©Kenneth G. Raggio1
Precis of article
The family law practitioner, whether in a solo or small firm environment, must utilize the technologies that until recently have only been available to large firms or at great expense. With the cost of equipping a full hardware and software suite being in the very low four figures, efficiencies rogranot previously available are now thrust upon the family lawyer who must2 utilize such to compete. The answers to whether such efficiency leads to a higher quality of life for the attorney, a higher level of service to clients, or a decrease in revenues, depend upon implementation. Some specific software and hardware solutions are discussed, with special emphasis on practice management and assembly processes that streamline the Matrimonial practice. However, technology is really just a means to an end. However, the rapid pace of technology is turning more and more of the lawyers’ profession into the business of communications. The traditional methods of communication, such as client conferences, Court hearings, trials, depositions, are beginning to be dramatically affected by the infusion of technology, and technology is beginning to extract great demands on the efficiency of communications. Moreover, new technologies such as the Internet have exponentially increased the opportunity and complexity of outreach to potential clients while not incidentally challenging our traditional concepts of privacy, privilege, and even ethics. This article will practically address some of these issues, from electronic communication to proof of same in evidence. The Thursday morning workshop will demonstrate many things discussed in the article.
I. A NEW MARKET PLACE
Technology has made it possible for small law firms–even sole practitioners–to have many of the tools formerly available at great expense to large firms available to help manage cases, conduct trial, catalog discovery cases, prepare for litigation, and to resolve cases either by settlement or by trial. Of particular interest to the family lawyer are three particular areas:
- Facilitating team approach to cases or other projects;
- Taking it all with you to court, to mediation, or another place;
- Staying in touch from wherever you may be.
A lawyer’s competency can only be enhanced by the office systems that support the lawyer. The first level is staff, second is organization, third is effective communication, and fourth is effective data manipulation. The unsaid but always present desire is that lawyer’s revenues greatly exceed expenditures and direct costs so that the lawyer can make a living. Technology should enhance this effort, not hinder it.
Competent staff is the single most valuable factor in the system’s mix. The other systems become as important as staff when volume of business or complexity of cases increases. Once systems have been established, it is usually much easier to ramp up capacity to handle either the “big” case or an increase in volume of cases.
Efficient back-office systems (billing, accounting, charge-back for costs such as copying, long-distance phone, FAXing system, etc.) can make a difference in the bottom line. Management can alert the lawyer (or the lawyer’s delegatee) of potential problems or concerns with enough lead time to remedy them.
As technology prices have dropped and power has increased, efficient lawyers have been able to produce their “product”3 at less cost, and competitive factors have tended to limit hourly rates attorneys can charge for services. Technology allows what used to be “customized services” in the Family Law area to now be programmed and formalized generally at less cost to the client4. The attorney who furnishes similar services at a lower cost finds that market forces will apply.
As other technologies mature (such as voice recognition software), many of the functions of lawyer/paralegal/secretary will become blended. As with many things in our business, results obtained and unit billing may be an appropriate way of billing. As these technologies become more compliant and user friendly, the reality of an automated Family Law Practice is achievable.
II. SOME ESSENTIAL TOOLS FOR THE FAMILY LAW LAWYER’S FUNCTIONING
A. Back Office.
Telephone, copier, fax, general ledger, legal timekeeping, tracking expenses (such as courier, overnight deliveries, charge for long distance, etc.) are all examples of vital functions, where the lack of a “plan” will greatly increase the cost of servicing these back office functions. However, discussions of such management issues are more for a pure law practice management seminar and are not further discussed hereafter, except as such directly affects the rest of the Family Lawyer’s technology arsenal.
In all but the very smallest offices, computer E-Mail (as well as telephone or computer voice mail) can enhance service to clients as an attorney and attorney’s staff can be more responsive to client needs.
E-Mail-Groupware serves as a valuable way of tracking projects, tasks, cases, people and other resources. Most E-Mail systems are adaptable to keep a running log of activity in a case so that employees who are asked can figure out how and where the ball is at a given time. While such a system will not approach the sophistication of a Lotus Notes data base system, it is generally more useful than a manual or word processing document based system. Groupware is the backbone of any effective automation of a family law practice.
Many clients–who are operating in the corporate world–are now demanding that communications be through E-Mail in their native E-Mail system.
Communicating with clients, Courts and others is covered later in the paper.
C. Producing Persuasion
We lawyers are wordsmiths, producing persuasion. Most of what we produce either to our clients, to opposing counsel, or to the Courts, is in writing. In the past few years, we have begun to utilize demonstrative evidence, as we realize that combining sight and sound has more impact and remembrance than words alone. Just as the word processors of the 1980’s transformed the legal world by allowing variable insertions in long documents, saw the rise of intelligent document generators, etc., in the 1990’s sees the integration of graphics, math, and other functions into basic word processing. And Windows’ DDLs (dynamic data links) allows updating of one data field to update all derivative documents that are linked to that particular data field, even if contained in another document. The software tools are more powerful and have more features than the lawyer will probably even need. Even though the Word Office Suite is more tightly integrated and has more of corporate America than Corel Perfect Office, Word Perfect still seems to more features targeted for the lawyers, such as sophisticated document-wide commands and the unique “reveal codes” option. The Word Perfect 8 Legal Edition is tailor made for the Family Law Practice. (Besides, still a majority of the legal market apparently uses Word Perfect 5.1-DOS.) It is the extra features of groupware, the linking of documents and data within documents, and outgrowing of obsolete machines and hardware that are finally leading the move in law offices to Windows–make that Windows 95 oops Windows 98.
- Persuasive Negotiations/Mediation
The days of appearing at a settlement conference or mediation with only a thin paper notebook and a hopeful disposition are ending. Just as in trial, these settlement efforts mandate that the lawyer combine sight and sound and use “demonstrative evidence” to make the point. Appropriate graphics can show the differences in proposals, variances in valuation, and effect and the setting of levels of support.5 High end cases now justify burning CD-ROM with selected and quite persuasive evidence that may help produce settlement. For instance, scanning a naked picture of the husband’s girlfriend along with a video clip of the husband’s deposition saying that he has never been with other women can help show what trial may be like to hard-headed litigants.6 Spreadsheets that can be updated instantly as offers and counteroffers and exchanged are becoming much more of the rule than the exception.
- Effective Trial Preparation
Effective trial presentation demands that the attorney combine sight and sound to lift the trier of fact out of the doldrums of proceeding that the case before it is “same old, same old”. A poster board with a chronology (time line) enlarged to poster size is effective. The same type of financial charts that were used in mediation can help distinguish your case before the trier of fact. Instantaneous retrieval of data (such as depositions, deposition testimony and document retrieval) is paramount to make timely impeachment of a straying witness.7 However, the practitioner must be aware that there are certain rules in using technology in a trial situation that may differ from other uses:
a. Be sure your depiction is accurate and fair. Watch out for the use of misleading baselines or scales in charts.
b. Don’t use color or glitch just because it can be done. Simple, clear charts are generally always better than complicated charts.
c. Be aware of the chance of a direct computer presentation “blowing up”, and either be real sure of your ability to pull it off (generally with a computer provider responsible for same) AND have a “back up system” in place, generally a paper based rendition of the demonstrative evidence.8
d. Final argument is a place where high tech can truly make a difference. The trier of fact and everyone else is usually tired and ready to get the case over with. Using high tech to capture the trier of facts’ attention one last time may be the persuading element in the case.
D. The New World of Research
On line services–such as Westlaw and Lexis–are dropping in prices. The availability and cost of research CD-ROMS–and the usefulness of the search engines on same–is increasing in power and usability as costs drop. What is relatively new is the ability of the lawyer to drop the lawyer’s entire knowledge in the family law area onto one CD-ROM disk, and take it to wherever the knowledge is necessary, whether settlement, mediation, discovery, or trial. Similarly, virtually all information in most cases (save and except video depositions, and extensive images) can generally be placed on one CD-ROM that contains the equivalent of boxes of documents.
The new research tool is the “Internet”. Even Lexis has a web product, perhaps in response to http://www.versuslaw.com. Major law libraries have become jump sites for searches that can produce sometimes startling information. The Net is changing daily but the trend of its use is expanding exponentially.
E. Summary of Resources
Reggie Hirsch’s article at http://www.yob.com about Internet Resources is excerpted (trashed??) below:
- Search engines
- Boolean Basics
- Family Law Related sites
- Electronic Library sites
- Electronic News
- Financial Sites
- Credit Information and The Fair Credit Reporting Act
- Mental Health Resources
III. SPECIFIC TECHNOLOGIES
B. Practice Management software
- Most leading practice management packages are “bigger” than a family law practice, i.e., were designed for larger practice situations than the average 1-4 attorney, 3-7 computer typical FL practice. But many of the packages are very well suited for the practice.
- Some packages are designed to make you work pretty much the way the software works. While this severely limits customization, it also gives the lawyer a polished paradigm with which to aspire and adapt the practice to the level of organization and features of the system. Some will nag you to do things on your lists.
- Some other packages are designed to give the user great flexibility in setting up how the system will work; unfortunately, many times at the cost of a steep learning curve and partial paralysis in deciding what features to implement in what fashion.
- Most packages have features that you will probably never use, unless you dramatically change your method of practice. Maybe that’s the point…
- Some of the products available include:
Perfect Practice, ADC Legal Systems http://www.adclegal.com/
Perfect Lawyer, http://www.perfectlaw.com/
PC Law; Alumni computer group, http://www.pclaw.com/
Summit, Computer Law System, http://www.clswin.com/
Time Matters, http://www.timematters.com/
Abacus Law, http://www.abacuslaw.com/
Amicus Attorney, http://www.amicus.com/
CaseMaster III Software Technology http://www.stilegal.com/
ProDoc SOS http://www.prodoc.com/
C. Amicus Attorney Pro/Team
- Very graphical interface.
Amicus seems to be rooted in MacIntosh and the idioms are very friendly and encourage even the lawyer-who-never-touched the computer to get involved. The typical icons of files, contacts, calendars, phone and time sheet are all recognizable and inviting. The file cabinet is a 3D version of a file drawer with various categories of files (active, billable, closed, special, etc.) The actual file opens like a folder, with the contacts on the left and notes to dos, etc., on the right. The calendar is in the usual daily, weekly or monthly format that is fairly standard in the industry.
- Fairly high level of structure
Unlike EccoPro or Time Matters, Amicus is fairly determined you do things in a fairly narrow range in adapting it to your way of practice. This structure is an effective barrier that keeps the attorney from spending lots of time setting up the program or making the system too complicated. It is possible to construct a “work around” to force a lawyer’s required feature into the system. For instance, the “notes” system in a file will not day or time stamp; however, if the user makes that default note a “file phone list note,” the system inserts a day and time stamp on the notes placed there.
- It makes you do what you need to do
Amicus, like most good PIMS reminds–even nags–you to do the things on your to do list and reminds you of appointments. Although the preferences can be set up to minimize the nagging, it is seen as a very useful tool. For instance, the clipboard or daily report that appears when you boot up in the morning reminds you that you may have not made a time sheet for the previous day–especially useful if you use Amicus as a front end for a billing system such as Timeslips.
- Nice, easy calendar
The calendar, which in the team version can schedule both group assets(a conference room) as well as all the timekeepers, is very easy to use. It invites even the most computer phobic lawyer to at least investigate if there is some other way to schedule other than the paper daytimer.
- Good contact listing
Amicus is set up to organize your contacts in a way that you can easily get all the contacts necessary place into a case file, while at the same time having the ability group the contacts by categories such as lawyers, experts, or referral sources. Each contact can have notes in the contacts’ file, and contacts can fit into several different groups simultaneously.
- Integration with Hot Documents, WordPerfect and Word
Amicus version 2.6.2 now ports and looks for links and ties to your word processor, and has accepted Hot Documents as its preferred document assembly engine. It also supports export to many billing systems, allowing the time keeping and phoning in Amicus to be delivered there. All these features increase the potential to reach the Holy Grail of automation: “write few, use many.”
- File synchronization with your notebook
Amicus team brings the file synchronization and practice management to the notebook computer. The user can “take his office with him,” work on it, and when plugging the notebook back into the office network, the software notes changes and synchronizes the databases.
The software does not appear to be set up to be the exclusive repository of all notes for a file. It does not appear particularly friendly to attaching documents or images to files (it refers a lot to the word processor) especially if there are huge amounts of notes. It is not set up to operate as an outliner such as Ecco. Even though it allows more than three billing contracts, only three appear when you set up a client. It is set up to have a maximum of three phones numbers for a client on the first client sheet (office, fax and E-mail) where most family law cases need home and office, faxes numbers and E-mail–perhaps four or five phone numbers. True, Amicus allows up to nine contact numbers on the three client pages allowed; and typically a family law case does not warrant going to the hassle of the second or third page just for one number. (You could put the fourth number in the notes section — another workout example.)
Finally, Amicus by design does not appear to allow a “China Wall” to be built around a case and allow only authorized eyes to see it. (A China Wall is that which is placed around an employee with the firm who used to be with a opponent’s firm that is handling the other side of the same case with your firm.
A potential conflict, but ethics opinions and courts are allowing a China Wall to be placed around the employee, which keeps the case in the office.) Once again, there appears a work around in Amicus, but apparently only by buying another software licence to open another “office”, and having this office password protected and restricted.
- Interfacing with Billing System.
Amicus has direct links into Timeslips and PC Law.
The cost for Amicus is “by the seat.” Each user has his or her own office(license) and each assistant requires another license to work in the attorney’s offices. Five users and five assistants can cost over $2,000.00. A single user can get the same power of the whole system for $300.00, but without the collaborative features of the Team product. Setup of a version 2.6.2 from a CD Rom was uneventful, however, the software expires if you do not send in the list of your “seats” to get licenses issued that are then installed in the administrator module. Setup was easy and painless.
Amicus is very easy to use, even for the computer illiterate senior partner. Amicus may be the best shot at getting such an intrenched bird to fly into the computer age.
- TimeMatters is a legal practice management system with the expected modules. It is available in both standalone and network versions. It has comprehensive functionality and a completely customizable interface.
- Opening Screens
When you first fire up the program, it gives you a list of “To Do’s” and Alerts– not only for yourself but for other personnel. The main screen then loads cascading Windows consisting of each of lists of cases, contacts, to-do’s, and events.
- Cross-Tying Information
TimeMatters allows you to work from both the contact (client, lawyer, court) side as well as a case side of the data files. Contacts and cases are automatically cross-tied once links are established based upon lookup tables and is fully customizable.
The Calendar view is day, weekly, or monthly; On a daily view the appointments for the day and the To Do List are spread horizontally across the screen. As with the whole idiom of TimeMatters, you can adjust the size by dragging the borders. In a network situation you can check any other users’ calendar by simply selecting their name from the list. Items marked “Private” on any persons calendar would show up as a block of time used but not the specific event. The calendar has a robust date calculator that can calculate dates for past or future events based on specified criteria. The user can also define grouped or linked events, such as case resetting affecting discovery deadlines.
- Case Customization
A “primary” screen for each of contacts and cases allows for customization of three “user” fields. A “secondary” screen allows for customization of ten user fields. In addition, most of the several default fields contained on the primary and secondary screens may be customized. Accordingly, TimeMatters affords an extraordinary measure of customizability which, of course, is unusual for a PIM, contact manager, or case/docket manager.
- Importing Data.
As with most other legal PIMS TimeMatters will import data from Gold Mine Act, Abacus as well as “ASCII Delimited”files. This means that you already have a contact list that you can probably import it and make it work within the frame of TimeMatters.
- Merging Field Information with Your Word Processing.
The formattable clipboard is a quick way to merge information in a case or client contact file into Word Processing documents using the formattable clipboard. You can associate any file in the system, whether it be e-mail, document spreadsheets, or scanned images with a contact or a case, and you can open the file in it’s native format nearly by clicking on it from the list. This is a feature that approaches Lotus Notes but is not as sophisticated.
- Synchronization With Palm Pilot.
All the leading Practice Management Systems now claim synchronization with the Palm Pilot. The Palm Pilot is the pocket sized organizer that really is the first product that can truly synchronize your Office Practice Management System with you on the go. Translated means you plug the Palm Pilot into your computer, take it off the court, and you have you complete schedule with you including all of your contacts (clients). When you set a hearing, you can see what your calendar is for potential conflicts after you have put it into the Palm Pilot you return to the office, plug it into your computer and it in TimeMatters synchronizes so that the data of the new setting gets into the system.
- Link With Timeslips and Other Billing Programs.
TimeMatters has also had a link with Timeslips for billing for a couple of years and it is very efficient. When you enter client information into TimeMatters it is also entered into Timeslips. When you finish an activity in Time Matters you can press the “Make Slip” button and a slip is actually created in Timeslips. TimeMatters also connects to Tabs Three which is the grandfather of all timekeeping systems that are used in Family Lawyers Offices. Similar to Amicus Attorney, TimeMatters has a link to PC Law for passing through time records for billing and accounting purposes.
Single User License: $350.
Three Users: $450.
Five Users: $550.
Each additional Five Users :$350.
E. Document Assembly Software.
- Description of the market
Everyone seems to be in the document assembly market just as practice management software seems to become more refined than the general purpose personal information managers (PIM’s). The trend is for forms in specialty areas of practice to be packaged with the assembly engine so much of the work of setting up a document assembly system has already been performed. While no slight is meant to other packages the package demonstrated here is an example of a specific system that is highly tuned to help automate the family law practice, and in an example of what is the general trend in the market place.
- Vendors are numerous and many have state-specific products. Check for vendors in your jurisdiction that may have great products for your state. Some vendors include:
West Fast Forms (Texas) http://www.westpub.com/
Matthew Bender Interactive Drafting System http://www.bender.com/
ProDocs, Automated Legal Systems http://www.prodoc.com/
Lawgic (California) http://www.lawgic.com/
F. Matthew-Bender’s Interactive Drafting System
The State Bar of Texas Family Law Section, beginning with the first advent of the Texas Family Code thirty years ago, has promulgated what have come to be viewed as “semi-officia”l forms; at least, the language in the suggested form is often utilized by a judge to settle a drafting dispute between lawyers. California as well as Texas has some specific rules for format and content of document filed in family court as do most states. The Texas Family Law forms are licensed by vendor such as Matthew Bender, and then combined them with relevant questions in Hot Docs that makes for an easy-to-use, efficient pleading builder. Since Matthew Bender used a run time version of HotDocs the user has more ability to fiddle with the questions and assembly process those with some assembly engine such as PC Docs.
Matthew Bender also links its drafting system its with research treatise on a CD Rom as well as case law so that the attorney has the ability to drop in custom language from case law or a treatise in addition to the standard boiler plate for pleadings. Version 2.0 makes this very easy, having research very close to the forms.
ProDoc has a comprehensive collection of template libraries in areas other than Family Law. It insulates the user from having to deal with much more than answering questions to assemble several documents in a case.
To assemble a document in ProDoc the user first specifies a specific client or case. Start the assembly process by choosing the volume (in our case Family Law) and selecting a template. Once a template is selected, ProDocs has the user answer questions on how to build a document. ProDocs will be demonstrated along with Matthew Bender, IDS, on Thursday morning.
H. Spreadsheet/ Support calculators.
A significant portion of a family law practice deals with financial calculations. In fact the first family law specific software were the calculation packages from years ago is use to calculate alimony, child support, and taxes. These products have continued to grow in sophistication and easy of use and have increased their penetration in the practice. In fact, in some courts calculation software is become the defacto standard in court proceedings where financial matters are involved, especially in states such as California.
- Tax Ramifications for Division of Property/Tax effect of Alimony.
Financial software has become irreplaceable in doing the analysis of the after taxes basis of assets where the recognition of the tax gain is certain enough as to not be speculative and therefore in properly considered in the final evaluation. Specialty software packages such as The Divorce Planner by Finplan (800/877-2108) have been around for years and have evolved as the need’s of divorce lawyers have also changed.
Specialized Inventory Software
Products such as G&B Consulting Divorce Inventory Software(PO Box 803101, Dallas TX 75380) and perhaps even Owl Software’s Divorce Inventory for Windows (515 N. Velasco, Angleton, TX 77515) are actually highly developed word processing templates using mathand inserts into fields to construct both the sworn financial statement of a party and the comparative analysis of both parties’s statements and then calculate the changes in a suggested disposition of property. Most products of this type require that updates ( of property additions, deletionsor modifications) be made in the “engine” before they are available to the “report,” which is the actual Inventory or comparative anaylsis.
- “Low Tech” Spreadsheets.
One can easily use the spreadsheet that comes with the OfficeSuite or the math function of the wordprocessor to construct useful and easy to produce financial documents and exhibits, if one does not wish to utilizes the power of the commercially available templates or specialty software packages. The demonstration may show the easy of constructing such as a settlement sheet in Word Perfect in just a few minutes. Whether the utility of using such simply made homemade spreadsheets and templates diminishes with the complexity of the case is an open question.
H-1 Custody scheduling Software.
The new product in this area is KidMate, which makes it very easy to graphically plot out the child possession schedule for your clients or in settlement. You could do the same thing with inexpensive, mass market programs like Calendar Creator Plus, but it wold be a fair amount of work. Both products have been reviewed in the Tools of the Trade column the the ABA Family Law Section’s Family Advocate magazine. Kidmate is starting to slip into the Family Courts throughout the country, just as support calculation software swept California and other alimony states a few years ago.
I. Other useful Automation Nuances.
Automation is not just a ” box” if you buy and put into the office. In addition to the major components discussed earlier in this paper, there are little things that can be done to increase the efficiency the family law practice.
- Certified mail printer.
If you add up the cost of your staff’s preparing and sending certified mail manually you will see that the sending just a few pieces of such mail in a week justifies setting up dedicated printer using prepaid certified mail forms. The costs are not great, as worth the effort in the experience to set up to acknowledge the forms have been perfected by our brethren in collection, bankruptcy, and foreclosure practices. There is even competition amongst stationery publishers in both the impact printer laser printer portions of the market.
- Management of Client information/Client Directories.
We utilizes a directory on our server for each client, and further have sub-directories for pleadings, and correspondence in the more complex cases. Keeping all of the client information and documents in one place is quite handy when porting a case to a trial notebook or in closing out of the case to electronic archive. Although practice management software, document assembly packages, and document management software all want to fight over where such documents reside, word processing macros can automate and insure the client documents end up in the correct place.
Consider a removable hard disk drive such as a Jaz (in addition to tapes) for daily and for incremental backups, as well as client archives. A whole bunch of closed client files can fit on a Jaz disk with very fast access. If a client’s file is truly closed, it can be also be moved easily along with many others to a CD Rom that you record with your CD Rom recorder.
- A Backup Server.
Besides having backups of the data on your server, you might wish to have a backup server that replicates functions and mappings of your production server. Our backup has a license for fewer users than our production server, but would be useful if the production server went down. You need to have A-B switches for the printer cables coming out of both servers, so that the effort to switchover from one server to the next becomes turning on the server and flipping the printer switches, and then perhaps retrieving the latest incremental data backup.
- OCR (All Optical Scanners)
While optical scanning documents into editable form (via Microsoft Word or Corel WordPerfect) matured into a reliable ,means of input during the 1990’s, voice input has only recently become worthy of consideration as a tool in the law office. A software scanning tool such as Caere OmniPage Pro or Xerox TextBridge Pro, when used in conjunction with a HP ScanJet or the equivalent, is essential for the family lawyer who frequently is compelled to create responsive pleadings on short notice. Both OmniPage Pro and TextBridge Pro — so long as properly configured for your scanning application — deliver highly accurate text. Configuring entails establishing acceptable confidence levels for recognizing text, and whether only certain portions of a page should be scanned, and whether format should be sustained. Occasionally, image contrast and other physical features should be adjusted to achieve sufficiently high recognition performance.
- Voice Recognition
Voice input became a reality once the discrete speech recognition engines of the late 1980’s and early 1990’s were superseded by the continuous speech recognition engines of the late 1990’s. Unlike discrete engines which required users to artificially pause between words, continuous recognition engines such as Dragon systems’ NaturallySpeaking enable users and, indeed, encourage users to speak normally– in a natural manner. The availability of powerful, relatively inexpensive desktop computers have enabled the continuous speech recognition engines to function in near real-time. A significant development for the law office is the incorporation of the Dragon engine into the WordPerfect Legal Edition.
- Naturally Speaking
Once Naturally Speaking has been installed, you must train the software to comprehend your words and phrases. Training is achieved by reading excerpts from Clarke’s 3001: The Final Odyssey or from Barry’s Dave Barry in Cyberspace. As a bridge to this training function, the user is encouraged to provide select documents so that NS may become conversant with usage behavior and idiosyncrasies. A dictionary consisting of more than 200,000 words is used to build a customized vocabulary of 30,000 active words. New words or specialized terms may be manually added to the active vocabulary. NS actually grows wiser the more that you use the engine and refine the speech recognition as appropriate. Using “Select-and-Say” syntax and dictation shorthands, you may input verbiage faster than you can type. Commands are automatically distinguished from dictated text. Provided that the sound-card is properly configured and matched with a high-quality, properly placed mouthpiece, superb results may be attained.
- How do you know if it works?
Unfortunately, a user must try one or more of the various programs to really decide which is more appropriate for use. Many manufacturers offer demo disks; some computer stores such as Comp USA, have fully functioning demos of software (generally mass market software) at their showrooms. Internet-distributed, full-version software calls for payment only if you use it after the stated trial period (Actually, much of this software is “crippleware”– stuff that will quit running if you don’t pay up and buy the key to remove the expired date code.) Finally, full factory versions are available that die if you don’t license them.
- Time v. Money
One can spend time practicing law, or setting up systems to automate the system of practicing law. Some systems that may be worthwhile to automate for a large “wholesale ” practice may not be as useful in a “boutique” practice and vise versa, one must recognize what ones practice is (or will become) to choose the appropriate tools to help automate that practice. One also wants automation to help lead to higher quality of life.
K. Protect Your Computers!
Previously discussed was the importance of backing up data on computers. No less important is protecting your computer and network from computer viruses and recognizing the Y2K problem.
There are thousands of viruses that could “infect a P.C., either through downloads of software, modem, from the Internet, from receiving an e-mail with an attached document or from installing software from a floppy or CD-Rom. One needs to get one of the leading anti-virus programs, install it and update it to protect one’s assets.
It is hoped that the Y2K10 problem may not affect the Family Law practitioner too heavily, as hopefully by that time all equipment (fax machines, telephone systems, voice messaging, as well as computers, printers, AND with software) have been updated so that they are compliant. A rule of thumb is that any DOS based program will go nuts on January 1, 2000, thinking that it is January 1, 1900 besides having a consultant come check out your office for the Y2K bug, there are resources, including free PC Diagnostic tools at http://www.righttime.com/ and http://www.nstl.com/ to check your system out.
A more difficult problem to trap is called the “embedded chip problem, ” which is the random striking at our automated society by logic chips that are (for now) an insignificant part of our machinery–from elevators to VCRs to FAX machines to circuit boards in computers. No one really knows what these little guys will do when pressed at the Big Event. Hopefully nothing will happen. There are a series of key dates of which we need to be aware, notably 9-9-99 (default prison release date for lifers or death row imates), 1-1-00, 2-29-00(super leap year), and 01-01-01. Disruptions on any of these dates could be a precursor of what might happen in our own little offices. The State Bar will have a program on Y2K in December, and the author’s paper is called The Half-Idiots Guide to Protecting the Small Law Office from Y2k.
IV. ETHICS AND ELECTRONIC EVIDENCE
The Information age is placing significant challenges to our traditional methods of dealing with clients, the Courts, the public (as well as with each other) due to the new ways of communicating. There are new issues that arise as the trend in many parts of the business world is towards the “paperless office”– with virtually all data being stored electronically. Issues of procuring discovery and presenting same as evidence have become more problematic. The following section will discuss these issues.
V. ETHICS IN AN ELECTRONIC WORLD
It generally held that the lawyer must take reasonable steps to preserve client confidences. The fact that much more communication is by e-mail, or by other electronic form mandates that certain issues be addressed.
The attorney must take reasonable steps to preserve the attorney-client privilege and client confidences. All of us are aware of our duty to keep client’s files and information out of public view in our offices and to be careful of what we say. But what about when you send out e-mail to the client? Doesn’t a copy of the e-mail reside on your service provider’s mail server if you use a service provider such as America On-Line or other provider? Doesn’t e-mail go through perhaps a handful of other “servers” before finding the recipient, with the chance for interception all along the way? Is sending e-mail a waiving of attorney-client privilege?
The standard that is developing is that it is reasonable for an attorney to have an expectation of privacy in e-mail sending and/or receipt of e-mail. The State of South Carolina reversed its prior ruling saying there is no expectation of privacy with e-mail in11. This supports that current trend, which treats e-mail no different than documents put in US Mail: they could be intercepted, but it doesn’t happen very often. No Texas Family Law attorney wants to be a test case, so consider using a standard header on e-mail to clients similar to that sent on your fax cover sheets–that is intended only for the recipient, notify us if you erroneously receive it, and return it to us. However, the standard is evolving that the lawyer, if he were to be having communications involving truly sensitive client matter should use an encryption program to secure the communication. Variations of PTP, the standard in encryption software are becoming more user friendly to set up and to use.
The prudent lawyer should:
Advise the client of the risk associated with the use of e-mail and obtain the client’s consent to its use.
Do not use Internet for a truly sensitive communications.
State on e-mail messages that they are privileged communications.
Use encryption where clients are comfortable with it.
Exercise common sense and due care before hitting the send button.
- What About Erroneous Receipt of Privileged Information?
The Texas Supreme Court In Re: Meador (announced April 14, 1998) the ethical duties of a lawyer who inadvertently received privileged documents to keep from being disqualified after inadvertently receiving the confidence of an opponent the Court would look at facts such as whether the attorney knew that the materials were privileged, the promptness in which the attorney notifies the opposing side of his receipt, the extent to which the attorney reviews and digests the information, the significance of the information, the extent to which the sender was at fault for the unauthorized disclosure, and whether the sender can show that his sending of the material was “involuntary”.
The Meador opinion adopts the ABA’s Ethics Opinion 92-368 outlining the tennents stated above.
- Practical E-mail Considerations
Use signatures wisely. A signature text that is appended to an e-mail when you reply should contain information such as firm name, street address, phone, fax, website, disclaimers that the message doesn’t constitute legal advice and low confidences are created. Use blind carbon copy (bcc) to send out a broadcast message where the blind carbon copy recipients who the message and cc’s are addressed to but not the other bcc addresses. This could allow you to send a broadcast message to clients. Consider using a filter to remove “spam” from your mailbox. A filter allows you to filter out certain words or phrases that appear in certain places in the document. For instance many e-mail solicitations contain the phrase “If you want to be removed from this list” you could put that into a filter so that all junk mail with those words would be put into your junk mail file.
- A Duty To Do Research on the Internet?
In Whirlpool Financial Corp v. G N Holdings, Inc.12 the 7th Circuit stated in dicta that knowledge is imputed if information is available on the Internet. Practical translation husband swears that shares he got for less than a penny a share in a small private company are worth no more than a penny and he would be happy to take his 150,000 shares for the $750.00 he paid for them. A net search just on the name of the company found a well developed Web page for this supposedly worthless company, which during the pendency of the case went public at $10.31 a share. What if wife’s attorney had accepted husband’s representation?
The next question is to what level must one conduct research? A Florida Appellate Court in Skelton v. Martin13 held that a title company relying on the electronic records of a title but not the hard copies on file committed negligence, implying that there is a limit to relying on electronic sources.
It is therefore a practical rule to rely upon results found on the Internet and not necessarily rely on the lack of records. In the live presentation, the presenters will demonstrate how using the same search terms on different Internet search engines will produce wildly different results.
- Legal List Servs
The Internet is far more than using search engines to find responses to your queries. For lawyers there are several legal oriented List Serves that are quite useful. A List Serve is an e-mail package where you send to the List Serve and your message is distributed to all members on that list. The leading list for Family Law attorneys is: email@example.com, which is the List Serve sponsored by the American Bar Family Law Section. Discussions abound are both practical and are cane aspects of Family Law. There is a collegiality adventure of dealing with attorneys not only from Texas but from all over the country about issues of common interest. The Famlawesq List Serve is limited to lawyers who are members of the American Bar Family Law Section they are becoming the leading national discussion group for Family Law attorneys. See http://abanet.org/family for more information.
There are several commercial groups around the country that specialize in divorce items, both for attorneys and for the public. For instance, http://www.divorcenet.com/ has over four million hits a month, mostly from civilians, (not divorce lawyers) users, wanting to go into “chat” rooms, but also by a lot of attorneys looking for information about another state’s law or national thing such as Qualified Domestic Relations Orders, Mediation, Taxation, and Asset searches. http://www.divorceinfo.com/, and http://www.divorcesource.com/ all have the state and specific and general Family Law and divorce information. For a more complete listing of Family Law specific materials accessible to the Web see: http://raggiolaw.alphasixty.com/other-resources, and http.//www.Yob.com for Reggie Hirsch’s list. http://www.texlaw.com/, which is the on-line service of the Texas Lawyer, has both free and member-only areas.
V. ELECTRONIC EVIDENCE
- Philosophy Behind Document Request
The divorce practice produces chances for creative sleathing in both divorce and conservatorship cases. There are many reports of “Cyber Affairs” where a spouse has a love affair over the Internet. There are incriminating e-mails that may be stored on a home or office computer and may be determinative to of a disputed point in a case. These new trends of the 90’s coupled with the general trend that business in general is heading towards less and less paper means that ones document request need to be able to “mine data” from computer databases.
- Document Request in Discovery.
The Standard document request should add to the Request For Production ” all data stored in electronic form” and should also include a request for the software to reduce such information to tangible form (this software is usually called Report Writing Software). Tex. Rule Civ.P. Rule 166b 2.b incorporates this as being discoverable following the Federal Rule of Civil Procedure 34 first adopted in 1970, with cases holding “it is now axiomatic that electronically stored information is discoverable that under Rule 34 of the Federal Rules of Civil Procedure that otherwise meets the relevancy standard prescribed by the Rules”14 The failure of Defendant to produce the “coding information” to process the data to reduce it to tangible form was held sanctionable. In Fautek v. Montgomery Ward & Co.,(96 FRD 141 ND IL 1982).
A document request should also always request a copy of the entities document retention policy and its methodology for archiving and backing up data. Responses to these requests will often lead to the recovery of documents that are otherwise truly unavailable (the data in the computer database has been changed, expunged, or deleted) but unrelated to the firm’s record retention policy, the computer department (or a vendor) made a back up of a computer or removed a computer from service that contained the requested information.
Generally this kind of search is not involved in the routine divorce and may be viewed as burdensome to the responding party without a fairly strong showing of relevancy.
However, in the big divorce cases another issue arises as to the production and retention of a litigation data base. Questions of work product must be addressed in addition to who will have access and in what form the data can be accessed by the parties. It is beyond the scope of this paper to go into detail in the litigation support software other than to point out that local firms do tremendous business scanning and coding documents for litigation and databases for lawsuits. Unless the family lawyer has completely converted to a image document system, establishing an extensive litigation base is probably best left to outside consultants in firms that specialize in doing same.
- Admissibility At Trial of Electronic Discovery
All such records in electronic form must, comply with the rules governing admissibility including authenticity, identification and the best evidence rule. They must also pass the Rule 802. Heresay Rule by being one of the Rule 803 exceptions, or exceptions to heresay under the Rule 902 (10) Business Records Affidavit, or Rule 1006 Summary of the Voluminous Writings. The Rule 803(1.) Presence Sense Impression exception is defined as a statement describing or explaining an evident or condition made while the declarant was proceeding the event or condition or immediately thereafter, and is a big gateway to admissibility.
VI. COMMUNICATING WITH AND OUTREACH TO CLIENTS AND POTENTIAL CLIENTS
- Ever since Bates vs. Arizona opened the floodgates to lawyer advertising there have been a much roaming about both of solicitation of clients as well as bar rules regulating them. Although Internet Website Communication is subject to the same Texas Rules of Disciplinary of Professional Conduct § 7.02, as print or broadcast solicitation there is a fundamental difference in specie with most traditional marketing done by lawyers. Typical marketing is by saturation “broadcasting” either in electronic media, the yellow pages, or more focused in specialty publications, charity events, or through prior clients and contacts. An Internet Web site is different in that the user–the potential client– must use fairly exacting search terms to be able to access your site, because typing up a single word in a search such as divorce may produced hundreds of results.
- Content is King on a Website
Essentially, you want to have content on your site that is useful to your intended audience.15 Minimize graphics that take a long time to load — remember not everybody has a fast connection. The workshop will demonstrate some law firm sites of interest as a overview of the process.
- Can You Do Your Website Yourself?
Yes. You can do it yourself. The question is whether you want to invest the time into doing it. One good way to avoid the development hassle (but not the expense) is to have the Web page professionally designed with you having the ability to make updates and changes on the site and add materials as desired. For instance, this article was in a very specific format. It was saved in the word processor (WP8) to “html” format, put into a Web editor (MS-Front Page) and loaded on the www. raggiolaw.com Website. It would be equally easy to put The Firm’s Newsletter or other items of interest up onto the Website in this same matter.
The power of a Web site to communicate with clients and potential clients can not be under estimated. Although much of this market is quite price sensitive, it is clearly the method of outreach to clients with exponential growth potential.
- Client Satisfaction Surveys
VII. WORD PERFECT 8 LEGAL SUITE–ALL YOU MAY EVER NEED
- The New Leader
Word Perfect, long the leader in law office word processing has put together the Corel Word Perfect Legal Suite that contains probably all the software that the small family law practitioner will ever need. The modules included in the Word Perfect Suite include the following:
– Enhanced Corel Word Perfect with an enhanced document compare feature
– Nex Law (Document Management and
– Multipage Clipboard Software)
– Cite Link 1.0 (Auto Citation MarkingSoftware)
– HotDocs 4.1 (Document Assembly)
– Corel Amicus Attorney 2.8 (PracticeManagement)
– Black’s Law Dictionary Lexicon(Legal Words for Word Perfect’s Spelling)
– Dragon Naturally Speaking
– Quattro Pro 8 (Spreadsheet)
– Presentations 8 (Presentation/Slide Show)
– Paradox 8 (Database)
This product is truly exciting and awesome for the Family Law Practitioner. Some of the programs included are “lite” versions of the software where the user must pony up more dollars to get the deluxe version.
However, the Word Perfect Legal Suite is unbelievable bargain. It will be demonstrated at the workshop.
- Integration and the Microsoft Problem
When Word Perfect was under Novell’s ownership, it languished and Microsoft Word took off like a rocket. Microsoft Word is now firmly entranced in over 90% of business world. Many larger law firms are converting to Microsoft Word despite it being a inferior word processor, just to be compatible with their client’s office systems, because clients are beginning to insist on electronic delivery of documents back and forth. Having documents transferred in its native format prevents some problems with both text formatting and version control that may be lost when translating from one word processor to another.
Another problem with office integration and case management systems (that is hopefully solved in the Word Perfect Legal Suite) is the fact that all of the programs (whether HotDocs, Amicus Attorney, Timeslips, etc.) all want to be the “top dog” in control of the data. For instance, use of Matthew Bender’s Interactive Drafting System( as well as ProDocs) requires that the data be entered in the document assembly packages database instead of using the same data contained in the case management package such as Amicus or TimeMatters. Amicus and TimeMatters looks at it the same way, so there are two different data bases of client information that don’t talk well enough. The vendors all swear that they are working with the other vendors to get the integration, but they aren’t there yet. But Amicus being included in the Word Perfect Legal Suite gives it a definite step up.
Some question the viability of Corel Word Perfect in a market dominated by Microsoft, but it appears that many lawyers will not easily part with the “reveal codes” feature of Word Perfect that is unparallel in any other product.
Technology is here and must be used. It is not something as static as it was even a decade ago. One should plan for a planned obsolescence of systems within a three-year period, but making sure that the backbone (data format) used are upwardly compatible with the next generation of hardware and software is important. Even though the family law practice is more “face-to-face” than most other areas of law, the era of the virtual lawyer with the virtual office-(where most information is transmitted and stored electronically) with fewer in-person contacts, becomes more of the reality. The tools described in this article all help make the practice more efficient.
We will all continue to seek the Holy Grail of “Write Few[times]-Use Many[times]” in our quest to automate theFamily Law practice.