Category: News Feeds

Imagine you’re accused of committing a crime. You believe with every fiber of your being that you are innocent, but you understand why some people think what you did was wrong. You even recognize that some of your misdeeds are so legally gray that a jury might find you guilty.

What would you do? You’d fight, right? Hoping that the truth would set you free, you’d choose to exercise your right to a trial before a jury of your peers.

But what if the stakes were higher? What if you felt forced to consider a plea offer?

Imagine the prosecutor says he wants to make the “right decision” even easier for you, your nervous spouse, and your young children. Plead guilty and cooperate against others, he says, and he will all but guarantee you never go to prison. On the other hand, if you insist on going to trial, he will add five times as many charges and seek a prison sentence of more than 20 years. The choice is yours.

Actually, the choice was mine.

In 2008, I was accused of public corruption for my work as a lobbyist. After I had cooperated for two years with the government’s investigation, the prosecutors gave me the choice described above.

I would have loved to have pleaded guilty to ensure I would never spend a day away from my daughters. I knew going to trial was risky and that the costs would be greater than the million-plus in attorney fees. But I believed I was innocent (I still do) and my plea offer required me to testify — falsely, in my view — against others. I couldn’t do it.

I went to trial — twice, since the first jury couldn’t reach a verdict. Ultimately, I was convicted of half the counts at the second trial. As promised, the government recommended that the judge sentence me to 20 years in prison.

The judge gave me 20 months.

I was lucky, relatively speaking. My offenses did not carry mandatory minimum prison terms. My judge had discretion, but in the vast majority of cases, prosecutors get their way.

“The Vanishing Trial,” a new short documentary produced by FAMM and National Association of Criminal Defense Lawyers, reveals how prosecutors use the threat of lengthy prison terms to coerce defendants to forfeit their right to trial.

Their coercion works. Today, just three percent of criminal cases today go to trial. Many people accept plea offers because they are guilty. Admitting their wrongdoing and avoiding a costly trial is in their best interest. But in many other cases, the threat of a “trial penalty” — the term used to describe the substantial difference in the prison sentence that is offered as part of a plea deal and the sentence a person receives if they lose at trial — produces massive injustices.

First, we know the trial penalty forces some innocent people every year to plead guilty. According to the Innocence Project, 18 percent of people who were exonerated by DNA evidence or other means pleaded guilty to crimes they did not commit. When asked why they did, they said that they feared an even longer prison sentence if they were found guilty.

Second, the trial penalty results in sentences that are manifestly unjust. In “The Vanishing Trial,” for example, viewers learn about Chris Young, who was offered a plea deal of 14 years for a drug crime. The 22-year-old simply could not imagine spending that long in prison for his crime and believed he could do better with a judge. But when he was convicted at trial, Chris learned that the judge was forced to hand down a mandatory minimum sentence of life without parole.

I was lucky I was not facing a mandatory minimum sentence, but even now, I do not understand how my prosecutor believed that the appropriate punishment for my misconduct was either no time in prison or 20 years in prison, depending on whether I exercised my right to trial. Justice should not be a game of “Let’s Make a Deal.”

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Kevin Ring is a former Capitol Hill staffer, Biglaw partner, and federal lobbyist. He is currently the president of FAMM, a nonprofit, nonpartisan criminal justice reform advocacy group. Back when ATL still had comments, “FREE KEVIN RING” was briefly a meme. You can follow him on Twitter @KevinARing.

The impact of COVID-19 on patent litigation has been interesting to say the least. There is no doubt that (as of this writing at least) things are nowhere close to normal, either in terms of schedules or procedures in district courts around the country. For every judge that has tried to adhere to existing schedules — with some even going so far as to experiment with Zoom trials and the like — there are others that have thought it best to push deadlines out because of the pandemic. By and large, everyone — from jurists to court staff to lawyers and their clients — is trying their best in terms of dealing with the unprecedented challenges of the day. Yet in spite of the challenges to existing patent cases staying on schedule in district court, new patent case filings have apparently gone up over the past few months. Which may be an earlier harbinger of both NPEs and operating companies doing everything they can to generate revenue with their patents, including by filing cases against unwilling licensees earlier in the licensing lifecycle. We will see.

While the increased number of patent case filings in the midst of a pandemic might be a surprise to some, it should be less of a surprise that IPR activity has kept pace. How do we know? Thanks to a timely report by legal analytics firm Lex Machina, released as part of the firm’s “ongoing work to track the impact of COVID-19 on litigation.” In their new report “PTAB Activity During COVID-19,” Lex Machina “reviewed recent PTAB trial activity to examine how the COVID-19 pandemic shutdown has impacted this administrative law body.” Their findings are obviously of interest to anyone impacted by patent litigation — so for purposes of this column I wanted to focus on the three (idiosyncratic, as is my wont) takeaways I found most interesting from their findings. (If anyone is interested, I also put some investor-focused thoughts on the report on our Markman Advisors blog.)

First, IPR petition filings continue to act as a trailing indicator of the general level of patent litigation activity. Since new patent case filings have gone up during the pandemic, there is no surprise that IPR filings have kept pace to a certain extent. Sophisticated patent defendants continue to turn to IPR filings as a first-line defense to allegations of infringement against them. Moreover, the tumult in district court schedules due to COVID-19 appears to have put even more of a premium on defendants getting their IPRs filed early. Doing so allows defendants to make robust arguments early in the scheduling process that a stay is warranted; arguments that most likely would be well-received by a district court trying to triage its caseload as best as it can under the circumstances.

Second, the unique nature of IPR practice, both for lawyers and the PTAB, lends itself to minimal disruption due to the physical displacement engendered by the pandemic, at least in terms of lawyers needing to work remotely and the shuttering of courthouse facilities. For one, IPRs are heavily front-loaded and “paper heavy,” requiring at least one experienced patent lawyer to take the laboring oar on drafting of necessary filings. To the extent it is a group effort, because so much of the work centers on drafting — at least to get IPR petitions filed — there is less of a need for team members to interact physically in order to get the job done. Likewise, the decision points during IPRs — institution, final written decisions, even conducting oral argument — are all within the ambit of the three PTAB judges assigned to a particular panel. Each of whom would have significant prior experience interacting with their colleagues remotely. And because IPR arguments don’t feature live testimony, conducting them over video conference — while not ideal — is generally an acceptable alternative to delay or choosing not to have an argument at all.

Lastly, it is hard not to read the Lex Machina report without at least a measure of respect for the PTAB’s ability to keep to the statutory deadlines for cases that were already pending when COVID-19 hit. From its quick issuance of guidance as to revised procedures at the commencement of the lockdowns, to the continued diligence of PTAB panels in issuing institution or final written decisions, there is a lot to admire in the PTAB’s handling of the crisis to date. Indeed the report lauds the “PTAB’s consistency in adhering to time frames” as it has “continued its trial flow in an effective, timely fashion.” Already a popular patent forum, in large measure because of its favorable time frames for petitioners/alleged infringers, Lex Machina’s report provides compelling evidence in support of the PTAB’s continued popularity. Pandemic or no pandemic, the PTAB’s outsized role in the patent ecosystem will continue apace.

Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

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Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

Ipro Tech has been around in the legal technology space for as long as I can remember. I was using their eCapture tool in the ’90s before the EDRM and most of the processing engines in the market even existed. Today, they are a leader in the legal technology industry, providing solutions across the e-discovery lifecycle.

Recently, the Tempe, Arizona-based company announced the acquisition of NetGovern, an information and data governance and compliance product. I saw this as reason to sit down with Ipro Tech CEO Dean Brown to talk about the acquisition of NetGovern and the future roadmap for the company.

For better or worse, Ipro has a perceived reputation as a software company for the small to medium-sized organization. Brown told me, however, that that is not entirely accurate. “Sure, we’ve got about 2,000 customers using the Ipro Desktop product, and some of them are small firms. But the fact is that Ipro Enterprise, which combines processing, review, and production in an on-premise or SaaS-based model, is the e-discovery product of choice for about 300 corporate, law firm, service provider, and government customers.”

“People do not realize how much Ipro can scale,” Brown said. “We have a presence within 85% of the Am Law 100, and we’ve got customers with 40 million records in Ipro. And now, with the addition of NetGovern, Ipro is only going to continue to innovate and influence the legal technology space.”

Brown expressed genuine excitement about the NetGovern acquisition. “Never before have I been this excited to be in the legal technology space,” he said. “This gives us an end-to-end solution, from information governance through trial. Not many companies can alone offer solutions that touch upon each phase of the e-discovery lifecycle.”

Ipro’s mission stems from customer frustration with the explosion of data volumes and the need to have a more recursive workflow for managing their data and e-discovery processes. The linear EDRM framework is fine, but how can customers get better insight into data earlier? How can they combine analytics on data in place and then use real-time bidirectional connectors to not only access the data, but also to satisfy data management, compliance, and e-discovery needs across the enterprise?

The NetGovern acquisition, combined with analytics tools Ipro has been developing, and solid e-discovery processing, review, and production tools, will enable customers to federate many processes across any data source, reducing time and cost to production.

The combination will also be a relatively light lift because both Ipro and NetGovern use a similar framework and an API and (micro)services-based architecture to integrate other tools. If a customer wants to insert additional analytics tools between NetGovern and the Ipro suite of tools to dig deeper into the data, that is completely possible. Performing enterprise-wide EDA searches across a company’s data sources will now be a breeze for Ipro customers.

Looking ahead, Brown has hired an entire UX team to reimagine the user experience in Ipro. He told me that they will be integrating all of their service offerings, including search and legal hold, into the e-discovery platform to give users better insight into their data. The focus is going to be on usability and workflows.

And of course, the powerful search and analytics of the NetGovern product will be front and center since that is where an organization’s data lives to begin with. A powerful early data-assessment solution will not only help organizations better manage the data that they have, but will also enable them to better identify PII and PHI early in the process, which makes downstream e-discovery activities more efficient.

Ipro will not be going down the forensic collection path. Ipro will focus on customer data management. After identifying the necessary data, users will have the control to preserve broadly, but then strategically promote for review. Users will be able to move data right into processing, or they can park the data in an archival copy.

I asked Brown whether the acquisition of NetGovern means there will be a rebranding at some point. “No” he replied. “We will continue to market and sell to segments of the industry using the NetGovern or Ipro brands, as appropriate.”

Like with every company in the industry, 2020 has been a challenging year, Brown reported. But Ipro has been growing for years and has retained 90% of its customers. In fact, the NetGovern acquisition is a net gain because in addition to their headquarters, Ipro will now have offices in Montreal and in Germany, two outposts of NetGovern. And all of NetGovern’s management has been folded into the Ipro team.

“We believe in helping customers,” Brown told me. “The ability to federate processes across any data source and build workflows that help customers solve business problems is what we offer.” With NetGovern on the left side, their traditional processing, review, and production tools in the center, and Trial Director — still one of the most popular trial presentation tools on the right side — Ipro, a tried and true 30-year veteran of the legal technology space, has built an end-to-end solution that will empower customers across the e-discovery lifecycle.

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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.

Fourteen days ago, Kodak shares were worth $2.22. In the interceding two weeks, the company leaked word of some very good news—a $765 million federal loan to transform a flailing photography-adjacent dinosaur into a world-saving pharmaceutical innovator—issued its leaders with some soon-to-be-very lucrative stock options, saw aforementioned news announced, consequently saw its shares touch $60, consequently to the combination of the above became the subject of a Securities and Exchange Commission insider-trading investigation, consequently to that saw its stock price drop down into the mid-teens, and today saw the aforementioned transformational government loan disappear. In other words, Kodak is at best right back in the same place it was two weeks ago, but more likely in a much worse place, what with the SEC investigation and all.

* A lawsuit filed by McDonald’s alleges that its former CEO sent nude pics from his work email, destroyed evidence related to sexual relationships with employees, and committed other illicit acts. Looks like Ronald wasn’t the only clown at McDonald’s… [Business Insider]

* A federal judge in New York has allowed a lawyer to withdraw from representing Michael Avenatti in a criminal case. [Fox News]

* A disbarred Beverly Hills lawyer has pleaded guilty to stealing over $500,000 from a former client. [CBS News]

* Susman Godfrey has elected the first female managing partner in the history of the firm. [Bloomberg Law]

* A lawyer is apparently accused of billing his client 40 hours in one day. Maybe he had a time machine? [Texas Lawyer]

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Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

Ed. Note: Welcome to our daily feature Trivia Question of the Day!

According to data collected by Law.com for the A-List Law Firms ranking, which top 20 firm has the highest associate satisfaction score?

Hint: The Biglaw firm received an impressive 99.5 (out of 100) score on associate satisfaction, helping the firm take the number 8 spot on the list.

See the answer on the next page.

Headlines last week were touting the opinion Thursday on PACER fees by the Federal Circuit Court of Appeals. The judiciary “can’t use PACER as IT slush fund,” one said. “PACER Fees Are Too High, Federal Circuit Says,” another reported. “Federal judiciary is overcharging for access to public records online,” still another said.

While none of these headlines are wrong, they could lead a reader to conclude that the judiciary’s loss in the case is a clear victory for public access and will significantly reduce PACER fees. Unfortunately, neither is true. Rather, the opinion delivers only a partial win for plaintiffs and will reduce PACER fees only a limited amount.

Nothing about this opinion will change the fact that PACER is a 32-year-old system that is, as I once wrote, “cumbersome and crotchety to use, often cryptic in its naming and coding, and archaic in its document handling.”

Nor will anything in this ruling change the fact that PACER is not free to use. To the contrary, the ruling reaffirms the authority of the judiciary to charge Electronic Public Access (EPA) fees for its use sufficient to cover the expenses of operating both PACER and the corollary CM/ECF electronic filing system.

What the ruling does do, however, is open the door to a reduction in those fees — albeit a small one — and the repayment to users of excessive fees collected from 2010 to 2016.

Notably, the Federal Circuit affirmed in its entirety the 2018 decision in the case by U.S. District Judge Ellen Segal Huvelle, stating that she “got it just right.”

In her ruling, Huvelle had rejected the principal arguments of both the plaintiffs and the defendants. The plaintiffs had argued that the judiciary could recoup PACER fees only to the extent necessary to cover the total marginal cost of operating the PACER system. The judiciary had argued it could use PACER funds for anything related to “dissemination of information through electronic means.”

Of the $920 million that the judiciary collected in PACER fees from 2010 to 2016, Huvelle had found that the judiciary misspent some $200 million of it. That ain’t hay, for sure, but it is only 22% of the total collections.

Both the Federal Circuit and Huvelle agreed that the judiciary’s expenditures of PACER fees from 2010 to 2016 were appropriate for the following purposes:

• Public access services, which was money spent directly on the operation of PACER and totaled $129.9 million for the six-year period.
• Case Management/Electronic Case Files System (CM/ECF), which totaled $217.9 million for the period.
• Communications infrastructure, services, and security, which totaled $229.4 million for the period.
• Court allotments, which totaled $74.9 million for the period.
• Electronic Bankruptcy Noticing, the system that produces and sends bankruptcy notices to creditors, which totaled $73.3 million for the period.

The expenses that both the Federal Circuit and Huvelle deemed inappropriate were all unrelated to the direct operation of PACER and the CM/ECF system. These inappropriate expenditures were:

• State of Mississippi, a one-year electronic-access pilot in 2010 that cost $120,988.
• Victim notification, a program that electronically notifies local law enforcement agencies of changes to an offender’s case history, which cost $3.7 million for the six-year period.
• Web-based juror services, which cost $9.4 million for the period.
• Courtroom technology, which cost $185 million during the period.

Put those sets of numbers together, and we see that while the rulings invalidated expenditures of $198.2 million for the six-year period, they upheld expenditures of $725.4 million for that same period.

Now, this may be an overly simplistic analysis on my part, but if PACER currently charges 10 cents per page, and these rulings have invalidated 22% of the expenditures for which those fees were used, then it seems to follow that the judiciary can still charge nearly 8 cents per page.

All of that said, the Federal Circuit did open the door to one further possible reduction in EPA fees, and that involves the judiciary’s expenditures to operate the CM/ECF system. The circuit court said that the district court record lacked sufficient information for it to decide whether EPA fees could permissibly be used to cover all the costs of maintaining the CM/ECF system.

On remand, the Federal Circuit said, it would be up to Huvelle to decide whether to permit additional argument and discovery on this issue.

This case is far from over. On remand, Huvelle will have to decide whether to consider the CM/ECF issue and then go on to decide damages. Whatever she does, there will almost certainly be further appeals.

If PACER is ever to be fully free, it will happen only through an act of Congress. Three bills currently pending (H.R. 1164, S. 2064 and H.R. 6017) would do exactly that — make PACER free and also mandate development of a modern system.

Of course, if there is anything more dysfunctional than PACER, it is Congress. For the time being, that means this much remains true: The clunky PACER system will continue to operate as is, and we will continue to be charged fees for its use.

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Robert Ambrogi is a Massachusetts lawyer and journalist who has been covering legal technology and the web for more than 20 years, primarily through his blog LawSites.com. Former editor-in-chief of several legal newspapers, he is a fellow of the College of Law Practice Management and an inaugural Fastcase 50 honoree. He can be reached by email at ambrogi@gmail.com, and you can follow him on Twitter (@BobAmbrogi).

When we last checked in with Dan Shak, way back in 2013, the professional poker player, former hedge fund manager and petty ex-husband was settling allegations that he illegally gamed the gold futures market by banging the close at his old hedge fund, SHK Management. At about the same time (the time he was suing his ex for an equitable share of her high-heel collection), he was planning to get back into the hedge fund game, having shuttered his SHK Management abruptly two years earlier. Then, nothing. Silence. Now, thanks to an old friend and this article by his current employer about the eminently manipulable trade-at-settlement contracts, we may have an inkling why.

Your ability to grow your law firm, forecast cash flow, and identify operational challenges before they can cost you money counts on reliable accounting data. To make the right decisions, you need to have up-to-date and accurate data — every time. But often inefficient accounting processes and dated systems can cause inefficiencies and errors that cost you both money and time.

If your firm relies on rarely updated figures or accounting reports that contain hidden errors, you don’t have the information you need to make good management decisions. Streamlined, simple, and up-to-the-minute law firm accounting protects you from mistakes that can drag the firm down. You need processes and tools that will make law firm accounting simple, efficient, transparent, and, above all, accurate.

What if you could have accurate figures at your fingertips within minutes? What if you could track revenue trends, cost trends, and income trends quickly and easily? With the right tools and processes in place, you can move from just record-keeping to an accounting function that creates value for your firm.

To find how legal technologies, such as PwC’s InsightsOfficer, can help you get value from your law firm’s accounting function, download PwC’s new eBook below.