive and independent thinking – and a sure-fire way of doing this is to win your law firm new clients.
It’s not enough to be intelligent and proficient at law; in many firms you’ll only progress if you have the ability to bring in new business. Thankfully, the increasingly-connected world that we live in means that networking and building connections is easier than ever.
Networking is a skill that I was fortunate enough to start to develop during my early years as a young lawyer and it has definitely paved the way for some of the success that I have achieved to date in my career. I was lucky to be at a very supportive firm when I was starting out – the partners encouraged me and worked with me to build strong connections.
These early experiences informed the way in which gunnercooke nurtures employees at gunnerbloom, the law firm gunnercooke set up for entrepreneurial young lawyers. We encourage our young lawyers to network from the moment they join and to spend time on secondments to understand how businesses are run and to gain vital commercial acumen.
Building strong connections and a solid client base is fundamental to a successful career in law, yet it’s often overlooked when law students are undertaking their undergraduate training. I’d love to see colleges and universities teach business development skills as part of a law degree; the softer skills can make or break your career, yet I never received a single lecture on them.
To any young professional looking to make a mark at their law firms, here are my top 5 tips for building your network:
Anna is CEO and a Corporate Partner at gunnercooke LLP, one of the UK’s fastest growing challenger law firms set up in 2010 with offices in London and Manchester. Anna was gunnercooke’s first ever partner appointment, joining the firm in 2011 and she took over the role of CEO in September 2015. She is also known for her work as a commercial and client focused corporate lawyer, advising on both M&A and private equity transactions, in addition to gaining extensive in-house experience at £1.2 billion turnover Enterprise plc (now Amey), where she advised on the groups acquisitions and disposals for a number of years.
Anna believes in providing brilliant client service, acting as a trusted adviser, she is passionate about innovation and creating a giving and philanthropic culture.
Over the past few months, Martino has been providing insights into using images and videos as evidence in court. In the final part of this series, he discusses if enhanced images can be used in court. With technology taking over many sectors, this is a must-read article where we learn how the digital world may change the courts and its hearings.
Written by Martino Jerian, CEO and Founder, Amped Software
Recently I testified in court as a forensic image and video expert and, as is sometimes the case, the use of some filters to enhance images was questioned. As I have written in the previous months, there is some processing that should be entirely avoided, since it lacks accuracy and repeatability. For example, we should avoid techniques which add new information relying on data obtained by a training set, or techniques which have a random component.
Some years ago, there was a school of thought that said, only classical image processing techniques available for analog photography can be applied to digital photography in the forensic context. What are the risks of applying the wrong processing? We are not interested about having a “pleasant” image, we are concerned about extracting information from it. The risks of incorrect processing are:
By this reasoning, we are not referring to details at the pixel level, but at the image semantic content. In general, if I resize an image, I add a lot of new pixels but if the processing is correct I am not adding any new relevant information.
It’s important to understand that most of the image processing techniques present a compromise: I enhance something at the expense of damaging something else. For example, if I lighten an image to show a dark part more clearly, it’s very likely that you will lose details in the parts of the image that are already bright enough.
For this reason, it’s generally very difficult to say which techniques are good and which techniques are bad. Their applicability must be related to the specific case and the parameters used. Filters are just tools, and as such, they can be used in the right way, obtaining better images, or in the wrong way, damaging the image quality or presenting wrong information.
Because of this, it’s important not to blindly apply different enhancement and restoration filters, but to apply them in order to correct a specific defect. Similarly, the tuning of their parameters must be consistent with the amount of defect you want to correct. Abusing the filters can create images which are worse than the original.
It is therefore important, as I’ve said before, to work with experts who have specific experience in the forensic image and video analysis field as they know what to do, and how to identify what has been done incorrectly.
A lot of pressure can be placed on the processing done by the experts, but most people ignore that there are many other possible issues that can occur during the image acquisition and visualization phases.
A lot of processing happens in the camera itself, from CCTV to smartphones. Unless raw image pictures are used, which is very rare, the value of the pixels in an image are hugely dependent on the processing and encoding which automatically happens inside the device in order to obtain the desired ratio between image quality and technical limitations.
And then, even to simply visualise the image, there’s a lot going on under the hood. Different software can decode the image in a slightly different way, which can enormously impact the final result. A lot of image processing happens on the graphic card of the PC, on the screen, or on a projector. Just by playing with the brightness of the projector you can understand how much of the visible information in an image can be altered by such simple tuning.
There is then the most critical part of the processing: our eyes and our brain. Different people see and want to see different things in the same image. Analysing things in an objective and unbiased way is often very difficult, unless you can measure things numerically. And in fact, avoiding and limiting the various types of biases are one of the most important aspect of forensic science currently studied.
Maria Lakes prides herself on helping people navigate legally challenging situations and strives to make the legal process easy for clients. In a cumbersome and lengthy probate system, Maria and her team have developed systems and processes to minimise client stresses and delays while delivering excellent client service. Below, she speaks more about this with Lawyer Monthly and how her team help clients in the UK and Ireland.
You aim to offer a probate ‘Plain English Service’ and make the process easy for clients; can you share with Lawyer Monthly to how you approach this? Moreover, how difficult is this, and how do you overcome the challenges faced by UK probate solicitors and clients?
The area of Wills and Probate can be very confusing for clients; we overcome these challenges by explaining the Probate process simply without the use of legal jargon. The main challenge in our work with UK Solicitors and UK based clients can often be clarifying the steps to be taken to obtain an Irish Grant.
The need to extract an Irish Grant arises in many UK Estates due to Irish assets, which require to be administered. This is unsurprising due to the close proximity of the two jurisdictions. However, the difference between the two probate legal systems can often be surprising.
The Irish system is, in a nutshell, slower and more cumbersome that its UK neighbour. It also dictates that a UK solicitor and/or UK Executors/Administrators must use an Irish based solicitor to extract an Irish Grant.
There are significant backlogs in the Irish Probate Office, approximately a 16-week backlog from the date the application papers are lodged to the date the Grant issues. However, we can ensure that UK Solicitors and Executors/Administrators are aware of the need to extract an Irish Grant and therefore allow steps to be taken immediately to begin the process; this can lessen the total administration timeframe. It is not necessary to actually have the UK Grant to begin the Irish process.
By specialising in the area of Irish Grants for UK Estates we are well positioned to advise of the relevant requirements and provide advices on the most efficient way to proceed.
As Thought Leader, can you share ways in which the legal industry could progress, in order to benefit your probate clients in the UK?
Increased awareness of the complications that can arise when Irish assets are included in UK Wills and Will trusts would be of benefit. Often UK clients, and beneficiaries, are frustrated by the need to extract a second Grant in a second jurisdiction and indeed are surprised to learn that further inheritance tax obligations may arise.
Further complications can arise when Irish assets fall under UK Discretionary Will Trusts and expert taxation advices will be required.
By increasing awareness of the steps that may need to be taken and the obligations that arise in Ireland, clients, when making Wills, can be facilitated to make adjustments which could increase efficiencies in the administration of the Irish estate.
In a system full of delays, how do you ensure your probate clients do not suffer delays with your office?
Aside from having a dedicated and expert Probate Team within Tracey’s, we have developed a tailored and streamlined case management system which allows us to complete work for our probate clients in the most efficient and effective manner.
Our team have undertaken LEAN training and incorporated these practical skills into our everyday operations. From commencement to completion of their cases, our probate clients benefit from these investments and experience a smooth, easy and clear service.
What advice can you give UK Solicitors who are encountering Irish assets in the administration of a UK estate?
Talk to us first – speak to our dedicated team to establish if an Irish Grant will be required and if so what information will be required and what steps should be taken and when. Even if no Irish Grant is required, we will be more than happy to provide guidance to you.
Are there any other services that you offer that are of assistance to UK Solicitors?
Our team can assist in advising on Irish Wills to deal with Irish assets should clients prefer to have a will in each jurisdiction. In addition, we have acted for a number of UK based children concerning litigation against a deceased parent’s Irish based estate due to a failure to properly provide for them.
Mini Questionnaire – ‘Food for Thought’:
Yes, this mantra keeps my clients happy and ensures I sleep well at night, it simply states:
‘Do your best and be ethically right’.
To measure success, you need to fully understand your purpose and what you are engaged in.
In my work, I know that my role is to help people deal with messy situations through legal solutions. To be successful at this I need to exemplify excellent client care. This cannot be done without making the process easy for clients and enabling clients to understand the process, so they are not worried.
In addition, expertise and experience is required to advocate legal solutions. These requirements, coupled with an ability to complete work effectively and efficiently lay the foundation for success. The measurement of success is through client satisfaction, through seeing the client through the mess and beyond it.
Let our clients tell our story:
“A particular thanks to Maria Lakes whose knowledge, professionalism and efficiency guided me through the probate process at the most difficult and challenging time of my life after the loss of my mother.”
Maria Lakes
Solicitor
E: ml@traceysolicitors.ie W: www.traceysolicitors.ie | www.probate.ie
T+353-1-6499900.
F+353-1-6495081
Maria represents our clients in areas such as Personal Injury, Litigation and Wills & Probate, and has a keen interest in continuously developing her ability to offer a ‘Plain English’ legal service.
Maria Lakes has been practising in the area of Wills, Administration of Estates and Trusts for over 13 years. She heads up the Wills, Administration of Estates and Trusts Department within Tracey Solicitors. She is a member of the Society of Trust and Estate Practitioners and an associate member of Solicitors for the Elderly Ireland.
Tracey Solicitors is an Irish Solicitors Firm based in Dublin, Ireland. We are available to provide you with expert advice and legal services.
We are very proud of being the only Solicitors in Ireland to have achieved the Excellence Through People Award in 2017.
We have dealt with thousands of different cases over the years and are proud of our record of client care and success to date.
We provide clear and independent advice and achieve the best possible outcome for you.
As an Irish Solicitors firm, we use our knowledge and experience to give you the voice you need. We offer personal attention, we use plain language and we provide practical and impartial advice.
We now hear from Margy Campbell, whose professional adult and geriatric experience has proven invaluable to local attorneys in their professional need for expert witness testimony and to families as a family mediator and Personal Representative.
What are common cases that you are instructed on as an Expert Witness?
My expertise is specific to cases where the standard of care has been allegedly breached or neglected by a family member, interested party, agency or professional resulting in direct harm to the vulnerable adult.
The alleged harm may be due to a guardian’s medical, residential and/or environmental decision making, through a lack of fiduciary care to the vulnerable adult’s estate by a conservator or through agency/family mismanagement of a vulnerable adult’s care through management decisions or by agency/family caregivers providing inappropriate/unnecessary care.
Why are these cases so common and what could be done by professionals to avoid them? At what point would you recommend clients to take legal action?
Breach or neglect of the standard of care may be more common in the family guardian/conservator/caregiver setting due to these individuals choosing to make decisions based on what they feel is in the best interest of the vulnerable adult rather than following valid legal documents already in place, or making decisions by using substituted judgement - taking into account what the vulnerable adult would want.
When to take legal action is always a difficult question. When a vulnerable adult is at risk of harm – medically, emotionally, environmentally or financially, action should be taken quickly. This action may be in the form of a report to the attorney representing the vulnerable adult, to the court which has jurisdiction, to a state licencing authority or to a state ombudsman. If there seems to be no response and the threat of harm continues, then consulting an attorney may be the next step.
What qualities do you think make a good social worker?
Quality social workers will always attempt to follow the NASW – National Association of Social Workers, code of conduct and standards of practice. They will have clear boundaries of practice, place their client’s needs first, continue to educate themselves and surround themselves with other professional with solid ethics.
Quality guardians/conservators will always attempt to follow the code of conduct and standards of practice from the National Guardianship Association and stay in compliance with their state statues and licensing. Like social workers they will have clear boundaries of practice, place their client’s needs first, continue to educate themselves and surround themselves with other professional with solid ethics.
What are the biggest challenges through litigation? How do you use your expert knowledge to work your through this challenge?
One of the biggest challenges in dealing with legal matters is the willingness of the legal team to provide me with all of the information as I move into an initial consulting role.
The time needed to bring me up to speed with the nuances of the case does take time and financial resources, however without having all the facts - medical documents, bank and investment documents, charting from care managers and caregivers -, I am unable to evaluate the case adequately.
Communication is a necessary key to my work as a consultant and/or expert witness and staying in communication with the legal team through email, phone consultations, in-person meetings allows me to meet their timetables and deadlines.
In what ways do you think the legal system could change, for the advantage of your sector and clients?
In an ideal world, I would like to see more education of family/interested parties prior to their appointment as a court appointed guardian/conservator through a court sanctioned in-person education class as some states have when a couple is divorcing.
I would like agencies providing care management and caregivers to understand the role of a court appointed guardian/conservator. This would allow them to work effectively as a team member to provide care for the vulnerable adult and to notice the red flags which need to be reported.
For professionals I would like to see every state require licensing, as they do for social workers, and have these professionals be certified through the Centre for Guardianship Certification (CGC).
Margy M Campbell, LCSW, CFP, NMG Emeritus
Margy Campbell Conuslting, LLC
www.margycampbellconsulting.com
801-231-2018 phone
801-203-3033 fax
Margy Campbell is a Utah licensed clinical social worker (LCSW), certified financial planner (CFP) and National Master Guardian Emeritus (NMG Emeritus) registered with the National Guardianship Association. She has over 30 years of knowledge and expertise in the area of guardianship, conservatorship, care management and private/agency based home care for vulnerable adults.
She was CEO and Founder of Age Connections, Inc – a private geriatric care management company and non-medial home health agency from 1987-2011 and CEO & Co-Founder of Guardian & Conservator Services, Inc, from 1997-2016 - an agency which provides guardianship, conservatorship, trustee and other fiduciary services for vulnerable adults throughout the Intermountain West. Ms. Campbell served as the Programme Director for the Utah Special Needs Assistance Program Fund (Utah SNAP Fund), a non-profit organisation offering a pooled income fund to the disabled in Utah for over 10 years.
If you have made it this far into January and stuck to your resolution…well done! The most well-known promise to ourselves is to eat well, but with the hectic legal lifestyle, that can be hard. With our new year’s resolutions sinking in, we have decided to gain some expert knowledge into how our lifestyle can affect our wellbeing, and our wellbeing often shows: when we feel good, we look good, but with the stressful nature of the legal world, this can be tough to achieve.
Below, Amy Morris, a naturopathic nutritionist, speaks about simple ways we can feel better and look better, so we feel less groggy and sluggish for those all-important meetings.
Wishing to age well is among the most natural desires we have. But with the global anti-ageing market set to hit £164 billion in 2021, you must wonder why more people don’t investigate dietary interventions before shelling out on pricey moisturisers, peels and treatments.
Photographic Proof Sugar Makes You Look Older
Let’s start with the foods you should steer clear of, or at least consume sparingly. The most obvious one, right out the gate, is sugar. It’s deleterious effect on teeth aside, sugar degrades collagen and elastin, key proteins which support the skin’s structure. Over time, this can give rise to damaged-looking skin and wrinkles.
Two years ago, one study assessed the effects of diet on signs of visible ageing. Photographs of 100 men and women were shown to a panel of 190 people tasked with estimating the age of the participants. The subjects with the lowest intake of sugar were guessed to be five years younger than their actual age.
Remove Pro-Inflammatory Foods to Age Gracefully
Needless to say, pro-inflammatory foods are also worth binning. Not only do they fail to supply the nutrients your skin covets, but they are one of the major factors driving ageing both internally and externally. The worst culprits include processed oils such as canola, safflower, sunflower and vegetable oil. Packed with polyunsaturated fatty acids which are unstable, quick to oxidise and thus the perfect trigger for cell damage, refined oils should be replaced with healthy alternatives such as extra-virgin olive oil, coconut oil (which can also be used as a natural moisturiser) and MCT oil (1).
Oh, and before we move on to foods which are beneficial for ageing, you should endeavour to limit your consumption of gluten! More famous for causing leaky gut, gluten can also cause pimples, pigmentation and dark patches/puffiness of the skin – an outcome commonly known as Gluten Face. Natural aesthetician Dr. Nigma Talib, whose clients include Penelope Cruz and Rosie Huntington-Whitely, is a frequent critic of gluten as it pertains to skin glow.
Choose a Nutritarian Lifestyle, Not a Diet
Obsessive dieting invariably triggers a regressive loop and a return to the starting line. Instead of following fads, aim to get most of your food from natural sources and nourish the body inside and out.
That means fresh fruit and vegetables, fertile sources of the vitamins and minerals which help maintain youthful skin, healthy hair pigmentation and prevent worsening eyesight. Your 5-a-day (or 10-a-day) are also chock full of antioxidants, crucial for counteracting the damage wreaked by oxidative stress, a major player in the ageing process.
Don’t neglect fats either – particularly the healthy kind found in fish, nuts and seeds. Omega-3s EPA and DHA entail an array of benefits, most notably for brain health, heart health and vision. They are the main reason we’re advised to eat two portions of oily fish every week. If you can’t manage that, fish oil supplements are just as beneficial. WHC’s Active Mind + Vision Complex (2) is one such example: formulated for those wishing to maintain sharp cognitive performance and clear vision, it integrates high levels of EPA and DHA with B-vitamins known to protect against age-related brain wasting.
Pursuing a healthy lifestyle is so much easier than diligently abiding by the strict guidelines of a fad diet. By evading inflammation and oxidative stress, and ensuring plenty of omega-3s, vitamin D and antioxidants, we’ll support higher energy levels, improved mental strength, tougher bones and, yes, clearer skin. It’s about nutrients working in combination rather than the quick fix of an anti-ageing formula – many of which contain ingredients that are beyond dubious for such a purpose!
Slow the Hands of Time with Supplement Intervention
If it all sounds like too much hard work, there are a few fine food supplements which give good amounts of nutrients the body requires on a daily basis. Vibrant Health’s Maximum Vibrance is a great all-rounder, a wholesome combination of concentrated fruit, vegetables, algae and cereal grasses. Part alkalising greens powder, part protein/probiotic supplement, it’s packed with dense nutrition – vitamins, enzymes, flavonoids and bioactive plant substances. In fact, a single serving yields over 100% of your daily vitamin A, vitamin C, vitamin D3, vitamin E, vitamins B1/2/6/12 and selenium. 20g of clean plant protein – required for muscle maintenance and bone strength – is also supplied.
Whether through food, supplements or both, it’s possible to slow the hands of time – at least for a while. A sure step towards a healthier, younger-looking you is to eat right, hydrate properly and make exercise a staple of your routine. You’ll never look back.
1 https://www.water-for-health.co.uk/mct-oil.html
2 https://www.water-for-health.co.uk/unocardio-active-mind-vision-complex.html
3 https://www.water-for-health.co.uk/maximum-vibrance.html
In our next Expert Insight feature, we gain some thoughts into the energy sector in Canada. We hear from Rosa Twyman who is an energy regulatory lawyer and has exclusively practiced law in the energy industry since 2001.
You began your legal career in South Africa. What three major differences do you see in the way regulation is implemented in the energy industry in Canada?
There are great differences in the political and social systems, labour markets and where each country is located relative to the rest of the world. Canada’s political and social systems are mature and stable, and its labour is market highly educated. Geographically, Canada is in closer proximity and better connected to the United States and other major energy users. The rule of law is valued and upheld in Canada, to the extent that it can arguably be said to bog down approval of energy projects procedurally. South-Africa’s political and social systems remain unstable. Relative to the whole population, a smaller number of people are highly educated while South-Africa has also suffered a brain drain, because highly educated people have striven to find a safer environment to live in and provide for their families. South-Africa is less connected to larger consumption markets and is still known for corrupt practises, operating alongside formal requirements.
What kinds of firms do you mostly work with and what do they expect of you?
We represent energy industry clients in facility approvals. For example, large scale wind, electricity market rule development, and tolls and tariff matters on major pipeline infrastructure. The public interest informs many of the positions we take – developing energy resource and infrastructure in a responsible manner that results in net benefits when considering economic, environmental and social impacts.
How often to disputes in the energy sector resort to ADR in Canada, and in which cases is litigation absolutely unavoidable?
The matters we act on are in large part polycentric, involving many parties’ positions and interests. ADR does not play a major role in matters that require a balancing of so many different interests. What does happen is that in some instances parties are able to negotiate settlements and ask for subsequent regulatory approvals thereof and avoid litigation in this manner. In my experience, in the instances where ADR was used, it prolonged and complicated the proceedings since the focus shifted to procedural wrangling rather than dealing with the substantive issues.
As a leading expert in the field of oil & gas litigation, how would you advise firms best avoid litigation?
Regulatory proceedings are by nature forward looking. Clients obtain legal advice, not to win a legal proceeding, but to ultimately achieve an outcome or result that enables them to conduct their business. Working pro-actively with a client to identify regulatory risks, avoid them, mitigate them or somehow off-set potential negative impact(s) and therefore avoid or minimise a client having to tie up its resources both in time and money to use a legal process to achieve conducting its business, in my view, puts clients in the best possible position to do their “real” business.
What Supreme Court cases have you overseen throughout your career and how did you overcome the challenges therein?
I have acted on a matter related to an international transmission line. I loved doing the Supreme Court work. It may sound funny, but the most difficult part was summarising, within the page and word limits, five years of proceeding record and issues. As challenging as that was, it for sure forced getting to the relevant points. Page and word limits in all regulatory proceedings may help us focus better and think harder about what really matters.
Rosa Twyman
Legal Services and Business Director
403.930.7991
rosa.twyman@rlchambers.ca
www.regulatorylawchambers.ca
Rosa grew up in South Africa and was admitted to the South African Bar in 1997 starting her legal career as defence counsel in the South African criminal courts. Rosa moved to Calgary in 1999 and was admitted to the Alberta Bar in 2000. Rosa is an energy regulatory lawyer and has exclusively practiced law in the energy industry since 2001, first as commercial oil and gas litigation counsel, and then specializing as an energy regulatory lawyer in oil, gas and electricity matters.
In August 2008, Rosa Twyman founded the energy boutique regulatory law firm, Jeffrey, Twyman LLP Regulatory Law Chambers, with Paul Jeffrey, who was appointed as a Justice of the Court of Queen’s Bench in May 2009. The firm now carries on under the name Regulatory Law Chambers.
We speak with Nick Aitken about how forensic engineering has changed and how this has impacted the legal sector. He touches on changes in his field which have caused issues for clients, and the challenging nature of being an expert witness.
What common cases are you instructed on and how has this changed since you began practising?
I have been instructed on and also contributed to a wide range of cases, from small domestic fires resulting in minor injury to an individual, through to €100M cases involving the systematic failure of electrical equipment throughout Europe.
I tend to find myself involved in cases where either there has been a failure in a high-value asset, resulting in a loss of revenue and high repair or replacement costs, or there have been high numbers of failures of lower value consumer devices, or a small number of consumer device failures but the failure mode could cause serious injury or endanger life.
A recurring issue I get involved with is the environmental damage of equipment, and in these cases disputes have often arisen as a result of a lack of understanding of, or inappropriate reliance on, ingress protection ratings (IP ratings).
Another common theme is systematic circuit board failure and there is a long list of possible issues that lead to disputes including, but certainly not limited to: the supply of counterfeit components (I frequently find myself analysing components for evidence of them being counterfeits, or “second hand” recycled components); latent defects in electronic components where I still occasionally see the sort of “capacitor plague” issues that led to widespread computer failures at the beginning of the new millennium, incorrectly specified electronic components; deficient sub assembly manufacture.
In terms of recent trends in the type of cases we are engaged with at RINA, I have certainly seen an increase in the volume of work from the renewable energy sector. RINA provides consultancy and expert witness services following subsea cable failures, and as offshore wind has expanded so have the number of instances of very expensive subsea cable failures.
The reliability and availability of Datacentres services has always been critically important, and the rapid increase in data storage requirements in recent years appears has been accompanied to some extent by an increase in the number of failure issues analysed within RINA. For example, I have been involved in investigations into the premature failure of individual server power supplies, fire in data hall lighting units, through to power system analysis following the loss of supply to an entire site. Datacentres are extremely tightly controlled with highly resilient power supplies, but problems do still occur and as the amount of data society generates increases, so I expect to see more work from this sector.
Moreover, how has technology advancements impacted your sector?
I conduct forensic analysis work for clients from many sectors including military, aerospace, and automotive and information technology / consumer. There have been significant changes in electronics manufacture over the past 10 to 20 years including the globalisation of the supply chains, extensive use of sub-contracting and outsourcing in the manufacture process. This has certainly contributed to a dramatic fall in the cost, and aided the proliferation, of consumer electronics.
There is also much more supply chain mixing across sectors. Historically, electronic components for military, aerospace, automotive and consumer uses were supplied by component manufactures who were dedicated to those industry sectors. Today, however, component manufactures (broadly speaking) supply to all of these industries, and this is in part due to the enormous expansion of the consumer electronics market.
This means that for manufacturers in all sectors control over the components used in their products is diminished.
Bearing in mind these points, I would say that the way in which technology advancement has impacted the work I do, including in expert witness cases, is that the actual person or company responsible for the root cause of the failure may now be somewhere down a relatively convoluted supply chain, and the opportunity for substandard or counterfeit components to be incorporated into a manufacturers product has increased – something that is of particular concern to military and aerospace suppliers.
Another recurring issue is component miniaturisation and this is something that occurs whether or not a specific manufacturer actually needs smaller components. As electronic products are made smaller so the separation between electrical components is reduced – and this can increase the likelihood of electrical breakdown and short circuit failures.
In recent years I have seen an increase in the number of investigations we conduct into lithium ion battery failures and that probably reflects the sheer number in use and their increasing use in products other than mobile phones and laptops. Although these investigations have not been litigious so far, the potential for injury and fire following a violent lithium ion battery failure coupled with the enormous number of them that are in use, I think it is quite likely that we will see cases in the future.
What changes would you like to see that may help lessen cases you see at Court?
Thankfully the majority of the cases I have been involved with were civil and were able to be settled out of court. However, I believe companies need to adopt an all-encompassing approach to supply chain quality management that is embedded in their product design for reliability, availability and supportability.
What is the most challenging aspect of being an expert witness and how do you overcome this?
I’m often involved in cases where electrical systems and products have been damaged to some extent by heat or fire. This certainly presents a challenge in terms of analysing the remaining evidence, and definitive conclusions on the root cause of the failure can be difficult to draw, meaning a measured discussion on the balance of probabilities is required. I often find that assessing other similar equipment with a similar usage history is helpful in this respect, or conducting simulations to confirm a working hypothesis.
A key issue in the expert witness work I undertake is establishing or at least providing a reasoned expert opinion on whether the failure was due to deficient design, defective components, poor manufacturing quality, foreseeable user misuse, or unreasonable user misuse. I therefore need to test other examples of the product against the key clauses of the relevant product safety standards, and also establish whether the products were designed and tested against these standards in the first place – and that the appropriate certification and documentation for these tests exists.
Effective communication of technical details with the legal profession must be handled carefully, specifically with respect to being able to describe the electrical and materials science background to a complex failure accurately and precisely, but in a manner that is clearly understood and not misinterpreted by council. I find particular care needs to be paid to clarifications, follow up questions, and requests for modification to any preliminary report. The wording of the questions that I am asked to answer are often and in many ways understandably, designed to address and highlight aspects of the technical details of the failure that are supportive to one side of the argument, but in isolation may give a misleading impression of where blame lies.
Is there anything else you would like to add?
Many of the expert witness investigations I perform require multidisciplinary expertise, whether that is chemical expertise for contamination analysis, metallurgy expertise following corrosive or fatigue failures, electronics and electrical device expertise, power systems analysis expertise, or a strong understanding of manufacturing practice and regulatory requirements. I couldn’t perform the detailed investigative work that I do without the analytical laboratory capabilities we have within RINA, and the wide ranging expertise and experience of our consultants.
Nick Aitken MSc, CEng, MIET
RINA
nick.aitken@rina.org01372367366
I work as a consultant forensic engineer and expert witness within RINA primarily working on cases involving electrical and electronic failures in areas such as telecoms, consumer electronics, industrial installations and utilities. The majority of this work is concerned with civil claims following financial losses or injury, but we do get involved in some criminal cases.
RINA is a global corporation providing testing, inspection, certification and consulting solutions in the Energy, Marine, Certification, Transport & Infrastructure, and Industry sectors helping our clients to succeed in the most effective, safe and sustainable way.
“You may feel overwhelmed, frightened, but criminal charges call for action, not feelings. Even before the lower court judge decides to release you from jail, the first logical step is to hire a criminal defence lawyer. You need to find an attorney who handles your type of criminal case and is familiar with the local prosecutors and judges”, says Stephen Aarons.
Stephen has worked on an impressive amount of criminal law cases; he is especially renowned for representing clients facing the death penalty and high-profile murder cases. Stephen has strong opposing opinions towards to death penalty as he proudly explains his relief to when his state New Mexico finally abolished capital punishment.
Those outside of the legal industry often have predisposed notions towards those who defend accused murderers. Speaking to Stephen this month, he reminds us that there are several factors involved to which motivates him in his role, from ensuring the evidence presents facts and remaining true to the fact that capital punishment will not necessarily prevent murder. In this insightful interview, we learn about how Stephen has worked through notable cases and successfully defended hundreds of people in all areas of criminal law throughout the United States.
What are the first three things you consider when you take on a case involving murder?
I ask myself these three questions:
What has been the biggest lesson you have learnt since being admitted to the bar of US Supreme Court? What took you by surprise the most when you took on your first case under the Supreme Court?
Something which took me by surprise is that often the issues discussed in oral argument turn out to be very different from the final decision of the Court.
What is your ‘go-to’ approach for when you are reaching close to a dead-end in a case?
I will say that if I don’t believe in the case, if I am not buying the defence theory, I suspect the jury will never buy it either and I strongly recommend that we try and reach some plea agreement to minimise the exposure in terms of the length of imprisonment. As trial approaches, like most trial lawyers, I get into a trial psychosis where I believe in my case but when the jury says otherwise, I remind myself afterwards that, before trial, I was not buying it either.
What was the most challenging aspect of being defence counsel for death penalty cases?
Finding prospective jurors who can keep an open mind both about issues at the innocence/guilty phase and at the sentence phases, jurors who can stand up against community prejudice.
Can you share with Lawyer Monthly your stance now on the death penalty?
I was glad to see the state where I practice, New Mexico, abolish the death penalty just as I was happy to assist Governor Toney Anaya commute the sentences to life in prison of the five defendants who were then on death row in our state. The ascent of DNA as a powerful forensic too uncovered so many cases of innocent defendants found guilty. But what DNA really exposes is the imperfection in the criminal justice system, not only in cases where DNA can determine the identity of a suspect, but in cases where DNA evidence cannot provide an answer. Even in a perfect system, killing convicted killers to deter others from killing simply is nonsense. Life in prison is in many respects as harsh a punishment without all of the ethical dilemmas.
After New Mexico abolished the capital punishment, how did you witness crimes to change? Do you think substitutes for the death penalty amount to the same level as capital punishment?
Many people assume that the death penalty deters others from committing murder. Unfortunately, the evidence is uncontradicted that the death penalty has zero effect on future crimes. Those who commit murder are not thinking of consequences. When a person decides to commit a crime, he or she simply does not think in a rational way. He does not factor in the risk of death or life in prison.
People often scrutinise public defenders by asking: “How do you go about defending someone you know is guilty?”; when dealing with murder trials when the defendant claims they are guilty, how do you ensure they are given the best outcome of punishment?
When someone admits guilt, the job of the criminal defence lawyer has just begun. You collect extenuating and mitigating facts that may help negotiate a reasonable plea agreement and present those factors to the sentencing judge to call for a more lenient punishment before the judge as the sentence hearing, distinguishing this client and this case from more aggravated situations.
From this, using a past case (such as Robert Fry’s* trial), can you expand on how you ensure you remain neutral and disallow your personal beliefs decide the fate of your client?
There were several Fry murder trials. In the first case, which was handled by a public defender, he was sentenced to death and in the two which I tried, he received life sentences without the jury knowing about the first case. The job, in his case or any, does not call for neutrality but zealous advocacy for your client. My personal beliefs never got in the way in defending him, first because there is some evidence suggesting that the police dumped several unsolved homicides on him and second because I oppose the death penalty in all cases.
What further strains are on you when the media get involved with a case? Are there any further considerations you must make in these instances?
In many cases, I won't shy away from the media. Usually you can talk about the process, or the rule of law, without getting into the specifics of your case. I do not want a hostile jury panel before the case has begun, so we may discuss whatever has been produced in court at pre-trial motion hearings. Well-read jurors tend to be our best jurors, if they read things critically and do not accept everything said in the media. With that in mind, it is important for the media to present both sides of the story when there are two sides to tell.
What has been one case which was equally rewarding, as it was challenging?
I would say the Torreon Cabin Murder** case. Two young adults were shot in their cabin and the killer locked the front door so that two young boys died of dehydration. The police tried to pin the murders on a charismatic gang leader, Shaun Wilkins, and interrogated “Woody” Nieto, a mentally challenged gang member, to admit he drove to the cabin with Wilkins. The police assumed that the murder took place a couple of weeks before the bodies were found, and so did Nieto's statement.
The prosecution case imploded when an expert demonstrated that the bodies had been decomposing for five months, not two or three weeks. Wilkins had been sitting in a county jail when the murders actually took place. After a hung jury in the death penalty, the prosecution decided not to retry Wilkins and another defendant, and both were set free. Eventually the real killer was convicted on two counts of second degree murder.
What motivates you about your role?
I enjoy helping people in times of trouble. Many people are intrinsically good but committed a crime because of human frailty. A few, like Wilkins, are wrongfully accused. Whatever the situation, they need someone to help them walk through the legal process and reach the best possible result.
Notable Cases
In 2002, Aarons accepted a special NM Public Defender contract to represent Robert Fry, who had already been convicted in the death of Betty Lee, 36 from Shiprock, NM. Fry had received a death sentence for the Lee murder but was also facing first degree murder counts involving the 1996 fatal stabbings of 18-year-old Matthew Trecker and 25-year-old Joseph Fleming at a counter culture store in Farmington, NM, and throwing 40-year-old Donald Tsosie off a cliff in Navajo country. During a police interview, Fry implicated himself in the earlier crimes and gave detailed "theories" of how the crimes were carried out. Robert Fry was found guilty again in the Tsosie trial, and a third time in the Trecker and Fleming trial. Unlike the death sentence in Lee, the juries in Tsosia and Trecker/Fleming did not impose the death penalty. Despite New Mexico's abolition of capital punishment, Robert Fry and another man were grandfathered and, as a result, Fry remains on death row awaiting execution for the murder of Betty Lee.
In 1997 Aarons was hired to represent Shaun Wilkins, who was accused with three others in the 1995 murders of Ben Anaya Jr., 17, his girlfriend, Cassandra Sedillo, 23, and her two sons, Matthew Garcia, 3, and Johnny Ray Garcia, 4. The four were found dead in a cabin in April of 1996 in the Manzano Mountains near Torreon, New Mexico. The case against Wilkins was weak, the trial ended with a hung jury, and the district attorney eventually declined to retry the case. In 2002 Wilkins and co-defendant Roy Buchner hired civil rights attorney Ray Twohig to file a lawsuit against police for malicious prosecution in the Torreon case. In January 2011 a federal jury declined to award damages to them. Two other defendants were found guilty; Lawrence Nieto was convicted before the Wilkins trial and was originally sentenced to 130 years in prison. Errors in the prosecution caused Nieto's conviction to be overturned, and before Nieto's retrial he brokered a plea agreement involving a 39-year sentence. NM Corrections officials have twice mistakenly released Nieto.
LANL Security Breach
The family of Jessica Quintana hired Aarons in 2006 to represent her for sneaking classified documents out of the Los Alamos National Laboratory (LANL). Hired right out of high school, Quintana could not finish her work before the contract deadline and decided to take some of the classified work home; she walked unchallenged into her top-secret vault and downloaded information onto a computer flash drive. She also removed 228 pages of classified documents about underground nuclear weapons tests in the 1970s, and took the material home. The case received international attention from the media including a special report by CBS Evening News, a front-page article in Newsweek, and articles in the London Times and the Washington Post. As soon as Aarons brokered a plea bargain with the Department of Justice, Quintana pled guilty to one misdemeanour, received one year of supervised release, and cooperated fully with FBI investigators.
Stephen D Aarons
Aarons Law Firm PC
311 Montezuma Ave
Santa Fé NM 87501-3603
(505) 984-1100; (fax) 984-1110
www.aarons.org
Since 1980, Stephen Aarons has successfully defended hundreds of people in all areas of criminal law throughout the United States and on active military duty in Europe. He started his New Mexico practice in 1985 and has represented countless defendants accused of assault and battery, domestic violence, driving while intoxicated (DUI), drug trafficking, murder, to name the more common charges, in both state and Federal court. Aarons is an active member in good standing of the New Mexico and Missouri State bar associations, and has been a member of the bar of the United States Supreme Court since 1983. In 1993, Aarons received an AV rating from Martindale-Hubbell, and holds the highest possible ratings from Avvo, Superlawyers, and the National Trial Lawyers Association (USA).
Contact my office if you or someone you know needs a criminal defence lawyer from New Mexico. For cases outside the Santa Fe Espanola Los Alamos region, I limit my cases to federal and state cases involving serious felony charges. After hours, our 24-hour answering service will text my cellphone and I will return your call at my earliest opportunity. Like many criminal defence lawyers, I offer a free consultation either by phone or, preferably, in person. We will discuss the facts of your case, your background and my impression of how your case might go. I will tell you how much I would charge if you hired me, and we will discuss how much time you will need to pay in full. As for the outcome, no lawyer can guarantee a result. There are many others involved in your criminal case: judges, prosecutors, alleged victims, and police officers. Each can influence how the case proceeds. Your criminal history has a bearing too. I have been practicing criminal law since 1980, and criminal defence throughout New Mexico since 1985, so I bring decades of experience to our discussion. Experience is not the same as having a crystal ball to tell the future, but perhaps it is the next best thing. I am happy to consult with you and, if you decided to hire me, I would be honoured.
The best criminal defence lawyer for your case is the one who will work hard, applying his experience and skills toward the best possible result. Nobody can guarantee a result, but I offer all my efforts to achieve the best result possible in your case. You should expect no less.
