February 19, 2018

Enhance Your Brief With Visual Aids

Have you ever tried to describe a fence in a brief? How about a photo lineup, a property line, a crime scene, a trademark, a scientific process, a patent, a timeline, a trail of money, a web of subsidiaries, or a comparison under a multi-factor test? You have options. A picture is worth a thousand words. So use a picture and lower your word count.

Rarely used yet always appreciated are visual aids like charts, maps, diagrams, and pictures.[1] Some concepts are easier to understand pictorially.

Simple visual aids are best. Remember, visual aids are substitutes for less effective main text. They should be simple and self-explanatory. If they need explaining, they are not working. For example, do not describe a scene and then include a map that matches the description. Just use the map.[2]

If you are new to visual aids, do not fear. You do not need to be an artist or computer wizard. Although you must use care when designing the aid, it need not be elaborate or artistic. As you will see below, many are basic and occasionally even hand drawn.

Finally, even if the visual aid is part of the record, include it in the brief rather than just citing to the record. Keep the brief a cohesive unit with all the information a court needs to decide a case.

Here are some opinions that use visual aids effectively. They show courts using them for three reasons: (i) to orient a reader or visualize the scene, (ii) to make a comparison, and (iii) to summarize facts. Each example includes the paragraph introducing the visual aid.

Using Visual Aids to Orient a Reader/Visualize the Scene

Example 1: [3]

Busch also concluded that the trajectory of the bullet holes caused by the initial shots to both Baldwin and Turley were consistent with a shooter being located by the barstools and that the shots could not have been made by someone coming out of the men’s restroom. First, the bullet that caused Turley’s wound was found in the tavern’s east door. Had the bullet been fired by someone by the men’s restroom or walking along the south wall (as Ogryzek testified), the bullet would have had to change its course almost 90 degrees after striking Turley to end up in the east door. The diagram below reflects the tavern’s layout and locations of Marcia Woolley, Turley, and Baldwin at the time of the shootings.

Example 2: [4]

The following diagram shows the approximate relative relationship of the properties that we have described above. This diagram is for illustrative purposes only, and it is not drawn to scale.

Example 3: [5]

The court ordered that a deed transferring a right-of-way for a road from Digor to the county be reformed and that the defendants among others be permanently restrained and enjoined from interfering with the county’s or the public’s use and possession of the property described in the reformed deed. We affirm.

On December 1, 1953, defendant Digor filed a plat signed by him in which a proposed road across his land, represented by the segments A, B, C, and D in the diagram below, was designated ‘Digor Drive.’

Example 4: [6]

This writ of error presents a rather knotty problem and arises from the fact that a house was so constructed as to encroach about 2 feet on an adjoining lot. To aid in an understanding of the entire matter, there is set forth below a diagram, not to scale, which when considered in connection with the balance of this opinion will hopefully bring the dispute into focus.

 

Using Visual Aids to Compare

Example 1: [7]

¶ 42 And even if (1) defendant’s identity as the perpetrator of the crime had been at issue; or (2) modus operandi evidence were admissible in cases other than sexual assault or domestic violence cases to prove the crime’s actus reus, we would nonetheless conclude that evidence of the February drug deal was not admissible to prove defendant’s modus operandi. When we compare the February drug deal with the May drug deal in the chart below, we see that, although the two drug deals were similar in some respects, they lacked the striking similarities and distinctive methodology that the law requires to show that both drug deals were the handiwork of one perpetrator. . . .

Example 2: [8]

Figure 2 compares the Hawg sealed bearing pack (Figure 2a) and the Newsco sealed bearing pack (Figure 2b).

. . .

Fifth, a defense expert compared the Hawg design to designs that had been publicly available at that time. One of these was illustrated by U.S. Patent Application Pub. No. 2003/0015352 fig. 1 (filed July 17, 2001), which we compare to the Hawg design in Figure 3.

Example 3: [9]

When Baig saw a billboard advertisement for Diet Sprite Zero in September 2004, he contacted Coca-Cola to threaten litigation over its purported infringement of his mark. Below are pictures of “Diet Sprite Zero” and “Naturally Zero.”

 

Summarizing Facts With Timelines, Charts, or Flow Charts[10]

Example 1: [11]

The facts of the petitioner’s brutal sexual assault and murder of 25-year-old LaTausha Curry on January 21, 1999 have been set forth in detail in our earlier opinion and the opinion of the Texas Court of Criminal Appeals. We will not repeat them here. Some of the relevant dates have been set forth above. We repeat these dates and others in the timeline set forth below:

November 19, 1999: Johnson sentenced to death.
October 22, 2001: Johnson files state petition for writ of habeas.
January 30, 2002: Tex. Court of Criminal Appeals (“TCCA”) affirms Johnson’s conviction on direct appeal.
June 20, 2002: U.S. Supreme Court issues Atkins.
October 8, 2003: TCCA denies habeas relief.
February 11, 2004: TCCA modifies the “two-forum rule,” which required dismissal of a state writ or successive writ if a federal proceeding was pending, even if that proceeding was stayed. Ex parte Soffar, 143 S.W.3d 804, 804 (Tex.Crim.App.2004).
May 17, 2004: Johnson files first federal writ.
September 18, 2007: Federal writ denied by district court.
December 2, 2007: District court denies motion for new trial.
April 7, 2008: Johnson seeks COA from Fifth Circuit.
October 2, 2008: Fifth Circuit denies COA.
January 16, 2009: Execution date set for April 30, 2009.
March 9, 2009: U.S. Supreme Court denies cert to Johnson’s challenging the Fifth Circuit’s denying his COA.
April 28, 2009: Johnson attempts to file successive writ with TCCA based on Atkins claims.
April 29, 2009: TCCA denies subsequent writ because Johnson failed to make a prima facie case of mental retardation. Johnson files the current motion.

Example 2: [12]

On cross-examination, witness Nee frequently asserted his Fifth Amendment privilege. The chart below outlines the context in which these assertions were made:

Example 3: [13]

The ownership genealogy of the ‘236 and ‘578 patents is documented in the chart below.

Example 4: [14]

JWR operates four coal mines west of Birmingham, Alabama. The parties refer to the mines as Mines 3, 4, 5, and 7. Mine 3 is located in Jefferson County, Alabama, near Adger, Alabama. Mines 4, 5, and 7 are located in Tuscaloosa County, Alabama. The number of layoffs at each mine and the percentage of workers affected are reflected in the chart below:

 

How to Create Visual Aids

Here are helpful resources on creating visual aids.

Designing charts and graphs

  • Gene Zelazny, Say It With Charts: The Executive’s Guide to Visual Communication (4th ed. 2001).

Creating flowcharts, charts, and graphs in Microsoft Word

  • Add A Drawing To A Document, https://support.office.com/en-us/article/Add-a-drawing-to-a-document-348a8390-c32e-43d0-942c-b20ad11dea6f (last visited August 23, 2017).
  • Saikat Basu, How to Create Stunning Flowcharts With Microsoft Word, http://www.makeuseof.com/tag/create-stunning-flowcharts-microsoft-word/ (last visited August 23, 2017).
  • Insert A Chart From an Excel Spreadsheet Into Microsoft Word, https://support.office.com/en-us/article/Insert-a-chart-from-an-Excel-spreadsheet-into-Word-0b4d40a5-3544-4dcd-b28f-ba82a9b9f1e1 (last visited August 23, 2017).
  • How to Add A Graph to Microsoft Word, http://www.wikihow.com/Add-a-Graph-to-Microsoft-Word (last visited August 23, 2017).

[1] “Wherever possible, use pictures, maps, diagrams, and other visual aids in your briefs. Some lawyers seem to think a word is worth a thousand pictures. The reverse, of course, is true. Seeing a case makes it come alive to judges.” Hon. Richard Posner, Effective Appellate Brief Writing, A.B.A. Litigation News (Spring 2010), https://apps.americanbar.org/litigation/litigationnews/trial_skills/appellate-brief-writing-posner.html. See also Ross Guberman, Point Made: How to Write like the Nation’s Top Advocates 293-94 (2d ed. 2014).

[2] Unlike brief writing, during a trial you might decide such repetition is useful to the jury.

[3] Woolley v. Rednour, 702 F.3d 411, 418 (7th Cir. 2012).

[4] Graham v. Jules Inv., Inc., 2014 COA 136, ¶ 13 (Colo. App. 2014).

[5] Bd. of Comm’rs of Grand Cty. v. Baumberger, 513 P.2d 1075, 1075–76 (Colo. App. 1973).

[6] Emery v. Medal Bldg. Corp., 436 P.2d 661, 662–63 (Colo. 1968).

[7] People v. Williams, 2016 COA 48, ¶ 42-43 (Colo. App. 2016).

[8] Hawg Tools, LLC v. Newsco Int’l Energy Servs., Inc., 2016 COA 176M, ¶¶ 27, 33 (Colo. App. 2016).

[9] Baig v. Coca-Cola Co., 607 Fed. Appx. 557, 558–59 (7th Cir. 2015).

[10] See also Stephen Armstrong & Timothy Terrell, Thinking Like a Writer: A Lawyer’s Guide to Effective Writing and Editing 127-30 (Practicing Law Institute 3d ed. 2008) (discussing use of lists and bullet points); Ross Guberman, Point Made: How to Write like the Nation’s Top Advocates 295-300 (2d ed. 2014) (same); Ross Guberman, Point Taken: How to Write Like the World’s Best Judges 73-77 (2015) (discussing same in an opinion’s Statement of Facts).

[11] In re Johnson, 325 Fed. Appx. 337, 339 (5th Cir. 2009).

[12] United States v. Newman, 490 F.2d 139, 144 (3d Cir. 1974).

[13] Rembrandt Data Techs., LP v. AOL, LLC, 641 F.3d 1331, 1333 (Fed. Cir. 2011).

[14] Int’l Union, United Mine Workers v. Jim Walter Res., Inc., 6 F.3d 722, 724 (11th Cir. 1993).

 

Michael Blasie graduated from the New York University School of Law. He began his career as a commercial litigator and criminal defense attorney in the New York City office of Cooley LLP where he practiced in state and federal trial and appellate courts. After five years he moved to Denver where he worked as a law clerk to the Honorable David J. Richman of the Colorado Court of Appeals before becoming Staff Counsel at Wheeler Trigg O’Donnell, LLP. Michael also serves as a volunteer firefighter for the City of Golden.

Use Quotations to Make a Point

Many lawyers fill briefs with quotations; too many quotations. A parade of quotations rarely helps readers. Here are some tips on when to use quotations and how to use them effectively.

Use Quotations Sparingly

Many briefs quote too often.[1] If you are analyzing the words in the quotation, use it. If the quotation has unique phrasing that pops, use it. But if you can say it better in your own words, don’t quote. Most of the time you can say it better and shorter by paraphrasing.[2]

Before

After

“Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a ‘short and plain statement of the claim showing that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009), quoting F.R.C.P. 8(a)(2). Complaints must contain a short and plain statement explaining why a claim succeeds. F.R.C.P. 8(a)(2).
“As the Court held in Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929, the pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Although complaints do not require detailed factual allegations, they require more than bare accusations of harm. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Complaints must state more than labels, conclusions, or a claim’s elements. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Weave Quotations Into Your Argument

Here are some stereotypical introductions to quotations:

  • As the Supreme Court held in Smith v. Jones, “. . .
  • According to Smith v. Jones, “. . .
  • The statute reads: “ . . .
  • As one case held, “ . . .

Cut these. They add nothing except words. After you cut them, the meaning of the sentence is unchanged.

Then do even more. Legal writing specialist Ross Guberman provides several ways to enhance your argument with quotations. Rather than letting a quotation stand alone, each method ties the quotes to your case.[3]

Method 1: Introduce Quotations By Explaining How They Support Your Argument[4]

Introduce a quote by telling readers what you want them to take away from it.

Regardless of the policy’s merits, courts defer to codified legislative policies: “It is not for the courts to enunciate the public policy of the state if, as here, the General Assembly has spoken on the issue.” Grossman v. Columbine Med. Group, 12 P.3d 269, 271 (Colo. App. 1999).

  • During trial the victim emphasized repeatedly his confidence in the defendant’s identity: [quotes with record citations]

Method 2: Link a Party in Your Case With a Party in the Quotation[5]

Often briefs summarize a case and then compare the cited case to the case at issue. Combine these steps.

  • Where, as here, the interpreter did not testify, the agents present did not speak Spanish, and no one could testify whether the “interpreter indeed read the Defendant each of his Miranda rights off of the card” or “what the Defendant said in response to each of these warnings,” then the government has failed to meet its burden and
    the court must suppress the post-arrest statements. United States v. Sanchez-Manzanarez, 2012 WL 315870, *8 (S.D.N.Y. Feb. 2, 2012).

The prosecutor’s use of the term “lie” in closing argument is the exact conduct prohibited in Wend, where after reviewing the repeated use of “lie” in opening and closing arguments the Supreme Court held “a prosecutor acts improperly when using any form of the word ‘lie’ in reference to a witness’s or defendant’s
veracity.” Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010).

Method 3: Link Your Case’s Facts with a Quoted Legal Standard[6]

You can use quotations to merge a statement of law with the facts of your case.

  • The late disclosure of Brady material shortly before closing arguments “meaningfully alter[ed]” the defendant’s strategy on critical issues like “how to apportion time and resources to various theories when investigating the case, [and] whether the defendant should testify,” which is precisely why “the belated disclosure of impeachment or exculpatory information favorable to the accused violates due process.” United States v. Burke, 571 F.3d 1048 (10th Cir. 2009).
  • Plaintiff’s claim that the defendant gave him a dirty look falls well short of the “high standard” for intentional infliction of emotional distress by outrageous conduct, because the conduct is not “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency.” Coors Brewing
    Co. v. Floyd
    , 978 P.2d 663, 665-66 (Colo. 1999).

 


[1] “A remarkably large number of lawyers seem to believe that their briefs are improved if each thought is expressed in the words of a governing case. The contrary is true.” Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 127-28 (2008). See also Ross Guberman, Point Taken: How to Write Like the World’s Best Judges 140-47 (2015) (discussing use of quotations in opinions).

[2] “After you have established your major premise, it will be your reasoning that interests the court, and this is almost always more clearly and forcefully expressed in your
own words than in the stringing together of quotations from various cases. Such a cut-and-paste approach also produces an air of artificiality, even of lack of self-assurance. You want the court to develop confidence in your reasoning—not in your ability to gopher up supporting quotations” Scalia & Garner, supra n. 1 at 128. “Whether you’re a judge, advocate, or journalist, stringing together quotations is not ‘writing.’ A surgical strike with lean quoted language will often beat bulky block quotation bursting all over the page. And yet sometimes, when binding precedent is worded just right, even an economical judge will want to preserve the language in the original court’s own words.” Ross Guberman, Point Taken, supra n. 1 at 140.

[3] See also Bryan A. Garner, Legal Writing In Plain English 101-04 (2d ed. 2013) (discussing how to weave quotes into a narrative); Ross Guberman, Point Taken, supra n. 1 at 121-126 (discussing how opinions draw analogies to cited authority).

[4] Ross Guberman, Point Made: How to Write Like the Nation’s Top Advocates 175-79 (2d ed. 2014) (applying strategy to block quotations); Ross Guberman, Point Taken, supra n. 1 at 140-41 (“For starters, don’t just dump the quote and run. Introduce a long quote the way you would introduce a stranger to a friend—by telling the friend about what they have in common, and why this new person might be interesting to get to know.”).

[5] See Ross Guberman, Point Made: How to Write Like the Nation’s Top Advocates 131-32 (2d ed. 2014).

[6] See id. at 133-34 (2d ed. 2014).

 

Michael Blasie graduated from the New York University School of Law. He began his career as a commercial litigator and criminal defense attorney in the New York City office of Cooley LLP where he practiced in state and federal trial and appellate courts. After five years he moved to Denver where he worked as a law clerk to the Honorable David J. Richman of the Colorado Court of Appeals before becoming Staff Counsel at Wheeler Trigg O’Donnell, LLP. Michael also serves as a volunteer firefighter for the City of Golden.

The Colorado Lawyer Self-Assessment Program

By Jonathan White, Esq., Office of Attorney Regulation Counsel

Do you need CLE credits? Check out Colorado’s new Lawyer Self-Assessment Program. The program allows you to self-assess your practice and identify areas of strength as well as areas for improvement. Colorado lawyers who participate in the program may claim up to three general and ethics credits. In addition, on Monday, December 11, 2017, CBA-CLE will host a 90 minute live seminar on the new program, “Proactive Practices: Protecting Client Confidences and Prioritizing Wellness to Run a Successful Practice,” where lawyers can claim an additional 2.0 general and 1.8 ethics credits (register here).

Lawyers can view and complete the self-assessments through the Office of Attorney Regulation Counsel’s website: https://www.coloradosupremecourt.com/AboutUs/LawyerSelfAssessmentProgram.asp. An affidavit is available on the same page for lawyers to use to apply for CLE credit once they complete the self-assessment program. The program’s goals include helping lawyers better serve clients, instituting efficient, consistent law office management procedures, and allowing lawyers to reflect on whether they have procedures in place that promote compliance with professional obligations.

As a complement to this new initiative, CBA-CLE has hosted a series of lunch-hour CLE seminars devoted to the self-assessment program. The last in the series takes place Monday, December 11, beginning at noon. This seminar will explore proactive procedures that help lawyers comply with their duty to protect client confidences. It will also discuss lawyer well-being and why well-being is essential to a lawyer’s duty of competence. Register here for the December 11 program.

The Colorado Lawyer Self-Assessment Program arises out of a multi-year initiative of a subcommittee of the Colorado Supreme Court’s Attorney Regulation Advisory Committee. More than 50 practicing lawyers volunteered their time to identify ten areas of assessment and associated questions. The assessments draw from the collective professional experience of the subcommittee members. The ten areas of self-assessment include:

  1. Developing a competent practice;
  2. Communicating in an effective, timely, professional manner and maintaining professional client relations;
  3. Ensuring that confidentiality requirements are met;
  4. Avoiding conflicts of interest;
  5. Maintaining appropriate file and records management systems;
  6. Managing the law firm/legal entity and staff appropriately;
  7. Charging appropriate fees and making appropriate disbursements;
  8. Ensuring that reliable trust account practices are in use;
  9. Working to improve the administration of justice and access to legal services;
  10. Wellness and inclusivity.

The self-assessments are voluntary and confidential. The Office of Attorney Regulation Counsel does not receive any personally-attributable answers. The assessments offer links to the Colorado Rules of Professional Conduct and to a variety of educational resources ranging from template forms to advisory opinions to articles on current professionalism issues.

Inadvertent Disclosure — Damage Control, Recipient Requirements, and More

EthicsInadvertent disclosure of privileged or confidential information is not a new problem for attorneys. However, email and the electronic age have widened the scope of inadvertent disclosure. What happens when you use your email’s auto-fill feature and accidentally fill opposing counsel’s name instead of your client’s? How about when you hit “Reply All” instead of only replying to one party, or when you reply instead of forwarding? These problems are the stuff of nightmares.

To address the problems created by inadvertent disclosure of privileged or confidential information, the Colorado Bar Association Ethics Committee created Formal Opinion 108, adopted on May 20, 2000. Formal Opinion 108 contemplates that a lawyer who receives documents (“receiving lawyer”) from an adverse party or an adverse party’s lawyer (“sending lawyer”) has an ethical duty to disclose the receipt of the privileged or confidential documents to the sending lawyer. If the receiving lawyer realizes the inadvertence of the disclosure before examining the documents, the receiving lawyer has a duty to not examine the documents and follow the sending lawyer’s directions regarding disposal or return of the documents.

In 2008, the Colorado Supreme Court repealed and reenacted the Colorado Rules of Professional Conduct. Rule 4.4(b) provides that “A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.” Rule 4.4(b) applies to situations in which the sending lawyer accidentally provides privileged or confidential information to the receiving lawyer, such as when someone hits “Reply All” instead of forwarding to the client.

Rule 4.4(c) addresses a far less common scenario, when the sending lawyer realizes the disclosure prior to receipt by the receiving lawyer and contacts the receiving lawyer before the privileged or confidential information is viewed. Rule 4.4(c) requires the receiving lawyer to “abide by the sender’s instructions as to its disposition.” Comments [2] and [3] to Rule 4.4 expand on the receiving lawyer’s duties, including providing that as a matter of professional courtesy the receiving lawyer may inform the sending lawyer of the inadvertent disclosure.

Colorado Rule of Civil Procedure 26(b)(5)(B) also addresses inadvertent disclosure. C.R.C.P. 26(b)(5)(B) imposes on the receiving lawyer a mandatory prohibition on review, use, or disclosure of the information until the privilege claim is resolved, if the sending lawyer informs the receiving lawyer of the inadvertent disclosure. C.R.C.P. 26(b)(5)(B) differs slightly from Fed. R. Civ. P. 26(b)(5)(B); lawyers who practice in both federal and state courts should familiarize themselves with the different rules.

On Monday, November 28, 2016, attorney Cecil E. Morris, Jr., will deliver a lunchtime presentation on inadvertent disclosure, which is available for one general CLE credit and one ethics credit. This program is a great way to learn about what to do in case you inadvertently disclose confidential or privileged information, and also what to do if you receive information inadvertently disclosed. Cecil will discuss the differences between the federal and state rules, and will also address the substantive areas of law most affected by inadvertent disclosure. Register here or by clicking the links below.

 

CLELogo

CLE Program: Inadvertent Disclosure – Professional Liability Series

This CLE presentation will occur on November 28, 2016, at the CBA-CLE offices (1900 Grant Street, Third Floor), from 12 p.m. to 1 p.m. Register for the live program here or register for the webcast here. You may also call (303) 860-0608 to register.

Can’t make the live program? Order the homestudy here: MP3Video OnDemand.

The End of Law Firms? Legal Service Delivery in the 21st Century

3e5ee2a2014 marked the 100th anniversary of World War I – the “Tipping Point” wherein the automobile forever replaced the horse as the predominant form of ground transportation in the modern era. In the three decades that followed World War I, livery stables closed and buggy whip manufacturers went out of business.

The Great Recession of 2008 has served as a “Tipping Point” of its own sort for the legal profession, where alternative legal services delivery models – LegalZoom for consumers and Legal Process Outsourcing companies (“LPOs”) for corporations – now challenge the monopoly that traditional law firms once held for legal services delivery. Prices for legal services are plummeting in a free fall. Competition for clients is at an all-time high, even as U.S. law schools churn out 44,000 new lawyers a year into a 100% saturated legal market. Corporate clients in the current buyers’ market are increasingly demanding lower, fixed prices and value-based Alternative Fee Arrangements (“AFAs”) in lieu of hourly billing – making law firms bear the ‘risk of loss’ in uncertain but complex litigation and transaction matters – even as the costs of running law firms continue to climb. To survive, most law firms have already morphed from their 1980s ‘Pyramid’ shaped organizational structures into ‘Diamond’ shaped organizational structures staffed by experienced attorneys – with virtually no associates to ‘fill out’ the base of once ‘Pyramid’ shaped law firm. But some commentators believe that this ‘Diamond’ shaped organizational structure is only a temporary change – like the hull of a great ship that rises out of the water before the whole thing sinks. What if in our lifetime we are watching the end of law firms, just as our great grandfathers watched the end of livery stables? From ‘Pony Express’ to ‘Federal Express’…

In this thought-provoking CLE presentation, attorney Mark Lassiter presents his vision of how the legal profession can ‘rise like the great Phoenix out of the ashes’ of its current malaise – all without traditional law firms. He argues that, if current legal trends continue unabated, the historic law firms as we have known them must become extinct – with the largest dying last. He does NOT argue that lawyers will not practice together with each other in communities or associations. Rather, he argues that such associations will look different from the traditional law firms of the 20th Century, which still prevail (for now…). He predicts a day when future lawyers will collaborate and work together on legal matters in Cloud based, temporary ‘teams’– not based on law firm allegiances or employment, but rather on their own, specific expertise and skill sets. In other words, the ‘mission’ (not the ‘law firm’) will drive and determine the lawyers and staff recruited to a temporary legal team – allowing clients to ‘cherry pick’ the best, most qualified lawyers and legal staff for the clients’ unique legal matters – with all legal work tasks being monitored and controlled from secure, Cloud-based portals. Such arrangements will empower solo and small practice lawyers, ‘Soccer Mom’ and ‘Disabled Dad’ lawyers, and young, new lawyers as never before.

If you are a new, small, solo or part-time lawyer you won’t want to miss hearing how the coming decades may actually be the best yet for attorneys like you. Come and watch this thought-provoking presentation from one of America’s emerging legal thought leaders.

 

CLE Program — The End of Law Firms? Rethinking Legal Services Delivery in the 21st Century

This CLE presentation will occur on July 19, 2016, at the CBA-CLE offices (1900 Grant Street, Third Floor). Register online or call (303) 860-0608.

Can’t make the live program? Register for the live webcast here.

Attorney at Work—Mixing Cocktails with Legal Advice: Don’t

Editor’s note: This article originally appeared on Attorney at Work on April 19, 2016. Reprinted with permission.

Mark3By Mark Bassingthwaighte

I can appreciate a well-crafted cocktail. But when I am in a situation where such beverages are being served, I never get involved in a conversation about someone’s legal problems. And I strongly encourage you to do the same.

Here’s a short story that explains why.

An associate at a law firm — not a litigator in any way — attended a social function and had a few more than she should have. She got involved in a conversation with another guest about a personal injury matter. In addition to sharing some generic advice, the associate also let the guest know there was still plenty of time to deal with the matter, saying the statute of limitations in that jurisdiction was two years. Unfortunately, unbeknownst to our heroine, there was an exception to the statute in play and the actual time to file suit was six months. The guest, relying on the advice, did not obtain legal counsel until after the filing deadline had passed.

The young lawyer and her firm were eventually sued for malpractice.

The Accidental Client

We all know drinking and driving can have serious consequences — when your judgment and reflexes are impaired, accidents can happen. Mixing cocktails and legal advice is similarly problematic. It’s too easy for a casual setting, coupled with a few adult beverages, to cloud your thinking. You may then find yourself dealing with an accidental client.

Malpractice claims can easily arise out of these situations, but the risk isn’t limited to cocktail parties. Casual conversations online with extended family members or friends and gatherings with members of your church congregation or other community organizations are all situations where you should proceed with caution.

You can’t overlook the office setting, either.

Should you be concerned about passing along a little casual advice in a conversation with a corporate constituent while representing the entity itself? How about discussing issues with beneficiaries while representing the estate, trying to help a prospective client out during that first meeting when you know you are going to decline the representation? Or what about being a good Samaritan by making a few suggestions on the phone to someone who clearly has a problem but really can’t afford an attorney? How about answering a few questions from an unrepresented third party?

The answer is, of course, yes — these are all situations that can easily lead to an accidental client.

“No Good Deed Goes Unpunished”

Old sayings became old sayings because they have a ring of truth to them.

I am always surprised by what attorneys say when they have to deal with a claim brought by an accidental client. Comments like “I never intended to create an attorney-client relationship,” “There was no signed fee agreement,” and “No money was exchanged so how could this be?” are common.

Guess what: It’s not about you! Typically, it is more about how the individual you interacted with responded to the exchange. If they happened to respond as if they were receiving a little legal advice from an attorney, and that response was reasonable under the circumstances, it can start to get muddy. Worse yet, if it was reasonably foreseeable that this individual would rely or act on your casual advice — and then, in fact, did so to their detriment — you may have a serious problem on your hands.

I share this not with a desire to convince you to keep quiet and never try to help someone. By all means, be helpful. The world could use a few more good Samaritans, and a desire to help others is a good thing as long as you stay the course. I share this because I want you to be cognizant of the risk involved whenever you decide to step into those waters.

Here’s the Bottom Line

Accidental clients are for real and there is no such thing as “legal lite.” So if you are enjoying a wonderful evening at a party, cocktail in hand, and find yourself conversing with another guest who has just learned you are an attorney and wants to “pick your brain,” don’t talk about legal issues you are not well-versed in. If you feel compelled to pass along a little advice, then remember to ask questions so you understand the entire situation. Just know that you may be held to the accuracy of that advice later on, so you might want to jot down a few notes as soon as you can.

Finally, know that it’s okay to say you’re not the right person to be asking, particularly after you’ve had a few.

That said, salute!

Mark Bassingthwaighte, Esq. has been a Risk Manager with ALPS, an attorney’s professional liability insurance carrier, since 1998. In his tenure with the company, Mr. Bassingthwaighte has conducted over 1150 law firm risk management assessment visits, presented numerous continuing legal education seminars throughout the United States, and written extensively on risk management and technology.  Mr. Bassingthwaighte is a member of the ABA and currently sits on the ABA’s Law Practice Division’s Professional Development Board, the Division’s Ethics and Professionalism Committee, and he serves as the Division’s Liaison to the ABA’s Standing Committee on Lawyers Professional Liability. Mr. Bassingthwaighte received his J.D. from Drake University Law School and his undergraduate degree from Gettysburg College.

Contact Information:
Mark Bassingthwaighte, Esq.
ALPS Property & Casualty Insurance Company
Risk Manager
PO Box 9169 | Missoula, Montana 59807
(T) 406.728.3113 | (Toll Free) 800.367.2577 | (F) 406.728.7416
mbass@alpsnet.com | www.alpsnet.com

ALPS offers up to a 10% premium credit for each attorney in a firm who receives 3 CLE credits annually in the areas of ethics, risk management, loss prevention, or office management. ALPS is a lawyers’ malpractice carrier endorsed by the CBA. Learn more at try.alpsnet.com/Colorado

Trait-Based Protection Under the ADAAA

roberto-corrada-fullBy Roberto Corrada, Professor
University of Denver Sturm College of Law

Professor Susan Carle of American University Law School thinks the “regarded as” prong of the ADA may be severely underutilized by plaintiffs seeking to challenge their termination. According to Carle, who delivered a lunch keynote address at the 2016 Colorado Bar CLE annual employment law conference, the ADAAA of 2009 amended the ADA in a way that greatly increased the potential effectiveness of the “regarded as” prong. The ADAAA, first, freed the “regarded as” prong of the requirement that the disability the employer regards an employee as having must significantly impair a major life activity. Employers now only have to “regard” an employee as having some impairment for the employee to be protected by the ADA. To balance this out, Carle emphasizes, the ADAAA did limit the “regarded as” prong a bit. So, the prong does not protect transitory or minor disabilities and the “regarded as” prong does not support requests for accommodation.

Professor Carle explains that it’s fairly clear now what is protected, but there’s a bit of ambiguity around how far the new protection goes. With respect to what is clear, if an employee has an injured back, but has a medical release to go back to work (can perform the essential functions of the job) and the employer says no, the employee is likely protected. Also, if an employee has an anxiety disorder and the employer finds the employee annoying (even though the employee can perform essential functions) and fires the employee, the employee is likely protected. Professor Carle, though, is interested in knowing whether the ADA might extend far enough to protect certain traits. For example, what if an employee has no diagnosed disability or has a disability that has not been disclosed to the employer? If the employer then looks at an employee “trait” that the employee possesses and “regards it as” a disability or impairment, is the employee protected by the ADA? For example, an employee suffers from depression and as a result fails to participate in workplace social gatherings or attends, but just sits in the corner. Is the employee protected from termination by the ADA “regarded as” prong?

Professor Carle believes that the ADA “regarded as” prong “can be of special help to persons with ambiguous or hidden impairments because it may very often be the very perception of ‘something weird/different/not right’ about the person that causes a negative reaction or discrimination rather than any limitation in relevant job-related abilities.” The big question is whether an employer who regards an employee as having a “social disorder” based on a trait is prohibited from acting on that trait in disciplining or terminating the employee? Does the trait have to be an effect of an actual disability or impairment? Professor Carle will attempt to make her case in an upcoming issue of the University of California Davis Law Review. Professor Carle’s argument does have some hope for unleashing the progressive potential of the ADA. After all, a foundational policy of the ADA is to have employers focus on the essential functions of the job in making employment decisions rather than indulging personal biases.

 

CLE Homestudy — Employment Law Conference 2016: Proactively Prepare for What Lies Ahead

This CLE presentation took place Wednesday, April 20, 2016, and Thursday, April 21, 2016. Order the homestudy here: CDMP3 audio.

 

Roberto Corrada, Mulligan Burleson Chair in Modern Learning and Professor at the University of Denver Sturm College of Law, has devoted his scholarly attention to three primary areas: the rights of ethnic and sexual minorities; the public/private distinction in labor and employment law; and the scholarship of teaching and learning. A distinguished teacher, Corrada has been recognized for his innovative work in the classroom. He has received several awards, and was named a national Carnegie Scholar in 2000. He is also extensively involved in service work with local and national institutions, including chairing the board of the ACLU of Colorado in 1998 and helping form the Denver Urban Debate League, serving now on the Board of Directors.

Two Law Firm Hacks Should Be Scaring Your Firm Into Action

Editor’s Note: This post originally appeared on Stuart Teicher’s blog, “Keeping Lawyers Out of Trouble,” on April 4, 2016. Reprinted with permission.

Headshot-Stuart-TeicherBy Stuart Teicher

For years people have been warning that law firms of all sizes are major targets for cyber-criminals. If your firm didn’t take that seriously before, then there are two major hackings last week that should get your attention.

The Wall Street Journal reported that cyber criminals breached Cravath, Weil Gotshal, and several other unnamed firms (read the article here: http://on.wsj.com/1MzYlN2). The paper states that it’s not clear what (or whether) information was taken, but the focus is on the possibility of confidential information being stolen for purposes of insider trading.

The other major breach is so big that it has its own hashtag— search Twitter for #PanamaPapers or #PanamaLeaks.  According to Reuters, the target was a law firm in Panama who specializes in setting up offshore companies. Hackers stole data from the firm and provided that data to journalists who promptly revealed it to the public (read the article here: http://reut.rs/25GEy4X). The information allegedly reveals a network of offshore loans. According to the BBC, the stolen data reveals how the law firm, “has helped clients launder money, dodge sanctions and avoid tax” (read the BBC’s article here: http://www.bbc.com/news/world-35918844). Political figures and friends of popular politicians are allegedly implicated, according to the report.

My concern is not about the obvious political ramifications. My concern is about the ethical ramifications to lawyers. The danger of hacking is real.

No report has implicated any type of ethical wrongdoing on the part of any firm. That needs to be restated and made abundantly clear: there has been no report of any evidence of ethical impropriety by any of the law firms mentioned in the news. I am bringing this to your collective attention because it should serve as a warning. Confidential client information was stolen from that law firm in Panama… which reminds us that we are targets.

All lawyers are targets. Small firms, large firms, in-house counsel, government lawyers, you name it. The bad guys know that lawyers are the custodians of valuable information and they are coming after us in a big way. The message for all of us is clear: you could be subject to an ethics grievance if you don’t take proper steps to secure your clients’ information.

The responsibility to protect our client information is nothing new. However, these recent events require us apply an increased sense of urgency to evaluating our compliance with that duty. Have you, or your firm, taken the necessary steps to adequately protect your clients’ information? Have you considered the fact that bad guys could be targeting you? What steps have you taken to counteract the potential piracy that could be aimed at your clients’ information?

You could be darn sure that someone is going to be asking those questions to the firms that were targeted in the hacks. Maybe you need to put yourself in their position and ask, “how would we fare if that review was directed toward us?”

Our duty of competence requires that we take appropriate steps to protect our clients’ confidential information. And remember that you, as the lawyer, have the primary ethical duty, not your IT people. Furthermore, various ethics opinions have held that, in some circumstances, the lawyer needs to understand the underlying technology itself.

If these issues weren’t on the front burner in your office before, these two hacks should be causing you to shift your priorities.

Quickly.

 

Save the Date!

Stuart Teicher will be at the CLE offices on Thursday, September 8, 2016, to present two ethics programs. Registration is not yet open, but mark your calendars and don’t miss these important programs.

 

Stuart I. Teicher, Esq. is a professional legal educator who focuses on ethics law and writing instruction. A practicing attorney for over two decades, Stuart’s career is now dedicated to helping fellow attorneys survive the practice of law and thrive in the profession. Stuart teaches seminars and provides in-house training to law firms/legal departments.

Stuart helps attorneys get better at what they do (and enjoy the process) through his entertaining and educational CLE Performances. His expertise is in “Technethics,” a term Stuart coined that refers to the ethical issues in social networking and other technology. He also speaks about “Practical Ethics”– those lessons hidden in the ethics rules that enhance a lawyer’s practice. Stuart writes the blog “Keeping Lawyers Out of Trouble.”

Mr. Teicher is a Supreme Court appointee to the New Jersey District Ethics Committee where he investigates and prosecutes grievances filed against attorneys, an adjunct Professor of Law at Rutgers Law School in Camden, New Jersey where he teaches Professional Responsibility and an adjunct Professor at Rutgers University in New Brunswick where he teaches undergraduate writing courses. He is a member of the bar in New York, New Jersey and Pennsylvania. In 2014, he authored the book Navigating the Legal Ethics of Social Media and Technology (Thomson Reuters).

Bad Faith? Marijuana Inventory Is Insurable (For Now)

Editor’s Note: This post originally appeared on Above the Law on Monday, February 29, 2016. Reprinted with permission.

Hilary-BrickenBy Hilary Bricken

I recently chaired a webinar about marijuana and insurance issues, and I have already been roped into doing another one. I am well aware of how cannabis and insurance are a legally charged combination, and I expect to see an increase of cannabis insurance cases very soon. A federal court in Colorado just came down with an important cannabis insurance ruling in the case of Green Earth Wellness Center, LLC v. Atain Speciality Insurance CompanyThe case involves a cannabis company that sued its insurance company for failing to pay on claims and for bad faith. It’s important to note that I’m not talking about a cannabis company seeking coverage on a general liability insurance policy for something like a slip-and-fall or for damage to grow lights. To the contrary, this case is a big deal because Colorado Federal District Court Chief Judge Marcia S. Krieger ruled on a summary judgment motion that the actual inventory itself (i.e., the cannabis) is insurable under a general liability insurance policy.

Green Earth, which operates a medical marijuana dispensary as well as a commercial cultivation facility, obtained a general liability insurance policy from Atain in 2012. A few days before securing that policy, “smoke and ash from [a nearby wild fire] overwhelmed [Green Earth’s] ventilation system, eventually intruding into the growing operation and causing damage to Green Earth’s marijuana plants.” Green Earth made a claim under its Atain policy for damage done to its plants. Atain then investigated the claim for several months, and denied the claim in July 2013. Also in July 0f 2013, Green Earth’s grow facility was robbed, and Green Earth filed another claim with Atain for the damage done to its facility by the burglars. Atain again denied the claim, determining that the damage done to the grow facility did not exceed the applicable deductible. On December 20, 2013, Green Earth commenced its lawsuit against Atain, asserting the following three claims:

(i) breach of contract for Atain’s failure to pay the claims Green Earth made under the insurance policy;

(ii) a bad faith breach of insurance contract claim under C.R.S. § 10-3- 1104(h)(VII); and

(iii) a claim for unreasonable delay in payment under C.R.S. § 10-3-1115.

Atain argued that it should be exempt from paying Green Earth’s claims because of a provision in the insurance contract excluding coverage for “[c]ontraband, or property in the course of illegal transportation or trade.” Atain also argued that “public policy requires that coverage be denied, even if the Policy would otherwise provide it.” In turn, Atain asked the Court to resolve two questions:

(i) Whether, in light of [Colorado’s Medical Marijuana Act], federal law, and federal public Policy, it is legal for Atain to pay for damages to marijuana plants and products, and if so, whether the Court can order Atain to pay for these damages; and

(ii) “Whether, in light of [those same authorities], the Policy’s Contraband Exclusion removes Green Earth’s marijuana plants and marijuana material from the Policy’s coverage.”

Atain argued that the answer to its first question is “no” and the answer to its second question is “yes.”

The first important point of the Court’s ruling is what law it applied to the insurance contract. That contract mandates that disputes “will be governed by the law of the state in which the suit is brought.” So, the Court applied state law — as opposed to federal law — which is huge as this meant that the Court did not throw out the policy altogether on the basis of its apparent illegality under federal law.

The Court then held that because the insurance policy failed to define “contraband,” and Atain failed to prove Green Earth violated Colorado’s marijuana laws, and because the federal government has been giving mixed signals about federal marijuana enforcement, the “policy’s “Contraband” exclusion is ambiguous. The Court then looked to the “intention” of the parties regarding coverage for finished inventory and harvested plants and found nothing in the factual record showing that Atain sought to specifically exclude such coverage. In fact, the Court found that Atain knew Green Earth was a cannabis business and yet it issued its insurance policy to Green Earth regardless of federal laws, without making any unequivocal exemption, even under the “Contraband” provision, for finished inventory or harvested plants.

Atain then sought to invoke the federal Controlled Substances Act to argue that its own insurance policy was technically an illegal contract. The Court’s response to Atain’s illegality argument was that “Atain, having entered into the Policy of its own will, knowingly and intelligently, is obligated to comply with its terms or pay damages for having breached it.”

This ruling is a big step forward for the enforceability of marijuana-related contracts and another nail in the coffin for the “illegal cannabis contract” theory. This ruling also highlights the paramount importance of the choice of law, jurisdiction, and venue provisions in a marijuana contract.

Hilary Bricken is an attorney at Harris Moure, PLLC in Seattle and she chairs the firm’s Canna Law Group. Her practice consists of representing marijuana businesses of all sizes in multiple states on matters relating to licensing, corporate formation and contracts, commercial litigation, and intellectual property. Named one of the 100 most influential people in the cannabis industry in 2014, Hilary is also lead editor of theCanna Law Blog. You can reach her by email at hilary@harrismoure.com.

The opinions and views expressed by Featured Bloggers on Colorado CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or Colorado CLE, and should not be construed as such.

Five Cybersecurity Tech Tips: Worries to Give You the Willies

Editor’s Note: This post originally appeared on Attorney at Work on January 29, 2016. Reprinted with permission. See below for information about ordering Colorado CLE’s homestudy for our program, “Data Privacy & Information Security: Meeting the Challenges of this Complex and Evolving Area of the Law.”

By Sharon Nelson and John Simek

A keyboard with a red button - Privacy

A keyboard with a red button – Privacy

There are lots of cybersecurity worries to give you the willies in the wee hours of the morning, but we were asked to pick five. So here are some of the most common threats for lawyers to keep in mind.

1. Ransomware. We continue to see law firms struck by ransomware, which is a type of malware that encrypts your data (restricting your access to it) and then demands a ransom payment — usually in bitcoins — to get your data back. Training your employees not to click on suspicious attachments or links in email will help. They should stay away from suspicious sites as well since ransomware can be installed by just “driving by” an infected website.

Overwhelmingly, from a technological standpoint, you can defeat ransomware by having a backup that is immune to it. This can mean, particularly for solo lawyers, that you back up and then disconnect the backup from the network. For others, it means running an agent-based backup system rather than one that uses drive letters. Make sure your IT consultant has your backup engineered so that backups are protected — that way, even if you are attacked with ransomware, you can thumb your nose at the thief’s demands for money because you can restore your system from your backup. Of course, this means backups need to be made frequently to avoid any significant data loss.

2. Employees. Employees are by nature rogues. Every study made shows employees will ignore policies (assuming they exist) to do what they want to do. This often means people bring their own devices (BYOD) which may be infected when they connect to your network. They may also bring their own network (BYON) or bring their own cloud (BYOC). Certainly, your policies should disallow these practices (in our judgment) or, at least, manage the risks by controlling what it is done by implementing a combination of policies and technology.

Oh, and employees steal your data or leave it on flash drives or their home devices, too. This means you have “dark data” — data you don’t know about and over which you have no control. This means you may miss data required in discovery because you don’t know it exists. Your data may not be protected in compliance with federal or state laws and regulations. And you have no way to manage the data because you don’t know it is there. Once again, a combination of policies and technology should be in place to prevent these issues.

3. Targeted phishing. This is perhaps the greatest and most successful threat to law firm data. Someone has you in their sights — often they have done research on your law firm. They may know the cases you are involved in — and who your opponents are. They may know the managing partner’s nickname. Everything they know about you, they may use to get you to click on something (say, an email from an opponent referencing a specific case and saying “The next hearing in ___ case has been rescheduled as per the attachment). Many a lawyer has clicked on such attachments — or a link within an email.

The best solution to protect yourself from targeted phishing is training and more training — endlessly. One California firm was targeted by multiple phishing attacks but survived them because the lawyers and staff who received such emails questioned their authenticity.

Forget the loss of billable time. The loss of money, time and even clients due to a data breach can be far worse.

4. Interception of confidential information. Start with the proposition that everyone wants your data, including cybercriminals, hackers and nation states (including our own). Frankly, if they want your data and they have sophisticated tools, they will get it. So shame on you if you are not employing encryption (which is now cheap and easy) to protect confidential data transmitted and received via voice, text, and email. Encryption today is a law firm’s best friend. You may choose to use it always or in cases where it is warranted — but you surely should have the capability of encrypting.

5. Failure to use technology to enforce passwords policies. First, let us say that you should use multi-factor authentication where available and use it to protect sensitive data. But failing that, we recognize that passwords are still king in solo practices and small to midsize firms. Therefore, have your IT consultant assist you in setting up policies that can be enforced by technology, requiring that network passwords be changed every 30 days, not reused for an extended period of time — and mandating strong passwords (14 or more characters in length, utilizing upper- and lowercase letters, numbers and symbols). Passphrases are best. Iloveattorneyatwork2016! would do nicely.

There are many other “willies” out there, but address them one digestible chunk at a time!

Sharon D. Nelson (@SharonNelsonEsq) and John W. Simek (@SenseiEnt) are the President and Vice President of Sensei Enterprises, Inc., a digital forensics, legal technology and information security firm based in Fairfax, VA. Popular speakers and authors, they have written several books, including “The 2008-2015 Solo and Small Firm Legal Technology Guides” and “Encryption Made Simple for Lawyers.” Sharon blogs at Ride the Lightning and together they co-host of the Digital Detectives podcast.

 

CLE Homestudy: Data Privacy & Information Security — Meeting the Challenges of this Complex and Evolving Area of the Law

This CLE presentation took place Friday, January 22, 2016. Order the homestudy here: CDMP3 audioVideo OnDemand.

The 2015 Amendments to the Federal Rules of Civil Procedure (Part 3 of 3)

Editor’s Note: This is Part 3 of a three-part series discussing the 2015 changes to the Federal Rules of Civil Procedure. Part 1 discussed the changes to Rules 1, 4, and 16, and is available here. Part 2 discussed the changes to Rule 26, and is available here

Bill_GrohBy William C. Groh, III

Changes to Rules 30, 31, and 33

Rules 30 and 31, which govern depositions, have been amended to account for the changes to Rule 26. Both rules require that when the parties seek leave of court to conduct depositions, “the court must grant leave to the extent consistent with Rule 26(b)(1) and (2).” Rule 33, governing interrogatories, has also been amended to reflect the proportionality requirements of Rule 26(b).

Rule 34

Like Rules 30, 31, and 33, the amendments to Rule 34 (governing requests for production) incorporate the changes to Rule 26. They also require greater specificity in objecting to discovery requests. New Rule 34(b)(2)(B) requires the responding party to “state with specificity the grounds for objecting to the request, including the reasons.”

New Rule 34(b)(2)(C) further clarifies this requirement by requiring that “an objection must state whether any responsive materials are being withheld on the basis of that objection.” In practical terms, however, a party will not necessarily have detailed knowledge of withheld documents. This is especially so if a responding party has conducted a limited search for documents based on an objection: how can the party specify what has been “withheld” in these circumstances?

The Committee Notes address these questions, providing that in objecting to a request, “[t]he producing party does not need to provide a detailed description or log of all documents withheld, but does need to alert other parties to the fact that documents have been withheld and thereby facilitate an informed discussion of the objection.” [1]  The Committee Notes also address the issue of limited searches, providing that “an objection that states the limits that have controlled the search for responsive and relevant materials qualifies as a statement that the materials have been ‘withheld.’”[2]

Finally, Rule 34(b)(2)(B) has been amended to reflect the “common practice” of producing documents rather than permitting inspection.[3] The new rule provides that “[t]he responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection. The production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response.”[4]

Rule 37

The amendments to Rule 37(e) provide more guidance regarding the failure to preserve ESI. Prior Rule 37(e), adopted in 2006, provided that “[a]bsent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.” While the rule implied authority to impose sanctions on a finding of bad faith, it provided no other specific criteria.

New Rule 37(e) provides a more comprehensive framework for courts to issue sanctions in the event of loss of ESI where “a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery.” As a preliminary matter, while New Rule 37(e)(1) requires a finding of prejudice resulting from a negligent failure to preserve ESI, it does not place a burden of proving or disproving prejudice on one party or the other. The Committee Notes indicate that under certain circumstances, it would be unfair for the party that did not lose the information to demonstrate prejudice. Under other circumstances, however, the content of the lost information might be “fairly evident” and perhaps unimportant in light of other available information; the Committee Notes suggest that the party seeking relief should be required to demonstrate prejudice under those circumstances.[5] In light of these considerations, the rule leaves the court with discretion as to how best to assess prejudice.[6]

Once prejudice has been found, New Rule 37(e)(1) states that the court “may order measures no greater than necessary to cure the prejudice.” The court is afforded wide discretion in fashioning appropriate remedies, depending on the circumstances. The Committee Notes caution, however, that “authority to order measures no greater than necessary to cure prejudice does not require the court to adopt measures to cure every possible prejudicial effect.”[7]

No finding of prejudice is required, however, to impose sanctions when a party has acted “with the intent to deprive another party of the information’s use in the litigation.”[8] Sanctions for the willful destruction of ESI include (1) presumptions that the lost information was unfavorable to the party, (2) adverse jury instructions, or (3) dismissal of the action or default judgment.[9] The Committee Notes caution that these more punitive remedies should not be confused with the “curative” remedies available under Rule 26(e)(1), noting that courts should:

ensure that curative measures under subdivision (e)(1) do not have the effect of measures that are permitted under subdivision (e)(2) only on a finding of intent to deprive another party of the lost information’s use in the litigation. An example of an inappropriate (e)(1) measure might be an order striking pleadings related to, or precluding a party from offering any evidence in support of, the central or only claim or defense in the case. On the other hand, it may be appropriate to exclude a specific item of evidence to offset prejudice caused by failure to preserve other evidence that might contradict the excluded item of evidence.[10]

Lastly, and while not incorporated into Rule 37(e) itself, the Committee Notes provide considerable analysis as to how courts should determine whether a party has taken reasonable steps to preserve ESI. The Committee Notes describe factors to address in considering when a duty to preserve may have arisen, as well as proportionality factors in evaluating what preservation measures may have been reasonable.[11] They also emphasize that Rule 37(e) does not apply when a party loses information despite reasonable preservation efforts.[12] Finally, the Committee Notes explore the distinction between independent common law or statutory duties to preserve information and the obligations triggered under New Rule 37(e).[13] Litigants attempting to evaluate the sufficiency of preservation efforts should reference these notes in addition to the existing case law.

Rules 55 and 84

Rule 55, governing default judgments, has also been amended to clarify the difference between entry of default and entry of a final judgment. An entry of default that does not dispose of all issues in the case may be set aside for good cause under New Rule 55. If, on the other hand, an entry of default results in a final judgment under Rule 54, such a judgment can be set aside only under the standards of Rule 60. Finally, Rule 84 has been amended to abrogate the appendix of forms.

Conclusion

The 2015 Amendments to the Federal Rules may very well reinvigorate many preexisting standards for the conduct of discovery in federal courts. While many contend that the amendments to Rule 26 will spawn considerable motions practice, others argue that the amendments will ultimately help streamline the discovery process. Other developments, such as the new framework for sanctions under Rule 37(e), will provide the court with additional tools to deal appropriately with failure to preserve ESI.


[1] 2015 Committee Notes, supra note 4 at 34.

[2]. Id.

[3]. Id. at 38.

[4]. New Rule 34(b)(2)(B).

[5]. Id. at 43, 47.

[6]. Id.

[7]. Id. at 44.

[8]. New Rule 37(e)(2).

[9]. New Rule 37(e)(2)(A), (B), and (C).

[10]. 2015 Committee Notes, note 4 at 44.

[11]. Id. at 39-41.

[12]. Id. at 41.

[13]. Id. at 40 (“The fact that a party had an independent obligation to preserve information does not necessarily mean that it had such a duty with respect to the litigation, and the fact that the party failed to observe some other preservation obligation does not itself prove that its efforts to preserve were not reasonable with respect to a particular case.”).


Bill Groh is an experienced commercial litigator who has represented individuals and small businesses in a variety of fields since 2005. Mr. Groh frequently handles matters involving both intellectual property and commercial litigation issues, including trademark infringement, copyright infringement, trade secret infringement, civil disputes involving breach of contract, business partnerships, allegations of breach of fiduciary duty, conversion, civil theft, actions for dissolution of partnership interest, and other such disputes that are increasingly common in modern business.

The 2015 Amendments to the Federal Rules of Civil Procedure (Part 2 of 3)

Bill_Groh

Editor’s Note: This is Part 2 of a three-part series discussing the 2015 changes to the Federal Rules of Civil Procedure. Part 1 discussed the changes to Rules 1, 4, and 16, and is available here. Part 3 will discuss the changes to Rules 30, 31, 33, 34, 37, 55, and 84. 

By William C. Groh, III

Rule 26

The changes to Rule 26(b)(1), which governs the scope of discovery, have generated considerable controversy and debate. The amended rule introduces two main changes. First, it does away with the “reasonably calculated to lead to the discovery of admissible evidence” language while clarifying the definition of “relevant information” in relation to the proper scope of discovery.[1] Second, the amended rule emphasizes that discovery must be “proportional to the needs of the case,” introducing a six-factor test by which the courts must determine proportionality.[2]

Redefining “Relevance”

The “relevance” standard under New Rule 26(b)(1) is narrower and more streamlined than in the prior rule. While Prior Rule 26(b)(1) allowed for discovery relevant to any claim or defense,[3] it also allowed for discovery of “any matter relevant to the subject matter involved in the action” upon a showing of good cause. It provided that “relevant” information need not be admissible “if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.”[4] New Rule 26(b)(1) is more restrictive. It does away with the “relevant to the subject matter” and “reasonably calculated” standards. The new rule requires that discovery be “relevant to any party’s claim or defense.” Discovery fitting this relevance criterion “need not be admissible in evidence to be discoverable.”[5]

The elimination of the “reasonably calculated to lead to the discovery of admissible evidence” language is technically less substantive than it may seem. The Committee Notes point out that the wording of Prior Rule 26(b)(1) has caused practitioners to cite the “reasonably calculated” language as the general standard for the scope of discovery instead of the true “relevance” standard.[6] The Committee Notes emphasize that the appropriate scope is “relevance” to claims and defenses, and New Rule 26(b)(1) removes the “reasonably calculated” language to prevent further confusion.[7]

New Rule 26(b)(1) also no longer permits discovery that is merely “relevant to the subject matter involved in the action,” even on a showing of good cause.[8] Discovery under the new rule must be “relevant to any party’s claims or defense,” but what does that mean in practice? The Committee Notes cite illustrative examples including “other incidents of the same type, or involving the same product”; “information about organizational arrangements or filing systems”; and “information that could be used to impeach a likely witness.”[9] The Federal Rules Advisory Committee first introduced these examples in the Committee Notes to the 2000 amendments to Rule 26. The Committee Notes to the 2000 amendment acknowledge that a bright-line rule distinguishing “relevance to claims and defenses” from “relevance to subject matter” is not practical, given the case-specific nature of the criteria.[10]

New Rule 26(b)(1) also no longer expressly describes the scope of discovery as including “the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter.”[11] This change is cosmetic. As the Advisory Committee explains, “[d]iscovery of such matters is so deeply entrenched in practice that it is no longer necessary to clutter the long text of Rule 26 with these examples.”[12]

The above changes refocus the scope of discovery on relevance to claims and defenses. These changes make it more likely that courts will sustain objections to discovery of subject matter that is not in itself “relevant” to the parties’ claims and defenses as expressed in the pleadings.

The Six-Factor “Proportionality” Test

Possibly the flagship feature of the 2015 amendments to Rule 26, New Rule 26(b)(1) requires that, in addition to being relevant, discovery be “proportional to the needs of the case.” The New Rule also sets out six factors that guide the determination of “proportionality”:

Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

Many public commentators have expressed both optimism and concern about the “new” requirements that the proportionality test would impose on litigants and the courts. Opponents argued that a formal proportionality test would make discovery more difficult by imposing a new layer of motions practice over “proportionality” in every case. As one commentator wrote:

I strongly oppose the amendment to Rule 26(b) injecting a proportionality test into the Rules. Under the current Rules, many of my adversaries routinely include boilerplate objections in to their responses to virtually every discovery request that I send. If this proposed change is adopted, I am confident that those boilerplate objections will be joined by an objection that the discovery requests are not proportional to the needs of the case. This, in turn, will generate unnecessary litigation over proportionality every time that a new discovery request is served.[13]

Other commentators expressed optimism about the changes. As one supporter wrote:

This change would provide a significant improvement compared to the overbroad scope of discovery defined by current Rule 26(b)(1) by reducing the costs and burdens in discovery practice. In addition, I support moving the proportionality language presently found in Rule 26(b)(2)(C)(iii) to 26(b)(1). This modification would remind parties that the principle of proportionality applies to all discovery and would encourage parties and judges to focus on what discovery should mean to each individual case.[14]

In addressing these and other comments, the Advisory Committee emphasized that Rule 26 already includes most of the above “proportionality” requirements.[15] Indeed, the only new factor is “the parties’ relative access to relevant information.” Other proportionality factors found in the old version of 26(b)(2)(C) include (1) analysis of the burden imposed by the discovery versus its likely benefit, (2) the importance of the issues at stake, (3) the amount in controversy, (4) the resources of the parties, and (5) the importance of the discovery in resolving the issues. In other words, the “proportionality” test does not introduce an altogether “new” standard so much as it re-emphasizes and re-prioritizes existing standards. The amended criteria are designed to refocus norms of discovery practice by giving existing proportionality requirements more conspicuous treatment in the rules.

The proportionality test found in New Rule 26(b)(1) borrows much of its language from Prior Rule 26(b)(2)(C), which allowed the courts to limit discovery upon a determination that “the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.” Prior Rule 26(b)(1) subjected the scope of discovery to the “limitations imposed by 26(b)(2)(C)” but only incorporated the limiting language by reference. The new rule expressly imports this language from Prior Rule 26(b)(2)(C) and places it “front and center” in Rule 26(b)(1).

The Committee Notes describe the above changes as a re-emphasis of current standards, stating:

The present amendment restores the proportionality factors to their original place in defining the scope of discovery. This change reinforces the Rule 26(g) obligation of the parties to consider these factors in making discovery requests, responses, or objections. Restoring the proportionality calculation to Rule 26(b)(1) does not change the existing responsibilities of the court and the parties to consider proportionality, and the change does not place on the party seeking discovery the burden of addressing all proportionality considerations.[16]

Something old, something new. For better or for worse, commentators generally agree that, by putting the question of proportionality front and center, disputes over proportionality will likely increase motions practice as the new rule takes effect. The Tenth Circuit did not require courts to make formal findings applying the proportionality factors as they existed under the old rules.[17] Courts and litigants generally did not systematically apply these factors in discovery or related motions practice. As the District of Maryland observed:

Despite the obvious utility of the [Prior] Rule 26(b)(2) factors in tailoring discovery to accommodate fair disclosure without imposing undue burden or expense, they have tended largely to be ignored by litigants, and, less frequently than desirable, used by the courts, sua sponte, to manage discovery. Instead, particularly with respect to disputes involving Rule 33 and Rule 34 discovery, the focus of the litigants tends to be the party seeking discovery’s perceived “right” to all information relating to the broad “subject matter” of the litigation, without any reflection as to the real usefulness of the information sought, or the burden or expense required to produce it, countered by the party resisting the discovery’s unparticularized claims of burden, expense, irrelevance, and privilege.[18]

It is therefore important to consider how courts might formally apply the six criteria as a group in the context of determining whether challenged discovery meets the proportionality requirements of the new rule.

Factor 1: importance of the issues at stake. The Rules Committee deliberately chose “the importance of the issues” as the first of the six factors, placing it before even “the amount in controversy.” The Committee made this decision to emphasize that the amount in controversy does not trump issues of substantive justice.[19] What constitutes an “important issue,” however, remains open to question. The Advisory Committee cites the earlier 1983 Committee Note, which discussed this concept in terms of “vitally important personal or public values,” stating:

The 1983 Committee Note recognized “the significance of the substantive issues, as measured in philosophic, social, or institutional terms. Thus the rule recognizes that many cases in public policy spheres, such as employment practices, free speech, and other matters, may have importance far beyond the monetary amount involved.” Many other substantive areas also may involve litigation that seeks relatively small amounts of money, or no money at all, but that seeks to vindicate vitally important personal or public values.[20]

The placement of “importance of the issues” before “amount in controversy” was also in response to comments strongly objecting to a prior version of the amendment that placed “amount in controversy” first. As one attorney warned, “[f]ew of our cases are likely to garner in excess of six figures, so putting ‘the amount in controversy,’ before ‘the importance of the issues at stake,’ spells the death knell for employment litigation.”[21]

Other comments questioned the wisdom of requiring judges to evaluate the “importance” of some cases over others. As one commentator noted:

One judge will assess the “importance of the issues at stake” vastly differently from another or perhaps even differently than the judge himself might on another day (for reasons initially described in Judge Jerome Frank’s “Courts on Trial,” but that are becoming more well-documented through studies of decision-making based on “implicit biases” or “blind spots”). Judges—like all humans—are likely to value issues with which they have experience over issues with which they have little or no experience. Justice Thurgood Marshall presumably would place greater value on civil rights issues based on his legal background; Justice Tom Clark, who he replaced, presumably would place greater value on national security issues and corporate fraud or antitrust issues based on his experiences. . . .[22]

Nonetheless, New Rule 26(b)(1) provides potential ammunition for those seeking discovery in cases implicating important policy questions, even if the amount in controversy is relatively small. On the other hand, the “importance of the issues” criterion could pose an obstacle in cases involving small amounts in controversy, high discovery costs, and garden-variety legal issues.

Factor 2: the amount in controversy. This criterion is relatively straightforward, though not uncontroversial. Cases involving low amounts in controversy implicitly mandate a more streamlined approach to discovery, lest the parties spend more than the case’s monetary value on costly discovery issues.

Consideration of the amount in controversy invites analysis of the costs of the proposed discovery. An amount in controversy of $20,000 would theoretically weigh against allowing a discovery request that would cost $20,000 to comply with. On the other hand, what if the discovery costs are high because the responding party’s records are disorganized or difficult to search?

One may expect courts to tackle this problem by assessing whether the responding party’s asserted costs are reasonable under the circumstances. However, with information storage and retrieval technology rapidly changing even from year to year, it would be difficult for the courts to develop objective metrics that would keep pace with changing technology.

Factor 3: parties’ relative access to relevant information. As the “new factor” in the equation, the Advisory Committee Notes describe “Relative Access” as an attempt to address the problem of “information asymmetry.” As the Committee Notes point out:

One party—often an individual plaintiff—may have very little discoverable information. The other party may have vast amounts of information, including information that can be readily retrieved and information that is more difficult to retrieve. In practice these circumstances often mean that the burden of responding to discovery lies heavier on the party who has more information, and properly so.[23]

This factor therefore deals with whether the party seeking discovery has reasonable access to the information requested by other means. Even if the requesting party technically has other means of access, this factor may still favor discovery if the producing party can produce the requested information quickly and easily.

Factor 4: the parties’ resources. While New Rule 26(b)(1) requires consideration of the parties’ resources, the Advisory Committee has cautioned against an overuse of this factor in limiting or allowing discovery. Citing prior Committee Notes on the subject, the Committee Notes state:

[C]onsideration of the parties’ resources does not foreclose discovery requests addressed to an impecunious party, nor justify unlimited discovery requests addressed to a wealthy party. The 1983 Committee Note cautioned that “[t]he court must apply the standards in an even-handed manner that will prevent use of discovery to wage a war of attrition or as a device to coerce a party, whether financially weak or affluent.”[24]

Where the parties’ resources are a factor, a protective order under New Rule 26(c)(1)(B), which explicitly provides for the allocation of expenses, can also shift the costs of producing the discovery in appropriate cases.

Factor 5: the importance of the discovery in resolving the issues. The “importance” factor requires assessment of the degree to which the discovery is necessary to prove a claim or defense. Courts analyzing this factor may consider the discovery’s relevance to a claim or defense as well as whether the issues implicated are central to the case.[25]

Factor 6: whether the burden or expense of the proposed discovery outweighs its likely benefit. While much case law currently addresses the cost-benefit analysis of discovery, the Committee Notes also point out that this analysis should consider the ever-evolving capability of electronic search methods, stating:

The burden or expense of proposed discovery should be determined in a realistic way. This includes the burden or expense of producing electronically stored information. Computer-based methods of searching such information continue to develop, particularly for cases involving large volumes of electronically stored information. Courts and parties should be willing to consider the opportunities for reducing the burden or expense of discovery as reliable means of searching electronically stored information become available.[26]

These comments make clear that the relevance of today’s arguments about burden and expense may change significantly as new means of search and retrieval of ESI become commonplace.

This factor is also controversial. While it may limit unnecessarily burdensome discovery, commentators have expressed concern that “burdensomeness” arguments provide opportunities for gamesmanship. Comments submitted by the American Association for Justice cautioned that “this factor upends the incentives for defendants to preserve documents in an easily accessible format and encourages them to ensure that discovery will be too expensive or difficult to retrieve.”[27] On the other hand, the courts have been and remain equipped to compel important discovery if it finds a party’s alleged “burden” in producing the discovery appears to be self-inflicted.[28]

Other considerations regarding the proportionality test. Some public commentators have expressed concern that the “proportionality” test will burden the party seeking discovery with demonstrating proportionality.[29]

The Committee Notes imply a shared burden to demonstrate (or refute) proportionality, pointing out that the proportionality test “does not place on the party seeking discovery the burden of addressing all proportionality considerations,” and is not intended to “permit the opposing party to refuse discovery simply by making a boilerplate objection that it is not proportional. The parties and the court have a collective responsibility to consider the proportionality of all discovery and consider it in resolving discovery disputes.” [30]

While courts have not yet interpreted the “shared” burden to demonstrate proportionality, existing case law suggests that each party will be required to present facts within their possession in objecting to or compelling discovery.

As the District of Colorado has observed:

When the discovery sought appears relevant, the party resisting the discovery has the burden to establish the lack of relevancy by demonstrating that the requested discovery (1) does not come within the scope of relevance as defined under Fed.R.Civ.P. 26(b)(1), or (2) is of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure. . . . However, when a request for discovery is overly broad on its face or when relevancy is not readily apparent, the party seeking the discovery has the burden to show the relevancy of the request.[31]

Shifting the cost of discovery. Rule 26(c)(1)(B) has also been amended to recognize expressly the court’s authority to allocate discovery costs as part of a protective order. Such orders may be especially useful in cases in which the parties cannot agree on proportionality. Depending on the circumstances, a party may seek a cost-shifting protective order as a way to resolve controversies over the burdensomeness of particular requests.

Early discovery requests and discovery sequencing. New Rule 26(d)(2) allows parties to deliver Rule 34 production requests ahead of the Rule 26(f) conference. Under the new rule, responses are not considered served until the conference occurs. Responses are due within 30 days (not 33)[32] after the conference. The new rule allows the parties to stipulate or move the court for longer deadlines. Finally, New Rule 26(d)(2) allows the parties to stipulate as to the sequence of discovery without requiring a motion or court order.


 

[1]. See New Rule 26(b)(1).

[2]. Id.

[3]. Prior Rule 26(b)(1).

[4]. See id.

[5]. See New Rule 26(b)(1).

[6]. 2015 Committee Notes, supra note 4 at 24.

[7]. Id.

[8]. See New Rule 26(b)(1).

[9]. 2015 Committee Notes, supra note 4 at 23.

[10]. Fed.R.Civ.P. 26 at Committee Notes to 2000 Amendment. The 2000 Committee Notes emphasize that “[t]he dividing line between information relevant to the claims and defenses and that relevant only to the subject matter of the action cannot be defined with precision,” and caution that the relevance of particular information to the case “depends on the circumstances of the pending action.”

[11]. New Rule 26(b)(1).

[12]. 2015 Committee Notes, supra note 4 at 23.

[13]. Comment from Allan Karlin, www.regulations.gov/#!documentDetail;D=USC-RULES-CV-2013-0002-2171.

[14]. Comment from Gregory Grisham, www.regulations.gov/#!documentDetail;D=USC-RULES-CV-2013-0002-2218.

[15]. See 2015 Committee Notes,  supra note 4 at 19.

[16]. Id.

[17]. In re Cooper Tire & Rubber Co., 568 F.3d 1180, 1194 (10th Cir. 2009) (finding that Fed.R.Civ.P. 26(b)(2)(C)(iii) does not require a formalistic and detailed balancing of the factors listed therein.).

[18]. Thompson v. Department of Housing and Urban Development, 199 F.R.D. 168, 171 (D.Md. 2001).

[19]. 2015 Committee Notes, supra note 4 at 17.

[20]. Fed.R.Civ.P. 26 at 1983 Amendment Committee Notes.

[21]. Comment from Suzanne Tongring, www.regulations.gov/#!documentDetail;D=USC-RULES-CV-2013-0002-1908.

[22]. Comment from J. Byran Wood, www.regulations.gov/#!documentDetail;D=USC-RULES-CV-2013-0002-2112.

[23]. 2015 Committee Notes, supra note 4 at 20-21.

[24]. 2015 Committee Notes, supra note 4 at 22.

[25]. See, e.g., In re Cathode Ray Tube (CRT) Antitrust Litigation, 301 F.R.D. 449, 455 (N.D.Cal., 2014.)

[26]. 2015 Committee Notes, supra note 4 at 22.

[27]. Comment from American Association for Justice President J. Burton LeBlanc (submitter Richard Williger), www.regulations.gov/#!documentDetail;D=USC-RULES-CV-2013-0002-2046.

[28]. See, e.g., Foster v. Logan’s Roadhouse, Inc., 2013 WL 1498958, at *4 (N.D.Ala. 2013) (“Even so, plaintiff should not be prevented from obtaining necessary discovery simply because defendant has chosen to maintain its records in a manner that makes searches difficult and time-consuming. Overall, the importance of the discovery to plaintiff outweighs defendant’s burden in producing it.”).

[29]. See, e.g., Comment from John Vail, Center for Constitutional Litigation, www.regulations.gov/#!documentDetail;D=USC-RULES-CV-2013-0002-0199 (“Instead of a requesting party being entitled to information unless the opposing party shows disproportionality, a requesting party now would be entitled to information only upon affirmatively demonstrating proportionality.”).

[30]. 2015 Committee Notes, supra note 4 at 43.

[31]. Bonanno v. Quizno’s Franchise Co., LLC, 255 F.R.D. 550, 552 (D.Colo. 2009).

[32]. Because New Rule 16 deems the Rule 26(f) conference to constitute “service” of a previously delivered Rule 34 request, the “service” was not accomplished by the prior delivery of the requests. As such, delivery of a Rule 34 Discovery Request by electronic means prior to the Rule 26(f) conference should not trigger the time extending provisions of Fed.R.Civ.P. 6(d) that would apply if the requests were electronically served after the Rule 26(f) conference.


Bill Groh is an experienced commercial litigator who has represented individuals and small businesses in a variety of fields since 2005. Mr. Groh frequently handles matters involving both intellectual property and commercial litigation issues, including trademark infringement, copyright infringement, trade secret infringement, civil disputes involving breach of contract, business partnerships, allegations of breach of fiduciary duty, conversion, civil theft, actions for dissolution of partnership interest, and other such disputes that are increasingly common in modern business.