Generation J.D.

Why some people take pride in the fact their Facebook profile emulates an episode of Tosh.0 is beyond me. (I am not saying that I don’t watch the show and laugh hysterically. But, simultaneously, I do wonder why people put some of this stuff up on the Internet for the entire world to see.)

While Facebook has been in the news recently for its upcoming IPO, another story, about Facebook privacy, caught my attention on the radio as I was brushing my teeth this morning. Apparently, Facebook is still working on deleting photos from its servers in a timely manner nearly three years after the issue was brought to Facebook’s attention.

Have you ever deleted a horrific photo on Facebook that was posted by a “friend?” Well, you may not have really deleted it. Photos “deleted” from Facebook seemingly never go away if you have a direct link to the image file on Facebook’s servers. Just imagine the joy felt by those individuals who had the common sense or foresight to delete photos because they didn’t want retaliation from an employer, wanted to avoid family drama or uploaded a photo of a friend without permission, to name a few reasons, when they discovered the photo would remain accessible for an indefinite amount of time as long as someone had a direct link to the .jpg file in question.

A few months ago, I had to research the discoverability of information and data on a Facebook (or other social media) account and profile. From the limited guidance published by a few jurisdictions, it seems that a party would likely succeed in requesting Facebook information and data during the discovery process. The court’s interpretation of federal Rule 26(b)(2)(c) allows for an extremely broad scope of relevancy.

While Maryland courts have not ruled on this broad scope of relevancy as it pertains to social media discoverability pursuant to Rule 26(b)(2)(c), it has ruled on its reliability and authentication. In April 2011, the Maryland Court of Appeals reversed the conviction of Antoine Griffin, which was based on evidence gathered from a MySpace profile of Griffin’s girlfriend. The Court of Special Appeals had ruled the police officer proffered by the state as an authenticating witness was sufficient to authenticate the MySpace profile printout. (A law professor from Chicago gave a great summary of this case on his blog and I will highlight some points here.)

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The word “solo” means “alone.” The definition itself can be good reason for a lawyer to avoid it — it implies all of those things that humans as social animals try to avoid.  From the primitive need for security in larger numbers to the modern need for a ridiculously high number of Facebook friends, we are designed to seek out others.

Done right, going solo should be more communal than working in a big law firm. Modern technology gives us the benefit of email, listservs, instant chat and video chat. Networking lunches are more important for solos, who rely on others for business referrals. Bar association CLE classes and meetings provide a lifeline to similarly-situated lawyers. Family and friends boost us up and make the solo dream a reality.

And the best reason for going solo? Autonomy. The chance to create something, to apply life’s lessons to your firm, to set your own priorities. That’s why I’m striking it out “on my own.” As any solo will tell you, the work ranges from the mundane (filing articles of organization and opening an IOLTA account) to the exciting (starting a website and that first meeting with a potential client).

Coming on the heels of Michael Siri’s post Friday detailing the disappointing lack of donated food to the Maryland Food Bank this holiday season, my first official priority is to help turn that around. For every “Like” my new Facebook business page gets between now and Dec. 31, I will donate $1 to the Maryland Food Bank.  I’d be pleased if other lawyers or local law firms make the same offer — let us know in the comments section below.

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On slow news days (also known as “My weekend was way too busy, and I have so much work to do that breathing, eating and other life functions seem like luxuries”) I like to suggest other blogs and news stories. Maybe this will help ease you into your week:

• Jewish apple cake: My new favorite thing. We went to Weber’s Farm a few weeks ago and purchased a Jewish apple cake. I loudly proclaimed it to be my Very Favorite Thing, and I’ve been looking for recipes ever since. I’ve made two so far, one using the recipe stated by There’s A Dad In The Kitchen (I used Golden Delicious apples — not great for eating out of hand, in my opinion, but a decent apple for cooking). Try it out; a great fall treat.
• Acrobat for Legal Professionals: If you’re an Adobe Acrobat nerd, or want to be one, this site gives you advanced tips and tricks to help you explore Acrobat’s functionality in the law office (see this post on digital letterhead for law firms).
• MyShingle: Carolyn Elefant, the muse for solos and solo wannabes, has a new edition of her book out (Solo by Choice (2011-2012 Edition): How to Be the Lawyer You Always Wanted to Be), and is celebrating with a launch on November 30 in Washington, D.C.
• The Art of Advocacy: We all know Paul Mark Sandler from his numerous writings. (That big red-and-gray book on your shelf about pleadings? That’s him). If you are a new lawyer and need help on persuasion, follow this blog. If you’re an old lawyer and think you know everything, follow this blog.
• XKCD: Just for fun.

Happy Monday!

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Last week was busy. Much of the week was spent preparing and finalizing details for the Maryland Association for Justice’s Technology Seminar. This is the third year we’ve presented this topic, and the turnout was great with over 70 attendees. (The event was so successful, in fact, that we had to change venue at the last minute to accommodate the increased registrations.)

As much work as it is to plan these programs, the rewards, much like noneconomic damages, are difficult to quantify.

We had presentations from three terrific judges — Battaglia, Grimm and Sweeney — on the impact of social networking on the law.

Court of Appeals Judge Lynne Battaglia started the panel discussion with comments about the recent Griffin v. State case, dealing with authentication of social networking evidence.

(Sidenote:  in that Griffin blog post I guessed, hoping that I was wrong, that the judges probably haven’t used any electronic social networking. Judge Battaglia informed the audience that she has tweeted, so I was happily proven wrong.)

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The Baltimore Sun ran a story the other day about social media and its role in jury selection. Federal prosecutors in state Sen. Ulysses S. Currie’s corruption case removed the names of potential jurors from questionnaires to prevent defense lawyers from looking them up online.

If that were to happen, “the court’s ’supervisory control over the jury selection process would, as a practical matter, be obliterated,’” prosecutors wrote in a letter to the judge.

I have to disagree. It’s not that I don’t understand the logic behind what prosecutors are doing. There is a lot of personal information on the Internet; some is information that people have chosen to place there themselves and some is information that they have little-to-no control over. Googleing and Facebooking members of the jury pool is going to give lawyer a ton of information about the person that they wouldn’t otherwise have.

Part of the argument against Googleing members of the jury is that it could give an unfair advantage to the legal team that decides to do it.

But it wouldn’t. Come on, you’re a lawyer and you can’t figure out a way to Google someone? If a lawyer seriously doesn’t have access to Googleable information, then maybe you should think twice before hiring that lawyer.

The Internet is so prevalent now, it makes no sense to argue that an attorney might not have access to the Internet and therefore we must ban the Googleing of jurors. Why not disallow the use of Lexis and Westlaw too? Wouldn’t it be unfair for one lawyer to use this resource if another one couldn’t?

Additionally, the information gleaned from Facebooking will not always be advantageous in jury selection. Yes, people and their friends do post information about themselves. The veracity of this information however . . . I mean, don’t bet the outcome of your case on it.

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A couple of weeks ago, as I sat in the front row in a courtroom in Prince George’s County District Court, the police detective I next to me nudged me slightly and pointed to the bailiff who looked at me sternly as he repeated, “All cell phones must be turned off while in the courtroom!”

Unfortunately, as noted in a previous post, Rule 16-110 has no provision for using an electronic device in the courtroom when not immediately before the judge. If we cannot use an electronic device any other time, there’s almost no point in having it.

While I heard bailiff before, I didn’t even consider that what he was saying applied to me because I was using my BlackBerry and its use as a phone might only be the third or fourth most useful feature. I don’t think of it as a “cell phone.”

In fact, like many, my “smartphone” has become an extension of the office. When I was interrupted in the courtroom I happened to be checking my calendar for available trial dates. But I could just as easily have been searching for opposing counsel’s contact number, checking a daily task list or texting some information to a colleague standing in for me in another courtroom. Not only do these tools make attorneys more efficient but they also improve the efficiency of the courts.

And, if you didn’t already know, smartphones can be used to perform a lot more: legal research; reading, managing and editing documents; accessing files; attending meetings remotely; dictating and sending memos; and running background checks. The list grows daily as smartphone and tablet apps are being developed that increasingly transform your smartphone into something else entirely.

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