Studeo Legal

Hyperlinked Electronic Briefs – An Effective Legal Strategy

While most people understand the mechanics of what a hyperlink does from their familiarity with the Internet (it creates an instant way to access referenced or related information), their use in the legal market to submit documents to the court as hyperlinked EBriefs is still a growth industry.  As an EBrief proponent and provider, questions that I am asked by prospective clients fall into two major categories.  The first issue that everyone is concerned about is cost, and the second issue is usually related to utility and acceptance by the courts. 

After being involved with EBrief creation for over 12 years, I believe that the proper issue to focus on is the advantage that an EBrief offers a client.  Once the advantages are understood, the question of cost usually moves way down the list of considerations. While I recognize that cost is always a factor, winning a case is far more important.  The key issue surrounding cost is that the cost continues to drop as the technology and service improves.   The cost to create a hyperlinked EBrief today is less than 40% of what it was five years ago and turn around time is generally less than two-three days (and often overnight), so these factors are becoming less important in the final decision making.  Additionally, EBriefs are now accepted in virtually all Federal courts and dozens of state courts, with the formal acceptance level increasing every month.
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Therefore, I believe that the most important focus should be, “What is the advantage of submitting a brief to the court?”  The underlying question is really, “how can an EBrief help me win my argument?”  With this as the basic premise, understanding some of the advantages of using EBrief technology will be explored in this posting.

Advantages of Implementing a Hyperlinked EBrief Strategy

1. Information is accessible instantly – Perhaps the most obvious advantage is that hyperlinks present information in the manner that we have all become accustomed to receiving it, instantaneously.  In a hyperlinked format, every supplemental document and point of law can be immediately accessed by the reader, without any delay in looking up the relevant material in a case book or digging though a box of exhibits.  Questions of interpretation are addressed while the question is still fresh in someone’s mind.  Especially when the record is voluminous, adding hyperlinks to citations and exhibits enables the judge to access the material quickly, without becoming distracted form the argument while looking for the reference in a hardcopy format.  Hyperlinks can focus the judge’s attention where you want it, on your argument, eliminating external distractions.

2. Presentation of difficult to present evidentiary material – The limitations of a paper submission make it difficult to present non-traditional forms of evidence, such as videotaped depositions. Traditionally, deposition testimony is presented to the court as a hardcopy text file translation of the testimony, to be read by the court.  The widespread availability of videotaped depositions allows the court to view the testimony in its entirety, with all the inflections and body language that accompany it.  Video can present a different impression to the judge that may impact their understanding of the testimony.  A cautionary note is important here.  Make sure that the evidence you are presenting strengthens your evidentiary or legal point and is not just an appeal to the courts emotions.  Presenting to the judge is different than presenting to the jury.

3. Planning for videotaped depositions - Given the advantage of presenting multimedia within your brief, it is important that you develop a legal strategy to support that plan.  Since not all litigation matters can support the extra cost of videotaping all depositions, it is important to plan ahead.  The identification of witnesses whose demeanor and conduct would be beneficial to your case should trigger the decision to have that witness’s deposition be videotaped for potential use in the hyperlinked EBrief.  This preserves your ability to use the material as you move forward.

4. Inclusion of demonstrative evidence – Certain types of cases and expert testimony benefit greatly from the creation of animated simulations or reconstructions to simplify complex problems.  This might include things such as accident recreations, patent modeling or even the presentation of evidence using charts, PowerPoint presentations or other graphical representations.  These are effectively used during the trial portion of the case and can be just as effectively integrated into the briefing portion by utilizing the advantages of an EBrief presentation, making them instantly available for review and re-review.  The power of visual evidence that accompanies the written word is far superior to the written word on its own.

5. Changing the written presentation of your brief - I have spoken with a number of practitioners who say that they have changed their style of writing to better accommodate the advantages of the EBrief presentation model.  Since EBriefs allow you to more easily focus the attention of the judge on specific pieces of evidence, you can more easily change your written presentation to emphasize certain material repeatedly. Creatively presenting your key piece(s) of evidence in several different scenarios improves the chances that the judge will access at least one of them and consider the direct evidence that you feel is most important for your case. 

 

The Changing Legal Profession – Adding Value is the Key

As a non-lawyer who has been working in the legal field for over 30 years, I have to tread carefully through the minefield when I offer an opinion about how the law should operate vs how it does operate.  However, based on a recent panel that met at the ABA mid-year in Atlanta, I am feeling that perhaps I have been on the right track for a number of years.

‘The Future of Lawyering’ panel put forth the position that a “tidal wave is hitting the legal profession” and asked the question, ‘Are we ready for it?’  The four member panel concluded that in fact, most of the legal profession was not.  What was it that the panel was referring to?

Essentially, that globalization and technology have created a massive shift in how clients and potential clients can access legal information.  In the past, the ability to access, understand, and interpret the law were the exclusive domain of the lawyer.  If you wanted legal advice or access to legal documents for your business, you had one and only one option, contact your lawyer and pay for their advice.  The law is no longer the full domain of lawyers.  The practice of law is changing very quickly and some lawyers will be left behind if they do not figure out how to adapt to the new paradigm. 

Internet search capabilities, the ability of artificial intelligence to parse through vast amounts of data to focus in on legal concepts and new legal business models are all contributing factors to create access to legal information.  There are legal information and document sites such as LegalZoom, CyberSettle, CompleteCase.com and Google Scholar, which can provide basic legal information that lawyers used to provide for a fee.

"Why is someone going to pay $700 to have a lawyer prepare a will when they can get it for $49 online?" Frederick Ury said (president-elect of the National Cnverence of Bar Presidents. "We have had a monopoly on answering legal questions about the law. But the consumer—our former clients—can now get that information for free on Google."

The panel was focusing their attention on the effect this will likely have on small law firms and solo practitioners.  The solution, according to the panel is that lawyers must provide services that are a ‘value-add” to their clients.  The value-add is to understand your clients business and provide problem solving that they can’t determine on their own.  A primary requirement is to change lawyer’s basic training (through law school) and teach them collaboration and communication skills, especially in a team environment, which has not been a focus of the US law school experience.  Information needs to be shared rather than controlled to assist clients in solving their problems.

I believe that this same need to adapt applies to lawyers working for large firms and corporations and determining what the “value-add” is for corporate clients and how to capitalize on it.  To many law firms want to keep practicing law the way it has been practiced for hundreds of years, billing by the hour, having lawyers (and paralegals) perform all aspects of case work, regardless of the expertise required to perform certain tasks. 

We have been too slow to adapt our practices so that the person best suited to perform a task, at the best rate is the solution that we propose to our clients.  This includes concepts such as outsourcing legal research and analysis (both onshore and offshore), utilizing eDiscovery staff to assist in document searches and discovery issues, and performing document review during electronic discovery, oftentimes the most expensive part of ongoing litigation.  Assigning the task to the least costly, but qualified person, while maintaining control of the legal strategy and direction of the litigation is a prime example of providing the value-add.  Shifting work in this way is the basic tenet of capitalism, creating an efficient model that is both cost-effective and profitable.  In the end, it will not result in less legal work for lawyers, but rather allow lawyers to concentrate on the practice of law, which is what a client wants to pay you for in the first place.

We need to figure out the value-add for our clients in each engagement and let them know we have their interests covered, that we are their collaborative partners and will do what is needed to perform the best legal work, at the best legal price.  Ignoring the changing legal climate is a risky business strategy.

Federal Rule 26 (f) - Use it to Your Advantage

There are many people that view the Federal Rules of Civil Procedure as an impediment to the practice of law and an evil that we are forced to live with.  I believe that the rules can be used to effectively minimize your e-discovery costs while assuring that you obtain all the data you need from the opposition.  Rule 26 (f) is a clear example of a rule that can be used to your advantage, and it is also being enforced more stringently by the courts.  

Rule 26 (f) requires parties in part to “confer as soon as practicable… [and to].. state the parties’ views and proposals on any issues about disclosure or discovery of electronically stored information.”  Proper planning of what is commonly referred to as the “meet and confer” sessions is a key component to successfully implementing a litigation strategy that works to your advantage.  The rule allows you to begin to “manage” the opposition and sets the structure for the e-discovery process, which is the fundamental building block of a successful case.  Don’t wait to react to your opposition, be proactive and use this time to your advantage.

 How Can you Make the Meet and Confer Work to Your Advantage?

1. Set a Firm Agenda – Judges want parties to come to the Meet and Confer prepared with a working plan in place, they don’t want the first conversation between the parties to take place that morning.  Force your opposition to be prepared by sending a series of letters outlining your goals during the conference; the more specific the better.  Include information about what you will be bringing to the conference and what you expect the opposition to bring.  You want to be knowledgeable about your electronic document needs and the systems used by the opponent.  Make sure you bring your computer experts to the conference so that questions can be resolved on the spot while everyone is present.

2. Secure all Data – Make sure that preservation decisions are documented and enforced.  Having a process in place that can be explained with business logic goes a long way towards convincing a court that you are the reasonable party.  Make sure that you don’t “over” preserve documents that will end up costing your client money and you time.  Have a preservation plan in place, implement it and enforce it.  Any future unpreserved data that becomes relevant will be viewed with less suspicion by the court if you can show that best efforts have been followed since the beginning.  As for the opposition, make them provide a reasonable preservation plan.

3. Phase your eDiscovery – Try and identify the key players and document custodians before you get started and focus only on them in the first round of documents.  EDiscovery volume can easily bury a litigation budget unnecessarily.  Doing your homework and working with opposition counsel to focus on key custodians in the first instance can help control the costs.  Don’t give up your rights to expand the investigation at a later date, but approach it practically.  Often you can agree to a rolling discovery production, from most likely to bear fruit to a wildcard participant.  Make sure that the phased plan is part of the scheduling order and that all parties are aware of the obligations and delivery dates.

4. Disclose Data Locations – Make sure that a description of “reasonably accessible” data and its locations is part of the scheduling order, as provided by 26 (b) 2.  Since accessibility standards constantly change, make sure you consult with an eDiscovery specialist to confirm that your requests are reasonable and should be met.  Make sure you can defend any demands to the court; remember you always want to be the ‘reasonable’ party.

5. Protect Against Privilege Waiver from Inadvertent Production – Understand how FRE 502 protects you and make sure that the court order includes a waiver.  502 protects you against inadvertent disclosure of privileged documents and provides a determination of non-waiver that arises from the inadvertent production.  Have a written protocol in place with the opposition on how documents will be handled under this circumstance.  With all of these procedures in place, your argument for clawback will stand up to a judicial review.

6. Document Everything – Nothing derails negotiations and litigation procedures as effectively as the faulty memories that we all have.  Having negotiated a successful Meet and Confer, make sure that all agreements and understandings are well documented.  What is absolutely clear to you today will be hard to recall a year into the litigation when an issue is challenged.   Keeping a litigation journal in chronological order is the best defense for winning an argument.

 

SmartPhones can Also be Used to Your Advantage (The Use of Technology by Lawyers)

I have written in the past about how we need to be careful with how we use our SmartPhones because so much material can be gathered from them during forensic discovery. (See “Cell Phone Content can now be Searched Without a Warrant” based on a recent California decision.)  My conclusion was that since the information appears to be fair game in discovery, caution should guide what information you keep on your phone.

Recently however, a Smart Phone application was used to assist a driver in proving to a court of law that he in fact had not been speeding, and a not guilty verdict was reached.  Sahas Katta has dozens of Apps on his Android phone, with a new favorite being called “My Tracks”.  Using GPS technology “My Tracks” allows the user to:

        1. See location and progress on a map
        2. Monitor real-time statistics, including: Time, Distance, Speed and Elevation
            a. View an elevation profile by time or distance
            b. Zoom and pan elevation profiles
        3. Create waypoints

The most important feature for Katta, the one that tracks how far and how fast you are driving.  He received a ticket for driving 40 MPH in a 25 MPH zone.  As most of us would, he immediately insisted that he was not speeding, the radar gun must be incorrect and further that he never speeds.  Sound familiar? 

What is the major difference between his claim and the same one made by me on multiple occasions?  The use of technology….

By chance, the app on his phone had been running the day he was pulled over, so Katta did what any good technologist would do.  He examined the data for information to support his claim.  The data indicated that he had never gone faster than 26 MPH during the journey where he got a ticket.  So, he went home, printed the data and brought it before the court to be examined.
"I think the evidence I presented was very new and refreshing, and it is cutting-edge technology. Clearly, this had not come up in his court before, which is why he made a statement afterward declaring me not guilty," said Katta.

In the interest of full disclosure, during his testimony in court, the police officer could not provide a recent calibration test for the radar gun, which is often enough evidence on its face on to have a ticket nullified.  Clearly, however, the evidence provided by Katta was influential.

It got me thinking about how lawyers need to expand their understanding of technology in order to provide the their clients with the best representation, whether it is a simple speeding ticket or a more complex eDiscovery project.