Posted by Chris MacNaughton on Mon, Jan 11, 2010
When we send an email, whether it's to a friend, colleague, or client, we expect that the email will arrive, uncompromised, to the intended recipient. We also expect that the email will not be redistributed to others without our consent. However, once we hit the send button, the message is largely out of our control. Will it arrive as intended? Will hackers intercept the message? Will the recipient keep the message to himself? How secure are your emails? How can you be sure that your message won't be altered and recirculated? How can you maintain data integrity and confidentiality?
It's becoming increasingly common for individuals to append a confidentiality clause or disclaimer to messages. An example of such a clause is:
"Any information contained in or attached to this e-mail is intended solely for the use of the intended recipient(s) and may contain information that is confidential or legally privileged. If you are not an intended recipient of this e-mail, please notify the sender of the delivery error and then please delete and destroy all copies and attachments, and be advised that any review or dissemination of, or the taking of any action in reliance on, the information contained in or attached to this e-mail is expressly prohibited."
While it's smart to include such a disclaimer, it's even smarter to use digital signatures and digital encryption tools to protect your confidential e-mail messages. In fact, depending on the nature of the email message or regulations governing your firm, your messages may need to be encrypted in order to comply with regulations such as HIPAA, SOX, or GLBA.
Various technologies are used to encrypt email messages and digitally sign messages. Regardless of which technology your firm uses, the idea is that an encrypted message can only be viewed by those holding the "keys" to unlock it. An encrypted message is scrambled before being transmitted. Your recipient must have the "key" in order to unscramble the message. This is usually done through the use of digital IDs which verify an individual's identity through a third party vendor. Once each individual has obtained a digital ID, they send each other digitally signed messages which add the individual's digital ID to the contact's information in the email program. These digital IDs are also known as "public keys" and can be shared with the general public.
Sharing each other's "pubic keys" may not sound terribly secure. However, the public key is only half of the equation. When you want to send an encrypted email to a person with a digital ID or public key, you would use the provided digital ID or public key to encrypt it. The individual holds a second key, which is never shared, that deciphers the message. In general, the keys are set up on the individual's computer in their email programs and a pass phrase used to open the message.
Once the digital identities have been established, it becomes possible to send encrypted messages to one another. This ensures that your message is only viewable by the intended recipient. If a system administrator stumbles onto the e-mail in the system, the administrator cannot view it. If a hacker intercepts the message, he cannot open it. If a co-worker sneaks into your office, she cannot open the message unless she knows your secret pass phrase.
Adding a digital signature to your emails is also an excellent way to establish that the email is really from you and not from an imposter. For example, if you're concerned that someone might set up an email account in your name and then pose as you, start digitally signing your messages to establish which emails are definitely originating from you and which ones are questionable. Likewise, receiving digitally signed e-mail messages from your colleagues and clients ensures that what you are receiving originated with those individuals.
Encrypting and digitally signing messages is a bit clumsy to set up at first but well worth doing to ensure data integrity and confidentiality.
Posted by Chris MacNaughton on Mon, Jan 11, 2010
Identity theft, parodies, and copyright infringement have quickly made their way into the Twitterverse, bringing with them legal implications and cause for concern. Not only does Twitter, and social media sites in general, make it possible for imposters to spread misinformation or damage reputations, companies are concerned with their intellectual property and logos.
Sports stars and celebrities have been concerned with Twitter identity theft for a while now. After all, anyone can create a Twitter user account and pretend to be whoever they want. For example, go into Twitter and enter "Oprah" into the Find People link and you'll see a slew of wannabe Oprahs including the real "Twitter verified" Oprah (@oprah) as well as users who are clearly imposters with name variations, assorted punctuation marks, and misspellings. Most use pictures of Oprah as their avatars. And it works. Some of these imposters have tens of thousands of followers!
So, what's wrong with creating a fake celebrity account and pretending to be the celebrity in question? What's wrong with using someone else's image as an avatar and then tweeting as if you were that person? These are rhetorical questions as we all know that doing so is wrong. But a question of right or wrong doesn't bother Twitter identity thieves. And they don't only target well-known celebrities. Baseball coaches, newspaper reporters, and students have all been victims of social media identity theft. Whether the intent is "a joke" or outright cyberbullying, Twitter imposters have caused harm to their victims.
Twitter has been experimenting with a "verification" feature to let users know if a Twitter user is really who that user says he is. Currently, this feature is used on a case-by-case basis, primarily for prominent users such as celebrities and politicians.
On the other hand, parody accounts are allowed on Twitter. Twitter's impersonation policy states the following:
"Impersonation is pretending to be another person or business as entertainment or in order to deceive. Non-parody impersonation is a violation of the Twitter Rules.
The standard for defining parody is "would a reasonable person be aware that it's a joke?" An account may be guilty of impersonation if it confuses or misleads others-accounts with the clear INTENT to confuse or mislead may be permanently suspended."
The twitter account "@jackbauer" parodies Jack Bauer of Fox's hit show, 24. The account's bio says, "If everyone listened to my instructions, it'd be called '12'." Does anyone believe that a television character is really tweeting? Not likely. Is there an intent to confuse or mislead? Not likely. This is an example of a parody account. It's a joke account that is allowed under Twitter's impersonation policy.
Just as impersonation and parody are separate, yet closely related, so are parody and copyright infringement. One of the tests between parody and infringement is whether the parody is clever enough to avoid confusion as to whether it is the original or a spoof.
Companies and individuals have filed lawsuits against Twitter for copyright infringement and identity theft. According to the Connecticut Law Tribune, Oneok, a natural gas distributor, alleged trademark infringement against Twitter after discovering an anonymous user using the user name "Oneok_i" along with the Oneok logo. The lawsuit was later withdrawn after Twitter closed the other account. Another lawsuit, filed by Tony LaRussa, baseball manager of the St. Louis Cardinals, was filed when LaRussa discovered an imposter who was tweeting using his identity. The account was suspended and the lawsuit withdrawn.
Impersonation, parodies, and copyright infringement are likely to continue as Twitter grows. While the medium is relatively new, these issues are not. Your thoughts? We'd love to get the discussion going.
Posted by Chris MacNaughton on Mon, Jan 11, 2010
LinkedIn, Twitter, Facebook, blogging, and other forms of social media are extremely popular with people from all walks of life including professionals. But what about lawyers, paralegals, litigation support managers, and legal secretaries? Should you jump in? Before you start tweeting about your piles of paperwork and what you had for breakfast, consider what you can bring to social media as well as what you can get out of it.
Your Professional Persona
No matter which social media platform you choose, as a legal professional, it's crucial that you pay close attention to your professional persona. While many bloggers and tweeters may go off topic or rant and rave about something, you are not a traditional blogger or tweeter. Keep your professional persona in mind with every word you type.
Your Area of Expertise
Next, center your social media conversations on your specific area of expertise and begin building a community around your platform. For example, if you specialize in estate planning, blogging about DUI laws is outside your area of expertise. Your followers are expecting helpful estate planning tips, not news about DUI laws. Think of about three core topics within your area of expertise and rotate your content based on these areas. For an estate planning blog, you might write about wills and trusts one week, health care directives the next, and probate issues the next week before tackling another will and trust issue and repeating the cycle. Over time, you will become recognized for your expertise in your chosen area.
Your Personality
While it's not advisable to tweet about what you ate for lunch, the occasional personal blog post or tweet shows that you are a real person, not a walking law book. Use care when posting personal entries and keep your professional persona in mind when you do. For example, which of the following personal tweets would be appropriate:
"Looking forward to reading Making Your Case: The Art of Persuading Judges."
"I think Oprah should avoid wearing red and should stick to less flashy colors."
What Can Social Media Do for You?
Certainly, you have a lot to contribute to social media. However, social media isn't a one-way outlet where you broadcast information to the masses. As you get involved in social media, you'll quickly discover that social media has many advantages including:
• Networking - You will be interacting with others, many of whom may be colleagues. As you share information through your blog, Facebook page, or Twitter, you will also be gaining information from others. This exchange of information gradually builds a community of like-minded individuals.
• Improve Communications Skills - Blogging and posting comments on social media sites forces you to brush up on your writing skills. Blogs and social media sites are not the place for legalese and academic writing. Instead, you must write concise, easy-to-understand entries.
• Give Your Firm a Face - If you are blogging on behalf of your law firm, you are becoming more approachable. Your potential clients may check your Facebook profile long before they make the first call for a consultation. By being mindful of your professional persona and focusing your social media efforts on your area of expertise, you will stand out as an approachable legal professional with the expertise the client needs.
Social media is a terrific tool for professionals from all industries when used appropriately. Keep your professional persona in mind at all times and frame yourself as an approachable expert. As you build your community and interact with others, you may realize another key advantage: new clients.
Posted by Chris MacNaughton on Mon, Jan 11, 2010
The offshore transcription offers come flooding in, promising professional legal transcription services at the fraction of the cost that you are used to paying. But should you use an offshore transcription company? While the cost savings are certainly attractive, outsourcing your legal transcription projects and placing your trust in a company located on the other side of the global has its pitfalls. Before you agree to an offshore transcription arrangement consider the downsides including lack of control over your data's integrity and security, language barriers, reliability, accuracy, and accountability.
Whenever you release data, its integrity is at risk. What types of internal controls and security measures has the offshore legal transcription service put in place to ensure that your confidential data remains uncompromised? How is the data transmitted to and from the transcriber? Is it encrypted? Are the transcription company's computers secure? What is the transcription company's privacy policy? Does the service handle the transcriptions in a secure facility or does it use work-at-home transcribers? These are but a few of the many questions that you must be concerned with when you outsource transcription, whether the transcriber is located across the street or in another continent. While an offshore legal transcription company may have a professional looking Web site with professional looking photos, unless you can visit the facilities in person, verification is difficult.
Language barriers are also of concern. The English language with all of its nuances is difficult enough for non-native speakers to master and transcribe accurately. Add in complex legal terms and the potential for transcription errors grows. Even if the final transcribed product is technically acceptable, language barriers can lead to other misunderstandings such as expectations and due dates.
Closely related is the issue of accuracy. How accurate are the transcription services offered? Will your final documents be free of errors or will you need to spend additional time correcting errors?
What about ethics? Are the offshore stenographers certified as legal transcribers or court reporters? Do they adhere to a code of ethics comparable to the same ethical standards expected of onshore transcribers?
A good legal transcription service, local or otherwise, must be reliable and accurate as well as secure and dedicated to protecting the integrity and confidentiality of your data. You need to know that the job will be done promptly, correctly, accurately, and on time - every time. Will an offshore legal transcription company be as reliable as a local one? Possibly. However, it's important to understand how the service you are considering operates. Is the service a small company with one or two transcribers? Is it a large company, operating much like a call center with hundreds of transcribers working on projects as they come in? If multiple transcribers are involved, will your law office be assigned its own transcriber? Can you request transcribers that have performed well for you in the past?
Finally, what happens when a problem occurs? Will you get the runaround or will the company step up and be accountable? What mechanisms are in place to confirm that your data has been received and is being processed? How will you be informed if there's a delay, or worse, a security breach?
While many of these same considerations exist when hiring a local legal transcriptionist, distance and language barriers tend to magnify the issues. Privacy laws and ethical standards also vary from one country to the next, making the question of security, confidentiality, and data integrity a major consideration.
Posted by Chris MacNaughton on Mon, Jan 11, 2010
An Associated Press article, Florida judges, lawyers must ‘unfriend' on Facebook, published on Saturday, December 12th, brought up an interesting topic: How ethical is friending for the legal profession? While the article discussed friending between lawyers and judges, another ethical consideration involves covert friending of witnesses and litigants. Whether you're using social networking to connect with your colleagues and peers or to gather information, you're in relatively uncharted territory.
Friending other Law Professionals
The AP article covered a November 17th ruling by Florida's Judicial Ethics Advisory Committee suggesting that online friendships, such as Facebook "friends" and "fans" between lawyers and judges could create an impression that lawyer friends may influence judge friends. An argument against the ruling brought up the point that the relationships are more like contacts and acquaintances.
The ruling specifically mentioned Facebook, extrapolating that it applies to other social networking sites. For example, the opinion said, ". . . the holding of the opinion would apply to any social networking site which requires the member of the site to approve the listing of a 'friend' or contact on the member's site."
The Judicial Ethics Advisor Committee concluded that it's okay for judges to interact with other judges and that lawyers can become "fans" of judicial election campaigns during elections. The overall tone of the ruling is that of caution. The article brought up these points:
• Judges and lawyers friending each other online can cause others to wonder if the lawyer will receive special treatment in the courtroom because of the online friendship.
• While judges and lawyers can certainly be friends, a public display may create an impression of impropriety amongst the public.
Friending Witnesses and Litigants
In addition to the controversy of friending judges, is that of friending witnesses and litigants. While it's unlikely that a lawyer would "friend" a witness, what about doing so covertly to discover evidence? What if a witness had a private Facebook profile that you wanted to explore? Is it ethical to friend the witness? What about having someone unknown to the witness become a "friend"?
The Philadelphia Bar Association Professional Guidance Committee published an opinion in March 2009 covering these behaviors. Several Pennsylvania Rules of Conduct were implicated in an inquiry about having a third party friend a witness covertly including:
• Rule 5.3 - Responsibilities Regarding Non-Lawyer Assistants
• Rule 8.4 - Misconduct
• Rule 4.1 - Truthfulness in Statements to Others
Rule 5.3 states the following:
With respect to a non-lawyer employed or retained by or associated with a lawyer: ...
(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; ...
Rule 8.4 states that:
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; ...
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; ...
Rule 4.1 states that:
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; ...
The opinion goes on to cover even more rule violations and discuss rulings covering the reach of rule 8.4. However, the above three rules provide sufficient guidance to make an informed, ethical decision.
What are your thoughts? Do you have online friends in high places? Is social networking addressed in your law firm?
Posted by Chris MacNaughton on Mon, Jan 11, 2010
Presentation software is coming of age in the courtroom. However, are you investing the time to create compelling technological presentations in the mediation room? With only about two to three percent of all cases going to trial, using presentation technology during mediation makes sense. While you may be sitting across a conference table instead of appearing before a judge and a jury, a computerized presentation delivers numerous benefits in mediation.
Benefits of Presentation Technology
Let's start with the numbers. Within 72 hours after hearing an oral presentation, research reveals that only 10 percent is remembered. A visual presentation improves retention to about 20 percent. Combined, an audio/visual presentation improves memory retention up to 65 percent. In mediation, you don't have to convince a jury, but you do need to present your case. Ensure that your information is remembered by using presentation technology instead of delivering a speech.
For example, instead of discussing a medical procedure, use your presentation software to illustrate how the procedure is performed, enhancing it with a voiceover and onscreen bullet points. The other parties in the room will be far more likely to understand the procedure - and more importantly, they will be more likely to remember what was discussed a few days later.
Another advantage is that once you've created your presentation, it is packaged and ready to go. Instead of telling everyone to flip to a page in a report or look at an exhibit, a simple click of a button displays the exact document or exhibit that you are referencing. No more awkward fumbling or delays.
Using Presentation Technology
Numerous presentation technologies are available ranging from Microsoft PowerPoint to technologies specifically created for the legal profession. No matter which technology you select, mastering it before you attempt a presentation in mediation or the courtroom is crucial. Not only must you master the software and basic design concepts, you must also master setting up the equipment and controlling the presentation in a live environment.
Start by planning your presentation, just as you would if you were giving oral arguments. Once you have an outline, start building the presentation in the software. If your law firm has a standard template for these purposes use it. For example, your law firm's logo and color scheme may already be built into the template, making for a professional-looking background and consistency throughout the firm. If you're starting from scratch, be conservative with colors, fonts, backgrounds, graphics, sound effects, and animations. You want your message to come across, not the software's bells and whistles.
Common Presentation Mistakes
Common mistakes to avoid include:
• Cramming too much text onto a single screen
• Relying too heavily on visuals and forgetting to combine spoken elements. Remember that oral remarks or visuals alone have dramatically lower retention rates than when combined.
• Selecting difficult-to-read fonts or font sizes that are simply too small. Choose a san serif style font such as Helvetica or Arial.
• Choosing a busy background. Not only do patterned backgrounds add clutter to the screen, they also make it more difficult to read the text. Choose a solid, unobtrusive colored background or a subtle gradient.
If you're not technically savvy or if you are uninterested in the actual creation of the presentation, consider getting professional design help. If your law firm has a graphic designer on staff, ask for help or hire a designer.
Practice, Practice, Practice
Finally, practice! Not only must you practice delivering the actual presentation, you must also learn how to set up the equipment and use it. Practice setting up and using equipment as well as delivering your arguments. Practice advancing the slides manually, launching videos, pausing the presentation, and displaying evidence.
When properly applied, presentation technology can be extremely effective in mediations. Viewers are more likely to remember your message after viewing an audio/visual presentation than having heard it without visuals. Make an impression by incorporating presentation technology into the mediation room.