Author: TSA Press

Why Law Firms Are Moving to the Cloud

Why Law Firms Are Moving to the Cloud

Clio

SCOTUSblog has confirmed the sad news, on Twitter:

Justice Steven served on the Supreme Court until 2010, when he was succeeded by Justice Elena Kagan.

For lawyers, Stevens will be best known for writing the opinion in Chevron v. Natural Resources Defense Council. Writing for a unanimous court, Stevens wrote what would come to be viewed as the proper deference courts should give to the statutory interpretation of administrative agencies, like the Environmental Protection Agency. It is a key pillar of modern constitutional law, so of course it’s something that Justice Neil Gorsuch evidently wants to tear down.

For non-lawyers, Stevens will be best known for his scathing dissent in Bush v. Gore. When the Supreme Court, along partisan lines, decided to choose the President of the United States, Stevens called a thing a thing:

The [majority opinion] can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.

Though he retired in 2010, under a not insignificant amount of pressure that then 90-year-old Justice might not survive should President Obama lose his bid for re-election and end up being replaced by a Republican President, Stevens still had a lot left in the tank. His latest book: The Making of a Justice: Reflections on My First 94 Years, was published in May of this year.

Now that everybody knows that retired Justice Stevens is not the same person as current Justice Stephen Breyer, we can all reflect on the life and career of the man.

Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

In totally unsurprising news, Attorney General and Trump Bather William Barr declined to bring charges against Daniel Pantaleo, the NYPD officer who choked Eric Garner to death in broad daylight.

To come to this conclusion, Barr had to overrule the recommendation of the Civil Rights division at the Department of Justice, according to two DOJ officials.

Again, none of this is actually surprising. America is a racist country and, within her borders, it is more or less legal for cops to murder black people, so long as that murder is not somewhat obviously premeditated. The prosecutors that Barr went with said that they couldn’t prove the case that Officer Pantaleo “willfully” intended to choke the life out of Garner. Even though Pantaleo placed Garner in an illegal choke-hold, a move banned SINCE 1993 precisely because it leads to death.

Saying you can’t prove an officer strangled another man on purpose even when you have video showing the officer using an illegal strangulation move is like saying you can’t prove gravity exists as you throw black people off a plane, because you can’t see them hit the ground.

But Barr angering his white supremacist president and his white supremacist supporters by prosecuting an officer who merely killed a nonwhite person was never going to happen. Barr can’t even stand up for the rule of law when the Supreme Court orders him to. There was no chance he was going to seek justice on behalf of a black person in America.

In related news, James Alex Fields, the man who killed white woman Heather Hyer, was sentenced to a second life sentence in Virginia today. The judge called Fields’s actions, “an act of terror.”

NYPD officer in Eric Garner’s chokehold death won’t face federal charges [NBC News]

Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

According to the ABA, what state massively expanded its roster of attorneys, with a whopping 62 percent more attorneys in the 2019 ABA National Lawyer Population Survey over 2018’s numbers?

Hint: As you might imagine, it takes a smaller state to see a boost that big.

See the answer on the next page.

We refuse to share the silence of most of the Republican caucus in Congress, whose timidity in the face of this abhorrent behavior reflects the debased politics of the day. We add our voices to those who condemn the President’s ignorant racist nature and urge all citizens of whatever party to join us in rejecting a politics of division that is an affront to the rule of law.

— Checks and Balances, an organization of conservative and libertarian lawyers, in a statement released in response to Donald Trump telling a group of minority congresswomen to go back to their own countries… even though they were absolutely born in the United States. It should shock no one that George Conway has signed on, but some other conservative legal luminaries also joined the statement.

The full statement from Checks and Balances (and the full list of signatories) can be found on the next page.

[Ed. Note: The Nation is running a story, “Donald Trump and the Plot to Take Over the Courts” I wrote about Donald Trump’s and Mitch McConnell’s stacking of the federal judiciary. I profile several odious Trump judges. One of those profiles is reprinted, with permission, below. Check out the full piece on thenation.com.]

Don R. Willett
Position: Fifth Circuit Court of Appeals
Age: 53
Hostile to: Civil rights, federal laws, gun regulations

It makes sense that our Twitter president would nominate a Twitter judge. Nearly every story about Texas Judge Don Willett mentions his Twitter feed, mainly because he has one and it’s exceedingly rare for a judge to have any kind of presence on social media. Unlike Trump, Willett has tended to cop an “aww, shucks” Twitter persona, praising his mother and presenting himself as an affable, God-loving family man.

Hidden among the dad jokes and puppy pictures, however, you’ll find a meaner streak that exemplifies his judicial opinions. In one tweet, Willett, a fierce opponent of marriage equality, joked that he could “support recognizing a constitutional right to marry bacon.” In another, he called a transgender woman allowed to play on a girls’ softball team “A-Rod.” Apparently, he’s another cis-dude bro who thinks the transgender-equality movement is just another ruse for people who want to cheat at high school sports.

Since Willett was confirmed to the Fifth Circuit in 2017, his Twitter feed has fallen silent, and we have only his record and his decisions to go on. That record is anything but kind. He previously served on the Texas Supreme Court, and none other than religious-right leader James Dobson of Focus on the Family called Willett the “most conservative” judge on the court—a claim he proudly repeated in a campaign ad.

Touting yourself as the most conservative judge on a court in Texas is like boasting about being the most violent member of your street gang. It’s a terrifying thing to be proud of, even to other members of the gang. But Willett wasn’t fronting; in decision after decision, he backed up his boast.

Prior to the Supreme Court’s decision protecting same-sex marriage in Obergefell v. Hodges, Willett refused to extend full faith and credit to same-sex marriages performed in other states. He dissented from an opinion that allowed a same-sex couple to be divorced in Texas. After Obergefell, he did everything he could to delay the implementation of same-sex marriage in Texas by lodging purely procedural objections. He ruled, again post-Obergefell, that the spouses of public workers in same-sex marriages can’t receive employment benefits through their partner.

Even before Willett became a Texas judge, his personal agenda was well documented. He worked for George W. Bush when Bush was governor of Texas. As director of research and special projects, Willett wrote a memo about a proclamation that Bush was set to issue honoring the Texas Federation of Business and Professional Women. That memo leaked. In it, Willett wrote in part:

I resist the proclamation’s talk of “glass ceilings,” pay equity (an allegation that some studies debunk), the need to place kids in the care of rented strangers, sexual discrimination/harassment, and the need generally for better “working conditions” for women (read: more government).

Yes, the man who puts the mention of glass ceilings and better working conditions for women in scare quotes is now a federal judge who may strike down federal laws that seek to ameliorate inequities he thinks have been debunked. And he might someday be a Supreme Court justice. Willett’s name was floated by some hard-core conservatives as a possible nominee when Justice Anthony Kennedy retired. Willett never made the short list for the spot, which eventually went to Brett Kavanaugh, possibly because that old Twitter feed of his included a few disparaging remarks about Trump. (Willett, like many of the GOP faithful, was against Trump before he was for him.)

But on the Fifth Circuit, Willett has done what he could to stay in Trump’s good graces. He wrote a blistering dissent in a Second Amendment case, lamenting that the amendment was “scorned as fringe.” If Willett considered the number of bodies annually sacrificed to the Moloch that is the Second Amendment, he might see why others hold his position in such scorn. But gunmongering is a position that gets the Trump people riled up.

Most important for Trump, Willett was one of two judges behind a controversial ruling in Collins v. Mnuchin for the Fifth Circuit holding that the president could fire the head of the Federal Housing Finance Agency. The FHFA is a minor agency, but the way Willett and his fellow judge described the agency made it sound as if the FHFA were similar in structure to the Federal Reserve. By creating this connection, the decision could someday provide a useful precedent for Trump to dismiss the head of the Federal Reserve if the country’s central bank doesn’t do what Trump wants on interest rates.

Explaining the ruling, ThinkProgress justice editor Ian Millhiser wrote that the Collins decision “is a potential recipe for economic and political disaster—a central banking system subject to the whims of Trump’s reelection campaign.”

That’s the kind of decision the people who read Trump his bedtime stories will notice.

Most people are better humans in real life than they appear to be on Twitter. Willett is the opposite. Twitter is where he went to appear friendly and reasonable. His judicial opinions are where he trolls to own the libs.

Read the full story on The Nation.

See, lawyers can do more than just the law. Greg Revera is a George Washington University Law School who is an intellectual property attorney but he is much more than that. Revera has the honor of being the photographer behind the U.S. Postal Service Forever Stamp  commemorating the 50th anniversary of the Apollo 11 moon landing.

The photo, taken in 2010 by Revera in his backyard. As Law.com reports, the soon-to-be-famous image was the result of Revera’s experimentations with digital photography:

In 2010, he said he was mostly still shooting with film. “I was still fighting the move to digital,” he said, but his wife had a new digital camera, and after seeing other citizen photography of space he decided to purchase an attachment that connected the camera to his telescope. With the setup, he began to photograph Mars, deep space and a few photos of the moon in various stages.

Eventually, he said he wanted to try to capture a full moon—a tricky endeavor, since depending on where you are geographically, full moons are only visible for a few hours on a specific night.

During the attempt, Revera said he was “fighting the equipment and fighting the weather.” But he managed to snap a few decent images. In post-production, he said the power of digital photos became clear: He was able to use “focus stacking,” a processing technique in which he took his best shots from the evening and blended them into one superior image that was sharp and detailed.

And since taking the picture back in 2010, Revera entered it in a Wikipedia competition (which he lost) and it was used as a reference image multiple times. Then about two years ago he got a call from the USPS, who wanted to use the picture, though they were unclear what it would be used for. It wasn’t until 2 days before the official press release announcing the stamp. And Revera is happy with the honor:

“I have so much love for the space program,” he said. “The Apollo mission, and stamps in general, are both part of our national heritage.”

“To have me contribute just a little bit to that is very humbling and really makes you smile,” he said.

Congratulation to Revera on the photographic accomplishment.

As technology has advanced and there’s been an increased push toward efficiency and cost-savings in the legal industry, the market for alternative legal services has grown exponentially. However, while there may be a lot of alternative legal service providers (ALSPs) out there, not all are created equal.

Too often with ALSPs, there’s no way to ensure the quality of the work you’re getting and you run the risk of outsourcing important tasks to vendors who just aren’t up to the job. You end up with anonymous freelancers doing your work with little accountability, when what you really need is the right team of lawyers with the right technology doing high-quality work in the right location and at the right price.

That’s where Mindcrest comes in. Strategically designed to bring skilled management and sophisticated technology to the world of alternative legal services, Mindcrest provides fully project-managed legal services and it excels at handling large-volume and increasingly sophisticated legal work with the levels of technology, process, and oversight that top clients need and expect. If you’re looking for a worthy law firm or in-house alternative, look to Mindcrest.

Specializing in What They Do Best

One of the things that differentiates Mindcrest from other ALSPs is that they don’t try to be a jack-of-all-trades, purporting to cover every niche area of law, plus HR issues, finance, technology development, and administrative issues to boot. Instead, they stick to what they know best and have been doing well for nearly 20 years.

Mindcrest offers services in four distinct and finely honed practice areas: compliance, contract management, legal analytics, and litigation and investigations. By refining and building up these specialty subject matters over time, Mindcrest has positioned itself to offer the best legal services available in some of law’s most critical practice areas. Successful legal practice requires focus and expertise, and Mindcrest has built itself around that notion.

The Secret Ingredient? The Mindcrest Method

Much of Mindcrest’s success can be attributed to what it calls the Mindcrest Method — the project management aspect of their services that they’ve refined over the years and are always continuing to refine in order to bring forth coordinated combinations of the right  lawyers in the right locations at the right price to best handle each specific client engagement. Mindcrest has devised a unique methodology for combining project management, process, workforce management, technology, analytics, reporting, and metrics on every project — and, if their satisfied clients across the globe are any indication, the method works.

Simply put, Mindcrest looks at every unique engagement individually and comes back with a tailored solution. Relying on highly qualified lawyers spread across Chicago, New York, London, and India, Mindcrest assembles the best possible team with expertise in the practice area involved, layered with the right project management approach and the right technology. This is alternative legal services that are not merely convenient, but actually built around the client’s needs.

Superior Training

Unlike many ALSPs, Mindcrest takes the time to invest in their lawyers and train them to the highest standards in the industry, in the process giving them career paths that allow them to grow within the organization. They do this through a thing called Mindcrest University — a massive initiative designed to offer learning and training for both new and experienced lawyers.

After passing a rigorous hiring process, Mindcrest hires are put through a stringent on-boarding program and trained in Mindcrest’s key practice areas and the way the company does business. The training program has been built and refined with input from clients, and today is unlike anything else in the industry. They also offer over 100 courses for lawyers within the company on substantive legal issues, leadership training, project management training, and technology training, both in-class and online. They even offer a fellowship for U.S. lawyers to go to India to help design the training and train the India-based team.

The result of all this training is that many lawyers who started as entry-level trainees with Mindcrest are today leading major client engagements. For the client, this means the ability to reap the benefits of years of investment and training in high-quality lawyers who bring the best skills and expertise to alternative legal services.

The Right Technology Makes All the Difference

Modern legal practice relies on technology, and Mindcrest is focused on providing the best of the best. A dedicated team, dubbed mTech, is devoted to reviewing new technologies and choosing the best third-party tools available to incorporate into their solutions.

Because everything Mindcrest does is driven by technology, they’re constantly evaluating tools and partnering with the right vendors that fit with the Mindcrest Method. These are not lawyers dabbling in software development — instead, they choose the best-in-breed product available on the market and build their services around that software, in order to produce the best possible result for the client.

The Takeaway

What really sets Mindcrest apart and makes them so good at what they do is their ability, honed over many years, to assemble the best possible team at the right price point to handle high-volume work that requires a particular skillset, complete with the right technology and superior management from start to finish. Mindcrest delivers the whole package in ways that most other providers can’t.

Mindcrest isn’t just a clearinghouse for contract attorneys or freelance lawyers looking to supplement their incomes or pick up some extra work between jobs. It functions in every engagement as a well-oiled machine, thanks to superior project management skills — a key element to successful, high-volume projects with lots of moving parts, and one that many law firms lack. Mindcrest is fully invested in their workers and their method, and what clients see as a result is high-quality work project performed by a highly skilled and managed team of lawyers who work efficiently and for the right price.

Not all ALSPs offer fully managed services that combine both project management and quality legal deliverables. When you’re looking for an ALSP, be mindful of what you’re getting. When you want it done right, you want Mindcrest.

If you’re a lawyer working in legal operations or in a leadership or supervisory role, sooner or later you will find yourself overseeing a document review. What you do at the outset of the review will determine how smooth the review process is and how successful the outcome will be.

Have a Plan

Given the enormity of some document reviews, it is hard to imagine not having a game plan in advance. So, whether your organization is involved in serial litigation or you’re undertaking document review for the first time, whether you’re putting eyes on every document or using the latest machine learning or analytics tools, here’s a few thoughts on developing a document review protocol.

Before any document review, the legal team should identify clear guidelines for determining relevance and responsiveness. Issues of privilege may be involved as well. A document review protocol can be a complicated document or a fairly straightforward list of guideposts that provide instructions to reviewers. A review protocol usually takes the form of a memo. A typical protocol includes the following…

Background

Begin with a summary of the nature of the dispute, the parties involved, and the specific claims and defenses. Anyone preparing to review documents should at a minimum first review the operative pleadings, discovery demands, any applicable court orders or confidentiality/protective orders, and any significant correspondence in the case. These materials provide context to anyone who is not familiar with the case.

Scope of Review

A document review protocol should outline the scope of the review. How many documents are to be reviewed? What is the timeline? What documents are we looking for? What does a relevant document look like? What is not relevant? This means identifying subjects and document types that pertain to the issues in the case. If, for example, it’s a contract dispute, then documents or communications involving negotiations, terms of the deal, interpretation or meaning of terms, may be highly relevant. It may also mean identifying documents relating to topics or issues requested by opposing counsel.

If there are any topics of particular importance — so-called “hot” documents — those should be defined in the document review protocol as well.

Keep in mind, too, that defining scope also means identifying things that do not fall within the scope — for instance, documents outside a certain date range may be deemed non-responsive. If there are subjects the document reviewer may disregard, those subjects should be identified in the protocol.

Coding Instructions

Specific coding instructions are essential to document review. Common coding designations are Responsive, Non-Responsive, and Privileged. Other designations may be used, and legal teams may use tags or designations that have different names; it really does not matter what they are called. What is important is that they are universally understood and applied consistently. The point is to give clear instruction to reviewers on how documents are to be coded.

Apart from responsiveness coding, a document review may require confidentiality designations or issue coding. Be sure to spell out the specific designations that need to be applied to the documents.

There’s a basic logic to document review that should be followed when coding documents. If a document is determined to be Responsive, it must then be determined if the document contains any privileged or other information that should not be produced. If it does, has privilege been waived? If so, the document should be produced. If not waived, can the privileged material be redacted? If it can be redacted, the designation should be changed to Redacted. If it cannot be redacted, then the Responsive designation should be changed to Privileged because the document will be withheld.

These coding practices are a common-sense approach to preserving attorney-client privilege and they reasonably ensure that privileged materials are not produced in discovery.

It is also a best practice to code families of documents consistently during document review. If, for example, an email (the “parent” document) is coded Responsive, then any attachments to the email (the “child” documents) should also be coded Responsive. The reasoning is simple: When the author of an email attaches a document to the email and sends the email and attachment, it is the intent of that author for the two documents to be viewed together as a single communication. This, combined with the general notion of producing documents in the manner in which they are maintained, support the practice of consistent coding within document families.

Privileged Documents

Most document reviews involve examination of privileged documents and work product materials. One good practice is to identify in advance attorneys and/or law firms involved in the matter so that reviewers are alerted to potential privilege issues. If color-coded highlighting is available, use that to highlight attorney names.

Just like responsiveness coding, it’s important to apply privilege designations carefully. Parties are frequently called out by opposing counsel and the courts for over-designating not just privileged documents, but also for confidentiality designations.

Conclusion

In the end, document review cannot be viewed as a rote activity. It is a crucial, fact-gathering, and case-building opportunity. It is also a collaborative effort. If time is spent thinking about the review, its purpose, and goals, and if the objectives are reduced to writing in a protocol, the review process will go smoother and you will ultimately save time during the review itself.

Mike Quartararo

Mike Quartararo is the managing director of eDPM Advisory Services, a consulting firm providing e-discovery, project management and legal technology advisory and training services to the legal industry. He is also the author of the 2016 book Project Management in Electronic Discovery. Mike has many years of experience delivering e-discovery, project management, and legal technology solutions to law firms and Fortune 500 corporations across the globe and is widely considered an expert on project management, e-discovery and legal matter management. You can reach him via email at mquartararo@edpmadvisory.com. Follow him on Twitter @edpmadvisory.