Time Keeping in the Cloud

Even though I am a government attorney, and don't bill my clients, I still have occasion and need to keep track of my time. Why? Because as a general rule, I submit a proposal for settlement a/k/a offer of judgment in each of my tort and civil rights cases. Without getting into the specifics of the Florida rule, if we do better than the offer at trial, my client is entitled to recover fees and costs from the time of the offer.

I use toggl.com to keep track of my time, and I've been very happy with it. It's easy to use, it's got a widget to use outside of a browser, and it's free!

What do you use for your timekeeping?

What Should Lawyers Know, and When Should They Know It?

Ralph Losey recently posted a wonderful essay on his e-Discovery Team blog comparing the state of attorney knowledge about ESI to the famous Plato's Cave allegory.

As usual with Ralph's pieces, you must read the whole thing.

Among the comments there, you'll find a couple of mine, sandwiching a response by Ralph, all of which I reprint here:

Jim: Great rant, as usual. I wish I were as optimistic about the current and future generations of attorneys. Many of the young lawyers I know see the computer as little more than a typewriter on which one can also play games and communicate socially. This is not necessarily their fault, for they have never been required to learn anything more. The same is true of undergraduate and even high school students–they are asked and expected to use the computer superficially (”Present your report using PowerPoint.”) without being given any training whatsover as to what they are creating, or how to create it effectively. Thus, I’m afraid merely modifying the mode of delivery of CLE is no more effective than painting the cave wall upon which the shadows are cast. What needs to change is the substance of education to require students to learn how electronic data is created, stored, and communicated. That needs to begin far earlier than post-professionally. The main reason it hasn’t, as you note, is that as limited as the knowledge of the youngsters is, the “elders” doing the teaching know far less, and have neither incentive nor inclination to learn more.

Ralph Losey: First thanks for the comments. I need to clarify two things I said.

I didn’t say all children, I said all children of protodigital parents. Big difference. I see it in law school classes and in my grown children’s friends. I will edit the blog to make that clearer because I don’t disagree with your comments, predicated as they are on the assumption that I meant postdigitals to be an age group. I do not. There are plenty of paper people and protodigitals of all ages, even teenagers. But until just recently there were no children of protodigitals. They are just starting to come out now so look out. They are, however, still pretty rare, just as the first protodigials were pretty rare. You will know them when you meet them. Of course, they still need training. But they learn very, very fast.

Second, regarding the objections to online education as the answer. Remember that the medium is the message. Of course, just because an education is online does not mean it is good. In my view, for online education to work, to turn people around in the Socratic sense, it needs to be interactive, hands on, creative, and include dialogues and community. That is why your comments are so appreciated. Please keep them coming. Perhaps you have other specific suggestions as to what an ideal education would include, online or otherwise?

Jim: Thanks for the kind reception you gave my comments. Your concluding question is huge in scope, so my response necessarily only scratches the surface.

I first take the liberty of rephrasing the question slightly: How should education change to prepare more fully attorneys to deal with modern technological issues? To be sure, attorneys like you, Craig, and others have been leaders in opening the profession’s collective eyes to the issues that technological change continues to bring. That effort has recently made great strides particularly at the law school curriculum level. But I sense that your article reflects a certain frustration that we are not only swimming upstream, but also that the current’s speed is increasing.

Thus the question remains. I focus on three aspects: a) what should lawyers (or potential lawyers) be taught? b) when should it be taught? and c) how should it be taught?

WHAT. I firmly believe that it is essential for attorneys (and yes, judges, too) to have a basic understanding of the science of technology as it pertains to ESI. ESI is already the predominant method of communication by both clients and attorneys, and becoming more prevalent every day. To be able to deal intelligently with the legal issues surrounding ESI, an attorney should know, at a minimum, the functioning of basic email/calendar (e.g., Outlook) and word processing software; their online equivalents (e.g., gmail, Google Docs), and the relationship between the electronic data used (and metadata created) by those programs and the pixels we see on a display or cause to be printed on a piece of paper.

WHEN. Perhaps the time has come to acknowledge that admission to law school should require this basic level of knowledge. I realize this will be sacrilege to some who extol the fact that the LSAT tests “reasoning ability” and not knowledge, and that an undergraduate’s choice of major does not matter. But the truth is that one cannot “reason” one’s way to understanding metadata and hash values. If admission to medical school requires a basic understanding of biology, why shouldn’t admission to law school require the same of ESI? The issues extend across most if not all fields of law–not just civil and criminal litigation.

As a corollary, I also contend that law school is too late to teach this knowledge. Rather, law school should be the place where students learn the procedures for putting that knowledge to use, such as the “meet and confer” conference. In that sense, this issue is analogous to legal writing. The purpose of legal writing class in law school is to teach legal writing mechanics–the memo, the brief, case exposition, analysis, etc. It does not, and cannot, or at least should not be expected to, teach rhetoric and grammar. That knowledge is (often unjustifiably) assumed, but it is at least tested for in the LSAT.

Of course, even if the LSAT could be instantly changed, we would still need to address the needs of practicing lawyers (and judges). To do that, I suggest that more is needed than attending a CLE seminar where all the recent ESI orders and opinions are solemnly discussed. That is simply not how ESI is learned. Attorneys who wish to practice in federal court should be required to demonstrate a minimum competency in ESI, just as they must do in evidence and procedure.

HOW. As I indicated in my initial response, I don’t think it’s terribly important whether this learning takes place using computers or paper. Regardless, and as I indicated above, I think that passively sitting listening to a panel of attorneys swap ESI war stories is NOT the way to go. As a slight aside, I do think it’s great that technology now allows for a much greater selection of online CLE courses, but it never ceases to amaze me how many of those courses make zero use of technology (other than recording them of course) to enhance learning–no graphics, no interaction, nothing.

Those are my thoughts–and as unlikely as their implementation may be, I firmly believe that the ever-accelerating pace of our technological revolution requires us to think about preparing people to be competent lawyers in very new ways.

To Text, or Not to Text?

On Sharon Nelson's blog Ride the Lightning, a tale of texting too bizarre to make up:

HOW TO SCREW UP YOUR OWN CASE: TEXT A TESTIFYING WITNESS

On August 11th, Miami-Dade Circuit Judge Scott Silverman, after earlier declaring a mistrial, dismissed with prejudice a civil fraud lawsuit involving the sale of a condo tower. What made this decision interesting is his reason: a boss sent text messages to his employee, who was then testifying on the witness stand. This was done surreptitiously as the judge and lawyers conferred in a sidebar conference.

Sky chief executive officer Yizhak Toledano sent the messages to the company's chief financial officer, Gavin Sussman. In May, the judge ordered a mistrial when a spectator alerted him to the misconduct. Clearly incensed, the judge questioned Toledano and Sussman, who admitted to the texting. The judge then ordered the messages to be read aloud and into the record.

Toledano's texting "was underhanded and calculated to undermine the integrity of this court and the legal process," the judge wrote in his dismissal order. "Regretfully, plaintiff through its unacceptable conduct has reached into the court's quiver of sanctions, drawn the bowstring taut and aimed the arrow at the heart of its own case. This court has justifiably released the string."

He also wrote "Plaintiff waited until the court and the attorneys were preoccupied so that its conduct would go undetected," the dismissal order said. "Plaintiff took what scant few moments it had to try to secretly sway the witness' testimony."

Silverman awarded attorney fees and costs to the defense and referred the financial issue to a general magistrate.

Curiously enough, Sussman appears to be a guy who just doesn’t learn. Two months before the trial, he improperly texted a witness during a deposition and was reprimanded by the magistrate.

Silverman said he took the previous conduct into account. No doubt.

With a nod of thanks to Sir Walter Scott, “Oh what a tangled web we weave when first we practice to deceive.”

IMHO, Lady Justice was well served here.

Macro for Paste Special

SOMETIMES you want to paste text in Word, but you don't want it to retain its current formatting. Instead, you want it to adopt the formatting in your document. There's a slow way to do it; a better way; and the best way

The slow way is just to paste in the new text, say "oh, well" to whatever format changes occur, and manually repair the changes.

The better way is to use the Paste Special option, either through the Edit menu or by Ctrl+Shift+V hotkey combination, but even that requires each time you do it that you to select "unformatted text."

The best, as published recently on Lifehacker, and before that on Screened by Slimm, is create a macro and assign it that hotkey. Here's how:

1. From the View tab, create a new macro named PasteSpecial.
2. Replace the contents of the code editor with the following text:

   Sub PasteSpecial()
Selection.PasteSpecial DataType:=wdPasteText
End Sub

3. From the Microsoft Office button in the upper left-hand corner, choose Word Options -> Customize, and then click the Customize button next to Keyboard shortcuts at the bottom to bring up the Customize Keyboard dialog.
4. Choose Macros from the categories list on the left, and then your macro in the Commands box on the right-hand side. Now you can enter in a shortcut key (Ctrl+Shift+V or your own), and click the Assign button.

Production of Hold Letters

Here's a good post on the question of when a litigation hold letter must itself be produced in discovery.

What to do when the jury wants to view the electronic evidence

The Federal Evidence Review has the answer in this post, at least according to the few courts that have addressed the question. There's sure to be more.

Need an Electronic Signature? Here's How to Create One

Armi Agarwal has a thorough, easy-to-follow post on how to create a digital signature.