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buy tinidazole in singapore; Issue 4.9
E-Commerce and the Practice of Law

Judge Arthur M. Monty Ahalt ( Ret.)

This Article was first published in the Prince George’s County, Maryland Journal/Newsletter

 

“When you come to a fork in the road, take it.” Yogi Berra

Lawyers are finally grasping the information age through the medium of e-mail. They are finding the speed, efficiency and productivity of communication in the electronic world. The other day I completed a non-binding arbitration at 3:00 p.m. The parties wanted a written decision. They had one in their e-mail inbox at 5:00 p.m. No mail delay. No paper jams. Just Friday of last week I rescheduled a mediation involving three parties with one phone call and two e-mails (a process that used to take two days with telephone tag).

When you think about e-commerce you probably think first about selling things online. The first example you would come up with, if asked, would be LL Bean or Amazon.com. While e-commerce is certainly all about selling on the Internet it is much more. E-commerce is about redefining the nature of relationships in the commercial world. The commercial world includes the legal profession. After all, lawyers sell legal services to clients who purchase legal services. So e-commerce for the legal profession is about redefining the relationship between lawyer and client.

Before we examine how that relationship will be changed by e-commerce, let’s take a look at some of the numbers in the e-commerce world. The Internet had 56.2 million host computers as of June 1999. That is a 69 percent increase over the 36.7 million computers in 1998. In 1993, 90,000 Americans had access to the Internet. In 1999 there were 92 million users. The number of households online has grown from 5.8 million in 1994 to the present 39 million. Some experts say that there will be 60 million households by 2003.It took 38 years for the telephone to penetrate 30 percent of U.S households, 17 years for television and 13 years for personal computers. The Internet has accomplished in five years what it took the telephone 70 years, the radio 40 years and television 15 years to achieve: connecting more than 50 million people.

E-commerce is penetrating the legal profession through e-mail. Every day another lawyer starts using e-mail either because a client requires it or a colleague starts demonstrating its productivity. Bottom line: e-mail is a very cost effective and reliable way to communicate in written form. E-mail is beginning to redefine the relationship between lawyer and client.

The numbers are exploding. In 1998 there were 263 million e-mail boxes in the world. They produced 618 billion messages. In the same year the U.S. Postal Service delivered 101 billion pieces of mail. Some surveys estimate that those Internet users send and receive more than 20 messages a day. That totals 2.1 billion messages a day for all users.

This phenomenal growth is causing many firms to grapple with the critical questions. How can we compete in such a market? How can we be successful? The answer to the questions is certainly not by maintaining the status quo. Firms that take that approach will be run over by others who understand the new environment and take advantage of all that it has to offer. Sam Guiberson, a “prime time” trial lawyer from Houston, Texas, puts it this way: “If you haven’t learned to speak the language of technology in the 20th century, you will have no voice in the 21st.” Sam says that lawyering will become more about relationships, the more it involves technology.

Most of the press of recent has been going to the glitzy web sites and the fancy portals, which pretend to be one-stop shopping. But rendering a professional service such as legal advice has a personal confidential element, which is interfered with by the openness of web sites. On the other hand e-mail, even though Internet based, allows for the development of a relationship. Many think of e-mail as the ability to have continuous on-line contact. E-mail is the glue, which is holding e-commerce together. It has the promise of being the beginning-to-end solution for electronic commerce.

Let’s take a look at what e-mail promises. Of course e-mail’s main attribute is the delivery of a text message. E-mail containing text only, however, is disappearing fast. First, e-mail attachment of Word or WordPerfect files started to appear. Now even elementary systems deliver multimedia content to homes and offices. HTML – formatted news in an e-mail – is becoming common. E-mail products are being produced to carry photos and sound. The refrain “you’ve got mail” has turned to “you’ve got pictures.”

Not just one format exists for e-mail attachments. There is not just one attachment for sound, but dozens. There is not just one format for images, but also several choices for black and white faxes alone.

Yet e-mail is more that just a delivery vehicle which competes with the United States Postal Service, UPS or Federal Express. It has the promise of being the beginning-to-end electronic solution. It will be used to advertise goods and services, buy them, ship them and pay for them. E-mail will be a series of digital transactions between lawyer and client and lawyer and the court, which will speed up the delivery of legal services with great time saving efficiencies. New technologies will enable the good persuader to become a super persuader. E-mail promises not just to replace the postman, or special delivery truck, but it will replace telephone calls, cashiers and even checks.

E-commerce makes location insignificant. So if a law firm in Hawaii can do a better, cheaper job then they will compete for business in Maryland. E-commerce also changes distribution channels and creates new distribution channels. Peter Drucker, the management expert for the information age, points out, “New distribution channels change who customers are. They change not only how customers buy but also what they buy. They change consumer behavior, savings, patterns, industry structure – in short, the entire economy.”

by Judge Arthur M. Monty Ahalt ( Ret.) – December 1999

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VirtualCourthouse; Issue 4.8
E-Commerce – Courts and Lawyers

Judge Arthur M. Monty Ahalt

This Article was first published in the Prince George’s County, Maryland Journal/Newsletter



Hardly a moment goes by that we are not reminded of the information age. Pick up any daily newspaper, weekly magazine and you are confronted with advertisements calling you into the electronic world. It seems almost a daily happening for some industrial age service or product to be offered on the Internet with the familiar “www ” Is this phenomenon here to stay or will it merely be another bursting bubble? Will we one day soon have e-law firms and e-courts?

One telling sign is found by following the money. In August, a slow IPO month, there were twenty-five Internet-related IPOs which opened as of September 10, 1999 – 182% higher. That’s almost one new public Internet company a day. In September, the numbers will more than double to 58 new public Internet companies. New Internet stock indexes track this investment dynamic. USA Today’s Internet 100 Index reports on nine separate Internet stock categories:

E-Business

E-Infrastructure

E-Solutions

E-Advertising

E-Commerce

E-Retail

E-Financial

E-News Media

E-Service Providers

The financial markets are continuing the reality of e-commerce with an exclamation point.

So how do the courts and law firms fit into this electronic commerce picture? According to MIT e-commerce professors Westland and Clark in their textbook Global Electronic Commerce, there are three major types of electronic commerce:

Business to Consumer

Business to Business

Closed Group Networks

Industrial age goods and services are made available to the consumer through marketing channels. The information age has taken these channels out of the paper world into the electronic world. For the most part, courts and law firms fit the model of business to business (B2B) electronic commerce. The fit is not 100 percent because there are definite elements of business to customer involved in the businesses of both courts and lawyers. But, to the extent that courts and lawyers transact the business of dispute resolution, a clear case can be made for the B2B e-commerce model.

What is the dispute resolution channel of commerce? The channel begins with the facts of the dispute. That may be a simple automobile accident or a broken promise. Those underlying facts become the basis of a claim. Usually the claim takes a written form such as a letter, but many times the claim is made orally by an individual to an organization. If the claim is not finally resolved then usually a lawyer is consulted. The lawyer then makes contact with the individual or organization and attempts to resolve the dispute. If the dispute is not resolved at this point then the lawyer typically will file a lawsuit in a court. Ultimately the court renders a judgment and the suit is finally resolved.

How does e-commerce and the information age affect this channel of commerce? Generally speaking e-commerce changes a service-related channel of commerce to a transactional-related channel. In the transactional world, time space and location become less significant. A channel’s hierarchy is reduced and sometime flattened as many steps in a process are reduced to fewer steps. The result is that firms can concentrate on their core competencies becoming less distracted by matters outside of their competencies. Thus the availability of networked information and high-speed computers allows for smaller, more nimble competitors to operate more profitably by focusing on their core competencies. In the industrial age, location was a driving consideration. You know the three rules of the value or real property – Location, Location and Location. In the information age location is becoming insignificant as networked individuals and organizations compete from any place in the world.

If we apply what is happening in other industries to lawyers and the courts in the dispute resolution channel of commerce, we can expect the following changes to occur.

1. Time delays are reduced. Post office delays are eliminated.

2. Time uncertainty is reduced in financial transactions as a migration to electronic billing and purchasing occurs.

3. Immediate acknowledgment of receipt of information allows for a better and more trusting relationship between lawyer and client and lawyer and Judge.

4. Communication of service completion to clients allows clients to plan other business transactions more timely.

5. One time keying of information allows for greater efficiencies, reduced costs and increased profits.

6. Paper and mail costs are reduced or eliminated.

7. Financial transactions can be automatically placed into proper accounting categories.

8. The danger of lost or destroyed paper is eliminated.

Recently I attended the CTC6 court technology conference in Los Angles. One Judge posed the following question to the audience. If a taco can be prepared, served and paid for by a high school graduate with the only paper being the taco wrapper, what are the public’s expectations of lawyers and the courts?

by Judge Arthur M. Monty Ahalt – September 1999

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VirtualCourthouse; Issue 4.7
Remaking the Courts of America

Judge Arthur M. Monty Ahalt

This Article was first published in the Prince George’s County, Maryland Journal/Newsletter



We find ourselves confronted with the information age. Change is being thrust onto almost every facet of life. It is like a whirlwind, which will not let up and move on. Simultaneously, judicial and bar leaders are coming to grips with the genuine and real perception that citizens do not have trust in nor confidence in courts or the legal profession. These two dynamics — the information age and public trust and confidence — will compel the reshaping and indeed the remaking of the courts of America.

As dusk settles on the Twentieth Century, the judicial system gropes to embrace the information age. As the sunset turns to the dawn of the Twenty-First Century, judges, lawyers and administrators struggle to cope with the many changes forced on a system rooted in tradition and principles that change not. You see, the law’s supreme foundation is stability and certainty. Change thrusts itself from all directions the far left the far right and the muddled middle. Not only are there changes brought on by legislators, governors and presidents but the very fabric of our communities is being challenged by the lightening speed of change occasioned by new and evolving information technology.

Critics say that the system of resolving disputes is too slow, too cumbersome, too expensive and too mysterious. It is as if the line of people waiting to have their disputes resolved has not changed from the days of Moses almost 5,000 years ago. In that day, as it is recorded in the book of Exodus, Moses’ father-in-law, Jethro, came to visit him. After observing Moses for several days, Jethro told Moses ” what you are doing is not good. You and these people who come to you (with their disputes) will only wear yourselves out. The work is heavy for you; you cannot handle it alone. (Exodus 18:17, 18). Indeed, recently Representative J. C. Watts pointed out during the impeachment debate “[T]here is no joy sometimes in upholding the law. It is so unpleasant sometimes that we hire other people to do it for us. Ask the police or judges it is tiring and thankless, but we know it must be done.”

The dynamics of the information age and public trust and confidence are not just focusing on courts and the legal profession. Rather they are the same twins who are focusing on the business community and government. In the March edition of The Futurist Magazine, Bennett Davis identified the Five Forces Redefining Business, Profits from Principles. “These five forces are converging to share business’ new social imperative: consumer conscience, socially- conscious investing, the global media, special-interest activism and expectations of corporate leadership.

First, today’s consumers have learned by experience that societies and economics like nature are closed systems.

Consumers’ new conscience have complemented and cultivated the second factor the rise of socially conscious investing.

Those potential problems are exacerbated by the third factor: a competitive, unsparing and technologically-endowed media especially television that makes once abstract concepts like global warming or sweatshop labor personal to consumers.

Fourth, zealous special-interest groups have become deft at using the media to link corporate practices with social and environmental problems and solutions.

Fifth, the public is transferring its expectations of leadership in solving social problems from government to business.”

The similarities in the issues confronting business and the Courts are remarkable. Then we add to this mix the concept of e-commerce and the disturbing winds of change become more daunting and challenging.

What is e-commerce? How will it impact dispute resolution and the business of dispute resolution?

According to MIT professors Chris Westland and Ted Clark, “Electronic commerce or e-commerce is the automation of commercial transactions using computer and communication technologies.” Global Electronic Commerce, Westland & Clark, 1999 http://143.89.56.92 .

E-commerce is in essence the computerization of markets whereby buyers and sellers are matched, a price determined and payment and delivery arranged.

E-commerce is providing increasing opportunities because: (i) technology is user friendly; (ii) networks exist in stable forms; and (iii) business is reorganizing and re-engineering production and managerial processes.

What are the implications of the dynamics of e-commerce on the dispute resolution process? On the courts? The implications will manifest themselves on the substance of litigation and the process of litigation. The substance of litigation is the subject matter of the dispute. The process of litigation is the manner and method of filing a lawsuit and pursuing a claim in court. Over the next several months, we will examine e-commerce and its impact in greater depth.

Over the past several years we have witnessed an unrelenting marching evolution from purchasing EDI to ATM dispensed cash, to pay at the pump ATM gasoline stations, to point of sale cash register computers, to internet renewal of drivers’ licenses to the purchase of books on the internet. Simultaneously, the realization is setting in that the world is becoming borderless in the sense that time and space are no longer significant barriers to a business transaction.

NEW BEGINNINGS

As you may know, this will be the last column penned by Judge Ahalt. Beginning in October, the column will be penned by Retired Judge Ahalt. After considerable prayer, thought and counsel, I have determined not to seek another term as an Associate Judge of the Circuit Court for Prince George’s County. I will retire September 17, 1999. On September 20, 1999, I will begin a new career as Chief Industry Advisor for JusticeLink. This position will occupy about 80 percent of my time. The balance will be devoted to arbitration, consulting, speaking and development of the Virtualcourthouse.com web site.

by Judge Arthur M. Monty Ahalt – August 1999

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VirtualCourthouse; Issue 4.6
Be a Persuader Not a Presenter

Judge Arthur M. Monty Ahalt

This Article was first published in the Prince George’s County, Maryland Journal/Newsletter


________________________________________
Be a Persuader Not a Presenter
Technology will help you to be a persuader ¬ not a presenter. One of the chief failings of today’s trial bar is the lack of the skill to persuade. Less than 20 percent of the trial attorneys are really skilled persuaders. That means that 80 percent of trial attorneys are presenters and not persuaders. Persuasion is the key element to winning a lawsuit. Persuasion is essential not just on the facts but also on the law. Nationally, the trial bar is coming to realize that technology is a powerful tool in achieving victory in the courtroom.
Technology programs are beginning to appear on every bar association program. The message is becoming crystal clear. Technology is an essential tool to winning in the courtroom. Technology is being used not just for the megatrial as it was two or three years ago. Technology is being used in the every day garden-variety cases that appear by the thousands each day in the courts of this nation.
Technology, however, will not help the presenter win in the courtroom. However, technology will have an enormous empowering impact on the persuader.
So how is it that a lawyer becomes a persuader and not just a presenter. How does a lawyer move from the bottom 80 percent of the class to the top 20 percent of the class.
Lawyers regularly come back to chambers after a trial and want to know how they did in their performance. Whether they have won or lost they want their performance critiqued. First, I point out that winning and losing a lawsuit is not a measure of professional skill. Good persuaders cannot overcome bad facts and law. Nor can poor persuaders destroy good facts and law. Moreover, the dynamics of a jury trial often allow a jury to overcompensate for poor lawyering. What trial judge has not been told by a jury ¬ “boy that lawyer was just horrible but we could not hold it against the client.” Often they even add “can we make sure the lawyer doesn’t get paid.”
Second, I tell the inquiring lawyer that to become a top-notch trial lawyer, you have to make it your professional zeal to study the art of persuasion. You need to make it the object of your attention every waking hour of the day. That means you have to read about the art, observe the practice of the art, study the art and practice the art. If you haven’t been to a trial practice week-long course, you need to put it at the top of your priority list. If your employer will not pay for it, you need to save the money and take a week’s annual leave. If it is essential, a true professional will make it their personal professional priority.
Third, you have to understand the elements of persuasion.
The elements of persuasion were first established 2000 years ago by Aristotle, the father of persuasion. Those elements are: (1) believability; (2) sympathy; and (3) logic. These three elements are controlled by the rule of first impressions. The judge’s and jury’s first impression of your case begins when your case first starts. Care must be taken to avoid poor first impressions. Impressions are primarily learned through sight and hearing, although at times the senses of feel and taste will come into play. Constant care must be taken to avoid words and actions which will create negative impressions. Considerable thought and effort must also be given to methods which will create positive impressions. The five primary rules of persuasion can therefore be state as: (i) first impressions; (ii) first impressions; (iii) first impressions; (iv) first impressions; and (v) first impressions.
Now with the rule of first impressions firmly in mind, let us examine with specifics how to apply Aristotle’s time proven three rules of persuasion.
Believability (ethos). The first task in presenting your case is to cause the judge or jury to believe that you are a credible person; a believable individual as opposed to one who exaggerates, overstates and uses half truths. A believable person is credible, trustworthy, plausible, authentic and dependable. A believable person is also fair. Fairness is demonstrated by treating your adversary’s case as important. What are the actions and words of a believable person?
Actions: (i) Dresses as if the event is the most important in life; (ii) stands when speaking; (iii) faces the person to whom speaking; (iv) engages judge’s or jury’s attention/eye contact.
Words: (i) Polite, respectful; (ii) truthful; (iii) direct and to the point; (iv) organized; (v) chronological; (vi) permissively repetitive.
Most of the Bar appears to be oblivious to the fact that their believability in their next case is established by their performance in their present case. If you misquote a case today, why would a judge believe you tomorrow. If you fail to tell a judge about an important case contrary to your position today, why would the judge believe you tomorrow.
Sympathy (pathos). The second goal in presenting your case is to appeal to the emotions of the judge or jury. Effort needs to be directed to causing the judge or jury to be sympathetic to you and your case. Sensitivity is the watchword. You must understand who the judge is, what the judge wants, where the judge has been, where the judge is going. Much like a salesman who finds out about his customer before the sales pitch is made.
Logic (logos). What are the logical reasons the case should prevail? Your case must have logical reasons to prevail. Your argument should be built line upon line, principal upon principal. Webster defines logic as follows: The science that deals with the canons and criteria of validity in thought and demonstration; the science of the normative formal principles of reasoning. Traditionally, logic comprises: (i)) the “doctrine of terms,” the principles of definition, classification, and the correct use of terms; (ii) the “doctrine of the judgment,” or principles of correct predication; (iii) the “doctrine of inference,” covering reasoning or demonstration proper. Logicians are divided in their conception of the content and significance of logic. The main tendencies and bodies of doctrine are as follows: (i) traditional or Aristotelian logic; (ii) modern or Epistemological logic; (iii) pragmatic, instrumental or experimental logic; (iv) psychological logic or psychologism; and (v) symbolic or mathematical logic.
You need to become a student of logic so that you can craft your arguments be it on the law or facts to have reasoned authority.

by Judge Arthur M. Monty Ahalt – June 1999