TechnoLawyer

Originally published on April 27, 2009 in our free BigLaw newsletter.

In past columns, we've discussed weighty issues that arise in everyday practice, and the myriad factors that can contribute to narrowly (or not so narrowly) averted disasters. Poor communication, inter-office politics, clashing personalities, and the challenge of managing a large document production are but a few of the components of the typical near-miss. But, sometimes, the bumps in the road to becoming a better attorney are caused by something you cannot avoid. It's a phenomenon we've all experienced. It's called "being new."

Behind Enemy Lines …

"Sandy" is an experienced litigator at a large national law firm. Although she is now in her second decade of practice, she recalls, all too vividly, some embarrassing moments from earlier in her career. "Every new lawyer has experiences that make her want to crawl into a hole, or spontaneously run into her office and throw up," Sandy says. Some lawyers have both.

For Sandy, one such incident occurred when, as a young associate, she was assigned to handle a litigation matter that wound up being transferred to bankruptcy court. Sandy was still relatively new to the game, and while she had appeared in her local federal District Court, she had never visited the floor of the federal courthouse that housed the bankruptcy courtrooms.

For oral argument for a motion, she arrived at the courthouse early — and nervous. She found her way to the courtroom, hoping that she would have a chance to review her brief (and calm her nerves) while she waited for her case to be called. Instead, Sandy was greeted by a packed courtroom, which (she now knows) is often the case in bankruptcy matters. "Back then," she recalls, "bankruptcy was totally foreign to me." She took one look at the crowd and fled to the hallway.

"I started to pace up and down, with my nose buried in the brief," she remembers. "I was so completely focused on the motion I was about to argue that I didn't even think about my surroundings." Since she had been in the building on a number of occasions, she was able to navigate the hallway outside the courtroom on auto-pilot … or so it seemed.

At some point, as Sandy paced back and forth with her eyes fixed on her brief, nature called. Without missing a beat, she steered herself to the restroom and propelled herself into a stall. When she emerged, she finally took her eyes off the page in front of her, but only to look for the edge of a sink on which to rest her papers while she washed her hands. When she did, she was mortified by what she saw. Instead of the sink she was expecting, what loomed to her immediate right was … a urinal.

Thanks to a different layout on the floor housing the bankruptcy court, Sandy ended up "behind enemy lines." But she breathed a sigh of relief: no one had seen her. She washed her hands quickly and prepared to make a stealthy exit. Alas, discretion was not on the docket for Sandy that day. She stepped out of the restroom, and into the path of the head bankruptcy partner.

"He didn't say anything, but he looked at me like I had six heads," Sandy recalls. "And while he never asked me why I ran out of the men's restroom at the bankruptcy court, brief in hand, I avoided him for years." Sandy can laugh about the incident now, but, she notes, "I think it took about three years for me to stop hiding every time I saw him. I would literally run the other way if I spotted him from down the hall."

You Want It When?

Sandy tells another story from her early days of practice that demonstrates how nerve-wracking life at the bottom of the food chain can be.

In her very first week as a new associate, Sandy received an assignment from a senior partner at the firm, "Mr. King." Mr. King wasn't just any senior partner, though. He was one of "those" partners: very distinguished, very illustrious, and very intimidating. Every lawyer encounters a partner like Mr. King at some point, and can recall the cold stab of fear that invariably surges through their young, green heart when they do.

Mr. King, explains Sandy, was known for his formidable — and formal — style. Rather than calling an anxious young associate into his office and explaining the task at hand, he would send an elegant memo setting forth the assignment. Conversation and feedback were not part of the process: the associate was simply expected to produce a pristine, finished product on — and not a minute after — the due date in the memo. There was no room for negotiation, or for error.

So, when Sandy received such a memo from Mr. King, she was (to put it mildly) nervous. Mr. King had asked Sandy to prepare the materials for a continuing education seminar. "This meant that the work was non-billable," explains Sandy, "and that I would have to find a way to do it — and do it perfectly — while I was juggling all my other billable work." Mr. King's memo instructed her to have the assignment prepared by noon on the following Friday, which meant that she had exactly one week to complete it. Swallowing her apprehension, she threw herself into the task at hand.

Sandy toiled away on the assignment. She was, however, toiling away on a full complement of billable work, and, by Thursday of the following week, she had not yet finished preparing Mr. King's materials. "No problem," she thought. "I have another full day to wrap up my research and complete my memo." Feeling comfortable with her progress, she pressed on. Sandy was fully absorbed in her work when the phone rang, jangling her back to the present. The caller was … Mr. King.

"Sandy," he boomed, "Mr. King here. How's my assignment?"

"It's coming along," she said, "but I still need to do quite a bit of research, and finish my memo …"

Mr. King continued as though he hadn't heard her. "I'd like to have it by noon," he announced bluntly.

Sandy's heart sank. "Well," she reminded him, "your memo did say that it was due tomorrow at noon, and it's not complete yet, and …"

Mr. King was in no mood to entertain her protests. "Noon," he said flatly, and signed off.

Sandy panicked. Not only had she not yet finished the memo, but Mr. King worked in a separate building across the parking lot. "I looked out the window, Sandy remembers, "and it was pouring. I had no time to edit, and I didn't even know if I would have time to get there."

Sandy had no time for reflection. "I printed out my document, grabbed it on the way out the door, threw on my coat as I was running down the hallway, and sprinted out," Sandy says. She arrived at Mr. King's office, breathless and rain-soaked, and presented him with the memo. He weighed it carefully in his hand, making an exaggerated motion that pantomimed "My, how light this is!" Sandy's heart sank further. Mr. King looked at her sternly. "It's twelve minutes late," he said.

Sandy returned to her office, forlorn. "I was just sick over it," she recalls. "I couldn't believe that I'd had to hand in this assignment — to Mr. King, no less — when it still needed a full day of work. It was awful." She waited nervously for the inevitable consequences, which, she was convinced, would be dire.

The next day, Mr. King called. "I have one question," Mr. King began sternly. "Is this the BEST you can do?"

Sandy tried to stammer a response. "No," she protested, "I thought I had more time, and the memo said that …"

Once again, Mr. King cut her off. But, to her surprise, he started to laugh. "Of COURSE it's the best you can do!" he bellowed. "Because it's EXCELLENT!" Mr. King loved the work she had done; he thought it was fantastic; he was impressed by her thorough research and trenchant analysis.

Or something to that effect. Sandy can barely recall Mr. King's exact words: she was too overwhelmed to absorb it all.

"I thanked Mr. King for his compliments, and for giving me the opportunity to work on the assignment." But, she adds, "After I hung up the phone, I pulled out my trash can and threw up. I don't think I've ever been so relieved."

Sandy has gone on to have an illustrious career at the firm, and looks back at her early blunders — and how seriously she took them — with the lens of grateful nostalgia through which most lawyers view their past. Thankfully, we can now laugh at mistakes that seemed at the time like the end of the world.

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Turn a New Page With Your Documents

Sisyphus had his rock. The Yankees have A-Rod. You have documents. Burdens all. Does your client have the software to open the document? Have you expunged the metadata? What if you have several documents to send? As these questions mount, hanging out with A-Rod's cousin and injecting yourself with controlled substances starts looking good by comparison.

gDoc Fusion … in One Sentence
Global Graphics Software's gDoc Fusion enables you to organize, edit, and annotate documents in various formats, and export them as a single PDF file.

The Killer Feature
Many lawyers like to assemble all the work performed on a matter into a single PDF file for clients. But creating such files often involves a lot of manual work.

With gDoc Fusion, you can assemble such documents by dragging and dropping files in the Document View. In addition to organizing the order of the documents, you can even move pages within documents (e.g., insert an Excel chart within a Word document).

When you finish organizing and editing these documents, you can export a single PDF (or PDF/A) file free of metadata to send your client.

Other Notable Features
gDoc Fusion doesn't only organize files, it enables you to edit them. You can also redact text or images, rotate pages, and create bookmarks and annotations. gDoc Fusion supports Microsoft Office, PDF, and XPS formats.

For long documents, gDoc Fusion includes FlickView, which enables you to visually search for a page much like flipping through a book.

What Else Should You Know?
gDoc Fusion adds buttons to Microsoft Office's toolbar or ribbon, enabling you to create PDF files with one click. In addition to exporting in PDF format, you can also export in Word format. gDoc Fusion works with Windows XP or Vista. It costs $99. Learn more about gDoc Fusion.

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Track and Capture Time Spent on Email

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Legal Pros Should Consider Both Twittering and Tweetlaw

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Originally published on April 20, 2009 in our free BigLaw newsletter.

Most large firm associates consider "privilege review" no privilege. What's that you say? A trained monkey could do this work? An understandable thought given the drudgery, but the pitfalls of reviewing a massive document production for privilege are real and occur too often for comfort. It's not monkey business.

A Litigation Team Out of Its League …

"Chloe," now a veteran litigator at a firm on the West Coast, knows all too well how a perfect storm of common variables can, in the aggregate, amount to a discovery disaster. As a mid-level associate, Chloe was assigned to work on a document production in a products liability case. Her firm was delighted to land the client, a medical device manufacturer, and embarked upon the case with starry-eyed visions of a lengthy, but manageable, document review. It quickly became apparent, says Chloe, that the case was bigger than anything the team of attorneys had imagined.

Strike one.

"First of all," Chloe reflects, "we were not prepared for something on that scale. Of course, we had sold ourselves as the most capable firm for the job, so when we realized that the document review was going to be much more involved that we had anticipated, we were afraid of being caught with our pants down." Litigators, however, must be prepared to meet any challenge, so the partners gathered for a huddle, enlisted as many reviewers as they could find, and soldiered on.

Suddenly, from the chaos of the battlefield, a heroic figure emerged ... or so it seemed. "Marc," a young, green associate had wowed everyone (or at least the partners) with his unflagging confidence and apparent willingness to work long, hard hours. It did not hurt that Marc had come highly recommended — albeit by his father, who was an important client. He dazzled the partners were dazzled, and it seemed, recalls Chloe, as though he could do no wrong. "With all these documents to review," she remembers one of the partners saying, "it's a good thing we have someone as talented as Marc."

Needless to say, the other associates on the team were not quite as sanguine about Marc's magical abilities. Although the partners could not sing his praises loudly or often enough, the more seasoned associates suspected that Marc's primary talents included patting himself on the back, tooting his own horn, and self aggrandizing at every available opportunity. Chloe summarizes their impressions succinctly: "A little too much hat; not enough cattle."

Strike two.

Further complicating matters, in-house counsel for the client was a relatively inexperienced, and had never dealt with, much less managed, a major litigation. As a result, says Chloe, "she was incredibly skittish. Every normal twist and turn in the discovery process sent her into a panic; any development that didn't go our way had her convinced that we were losing the case."

Strike three.

A Rookie Without Supervision …

Amidst this brewing maelstrom, the privilege review loomed. As Chloe explains, the documents were being reviewed in Summation Enterprise, and had, at least in theory, been "OCR'd" and coded. At some point, Marc — in his infinite wisdom — made a fateful privilege call that nearly derailed the case, or at least the firm's relationship with its client.

The document in question was a chart of notable events in the history of the litigation prepared by in-house counsel. In addition to its fundamentally privileged content, it contained the attorney's marginalia — the sort of thing that most of us scrawl on a document when we are certain that it will never fall into the hands of, say, the plaintiff's attorney.

Although it didn't say anything quite as explicit as "this document was prepared in anticipation of litigation, and reflects my mental impressions, conclusions, opinions, and legal theories," it may as well have. The document was so clearly privileged, she adds, that each of the eight other reviewers assigned to the case had recognized and tagged its duplicates as such. Marc, however, decided that the document should be produced. And so it made its way, unnoticed, into the batch of documents (which numbered in the tens of thousands) produced for opposing counsel.

Strike four.

How did Marc miss this hanging curveball? Well, Chloe explains, a number of factors contributed to the faux pas. "An experienced reviewer would have recognized that the document was, without a doubt, privileged," she says. "But there was no name on it, and Marc didn't know to look at the OCR coding, which would have told him that it was authored by an in-house attorney. Moreover, he didn't realize that it was a duplicate of documents that had been tagged as privileged by other people. Maybe the OCR coding failed because of the marginalia; maybe he just didn't have the experience to de-duplicate. Either way, he made a bad call."

Moreover, she said, because of Marc's status as the team's "golden child," the more senior attorneys were reluctant to quality-control his work. "He bristled when we reviewed his work, and would complain to the partners," Chloe notes. "After they told us a few times that Marc was 'fantastic,' and was doing a 'great job,' we got the picture: don't look over Marc's shoulder. It's not worth it."

Might this explain why the partners didn't catch Marc's mistake, you wonder? Well, Chloe continues, Marc had truly convinced them that he was a document-reviewing wunderkind. "Of course," she says, "there were quality control measures, but when you're producing thousands, or hundreds of thousands, of documents, oversight can be ... well, imperfect. And, unfortunately, the partners were giving Marc the benefit of the doubt, so they may not have been as attentive to his mistakes."

Game Over. You Lose.

Fast forward to the deposition of a minor defense witness. Thinking that there were bigger fish to fry, the partners from Chloe's firm had sent an attorney who was only tangentially involved in the case to cover the dep. Plaintiffs' counsel was moving through his list of questions, while the other attorneys in the room fought off deposition-induced narcolepsy. But, when plaintiffs' counsel paused for a moment to introduce a certain exhibit, the defense attorneys' Spidey senses tingled. "Can I see that?" asked one of the in-house attorneys. The document was handed over. "I recognize this document," he said, after a nausea-inducing pause. "I created it."

Are we still counting strikes?

The attorneys huddled for a brief sidebar, and Chloe's colleague quickly called the partners. "It was," Chloe remembers with a grimace, "the 'Oh No' moment we all fear." But wait, she explains: there's more. The partners talked amongst themselves, and decided that a vociferous objection would only emphasize the significance of the document. "Just let the plaintiffs think that it's no big deal," they concluded. "If we make a stink about it now, they'll realize we screwed up."

By "they," of course, the partners did not just mean "the plaintiffs." They were also thinking of the client, with whom they feared the inevitable, awkward conversation, beginning with the words "mea culpa."

Did their strategy work? Did the clients breathe a sigh of relief, grateful for a debacle narrowly averted? More important, was the debacle actually averted? The answer to all of these pressing questions, Chloe explains bluntly, is "No."

Her firm took the position (which required considerable contortion) that the document may not have been privileged at all. The partners maintained that the document's release probably wouldn't be damaging. Perhaps most importantly, they declined to insist that it should be clawed back.

So what happened? "Well," Chloe says, "by attempting to save face, we lost all credibility with the client. The in-house lawyer managing the case was already skittish, and this put her over the edge. She totally lost faith in us. The document review continued because we were so deeply entrenched by then, but we were 'relieved' as lead counsel, and finished the review under the watchful eye of another firm." And the document? While it did not become a "smoking gun," it wasn't forgotten, either.

Chloe summarizes the outcome in simple terms. "It was," she declares, "a disaster."

Claw Back Privileged Documents Along With Your Reputation …

On the bright side, Chloe says optimistically, there are multiple lessons to be learned from the (plentiful) mistakes made on the road to the aforementioned disaster.

First, always supervise the novice. It may seems obvious, she concedes, but the need for close supervision is often overlooked when it comes to document review, which young associates are frequently tasked with because of its perceived simplicity. Don't assume that privilege review is as easy as looking for the names of attorneys on an email. Don't be swayed by the uber-confident associate who appears to have mastered the task at hand. Young lawyers, she points out, simply don't have enough experience to spot significant issues in documents, and can easily make a bad call. Of course, she admits, you'll never have enough time to re-review every document that goes out the door, so focus your resources on looking for errors made by the least seasoned member of your team — even if he is a client's son.

Second, she says, remember not only to be aware of duplicates, but to remain mindful of the limitations of even the best eDiscovery tools. OCR is not a perfect technology. Vendors are not magicians. No document review platform is flawless. At the end of the day, technology doesn't do the work of document review for us; it simply cuts down on the number of paper cuts.

Finally, always take responsibility for your mistakes. "And," Chloe cautions, "most importantly, if a privileged document comes out in a deposition, object, object, and object again, more loudly. Claw it back then and there." She makes a last, "belt and suspenders" suggestion about what to do next. "After you object, grab the document and rip it to shreds. If you have to," she says, "eat the damn thing."

How to Receive BigLaw
Many large firms have good reputations for their work and bad reputations as places to work. Why? Published first via email newsletter and later here on our blog, BigLaw goes deep undercover inside some of the country's biggest law firms. But we don't just dish up the dirt. We also mine it for best and worst practices and other nuggets of knowledge. The BigLaw newsletter is free so don't miss the next issue. Please subscribe now.

Coming today to Fat Friday: Ross Kodner discusses the downside of Software as a Service practice management, Jay Geary reviews NEC's PBX digital phone system and the vendor his firm used, George Lazar reviews Amicus Mobile, Aaron Morris shares a workaround for using WordPerfect on multiple monitors, and William Tait explains why lawyers should leave the technology tinkering to the IT professionals. Don't miss this issue.

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Coming today to Answers to Questions: Richard Perkins explains how to wipe a laptop in a way that makes it easy to do again, Paul Wigg-Maxwell shares a Word Styles tip for an OCR documents plus he reviews PaperPort, Michael Steiner clarifies his recent Post on Autonomy/Interwoven, Thomas RuBane reviews CoreVault for online backup, and Jeffrey Koncius reviews Stamps.com for online postage. Don't miss this issue.

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Today's issue of TechnoLawyer NewsWire covers an email discovery utility (see article below), document comparison software, two mobile dictation apps, and a mobile expense- and time-tracking app. Don't miss the next issue.

Take a Load Off Your Email Discovery Chores

When you receive a box of documents from opposing counsel, you know what to do with it. Convert the paper into searchable PDF files, and load them into your litigation support software. But with all the juiciest evidence in email messages nowadays, what happens when opposing counsel sends you a PDF Portfolio containing one or more email accounts, each with hundreds or thousands of email messages?

AutoPortfolio … in One Sentence
EverMap's AutoPortfolio is an Adobe Acrobat plug-in that extracts email data from PDF Portfolios to create "load files" for use in litigation support software.

The Killer Feature
A PDF Portfolio (or Package) is a special PDF file comprised of many individual files. Because Acrobat adds a "Convert to Adobe PDF" function to Outlook, litigators increasingly receive PDF Portfolios that contain one or more Outlook mailboxes or archives when they issue document requests.

If you try to import a PDF Portfolio into your litigation support software, you'll quickly find that you cannot do so. Up until a few weeks ago, manual conversion of each email message was your only option.

Enter AutoPortfolio, which transforms one or more email archives within a PDF Portfolio into a single flat PDF that contains all the email messages and their attachments. From this file, you can use AutoPortfolio to create corresponding load files for CaseMap, Concordance, and CT Summation among other products.

Other Notable Features
You access AutoPortfolio from Acrobat's Plug-Ins menu. The interface consists of a single dialog box. In addition to processing PDF Portfolios, it can also process regular PDF files with embedded email and attachments.

AutoPortfolio organizes the email you extract using metadata such as date, time, subject, from, to, priority, folder, message size, etc., making it easy to sort and select which messages to include in a load file. It also de-duplicates email messages to reduce your review burden.

If AutoPortfolio cannot convert an email attachment into PDF format, it will generate a report identifying these documents (e.g., .exe and .zip files).

The PDF files AutoPortfolio creates contain bookmarks to every email message and their attachments. Thus, you can use AutoPortfolio even if you don't use litigation support software, especially for a small number of email messages.

What Else Should You Know?
AutoPortfolio runs on Windows and costs $199 for a single user license with volume discounts available for 5 ($140 per license), 10 ($110), and unlimited users ($1,499). You can download a free trial. Learn more about AutoPortfolio.

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