Friday, March 14, 2008

Book Review – The Electronic Evidence and Discovery Handbook by Sharon D. Nelson, Bruce A. Olson and John W. Simek

I was fortunate to win the above titled book as a prize during the Macs Practice Law Week hosted by The Inspired Solo. The authors, Sharon D. Nelson, Bruce A. Olson and John W. Simek, mention in the introduction to the book that when they predicted that all lawyers would need to learn about electronic discovery (ED) in the near future, they were meet with the same remarks from attorneys that I hear about virtual law practices – it’s just a trend and will not have an impact on the way that I practice law.

Until I read through this book, I don’t think I realized either the extent to which issues surrounding ED have crept into every law practice – even solos and small firms. It has gotten me thinking about the ways that I need to counsel my clients, not just my small business clients, but also my family law and estate administration clients. Clients need to be educated about their own electronic activities and how those actions could show up again as electronic evidence in their legal cases.

As the authors make clear in The Electronic Evidence and Discovery Handbook, messages written in an email will hang around longer and have more copies than a contract written on paper and stuck in a file somewhere. Not only is this good evidence, but in some cases, it may be easier to get a hold of.

In this day and age, I find it difficult to imagine that anyone could assume that just because they are communicating by email or text message, that this is somehow not a “real” transfer of information. There have been many articles along these lines in the past few years, especially regarding the inappropriate use of email or the slack way in which even professionals will write messages to colleagues and clients using slang or unprofessional language.

This trend seems to be changing, or at least people are becoming better at determining what e-conduct is appropriate for which e-format. You can disclose TMI or TFS comments on your personal D&D listserv, but BTW you should write in complete sentences when emailing opposing counsel from your law office.

In my virtual law practice, I try to avoid using email because it is unencrypted and therefore, not a secure way to communicating with clients. My VLO provides a secure way to communicate with my clients and I use this as a way to lock down the terms of our attorney/client relationship and the scope of legal services I am providing. As with a traditional retainer agreement, I count on the fact that in the event that I ever need to defend my actions, I will be able to use my e-correspondence with the client as electronic evidence.

The Electronic Evidence and Discovery Handbook is a fascinating book on a topic that affects all attorneys, even solos and small firm practitioners. With useful forms, checklists and guidelines on the included CD, I’d recommend it as a useful addition to any law office library – virtual law offices all the more.


Sheryl Sisk Schelin said...

Great review, Stephanie! I'm glad you liked the book you won.

It's interesting to me that you don't use email -- I tend to do so, quite a bit, with my bankruptcy clients (although generally for transmittal of information, dates, times, the like, not so much for more confidential information). Good point, though. I'd love to get a client extranet set up for my clients so we can exchange the full extent of the info I need to file their cases.

Ben Wright said...

An additional thought, Stephanie: People can use voice signatures to preserve electronic records as potential evidence for legal proceedings. --Ben said...

Ben, I read the informative post on your blog regarding SMS or Instant Message evidence. Thanks for posting it. This is a fascinating area of the law that I am very interested in studying and keeping up with.

Ben Wright said...

Stephanie: I am interested to hear what tech savvy professionals think of My Electronic Evidence as a way to preserve electronic evidence records. Why don't you give it a try? It's free. --Ben