Quimbee logo
DMCA.com Protection Status
On Demand 1h 1m 17s

How the Internet Is Making Lawyering Worse and How to Be a Good Lawyer in Spite of It

4.7 out of 5 Excellent(15 reviews)
Start your FREE 7-day trial
Access Quimbee's CLE library for free with a 7-day free trial membership.

How the Internet Is Making Lawyering Worse and How to Be a Good Lawyer in Spite of It

Internet based technologies, such as email, document management software, teleconferencing, and ediscovery, for all their upsides, are in fact making it harder to do diligent lawyering. This course analyzes how technology has changed the way lawyers work and even think, and how some basic rules of evidence can no longer be followed. Due to professional pressures we are forced into technologies we don’t need and forced to practice in sloppy ways where mistakes are more likely. We are increasingly surrounded by “dark matter”, case file materials or relevant evidence which cannot be accessed and which we may not even know exists. Strange as it might seem much of our time now is waiting for software to execute, time which we cannot devote to other matters. The presentation ends with simple suggestions on how to get the digital beast under control.

Transcript

- Hello, my name is Dan Schiavetta. I've been a lawyer for 30 years and much of that time has been spent either explaining technology issues to older lawyers or getting the tech people to set things up in a way a lawyer wants it to work. The title of this presentation, or maybe I should say essay, is How the Internet is Making Lawyering Worse and How to Stay Good in Spite of It. Many things we do as lawyers are better with technology. Let's be honest, some things are now worse. Let's back up a bit. In 1971, I was 14 years old. I called up a girl in my class I had a crush on and I wanted to ask her out, which at the time meant going out to the local lunch and net for an ice cream soda. Kids would call each other a lot in those days. This is about the third time I called her and it became clear to me on this call finally that she was not interested. I heard the hesitation in her voice. I could sense her groping around for an excuse the seize, the half completed sentences, which I waited for her to complete. When I ended by saying some other time, I knew that time would never come. I was devastated of course, at that age everything hits you harder. Later on I was on the other side of the situation and I realized how hard it was for Patty to turn me down. What if someone approaches you. Who doesn't do anything for you, but it's a nice person who seems lonely. Anyway, it was a nuanced conversation on a clunky two pound bell system telephone wired to the wall so heavy it was practically bolted to the kitchen counter. It belonged to the phone company and God help you if you dropped it and it broke. That was in the age of analog. Now we are on the age of digital. Everything is ones and zeros. If something is not loud enough for one, it's zero. It cuts out. You can't hear the size or the moderating under the breath. We can't tell when someone has really completed their thought. As a result, we talk over each other. No thought gets completed, no nuance gets expressed. There was a TV show in the 1990s where a group of old people got their first cell phones and they treated them as old style walkie talkies. When they were finished they said over and when they wanted to hang up, they said over and out. We got a good laugh, but I remember thinking, that's actually a good idea. If we did that, we could have better conversations on cell phones or even on landline phones because now they're digital too. What am I saying. Do what advances in technology, voice to voice communication is now actually worse than it was in 1971. This affects us as lawyers. There are a lot of things we don't want to commit to in writing. It's better to literally things out first. I don't know how many times I said some stupid things in conversation, hashing out how to do something, case strategy or something like that, and after listening to the other person by the end of the conversation I'd come to the opposite conclusion. We don't want things like that in email. What do you send emails on the record and it's forever. Another example, more recent, those still in the past for most of you, round about 1990 WordPerfect was the word processor of choice for most lawyers. I used it in law school. It quickly took over from programs like MultiMate and Word Star. It was fast, intuitive, it could do every single lawyer wanted and it didn't try to change the way you wrote. If there was a formatting problem, you could hit Alt F3 reveal codes and find the code that was screwing things up and delete it. I still think that for lawyers, WordPerfect 5.1 for DOS, which came out in 1987 was the best word processor ever made. Then starting around 2000, it was crowded outta the market by Microsoft Word for two reasons. One word was bundled with windows and other Microsoft products that deliberately did not mesh well with WordPerfect and our clients started using Word for their own documents and they wanted us to send us our stuff to them in Word. Even though the documents they had to write tend to be way simpler and shorter than what we lawyers had to write. Word is a program that you continually have to fight in order to get what you want. You have to create styles for everything and if suddenly everything your document gets underlined, there's nobody to fix it you can't get into the codes. In fact, Word seems proud of the fact that you can't get into its codes. It's like a princess in some medieval saga defending her virtue. Also, you have to use the mouse more. The old model F keyboard had the function keys on the left and you could easily access any feature without leaving the keyboard. For example, Alt F3. Now my view is that any responsible lawyer these days must know how to touch type. And if you can type with any speed, using the mouse just slows you down and everyone thinks fast and they can type, so anything that take makes it takes you longer to type gets in the way of thinking. Also, it's handy to have a word search function for documents that might have been written in another program. WordPerfect was aware that it was not the send with the universe that there were documents created with other word processors that it could search. This was not true. As we moved to the era of Microsoft Word. One time I asked one of those word MVP experts how to do word searches for non-Word documents. She said, how can any program do that. But in fact, WordPerfect did it in 1987. In fact, any word processing program did that in those days. As a result, we've given up, we've gotten used to doing things the Word way. We've dumbed ourselves down. When I tell these stories to younger lawyers, they grew up in the era of words, so they don't know what I'm talking about. They simply can't imagine a program which is intuitive. Which doesn't try to change the way they write or the way they think, so we lawyers of course depend on Word processing. But due to the advance of technology, Word processing is actually worse than it was in 1987. Microsoft Word cannot double indent a paragraph that is if you want it numbered or lettered. And what about a series of paragraphs, some of which are numbered, some of which are not or which are not consecutively lettered. This is important when you're quoting parts of a contract such as an insurance policy, you can't do it in Word. What if you're creating a table of authorities and you want all those dots extending to the right margin where you see the page number it's called flush white with dot leaders. You can't do that with Word. It's a feature that mimics it there, but you have to guess where the margin is each time you use it, which makes it worse than useless. As a result, there are things we simply don't do anymore. Now let's talk about today almost all law firms use some kind of document management software. The truth is most firms don't need it. If it's a firm of less than maybe 50 lawyers and they don't do work that deals with gigantic files like patents or securities litigation. Their databases are just not that big. Just stick with Windows Explorer. Well, now it's called File Explorer. It's much easier to find things that way and if you forgot where something is, add a good word, search program, that's all you need. I don't think I have to explain to you the frustrations of document management software or at least to older lawyers. Younger lawyers don't remember how much easier things used to be. You're forced to categorize the document or a photo or a video into some kind of category which does not fit the facts of the particular case or if you want to invent a new category, it's a big production, you might need administrative approval. Then you can't turn it off. Adding any document requires you to fill in 10 fields, seven or eight of which you'll never use so you enter garbage into those boxes. Anything comes to your mind just to get to the next screen. Recently, I had to change the format of a document to get it entered. Our client sent us a text document and I had to convert it to Word otherwise the software wouldn't recognize it. Of course, this made it inadmissible as evidence because it wasn't in the form kept in our client's normal course of business more on that later. Some programs go into an existential crisis. If you ask them to do a word search or ask them to accept an item in a strange format. Nothing like this ever happened with Windows Explorer. All you had to do was create the appropriate folder for that case and copy whatever it was into the folder. Didn't matter what format it was in. In a few hours the word search program would index it and it would become searchable even for PDFs. As it is like with digital telephones that have changed the way we converse or Microsoft Word, which has changed the way we write, the software has displaced the way we apply the law and your materials. You will find a case Collins versus City of Milwaukee where the court orders the parties to exchange materials in a form compatible with document management software. The rules of evidence be damned. The legal profession has simply given up to whatever whims possessed the non-lawyer who wrote the code for the software. As bad as it was, document management problems became worse. When we went onto the cloud, I used to have a series of macros, single keystrokes where I could do Alt D, create my signature line Alt S, the section symbol Alt P, the paragraph symbol ALT L, my personalized letterhead and so forth. On the cloud, the macros got wiped within today for some reason the IT person couldn't figure out. So I don't use macros anymore. I laboriously type out my signature line and to get to the section symbol, I have to go to the menus and point and click five times. If you don't do this stuff yourself, it's not a headache for the lawyer. It will be a headache for the paralegal or the secretary. The truth is document management is now worse than it was in 1998. For the first time we can lose documents just by a few wrong points and clicks. I mentioned the hearsay expression for exception for business records often due to the software, you can't produce your client's material as it was used in a normal course of business and if you want to create documents efficiently with macros and what other functions you want, it's better just go offline and work on them without all the noise of the internet. The cloud software getting in your way. Upload it When you finalize it. Of course you might forget to upload it and just email it to whoever needs it. It might not ever get into the document management software database, which brings us to another aspect of technology which should be helping us but often does not. E-discovery software. Again, this is something your firm doesn't need unless you have files that are many thousands of pages long and I mean many. Something that's 10,000 pages. Well, when I was a new associate I had to look through files like that. It might take all day, but a live person can do it. Sometimes though I can see that e-discovery software is necessary. There was a recent patent case which involved over a million documents, not a million pages, a million documents. But if possible you should avoid e-discovery software because of the hazards involved. The software searches, documents and email chains by a word search algorithm. You can read their materials, their promotional stuff, which says they pick up possible misspellings but in fact it can't pick up all possible misspellings not without making the search so broad as to the useless. It does not pick up documents where someone phrases something in an unusual way. Some cases involve terms that are too common to be searched or a name that is too common to search at a case once where one of the main witnesses, his name was Terry, that's how he pronounced it, but it was spelled T-H-E-R-E. How do you search for that? In the materials you will see a case, Cleveland versus Behemoth where the e-discovery search missed some messages because of a flaw in the program's algorithm and of course this only came to light because one of the attorneys figured out that the messages had to exist and this was an attorney a live person. What if there was no one like that on the scene. What if there were dozens of messages somewhere in cyberspace to use an old term now that contained vital evidence but which no one suspected were there in which the ones who actually had created the message had forgotten about. The flaw on the algorithm I don't mind saying this was logical. The most popular e-discovery app, the case is only from a year ago, so this was a recent version. How many other flaws are in that algorithm and it can't just be logic call. It could have been Google Analytics or any other e-discovery program. In the supplemental materials there's another case, William A. Gross Construction versus American manufacturers where the attorneys are fighting over which search terms to use. Implicit in that argument was the acknowledgement that some documents are going to be overlooked no matter what they do. We lawyers are casting about in the dark depending on an e-discovery program with a sweeping flashlight that might hit some things or might not. Now this reminds me of a passage in a Dickens Novel. I read a lot of Dickens, sorry. Novel's called Martin Chuzzlewit and I think this is his daughter Anna and Dicken says she opened the door and shading the candle with her hand peered out and looked provokingly around him and about him and over him and everywhere but at him. That reminds me of e-discovery software. In the days of hard copy. This kind of haphazard search would be considered sloppy practice or worse. Back around 1994 in the hard copy days, an older attorney pointed out to me a file. There's one of his files that took up maybe one whole drawer. He said, see that there's probably 10 instances of malpractice in that file, but the way things shake out, they never come to light. He's retired now, but I wonder what he would say about searching thousands of documents by algorithm. What am I saying? Document review is now worse than it was in 2000 and this is not the end of it. No algorithm, no matter how well written can separate important documents from unimportant. What you get from e-discovery is a great deal of inconsequential material and also false hits, documents that might belong to another case or documents that are privileged. The e-discovery robot has categorized the documents but you end up having to painstakingly bit by bit, having to recategorize them. Another thing that is exacerbated by the use of the internet is the increasing culture clash between I'm going in order of increasing authority here. IT people, legal secretaries, paralegals, junior associates, senior associates and partners. For the IT people, the problem is that they never have to use the platforms that they're responsible for maintaining except for email. If an attorney comes to them with a problem, say a certain program doesn't do this or that, the IT person will either not understand what she's talking about or not understand why it's important. At the other end unfortunately you still have senior partners who who see ignorance of technology as a marker of status. This attitude goes back a long way. When I was looking for work in the 1970s, I was an undergrad psychology major and the word was don't ever say on your resume that you can type. It meant you would be stuck in a low status secretarial work while the important work is done by others. Years later as a new lawyer at my first firm, we lawyers were not allowed to use the machines, which is what they call the computers. Only the secretaries and paralegals were allowed to touch them and now still we have senior attorneys who think that all the issues I've talked about, well it's beneath them. These are the same guys who think that being hard to reach makes them most important. We know that mentality. It's not just ego though, it's partly that they act like this because it works with clients, it impresses them when the partner says he leaves the technical stuff to the associates. Don't ever say it you can type. Up till now, I've talked about what happens inside the law firm. Now I'm going to talk about what happens outside. The internet has always made lawyering worse when it comes to representing clients. In the first place many businesses now keep their records online. Some are required to by law, I'll get to that in a minute. They often use proprietary software specific to the industry which law firms are not allowed to buy. So we lawyers never get to try it out and get familiar with how our clients do things. If you're lucky, you will have a long running client who will give you a read only password so you can poke around their files, but usually your clients are using software that will always be a mystery to us lawyers. Instead, we only get the printout an artifact created by the software usually in PDF form which looks nothing like the actual file. It looks nothing like what the employee was looking at when she inputed a note or an order or something else onto the screen in front of her. I've had depositions where a client can't authenticate her own note because she doesn't recognize it on the PDF printout. On site inside the client's office, the people there can probably tell you about their own frustrations with online software. It's similar to our own problems with document management. For example, a document or note getting put into the wrong place. The programs will have a search function, which is wonderful but you didn't need one before. Now you need the search function so you can find the dams thing. The online database is rarely the entire file. Often there's a hard copy component which the client might have forgotten about, maybe some opening documents on the case or the file or the job or it got scanned into the software where it's not integrated and where the search function doesn't work. By the way, scanning an original piece of paper and disposing of it makes the PDF inadmissible. There's case law on that. You can look up Russellville Holdings versus Peters. This is not in the materials where these brilliant minds, they represented a hospital, they decided to scan the hard copy records and throughout the originals as a result they got hit with spoliation sanctions. It's not just a matter of the best evidence rule. Scanning is imperfect. Sometimes you don't pick up colored ink. Sometimes you don't pick up the backs of documents something. Sometimes things are too faint to make it onto the pdf, so no client should do that. I mentioned saving things in wrong places. Some of the employees might not be tech savvy enough to work the software or to work it well. It might be a business with a lot of offsite work where you can't easily input something onto the cloud and finally with a lot of these programs there is a laws of functionality when a job is finished or a case is closed. Areas that you used to be able to get into are grayed out inaccessible. Even with a password, you can't see what your witness was looking at at the time in question. I'm saying this not because I love to complain, but just to point out that you have to take all of this into account when talking to your client about getting the relevant records. I'm going to talk about something I deal with a lot in my practice. Electronic medical records, EMR or EHR, Electronic health records. Most medical caregivers are now subject to the High Tech Act of 2009. Which requires them to keep medical records in electronic form if they want reimbursement from Medicare or Medicaid or rather if they don't comply, they don't do this. A percentage gets deducted from their reimbursement and the percentage goes up every year. They have to engage in what's defined as meaningful use of BMR and there are a number of yards that's set up, which I won't get into here, but once again, there is proprietary software involved which lawyers can't buy. I learned how to use it only because I knew a nurse from one of our cases who taught at a certain school. I wanna identify who gave me a student password, which got me into some, you know, fictitious patient files set up by the college. One hazard with EMR is the cut and paste error where old or incorrect information gets repeated. This can be literally deadly. Also like before they have to put in false information just to get to the next screen or misleading information. What if there another thing? What if there's an emergency and several doctors and nurses have to do something together? There's only one kiosk out there on the unit and the screen signed on to only one caregiver. Even though several people are entering notes looking at the chart later, it's impossible to tell when the audit trail says it was logged onto by Dr. X, whether the note was actually written by Dr. Y or nurse Z. Also, records of other caregivers are not integrated. If it's a nursing home which received a patient from a hospital, then of course the hospital records get sent over. The hospital was using different software and even if they use the same software as a different password, so the hospital chart gets grafted onto the EMR chart in a PDF form, which is often unsearchable. Another problem, and this exists with any business but which has critical consequences for a healthcare facility is what happens when you switch from one platform to another. For example, from Cerner, C-E-R-N-E-R to Epic, E-P-I-C. Those are two of the most widely used EMR platforms. You will need a technician to integrate the old into the new and you certainly have to do this within say 90 days. I don't know, it depends, but at some point the old provider will dispose of the data. And what if your vendor goes out of business. This has happened, this case law on this, we're switching to another vendor and being unable to retrieve records from a prior patient because the old vendor has gone out of business resulted in sanctions for spoliation. There's yet another thing that couldn't happen in the old hard copy days. For lawyers the main issue as to electronic records is how to authenticate them so if they're admissible at trial, since nobody who uses the software knows how it works, you will need a technician for this also. There are even certifications for this. One is the certified forensic data examiner, CFDE. A certification originally promulgated by the Department of Homeland Security. Now you often see these folks used in civil cases. Another headache is piping the screen into the courtroom so that the jury can see it. Most courthouses have technology that is pretty primitive. You might have heard the phrase, the internet of things. This refers to the universe of connected digital devices, which we now use every day in which your client will use not only computers and email but the cloud, online storage, smart phones, smart houses which regulate and record thermostats. HVAC turning on and off flights, doorstep cameras which can identify visitors with facial recognition technology. Bluetooth for example, where someone's phone is on a certain car system can be important evidence. GPS telling us where the car was or where the person was. Geo tags on cell phones showing when and where the person was when a particular photo was taken. Wearables such as fitness trackers, which usually record ambient conditions as well, medical monitoring devices, smart watches, and then there's surveillance values of videos patched into the facilities, physical plant software and digital assistance like Alexa, which don't always record just what you think. They are programmed to recognize what are called hot words which might activate when you don't mean to activate conversations recorded with Alexa or Google Home or other programs have been used as evidence in one case to vacate a conviction for murder. Even video games such as Xbox, which have a chat field on the side, the chats have been admissible. I can go on and on with this, this exploding universe of sources of evidence that might be material to your case but make you crazy. That is if I haven't already made you crazy. It simply impossible in most matters that lawyers handle, it's impossible to get everything that might be relevant evidence. So where does that leave us? In the pre-internet days, a lawyer could always be bigger than a file. Maybe not physically, but even if the file filled up a room of cabinets, you knew it was all there. You could fit it all into your brain no longer with the internet. Your file is now bigger than you and you don't know where all of it is. Even the parts you might have laid eyes on at one point or worse yet don't even know what should contain. Astronomers tell us that 85% of the universe is made of dark matter. That's what they call it because they can't see it, they don't know what it is, they don't know what it's made of. They don't know how to detect it or examine it. They only know it's there because it has a gravitational effect on the things they can see. We lawyers are not as well off as astronomers. We group about with our professional expertise in a dark matter universe and we don't know how much of it is out there. Sometimes in rare cases we can detect something because of its gravitational effect on what we do know is there. Such as that case I mentioned before with the missing messages that somebody figured out had to exist. But what if a critical email disappeared into a spam folder. In your materials you will find the case of Jewelry versus Gatrow from 2020. Where a notice of default was missed because it got stuck into a spam folder and the court held that this was not an excuse. The motion to vacate got denied. Default judgment against your client. Now, who among us ever looks at their spam folder. When do you ever do that? Only if someone told you she sent you something and that's a big if. I'm not gonna tell my adversary that I've served them a notice of entry. I don't want to remind him that he has only 30 days to appeal. What about offline material. I mentioned before that document management software is so clunky that it's faster to work offline. On whose laptop did that critical document get saved is that laptop still around. Was it saved on a computer that now is in a landfill. There are 2000 landfills in the United States. How about material that got diverted into the wrong file or was accidentally deleted about old emails with attachments referring to other attachments? These are called parent attachments where all you see is the PDF icon but the link is dead. If you're my age and started out in the age of carbon paper and you've seen technology develop, you might also remember the queasy feeling we got in the late 1990s when windows were placed DOS. That's DOS, it stood for Disc Operating System. The predecessor to Windows. A windows 3.1 was okay, but with Windows 95 it began to crash. It would just stop you in the middle of what you were doing. It was worse than a program freezing up. The entire computer would stop functioning. Microsoft made it sound like it was your fault. A box came onto the screen saying you have performed an illegal operation and windows will now close or worse. You got what was called the blue screen of death filled with code characters and all you could do is turn the computer entirely off, wait five seconds for the RAM to get flushed out and then restart what was called safe mode pressing the F8 key. As you start up and in safe mode sometimes you couldn't access the program you were in the middle of using. This problem came to focus as the year 2000 approached. In the 1950s, computer capacity was sparse and to save space years were only given in two digits the last two digits. This was never changed. When 2000 arrived, how did the program know it was not 1900. It both ended with zero zero. Fortunately, the problem got fixed ahead of time and there wasn't much in the way of mishaps. That's because if there was ever an upcoming disaster where you knew the nature of the problem and how to fix it and exactly when it was going to happen, it was Y two K. But in the process engineers had to root out old old two digit year codes and replace them with four digits old codes. There are thousands of old codes in every piece of software we use today. These are supposed to be dead codes which no longer get activated or do they? How do we know it's something written by a pimply teenager like me in 1995 in intro to computing class in in Fortran? That was an old programming language. Then how do we know it won't wake up and start roaming the cloud biting software in the neck sucking the blood out of. Well, I don't wanna go on with that analogy, but the fact is old codes and dead codes are everywhere. They stay embedded because they don't seem to get in the way. We don't seem to get in the way of new products. Software keeps getting more bloated and it never has to pay a price because hardware always saves its butt. You might have heard of Moore law, M-O-O-R-E. Law is that computing capacity doubles doubles every two years. Moore proposed that law in 1965, 1965 and it still holds up so we still have dead codes lurking around, it can be fixed. Someone like Bill Gates who has all the money in the world could easily hire a team of engineers and strip them all out, build everything back up again from the zeros and ones and we'd end up with programs that take up a lot less space, run faster or less clunky, less buggy, but won't freeze up or crash. We won't be subject to viruses or any other kind of internet based pestilence, but he won't do it, so we continue sitting on top of dead codes. Our digital world is a magnificent palace, but it's built on a foundation of oatmeal. If you haven't tune me out by now and I should have warned you don't drink caffeine before listening to the presentation. I think a glass of wine would be a lot better. I wanna point out one more thing to worry about and we all know it. That is in the digital world, we are one step from disaster. Have you ever accidentally sent an email to the wrong person because of autofill. I've done it probably so of you. And it wasn't a disaster but it could have been we're hitting the wrong reply button. There was a cartoon in the New Yorker a few years ago. Two guys in a cubicle are working in a smoking metallic booth in helmets, testing knobs and dials with lab coats on and the guy in the next cubicle walks over with his coffee and he says, You mean to say you invented a time machine just so you could go back and hit reply instead of reply all. Inadvertent disclosure in the hard copy days, you had to put in some effort really to inadvertently disclose something that was privileged with the internet's easy, it's just a click away. Unfortunately, the rules have not changed and the materials you'll see federal rule of evidence 502B. Which talks about when a mistaken disclosure can be excused and undone and not act as the waiver of the a waiver of the privilege. Factors include whether was inadvertent. Well, that's a lot easier to show now. Whether the lawyer took reasonable steps to prevent disclosure. Well, this might not be possible with e-discovery programs missing things. And whether the lawyer promptly notified the other side of the disclosure, the other side of the disclosure. Well, with a big file in digital format. Nothing might come to your attention for some time. Another source of disaster is responding to a phish a P-H-I-S-H. We've all become more on the alert as it is now. Another is the problem of de-duplicating. How do you know you disclose the final version of something. There are a bunch of files in there with similar names and the one with the latest date might not be it. It might be one of the many drafts. Now I'm going to finally say something good about the internet. You can find information much more quickly. It does allow crazy people to find each other and has become an incubator for conspiracy theories. In the old days, a crazy person would sit on a part bench and babble his delusions and no one would listen to him. Now he can go online and find hundreds of people around the world with the same delusion. They nurture it, allow it to grow and flourish, but most of us have developed a good BS detector. This is true especially of the emerging generation. It seems that those of us who first encountered the internet in middle age are the ones more susceptible to crazy ideas. Young people are less so, they are much better informed. They can look up anything and they can talk with people around the world. Is no longer possible to protect a child from the outside world and that's good. Kids know so much more now even at a young age. When I think of all the ignorant crap my mind was filled with when I was a teenager, for example in 1971, all that superstition and misinformation, particularly about other cultures and about sex and really most kids my age then were they were just as filled with the same crap. They're just no comparison with today. The emerging generation is better because of the internet. They're less homophobic, less racist, more tolerant, and it's because they can easily get to know so much more information and they get to go with Zoom or something else to get to meet. Different types of people from around the world. Also, legal research is faster. Though I still have my doubts about that. In law school, we were transitioning from the West key number system to word searches. It was when West Law and Lexus first started putting their computers into law schools. The professor I was working for, I was doing research on energy regulation, co-generation and things like that, and I said, What if a judge is using unusual words to discuss something or God forbid what if he's talking in plain English and not using a bunch of legal terms. The word searches that I concoct might miss that case and the professor said that's all we have to go with now. I was researching qualifying facilities, QFs. This was under California law. It was defined by statute and I spent hours and hours looking for the term QF and it was a bumbling search. I didn't find anything, although I found out later that there wasn't anything defined. I only found one case out of Maine, which was good enough for my professor. But anyway, I'm sure that e-discovery does a lot better job with word searches than I did with QF. However, as I pointed out, there are problems with that. So in spite of the tender of my presentation so far anyway, there are advantages in this new world. I'm 65 years old, it'll always be new to me. I got my first internet account in 1997. I was already 40. But it reminds a means a fact that there are downsides. Let me make a list. Things are now slower. That seems strange to say, but this is true as at least as compared to the pre-internet era. I'll get to that in a minute. We unavoidably make more mistakes now that a mistake is just a key stroke away. We have lower expectations of word processes than we did in the days of WordPerfect, lower expectations of document management. Lower expectations as to searching case files than we did in the days before e-discovery. Lower expectations as to what we can talk about on the phone than we did when I made that call to Patty in 1971. We stumble around in a dark matter universe where we can't ever know even our own file. There's a danger of spoliation with evidence that gets lost. Maybe evidence we didn't even know existed. We live in fear of unpleasant surprises such as when our adversary comes up with email messages that our search engines missed or a notice of entry that got diverted into a spam folder. This didn't happen in the days of hard copy. In those days, every piece of mail that came in God looked at, there was no such thing as spam things that some robotic program prevented us from seeing and also everyone in the firm thinks differently and has different levels of sophistication as far as technology. I mean there are still lawyers that who do nothing but try cases. Who still don't know how to turn on a computer, so the lack of uniformity in entering material which was so, wasn't so much a problem in the hard copy days. Okay now, technology has made things slower, but in the pre-internet era, the DOS era, you didn't have to wait for a document to get pulled up. It came up instantaneously. You didn't have to point and click a dozen times to get to it. When you were working on a document. You didn't have to wait 15 or 30 seconds while the draft you were working on on the cloud saves that sentence you just added so that you can continue. We didn't have to wait for any lists to get populated. Printing was instantaneous. This is another thing we forget. The DOS era was an era of snappier work. Things got done in the amount of time it took to type them basically. The faster a typist you were, the more work you got done or your secretary or your paralegal. Now the seconds we have to wait, it's not like you can do something else in the meantime. There's not enough time for that and it's unpredictable when the screen will clear and you can continue with what you were doing. You just have to wait and wait and look at that screen. Finally, we get to the effects on our thought processes. Much of what we lawyers do is not rote R-O-T-E. It requires thinking and creativity. Now, these quotes on the screen are from long ago, but I think they're apt. One from John Robinson a bishop in England who wrote a very controversial book called, Honest to God in 1963 and one from William Wordsworth, the romantic poet, but they're still apt. Concentration is ravaged we are consumed. The world is too much with us. We waste our powers by always being prodded and poked interrupted, having to wait. We have to always be on concentrating 24 hours. Well, the time we're awake and certain the time we're in the office. I would love to be once again alone in a room with a hard copy file and a yellow legal pad. Just me and the file. Just carefully look through it knowing it's all there. No distractions, no interruptions, silence. I write down my ideas of what has to be done, what arguments could be made. I can look them up later on the computer, but just some ideas as to what issues are involved. You know how that old business about issue spotting. A lot of things that they, they teach in law school and they grade you on are irrelevant to actual lawyering, but one important skill that they do teach, which you have to learn to get do well on their tests is to spot issues and you can do that best if you're just sitting there thinking just you in the file using your knowledge. I can't do that kind of stuff anymore. I can't be alone in a room with a hard copy file anymore because there's no hard copy files, at least not entirely hard copy. You always have to go running back to the computer or to your cell phone with email and the internet. It's hard to just sit and think. The most important thing for a lawyer to spend time on is thinking. You can't bill for thinking, so we find ways to phrase it in our billing entries. We all know that, but thinking has to be done. Let me switch gears here. As far as I know, nobody has done a presentation on this topic. Why is this. I don't consider myself a particularly creative person. I'm an older lawyer who was able to think about these things because I have a good memory and a long history of explaining tech issues to people and recently I had a period of forced inactivity. So I had time to work this presentation up. But most of us are not aware of what has been happening. That's why you haven't heard a presentation like this before. We're stuck with these things we don't think about it. For the most part, we buy these technologies for our law firms, not because we want to, but because we have to. It was like the demise of WordPerfect. We didn't switch to word 'cause we wanted to, but because we had to. Eventually we got used to it and didn't think about it anymore. Often we went along to be on the same path as our clients, even though our clients had different needs and running their businesses than we did in running our law firms and usually lesser needs in some ways, particularly as to things like word processing. We go along because of professional pressures. Nobody wants to be caught saying, We don't have a document management program. We still use Windows Explorer. It makes you sound so 1995. We go along because other law firms do. It's easier to communicate and exchange discovery. If you're using the same programs. Sometimes clients insist on it. One from I know of their biggest client, which was an insurance company, made them switch to a document management software platform, which is just horrible. It has all the vices that I told you about before, but in spades, but that's how it is in the world. You have to do what your big clients want you to do. Ever have a client to insist to use a certain investigator or a certain expert. How often does that person turn out to be any good? It's probably the cousin of the CEO or maybe that client. The corporation exists in an environment where they themselves are not thrilled with the product but are themselves forced to use it. Sometimes we might have to go along because of governmental requirements. I talked about the High Tech Act and medical providers having to use EMR. I hope, I hope, I hope we lawyers are never forced by statute to use such and such a technology to run our own offices, but even without out and out government requirements, judges will require the two sides in the case to put their discovery in such and such a form, which can be done only by the use of a certain technology. It's increasingly important for both sides of lawyers to agree on which kind of inadmissible format they'll use. In the materials that there's a very instructive trial level federal decision Henry Morton Stanley data security litigation. It's a long decision but it's practically a course in itself as to how we now get around the requirements of the business records rule and also the best evidence rule. I mean whoever makes an original signature anymore. In the context of digital documents. It also talks about this case talks about standard file formats and educates you a lot as to the current jargon. Mention it at your next cocktail party. It'll make you sound really up to date in your materials. There's also a case which discusses how electronic evidence or ESI electronically stored information fits in with the business record exception, the hearsay rule and the best evidence rule. That's Profit Point Tax Technologies versus DPAD group. It discusses federal of civil procedure 34B and whether the hearsay problem can simply be ignored when dealing with ESI electronically stored information. So we just go along with the new technology. Why doesn't anyone criticize it? Am I really alone here. In the first place there are not many people who will say anything bad about it. Think of what happens when you do research about a new software, a new platform. Go online and see what I mean. Look at the videos. They might be actual sales people who are trying to get you to buy the product. They won't say anything bad about it. They might be administrative assistance giving instructional videos to employees. For example, someone from administration in a hospital putting online a video for doctor nurses to look at on how to use a certain new EMR platform they just obtained. These folks are not gonna say anything bad about this new program that their boss just spent a lot of money on. They might be lawyers and IT experts given CLE courses who want to look like they're on the cutting edge. Notice that I've been sounding like an old curmudgeon today. They don't wanna look like that. Remember that new is not always better. Also, as lawyers we all know the difference between looking like you're doing a good job versus actually doing a good job. For example, think of motions for summary judgment. A good one is as short as possible. You're telling a judge, this case boils down to 123. Nothing for a jury to decide. The motion might be five pages. The best possible summary judgment motion as Hemingway put it, the important thing in good writing is knowing what to leave out. But how many clients will be impressed with a five page summary judgment motion. So you put in a long-winded motion, 90 pages, all kinds of extraneous material in it. It looks like a really good job. You worked really hard on it and impressive the client, but in fact, it's a worse job. Seeing all those fact issues, the judge is more likely to throw for hands and let the jury sort everything out. Well, all these people talking about new technologies, they want to look like they're doing a good job. We don't stop to think that the new software is developed by people who never have to use it. This is almost always the case. Sometimes you see software built by a lawyer, but this person is no longer a practicing lawyer. Still, we go along because we have a lot of work to do and wanna get to the end of the day, so we don't argue. After a while we forget what things were like before. A good part of my presentation is to remind you what things were like before or maybe we just don't wanna think about it. Who would make our life more complicated. Just go along and start thinking the way the software want you to think. There are some people whose thought patterns, whose way of doing things happens to match the new software. To them, it's intuitive. These are the lucky few. Most of us have to fight our natural inclinations and though after a while those fights descend into our unconscious mind and that's probably not good. So how do you stay good in the phase of all bone? I've been throwing at you the last 45 minutes, 55 minutes. You can't go toe to toe with everything. You cannot counteract directly everything that technology is forced you to do that you didn't have to do. You will go nuts trying to do that. But I've got some simple ideas. There are ideas based on how my brain works though I think it might fit a lot of other people's brains also. First of all, if you're fighting difficult software, don't let it win. You can with practice, operate on two levels. On one level, get your work done and on the other, remind yourself that it really does suck to do things this way. If you find something wrong or hard to do or counterintuitive or some other deficiency in the software, don't let it slip away from you by the next day. Other things will have crowded this outta your brain and you'll forget about it, don't let that happen. Notify your IT person and your office manager. Maybe you used the program wrong. It could be the problems with you and not the technology. I've made a number of complaints today about various technologies, but I had a much longer list of complaints when I first had to use these things and I found out all I had to make was a simple change here and there. Something that didn't require me to change the way I thought or the way I worked, but maybe your complaint is on the money. Maybe you're correct to complain. Complain to the IT person might give that person an idea as to how to fix it. That again, if he knows what you're talking about. Create a running text file as to things you encounter and keep it handy. Do it offline if possible. Use a simple text editor like Notepad. Let me parachute into this presentation a bit. I've talked about elsewhere, something I learned the hard way during the many years when I was an associate. I bring it up here because it's harder to do these days with voice communication being worse and all the other pitfalls I mentioned. What if you discover that your boss, the partner, made a mistake on a case. There are four aspects here. First, make sure it's clear to anyone who looks at the file that it wasn't your mistake. Secondly, make sure your client never finds out. The best thing you do is fix the mistake. If it can't be fixed, think of a plausible excuse why it was deliberately not done or was done in such a way. For example if your partner has blown the deadline on a submarine judgment motion. Well, we deliberately didn't make the motion because it would've provoked a cross motion, which would've been trouble for us because blah, blah, blah, et cetera. You learn to get very creative in situations like this and finally let your boss know that he made a mistake and that you fixed it. You can't rub his nose into the horse. This is especially delicate if he doesn't know it was a mistake and you have to educate him on it without making him feel like idiot. In the era of slow, clunky technology where things might get misplaced, you have to be more careful in how to phrase things and where to put the documents. A good idea is to put an internal memo in an out of way location worded in such a way that's subtle but unmistakable. Maybe put it in two places, but always put it where someone will find it if push comes to shove. Sorry I just had to say that a bit. What do I do? How do I deal with this dark matter universe? I spend an hour a day away from the internet of things. Spending time away from the internet things is liberating. I turn off my cell phone and I stay away from the computer. As a lawyer, you can find some pretext for doing this even during a working day, even in the office, if you're stuck there, there's always some hard copy book you can consult or pretend to be consulting. There is still things that you can only find in a book. Or you can just take a walk around the block, go to lunch without your cell phone. I wrote a song about this. I could sing it here, but they'd probably take away the CLE accreditation for this course and nobody wants that. Work offline as much as possible. Tune out the noise. Of course make sure when you're finished, enter your work into the document management software. I carry a little notebook around with one page per case. Just the case name, file number, what the case is about and what has to be done. I currently have about 30 cases and that works fine with me. When you've done that task, that has to be done. Cross it out with pencil and write the next thing. Don't show it to anybody. Don't enter anything from it into the file or vice versa. And finally look at that running textile of complaints. If it goes that far enough, it might contain issues like the ones I've discussed. It might turn out that some of them don't matter anymore or have been resolved who knows. Keeping your thinking straight and relaxed and undistracted. You might find that part of the dark matter surrounding you, surrounding all of us lawyers has cleared up or maybe has become a little bit easier to live with. My name is Dan Schiavetta. If you have any questions, there's my contact information, my email and phone. Call me any old time. Thank you for your time.

Presenter(s)

Dan Schiavetta
Of Counsel
Russo & Gould LLP

Credit information

Jurisdiction
Credits
Available until
Status
Alabama
    Pending
    Alaska
    • 1 voluntary
    Available
    Arizona
    • 1 general
    Available
    Arkansas
    • 1 general
    Approved
    California
    • 1 general
    Approved
    Colorado
    • 1 general
    Approved
    Connecticut
    • 1 general
    Available
    Delaware
      Pending
      Florida
      • 1 technology
      Approved
      Georgia
        Pending
        Guam
        • 1 general
        Available
        Hawaii
        • 1 general
        Approved
        Idaho
          Not Offered
          Illinois
          • 1 general
          Approved
          Indiana
            Pending
            Iowa
            • 1 general
            Approved
            Kansas
              Pending
              Kentucky
              • 1 general
              Approved
              Louisiana
              • 1 general
              Approved
              Maine
                Not Offered
                Minnesota
                  Pending
                  Mississippi
                  • 1 general
                  Approved
                  Missouri
                  • 1 general
                  Available
                  Montana
                    Not Offered
                    Nebraska
                      Pending
                      Nevada
                      • 1 general
                      Approved
                      New Hampshire
                      • 1 general
                      Available
                      New Jersey
                      • 1 general
                      Approved
                      New Mexico
                        Not Offered
                        New York
                        • 1 law practice management
                        Available
                        North Carolina
                        • 1 general
                        Pending
                        North Dakota
                        • 1 general
                        Available
                        Ohio
                        • 1 general
                        Approved
                        Oklahoma
                          Pending
                          Oregon
                          • 1 general
                          Approved
                          Pennsylvania
                            Pending
                            Puerto Rico
                              Not Offered
                              Rhode Island
                                Not Offered
                                South Carolina
                                  Not Offered
                                  Tennessee
                                  • 1 general
                                  Approved
                                  Texas
                                  • 1 general
                                  Approved
                                  Utah
                                    Not Offered
                                    Vermont
                                    • 1 general
                                    Approved
                                    Virginia
                                      Not Offered
                                      Virgin Islands
                                      • 1 technology
                                      Available
                                      Washington
                                      • 1 law & legal
                                      Approved
                                      West Virginia
                                        Not Offered
                                        Wisconsin
                                          Not Offered
                                          Wyoming
                                            Not Offered
                                            Credits
                                              Available until
                                              Status
                                              Pending
                                              Credits
                                              • 1 voluntary
                                              Available until

                                              Status
                                              Available
                                              Credits
                                              • 1 general
                                              Available until

                                              Status
                                              Available
                                              Credits
                                              • 1 general
                                              Available until

                                              Status
                                              Approved
                                              Credits
                                              • 1 general
                                              Available until

                                              Status
                                              Approved
                                              Credits
                                              • 1 general
                                              Available until

                                              Status
                                              Approved
                                              Credits
                                              • 1 general
                                              Available until

                                              Status
                                              Available
                                              Credits
                                                Available until
                                                Status
                                                Pending
                                                Credits
                                                • 1 technology
                                                Available until

                                                Status
                                                Approved
                                                Credits
                                                  Available until
                                                  Status
                                                  Pending
                                                  Credits
                                                  • 1 general
                                                  Available until

                                                  Status
                                                  Available
                                                  Credits
                                                  • 1 general
                                                  Available until

                                                  Status
                                                  Approved
                                                  Credits
                                                    Available until
                                                    Status
                                                    Not Offered
                                                    Credits
                                                    • 1 general
                                                    Available until

                                                    Status
                                                    Approved
                                                    Credits
                                                      Available until
                                                      Status
                                                      Pending
                                                      Credits
                                                      • 1 general
                                                      Available until

                                                      Status
                                                      Approved
                                                      Credits
                                                        Available until
                                                        Status
                                                        Pending
                                                        Credits
                                                        • 1 general
                                                        Available until

                                                        Status
                                                        Approved
                                                        Credits
                                                        • 1 general
                                                        Available until

                                                        Status
                                                        Approved
                                                        Credits
                                                          Available until
                                                          Status
                                                          Not Offered
                                                          Credits
                                                            Available until
                                                            Status
                                                            Pending
                                                            Credits
                                                            • 1 general
                                                            Available until

                                                            Status
                                                            Approved
                                                            Credits
                                                            • 1 general
                                                            Available until

                                                            Status
                                                            Available
                                                            Credits
                                                              Available until
                                                              Status
                                                              Not Offered
                                                              Credits
                                                                Available until
                                                                Status
                                                                Pending
                                                                Credits
                                                                • 1 general
                                                                Available until

                                                                Status
                                                                Approved
                                                                Credits
                                                                • 1 general
                                                                Available until

                                                                Status
                                                                Available
                                                                Credits
                                                                • 1 general
                                                                Available until

                                                                Status
                                                                Approved
                                                                Credits
                                                                  Available until
                                                                  Status
                                                                  Not Offered
                                                                  Credits
                                                                  • 1 law practice management
                                                                  Available until

                                                                  Status
                                                                  Available
                                                                  Credits
                                                                  • 1 general
                                                                  Available until
                                                                  Status
                                                                  Pending
                                                                  Credits
                                                                  • 1 general
                                                                  Available until

                                                                  Status
                                                                  Available
                                                                  Credits
                                                                  • 1 general
                                                                  Available until

                                                                  Status
                                                                  Approved
                                                                  Credits
                                                                    Available until
                                                                    Status
                                                                    Pending
                                                                    Credits
                                                                    • 1 general
                                                                    Available until

                                                                    Status
                                                                    Approved
                                                                    Credits
                                                                      Available until
                                                                      Status
                                                                      Pending
                                                                      Credits
                                                                        Available until
                                                                        Status
                                                                        Not Offered
                                                                        Credits
                                                                          Available until
                                                                          Status
                                                                          Not Offered
                                                                          Credits
                                                                            Available until
                                                                            Status
                                                                            Not Offered
                                                                            Credits
                                                                            • 1 general
                                                                            Available until

                                                                            Status
                                                                            Approved
                                                                            Credits
                                                                            • 1 general
                                                                            Available until

                                                                            Status
                                                                            Approved
                                                                            Credits
                                                                              Available until
                                                                              Status
                                                                              Not Offered
                                                                              Credits
                                                                              • 1 general
                                                                              Available until

                                                                              Status
                                                                              Approved
                                                                              Credits
                                                                                Available until
                                                                                Status
                                                                                Not Offered
                                                                                Credits
                                                                                • 1 technology
                                                                                Available until

                                                                                Status
                                                                                Available
                                                                                Credits
                                                                                • 1 law & legal
                                                                                Available until

                                                                                Status
                                                                                Approved
                                                                                Credits
                                                                                  Available until
                                                                                  Status
                                                                                  Not Offered
                                                                                  Credits
                                                                                    Available until
                                                                                    Status
                                                                                    Not Offered
                                                                                    Credits
                                                                                      Available until
                                                                                      Status
                                                                                      Not Offered

                                                                                      Become a Quimbee CLE presenter

                                                                                      Quimbee partners with top attorneys nationwide. We offer course stipends, an in-house production team, and an unparalleled presenter experience. Apply to teach and show us what you've got.

                                                                                      Become a Quimbee CLE presenter image