At Futurelawyer, Rick Georges reviews a new book, E-Discovery for Small Cases, saying, "This great new book highlights many of the ways that you can do a competent job of ediscovery without breaking the bank."
He’s built a website, Trial by Agreement, that provides a sort of 0pen-source repository of pre-trial agreements that lawyers can use to reduce the often needless expense of electronic discovery, depositions and tit-for-tat motions. Susman himself has used these agreements for years, including in a 2009 trial that resulted in a $179 million jury verdict for his clients against billionaire Harold Simmons and his NL Industries. He wants lawyers to download them for free, modify them, and adopt them as a way to speed up trials and hopefully slow the shift toward arbitration and other less costly ways of settling fights.
At Drug and Device Law, David Walk reports on a case in which a court "ordered plaintiff to provide his user names and passwords, directed him not to delete or alter existing information and posts, and granted defense counsel read-only access to the plaintiff’s account."
Walk concludes, "Perhaps Facebook should amend its privacy statement to include a Miranda warning: what you say on your Facebook page can and will be used against you in a court of law."
The first thing I do after I receive a copy of an employee-filed complaint -- before I read the complaint -- is check the plaintiff-employee out on Facebook and other social networking sites.
I print any information that employee has made publicly available. I save any pictures the employee has published online and I send a list of the employee's friends to my employer-client to cross-check against a list of current and former employees. I do this because, generally, a Facebook user will allow friends greater access to online content.
According to Meyer, "If your client is sued by an individual and you are not harnessing the power of social media as part of your litigation strategy, you're making a BIG mistake." (Link from Future Lawyer.)
The Rules Committee of the Illinois Supreme Court will hear comments at a public hearing on Wednesday, July 28 on three proposals dealing with discovery issues in civil cases.
The hearing is scheduled to be held at 10 a.m., 160N. LaSalle Street, Room C-500 in Chicago.
The first proposal would allow the use, in very limited circumstances, of a party's discovery deposition at trial. The second would allow a lawyer to take a deposition by electronic means (e.g., phone, video) without a court order or consent of the opposing party. The third would allow lawyers to issue subpoenas in civil actions.
There is further information about the proposals and public hearing at the Supreme Court's website.
Here's an interesting way to look at the evidence you present at trial: as either "lawyer proof" or "jury proof."
As authors Phillip H. Miller and Paul J. Scoptur write in their article, "Four Rules for Discovery," (Trial 3/10)--
There are two kinds of proof: lawyer proof and juror proof. Lawyer proof may get you past summary judgment, but juror proof is what gets you a verdict. Prediscovery focus groups can help you view the landscape of your case from the juror proof perspective.
The distinction is useful because it will force you to cut through the
complicated legal thinking and view your case through the eyes of
Some evidence, of course, will fall into both categories. Neither category should be neglected. The value of juror proof is obvious. As for lawyer proof--that's important not only for summary judgment but also for appeal.
Here's why older lawyers should be looking out for the younger generation (or at least getting with it on technology)--
Most lawyers have trouble with email (and digital information in general) because they don't understand how to navigate that world. Lawyers who don't search for things on Internet are the worst. They lack a fundamental skill that's needed to efficiently attack digital information. Naturally they're inept when it comes to handling electronic discovery. Some of them are committing serious malpractice. But, of course, they have no idea.
The next generation of lawyers will not have this problem, or at least it won't be a prevalent problem like it is today. The young turks coming out of law school today don't have a passive relationship to information. They attack digital information the way sharks attack wounded seals.