Inside Litigation Management

May
24
2022
If the opposing party or counsel had a misimpression during settlement negotations that adversely affected their bargaining power, would you correct it? The ethical rules do not necessarily require that you do so. This 2022 study found that attorneys with high moral character, as determined by personality tests, are less likely to view negotiation as a game to win. Attorneys that do view negotiation as a competition, however, are less likely than their peers to correct mistaken impressions or disclose information to opposing counsel. Lawyers are, for obvious reasons, prone to view their roles as adversarial, but doing so may cultivate dishonesty and other unethical behavior.



May
24
2022
In this article, Paige Griffith discusses fee structures in the context of small firms or solo practitioners, listing pros and cons of hourly fees, flat fees, capped fees, and contingent fees. Griffith urges attorneys to experiment in order to find the right fee schedule for their specific practice, as well as the right cost for client and lawyer alike.



May
23
2022
Legal technology has advanced rapidly in the past two years, accelerated by the COVID-19 pandemic and the resulting shift into online litigation. Here, Nicole Black discusses new software aimed at virtual court appearances, with special acknowledgment of AI court transcription programs that have the ability to create certified records in days, rather than the typical weeks.



May
19
2022
Daniel Vallone is a director at More In Common, a nonprofit that studies political polarization. In this article, Vallone argues that American society is less divided than many believe, and he outlines how a better understanding of polarization and American identity can benefit attorneys during the voir dire process.



May
17
2022
In March of this year, the U.S. Department of Justice filed for sanctions against Google as part of an ongoing antitrust lawsuit, alleging that Google coached its employees to copy in-house counsel on business emails for the purpose of shielding correspondence under attorney-client privilege. In the emails under controversy, employees copied in-house counsel, labeled the email as “privileged,” and included a form request for legal advice; however, in roughly 140,000 instances, the copied attorney never responded to the request. Though District Judge Amit Mehta called the practice “eyebrow raising,” he also expressed doubt that Google engaged in sanctionable conduct.



May
16
2022
Remote practice is still new and challenging, and sometimes screens seem to erect barriers between attorney and client. This article by Gabrielle Gesek gives tips on how to communicate with clients at a time where face to face meetings might not be possible and how to convey information efficiently while still insuring that the client feels valued and comfortable.

https://www.americanbar.org/groups/young_lawyers/publications/after-the-bar/professional-life/building-meaningful-client-relationships/

May
16
2022
In this article, Dave Edelheit urges General Counsel to transform their legal departments, leaning into artificial intelligence and other digital initiatives. Edelheit acknowledges that transformation may cause short term disruption but argues that the return on investment is high enough to justify any temporary inconvenience— with the right tools, a legal department can increase productivity while cutting costs to the company.

https://www.todaysgeneralcounsel.com/transform-your-legal-department/

May
12
2022
Litigation Management, Inc. is a legal data company; this article promotes case management software as an efficiency tool, listing six areas where case management technology can benefit a law practice. The article also gives tips on how to evaluate software and choose amongst them.

https://www.lmiweb.com/article/6-benefits-case-management-tools-litigation-and-how-vet-service-providers

May
12
2022
Reorg is a financial intelligence company. In 2020, Reorg launched its Legal Billing Rates Database, designed to monitor and compare attorney hourly rates. As of now, the database is limited to Delaware and the Southern District of New York. It is an excellent example, however, of litigation data put to use; the tool allows attorneys to set competitive rates, and it may also be useful to corporate counsel intending to hire outside the legal department.

https://www.lawnext.com/2020/05/launching-today-legal-billing-rates-database-enables-benchmarking-by-firms-and-clients.html

May
10
2022
Depositions, like every part of the litigation process, have gone remote during the pandemic. Here, Melissa Romanzo counsels attorneys to prepare a stipulated protocol agreement before conducting depositions online— something to address practicalities like format, attendance, and exhibits while the standard rules may not apply. Though negotiations may take time and effort, she argues, they might also limit conflict once proceedings begin.

https://www.americanbar.org/groups/litigation/committees/expert-witnesses/practice/2021/preparing-a-stipulated-protocol-to-govern-remote-depositions/

May
9
2022
In this article, Elizabeth B. Juliano advocates for Online Dispute Resolution (ODR) as a supplement to traditional methods of Alternative Dispute Resolution (ADR). In an overburdened, backlogged justice system, ODR has the capacity to increase efficiency while limiting costs. Though there are drawbacks to virtual dispute resolution, there is also potential.

https://www.lmiweb.com/article/evolution-benefits-and-challenges-alternative-dispute-resolution-and-online-dispute

May
4
2022
Hon. Sunil R. Harjani is a federal magistrate judge seated in the Northern District of Illinois. By his own calculation, he reads hundreds of settlement letters every year, and in this article, he gives advice on how to write a good one. Often, he notes, a settlement letter is his first introduction to the case, so it pays to make a good impression.

https://www.americanbar.org/groups/litigation/publications/litigation_journal/2020-21/spring/writing-effective-settlement-conference-letters/

May
4
2022
What do clients really want? Charity Anastasio writes that some clients want a measure of control over the process, opening a gap in the legal market for self-help solutions like smartphone apps, educational blogs, and self-published e-books. Anastasio also suggests tools like chatbots and document assembly software, with specific recommendations among the available options.

https://www.lawpracticetoday.org/article/what-clients-want-how-to-help-clients-help-themselves/

May
3
2022
In this article, Mitchell A. Chester writes that the COVID-19 pandemic has created a backlog of pending cases so extensive that it will be a very long time before the legal system returns to normal. To move those cases forward, he argues, attorneys should embrace virtual jury trials and other technology-based solutions.

https://www.americanbar.org/groups/litigation/committees/access-justice/articles/2021/winter2021-confronting-mounting-case-backlogs-using-creative-strategies-and-virtual-jury-trial-technology/

May
2
2022
Remote communication is, understandably, on the rise in corporate spaces, and as more and more employees work from home, trade secrets become less and less secure. This article makes practical recommendations for companies that may need to protect their data, suggesting simple steps to take now to prevent theft and the litigation theft might provoke.

https://www.americanbar.org/groups/litigation/committees/business-torts-unfair-competition/practice/2021/ten-questions-remote-work-environment/?

Apr
29
2022
In this article, Mark Cohen writes that the legal industry has lost its unifying purpose and the trust of the nation. Legal culture remains insular, characterized by a commitment to the way things have always been, and perpetuated, Cohen argues, by law school methods and failures to diversify. Cohen urges attorneys to unify over a shared duty to steward justice— justice for everyone, instead of justice only for those that can pay the legal fees.

https://www.legalmosaic.com/is-the-legal-function-fiddling-while-the-rule-of-law-is-burning-the-case-for-an-integrated-response/

Apr
28
2022
In this three-page paper, jury consultants Jason S. Bloom, M.A. and Emily McDonald, Ph.D. write about the pandemic’s effects on jury selection and juror behavior. How has political polarization and a rise in global uncertainty changed the process? What type of jurors should attorneys expect to encounter? The authors anticipate an eventual return to the jury status quo, but argue nonetheless that for now, litigators must plan around an atypical jury pool.

https://texasbar.informz.net/texasbar/data/images/Sections/2021-2022/Litigation/Spring%202022%20TA/Bloom%20and%20McDonald.pdf

Apr
28
2022
Disengagement letters prevent ongoing obligation, protecting both attorney and client, and so it is best practice to send them at the close of a client’s matter. This article gives tips on how to write courteous, effective disengagement letters that properly terminate representation and prevent any lawsuits that could otherwise arise.

https://www.americanbar.org/news/abanews/publications/youraba/2022/0411/rules-of-disengagement/

Apr
27
2022
In this article, Richard Lorren Jolly evaluates remote trials, questioning the format's ability to ensure a fair cross-section of the community, guarantee fair and deliberate decision-making, and maintain the socio-political benefits of jury service. Jolly urges courts to fully consider the consequences of moving online, even in a time where doing is so is the clear and convenient option.

https://texasbar.informz.net/texasbar/data/images/Sections/2021-2022/Litigation/Spring%202022%20TA/Jolly.pdf

Apr
27
2022
Jurors aren’t supposed to seek answers online, but a study by the National Center for State Courts indicates that many of them would like to, with the highest percentage saying they want to look up legal definitions. The study also exposes an apparent misconception: though judges and attorneys tend to believe that jurors knowingly engage in misconduct, jurors themselves say the admonishments they receive are unclear, and they don’t understand the rules. The statistics in this article may alert attorneys to holes in their communication with juries and allow them to fill in the gaps.

https://texasbar.informz.net/texasbar/data/images/Sections/2021-2022/Litigation/Spring%202022%20TA/Trochesset.pdf

Apr
26
2022
In this article, Victoria Vuletich writes that though most attorneys want to be ethical, they often fall into lines of reasoning that can cause unethical behavior— for example, using a pattern of good actions to justify one bad action. She also argues that attorneys are, almost by definition, over-reliant on formal ethics rules. To practice in the right way, an attorney must acknowledge that the Model Rules of Professional Conduct merely set a floor for ethical behavior; living ethically may require more.

https://www.lawpracticetoday.org/article/making-ethics-decisions-beyond-the-rules-of-professional-conduct/?

Apr
26
2022
In this article, Christopher Roberts outlines his plan for resolving class action lawsuits in compliance with the just, speedy, and inexpensive requirement in Federal Rule of Civil Procedure 1. His first - and potentially controversial - piece of advice is to be open with opposing counsel, negotiating candidly for the right result; he also reviews class definition and settlement term sheets, providing a list of questions to answer in the document.

https://www.americanbar.org/groups/litigation/committees/class-actions/articles/2021/practical-tips-effectively-efficiently-resolving-class-action-cases/

Apr
20
2022
Artificial Intelligence (AI) is an innovative tool in the world of eDiscovery, capable of cutting time and cost. It is also, according to this article, limited by sampling error and human input, frequently misconstrued and subject to unrealistic expectations. Kanika Priyadarshi discusses what AI can and can’t do, as well as what it may do in the future.

https://www.everlaw.com/blog/2022/04/06/ai-hype-ediscovery/

Apr
19
2022
Litigation managers must consider venue as part of the overall strategy for the case. In this article, Molly Flynn, Kip S. M. McDonald, and Hannah Anderson review preservice or “snap” removals, noting that the practice has gained increasing legitimacy in federal district courts. The authors offer a four-step guide to planning and executing a snap removal, taking jurisdiction and documentation into account— a helpful resource for any attorney weighing removal options.

https://www.americanbar.org/groups/litigation/committees/corporate-counsel/practice/2021/tips-tricks-evaluate-prepare-your-case-snap-removal/

Apr
18
2022
The Internet is an excellent place to attract potential clients. Here, Annette Choti gives instructions on how to produce and distribute video content for social media or a firm website; video marketing may be a more effective tool than text articles for its ability to engage attention and express emotion.

https://www.attorneyatwork.com/video-for-law-firms/

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