Technology Reaching Into The Courtroom

The New York Times recently featured an investigation of how technology -- especially online searches -- is shaping jury selection.

One striking part of the article is how reticent attorneys and jury consultants were to even speak to Reuters Legal on the subject.

"Ten law firms and five jury consultants declined requests from Reuters Legal to observe them building juror profiles, many saying they weren't sure judges would approve."

"Lawyers don't know the rules yet," said John Nadolenco, a partner at Mayer Brown in Los Angeles. "It's like the Wild West."

But while few are talking about it on the record, it's clear that this is a topic begging for official guidelines.

"Jurors are like icebergs -- only 10 percent of them is what you see in court," said Dallas-based jury consultant Jason Bloom. "But you go online and sometimes you can see the rest of the juror iceberg that's below the water line."

While most agree there is a lack of hard and fast rules as of now, one firm did provide access.

Alabam's Wooten Law Firm allowed Reuters Legal access as their paralegal "scanned Facebook, MySpace and Twitter, and used Google searches to find jurors' names on the websites of government agencies, school boards, local companies, and sites that contain property records. Links to each site were assembled in a spreadsheet."

In terms of precedent, a New Jersey Superior Court judge did bar counsel from googling potential jurors in the courtroom because the opposing counsel had not brought laptops to court, ruling that use of the internet provided "an inherent advantage regarding the jury selection process."

However, appellate judges held that the trial judge had improperly prohibited the online research, writing that the "playing field was, in fact, already level, because Internet access was open to both counsel -- even if only one of them chose to utilize it."

As the article summarizes, "the federal courts so far have not addressed the issue of online vetting of jurors, and just two states, Missouri and New Jersey, have said it's acceptable in some forms. But judges and lawyers, even in those states, still seem to be grappling with the practice."

Payment of Attorney’s Fees to Putative Trustee from the Trust under Texas Law

Question : Can a trustee, whose standing as trustee is being challenged by a beneficiary of the trust, use trust assets and income of that trust to pay for its defense of that suit? 
Short Answer: When the suit is to defend the trust property and a trustee acts reasonably and in good faith, the trustee may get reimbursement for the litigation expenses from the trust assets.  However, when defense of the suit does not benefit trust property, such as expenses related to litigation resulting from the fault of a trustee, the trustee cannot get reimbursement for the litigation expenses from the trust assets.
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Additional 2011 Projections

Last week we looked at legal market projections from Hildebrandt Baker Robbins in their 2011 Client Advisory.

That report also contains additional data compiled by the Citi Leaders Council Survey and Thomson Reuters.

The Citi Leaders survey comprised 48 large law firms and found:

• Respondents project using AFA's for 15.4% of their firms' revenues in 2011, up from 12.9% last year.

The Thomson Reuters survey polled the leaders of 78 large law firms last year as part of their Legal Executive Briefing and found:

• 96% of respondents indicated they expect increased use of AFAs during the next three years.

• 89% forecast increased use of pre-matter budgets.

• 71% expect increases in their use of teams to manage matters/projects.

• 61% percent expect increased use of contract lawyers.

• 55% expect increased use of non-lawyer project managers.

• 43% expect an increase in the outsourcing of routine legal activities.

These are significant expectations for evolving business models, and the Hildebrandt Client Advisory summarizes these projections with this:

"We fully expect that the experimentation with new service delivery models and new pricing strategies that we have seen over the past couple of years will continue and expand in 2011. Thus, we believe that firms will continue to focus on project management skills and other techniques for improving efficiency, including the outsourcing of legal and non-legal aspects of their work and the use of technology to automate workflows and to reduce the number of staff required."

Re-Thinking The Service Delivery Model

Professional services and firm management consultants Hildebrandt Baker Robbins released their 2011 Client Advisory for the legal market.

Their comprehensive surveys highlight perceived legal trends in 2010, as well as the trends they believe will impact the market this year. Their discussion of Management Challenges opens with two telling paragraphs:

"Much has been written over the past two years about the changing delivery model for legal services and the need for firms to re-think their underlying assumptions about work processes, pricing, infrastructure, and administrative support. While some of the bold predictions of revolutionary changes in the structure and work of firms have no doubt been overblown, there is no denying that the market is changing and that some firms are beginning to use the redesign of their service delivery models to good competitive advantage."

"As Mike Dillon, the General Counsel of Sun Microsystems has observed, “The reality is that we are in the early stages of a seismic shift in the traditional cost and delivery model for legal services. I see it every day in my interactions with the law firms that support us and in my discussions with peers at other companies.”

The report notes that while the billable hour is still considered the "normal" model, "there has clearly been a noticeable increase in the use of AFAs (alternative fee arrangements) and the evidence suggests that this trend will continue in coming years."

The Hildebrandt survey encompassed more than 200 companies, and looked at 2009 actual number along with expected 2010 numbers and found:

• 41 percent indicated they had used contractually fixed fees in 2009 for up to 10 percent of their outside legal work.

• 20 percent also reported they had used contingency fees for up to 10 percent of their outside legal work.

• 19 percent indicated they had used value or incentive billing.

• 8 percent stated they had used portfolio pricing (i.e. the use of fixed fees for a series of projects or cases or for projects occurring).

• 61 percent projected an increase in the use of contractually fixed fees in 2010.

• 55 percent projected increased use of value or incentive billing.

• 45 percent projected increased use of contingency fees.

• 36 percent projected increased use of portfolio pricing.

The Hildebrandt survey certainly seems to indicate that alternative models have moved beyond simply gaining traction; they seem now to be part of the permanent landscape.