Law And More

"Legal practice has yet to come to grips with the information age," Benjamin Wright, Attorney/Expert on E-Discovery

The elephant in the room in the Rhode Island lead paint public nuisance trial II was that there was no e-evidence.  The novel theory of public nuisance threw out statue of limitations.  And back in the days when lead paint was a legal product - before the Feds banned it in the late 1970s - there was no email.

Well, now there is.  And E-discovery currently represents one of the highest costs of litigation. Plus, the process, as defense attorney Joseph J. Hedrick of Dechert explained, can become the full-time job of a company's key people.  Dechert also advises his global pharmaceutical and biotechnology clients to be aware when electronically communicating that these off-hand remarks could become evidence that is open to all sorts of interpretation.

Because of the role E-discovery plays in the U.S. legal system, I asked an expert on this topic to provide us with an exclusive interview.  He is Benjamin Wright, an attorney and popular blogger on technology law and policy.  Here is his blog http://hack-igations.blogspot.com,  It covers such digital-edge topics as privacy, E-discovery, and the use of electronic records as courtroom evidence.  Wright is also the author of mulitple books on information law such as "Business Law and Computer Society."  He can be reached at Wagonhitch5@yahoo.com.

In this interview, Wright will address E-discovery issues - the process under which electronic records like e-mail are disclosed between adversaries in litigation.  This have become a front-burner matter in tort reform.

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JG:  Why are E-discovery costs so high?

BW:  Legal practice has yet to compe to grips with the information age.  In the information age, the records relevant to a lawsuit or controversy are superabundant. 

Some lawyers view this superabundance from a narrow cost perspective and try to resist by destroying the records.  That's a dumb move.  Ask Arthur Andersen. Smart players, on the other hand, understand that the whole litigation game has changed and seek to capitalize on the change.  So, for example, I have argued that a wise enterprise is very generous in its retention of e-mail messages.  Those e-mail records help the enteprise navigate through many legal and political challenges, including lawsuits, regulatory compliance and political investigations.  For example, see http://hack-igations.blogspot.com/2008/04/reducing-volume-of-e-mail-archives.html.  

JG:  How can E-discovery costs be constrained or managed better?

BW: For an enterprise like a corporation or a government agency, the real question to ask is not how to constrain E-discovery costs.  E-discovery is not an end in itself.  E-discovery is just part of a lawsuit. 

An enterprise can easily incur low E-discovery costs, while losing an expensive lawsuit.  The real question to ask is: How can I cope with electronic records so that possible legal disputes and controversies pan out in good results for me?

A good result includes an accounting for costs like E-discovery. My reply to the question goes like this: Technology is changing the world at lightening speed.  A wise enterprise can use technology pro-actively to seek good outcomes from the legal system.  The enterprise, for example, can cast a burden on its potential adversary, before a lawsuit is filed, to help the enterprise understand its mistakes, if any exist, and correct them promptly so that those mistakes are small.  To explain this idea I publish a video example at http://hack-igations.blogspot.com/2008/05/nix-smoking-gun-e-discovery.html.

JG: Has E-discovery become a strategy or tactic to burden opponents in a possible lawsuit?

BW:  Yes, Jane, it has.  Some parties have bullied their opponents into settling lawsuits early just so they can avoid the costs of E-discovery, i.e. the costs of sifting through all their e-mail records and turning copies of them over to the other side.

But such bullying is not the end of the E-discovery story.  We must remember that E-discovery is a two-way street.  Properly understood, E-discovery is a specific example of a more general exercise: That is, a technological investigation. 

In a lawsuit, technology investigations are available to both defendant and plaintiff.  Technology investigations furnish savvy litigants endless innovative options.  Smart people know how to demand and look for unconventional electronic evidence that will work to their advantage. See, for example, my discussion of software source code at http://hack-igations.blogspot.com/2007/09/endless-investigations.html.

JG:  What kinds of reform are possible and where will they come from?  Should we look to the executive branch, courts, legislatures, and professional associations?

BW:  The information age rewards intelligence and punishes bone-headed adherence to old-fashioned practices.  Those enterprises that adapt creatively to the new legal environment will fare better than those that don't. 

Meanwhile, the courts need to sense how the world is changing.  If judges don't understand change, then sharp litigants will hoodwink judges (about such topics as which E-discovery is needed and which is not) and abuse our system of justice.

JG:  Thank you so much for this insight and all the useful links.  I hope you will be an ongoing source of information on E-discovery for this blog.  As a niche marketer, I would say you're wagging the right long tail.

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Benjamin Wright can be reached at Wagonhitch5@yahoo and his popular blog is a must-follow for those of us searching for an advantage in using E-discovery.  Wright's book "Business Law and Computer Security" doesn't seem like a beach-read but I plan to take it along to Rhode Island this Fourth of July to get a better handle on how the information age and the law are intersecting.

Tort Reform - The Conversation that Never Got Started

Today, in THE NEW YORK TIMES "Business" section, Jonathan D. Glater confirms what most intelligent tort-reformers, including lead-paint watchers, knew.  And that's that the movement going on since the 1970s to return the the rules governing civil lawsuits to common sense, fairness and, yeah, justice, didn't seem to want to win over converts.

The message, which quickly hardened into absolutes, was and is positioned, packaged and delivered to the controlled distribution of corporations, defense attorneys, and the Republican party.  Depending on whom you talk to, as Glater points out, the movement has succeeded beyond anyone's wildest dream or it merely caused the civil litigation to migrate from state to federal courts and re-format itself.

So, now we probably stand on the brink of a Democratic Administration, with a mission which may be working or not working and with an approach [strategy, tactics] that isn't reaching the mainstream.  For one thing, those opposing tort reform aka lefties are much more at-home on the Internet than those championing it. And even the digital sites which have sprouted up in the past few class-action plagued years [think lead paint public nuisance] seem to be where MS. Magazine was before falling out of the female consciousness. 

MS., like most of the tort reform messaging, was stuck in a binary strangle-hold: This is good.  That is not good.  There is no room for discussion.  Intelligent women, weary from the realities of having choices, simply ignored that monolith of preaching.  Incidentally, MS. was still using its old pattern of enlightenment "clicks" to snap us to attention of how we were living unliberated lives.

So, what should we tort reformers be doing? Plenty.  And now.  

Here is what I've found moves the dial on public opinion, grabs the attention of government, hands lobbyists decent talking points, and actually reaches into the minds of the great mass of undecided:

• Stop the inane MS.-like clicks.  This litigation went forth in Portland, Oregon and it is bad.  This litigation failed in Portland, Oregon and it is good.  Clicks demean.  Between the two poles there are points intelligent people want to talk about.

• Listen to the plaintiff bar.  Many of its members are concerned with more than making a bundle of money.  They scorn Dickie Scruggs and Bill Lerach as much as we do. Take key points of plaintiff bar's arguments, commend them, then show why they might be well-intentioned but wrong.  This kind of civility got the public and government off the oil companies' backs during 2nd oil embargo.

• Deconstruct the best of the plaintiff's bar messaging machine.  It sure is reaching the mainstream.  And it has down cold the tone, content, format and short takes of new media.  The ultimate model is the mulitiple blogs on Marler Clark by Bill Marler.  A sign of its reach: Marler Clark's competitors are avid readers.

• Admit error.  The world has come not only to love but expect apology.  For example, business might concede it was not adquately proactive on employees' right to be comfortable in the workplace.

• Find and nurture an open-minded champion of common sense, fairness and, that abstract thing, "justice." Human beings need icons.

• Get on non-partisan talk shows.

• Teach fundamentals of law everywhere.

Disclosure:  Now and then I do digital assignments for Marler Clark.

No Era for Hamlet - Bear Stearns Matthew Tannin & E-Discovery

 In this era of e-discovery, financial-markets player Matthew Tannin should have known not to use email, even if it was his private email account, to engage in a Hamlet-like musing about how things appear.

Dan Slater reports in THE WALL STREET JOURNAL Law Blog, that this evidence of an inner dialogue - and angst - about the state of the hedge funds can be interpreted in a variety of ways by both the defense and the prosecution. In a case where the evidence of wrong-doing and conspiracy isn't clear-cut, some argue, this could help muddy the waters for a jury to decide Tannin's guilt or innocence.  They add that it also provides a handy platform for Tannin to throw his Bear colleague Ralph Cioffi under the train.

However, it's highly unlikely that this case will ever reach trial-stage. It didn't for supposed goody-two-shoe Craig Gile and the ultra cagey Bill Lerach.  The federal machine in these alleged white-collar crimes is too well-oiled and formidable for anyone who gets caught in its jaws to play around.  The e-mails, office and personal, give the machine more to chew on and to spit in the face of the defendants. 

My advice to professionals:  Tony Soprano stayed clear of the written and spoken word.  When he had to communicate about business he would do so in the protected sanctuary of Uncle Junior's medical doctor. Loose lips and flying fingers on the keyboards can only strengthen the feds' hand.  You can read all about in Lerach's extended essay of self-pity the July PORTFOLIO.

Two Yale JDs - Victims of the New Apartheid

Did the end of the era of two of Yale Law School's most famous graduates - Bill and Hillary Clinton - come because of digital technology?  Maybe, at least if "digital" is defined broadly as a mindset or gestalt. 

That mindset is: Now, animal-like alert, opportunitistic, self-healing, and giggles about traditional credentials.  In my recent e-book "Saving Park Avenue, K Street and Greenwich, Connecticut," I explain why that play it as it lays approach to professional life is the new apartheid. Non-digital heads don't get hired or attract and keep clients.  [Here is a complimentary copy of that book Download savingsoulsonparkavenuekstreet.pdf.]

This isn't about being able to blog, do podcasts, download on YouTube, and post on Twitter.  It is about internalizing how this technology has changed everything related to getting/staying employed and starting/running a business.  Picture relentless mutation.

For instance, those long-term investments in acquiring conventional whatevers may have been reckless. Consider the goody-two-shoe law students who did all the right things and now can't land those first plum jobs, are probably not going to be made partner, and have no chance of becoming an equity partner.  In the end, the system might kill off all the abstract career preparation and re-introduce the apprentice system. 

We may be reading law with Aunt Martha, acquiring media skills earning miniumum wage working at my digital shop, and learning the political ropes by doing the grunt work in the mayor's office.  Professional schools, graduate programs, even college will be just-in-time learning that may or may not have to be done to succeed. Not good at law?  Then, without an outlandish investment of time and money, we will just try something else. 

Incidentally, what used to be considered failure, mistakes, erratic behavior, instability just won't register on the radar anymore.  No one cares how we got here.  All that matters is what we can do for employers and clients now.  The next entries to the job market will not wonder what they want to do.  They will find out through trial and error what they can do well.  That's not new.  Many rich folks started out flipping burgers in Mickey D, then went on to buy six franchises.  What is new is that kind of testing out career paths will become respectable. 

Think about it.  Did the leadership at Sherwin-Williams, Atlantic Richfield, NL Industries, and Millennium Holdings ever expect for that monster barnacle called lead paint public nuisance to attach to them?  In addition, there don't seem to be any bulletproof formulas about winning or even resolving this.  Both these defendants and the sundry plaintiffs have been on a roller-coaster.  BTW, some of the head counsels in this litigation such as Jones Day Mickey Pohl didn't matriculate at the Ivies. At the Rhode Island four-month lead paint trial II, Pohl told me he took the trolley in Pittsburgh to his commuter law school.

When I interview contract employees for my communications boutique I now ask:  When did you last screw-up, how did you fix it, and what was the takeaway?  Digital people know exactly what my not-so-hidden agenda is: Searching for help to solve problems we might not even have a term for yet.

More than RI 15,000 Lead-Safe Rentals Listed Online

A homerun for both the state of Rhode Island and for those wanting affordable, safe rentals, there's now a list online of units which have been inspected by an independent party and certified as lead-safe.  That database - www.hrc.ri.gov [click on "Lead Mitigation Certificate Search"] - already contains more than 15,000 units.  Being on this list indicates that the landlord has been in compliance with the state's Lead Hazard Mitigation Act.

That has been initiated by the Rhode Island Housing Resources Commission, reports Natalie Garcia in THE PROVIDENCE JOURNAL.  But this isn't the only list available.  As Garcia states, the RI Department of Health "also keeps a list of more than 6,000 units that have been certified as lead safe through a more extensive and costly process that landlords have the option of choosing, which includes testing for lead in a rental unit's paint, soil, water and dust." 

Experts on lead hazards have been documenting for decades that lead contamination is embedded in the environment, not just in the paint of residential units constructed before lead paint was banned in 1978.  The more serious threat comes from the lead released from auto emissions when gasoline contained lead.

If there is a RI lead paint public nuisance trial III, these two databases could be additional evidence the defendants provide in their assertion that the lead hazard has been effectively managed.  In RI II, in fact, state witness Dr. Patricia Nolan, former head of the RI Department of Health, testified that the significant reduction in new cases of elevated levels of lead in the blood of children has been one of the major public health success stories.

Should there be a RI III, the defendants would be Sherwin-Williams, NL Industries, and Millennium Holdings.  The RI Supreme Court will issue its ruling in July.

When the world believed in love - 119 minutes from Turkey

When former Ohio Attorney General Marc Dann was in Turkey to attend a law-enforcement conference he phoned his former employee and love interest Jessica Utovich seven times for a total of 119 minutes talk-time.  Five of those calls took place on Utovich's birthday, June 15th of last year.

As James Nash reports today in THE COLUMBUS DISPATCH, those calls from Turkey to Ohio cost $177.31.  They were made on Dann's "state-paid international cell phone."  Needless to say, this will be one of the items to be investigated during the current comprehensive probe of the OH AG Office.

Criminal Defense: Cases will be won through science, not advocacy skills, predicts Alan Dershowitz

The so-called "CSI Effect" is going to continue shaping criminal defense law.  And way beyond what attorneys are learning now in seminars about how to present to jurors who have been absorbing years of "CSI: Miami" et al.

In a chapter in the 2008 book "What's Next: The Experts' Guide" by Jane Buckingham, Harvard Law professor and famed litigator Alan Dershowitz predicts that science will overtake the traditional power of "advocacy skills."  Cases, he asserts, will be won "on computers and in the laboratories."  And, "No longer will there be Clarence Darrows who dazzle in the courtroom."

This won't be just for criminal trials, either.  We witnessed in the famous "Thomas" personal injury lead paint trial Michael Nilan of Halleland Lewis Nilan & Johnson arguing for the five defedants a la CSI analysis of the paint chips from the plaintiff's residence. What increased the credibility of that scientific presentation was that the analysis had been done on behalf of the plaintiff.  The evidence showed that the paint chips could not be traced back to the pigments or products manufactured by defendants Sherwin-Williams, Millennium Holdings, Atlantic Richfield, NL Industries and Du Pont.  The jury acquitted the defendants after a very brief time for deliberations.

RI SC: Webcast 1.0, Justice Goldberg's Recusal, Update by Jon Pincince

 Jon Pincince, head of the RHODE ISLAND LAW JOURNAL and pointman for the webcast of the RI Supreme Court lead paint oral arguments, brings us up-to-date on matters relating to that May 15th.

Today, in a post in his own publication the RHODE ISLAND LAW JOURNAL, Pincince reports on his discussion with Assistant State Court Administrator Craig Berke about the quality of the webcast.  As you lead paint watchers know, there had been complaints regarding the webcast's breaks in sound and frozen video.

Pincince says that Berke indicated:

"There was one network problem that was corrected early on.  We believe all other problems, including sound, were local, depending on the viewer's own hardware, software and Internet connection.   For example, the arguments were difficult to hear on many desktop PCs with internal speakers.  People who had laptops with good speakers or desktops with external speakers reported no problems."

According to Berke, there were an average of 385 viewers tuned in, with a peak of 424 viewers at any one time.  The Court itself has not received feedback from viewers.

Pincince also reports that anyone wishing a copy of the webcast, which also remains available for viewing on the Court's website, can obtain one by sending a written request, along with a check or money order payable to State of Rhode Island, to Robert T. Baynes, Executive Director, R.I. Judicial Technology Center, 24 Weybosset Street, Providence, RI 02903.

In addition, Pincince asked Berke about the policy regarding recusals.  For the oral arguments, Justice Goldberg had not participated.  Pincince wanted to know if the Court releases the reason for the recusal. Pincine notes, "Berke said that it is up to the individual justice to decide whether to release such information, and that no reason has been given for Justice Goldberg's recusal from the lead paint case."

On behalf of lead-paint watchers I thank Jon Pincince for doing this digging for us.

RI SC Webcast - Not Quite Ready for Primetime

It's a dirty job but someone has to do it - that is, provide lead paint watchers with more facts about the Rhode Island Supreme Court oral arguments today.  Some of you told me that the webcast was of poor quality.  A technology isn't always ready for primetime.

Here is what you might not know that you should:

• ARCO Successorship Liability Issue re ALPC.  Motley Rice attorney Jack McConnell rested with his brief.  He did not present an oral presentation.  Asked around why, no one speculated. But John Tarantino, a local attorney representing ARCO, held court.

 

• Re ALPC, Tarantino described the record as "barren" of anything which would provide evidence that ARCO inherited the liabilities of AL PC.  He sliced through the claim that the trial court did not allow this liability into the trial because the state "could not meet all five of the mere continuation exception factors" [language from plaintiff brief to RI SC] and said it couldn't meet one or two or three.  Tarantino put out there as his strongest argument that known creditors claims which preceded transfer were not presented for about 75 years and didn't emerge until this trial.

• Contingency was BIG.  Here Tarantino and Kelly were the key presenters.  The Court seemed to reframe this whole enchilada from a focus on control, ethics, and the profit motive to one of separation of powers.  One Justice noted that he perceived this as a question of bypassing the authority of the General Assembly. That body, not the Office of the Attorney General, contended the Justice, should have the complete say over revenues.  When the AG agrees that the private counsel hired on contingency gets 16+ percent if there's a win, the GA loses control over revenues.  Kelly was reprimanded by the Justice for not knowing if the contingency agreement would reimburse costs to the private counsel even if the case is lost.  Tarantino fought for the idea that "Clancy" is relevant to this contingency matter.

• Clearly the High Court was struggling to 1) define public nuisance and 2) determine if one existed in RI.

• Yes, as predicted, "Woods" and "Santa Clara" cases figured prominently in hearing.

• A  cute tidbit was that the defense presenter for Millennium, now based in Maine, had once lived in the house on 185 Pleasant Street that has lead paint.

Stay tuned.  More facts/deconstruction to come.

RI SC Lead Paint Orals - You Respond

Of course, a lot of you took in the webcast of the Rhode Island Supreme Court lead paint public nuisance webcast, so let's cut to the chase.

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Inside the Beltway Attorney, off the record:

"The webcast wasn't transmitted perfectly.  But from what I did get, here's my impression: The Rhode Island Supreme Court seems concerned about being forced by the State among other things to 'plow new ground' and to do so without exceptional justification. [Blogger: This is no DES matter.]

"Overall the articulation of many infirmities allegedly associated with the trial court's rulings and the final disposition of the matter generally surpassed the articulation of its factual foundation and legal formulation.

"This is certainly no predictor of the outcome but an observer might properly perceive this Rhode Island Supreme Court viscerally sensing that it is wrestling with a rather large polar bear, one which it may prefer to be placed on the Endangered Species list."

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Wall Street Guru, off the record:

"A shocker.  I would say the stocks of the defendants might be unfettered until the ruling comes out."

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Financial Sector Expert and Sherwin-Williams Investor, off the record:

"Over the past two days Sherwin-Williams' stock has been up.  Right now I sense that Sherwin-Williams can relax about the stock, at least in terms of the lead paint litigation factor."

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Plain-Vanilla Lead Paint Watcher:

"I was taken aback that the attorneys representing the plaintiff didn't stay more on legal message.  I have a question: Did Motley Rice attorney Jack McConnell rest with his brief vs. making an oral presentation on the ARCO successorship liability matter because he sensed the Court's hostility?"

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Comments welcome.  Please contact Mgenova981@aol.com.