ABA

On Friday during ABA TECHSHOW, we?ll be presenting the first annual Jim I. Keane Memorial Award, for excellence in e-lawyering. The award will be presented to a lawyer or law firm that has demonstrated innovation in the delivery of legal services over the Internet. We?ll be having a special plated luncheon for this event, which is included in the price of registration for our attendees. Don?t miss it!

Just when it seemed safe to leave your laptop computer in "sleep" or "hibernation" mode, comes a startling report that a computer left in such a mode is extremely vulnerable to confidentiality breaches. A research team that includes researchers from Princeton University and the Electronic Frontier Foundation (EFF) have found a security flaw in disk encryption technology used in many PCs and Apple computers, allowing unauthorized access to the data. According to the EFF report, "[l]aptops are particularly vulnerable to this attack, especially when they are turned on but locked, or in a "sleep" or "hibernation" mode entered when the laptop's cover is shut. Even though the machines require a password to unlock the screen, the encryption keys are already located in the RAM, which provides an opportunity for attackers with malicious intent." The research paper characterizes this new discovery as a major security flaw because it goes to the fundamental architechual features that disk encryption products have in common. This flaw can be easily exploited on laptops, but servers with encrypted hard drives are also vulnerable. The world of mobile computer security continues to evolve, and lawyers must stay abreast of these developments or face the consequences imposed by Rule 1.6 of our Rules of Professional Conduct. Join us at Techshow on Saturday, March 15 at 9:45 am for Securing Your Client's Data While on the Road to help reduce the risks and improve your productivity while you are working away from your office.

In January 2008, the Federal Judicial Center published Managing Discovery of Electronic Information: A Pocket Guide for Judges. The primary author is Judge Barbara Rothstein, Director of the Federal Judicial Center, along with Judge Ronald J. Hedges (a former Magistrate Judge in New Jersey, now an e-discovery lawyer with Nixon Peabody), and assisted by Elizabeth C. Wiggins, who often educates federal judges and serves as a Project Director and Senior Research Associate at the Federal Judicial Center. The Guide really emphasizes something that is seen all too rarely, federal judges being more proactive in the management of e-discovery, specifically raising ESI points to consider rather than waiting for the parties to identify and argue over matters. Come and hear about other current development in ED at TECHSHOW during the session entitled Report from the Front Lines: E-Discovery After the New Federal Rules.

f you ship a lot of Federal Express packages, you might find this free download helpful. The big benefit is being able to generate a shipping label from your contacts without having to manually enter the address. You can also track packages, look up rates, schedule pickups and find the nearest Fedex location from within Outlook. These are functions you can handle right now in a web browser so if you don?t want to clutter up Outlook, you might not want this plug in. But if you spend lots of time creating shipping labels or otherwise working with Fedex, you may like this software.

The 80:20 Rule is a rule of thumb for setting information security priorities. It says that implementation of 20% of the key technical security steps will address 80% of the risk. While it has been stated in different ways, Symantec, a leading security vendor, includes in the 20% of technical steps: removing unneeded services, patch management, and enforcing strong passwords. The 80:20 Rule helps to identify priorities, but it is important to address all key information security steps, including people, procedures and technology. This year?s TECHSHOW will include the following sessions which will cover various areas of information security: Securing Your Clients? Data While on the Road (basic), Anatomy of a Law Firm Data Breach (advanced), and Authentication, Encryption and Log Management (advanced).

For those of you attending ABA TECHSHOW, we?ve got lots of opportunities for you to have fun and get to know your fellow attendees, TECHSHOW faculty, and exhibitor representatives. Our first event takes place on Thursday night, March 13, in the Grand Ballroom of the Hilton Chicago. The first-ever ABA TECHSHOW After Dark promises to a great way to end your first day at the conference with a live band, food and drink, and some great door prizes. Whatever you end up doing in Chicago Thursday night, make sure your plans include spending some time with us at ABA TECHSHOW After Dark!

More often than not, I find that I am the greatest impediment to implementing new technology in my practice. Even where a new technology promises to speed up efficiency or reduce costs for clients, I realize that there's always a short term cost - the time required for me to come up to speed. For example, personal resistance accounted for my reluctance to switch back to using a Mac even though I wasted at least an hour a day waiting for my balky Windows machine to reboot. (in case you're curious, I did make the jump, which I described here - http://gdgrifflaw.typepad.com/home_office_lawyer/2007/03/carolyn_elefant.html) In my case, I'm lucky in a way. Since I run a true solo shop (outsourcing to temps where needed), I only need to convince myself to take a new approach. But what about lawyers practicing in larger firms? How do they overcome not just their own resistance but that of the other lawyers who - let's face it - can be a bit on the stodgy side. The Rosen Law Firm in North Carolina had one novel approach - as I wrote here (http://legalblogwatch.typepad.com/legal_blog_watch/2008/02/law-firm-starts.html), the firm bribed lawyers and staff to use its new wiki by offering a $1000 prize. Each time staff added to the wiki, they'd gain another chance to win the cash. By coming to ABA TECHSHOW, we have an incredible opportunity to learn about technologies that can help improve our practice. But attending the show and learning about new technology represents just part of the journey. We need to keep in mind what comes after. I'm going to give some thought to some ideas for post-TECHSHOW implementation which I hope to share in a follow up post.

10/18/2007: Bockar v. Tartler d/b/a Rocky Mountain Limousine This is a personal injury case involving a car accident. Plaintiff, a radiologist, is claiming significant money damages for his loss of income, claiming that he can no longer work or do any physically demanding activities. Defendant has performed surveillance over a period of three years, and the video shows the Plaintiff doing yardwork, loading various items into cars and walking. Defendant?s attorney has prepared DVD?s with the ?highlights? of the hours of video that he plays during Plaintiff?s cross examination. During the examination, many jurors ask questions out of frustration, including, ?is that supposed to be the Plaintiff?? During questioning prompted by the jurors? questions, the Plaintiff testifies that he isn?t sure that the subject of the video is him, as the images presented at the time of that question were not clear. Later in the examination, the video clearly shows the Plaintiff, but because of the earlier confusion, the presentation is confusing and the impact lost. Moral: Obtain sufficient identification and authentication information for any surveillance tapes well in advance of trial. This may be that rare case where written discovery, such as Requests for Admission, can actually assist a trial lawyer. It is generally not the case that surveillance video has greater impact if it is ?sprung? on opposing counsel at trial. Set the video up during the party?s deposition by asking specific questions about their physical abilities, obtaining their denial that they are capable of doing those activities, and then use the authentication from Requests for Admission to set up the video so that it can be presented smoothly, without confusion.

On December 6th, the CIA admitted that it had destroyed videotaped evidence of detainee interrogations. The taped interrogations occurred in 2002, and the tapes were destroyed in 2005, allegedly after they were of no value to the CIA and were not needed for investigations. PC World writes that though the CIA is a government agency and not subject to the Federal Rules of Civil Procedure, private companies engaging in the same actions could be subject to severe sanctions for destruction of evidence. The Federal Rules require companies to keep electronic records when faced with a lawsuit or the possibility of a lawsuit. There also can be punishment for failure to keep required electronic records. The CIA press release can be found at https://www.cia.gov/news-information/press-releases-statements/press-release-arc hive-2007/taping-of-early-detainee-interrogations.html and the PC World article at http://www.pcworld.com/businesscenter/article/140594/cia_not_a_role_model_for_corporate_cios.html

Learn what it takes to win trials. The American Bar Association's trial practice books will guide you through topics such as jury selection, witness preparation, expert witnesses, examination and cross-examination, crafting a persuasive argument, electronic evidence and discovery, effective computer presentations, ethical issues, and more.

• MacCarthy on Cross-Examination
• McElhaney's Trial Notebook, Fourth Edition
• Going to Trial
• Trial Lawyer: What It Takes To Win, The (Paperback)
• Questions from the Bench

The Internet continues to roll out some fun tools that are great at keeping people connected and talking about a conference, whether they're attending the conference or not. At ABA TECHSHOW 2008 we plan on making use of some of these tools, and we're really excited about the possibilities. Here are some of the things we're working on for the show: -- A blog feed that will aggregate all of the live-blogging at ABA TECHSHOW, as well as any other blog posts regarding the show. -- A Twitter feed will update conference attendees about upcoming sessions, events, and other fun stuff, via text message or on the Web. -- Got a camera? Bring it to ABA TECHSHOW, 'cause we're working on a Flickr feed that will show all the photos taken at the conference all in one place. -- During the conference our speakers will discuss useful and interesting websites for lawyers and legal professionals. Our del.icio.us feed will allow attendees to create a page of links from some of the sites they learn about. You won't have to be an ABA TECHSHOW attendee to see what's going on during the conference. But if we do this thing right, you'll wish you were :-) If you're attending the show, look for more information in upcoming email blasts or blog posts on how to participate.

All you crackberries out there know exactly what I mean! But for anyone that hasn't yet drank the BlackBerry Kool-Aid, you should know that OS 4.5 is on its way and it will offer just about everything your heavy laptop can offer! Thanks to PC Magazine (http://www.pcmag.com/article2/0,1895,2255033,00.asp)we now know what's in store for us! Without reviewing model by model and server by server, lets take a look at some of the great new features offered by the new operating system: ? Spell check -- I have a Blackberry 8830 and I hope it is an improved version of the spell check software already available. ? BlackBerry Maps with Points of Interest -- With the free Google Maps for PDA, the points will have to be of the utmost interest! ? Improved media player with playlist support and automatic playlist generation -- This is a good plus since, for the moment, the best playlist I can create is an Album or Random. ? Voice note recording-- This is a big plus! I installed VR+ to use my Blackberry as a dictaphone or to reply verbally to the emails I receive. Having this feature built into the new models is a treat for Voice recognition software users. ? Streaming support for YouTube and Sling Player -- Wow! We'll be able to watch our favorite movies and tv shows while commuting to work or waiting at the airport! ? Bluetooth stereo music -- Another nice plus since, for the moment, we must use wired headsets to benefit from stereo. ? Microsoft Office document editing with DocumentsToGo -- This is the grand revolution in my book, but I'm anxious to see if we will need an annual/monthly plan or if RIM got into an agreement with DTG to provide their solution for free. For the moment, I am using eOffice which would be satisfactory if it had delivered all the functionalities it represented. Unfortunately, it does not and the customer support it offers is poor, to say the least. ? Native format attachment downloading -- I look forward to seeing the number and types of supported formats. Zip would be nice to open large attachments. Furthermore, it is one thing to download an attachment; it is another to be able to edit them and I will rely a lot on DTG for that task! ? HTML e-mails -- Nice to have it bundled, but unless it offers the possibility to turn e-mails into calendar events or notes I don't plan to move away from $20 Bbsmart. ? Over-the-air device upgrades -- That is a plus which will definitely help our BlackBerries to stay up to date even while on the road without a computer and a USB connection. ? Free/busy calendar lookup -- This will likely be a useful addition, particularly if it is as well done as many of the Windows Mobile software programs. ? Searching the server for old e-mail messages -- Due to my high "information hygiene" and the fact that my inbox is purged daily, I can't see any use for myself but I can definitely see the benefit for many (most) people who use their inbox as a document management system. Thanks to RIM for encouraging users to help e-discovery vendors to make a few extra bucks! ? Video recording on Curve models -- My BlackBerry 8830 is not equipped with a camera but I could definitely see myself at the last Rush concert filming Neal Pearl during his drum solo. I am sure this is exactly what RIM had in mind. :-) To learn more about the present, past and future of your new best friend (sorry for your dog!), join Brett Burney and I on the Mobile Track at ABA TECHSHOW. We will discuss and review an array of third party software to make your life easier and provide you with tips and how-to's for your preferred mobile platform (Windows mobile, Palm, iPhone, etc.). Bring your PDA with you!

Please join three attorneys with broad experience in the area of corporate investigations as they address the do’s and don’ts of conducting corporate investigations, and the ethical issues raised when counsel conduct or participate in the investigations. Register Now.

On October 17th, 2007, the Supreme Court of New York County ruled that a doctor?s e-mails, sent on his employer hospital?s system, were not privileged. The hospital located the e-mails during discovery, did not read them, and notified the doctor of their existence. The doctor moved to suppress the e-mails, claiming they were privileged. The hospital claimed the doctor waived his right to privilege because hospital policy prohibited personal e-mailing while on the job, and the policy included the right to access the e-mails without notice. The doctor argued that he was protected by New York Civil Practice Law 4548, which states that no communication shall lose its privileged character just because it is transmitted electronically. The court applied a four-part test used in a bankruptcy case with similar issues to determine whether the attorney-client privilege would apply to personal e-mails exchanged by an employee with an attorney over a company-controlled communications system. The test states the privilege would not apply where (1) the company maintains a policy that bans personal or other objectionable use; (2) the company monitors employee use of computers or e-mail; (3) third parties other than the employee have a right to access the computer and the employee's e-mail; and (4) the company notifies the employee of its use and monitoring policies. The court concluded that the hospital had met all four requirements in this case, and denied the doctor?s motion to suppress. The full opinion can be found at http://www.nycourts.gov/reporter/3dseries/2007/2007_27429.htm I will be discussing this case as well as other new developments in e-discovery with Judge John Facciola and Browning Marean in ?Report from the Front Lines: E-Discovery After the New Federal Rules,? on the E-Discovery track March 14 at ABA TECHSHOW.

That's right -- we're extending our early bird registration deadline to this Friday, February 8, so that you can take advantage of up to $300 in savings over the regular registration price for ABA TECHSHOW. Just head over to the Conference Registration Page (http://www.abanet.org/techshow/register/) and register today!

10/16/07: Bockar v. Tartler d/b/a Rocky Mountain Limousine: 10/16/07

This is a personal injury case involving a car accident. At the start of the case, pursuant to custom, I read a list of witnesses to the jury panel to determine if they know anyone. No jurors raise their hand to indicate that they know any of the witnesses. During trial, as one witness was walking to the witness stand, a juror indicated that she knew the witness, but knew her from her name before marriage.

Lesson? Use technology to help avoid problems in trial. Presenting not only a list of witnesses, but also photographs of them would go a long way toward anticipating this kind of problem. Trials have become extremely expensive: guard against unnecessary expense by anticipating.