practicehacker

E-discovery was once the sole concern of large law firms involved in large-scale litigation. But as EDD increasingly becomes an issue in smaller cases for smaller law firms, small and solo lawyers are learning some hard lessons about electronic evidence in litigation. Michael Barnsback, an employment and civil litigation senior associate with DiMuro Ginsberg says e-discovery is increasingly an issue for his 12-attorney firm in Alexandria, Virginia. While it is a challenge, he thinks it can sometimes benefit a small firm like his. He says there was a time when big law firms could count on bigger budgets and staff to out-muscle opposing counsel at smaller law firms. In particular, the document dump, the practice of sending as many files for review close to the start of a trial, has long been a favorite tactic for overwhelming an opponent. “It’s certainly leveled the playing field for us,” he says. “You don’t need a big team to do review.  If someone dumps a truckload of boxes on you, now you can scan them, put them in a searchable format, and one person on one computer can find what you need to go into the case prepared.”

But for many small firms, the technical demands of identifying, preserving, archiving, reviewing, and producing digital evidence for trial is increasingly becoming a problem, and one they cannot avoid. “We’re seeing tremendous growth for small firm e-discovery services,” says John Simek, a computer forensics specialist with Sensei Enterprises. “Judges are expecting attorneys to take it seriously and the attorneys realize that ethically they have an obligation to consider digital sources for evidence.” Unfortunately, lawyers who haven’t been involved in major litigation involving digital documents probably haven’t had a chance to learn things that some big firms have learned the hard way. Even more, small and solo firms often have hurdles to overcome that large-scale litigators never have to think about. For example, many lawyers who have never been involved in e-discovery before may mistakenly believe that printing an e-mail might be an obvious way to produce a document. However, there is a body of law that may require litigants to preserve metadata or other digital features in a document that are lost when printing. And while large firms can typically hire professional forensic examiners, small firms trying to operate on a tight budget might be inclined to do forensic examinations themselves, which could open up a host of problems.

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Posted via email from practice (redux)

Everybody knows things are bad. Everybody’s out of work or scared of losing their job. Banks are going bust. Nobody knows what to do. So I want you to get up, go to your windows, and yell – ‘I’m as mad as hell and I’m not going to take this anymore!’  – Network

Last month the blawgosphere erupted with discussions about the future of law: what to change, what to preserve, where did we go wrong? One of the most fundamental debates was about closed networks like Westlaw and Lexis (let’s call them “Wexis”) versus nominally open ones such as Avvo or Google. Wexis monopolizes legal research and – thanks to properties like Findlaw and Lawyers.com - legal marketing as well. These are the ultimate closed networks. They draw their strength from contracts, a steep learning curve, talented salespeople, and ubiquity. Avvo, Google, and others offer a more transparent experience with no sales force, few barriers to entry, no commitment, and no direct price tag for the use of their services. Which type of network is most likely to help lawyers meet their obligations in the future? The answer depends on whether lawyers get mad as hell and decide not to take it anymore, or shrug off the question and go back to business as usual.

The New 800-lbs. Gorilla

By putting an army of salespeople in the field and convincing lawyers that they could not function without them, Westlaw and Lexis have survived countless recessions and outlasted every threat. But last year, forces that had been building for decades such as unbundling, outsourcing, information availability, non-lawyer alternatives, and weak attorney-client bonding, created an opportunity for a different network provider to fill the void. And that is exactly what happened. But here’s the real question: if lawyers had not been jobless in record numbers last year, if businesses had been able to spend, if Big Law had not started laying off instead of hiring, and if the economy had not cratered, would Wexis still be doing business as usual? Probably: and that most likely means that lawyers are resigned to living under a 2-vendor cartel with little real competition and almost no incentive to innovate.

So in November 2009 when Google Scholar announced that it would be offering State and Federal cases including Supreme Court opinions back to 1791, it took a while for the news to sink in. Soon however, you could hear Westlaw and Lexis brass drop their collective loads as they realized that Google would not be content to give away for free the information that they had been charging for. Instead, they realized, Google Scholar intended to update its databases in real time and add services to enhance its growing legal library. In short, it looked like Wexis might face serious competition and the suits were scared. 

… too be continued in Part 2

According to Clemens Ceipek, vice president of New Lexis, our customers spend their time … in e-mails or in Word creating or reviewing documents. That is exactly what we are doing. As a lawyer you no longer need to go to a separate, dedicated site to get the information.” Ideally this means that a user reviewing a brief in Word can click on the Shepard’s tab and confirm the status of all cases in the document at once. If the user wants to read the cases, clicking on another tab splits the screen and pulls up the cases. This same integration of information could extend to items within a firm’s own network or document management system in addition to items from Lexis databases or the Internet.

via abajournal.com

Posted via email from practice (redux)