How do you illustrate a complex legal issue like predictive coding in eDiscovery? A gavel? Not us. Here's our July/August 2016 cover.

How do you illustrate a complex legal issue like predictive coding in eDiscovery? A gavel? Not us.

I’ll be honest: The headlines on the cover of this month’s Arizona Attorney Magazine were not my first choice.

Yes, I wrote and sort of like the whole “time. space. data.” vibe. It’s clean, and sort of intriguing.

Most of all, it complements the great cover story by Aaron Goodman, an attorney at the Phoenix office of DLA Piper. He wrote on the increasing use of predictive coding in e-discovery. Turns out that when properly done, predictive coding can be highly accurate and much more cost-efficient than, y’know, paying staff attorneys to look at Every. Single. Document.

And here is the opening spread. Pretty cool, right?

predictive coding in ediscovery spread July August 2016-page0001

I know you want to say it: “Whooooaaaa”

So now I know you’ve seen the cover and will definitely read Aaron’s article. But you wonder: What was my preferred headline?

Aaron Goodman, DLA Piper

Aaron Goodman, DLA Piper

Given the cover image’s representation of a curvature in the data, how about: “bending the law”

I know, excellent, right? I almost pulled the trigger. But then I thought …

Some folks may not be amused by the idiom, which can also mean skirting the law. So, as maturity ravages my soul like a dark lord, I set aside the funny in favor of the clear.

Let me know what you think of Aaron’s article. And contact me at arizona.attorney@azbar.org if you have any other technology—or other—story ideas.

Hot and Not law practice areasIs your law practice on the leading edge; or is it bringing up the rear? A preview of an annual assessment of burgeoning law practice areas is out, and it may be helpful to track your own path.

I always enjoy these annual articles by Bob Denney, who writes a “what’s hot” assessment. (Let’s admit it right now; the what’s hot trope is an awkward one, but no need to go on about it.)

His full piece will not be out for months, when he describes his predictions for 2016. But we get a preview here.

As you can see, Denney identifies labor & employment and elder law as on an upward trajectory. But litigation and bankruptcy are not faring as well.

You also can see his predictions from last December here. How’d he do?

What’s working in your own law office? Are there any niche areas that are growing faster than you would have expected? I’d like to hear about them. Write to me at arizona.attorney@azbar.org.

What’s Hot and What’s Not In The Legal Profession Hot_tamales

OK, I give in to the “hotness” analogy: What’s hot and what’s not in the legal profession?

court stenographer

What follows is a guest blog post on a very timely topic, and one that may affect the practice of many Arizona lawyers. It is written by Stinson Leonard Street attorney Blair Moses (whose bio is at the end). Here’s Blair:

Important Changes to the Arizona Code of Judicial Administration (ACJA) Governing Court Reporting and Their Impact on Arizona Attorneys

In September 2013, the Arizona Supreme Court released proposed amendments to the Arizona Code of Judicial Administration (ACJA) governing court reporting—ACJA § 7-206. Arizona court reporters had immediate concerns that the proposed amendments might affect the integrity and impartiality of court reporters and promote unfair billing, exorbitant costs, and a break in the chain of custody of the confidential record. These concerns were due in part to amendments that 1) allowed national court reporting companies, who are not currently licensed in Arizona and have no accountability to the Arizona judicial system, to take control of the confidential record and all production and billing for that record; 2) limited the court reporter’s duty and accountability to accurately write the testimony; and 3) restricted the court reporter’s ability to inquire about and ensure fair dealing and equitable treatment of all parties.

Moreover, these proposed code changes could have negatively impacted an attorney’s duty to safeguard client information and confidences. The proposed amendments allowed the release of testimony and exhibits to an “authorized agent,” such as a national court reporting company, without requiring permission or notification of the witness or any party to a proceeding. Attorneys, like certified court reporters, have ethical obligations to prevent disclosure of confidential and protected information to nonparties of a proceeding and to prevent confidential information from being archived by a third party. Thus, releasing transcripts and exhibits to, and archiving by, a third party may have violated attorneys’ Ethical Rule 1.6.

Following the expression of these concerns at various public forums and through public comment letters from Arizona court reporters, Arizona attorneys, and out of state court reporters facing similar amendments, Arizona Supreme Court Chief Justice Berch appointed a Task Force to evaluate the proposed amendments, receive input on concerns, and make final recommendations regarding amending the code. And after months of analysis, collaboration, and attendance at meetings with the Office of Administration, the Court Reporting Board, the Committee on Superior Court, Chief Justice Berch’s Task Force, and the Arizona Judicial Council by Arizona court reporters and members of the Arizona Bar, the Arizona Judicial Council (“AJC”) approved significantly revised amendments to ACJA § 7-206 on March 25, 2014. The Supreme Court Order amending ACJA § 7-206 as approved by the AJC was entered May 21, 2014, and became effective September 15, 2014.

The final amended code is a significant improvement over the initial proposed amendments and goes a long way to ensure fair treatment of all parties in an action, including equal billing to all parties, preserving the confidentiality of the record, and preserving the ethical obligations of court reporters and attorneys alike. Accordingly, certain changes in the final code impact attorneys’ interactions with court reporters and reporting firms. A generalized summary of the more important of these changes to ACJA § 7-206 follows:

1. Individuals and entities, such as national court reporting companies, providing reporting services in Arizona must be registered with the Arizona Supreme Court, must comply with all provisions of ACJA § 7-206, including all ethical obligations in the Code of Conduct, and must submit to the authority of the Arizona Supreme Court.

2. Only an attorney, a party, or a registered reporting firm can retain court reporting services in Arizona cases. Arizona Certified Reporters and Registered Reporting Firms are prohibited from accepting assignments from any other individual or entity.

 

3. Reporters and reporting firms must now provide itemized rate disclosures prior to the commencement of a deposition and must charge all parties the same price for the same product or service.

a. Each invoice attorneys receive from a reporter or reporting firm must include a certification that the invoice and other business terms comply with the ethical obligations set forth in ACJA § 7-206.

b. If an attorney wants to review all parties’ invoices, the attorney must make that request of the Certified Reporter. Upon the attorney’s request, the Certified Reporter must provide copies of all parties’ invoices.

 

4. Reporters and reporting firms in a continuing contractual relationship[1] with “a party, attorney, or an entity with a financial interest in a case” must give written notice of that relationship to attorneys in the case and any unrepresented parties

a. The notice of contract must be made by the reporter and/or firm upon retention of their services and must contain the duration of the contractual relationship and whether it is exclusive.

b. Upon receiving written notice from a reporter or reporting firm that they are in a continuing contractual relationship, attorneys and unrepresented parties have five business days to respond with a written objection. If an attorney or any other relevant party objects, neither that reporter nor that firm can cover the deposition.

 

5. To enhance and ensure security, confidentiality and privacy, reporters and/or reporting firms may release (sell) transcripts only to witnesses, parties, and their attorneys, unless authorized otherwise by court order or agreement of the parties.

6. Attorneys and their clients can no longer receive from Arizona reporters, reporting firms, or their affiliates “additional advocacy or litigation support services, including but not limited to claim investigation assistance, trial preparation assistance, and deposition summaries.”

Except as expressly set forth, attorneys cannot waive the Arizona Certified Reporters’ and Registered Reporting Firms’ duties and obligations under ACJA § 7-206 by disclosure, agreement, stipulation, or otherwise.

Blair Moses is an associate in the Phoenix office of Stinson Leonard Street LLP. She primarily concentrates her practice in the area of commercial litigation, bringing a depth of experience that includes the representation of large corporations, small businesses and individuals. She also has experience representing defendants in labor and employment litigation matters. Prior to practicing law, Blair gained extensive experience in the health care field and she now assists in the representation of health care providers.

More information on Blair is here. And she can be reached at blair.moses@stinsonleonard.com

[1] Under ACJA § 7-206(J)(1)(l), a “continuing contractual relationship” is one where a certified reporter or registered reporting firm has a contractual relationship in which reporting services are provided “in multiple cases with a party, attorney, or an entity with a financial interest in a case.” (emphasis added).

infographic Robert Half Legal job picture 2014 cropped

Another in a series of annual legal profession predictions wagers that most law firms will maintain their staff levels going forward. More surprising, more than a quarter of law firm leaders surveyed expect to increase lawyer positions.

Those are a few of the results from Robert Half Legal, released in December.

Below, I’ve included more of their findings. Read them and tell me: Do those results jive with your own experiences and expectations?

Here’s the opening of their press release:

An infographic depicting these survey results, also available at http://legal.rhi.mediaroom.com/file.php/1508/RHL_1213_GRAPH_Job_Opportunities_2014_US.jpg

An infographic depicting these survey results, also available at http://legal.rhi.mediaroom.com/file.php/1508/RHL_1213_GRAPH_Job_Opportunities_2014_US.jpg

What’s on the docket for the legal profession in the months ahead? Hiring seems to be on the minds of many, a new survey from Robert Half Legal indicates. Twenty-seven percent of lawyers interviewed said their law firm or company plans to expand or add new positions in the next six months. Fifty-five percent said their organizations expect to maintain current staff levels by filling vacant posts, while 12 percent of survey respondents said they will not fill vacant positions or create new ones and two percent anticipate staff reductions.

Litigation is expected to drive much of the hiring, the research shows. Nearly half (46 percent) of lawyers surveyed expect litigation to generate the greatest number of legal job opportunities from January through June of 2014. Within the litigation practice area, insurance defense was cited by 46 percent of lawyers as the leading driver of job growth, followed by commercial litigation (37 percent) and employment law (28 percent).

The survey was developed by Robert Half Legal, a legal staffing firm specializing in lawyers, paralegals and other highly skilled legal professionals. It was conducted by an independent research firm and is based on 200 telephone interviews with lawyers in the United States: 100 of the respondents are employed at law firms with 20 or more employees and 100 are employed at companies with 1,000 or more employees. All of the respondents have hiring authority within their organizations.

Lawyers were asked, “Which one of the following practice areas, in your opinion, will offer the greatest number of job opportunities in the first six months of 2014?” Their responses:

  • Litigation: 46%
  • General business/commercial law: 10%
  • Intellectual property: 6%
  • Real estate: 4%
  • Family law: 4%
  • Privacy, data security, information law: 3%
  • Regulatory/compliance: 2%
  • Insurance: 2%
  • Other: 12%
  • None/don’t know/no answer: 11%

Lawyers who cited “litigation” as a response also were asked, “Which of the following areas of litigation, if any, will offer the greatest job opportunities in the first half of 2014? Their responses:* 

  • Insurance defense: 46%
  • Commercial litigation: 37%
  • Employment: 28%
  • Personal injury: 9%
  • Personal/family law: 5%
  • Class actions: 3%
  • Securities/corporate governance: 3%
  • Intellectual property: 1%
  • Other: 3%
  • Don’t know/no answer: 1%

*Multiple responses were permitted.

More information on the survey results is available here.

Arizona Attorney Magazine June 2013What happens in courtrooms may only be a part of the legal profession. But litigation and practice areas surrounding it are important indicators for the economy and more.

The current issue of Arizona Attorney Magazine includes some robust content on litigation. I leave the readers to adduce their own meaning.

You may read the entire issue here. Feel free to share it around.

Our cover story is one of our most-read recurring features: our annual roundup of the previous year’s top verdicts—plaintiff and defense. Snell & Wilmer partner Kelly Wilkins MacHenry continues to be our talented reporter and writer in this endeavor.

Also included is an analysis of litigation trends, courtesy of Tom Littler.

Read how Tom Littler describes trends in trials, discovery, litigation, fees and more.

Read how Tom Littler describes trends in trials, discovery, fees and more.

Finally, what about that long period leading up to trial (or settlement). Judge Douglas Gerlach and Eugene D. Cohen write on a proposed method of handling non-discovery motions. Let me know what you think.

Writing for Arizona Attorney remains one of the best ways for attorneys to distinguish themselves among their peers. It showcases legal knowledge and experience, and it helps lawyers convey their content in a timely and award-winning way.

Do you have story ideas? Would you like to be among those who display their talents?

Write to me at arizona.attorney@azbar.org.

ASU EDiscovery conference image 2013At the end of this week, a conference on eDiscovery issues will provide insights and national speakers.

I wrote about last year’s conference, here and here. I’d expect more great content this week.

As the ASU Law School describes it:

ediscovery Judge John Facciola

Judge John Facciola

“The Second Annual ASU–Arkfeld eDiscovery and Digital Evidence Conference will focus on the practical and cutting-edge issues affecting the discovery and admission of electronic information. The annual conference is hosted by the Center for Law, Science & Innovation, in collaboration with Michael Arkfeld, Director of the ASU–Arkfeld eDiscovery Program.”

You may register here.

It’s looking like I will be unable to attend any of the events at this year’s conference. But I’d enjoy hearing from someone who does attend. If you’d like to write a follow-up post, long-ish or short-ish, just let me know. It could be an overview of the entire conference, or a briefer post on a single panel or on the keynote address, delivered by Judge John Facciola. And photos are always welcome.

Write to me at arizona.attorney@azbar.org.

What is it about eDiscovery that packs the education halls?

I wonder this as I prepare to head out to yet another offering on the esoteric topic, this one at the Sandra Day O’Connor College of Law at ASU. It is a three-day affair, which starts today, and it features what appear to be terrific panels and a noteworthy keynote. More on all that in a minute.

First, though, I return to my question: Why am I—and many other lawyers—eager to hear about eDiscovery? After all these years of sessions and panels and speakers on the subject, don’t we have eDiscovery fatigue?

Part of the answer, I think, goes back to Marketing 101. Other areas of law manage to get along by labeling their elements with workaday words: Will. Contract. Crime.

But long ago, a few trial lawyers sat in a room and thought: What should we call that period of time in which we wrestle over documents and files? A generation later, associates worldwide deem it “drudgery” or “document hell.” But around that original table of esquires, a light bulb lit up: How about … “Discovery”!

A regular Ponce de Leon, those lawyers. So forever after, stacks of Bankers Boxes are not merely a felled forest made rectangle. They represent a journey, a quest—discovery.

Of course, the D word may enliven law practice, but it doesn’t put keisters in the seats at a CLE. For that, you need something else. And in regard to eDiscovery, it’s the old standby: fear.

Fear? Well, yes.

What I mean is, once you’ve been in law practice for a fair amount of time, you develop an expertise. You can spot issues, recall seminal law and trust your judgment and experience to make educated calculations. That is true among all lawyers, even trial lawyers when it comes to discovery.

But eDiscovery? That is a wiggly little creature. We think we’ve got it pinned down, but then a new development arises, as we can see in this scenario featuring an associate and a partner:

A: “Whew, I’ve gathered and indexed all of the files off the server. Done!”

P: “Did you remember to do the same with the emails?”

A: “Yep.”

P: “Including the deleted emails, and those residing on the secondary and tertiary servers?”

Less sure now.

A: “Um, yes.”

P: “And the applications that our client may have in the cloud. Did you index those?”

Panic in the eyes.

A: “I think so.”

P: “How about the thumb drives that our client handed out at four national conferences? And the transcripts and video from their 19 podcasts? The newsletters they distributed on Skype? The tweets that the summer interns may have foisted on the world? And don’t forget the company CEO’s holographic message to shareholders. You did capture all that data using the most recently accepted technological methods, haven’t you? Hey, why are you weeping?

(No associates were harmed in the making of this scenario.)

Judge John Facciola

The ASU Law School’s Center for Law, Science & Innovation knows your pain. And that is why their keynote speaker is ideally chosen. And why that speaker knows precisely what to talk about: the risks of being uneducated on the topic of eDiscovery.

That’s right. Judge John M. Facciola understands that the keynote’s job is not to provide the nuts and bolts that other panelists will offer up. Instead, his keynote topic hits lawyers right where they are most cringeworthy: competency. And, of course, the risks inherent in not being fully competent in this rapidly changing area of law practice.

The speaker is a Magistrate Judge for the U.S. District Court for the District of Columbia, and his keynote title is “Competency in eDiscovery: An Ethical Dilemma and Cooperation Among Litigants.”

Here is the school’s description of Judge Facciola and his presentation:

The Honorable John M. Facciola, one of the foremost jurists and educators in eDiscovery and the author of several heralded opinions including Peskoff v. Faber, United States v. O’Keefe, and Equity Analytics, LLC v. Lundin, will start the program with a fascinating keynote address that explores the ethical implications involved in violating perhaps the most basic rule of professional responsibility—competency.

Judge Facciola’s address on competency will be discussed in relation to the:

  • Developing law of sanctions with a focus on the present state of the law prospects of rule changes
  • Judicial involvement and movement of government agencies toward transparency and cooperation
  • New developments in the criminal law re eDiscovery
  • New federal judicial regime of enforcing the obligation to meet and confer
  • Whether the adversarial model of discovery is giving way to a new cooperative process

    Josh Abbott

Time to refresh your competence. You may read more about the conference and register here.

More on the Center for Law, Science & Innovation is here.

And congratulations to Josh Abbott, Executive Director at the Center, for staging what looks to be a great event. I’ll report back later on the judge’s address to attendees.