“Drones are coming. Lots of them. They are fun and useful. But their ability to pry, spy, crash, and drop things poses real risks. Free-for-all drone use threatens air traffic, people and things on the ground, and even national security.” 1
Several industries are using unmanned aircraft systems, popularly known as drones, to support their business activities. Construction managers and surveyors use drones and specialized software to map construction sites,2 railroad and pipeline routes, and to monitor construction activities. Agricultural interests use drones to monitor crops for disease and adequate irrigation and also to apply insecticides and fertilizers. Realtors regularly use drones to enhance marketing of properties. Insurance adjusters and inspectors use them to investigate damage and to ascertain continued compliance with safety standards. They have become a regular tool of television stations supplementing ground-based and helicopter coverage of news stories. As the Federal Aviation Administration (FAA) gradually develops regulatory criteria for beyond-line-of-sight use, drones are taking on bigger roles in the inspection of pipelines, electric transmission lines, and railroads. Law enforcement agencies regularly use them for surveillance, hot pursuit, search and rescue, and monitoring riots and demonstrations.3 E-commerce vendors continue to work on package delivery drone systems. For lawyers, drones not only facilitate certain law-practice activities, but they also involve operators who need legal counseling and representation.
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The typical civilian drone is a quadcopter powered by rechargeable lithium-ion batteries, weighing about three pounds, costing from $600 to $12,000 depending mostly on camera quality and flexibility. A quadcopter has four rotors and flies more or less like a helicopter, able to hover, take off and land vertically, and maneuver sideways and backwards as well as forward. The Chinese firm DJI controls 70 percent of the market for small quadcopters with its Mini, Air, Mavic, and Inspire models.4 None of these vehicles of this class has endurance greater than 35 or 40 minutes, a characteristic that constrains their utility for some applications. Their top speeds rarely exceed 30 or 40 knots and their ceilings (maximum altitude) are around 1,000 feet above ground level. A few more expensive models, costing tens of thousands of dollars, are marketed for specialized functions requiring greater endurance and range. They typically are fixed wing configurations.
All of the commercially useful models carry high-quality cameras, as good as or better than the latest iPhone camera, and sophisticated control and navigation electronics that permit them to hover in place, orbit around a target selected by the operator, and return on command to a spot defined by longitude and latitude coordinates recorded when they take off.
They are flown by an operator standing on the ground using a small console with a video screen and joysticks. Higher end models also can follow an object selected by tapping on the operator screen and perform other maneuvers likely to produce captivating video. Full-motion video of HD quality and still images can be streamed in flight and/or saved on a memory chip. They typically use unlicensed frequency bands such as Wi-Fi for both the control link and for video feed. They know where they are over the ground by integrating inputs from GPS and photographic sensors.
Drone Law
Regulations promulgated by the FAA govern drone operation. They are contained primarily in Part 107 of the Federal Aviation Regulations,5 supplemented by Part 48 relating to registration of aircraft.6
Part 107 covers small drones—those weighing more than 0.55 pounds and less than 55 pounds. These “UAS,” as the FAA calls them, must be registered,7 and may be flown only by persons having remote pilot certificates.8 Remote pilot certificates are issued to persons who pass an online test of relevant aeronautical, regulatory, and meteorological knowledge. The test is roughly equivalent to a private pilot test, though considerably easier.
Drones may be flown only within the line of sight of the operator or a separate observer communicating with the operator9 and can be flown at night only if they have anti-collision lighting systems.10 They may not be flown over people unless they meet certain design requirements11 and may not be flown higher than 400 feet above ground level.12 Special limitations apply to operations near airports.13 Recreational, as opposed to commercial, drone operations by drones weighing less than 0.55 pounds are subject to a more lenient set of registration and pilot-licensing rules.14
Interested in learning more about the use of technology and artificial intelligence? Stay in touch for updates and check out ALI CLE’s webcast, Smart Contracts? Using Generative AI for Legal Drafting, on September 19, 2024!
The FAA is still developing its regulations for operations beyond line of visual sight (BVLOS). Such operations are believed to be safe only if conducted within a comprehensive radio-controlled airspace management system: an “Unmanned Aircraft System Traffic Management (UTM) system.” UAS operators would be responsible for managing their operations safely within UTM constraints. Communication and coordination would occur through a “distributed network of highly automated systems via application programming interfaces (API), and not between pilots and air traffic controllers via voice.”15 The FAA’s Aviation Rulemaking Committee released its final report on BVLOS operations by drones on May 10, 2022.16 The agency published a Request for Comments in the Federal Register on May 25, 2023.17 The Federal Communications Commission (FCC) has proposed to open the 5030-5091 MHz band for communications associated with drone airspace management.18
To facilitate migration of drones into the National Airspace System, the FAA requires that all drones that operate after September 2023 be equipped with specialized transponders similar to, but different from, the ADS-B transponders already required on most manned aircraft.19 The drone transponders must broadcast drone identification and position information at one-second intervals. These signals are expected to be received and processed by a collection of private sector airspace management entities certified by the FAA.20
Airworthiness certification is required for drones weighing more than 55 pounds, automated fleet operations, drone flight beyond the range of visual line of sight, or sustained flight over people. Airworthiness certification is an elaborate process requiring testing and FAA approval of design and performance details,21 although the agency is offering streamlined airworthiness approval for some complete drone systems.22
State and local regulation is preempted except when it relates to traditional tort categories or unique local conditions.23 Nevertheless, attempts by municipalities are common. States are preempted from regulating aviation activities in the national airspace because the United States Congress has occupied the regulation of national airspace field. Uncertainty persists, however, on the lower limits of federal airspace.24
The FAA has issued guidance on preemption.25 Preempted state laws include regulations: (i) restricting flight altitudes or flight paths in order to protect the safety of individuals and property on the ground or aircraft passengers; (ii) designating “highways” or “routes” for UAS; (iii) regulating the selling or leasing UAS-related air rights above roadways; (iv) establishing a licensing scheme for UAS pilots; and (v) mandating safety-related equipment such as geo-fencing.
CLICK HERE to read the full article, which was originally published in ALI CLE’s The Practical Lawyer.
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“Plans are worthless, but planning is everything.”
Dwight D. Eisenhower
Although representation in transactional work differs from being counsel in a claim or litigation, my experience as an advocate, mediator, and arbitrator has enabled me to recognize the commonalities between, and core skills inherent in, both forms of representation. There are, nevertheless, fundamental differences that often dictate strategy and tactics unique to the type of practice or matter.
Legal claims are subject to the jurisdiction of some tribunal where there is ultimately a procedure and a third party authorized to impose an answer or resolution to break any impasse. Claims subject to litigation almost exclusively focus on past transactions or behavior. An aggrieved party, including the state and the victim in criminal matters, must state a cognizable claim in a formulaic manner so that it is properly ushered through the litigation process. Procedural law and the maneuvering of counsel may be more determinative of outcome than the substantive law. When negotiations fail on a procedural matter, there is a well-understood path to follow for recourse. Many negotiations over process end with “I’ll see you in court” rather than in amicable resolution. There is no requirement that you persuade opposing counsel of anything during the course of the matter.
Transactional lawyers, however, operate entirely without the benefit of an external authority to resolve conflict or break an impasse. The art of the deal is an apt description since transactions, like art, can be primitive, simple, complex, abstract, layered, textured, and multi dimensional, using a wide range of materials, techniques, shapes, and sizes. When at an impasse in the formation of a deal, transactional lawyers have only one “best alternative” to a negotiated agreement: Walk away. It is often simply a case of deal or no deal. Your client has lived without the deal and can continue to live without it. A bad deal can lead to ruin. The most difficult part for the client may be to abandon the sunken costs, including your fee, and move on. Best practice for transactional lawyers is to immunize the client up front to the possibility of the deal being killed because of a failure to reach acceptable economic terms or risks within client and lawyer tolerances.
At its core, transactional lawyering is a cycle of obtaining and analyzing information, deciding, and then attempting to persuade. The final phase of documenting the deal is in creating the language that expresses the intent of the parties while allocating risk of future contingencies and events, especially defaults on the contract.
In short, litigators live past narratives while transactional lawyers venture into the unknown future. Despite these opposing orientations, there are common ways and means to achieve effective bargaining outcomes. This article will address the preparation and self-control necessary for sound decisions and effective communication in negotiating a transaction or resolution of a case.
Negotiating with opposing counsel is often analogized to warfare in that there is significant preparation, reconnaissance, marshalling of resources, foray, propaganda, concession, minor exchange and inconclusive engagement, and, at times, an epic battle that turns the tide one way or the other. The lawyer-warriors generally engage with words, pictures, or avoidance. Silence, or ignoring an opponent, is a form of communication and a position. Words are transmitted orally, electronically (videos, tweets, emails, texts), or in the more traditional way: by letter and document.
Oral communications may be by telephone, voice message, video, face-to-face meetings or through an intermediary. A typical claim or transaction often involves most (if not all) of these forms of communication, although most lawyers prefer the basic telephone call over Skype or other visual electronic engagement. I have yet to have a lawyer during a call say, “Hey, let’s FaceTime!” My take on this is that most lawyers prefer to remain unseen for a variety of reasons, including not having to be constantly on guard and having the freedom to think and talk in private.
CLICK HERE to read the full article, which was originally published in ALI CLE’s The Practical Real Estate Lawyer.
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Artificial intelligence (AI) has sparked a transformative revolution in the legal profession and how attorneys approach their tasks. The emergence of devices like the iPad has facilitated this paradigm shift, acting as a catalyst for incorporating AI into various legal processes. This harmonious blend of cutting-edge technology and legal expertise presents a dynamic opportunity to streamline tasks, enhance research capabilities, and reshape the legal practice landscape.1 In this article, the authors will explore some of the more useful iPad applications for litigators, delve into crafting and employing a Virtual Trial Notebook, and provide strategies for efficiently organizing evidence for analysis and presentation.
At its core, AI encompasses hardware and software applications that empower computers “to determine relationships between datasets and apply the learned relationships in a predictive fashion.”2 The software collects background information about a problem “through sensors or human input,” compares that to the accumulated data, and decodes that information using the previously collected materials.3 The approach evaluates multiple scenarios to anticipate the most effective action, drawing from the information collected.4 However, the effectiveness of this methodology is limited by the scope of the available data.5
THE TRANSFORMATIVE IMPACTOF AI ON LAW PRACTICESOF AI ON LAW PRACTICES
AI has swept across various sectors, and the legal profession is no exception. A recent Goldman Sachs analysis estimated that 44 percent of legal tasks can be effortlessly automated by AI, enhancing attorneys’ efficiency and cost-effectiveness.6 This technology doesn’t replace lawyers; it amplifies their specialized knowledge, creating opportunities for heightened productivity.7
The benefits of AI extend to refining legal research through natural language processing, streamlining document review and drafting, predicting case outcomes using data analysis, and improving access to justice.8
Among the notable tools in the AI arsenal, Chat-GPT stands out as a breakthrough that signifies the fusion of AI and legal practice.9 Developed by OpenAI, ChatGPT generates human-like responses to natural language questions, boasting the capacity to comprehend and promptly address various inquiries.10 Its prowess extends to document generation, solidifying its status as a pivotal AI innovation.11 While ChatGPT has garnered well-deserved acclaim, the iPad is another technological marvel that has remained somewhat in the shadows within legal circles.12 However, the arrival of this tablet computer has generated awareness among attorneys seeking to be more efficient and tech-savvy.13
The iPad has emerged as the preferred tablet among legal professionals, offering a versatile blend of computational power, portability, and user-friendly features.14 Its intuitive touchscreen interface empowers users to navigate and interact with the device through simple finger movements. It comprises a central processing unit with accompanying memory, display, and camera.15 Apple’s iPadOS mobile operating system powers it and has Wi-Fi and Bluetooth abilities.16 With models that range from the basic iPad to the more advanced iPad Air and iPad Pro, it caters to diverse needs and boasts a plethora of applications that effectively serve the needs of lawyers.17
EVOLUTION OF COURTROOM PRESENTATIONS
The approach to presenting evidence has recently shifted from analog methods to digital solutions.18 The courtroom landscape now embraces computer devices, and seasoned attorneys are transitioning from blackboard to digital presentations. This evolution has given birth to various tools for producing impactful digital representations. Contemporary trial lawyers have a large array of data supporting the convincing power of demonstrative evidence. At the same time, they have access to a wide variety of cutting-edge tools for producing notable digital presentations that, a short time ago, were limited to use by digital and video specialists.19
The iPad possesses the potential to revolutionize trial presentations, empowering lawyers to meticulously organize, annotate, and exhibit evidence during trial proceedings.20 Additionally, it enables attorneys to carry their entire case portfolio via cloud-based platforms like Dropbox.21 Surprisingly, statistics show that while attorneys frequently bring tablets into courtrooms, their usage often mimics large smartphones. Attorneys utilize tablets to check their email (23.7 percent), view their calendar (16.5 percent), conduct legal research (15.5 percent), and communicate in real-time (12.4 percent).22 Only 13.4 percent of the time was the device used to access important documents, and just 12.4 percent was used to deliver presentations.23 However, the iPad’s full potential for evidence management and presentation remains largely untapped, possibly due to traditional reluctance towards adopting new technology or misconceptions about its applications being limited to entertainment.24
It is worth noting that about 87 percent of law firms use a Microsoft Windows operating system, while only 13 percent use an iOS or Apple platform.25 Many law firms may be hesitant to adopt an Apple-based ecosystem for litigation as they have a misconception that Windows and Apple IOS cannot be used in tandem. Perhaps some legal professionals don’t know how to use both platforms together effectively and are unaware of the benefits of using an iPad to its full potential. As a result, they might not see the value in considering a new way of preparing and trying cases.
Lawyers have historically been cautious about investing in new software. They prefer user-friendly operating systems that can be implemented without additional training. The COVID-19 pandemic, however, significantly changed the legal landscape, and many lawyers are investigating how technology can improve their advocacy. In particular, the iPad and its apps offer features and a touchscreen interface that can replace a laptop for courtroom use.26 The touchscreen enables litigators to quickly access important information such as case law, documents, photos, and videos, essential in a fast-paced courtroom setting.27
The iPad’s smooth and stylish design, like an electronic legal pad, easy-to-use operating system, and a vast selection of productive apps make it an excellent choice for lawyers. Attorneys analyze, organize, strategize, and present evidence to support their cases. If these fundamental tasks can be aided by technology and accomplished quickly, efficiently, and cost-effectively, it offers a significant advantage for lawyers. It not only levels the playing field for small firms competing against larger ones, but if used correctly, it can provide an essential competitive edge.28
CLICK HERE to read the full article, which was originally published in ALI CLE’s The Practical Lawyer.
To find our more about ALI CLE’s in-person courses or webcasts, or to check out on-demand CLE, click here.
This spring, the U.S. EPA released a number of significant final rules utilizing the CERCLA and RCRA statutes to curb the impact of PFAS.
In early July, the final rule designating PFOA and PFOS as “hazardous substances” under the CERCLA will go into effect. As the first time the EPA has directly designated any substance as a hazardous substance under its CERCLA 102(a) authority, it is expected to have immediate and significant impacts across industries and provide the EPA with additional data on PFAS through increased reporting and information gathering authorities, address and clean up PFAS contamination, and shift costs for addressing releases to private parties.
Join us in Washington, D.C., for ALI CLE’s upcoming program, Clean Water Act 2024: Law and Regulation. Attend in-person or live via webcast on October 17-18, 2024. Learn more about the program and stay in touch for program updates here!
In addition:
The EPA simultaneously issued a policy outlining how it would use its CERCLA enforcement discretion and settlement authority to shield those entities as much as possible from CERCLA liability.
Nine particular PFAS compounds have also been proposed as hazardous constituents under RCRA with the hope of addressing PFAS contamination under the RCRA cleanup program.
Maximum Contaminant Levels (MCLs) for PFAS were set under the Safe Drinking Water Act, giving public water systems three years to comply with monitoring requirements and then begin reporting the results.
These final rules, in addition to ongoing enforcement actions, clean ups, and related litigation in this space, as well as the Supreme Court’s end-of-term decisions in the Loper Bright/Relentless, Corner Post, and Jarkesy cases, makes for a lot of change.
Join our panel of practitioners and current and former government attorneys to learn more about these major final rules, as well as ongoing enforcement actions, clean ups, and related litigation in this space. Topics to be addressed include:
Recent developments in CERCLA, including the Jan. 2024 EPA guidance on lead in soil at CERCLA sites, what it addresses, and what it does not address
PFAS as a “Hazardous Substance,” including the recent regulatory developments establishing certain PFAS as CERCLA hazardous substances; establishing a drinking water MCL for certain PFAS; and the practical outlook for site clean-ups and liability, including EPA plans and guidance for PFAS review and enforcement under CERCLA
RCRA regulations identifying certain PFAS as “hazardous constituents,” the five features of RCRA enforcement, and the latest RCRA cases
How the Supreme Court’s decisions in Loper Bright/Relentless, Corner Post, and Jarkesy impact these regulatory initiatives and pending litigation
Case studies and lessons learned from sediment site clean-ups, remedies and objectives for complex sediment sites under CERCLA and RCRA frameworks, and the effects of EPA acceptance of interim remedial actions
Expand your knowledge and fluency with the latest EPA standards and actions in CERCLA and RCRA regulation and enforcement and their ties to PFAS.
Register now for an in-depth discussion and practical insights on these significant developments from leading experts in the field.
Stay tuned for our upcoming program, Environmental Law 2025, either in person or via live webcast on February 20-21, 2025! To stay connected and get the latest updates for this program, click here.
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The 2023-24 Supreme Court term has been one of significance in the world of property rights. Two unanimous cases in particular directly addressed takings: Sheetz v. County of El Dorado, 601 U.S. (2024) (holding that the Fifth Amendment’s takings clause does not distinguish between legislative and administrative land-use permit conditions) and DeVillier v. Texas, 601 U.S. (2024) (holding that property owners adversely affected by a flood evacuation barrier should be permitted on remand to pursue their takings clause claims through the cause of action available under Texas law).
Check out this webcast to better understand the importance of these decisions, as well as other property issues in the Court this year and what these cases mean for your practice.
Join us in San Diego, CA, in 2025 for ALI CLE’s upcoming program, Eminent Domain and Land Valuation Litigation 2025. Attend in-person or live via webcast on January 30-February 1, 2025. Learn more about the program and stay in touch for program updates here!
Featuring a faculty composed of the property owners’ lawyers in DeVillier and Sheetz as well as a distinguished law professor, this program will examine:
What the Supreme Court decided – and avoided deciding – in Sheetz and DeVillier
Why the concurring opinions are important
What these decisions may tell us about the Supreme Court’s direction in eminent domain and property law
Which issues remain for resolution
Join us for an enlightening discussion and get an inside look at these significant decisions and how they will apply to your practice.
Register now and explore how these decisions may impact takings and property law, now and into the future!
