The Vital Role of Depositions in Electronic Discovery

Check out the new Thinking E-Discovery column, “Incorporating EDD into Your Depositions – the 5Ws of EDD Depositions” from Evan Schaeffer, Tom Mighell and me, on the great site (a sponsor of this blog).
It’s partly a little celebration of the publication of Evan’s book, Deposition Strategies & Checklists, but it’s primarily a unique, simple and practical exploration of the idea of how to use non-electronic techniques – deposition questions – to be successful in electronic discovery. I mainly ask the questions and Tom and Evan offer up a ton of useful advice and tips. Good stuff.
The more that you can treat EDD as evolution rather the revolution, the better off you will be. For now.
[Originally posted on DennisKennedy.Blog (]
Learn more about electronic discovery at Dennis Kennedy’s Electronic Discovery Resources page.
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Robust Decision-making

A fun aspect of blogging for me is that occasionally authors send me copies of their books because they like a post of mine on the topic of their book. Recently, I’ve enjoyed reading and recommend Ross Dawson’s Developing Knowledge-Based Client Relationships (Second Edition) and Rajesh Setty’s Beyond Code which the authors sent to me.
The book that I want highlight and recommend to you is David Ullman’s Making Robust Decisions. I’ve done some research into decision-making over the years. I’ve even had some general discussions about the potential for decision-making software in the legal context.
Making Robust Decisions takes a deep dive into decision-making, especially for teams, and is one of those rare books that I immediately put on my “to re-read” list.
1. As thorough an analysis of the science of decision-making as I’ve seen in a popular text. There’s even mathematics. Fascinating stuff.
2. Thoughtful discussion of the human dynamics at play in group decision-making.
3. Excellent description and analysis of a variety of tools and techniques, with templates and practical illustrations.
4. Most important, a focus on how to turn process into ACTION. Very worthwhile. I seem to be making a lot of tough decisions lately and this book has been very valuable. This emphasis on action will change the way you look at decision-making.
There’s also a lot of coverage of topics that have captured my attention over the past few years, including John Boyd’s OODA Loop and a good critique of the over-worked notion of consensus decision-making, quoting Margaret Thatcher, “To me, consensus seems to be the process of abandoning all beliefs, principles, values and policies. So it is something in which no one believes and to which no one objects.”
Ullman’s combination of “robustness” in decision-making and practical action is a powerful approach.
Highly recommended and a big public thank you to David Ullman for sending me a copy and realizing that it would fit so well with my thinking and perspective.
Making Robust Decisions
[Originally posted on DennisKennedy.Blog (]
Learn more about electronic discovery at Dennis Kennedy’s Electronic Discovery Resources page.
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No Malpractice Insurance for Law Firm Blogs?

As I often say, if telephones were introduced today, there’s no way that the use of telephones by lawyers would be approved under today’s ethical and regulatory environment for lawyers. Just think of all the horrible things that can happen when lawyers use telephones.
Like faxes, emails, and websites before them, the “new technology” of blogging has seemed to flummox bar regulators who are unfamiliar with what blogs actually are.
The (over)reaction to blogs continues to surprise me. Let me say this as simply as I can. Blogs are simply one kind of website. The rules on lawyers’ use of websites have actually reasonably clear and well-settled since about 1997. At least until the publicity blogs have received in the last two years. Since then, as I have said before, it has really become impossible to determine how blogs will be treated or to predict how regulators will deal with blogs, as the recent New York rules illustrate.
That said, there’s been a modest movement toward more reasonable thinking about blog regulation since the New York regulators listened to comments to their proposed rules and made a few changes, even though there’s no consensus how even those changes apply to blogs.
Last night, I saw Carolyn Elefant’s post about a New Jersey law firm dropped its plans to start a blog because its malpractice carrier, the Chubb Corp., indicated that it might not insure the blogging activity.
I must admit that this came as a surprise to me. I almost posted about the story last night.
This morning, I got a call from Heather Havenstein, from ComputerWorld, asking me for some comments on the story. Her story, “Insurance company refuses to cover law firm’s blog,” has appeared already on the online edition of MacWorld.
The quote she used from captures the heart of my perspective on this story:

However, [Kennedy] said these types of attempts to impose new types of restrictions on blogs likely occur ‘when people aren’t that familiar with the technology and think it is somehow completely new and different. Really blogs are just a form of Web pages. What you’re doing is not different than if you are speaking in public or writing an op-ed piece.’

Or using a website as lawyers have done for at least the last 12 years. Or talking to someone on a telephone.
While I am convinced that blogs can be a vehicle to greatly enhance communications with clients and the public, I am not convinced that, at root, blogs present any new issues that require different treatment under ethical and regulatory rules than any other prior communication technology.
I also suspect that a 5 or 10 minute conversation with a malpractice insurance carrier would alleviate any reticence or concern about covering blogs. It might, however, raise some concerns about whether malpractice carriers want to cover the use of telephones by lawyers. Heh.
My rule of thumb on these issues is to simply substitute the word “telephone” for “blog” and then see if there is any new issue raised by blogs that aren’t raised by telephones. I haven’t found any yet – in twelve years off thinking about these issues since I first started my website.
Kevin O’Keefe also has his usual great perspective and analysis on this issue here. Careful readers might guess that Kevin and I have had conversations about this issue over the years where we’ve both used the telephone analogy.
[Originally posted on DennisKennedy.Blog (]
Like what you are reading? Check out the other blogs where I post – Between Lawyers (feed) and the LexThink Blog (feed).
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Impromptu Consultation and the Post-Email Era

Dave Pollard’s post called “Re-learning the Art of Impromptu Consultation” struck me as being an important one as we move into the post-email world and consider how collaboration tools should work.
How do we duplicate the best aspects of face-to-face communication (and here Pollard’s emphasis on consultation seems especially important) when we increasingly work, collaborate and communicate electronically?
There’s much to chew on in Pollard’s post. The money quote:

What we could do is to add to IM an ability to:
a. virtually ‘knock’, just-in-time, with an indication of how many minutes of the consultee’s time we need,
b. simply conference others into the conversation, and
c. simply add voice, video and desktop-sharing capability to the IM conversation.
Then IM, instead of having to carry the conversation, would be used mostly to set up the conversation, in a way analogous to the ‘knock on the door’ that is used to set up a face-to-face just-in-time conversation (“do you have 5 minutes to resolve a problem we’re having with…?”). Once the IM ‘knock’ was accepted, the participants would then ‘one-click’ into a VoIP conversation with video and desktop-sharing ‘attached’ to the resizeable IM pop-up window. . . . The advantages over e-mail are increased effectiveness (because the conversation is real-time interactive and spoken, not written and asynchronous), and improved context (because of the addition of aural, visual and body-language ‘clues’).

His conclusion is something that we all should spend some time thinking about:

Ubiquitous e-mail and Internet access in organizations have created more problems than they’ve solved, and it’s time to rein them in to situations where their use is appropriate and effective. To do so, we’ll have to relearn some old tricks, like how to consult, converse, communicate and research, professionally. It can’t happen soon enough.

[Originally posted on DennisKennedy.Blog (]
Learn more about legal technology at Dennis Kennedy’s Legal Technology Central page.
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I decided to take a break from ABA TECHSHOW this year. However, it starts Thursday and, as I knew I would, I’m having pangs of regret. On the other hand, I’ve got so many things going on here that I know I made the best decision.
TECHSHOW has long been the best lawyer-focused, education-oriented legal technology show of the year – at least in my opinionated opinion, and given my bias of having spent a couple of years on the TECHSHOW Board.
This year, my good friend and honorary cousin, Dan Pinnington, is chairing the show and I’ll miss being with him to see how much he enjoys having his vision of TECHSHOW come to life. I know the people on this year’s board well, and know that they’ll put on a stellar show. I really like to see how they enjoy pulling the whole show together and the big smiles on their faces during and after the show.
There’s still some time to make plans to attend the show, and, if you are in Chicago, there’s no excuse for not snagging a free exhibit hall pass and spending a few hours or a day hanging around the exhibit hall and learning about what’s happening in legal technology. There are also a number of dinners and informal events where you can get the chance to meet and chat with some of the notables in legal technology and a big, friendly group of lawyers interested in technology.
My best TECHSHOW tip: grab a chair in the lobby of the Sheraton and join in the spontaneous conversations that arise. Some of my favorite times at TECHSHOW have been sitting in the lobby until the wee hours talking with Jerry Lawson, Alan Pearlman, Ernest “Ernie the Attorney” Svenson, Dan Pinnington, Jim Calloway, Jeff Beard, Adriana Linares, the Rethink IP guys, and many, many others, but especially my longtime pals from CaseSoft, Bob Wiss and Greg Krehel – I’ll definitely miss our annual get-togethers this year. By the way, it was largely my experience in these conversations in the Sheraton lobby that shaped my understanding of “unconferences” and led to LexThink.
I looked over the program schedule and, as usual, there are great sessions and speakers. Especially if you are in Chicago, it’s worth taking advantage of this opportunity. You won’t find a more open, generous and helpful group of people.
Yes, I’ll definitely enjoy the break from speaking at TECHSHOW this year (it’s nice not to be preparing two new presentations at this time of year), but I’ll definitely miss the camaraderie and fun. No doubt.
I’ve been brainstorming with Tom Mighell tonight to see if there’s a way to use Twitter to let me hang out with the people at TECHSHOW vicariously. It’ll be interesting to see what will happen on that.
Which reminds me. . . I had a great time at Matt Homann’s latest idea market last night. I met some great new people and got to catch up with a few friends. And I got the chance to talk about blogging, including a conversation with two other St. Louis bloggers who have been blogging for more than four years. We shared notes, and quite similar observations, about the clear “generations” of bloggers. I might revisit that topic in a future post.
Matt previewed some of his TECHSHOW presentation on Web 2.0, and, if you are at TECHSHOW, I can tell you that that presentation will be very, very good. When you see Matt, be sure to ask him about the next LexThink event.
[Originally posted on DennisKennedy.Blog (]
Like what you are reading? Check out the other blogs where I post – Between Lawyers (feed) and the LexThink Blog (feed).
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