Ride The Lightning

Trial Presentation of E-Evidence Using Interactive Whiteboards

Our most recent Digital Detectives podcast from Legal Talk Network includes an interview with Judy Miller, the President SmartCourt Consulting about the use of interactive whiteboards at trial and in law firms. We discuss why the courts and legal community are interested in new technology pertaining to the integration and presentation of digital media, the newest innovations being used for trial presentations and how judges, jurors and litigators are embracing this technology.

New to us were some of the law firm uses of this technology. If you haven't looked at whiteboard technology in a while, you might be surprised at how far it has come.

E-mail: snelson@senseient.com   Phone: 703-359-0700

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E-Discovery Extortion

In response to my last post about Ralph Losey's keynote thoughts in Salt Lake City, I received a thoughtful comment from lawyer Jill McIntyre of Jackson Kelly. She wrote:

Lawyers may unintentionally become e-discovery extortionists through efforts to vigorously represent their clients. We know of a “more senior” local lawyer (Lawyer A) who hired a young, local consultant (Lawyer B) to help discover a case against a large corporation. Lawyer B’s role, apparently, was to ferret out every place in which electronic evidence might be found. But Lawyer A, who did not know how properly to inquire about the corporation’s information systems or to identify key players in the case, had no idea how onerous her hold and production demands were. When challenged for overreaching, she was offended and flummoxed, convinced she had done all the right things by hiring a consulting expert.

Counsel of record must not permit an e-discovery consultant to usurp his or her role, which includes an obligation to assess proportionality. The disconnect remains, not only between lawyers and IT specialists but also among lawyers. Older or tech-averse litigators who are going to rely on other lawyers to shepherd their e-discovery efforts must at least understand what they do not know.

Thanks for writing Jill. I do think ignorance is often at the root of some of the most absurd e-discovery requests. And that just underscores the need for lawyers to get educated about what they do not know!

E-mail: snelson@senseient.com   Phone: 703-359-0700

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Ralph Losey on the Evolving World of E-Discovery

It was our pleasure last week to attend the Intermountain E-Discovery Conference 2011 and to offer the afternoon keynote. Thanks to Orange Legal Technologies for a wonderful conference and for the honor of being asked to present.

We especially enjoyed Ralph Losey's morning keynote as he thoughtfully examined the state of e-discovery today and its ever-changing nature. Ralph is of course an e-discovery expert, along with being an author, a noted lecturer and (happily) our frend.

He talked about the fact that we have TMI (too much information for the unintiated) - not of the personal kind, but just too doggone much data. We seem to be doubling the amount of data in the world every year and a half. As he also noted, only 2% of cases go to trial - making lawyers more e-disovery practitioners than trial litigators - who would have imagined this 20 years ago?

Ralph is disturbed at how much trouble we have had forming e-disovery teams (not coincidentally the name of his blog). Lawyers, IT specialists and management simply aren't working well together. He emphasized the need for cooperation and transparency. Transparency for Ralph means "aggressive disclosure" - a term of art we hadn't heard before.

Another new term (to us) was "e-discovery extortion" where one party tries to overwhelm the other with requests for so much data that the other side becomes inclined to settle rather than to incur the costs of the discovery. Certainly not desirable, but we too see this all the time.

Thanks Ralph, for the enlightening remarks - and for agreeing to be our guest on an upcoming edition of our Legal Talk Network Digital Detectives podcast on the subject of controversial issues in e-discovery - should be fun - I'll certainly let my readers know when it is posted.

E-mail: snelson@senseient.com   Phone: 703-359-0700

www.senseient.com

http://twitter.com/sharonnelsonesq

More on the Prevention of E-mail Imprudence

Another note from the mailbag from attorney Casey Horne in response to my recent post about the effect that e-mail has had on eroding professional civility.

"I have never, ever, even a little bit, regreted material taken out of an e-mail prior to sending.

I usually delete more than one-half of my riposte (counter-attack) emails; often I don't send them at all.  Some of my better writing still floats in the ethereal world of the "delete" galaxy.  Hopefully it will never be found. 

 

Great lines for a cage bar, however . . . (the kind in the movies where the chicken wire protects the comic from the patrons - although some attorneys do seem to be members).

 

I've also moved the "reply all" button to the other side of the tool bar."

 

Casey

 

Kelso C. Horne, Jr.
Horne & Horne, P.C.
Post Office Box 37
215 Morrison Moore Pkwy E
Dahlonega, Georgia 30533
706-864-7303 voice
706-265-9391 cell
khorne@horne-horne.com

Yes, Casey, I too have some wonderful literary salvos that died in draft form - as well they should have. :-)

E-mail: snelson@senseient.com   Phone: 703-359-0700

www.senseient.com

http://twitter.com/sharonnelsonesq

Nextpoint's Cloud Preservation: Preserving Social Media

Last week, we were treated to a demo of Nextpoint's Cloud Preservation software which is an excellent tool for preserving social media data. Our chief guide for the tour was Katie Rucker who can be reached at krucker@nextpoint.com if any readers would like a demo.

Cloud Preservation is user-friendly with intuitive navigation and an astonishing breadth of capabilities - we were impressed with its abilities - and its pricing. You can archive five feeds with 10 GB of storage for just $49 per month - and there is a free 14 day trial.

Hat tip to colleague and friend Rob Robinson for suggesting that we take this test drive. By the way, Rob's company, Orange Legal Technologies, will be hosting the Intermountain eDiscovery Conference 2011 this Thursday, with Ralph Losey as the opening keynoter and John and I as the closing keynoters. Hope to see you there - it looks like a superb program - and as an added bonus, Katie Rucker from Nextpoint will be there so we'll have the chance to thank her in person for the Cloud Preservation demo.

Our topic is certainly related to her product - the title of our keynote is "Firestorm! Social Media in E-Discovery."

E-mail: snelson@senseient.com   Phone: 703-359-0700

www.senseient.com

http://twitter.com/sharonnelsonesq

 

E-mail and the Lack of Civility Among Lawyers

Colleague Fred Kruck sent me the following e-mail in response to my last post about warring lawyers who need remedial education in professional civility.

Sharon,
 
            IMHO your RTL was right on track. Count to 10, go to Starbucks, whatever – they take the place of an “old-fashioned” procedure of writing letters.
            In other words, email has greatly contributed to the lack of civility. In times past, my assistant would type up whatever I ranted about; by the time the draft came back to me, I could show the letter to Ed (Matricardi – my partner / mentor) and over the hours my emotions would settle down. Now, I type it, hit send, and off it goes while I am still pissed off. Letters gave us time for reflection – but unless controls are put into place; email causes us to respond too quickly…
 
Cheers!
Fred

Thanks for writing Fred - and your note inspired me to share a couple of tricks that I use.

First, I never hit send without taking my hands off the keyboard. This gives me time to make sure I'm sending the doggone thing to the right people, to proof the content (and far too many lawyers don't) and to consider whether my words convey what I mean them to convey.

Second, if I am responding to something that's made me angry, I will often draft a response but remove the "to" name so I have no chance of accidentally hitting "send" while drafting. Unlike my usual practice, I will then print out the draft e-mail and give it to my partner John to review, very much in the old-fashioned way you describe with your partner. This takes time, but it settles me down and gives me John's sound advice if I've gone off course - he'll pencil in any suggestions. We don't do this often, but when we do, it's always an extreme case - and it keeps me from doing something monumentally stupid while I'm busy reacting to inflammatory words rather than thinking of the appropriate and temperate response.

As you might imagine, the draft can be highly entertaining - but the finished product is always that of a prudent professional.

E-mail: snelson@senseient.com   Phone: 703-359-0700

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http://twitter.com/sharonnelsonesq

Kindergarten Parties in Civility Needed for Warring Lawyers?

Recently, a couple of judges have provided entertaining fodder for the legal press.

A federal judge in Austin ordered squabbling attorneys to a kindergarten party in his courtroom to learn about civility. The combatants, undoubtedly not happy with the public relations disaster, not only settled their differences, but the underlying case as well. The party was thereupon canceled.

Delaware Superior Court Judge Peggy Ableman also blew a gasket, writing a stern letter to warring counsel in an asbestos litigation case - she ordered them to attend a mandatory civility course on the Sunday of Labor Day weekend. She instructed the lawyers to "bring sleeping bags, toothbrushes, teddy bears and jammies" noting in a footnote that this would be appropriate attire given "the childish level to which this litigation has stooped."

Is it really this bad? Are attorneys truly this childish? Well . . .  we've certainly seen a lot of lawyers who behave badly or childishly, and who seem completely oblivious to professional civility. We have been on phone calls and in meetings with outrageous displays of temper, obscene language and threats. While these experiences are not common, they happen often enough that I sometimes despair and fear that professional courtesy has gone the way of the typewriter.

In more than 30 years of practicing law, I have certainly been angry from time to time with opposing counsel for the kind of conduct described above. But I have always governed my tongue, mindful of the civility that is expected of attorneys. In the last decade or two, it seems as though that civility has eroded - I am somehow convinced that the electronic era and its temptation to react immediately - and often badly - has been at least one factor in this erosion.

In Virginia, we have taken this trend very seriously and now have a mandatory course in professionalism. It's a good step, but this step and the actions of the judges described above can only go so far. Hopefully, lawyers will remember the sage advice of long ago and count to ten before saying something unfortunate. Or, in more modern parlance, take a walk to the nearest Starbucks and get a latte - when you return to the office, you are much less likely to write or utter something foolish.

E-mail: snelson@senseient.com   Phone: 703-359-0700

www.senseient.com

http://twitter.com/sharonnelsonesq