Within the last decade or more there have been so many technological changes not least of being able to amend documents quickly and very neatly too! There is a downside to some of the technology too especially for those lawyers who are in court all day every day for weeks – who will answer their continuous barrage of emails? Gone forever are the days when you corresponded by post allowing time to get requested documents etc together and move the matter forward not at a snail’s pace but not at breakneck speed either.

The task of research too has changed so much so that the need to sit in the Law Library is now becoming a thing of the past.

One of the biggest changes has occurred in the preparation of a case, particularly the area of discovery. Oh my word! The costs and time now spent on finding and organizing of electronic documents for discovery are quite extraordinary and unless you have a good working knowledge of the various computer programs you have on your PC then you will need to engage a third party to assimilate the information.

As technology moves apace some legal secretaries have been replaced by lawyers who can type or by lawyers who use voice recognition software to produce their documents. Is this what a lawyer is though? Isn’t a lawyer someone who knows the law, interprets it and then advises the client? Where is the technology in that? We all know a trial lawyer needs to be able to think on his or her feet and make the best of sometimes a dreadful set of facts – is there technology around to replace that lawyer?

Why is this rule that a lawyer can’t practice law if he or she is not technologically proficient being introduced?

Let’s face it not every lawyer is a technological geek nor every technological geek a lawyer!

With all the new technology comes the question of cost. Who foots the bill for the new software and the time it takes to train those lawyers on these different software packages? The lawyers themselves that’s who! Many solo practitioners are hard pressed to have the resources to meet these expenses. They need to understand that there is a need to factor in the cost of these changes.

So, on the one hand it’s a good thing to have the technology especially now the courts are becoming more and more electronic in their dealings with lawyers, however on the other hand the costs can be difficult to meet for the not so well off lawyer.

Are these changes in technology which are impacting on lawyers being sufficiently thought through and does anyone really understand how to regulate these changes?

Technology does not make a lawyer a better lawyer. A lawyer’s basic skills will always include the need to be extremely knowledgeable, think fast on his or her feet and have good commonsense and judgment too.

So what happens when the current technology becomes a thing of the past? Will there be the same problems as we have today with the costs of e-Discovery? Will a good lawyer who doesn’t keep up with new technology create an ethical issue for themselves?

There seem to be more questions than answers…

To some degree yes you can, but I doubt whether a law office will be totally paperless or will I be proven wrong?

What are the advantages of being paperless and having your files electronically stored? The first thing that springs to mind is that you need a lot less physical storage for electronic file. Secondly, physical file retrieval was time consuming – you had to request a file from the archivist, then wait for it to be found and delivered to you. This could take a matter of hours or days which is not only a consumer of time but also of money.
Electronic file retrieval is quite instantaneous and money saving too!

As more and more institutions like the court house are becoming more and more able to file electronically there will be no longer a need for a paralegal to go to the courthouse to retrieve a client’s pleadings etc. A flick of a switch and a press of a couple of buttons and hey presto!
To begin the task of archiving your paper files to e-files initially takes time and resources, no question. The best time to undertake this task would be at a time of the year when there are few client visits. Attorneys would decide what needs to be saved and e-filed, a paralegal would maybe organize this and would along with a support worker log the files on the computer.

Before you start though, just remember to check whether your current file server(s) can cope with the extra storage and ensure you have backup systems in place too. As an alternative to storing your files on your servers you do have the option of storing your e-files on a third party cloud as you do already, probably, with your email accounts like Yahoo and Gmail.

Slowly but surely law firms are moving into the paperless (or at the very least a lot less paper) office which can only be a good place to be in terms of providing their services to their clients.

There are several ways to serve legal documents abroad.

These are outlined in the 1965 Hague Convention on Service Abroad of Judicial and Extra-Judicial Documents in Civil or Commercial Matters and also in EC Regulation 1393/2007.

The options include:-
Service through the Central Authority
Service by mail, fax or email
Direct service via local private process server
Service by a qualified legal professional

Service through the Central Authority, typically the government of the country where the process is to be served, is the formal route of the Hague Convention and is a free service. However whilst the service in itself is free there are various processes that will need to be paid. Translation of the paperwork into the language of the country where the document is to be served is one such service and is usually to be carried out by a certified court translator. According to Article 5 of the Convention service can be denied if the documents are not translated and incorrect translation can result in the quashing of service.

Another potential expense is payment to the Court bailiff, in the appropriate currency, who will serve the documents after an official of the Central Authority has inspected the documents for legality and conformity to local laws. In a number of countries it is common for the service of documents to be voluntary and the defendant given the option of refusing service.

So although service through the central authority is nominally free there can be expense involved and the process can be lengthy.
Options 2, 3 and 4 come under Article 10 of the Convention which states:

Provided the State of Destination does not object, the present Convention shall not interfere with – the freedom to send judicial documents, by postal channels, directly to persons abroad, the freedom of judicial officers, officials or other competent persons of the State of origin to effect the service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination,
the freedom of any person interested in a judicial proceeding to effect the service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination.

In fact several countries have opted out of one or more of the methods of service provided in Article 10.

The United States is party to two multilateral treaties, The Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil or Commercial Matters and the Inter-American Convention on Letters Rogatory and Additional Protocol. The Hague Convention is the most commonly used method for serving parties outside the U.S. and is meant to provide a common practice among the signatories to the convention but some countries have made reservations regarding specific methods of service so it is necessary to discover whether the country where the service is to be made has made any reservation and if so to what method or methods of service. Perhaps the safest method of service in a country signatory to the Hague Convention is through that countries designated Central Authority. The form needed for the transmittal of service requests to a foreign central authority is USM-94 and is available from the U.S. Marshals Service web page.

The Inter-American Convention is a treaty between the United States and a number of South and Central American countries, but it is worth noting that only countries party to both the Convention and the Additional Protocol have a treaty with the United States. A request for service in a country party to the Convention and Additional Protocol should be submitted on form USM-272 (English) and USM 272A (Spanish). The forms are available from the office of any United States Marshal or from The U.S. Department of Justice’s contractor.

Service can be made by certified or registered mail with return receipt to many countries as long as this method of service is not prohibited by the laws of the country involved. The International Mail Manual, which is available at your local Post Office, or the U.S. Postal Service web page can provide the information on whether such a service applies in the particular foreign country.

If personal service is needed in a country not party to the Hague Service Convention it may be advisable to engage a local attorney to serve process unless this is not permissible under the laws of that country. American process servers or other agents may be subject to arrest and/or deportation if they are not allowed to serve process under the laws of the foreign country.

In some countries the only recognised method of service is by Letters Rogatory and requirements of procedure can vary dependant upon the country involved. Letters Rogatory should only be utilised if there is no other avenue open as this method is unwieldy and time consuming.
Another method is service by publication but only where allowable under the laws of the foreign country. Waiver of service may be a viable option but, again, this method may not be permitted by the foreign country. Waivers of service may be executed before a U.S. consular official abroad in the form of an acknowledgement or affidavit.

The first instance can be open to interpretation as it permits the requesting judicial officer to send judicial documents by various postal channels to the countries that permit this method whilst the other two provisions state serve or service. There is controversy as to whether the provision allows service directly by mail. In the United States some courts hold the view that the provision allows direct service of documents by mail while other courts are of the opinion that the provision only permits the sending of documents by mail but not service of documents. Some European countries interpret the provision as allowing formal service by mail but others require the service of documents to be processed through the central authority of that country.

Many countries permit the use of the other two methods of service but in many cases these are not practical options. There are many countries where judicial officers will not serve documents sent to them from private individuals in the United States, process servers, as a separate profession, are not recognised and U.S. consular officials are, by regulation, not permitted to assist in the service of process.

If the enforcement of a judgement abroad is being sought then the judgement must be obtained by means of service considered valid in the courts of that country. As the Hague Service Convention is recognised as a valid means of service by the courts of all the signatory countries, including all U.S. courts, then use of the convention will negate the possibility of problems with the judgement.

Service of process in countries under the Hague Convention is either through the central authority designated by the foreign country or by any of the methods stated in Article 10 of the convention. The Inter-American Convention on Letters Rogatory and Additional Protocol is a treaty between the United States and many Central and South American Countries that regulates the international service of process in the signatory countries. Letters Rogatory are the means by which a court in one country requests the assistance of the judiciary in the foreign country where the defendant is situated, to effect performance of an act that could constitute a violation of the sovereignty of that country if done without sanction of the foreign court.

The default service of process in non-treaty countries is Letters Rogatory if permissible by the laws of the foreign country although a small number of non-treaty countries will actually allow service of process by a private process server. The usual method of transmission of Letters Rogatory is via diplomatic channels and can be time consuming. This can be circumvented by transmitting a copy of the request through a local legal representative if this is allowed in the foreign country where service is to be effected.

The foreign court will execute Letters Rogatory in accordance with the rules and regulations in force in that country. For instance many foreign courts do not permit attorneys from other countries to participate in court proceedings; some foreign courts do not employ court reporters nor provide verbatim transcripts of proceedings. Occasionally the presiding judge will provide his or her own recollection of proceedings and responses of the witness.

When executed by the foreign authorities the Letters Rogatory are normally returned by diplomatic channels to the Department of State whereupon the Office of American Citizens Service will forward them to the requesting court in the United States via certified mail and requesting counsel will also be notified. The requesting counsel can have the executed Letter Rogatory and proof of service returned directly to them at the request of the court.

Well no actually it isn’t because the agreement above is lacking something called “consideration” and no matter how valueless the “consideration” may appear if the parties agree that one party will supply something to the other party for a “consideration” only then is a contract in force.

Take the unpaid bloggers at The Huffington Post. There are thousands of them who supply this news site with content to their site without getting a “consideration”. Nowhere in The Huffington Post’s T&Cs does it mention consideration, fee, compensation or the like.

Notwithstanding this a group of The Huffington Post brought a class action lawsuit against AOL Inc after they had agreed to acquire the news site for $315 million. Amongst other allegations in the lawsuit which related the bloggers being deceived they alleged that the news site was unjustly enriched by the revenue the bloggers brought them with their posts. Another part of the lawsuit alleged that The Huffington Post didn’t accept blog posts willy-nilly but actively sought out good bloggers and carefully selected others, i.e. recruited the bloggers to perform services for it.

Well not surprisingly the lawsuit was dismissed by U.S. District Judge Koeltl who ruled that, “No one forced the plaintiff to give their work to The Huffington Post for publication and the plaintiffs candidly admit they did not expect compensation.” The Judge added that, “they repeatedly agreed to the same bargain and went into the arrangement with eyes wide open.”

However they were receiving some compensation according to Judge Koeltl – they were getting publication which in itself makes the contract valid between The Huffington Post and the bloggers. The bloggers were supplying the content, The Huffington Post was getting the content and the bloggers got their content published.

As Lord Somervell noted in Chappell v Nestlé, “A peppercorn does not cease to be good consideration if it is established that the promise does not like pepper and will throw away the corn.”

Judge Thomas Vanaskie says the 1853 Act (which s1920 is the modern version of) departed from the English way of awarding discovery costs to the successful litigant and instead the American way is to award discovery costs between the parties. This way all would be litigants would be able to bring an action without costs being an obstacle.

Taking these principles heavily into consideration Vanaskie decided that a defense bill of more than $360,000 for electronic discovery costs should be slashed by more than 90 percent and he also drew a sharp distinction between “exemplification” and “making copies”. Vanaskie decided that none of the discovery undertaken constituted exemplification in this case.

An argument was put forward that there was technical expertise and extensive processing of electronic materials required so that the information was accessible. Vanaskie didn’t agree with this argument and felt that pre-digital processes for producing information wasn’t much different to the post-digital processes and that technical expertise was immaterial. Vanaskie felt that both processes involved locating, collecting and reviewing documents prior to the act of physically copying them.

Costs were not awarded for locating, collecting and reviewing documents in the age of non-digital discovery so why should they be so now? Congress only authorized taxation of charges of the costs of making copies.

Traditionally e-discovery apps move data into separate locations thus spreading copies of the same document. Vault doesn’t do this the document stays within Vault as the archiving aspect is part of the app itself. You don’t have to copy messages or setting up a journal either.

Vault has the ability to preserve information such as dates, labels, recipients and senders etc and plans for Vault to integrate with third-party products and apply to other Google data types.

Christopher Gutierrez who is the IT Manager here at Judicial Process & Support, thinks it’s a very important enterprise-level tool for law firms. Chris helps law firms with e-discovery here at JPS and specializes in reselling Google Apps and he also thinks Vault is a step in the right direction.

Other plug-in companies will no doubt be in the planning stages of making their own version of Vault. Mary Mack enterprise technology counsel with ZyLab wonders whether Vault will be able to produce a level of categorization, annotation and redaction for corporate legal departments.

Vault is being lauded in some circles as a long-awaited follow-up to Google’s product called Message Discovery way back in 2008.

The one thing that I have realized is that the system is really evolving to mold the users and stakeholders involved. I’ll give you an example later in this article. But first let’s cover why you should be glad that the system is evolving with your help.

Many of you may be familiar with and use a program called PACER that is used in the legal industry to obtain case and docket information from federal appellate, district and bankruptcy courts, and the PACER Case Locator via the Internet.

The PACER system has evolved over the years to mold into the workflow of legal professionals. This happened over a period of gathering feedback from the users and software development.

The PACER management team asked legal professionals for feedback on the process and from then continuously engaged in improving the new features that we’re released overtime.

The same process is currently happening with the Florida E-Filing System. Unfortunately court officials are reinventing the system but not using the PACER system and therefore we must go through this process to allow the software to evolve.

One of the first things I guide legal professionals through in my Florida E-Filing Evolution webinar is the process of user authentication. The authority regulating e-filing has put in place a multi-level security program that allows for lawyers and law firm administrators and others to access the system with correct permissions.

Originally there was only one username and password available essentially creating a security issue. This is one of the tiny improvements that was put in place because of feedback from law firms and stakeholders.

Although this may seem as just a simple suggestion, it’s this proactive feedback that creates improvements allowing this new e-filing engine to become a pleasure to use.This evolutionary process of gathering feedback and making improvements has been happening for over two years and it is still underway.

It’s crucial that you understand that in just mere months Florida courts may stop accepting legal documents in the courthouse.As time passes we just get closer to the deadline for all Florida courts to require e-filing for all new/existing filings.

Currently the time frame for this process to become mandatory is not official but my insiders tell me that it could be sooners than you think. At that point documents will only be able to be filed online. This will not be an option but it will be required in order for you to proceed with your cases.

With that said let me ask you three questions.

1. Do you have suggestions for improving the Florida E-Filing software?

2. Do you and your team already know how the use the Florida E-Filing system?

3. Are you using best practices when using the system?

If you answered yes to all these questions then your team is doing everything it can to be at the leading edge of legal landscape.

If you answered no then it’s time for you to start doing some research and brief your team on the changes that are coming.

Be ready.