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eDiscovery – Should I care ?

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eDiscovery – Should I care ?

eDiscovery – Should I Care?
By Judge Arthur M. Monty Ahalt (Ret.)* and Judge Steven I Platt (Ret.)*

INTRODUCTION
The Information Age has finally arrived with all of its magnificent efficiencies and productivity changing ways. People and businesses conduct many of their necessary activities with some interface with technology – probably more that you think. If a computer, be it laptop or desktop, is in the house or office many of the activities are in some way recorded on a hard drive. If the computer is connected to a network or the Internet things become more complicated. Like it or not the world we live in has changed. No longer are we a paper based society. All of our activities revolve around a computer and its hard drive.

But we still think and act in terms of our paper world. And our paper world is a replication of the physical world we see feel and touch hundreds of times a day. So we are accustomed to organizing our information by sight. We have books on book shelves, book shelves in libraries, documents in files, files in file cabinets and on and on. Yet inch by inch, almost imperceptibly, our physical world is being replaced by a digital world. Ask yourself what you are now doing on a computer that 10 years ago you did with paper?

THE BASICS

So when you think of a law suit you have to train yourself to think in terms of the computer not paper. This will require most of us to go back to school. Fortunately, the basics are not that complex. The forensics are very complex, but learning enough to know what the right questions to ask is not complex. It does however; require some effort and sufficient curiosity and motivation to learn about a subject you might have instinctively not cared about earlier in your career. You used to have to think like a detective in the paper world. Now you have to think like a detective in the digital world.The key is discovering what consists of electronic stored information or ESI.

DISPUTE RESOLUTION
The Dispute Resolution World, whose most visible and conspicuous inhabitants are lawyers, judges, and other neutrals, is not an exception to the general rule. All of us need to adapt. That means we need to explore the digital world to the extent necessary to operate efficiently, economically, and ethically in a world that is not completely familiar to us. There is no going back.
Lawyers representing clients including government agencies and contractors need to understand the professional and ethical obligations which not only they, but their clients, have to retain, maintain, disclose and produce when required, electronic information and documents. Furthermore, counsel needs to know that these obligations can arise even before litigation is formally filed. Counsel also have a continuing professional duty which can include monitoring their clients compliance with the standard for doing so. These standards are continually being developed by the courts through rules and by case law.
The federal and state judiciaries are addressing these issues both by promulgating Rules of Procedure and through both Appellate court and Trial Court opinions. The Trial Courts are coping and at times proactively engaging in preventative law measures by requiring early pre-trial case management conferences which specifically address e-discovery protocols and by the appointment of Special Masters when these problems are not prevented. It is important that counsel, the court and perhaps most importantly the Special Maters appointed by the Courts to wade through the complexities of the e-discovery processes, protocols and perhaps even some of the forensics actually know the latest rulings in the field of e-discovery, but also the everyday realities of the practice of law. That means they know for example that the law requires “reasonable efforts” not perfection and that some errors are almost inevitable due to the volume and complexity of the stored electronic information. The Special Master should also know that the increasing number of motions for sanctions are not all meritorious and that many of these filings needlessly drive up the cost and time of litigation. The Special Master should also recognize and be familiar with the term “Claw-back Agreement”, Privilege and other concepts spanning the modern practice of law in the digital world and era.

CONCLUSION

If you are a lawyer who represents clients in court you will be making a very big mistake if you do not read Craig Ball’s collection of articles setting forth the duties and obligations of counsel. Your professional life could depend on it. See www.craigball.com. Not only is Craig one of the foremost authorities on the subject of eDiscovery, he is a world class persuader who has the gift of being able to communicate highly technical material in a simple, plain yet persuasive way. We would compare him to the immortal Professor Irving Younger. Yet Craig is just a regular guy and good friend who loves lawyers, judges and his fellow man. The ABA maintains a list of EDD resources on the web at http://www.abanet.org/tech/ltrc/fyidocs/ediscovery.html

This article as well as other related articles can be found on
www.virtualcourthouse.info.

* Judge Ahalt is currently recalled as a Circuit Court Judge and serves private parties as a mediator and arbitrator in personal injury, commercial, real estate, construction and electronic deiscovery disputes. www.montyahalt.com

* Judge Platt is currently recalled as a Circuit Court Judge and serves private parties as a mediator and arbitrator in personal injury, commercial, real estate ,construction and electronic discovery disputes. http://theplattgroup.com/

 

Drafting an Arbitration Provision The VirtualCourthouse Way

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Drafting an Arbitration Provision

 The VirtualCourthouse Way

By Judge Arthur M. Monty Ahalt (ret.)

VirtualCourthouse provides a fresh new approach to arbitration.An approach which provides flexibility and cost savings not available through AAA, JAMs, National Arbitration Forum. Have you noticed that arbitration has become more time consuming and more expensive as each year passes. How has that happened when the whole notion ,50 years ago was, for Arbitration to reduce the cost and time of litigation? Well, one observation would lay the blame at the foot of trying to provide too many rules to cover to many possibilities. Take a look at any major ADR provider’s rules – in many cases they are more involved than a courts rules of procedure.

Here is how the unaware gets caught up in that dilemma. Client engages a lawyer to draft a contact. Lawyer suggests to client that it is best to insert a provision in the contract agreeing to arbitrate any dispute. Client is aware of all of the horror stories about the cost of litigation and says “ by all means keep me out of court “. Lawyer inserts a provision which says – “ Any dispute between the parties will be arbitrated in accordance with the rules of the American Arbitration Association.” Two years go by and the parties have a major disagreement. One party looks up the AAA rules and finds out that the AAA rules require the claim to be filed with AAA. The parties now have no choice about how much will be charged or who the arbitrator will be.AAA’s panel of neutrals are not competitively formed. AAA restricts the number of neutrals – never a good idea as that type of activity keeps prices high and many highly qualified neutrals off of AAA panels. They have agreed to a dispute resolution service that provides little flexibility – many would say more expensive than court.Many attorneys find the AAA administrative process to be cumbersome, unwieldy and time consuming.

What then is the best way to draft an arbitration provision in a contract ? The first order of business is to understand the legal territory. Generally speaking, arbitration agreements are enabled by Federal and State law -the Federal Arbitration Act or the Uniform Arbitration Act. Both Federal and State Acts provide similar provisions, although there are significant differences in some special areas. Both Acts are similar in that they provide for:

  • Enforcement of agreements to arbitrate;
  • The appointment of an arbitrator where the parties cannot agree;
  • The subpoena of witnesses;
  • The confirmation of awards by judgement in court.

When drafting an arbitration provision in a contract the important items to consider.

  • Administration Cost 
  • Identity of the neutral
    • Greatest number of qualified neutrals to select from 
    • Closed panels increase costs and are anti- competitive 
    • Allowing the parties the opportunity to agree on a neutral 
  • Neutral compensation 
  • Simplification of the rules without sacrificing important legal rights
  • Flexibility – Does an ADR provider have the ability to change ?
    • Reduce Costs 
    • Adopt new technology

The key issue here is to provide the maximum amount of flexibility so that a fair , fast and inexpensive conclusion can be reached. When the parties reserve the right or alternative to select the ADR solution provider until a dispute arises they build in cost flexibility. The alternative is to select and name an ADR solution provider that has the same flexibility built in. VirtualCourthouse provides that flexibility.

The VirtualCourthouse Rules are flexible yet binding –

1. The rules of arbitration or mediation are what the parties agree. The neutral will ask the parties if they have agreed upon rules. If the parties cannot agree on the rules or disagree on specific rules then the rules will be as the neutral determines appropriate for the parties.
2. Neutral Selection. The neutral (arbitrator, mediator) will be determined by the agreement of the parties. The parties by agreement may request VirtualCourthouse to designate a neutral. Before VirtualCourthouse designates a neutral VirtualCourthouse will consult with the parties. If the parties cannot agree then either party may petition a court of competent jurisdiction to appoint a neutral.


Provide your client with the best alternative chose a VirtualCourthouse contract provision now – click here for contract provisions.
Some folks will maintain that these provisions are not strong enough to make sure that they stay out of court. But, stay out of court at what price. If the parties or anyone wants to be truly adversarial than the matter ought to be in the court system.Arbitration at all costs is not very wise. It is very common these days for cases to start in court and end up in arbitration after discovery and court ordered mediation have taken place.The court system with its rules and procedures while allowing adversaries to be adversaries still is based on the underpinnings of sound fair minded judges.

December 2010 Power of Our Words

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Power of Our Words

Judge Arthur M. Monty Ahalt (Ret.)

History records the power of words in the affairs of mankind.Rudyard Kippling put it this way – “Words are, of course, the most powerful drug used by mankind.”

Kipling used this metaphor in a 1923 speech he made to the Royal College of Surgeons in London . He uses the comparison of words to drugs to describe the persuasive effect words can have on another person. As he says in the next sentence of the speech, “Not only do words infect, egotize, narcotize, and paralyze, but they enter into and colour the minutest cells of the brain. . . .” A vivid description of the ability of a person to use words to change and influence the way another person thinks and feels. Whether written or spoken, words have the power to change and transform the world around us.Words inspire emotions for good as well as bad – they inspire love and friendship or hate and anger.They evoke sympathy and compassion or judgement and rejection.Scripture records that God spoke the world into existence with words and that words have the power of life and death.

In the legal profession words are the tools of the trade – the secret to accomplishment of a client’s lawful objective. The transactional lawyer painfully chooses the words which “express the intent of the parties’ absent any ambiguity.
To the litigation lawyer words are the first vehicle of persuasion or as misused the delivery of destruction and misery. A really competent lawyer – what I call the winning lawyer – changes the choice of words in different arenas.

The wrong choice of words is the leading factor in an advocates failure to persuade.Remember now Aristotle’s Elements of Persuasion.
Logic
Emotion
Credible Believability

All three elements have to be accomplished largely through the use of words or pictures painted by words.Thus, in close case the lawyer who uses “verbal fisticuffs” LOSES THE EMOTION OF THE DECISION MAKER AND PERSONAL CREDIBILITY AND THEREFOR BECOMES UNWORTHY OF BELIEF. The confusing occasions of the mean spirited, sharp tongued lawyer winning the day are usually attributable to unbeatable facts and law. In other words no one – even the incompetent-could lose the case.

When the lawyer leaves the court room for the mediation room a major change in the choice of words is necessary for a successful end to a dispute. If a mediation lawyer walks into a mediation and in the opening statement starts to use sharp, mean spirited words it is almost impossible to rescue the mediation. On more than one occasion I have called a recess and asked to speak to each lawyer separately (without their clients) – usually picking the non-offending lawyer to go first. Privately, I can make sure that the lawyer knows the consequences of the chosen words and make some suggestions for a new choice of words. Suggestions like , “we could think about that”, “ I will consider that”, and “ that is an interesting point”.

Always Have a Plan

When choosing the words that will be used ask the question – what do I wish to accomplish by my words? Then choose the best words to accomplish that objective. Make sure you have a plan – then chose words to accomplish that plan. First write the words down then speak them then think about your choice again. When it comes to words always – Plan , Write, Speak and then Plan Again.

by – Judge Arthur M. Monty Ahalt ( Ret.)

Getting Ready for Trial

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Preparation for Trial:

Chapter 3

Secrets To Winning Your Case In Court

Assembling Your Case And Trial Material

“As a general rule the most successful man in life is the man who has the best information.”

— Benjamin Disraeli

“The person who goes farthest is generally the one who is willing to do and dare. The sure-thing boat never gets far from shore.”

— Dale Carnegie

“The man who removes a mountain begins by carrying away small stones.”

— Chinese Proverb

This chapter will equip you to:

  • Determine what you want the Court to do for you and how you want the Court to do it
  • Learn how to determine what’s important and what’s not and then gather the important information
  • Begin preparing your case in a step-by-step way following Court rules and procedures
  • Understand the basics of the Rules of Evidence

Introduction

As a litigant you will likely walk into court with a number of disadvantages, any one of which can seriously undermine your claim and wind up costing you time, money and hours of frustration. Self-represented litigants are rookies without the benefit of trial experience or a law school education. They don’t have colleagues in the field to consult with or the ready resources of law firms. Where paid-attorneys can bill fifty or sixty hours a week preparing their cases for trial, more often than not you have a full-time job to tend to and your dalliances in the law are likely to be, at best an after-hours pursuit.

Additionally, you have the added prejudices of nearly the entire professional legal community to wrestle with – everyone from filing clerks and court reporters all the way up to his honor the judge – all of whom have probably endured disorganized, unprofessional self-represented claimants many times in their careers. Is it any wonder that they’ve learned to groan and roll their eyes? No doubt about it. As a pro se litigant you are out there walking the point alone.

All of which makes your pre-trial preparation all the more important. With all these things stacked against you, preparing your case thoroughly in advance – working through the points of law, assembling your evidence and preparing your witnesses – is the single most important step you can take to nudge your case over the finish line. In fact, it is better not to go to court at all than to go with a case that is ill prepared. If you have any doubts that you will have either the time or skills to prepare you would be better served delaying the action or handing matters off to a qualified attorney.

What Do I Need To Know About Court

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Secrets to Winning Your Case in Court

Chapter 3

What To Expect In Court

“The court should be a place where anybody can come – whatever they have in their pocket – and be able to file a complaint in simple fashion and at least have somebody

give consideration to it and give them an opportunity to be heard.”

— Thomas T. Curtin, Judge, U.S. District Court

“It is not good to have zeal without knowledge, nor to be hasty and miss the way.”

— Proverbs, 19:2

This chapter will equip you to:

  • Understand the judicial branch of government
  • Learn what different legal terminology really means
  • Learn the proper way to proceed – there is an A to Z framework to follow

Introduction

This chapter is a quick flyover summary of the legal landscape and will acquaint you with our judicial system. Many of the elements touched on in this section will be revisited in subsequent chapters in more detail, while others are included to help give you a better hands-on grasp of the law and your place in it.

Types Of Law

There are four main elements that together comprise the rule of law and governance in our legal system: Constitutions, statutes, precedent or case law and rules or regulations. These elements are constantly evolving as the legislative, executive and judicial branches weigh in and add, change or take away the body of understanding that we know as the law. It is this change and mutual interdependence that constitutes the system of checks and balances the founding framers envisioned.

In the years following the end of the bloody American Revolution delegates from the 13 states assembled in Philadelphia to create a new framework of governing to keep the nascent union from sliding into rival factions and advance upon the hard won victories of the war. The Constitution of the United States, ratified in 1787, defined the structural components of our system of government and justice, assigning power to three separate but equal branches and establishing the limits of those powers. Coming from a tradition of tyranny, the founders sought to ensure that no one branch could ever concentrate such power that it could come to dominate the other branches. Instead, they established a dynamic tension that requires mutual dependence on the one hand, while permitting each branch certain oversight provisions affecting the other two…. more