PP3e Chapter 4
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PP3e Chapter 4

Course: LEGAL PA101, Winter 2011

School: Kaplan University

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M04_GOLD0000_00_SE_CH04.QXD 12/5/09 4:44 AM Page 126 CHAPTER 4 Technology and the Paralegal DIGITAL RESOURCES Chapter 4 Digital Resources at www.pearsonhighered.com/goldman Video Case Studies: Attorney Meet and Confer Remote Videoconference Taking Witness Video Deposition Privilege Issue: Misdirected E-mail Chapter Summary Web Links Court Opinions Glossary Comprehension Quizzes Technology Resources...

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AM Page M04_GOLD0000_00_SE_CH04.QXD 12/5/09 4:44 126 CHAPTER 4 Technology and the Paralegal DIGITAL RESOURCES Chapter 4 Digital Resources at www.pearsonhighered.com/goldman Video Case Studies: Attorney Meet and Confer Remote Videoconference Taking Witness Video Deposition Privilege Issue: Misdirected E-mail Chapter Summary Web Links Court Opinions Glossary Comprehension Quizzes Technology Resources M04_GOLD0000_00_SE_CH04.QXD 12/4/09 7:23 PM Page 127 LEARNING OBJECTIVES Laws too gentle are seldom obeyed; too severe, seldom executed. Benjamin Franklin, Poor Richard's Almanack (1756) After studying this chapter, you should be able to: 1. Explain why computer skills are essential in the law office and court system. 2. Explain the importance of understanding the language of technology. 3. Explain the functions of the components of a computer system in the law office. 4. Describe the types of software and the functions they perform in a law office. Paralegals at Work Edith Hannah and Alice Hart, Attorneys at Law, have decided to combine their practices to create the Hannah Hart Law Office. Miss Hannah has had a thriving practice for 35 years, and Miss Hart has been in practice for only 5 years. Both attorneys rely heavily on their paralegal staff to run their businesses. Elma Quinn has worked for Miss Hannah for 25 years, and Cary Moritz has been with Miss Hart for only 3 years. The Hannah law firm was located across the street from the county courthouse and the Hart office a block from the federal courthouse and government complex in a neighboring city 20 miles away. When Elma first visited the Hart office, she was surprised to see how small the Hart library was compared to Miss Hannahs library. She also noticed that the Hart office had many fewer filing cabinets and boxes and no large ledger books. Elma sat down next to Carys workstation and asked: Where do you store all of your files? We have at least a dozen heavy fireproof file cabinets and a rented warehouse room full of boxes of closed files. Ive heard of the paperless office, but you must have records somewhere and how do you do legal research without a decent law library? Cary explained how they were able to access almost everything needed to research cases online and use the Internet and online research subscriptions to find all of the latest cases, statutes, and regulations. And, that all the client files and records were also kept on the computer system. Elma expressed her real concern to Cary: I come from the old school, we use paper files and ledger books. How much will I have to learn if they decide to use your computer system? It takes an hour to get between the offices; I dont want to have to be the one to travel between the offices to exchange documents. 5. Describe the kinds of specialty applications software used in the law office. 6. Describe the features of the electronic courtroom and the paperless office. 7. Describe how a computer network and the Internet are used in the practice of law and the importance of maintaining security. 127 M04_GOLD0000_00_SE_CH04.QXD 128 12/4/09 7:23 PM Page 128 PA R T I The Paralegal Profession The attorneys spend most of their time in court; I just dont see how they will be able to find the time to work together. When they combine their offices, do you think they will have any problems combining files, clients, and office procedures? Consider the issues involved in this scenario as you read this chapter. INTRODUCTION FOR THE PARALEGAL The increased use of technology and computers in the law office, the court system, and the courtroom has changed the way many traditional procedures are performed. The computer and the Internet are increasingly used, not just for traditional document preparation, but also for maintaining client databases, keeping office and client accounting records, engaging in electronic communications, research and filing documents with the court, and trial presentation as shown in Exhibit 4.1. Computer technology is used in the following ways in the law office: Web Exploration Compare the results of the latest survey information with the data listed to the right. The full survey may be viewed at the International Paralegal Management Association website at http://www.paralegalmanagement .org/ipma/. Word processingPrepare documents Electronic spreadsheetsPerform financial calculations and financial presentations Time and billing programsRecord accurate client time and billing Accounting programsManage firm financial records, payroll, and client escrow accounts CalendaringTrack deadlines, appointments, and hearing dates Graphic presentation softwarePrepare persuasive presentations Trial presentation softwareOrganize trial presentations Internet search enginesSearch for accurate and current legal information and factual information to support a case DatabasesMaintain records and documents Document scanningConvert documents to electronic format Document search featuresLocate relevant material in documents and exhibits Email and document deliveryCommunicate electronically Exhibit 4.1 IPMA survey results Technology Most Often Used by Paralegals In a survey by the International Paralegal Management Association (IPMA), the most frequently used programs as reported by respondents were: General Microsoft Word 99% Document management programs 83% General Internet research 74% Spreadsheets 57% Databases 57% Billing applications 53% Litigation Litigation support Electronic court filing Online docket programs Trial preparation Source: 2005 Utilization Survey IPMA. 75% 42% 33% 25% M04_GOLD0000_00_SE_CH04.QXD 12/4/09 7:23 PM Page 129 C H A P T E R 4 Technology and the Paralegal 129 Paralegals in Practice PARALEGAL PROFILE Vanessa A. Lozzi Vanessa A. Lozzi specializes in litigation, or law suit proceedings, in the areas of securities, class actions, appellate law, and labor and employment law. Her current position is Litigation Technology Specialist for Butzel Long, a law firm in Detroit, Michigan with about 250 attorneys. As the Litigation Technology Specialist for my firm, I am responsible for understanding, supporting, and training firm employees to use litigation software; assisting with technology aspects of trials and arbitration; project management for document intensive cases; and staying upto-date on the best and most cost-effective technology products and tools available. Technology is a significant part of paralegal work. In litigation, probably 75% of the job involves some sort of technology. For example, at my firm: All time and billing is done electronically through a software application. The paralegals and secretaries work together to complete e-filings, the electronic filing of court documents. Paralegals are involved with electronic discovery, or e-discovery. This is the process of collecting, reviewing, managing, producing, and exchanging electronic data as evidence in a legal case. Paralegals are often asked to conduct legal research and locate other information. Since books are hardly used, they often use LexisNexis and Westlaw, online legal and factual research tools. Both offer a host of databases. Case-related information is managed electronically in many ways, including an internal electronic filing system for the firms records; electronic calendars; and software used to manage document productions, transcripts, and trial presentations. In the future, I believe that paralegals will be expected more and more to be technology experts. Since many paralegal educational programs have difficulty keeping up with technology's rapid changes, you can help educate yourself by participating in your local or state bar associations, subscribing to technology newsletters and magazines, and participating in Webinars (online seminars) and software demonstrations. Online collaborationUse the Internet to work collaboratively Online electronic document repositoriesUse for remote storage and access to documents Need for Computer Skills Computers are being used with greater frequency to share information in digital format between remote offices, courthouses, government agencies, and clients. Computer files are shared today more and more by the use of the Internet as well as in the form of CDs, DVDs, and as attachments to emails. In the past, paper had to be physically copied and sent, frequently by costly messenger service or express mail service. Today large files can be quickly, almost instantaneously, exchanged electronically, anywhere in the world, without any paper (hardcopy). Whereas formerly the physical safety of the delivery of paper documents was a concern, today the security and confidentiality of documents sent in electronic format are increasing concerns. The legal team is increasingly using the Web and the Internet for more than just pure legal research. Access to most government information is obtained online through Internet websites. Finding businesses and individuals through private service providers, such as the yellow pages and white pages, is now handled most efficiently through Web search engines such as Google and Yahoo!. Though legal firms are increasingly developing and using websites for their own businesses as shown in Exhibit 4.2, only the best of these sites are created in a way that effectively helps to retain clients and attract new clients. The implementation of new federal court rules on electronic discovery, the use of electronically stored documents in litigation, and emerging electronic discovery case law is creating increased demand for skills and knowledge in the use of technology in civil litigation. Increasingly the legal team must be able to interface with technology professionals in maximizing the efficiency of internal computer usage, and in obtaining and handling client and trial data electronically. Everyone on the legal team must now Digital format A computerized format utilizing a series of 0's and 1's. Attachment A popular method of transmitting text files and graphic images by attaching the file to an email. Hardcopy Paper copies of documents. M04_GOLD0000_00_SE_CH04.QXD 130 12/4/09 7:23 PM Page 130 PA R T I The Paralegal Profession Exhibit 4.2 A typical law firm website, the new yellow pages Source: Reprinted with permission from Mellon, Webster, & Shelly Law Offices. Electronic repository An off-site computer used to store records that may be accessed over secure Internet connections. Online collaboration Using the internet to conduct meetings and share documents. have a working familiarity with computers and the types of computer programs used in the law office. Not too many years ago, the average law office had a typewriter, an adding machine, and a duplicating machine of some type. Paper was king, with every document typed, edited, retypedand frequently retyped again. In each instance, a paper copy was produced and delivered to the supervising attorney for review and additional changes. It then was returned for retyping and eventually sent to the client, to the opposing counsel, or filed with the court. File cabinets abounded in the law office, and the storage of paper files created back rooms, warehouses, and other storage locations filled with box after box of paper. The trend is toward eliminating paper in the law office through the use of computer technology and software. Members of the legal team frequently find themselves working from locations outside the traditional office. In some cases, the legal team members are located in different offices of the firm or are from different firms located in different parts of the country or world. Each member of the team may need access to the case data or electronic files. One solution is to have all of the files stored electronically in an electronic repository on a secure, protected file server to which everyone authorized has access over the Internet. Members of the team may use the Internet to work collaboratively using online collaboration software that allows each person to see the documents and, in some cases, each other, and make on-screen notes and comments. A number of companies provide services and software for converting case documents to electronic format and storing of the documents on a secure server. Collaboration software is provided for the individual members of the legal or litigation team. Exhibit 4.3 shows a typical, secure remote litigation network. M04_GOLD0000_00_SE_CH04.QXD 12/4/09 7:23 PM Page 131 C H A P T E R 4 Technology and the Paralegal 131 Exhibit 4.3 Secure remote access for the legal profession Remote Offices INTERNET Fire Wall Branch Office Data Center MAIN OFFICE Mobile User Technology Usage in the Law The role of technology in the law has evolved in a very few years from a minor function, such as the stand-alone word processor, to a ubiquitous element in the management of law offices of all sizes. Computers are now being used for everything from word processing to computerized timekeeping, payroll productions, and tax return preparation. In some offices computerized telephone systems even use a computerized attendant to answer the phone without human intervention. The use of technology in litigation was once limited to large law firms working on large cases for wealthy clients who could pay the cost of the technology. Today even the smallest law firm and litigator must use technology. Some courts are demanding computerized filing. Records previously available in paper form, such as medical records in litigation cases, are now provided electronically. The result is that offices of all sizes need to have computer or technology support, in some cases with dedicated technologists or support of the computerized infrastructure and others dedicated to providing litigation support. Outsourcing Outsourcing has become a buzzword for shipping work out of the office or overseas to save money. Some of the services that can be performed in-house may, in fact, be better outsourced. For years, many law firms have outsourced the payroll function instead of preparing payroll checks and tax returns in-house. The confidentiality of information about salaries may dictate that an outside firm handle the payroll process so that only a few people in the office have access to the critical payroll information. In a similar vein, the accounting functions may be outsourced to an outside bookkeeping or accounting firm. Using an outside computer consultant to help with support for the hardware and software of the office is a form of outsourcing and may involve a help desk located in a foreign location to answer questions. How Much Do I Really Need To Know No one can be an expert in everything. What is important is to know enough to know what you do not know and be able to find someone who does. The need is to understand the basic concepts and be able to communicate with those who are the experts. Having a basic understanding of the different programs used in the legal environment is a starting point. Know the functions of the programs used in daily support of the legal team, Outsourcing Use of persons or services outside of the immediate office staff. M04_GOLD0000_00_SE_CH04.QXD 132 12/4/09 7:23 PM Page 132 PA R T I The Paralegal Profession such as word processing, spreadsheet, database, and the like. Understand the differences in the software and computer tools used by the litigation specialist from those used by the in-house legal support team. Most important is the ability to communicate with the legal side and the technology side of a firm. Learn the language of the other, what some refer to as geek talk. Keep current by reading the professional journals and legal papers for new tools and services being offered to make the job of legal and litigation teams more efficient. Attend the local, regional, and national technology shows for the legal industry to see the products and services and ask questions to learn enough to make the suggestions for updating and changing the tools of your profession. Understanding the Language of Technology An understanding of the terminology of technology is a prerequisite to understanding the technology found in the law office, the courthouse, and the clients business. Law has developed its own lexicon of terms that enables those in the legal community to communicate effectively and with precision. The technology world also has developed its own lexicon. The legal team and the technology support team must learn one anothers language to communicate their needs and solutions. Each group thinks it is communicating, but the same word sometimes has different meanings. For example, the word protocol. To the legal team, protocol is defined as A summary of a document or treaty; or, a treaty amending another treaty, or the rules of diplomatic etiquette (Blacks Law DictionaryWest Group). To the technology specialist, protocol is defined as A set of formal rules describing how to transmit data, especially across a network. Low level protocols define the electrical and physical standards to be observed, bit- and byte-ordering and the transmission and error detection and correction of the bit stream. High level protocols deal with the data formatting, including the syntax of messages, the terminal to computer dialogue, character sets, sequencing of messages etc. (Free On-Line Dictionary of Computing [http://foldoc.org/]). Another example is the word cell. To the criminal lawyer, a cell is a place where clients are held in jail. To the computer support staff, it is a space on a spreadsheet where a piece of data is displayed. Lawyers, paralegals, and other members of the legal team, and the members of the technology support team must learn one anothers language in order to effectively meet the needs of clients and work together productively. Computer Hardware Computer hardware Hardware is the term that encompasses all of the tangible or physical items including computers, monitors, printers, fax machines, duplicators, and similar items that usually have either an electrical connection or use batteries as a power source. Computer system A combination of an input device, a processor, and an output device. Mainframe A large computer system used primarily for bulk processing of data and financial information. Computer hardware is the term used to describe the tangible or physical parts of a computer system; a computer system includes at least one input device, a computer processor, and at least one output device. A system may be as small and portable as a digital watch or as large as a mainframe computer requiring a large room to house it. Older models of computers, many of which are still found in many law offices, are large, ugly metal boxes connected to large, bulky, and heavy desktop monitors, sometimes taking up half of a desktop. Newer models are smaller and less obtrusive. In some offices the computer system consists of a portable laptop computer, weighing as little as three to four pounds, the size of a large book, used at the users desk with a docking station to connect it to a flat-screen monitor, external keyboard and mouse, Internet connection, and network. With the reduction in size have come increased speed and functionality. On older models, opening more than one document uses most of the computer system resources, slowing them down or even freezing or stopping the processing of data. The newer models typically run well while allowing the display of multiple documents from multiple applications all running at the same timeWord files, Excel spreadsheets, calendaring programs, and timekeeping applications. Exhibit 4.4 shows a monitor display of four programs running at the same time. M04_GOLD0000_00_SE_CH04.QXD 12/4/09 7:23 PM Page 133 C H A P T E R 4 Technology and the Paralegal 133 Exhibit 4.4 4-page display in Microsoft Office suite Source: Microsoft product box shot reprinted with permission from Microsoft Corporation. The ability to perform multiple functions simultaneously is in part the result of the increase in processing speed permitted by newer central processing units (CPUs), also called processors, and the availability of inexpensive dynamic or volatile computer memory, random access memory (RAM). A CPU is the computer chip that interprets computer instructions and processes data, and RAM is the temporary computer memory that stores work in progress. Hardware of all sizes requires software instructions to run and perform desired functions. Operating system software provides the basic instructions for starting up the computer and processing the basic input and output activity. The processing of data requires additional applications software such as that used for word processing and financial data processing. All computer components must have a power source (electrical outlet or battery) to operate, including the basic CPU, the dynamic memory modules used for temporary storage of data (RAM), and output devices like the computer monitor and printer. Just as an automobile depends on fuel to continue to operate, so is the computer dependent on a power source to operate. Computers cannot remember data or information that appears on the computer screen (work in process) after the power is turned offunless it has been saved to a permanent memory device. The transfer of the information in the Central processing unit (CPU) The computer chip and memory module that perform the basic computer functions. Random access memory (RAM) Temporary computer memory that stores work in processs. Operating system The operating system is a basic set of instructions to the computer on how to handle basic functionshow to process input from ''input devices'' such as the keyboard and mouse, the order in which to process information, and what to show on the computer monitor. M04_GOLD0000_00_SE_CH04.QXD 134 12/5/09 4:44 AM Page 134 PA R T I The Paralegal Profession Uninterruptable power supply (UPS) A battery system that can supply power to a computer or computer peripheral for a short period of time. form of electrical signals also requires power to write the information on devices such as magnetic tape, floppy disks, or hard disk drives, or to portable memory devices like USB memory devices, or removable memory cards such as the popular secure digital (SD) cards, CDs, or DVDs. These permanent memory devices do not require power to retain dataonly to write or read the data to or from a computer. Uninterruptible power supply (UPS) battery backup systems for the computer are used frequently to guard against loss of the work-in-process files when there is a short-term power loss or long-term outage. A UPS is a battery system that can supply power to a computer or computer peripheral for a short period of time. The length of time the computer will continue to work after loss of its permanent power supply depends on the size of the battery in the UPS, and may be as short as a few minutes or as long as an hour or more. The UPS is designed to allow time to save the current work-in-process files and shut down the computer normally in the event of a major power outage. Operating Systems Software Refers to programs containing sets of instructions that tell the computer and the other computer-based electronic devices what to do and how to do it. Graphic user interface (GUI) A set of screen presentations and metaphors that utilize graphic elements such as icons in an attempt to make an operating system easier to operate. The two most popular computer systems are the PC, or personal computer, and the Apple. The original designs of these two systems were built around different central processor system chips manufactured by different companiesIntel in the case of the PC, and Motorola in the case of Apple. Each computer system requires its own unique operating system. Although both computer systems have advocates, the PC has a dominant position in the legal and business communities where the main use is text and mathematical computations in the form of word processing and spreadsheets. The Apple system achieved the dominant position in the graphic and artistic communities, and to some extent among computer game players. New models of both systems have software that permits the other computer system software to run on the competitive machine. In 2006, Apple started to utilize the same CPU manufacturer as the PC manufacturers use, allowing the new Apple computers to use software for both systems on its computers without any additional software to interpret the software instruction of the other system. Microsoft Windows is the most commonly used computer operating system for the personal computer. A number of different versions of the Windows operating system are found in the workplace with the latest versions, such as Windows XP, Vista, and Windows 7, designed to take advantage of increased computer operating speeds and to better display screen graphics. The original PC operating systems did not provide for the graphic user interface (GUI), which everyone has now come to expect. Exhibit 4.5 shows a command line interface and a graphic user interface. Among the newer computer systems gaining followers is the Linux opperative system. It is offered as an alternative to Microsoft operating systems and provided without a license or royalty fee with the agreement that any improvements will be made available without a fee to anyone using the system. Applications Software Applications software Applications programs are software that perform generic tasks such as word processing. Applications software programs are those that perform specific tasks, such as prepare documents, sort information, perform computations, and create and present graphic displays. These are the software programs used in the management of the law office and the management of client cases. Word Processing Written communication and document preparation are at the heart of every law office. It may be preparation of letters to clients, other counsel or the court, or contracts and agreements, or pleadings. To achieve written clarity and accuracy frequently M04_GOLD0000_00_SE_CH04.QXD 12/4/09 7:23 PM Page 135 C H A P T E R 4 Technology and the Paralegal Exhibit 4.5 135 A Windows screen showing the command line within a GUI interface Source: Microsoft product box shot reprinted with permission from Microsoft Corporation. means writing, rewriting, and correcting the same document, sometimes multiple times and by a number of different members of the legal team. The ability to easily make even minor changes in language has a direct impact on the willingness of those reviewing the document to suggest changes and make them in the final document. Computerized word processing makes this possible. Word processing files are sent electronically to the appropriate members of the legal team for review. Changes or revisions are frequently made to the electronic file copy by the reviewer. Where multiple parties may be working on a document, changes made to the original document by each person on the legal team may be monitored by using built-in features such as MS Words Track Changes tool. This feature shows the original text, the deleted text, and the new text by a series of lines that show as a strike through the deleted text and by margin notes on the document. When the final document is completed it may be sent by email, fax (frequently directly from the computer without any intermediate paper), and in some jurisdictions filed electronically with the court. Exhibit 4.6 shows the original word file, the changes inserted and old text with a strike through it, and the final version with the changes still showing in the margin of the document. Today the most commonly used software program in the law office is the word processor. Although many different word processing programs are available, the legal community most commonly uses either WordPerfect or Microsoft Word. In addition to the usual typing functions, these programs have built-in software tools that check spelling and grammar and allow customized formatting using a variety of Track Changes Track Changes, as found in MS Word, shows the original text, the deleted text, and the new text as well as a strike through for deleted text, underlining or highlighting of new text, as well as margin notes on the document. M04_GOLD0000_00_SE_CH04.QXD 136 12/4/09 7:23 PM Page 136 PA R T I The Paralegal Profession Exhibit 4.6 Microsoft Word track changes Figure Figure Source: Microsoft product box shot reprinted with permission from Microsoft Corporation. ETHICAL PERSPECTIVE Document Comparison Software When using Track Changes or similar comparison programs, be sure to remove the history of the changes and other information from the document before sending it to the opposing counsel, the client, or the court. The history of changes and other document information is called metadata. The history of the changes may offer the reader insight into the strategy of the casefor example, showing the final price the client is willing to pay, which appeared in the original draft and not the first offer that appeared in the final version sent to the opposing party. Word Help offers instructions on how to remove this information. WordPerfect X4 allows documents to be saved without the metadata, using a file save optionSave without Metadatamaking it easy to quickly remove private or sensitive data that can be hidden in, but easily extracted from, office productivity documents. M04_GOLD0000_00_SE_CH04.QXD 12/4/09 7:23 PM Page 137 C H A P T E R 4 Technology and the Paralegal type sizes and font styles in the same documentfunctions that have not been possible with a typewriter. Some offices even use different programs, each with its own file format. Most word processing programs allow the opening and saving of files in the file formats of other word processing programs. When a file is saved, a file extension (a period followed by characters) is added to the end of the filename that identifies the program or format in which the file has been saved. For example: the file name NAME File extension When a file is saved, a file extension (a period followed by three characters) is added to the end of the filename to identify the program or format in which the file has been saved. the extension EXT Microsoft Word 2003 Microsoft Word 2007 WordPerfect Microsoft Works Web documents Generic (rich text file) word processing format Generic (text file) word processing format filename.doc filename.docx filename.wpd filename.wps filename.htm filename.rtf filename.txt The newer versions of WordPerfect even permit simulation of the Microsoft Word workspace. Word processor files are saved with the document properties such as type font and type size, and document formatting details. The saved files also include instructions to the computer on how to display the document, security features, and hidden information such as the Track Changes information. Spreadsheet Programs Many areas of legal practice involve the calculation and presentation of financial information. For example, in family law practice, the preparation of family and personal balance sheets and income and expense reports are routinely prepared for support and equitable distribution hearings; estate lawyers must submit an accounting to the court for approval, showing details of how the fiduciary handled the financial affairs of the estate or trust; and litigation firms must prepare documentation showing the receipts and disbursements of cases, sometime for court approval. As shown in Exhibit 4.7, in an estate, the calculation involved may be as simple as multiplying the number of shares owned by a decedent by the value on the date of death (D of D), then calculating the profit or loss when the stock was sold. Without a computerized spreadsheet, all of the calculations would have to be done manually, Exhibit 4.7 Excel spreadsheet Column Row Cell Source: Microsoft product box shot reprinted with permission from Microsoft Corporation. 137 Spreadsheet programs Programs that permit the calculation and presentation of financial information in a grid format of rows and columns. M04_GOLD0000_00_SE_CH04.QXD 138 12/4/09 7:23 PM Page 138 PA R T I The Paralegal Profession using a multicolumn form known as a spreadsheet or accountants working papers. The information then has to be typed in a report format for submission to the court, the beneficiaries, or the taxing authorities. Using a computerized spreadsheet such as Microsoft Excel or Corel Quattro Pro, the numbers are entered in cells, as identified in Exhibit 4.7, and a formula assigned to the cell in which the result is to be displayed, such as multiply column c by column d, and the result displayed in column e. The computerized spreadsheet, when laid out in the format acceptable to the court, can be printed without reentering the data, or copied into word documents using a simple Cut and Paste operation. The use of computer spreadsheets reduces the errors associated with manual mathematical calculations and errors in retyping the information. Caution must be taken to make sure that the formula is accurate and performs the desired calculation. Even expert spreadsheet users use a set of sample numbers to test the formulas, knowing what the result should be, based on prior use or calculations. Many offices save spreadsheet templates in the same way that sample forms are saved in word processing. For example, a real estate settlement spreadsheet with formulas and headings may be saved without numbers. Because the formulas do not change and the form has proven accurate, it may be used as a template for other clients real estate settlements. Database Programs Database program A database program is an electronic repository of information of all types that can be sorted and presented in a meaningful manner. A database program is a repository of information of all types that can be sorted and presented in a desired meaningful manner. Some offices use a manual card system to keep track of the names of clients and opposing parties, these cards are searched to determine possible conflicts of interest in representing new clients. For the small office this system works. But for the larger office with multiple attorneys and possibly multiple offices, timely entry and searching of large amounts of information is not realistic. Computerized database software, such as Microsoft Access and Corel DB, will facilitate timely, accurate access to information by every authorized member of the legal team. For example, information may be stored on the law firms server in an information database that includes the names, addresses, contact information, personal data such as birthdates of every client, every opposing party, every fact witness and expert witness, and every opposing counsel with whom any member of the firm has ever had contact in litigation, contract negotiations, or counseling session, or met in any business or legal setting. With a few keystrokes, a list can be prepared for manually checking for conflicts of interest, or a computer search can be performed with a printout of any matter or litigation where a name appears. In addition to the obvious use in avoiding accepting a client with a potential conflict of interest, the information frequently is used in maintaining client relations. Many firms use the information to send birthday and anniversary greetings and updates on specific changes in the law for which the client has consulted the firm previously. Presentation Graphics Programs It has been said that a picture is worth a thousand words. Presentation graphics software programs, such as WordPerfect Presentation X4 (see Exhibit 4.8) and Microsoft PowerPoint, are being used to create high-quality slide shows and drawings. These graphic presentations can include text, data charts, and graphic objects. One of the advantages of these programs is their flexibility. They can be used to prepare and present the graphic presentation electronically, using a computer, with or without a projector, and to print out paper copies for distribution. Presentation programs typically provide stock templates of graphics, artwork, and layout as a sample that the user can easily modify. More advanced users can add sound clips to the presentation, include still photos, and incorporate custom graphics from other programs, as well as video clips. M04_GOLD0000_00_SE_CH04.QXD 12/4/09 7:23 PM Page 139 C H A P T E R 4 Technology and the Paralegal Exhibit 4.8 139 WordPerfect presentation X4 Source: WordPerfect screen shot reprinted with permission of Corel. All rights reserved. Office Software Suites Office software suites are sets of commonly used office software programs that manage data and database programs; manipulate financial or numeric information, spreadsheet programs; or display images and presentation graphics programs. Some of the tools in the two most common program suites, Microsoft Office and Corel WordPerfect, are: Microsoft Office Word processor Spreadsheet Database Presentation graphics Graphics Corel WordPerfect Office X4 Word Excel Access PowerPoint Visio WordPerfect Quattro Pro X4 Paradox Presentation X4 Presentation Graphics X4 Office software suites This software consists of commonly used office software programs that manage data and database programs; manipulate financial or numeric information, spreadsheet programs; or display images and presentation graphics programs. The software suites usually are delivered on one CD, enabling all the programs to be loaded at one time, which simplifies and saves installation time. With common features and appearance, it is easier to switch between programs and copy information between the programs, like copying part of a spreadsheet into a word processing document. Specialty Application Programs Every year, computers become more powerful, operating faster with more operating and storage memory. Software programs are getting more powerful and capable of performing more complex functions on more data. Whereas older models of computers can perform only basic word processing and data management, newer, more powerful computers can perform complex functions seamlessly, thereby permitting management of law office functions and management of cases and litigation. Specialty application programs combine many of the basic functions found in software suites, word processing, database management, spreadsheets, and graphic presentations to perform law office case and litigation management. They simplify the operation with the use of customized input screens and preset report generators. Specialty applicaton programs Specialty programs combine many of the basic functions found in software suites, word processing, database management, spreadsheets, and graphic presentations to perform law office, case, and litigation management. M04_GOLD0000_00_SE_CH04.QXD 140 12/4/09 7:23 PM Page 140 PA R T I The Paralegal Profession Web Exploration For a self-running video demo of Tabs 3, go to http://www.tabs3.com/products/ video.html. Web Exploration Information on the features of Abacuslaw may be found at http://www.abacuslaw.com. Legal specialty software programs fall generally into the following categories: Office management Case management Litigation support Transcript management Trial presentation Of the office management specialty application programs, the most basic are the time and billing programs. These provide a standard input screen to record the time spent on a clients case, store the information and, with a request for an invoice for a given client, automatically sort the data, apply the billing rates, and print out an invoice. Among the popular programs in this group are: Tabs 3 from Software Technology, Inc. Abacuslaw from Abacus Data Systems Inc. ProLaw from Thomson Elite PCLaw from LexisNexis Timeslips from Sage Web Exploration Details and additional sample screen graphics about PCLaw are available at http://www .pclaw.com/. Case and litigation management software Case and litigation management programs are used to manage documents and the facts and issues of cases. Exhibit 4.9 is an example of an application input screen. Early versions of time reporting software are limited to timekeeping. With faster computers and greater memory capacity, most of these programs have other features integrated into them, such as accounting functions to track costs and expenses, and practice management functions such as calendar and contact management. Exhibit 4.10 shows the multiple functions integrated in Abacuslaw Accounting. Case and Litigation Management Software Paper has long been the bane of the litigation attorney. Even simple cases can involve hundreds of pages of documents. Complex litigation may involve millions of documents and hundreds of witnesses and, in the case of class-action litigation, potentially millions of clients. Keeping track of all of the documentation and parties is an overwhelming task even with a large staff of assistants and endless rows of organized file cabinets and file boxes. Before the availability of fast computers with inexpensive memory-running case and litigation management software, most case management work was done manually, usually by a team of paralegals and junior associate attorneys. In two of the most notable casesthe IBM antitrust suit and the Ford Pinto negligence suitteams of law students were hired, some for multiyear positions, to read through and identify the documents, manually index them, and look for a document that would make the case, sometimes referred to as the smoking gun document. In the Ford Pinto case, in a serendipitous discovery just such a smoking gun document was found, which detailed the engineering cost savings and the inherent risk by eliminating a specific part that led to the fire that engulfed the Pinto when it was struck by another car from the rear. The use of computers for email and document storage by business and government has caused a massive increase in the number of potential documents that may have to be reviewed, tracked, and made available to opposing counsel in a case. Managing cases and litigation with the massive amount of data has become increasingly difficult. As the number of documents has increased and cases have become more complex, the number of members of the legal team working on a given case also has increased. These factors have led to greater use of the computer to manage the case files and the litigation process. In pre-computer days, attorneys frequently concentrated on one case, personally working on all of the documentation, pleadings, and discovery, and learning every detail of the case in anticipation of trying the case with little backup support except in the largest cases in the larger firms. The legal-team approach to case management and M04_GOLD0000_00_SE_CH04.QXD 12/4/09 7:23 PM Page 141 C H A P T E R 4 Technology and the Paralegal Exhibit 4.9 Tabs3 time and billing screens Source: Reprinted with permission from Software Technology, Inc. litigation has allowed, in some ways, for specialization within the legal team. Some members of the litigation team may specialize in discovery of documents. Others may be concerned with locating, interviewing, and preparing witnesses. Still others concentrate on investigative matters and legal research. Effective case management, therefore, requires some central repository of the information gathered by each of the team members, as well as the ability of each to access the case information input by others. Computer systems today even permit members of the legal team to access the same information from remote locations across town, across the country, and sometimes around the world. A typical case file contains documentation of the: Interview of the client Interviews of fact and expert witnesses Investigation reports Expert reports 141 M04_GOLD0000_00_SE_CH04.QXD 142 12/4/09 7:23 PM Page 142 PA R T I The Paralegal Profession Exhibit 4.10 Abacus Accounting input screens Source: Reprinted with permission from Abacus Data Systems. Research memoranda Pleadings Trial preparation material The trial team frequently has to quickly find a document or information on a specific issue from among potentially thousands of pages of documents. With a computer and the proper specialty software program, this is possible. Some of the litigation and case management specialty software programs found in the law office are discussed below. CaseMap Web Exploration Demonstration versions of CaseSoft products and Webinar tutorials on their use can be found at http://www.casesoft.com/ student.asp. CaseMap from LexisNexis CaseSoft is a case management and analysis software tool that acts as a central repository for critical case knowledge. As facts are gathered, parties identified, and documents and research assembled, they may be entered into the program, allowing for easy organization and exploration of the facts, the cast of characters, and the issues by any member of the legal team. Typical of integrated software applications, CaseMap allows seamless transfer of data to other programs such as TimeMap, a timeline graphic program, and word processor programs. It also allows for creating specialty reports and documents including trial notebook information. Exhibit 4.11 shows the flow of information in a typical case, using CaseMap as a case management tool. 12/4/09 7:23 PM Source: Reprinted with permission of LexisNexus. All rights reserved. Exhibit 4.11 Managing case information using CaseMap case management and analysis software M04_GOLD0000_00_SE_CH04.QXD Page 143 143 M04_GOLD0000_00_SE_CH04.QXD 144 12/4/09 7:23 PM Page 144 PA R T I The Paralegal Profession Summation Web Exploration View an online demo of SummationLG at http://info.summation.com/ demo/modules.htm. The Summation family of products, from CT Summation, Inc. (a Wolters Kluwer business) and similar software applications programs are classified as litigation support systems. As the number of documents increases in a case, the ability to locate relevant documents in a timely fashion becomes more and more critical. Managing the documents is critical to successful litigation outcomes. In cases involving potentially millions of documents, it is essential to be able to find the relevant information quickly, sometimes in the middle of the direct or cross-examination of a witness. Summation-type programs allow for easy search and retrieval of all of the evidence, whether documents, testimony, photographs, or electronic files, with a single command. Documents associated with a case are stored on the computer in electronic folders. These folders may be set up to include transcripts, pleadings, text files (from OCR or otherwise), casts of characters, and core databases. Some versions of these programs are designed to work on stand-alone systems such as a laptop carried into court. Others permit concurrent use by many users over a network, and some permit remote access over the Internet. Concordance Web Exploration Learn more about Concordance at http://www.dataflight.com. LexisNexis Concordance is a litigation support system program that provides document management. Early versions of Concordance were limited to storing and handling 4 gigabytes of data, or approximately 280,000 documents. The newer version allows the management of 128 times that amount, or more than 35 million documents. Like other document support tools, Concordance has a powerful search engine that allows searches by word, phrase, date, email address, or document type, as well as Boolean, using the fuzzy and wildcard searches. A Boolean search uses connectors between words such as AND, OR, or NOT to narrow the search. A fuzzy or fuzzy string search is the name for a search that looks for strings or letters or characters that approximately match some given pattern. A wildcard search allows the use of a wild character such as the symbol * to replace a letter in the search word that allows you to search for plurals or variations of words using a wildcard character. It also is a good way to search if you do not know the spelling of a word. For example: Book* finds Booking and Books. Sanction II by Verdict Systems and TrialDirector by inData Web Exploration An interactive demo of TrialDirector showing how trial presentation software can be used in litigation at http://www.indatacorp.com/flash/ tdstutorial.swf. These multifaceted trial presentation programs offer a comprehensive approach to presenting all types of exhibits in the courtroom, including documents, photographs, graphic images, video presentations, and recorded depositions. Unlike PowerPoint, which requires the creation of individual slides, these programs allow existing documents and files to be presented without any more effort than copying them into the program data file and making a selection for presentation. Trial presentation programs, like Sanction, are databases of the documents in either a case file or on a computer. Electronic Courtroom and Paperless Office Computer technology is changing the way that law offices and court systems perform traditional functions. The ease of creating documents, including traditional letters and contracts and electronic communications in the form of emails, has resulted in a document explosion. At the same time, cases are coming to trial faster because of the demand for quicker justice, which allows less time to prepare and present a case in court. The result has been growth in the use of electronic documentation and computerized case management and the use of computers in litigation. M04_GOLD0000_00_SE_CH04.QXD 12/4/09 7:23 PM Page 145 C H A P T E R 4 Technology and the Paralegal The Electronic Courtroom Increasingly, judges are embracing the use of electronics and computer-based systems in the courts. The initial reluctance to allow the newfangled technology is giving way to acceptance of tools that enhance the speedy administration of justice. One of the earliest uses of technology in the courtroom was the playing of videotaped depositions of expert witnesses on TV monitors in court. To get experts to testify is difficult when the schedule for their testimony is uncertain because of uncertain trial schedules. Many experts, such as noted surgeons and medical forensics experts, have active lucrative practices and demand compensation that can range in the thousands of dollars per hour for time lost waiting to testify. The average litigant can rarely afford this litigation cost. A videotape, or electronic recording, of a deposition can be used in trial as a cost-effective method of presenting expert witnesses or for witnesses who for reasons of health or distance, could not otherwise be available to testify personally at a trial. As judicial budgets allow, courtrooms are being outfitted with computers and audiovisual presentation systems. Exhibit 4.12 shows the U.S. Tax Courts electronic courtroom in Virginia. Computerized courtrooms can be seen frequently on Court TV televised trials, in which computer terminals are present at each lawyers table, the judges bench, for each of the court support personnel, and monitors for the jury. Litigation support software is used in trial to display documentary evidence, graphic presentations, and simulations of accident cases. Relevant portions of documents can be displayed for everyone to see at the same time without passing paper copies to everyone, as the witness testifies and identifies the document. Lawyers can rapidly search depositions and documents, sometimes in the tens of thousands of pages, on their laptop computer to find pertinent material for examination or cross-examination of the witness. The electronic courtroom also is used in many jurisdictions in criminal cases for preliminary matters in which the judge is located at a central location, and the defendants at various lock-up facilities with video cameras and monitors recording and displaying the parties to each other. Exhibit 4.12 U.S. Tax Courts electronic courtroom 145 M04_GOLD0000_00_SE_CH04.QXD 146 12/4/09 7:23 PM Page 146 PA R T I The Paralegal Profession The Paperless Office Paperless office The paperless office is one in which documents are created and stored electronically. To some people, the ideal office is one that has no paper documents, or hardcopy, as they are sometimes referred to. The office where documents are created and stored electronically is sometimes referred to as the paperless office, or electronic office. Difficult as it may seem for some who have grown up in the paper world, the paperless office is rapidly approaching reality. In the traditional office, documents are created electronically with word processing software, or received by fax or email and then printed. In the paperless office, documents are created using computer-based word processor programs such as Microsoft Word or Corel WordPerfect. These electronic files then are sent electronically to the attorney for review. The reviewer frequently makes changes or revisions to the electronic file copy and when multiple parties are working on a document; changes made to the original document by each person on the legal team may be monitored by using built-in features such as Track Changes in MS Word. This feature shows the original text, the deleted text, and the new text by a strike through the deleted text, underlining of new text, and by margin notes on the document. When the final document is completed, it may be sent by email, fax (frequently directly from the computer without any intermediate paper) and, in some jurisdictions, filed electronically with the court. Electronic portability requires inexpensive portable computer memory, a computer to store and transport the documents, and small, lightweight computers to display them. Conversion of existing paper documents requires the availability of scanners and software that converts the documents to an acceptable format that cannot be easily changed. The paperless law office indeed is becoming the norm with the advent of modern scanning technology, secured methods for transmission of documents, accepted protocols for use of electronic replacements for paper documents, and rules of court permitting electronic submission of documents. Portable Document Format (PDF) Web Exploration Acrobat tutorials "Introduction to PDFs" "Acrobat 101" and "Acrobat 201" may be found at www.casesoft.com/student.asp. Web Exploration Samples of PDF files can be downloaded from the Internal Revenue Service at www.irs.gov. The ability to save documents in a format that cannot be easily changed through use of the computer is one of the basic requirements of a system that allows for electronic documentation. Anyone who has received a word processing document file knows that they may change it, save it, and present it as an original. Now, documents may be saved in a graphic image format or portable document format (PDF), developed by Adobe Systems. The recipient cannot easily or readily change these graphic images. Although creating documents in PDF format requires specialty software such as Adobe Acrobat, everyone can download a free Adobe Reader to view these documents. With the acceptance of this format has come a willingness to scan and store documents electronically in this format, eliminating or returning to the client the original paper copies. Companies such as Adobe Systems frequently provide free, limited versions of their programs, downloadable from their website, that allow the opening and reading of files created using their proprietary software formats, such as Adobes PDF file format. Many websites that provide programs using these proprietary formats, such as the Internal Revenue Service forms website, contain links to these programs. They are limited in that they allow the user to open and read the files but do not allow changes or the creation of new document files, which requires the full version of the program. Scanning Scanning and storing of paper documents has become easier with the development of software such as PaperPort by Nuance. This software provides easy-to-use, highspeed scanning and document capture. As a document management software application, M04_GOLD0000_00_SE_CH04.QXD 12/4/09 7:23 PM Page 147 C H A P T E R 4 Technology and the Paralegal 147 it allows for organizing, finding, and sharing paper and digital documents, which permits the elimination of paper documents. The original scanning hardware was costly and frequently unreliable. Modern scanners provide double-sided (front and back) scanning of documents with a high degree of accuracy at a relatively low cost. Scanning today has become a common feature in office printers and copy machines. Double-sided scanning is found today in multifunction devices featuring printing, scanning, copying, and faxing, at prices under $100. These devices, when coupled with application software such as PaperPort, allow virtually anyone to create electronic documents. OCR Obviously, at times, documents have to be converted from a graphic image to a format that allows for editing or other use in an office suite of applications. These software applications have come to be referred to as OCR, or optical character recognition. Products such as OmniPage, by Nuance, provide document-conversion solutions by permitting any scanned page, PDF file, or other image or document file to be converted quickly and accurately into one of a number of different editable formats including Microsoft Word or Corel WordPerfect. Networks The first computers in law offices, as we said, generally consisted of a computer, a monitor, and a printer. In the contemporary law office this is called a workstation. A computer network is a group of workstations connected together. This may be as little as two workstations, or in large law firms, hundreds of workstations and other peripheral devices such as shared printers and fax machines all connected through a network file server. Exhibit 4.13 is a typical computer network system in a law office. A network file server is generally a separate computer that acts as the traffic cop of the system, controlling the flow of information between workstations and the file server and other peripheral devices and requests to use the resources of the system or access data stored on the system. Like the computer that requires an operating system to run, the server requires network operating software that tells it how to communicate with the connected workstations and peripheral devices. These computers and devices are referred to as connections. Exhibit 4.13 Typical network system Network System copier scanner printer File server Workstation Workstation Workstation Workstation A computer connected to a network that is used for access consisting of a monitor, input device, and computer. Computer network A set of workstations connected together. Network file server A separate computer in a network that acts as the traffic cop of the system controlling the flow of data. M04_GOLD0000_00_SE_CH04.QXD 148 12/4/09 7:23 PM Page 148 PA R T I The Paralegal Profession Network Rights and Privileges Network rights and privileges Rights or privileges determine who has access to the server, the data stored on the server, and the flow of information between connections. Network administrator The network administrator usually is the person with the highest-level access to the network file server. Network software programs have security protocols that limit access to the file server, peripherals such as printers, or other workstations. These rights to access the server and the other devices are sometimes called network rights and privileges. The rights or privileges determine who has access to the server, the data stored on the server, and the flow of information between connections. Network Administrator Generally the person with the highest level access is called the network administrator. Law offices that use network servers generally use these servers as the central repository for all electronic files. Although an individual workstation can store documents or data on the workstation, it is usually stored centrally. This offers a level of protection by limiting access to those who have the proper authorization, most often requiring a password for access. It also makes backing up data easier. The ability to limit access to files on a file server is one method to ensure confidentiality in a large office. File access can be limited by password-protecting files and granting password access only to those with a need to access and work on those specific files. Because each file or set of files, called folders, can be password-protected separately, ethical walls can be established by restricting access to just those on the legal team who are working on a case. Advice from the Field TECHNOLOGY IS A TOOL, NOT A CASE STRATEGY IN THE COURTROOM Michael E. Cobo The latest legal technology products such as animations and courtroom presentation systems can be very alluring to lawyers. After learning about these products, you may be anxious to use them. But you should keep in mind that technology products are only tools to implement a solution and are not solutions in themselves. The key issue is: What is your case strategy and what do you need to present? An expensive, ill-planned use of technology may result in losses at trial. These losses, or even an uncomfortable implementation of a technology product, may ultimately cause some to feel the experiment was unsuccessful and abandon future use of courtroom technology. On the other hand, such potentially devastating results can be avoided by carefully planning a case strategy with the same care as you would plan a general trial strategy. The pitfalls will be avoided and you will present a more effective case to the trier of fact. The trial team must remember that it is the message, not the medium, that wins at trial. Take this opportunity to vary the presentation media and develop some exhibit boards or utilize an overhead. Certain exhibits are displayed best as foamcore boards. Timelines or chronologies generally lend themselves to a board, as do other exhibits that need to be larger and hold more visual or textual information. Strategically, some exhibits need to be used in conjunction with others or need to be in the view of the jury more often than not. ASSESS YOURSELF Before you spend a dime to develop the visual strategy, create a presentation or invest in any technology, make a critical self-assessment. Will you be comfortable with the strategy and the technological tools that will be developed for the trial? The most effective visual communication strategy will never be effective if it is never implemented or is delivered without conviction because you are not comfortable using the tools. The effective use of technology involves (1) creating an inventory of the visual requirements, (2) selecting the proper technologies, medium and tools, and (3) being prepared to properly use the products to implement your case strategy. Copyright DecisionQuest 1994, 2006. Michael E. Cobo is a founding member of DecisionQuest, the nations leading trial consulting firm. The principals of DecisionQuest have been retained on over 12,500 high-stakes, high-risk litigation cases spanning a wide range of industries. Discover more at www.decisionquest.com. M04_GOLD0000_00_SE_CH04.QXD 12/4/09 7:23 PM Page 149 C H A P T E R 4 Technology and the Paralegal 149 Backing Up Data With everything on one file server, the backup of data can be automated to make copies of everyones files and not just the files on workstations of those who remember to back up their computer. Backing up data regularly is an essential function to prevent loss of critical files and office data in the event of a disaster such as a flood, fire, earthquake, or tornado. Good backup policy is to back up the file server daily and store the duplicate copy in a safe location away from the server location, such as a fireproof safe or a bank safe deposit box. Imagine trying to reconstruct files, court-filed documents, and other essential information after a devastating hurricane and resultant flood that destroys a law firms and courthouse paper records, as occurred in New Orleans in 2005 as a result of Hurricane Katrina! Backup of data Making a copy of critical files and programs in case of a loss of the original computer files. Wide Area and Wireless Networks Wide area network A wide area Time can be saved by electronically sharing information instead of by personal delivery or by having a courier deliver paper copies of documents, whether on a different floor, building, or city. Many firmssome as small as two peoplemaintain multiple office sites, such as a center-city and a suburban office location, or a main office and a satellite office across from the courthouse. Each of these offices may have a separate computer network. With high-speed communications lines, these separate networks may be connected to form a network of networks. Access to a workstation on one of the networks allows access to the other networks in the system and the peripherals attached to the network, including network printers. This allows a person in one office to print documents on a printer in another office. Files may be shared among all the members of the legal team regardless of the office in which they are physically located. network is a network of networks. Each network is treated as if it were a connection on the network. Wireless network A wireless network uses wireless technology instead of wires for connecting to the network. The Internet In its most basic form, the Internet or the World Wide Web may be thought of as nothing more than a group of computers linked together with the added ability to search all the connections for information. If you work in an office in which all of the computers are networked together, you have a small version of the Internet. Each persons computer is connected to other peoples computers, generally with a main computer on which resides the frequently shared data files and the software (network operating system) that controls the connections and how the requests from each computer are handled and directed. This main control computer usually is referred to as the file server (see Exhibit 4.14). Exhibit 4.14 Network system File server Workstation Internet The Internet or the World Wide Web is a group of computers linked together with the added ability to search all the connections for information. M04_GOLD0000_00_SE_CH04.QXD 150 12/4/09 7:23 PM Page 150 PA R T I The Paralegal Profession Local area network (LAN) A network of computers at one location. Internet service provider (ISP) The company providing the connection between the user and the Internet. Modem A device to translate electrical signals to allow computers to communicate with each other. The local area, or office, network (LAN) search tool is usually a program such as Microsoft Windows Explorernot to be confused with the Internet browser Internet Explorerwhich permits files to be found on the local computer or the other computers with shared access, by location or other characteristics. Exhibit 4.15 shows the Explorer screen, and Exhibit 4.16 shows search companion. Internet service providers (ISPs) provide local or toll-free access numbers that most people use to connect to their service. Larger offices and companies may have a direct connection (hardwired, or by dedicated telephone line) that eliminates the need to dial up the ISP. A device called a modem is used to translate the electrical signals for transmission over these connections so the computers can talk to each other. The modem converts (modulates) the information from the keyboard and computer into a form that can be transferred electronically over telephone lines, cable connections, and radio waves. At the receiving end of the signal is another modem that reconverts (demodulates) the signal into a form usable by the computer. Depending on the modem and the ISP service, speeds of transmission vary widely. The slower the connection provided by the modem and the service, the longer it takes to transmit and receive information. As with most services, the higher the speed, the higher is the cost. It is easy to see that a multipage document will take longer to transmit or receive than a single-page document. The reasonableness of the cost of a high-speed connection depends upon the volume of pages regularly sent or received. Perhaps less obvious is the size of the files and those that are in graphic format. Most government forms are available in a graphic form rather than a text form. A single one-page form in graphic format may be the equivalent of a 10-page text document. Again depending upon the frequency of downloads of forms, it might be advisable to upgrade to a high-speed line. Online Computer Resources The number of online or Internet resources increases daily. Finding the desired information is easy when you know the specific source and piece of information. In these cases, you can enter the computer address of the specific page or document and obtain Exhibit 4.15 Explorer screen Source: Microsoft product box shot reprinted with permission from Microsoft Corporation. M04_GOLD0000_00_SE_CH04.QXD 12/4/09 7:23 PM Page 151 C H A P T E R 4 Technology and the Paralegal 151 Exhibit 4.16 Search companion Source: Microsoft product box shot reprinted with permission from Microsoft Corporation. your result almost instantly. More frequently, you will have to locate information about a specific item without knowing where to find it. Internet Browsers The solution is found in Internet (Web) browsers such as AOL and Internet Explorer. These browsers provide a search feature, usually referred to as a search engine, that allows a search of available Web resources. These searches require only inputting into the search engine a word or phrase to obtain a listing of potentially relevant information. Also useful are specialized search engines such as Google and Yahoo!, which use highly developed algorithms to search for relevant information and return a listing in order of relevancy with amazing accuracy. An Internet or Web browser is a software program that allows a person to use a computer to access the Internet. Unless you have a direct connection to a computer database, you will be working with a software program known as a Web browser. The two most popular Web browsers are Microsoft Internet Explorer and AOL, both of which provide content. These browsers typically are used with Internet service providers that do not themselves provide any content but, rather, act as an intermediary between the user and the World Wide Web. Some services, such as America OnLine (AOL) and MSN, provide content, such as news and weather and specialty sections for sharing information, along with providing the traditional Internet connections and email. All of the browsers basically provide two main screensone to display email (see Exhibit 4.17) and to display content and Internet search results (see Exhibit 4.18.) Internet (Web) browsers An Internet or Web browser is a software program that allows a person to use a computer to access the Internet. The two most popular Web browsers are Microsoft Internet Explorer and AOL. Web Exploration Obtain a copy of the current AOL browser at www.daol.aol.com/software. M04_GOLD0000_00_SE_CH04.QXD 152 12/5/09 4:44 AM Page 152 PA R T I The Paralegal Profession Exhibit 4.17 Email display Exhibit 4.18 AOL Internet browser Source: Reprinted with permission of AOL. All rights reserved. M04_GOLD0000_00_SE_CH04.QXD 12/4/09 7:23 PM Page 153 C H A P T E R 4 Technology and the Paralegal 153 Search Engines An Internet search engine is a program designed to take a word or set of words and search websites on the Internet. Of the available Internet search engines, each searches in a different fashion. The same search request may generate totally different results on different search engines. The number of search engines is expanding constantly. Some search engines are more suitable than others for legal searches. Many search engines are designed for use by children and families, so they may not return the results needed in the professional areas. It is useful to create a search query and run the query through a number of different search engines, then compare the results. For example, you may wish to search the topic of regulation paralegals. Each of the search engines shown below may be accessed by entering its URL (uniform resource locator) in your Web browser: AltaVista Ask.com Dogpile Excite Google MetaCrawler Yahoo! www.altavista.com www.ask.com www.dogpile.com www.excite.com www.google.com www.metacrawler.com www.yahoo.com Some of the information is shown on the screen and will not require any more searching. The datasuch as a phone number, address, or other limited information will appear and may be copied manually or printed out to capture the displayed page. Other information may be in the form of large text or graphic files. These may be many pages long or involve use of graphic display programs such as the popular Adobe. Typical of the graphic images are the tax forms available from the Internal Revenue Service. A word of caution: Addresses of websites tend to change frequently. It is a good idea to keep a list of frequently used websites handy and update it regularly. Internet search engine An Internet search engine is a program designed to take a word or set of words and locate websites on the Internet. Uniform resource locator (URL) The address of a site on the Internet. Web Exploration Internal Revenue Service: Obtain copies of tax forms at www.irs.gov. Addresses and Locations Obviously, finding something requires knowing where it resides. We find people by looking for their home or business address or by their telephone number. The modern equivalent of a telephone number is the computer address and location. Web pages also have addresses, known as uniform resource locators, or URLs. The URL is made up of three parts: Protocol://Computer/Path The protocol is usually http (hypertext transfer protocol). The computer is the Internet computer name, such as www.bucks.edu. And the path is the directory or subdirectory on the computer where the information can be found. The URL may be thought of as a file cabinet, in which the protocol is the name of the file cabinet, the computer is the drawer in the file cabinet, and the path is the file folder in the drawer. Not all URLs have a path as part of the address. Part of the naming protocol is a domain nomenclature, with extensions such as the edu in www.bucks.edu. Common extensions are: .org .edu .com .gov .bus .mil organizations educational institutions commercial operations government agencies business military In addition, there are extensions such as .jp .fr .uk Japan France United Kingdom Computer address and location The modern equivalent of a person's telephone number is the email address. Pages on the Internet also have addresses known as the Uniform Resource Locator (URL), made up of three parts: protocol, computer, and path. Protocol In a URL the required format of the Web address. M04_GOLD0000_00_SE_CH04.QXD 154 12/4/09 7:23 PM Page 154 PA R T I The Paralegal Profession These designations refer to the country where the computer is located. Many people save information on websites for future use, which may be in hardcopy, on cards, or in a database. The Website Profile Checklist below provides suggested headings. CHECKLIST Website Profile Address (URL): Name of organization or site: Key subject: Secondary subject: Cost: Comments: In determining the authenticity of information found on the Internet, knowing if the computer is a commercial site (.com or .bus) or a government site (.gov) is sometimes useful. Some websites may appear to be official government websites or may appear to contain official information but actually are private sites. For example, the official URL for the Internal Revenue Service is www.irs.gov. This is not to be confused with the unofficial private website www.irs.com. To obtain the official Internal Revenue Service forms and information, you must use the official site, www.irs.gov. Potentially, one of the biggest time-savers for the paralegal is the ready availability of information, forms, and files on the Internet or World Wide Web. Public information that would have required a trip to the courthouse or other government office is instantly available without leaving the office. This information may come from public or private sources. Government information typically is available without cost or at minimum cost. Private information may be free to all, or at a cost per use, per page, or per time period (such as a month). Legal Research Web Exploration Check the free resources of the Cornell Law School website at http://www.law.cornell.edu/. A major use of the Internet in the law office is to perform research, both factual and legal. Using powerful search engines such as Google, Yahoo!, and Ask can help the paralegal locate almost any information that is available on the Internet. More and more legal research is being conducted on the Internet as law offices reduce the size of paper-based law libraries in favor of online resources. A number of companies provide access to case law, statutory material, and other secondary legal sources for a fee. Among the most widely used of these are Westlaw, LexisNexis, Loislaw, and VersusLaw. Although some websites offer information without charge, most do not have the depth of available resources that the for-fee sites offer. The Cornell University Law school site is among the most popular of the no-fee sites. Formats of Available Information Most of the items that are displayed can be printed to a printer attached to a computer. At the top of most Web browsers is a printer icon or a Print command in the FILE icon at the top of the page. Clicking on the icon or word PRINT in the FILE pull-down menu will initiate the print process. Patience may be necessary, as the computer may have to take some time to access the original source of the information. Clicking several times will not speed up the process and actually may result in several copies of the same information being printed. M04_GOLD0000_00_SE_CH04.QXD 12/4/09 7:23 PM Page 155 C H A P T E R 4 Technology and the Paralegal 155 File Attachments A popular method for transmitting text files and graphic images is by attachment of the file to an email. This is much easier than it sounds. Today, almost everyone has an email address, whether at home or at work, or both. To send or receive emails requires the use of an Internet service provider and a browser such as Internet Explorer, Netscape, or one of the other specialty email programs. In the traditional email, text is entered on the keyboard and transmitted to the email account of a recipient, who reads it online. Virtually any file can be attached (linked) and sent with an email. The receiver needs only to click the mouse on the attachment, which may appear as an icon. In most cases, the file will open using the same program from which it was created, such as Microsoft Word, Corel WordPerfect, or Adobe Acrobat. Occasionally a file may be transmitted in a format that the receiver does not have the software to open. This is particularly true with regard to graphic images, pictures, and drawings. File attachment The attachment is a popular method for transmitting text files, and occasionally graphic images, by attaching the file to an email. Receiving and Downloading Files and Attachments The method for downloading files and attachments is the same. Users first should determine the directory (folder) into which they will be downloading these files. In Windows this usually is a folder called My Download Files or My Files. If there is no existing folder, Windows Explorer can be used to create a file with a name such as Download. Windows Explorer is a program in the Start directory under Programs. (This is not the same as Windows Internet Explorer, which is an Internet browser.) CHECKLIST To Retrieve and Download a Form Select a file format. Select the file(s) you wish to receive. To select multiple items, hold the Control button down while selecting. Click the Review Selected Files button. A Results page will be displayed with links to the file(s) you requested. Select the file title to retrieve. Most of the files attached as part of email will be document files created and saved as either Microsoft Word documents or WordPerfect documents. The user may want to save these files directly into the Word or WordPerfect directory. Saving them in the computer download is one option, as is opening the file on the screen immediately instead of saving it for later use. Alternative file formats may be offered, such as MS Word or WordPerfect or PDF, so be sure you have the appropriate program on your computer that can open and view the file. Normally, text files and graphic images are static files; that is, by themselves they do not perform any function but are merely data-usable within another program such as a word processor or graphic image viewer. It has become common, however, to send, as attachments, files that have within them miniprograms such as macros that perform functions when activated, such as those used to calculate sums in spreadsheets. Others are self-contained software programs such as screensavers containing animation and animated cartoons. Some program files have an extension of either .exe or .com. Files with these extensions may run automatically after downloading. Therefore, greater caution must be taken in downloading any file, particularly files with these or other unknown file extensions, which may contain macros (mini files), such as Excel files, which may contain formulas that run automatically and may contain computer viruses, as discussed below. Remember that it is not enough to rely on the sender being a reliable source, as even the most reliable source can have a security breach that allows a virus to be attached to a file, or the source may be forwarding files from other, less reliable sources without checking the files before sending them to you. M04_GOLD0000_00_SE_CH04.QXD 156 12/4/09 7:23 PM Page 156 PA R T I The Paralegal Profession ETHICAL PERSPECTIVE Arizona Law Firm Domain Names Opinion No. 2001-05 (March 2001) Summary. A law firm domain name does not have to be identical to the firm's actual name, but it must comply with the Rules of Professional Conduct, including refraining from being false or misleading. And it may not imply any special competence or unique affiliation unless this is factually true. A for-profit law firm domain name should not use the domain suffix ".org" nor should it use a domain name that implies that the law firm is affiliated with a given nonprofit organization or governmental entity. [ERs 7.1, 7.4, 7.5] Sending Files Some Internet Service Providers (ISPs) limit the amount of information that may be sent at one time, depending on the speed of the connection and how busy the system is at different times of the day. This may limit the number of pages that may be sent at one time. With increased transmission speed, also referred to as bandwidth, comes the ability to transmit much larger files and more pages in the same time. Increasingly, large-size graphics files and images such as photographs are sent or attached to emails. The larger files being transmitted require more bandwidth (the pipeline) to avoid slowing down the system. Bandwidth may be thought of as the amount of data that can be sent in a given timeframe. For example: Telephone dial-up service Digital Subscriber Line (DSL) Fiber Optic Service (FIOS) 2456 kilobits (amount of data) per second (kps) up to 750 kps up to 15 megabits As with any pipeline, only a limited amount of product can be transmitted at any one time. To more equitably share the limited pipeline resource, ISPs and network operators permanentlyor temporarily during peak usage timeslimit the number of files or the size of files that one user may transmit. In some offices, the same limitations may be imposed to overcome the size limitation; files may be transmitted in a compressed format, frequently referred to as zip files. Large files are run through a program that compresses them before being sent. The recipient of the compressed file then must uncompress the file before being able to read it. A number of programs are available to compress and decompress files. Some of these require several steps, and other programs perform the task automatically. For occasional use, the manual method is acceptable, but with the increasing number of compressed files, it may be more time-efficient to purchase one of the automatic programs. Limited timetrial versions of some of these decompression programs may be downloaded without charge over the Internet from software companies who are encouraging users to buy the full version after the trial period expires. ETHICAL PERSPECTIVE Ohio Rule on Commercial Law-Related Websites Ohio lawyers may not participate in a commercial law-related website that provides them with clients if the arrangement entails prohibited payment for referrals or if the business is engaged in the unauthorized practice of law. (Ohio Supreme Court Board of Commissioners on Grievances and Discipline opinion 20012) M04_GOLD0000_00_SE_CH04.QXD 12/4/09 7:23 PM Page 157 C H A P T E R 4 Technology and the Paralegal 157 Electronic Filing A number of courts have established procedures for the electronic filing of pleadings. Each court is free to set up its own rules and procedures and must be consulted before attempting to use this service. The Internal Revenue Service and some states have combined in a joint effort to allow electronic filing of both the federal and state individual income tax returns in one step. The local or state tax authority retrieves the information from the Internal Revenue Service. A feature of this service, known as IRS e-file, is the return receipt when the federal and state governments receive the form. Types of Image Formats With increasing frequency, the Internet is being used to obtain needed forms. These may be government agency forms, tax forms, or court forms. Even the best-equipped office will require one form or another that is not in the office supply room for completing a case. This may be an unusual federal tax form or a form from your state or another state. The most popular format for the federal government forms is PDF form, and many state agencies also use the PDF format for document delivery. Other options may be presented for selection. Computer and Network Security Security has become a critical issue as law offices, courts, and clients become more dependent upon the use of the computer and the Internet. With only a single computer, the security concern is limited to introducing a program that does not work properly. With computer networks, the potential is introduced to adversely impact every workstation on the network and the network file server itself. On a network, any workstation is a potential input source of problems in the form of software programs that could corrupt the system or the files stored on the system. Though not common, there are instances of employees introducing annoying or potentially harmful programs as a method of getting even with an employer. Part of the solution to these kinds of issues is to limit access to the network, including limiting the ability to access the file server from workstations and limiting the ability or right to make changes to operating systems and limit other activity to saving of documents. Use of the Internet from workstations has introduced the security concern about unauthorized parties gaining access to the computer networkreferred to informally as hacking. In some instances, the unauthorized party wants to gain access to information in files stored on the network. In other cases, it is to undermine the integrity of the system by causing files and programs to be modified or to introduce computer viruses that can cause minor inconvenience or even destroy entire systems by deleting files, programs, and operating systems. Hacking Unauthorized access to a computer or computer network. Firewalls A firewall is a program designed to limit access to a computer or to a computer network system. Depending upon the complexity of the program, it may restrict total access without proper validation in the form of passwords, or limit all access to the system for certain kinds of programs or sources not deemed to be acceptable to the network or system administrator. For example, many parents use a form of a firewall designed to limit childrens access to certain kinds of programs and certain sites on the Internet that are deemed to be unacceptable. A firewall can be a two-edged sword for the paralegal: It prevents unauthorized access to the network, and it may prevent the paralegal working at an offsite location such as a courthouse, clients office, or opposing counsels offices from accessing files on the firms computer or other Internet connection. It is important to check a connection to be sure it will allow data to be accessed from a remote location and sent as Firewalls Programs designed to limit access to authorized users and applications. M04_GOLD0000_00_SE_CH04.QXD 158 12/4/09 7:23 PM Page 158 PA R T I The Paralegal Profession planned before it is needed for trial, depositions, or presentation. With enough time, any issue may be resolved with the local system administrator. Encryption Technology Encryption Encryption is technology that allows computer users to put a "lock" around information to prevent discovery by others. Encryption technology permits a computer user to basically put a lock around its computer information to protect it from being discovered by others. Encryption technology is like a lock on a house. Without the lock in place, unwanted persons can easily enter the house and steal its contents; with the lock in place, it is more difficult to enter and take the houses contents. Encryption software serves a similar function in that it lets computer users scramble information so only those who have the encryption code can enter the database and discover the information. Encryption Confidential or privileged information sent over the Internet is frequently encrypted by the sender and unencrypted by the receiver because of the concerns that it will be intercepted when transmitted over the Internet. Encryption programs use algorithms (mathematical formulas) to scramble documents. Without the proper password or encryption key, unauthorized persons are not able to read the files and determine their content. To understand the levels of protection offered by the different encryption programs, think of the protection offered by a combination lock. The least security is provided by a two-number combination lock frequently found with inexpensive luggage. As the numbers required for opening the lock increase to two, three, four or more numbers, the security also increases. It is not hard to see how the two-digit combination lock can be quickly opened while the four-digit lock requires more time and effort. For an amateur computer hacker with a simple encryption-breaking program, a basic encryption program might be thought to be the equivalent of a two- or three-number combination lock. The higher-level program with tougher algorithms designed to thwart a professional codebreaker would require the four or more number combinations. As computers become faster, more sophisticated methods will be required. ETHICAL PERSPECTIVE Interception of Electronic Communications Interception or monitoring of email communications for purposes other than assuring quality of service or maintenance is illegal under the Electronic Communications Privacy Act of 1986, as amended in 1994. [18 U.S.C. B2511(2)(a)(i)] Computer Viruses Computer viruses Viruses are programs that attack and destroy computer programs, internal computer operating systems, and occasionally the hard disk drives of computers. Unfortunately, some computer-knowledgeable people take sadistic pleasure in developing and disseminating programs that attack and destroy computer programs, internal computer-operating systems, and occasionally even the hard disk drives of computers. These programs are known as computer viruses. Viruses range from those that create minor inconvenience to those that can destroy data and cause computer shutdowns. Some simple precautions can prevent disaster. A virus-protection program, such as those sold by Norton, McAfee, and others, is as important to have on your computer as the computer operating system itself. This should be the first program loaded on a new computer. M04_GOLD0000_00_SE_CH04.QXD 12/4/09 9:56 PM Page 159 C H A P T E R 4 Technology and the Paralegal 159 Anti-virus programs scan the computer to identify the presence of viruses, and the better programs eliminate the virus. Every disk should be scanned with a virus program before being used. Files that are downloaded from other computers or over the Internet also should be checked. As good as these programs are, they quickly go out of date as new viruses are created and unleashed. Therefore, these virus checking programs should be updated regularly. Future Trends in Law Office Technology The pressure is on law offices to be more productive. The increased cost of operating law offices is a major factor in law office managers looking for new ways to use technology to increase productivity. Clients and the courts are not willing to approve fees and costs where more cost-effective methods are available. The demand for speedy justice in the courts has resulted in less time to prepare and present cases, requiring the legal team to use technology to become faster and more productive with less time in which to do it. Advances in computer technology are providing solutions to the productivity and cost issues. Looking ahead to whats on the technological horizon is imperative to the smooth and profitable functioning of the law office. Anticipating change and incorporating it requires IT knowledge and savvy, whether it comes in the form of in-house staff or external technology consultants. Corporate law firms might have a chief information officer or chief technology officer whose role includes anticipating change and planning for it in concrete as well as visionary ways. Those responsible for IT at smaller firms, as well, have the responsibility to be well-informed of technology trends in order to assess when a new tool should be added to their technology repertoireand when it should be avoided. The legal team is an increasingly mobile workforce. Working out of the office is a fact of life for trial attorneys and their support staff. The litigation team may spend much of their time in courthouses and outside the office taking depositions as close as across the street or across the country and around the globe. Increasingly, the support staff is also located or working outside the traditional law office. In some cases it is because of outsourcing of activity to other firms or companies in remote locations, such as the legal support firms in India. It is also lawyers, paralegals, and litigation support members of the legal team who, for various reasons, work from home. With advances in technology it is possible to connect with the traditional office and access all the needed files and electronic resources on a computer at home; these workers are sometimes referred to as teleworkers. The following sections describe emerging technology that is available now and in use at some law firms and technology that is available but not fully deployed. The list is not exhaustive but rather illuminative of what businesses might expect in the near and distant future. How soon is a matter of conjecture, but we know from recent technology trends that it will be sooner than we could have expected even a few years ago. As Raymond Kurzweil writes in his essay, The Law of Accelerating Returns (2001), An analysis of the history of technology shows that technological change is exponential, contrary to the common-sense intuitive linear view. So we wont experience 100 years of progress in the 21st centuryit will be more like 20,000 years of progress (at todays rate). The returns, such as chip speed and cost-effectiveness, also increase exponentially. Theres even exponential growth in the rate of exponential growth. Teleworker People who work from remote locations, typically home. Videoconferencing Videoconferencing is the use generally of the Internet, or in some cases telephone lines or special satellite systems, to transmit and receive video and audio signals in real time to allow parties to see and hear each other. It is defined in the Wisconsin court rules (subchapter III of Wis. Stat. chapter 885) as; Videoconferencing, as defined in section 885.52(3) of the new rule, means an interactive technology that sends video, voice, and data signals over a transmission circuit so that two or more individuals or groups Videoconferencing Conferencing from multiple locations using high speed Internet connections to transmit sound and images. M04_GOLD0000_00_SE_CH04.QXD 160 12/4/09 9:56 PM Page 160 PA R T I The Paralegal Profession can communicate with each other simultaneously using video monitors. It is a live, real-time, interactive form of communication and does not include the presentation of prerecorded video testimony pursuant to subchapter II of Wis. Stat. chapter 885. The definition is intended to encompass emerging technologies such as Web-based solutions, as they appear, so long as the functional requirements of the definition are met. The Wisconsin Supreme Court adopted a rule effective July 1, 2008, entitled Use of Videoconferencing in the Circuit Courts, one of the most advanced rules on the use of this technology in the country. Videoconferencing has been used in many courts for criminal proceedings at various stages of the process, usually at the beginning of the process. The Wisconsin rule advances the use to all aspects of criminal and civil litigation. Many law firms and their clients use videoconferencing on a regular basis as a method of face-to-face communication when parties are at remote sites. With Wisconsin leading the way it can be expected to be an important new tool in the litigation practice. VoIP VoIP Voice over internet protocol is a computer internet replacement for traditional telephone connections. Voice over Internet Protocol (VoIP) is a protocol for using the Internet as a method of communication instead of traditional telephone company services. A computer with a microphone and headset or speaker is used to complete a call to another computer or telephone over the Internet. It may be a voice connection or voice and image. Software is installed on the computer that facilitates the desired activity. An example of a popular service for VoIP is Yahoo Messenger, which has provisions for traditional telephone calling and short message service to cell phone and other portable devices. The initial limitation of VoIP was the inability to call a traditional phone or receive a call. Services like Yahoo Messenger provide options that permit calling traditional phones at a very nominal rate, sometimes as low as one cent per minute. The relative ease of use of these services and the low cost make conferencing, including videoconferencing, a reality. The days of going to a special location and paying substantial fees to conduct a videoconference are gone. Anyone with an Internet connection, a laptop with built-in microphone and speakers, and an inexpensive video camera can set up a videoconference from almost anywhere there is an Internet connection. Voice Recognition Voice recognition Computer programs for converting speech into text or commands without the use of other in/out devices such as keyboards. Voice recognition software has been around for a number of years. Many will remember trying out an earlier version of a speech recognition program as a possible alternative to typing. More computer technology has brought this software to the point of accuracy approaching, and in some cases exceeding, the accuracy of typing. Speech-enabled devices include cell phones, personal digital assistants (PDAs), and other handheld devices. It is now possible with programs like Dragon Naturally Speaking Legal Version to dictate working drafts of legal documents directly into almost any program, including word processors, spreadsheets, and databases, without touching a computer keyboard, and send the document to another member of the legal team electronically over a network or by email, as shown in Exhibit 4.19. So advanced have the systems become, portable dictation devices can be used out of the office and then connected to the office computer, on which the speech recognition program has been installed, and the documents transcribed without the intervention of a typist. At up to 160 words a minute for speech input, for the average typist on the legal team the savings are significant. The underlying technology that enables voice technology to perform is now being used in automated response systems, like automatic call attendants that replace operators and receptionists in some firms. It is also a technology that permits those with physical disabilities that prevent using a keyboard, such as carpal tunnel syndrome, to remain or become productive in a world of word processors. Miniaturization and Portability The trend in computers and related computer devices has been toward miniaturization and portability. Smaller devices are becoming more powerful than some of the older M04_GOLD0000_00_SE_CH04.QXD 12/4/09 10:18 PM Page 161 C H A P T E R 4 Technology and the Paralegal Exhibit 4.19 Dictation using theBoom noise reduction microphone with Dragon NaturallySpeaking legal software theBoom is a registered trademark of UmeVoice Inc. Dragon NaturallySpeaking is a registered trademark of Nuance Communications. desktop systems and laptops. Even the telephone has been reduced to a pocket-sized wireless communication device that is also capable of taking and displaying photo images, video, documents, and emails and accessing the Internetmany functions that formerly were reserved to large hardwired computer devices. The Apple iPhone is an example of a device that can perform many functions formerly requiring a computer. Laptops have been reduced in size, with some weighing less than three pounds. They include all of the features previously mentioned together with built-in Web camera for videoconferencing and have built-in and removable memory greater than many file servers in some small offices. Wireless Technology Hardware in many offices today includes the wireless telephone and the laptop computer with built-in wireless Internet capability. The worldwide availability of inexpensive high-speed Internet connections has expanded the availability and use of new technologies. These tools allow constant communication and enable work to be performed virtually anywherehome, courthouse, airport lounge, or coffee shop. The connection to the office may be by wireless network using the cell phone, or by a wireless connection with built-in wireless network hardware on the computer, or using an adapter card plugged into the computer that uses a wireless Internet connection. Unlike a few years ago, wires are not necessary to access networks or to set up network connections. Today they may be set up using wireless technology in a wireless network. Just as the cell phone has enabled communications without wires, so has wireless technology allowed networks to be set up where workstations, servers, and peripherals connect over a wireless connection. Remote access is also possible by the use of wireless Internet connection using laptops and other personal computing devices including cell phones with built-in Web or Internet access. Remote Access Remote access allows members of the legal team working on cases out of the office to connect with the office file server to retrieve documents, work on them, and send them 161 M04_GOLD0000_00_SE_CH04.QXD 162 12/4/09 9:56 PM Page 162 PA R T I The Paralegal Profession to other members of the team anywhere in the world. If hardcopy is needed, documents may be printed on any printer accessible over the Internet, including printers in remote office locations, public access points in airports, clients offices, and courthouses. Remote Collaboration Remote collaboration Working on a common document utilizing remote access by two or more parties. Remote collaboration means that members of the team can work collaboratively from multiple locations as if in the same physical location. This is possible through software conferencing programs that allow the sharing of files while communicating and seeing each other on the same screen using small desktop cameras or cameras built into laptop computers. The same remote access technology allows for the taking of witness statements from remote locations while the parties can see each other or view exhibits on the computer screen. With higher-speed Internet connections the reality of true real-time videoconferencing has become a reality. Formerly, limited-speed connections restricted how much information could be transmitted. In the simplest form, slower speed increased the time to send a document. If not fast enough it prevented full-motion, full-screen video. With the introduction of fiber optic and cable Internet services in offices and in homes, videoconferencing from multiple locations, which requires a high-speed Internet connection to simultaneously transmit both the sound and the images, is now available on-site at many offices. Wireless Computer Networks Wireless computer networks A wireless network uses wireless technology in place of wires for connecting to the network. Hot spot A wireless access point, generally in a public area. Wireless computer networks are like cell phone networks in that both use radio waves to transmit signals to a receiver. Cell phone systems use cell towers located at strategic points all over the world to receive the signals from the cell phone subscribers cellular device. The wireless network uses wireless access points, which are essentially receivers of radio signals that convert them so they can be transmitted over a connecting wire to a computer or other connection to the Internet. Unlike cell phone towers, these access points are more limited. With the exception of a few cities that have access points over a large portion of the city these access points are local, often with a range limited to a few hundred feet. Many of these access points are provided in coffee shops, airport lounges, hotels, libraries, and bookstores without charge or at a nominal fee to encourage customers to use the facility instead of a competitors. With the growth of wireless hot spot locations, the wire connection has been cut. Lawyers and their paralegals may be connected anywhere in the world and send documents electronically back and forth with the same ease as sending them within the same building. With the growth of Internet connections to portable devices over cell phone connections, computers with built-in devices or with the use of plug-in devices can access the Internet over wide areas not previously possible. Wireless Laptop Connections Laptops may be used wirelessly to connect to the Internet without the limitation of use of a hot spot by using plug-in devices such as the AT&T Laptop Connect Card, Sierra Wireless Air Card, and a subscription to the service provided by most major providers like AT&T, Verizon, and Sprint. These services essentially provide service virtually anywhere there is a cellular connection. The popularity of these wireless services has resulted in many newer-generation laptops having the feature built in, eliminating the need for the external cards. Thin Client Thin client A computer system where programs and files are maintained on a centralized server. A trend called thin client or cloud computing is emerging where programs and files are maintained on a centralized server and each user has access through a dumb terminal (one without programs or data). The thin client model offers some additional level M04_GOLD0000_00_SE_CH04.QXD 12/4/09 9:56 PM Page 163 C H A P T E R 4 Technology and the Paralegal 163 of control and prevents loss of information through the loss of a computer. This general concept also includes Software as a Service (SaaS) and Web 2.0. It can be expected that the increased usage of the smaller, lighter computers, commonly called netbooks, designed for accessing the Internet will increase the demand for software and data repositories to minimize the need to support software and large data devices on these very portable computers. ETHICAL PERSPECTIVE Unauthorized Eavesdropping With the increased freedom of communication comes an increased risk of eavesdropping by unauthorized parties accessing the wireless signals. Security measures, such as encryption and access restricted by password, are essential to prevent ethical breaches in confidentiality. Use of public access points, such as the coffee shop with wireless access, the airport lounge, or other public location, invites the curious to eavesdrop and look over the shoulder at the screen of the laptop user. With the growing availability of Internet access on airplanes, the eyes of the adjoining seatmate may be those of a member of the opposing team traveling to the same destination on the same case. Concept Review and Reinforcement LEGAL TERMINOLOGY Applications software 134 Attachment 129 Backup of data 149 Case and litigation management software 140 Central processing unit (CPU) 133 Computer addresses and locations 153 Computer hardware 132 Computer network 147 Computer system 132 Computer viruses 158 Database program 138 Digital format 129 Electronic repository 130 Encryption 158 File attachment 155 File extension 137 Firewalls 157 Graphic user interface (GUI) 134 Hacking 157 Hardcopy 129 Hot spot 162 Internet 149 Internet (Web) browsers 151 Internet search engine 153 Internet service provider (ISP) 150 Local area network (LAN) 150 Mainframe 132 Modem 150 Network administrator 148 Network file server 147 Network rights and privileges 148 Office software suites 139 Online collaboration 130 Operating system 133 Outsourcing 131 Paperless office 146 Protocol 153 Random access memory (RAM) 133 Remote collaboration 162 Software 134 Specialty application programs 139 Spreadsheet programs 137 Teleworker 159 Thin client 162 Track Changes 135 Uniform resource locator (URL) 153 Uninterruptible power supply (UPS) 134 Videoconferencing 159 Voice recognition 160 VoIP 160 Wide area network 149 Wireless computer networks 162 Wireless network 149 Workstation 147 M04_GOLD0000_00_SE_CH04.QXD 164 12/4/09 7:23 PM Page 164 PA R T I The Paralegal Profession SUMMARY OF KEY CONCEPTS Need for Computer Skills The Need Computers are being used with greater frequency to share information in digital format between remote offices, courthouses, government agencies, and clients. Technology Usage in the Law Computers are now being used for everything from word processing to computerized timekeeping, payroll productions, and tax return preparation. Today even the smallest law firm and litigator must use technology. Some courts are demanding computerized filing. Outsourcing Outsourcing has become a buzzword for shipping work out of the office or overseas to save money. Using an outside computer consultant to help with support for the hardware and software of the office is a form of outsourcing and may involve a help desk located in a foreign location to answer questions. How Much Do I Really Need to Know No one can be an expert in everything. What is important is to know enough to know what you do not know and be able to find someone who does. Understanding the Language of Technology Why An understanding of the terminology of technology is a prerequisite to understanding the technology found in the law office, the courthouse, and the clients business. Computer Hardware Computer Hardware Hardware is the term that encompasses all of the tangible or physical items including computers, monitors, printers, fax machines, duplicators, and similar items that usually have either an electrical connection or use batteries as a power source. Operating Systems The operating system is a basic set of instructions to the computer on how to handle basic functionshow to process input from input devices such as the keyboard and mouse, the order in which to process information, and what to show on the computer monitor. Applications Software Applications Software Programs Applications programs are software that perform generic tasks such as word processing. Word Processing Programs Programs for creating written documents in electronic format. Track Changes Track Changes, as found in MS word, shows the original text, the deleted text, and the new text as well as a strike through for deleted text, underlining or highlighting of new text, as well as margin notes on the document. File Extensions When a file is saved, a file extension (a period followed by three characters) is added to the end of the filename to identify the program or format in which the file has been saved. Spreadsheet Programs Programs that permit the calculation and presentation of financial information in a grid format of rows and columns. Database Programs A database program is an electronic repository of information of all types that can be sorted and presented in a meaningful manner. M04_GOLD0000_00_SE_CH04.QXD 12/4/09 7:23 PM Page 165 C H A P T E R 4 Technology and the Paralegal 165 Presentation Graphic Programs Software programs used to create high quality slide shows and drawings. Specialty Application Programs Specialty applications programs combine many of the basic functions found in software suites, word processing, database management, spreadsheets, and graphic presentations to perform law office, case, and litigation management. Case and Litigation Management Software Case and litigation management programs are used to manage documents and the facts and issues of cases. The Electronic Courtroom and Paperless Office Electronic Courtroom The use of electronics and computer-based systems are used in the electronic courtroom. Paperless Office The paperless office is one in which documents are created and stored electronically. Networks Workstation A workstation generally consists of a computer, a monitor, and a printer. Computer Network A network is a set of workstations connected together. Network Server The network file server generally is a separate computer that acts as the traffic cop of the system controlling the flow of information; it requests to use the resources of the system or data, between the connected workstations and other peripherals that are part of the network. These servers usually are the central repository for all electronic files. Network Rights and Privileges Rights or privileges determine who has access to the server, the data stored on the server, and the flow of information between connections. Network Administrator The network administrator usually is the person with the highest-level access to the network file server. Backup of Data Backing up datamaking copies of filesregularly is an essential function to prevent loss of critical files and office data in the event of a disaster. Wide Area Network A wide area network is a network of networks. Each network is treated as if it were a connection on the network. Wireless Network A wireless network uses wireless technology instead of wires for connecting to the network. The Internet What Is It? The Internet or the World Wide Web is a group of computers linked together with the added ability to search all the connections for information. Online Computer Resources Internet Browsers An Internet or Web browser is a software program that allows a person to use a computer to access the Internet. The two most popular Web browsers are Microsoft Internet Explorer and AOL. Search Engines An Internet search engine is a program designed to take a word or set of words and locate websites on the Internet. M04_GOLD0000_00_SE_CH04.QXD 166 12/4/09 7:23 PM Page 166 PA R T I The Paralegal Profession Addresses and Locations The modern equivalent of a persons telephone number is the email address. Pages on the Internet also have addresses known as the Uniform Resource Locator (URL), made up of three parts: protocol, computer, and path. Formats of Available Information File Attachments The attachment is a popular method for transmitting text files, and occasionally graphic images, by attaching the file to an email. Receiving and Downloading Files and Attachments The method for downloading files and attachments is the same. They are downloaded into a directory (a folder), which in Windows usually is called My Download Files or My Files. If there is no existing folder, Windows Explorer can be used to create a file with a name, such as Download. Electronic Filing Courts Many courts have established procedures for the electronic filing of pleadings. Each court is free to set up its own rules and procedures and must be consulted before attempting to use this service. IRS The Internal Revenue Service and some states have combined in a joint effort to allow the filing of both the federal and state individual income tax returns. Types of Image Formats The most popular format for computerized forms is PDF. Computer and Network Security Security Security is a critical issue in law offices and for the court as they become more and more dependant on computers and the Internet. Firewalls A firewall is a software program designed to limit access to a computer network system. Encryption Encryption is technology that allows computer users to put a lock around information to prevent discovery by others. Computer Viruses Viruses are programs that attack and destroy computer programs, internal computer operating systems, and occasionally the hard disk drives of computers. Precautions Virus-protection programs such as Norton or McAfee should be updated regularly. Future Trends in Law Office Technology Looking ahead to whats on the technological horizon is imperative to the smooth and profitable functioning of the law office. Anticipating change and incorporating it requires IT knowledge and savvy, whether it comes in the form of in-house staff or external technology consultants. Videoconferencing Use, generally, of the Internet, or in some cases telephone lines or special satellite systems, to transmit and receive video and audio signals in real time to allow parties to see and hear each other. VoIP Voice over Internet Protocol (VoIP) is a protocol for using the Internet as a method of communication instead of traditional telephone company services. A computer with a microphone and headset or speaker is used to complete a call to another computer or telephone over the Internet. It may be a voice connection or voice and image. Voice Recognition More computer technology has brought this software to the point of accuracy, approaching, and in some cases exceeding, the accuracy of typing. M04_GOLD0000_00_SE_CH04.QXD 12/4/09 7:23 PM Page 167 C H A P T E R 4 Technology and the Paralegal 167 Miniaturization and Portability Smaller devices are becoming more powerful than some of the older desktop systems and laptops. Even the telephone has been reduced to a pocket-sized wireless communication device. Wireless Technology Hardware in many offices today includes the wireless telephone and the laptop computer with built-in wireless Internet capability. The worldwide availability of inexpensive high-speed Internet connections has expanded the availability and use of new technologies. Remote Access Remote access allows members of the legal team working on cases while out of the office to connect with the office file server to retrieve documents, work on them, and send them to other members of the team anywhere in the world. Remote Collaboration Remote collaboration means that members of the team can work collaboratively from multiple locations as if in the same physical location. This is possible through software conferencing programs that allow the sharing of files while communicating and seeing each other on the same screen. Wireless Computer Networks Like cell phone networks that use radio waves to transmit signals to a receiver. Wireless Laptop Connections Laptops may be used wirelessly by using plug-in devices to connect to the Internet without the limitation or use of a hot spot. Thin Client A trend called thin client or cloud computing is emerging where programs and files are maintained on a centralized server and each user has access through a dumb terminal (one without programs or data). WORKING THE WEB 1. Download the latest 1040 tax form and instructions from the Internal Revenue Service website at www .irs.gov. 2. Use one of the search engines listed below to find information on your school or local government: a. AltaVista: http://www.altavista.com b. Ask.com: http://www.ask.com c. Dogpile: http://www.dogpile.com d. Excite: http://www.excite.com e. Google: http://www.google.com f. MetaCrawler: http://www.metacrawler.com g. Netscape: http://www.netscape.com h. Yahoo!: www.yahoo.com 3. Use the Google search engine to find information on how firewalls work, and print out the first page of the results. Using one of the results, print out a copy of the information that is most responsive to the search, and write a short summary describing what a firewall does. http://www.google.com 4. Use a search engine of your choice to run a search for legal research resources. Print a copy of the first 10 results. 5. 6. 7. 8. Mark each result you think will be useful in the future as a paralegal and state why. Prepare a step-by-step list of how to find the Code of Federal Regulations on the Government Printing Office website. http://www.access.gpo.gov Prepare a list of the legislative information available from the Library of Congress online. http://www .LOC.gov Use any search engine or browser search tool to find the document How Our Laws Are Made, as revised and updated by Charles W. Johnson-Parliamentarian, on a federal government website. Hint: use quotation marks around the names. Print out the specific query you used and the URL of the source where the document was found. Print out a copy of the results of the search for firewall using Yahoo!, and compare the results to the result from Google. How many of the first 20 listings are the same? M04_GOLD0000_00_SE_CH04.QXD 168 12/4/09 7:23 PM Page 168 PA R T I The Paralegal Profession CRITICAL THINKING & WRITING QUESTIONS 1. How can the computer and the Internet increase a paralegals productivity? 2. What is meant by the term computer hardware? 3. What is the danger in using the word processing feature Track Changes? 4. What are applications software programs? Give an example. 5. What are the advantages of using office suite programs? 6. How can database programs be used to avoid ethical issues? 7. How can legal office management programs help prevent malpractice? 8. What is meant by the paperless office? What changes in law office administration have encouraged this? 9. What is the function of a network server? 10. Why is making a backup essential in a law office? 11. What is the advantage to the legal team in having a wide area network or wireless network? 12. How has the availability of the high-speed Internet impacted the use of the Internet in the law office? 13. What is an Internet browser? How is this different from Windows Explorer? 14. How reliable are forms and documents obtained over the Internet? 15. What advantages does knowing how to use the Internet provide the paralegal in the law office? 16. What are the limitations of using a website to attract new clients to your state? 17. Do cross-jurisdictional boundary websites present any problems for the law firm using the Internet? If so, why? 18. What are some of the ways in which using an Internet browser can assist the paralegal working on a file or a case? How are URLs used in conducting Internet searches? 19. What copyright issues must a paralegal consider in using the Internet to prepare written documents and reports? 20. How can authenticity of information obtained on the Internet be validated? Explain the issues in downloading information. 21. What is the purpose of a firewall? What are the implications to the law office of not having a firewall? 22. What is a computer virus, and what should a paralegal do to protect the firm against computer viruses? 23. Should encryption software be used regularly in transmitting files electronically? Why? 24. Why would the legal team want to use encryption when transmitting a document? 25. What is a wireless access point? How could this be used in a law firm? 26. What ethical issues arise in the use of hot spots or public access points? Building Paralegal Skills VIDEO CASE STUDIES Attorney Meet and Confer Opposing counsel are meeting as required under the Federal Rules of Civil Procedure to discuss discovery issues in the case. Defense counsel has recently taken over the file and is not familiar with its contents and asks for additional time to complete discovery. After viewing the video case study at www.pearsonhighered .com/goldman answer the following: 1. What is the purpose of the meet and confer under the Federal Rules of Civil Procedure. 2. If the lawyers are not familiar with some of the electronic discovery issues, do they have an ethical obligation to have someone there who is more knowledgeable? 3. How important is it for the lawyers and paralegals to be aware of the issues in the electronic discovery? Remote Videoconference Taking Witness Video Deposition The parent of an accident victim is not available locally for deposition. To save time and costs his deposition is being taken by videoconferencing. After viewing the video case study at www.pearsonhighered.com/goldman answer the following: 1. What arrangements must be made to take a deposition using video conferencing? 2. What are the advantages and disadvantages of using video conferencing for taking depositions of fact witnesses? 3. What is the role of the court reporter in a video conference deposition? M04_GOLD0000_00_SE_CH04.QXD 12/4/09 7:23 PM Page 169 C H A P T E R 4 Technology and the Paralegal Privilege Issue: Misdirected E-mail The paralegal working on a confidential memo for a client has accidentally sent it to opposing counsel. The supervising attorney, visibly upset, gives instructions on how to handle the situation. After viewing the video case study at www.pearsonhighered .com/goldman answer the following: 169 1. What is the potential of fact of the e-mail and confidential information to the opposing party? 2. What steps should be taken in your jurisdiction when e-mail is inadvertently sent to the wrong party? 3. Who is ultimately responsible and what are the penalties for inadvertent disclosure of confidential information by e-mail? ETHICS ANALYSIS & DISCUSSION QUESTIONS 1. What are the ethical issues related to a law firm website that is available around the world when the firm is licensed to practice only in one jurisdiction? 2. Explain the ethical implication of the following: In todays society, with the advent of the information superhighway, federal and state legislation and regulations, as well as information regarding industry trends, are easily accessed. 3. What are the ethical issues of erroneously sending or receiving by email or fax a confidential trial strategy memorandum? 4. What ethical issues arise for the law firm when it does not maintain an off-premises copy of files and client records? Does a major catastrophe, such as the flooding caused by Hurricane Katrina in New Orleans in 2005, excuse not having backup files and records? 5. What role do security protocols have in ethical compliance? 6. What ethical issues are involved in combining law practices as discussed in the opening scenario? What specific steps should be taken? Explain how these steps will prevent ethical breaches. 7. You are working in a sophisticated law firm that has the latest computers and software. You have not been trained in the use of the firms computer encryption software for transmitting email and other electronic documents to clients and other offices of the firm. You live a few blocks from the office and consent to stay late on Friday night before a major holiday weekend when everyone has left early to avoid the rush hour traffic. A client calls and asks for a copy of the trial strategy memorandum for a major case to take with him for review over the weekend. He advises that he is getting ready to get on a plane but has a computer with him that has reverse encryption software the firm gave him and tells you he wants to read the memo while he is on the plane for the next 14 hours on his way to Tokyo. He hangs up and you do not have his cell phone number. You send the email without using the encryption software. [U.S. v. Thomas, 74 F.3d. 701 (1996), ABA Ethics Opinion, Utah Ethics Opinion 00-01.] Have you breached any rules on client confidentiality by sending unencrypted email containing confidential client information? DEVELOPING YOUR COLLABORATION SKILLS Working on your own or with a group of other students assigned by your instructor, review the scenario at the beginning of the chapter that deals with combining a paper-based office and an electronic office. 1. Divide into two teams, one team playing the role of the junior paralegal and the other the senior paralegal. Put yourself in that persons place, and make a list of the benefits of the type of office system (electronic or paper) that they are accustomed to working in. 2. Share your list with the other team. As a group, decide what systems/practices you think will be most efficient and effective to use in the combined office to perform the following activities: Manage conflicts of interest Perform legal research Manage cases Handle client files Communicate with clients Manage financial accounts 3. As a group, identify areas of ethical concern in a merger, and discuss how best to handle these issues. M04_GOLD0000_00_SE_CH04.QXD 170 12/4/09 7:23 PM Page 170 PA R T I The Paralegal Profession PARALEGAL PORTFOLIO EXERCISE Prepare a memo for a potential law office manager, outlining the advantages and disadvantages of the paperless office. What security and confidentiality issues must be considered? What potential solutions or office procedures should be put in place? Reference and cite any applicable ethical rules or opinions from your local or state court or bar association. LEGAL ANALYSIS & WRITING CASES Issue: Are Images Displayed on the Internet as a Result of a Search Protected by Copyright? Defendant operates a visual search engine on the Internet that allows a user to obtain a list of related Web content in response to a search query entered by the user. Unlike other Internet search engines, defendants search engine, the Ditto crawler, retrieves images instead of descriptive text. It produces a list of reduced, thumbnail pictures related to the users query. By clicking on the desired thumbnail, a user could view the image attributes window displaying the fullsize version of the image, a description of its dimensions, and an address for the website where it originated. By clicking on the address, the user could link to the originating website for the image. The search engine works by maintaining an indexed database of approximately two million thumbnail images obtained through a crawlera computer program that travels the Web in search of images to be converted into thumbnails and added to the index. Plaintiff Kelly is a photographer specializing in photographs of California Gold Rush country and photographs related to the works of Laura Ingalls Wilder. He does not sell the photographs independently, but his photographs have appeared in several books. Plaintiff also maintains two websites, one of which (www.goldrush1849.com) provides a virtual tour of Californias Gold Rush country and promotes plaintiffs book on the subject. The other (www.showmethegold.com) markets corporate retreats in Californias Gold Rush country. Thirty-five of plaintiffs images were indexed by the Ditto crawler and put in defendants image database. As a result, these images were made available in thumbnail form to users of defendants visual search engine. After being notified of plaintiffs objections, Ditto removed the images from its database. Plaintiff filed a copyright-infringement action. One of the questions of first impression is whether the display of copyrighted images by a visual search engine on the Internet constitutes fair use under the Copyright Act. The court found that defendant never held out plaintiffs work as its own, or even engaged in conduct specifically directed at plaintiffs work. Plaintiffs images were swept up along with two million others available on the Internet, as part of defendants efforts to provide its users with a better way to find images on the Internet. Defendants purposes were and are inherently transformative, even if its realization of those purposes was at times imperfect. Where, as here, a new use and new technology are evolving, the broad transformative purpose of the use weighs more heavily than the inevitable flaws in its early stages of development. Questions 1. As the use of the Internet matures, will courts view use of information from the Web differently? 2. What are the implications in taking material off the Internet and including it in reports, memos, and briefs? 3. Would the decision have been different if the items were copyrighted legal forms also located by a crawler and displayed as a visual image such as a PDF file? WORKING WITH THE LANGUAGE OF THE COURT CASE CoStar Group Inc. v. LoopNet, Inc. 164 F. Supp. 2d 688 (D.C. Md. 2001) United States District Court, Maryland Read, and if assigned, brief this case. In your brief, include answers to the following questions. 1. What is a contributory infringer under the Digital Millennium Copyright Act? 2. Who is an online service provider as defined by the Digital Millennium Copyright Act (DMCA)? M04_GOLD0000_00_SE_CH04.QXD 12/4/09 7:23 PM Page 171 C H A P T E R 4 Technology and the Paralegal 3. When does a service provider lose its immunity under the DMCA? 4. What is a safe harbor under the DMCA? Deborah K. Chasanow I. BACKGROUND Plaintiffs CoStar Group, Inc. and CoStar Realty Information, Inc. (collectively CoStar) filed suit against LoopNet, Inc. (LoopNet) alleging copyright infringement. CoStar is a national provider of commercial real estate information services . . . which includes photographs. . . . LoopNet is an Internet-based company offering a service through which a user . . . may post a listing of commercial real estate available for lease. . . . To include a photograph, . . . it is uploaded into a separate folder,. . . where it is reviewed by a LoopNet employee to determine that it is . . . a photograph of commercial property and that there is no obvious . . . violation of LoopNets terms and conditions. If the photograph meets LoopNets criteria . . . it is automatically posted. . . . CoStar claims that over 300 of its copyrighted photographs have appeared on LoopNets site (the number has increased over time). . . . Application of copyright law in cyberspace is elusive and perplexing. The World Wide Web has progressed far faster than the law and, as a result, courts are struggling to catch up. Legislatures and courts endeavor in this growing area to maintain the free flow of information over the Internet while still protecting intellectual property rights. . . . Contributory Copyright Infringement 1. OVERVIEW It is, today, a given that: one who, with knowledge of the infringing activity, induces, causes, or materially contributes to the infringing conduct of another, may be held liable as a contributory infringer. . . . Put differently, liability exists if the defendant engages in personal conduct that encourages or assists the infringement.. . . CoStar does not claim that LoopNet had knowledge of its users infringements prior to its giving notice. . . . Given the nature of the infringements in this 171 5. What conduct takes a service provider out of the safe harbor? case, it was impossible for LoopNet to have knowledge of the alleged infringement before receiving notice from CoStar. CoStar does not attach a copyright notice to its photos and even CoStars own expert could not identify a CoStar photo simply by reviewing it. . . . Thus, LoopNet cannot be charged with . . . knowledge before receiving claims of infringement from CoStar. . . . CoStar does not claim that LoopNet had knowledge of infringement prior to receiving notice from CoStar. [T]here remain . . . disputes about [its] knowledge . . . after receiving the claims of infringement. CoStar alleges that once it gave LoopNet notice that its photographs were being infringed, LoopNet can be charged with knowledge of continuing infringements. . . . The DMCA was enacted both to preserve copyright enforcement in the Internet and to provide immunity to service providers from copyright infringement liability for passive, automatic actions in which a service providers system engages through a technological process initiated by another without the knowledge of the service provider. . . . The DMCAs protection of an innocent service provider disappears at the moment the service provider loses its innocence, i.e., at the moment it becomes aware that a third party is using its system to infringe. At that point, the Act shifts responsibility to the service provider to disable the infringing matter, preserving the strong incentives for service providers and copyright owners to cooperate to detect and deal with copyright infringements that take place in the digital networked environment. The DMCA seeks to strike a balance by shielding online service providers from liability in damages as long as they remove or prevent access to infringing material. . . . The initial inquiry is whether LoopNet can be considered a service provider for the purposes of the DMCA. a. Service Provider In order to qualify for the safe harbor in the DMCA, LoopNet must meet the definition of online service provider. Under 512 (k)(1)(A), a service provider is an entity offering the transmission, routing, or providing of connections for digital online communications, between (continued) M04_GOLD0000_00_SE_CH04.QXD 172 12/4/09 7:23 PM Page 172 PA R T I The Paralegal Profession or among points specified by a user, of material of the users choosing, without modification to the content of the material as sent or received. 17 U.S.C. 512(k)(1)(A)(1998). . . . For the other safe harbor provisions, including (c), which is at issue here, the definition is broader: a provider of online services or network access, or the operator of facilities therefore.. . . Online services is surely broad enough to encompass the type of service provided by LoopNet that is at issue here. The term is, of course, only a threshold to the protections of the Act. Even if LoopNet qualifies as a service provider, it must meet the other criteria. b. Stored at the Instance of the User A service provider is only protected from liability by the DMCA, for infringement of copyright by reason of its storage at the direction of user of material. 17 U.S.C. 512(c)(1) . . . [The photographs at issue] are uploaded at the volition of the user and are subject . . . to a mere screening to assess whether they are commercial property and to catch any obvious infringements. . . . Although humans are involved rather than mere technology, they serve only as a gateway and are not involved in a selection process . . . Therefore, this threshold requirement is met and LoopNet is not disqualified from the safe harbor on these grounds. c. Knowledge The safe harbor protects service providers from liability unless they have knowledge of copyright infringement. There are three types of knowledge of infringement that can take a service provider out of the safe harbor: (1) the service provider can have actual knowledge of infringement; (2) it can be aware of facts which raise a red flag that its users are infringing; or (3) the copyright owner can notify the service provider in a manner substantially conforming with 512 (c)(3) that its works are being infringed. . . .The service provider does not automatically lose its liability shield upon receiving notice, but the Act shifts responsibility to the service provider to disable the infringing matter. . . . . . . LoopNet received notification of claimed infringement . . . so the adequacy of LoopNets removal policy must be assessed to determine whether LoopNet is protected by the safe harbor. d. Adequacy of Termination and "Take Down" Policy Once a service provider has received notification of a claimed infringement as described in [the Act] . . . the service provider can remain in the safe harbor if it responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity. 17 U.S.C. 512 (c)(1)(C) (1998). . . . There are several material factual disputes remaining as to whether the removal of allegedly infringing photographs was satisfactorily expeditious and whether LoopNets termination policy was reasonable and effective. CoStars infringement claims are based on the posting of specific photographs. Additionally, LoopNets knowledge of the alleged infringements and its take down and termination policies have changed over time in fairly significant ways. In order to resolve this issue, the factfinder will have to focus on each photo and the policy in effect prior to the posting of each photo. Hence, neither party is entitled to summary judgment on this issue. . . . 3. LIABILITY FOR CONTRIBUTORY INFRINGEMENT With regard to the photographs that were infringed before the safe harbor applied . . . and in case LoopNets termination policy and take down of infringing photographs is found to be inadequate so as to remove it from the safe harbor, the analysis shifts from the DMCA back to contributory infringement. The determination of contributory infringement liability turns on a different issue of knowledge than the standard used to determine LoopNets eligibility for the safe harbor. Here, the question is whether CoStars notice of claimed infringement was sufficient to satisfy the knowledge prong of the test for contributory infringement either by providing actual knowledge, a red flag that infringement was occurring, or constructive knowledge. . . . [T]he fact finder must determine along a continuum the adequacy of the policy in place prior to the posting of each specific photograph. Therefore, neither party is entitled to summary judgment on this issue. e. Preemption of Non-Copyright Claims . . . The Copyright Act preempts state law that is equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106. 17 U.S.C. 301(a) (1996) . . . To determine whether a state claim is preempted by the Act, courts must make a two-part inquiry: (1) the work must be within the scope of the subject matter of copyright, and (2) the state law rights must be equivalent to any exclusive rights within the scope of federal copyright. Fischer v. Viacom Intern Corp., 115 F. Supp. 2d 535. 540 (D.Md. 2000). . . . The critical question, then, is whether CoStars unfair competition claim contains an additional element or whether it is based solely on the alleged copying. M04_GOLD0000_00_SE_CH04.QXD 12/4/09 7:24 PM Page 173 C H A P T E R 4 Technology and the Paralegal . . . Essentially, CoStars claim is that LoopNet is exhibiting as its own photographs on its website that CoStar has an exclusive right to exhibit or license for exhibition. This type of reverse passing off is, in effect, a disguised copyright infringement claim.. . . Therefore, this claim does not satisfy the extra-element test and so is equivalent to CoStars claim under the Copyright Act. Accordingly, it is preempted. . . . 173 V. CONCLUSION For the foregoing reasons; by separate order, both motions concerning the safe harbor defense of the DMCA will be denied, . . . both motions concerning contributory infringement will be denied, . . . summary judgment will be granted in favor of LoopNet on the . . . preemption of the state law claims. M04_GOLD0000_00_SE_CH04.QXD 12/4/09 7:24 PM Page 174

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UIllinois - STAT - 409
STAT 409Fall 2011Examples for 10/24/2011H0: = 0vs.H 1 : = 1.Likelihood Ratio: ( x 1 , x 2 ,., x n ) =L ( 0 ; x 1 , x 2 ,., x n ).L ( 1 ; x 1 , x 2 ,., x n )Neyman-Pearson Theorem:C = cfw_ ( x 1 , x 2 , , x n ) : ( x 1 , x 2 ,., x n ) k .( Rej
UIllinois - STAT - 409
STAT 409Fall 2011Examples for 10/26/2011Consider a family of probability distributions with a p.d.f. of theformf ( x ; ) = x 1, 0 < x < 1, zero elsewhere, 1.To test the simple hypothesis H 0 : = 1 against the alternativesimple hypothesis H 1 : = 1,
UIllinois - STAT - 409
STAT 409Fall 2011Examples for 10/28/2011Example 1:12345p0(x )0.250.150.200.050.35p1(x )0.200.200.200.200.20H 0 : X has p.m.f. p 0 ( x )vs.H 1 : X has p.m.f. p 1 ( x ).1(x)23451.250.7510.251.75Reject H 0 if x = 4 = 0.05,
UIllinois - STAT - 409
STAT 4091.Fall 2011Examples for 10/31/2011Alex buys a package of Sour Jelly Beans. On the package, it says that 50% of alljelly beans are lemon, 30% are cherry, and 20% are lime. When Alex opens thepackage, he finds 15 lemon, 9 cherry and 12 lime je
UIllinois - STAT - 409
STAT 409Examples for 11/02/2011 (1)Fall 20111.The developers of a math proficiency exam to be used at Anytown State Universitybelieve that 60% of all incoming freshmen will be able to pass the exam. In a randomsample of 200 incoming freshmen, 105 pa
UIllinois - STAT - 409
STAT 4091.Let X 1 , X 2 , , X n be a random sample of sizeprobability density functionf X (x) = f X ( x ; ) = ( 1 ) 2 a)Fall 2011Examples for 11/02/2011 (2)ln xxnfrom the distribution withx > 1,, > 1.Find the form of the uniformly most powe
UIllinois - STAT - 409
STAT 4091.Fall 2011Examples for 11/07/2011A group of 500 children (250 boys and 250 girls) were asked to identify theirfavorite color. We obtain the following data:Favorite ColorSexYellowRedBlueBrownBoys107853325Girls93656725A toy ma
UIllinois - STAT - 409
STAT 4091.Fall 2011Examples for 11/09/2011The following is a random sample from a certain population:2419171220112215222618We wish to test H 0 : m = 17 vs. H 1 : m > 17, where m is the populationmedian.a)Use the sign test. What is the p
UIllinois - STAT - 409
STAT 409Examples for 11/14/2011Fall 2011A pharmaceutical company is planning to introduce a new painkiller. In a preliminaryexperiment to determine effectiveness, 30 people were randomly selected, of whom 15 weregiven the new painkiller and 15 were g
UIllinois - STAT - 409
1.Let X 1 , X 2 , , X n be a random sample of size n = 19 from the normaldistribution N ( , 2 ).a)Find a rejection region of size = 0.05 for testingH 0 : 2 = 30 vs. H 1 : 2 > 30.For which values of the sample variance s 2 should the null hypothesis
UIllinois - STAT - 409
Practice Problems for 8.11.Crosses of mice will produce either black, brown, or albino offspring. Mendelsmodel predicts that the probability of a black offspring is 9/16 ; the probabilityof a brown offspring is 3/16 ; and the probability of an albino
UIllinois - STAT - 409
Corrections and comments to discussion on 11/01/20111.Let X1, X2, Xn be a random sample from the distribution with p.d.f(),We wish to test H0: 2 vs. H1: < 2.a)If n=5, find a uniformly most powerful rejection region with the significancelevel =0.1
UIllinois - STAT - 409
STAT 409Fall 2011Homework #6( due Friday, October 14, by 4:00 p.m. )1.In the past, only 30% of the people in a large city felt that its mass transit system isadequate. After some changes to the mass transit system were made, we wish to testif the p
UIllinois - STAT - 409
STAT 409Fall 2011Homework #7(due Friday, October 21, by 4:00 p.m.)1.A researcher wishes to determine whether the starting salaries of high-school mathteachers in private schools are higher than those of high-school math teachers inpublic schools. S
UIllinois - STAT - 409
STAT 409Homework #8Fall 2011(due Friday, October 28, by 4:00 p.m.)1 2.Bert and Ernie noticed that thefollowing are satisfied whenCookie Monster eats cookies:(a)the number of cookies eaten duringnon-overlapping time intervals areindependent;(b)
UIllinois - STAT - 409
STAT 409Fall 2011Homework #9(due Friday, November 11, by 4:00 p.m.)1.Let > 0 and let X 1 , X 2 , , X n be independent random variables, each withthe probability density function +1f(x) = x0x 1.x <1We wish to test H 0 : = 1 vs. H 1 : > 1.a)F
UIllinois - STAT - 409
STAT 409Fall 2011NameVersion AANSWERS.Quiz 4(10 points)Be sure to show all your work; your partial credit might depend on it.No credit will be given without supporting work.1.Assume that the population of adult elephant weights is normally dist
UIllinois - STAT - 409
STAT 409Fall 2011NameVersion BANSWERS.Quiz 4(10 points)Be sure to show all your work; your partial credit might depend on it.No credit will be given without supporting work.1.Assume that the population of adult hippopotamus weights is normally
UIllinois - STAT - 409
STAT 409Fall 2011NameVersion CANSWERS.Quiz 4(10 points)Be sure to show all your work; your partial credit might depend on it.No credit will be given without supporting work.1.Assume that the population of adult white rhinoceros weights is norma
UIllinois - STAT - 409
STAT 409Fall 2011NameVersion DANSWERS.Quiz 4(10 points)Be sure to show all your work; your partial credit might depend on it.No credit will be given without supporting work.1.Assume that the population of adult male giraffe heights is normally
University of Florida - CHM - CHM2046L
Unknown Scheme: 2I. DescriptionA) Phase, solubility, color, odor, shapeII. Flame TestA) Orange flame Na+ present (possibly K+, NH4+)B) Red flame Ca2+ present (no Na+)C) Purple flame K+ present (possibly NH4+)D) No change in flame color Ca2+, K+, Na
Berkeley - ECON 100B - ECON 100B
Name: _(Last name, first name)SID: _GSI: _Econ 100BMacroeconomic AnalysisProfessor Steven WoodFall 2011Exam #2 ANSWERSPlease sign the following oath:The answers on this test are entirely my own work. I neither gave nor received any aid while tak
Keller Graduate School of Management - GM - 592
PF Changs Leadership-1-PF CHANGSLeadership and ManagementGM 5920Professor NosworthyByRuss GrazianoPF Changs Leadership-2-After watching the two videos regarding PF Changs leadership and management,I stepped away with a new respect for the compa
Keller Graduate School of Management - FI - 515
You Decide Week 51You DecideGeneral Oil CompanyByRuss GrazianoGM 5920Professor NorsworthyYou Decide Week 52The unintentional accounting error resulted in an overstatement of profit for theprevious quarter. As the new CEO of General Oil and Powe
Keller Graduate School of Management - FI - 515
Problems (pp. 210-211)5-1 Bond Valuation with Annual PaymentsJackson Corporations bonds have 12 years remaining to maturity. Interest is paidannually, the bonds have a $1,000 par value, and the coupon interest rate is 8%. Thebonds have a yield to matu
Keller Graduate School of Management - FI - 515
Problems (p.112)3-1 Days Sales OutstandingGreene Sisters has a DSO of 20 days. The companys average daily sales are $20,000.What is the level of its accounts receivable? Assume there are 365 days in a year.DSO = days sales outstanding = receivables /
Keller Graduate School of Management - HR - 590
KSA Statements: Human Resource ReceptionistStudent Name12345Task Statement(copy/paste all taskstatements here)Maintain personnel filesas needed so informationis organized and easy tolocate for future use.Assist the public and/oremployees wi
Ave Maria - BIO - 105
LECTURE 24 ENERGY Work - Application of force through a distance. Energy - The capacity to do work. Power - Rate at which work is done or rate of flow of energy. Units of energy Joule- Amount of work done when a force of 1 Newton is exerted over 1 me
Rio Salado - CRE - 101
1) Why is critical reading and thinking important?-Answer below: Critical reading and thinking is important because you carefully andthoroughly analyze all of the possibilities in any problem, event, issue, situation, or decisionneeding a solution. Whe
Rio Salado - PAR - 102
Lauren PalominoPar 102 #46878Lesson 1 Assignment1. How does the American Bar Association define the term paralegal?A. Is a person, qualified by education, training, or work experience who is employed orretained by a lawyer, law office, corporation, g
Purdue - ECON - 251
Lauren PalominoPAR 102 #46878Lesson 2 AssignmentPages 67-681.What is the general theory for the regulating the practice of law? How is this applied?-Answer: The general theory for the regulating the practice of law is to protect the public frominco
Rio Salado - PAR - 102
Lauren PalominoPAR 102 #46878Lesson 3Lesson 3 AssignmentPage 1182. What are the advantages and disadvantages of working for a lawyer in solo practice?AnswerAdvantages of working in a solo practice a paralegal can obtain more legal knowledge because
Rio Salado - PAR - 102
Lauren PalominoPAR102 #46878November 14, 2011Lesson 41. How can the computer and the Internet increase a paralegals productivity?AnswerThe computer and the internet increase productivity by providing an ability that allows them towork outside of the
Rio Salado - PAR - 104
1. Why must clients be sure that their confidences will remain confidential?-Answer below:When a client can trust their confidences will remain confidential, then they share more personalinformation with the lawyer. The more information the client disc
Rio Salado - PAR - 104
LESSON 41. A paralegals involvement in screening for potential conflicts of interest upon employmentinvolves?-Answer below:Paralegals are involvement in the screening involve completing a personal conflict check systemso it can be given to the superv
Rio Salado - CRE - 101
Lauren PalominoCRE101 #33875Lesson 31.Define bias, similes, metaphors, and ambiguity.AnswerBias is an inclination that holds a partial perspective at the expense ofalternatives. It is when someone only thinks one way and not opens to a newthought.
Rio Salado - CRE - 101
1) Define tone, subjective, objective, denotation, connotation, fact, and opinion.-Answer below:Tone is a reflection of the writers attitude and feelings toward a given topic or issue. The tone isaway to figure out what is fact or opinion the purpose o
Rio Salado - CRE - 101
Lesson 4Exercise 1:Simon is faster than Fernando. From this we can conclude that Simon is faster than Lewis,because Fernando is faster than Lewis.Premise #1-Answer below:Simon is faster than Fernando. (no signal word)Premise #2 -Answer below:Becaus
Rio Salado - BPC - 110
Lesson 11 EssayPlagiarism, Netiquette, and Piracy are all one of the 10 Commandments of ComputerEthics, which was on Computer of Ethics Institutes website. (CEI) They are all have torespecting others and their creations. They also are all illegal and c
Rio Salado - COM - 100
Name: Lauren PalominoLesson #: 1Topic or Concept: Three types of MetacommunicationsPart I: A description of the communication situation.I told my daughters to help me pick up and thoroughly clean their room. I explained everythingin detail of what I
Rio Salado - COM - 100
One barrier to effective listening and communication is the speaker's vocabulary orlanguage. This is included in Step 3 "Create message" in DECIDE. There are two solutionsfor overcoming this barrier; one is a strategy for the listener and one is a strat
Rio Salado - COM - 100
Focusing Your LearningLesson ObjectivesBy the end of this lesson, you should be able to:1. Explain the importance of nonverbal communication in effective communication.2. Explain the categories or elements of nonverbal communication.3. Explain the im