Thursday, March 05, 2015

Know That Smartphone (And The Data Stored Therein)

What data can be harvested from the typical smartphone? How can litigators utilize forensics to obtain this data for use in legal proceedings?

Two recent articles from Law Pro’s Tim Lemieux and Rob Lekowski of ABA’s Law Technology Today have looked at these questions and offer quite a bit of need-to-know information.
The typical mobile device retains information on the locations of all calls, all wifi-networks joined, photos taken, and apps that utilize location services.  Text messages – even those deleted – will remain on the device until overwritten, as will browsing histories. Even encrypted data may be accessible.

And of course, there will also be all the usual email, documents and other app data that will be readily available from the device, without any forensic voodoo.

Four-digit passcodes present virtually no obstacle to forensics experts seeking access to mobile devices, according the the Lekowski article.  Even a rudimentary Google search will yield an avalanche of results as to forensic software suites that are available to assist in data harvesting from mobile devices and the cloud-based mail and data storage applications they are connected to.
There has been much jurisprudence in a criminal law context as to the necessity of obtaining warrants prior to police searches of mobile devices.  In R. v. Manley, a 2011 decision of the Ontario Court of Appeal, Mr. Justice Sharpe noted:
Cell phones and other similar handheld communication devices in common use have the capacity to store vast amounts of highly sensitive personal, private and confidential information – all manner of private voice, text and e-mail communications, detailed personal contact lists, agendas, diaries and personal photographs. An open-ended power to search without a warrant all the stored data in any cell phone found in the possession of any arrested person clearly raises the spectre of a serious and significant invasion of the Charter-protected privacy interests of arrested persons. If the police have reasonable grounds to believe that the search of a cell phone seized upon arrest would yield evidence of the offence, the prudent course is for them to obtain a warrant authorizing the search.
In a civil context, orders may be obtained for production of cell phones and hard drives for forensic analysis (see: Comisso v. York Regional Police, 2010 ONSC 3620), subject to assessments of relevance and proportionality that may significantly narrow or limit the scope of such analysis (see: Warman v. National Post Company, 2010 ONSC 3670). Further, the ease with which electronic evidence may be destroyed has been cited as a factor in considering the appropriateness of granting an Anton Pillar order for the seizure of computers and mobile devices (see: Irving Shipbuilding Inc. v. Schmidt, 2014 ONSC 1474).

While forensic analysis of mobile phones and their data will clearly not be appropriate on a routine basis in every case, counsel should consider whether such evidence is relevant and whether production for forensic analysis would be proportionate to the claims advanced. Further, bear in mind that such evidence can be exculpatory, and is not always damning. Consider whether your own clients’ mobile data could be of assistance in advancing their claims.

Our courts continue their attempts to find a balance between the protection of privacy and the temptation to litigants of the voluminous, potentially-relevant data on mobile and other electronic devices.  As a result, determining whether mobile data is necessary and potentially discoverable must be included on the litigator’s to-do list  in prosecuting a civil action.
So today’s tip:  Know that smartphone – it might be litigation a game-changer.

(Cross-Posted at Slaw Tips)
- Garry J. Wise, Toronto
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Monday, March 02, 2015

140 Law - Legal Headlines for the week of February 22, 2015

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Monday, February 23, 2015

140Law - Legal Headlines for February 16, 2015

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Thursday, February 19, 2015

5 Tips on Marketing for Law Firms (Video)

The world of marketing remains a bit of a mystery for many legal professionals.  We know enough about it that many of us become do-it-ourselfers for our websites, blogs and even our branding.

Nonetheless, there is much we can learn from true marketing professionals.

To that end, I have the pleasure today of introducing the first in a series of videos on Marketing for Lawyers and Legal Professionals I’ve done with Sandra Bekhor of Bekhor Management and Toronto Marketing Blog. Sandra’s firm provides marketing and practice management services nationwide to lawyers and other professional practitioners.

In this installment, Sandra discusses marketing for lawyers and provides 5 tips on taking your firm’s marketing endeavours to the next level:

Here are Sandra’s key tips from the video:

1. Track where your client enquiries are coming from.
  • Generate data on what’s working for your firm today by asking your intake staff to ask new clients how they became aware of your firm and by including a question on your intake questionnaire that asks this same question. And, of course, remember to thank your referral sources.
2. Analyze your marketing budget (and spend wisely)  
  • Be aware of how much you are investing in each of your marketing initiatives over the course of the year, and determine which of those initiatives are delivering a good return.  If an initiative isn’t working, discontinue it.   If you are seeing success, consider how to extend and build on that success.
3.  Decide what you want your marketing to generate for you, and use marketing to shape the practice you intend to build.
  • Consider the “80/ 20 rule:” 20% of your practice drives 80% of revenue.  Decide what you want more of, and direct your marketing efforts toward those outcomes. Develop a sense of who your “ideal” target client is, and target those clients.
  • This applies to each individual lawyer.  Take a look at your practice – the kind of work you are doing and the kind of work you’d like to be doing.  Focus your marketing efforts on reshaping your practice to align with your professional aspirations and goals.
4.  Develop a plan
  • After analyzing what has already been working, deciding where you want to get to and establishing your budget, you will have compiled much necessary information to feed and direct your law firm’s marketing plan.
  • While there are many steps to getting there, ultimately your marketing plan is an action plan.  It tells you what projects you should be working on – develop a logo or tagline, expand your engagement on social media, arrange speaking engagements, or update your website, as examples.
  • It will likely include marketing activity that the entire firm will participate in, as well as personal level activities that are customized to each lawyer’s strengths and interests.
  • If a stated goal is to open x new files in a preferred area of practice or to drive y dollars in revenue by end of year, your plan will also help you determine how many of these marketing activities will need to happen (and at what frequency they must happen) to make your goals a reality.
5.  Implement your plan before the ink dries

In fact, start implementing even before you finish the plan.

6.  Bonus Tip (from me):  Involve Marketing Professionals
  • Marketing professionals bring objectivity, understanding of the marketplace and an assortment of strategic and creative skills to any law firm marketing initiative.
  • But perhaps most importantly, marketing professionals can help law firms to identify and clearly articulate their authentic identities and strengths.  They then can work with us to translate these articulated strengths into marketing initiatives aimed at building the kinds of practices we all genuinely aspire toward.
It’s not quite as simple as “if you build it they will come,” perhaps.

But if you build it and market it appropriately and professionally – and your firm delivers the quality of service it promises to deliver – you are likely to have a very successful career in the practice of law.

For the professional practice of today, I’d suggest, marketing has become one of the necessary – and unavoidable – components of such success.

(Cross-posted at Slaw Tips)
- Garry J. Wise, Toronto

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Tuesday, February 17, 2015

140Law - Your Leading Legal Headlines for the week of February 9, 2015

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Monday, February 09, 2015

140 Law - Legal Headlines for the Week of February 2, 2015

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Thursday, February 05, 2015

Use Skype to Strengthen Lawyer-Client Rapport

It crept up on us slowly, but Skype has become an  indispensable technology in the modern law firm’s toolbox.

A bit of historical context will set the stage:
Launched in 2003, Skype was one of the first mass market freely available forms of internet video conferencing. It took advantage of early developments in Voice over Internet Protocol (VoIP) technology to allow users to communicate with each other using their microphones and webcams. Previously video conferencing had been prohibitively expensive for the general public and was largely only used by companies. The burgeoning popularity of broadband over the last few years has led to an increase in the use of a constantly improving VoIP and a surge in the popularity of Skype. Microsoft purchased Skype in 2011 for $8.5 billion, together with its database of some 600 million users.
The Skype-call has become a routine entry in my calendar over the last year or so.  In fact, it is an increasingly-rare week that does not have at least one Skype meeting booked with an out-of-town client.

The videoconference via Skype offers many obvious advantages over the traditional voice call. The opportunity for an eyeball-to-eyeball connection facilitates a much deeper rapport between lawyer and client, and in the process, helps build and strengthen the trust that is the necessary foundation of the lawyer-client relationship. This is  especially important where distance or disability make face-to-face meetings rare or impractical.

Perhaps there is something to be said from the client’s perspective for the opportunity to speak to one’s lawyer from the familiar surroundings of one’s own home or office.  A Skype call allows for professional communications in a context that is a bit more relaxed, convenient and comfortable for the client than a hectic law office.  That lends itself to the better and more natural dialogue that typically emerges.

There is probably a simple explanation for the increasing frequency of the virtual meeting via Skype in my office – we made a concerted effort to offer this option to our out-of-town clients.  Once they were made aware of the availability of virtual meetings, they embraced it, almost unanimously.
Connection glitches can still be an occasional, but generally manageable issue, however.   It’s not perfect, but Skype is very good.

As is always the case with new technologies, the legal profession’s opt-in to virtual videoconferencing will occur somewhat later than the rest of the planet's. The corporate world has utilized videoconferencing to reduce travel costs and maximize efficiencies for two decades.  In the same timeframe,  telemedicine has revolutionized medical care in remote locations, using videoconferencing technologies to diagnose, deliver treatment and even perform complex surgeries. Even our family courts have been considering Skype’s place in parental custody and access applications since at least 2006.

Our clients are already on Skype, connecting regularly with friends and family worldwide. It makes good sense, therefore, that they are increasingly ready to meet virtually with their lawyers and other professionals, using a technology that is already familiar to them, from the comfort of their own surroundings.

Skype, and videoconferencing generally, is truly is the “next best thing to being there.” While it doesn’t replace direct human interaction, it comes close – much closer than the phone call does or can, I’d suggest. Adding to the convenience, free mobile versions of Skype allow lawyers and clients alike to connect with smartphones from anywhere.

Ultimately, it’s hard not to foresee the videoconference eventually replacing the typical office visit with most clients on an increasingly frequent basis.  The opportunity to avoid parking costs, traffic snarls, scheduling difficulties and wait times might ultimately become too attractive an option for our marketplace to turn down.

So here is today’s tip:  Offer your clients the option of video meetings with you via Skype. They are probably already using this technology, and may jump at the opportunity to meet virtually with you, too.

(Cross-posted at SlawTips)
-Garry J. Wise, Wise Law Office

Monday, February 02, 2015

140 Law - Legal Headlines for the week of January 26, 2015

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