The iPad is becoming more common and much less a novelty in the everyday practice of law.  It’s advantages in the courtroom are highly praised.  The ability to make a voluminous file highly portable is unmatched.   The out of office connectivity give us an ability to work remotely and on a moment’s notice that has never before existed.  Yet it still is criticized for its inability to do the one thing that lawyers do most: draft documents.  In the iPad world, this is know as “generating content.”  This article in Time by Harry McCracken addresses the content creation “problem” and raises some interesting points. 

Do you use your iPad for more than quick email responses?  What drafting obstacles do you have with the iPad?  Is speech recognition on mobile devices like the iPad the end of the Dictaphone?

There was a very pivotal decision yesterday in a California case involving the collateral source issue.  In Howell v. Hamilton Meats, in a 6 to 1 decision, the California Supreme Court held that a plaintiff may only recover the actual amount charged for medical expenses and may not recover the amount written off pursuant to agreements between health insurers and healthcare providers.  The court left open the question of whether amount charged by the healthcare provider prior to the "write-off" could be admitted into evidence.  There is some speculation that the retroactive application of this ruling means that there could be new trials awarded or damage reductions in prior cases where a plaintiff recovered more than the paid amount for medical expenses.   

In an ironic twist, a similar case is currently before the normally conservative Alabama Supreme Court.  It remains to be seen whether Alabama will follow the similar conservative approach that California has now adopted.  Oral arguments have taken place in the Alabama case and a ruling is forthcoming.  The issue in that case is whether the defendant can admit into evidence for the jury to hear the lesser amount paid by healthcare providers to satisfy the higher charges.

It seems Cameron and Tyler Winklevoss have exhausted every possible legal remedy.  It is highly unlikely the Supreme Court will grant certiorari with no new or novel legal issues at stake.  Whether their protracted post-settlemet fight was about positioning for more dollars or about a legitimate legal position we will never know.  But it seems apparent Mark Zuckerberg has gotten the best of his Harvard classmates in the end (although at a settlement price tag of $65 million, the Winklevosses should be as upset as that appear to be).

At face value (and not knowing the details of the protracted dispute), it seems to overturn a negotiated settlement, as the “Winklevi” have sought to do, would do a grave injustice to courts’ long-held public policy to discourage litigation and encourage voluntary resolution.  Parties want to know when it’s done, it’s done.  No one wants to sign a release or pay a settlement and still fear the possibility they might not have extinguished liability or may not be fully compensated.  Perhaps caveat emptor applies here; if you are buying peace be sure you know what you are buying.

This is another great article from Legal Technology News, illustrating the discoverability of social media information.  While courts are still working out the finer points of what is and is not discoverable, everyone should take note that your social networking information is always at risk of coming back to bite you.  For litigators, this tool is becoming more and more necessary.  A good cross-examination always depends on the witness mis-stating, mis-remembering, or out right fabricating a statement that is inconsistent with previous behavior or a previous statement.  Surveillance depends on people acting inconsistently in public and is an effective tool in litigation.  Social networking and social media provide the exact same opportunity; that is to uncover inconsistent public behavior.

The most interesting thing about this article to me is that facebook has now added an application to allow a user to download their entire profile history.  A litigant could request a plaintiff to do this in discovery if it would lead to admissible evidence that could not be found in any other manner.  I’m not aware of a court ordering a plaintiff to perform such a download but I would not be surprised to see the issue come up soon.

Following an established trend of researching social media in jury selection, this article from Law.com raises a few pitfalls of using this method of researching jurors.  First, it recognizes that jurors who use social media will probably have their privacy settings so that their information is not publically accessible-– a good practice for everyone.  If that is the case, then no one should have special access to it just for the purpose of jury selection. 

Second, the article points out that a juror could purposely alter their profile to get out of jury duty.  On one hand, it would be easy to assume a juror could just as easily mislead someone when asked direct questions during voir dire as they could online.  However, people are generally more candid and honest when they are asked questions face-to-face in a courtroom.  They are more likely to mis-lead behind the false façade of social media than they are in person.  Caveat emptor should be the rule for attorneys in using social media in jury selection.  Any information discovered about a potential juror’s biases is only as good as the source.

Often times employers are concerned about rogue employees posting comments in social media that could be attributed to the company via respondeat superior.  There are also frequently concerns about employees airing their grievances about the company in online public forums.  As this article in the Pittsburgh Tribune Review illustrates, employers better be careful what they say online about employees as well.  This employee felt she was harasssed via a vague and non-specific comment from her boss that led to her quitting and suing the company.  Regardless of how spurious the claims may be, the comments were enough to at least invite a lawsuit.  And that's never a good thing.
 
Of course, all of these scenarios stem from the false dichotomy in our society between the online world and the offline world.  Somehow we think there is an impenetrable veil between the two.  Whenever those two worlds collide in court, it's never pretty.

Here is a link to a very interesting article on Allstate’s subrogation lawsuit in the Toyota litigation.  Allstate is claiming it is entitled to reimbursement from Toyota for all the first party claims it paid to its insureds who were damaged due to Toyota’s defective accelerators.  Allstate and other insurers face some big (but not insurmountable) obstacles in proving their case.

Apparently RIM/Blackberry has blasted back at Steve Jobs for dragging it into the antennae controversy.  Jobs stated in a press conference that Blackberries essentially have the same problems as the iPhone with antennae reception.  If this isn’t true, I wonder if Apple and/or Jobs is open to a defamation claim or intentional interference with business relations.

http://www.cnbc.com//id/15840232?video=1547190135&play=1

The DRI Young Lawyers Seminar will be here before we know it. Now is the time to register and book your hotel and flight, if you haven’t done so already. We will be at the newly renovated Eden Roc Hotel in South Beach, Miami. For those of you not with us in Miami four years ago, this location can’t be beat. So...

REGISTER NOW - http://www.dri.org/open/SeminarDetail.aspx?eventCode=20100240

In addition to this year’s excellent line-up of speakers, we also have many other great events and networking opportunities planned:

Service Project – Come meet other YLs at our Service Project on Wednesday, June 16 from 12:30 p.m. until 4:00 p.m. We will be working with Community Partnership for Homeless (www.cphi.org), an organization that provides a comprehensive approach to assisting the homeless. Please sign up for the Project when you register for the seminar. Contact Peter Cummins (pcummins@fbtlaw.com) or Shirlethia Franklin (shirlethia.franklin@alston.com) if you have any questions.

Golf Tournament – In connection with the Young Lawyers Seminar, committee member Josh Webb in Tampa has planned a golf event for attendees and their guests on the morning of Wednesday, June 16, in Miami Beach. If you plan to attend the seminar and want to join the golf outing, send Josh an email (jwebb@hwhlaw.com) and let him know. More details will be sent to those who respond to Josh. You should have time to do both the service project and the golf tournament.

Dine Arounds/Activities – Several great restaurants to choose from including Prime One Twelve, Scarpetta, and Gotham Steak. There will also be a Thursday night post-dinner party with free cocktails. The traditional Friday afternoon pool party is always a hit. This year it is at Ocean Garden – a great place to finish off a great seminar.

Finally, find out more about the DRI YL Committee by checking out our online groups at Facebook and LinkedIn.

See you in Miami!!!

Jim

James L. Pattillo
attorney at law

Apple's iPad is set to drop Saturday, April 3. While Apple products have gained wide appeal (and market share) in recent years, most of the legal community is still wed to the windows platform in just about every aspect. The iPad could have us rethinking that.

The most attractive aspect of the iPad is its portability. It literally is the size of a legal pad and weighs only a little more. The problem is in the fact that it is primarily a content conspumption device and not a content creation device. Its great on output but poor on input. The primary input method is obviously the on screen tap-sensitive keyboard. Anyone with an iPhone knows you can't type without looking at each letter you hit. There supposedly is an attachable light keyboard but that defeats the advantage of portability.

The other input method that has failed to catch on in other arenas is voice-to-text technology (i.e. voice recognition). If this technology became viable it would present an interesting shift back a skill that is going by the wayside - dictation. I personally prefer the instant gratification of typing as oppossed to dictating to a tape and having to wait hours or even a day to see what I've written. Voice recognition solves that.

There are some decent apps on the iPhone for voice recognition. I am interested to see if someone develops a good one for the iPad. If so, I may be taking one for a test drive. Better yet, maybe Apple will integrate this into the OS at some point.

Of course this still doesn't help if you want to take notes in a deposition or hearing. (You can't use voice-to-text if you somewhere you can't talk).

Bottom line: the jury is still out on the use of the iPad in the legal community. Its hard to predict if it will have any functionality that can't already be achieved elsewehre.

Of course, I still might have to get one to avoid missing an episode of The Office next time I'm at the Young Lawyers Seminar or Annual Meeting.