Category Archives: Strategy

Management, Science, Strategy

I Need Jobs

MP900439292 I want to do something different.  The problem is, I'm not having much luck being hired.  I'm temperamental, moody, stubborn, and definitely march to the beat of my own drum.

I'm also euphemistic…

When I know I'm right, I stick to my guns – even at the risk of being wrong – which, I'm not embarrassed to say, I have been.  I wish people would just do what I say and stop questioning me so much!

I've pissed off so many people at work that – I like to joke – H.R. has a chair with my name embroidered on it!  It's gotten me fired, too.

People don't understand how my mind works – they just know that somehow, it works.  My spectacular failures are only bested by my even-more-spectacular successes.

My education's a little thin.  My mind was too restless to sit in a classroom, so I didn't finish college.  But I'm telling you, I've got some killer ideas and I can make them into reality; whoever I work with will make a lot of money.

I'm going to interview at this really cool tech company.  I think I can do great things for them.  It's on my calendar for Monday.  I'm just wondering one thing…

Do you think Apple Inc. will hire me?

Education, Law Practice Management, Media, Strategy, Weblogs

A Perry Home Companion

MP900400186 Well, it's been a quiet week in eDiscovery Insights-Land, California, out on the edge of the prairie…the little blawg that time forgot and the decades may improve…where all the women are strong, all the men are good-looking, and all the lawyers are above average…

Anybody who's a fan of Garrison Keillor recognizes the above reference.  About the only connection I have to the original is that I grew up in the province of Alberta, which is on the Canadian prairie (yes, Canada has a prairie…)

I channeled that quote after reading this great line from Adrian Dayton in the National Law Journal:

"Social media and blogging aren't about making you famous; they are about making you a little bit famous…"

Dayton examines why major law firms are – or aren't – blogging, and why.  Take it from me, I can think of many reasons to blog and many reasons not to blog.  In this 'taken out of context' world, which also happens to be a staple of litigation strategy (as I partially examined in this post, recently) it's very easy for someone to take a snippet of information and manipulate it.

Comes with the territory.  Like it or not, we live in a sound-bite world.

On the other hand, a lot of major firms may not be blogging; but they're reading us.  I found that out when, for example, a Partner at Jones Day quoted one of my posts for an article about Twitter in the New York State Bar Association Journal.

A little bit famous…

[Thanks to Charlotte Brownstone for today's title!]

Education, Strategy

Sarcasm. Effective Litigation Tool. Oh, Really?

Cheshire_cat Understanding human nature will take you a long way in litigation so, occasionally, I like to delve into the psychology of what we do.  This Washington Post article examines sarcasm as a creativity tool, but it's been in use in litigation all along.  Who hasn't seen this on TV; the attorney ends a cross-examination with a particular comment, the opposition yells, "Objection!" and the attorney says, "Withdrawn."

That's a simplistic view, though.  With some attorneys, the gamesmanship begins a long time before litigation arises.  You may not operate that way and you may be annoyed by those who incorporate this tactic, but it's still important to be aware of it.

After all, it's better to eat than be eaten…

Cases of Interest, Criminal Liability, e-Evidence Insights, Strategy

e-Evidence Insights: Casey Anthony & the #eDiscovery Connection

MP900423019 The last thing I want to do is harp on the Casey Anthony trial; more than is necessary to make my point, anyway.  I only want to discuss one item; the verdict.  Is there an eDiscovery connection?  Yes, if you look at cases holistically and not by their parts.  I see people get so wrapped up in the minutia of what we do, they forget that ultimately, this thing may go to trial!

Why's this important?  Because you can be very successful at the eDiscovery portion – and still lose.  If this case proved anything, it's that anyone who thinks they can handicap a jury is smoking crack.  That goes for you, too, Nancy Grace!

One thing that always adds a wild-card to the deliberations – and this was clearly cited in one of the juror interviews – when the element of it being a capital case is added to the mix, individuals are reticent to be the ones to sign the death warrant, even if they're absolutely certain of guilt (and they weren't even close, here).

It's still a marathon to the finish line, but always bear in mind, eDiscovery is just a single watering-station.

Backup & Recovery Systems, Cost, Criminal Liability, Disaster Recovery, Education, Implementation, Law Practice Management, Scope, Strategy

#CalBar Solo & Small Firm Summit Recap

MP900439382 Yeah, I know.  The summit ended Saturday at noon.  It's been a busy week for me, but better late than never.  I had to skip the Thursday sessions, but arrived early Friday morning.  I was backing up another one of my LPMT colleagues in the tech lab, so between his presentations and mine, I didn't get to attend anyone else's sessions, which was a shame, because there were some good ones.  I did catch the bulk of Stephen Fairley's morning keynote on marketing and SEO.  I can only say this; the man is right on about what he was saying.  It was similar to the advice I received from my web guru, Clint Brauer.  Bottom line; if you're going to make a serious attempt at creating an online presence, you need to understand how your information will propagate to the 'web before you develop web sites, create accounts, etc.

I didn't know what to expect for my labs on disaster planning, but for both sessions (I did the identical presentation back-to-back) I had full houses.  The attendees asked a lot of good questions – which is the first indication they're not bored – and although we had some technical difficulties, I was able to illustrate how, in some cases, a few minutes is all it takes to create a basic backup strategy.

Day three, Saturday, I took in the morning keynote on "Multitasking Gone Mad", or, how the more we multitask, the less we accomplish.  Now, this was Irwin Karp presenting – who also preceded me on the LPMT committee – but I'll tell you, the idea of doing one thing at a time is something to strive for, but awfully hard to accomplish.

The second session should really make the eDiscovery people excited.  It covered hearsay (civil, for the most part), but guess what the starring attraction of most of the examples was?  Electronic evidence!  For example, the presenter showed a slide from a traffic camera of a car colliding with a truck at an intersection.  Another was a photo of a simple bar code (not a QR code, like the one you see on my right sidebar).  In both instances, the question was, is this hearsay?  As usual, the answer was, it depends on your jurisdiction.

The third session was one that eDiscovery professionals most likely wouldn't be attending.  It covered the activity up to and including the arrest of a client.  As you know, I also handle criminal cases, so again, this was a good refresher for me.

So, basically a quick in-and-out, and barring any changes to the schedule, my next presentation will be at Calbar's annual meeting in September.

Education, Implementation, Law Practice Management, Strategy

A Lawyer Walks into an #LPMT Presentation…

MP900448335 No, I'm not going to post every time I make a presentation – unless there's something interesting to note.  In this case, my colleague Gideon Grunfeld and I presented on law practice management issues.  He covered attorney advertising and reputation-protection online and I covered – what else – protecting your data in the cloud, via social media, on your PDA, etc.  I also ran the attendees through the new California State Bar Opinion 2010-179 re: wireless networks.

Now, this was a group of tax attorneys, which is not in our usual wheelhouse, and being as we were the first presenters at 2:30 PM, I assumed we wouldn't get more than 15-20 people.  Then they started having to bring in extra chairs…then more extra chairs…and by the time we concluded, they were standing in the hallway; we estimated close to 50 people!

What's the significance?  Well, first of all, we knock ourselves out to try to do quality presentations, so it's no fun presenting to an empty room, but second of all, I was heartened that these attorneys wanted to know this material.  We took a bunch of quality questions, also.

Things are looking up!

Backup & Recovery Systems, eDiscovery California, Implementation, Strategy

e-Discovery California: Go See Cal!(PERS) about Retention Policy Pitfalls


 

Retention policies.

Can't live with 'em…can't live without 'em.

Damned if you do…damned if you don't.

Very few people like change, especially in corporate environments.  It's just another burden to bear.  If something's changing, you know what'll follow; a meeting, memo, or training.  Who wants that?

Rolling out a retention policy will usually result in a lot of complaining, but when coupled with all of the complex, new eDiscovery regulations, it gives you something else to worry about – even if you have no anticipated litigation at the time the policy is implemented (notice I didn't say 'pending', which isn't the proper standard).

Just ask CalPERS, aka the California Public Employees' Retirement System.  CalPERS implemented an internal 60-day retention policy – and apparently didn't bother to tell anyone.  Furthermore, they gave 2,300 of their employees discretion over what additional ESI should – and shouldn't – be kept.

Oh, did I mention they're currently under state and federal investigation?

It's prudent to be aware that, no matter when a retention policy is implented, your opponents will always have an interest in claiming you're committing misconduct by deleting evidence of…misconduct.  Therefore, I rountinely suggest that, prior to implementing – or modifying – a retention policy, a thorough review of current status should be performed – just in case you have to explain it to the judge.

Education, Implementation, Law Practice Management, Strategy

A Lawyer Walks into an #eDiscovery Presentation…

MP900422817 Last night, I did a one-hour presentation, "How to Lose an eDiscovery Case in 30 Days", to a room full of seasoned lawyers – and a couple of judges – for the Los Angeles County Bar Association Litigation Inn of Court.  I've been a member of this group for approximately two-and-a-half years and, having discussed eDiscovery at length with the members over the usual cocktails and dinners, I tailor-made my 20-slide talk to focus on what I believe they wanted – and needed – to know.

Slide #1 was my nine-point outline of what I would cover over the hour.  Forty minutes later, I was still on that slide.  The Inn of Court uses an open-question format.  Unfortunately, in our space, one question opens a can of worms, which spawns multiple follow-up questions.  Obviously, it's a good thing that there were so many questions – and the attendees can always read through my presentation at their leisure – but, as someone who is always observing those who are observing me, it illustrates how much farther there is to go.  I could have easily stretched the talk to two hours and still would have likely run out of time.

When I present at the CalBar Solo and Small Firm Summit June 24th, I may have to switch to the despotic method and hold questions until the final ten minutes.  It's a tough call.  Every question I was asked last night was substantive and important – and deserved an answer.  The problem is, with only an hour available, the best one may hope for is completing an overview.

To put it another way, I made it through the meal, but didn't get my dessert.

Cases of Interest, Duties, Education, Implementation, Judges, Law, Miscellaneous, Sanctions, Strategy, Technology

#LTWC 2011 – Day 2: The Dancing Itos Meet the #DigitalRoachMotel

Dancing Itos I'm sure you've noticed I'm using hash tags in my subject titles.  I picked up a lot of followers on Twitter during the conference and the former tag allows others following LTWC to find my summaries easily.  If you're already following me, you've seen the latter tag before.  We'll get into that, below.  As always, my disclaimer from my Day One post remains the same.

I am the man of steel!  Ok, maybe I'm the man of aluminum!  Ok, I'm thinking more along the lines of the man of caffeine.  I attempted to do the impossible; attend every single session available on day two.  I'm sure plenty of others do so, but I'll admit, when you do this, coupled with quick meetings prior to the commencement of the day, on every break and even afterwards, I can't speak for others, but I resembled some kind of zombie by the time I approached the parking garage (ask the person who met with me at the end of the day).  You know why?  Because, save for the final session, I sat in the front row (which is something I always do).  For one thing, I'm live-commenting on the event via Twitter, plus, it keeps me engaged, which is important because I'm there to drink in every bit of knowledge I can – not to sit in the back and collect CLEs (not that I don't love CLEs…).

The keynote, "Trial by Sound Byte", was given by Manny Medrano.  I've met Manny before and if you're from the L.A. area, you've likely seen him on local networks, covering cases like the OJ Simpson murder trial.  Manny's a very personable guy and is even more so as a speaker.  He contrasted his desire to cover hard news cases with the network's desire to cover celebrity cases, such as the death of Anna Nicole Smith.  He focused heavily on the issue of media coverage and how it may interfere with justice rather than simply telling the story.  Put simply, news reporters and networks are as apt to let the confidential cat out of the bag as social media users.  He cited a few examples (some that we've covered on these pages) but what I liked was his hard-line approach to violators.  He believes in harsh penalties (monetary, if possible) when there are egregious instances of juror misconduct.  I agree wholeheartedly and have said so many times.  Closing observation: this is probably the first time I'd heard the term, 'Dancing Itos', since 1996.  A decade later, during the last criminal case I worked on for the D.A.'s office, the day the verdict came out, our sitting judge took ill, so we had a substitute.  I walked into the courtroom and sitting at the bench was none other than Judge Lance Ito.

On to session one, covering "Electronic Discovery in the Cloud", with the 'legend', Tom O'Connor.  He was supposed to be presenting alone, but was joined later by Brett Burney.  This was an unexpected treat for me because last year, I stood in for Brett at another conference when he was stuck in Ohio and couldn't come.  The whole thing was hastily arranged and I basically did it sans notes.  Brett and I had never met in person, so it was great to finally put the face to the name.

This session was a perfect antithesis to the cloud presentation I attended on day one.  Here, we covered all of the risks & rewards of cloud computing.  In particular, the biggest bone of contention is how much control the vendor retains over the data.  In some cases, a law firm that agrees to those terms may actually violate their code of ethics by turning control of confidential client information over to another without their consent.  This was a more sobering – and in my opinion, more realistic – overview of what cloud computing is all about.

That's when it hit me; as far as your data is concerned, the cloud is like a digital roach motel.  Your data checks in, but it may never check out.  Or, for a little California emphasis, call it the Hotel California.  Your data can check out any time it likes, but it can never leave…

Time for the lunch session, "A View from the Bench" which was led by two Federal Magistrates, Jay C. Ghandi and Suzanne H. Segal (no rel.).  Judge Segal presented to my litigation group only two or three months ago on jurisdictional matters.  I'm presenting an eDiscovery CLE to the same group in about two weeks and if I could just get the videotape from this session and play it, I'd let my attendees watch it while I sneak up and eat all of their cream-cheese desserts.  It's exactly what I'm going to be saying, which is, in a nutshell:

  • It's never too early in the process to bring in your technical assistance,
  • You must plead with particularity regarding eDiscovery matters,
  • Take as many of the decisions as possible out of our hands and you'll make us happy,
  • Get your clawback agreements in place,
  • You've had enough time to understand this stuff, so if you screw up, we'll sanction you!

*Sigh*  The latter statement seems to be more in force in Federal jurisdictions, but I suspect that – in California's case, anyway – that's because our rules came into power in 2009, not 2006 like the Federal rules.

The judges presented us with a hypothetical scenario regarding a corporate sexual harassment case and we analyzed the mistakes that were made during the process.  The gist of the issues were more focused on a paralegal performing attorney functions and making decisions that only an attorney may make, but what bugged me most was that, in a personal misconduct case, when the misconduct was reported, the paralegal contacted the subject of the accusation.  This particular fact tidbit had nothing to do with their presentation and was likely just a by-product, but I would say this to you.  If you become aware of that type of misconduct (which will trigger respondeat superior), here's my advice.  Do not pass go.  Go directly to whoever is responsible for overseeing these matters, call the accused into a meeting, have them sign a document informing them of the complaint while simultaneously arranging to collect an image of all of the person's data that you can.  And do not let them access any of it until you're done.

Why?  Because your job is also to protect the corporation; and the corporation may be held liable for any additional misconduct of its members.  If you inform the accused perpetrator, what might they do?  Go back to their office and start deleting incriminating emails?  Who knows?  The point is, you must issue a true litigation hold on the spot and preserve an image of all of the information you can.  Think I'm being harsh?  I know of organizations who do this, exactly.  In fact, one of them will put the accused on leave without even informing them of the basis of the accusation.  Doesn't that sound like being found guilty, until proven innocent?  Yep.  Welcome to Corporate America.  But I digress…

Next session was "The Top 5 Ethical Concerns for Lawyers in E-Discovery", presented by Brett Burney (again, who I didn't know was going to be there).  This was a nuts & bolts session and was very clear.  The slides spelled out what our duties are, what the rules say (both eDiscovery and ethics), the supporting and dissenting case law and links to resources.  Obviously, the longer one has occupied this space, the more one knows of these matters, but I've never thought it to be a bad thing to attend a refresher.  It's very easy to forget.

Here's what I have to say about the last session.  Do you recall what I wrote yesterday about the first session?  Ditto.  My brain was fried at this point, anyway.  And so, we shall not speak of it again…

All in all, a great conference for me.  See you next year!

Education, Implementation, Law, Miscellaneous, Strategy, Technology

#LTWC 2011 – Day 1: Kumbaya?

MP900309157 If I blog late on a Friday afternoon – but there's no one here to read it – did I make an impression?  I say this because Google Analytics tells me you all go home Friday afternoon – and virtually nobody reads me from home on the weekend.  Seriously, I apologize for being so tardy with my updates, but when I'm busy, I'm busy.  Of course I could hammer out something fast – which is what we've gotten used to these days – but even though it's a bit stale, I'd still rather take a bit of time and be substantive.  With that in mind…

The usual – and annoying – disclaimer:  Please be advised that this year, I was given an all-access pass to the conference in my capacity as a 'legitimate' blogger (I laugh every time I type that…).  Also, I was provided with a discount code for your benefit – or for the benefit of people you know.  As is always the case, nobody associated with LegalTech asked me to do anything more than what I usually do;  mention LegalTech and give the dates of the conference.  All other posts about the conference are my views alone and nobody has editorial control over what I write, except me (otherwise, I wouldn't accept the pass in the first place).  Ok…to the substance…

I was arriving from out of town and even though I'd given myself plenty of lead time, a last-minute-accident on the freeway guaranteed that I wouldn't make it to the opening keynote.  However, I wasn't too concerned.  The speech was, "Social Media & the Law".  I think we've covered that quite a bit as it is, although David Pashman, the speaker, delved into the Communications Decency, Digital Millennium Copyright and Stored Communications Acts.  I also had to miss the Plenary session for a lunch meeting, but wasn't too upset, since that one covered, "Why the Legal Industry Needs to Embrace Technology", by Tim Hart.  We know, Mr. Hart, we know!

This leads to the session in-between.  Here's the deal.  The scheduled speaker didn't come and the replacement wasn't prepared to cover the subject.  He even admitted he didn't understand what some of the slides were supposed to mean.  As such, I have no idea what they were trying to say, nor did I learn anything.  However, I'm cutting him some slack because he was obviously thrust in at the last minute.  I missed a speaking engagement last year and stranded my co-panelists because the judge in my trial said, "You're not going".  We're lawyers and technologists and it happens, usually at the most inopportune time.  We move on.

After lunch, I went all-tech with "Big Clouds and Small Clouds – Law Firm Experiences with Cloud Computing".  We had three young guys (remember, 'young' is relative) on the panel who were very excited about the technologies they were working with, which is always refreshing.  Especially since, in my capacity, my job is to temper excitement and prevent corporations and law firms from misusing the same technology.  Unfortunately, the new, new thing is usually the most dangerous for my clients.

This leads to my other observations; first, I couldn't confirm that the attorneys at the firms served by these guys really understood how much control of their data they'd actually relinquished to the cloud – and the risk that accompanies that decision.  Second – and if you follow me on Twitter, you've already seen this – I don't think they were worried enough.  That could be where the 'young' part factors in.  When I see this, I usually assume that the techs have never experienced a major outage, because if they had, they're usually a lot more cautious.

I know what you're thinking; I could have just put up my hand and asked them.  But, I wasn't trying to embarrass anyone, plus, these sessions are 75 minutes long.  I could also have opened up a can of worms that would have wasted a large part of their presentation and I wasn't about to do that.  I walked away with the thought that what they've done is exciting – as long as it's adequately explained and signed-off on by their bosses, and a comprehensive disaster-plan is developed.  I know…they're the party and I'm the wet blanket who tells them to go home.

The last session of the day was, "Partnering for Success: Inside and Outside Counsel Working Together".  I have to say, I loved this session!  Why?  Because, they told the truth.  Let me flesh that out a bit.  People at these things all tell the truth from their perspective – that isn't the issue.  What I mean is, this group told the greater truth, also known as the dirty little reality that very few people want to talk about.

Specifically, their flowchart had an accommodation for "e-Discovery as Extortion" and explained how one should change strategy to address it.

I'm fully aware that it's distasteful for both lawyers and techies to discuss some of our experiences because everyone keeps talking about the 'cooperation proclamation' and 'dancing geek to geek'.  Make no mistake, we get closer to those ideals every day.  But, here's my greater truth; that hasn't been my personal experience in many cases.  And when we don't discuss the realities of acrimonious litigation, I think we do a disservice – especially if you take into account that, in these situations, your adversary is counting on you to perform in good faith – while they don't.

I can't tell you quite as much about their presentation as I'd like because unfortunately, their slides weren't available.  They're going to send them to me eventually, but in overview as a whole, they did a great job of covering the issues between inside and outside counsel and the pertinent case law, assessments and strategies that each should know to better facilitate a good result for the client.

After that, I was supposed to attend three cocktail receptions – at the same time.  Thrice is nice, but the best I could do was split myself in two and attend LegalTech's reception and a benefit by Catalyst for Japan earthquake relief.

All in all, a great start to the conference and an excellent finish to day one.  Coming up next?  My summary of day two.  I hope to post that tomorrow.