Monday, April 8, 2013

Archived site:

This site is archived from the 2011 iteration of the "Digital Drafting" course as taught at Vermont Law School. 
This content was posted by me, Brock Rutter. I co-taught the course with Professor Oliver Goodenough. 

Saturday, February 19, 2011

Vermont A2J forms live

Thank you for still reading this despite my egregious lapses in posting.

I am happy to report that the Vermont A2J court forms are now live online.

Here is a link:

Wednesday, January 19, 2011

For Monday, Jan 24

Please read:

Cass Sunstein: "Of Artificial Intelligence and Legal Reasoning"

Marc Lauritsen: "Fall in Line with Document Assembly"

Susskind, Chapter 4

Links from today's class

In an effort to address a couple of loose ends that came up in class today, here are two links and observations from today's class:

Talking of automating legal processes / practice and some of the less desirable directions that could go brought to mind this cautionary tale. Some law firms seem to have developed a business model based on 1) finding defendants automatically (i.e. by screening the Web), 2) automating demand letters and law suits and sending a ton of them, and 3) usually setting the price of settlement at just about what it would cost to defend the case.

It is not always perfect. (Click on the PDF link near the bottom to see the actual demand letter.)

While we talked a little about ethics and lawyer use of new technology, lawyer use of e-mail was once controversial too. In the mid 1990s state bar associations released many different opinions about the issue. Here is one from 1997 when the Vermont Bar Association released an advisory ethics opinion approving of lawyer use of e-mail, primarily because e-mail technologies "appear no less secure than the ordinary fax or telephone communication."

Speaking of ethics - would lawyers not still have an ethical duty to "supervise" work that is done for them by computers? Assuming that the letter in the first example is as bad as some of the comments imply, should the law office that sent it be subject to sanctions?

Wednesday, January 12, 2011


Hi, and welcome back to VLS and welcome to the second offering of the Digital Drafting course.

To reiterate the reading, please read:

- Susskind, Chapter 1
- "What Can Information Technology do for Law" 21 Harv. J. L. Tech. 589
- "Parchment, Paper, Pixels" Peter Tiersma.

Please note that the last reading is a new addition. It is actually the first chapter of a book by the same name by Prof. Tiersma.

You are also welcome to review any of the material still up from last year. Most of it might make sense, but some might be answers to questions that came up in class that don't make sense without the context.

In a change from last year, you are also invited to post questions on this blog if you choose to. You can also post current events news or other relevant items.

Here are some links to some of the current event items we (might have) mentioned in class:

- Seravia
- LegalZoom (with many other links to follow too.)
- RadiantLaw
- Rio Tinto
- Pangea3

Wednesday, April 7, 2010

For Monday

For Monday we will be rounding up some e-discovery odds and ends.

Please read the following:

37(f) Safe Harbor and related spoliation issues
In re Krause 367 B.R. 740 (2007) - You can skip to page 765 and read to the end.
Arthur Andersen LLP v. United States 544 U.S. 696 (2005)

Court Holds U.S. Discovery Rules Trump French Law and Hague Convention
Gucci America, Inc. v. Curveal Fashion 2010 WL 808639 (S.D.N.Y.) (PDF)

Overreaching subpoena and statutory protections:
In re Subpoena Duces Tecum to AOL
(18 U.S.C. 2703)

Tuesday, April 6, 2010

Prelitigation expenses

There was a question in class on Monday about legal holds, especially in the pre-litigation phase. Basically, the question was - is there any relief from the expense of a legal hold, particularly in a pre-litigation situation? Does it really happen that companies are stuck disrupting their usual practices for a long time when there is a danger that litigation might occur? If so, is this fair?
I struggled with the answer in class, but basically stuck to the "yes" side - Yes a potential litigant has to hold on to relevant information no matter what.
That's basically the case now. As an extreme example, take Adams v. Dell. Dell received notice in 2005 that Adams was thinking of suing the company based on alleged patent infringement happening roughly around 2000 and before. Dell argued that the date for the legal hold should have been the receipt of the demand letter in 2005. The court held that, for a number of reasons, Dell should have known sometime in 1999 or 2000 that a suit was likely.
E-discovery and legal hold expert John Jablonski suggested in an episode of ESI Bytes that the case might be an anomaly, or that one of the defendants might have rubbed the judge the wrong way.
Even if the temporal limits of a litigation hold can be rather tough, there are some things a potential litigant (probably the defendant) can do.
In the same podcast, Jablonski touted the importance of carefully constructed litigation holds. He said a common misstep is to over-preserve, successfully avoiding sanctions, but spending a ton in the process.
"A legal hold with a narrow scope is probably the best way for defendants to save money," he said.
Using IT staff and a "data map" parties (usually defendants on this end of it) can make an argument why a limited legal hold was suitable. To take an example I'm making up, if a case involved events at the San Francisco office, there might be no need to preserve from the New York office. With more precision, a company could get even more specific, down to the level of "John Smith's emails from April 2006." The company would need IT staff or someone knowledgeable to testify as to the efforts it had taken and basically how it would be impossible for relevant e-mails to be missing.
Using a "scope analysis" a company could tailor its litigation hold to a level sufficient to avoid sanctions, but hopefully not wasteful. Of course, there will still be some balancing involved as to what the right level is.
The Sedona Conference (not binding, but pretty persuasive) also has a document called The Sedona Conference Commentary on Legal Holds. The Commentary lists a number of "Guidelines" to be considered when crafting a legal hold. Guideline 7 states: "In determining the scope of information that should be preserved, the nature of the issues raised in the matter, experience in similar circumstances and the amount in controversy are factors that may be considered."
This question brings up issues of proportionality in e-discovery, which could open the door to wide-ranging policy debates of the type hinted at in our reading from Monday.
The answer to what a reasonable response is might not be the same for every litigant either. In another ESI Bytes podcast, on proportional e-discovery, Judge James Rosenbaum (Dist. of Minnesota) differentiated between "professional defendants" (think railroads, chemical companies, insurance carriers), and others. Companies that have been through litigation with an e-discovery component before, he said could reasonably be held to a higher standard than individuals or businesses that have never been in such litigation.
Bear in mind also that if there are going to be sanctions for spoliation the mental element needs to be satisfied. (See Zubulake IV Section II "Legal Standard"). Up through and including reckless, the party seeking a spoliation sanction still has to prove that the destroyed evidence would have been relevant. Only at "willful" does it become presumed that "spoliator's mental culpability itself evidence of the relevance of the documents destroyed." (Some state courts apply a different standard playing around with the mental states a bit.)
There has also been some controversy between companies and their insurance carriers about what pre-litigation expenses should come under their insurance policies. This could include litigation holds.
Since e-discovery is a world populated by so many vendors, there are also many options for for companies that want to apply software in-house to reduce legal hold and e-discovery costs. (See here, and here).
Finally, in the first podcast noted above Jablonski mentioned that defendants (usually the ones subject to the legal hold) have been agitating at the policy level for changes to the FRCP that might make their load easier, such as perhaps pushing back "trigger dates."

Monday, April 5, 2010

E-Discovery resources online

If you think e-discovery is interesting at all, we have only scratched the surface. The law is still developing very quickly. I get a lot of my information from the web. Here are a few suggested sources:
- This pocket guide for judges is helpful.
- There are a number of electronic discovery blogs. Two good ones are:
- EDD update
- Electronic discovery blog
- Craig Ball is a lawyer and electronic discovery expert whose web page is full of useful information.
- Finally, ESI Bytes is a good all-purpose page. I mentioned this one early in the semester because I like to listen to the podcasts. You can also get to the podcasts through iTunes.

I'm sure there plenty more out there, and since this is just a very quick overview, if you are interested at all, you might want to do some of your own hunting.

Monday, March 29, 2010

Readings explanation

Here is a recap of what we have asked you to look out for in the readings for next week.

- Use of a special master / officer of the court to handle forensics
- Recoverability of deleted information
- Note who is paying the cost.

Zubulake I
- Seven factor cost shifting test
- Use of a sample of backup tapes.

Zubulake III
- Search method used
- Cost issues
- Application of cost-shifting test

Zubulake IV
- Trigger date - When did the duty to preserve arise?
- Standard for adverse inference

Zubulake V
- General listing of UBS discovery violations
- Adverse inference

We will pick up the 2006 FRCP amendments and the 2009 VRCP amendments later (We probably won't get to them Wednesday.)

The Pension Plan of The University of Montreal case linked below is not required reading. It is, however, the latest development in e-discovery law, dealing with the timing and execution of litigation holds.

What Every Lawyer Needs to Know About Computer Forensic Evidence

Here is the other paper, "What Every Lawyer Needs to Know About Computer Forensic Evidence"

E-discovery links

Some links as we start talking about e-discovery are:
Zubulake I
Zubulake III
Zubulake IV
Zubulake V

Here is a link to the 2006 amendments to the FRCP, with a lot of attention given to e-discovery issues.

Vermont 2009 amendments, largely based on federal amendments.

The latest important case - also from Judge Scheindlin: "Zubulake Revisited"

One more older case: Playboy v. Welles

Tuesday, March 16, 2010

Defining the practice of law

Part of our discussion yesterday had to do with the question of what exactly is the practice of law. This has never been an easy question. The ABA tried and failed to put forth a model definition of the practice of law. The Model Rules prohibit unlicensed practice, but do not attempt to define the term "practice." One has to turn to the official comment to get the guidance that "The definition of the practice of law is established by law and varies from one jurisdiction to another." (Official comment to Rule 5.5)
If you look at the following definitions from various states, some by statue (maybe even some by rule - I haven't read all 51), you'll see they do vary quite a bit.
It isn't necessarily something one can know by "smell test" or "gut feelings." I can think of one time when I complained to a practicing Vermont lawyer about how people tend to ask law students (or recent graduate friends) annoying legal advice questions. I never want to answer those questions. I see possible liability - especially since I am still not admitted to the Vermont bar (although I will be March 31, 2010). However, the lawyer said I should be fine answering casual legal questions for friends because I was not doing it for money. Look at Vermont's definition based on In Re Welch in the link above. I sure think one could violate that one without charging any fees. In Alabama (just to pick a random example from the top of the list), it seems like you might be okay if you don't appear in court or charge a fee. (Anyone want to be the one to test that?)

Tuesday, March 9, 2010

Open data, open government

Structured and machine-readable data can help governments open up to public participation. Washington D.C. is a prime example in the United States. The city releases 428 data sets, ranging from vacant property, to purchase orders, to almost-real-time crime statistics. The data are delivered in a variety of formats (XML, KML, RSS, and others on a dedicated city Web site.

Developers can take the data and do what they will with it. One example is Stumble Safely that takes continually updated crime information and combines it with the location of bars and night spots to help revelers plan a safe night out. Information can also flow the other way. Award winners in a recent Apps for Democracy community edition contest was a program that allows iPhone users to place service requests to the city through the app, Fix My City DC. The app takes advantage of the city's first-in-the-world open 311 API. The system is an API (Application Programming Interface) - that is a program that lets other apps and programs talk to each other. In this case it allows app users to plug right in to the city's 311 system (for non-emergency service needs, as opposed to 911.) The app also takes advantage of other iPod features such as the ability to submit pictures of that monster pothole that are automatically geo-tagged with the exact spot.

I heard about this and other open-government initiatives at the launch conference for the University of Ottawa's Centre for Law, Technology and Society. One of the speakers, David Eaves, was detailing a list of crowd-sourcing and Web 2.0 friendly initiatives in that city. Among these were an app that lets users know in advance when their garbage pickup is (since Vancouver rotates its schedule.) Another new idea is using the Web game Foursquare to monitor how busy bus routes are, adding new buses on the fly if a given route is overloaded.

Another speaker was Daniel Schuman of the Washington, D.C. Sunlight Foundation. Schuman talked about some open government issues in the United States. He linked the issue to the recent Citizens United decision, claiming that if the flood of money into politics cannot be held back, at least it can be monitored. Schuman was enthusiastic about, a site where the federal government is releasing much information, sometimes in structured (XML, etc.) format. He cited two recent success stories, both involving Congress. The Sunlight Foundation has been able to cross reference data for lobbyists and members of congress to find instances when they have not always matched. Another project mapped the business interest of member of congress. (The main link seems to be having trouble right now. I believe the data behind this story came from the project.)

When government releases information in structured format, apps can be built to tie right into it. In Vancouver this has been made possible by the city's embrace of open-source software and sharing as much information as possible in open standards. (See here.) As you can see from the site here in the U.S., some of the American federal data is available in such structured formats (and D.C. has those 428 data streams). I asked Eaves and Schuman about standards in the data they get from governments and got two different answers. Citizens in Vancouver have been fairly successful at getting the government to release information in structured format. Schuman said that while that would be best, the Sunlight Foundation often has to settle for old fashioned paper or PDFs that someone else then has to code in to whatever system they are using.

One obstacle that had to be overcome for Vancouver was legal language that Eaves said screamed "Go away!". He showed a slide of proposed language from the city's license to use its open data. It had lots of clauses and disclaimers that were scary looking to the user. Eventually the city settled on less-scary sounding terms of use and a Creative Commons license asking only that credit for the information be given to the city of Vancouver.

Wednesday, March 3, 2010

Data wranglers?

Our discussion in class today made me think of the related concepts of information overload and the lawyer's job as data wrangler (I think I made that one up.)

I'm offering this Wired magazine article as a further addition to our XML conversation, particularly the parts to do with XBRL and SEC-mandated reporting.
Here's a neat excerpt from Wired:

"But the volume of data obscures more than it reveals; financial reporting has become so transparent as to be invisible.... Undoubtedly, the warning signs of our current crisis - and the next one! - lie somewhere in all those [securities] filings, but good luck finding them."

However, this theme of information overload is going to be a recurring one in the rest of this course and in our lives. We'll talk about it more especially when we discuss e-discovery.

But just think about how much more information there is out there now. It holds true on any level, whether its computer storage space. I remember the first time I heard of a 100GB hard drive thinking it was ridiculous. Now 1TB (terabyte) is no big deal. I won't be surprised when 1 PB (Petabyte) rolls around in a few years. This is also true for the ever-increasing tide of SEC filings. We are also consuming more information ourselves, as this study (among many others) attests. What will be the effects?

In a more business-oriented context, the special report at the center of this week's Economist magazine is on "The Data Deluge." I haven't had a chance to read it yet, but I look forward to it. I also encourage you to think about what this information explosion means to the future of lawyers and if there is anything to my "data wrangler" idea.

XML in legislation

Legislatures and governments have been using XML in a variety of ways. One way would be to actually draft legislation in XML. This is discussed in an American context here.
Another way is to use XML as a means of promoting open government. This is discussed here (beginning on page 119).
There is also some very interesting stuff going on in Europe right now using XML in a multilingual setting where multiple drafts are needed of multiple versions of bills in many official languages. See here.

Tuesday, March 2, 2010

General counsel should choose firms that use document assembly

Post from Law Department Management blog here.

My starred Google Reader feed

A few weeks ago I decided to try something new, and I linked my starred Google Reader feed on this blog. (It's on the right hand side near the top.)
I star articles for a number of reasons. Sometimes it is because I run out of time when I am reading them and want to be sure to return to them. Sometimes it is just because they are amusing. Sometimes it is because I hope to comment on them or link them from this blog.
Many, possibly even most, of them pertain to topics covered in this class. Many do not.
One interesting effect is that I seem to be starring fewer articles (and probably fewer silly or amusing ones) now that I know there is a possibility somebody else could see my reading list.

More optimistic takes on expert systems in administrative law

The article by Danielle Citron of course highlighted some of the failures of expert system use in administrative law, such as awarding social benefits.
These two papers describe a somewhat different experience in the Netherlands. Although some problems are acknowledged and the author believes many bureaucrats have too much faith in such systems, the overall tone seems more optimistic.

The concluding paragraph of the article, by Marga Groothuis and J├Ârgen S. Svensson is as follows:

"Since the problem of juridically correct decision making under great pressure is a
more general phenomenon in public administration, and since the use of expert systems is now becoming more popular, these findings should be generalised. Although expert
systems may indeed support decision making, they will never provide full proof solutions and they will always be limited in their functionality. When the limits of such systems are not clear to the administrative bodies and to the individual users, there is the risk of overreliance. It is a further argument in favour of the view that people who use artificial systems should be made aware of the possibilities and the limits of these tools.[15] Administrative bodies too, should probably take additional measures to keep control over decision quality in fields which are not covered by such computer programmes."

The complete article is here.

Tuesday, February 9, 2010

How timely! Brand new article on A2J

I didn't know this was coming out, but this seems perfectly timed given that we are just starting to look at A2J. This paper, "All the Wild Possibilities: Technology that Attacks Barriers to Access to Justice" is just out and details the development of A2J.

Paragon Legal

This is the company I mentioned in class, but couldn't remember the name of then. Note the tag line "corporate counsel on demand." It's not explicitly tech-related, but still in that realm of changing approaches to the practice of law.

Legal Rebels profile of founder Mae O'Malley.

Getting started with A2J

If anyone was having trouble finding the information you need to get started on A2J, the place to start is here:
Download the starter kit. The PDF file found in the "Authoring Guide" folder is particularly helpful. You probably want to keep it as a PDF file (that is, don't print it) as it is rather large.
You should also check out the training modules. These are neat because they actually use little A2J interview files to show you how to make A2J files. It's a pretty easy way to learn because you can check back and forth to see if your's looks just like the sample one.
I will be available to answer questions about A2J after class on Wednesday and also via e-mail this week.

Technological conservatism

Someone asked question in class yesterday (Monday) about the possibility of clients sharing legal work as Susskind suggests might lead to a lack of variety or differentiation if one firm or lawyer's view becomes "the memo" or "the opinion" in a field.
Maybe. I tried to suggest that there might be a market for at least a few varieties, perhaps the "super-safe", "middle-of-the-road", and "really pushing it" versions for firms with different appetites for risk.
In any case, the question reminded me of a this article, "Technological Conservatism...". The author argues that the increased preservation of, organization of, and access to the past made possible by technology actually slows changes. Citing the greatly increased number of citations per brief or journal article, the author writes,
"Sources from the past operate as a “security blanket,” comforting and assuring lawyers of the present with the commendation of antiquity.The dynamic is mostly quantitative. Increasing the number of sources, and thus the amount of reliance on the past, is the apparent trend."
(The author cites, inter alia, a publication by Judge Posner claiming that the average number of citations per federal appellate opinion has increased from 12.4 to 27.2 between 1960 and 2007. Other works cited attest similar increases in citations as well as an overall increase in length of various legal documents.)

Monday, February 8, 2010

Easter / HotDocs knowledge base.

The HotDocs knowledge base seems to be in flux, probably because of the recent purchase of HotDocs so it is no longer a LexisNexis product. Nevertheless, there is still a lot of information out there, including strings of code for various functions. One of the more complicated is the calculation (below) to find the date of Easter in a given year.
I hope the knowledge base has been or will soon be set up elsewhere. However, you can still find lots of HotDocs information either elsewhere or by going to the Google cached versions of pages after you google them.

Easter (First Sunday after the Paschal Full Moon (PFM) date)

SET Century TO TRUNCATE( Year / 100, 0 )
SET Temp Var TO TRUNCATE( ( Century - 15) / 2, 0 ) + 202
SET Temp Var TO Temp Var - 11 * REMAINDER( Year, 19 )
IF Century = 21 OR Century = 24 OR Century = 25 OR ( Century >= 27 AND Century <= 32 ) OR Century = 34 OR Century = 35 OR Century = 38
SET Temp Var TO Temp Var - 1
ELSE IF Century = 33 OR Century = 36 OR Century = 37 OR Century = 39 OR Century = 40
SET Temp Var TO Temp Var - 2
SET Temp Var TO REMAINDER( Temp Var, 30 )
SET Full Moon TO Temp Var + 21
IF Temp Var = 29
SET Full Moon TO Full Moon - 1
IF Temp Var = 28 AND REMAINDER( Year, 19 ) > 10
SET Full Moon TO Full Moon - 1
IF Full Moon > 31
SET Full Moon TO Full Moon - 31
DATE OF( Full Moon, 4, Year ) + 1 DAY
DATE OF( Full Moon, 3, Year ) + 1 DAY


Exari is another document assembly software system. After a minute or two looking at this site, you will know about as much about as much as Exari as I do.
I suspect it is pretty impressive. From what I understand, Exari can handle very high levels of complexity.

Wednesday, February 3, 2010

Self promotion

This is me interviewing Richard Susskind at the Berkman Center last April. (About halfway down the page - audio only.)

If you have a long commute...

I do. I often use it to learn. Three podcasts I'm particularly fond of are:
ESI bytes - about E-Discovery.
This Week in Law - covers a wide array of topics and is very easy to listen to, and often has some humorous moments too.
ESI Report - another e-discovery one.

You can get to all three of these through iTunes too.

Legal Rebels

The ABAJournal Legal Rebels series is devoted to profiling lawyers who are "remaking the legal profession." So far, it has been pretty tech-heavy.
Two of particular note are:
Richard Granat
Ron Staudt

More document assembly examples.

This is the Wills for Heroes Foundation. Using HotDocs software, the foundation partners with state bar associations to prepare free estate planning documents for first responders.
I don't mean for our focus on pro bono / legal aid uses of HotDocs to imply that it is not also widely used in a commercial settings. The legal aid uses tend to be easier to find, so I have more examples of them.

We briefly looked at some material from the e-lawyering task force of the ABA. The task force's co-chairs are Richard Granat and Marc Lauritsen. Granat has several businesses going, including his own practice. He also runs, which offers a ready-made platform for those wanting to set up a virtual law office to do so. If you're interested, look around on the page. The blog usually has an evolving list of new virtual law offices that have recently opened up as well. As far as I know, the Directlaw platform uses Rapidocs, a competitor to HotDocs.

Stephanie Kimbro is a lawyer licensed in North Carolina who delivers legal services over the Web. She was honored last year at the ABA Tech Conference with the James I. Keane Memorial Award for delivery of legal services over the Internet. Kimbro Law's site also offers links to many other interesting pieces of information about e-lawyering.

Lauritsen, the other co-chair along with Granat is a founding member of Capstone Practice Systems. Capstone offers consulting and assistance to companies looking to implement document assembly and related systems. Capstone's partial list of clients is illustrative of the higher-dollar market for document assembly work. However, Lauritsen and others from Capstone are regulars at conferences where people working on projects such as the one I am working on discuss the latest in the use of technology in legal aid. Capstone is also on contract with LawLine Vermont and legal aid offices in other states to provide guidance with HotDocs and A2J projects.