Monthly Archives: June 2014

Discovery Changes in Legal Cases

Technology for AttorneysThere are many changes in the legal discovery of information in California civil cases, and these are mostly in the electronic discovery realm. These are things that are probably not going to change, and need to be clearly understood by litigators, in order to take full advantage. Today for attorneys there is no longer a difference distinguishing discovery and e-discovery, there is only discovery. Most documents and other information is saved, stored and transmitted electronically, which also means it is discovered electronically. The days of file drawers, staples and printed documents is much less common thanks to e-discovery.

The laws have caught up to include electronic transmission, saving and storing of documents and other tangible evidence with a new category “electronically stored information (ESI), under the amended Federal Rules of Civil Procedure. This expanded discovery law to include e-discovery was enacted December 1, 2006 and California would later follow with laws that are nearly the same as the federal laws, which were signed into law on June 29th by the governor. This was AB 5 an act that amended the Cal C.C. P. re electronic discovery laws of subsection 2016.020 with eighteen subsections in 2031 and new C.C.P subsections 1985.8 and 2031.285. AB 5 is better known under the California Code of Civil Procedure (CCP) as the Civil Discovery Act that addresses the discovery of electronically stored information.

This act would establish the procedures by the plaintiff or defense to obtain discovery by electronically stored information. Prior to this act the California Code of Civil Procedure only addressed the use of technology discovery in either large or complex cases.

ESI—How it is Different and the Same

The revised Code of Civil Procedure section 2016.020 outlines how electronically saved information is the same and how it is different for discovery in a legal case. This includes the types of electronic means:

  • Electronically stored information is any information that is stored in an electronic medium.
  • Electronic means of evidence related to technology including electrical, digital, wireless, optical, magnetic, electromagnetic and other similar capabilities.

Electronically Stored Information Versus Paper Documents

There is a large difference in the amount or size of electronically stored documents compared to paper documents. The difference in relative terms is one gigabyte of documents in Microsoft Word is equal to approximately 75,000 paper documents when it is printed out. While this sounds like a beneficial way to obtain discovery evidence, it also means that it will take man hours to ferret out the necessary information and any data the opposing attorney would rather keep from reaching the other lawyers hands. This time consumption creates a cost that may not have been found with paper documentation.

There are some real benefits, beside finding things the opposing counsel would prefer would not be found. The fact that MS word is searchable can make a real difference in finding exactly what is being looked for in large documents. This does not take any special tools or metadata knowledge, just the words that are being looked for placed in the search tab.

Finding Gold

Electronically stored information can include methods of contact with other individuals that would not necessarily have been in the forefront before the use of ESI in discovery. This means that email, instant messaging and even voicemails may be a part of the discovery evidence and most people are not as cautious using these forms of communication as they may have been otherwise. When the client of the opposing counsel is using these methods of communication without regard for what they might share that could be used in a legal case.

The one difficulty with email files, portable media like cell phones, blackberry, thumb drive, external drives, CD’s or DVD’s, when reviewing them they are not organized by subject in most cases.  Email alone is a type of electronically transferred document and while it can be easily copied or deleted from a computer there is a permanent record that can be retrieved from the server and in some cases there may be a backup on a local PC.

Servers are the ISP or internet server, such as AOL, Verizon and others and most people do not realize these backups of their communications exist on the server and can be retrieved even when they are no longer on their personal computer. This is the world of e-discovery and electronically saved information.

 

 

Federal Civil Cases and Electronically Stored Information

Electronically stored information (ESI) is essential today in civil cases and the Federal Rules of Civil Procedure that took effect on December 1, 2006 involving the use of Electronically Stored Information, or “ESI”. These rules are important to lawyers in California, since they preceded the states adoption of statutes and rules involving the discovery of ESI. The federal rules were in place about 30 to 36 months prior to California establishing rules and the federal laws are better involving this type of potentially relevant evidence in civil cases. These rules enacted in 2006 are worth understanding because statutes enacted in California are modeled after the federal rules. The important rules to read are 26 (a), 26 (f), and 16 (b) of the Federal Rules of Civil Procedure, which outline the steps in pre-discovery stage of civil cases.

Disclosures will be made per Rule 26 (a) and should take place as soon as possible after responsive pleadings are filed and should be no later than 21 days prior to the Scheduling Conferences that is set by the court. Under Rule 16 (b) (2), it states the parties must consider the nature and basis of their claims and then goes on to say the defense and possibilities for settling or resolving the case. The other possibility is to make a range the disclosures that are required in Rule 26 (a) (1) and this also provides time for discussion about serving discoverable information and to develop a discovery plan.

There are some instances where it will be important to write letters for certain types of evidence or disclosure, since the other legal representative often will not provide all of the potentially relevant information without these letters.

  • The opposing counsel may not identify the most important players in their case they are the custodians of the potentially relevant evidence that could support defenses or counterclaims and this is outlined as being required in Rule 26 (a) (1) (i).
  • In the event the opposing counsel will not provide a copy or description by category and location of the documents or electronically stored information they possess having custody or control that could be used to support their claims or defenses as outlined in Rule 26 (a) (1) (ii).
  • The opposing counsel will not turn over a copy of any insurance agreement in which a business may be responsible for all or part of the potential judgment, possible reimbursement for payments made to satisfy the judgment or to indemnify. 26(a) (1) (iv).
  • The plaintiff’s counsel will also be obligated to disclose each of the categories of damages claimed, supply supporting documents and materials having reference to the extent and nature of the injuries that were sustained. 26 (a) (1) (iii)

Failure to Comply

When the letters that are sent to the opposing counsel go un-reciprocated the next step that can be followed is outlined in Rule 30 (b) (6), which is “organization” depositions, this requires the organization to produce at least one or more witnesses to testify as to the information known or reasonably available to the organization. This will be based on topics described with reasonable distinctiveness. When using Rule 30 (b) (6) deposition will only indicate that it may be credibly argued the defendant failed to comply in good faith under Rule 26 (a) (1).

The other choice that may be an option is to seek leave of court for an “early disclosure” in Rule 30 (b) (6) deposition. This will not count toward the 10 “substantive” depositions that are permitted without leave of court under Rules 30 and 31. Cooperation with the opposing counsel is when the attorneys should be ready to prepare and file a discovery plan as outlined in Rule 26 (f) (2), since it will be due 14 days after the end of Rule 26 (f) (1) conferences or 7 days prior to the Scheduling Conference. This discovery, disclosure or discovery of electronic stored information will include forms including any issues about claims of privilege or protection as trial preparation materials.

Disclosure Rules

The initial disclosure will be under Rule 26 (a) (1) (C), which outlines that 14 days after the end of Rule 26 (f) (1) conferences or 7 days prior to the Scheduling Conference, under Rule 26 (g) (1) the disclosing party’s lawyer is required to sign a certification that the disclosure is complete and correct at the time it is made. This is why with electronic information it is the discovery plan should state the party’s views and proposals. If there is any disclosure or discovery electronic stored information that includes forms that should be produced, any issues about claims of privilege or protection as trial preparation materials they should be noted.

Sources:

California State Court Duces Tecum Subpoena: http://www.courts.ca.gov/documents/subp002.pdf

Rule 34. Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes: http://www.law.cornell.edu/rules/frcp/rule_34

 

 

 

Tech Savvy Attorneys – Using Technology for Practice Management

Provided in Consultation with Andre van Wyk

The ever increasing, and improving, technological tools available today have allowed virtually every conceivable industry to improve in cost efficiency, client relationship management (CRM) and even client acquisition. Not to mention the less extravagant administrative functions that goes with managing a business today.

Looking at this from a legal practice perspective, allows for a significant cost saving (and efficacy) when it comes to the management of a law practice. So much so, that we have specific technology solution providers that promote their services in encouraging “The Virtual Law Firm” – see GoClio.com (this is not an endorsement of that provider). Their tagline includes addressing issues of time & billing and client collaboration directly online.

“a third of consumers said they would be attracted by online legal services” – legalfutures

Technology for Attorneys

Improving Efficiency

Although in the case of the above it is advantageous to have everything under one umbrella as such, there is nothing stopping the small law firm or solo practitioner using the internet to run their practice. Time tracking can be done via a number of different applications and allotted accordingly, assuming the practice in question is billing in that manner. For attorneys that work on a contingency basis, such as the personal injury type attorney, these tools are not entirely necessary, unless he or she would like to keep track of their activities for their own records.

ABAJournal provides an interesting insight into the use of everyday tools, already being used, but not maximized in this podcast: http://www.abajournal.com/news/article/podcast_monthly_episode_45/

Managing Your Practice Virtually?

Naturally the management of a law firm goes beyond time tracking alone. So what are the options available for the attorney, who would like to run and manage their practice from a mobile device?

  • Voice Over Internet Protocol (VOIP) – the use of internet telephony has numerous benefits from allowing the attorney to have local telephone numbers, a toll free number and more – and these can all be forwarded to a number or numbers of their choice. Call tracking and reporting can be integrated for whatever reasons you may deem necessary, as well as call recording too.
  • Document Management – Centralized document storage can be integrated via Google Drive, or similar applications that allow for cloud storage implementation, such as Dropbox – and many other solutions. For those relying on fax documents, fax to email is a solution to these requirements – however nowadays it seems email has far surpassed this means.
  • Diary or Time Management – Outlook Calendar / Google Calendar
  • Client ‘Meetings’ – Google Hangouts, Skype et al.
  • Lead Generation – Live Chat (self-managed or hosted – if you have the time) or outsourced. Integrated with a suitable telephony provider can also allow for SMS integration into the contact (sales) funnel for the firm’s website visitors.
  • Research – undoubtedly a large amount of research is done online nowadays, Duke University provides a list of some of the best Legal Research websites, Opinions and rulings and related research portals at http://law.duke.edu/lib/researchguides/intresearch/. Alternatively consider “The Cybersleuth’s Guide to the Internet: Conducting Effective Investigative & Legal Research on the Web” if you are not too tech savvy and need to get a good grounding.

Although the above is not in the slightest exhaustive in terms of options available, it is merely provided for ideas as to what is pretty much freely available to the average Joe, and which can all be implemented into an existing practice to help with efficiency and management in all aspects of the firm.

Provided you have an internet enabled or mobile device there is nothing stopping you from running, and managing your law firm from wherever you wish. Naturally if you are new to these technologies (which I doubt) you may have some learning to engage in. Once the basics are achieved you will soon come to wonder why you have never taken the maximum advantage of what technology has to offer us today! Being tech savvy is not only going to make you more efficient, but is going to add a whole lot of convenience to your life too.

Recommended and Additional Resources:

Getting Help for Your Injury Claims

Ehline Injury Lawyer

Contact Ehline at 2113-596-9642

When an accident happens, whether it is a car collision, incident a property, at work or even at home that due to the actions of another person or party it may be time to consider hiring a personal injury attorney. Having legal representation can mean recovering a higher settlement, since this is a legal advocate with experience in personal injury law. They are able to deal with the insurance company involved and this relieves the stress of personally negotiating with the insurance company adjustor and lawyers. The one thing that should be understood is that not all personal injury attorneys are the same.

The person who has been harmed should research the qualifications, experience and track record of the lawyer to determine if they are the right one for your specific situation. The right legal professional will have represented clients with cases similar to your claim and there are some important questions to ask. They should include what their success rate is, what their settlement averages are, their experience working with doctors and experience working with insurance companies. It should be questioned if the lawyer will be handling the case alone or if they will rely on paralegals to perform form of the work on the case. In the event that there will be paralegals or other attorneys working on your case, then you should meet them to assess if the law firm is the right fit for you to trust.

Any questions or emails that you have should be responded to by your attorney within 24 hours and this is something you may want to have written into the agreement to be certain of good communication. Prior to signing an agreement to retain a personal injury attorney it should be clear what the billing practices are, including the lawyer fees and who the payment is expected to be paid and when. It should also be discussed how the legal professional plans to be successful in your case to recover the compensation you deserve. If all these issues are answered to your satisfaction and you feel comfortable having this legal advocate provide representation to protect your rights, this may be the right attorney to hire.

Consulting a personal injury attorney to discuss your case, they should be able to determine if the case is valid to obtain compensation or if it is not worth pursuing. This may be disappointing to an individual if they find their claim is not worth pursing, but not every case has the necessary elements to prove negligence. It can also be expensive and time consuming to bring a claim or lawsuit for both plaintiff and the lawyer. This reason it is good to have a legal professional who will be honest.

The legal advocate with experience when a claim is evaluated and has the elements to prove negligence, the attorney may be able to provide a rough idea of what the case may be worth in a settlement or court award. They may also be able to estimate how long it can take to negotiate a settlement or litigate the case in court. In the end the most important issue is that you have a clear understanding of the process your case may take, feeling comfortable with the answers to your questions and believing they are trustworthy in having the same objective in your situation.

Personal Injury Claims

cropped-logo_tpl_black.pngPersonal injuries are one of the times in a person’s life and their families that are devastating, emotionally traumatic and can be financially draining. It can also be a challenge for the person that does not know personal injury law. These are the most frequent types of reoccurring incidences and motor vehicle accidents rate high in frequency. The harm can be both physical and emotional in these types of events and this is where the personal injury attorney can relieve the stress related to the incident.

The legal professional practicing in this area of the law can protect the rights of the person who has suffered harm, when it has been caused by another individual or entity. Personal injury advocates assist the injured person by filing a legal claim for the plaintiff against the person at fault for wrongdoing to obtain compensation for the bodily impairments and damages they sustained.

While it is not necessary to hire a personal injury lawyer, since it can be handled by the person who was hurt, it sure can help with the bottom line. These lawyers typically employ PC type tablets, and other technology both in and out of the courtroom to help aid in a greater recovery, that is windfall in comparison to going it alone, and they most often work on a contingency based fee.

This means that victims who have legal representation generally recover a higher financial settlement than someone going it alone against the negligent party. This is due to their intricate knowledge of tort law and the legal process. They have experience negotiating with insurance companies and litigating in civil court for clients who have been harmed in auto, truck and motorcycle collisions, bicycle accidents, slip and fall injuries, product liability, work related and construction mishaps.

The legal professional will also be able to fight for compensation for medical expenses, ongoing medical care, lost wages, temporary or permanent disabilities, along with other damages. This is why a personal injury attorney (learn more here) should be considered consulting after being hurt in an accident, rather than pursuing a claim alone.