Getting the Facts Straight: Articles by Leslie Budewitz

Lawyers and New Technology
Originally published in First Draft, the SinC Guppy chapter newsletter

Many crime novels include at least one lawyer, as bit player, secondary character, or protagonist–sometimes even as the villain! So how should your fictional lawyers use modern technology?

In the office:
Lawyers use email regularly to communicate with clients and opposing counsel. We often use it to send electronic copies of briefs filed with the court. Client needs vary, of course; most corporate clients, including insurance companies, depend heavily on email. My small business clients are generally pretty up-to-date, but individual clients may not be, and some don’t use email. Some letters to opposing counsel go by both email and hard copy.

We regularly send PDF documents, e.g., copies of insurance policies, accident reports, photographs, and videos. Digital photography and video makes site investigations easier.

But not every lawyer uses email so extensively. In one current case, opposing counsel’s legal assistant told us that the lawyer preferred to communicate by phone or regular mail. How did she tell us? She sent an email!

Many, but again, not all, firms have websites, or at least a business domain name that they use for email.

The rapidness of email is both convenient and inconvenient. It’s easy to feel annoyed that someone hasn’t responded–you sent that email three hours ago! But lawyers, adjusters, and clients are still out of their offices or otherwise occupied for just as long and for the same reasons as before computers. Email can be just another way to get behind.

Voice mail is pretty much a given. So are cell phones. PDAs abound. As in the rest of the world, younger lawyers are more apt to use Blackberries or other smart phones than the older lawyers, but we’re catching on, too. Fax machines still exist, though the all-in-one printer has replaced many of them, and some firms use electronic fax services.

Laptop usage varies. Most lawyers have a desktop or laptop; many of us have both, using the laptop when we travel, or to take notes at meetings. Many, if not most, of us now type our own briefs. Some still dictate, but transcription equipment has gone digital. Some systems use voice recognition software.

Technology has dramatically changed legal research. Library shelves lined with reporters–the books of published state and federal court decisions–are gone. (The lawyer I work with had the spines cut off hundreds of old volumes and used them to simulate a library on a curved wall in his lakefront home office.) Now, most firms buy access to online sources, such as LexisNexis or Westlaw. Packages vary, but typically include cases for your state and federal district, as well as the U.S. Supreme Court, along with state statutes, administrative rules, attorney general opinions, and other materials. Cost depends on the package, and is usually set based on the number of lawyers in the firm. Free services are also available–FindLaw is among the most popular–but typically lack the same extensive search functions. Most, if not all, state courts publish appellate decisions online, although availability of trial court decisions varies widely. State legislature websites include searchable data bases of state statutes and administrative rules.

A lot of routine investigation occurs online. Each time we take, or consider taking, a new case, we routinely Google the major players. We can research medical issues or look up property descriptions and appraised values, professional licensing, and securities filings in a few clicks.

So what books are still on law firm shelves? I expect that every lawyer keeps hard copies of state and federal court rules close at hand. Hard copies of state statute or code books, and maybe the annotated versions, if available–that’s a copy of the code with short summaries of cases citing each statute–although many lawyers may have turned to the online version, as I have. The state bar directory, with contact info for all lawyers admitted in that state and state and local federal courts; mine also includes copies of the Rules of Professional Conduct (the ethics rules), local court rules, and other frequently consulted rules and orders. The shelves also hold texts and treatises frequently referred to–which ones depend on the nature of the lawyer’s practice but might include search and seizure law, insurance bad faith, employment discrimination, or the state’s pattern civil or criminal jury instructions. (I use a CD of jury instructions.) It’s common to keep materials from seminars recently attended (CLE–or Continuing Legal Education–pronounced klee in some states, but with each letter pronounced in others). My collection includes thick and thin books on various topics in insurance, land use, and employment law, child abuse litigation, and professional responsibility, along with fat binders from the annual seminar held by the Montana Trial Lawyers Association. I’ve also got copies of various law reviews and bar journals with articles that caught my eye. Your fictional lawyer probably has those, too.

Lawyers’ offices commonly include references on non-legal subjects we consult, sometimes for a single case. I keep a medical dictionary next to my desk. My firm’s got books on anatomy, brain injury and rehabilitation, the International Building Code, the Manual on Uniform Traffic Control Devices, books on metallurgy and mold, and more. And phone books for most cities and towns in the state–the Internet doesn’t always do the trick.

Smaller firms aren’t necessarily behind our larger colleagues in adopting new technology–it all depends on firm culture and willingness to change, and the availability of a person to oversee or perform the work. A larger firm is more likely to have a dedicated IT department or person; in smaller firms, managing upgrades and equipment changes typically falls to the staffer or associate most comfortable with tech, or the work may be contracted out. Small town or rural firms, though, may have a harder time staying current because of the lack of knowledgeable local computer consultants, although that is changing. Available technology may differ, too–here in Montana, DSL and broadband were available in some rural communities before some larger cities, but you can’t use an iPhone because ATT does not serve the state. That will probably change soon, and is one more reminder not to get too specific about techno-details in our stories.

Another advantage–although it doesn’t always seem that way–of technological advances is that lawyers can work at home more easily.

 

In the courts:
Courts practices vary. Federal courts now use an electronic filing system called ECF. Some states have similar systems; some don’t. Developing that kind of software is expensive and takes years. Most courts maintain an electronic index of the pleadings filed in a particular case, but whether that is available online varies. One major obstacle to electronic access is the need to protect private information in court filings such as dates of birth and account numbers; the states are still developing systems to address that need.

Technology has also affected the discovery stage, the formal process for exchanging information in litigation. Court reporters type depositions into machines that dramatically shorten the waiting time for a transcript and improve the accuracy; we often get electronic transcripts a day or two after a deposition. Discovery typically includes interrogatories–written questions requesting information–and requests for production of things and documents. In complex litigation, hundreds of thousands of documents can be exchanged.  It’s now common to receive discs of scanned photographs or documents. Production and review of documents maintained on computer files can be a real challenge; do you produce every individual email, or just the chain?  If one recipient in a group drops out of the chain, or responds to a sender privately rather than to the entire group, those emails need to be reviewed carefully and produced. How vigorously do you need to search old hard drives or computers that have been passed on to other users?

Discovery requests increasingly call for electronic discovery, including backups, deleted files, and metadata. I just read an article on cell phone forensics–mining data from cell phones, PDAs, and smart phones. It’s not always easy, because the evidence can disappear quickly or be deleted by continued use. In a recent construction defect case my firm handled, the evidence included text messages between the builder and homeowner. Both state and federal Rules of Civil Procedure have been amended in recent years to deal with electronically stored information.

Recovery of deleted files has come a long way. When I sent a hard drive to a recovery service about ten years ago, in a sexual harassment case, only some deleted emails could be recovered. I suspect that recovery would be more extensive now.

In the courtroom, presentation software has replaced most of the posterboard and foam core board exhibits we used to use, though not entirely. (There may be times you want to leave a diagram or photograph up and visible to the jury for all or part of a trial, and posters are still the best medium, although they may include computer graphics.) It’s possible to project a document, highlight a sentence, or copy and drag several words and phrases to the side of the screen in larger font for emphasis. Most courtrooms have been upgraded to include projectors and screens. In some, the lawyers or their staff manage the technology; in others, a court employee is in control. Some courtrooms, especially in the federal system, include monitors in the jury box so jurors can look at exhibits closely. Hard copies are still used to show the judge and opposing counsel in advance, and are sent to the jury room during deliberations. Some federal courts are now using the Jury Evidence Recording Management System, or JERS, to allow juries direct access to evidence during deliberations, through a touch screen kisok. Some states may have similar systems.

Many courts now use a real time system of simultaneous transcription, allowing the judge to view an uncorrected version of the transcript on a screen as the court reporter inputs testimony and argument; the judge can mark sections for later use. In some trials, usually more complex, high-dollar cases, the attorneys may pay to hook up to the system as well. If not, a staff member may take notes on a laptop.

When a case is tried to a judge without a jury, the judge frequently issues a decision in the form of findings of fact and conclusions of law. Each side submits proposed findings and conclusions, in hard copy and a disc, which the judge and law clerks use to prepare the final decision.

Appeals courts increasingly require briefs to be submitted in both hard copy and by disc, and post the briefs on the court website. My state’s Supreme Court now offers lawyers the option of receiving decisions and other notices by email instead of a mailed copy.

 

Mistrial by Google:
Google, Twitter, and Facebook have invaded the jury box. I recently read an article about a federal drug trial in Florida where a juror admitted he had been researching the case online. The judge then questioned the rest of the jury and discovered that eight other jurors had done the same thing! He declared a mistrial in the eight-week case. The same article mentioned an Arkansas civil case where a building products company requested a $12.6 million judgment be overturned because a juror sent Twitter updates during the trial; that appeal is pending. In a federal corruption trial in Pennsylvania, a juror posted updates on Twitter and Facebook; the judge denied the request for a mistrial, and the issue of whether juror misconduct interfered with the right to a fair trial will be decided on appeal.

Judges have long given jurors standard instructions against doing any research, visiting the scene, or discussing the case with anyone. What’s the risk? The rules of civil procedure and evidence have evolved to ensure that jurors hear and consider only reliable evidence that’s been properly disclosed– “subjected to scrutiny and challenge from both sides,” as one law professor put it. Jurors who research a case on their own may see news reports of evidence that’s been excluded from trial, or consult a biased or unreliable website. Now, judges have to be more specific, and develop instructions that emphasize the risks and the reasons for the ban on juror research and communication.

And you can bet lawyers will be Googling potential jurors, looking at their blogs and websites, and checking them out on “Spacebook,” as my mother calls it.

Blogs and newsletters:
Many lawyers and firms use blogs as marketing tools to reach clients and potential clients. A Seattle firm, www.LexBlog.com, specializes in creating blogs for law firms of all sizes. Others send out regular electronic newsletters. Frequent topics include discussion of cases recently handled, and comments on new court decisions and developing issues. The more focused, of course, the more useful.

And of course, lawyers’ own inboxes fill with newsletters from bar associations, our malpractice carriers, CLE providers, and our clients. I’ve “attended” seminars by live webcast, and downloaded recorded seminars. And lawyers can report their annual credits and pay their bar dues online, too.

Your fictional lawyer’s daily life is affected by technology in the same ways as your own, and so is his or her practice. Use a cell phone interruption or a quick Google search to shift direction in a scene. Give your chronically lost protagonist a car with a GPS system to help her show up on time, or to confuse her by sending her in the wrong direction! Instead of spending hours in a dark basement searching through dusty files, your lawyer character will go blurry-eyed from searching PDFs and sprain her wrist from overusing the track-ball.

Keep things in balance, though. Your character may use Google Earth to check out potential jurors’ homes in a real estate lawsuit–or she may think there’s no substitute for a drive-by, or that she just needs to get out of the office. You decide. Technology has changed our lives, but it hasn’t changed human nature.