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Über dieses Buch

This book explores the transformational impact of new technological developments on legal practice. More specifically, it addresses knowledge management, communication, and e-discovery related technologies, and helps readers develop the project management and data analysis skills needed to effectively navigate the current, and future, landscapes. It studies the impact of current trends on business practices, as well as the ethical, procedural, and evidentiary concerns involved.

Introducing novel interactive technologies as well as traditional content, the book reflects expertise from across the legal industry, including practitioners, the bench, academia, and legal technology consultants. All of the contributing authors currently teach aspiring lawyers and/or paralegals and have identified a gap in the available instructional material.

Rapid technology advances have radically changed the way we all live and work, and the legal profession is by no means exempt from the impact of these changes. In order to better assist their clients, and to better compete on the legal market, it is imperative for lawyers to understand the ethical, functional, and business consequences of new technologies on their respective practices. This book provides the necessary content by including legal technology texts, information about novel pedagogical technologies, helpful tools for managing legal technologies and IT staff, statistical methods, tips and checklists.

Inhaltsverzeichnis

Frontmatter

Introduction to Technology Competence

Frontmatter

Chapter 1. Introduction to Ethics and Technology

Abstract
That there should be a distinct set of ethical rules pertaining to lawyers’ use of technology seems odd at first glance. Ethics rules are written broadly by design and would seem to be able to apply across all practices; there are not, after all, distinct rules pertaining to the representing banks or trying malpractice cases. Yet, here, as elsewhere, the extraordinary changes that technological developments have made in the creation, processing collection and preservation of electronically stored information have required that broad rules be refined and then applied to problems that no generation of lawyers have ever faced.
Kimberly Williams, John M. Facciola, Peter McCann, Vincent M. Catanzaro

Chapter 2. Technological Competence

Abstract
The technological change lawyers have witnessed brings in its wake an obligation to know enough about that change and its consequences if they can be reasonably anticipated, to have an impact upon the client’s business and the representation to be provided.
Kimberly Williams, John M. Facciola, Peter McCann, Vincent M. Catanzaro

Chapter 3. Outsourcing

Abstract
Recall again that in law offices in 1975 there were only three kinds of people: partners, their secretaries and associates. The order is intentional. In 1975 associates were the lowest level of professional life in a law firm. There appeared, however, a new form of life, a paraprofessional. Neither associate nor secretary, the paraprofessional claimed she could do many of the duties being done by associate but at a much cheaper rate. Initially, it was a hard sell and paraprofessionals seemed, at times, to be chained to the Xerox machine. But, paraprofessionals proved their case, combining efficiency with cost saving much to the delight of clients.
Kimberly Williams, John M. Facciola, Peter McCann, Vincent M. Catanzaro

Chapter 4. Receipt of Privileged Information

Abstract
Imagine a lawyer who receives an email from opposing counsel with an attachment, which the sending lawyer indicates, is about a certain topic. The other lawyer opens the attachment and is not about that topic at all. It is about some other topic and on the top of the attachment are the words “Attorney Client Communication.” What must the second lawyer do?
Kimberly Williams, John M. Facciola, Peter McCann, Vincent M. Catanzaro

The History of Technology Competence

Frontmatter

Chapter 5. What Is Technology?

Abstract
There is debate whether the lawyer’s ethical obligation to maintain technological competence derives from, or is merely clarified by, Comment 8 of the Model Rules of Professional Conduct (“MRPC”), Rule 1.1. The fact is for most attorneys, however, where the obligation initially arose does not matter.
Kimberly Williams, John M. Facciola, Peter McCann, Vincent M. Catanzaro

Chapter 6. How Did We Get Here?

Abstract
It is still hard to believe that in 1997 the cost of restoring certain back up tapes in McPeek v. Ashcroft, 202 F.R.D. 31 (D.D.C. 2001) that so troubled the court and the parties was estimated to be $774 (i.e. 8 h @ $93 an hour).
Kimberly Williams, John M. Facciola, Peter McCann, Vincent M. Catanzaro

Chapter 7. Technology: Then and Now

Abstract
How did we understand technology twenty years ago? How do we understand technology now? Where will we be in another twenty years? Will there be a video clip of us at which future generations laugh due to our current lack of comprehension? Will we still call it a “video clip?”
Kimberly Williams, John M. Facciola, Peter McCann, Vincent M. Catanzaro

Chapter 8. Benchmarking Technology Competence

Abstract
There are a number of process and certifications that have been established, over decades, for managing technologically complex business processes. As lawyers, and legal professionals, we do not have to invent the wheel in this space.
Kimberly Williams, John M. Facciola, Peter McCann, Vincent M. Catanzaro

Technology in Litigation

Frontmatter

Chapter 9. Introduction to eDiscovery

Abstract
At the end of discovery, when all the data is neatly culled, processed and searched, the lawyer must feel like a dog that chases cars. What would the dog do if he caught one? Like the dog, the lawyer has to wonder what will I do with all this stuff? The answer is, of course, get it into evidence in support of a proposition of fact that the lawyer is obliged to prove. To do that, the lawyer has to understand the rules of evidence that will permit or prohibit the consideration of the evidence she will offer.
Kimberly Williams, John M. Facciola, Peter McCann, Vincent M. Catanzaro

Chapter 10. Authenticity

Abstract
The fundamental rule. A document is not relevant unless it is what it purports to be and, as explained above, a party must therefore produce sufficient evidence to support a finding that it is what it purports to be. Federal Rule of Evidence 901(a).
Kimberly Williams, John M. Facciola, Peter McCann, Vincent M. Catanzaro

Chapter 11. The “Ethics” or Lack of Them During Negotiations

Abstract
One of the most significant of the many achievements of the Sedona Conference was the issuance of its Proclamation on Cooperation. It is startling to realize that there was opposition to the Proclamation’s central tenet—that lawyers do not violate any ethic proscription when they are transparent and cooperative with opposing counsel—on the grounds that it was inconsistent with the lawyers’ obligation, discussed above, to provide competent representation. The opposition came from those who engraft onto that rule words that do not appear in it—the lawyer must be a zealous advocate and consider the supposed obligation to be zealous to require the lawyer to give not one jot or tittle in discovery that the rules require. This kind of lawyer would never even consider discussing with opposing counsel which custodians are most likely to have the most relevant information, what the format or production by both sides should be, and how their clients’ information systems actually operate.
Kimberly Williams, John M. Facciola, Peter McCann, Vincent M. Catanzaro

Chapter 12. Technology Assisted Review

Abstract
Lawyers and legal support professionals routinely deploy technology, in one form or another, to conduct document reviews. So, what exactly is meant by the terms Technology Assisted Review (TAR, or predictive coding)?
Kimberly Williams, John M. Facciola, Peter McCann, Vincent M. Catanzaro

Strategies for Achieving Competence

Frontmatter

Chapter 13. Transparency

Abstract
The ABA Model Rules Preamble states, “As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.”
Kimberly Williams, John M. Facciola, Peter McCann, Vincent M. Catanzaro

Chapter 14. Effective Communication

Abstract
As lawyers are called upon to manage and supervise increasingly complex technological projects, effective communication is critical. Effective communication and communication protocols may take a series of forms, and levels of complexity, as the specific project and overall organization or business dictate. There are three key components to any good plan, specifically: (i) establishing roles and responsibilities; (ii) sharing knowledge among team members and stakeholders; (iii) efficiently responding to emergent circumstances.
Kimberly Williams, John M. Facciola, Peter McCann, Vincent M. Catanzaro

Chapter 15. Achieving Consistency

Abstract
We’ve all heard some version of the old adage that if you present 10 lawyers with the same set of facts you will get 20 legal opinions—at least. There is, without question, an art to the work lawyers perform, but there must also be a science.
Kimberly Williams, John M. Facciola, Peter McCann, Vincent M. Catanzaro

Chapter 16. Managing Variable Needs

Abstract
One of the sustaining challenges in almost any business is managing the variability of the business cycle. For lawyers this may mean managing both the variability of our clients’ business cycles, as well as the spiky demands created by complex litigation, regulatory investigations, significant mergers and acquisitions, etc. Increasingly, technology, and technology based services, can help attorneys handle the ebbs and flows of their practices.
Kimberly Williams, John M. Facciola, Peter McCann, Vincent M. Catanzaro

Chapter 17. Effective Supervision

Abstract
No attorney is an island. In delivering legal services to clients, many of us routinely rely on fellow lawyers, experts, and administrative support to some degree or another. In doing so, we often use various technology resources to manage documents and other tasks, as well as to enhance communications, knowledge management and scheduling. Of course, as matters increase in complexity, so do the management skills, and tools, required to supervise them.
Kimberly Williams, John M. Facciola, Peter McCann, Vincent M. Catanzaro

Chapter 18. Using Technology for Improved Billing and Business

Abstract
It may seem that the billable hour has been the coin of the realm for legal services since time immemorial, but that is hardly the case. In the United States, the billable hour model only became prevalent in the late 1970s, after the Supreme Court ruled that minimum fee schedules set by State and local bar associations violated antitrust laws.
Kimberly Williams, John M. Facciola, Peter McCann, Vincent M. Catanzaro

Backmatter

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