In-House Counsel

The information age we live in can be a blessing and a curse. Few fields demonstrate this truth more persuasively than the realm of electronic discovery.

During a panel here at the Legal Technology Leadership Summit on the theft and exfiltration of intellectual property, the panelists discussed the exponential growth in information densities, the increasing importance of IP, and the challenge that evolving technology presents to the governing legal frameworks. As one panelist noted: “Technology leaps, the law creeps.”

What does rapidly changing technology mean for the e-discovery world? And what are some considerations that in-house lawyers should keep in mind when responding to e-discovery requests?

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When is a litigator thinking most keenly about a specific witness’s testimony?

There are two days: The day you’re taking (or defending) the deposition of the witness, and the day — months or years later, if ever — when you’re examining the witness at trial. So when should you be making notes about the witness’s testimony and your reaction to it? That question answers itself: You should make quick notes of key points during the deposition, and you should write notes to yourself immediately after the deposition ends. “Immediately after”: Not later in the week; not the next morning. Now, when your brain is fully engaged.

Those notes don’t have to be comprehensive, but they have to memorialize the things that you noticed during the deposition that you’re likely to forget by either the next morning or the day, a month later, when you’re reviewing the transcript. The notes are quick and easy. Write an e-mail to yourself that says: “Today I took Smith’s deposition. These were the highlights: (1) He admitted A; (2) He denied B; remember to create some other admissible evidence on that point; (3) He evaded on C; there’s something fishy going on there; (4) Opposing counsel started interrupting when I got near D; we should press harder on that point; (5) His testimony opens up issue E; let’s do some legal research.” There might be a half dozen points; there might be a dozen. But the key is to record immediately the fleeting ideas that you had while your brain was most in gear.

During the deposition, you’re as attentive as you’ll ever be. Don’t lose the moment; capture it.

What do you use those notes for?

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Can't we all just get along?

As everyone knows, IT professionals and lawyers often want to stab each other’s faces with butter knives have a little trouble seeing eye-to-eye. Practitioners of both the law and computer sorcery tend to be headstrong and preternaturally assured that they are correct 100 percent of the time.

It only makes sense then, that several of Wednesday’s panels at the Legal Technology Leadership Summit dealt with the crucial and interdependent relationship between law dogs and mysterious IT folks. Throughout the day, discussion leaders from both sides of the aisle discussed ways to avoid (or at least mitigate) data breaches and to use technological tools to ease billing nightmares. One session was dedicated to lamenting the top ways IT staff and attorneys drive each other nuts.

For reasons why your boss isn’t thrilled about your sweet new 128 gigabyte flash drive and some classic ha-ha-lawyers-don’t-understand-technology anecdotes, keep on reading….

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We are just finishing up our first day at the Legal Technology Leadership Summit, our tech conference aimed at in-house counsel. So far it has been a great success. We’ve had no earthquakes or hurricanes — just a passing swarm of lovebugs (seriously), which are now lying dead on my balcony.

This morning, we kicked off with a keynote session from Alan Lange and Tom Dawson, the authors of Kings of Tort (affiliate link), a chronicle of one of the legal profession’s more infamous criminals. It’s actually not that specific to technology, although it does relate to the world of in-house counsel.

Keep reading for an inside look at the politically connected Southern gentleman who transformed from David to Goliath, conspired to bribe a judge, and made many an in-house lawyer’s life miserable…

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I am not a mentor!

Never have been. Never will be. Don’t care to be.

I’m a lawyer. I’m a co-worker. In some cases, I may be a friend. But I’m not a mentor; I have no time for that crap.

When I was clerking (for the Honorable Dorothy W. Nelson of the United States Court of Appeals for the Ninth Circuit), my judge was (and remains) a delight. She was a warm, engaging person who treated everyone as an equal. She was living proof that you don’t have to give up on human kindness just because you’ve become powerful. She taught, by example, many lessons about work-life balance and the meaning of humanity.

But a mentor? They hadn’t invented the word “mentor” (at least with its current connotation) back in 1983. I don’t think Judge Nelson gave the idea a moment’s thought….

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Sri Srinivasan

* “Ten Worst Things for a Law Prof To Put on a CV.” [The Faculty Lounge]

* Think of this as another warning against taking sexually explicit photos of yourself. Or buying suspiciously cheap used computers. [Not-So Private Parts / Forbes]

* Musical Chairs: Sri Srinivasan, chair of the appellate and Supreme Court practice at O’Melveny & Myers, is leaving OMM to serve as principal deputy to Solicitor General Donald Verrilli. [Main Justice]

* Hey Warren Buffett: if you really feel that you are taxed too little, feel free to write a big check to the United States Government. [Huffington Post]

* Lawyer turned CEO Andy Lansing is looking for a few nice men (and women). [New York Times]

Woof woof!

* Stop me if you’ve heard this one before. A dog walks into a bar…. [Volokh Conspiracy]

* IMF employees give Dominique Strauss-Kahn a warm welcome. [Dealbreaker]

* What is up with Georgia judges? Another one bites the dust: Judge Douglas Pullen leaves the bench, terminating an investigation by the Judicial Qualifications Commission. [Atlanta Journal-Constitution]

* More bad news for the much-sued Dov Charney. [Fashionista]

* Congratulations to the recipients of the First Chair Awards for in-house counsel! The awards will be presented tomorrow night. [First Chair Awards]

360-degree reviews: We solicit anonymous input from your boss, your peers, and your subordinates. A reviewer goes through all of that information, discusses it with you, and, perhaps, shares with you documents containing parts or all of the anonymous responses.

These are remarkably helpful tools. They’re helpful, first, because you know that they’re coming. If you’re going to be evaluated by everyone in the neighborhood, then you’re more likely to be civilized and fair to everyone in the neighborhood. (“Civilized and fair” doesn’t mean “easy” or “letting others break the rules.” It means “civilized and fair.” If someone’s performance needs improving, you talk reasonably with that person about his or her weaknesses and how to improve. You don’t belittle people or scream at them, because incivility will surely come back to haunt you at 360-degree review time, and you know that 360-degree review time is lurking in your future.)

360-degree reviews are helpful because you critique others. It’s relatively easy — or, at least, routine — to be asked to critique folks situated beneath you in a hierarchy. But it’s a little different to be asked to critique folks who are situated horizontally or above you. When you’re asked to critique those people formally, it makes you think a little harder: What are those people doing right? What are they doing wrong? What information should they hear about their performance?

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When you’re in private practice, people ask you tough questions. “During the proxy fight, a trial court held that our proxy statement was false and misleading. We settled that case, so that judgment is final. We’ve now been hit with a 10b-5 shareholder suit, and the plaintiffs have filed a motion saying that the earlier proxy decision is binding on the question whether our statements were false and misleading. How do we defeat that motion?”

Then you move in-house, and the question changes: “How can we reduce the cost of electronic discovery and document review?”

Oh, how the mighty have fallen.

But, when you’re forced to think for a minute about electronic discovery and document review, you realize that the battle previously waged between law firms and third-party vendors to capture this work is now largely over: Document review, which was historically an important profit center for large law firms, has moved permanently into the hands of third-party vendors. That sea change was not prompted by the recession, and things are not going to return to the old “normal” after the economy recovers. Companies that continue to rely on law firms, rather than third-party vendors, to do large document reviews are probably making a mistake, and law firms that are counting on document review projects to resuscitate their profitability are betting on the wrong horse.

Why?

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Albert Haynesworth III

Albert Haynesworth III

* Does your fledgling company need a full-time general counsel? Lance Levy lays out some considerations. [In-House Blog]

* Why is Marc Randazza “the most inappropriate man in the world”? Well, how many briefs have you filed with phallus-filled footnotes? (Say that last part ten times fast.) [Popehat]

* New England Patriots defensive tackle Albert Haynesworth pleads no contest to simple assault, averting a trial for misdemeanor sexual abuse. [ESPN]

* Looking for a job in legal academia? Get to know the members of the hiring committee! [PrawfsBlawg]

* “Federal Filing of the Day: Nebraska Man Says He Left Baylor With GPS Sewn in Armpit.” [Unfair Park / Dallas Observer]

Ashley Alexandra Dupré, Eliot Spitzer's former paramour.

* Eliot Spitzer gets hit with a libel lawsuit seeking $60 million. That’s worth how many hours of Ashley Alexandra Dupré? [New York Observer]

* Congratulations to Ted Frank and his colleagues at the Center for Class Action Fairness on their latest victory — which appears to represent “the first time the Ninth Circuit has vacated approval of a class action settlement since 2003.” [Center for Class Action Fairness]

* Elsewhere in the Ninth Circuit, justice delayed turns out to be justice denied for a prisoner who died while waiting over five years for a federal district judge to rule on his habeas petition. (The magistrate judge had already recommended granting relief.) [Los Angeles Times]

How much do other people have to know?

This question comes up in many different contexts, and answering it always requires a little judgment.

At law firms, the questions often involve what the partner or the client needs to know. These people are supposed to be kept in the loop, but that task may be trickier than it seems. You want people to be fully informed, but you don’t want to become a pest, constantly alerting people to irrelevant trifles. What’s a person to do?

The answer varies by many things, including the nature of the matter you’re working on, the compulsiveness of the person you’re working with, the degree of trust established between you and the person you’re working with, time pressure, and the like. To the extent it’s possible, though, let’s establish some general rules….

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