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Understanding ESI: The Core of Today’s Litigation Practice

In my experience, there is a lot of talk about e-discovery and electronically stored info (“ESI”) in the legal business but for most practicing lawyers it doesn’t go much beyond just that – talk.  The talk itself is usually about what lawyers don’t know rather than how they are building their litigation practices around a fundamental component of the law.   The sheer volume of case law, in fact, addressing the centrality of electronic data to litigation and the ever changing landscape of e-discovery should give us pause and cause us to rethink our practice models. 

Let’s face it.  There is no dodging the ESI bullet.  Paper documents no longer even scratch the surface of a data pool in most law suits.  E-mail is ubiquitous, smart phones and PDAs are as well.  Most lawyers use these devices in their professional and everyday lives and to not realize or to ignore the reality – that we are constantly creating trails of information – is naïve at best, and negligent at worst.  In today’s tech climate, a firm needs to consider the information it will need to defend or prosecute a suit as priority one and then take immediate steps to ensure its preservation and the means to most efficiently harvest and process it.  When you do not understand those processes, or do not have a discovery plan in place that takes ESI into primary consideration, it can be a daunting and complicated task.

A recent LTN piece points out the crux of the ESI debate.  It no longer suffices to say “I don’t get it.”  In fact, competency and fluency in e-discovery practice is a crucial and telling reflection of a lawyer’s competency in general.  A practitioner’s approach to e-discovery shapes the entire structure of a case, however most lawyers see it at as peripheral issue. 

Rather than getting under things and exploring the relationship of ESI to the law and vice versa many firms turn things over to specialists.  There are literally hundreds of seminars and talks each week that speak to the implementation of data collection and management tools but they are often deliberately vague or superficial.  By giving a vague introduction to ESI, demand is created for the products out there that are designed to manage and parse out data. 

I am not saying that these products are inutile.  They are immensely helpful if you know how to use them and understand how they fit into your overall discovery strategy.  They are not panaceas, though, especially when one has not created a discovery plan that takes into consideration the types of data and its scope, as well as how that data should be integrated with the underlying facts and legal theories of the case. 

Instruction should be used to stir up a change in the overall legal culture and the law profession’s approach to ESI.  Most classes and lectures unfortunately say: “here is a crib sheet; but when it comes to nitty gritty, let us handle it.”    The end result is generally a huge bill and work product that is unwieldy or impenetrable and, in the worse case scenario, useless.  Failing to get one’s hands dirty when it comes to ESI creates a cycle of dependence and perpetuates ignorance.  Savvy clients who want to participate in the process of collecting data for a case will not be impressed with the attorney who says “I don’t get it.” 

ESI and e-discovery are a terra incognita that does not need to be shrouded in mystery.  Basic computer knowledge is a great place to start.  Understanding the fundamentals of how information is exchanged and stored is a huge step in the right direction.   It’s time to start digging in.

06-10-2010

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From Court Room To Blogosphere

Attention firms: On your mark, get set and tweet or blog or whatever.

Strikingly, one of the factors taken into consideration and a determining factor in who gets the company's business is whether the law firm has a blog.

Sound strange? Not really. Firms with blogs provide an inside look into their achievements, their thinking on and approach to critical legal issues and insight into the firm's and its attorneys' overall character and legal philosophy.

As a follow up to the Benzinga post, I decided to see what the top 20 firms of 2009 were doing on the blogosphere. I chose the Am Law list based on gross revenues for 2009. My Google search terms were simple: ''[Firm Name] law blog'' and ''[Firm Name] legal blog''. The purpose of this test was to gauge public accessibility to any potential blogs
associated with any of my 20 firms and is in no way a definitive guide to firm blogging. The results were surprising.

My search terms turned up only five firms that had blogs readily visible on the web. The subject matter varied: e-discovery, labor and employment law, and product liability. A little further digging showed that most firms had a few attorneys somehow involved in blogging through outside sources dedicated to specific areas of practice.

Is this, then, a yet untapped avenue for potential client building? Firms are notoriously slow to change but I expect that within the next year or two a one or more blogs focusing on particular practice areas will be commonplace to all law firms.

Another interesting tidbit.

In addition to the blog factor, the Benziga piece pointed out social platforms, such as Facebook, LinkedIn, and even Twitter, as tools that are being utilized in the hiring process on both ends. I immediately started to imagine pictures of cats, links to other Yale law school alumni, and 140 character (or less) commentaries on constitutional law.
Alas, I never went to Yale law school.

Waking from my reveries, I soon began to realize (with great pride) that our society is willing, able and savvy enough to adapt technology to its own devices. There are outlets ready made that can serve and be adapted quite well to, in the case of this piece, a law firm. An entire law firm on Facebook? Not quite yet. One attorney, however, can easily
become the unpaid (or paid) spokesperson for an entire firm. It also makes sense that attorneys in corporate legal departments would use the internet's various networking tools and info exchanges to feel out the texture of a firm, even on as granular a level as individual attorneys, before hiring it.

All this points in one direction - the lines between personal and professional use of traditionally ''private'' web-based social forums are becoming more indistinct. Not only are professionals being assessed on an individual level but their online mutterings are being looked at with this new question in mind: How does this person or group of people
represent their firm? Is this the type of firm we want to work with? What has John Q. Esquire tweeted about corporate acquisitions today? Did Jane Advocate comment on her blog today about the recent rash of securities investigations?

A whole new generation of legal professionals has the opportunity, with enough internet smarts and chutzpa, to use these media and carefully craft their professional personae. In so doing they might become shining ambassadors for their firms. Likewise those potential clients, under this new system of semi-anonymous courtship, have a unique window into their avatars.

05-29-2010

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Better Late Than Never: 122 Years after His Death, Lawyer Joins the Allegheny County Bar!

George Boyer Vashon was the first African-American lawyer of New York
and had even made it to the U.S. Supreme Court in the post-Civil War
era. However, Alleghany County Officials in Pennsylvania continued to
deny his application for enrolment to the bar on grounds of his racial
origin. The State Constitution of Pennsylvania at the time denied the
freedom to practice law to ''blacks.''



Vashon had studied law at the Oberlin College in Ohio at a time when many practicing lawyers had no formal education in law.
An extremely studious and erudite man, Vashon served in different posts
in courts, government, and universities throughout his life. He made
his first application to join the profession of law at the Allegheny
County Bar and was turned down citing his Negro ancestry.



In a movement that feels like an epic saga of American history,
Vashon's great-grandson became a well-known Philadelphia attorney and
led the fight to undo the historical wrong visited upon Vashon. Wendel
G. Freeland, a Pittsburgh lawyer
who discovered the fact of Vashon's rejection in an old journal of the
state's bar association, helped Nolan Atkinson, the great grandson of
Vashon in his crusade.



When the Philadelphia Bar Association honored Nolan Atkinson for his
work promoting diversity in law, he took the opportunity to dedicate
the award to Vashon, his long-dead ancestor, and related the story of
his rejection to the audience.



In a two-page order made on Tuesday, the bench recognized that ''George
B. Vashon possessed the necessary credentials, competency, and good
character to practice law in Pennsylvania in 1847.''



That I guess is the spirit of America: The honesty to own up to
mistakes and try to heal wounds as much as possible, - even if one and
a half century later.

05-05-2010

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Arizona Under Attack!

The furor over Arizona's new immigration rules proves that populism overrules pragmatism any time in this country. Arizona's new law is supposed to be ''fascist,'' ''Nazi-like,'' ''draconic,'' and ''racist,'' to use the milder epithets, because it allows police and other law-enforcement agencies to ask for, and check the documents of people they suspect to be illegal immigrants. The law has come under severe criticism from different parts of the country and the world, and it is currently under review by the U.S. Justice Department for determining its constitutional validity.

So, why did the elected people's representatives of Arizona take such a step? The accounts show everything is positive and as good as it can be. Compared to 1.2 million immigrants apprehended in 2005, only 541, 000 were apprehended in 2009. The statistics, though it gives no account of how many got in, does prove that population has decreased on the other side of the border and the desire of people trying to illegally enter U.S. has dropped almost 50% (where's my smiley?). The statistics also shows that federal agents seized 1.65 million kg of drugs along the Arizona border as of March 2009, though again there is no account of how much got through. However, if we apply Pareto's 80:20 rule, it is possible that 20% was apprehended and 80% got through in each of these cases. Arizona's new law can threaten that invisible 80% that gets past the border. It would be a cause of concern for interested parties.

The Mexican government is concerned, and it has warned its citizens to use extreme caution, if visiting Arizona. The Mexican state of Sonora is concerned, and it has announced that it will not attend the Sonora-Arizona Commission held every year for the past four decades. The San Francisco Board of Supervisors in California is concerned and it has called for a boycott of Arizona. Many organizations and politicians in the state of California are concerned and they have urged California to sever its economic ties with Arizona. And as Dennis Burke, U.S. Attorney for Arizona told The Arizona Times, ''The President clearly has concerns.''

It is possible that the citizens of Arizona in their bid to find a remedy for their problems passed a law that can be held unconstitutional. That is for review by the U.S. Justice Department. But how fair is it to boycott an U.S. State, disregard the needs of its citizens and its sovereignty, and support a movement that in the name of liberalism makes it safer for illegal immigration and drugs smuggling?

04-29-2010

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When Both Sides Win

In an adversarial litigation system, the concept of both sides winning is an oxymoron. But, that is what seems to have happened, according to claims made by attorneys on both sides of a case decided on 22 April, Wednesday, by the U.S. Supreme Court. I am sure you would be interested to read on for the subject matter involved the validity of enhanced attorney fees.

The U.S. Supreme Court, while rejecting a federal district court's $4.5 million enhancement of attorney fees and sending the issue down to the federal district court to be argued again, also upheld that courts could enhance attorney fees under ''rare circumstances.''

In a ruling that can be a major performance booster, the Supreme Court held that a lawyer's superior performance during the course of litigation can be considered as a factor for enhancing attorney fees by the court when there is ''specific evidence'' in favor of the enhancement.

While some critics feel that, the ruling would make it more difficult for lawyers to receive enhanced fees, unless there were extraordinary circumstances with specific evidence to justify the decision, others differ. Many are gladdened by the fact that, first, the ruling does uphold the concept of attorney fees enhancement, and next, it recognizes superior performance as an adequate ground.

The need to support with specific evidence any decision for enhancing attorney fees, increases fair play, or rather reduces chances of unfairness. By laying down restrictions, the ruling protects parties from unreasonable costs, and by supporting superior performance as a ground for enhancing attorney fees it protects hard-working lawyers against unfair returns. For lawyers fighting civil rights cases without fees, this ruling holds out the hope of fair returns against superior performance. For the general populace, this means greater support for protection of their civil rights, because incentives for their lawyers just became official.

Attorneys representing the State of Georgia, which is the defendant in the original suit, felt rejection of the sum of enhanced fees was a win for the State and the public. On the other hand, lawyers representing the plaintiff felt it was a win for them as the matter would be re-argued (more fees) and the Supreme Court had upheld the principle of enhancement of attorney fees.

Now that is what I call a win-win judgment with both parties happy in specific and both lawyers and clients gaining class benefits in general.

04-22-2010

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