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Digital litigation

Whether they like it or not, lawyers need to go digital to present their best case. But many of them, who still cling to paper, are not technologically literate.

[Times art: Rossie Newson]
By DAVE GUSSOW, Times Technology Editor

© St. Petersburg Times, published August 10, 1998


Qoo many lawyers don't know what they're missing in technology, Clyde Wilson says. That could be costly for their clients, and the lawyers, too.

Wilson is talking about information important to the lawyers' clients, not gadgets for their offices. And he is talking about electronic hiding places where lawyers should be digging but don't, mostly because they don't know how.

"There's a lot of malpractice by omission going on today," said Wilson of the Wilson, Johnson & Jaffer firm in Sarasota.

"Woefully ignorant" is how Wilson, a nationally known lawyer specializing in high-tech cases, describes the vast majority of lawyers when it comes to knowing where to seek electronic evidence for their cases.

Tough words, but the paper chase has gone digital, forcing lawyers to look at how they practice law and how technology is changing the types of cases they will handle.

At the Florida Bar's annual convention in June, Wilson spoke about electronic evidence at a session called "Surviving the Jump into Cyberspace," which also included discussions about corporate e-mail and Web policies, Year 2000 issues and electronic commerce. The convention offered other high-tech topics, from the paperless office to surfing the Internet to an introduction to Windows.

At the Jump into Cyberspace session, Andrew Greenberg asked: How many lawyers consider themselves computer lawyers? Only a few of the more than 50 in the room raised their hands.

"It's no longer going to be a specialty," said Greenberg of Carlton Fields in Tampa. Greenberg talked about electronic commerce and the myriad legal issues that need to be considered before someone sets up a business on the Web. If someone goes to court and manages to have the site shut down, Greenberg said, that company's revenue lifeline has been cut.

In an interview, Wilson said technology has created two major areas for lawsuits: what he calls "rip-off cases," where intellectual property is taken, and performance and defect cases, where systems don't work as promised.

Some of the rip-off cases, Wilson said, come from the army of temporary technology workers who move from one company to another in the role of consultant or independent contractor.

"A lot are leaving with trade secrets in their heads or briefcase or home computer or laptop or disk," he said, "so obviously there's a lot of pollenization when they move from job to job."

As for information available online, Wilson said lawyers still tend to cling to paper, even though "more information is available electronically."

He told a story about a woman who didn't believe her company's line that her job was being eliminated in a restructuring, even though the parting included a glowing referral letter. Her attorney got to her boss' e-mail, which included messages describing her in unflattering terms and with orders to get rid of her. The case was settled.

Another case involved a secretary who claimed her boss was sexually harassing her, including in an e-mail message. His attorney used cell phone records to show that he was out of state when the message was sent. It turned out that the secretary had used the boss' computer to send herself the message.

Other lawyers, such as Rick Georges of St. Petersburg, have also talked about the anonymous nature of the Net, cautioning that it is hard to know for sure who people are communicating with.

And attorneys need to know where to dig for the electronic goods. Deleting files or e-mail doesn't mean they're gone or unavailable through other sources. Network systems have logs, hard drives keep even "deleted" information until something else writes over it, computerized phone networks keep records.

The key, Wilson said, is to know what and where something might be available and to move quickly to subpoena or gain access to it to make sure it doesn't get destroyed.

If the information is not in one place, Wilson said, "keep looking."

"I think these are things lawyers need to know about and be cognizant about when conducting discovery," Wilson said, "... but lawyers still tend to think in terms of paper."

That preference for paper will be tested soon in Tallahassee, where the Leon County Circuit Court Clerk's Office (www.leon.clerk.fl.us) is expected to be the first in the state to start an electronic filing system for lawsuits.

Among other things, the process will allow greater public access to court records through the clerk's Web site. To expand access, the clerk's office is considering a plan to put computer kiosks in places such as libraries and malls.

"Electronic filing is a slice of what we're talking about when we talk about a paperless office," Circuit Judge J. Lewis Hall told a Bar seminar, noting that all facets of the court system, from county jails to prosecutors to public defenders to docketing, have to work together in such a system.

The state Supreme Court must approve the test. It will include about 10 law firms filing suits and other papers electronically and will run for 90 days, according to Deputy Clerk John Stott, who is heading the project. If it is approved and proves successful, it will be expanded.

But implementing an electronic filing system won't in itself eliminate paper. Stott told the lawyers he expected it will be five to seven years before a majority of court cases filed are handled electronically.

As lawyers deal with all these issues, the Year 2000 problem looms large for lawyers and their clients. That's the prospect, rich in litigious possibilities, that all manner of computer systems will crash at the arrival of a year that ends in two zeros.

"The situation may become that serious that you or your client may not survive (in business)," Stephen E. Krulin, a Miami lawyer, told a Bar seminar.

Wilson, who said he plans to avoid airplane flights on Jan. 1, 2000, says some expected opportunities for lawsuits may not materialize because of statute-of-limitation issues. In some cases, software was sold so long ago that a deadline for claims will have expired, and some companies that developed the software are no longer in business.

And Wilson -- whose technological experience dates to 1970 and includes a verdict in a 1988 case of more than $30-million -- scoffs at the many law firms that have set up Year 2000 litigation departments "of instant experts." He said it would be like his firm setting up a brain surgery malpractice department overnight.

"A lot of these guys trying cases in Year 2000 have a lot to learn that they don't know," Wilson said.


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