Wire Fraud Charges? That’s No Big Deal: Just ask this judicial candidate.
More Covid-19 Law School Closures: Who makes the list?
Screenshots Are Hard, Y’all: But that’s not a defense for refusing to produce footage in a FOIA request.
Mixed Martial Law? A deep dive into the surprising legal specialty.
Every once in a while, I like to just go off on a rant. And this week, I’m particular perturbed by the snail-like pace with which law firms (and others) manage to keep up with technology.
You know, we live in a time when things move fairly quickly. The laptop I bought about four years ago still works, but it’s largely obsolete in terms of memory, storage, and processor speed. And that’s the way it goes with technology.
Almost across the board, we see new technologies emerge that constantly alter how we do things. Walk the vendor hall of any conference — not just legal technology conferences — and you’ll see all sorts of solutions to problems in any number of areas of commerce. It’s about more efficiency, better communication, interoperability, and (yes) some unnecessary things, too.
So, why is any conversation still occurring anywhere that raises questions about a law firm’s ability to deliver contemporary legal services to clients? I wrote about this not too long ago, and here I am — two years later — still saying it.
And it’s not just me. The American Bar Association and many state bar associations have tied technology competence to the duty of competence. It cannot be the case the nonlawyers are reading the model rules and update more closely than practicing lawyers. Or can it?
For readers in the legal operations space on the corporate side -– let’s for discussion purposes call you the “client” — I’ve suggested, and I dare to reminder you again, that you control the purse strings here. You can dictate to your panel firms and even to new firms the terms and conditions of any legal engagement. Why don’t you?
For my law firm friends, this is not an “if you build it, they will come” situation. True, some law firms have embraced technology and they provide some of the best and most-advanced technology services available on the market. With shrinking revenue, smaller margins, and a consolidating legal market, other firms are outsourcing technology and bringing outside experts to the table when needed.
But a large majority of firms and practitioners still just don’t get it. They have not heeded the ABA or any of the state bar requirements that the duty of competency in modern legal practice includes understanding technology and effectively advising clients on the importance and use of technology. Many firms have chosen just to not evolve.
You want to know why more and more work is moving in-house? Why you have less work than five years ago? Does anyone think that the rise to prominence of organizations like CLOC is just an accident? Or why your client now dictates which vendor to use?
It’s got nothing to do with the law you practice and everything to do with how you practice — and how you interact with your clients.
If I were building a law firm today — and this is not entirely hypothetical because in some countries nonlawyers can do this, and the US is hopefully not too far behind — I would not have a fancy office with a view. I wouldn’t have any of the amenities that I’ve observed at firms. Instead, I’d have a really good relationship with my clients, interact with them on a regular basis, and understand their legal and risk management needs. And, of course, how technology can be used to help them.
Mike Quartararo
Mike Quartararo is the President of the Association of Certified E-Discovery Specialists (ACEDS), a professional member association providing training and certification in e-discovery. He is also the author of the 2016 book Project Management in Electronic Discovery and a consultant providing e-discovery, project management and legal technology advisory and training services to law firms and Fortune 500 corporations across the globe. You can reach him via email at mquartararo@aceds.org. Follow him on Twitter @mikequartararo.
(Image via Getty)
Welp, this is deeply disturbing. Among all the fear and misinformation, the quarantines and canceled events, the most reliable and oft-cited piece of advice from medical professionals is to wash your damn hands. Good advice pretty much all the time, but especially pertinent during a health crisis. So you’d think materials encouraging folks to wash their hands (and other hygiene tips) would be remarkably uncontroversial.
If you thought that, you’d be wrong.
Yup, that’s right, yesterday, the National Association of Immigration Judges (NAIJ) said that the Department of Justice, via the Executive Office for Immigration Review (EOIR), has told immigration courts to remove CDC posters about the coronavirus.
The offending posters include this benign one:
And this one (Spanish versions of the materials were also posted):
As Law & Crime reports, the surprisingly controversial posters were torn down:
“The NAIJ sent a correspondence to the Agency and a separate one to the [Immigration Judges] with the CDC recommended posters,” NAIJ President Ashley Tabaddor told Law&Crime. “Shortly thereafter, we received notice from our judges that those who had chosen to post the posters were told that they can not do so and the posters were literally torn down.”
And, though this entire situation seems absurd (some have even questioned the authenticity of the story), Law & Crime has tracked down the emails documenting the EOIR’s decision:
In one such email, EOIR Deputy Chief Immigration Judge Christopher Santoro wrote:
“Earlier today the NAIJ sent a message to immigration judges suggesting that they post a CDC-generated coronavirus precaution flyer in public areas of the courts, to include doors to courtrooms. This is just a reminder that immigration judges do not have the authority to post, or ask you to post, signage for their individual courtrooms or the waiting areas. Per our leadership, the CDC flyer is not authorized for posting in the immigration courts. If you see one (attached), please remove it. Thank you.”
Another such email—from a different EOIR official—said the CDC posters “must be removed from all courts.”
If you think this sounds Kafkaesque, you aren’t alone. Angelo Guisado, a staff attorney with the Center for Constitutional Rights, said, “Consistent with fake hearing dates, show trials or no trials, and an abject lack of basic human decency, the Trump Administration continues to erode the already meager protections in our immigration system. Franz Kafka couldn’t write it any better (worse).”
Of course the “why” isn’t well known, but that doesn’t mean there isn’t speculation. As California Western Law Professor Danielle C. Jefferis said, “It’s irresponsible and potentially disastrous. And to what end? To risk the spread of what all signs point to a highly infectious disease so that people in proceedings can’t show up to court? It’s inexcusable.” Whether it was nefarious or just a petty office politics squabble, it is still not a great look.
Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).
Joe welcomes back Jason Cruz from our earlier “Step Inside The Octagon” episode to discuss his new book, “Mixed Martial Arts and the Law.” From antitrust to labor law to performance-enhancing drugs, there’s a lot more law going into this sport than you might expect for a cage match where people kick each other in the face.
(Image via Getty)
I’m fully aware of the absurdity of my actions right now. I don’t think it’s worth putting my family’s safety or friends’ or colleagues’ safety in jeopardy with me getting sick. But at some point, I think it’s going to be a necessity for everybody.
— Jessica Tillipman, assistant dean for field placement at George Washington University Law School, commenting on the new precautions she takes while dining out thanks to the spread of coronavirus, including avoiding shared serving spoons and condiment shakers, and signing her name on electronic touch screens with single dots made with a pinky. She says she may start bringing her own lunch to work after eating out for more than a decade.
(Take our poll below. Will it be dining out or delivery?)
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Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.
If middle schoolers can ‘shop cats ‘n’ shit into their TikToks, then the Federal Bureau of Prisons (BOP) can work out how to redact a video of an inmate getting stabbed in the dining hall. So holdeth Judge David Sentelle, writing for a unanimous panel on the U.S. Court of Appeals for D.C.
After “another inmate stabbed him multiple times with a Phillips-head screwdriver in the prison dining hall,” Plaintiff Michael Evans submitted FOIA requests for security camera footage of the attack and information from the BOP on the screwdriver’s origins. The BOP claimed the request for information about the weapon was too general, and anyway it wasn’t one of “theirs.” As to the video, the Bureau asserted multiple FOIA defenses, including the privacy rights of other inmates, insisting that it “does not have the capability to segregate images potentially responsive to [Evans’s] request from the images of third parties on video recordings.”
The District Court accepted that “no portion of the video was segregable and, even if it were, the Bureau lacks the technological capability to segregate it,” and upheld BOP’s refusal to hand over the tape. But the Circuit judges gave serious side-eye to both the imputed privacy argument and the TECH IS HARD FOIA defense.
“So far as we know from the current affidavit, all information that would be revealed is that seventy or so inmates were eating a meal in a place where they were not only expected to be, but were required by law to reside,” Judge Sentelle wrote. Even if the prisoners did have a right to privacy in the dining hall, the BOP is perfectly capable of blurring the faces of everyone but the person shanking Mr. Evans.
And if this is beyond the Bureau’s technical capabilities, they should find a teenager to help them with that.
[W]e live in an era in which teenagers regularly send each other screenshots from all sorts of video media. Presumably, most of these teenagers have fewer resources than the United States government. It is not at all clear why the government could not at least isolate some screenshots that would meet the same sort of segregability standards typically applied to printed material. The government further does not explain why it cannot by use of such techniques as blurring out faces, either in the video itself or in screenshots, eliminate unwarranted invasions of privacy. The same teenagers who regale each other with screenshots are commonly known to revise those missives by such techniques as inserting cat faces over the visages of humans. While we do not necessarily advocate that specific technique, we do hold that the government is required to explain why the possibility of some similar method of segregability is unavailable if it is to claim the protection of the exemption.
Judge Sentelle, who is 77 years old, just told the BOP to stop being such a noob and slap some cat emojis on that footage before handing it over to the plaintiff. Or at the very least, to try a little harder to come up with a rational justification for their steadfast refusal to do it.
Michael S. Evans v. Federal Bureau of Prisons [USCA Case #18-5068 (D.C. Cir., May 10, 2020)]
Elizabeth Dye lives in Baltimore where she writes about law and politics.
(image via Getty)
Perhaps nowhere has our country’s polarization been more obvious than when it comes to the general view toward law enforcement. For all too many, law enforcement can literally do no wrong. Even in situations where an officer so obviously and so drastically escalates an otherwise peaceful encounter with deadly violence, accountability is nowhere to be found. The perpetual tragedy of not holding bad actors accountable, however, does not just result in the deaths of unarmed, peaceful civilians. It also results in tragedy inflicted onto peaceful officers. This passage written by conservative writer Leon Wolfe after the killing of five police officers in Dallas nearly four years ago has stayed with me ever since:
Reasonable people can disagree about the prevalence of police brutality in America, and the extent to which race plays a factor in it. I don’t think reasonable people can disagree that excessive police force is punished way less often than it actually happens. And that’s the kind of problem that leads to people taking up guns and committing acts of violence — tragically (and with evil intent) against cops who as far as we know have done nothing wrong.
But people’s willingness to act rationally and within the confines of the law and the political system is generally speaking directly proportional to their belief that the law and political system will ever punish wrongdoing. And right now, that belief is largely broken, especially in many minority communities.
And it’s the blind, uncritical belief that the police never (or only in freak circumstances) do anything wrong that is a major contributing factor to that.
It’s at least as much of a factor, if not more so, than the blind, uncritical belief that the police always do things wrong –- which many conservatives today are blaming in entirety for what happened in Dallas. The truth, as always, lies somewhere in the middle, but acknowledging that requires looking in the mirror in a way that makes us all a little uncomfortable.
No one seems to be more uncomfortable with holding police accountable than our nation’s courts. In fact, in order to shield law enforcement from a straightforward statute that would otherwise allow citizens to hold bad actors accountable, our courts have concocted an atextual, ahistorical doctrine. The supporters of this unilateral created immunity contend that police officers cannot function if they fear they will be held personally liable for unlawful actions. As I said before, viewing the responsibility of an officer taking into account whether they are depriving individuals of their rights as a burden instead of as an ever-constant duty of law enforcement is quite puzzling in its logic. However, David French, an Iraq War veteran who has seen first-hand when deadly force is warranted, had what I consider to be the best answer to qualified immunity supporters:
How can we second-guess decisions made under duress, critics ask, when seconds count and lives could be on the line? This is the excuse juries use when they vote to acquit. It’s the excuse law enforcement officials make when they refuse even to bring charges. But we second-guess these decisions because the law requires us to. We also judge these decisions because respect for life and liberty demands it. No man or woman is required to be a police officer. No man or woman is required to carry a gun on their person. When you pick up a weapon, you are exercising a constitutionally protected freedom, yes, but you are also taking on an awesome responsibility. And the gravity of the responsibility requires an armed citizen — like a police officer — to tolerate a degree of risk and danger before he or she escalates to deadly force. Any other rule reaches absurd (and deadly) results.
Of course, absurd and deadly results are precisely what have occurred, and the ability to hold anyone accountable has gotten noticeably worse. Just recently, Radley Balko at the Washington Post highlighted the fact that in addition to the barriers to personal responsibility the qualified immunity standard unilaterally puts in place, those seeking accountability also often have to deal with jurisdictional games designed to quash actions before they can even begin.
Some might be asking why am I bringing all of this depressing stuff up. Well, just yesterday a rather amazing thing happened: The Supreme Court left undisturbed (paywall), a ruling that a police officer claimed “will eviscerate qualified immunity for law enforcement officers in use of deadly force situations.” Of course, I don’t bring up this case to suggest that one denial of cert has actually eviscerated all the issues with qualified immunity and holding accountable the bad actors who apply deadly force. Qualified immunity is still a massive problem even with this denial and, as I noted above, a problem that is actually becoming noticeable more difficult to traverse past legally. But in my opinion, this denial does show progress of a sort. Twenty years ago, I think it is likely qualified immunity is extended in that case by both the lower courts and the Supreme Court. What I don’t think is a question is that shedding light on the tragedies that occur from granting armed government officials a separate standard than what the rest of us live under, along with immense power with little to no accountability, is how we got to the point where courts are beginning to allow accountability in any cases.
Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.
Before you can build a successful product, you have to know who you’re building it for. I’m not talking about just identifying a segment of the market; rather, you need to understand, in depth, just what your intended audience needs from your product. Audiences aren’t one-size-fits-all, so products shouldn’t be either.
When it comes to lawyers, they don’t tend to care about how sleek or advanced or next-generation their technology is. In fact, “[s]uccessful law firms … use legal technology not because it’s cool but because they know legal tech makes their work better.”
But how, exactly, can software help lawyers work better? What are the main pain points to keep in mind when designing technology that lawyers use? To answer that, let’s look at what technologies lawyers have adopted and what they indicate about lawyers and their priorities.
What Technologies Have Lawyers Embraced?
Lawyers will adopt technology that makes their work better and their lives easier. Take smartphones, for example: with mobile phone service and increasing computing power, lawyers can stay in touch with their clients and get work done anytime and anywhere. As a result, most lawyers are inseparable from their phones.
That trend continues in the office. Lawyers no longer write documents out in longhand or bang out drafts on a typewriter. While a few may still dictate content, most have become proficient in Microsoft Word as well as document assembly and document management tools. Instead of typing out the same basic document multiple times, lawyers usually start a new document from an existing template. They also save their preferred clauses in emails, documents, and local folders to insert into the new document. Similarly, Bates numbering and redaction have been transformed from laborious arts-and-crafts projects to one-click digital processes.
Then there’s legal research. Lawyers readily abandoned the dusty stacks of legal reporters for online case law resources and have never looked back. Like word processing software, digital research improves client outcomes, providing on-point precedents and compelling arguments, and simultaneously reduces the workload for lawyers, putting that relevant case law at their fingertips in moments.
What does it say about lawyers that these technologies have successfully permeated their practice?
What We Can Learn About Lawyers From the Tech They Use
Lawyers are focused on client service.
Lawyers have no tolerance for incompetent representation. Despite lawyers’ affection for their Westlaw and LexisNexis subscriptions, if a client needed something that could only be found in a book, you’d better believe their lawyer would be nose-deep in that book. The first priority for lawyers is that technology should enhance the services they provide to their clients.
Lawyers are pressed for time and driven by billable hours.
Lawyers — under the ever-present pressure of the billable hour — don’t have time for repetitive, rote tasks like retyping contracts or clauses. They also don’t have time to figure out how to use a complex or non-intuitive system. This isn’t a statement about whether lawyers are tech-averse or tech-resistant; it’s about their need to be efficient and effective with their time.
Lawyers put a premium on convenience and functionality over bells and whistles.
Lawyers are busy people who are pulled in multiple directions. They’ll often pass on overhyped, trendy tools in favor of tried-and-true time-savers. In fact, the 2019 Aderant Business of Law and Legal Technology Survey found that most lawyers weren’t interested in artificial intelligence or blockchain; instead, they were looking for “the tools lawyers use day in and day out, the bread-and-butter tools of a modern law practice,” including document management, e-billing, and knowledge management solutions. Lawyers also favor convenient tools that save them time by fitting within their existing workflows.
So, what should technology companies keep in mind when designing software for lawyers?
Designing Technology That Works for Lawyers
If you want lawyers to actually use your technology, it has to be effective in providing better results for their clients. Usefulness—as measured by client outcomes—is the bottom line for legal software solutions. If a tool allows lawyers to provide better service to clients, improves client results, or increases the firm’s profitability either directly or by reducing write-offs, you’re halfway there.
But no technology works unless the user uses it. To that end, legal technology must also be efficient with lawyers’ time. It should be easy to launch, easy to learn, and ultimately easy to use on a daily basis. If it requires a laborious setup or a long, slow learning curve, it’ll be hard for lawyers to recognize any client service benefits because they just won’t have the time to seek it out in the press of daily work.
On that note, legal software solutions should be convenient to use. Lawyers spend too much time looking for the right clause and then sifting through them meticulously looking for information that needs to be adjusted. When your technology is integrated within existing workflows, your audience doesn’t have to remember to look for it or switch screens to use it: it’s right there when they need it.
These are the considerations we think about every day at Litera. How can we create technology that lawyers want to use? How can we improve client outcomes, reduce the barriers to adoption, and fold our products into lawyers’ workflows and processes so that they’re available when and where they’re needed?
A great example of legal technology that just works for lawyers is the new Anonymize feature in Clause Companion. With Anonymize, lawyers can designate a document as a template and have the software automatically extract dates, names, numbers, and other case-specific data, creating a fillable form for future use. This improves client results by producing clean, up-to-date templates, saves lawyers time, and fits easily within our unified Microsoft Word ribbon. We think it exemplifies how software companies can learn from their audience and design technology that meets that customer’s unique needs.
About Litera
Litera is the leading provider of software for law firms and document-intensive organizations across the globe, helping them satisfy the demands of clients. Our document drafting products empower users to create, proofread, compare, clean, and distribute high-quality content quickly and securely, from any device, while our transaction management platform converts the manual, tedious process of managing transactions by creating a secure, collaborative workspace and automating the entire signature process. Learn more at litera.com.