In the Woodpile: Mistakes and the modern lawyer

By Shawn Wood
Seyfarth Shaw

To err is human, but to really foul things up you need a computer.
—Paul Ehrlich

Month after month, my inbox is flooded with solicitations for tech-law seminars. While I’m always struck by the sheer number of these programs and their inspired use of fear as a marketing strategy (”What Every Lawyer Must Know About E-Discovery”), I’m also amazed that these seminars consistently omit one of the most important ”tech” topics of all.

Specifically, I’d like to see a program called: ”How to Avoid Technology Mistakes That Make You Look Really Stupid.”

Professionals clearly need more instruction in this area, and I’m not just talking about minor errors like forgetting to attach a document to an e-mail or those ”all-firm” blasts that always begin with something catchy and sincere like ‘’sorry for the blast e-mail.”

Stories flow through every office about those three terrifying words ”Reply to All” and how a promising career can be sabotaged by sending the wrong e-mail to the wrong 800 people.

In our office, if you click ”Reply to All” in response to an e-mail, the IT folks installed a helpful prompt for the focus-impaired that says: ”DO YOU REALLY WANT TO REPLY TO ALL?” If this doesn’t work, I dropped a note in the suggestion box recommending a second prompt that says: ”HEY IDIOT, IF YOU KEEP SENDING THESE TO EVERYONE, THE FIRM WILL REVOKE YOUR E-MAIL PRIVILEGES.” If they implement my suggestion, I think I win a free taco.

In 2008 alone, there have been at least two incidents of lawyers ending up in the news after inadvertently hitting the ‘’send” button.

In February, The New York Times broke a story about confidential settlement discussions between Eli Lilly and the federal government. Portfolio.com subsequently reported that the drug company’s outside litigation counsel inadvertently sent a confidential e-mail intended for her co-counsel to a NYT reporter, who had a similar name and e-mail address.

This story shot through the blogosere with no shortage of schadenfreude that a mistake had been made by a ”high-priced” partner from a ”fancy” law firm. By the time the reporter clarified that he derived the details of his story from other sources and that the inadvertently sent e-mail consisted of only two sentences (merely stating that the government’s demand was in the ‘’stratosphere”), the damage was done. This story became a parable for the need to exercise greater care when communicating about confidential information.

The second recent e-mail gaffe involved the settlement of a lawsuit an insurer had filed against the Mississippi attorney general. The Associated Press reported that a Skadden, Arps, Slate, Meagher & Flom attorney representing the insurer was copied on an e-mail sent to reporters that contained a press release by the attorney general. The lawyer intended to forward the e-mail to her internal team while commenting that the attorney general should be held in contempt for misrepresenting the terms of a confidential settlement. Instead, she hit ”Reply to All.”

Her comments were sent to a dozen reporters. I suspect this problem could have been avoided by having an auto-prompt that says, ”ARE YOU SURE YOU WANT TO SEND THIS TO A DOZEN REPORTERS?” Remind me to add that to our suggestion box.

Beyond these inadvertent disclosures, the ever-increasing prevalence of blogging creates entirely new avenues for professional blunders.

My personal favorite goof on the blogging front occurred in the context of a medical malpractice trial in Boston last year. Dr. Robert Lindeman, a graduate of Yale University and Columbia University’s College of Physicians and Surgeons, was sued for allegedly failing to diagnose a patient’s diabetes. It turns out defendant Lindeman also maintained an anonymous blog under the screen name ”Flea.” (Ah, yes, sign me up for medical care by the dude who refers to himself as ”Flea.”)

Doc Flea, according to the Boston Globe, was maintaining a real-time blog during his own medical malpractice trial, in which he ridiculed the plaintiff’s case, revealed the defense strategy, and accused members of the jury of dozing. He also wrote about the plaintiff’s attorney Elizabeth Mulvey, who he nicknamed ”Clarissa Lunt,” and remarked about her habit of biting her nails, and reportedly mused: ”Wonder if she’s a pillow biter, too?”

So imagine the surprise of Doc Flea and his lawyer when, at the close of the day during cross-examination, Mulvey asked if Lindeman maintained a blog and whether he was Flea. After Lindeman answered yes to both questions (”D’oh!”), with Mulvey having telegraphed that she was prepared to delve into Flea’s colorful descriptions regarding the case (and everyone in the courtroom), the case promptly settled.

With this non-exclusive list of recent stories involving professional pitfalls, it seems appropriate to add ”avoiding stupidity” to the list of topics at the next round of tech law seminars.

In the meantime, I recommend reserving use of your computer for the really important things, like fantasy baseball, searching for new music on Pitchfork, or watching that Jimmy Kimmel-Ben Affleck video on YouTube.

Or, if nothing else, just avoid ever hitting ”Reply To All.”

Around the water cooler — Q & A with Ethan Trull

Each week we will pose these three questions to different lawyers in the legal community.

This week we talk with Ethan Trull, a litigation partner at Ungaretti & Harris who has been practicing for 19 years. His practice is mostly commercial litigation with an emphasis on securities, antitrust, products liability, and intellectual property litigation.

– What do you find most interesting about your practice?

Especially in litigation, technological change is a constant element. For example, remarkable advances in medical science have simultaneously resulted in brand-new causes of action, brand-new defenses and brand-new methods of proving both.

Similarly, the development of mass electronic storage of data revolutionized business, but now exists as one of the easiest litigation pitfalls for the unwary business (or its counsel who fails to give suitable advice on electronic data preservation and production). As technology becomes more advanced, affordable, and pervasive, legal professionals necessarily also have to become even more technologically proficient. Maintaining technical expertise in areas that affect my clients’ business is one of the most interesting and challenging aspects of my practice.

– What makes a good lawyer?

We’ve all worked with lawyers whom we consider to be “good,” and our positive assessment can spring from any number of quality traits. For example, many lawyers are good because they are exceptionally quick on their feet. Others seem to write effortlessly. Some lawyers have sufficient charisma to charm even the most jaded jurors and clients. Perhaps a tougher question is how to predict which lawyers may possess any of these good qualities.

Many employers heavily rely on academic credentials as their primary predictive tool, whether they are seeking in-house counsel or a prospective legal partner. Unfortunately, the same qualities that guarantee academic success do not always translate into real world ability. The better answer, I think, is to expect future success based upon practical track history and positive outcomes. In other words, in the practice of law, experience still matters.

– What is the biggest legal news, and what is its impact?

There is so much legal news nearly every day that it is nearly impossible to point to one or two things. Obviously the trend toward nationalizing firms continues which impacted, and in fact reinforces, my decision to rejoin private practice in one of the very few truly mid-sized firms left in the city. I read last week that in England an investor group has actually purchased a law firm and, in essence took it public.

I can’t imagine that happening here, but then again I never thought that a lawyer could get away with charging $1,000 per hour (and I suspect that in fact they won’t get away with it). It used to be the rare firm that had office outside of the United States. Now apparently every firm needs an office in Prague. Is that really what we need?

Around the water cooler — A book about cross-examination

Each week I profile a different legal happening or event. I solicit your thoughts and opinions on this topic.

The new book, “Your Witness: Lessons on Cross-Examination and Life from Great Chicago Trial Lawyers,” which was edited by Steven F. Molo and James R. Figliulo and published by the Law Bulletin Publishing Company, addresses how 50 prominent trial lawyers view cross-examination.

Two of the lawyers who contributed to the book are Jenner & Block Partners Chris Gair and Robert L. Byman.

Byman’s section, entitled, “Crossing with Technology,” described how technology sometimes improves cross-examination. He said in the book: “Our cross-examination, when assisted with a little technology, can become works of art.”

The best advice he has for those lawyers looking to improve their cross-examination, he said, is to ”get up on your feet as often as you can. It’s a talent that you can grow by doing more and more, but you have to start with some talent and do it … Read this book, go to courtrooms and watch people do it, and don’t try to imitate. Take snippets of the best you see and incorporate it into your own style.”

Gair’s section, is entitled, “Life Is Short - Take a Chance.” Gair said he wanted to challenge the conventional wisdom that exists about cross-examination.

The rules are just guideposts, he said. A lawyer sometimes asks a question he or she doesn’t know the answer to — based on his or her feel for how the witness is going, and because of a need to get the confession he or she wants.

Understanding a witness’s psychology can challenge lawyers because they may need to make a witness to look bad. This means understanding how the witness will approach the questions, he said.

“Another challenge is the cost-benefit analysis that you have to do,” he said. “Is it worth asking a particular question knowing you could get an answer that doesn’t help you …”

Around the water cooler — Northwestern International program

Each week I will highlight a different case or legal happening, and solicit your thoughts on the impact of it in the legal community.

Northwestern University School of Law is expanding its program in international human rights and criminal law.

Beginning in fall 2008, American lawyers will be able to enroll in the one-year graduate degree program that leads to an LLM in International Human Rights (HR LLM). Traditionally, only foreign lawyers were admitted to this Northwestern program.

The school’s LLM in International Human Rights is designed for lawyers (American or foreign) who wish to undertake an in-depth study of the norms and methods of international human rights law and its implementation in domestic legal systems.

The core courses include international human rights law, international criminal law, and a human rights colloquium. Beyond this, HR LLM students select from an array of electives relating to various facets of international human rights and international criminal law.

“Over the years, we’ve received a number of inquiries from American lawyers who were simply interested in learning more about this field or were in a position in their careers where they were looking for a career change …,” said Bridget Arimond, director of the LLM program in International Rights at Northwestern.

“By and large, American lawyers have not traditionally pursued advanced degrees in law … One of the reasons we are offering an LLM in international human rights is, it’s a valuable credential when American lawyers are looking for international jobs with the United Nations or an international non-government organization. When an American lawyer is trying for a position at an international institution, the American lawyer is competing with lawyers in other countries, where advance degrees are almost a customary credential.”

Northwestern is also launching a new joint degree program that will allow traditional law students to receive the HR LLM as well as the JD. The joint degree program requires an externship abroad with one of a number of designated international and hybrid criminal tribunals, foreign supreme courts, and international human rights organizations.

The new four-year JD/HR LLM program will provide students with an intense study of human rights law that could not be achieved in the normal three-year period of law school, with an opportunity to participate in a semester-long externship abroad.

Arimond said Northwestern is also opening up, on a very small basis, a master’s of legal studies on international human rights. The individuals interested in this program may not have a first degree in law, but they may have a working background in international issues, she said.

Around the water cooler: Q & A with Brian Murray

Each week we will pose these three questions to different lawyers in the legal community.

This week we talk with associate Brian J. Murray, who has been practicing for about eight years, all with Jones Day (other than clerkships for Judge O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit, and Justice Scalia of the U.S. Supreme Court). He focuses his practice on appellate and complex litigation, but also maintain a general trial litigation practice.

– What do you find the most interesting about your practice?

The variety. As the first member of our Issues and Appeals practice in Chicago, I find myself brought into all different kinds of cases, pending in state and federal courts across the country, to provide solutions to problems, which can change the entire complexion of the case.  Sometimes that means straight appellate work, whether after a final judgment or through some other earlier, creative route. Sometimes it means strategic motion practice, perhaps sorting out byzantine jurisdictional issues or raising novel legal theories.  And sometimes it just means confirming a trial team’s current instincts while planning for a future appeal.

In addition, I maintain an active general litigation practice, dealing with whatever comes in the door for the firm’s clients. Whether that means hopping a plane to Boston to argue motions in an MDL, deposing a retired father of the securities lending industry in some obscure Midwestern town, or just running down to divorce court to get an executive out of a jam with a subpoena, I’m never bored.

– What makes a good lawyer?

I think the best lawyers are great active listeners. Many lawyers can see a client problem and attack it  — that’s what we do, almost by reflex. But I find that really listening to what a client needs, and working with the client to formulate an action plan to achieve that — consistent with the client’s big-picture goals, budget concerns, etc. — can make clients happier than even the best result achieved without that dialogue.

I also think it helps to act reasonably and professionally. Especially in big-city practice, there are too many lawyers that go from “hello” to “sanctions motion” without even stopping to think about what they’re doing. Of course it’s important to defend a client’s interests aggressively. But being the biggest jerk in the room doesn’t necessarily lead to the best client results. To the contrary, though sometimes it can’t be avoided, it can dramatically increase the price of litigation when everyone stands on their rights and fights everything tooth-and-nail.  Keeping the profession civil is not just a good ethical aspiration — it’s also good client service.

– What is the biggest legal news, and what is its impact?

In my line of work, perhaps the biggest legal news is the apparent inability of the U.S. Senate to confirm federal judges. There are currently over 50 vacancies, and the problem is especially acute for the U.S. Courts of Appeals.

The politics involved go back a long way, and the responsibility for the delay is shared by both sides. But while the politicians grab headlines complaining about nominees’ views on abortion, gay marriage, or the like, what they don’t seem to understand is that those issues are such a miniscule fraction of what appellate courts do. Most of their work is sorting out everyday disputes for regular Americans, like many of our clients.

And it’s in those cases, like the mundane contract or ERISA or social security dispute, where people are paying the price for the Senate’s delay. The Fourth Circuit, for example, is down to two-thirds of the active judges it should have. And in places like the Sixth Circuit, it can take over a year from the filing of the final brief in an appeal to get an oral argument. It’s reached the point where the wait alone can change the entire dynamic of litigating or settling a case, totally apart from the merits, and that is unfortunate. Our elected leaders can, and certainly ought to, do better.

Around the water cooler: Firm’s wellness program

Each week I will highlight a different case or legal happening, and solicit your thoughts on the impact of it in the legal community.

In 2007, average employer health insurance premiums increased by 6.1 percent, according to the National Coalition of Health Care.

However, with the inception of a firm-wide Wellness Program, Ungaretti & Harris’ annual premium increase for 2008 was under 3 percent — an improvement over the double-digit increases the firm had experienced in the past.

At this time last year, Ungaretti & Harris rolled out a Wellness Program to combat the rise in cost of health-care premiums. The Wellness Program aimed to do so by motivating and rewarding employees for increasing their level of physical activity, participating in health-screening tests, practicing healthy behaviors and expanding their health and wellness knowledge.

A Wellness Committee was formed to implement the program.

The Wellness Program was launched with the distribution of pedometers and materials that included exercise tips, nutrition guides and logs, general health-screening guidelines, blood pressure information, and healthy recipes.

Also included was information on the Wellness Rewards Program designed to help employees keep track of their healthy activities, which can then be submitted for points toward rewards like $100 health food store gift certificates, fitness equipment, or free healthy lunches prepared by firm chefs.

Throughout the year, yoga and Pilates classes were offered and held at the firm’s Chicago office for employees at a discounted rate. Attorneys and staff learned from guest presenters who led “Lunch ‘n Learn” seminars on topics ranging from general health tips, nutrition, safety, and exercising tips from a trainer- all while dining on complimentary healthy lunches.

Julie Treumann, an associate and co-chair of the wellness committee, said they hoped the wellness program would reduce insurance claims, create an environment where people are conscious about their health, and bring the staff and lawyers together through this effort.

Treumann said the firm also offers legal advice to those clients who are also considering starting wellness programs. Certain legal issues exist involving things like waivers, financial rewards, and contests.

“It has been really successful,” Treumann said about the firm’s wellness program. “And it’s been kind of fun to see how many people get involved.

“Even when we look at other companies doing similar things, we are at the forefront, especially for law firms in Chicago.”

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