Judge John Facciola

A recent eDiscovery conference promised insights into the nuts, bolts and more of that litigation tool. It offered that—and even more.

The “eDiscovery and Digital Evidence Conference” hosted by ASU Law School (which I wrote about before) gave attendees three days of that most technical of subjects. Congratulations to Professor Josh Abbott for putting together a talented group of people.

Those panelists included a keynote speaker who offered advice, know-how and quite a bit of wit.

The speaker was Hon. John M. Facciola, U.S. Magistrate Judge for the D.C. District.

Judge Facciola ranged broadly through the law, ultimately tying his topics back to the challenges of eDiscovery.

For example, he illustrated his talk by speaking of “the menace of the billable hour,” which has led to “a loss of true creativity in our profession.”

The billing unit’s relation to the topic was made clear when he added, “The emphasis on a buck leads to incompetent lawyers who charge not for the excellence of their work but for the time we take to do it.” In such a context, “Errors can be disguised.”

The judge explored some of the profession’s challenges, including the overpromising lawyer and our exaggerated notions of what is “burdensome.” Both have contributed to a general incompetence when it comes to electronic discovery.

The primary challenge, though, is one that not only undermines professionalism, but that also may lead to injustice. And that is asymmetrical litigation. While it is true, he said, that prepared lawyers always have the advantage over the unprepared, in eDiscovery the chasm remains wide.

Amending the rules to match new technology is important, Judge Facciola said. “But all rule changes are a fool’s errand if the lawyers don’t know what they are doing.”

And lawyer ignorance on the topic is tragic, he added, because “There has never been a time in history when it was cheaper to educate yourself.”

Professor Josh Abbott

As befits a keynote, though, the Judge ended by proclaiming his optimism. These electronic discovery cases have “a nice combination of the old and new.” And it’s “great,” he laughed, that younger, more technologically advanced associates are being advanced to be project managers. That serves the client, as well as professional development.

Given the judge’s candor, I was doubly pleased this week to read a blog post that chuckled at a recent order written by that same jurist. So as a treat for those who read all the way to the end, enjoy the Wall Street Journal Law Blog on “A New Sheriff in Town.”

And here are some more photos from the conference.

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Steve Little and Lynda Shely speak on professional dress, Bar Leadership Institue, Perkins Coie, Phoenix, March 24, 2012

Last Friday, I told you about an event I was attending as a clothing model. (The demands on the lawyer-ati never end, I tell you!) Here’s a brief update on our appearance before the 2012 class of the Bar Leadership Institute.

Those lawyers who are selected to participate in the State Bar of Arizona’s Bar Leadership Institute are offered a wide variety of speakers and instruction on a great many topics. I am expecting that our meager offering in regard to professional dress will not be one of their year’s highlights.

Nonetheless, I was pleased to be able to pitch in, along with lawyers Lynda Shely (the session’s moderator), CLE Director Lisa Deane, Member Assistance Program head Susan Kayler and Bar Counsel Steve Little.

Aside from Lynda, the four of us were paired up in a good-bad formation (Steve bad, me good; Lisa bad, Susan good). And just like the Silver Screen, I suspect it’s far more enjoyable to play a villain than a hero. Steve, for instance, went to town with his impersonation of a bedraggled attorney who was seriously in need of a makeover. (Steve, that was an impersonation, right?)

Lisa Deane also did what she could to look downtrodden, though I don’t think she is really able to look less than put-together. I was dismayed to see that her “gnarly” look appeared to be no worse than the way I dress most days in the office. (See, the life lessons benefited not just the BLI participants!)

The attendees looked mildly attentive, but they were also superbly dressed, so what did they need from us? I suspect that our life-modeling, along with my suggestions as to where to buy good vintage (“used”) menswear (The Well-Suited Man, in Phoenix and Scottsdale), left them more bemused than enlightened.

Oh well, we tried.

Today, let me share part of my From the Editor column from the February 2008 Arizona Attorney Magazine. In it, I discussed our cover story, Judge Timmer’s article on professionalism—including how to dress.

It’s always hard looking back at your previous work. For instance, I think the column is OK, but I sound like I’m at least 200 years old. What a curmudgeon! Oh, well—read on (more photos at the bottom).

It is New Year’s Day as I write this (for our February issue), and this month’s magazine may reflect some of my own hopes for law practice in 2008.

Our cover story explores a host of issues that were never addressed as we labored through three years of law school. But these are the issues that may make law practice for you—and your colleagues—a blessing or a curse, depending on your approach.

Beginning on page 12, Judge Ann Timmer examines the steps and missteps that many of us have made in the past. Some of the “traps for the unwary” she unearths include how to accept (and decline) work, how to dress, how to interact with others—even how to joke. Perhaps if we had had the benefit of what “seasoned” lawyers know, we would not have made those mistakes (as much).

That article and others like it remind me of the old lesson about the rules—not the Ethical Rules, but the rules of civility. The inexperienced see them as dated obstacles to efficiency, and as mechanical in the extreme. In fact, they are nothing more than courtesy made visible, gentle reminders that civility and kindness exist to make those around you (remember them?) feel at ease.

I suppose it boils down to a question we should all put to ourselves: “Would you want to work with you?”

If it takes you a few minutes to answer, read and save the article. It’s good stuff.

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Night before a seminar, I consider some ties. Hmmm. Professional enough?

What should lawyers wear? And are attorneys succumbing to a more-casual time, to the detriment of the profession?

No surprise, I guess, that I can’t answer those questions. But a State Bar seminar today urges lawyers to consider them.

And my role in the morning’s events – Panelist? Moderator? Scribe?

How about … model. (No joke.)

In what will be a first for me, I’ve been asked by seminar organizers to attend for one reason: to demonstrate lawyerly dress. Paired with me will be a lawyer whose sartorial choices would be considered inappropriate for such an august profession. (Much to my chagrin, our selection was based not on my own stellar dressing abilities; I suspect it was more random than that.)

I’m hoping I can carry off my modeling tasks well. I bet I’ll be able to walk in, turn, and walk out. Wish me luck.

More curious is the question of how attendees will receive the lesson in professional dress. My own experience with the topics reminds me that it can be a powderkeg. I mean, not everyone enjoys being told how to dress.

Back in 2008, our cover story in Arizona Attorney Magazine was titled “Working Class: Being a Pleasure in Practice.” Written by Court of Appeals Judge Ann Scott Timmer, it examined a variety of situations in which the new-ish lawyer might find himself. She explored occurrences like office politics, accepting or declining work from a partner, and work ethic. But she also examined how lawyers dress.

I’ve included a few images from our content on clothing. Looking back today, they seem pretty mild-mannered.

That’s more than I can say for some of our readers. I heard early and often from Arizona lawyers who were offended that we dared to critique their clothing choices. More than three years later, I still hear every few months from an attorney who mentions being irked by that advice.

Here’s hoping today’s attendees at the Bar Leadership Institute take the lesson more cheerfully. Have a great weekend.

Nedra Brown

I love it when great people wind up in great situations.

Nedra Brown is a friend to the State Bar of Arizona and its lawyers—and to me! And this month she was named the new Registrar for the Ontario (Can.) Association of Architects. Well done, Nedra!

I came to know Nedra over the years as a colleague, when she was the chief staff person in charge of the State Bar’s Sections and Committees and Young Lawyers Division. In an organization dedicated to the legal profession, she and I (and a few others) were an anomaly. We were lawyers, but not working as lawyers in our jobs. That lent us an outsider–insider view of the profession.

Nedra always distinguished herself as an excellent leader, but one just as committed to getting the details right as she was to ensuring the big picture made sense. I grew accustomed to hearing from lawyers and judges who were so pleased to have worked with Nedra. She put a very human and accomplished face on a member organization.

For those and many other reasons, I was torn when Nedra announced a few years ago that she was pulling up stakes and moving back to Canada. She is a Canadian lawyer, so the news wasn’t unexpected. But we were sad to see her go—and curious what she would end up doing. Always driven by service, Nedra spent time working for Legal Aid Ontario.

Now we see that Nedra has landed in another esteemed professional association.

As the OAA announcement begins:

“The Ontario Association of Architects (OAA) is pleased to introduce Nedra Brown as the new OAA Registrar.

“‘We are pleased to have Nedra on board and welcome her to the OAA,’ says OAA President Sheena Sharp. Nedra has been in the office since this summer and has been working with Hillel Roebuck and the staff of the Office of the Registrar.

“Nedra has extensive legal experience as a senior manager in a self-governing professional association. She was most recently Policy Counsel for Legal Aid Ontario. For seven years prior, she was Director of Sections & Committees at the State Bar of Arizona.”

Read the complete news release here.

In case you’re wondering what the OAA does, here is their own description:

“The Ontario Association of Architects is a self-regulating organization governed by the Architects Act, which is a statute of the Government of Ontario. The Association is dedicated to promoting and increasing the knowledge, skill and proficiency of its members, and administering the Architects Act, in order that the public interest may be served and protected.

“There are currently 2,993 architects, 1,294 Intern Architects and 724 associates for a total of more than 5,000 people. There are 1,377 architectural practices in Ontario.”

Here is a pie chart that illustrates their membership.

Nedra explained to me a little more about her own job as Registrar. She says that the OAA acts as a mandatory self-regulating professional association (there are also voluntary local societies, like the Toronto Society of Architects, that mirror county or city bars). The OAA is part of provincial and national associations of regulators for self-governing professions. Nedra is responsible for all things regulatory, including interns, licensing, complaints, discipline and continuing-education requirements (like our own MCLE).

When Nedra described architects to me, I immediately thought of lawyers:

“Architects are creative and detail oriented. While there are many visions and perspectives, they are all interested in the interaction between the existing or natural environments and what they design and build.”

Another profession with particular goals and a broad mission—Nedra’s done that already, and well. I am confident she’ll wow Ontario’s architects as she did Arizona’s lawyers.

Congratulations, Nedra.

Want to wish her well? I’m sure she’d love to hear from you, so send her a note at nedrab@oaa.on.ca.

Just last month, I took a moment to wish Dan McAuliffe a happy birthday. Though he passed away a year ago, he is still on the minds of many in the Arizona legal community.

That was clear yesterday, as a remarkable CLE commemorated his life—and his love for the intersection of media and ethics.

Throughout the morning, a packed audience sat in the State Bar of Arizona CLE Center—named in honor of McAuliffe—and watched selections of the man’s favorite legal movies and TV shows. All of the clips were taken from his own collection, some of which, the moderator told us, appear to have been videotaped with a handheld device while the TV broadcast a show.

Peppered among the clips, of course, was discussion about what was professional or, more likely, unprofessional, in the clips.

Shirley Wahl McAuliffe speaks as Pat Sallen (center) and Ed Novak listen, April 27, 2011

Panelists were selected for their knowledge of ethics and of Dan.

Larry Cohen recalled how he had offered his own version of ethical lessons from the movies, only to be heckled by a fellow he later came to know was Dan. They met and “agreed it would be a lot more fun to do the programs together.” All that Dan required, Larry said, was that programs had to contain clips from “My Cousin Vinny” and the opening statement from “And Justice for All.”

“Dan made ethics accessible to people by making it fun,” Larry added.

Also on the panel were lawyers Lynda Shely, Ed Novak and Jim Lee. It was moderated by the State Bar’s Ethics Counsel, Pat Sallen. Each was adept at seasoning their ethical lessons with stories of Dan and his influence on the profession.

The event opened with clips from McAuliffe’s favorite lawyer movie: “My Cousin Vinny.” As Dan’s widow Shirley Wahl McAuliffe said, “Any movie that can take a pro hac vice application and turn it into a running joke” would earn Dan McAuliffe’s love.

If you haven’t seen it, get out there and rent it. But until then, enjoy this clip from a courtroom scene.