So, the 2018 ILTA Conference opened today. ILTA calls itself the “premier peer networking organization, providing information to members to maximize the value of technology in support of the legal profession.” This year’s version sported record attendance and enthusiastic crowds even though just as last year, there was a leadership crisis on the eve of the conference–the CEO “resigned” just days before the start–and even though for some reason ILTA decided to crack down on press passes and some say selectively apply its media criteria. Continue Reading ILTA Keynote: That Will Never Happen. Until It Does

The other day I came across an article by one of my favorite writers, Lee Rosen. Lee was a successful lawyer who decided he didn’t want to spend his life sitting in an office in North Carolina but instead wanted to see the world AND practice law. How he did that, and the lessons it holds for all of us is for another day and time.

The essence of Lee’s recent article that caught my eye was his conclusion about the need to have a vision first and then act. Continue Reading About That Vision Thing


Standard innovation theory tells us that we move from an early adoption phase to mainstream very quickly. This is in part true because our  behaviors are influenced by our peers, how widespread we think the use of a particular product is and how well known the provider of the product is to us. This is particularly the case where the product saves time, is easy to use and produces a better result. And all this is especially true in the legal profession.

If true, then Thomson Reuters’ new Westlaw products announced today may be the event that takes AI and data analytics into the mainstream for the legal profession. Continue Reading Westlaw Edge: AI For Lawyers Goes Mainstream?

Litera Microsystems recently announced a new publication called The Changing Lawyer. So, yawn, what’s so new about that?

Turns out there is something new. Like most vendors, Litera Microsystems (which it insists it be referred to as instead of any shortened version of its name), one of the larger document management service and technology providers with a complete range of products in this space, already has a product blog devoted to providing standard information about the products and services it offers. Continue Reading The Changing Lawyer: Litera Microsystems to Offer Its Own Content

A long-time law practice mentor of mine used to say after spending the day with really smart people discussing big problems and solutions, that all that thinking gave him a headache. If that’s the case then Carl would have had colossal migraine if, like me, he participated in the Building a Better Lawyer” Design Thinking Workshop at Michigan State University College of Law yesterday. (Want to see more? See  #betterlawyer). Continue Reading LegalRnD’s Workshop on Building a Better Lawyer: Can Law Schools Lead Us Out of the Wilderness?

Every year I try to make it a point to attend the Consumer Electronics show in Law Vegas. This week-long show is a gadget lover’s dream. Thousands of exhibits, lots of demos, plenty of substantive sessions and keynotes by such people as Brian Krzanich, Intel CEO, (Ajit Pai was supposed to speak but for some strange reason, he bowed out after the net neutrality vote). I’m lucky enough to have a media pass, so I get lots of inside perks and access.

Knowing where consumer electronics is headed also tells us where businesses and maybe someday, the practice of law is headed

Why do I, a practicing lawyer, attend? First, I’m a tech enthusiast or, should I say, a gadget king. But more than that, I think knowing where consumer electronics is headed also tells us where businesses and maybe someday, the practice of law is headed as consumer electronics filter over into commercial use. And one of the things I have concluded this year after just a couple of days here is that where the practice of law and lawyers may be headed is a little scary. Continue Reading The End of Lawyers May Not Be What You Think

I recently almost didn’t attend a Conference in my hometown. I almost didn’t go because a) it was not necessarily in my field (lawyer) and b) it was in my hometown (no one is a prophet in their own land, right?). (The Conferance was actually put on by the Louisville Digital Association, a local organization that’s more or less about all things digital and the Conference was really more about digital marketing and media than anything else).

But I did go and something remarkable happened…I learned things. New things. And my head immediately started applying the things I was learning to my field. It was magical. Even one of the speakers who I introduced myself too afterwards said “I saw you sitting there. Your head was going a hundred miles an hour. What energy you brought!” Continue Reading Life Long Learning: Profess It. Live It

This blog is devoted to the tension created as traditional legal concepts are applied to new questions created by technolgy. AKA the problem of  trying to fit a square peg in a round hole, to use an old cliche.

I recently ran across an article by a friend of mine, John Amabile and his partners at Parker Poe, Michael Birns and Todd Sprinkle entitled “Textualism Is The Law of the Land in Georgia: What To Do About it?” Here is a link to the article which appeared on December 7, 2017 in jdsupra. The article poses this exact question within the confines of a series of decisions by the Georgia Supreme Court.

 

“textualism requires the court to apply the plain meaning of the statutory text at the time the statute was originally“

John and his team report that the Georgia Supreme Court has firmly embraced the concept of textualism and rightfully lament the deleterious impact the application of this concept could have on businesses.   Continue Reading Textualism: The Enemy of Innovation?

It’s been said that bad facts make bad law. If that’s true then those who defend class action data breach cases better buckle down for some stormy seas. The facts surrounding the new Equifax breach couldn’t get much worse.

Equifax knew of the breach months in advance of when it announced it. It failed to take even the most simple precautions to prevent it. One key employee’s user name was reportedly admin. His password: you guessed it, admin. And some are claiming the breach was caused by the failure to keep the Equifax software up to date.

And the information held by Equifax was substantial. Names, addresses, health info, credit info, social security info. The most sensitive and valuable stuff. Not to mention the size: 140 million records were stolen.

And the fact that chief officers sold substantial stock in the company right before the breach certainly doesn’t help. Oh and by the way, if you go to the Equifax to check on your personal situation, you will be directed to a page where you can buy protection from…wait for it… Equifax.

All conduct that has received publicity. All conduct which could and will raise the ire of a judge looking at the case and deciding whether to allow it to proceed against Equifax as a class action.

The big issues is damage. Or better put, the lack thereof. In most data breach cases, its hard to find the more concrete, real damages that most courts are used to seeing in other kinds of cases

By way of background, Courts have been struggling with how to deal with data breach cases. The big issues is damage. Or better put, the lack thereof. In most data breach cases, its hard to find the more concrete, real damages that most courts are used to seeing in other kinds of cases. This makes determining whether standing for constitutional purposes exists a harder question for Courts to deal with.

Ever since the Supreme Court decided Clapper if not before, standing could be satisfied by a showing of actual damages or the “imminent threat” of actual damage. It is one the latter point that the federal circuits have split—some are more liberal and some more conservative. What is an imminent threat of harm when electronic records are stolen but not immediately used for fraud? Do the electronic records themselves and the resulting loss of privacy have value apart from any real use of them?

The plaintiffs argument is that we must force companies to be responsible when they put private records at risk. That privacy is a fundamental right. That its worth something. And that the mere theft of records by the bad guys itself shows the imminent harm—you wouldn’t steal the car keys if you weren’t going to drive the car.

The defense says that data breaches are inevitable and really can’t be stopped. How can you hold a company accountable for something that can’t be prevented? And not all hacks result in financial fraud or real damage. Indeed, so far none of the stolen Equifax information has appeared on hacker forums which could suggest that the breach may not be financially motivated.

And as the data breaches mount, as I recently wrote, more and more Courts seem willing to side with those whose personal information has been purloined even if its not used. And certainly, the more heinous the conduct, the more likely Courts will allow actions to proceed: it just doesn’t seem fair or right that a case against an entities like Equifax should simply be dismissed and that they not be called on to account for their conduct.

the more heinous the conduct, the more likely Courts will allow actions to proceed: it just doesn’t seem fair or right that a case against an entities like Equifax should simply be dismissed and that they not be called on to account for their conduct.

So the pressure on the judiciary, even federal judges appoint for life, will be extraordinary. Can you imagine the news headlines if claims against Equifax are dismissed? The editorial comment? The backlash?

So for all these reasons, this is a situation where bad facts may result in a decision that wouldn’t otherwise be made. Once again, the judiciary will be called upon to make the square peg of technology and what it can do fit into the round hole of existing precedent, even though it doesn’t fit very well. And the solution is not obvious since unlike most disrupters, the bind of precedence it particularly tight on judges and lawyers, making a more creative resolution–perhaps one that stops short of full blown standing but recognizes the potential risk of harm– hard to implement.

Photo Attribution: GotCredit via Flickr.