Lextek – Chicago Lawyer’s Tek Talk

The Illinois Supreme Court today announced that Illinois Appellate oral arguments will be available online beginning Monday, November 2nd.  This is in keeping with the Supreme Court’s “desire to bring greater public access and understanding to the courts.”

Under the direction of the Administrative Office of the Illinois Courts and its division of Judicial Management Information Services (JMIS), the appellate courtrooms in all five Judicial Districts have been equipped with digital audio recording systems that will preserve audio quality long term for archival purposes. The systems also are compatible with standard computer software readily available on most personal computer systems, and will allow the legal community and the general public to listen to and download audio recordings of all appellate arguments and workers’ compensation hearings.

The Supreme Court has been posting both video and audio recordings of its oral arguments on its Web site since January 2008.  “Implementation of the Appellate audio-recording project continues to promote the Supreme Court’s use of technology to increase access to court information for educational and informational purposes,” said Skip Robertson, assistant director of the JMIS division. “With the assistance of Appellate Court personnel, JMIS staff is able to prepare and post audio recordings, linking a filed opinion to its recorded oral argument.”

DG

Tom O’Connor, our LexTekReport.com eDiscovery specialist writes about the 7th Circuit, U.S. Court of Appeals’ launch of an eDiscovery pilot program based on the The Sedona Principles on Cooperation and other leading eDiscovery sources.  The 7th Circuit has posted the statement of the program, but I have also made it available here: 7th Circuit Court of Appeals Statement of eDiscovery Pilot Program.  I recommend you read Tom’s take on this on his DocNative Paradigm blog as he has a good understanding of the ins and outs.  For our coverage, see the Chicago Daily Law Bulletin coverage on our LawNewsChicago.com site. And yes, this will impact any lawyer who practices in the US Courts under the 7th Circuit jurisdiction.

DG

Over the past several years, a multitude of document review tools have materialized in the marketplace.  Linear review tools, those that allow attorneys to review each document one at a time, have been around for many years.  Concept-based review tools have emerged onto the scene recently with much fanfare and excitement, yet there is tremendous confusion as to how this technology can be used effectively and whether is it beneficial to the case team.  There are literally hundreds of new technologies out there promising to help with e-Discovery.  They tout such benefits as lowering costs, cutting review times, and reducing data quantities.  Sifting through all the hype to truly begin to understand what tools one should be using is a tall task.

So, how does a lawyer begin to figure out which tool is right for their particular need?  It starts with a more strategic approach to dealing with discovery.  There are a few choices to be made when it comes to document review- one can either purchase an in-house document review tool or outsource the hosting of review with a third-party vendor.  There are of course pros and cons to both. Purchasing an in-house tool can make sense in situations where the cases and the review team are relatively small.  If the in-house litigation support staff is sophisticated enough to support the tool, they can generally do an admirable job of creating a review environment for these smaller cases when time and cost are a primary consideration.
When the cases are large, that is when the data quantities and the case teams are large, it often makes more sense to outsource the review to a third-party vendor for hosting the case on their platform.  So, how does one go about choosing that platform?  A good vendor will take the time to understand the needs of the case and try to match the specific requirements of the case with the supporting technologies blended with solid and experienced project management.  A superior vendor will also have a multitude of solutions to choose from; after all one peg does not fit into every hole.  A vendor who only has one solution to offer will always have the same solution to every problem and it will always be their solution.  When a vendor can evaluate the situation and be technology agnostic, a true solution can then be devised to tackle the client’s specific problem.

While choosing a platform for hosted review, one of the most important things to consider is how well the project management team supporting the tool actually knows how the tool can be customized.   When choosing any type of service work, they always say it is the people, not the technology.  This couldn’t be truer than in the case of hosted review.  It is a very complex process, filled with pitfalls and landmines.  Having a trustworthy and knowledgeable project management team working on the platform is a recipe for success in any document review process.

Thinking about specific technologies, concept clustering is a new technology feature beginning to gain some traction in a few of the review platforms.  It is a feature that automatically groups documents together that are conceptually-relevant.   The primary benefit to clustering and how it can be used in practice is to allow lawyers to build from select words and phrases for data sampling practices.  A small review team could use the clusters as a “sample set” of data and only review that set as a statistical sample.  Concept search engines have another feature that allows lawyers to do advanced analytics at the point of review such as “exemplar searches”.  This is something akin to “find me all other documents like this one”.  With technologies such as these, the case team can begin to take advantage of otherwise untapped resources.

There are some things that every platform and the vendors who support them would like to tout as strengths, but few can pull off in actuality.  They are speed and scalability, flexibility, strong security, and probably the most important is stability.  There is nothing more frustrating than having attorneys sitting at their review station waiting either for the system to recover from a crash or for the page to load because the system is unstable.  A platform that just works is something that many clients take for granted.  You can have all of the bells and whistles in the world, but if the system doesn’t work, none of it really matters.

Choosing a review platform and a vendor to host your next document review is not an easy task.  If the vendor doesn’t take the time to try and understand your case, or they seem like they are just a solution looking for a problem, keep looking for a vendor who can understand your problem and will be there when the going gets tough.  There are tools out there that will help solve these problems, but it is the people who really make the tools shine.

Adam Rubinger, Managing Director, Consulting Services at TechLaw Solutions

About the Author:  Adam Rubinger is the Managing Director, Consulting Services at TechLaw Solutions. Adam heads the consulting services practice providing guidance and assistance interpreting the many facets of electronic discovery and litigation support. Adam brings over a decade of experience consulting with Fortune 500 corporations and top 200 law firms on large-scale electronic discovery projects and information governance, with expertise in computer forensics, electronic discovery, and IT security.

The above article originally was published in our Litigation Tech Support Guide in the October 2009 Chicago Lawyer magazine.

This is the second post in a series of posts that covers the recent Court Technology Conference 2009, hosted by the National Center for the State Courts in Denver from September 22nd to 24th.

Presenters: Larry Murphy, recently retired Director of Information Systems and Technology for the Judicial Branch of the State of Iowa; David M. Remley, senior judge, shared responsibility with District Court Administrator and State Judicial Branch IT Director for relocating all Linn County District Court facilities; Pamela Casey, Principal Court Research Consultant of the NCSC’s Research Division; Cynthia Easterling, North Carolina’s Acting Court Services Officer; Peter Haas, Louisiana Supreme Court; Zygmont “Zig” Pines, Pennsylvania Court Administrator

Summary: The impressive experts above discussed lessons learned from two disasters:  the recent Iowa flood and the aftermath of Hurricane Katrina.  They also discussed preparation for other potential disasters, including disease pandemics and nuclear contamination.

I found one of the best examples presented from a loss of personnel standpoint was when one panelist recommended throwing the names of your staff into a hat and randomly removing 50% ore more of them.  That would give you a good idea of who would be left to run your operation if a disaster hits.

The opening sequence of this particular session was extremely moving as it documented the Linn County Courthouse, Iowa disaster, a video weaving both news and court official’s testimonials as to how they were dealing with the disaster, loss of records, loss of location,  and their attempts to keep the justice process going.

There were some interesting tips – like freezing your records in a flood. They suggested lugging all of them into the freezer and separating them later when you have a restoration company freeze-dry the files.

Another perspective presented was the potential increase in case load during a disaster.  Probate cases increase due to the increased death rate; criminal cases increase due to the potential looting and imposition of Marshall law/curfews; domestic violence cases and child protection cases increase due to domestic abuse and loss of parents; motions and case hearings increase due to border crossings, closure of public buildings, etc.

All of those who experienced a great loss of records relayed the lack of a disaster plan.  Extremely important records were lost in both of these key disasters (Iowa flood and Katrina) so the emphasis was on electronic scanning/recording of records.  Finding a place just to resume partial court operations was extremely difficult. In Iowa, a day of data was lost due to lack of back-ups, but 70% of all paper records were lost.  Closed files at remotes locations were also damaged.  Lost files were reconstructed with the help of lawyers and agencies involved with the cases.  70% of all counties agencies were displaced as a result of the flood. Prisoners were evacuated from several county jails, some by boat.

Fortunately, the Linn County Court had an IT disaster plan in place. Other county and government officials and personnel assisted in pulling everything back together. Vendors also assisted greatly in getting things back on track. This was a case of all hands on deck under tough working conditions and no one complained.

Conclusion: I have attended several of these Court Technology conferences over the years.  I have watched the gradual adoption of technology by the courts.  But I have never seen the courts move more quickly at adopting technology than they have since the aftermath of Hurricane Katrina and its effect on the New Orleans’ courts.  The Linn County Court disaster put the nail in the coffin to the ‘nos’ on technology.  To keep the courts going and the records intact in the face of disaster, the courts must use technology to save and store records electronically and off site.   And by doing so, serve the citizens justly.

To watch the video of this presentation, visit the National Center of the Courts CTC Web site.

DG

Over the course of the next couple of weeks, I will relate my experiences at this year’s Court Technology Conference 2009, hosted by the National Center for the State Courts in Denver from September 22nd to 24th.  Here is the first article in this series:

Keynote Speech – Ari Shapiro, NPR Justice Correspondent

The Verdict on New Technologies

Let’s start this report by touting the mention of our flagship publication – the Chicago Daily Law Bulletin – by Ari Shapiro, NPR’s justice correspondent, the keynote speaker at the CTC for our article about courts that are Tweeting. (State high court joins the ‘Twitterati’ – service ‘boosts communication by Bethany Krajelis.) Shaprio talked about the need for the courts to make documents, especially opinions more readily available.  Shapiro spoke of his challenge in getting copies of opinions from the US Supreme Court in a timely fashion.  Shapiro also spoke about the concern with blogging that may be severely adverse to the court but because they are able to get copies of opinions quicker than a legitimate source, the blog may suddenly become the primary source of the court – just due to availability of opinions.

Ari Shapiro asked “Can we please get rid of PACER? …PACER is a huge obstacle in reporting about the courts.”  PACER is the US District Court and Bankruptcy court’s online information system. He went on to speak about the need for an easier interface to obtain court documents.  To further emphasize the challenge faced by reporters in getting court documents, he supplied a quote from a colleague who said, “Why do I have to struggle so hard to provide your side of the story.”

Shapiro also talked about cases where jurors were using their iPhones to do Internet research, and another juror from Arkansas who was tweeting during the trial.  “So Jonathan what did you today?  Oh, nothing I just gave away $12 million dollars of somebody else’s money.”  Shapiro went on to say that it’s up to the judges to inform jurors that they shouldn’t be doing this.

Shapiro talked about how the entire media landscape has changed with the new Web 2.0 technologies.  “We no longer just turning on the news and absorbing information from a sage old white man sitting in a chair behind a desk.  We are linking, commenting, interacting and in some cases affecting the news as it happens.” When it came to light that the justice department may have fired US attorneys inappropriately, the justice department released 3,000 pages of documents at 9:00 p.m. NPR gathered half a dozen editors and reporters working their way through the pile around a table to put a story together for the following morning at 5:00 a.m. At the same time these materials came out, TalkingPointsMemo.com released the raw information and people from all over the country picked the information apart and commented on the information well before the NPR story ran at 5:00 a.m. the following morning.  This is an example of “crowd sourcing”.

Comments: Shapiro’s presentation was very applicable to the issue of courts keeping up with the public demand for information.  If the journalists themselves are having difficulty information, how does this affect the general public?

To watch the video of this presentation, visit the National Center of the Courts CTC Web site.

DG

By John Flynn Rooney
Reprinted by permission from the Chicago Daily Law Bulletin

While there are a growing number of lawyers using online social networks, a surprising trend is that older lawyers are flocking to such networks, a recent survey shows.

More than 70 percent of the lawyers responding to the survey indicated they are members of an online social network — with 30 percent growth reported among lawyers 46 and older in the survey conducted this year.

The survey showed that 66 percent of the lawyers who responded above the age of 46 are members of social networks like LinkedIn, Plaxo, Facebook, Xing and MySpace.

The 2009 Networks for Counsel Survey of 1,474 lawyers in private practice and corporate counsel was commissioned by LexisNexis Martindale-Hubbell. The survey was conducted in May and June by Leader Networks a Massachusetts-based consulting firm that helps businesses in cultivating online social networks. The results were issued Wednesday.

Continue reading ‘Survey: Social networks show some gray’

ILTA (International Legal Technology Association) released its “Purchasing and Technology Survey 2009” compiled and conducted with the help of  InsideLegal.  The survey outlines responses from 115 law firms, responses that point to a slow down in purchasing and postponement of large projects.  Nothing too surprising here given the current economic climate for law firms, but a worthy read.

DG

Aderant, one of the leading law firm financial software companies, announced today that it has acquired StarLaw, an enterprise content management software company.  Aderant has grown some legs now by offering a document/content management system with their financial system to move to a ‘complete’ solution for law firms. More can be found on Aderant on their Web site.

Mark Cuban, owner of the Dallas Mavericks, recently posed an interesting question. Can you own a copyright in your tweets? The Internet community inundated his blogging site with varied responses. Some claimed that tweets are copyrightable because they are in a tangible form and because the Twitter website claims no interest on its users intellectual property. Others retorted that tweets are too short and unoriginal to qualify for copyright.

Despite the debate, the short answer to whether tweets are copyrightable is … it depends. In theory, tweets could qualify for copyright if they meet the originality requirement needed for registration. The problem is the length and content of tweets. They cannot be more than 140 characters, and they are generally focused on observations or musings about everyday life.

Regardless of Twitter’s statement claiming that it does not own the intellectual property posted on the site, a user cannot claim copyright on something that would not pass the statutory requirements for copyright. For example, facts cannot be copyrighted — neither can short phrases or titles. So if someone tweets about the weather in her city, she cannot copyright her tweet just because she wrote it in a tangible form. The weather is a fact, regardless of what type of language she uses to describe them. A witty or ironic or romantically described fact is still a fact.

The weather example also highlights the scènes à faire doctrine, which is a bar to a copyright claim. The scènes à faire doctrine protects works where certain indispensable or standard elements are used to describe the scene, and the scene cannot be expressed in any other way. A person can only describe a rainy day in so many ways. Scènes à faire prevents one person from monopolizing those finite descriptions.

Therefore, the content of tweets poses a substantial hurdle to qualifying for a copyright. It would have to contain the requisite amount of creativity and be an original expression of idea – no easy feat when Twitter only allows 140 characters. A possible copyrightable tweet that bloggers discussed was a haiku or some other short poem. Originality is the key component — a tweet posted in haiku form still would not be copyrightable if it was not original and did not contain the requisite amount of creativity.

If a tweet is copyrightable, the user would have to register with the United States Copyright Office, and the cost of registration is $35 per claim. Twitter encourages its users to allow their comments to enter the public domain. This recommendation is good public policy — it prevents people from blocking the spread of information through micro-blogging. What would have happened if a Twitter user wanted to copyright his tweets about the protests in Iran? And besides, who would want to spend $35 for every 140 character tweet?

Daliah Saper of Saper Law

Daliah Saper
Saper Law Offices LLC
Contact via email or follow on Twitter