Law Tech: JD Supra

The JD Supra website is a good place to find articles about specific legal topics, legal briefing and pleadings, and case law, as well as to learn a bit more about a lawyer's practice. A registered user of the site can upload documents by category or type and posted documents are searchable and can be found on the Web; creating a repository of legal documents with an internet cast. According to the website owners:

JD Supra lets you create an impressive online portfolio of your articles, newsletters, alerts, court filings, and presentations in minutes. Then, we help you get noticed (by prospective clients, colleagues and the media), so you can concentrate on doing what you do best – great work!

A single user or firm can post documents and create a profile for free but they can also pay a registration fee to be able to post contact information and to employ the site for more powerful marketing purposes. A "widget" for JD Supra can be found on the lower sidebar of this site.

Law Tech: More Reports About How Technology Will Change The Practice of Law.

The news from recent legal conference(s) focusing upon new technology and featuring authors/speakers such as Richard Susskind is that technology will fundamentally change legal practice and the ways legal services are provided in the future. However, this information, including Mr. Susskind's message, somehow doesn't seem that new, but rather, for the most part, recycled. Yes, we have new forms of and uses for communication technology, but will these technologies necessarily ease conflict, promote economy (e.g., enable us to focus upon preventative law) or result in a lower profile for law as some are saying? Mr. Susskind is also unclear about precisely what legal services he is talking about. The widespread use of new technologies in response to changing social times will no doubt create some change in all areas of social and business life. But, in the process, a host of new issues and accompanying laws will be created that will require resolution by more old-fashioned means, such as litigation in our newly wired courts. I am reminded of Jeremy Rifkin's writings on social entropy and conclude this post with some quotes from his 1980 book Entropy, A New World View as food for thought:

"...every technology ever conceived by the genius of humankind is nothing more than a transformer of energy from nature's storehouse. In the process of that transformation, the energy flows through the human system where it is used for a fleeting moment to sustain life (and the artifacts of life) in a no equilibrium state. At the other end of the flow, the energy eventually ends up as dissipated waste, unavailable for future use.''

Rifkin continues: "The next time a technician, politician, or businessman tells you he or she can eliminate the secondary problems associated with a particular program, product, or process with better planning or better leadership or better design, think about the second law. It is true that the secondary disorders caused by a particular technology can be temporarily solved by the application of new technology. But the solution will inevitably result in even greater disorders.''

We need new technology to streamline and ease communication and the sharing of an increasing amount of information, as well as to allow existing institutions to accommodate more work. However, a view that the increased use of new technology will somehow reduce or materially alter the role of law or legal practice seems counterintuitive. It may well be that just the opposite occurs: that rapid adoption of technology in society and law practice will force everyone including practitioners of the law to step back, slow change, and return to or strive harder to maintain the tried, the more predictably stable and sustainable means and methods of maintaining order and resolving disputes in our world.

Law Tech: Ideas to Insure Innovation?

The article "50 Ways to Foster a Sustainable Culture of Innovation" by Mitch Ditkoff contains some ideas for building environments helpful to innovation. It seems like people in all sectors of our society are encouraging creativity as the economy struggles even if their not sure what form(s) it should take. A speech delivered by new U.S. Treasury Secretary Timothy Geithner today emphasized that economic strength is derived from 'the doers, the makers of things' and 'the innovators who create and expand enterprises.' The popularity (or necessity) of the concepts of change and innovation has also hit the law and the legal profession. I notice that large firms especially are touting new departments and expertise in all things 'green'. The same firms are mostly downsizing while trying to figure out how to best serve and attract new business.

Another thing I find interesting is the number of technology and legal theorists predicting profound changes in how legal services will be provided in the near future because of, in large part, new technologies. I'm wondering whether these voices might be sourced in personal disenfranchisement from conventional systems or by a desire to market the technology. In general, however, I am somewhat skeptical about 'timing' as, among other things, I have been listening to debates about the use of cameras in the courtroom for over two decades now. Recently, however, federal judges have allowed journalists to cover court proceedings using Twitter, so, maybe new technology is gaining ground faster.

Nonetheless, there are some antithetical differences (purposes and goals) between the law and engineering/technology that often mar attempts to join them in theory or practice. It seems that law is designed in many respects to slow innovation in order that society can organize and stabilize itself in the midst of change. Also, as society becomes more complex (more information and more technology) more law inevitably follows. Finally, law practice is fundamentally a 'people' profession that often depends upon direct, face-to-face human interaction that communication technologies cannot replace. In any event, I think that Mr. Ditkoff's "50 Ways" article contains some good ideas for lawyers and anyone dealing with the legal profession in times of change and innovation (slow or fast, real or just theoretical).

Law Tech: Following California Legislation.

If you would like to follow proposed new legislation in California including proposed amendments to existing statutory law try the state's website which allows users to track the progress of new legislation by searching with key words, names and/or numbers of bills.

Contract Law: Statutes That Make Contractual Relief Reciprocal.

Prior posts have covered exceptions to the American Rule, the generality that parties pay their own attorney fees in litigation. An additional point concerns a nexus which can exist between contractual and statutory exceptions to the Rule. In California, when a contract contains a clause providing that only one party may recover attorney fees in the resolution of a dispute, such a remedy (no matter how one-sided it is written) can be made reciprocal or mutual by statute.

Civil Code 1717 provides in pertinent part that: "In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs." CC 1717.

In Washington, the law is similar. Revised Code of Washington 4.84.330 provides in pertinent part that: "In any action on a contract or lease entered into after September 21, 1977, where such contract or lease specifically provides that attorney's fees and costs, which are incurred to enforce the provisions of such contract or lease, shall be awarded to one of the parties, the prevailing party, whether he is the party specified in the contract or lease or not, shall be entitled to reasonable attorney's fees in addition to costs and necessary disbursements. *** As used in this section "prevailing party" means the party in whose favor final judgment is rendered." RCW 4.84.330. The relief afforded by the statute cannot be waived. Id.

It should be noted, however, that in both jurisdictions any clause awarding attorney fees and costs may by its terms pertain to only certain aspects of a given contract and hence the clause may not be applied at all depending on the nature of the parties' dispute. See e.g. Dragt v. Dragt/DeTray, LLC, 139 Wn.App. 560 (2007); Paul v. Schoellkopf, 128 Cal.App. 4th 147 (2005); ABF Capital Corp. v. GMC Properties, Co., 126 Cal.App.4th 204 (2005).

The enforcement of equity and the promotion of access to the courts are the primary reasons given for the statutory conversion of a non-reciprocal provision for attorney fees to a remedy that is mutual or in favor of all parties to a given contract.

Attorney's Fees: Is the Billable Hour Fatally Flawed?

I have worked with the billable hour compensation system in litigation for many years. The method has some flaws, one of which is the difficulty of the client (as well as the lawyer) to discern or appreciate value especially when the cost(s) of seemingly similar cases are compared. In the last few years there has been a lot of discussion about moving away from the billable hour altogether in favor of a flat, fixed or value billing methodology. These methods have been used more frequently in recent years but not typically in any uniform fashion. The notion is that the attorney and client would also communicate at various stages of the litigation to make compensation adjustments based upon the unique aspects and/or outcome(s) of a case. In the meantime, the billable hour remains dominant at least on the defense side, largely I think because alternative methods are not clearly articulated, massaged or even tried. Few wish to take the time or risk experimentation. The billable hour persists by momentum and clarity despite opinions of dissatisfaction which have echoed now for decades.

This month, lawyer Evan Chesler, the presiding partner of Cravath, Swaine & Moore, again questions whether the billable hour makes any sense at all in an interview in Forbes magazine. The opinions expressed by Mr. Chesler are not new but the sheer volume of response to the piece may signal that the time has arrived for some real change to occur. On the other hand, some saw Mr. Chesler's comments as a mere lure to clients in a weakened economy. At a minimum, however, it is important that everyone acknowledge compensation issues, the faults of the billable hour system and that we make a concerted effort to communicate about how compensation can be calculated during the life of a litigated case. In this manner, over time, some clearly defined and very workable alternative(s) to the billable hour system should rise to the top and receive widespread acknowledgment and use in litigation.

Law Tech: Another Opinion Concerning the Use of Social Media.

Despite the tenor of my last post, I don't believe that everyone is enthusiatic about Web 2.0 for business. There is the fear that the use of electronic social media (including e-mail) within a business environment can defeat mechanisms designed to protect confidentiality and business secrets, as well hurt productivity. These issues have been highlighted in e-discovery disputes and related litigation. However, the growth of different forms of electronic and social media including the increasing use of them by company employees has also compelled the conclusion by many that businesses (including those which provide legal services) must embrace social media (and incorporate them into business planning and operations) or they may simply be left behind. Mark Henshaw, a "global manager for information security strategy and planning at General Motors" addresses some of these issues in an article passed to me via a Twitter post from Kysen PR, the London based "...business development & marketing consultancy dedicated to professional services firms." There is obviously a tension building on several fronts between business interests that require secrecy/confidentiality and those that may depend upon new forms of social media optimized by open and quick means of communication. How these seemingly competing values are handled (if possible) by a given business including law firms and how they 'fall out' are obviously topics for further discussion.