eDiscovery and the Ethics of Social Media [Slideshow]

On Friday, September 25, 2015, I gave this presentation on the ethics of social media in litigation at the North Carolina Association of Defense Attorneys conference for insurance defense attorneys and insurance adjusters, in Greensboro, North Carolina. It was an impressive event. Below, you will find my slideshow from the presentation, as well as some additional information and helpful links that I promised to upload, including the sample request for production of documents I use for requesting social media evidence in discovery. eDiscovery and Social Media: 2015 NCADA CLE Presentation from Brian Focht If you would like to download a copy of the supplemental documents prepared for this presentation, including the updated version of North Carolina 2014 Formal Ethics Opinion 5, click on the download button below: Here is the sample language from the discovery request I use to obtain social media evidence in motor vehicle accident cases: Copies of any notes, diaries, logs, journals, letters, electronic mail, text messages, calendars, Facebook postings, tweets, or other social media messages that relate or refer to the accident described in the Complaint, or any injuries or damages you contend resulted therefrom. Additionally, here are a few good resources for litigators who want to make sure they’re doing their due diligence and obtaining all the potential evidence available: A Social Media Evidence Checklist – Slaw.com Lawyer’s Duty to Preserve Social Media Evidence – JD Supra A Measured Response to Social Media Evidence – Bow Tie Law (Case law review/update) A Social Media Subpoena Guide (2015 Edition) – Associate’s... read more

Wearable Technology and Lawyers: A Love Story?

Special Guest: Nicole Black Download this Episode: Download Audio Do you remember how the world responded to Steve Jobs’ announcement of the iPhone in 2007? Despite what now is mostly praise (even Android users have to admit that the first iPhone changed the way we look at cell phones – completely), it was not universally praised upon its release. “… it doesn’t appeal to business customers.” – Steve Ballmer, (former) CEO of Microsoft. “This is no BlackBerry-killer.” – Engadget So when the idea of wearable technology started to become a reality, there were plenty of supporters. And plenty of people who almost seemed to hope they would all fail. I admit that while I wasn’t necessarily a full-throated supporter of the earlier ideas, I certainly liked where they were heading. Personally, I just want an Iron Man-style Heads Up Display. Among the most vocal supporters of wearable devices in the legal community is our guest on this episode of the Legal Technology Review, Nicole Black. Since she’s such an avid supporter, and managed to get her hands on both Google Glass and the Apple Watch, I asked her about wearable devices in the practice of law. The Promise of Wearable Devices Wearable technology, which consists of basically anything that you can carry with you or attach to yourself and reasonably describe using the prefix “smart-,” has a lot of potential upside. For lawyers, a group that collectively relies considerably on delivery and use of large volumes of information, wearable technology has the potential to revolutionize certain aspects of the law. Think, for example, of a personal injury (or social security disability,... read more

Best New Apps for Lawyers – August 2015

Download this Episode: Download Audio First, please let me apologize for my absence over the past few weeks. A combination of major involvement in a large construction defect litigation case and my wife and I moving into our first new house kept me INSANELY BUSY over the last month. Hoping to rectify that in the next few weeks, though. More importantly, the apps. Well, June and July were actually relatively light for high-quality apps, so I wasn’t expecting too much from August. My mistake. Tons of great new apps have dropped, and sadly, I had to leave off plenty of good ones. Here are my best new apps for lawyers released in August 2015: Multi-Platform: Multi-platform apps begin at the () mark of the podcast. Microsoft Translator by Microsoft Corp., free (iOS, Android). Have you ever tried to use an app that suggests it has the ability to translate what you’re saying into another language? There are good, bad, and… terrible. On the good end has been apps like Word Lens (if you don’t mind the apps size). Microsoft is helping to balance out the scales as well, with it’s new Translate app. For iOS, Android, Watch OS, and Android Wear, Translator can help you translate phrases in 50 different languages. It’ll even speak the phrases for you in case you’re worried that your terrible pronunciation is punishable by death in the country you’re visiting! Even better for attorneys, in a country that is becoming more and more multi-lingual, it’ll be nice to be able to communicate with your clients without being a total jackass! PushBullet/Portal by PushBullet, Inc., free (iOS, Android). Ok,... read more

How to Dominate Digital Marketing Like an Expert

Special Guest: Jason Marsh Download this Episode: Download Audio For many attorneys, digital marketing is less a driver of revenue than the perceived bane of their existence. They hate it. I can’t help but think that some of this hate comes from the traditional “we hate what we don’t understand,” but in reality it goes deeper than that. There are, quite frankly, a lot of attorneys who simply don’t like the concept of advertising. Among that group are also attorneys who view advertising in the internet to be almost unclean. This post is not for them. I have come to accept that I’m not going to convert everybody. For the rest – those who have avoided digital marketing because they just don’t know where to begin, my podcast interview with digital marketing expert Jason Marsh of Marsh8 could be revelatory. What is Digital Marketing? First, I need to say that this might have been one of the most interesting podcasts I’ve done, particularly from an editing standpoint. I always put together the outline for my blog post while I edit – a “two birds, one stone” concept. Usually it takes about twice the length of the podcast. This one was much longer, because as I was writing my outline, I was actually amazed at how much Jason covered. While discussing creating great content, @_Jasonmarsh created great content. Click To Tweet I know, it’s cheesy. Give me a break, I’m tired! So what do we mean when we talk about “digital marketing”? Well, we’re talking about many of the ways that simply didn’t exist in the proverbial “back then.” Before... read more

Best New Apps for Lawyers – July 2015

Download this Episode Download Audio July has come and gone, and with it the two-year anniversary of The Cyber Advocate! (And there was great rejoicing!)July was also quite a month for new apps out of the Microsoft Garage Project, their den of frenzied app-creation activities. As you’ll see below, they did quite well. I hope you had a relaxing month, because it’s time to dive in! Here are my best new apps for lawyers released in July 2015: Multi-Platform: Multi-platform apps begin at the (0:20) mark of the podcast. OneNote by Microsoft Corp., (iOS, Android), free. (Update) As part of its continuing strategy to make their flagship systems evenly accessible across all platforms, which you’ll see more of below, Microsoft has released new versions of it’s OneNote app for both iOS and Android. For iOS users, the iPad app has effectively been replaced with it’s more advanced iPhone sibling, meaning there won’t be any differences between the apps anymore. Additionally, you’re now fully able to view the “recent notes” view, and has fixed the preview mode, allowing pages to be previewed in landscape mode. For Android, Microsoft has added a highly requested feature: the ability to move or copy a note from one section or notebook to another. You can even copy and save a note to your home screen instead of OneNote. For users of Android Wear, Microsoft reports that a significant update is on your way too. Convo by Scrybe, Inc., (iOS, Android), free. (Update) While technically an update, this really should qualify as a new app. Convo, one of the top business collaboration tools available, has completely revamped its desktop system, and released... read more

How to Create a Successful Law Firm Website: Your Domain Name

Creating a new website for your law firm, whether you’re opening up a new practice or updating a dated law firm, can be an immense task. I’d love to say that following this guide will allow you to put together a successful and profitable website in your spare time. It won’t. However, in this series, I will walk you through the critical steps of putting together an effective website. Some of those steps inform you to go get help from someone else. Unless you’re a veteran computer programmer, a marketing expert, and a practicing, there’s a lot that’ll probably be over your head. Don’t worry about it. In this four-part series, you’ll learn the basics of setting up a website that, as part of your overall marketing plan, will help convert visitors into clients, and give you a competitive advantage in your market. Check out Part I: Getting Started Once you’ve figured out how your website can best serve your prospective clients, you need to secure a domain name: Secure A Quality Domain Name My God, we’ve finally reached something techy-sounding. This is what you came for! Now it feels like you’re actually building a website. So we start with a pretty important part, your website’s name. There are two components to your website’s domain name: the Top-Level Domain (“TLD”) and the appropriately named Second-Level Domain (“SLD”). These two components are probably the reverse of what you expect. Choosing a Top-Level Domain Name The most popular TLD, as you probably know, is .com. However, there are a number of potential TLDs that you probably use fairly regularly: .net .org .edu .gov .biz... read more

eDiscovery Experts: The Secret Weapons of Modern Litigation

Special Guest: Andy Webb Download this Episode: Download Audio For many attorneys, eDiscovery is a process to be abused or ignored. However, the state bar ethics committees are finally getting around to requiring familiarity if it impacts your practice. Since everything is electronic these days, it doesn’t matter what area you practice in, eDiscovery impacts you. So unless you’re willing to expend the time necessary to get caught up, you’re going to need help. That means hiring the right eDiscovery expert. Whether a third-party contractor or in-house employee, your eDiscovery expert should be an integral part of your practice. Do you really need to hire an expert? Yes, because as attorneys, we simply don’t have the ability to do it all ourselves. Attorneys Misuse eDiscovery Whether it’s through intentional acts or ignorance (or being intentionally ignorant), attorneys have a really poor track record with eDiscovery. Why is that? After all, eDiscovery is about obtaining facts and information that is relevant to a case. It’s really no different than any other discovery. There are two theories that I discussed with Andy Webb in this podcast: 1) lack of familiarity with eDiscovery, and 2) legal gamesmanship. Lack of Familiarity When I asked Mr. Webb about lawyers and competence with eDiscovery, he said that, in his experience, it’s not a lack of interest, but a lack of awareness that’s most frequently the problem. Most attorneys have never taken the time to learn or understand exactly what can be obtained in eDiscovery, or how to obtain it. However, once shown how eDiscovery experts, armed with analytics tools and aggregation software, can turn 500,000... read more

8 Contract Management Systems that will Steal Your Job

If you heard my interview with Joshua Lenon of Clio on my podcast, you’ll recognize this concept: contract management. Also known as the exact job description of a significant number of legal service professionals. With the help of PC Magazine, I can now tell you the names of those contract management systems that are coming for your precious contract work. Trust me, they’re impressive. Here are 8 Top Contract Management Systems that Want Your Job: What They All Do: All of these contract management systems replace legal service professionals for drafting and maintaining contracts. Even the worst of the models does all this: Index your contracts, by parties, date, category, key elements; specific clauses; Generate profiles for individuals and companies for quick importing into new contracts; Keep contracts divided and organized by business department; Draft and edit complete contracts, including complex clauses and terms; Search all contracts on the database for keywords and tags, or by a simple word search; Generate reports analyzing some or all of your contracts, exportable into numerous different file types. And just like when you purchase a new car, if you’re willing to splurge, you can get a whole lot more. The top contract management systems would probably walk your dog if you paid for the extension. The Top Tier of Contract Management: Agiloft by Agiloft, Inc. Price: Enterprise – $2,700 per year (5 users); Cloud-based – starting at $45 per user, per year (5 users minimum). Offers free service tier. Killer Feature: Customization. Nearly every part of this system is customizable, including the price. Options include asset management, insurance certificate tracking, complete audit log... read more

How to Create a Successful Law Firm Website: Getting Started

Creating a new website for your law firm, whether you’re opening up a new practice or updating a dated law firm, can be an immense task. I’d love to say that following this guide will allow you to put together a successful and profitable website in your spare time. It won’t. However, in this series, I will walk you through the critical steps of putting together an effective website. Some of those steps inform you to go get help from someone else. Unless you’re a veteran computer programmer, a marketing expert, and a practicing, there’s a lot that’ll probably be over your head. Don’t worry about it. In this four-part series, you’ll learn the basics of setting up a website that, as part of your overall marketing plan, will help convert visitors into clients, and give you a competitive advantage in your market. In my experience, there are four types of law firm websites: Call to Action-centric This website has one goal, to get you to perform one specific action. It could be clicking on a link, it could be dialing a phone number, it could be participating in a contest. Regardless, you know exactly what that one thing is, no matter where you are on the site. Information/Expertise-Sharing This website is less direct than the Call to Action-centric site. The company operating this website knows that its prospective clients aren’t going to make up their mind in 8 seconds. It might take days, weeks, months or even years. The goal is to make sure that, through providing information and demonstrating expertise, when the time comes, the website visitor thinks... read more

Florida’s Social Media Ethics Opinion is Bad. Really Bad.

I really wish the state of Florida didn’t provide me so much material to write about. Hell, I’ve even written about this particular topic before, when Florida drafted a proposed opinion for the spoliation of social media. I hoped that the Florida bar would come to its senses, with several people assuring me it would be fixed. However, I should have known better. Writers at the time were buying the BS coming from the Florida bar right from the start about how awesome this new opinion was. It wasn’t awesome. It wasn’t even good. And unfortunately, they didn’t fix it. Florida’s New Social Media Ethics Opinion is Bad. Really Bad. The Florida Social Media Ethics Opinion So we’re all on the same page, some anonymous member of the Florida bar sent in these four “questions“: 1) Pre-litigation, may a lawyer advise a client to remove posts, photos, videos, and information from social media pages/accounts that are related directly to the incident for which the lawyer is retained? 2) Pre-litigation, may a lawyer advise a client to remove posts, photos, videos, and information from social media pages/accounts that are not related directly to the incident for which the lawyer is retained? 3) Pre-litigation, may a lawyer advise a client to change social media pages/accounts privacy settings to remove the pages/accounts from public view? 4) Pre-litigation, must a lawyer advise a client not to remove posts, photos, videos and information whether or not directly related to the litigation if the lawyer has advised the client to set privacy settings to not allow public access? Long story short, the answers are as... read more
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