Out-of-the-Box Lawyering

Civil liability for computer viruses

“Computer Viruses and Civil Liability: A Conceptual Framework.” That's the title of a recent 57-page article in the Fall 2004 issue of the American Bar Association's Tort Trial and Insurance Practice Law Journal, pp. 123-179. (The article is also online at http://www.law.unsw.edu.au/staff/devilliersm/docs/VIRUS-II.pdf.)

The article starts with the following abstract:

“This article analyzes a negligence cause of action for inadvertent transmission of a computer virus. It provides an introduction to the principles of operation and detection of viruses and analyzes the elements of negligence liability in the context of virus infection. A final section discusses and analyzes litigation complications that are a direct result of the dynamic and unique nature of virus and virus detection technology.”

Three of the major topics are: Operation and Structure of Computer Viruses, Virus Infection as Negligence Cause of Action, and Litigation Complications.

In his discussion of the negligence cause of action, Meiring de Villliers applies the traditional tort analysis of duty, breach, cause in fact, and proximate cause . Moreover, virtually all (if not all) of his case citations are to traditional non-computer common law cases. However, he includes a detailed technical analysis of viruses and their propagation and prevention and applies the common law cases and principles to the current computer problems.

He concludes with the following, part of which is similar to the abstract:

“This article analyzes the elements of a negligence cause of action for inadvertent transmission of a computer virus. The analysis emphasizes the importance of an understanding of virus and virus detection technology, as well as the economics of virus prevention, in negligence analysis. The classic principles of negligence apply to a virus case, but a plaintiff 's case may be significantly complicated by the unique and dynamic nature of the technologies involved.”

Using RFID technology in law offices - - An out-of-the-box way to spend less time and money tracking down missing files

I just received a letter from 3M about how law offices are using RFID tags and technologies to track down "lost" files. This was an AHA moment for me regarding how law firms could use a current technology that has recently been in the news.

You probably have heard of those tags. They are small chips that send out radio waves that scanners can read. They are being implanted in pets so that lost pets can be scanned to help determine the owner of the pet based on the information in the chip. A variety of articles have described how Wal-Mart will be requiring its vendors to place chips at least on the pallets they ship to help Wal-Mart with its inventory control.

Ultimately, RFID tags may be attached to every product you buy in a supermarket. Then, when you check out, a scanner at the cash register will read each tag, transmit the information to the cash register, and your bill will be totaled. And then, you won't have to take everything out of your grocery cart for the cashier only to have to reload the cart after your purchases have been rung up by the cashier.

Well, law firms are now using the technology to find "lost" or "misplaced" files that have been squirled away in some lawyer's office.

One article describes how Fish & Richardson P.C., a firm that specializes in patent and trademark law, installed an RFID system to track legal files at its Boston office. "By reducing the amount of time needed to locate files, the new system will save the law firm an estimated $144,000 a year. It used to be that once a week, an e-mail would go around the department asking everyone about the whereabouts of a lost file. . . That virtually never happens now."

Another article describes the results that Fulbright & Jaworski's Intellectual Property and Technology Practice Group had: "It took only a few weeks in the beta test for the department skeptics to become believers."

If you want more detailed information, RFID Journal has a technical definition of the RFID system:

"Radio frequency identification, or RFID, is a generic term for technologies that use radio waves to automatically identify people or objects. There are several methods of identification, but the most common is to store a serial number that identifies a person or object, and perhaps other information, on a microchip that is attached to an antenna (the chip and the antenna together are called an RFID transponder or an RFID tag). The antenna enables the chip to transmit the identification information to a reader. The reader converts the radio waves reflected back from the RFID tag into digital information that can then be passed on to computers that can make use of it."

(This definition was one of its answers in a group of its Frequently Asked Questions. The site has a number of other answers to FAQs, including "What are some of the most common applications for RFID?" and "Where will the initial benefits of RFID technology be?")

For more information, 3M's RFID site is www.3m.com/rfid.

This has nothing to do with law, but it's fun

If you want to see a fun video, go to http://i.euniverse.com/funpages/cms_content/6660/2008cc1.swf. (Warning: It's Hillary oriented!)

Law clerks speak - - Hints from law clerks

This week I attended a CLE program entitled "Law Clerks Speak." The participants included a current law clerk for a U.S. District Court judge, a recent clerk for a justice of the Louisiana Supreme Court, and clerks, past and present, for different judges of the Civil District Court for the Parish of Orleans. (New Orleans has separate courts for civil and criminal proceedings. And, in Louisiana, we call our counties parishes.)

Among the suggestions that they made were:

1. When filing lengthy motions and memoranda, especially motions involving summary judgments, consider filing or giving the law clerk a copy of your motion and memorandum on disk. This, it was said, could make their job easier because they could then "cut and paste" from the statements of contested and uncontested facts as well as from the law portion of the memoranda.

They also suggested that the disk copies be in both WordPerfect and in Word formats so that they could be used with either program.

2. When filing jury charges, you should also provide them a copy of the charges on disk. This, too, would make their jobs easier.

3. Also when filing memoranda, if you have an especially important case that you would like to increase the odds that the clerk (and I assume also the judge) reads the case in full, attach a print copy of the case to the memo. Even though the case is available electronically or in print in a West Reporter, clerks and judges sometimes just don't have the extra time to pull up the case electronically or to go to a Reporter.

(Interestingly, with regard to appeals to the federal Fifth Circuit, local Fifth Circuit Rule 31.1 provides that represented parties, with certain exceptions, must provide a diskette copy of their briefs to the court and to opposing counsel.)

Law professors should have some current experience practicing law

The title of the essay succinctly explains the author's viewpoint:

"The Dangers of the Ivory Tower: The Obligation of Law Professors to Engage in the Practice of Law."

50 Loyola L. Rev. 623 - 673 (Fall 2004) by Professor Amy B. Cohen.

Professor Cohen, who had taught for 20 years at Western New England College School of Law, took a sabbatical to see what practice was like after that 20 years. She writes of the value to her as a law professor of her one-semester experience back practicing law.

The text of the essay is 22 pages long. The remaining 29 pages consists of two appendices: a survey form for intellectual property practitioners that she conducted during her sabbatical and her summaries and graphs from the data.

There will be an ABA teleconference on an out-of-the-box tool for non-appellate lawyers - - Using amicus briefs on appeal

The ABA will be having a 90-minute teleconference on "Using Amicus Briefs to Win on Appeal." Here's some of their information on the teleconference:

"Expand your appellate practice by working effectively with amici, writing briefs and learn how to use them to increase your chances of obtaining an appellate victory or give a non-party client an opportunity to shape the law in critical areas. Our expert panel of experienced appellate advocates will teach you how to use amicus briefs effectively.

"In this 90-minute teleconference you will learn:

· How to work with amici to increase your chances of winning the appeal
· How to generate business by offering to write amicus briefs
· How to write an amicus brief that will shape the court's opinion
· How to respond, as a party, to multiple amicus submissions
· How to grab the court's attention with scientific and industry data

The conference will be on Thursday, March 17, 2005, 2:00- 3:30 pm EST.

The fees range from $95 to $150, depending on whether you are an ABA member and whether you are a member of certain ABA sections.

For details, you can go to http://www.abanet.org/tips/cle/amicus_flyer.pdf.

Love contracts: Employers are using them to help prevent sexual harassment claims

The National Law Journal has a recent article with the title and subtitle:

"Workplace ‘love contracts' on the rise: Agreements used to hedge against sexual harassment claims." (February 21, 2005, p. 4.)

According to the article:

"Aside from prohibiting office affairs altogether, some companies are considering ‘love contracts,' which help to protect them from a sexual harassment suit if two employees are dating and it ends badly.

"So-called love contracts confirm that a relationship is consensual, state the ground rules for office behavior and reiterate sexual harassment policies, said Stephen Tedesco, a partner in the San Francisco office of Littler Mendelson who has completed hundreds of the contracts for his clients over the past few years."

NOTE: The NLJ issue is dated March 21. The online version is dated March 23 and is at http://www.law.com/jsp/cc/pubarticleCC.jsp?id=1108992917780