Mentorship, Leadership, Validation and the Ad Hoc Firm

The vision of the ad hoc law firm can be compelling:  agile assemblages of just the right talent, just in time, to efficiently meet a clients needs.  In this running commentary on the prospects for the ad hoc law firm (or any industry, really), I'd like to touch briefly on three topics:

1.  Mentorship:  As Richard Susskind points out, one of the roles for the "large" law firm is essentially that of a teaching hospital--a place where junior lawyers with only academic experience are put through the paces and given real world training.  How does the need for this kind of training meet with the needs of the ad hoc firm?  It seems to me that it's a huge opportunity:  to the extent more seasoned lawyers are willing and skilled at mentorship, they can offer this as part (or all) of the compensation of junior lawyers on their teams--and also offer the prospect of developing relationships that will lead to employment in future ad hoc assemblages.  Especially in today's job market, law students are scrambling for choice unpaid internships, and increasingly licensed attorneys are doing the same.  Even senior attorneys might jump for the training opportunity of a high profile case (i.e. appeal to the US Supreme Court).  While at first the need for training, development and advancement may seem like a challenge to the ad hoc firm model, I think it should instead be seen as an opportunity--albeit not one that is currently embraced by the law school placement office or "accepted" career path expectations of most graduates.

2.  Leadership/Project Management:  Similarly, project management and leadership is a key part of ad hoc law firm operations.  Of course, this is very true of litigation or deals in monolithic firms as well, though it's often not recognized as such and very rarely trained or adequately staffed.  In the transactional world it's quite common to hear of "quarterbacking the deal," and litigation management is increasingly an appreciated talent, but these are usually afterthoughts when it comes to attorney training (both in law school and in professional development).  Should project management be outsourced to PM specialists?  Or attorneys with additional specialized training?  Where is the "break even" point when considering how much attention to pay to project management on small cases, or whether to have a PM specialist?  What about classical leadership training--something I've always valued most about my experience as a military officer where I was in charge of nearly 30 people at age 22.  Lawyers rarely have much experience as leaders, let alone any formal training in leadership, yet it is clearly an important skill in even moderately complex litigation, and will become even more important as the potential of the ad hoc law firm process is increasingly realized.

3.  Validation/Metrics:  Jonathan Soroko's insightful comment in my last entry highlights the importance of knowing what you're getting when putting together ad hoc talent.  In many cases we can do this based on past experience working with people--but that ignores the initial hurdle in setting up such an ad hoc system, as well as the ongoing inefficiency of evaluating potential new talent.  What kind of validation system or metric for performance, potential, and value should be used when assembling a team?  Some initial thoughts are the Ebay buyer/seller rating system, or some kind of review-based metric (one example, though certainly imperfect, is the AVVO lawyer rating system).  John Robb has also been posting very interesting thoughts on "meta currencies"--social networking valuation algorithms that can compute the value of input to the social network from all contributors--another potential.  While I'd prefer such systems to be transparent, I can also envision the potential market for proprietary rating systems--possibly even that facilitate the assemblage of an ad hoc firm, and/or stand behind the performance of their members based on their ratings...

The Nature of the (Law) Firm

John Robb has a thought provoking comment on Ronald Coase's classic paper The Nature of the Firm.  Robb points out:

Coase asked the question:  if markets are extremely efficient (as maintained by many), why isn't everything built/done using contract labor?  

The reason he found is that when trying to get something complex done, market prices don't capture many of the costs involved.  

For example:  It costs money/time to find the right people, to negotiate for their labor, to find/acquire the right investors, to establish the right processes, to set up the organizational control systems, etc  In short, because it's expensive to do this, entrepreneurs typically create a company so that they only have to go through this process once.

Is this still true today?

Robb thinks this no longer necessarily holds true today, thanks to largely online, open-source markets that can dramatically increase the efficiency of building what I've been calling "ad hoc firms."

This trend and potential also applies to law firms.  Traditionally--and lawyers generally not known for their innovation in terms of their own business structures--law firms are classical "firms" precisely for the reasons highlighted by Coase:  there is substantial cost involved in assembling the right team to optimally serve a client.  That inefficiency, however, is melting away for those prepared to capitalize on the potential of new marketplace formats for labor and services.

Just as Coase pointed out, if there were no costs involved in assembling the right team, then all legal services would be delivered by tailored and just-in-time assemblages, or "ad hoc firms."  In fact, if there were no costs involved in creating such assemblages, it's quite clear that ad hoc firms could deliver superior knowledge, talent, service and value than traditional firm models.  I'm not sure whether we've already crossed the threshold where the value derived outweighs the cost of the ad hoc firm model, the obvious desire of traditional firms to keep their heads firmly planted in the sand notwithstanding.  What I am confident in is that we're rapidly moving in that direction, and that both legal service providers and consumers need to position themselves for the day when that line is undeniably crossed.  And, because of the widespread reticence to even acknowledge this dynamic let alone do something about it, there is tremendous potential for those individuals positioning themselves for that future today.

Motions to Dismiss

This post is part of my Colorado litigation checklist approach to litigation knowledge management and litigation strategy. It is an overview of filing motions to dismiss in Colorado and Federal courts--where the governing rules and procedures are similar, these checklists will focus on motions in Colorado state court and will not significant differences for filings in Federal court.  As each of the following checklists are completed, I will link to them from the text below.
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C.R.C.P. 12(b) provides the legal basis for motions to dismiss.  A motion to dismiss may be filed for several reasons, and against several types of claims--each with their own checklist below.
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Motion to Dismiss Checklists
- Rule 12(b)(1) - Motion to Dismiss for Lack of Subject Matter Jurisdiction
- Rule 12(b)(2) - Motion to Dismiss for Lack of Personal Jurisdiction
- Rule 12(b)(3) & (4) - Motion to Dismiss due to Insufficiency of Process or Insufficiency of Service
- Rule 12(b)(5) - Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted
- Rule 12(b)(6) - Motion to Dismiss for Failure to Join a Party Under Rule 19
- Special Considerations:  Motion to Dismiss Counterclaim or Crossclaim
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Other Related Motions:
- Rule 12(e) Motion for More Definite Statement
- Rule 12(f) Motion to Strike
- Motion for Judgment on the Pleadings

Best Practices

- In Colorado, if a motion to dismiss is granted that dismisses the entirety of an action brought by one party containing claims in tort, then an award of attorneys' fees is mandatory pursuant to C.R.S. § 13-17-201.  An award of attorneys fees is mandatory whenever all claims by one part against another are dismissed, even if other claims remain unresolved.  See Stauffer v. Stegemann, 165 P.3d 719 (Colo. App. 2006).
- Always consider the value of dismissing certain claims--for example, even if a complaint's lone tort claim is vulnerable to a motion to dismiss, is it more valuable to keep the claim alive for purposes of insurance coverage issues?
- In responding to a Motion to Dismiss, consider whether it is wiser to voluntarily dismiss the claims without prejudice to avoid a mandatory award of attorneys fees, fix the deficiencies in the complaint highlighted by the motion to dismiss, and refile.  Always consider statute of limitation issues and other potential bars to re-filing.
- While most courts will write their own order addressing a motion to dismiss, it is still wise to file a simple and direct proposed order with the motion (or response in opposition).
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Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit www.vail-law.com for more information.

This post is part of my Colorado litigation checklist approach to litigation knowledge management and litigation strategy.

The Future of the Legal Industry?

Jordan Furlong has an excellent take of the future of the legal industry in his latest post, The Law Firm of the Future:  Thompson Reuters.  I think his analysis will prove prescient for large and mid-size law firms over the coming decade.  Big firms that aren't on top of this trend (or small firms that try to emulate their business model) are in the process of pricing themselves out of the market.

More importantly, though, firms of ALL sizes simply can't ignore concepts like open-source development, flat networks, geoarbitrage, and process automation any longer.  In my mind, one of the most interesting and promising areas for change in the legal profession (and economy in general) will be the rise of ad hoc, networked providers of legal services--I won't call them "firms" because they meet neither the legal ethics nor classical economic of such.  In fact (perhaps this shows where my mind is, as I'm about to file a complaint along these lines), the most analogous legal structure is probably the RICO "enterprise-in-fact"--but I digress.

I've long found this area of thought fascinating.  Many people who know about the full range of my personal interests have often wondered how my interest in organizational theory, self-sufficiency, networked economies, consciousness/emergence theory, etc. will come together into my legal practice.  Here's my answer (which may also provide more insight into why I chose to start a solo litigation practice):  we have reached a bifurcation point in the legal profession, with one path diverging to large corporate structures--much like in modern accounting--that will "optimize" the human element (i.e. pay as little as possible for as much work as possible where labor is cheapest), and the other path diverging to well-connected individuals who can leverage personal attention, innovation, and access to the large legal/LPO/professional services corporations of the other path to deliver exceptional service to clients.  This second path is where I think humans (as opposed to stock markets) will find personal and professional fulfillment.  This second path is also far more adaptable to the rapidly changing and multifaceted end needs of the legal consumer.

This, I believe, will define the structure of the legal industry in the coming few decades:  agile, networked professionals--individuals capable of assembling into ad hoc firms, rather than firms composed of individuals--will leverage access to more rigid and powerful LPO structures to provide millions of tailored legal solutions to clients.  Contrast this with present-day "firms" that will gradually fade, some begin absorbed into the large, corporate LPO-structures (with commensurate decline in the fulfillment of their component individual attorneys), and others that will voluntarily dissolve into networks nimble enough to prosper.

What path will your firm/career take?  Or, if you're a client of legal services (and everyone is, they just often don't realize how important their consumption of legal services in one form or another is to their lives),  how much longer will you put up with the bloated, inefficient, and overpriced services offered by traditional firm structures?

Litigation Strategies & Tactics Brainstorming Resource

One of the greatest failures of most litigators is the failure to infuse strategic and tactical thinking into every aspect of practice.  In part, this is a business model failure, where billing methodologies (hourly), high overhead and resulting schedule burdens lead to reactive, flat footed litigation.  Removing this structural barrier to strategically and tactically sharp litigation was one of my key motivations when building The Law Office of Jeff Vail LLC. However, one can't simply remove the barriers to strategic and tactical innovation and expect brilliance to suddenly emerge!  Instead, strategic and tactical thinking must be consciously infused into all aspects of a litigation practice.  One of the most effective methods for doing this that I've found is--surprise--a "checklist" of sorts.  More accurately, a brainstorming list--a set of ideas and concepts to spark brainstorming at the critical inflection points in any given litigation (e.g. developing a strategic plan, drafting a complaint, or preparing for a deposition or trial).  I've published the beginnings of just such a brainstorming list for litigation strategy and tactics.  Over the next several months, I plan to link each of these concepts to a brief article describing the concept and illustrating its application in the context of litigation.

Injunctive Relief (Litigation Checklist)

This post on filing for Injunctive Relief is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.  This checklist specifically addresses filing for an injunction in a civil matter, and does not address domestic or criminal restraining orders.  In Colorado, there are three stages of seeking an inunction:  the Temporary Restraining Order (TRO), the Preliminary Injunction, and the Permanent Injunction.  While in virtually all cases the party seeking an injunction will ultimately want a permanent injunction to be entered by the court, the first step is to file a complaint for injunctive relief along with a motion for a temporary restraining order.  The effect of the TRO is to maintain the status quo (or, rarely, alter the status quo) to prevent irreparable harm until a hearing for a preliminary injunction and, ultimately, a hearing for a permanent injunction can be held.
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Checklist:
- File a Verified Complaint for Declaratory Judgment and for a Temporary Restraining Order ad Injunction.
- File a Motion for Temporary Restraining Order and Preliminary Injunction and Proposed Order.
- File a Brief in Support of Temporary Restraining Order and Preliminary Injunction.
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Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit www.vail-law.com for more information.
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This post on filing for injunctive relief is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.

Brief in Support of Temporary Restraining Order

This post on drafting a Brief or Memorandum in Support of a Motion for a Temporary Restraining Order (TRO) and Preliminary Injunction is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.  This checklist is part of my series on Injunctive Relief.
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Checklist:
- Provide a brief introduction to the facts that require injunctive relief.
- Set forth an argument that each of the requirements for injunctive relief is met:
 -- Plaintiff is likely to succeed on the merits of the claim;
 -- Plaintiff will suffer irreparable injury if the temporary restraining order and preliminary injunction are not issued;
 -- Plaintiff has no plain, speedy and adequate remedy at law;
 -- The public interest will be served by issuance of the temporary restraining order and preliminary injunction;
 -- The equities favor issuance of a temporary restraining order and preliminary injunction;
 -- Issuance of a temporary restraining order and preliminary injunction will preserve the status quo pending a trial on the merits.
- Address the amount of the bond that must be posted pursuant to C.R.C.P. 65(c).
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Thoughts & Best Practices
- TROs and Preliminary Injunctions normally issue to preserve the status quo.  If you are requesting the court order affirmative action on the part of the defendant, or enter an injunction that will alter the status quo (both are "mandatory injunctions"), it will be an uphill battle.  Mandatory injunctions are rarely entered because, if the harm is truly irreparable, then it's too late because it's already happened, and where it can be partially remedied courts tend to prefer money damages.  One of the few areas where mandatory injunctions are routinely entered is to remove a continuing trespass--for example, to remove an obstruction wrongly placed on plaintiff's property.  See, e.g., Hunter v. Mansell, 09CA0799 (Colo. App. Mar. 4, 2010).
- The proposed bond amount should be reasonable under the circumstances, as this will greatly increase the chance the TRO is entered.  However, in cases where there is truly no risk of damage to the defendant in the event a permanent injunction is denied, a minimal bond amount of $100 may be reasonably requested.
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Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit www.vail-law.com for more information.
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This post on filing a Brief in Support of a Motion for Temporary Restraining Order (TRO) and Preliminary Injunction is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.

Motion for Temporary Restraining Order

This post on filing a Motion for Temporary Restraining Order (TRO) and Preliminary Injunction is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.  This checklist is part of my series on Injunctive Relief.
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Checklist:
- The Motion for a TRO is very brief, and should primarily reference the Verified Complaint for Declaratory Judgment and the Memorandum of Law in Support of Temporary Restraining Order and Preliminary Injunction.
- The Motion itself should also state that the motion is made pursuant to C.R.C.P. 65.
- Attach a proposed order stating the exact nature of the TRO requested.
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Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit www.vail-law.com for more information.
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This post on filing a Motion for Temporary Restraining Order (TRO) and Preliminary Injunction is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.

Complaint for Declaratory Judgment (Litigation Checklist)

This post on filing a Verified Complaint for Declaratory Judgment and Temporary Restraining Order is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.  This checklist is part of my series on Injunctive Relief, which also includes checklists on filing a Motion for Temporary Restraining Order and Preliminary Injunction and filing a Brief in Support of Temporary Restraining Order and Preliminary Injunction.
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Checklist:
- A Verified Complaint is required, which simply means that you must attach a notarized verification (signature page) from the client/plaintiff stating that the facts set forth in the Verified Complaint are true to the best of  the plaintiff's knowledge, information, and belief.
- Set forth the parties and that jurisdiction and venue requirements are met as you would in a legal complaint.
- Set forth factual background required to support legal and equitable causes of action.
- Set forth legal causes of action, if any.
- For each equitable cause of action, set forth:
 -- Factual allegations supporting the "wrong" that grounds the requested injunction.
 -- State that continuation of these actions will result in real, immediate, and irreparable injuries.
 -- State that there is no plain, speedy and adequate remedy available at law, and where applicable state briefly why this is the case.
 -- State that the requested injunctive relief to stop these wrongs will serve the public interest, and state why this is the case.
 -- State that the balance of the equities favors the issuance of a Temporary Restraining Order and Preliminary Injunction to allow the parties and the court to determine the merits of the case.
 -- Where true, state that a Temporary Restraining Order and Preliminary Injunction will preserve the status quo pending a determination of the merits of the Complaint.
- In the requested relief, along with other requests, ask for a Temporary Restraining Order and Preliminary Injunction, and state precisely what actions should be enjoined.
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Thoughts & Best Practices:
- Injunctions normally issue to preserve the status quo.  If you are requesting the court order affirmative action on the part of the defendant, or enter an injunction that will alter the status quo (both are "mandatory injunctions"), it will be an uphill battle.  Mandatory injunctions are rarely entered because, if the harm is truly irreparable, then it's too late because it's already happened, and where it can be partially remedied courts tend to prefer money damages.  One of the few areas where mandatory injunctions are routinely entered is to remove a continuing trespass--for example, to remove an obstruction wrongly placed on plaintiff's property.  See, e.g., Hunter v. Mansell, 09CA0799 (Colo. App. Mar. 4, 2010).
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Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit www.vail-law.com for more information.
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This post on filing a Verified Complaint for Declaratory Judgment is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.

Filing Suit Under Fictitious Name

This post on filing suit under a fictitious name is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.  In Colorado, it is possible though difficult to sue anonymously by filing suit under a pseudonym such as "John Doe" or "Jane Roe."  If such precautions are necessary under the unique circumstances of your case, consider the following.  Updated 9/5/2010:
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Checklist:
- Ensure that you seek leave of the court to file anonymously.  This is the one clear requirement in Colorado from John Doe v. Heitler, 26 P.3d 539, 540 (Colo. App. 2001). 
- There is no defined procedure in Colorado for seeking leave of the court to file a lawsuit anonymously, so it is best to contact the Clerk of the applicable court prior to filing to see if the court has a preference.
- Option include:  
 -- simply filing anonymously and waiting for a court order or status conference to inform you of the correct procedure (NOT recommended, and seems to violate Doe . Heitler);
 -- file complaint under plaintiff's true name, and simultaneously file a protective order to seal the complaint and court record;
 -- file the complaint under a pseudonym and simultaneously file a motion for leave to file under the pseudonym as well as a letter filed under seal that sets forth plaintiff's true name and address and that he/she is a real person.  This is my preferred option;
 -- finally, the grounds for filing anonymously may be set forth in the attached letter, rather than in the motion seeking leave to file anonymously.  I think this is problematic because, in the event of an appeal of a grant or denial of the motion to proceed anonymously, the legal arguments are better separated from the plaintiff's true name and address.
- Traditionally the anonymous names are "Jane Roe" or "Jane Doe" for a female plaintiff, "John Doe" for a male plaintiff, and the use of colors (e.g. "Green Company") for legal entities, though it may be especially difficult to demonstrate the need for a company to file anonymously.
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Thoughts & Best Practices:
- If the court does not find compelling reason to permit the plaintiff to file under a pseudonym, the complaint is usually dismissed with leave to file a new complaint under plaintiff's real name.  John Doe v. Heitler case, 26 P.3d at 545-46.  While Heitler is not crystal clear, it does appear that if you do not seek permission to file under a pseudonym, then dismissal may be with prejudice.
- A plaintiff seeking to proceed anonymously must show that he or she has a substantial privacy right that outweighs the customary and constitutionally-embedded presumption of openness in judicial proceedings:
 -- Factors that are presumptively sufficient include where refusal to proceed under fictitious name would reveal (1) use of birth control; (2) illegitimacy; (3) abortion; (4) transsexuality/homosexuality; (5) mental illness; (6) AIDS; (7) rape; (8) certain issues of religion; (9) and especially where one of the above is combined with the plaintiff being a minor.
 -- However, avoidance of embarrassment or stigma is insufficient privacy interest.  Doe v. Frank, 951 F.2d 320, 324 (11th Cir. 1992).
 -- Use of fictitious name may also be permissible to prevent harassment, retaliation, or harm.  See, e.g., Doe v. Stegal, 653 F.2d 180, 186 (5th Cir. 1981); Does v. Advanced Textile Corp., 214 F.3d 1058, 1069 (9th Cir. 2000).
 -- While minor harm is not sufficient to warrant filing under a pseudonym, SMU Ass'n Women Law Students v. Wynne & Jaffe, 599 F.2d 707, 713 (5th Cir. 1979), the threat of harm can be economic and not physical, Does v. Advanced Textile Corp., 214 F. 3d at 1069-71.
 -- Seeking injunctive relief, as opposed to purely legal causes of action, weighs in favor of proceeding anonymously.   John Doe v. Heitler, 26 P.3d at 546.
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Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit www.vail-law.com for more information.
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This post on filing suit under a fictitious name is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.

Litigation Hold Letter (Litigation Checklist)

This litigation hold letter checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.  Updated 8/25/10.
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Checklist:
- State that litigation is underway (and cite case caption) or that litigation is now anticipated (state matter/claims expected).
- Explain duty to preserve information (see example letter, below).
- Recommend that client agree on one person who will take the lead in preserving all information potentially relevant to this matter.
- Perform sufficient investigation into client's filing and document systems and the likely scope and topics for discovery in the case so as to be able to effectively advise on scope of litigation hold.
- Recommend contact former employees to ensure that they understand the importance of preserving all potentially relevant evidence.
- Develop strategy for preserving electronically stored information, including consulting an IT specialist if necessary.
- List electronically stored information that client must preserve (see example letter, below).
- Recommend that, where reasonable and possible, recently deleted information should be recovered.  Stone v. Lockheed Martin Corp., 2009 U.S. Dist. LEXIS 12105, 2009 WL 267688 (D. Colo. Feb. 2, 2009).
- Review document retention policies and suspend any automatic destruction or recycling policies for paper or digital files, digital back-up tapes, optical diskettes, or other storage media.
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Thoughts & Best Practices:
- Discuss the general issue of a litigation hold at the earliest possible date, and issue the letter as soon as litigation becomes "reasonably clear."  In a recent (January, 2010) order in Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC by Judge Shira Sheindlin, a highly influential jurist in the field of e-discovery, a party was sanctioned for failure preserve electronic backup tapes after litigation was "reasonably clear," 10 months before a lawsuit was filed, even absent any finding of bad faith.
- Cross-reference the factual investigation plan and discovery plan when planning a litigation hold.
- While this checklist is intended for use in drafting a litigation hold letter to send to one's own client, it is also often appropriate to draft and send a litigation hold letter to the opposing party (this was the case in Stone v. Lockheed Martin, above).  Sending a litigation hold letter to the opposing party may be helpful in the event you later seek sanctions for discovery violations or spoliation.  While the tone and mechanics may be different, the content will be largely the same as listed above.
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Example Litigation Hold Letter:
- Sample Litigation Hold Letter
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Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit www.vail-law.com for more information.
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This litigation hold checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.

Rule 54(b) Certification & Opposition (Litigation Checklist)

This post is part of my Colorado litigation checklist approach to litigation knowledge management and litigation strategy. It is intended for use with motions requesting Rule 54(b) certification that a judgment is final for purposes of interlocutory appeal, as well as opposition to such motions.  Updated 8/18/10.
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C.R.C.P. 54(b) permits courts to direct the entry of a final judgment “as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.” It is identical to the federal rule, and federal case law on this point is considered persuasive in Colorado. State ex rel. Salazar v. Gen. Steel Domestic Sales, LLC, 129 P.3d 1047, 1049 (Colo. App. 2005).
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Checklist
-Three step process in Colorado (see Harding Glass Co. v. Jones, 640 P.2d 1123, 1125 (Colo. 1982)):
-- Is ruling to be certified a ruling upon an entire ‘claim for relief’?
-- Is decision a final disposition of an individual claim?
-- Is there any “just reason for delay?” This issue is within sound discretion of trial court. Tans Cent. Airlines v. McBreen & Assocs., 497 P.2d 1033, 1034 (Colo. App. 1972).
- Are there other actual or potential justiciability concerns if interlocutory appeal proceeds?
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Best Practices
- Purpose of rule is to preserve judicial resources, Harding, 640 P.2d at 1125, and to discourage piecemeal review of a case, Hamm v. Twin Lakes Reservoir & Canal Co., 373 P.2d 525, 526 (Colo. 1962). Ensure any motion or opposition frames the issue in these contexts.
- Always consider whether remaining claims could in any way create justiciability or res judicata issues. “Certification generally is inappropriate when further proceedings might moot the issues involved.” Fox v. Baltimore City Police Dept., 201 F.3d 526, 531 (4th Cir. 2000).
- Consider whether opposition is suitable for recycling as a motion to the Court of Appeals to stay the appeal pending resolution of the remaining claims.
- If opposing a Rule 54(b) motion, consider using the opportunity to request, in the event certification is granted, a supersedeas bond for potential award of attorneys' fees on appeal. C.R.S. Section 13-17-201, for example, provides for mandatory award of attorneys' fees where dismissal under C.R.C.P. 12(b) is affirmed on appeal. Ferrel v. Colo. Dept. of Corr., 179 P.3d 178, 189 (Colo. App. 2007).
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Sample Motion:
- Sample Motion Opposing Rule 54(b) Certification
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Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit www.vail-law.com for more information.

This post is part of my Colorado litigation checklist approach to litigation knowledge management and litigation strategy.

Law 2.0 Roundtable

Last Friday I was invited to participate in the "Law 2.0" roundtable held by CU Law School and the Silicon Flatirons center for law and entrepreneurship.  25 or so attorneys from around the country (though mostly from Colorado) participated.  Primarily we discussed the framework for thinking about the move toward "Law 2.0" (loosely framed around Richard Susskind's list of disruptive technologies for law practices).  A few take-aways:
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- Process automation is the current focus of big firms and vendors, and there seems to be a fair amount of progress being made here, especially in easily commoditized fields like non-disclosure agreements (where CISCO's associate general counsel discussed their industry-leading solution), start-up financing documents, etc.  Other than a comment from Qwest's general counsel that this should be equally applicable to motions practice in litigation (which I wholeheartedly seconded--my blog is my effort at exactly this project), the focus was largely on transactional automation.
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- There was general agreement with my proposal that, while process-automation may drive down the cost of legal services, it will also permit "bespoke" services to spread to a wider market that can't currently afford such service.  This is one of the focuses of my practice--delivering high-end, bespoke litigation services to individuals and small/medium-sized businesses that would otherwise need to write off their claims or pay for only a limited defense/prosecution of claims.
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- One suggestion I made that did not gain much traction was the notion of the potential for fusion between open-source systems and knowledge management and the potential for ad hoc "firm" structures.  Most participants were skeptical about the ability to capture the "knowledge and know-how" of a practice into an open-source repository.  Unfortunately this wasn't the forum for me to demonstrate the approach to open-source knowledge management that I'm developing on this blog.  It also seemed to be outside the grasp of mostly large-firm attorneys and large corporation in-house counsel that a dynamic, ad hoc team of individual attorneys brought together to meet the specific needs of a case or client could function effectively.  In my view, this is a necessary component of any large-scale switch to open-source systems in the law because until the large firm structure becomes irrelevant there will still be incentives to develop and protect knowledge management solutions.  If attorneys group together as needed on a more ad hoc basis, then the incentive will switch toward participation in open-source systems.  Again, only Qwest's general counsel seemed to pick up on the potential value of this idea--in fact, he said this is already how Qwest handles much of its litigation.
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All together, the Silicon Flatirons project put together an excellent roundtable, and I hope I'll have the chance to participate in future events.

Privilege Log (Litigation Checklist)

This privilege log checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.  When withholding relevant documents under claims of attorney-client privilege or attorney work product, production of a privilege log documenting the withheld documents is required.
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Checklist:
- Produce a log providing sufficient details for each item withheld to substantiate the claim of privilege or work product.
- Ensure that the description of each document fully sets forth the basis for the claim of privilege or work product. For example, that an email between two non attorneys withheld as privileged explains that Employee A is relaying legal advice from and at the request of Attorney B to Employee C.
- See sample privilege log, below, for format and information to be included.
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Thoughts & Best Practices:
- While there is no express timing requirement for producgtion of privilege logs, they should generally be produced with or shortly after initial production pursuant to Rule 26(a)(1) or when responding to discovery requests.  A privilege log production schedule is appropriate for negotiation and inclusion in the Case Management Order.
- In Colorado state courts, C.R.C.P. 26(b)(5) requires only that the withholding party "describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privielged or protected, will enable other parties to assess the applicability of the privilege or protection."  What minimal case law interprets this rule provides no additional insights.  See, e.g., Cardenas v. Jerath, 180 P.3d 415, 418 (Colo. 2008).  However, federal case law (below) may be persuasive.
- In Federal Court (D. Colo.), F.R.C.P. states that a the withholding party must "describe the nature of the documents, communications, or tangigle things not produced or disclosed--and do so in a manner that, without revealing information itself privileged or protected, will enable the other parties to assess the claim."  F.R.C.P. 26(b)(5)(A)(ii).  At a minimum, this means "the author or origin of the document; any documents or materials attached to the document; all recipients of the document, including addressees and persons or entities receiving copies; the date of origin of the document; and a description on the contents of the document in sufficient detail as to reveal why it is subject to the asserted privilege."  Wildearth Guardians v. U.S. Forest Service, --- F. Supp. 2d ----, at *16 2010 WL 1413112 (D. Colo. April 1, 2010).  The party withholding documents has the burden of providing sufficient information in its privilege log to establish the privilege, or risks waiver.  Id.
- It can be particularly tricky to correctly deal with email chains where multiple parties are "to:" and "cc:", and there are several replies including different addressee lists.  A good rule of thumb is that each message should be identified and the claim of privilege or work product described as a separate document so that claims can be properly evaluated as to each segment of the email.  It may be adviseable to break down "to:", "cc:" and "bcc:" recipients if necessary to show that an attorney was a primary recipient of a communication, rather than merely copied on the email.  See U.S. Postal Serv. v. Phelps Dodge Refining Corp., 852 F. Supp. 156, 163-64 (E.D.N.Y. 1994) ("A corporation cannot be permitted to insulate its files from discovery simply by sending a 'cc' to in-house counsel").
- When listing the authors or recipients of documents or communications, it is best to identify (ideally in a legend) who they are, who they work for, and if they are an attorney (or work for an attorney).
- Consider whether it may be appropriate, especially where documents are non-damaging and there is a dispute as to the claim of privilege or work product, to produce the documents pursuant to a non-waiver agreement.
- See Motion for In Camera Examination or Review Checklist for information about disputes regarding privilege logs.
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Example Forms:
- Click Here for Sample Privilege Log (Locked)
- Click Here for Publicly Editable Privilege Log (Please feel free to make improvements to this form, and comment below to describe what changes were made)
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Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit www.vail-law.com for more information.
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This privilege log checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.

Affidavit or Declaration Checklist (Litigation Checklist)

This affidavit or declaration checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.  An affidavit or declaration is simply a written and sworn statement and has various uses in litigation including support of a motion, response, verified complaint, etc.
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Checklist:
- State the name of the affiant, being duly sworn and over the age of 21 (if true), states as follows based on personal knowledge:
- State facts or opinions in numbered paragraphs.
- Provide a signature block for the affiant and notary (see sample affidavit, below)
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Thoughts & Best Practices:
- While affidavits normally state only facts and information personally known to the affiant, there may be exceptions where either hearsay exceptions or exclusions apply, or where the rules of evidence do not apply (such as in some arbitration or mediation, etc.).  Consider what the applicable evidentiary standard is, if any, and ensure that the affidavit sets forth the required foundation.
- Ensure that statements made in affidavit are not contradicted by previous sworn testimony in depositions or hearings, or by other documentary evidence.  While an affidavit that contradicts earlier testimony may be permissible, consider the potential for exploitation on cross-examination, etc.
- Consider how the opposing party could use the statements in the affidavit to their advantage in future motions, depositions, cross-examination, etc.  Can the affidavit be rephrased?  If not, does the benefit outweigh the risk?
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Example Forms:
- Click Here for Sample Affidavit (Locked)
- Click Here for Publicly Editable Affidavit (Please feel free to make improvements to this form, and comment below to describe what changes were made)
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Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit www.vail-law.com for more information.
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This affidavit or declaration checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.

Tolling Agreement (Litigation Checklist)

This tolling agreement checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.  A tolling agreement is often used when the parties to a dispute are nearing the running of the statutory limitations period and want time to continue negotiations rather than force the filing of a lawsuit.
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Checklist:
- Identify all applicable statutes of limitation related to all applicable claims, and ensure the tolling agreement is fully executed before any limitation period runs.
- Set forth recitals as you would in a settlement agreement or other contract, focusing on the identity of the parties, the nature of their dispute, and the mutual promises that serve as consideration.
- Set forth:
 -- Term of the agreement, including method(s) for early termination, if any.
 -- State that the statute of limitations will not run during term, and that no legal or other enforcement action will be taken during the term of the agreement
 -- State that the agreement does not constitute an admission by either party
 -- Include standard contract clauses: execution in counterparts clause, a choice of law clause, and a merger and no oral modifications clause (see sample tolling agreement, below, for language).
- Execute the agreement, and retain fully executed copy for records (it is not necessary to file or record the agreement)
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Thoughts & Best Practices:
- Ask:  what is the purpose of the tolling agreement--is it just to delay needing to think about the case, or is there a specific objective in mind?  Consider shaping the settlement environment through the term and early termination provisions by, for example, terminating the agreement at a certain earlier date if the parties have not completed mediation with a mutually agreeable mediator by that date, etc.
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Example Forms:
- Click Here for Sample Tolling Agreement (Locked)
- Click Here for Publicly Editable Tolling Agreement (Please feel free to make improvements to this form, and comment below to describe what changes were made)
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Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit www.vail-law.com for more information.
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This tolling agreement checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.

Trial Management Order (Litigation Checklist)

This trial management order (TMO) checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.  This checklist addresses the Colorado-specific Trial Management Order requirements of C.R.C.P. 16, which diverge somewhat from the Federal Rules.
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Checklist:
- Responsible attorney must file TMO no later than 30 days before trial.
- Order must be signed by lead attorney for each party and include a place for the court's approval.
- Parties must work to agree on as many elements of the TMO as possible, and should designate elements on which they cannot reach agreement as "disputed."
- The TMO should contain the following sections (See example TMO, below, for sample language):
 -- A "Statement of Claims and Defenses" by each party.
 -- A section setting forth "Stipulated Facts."
 -- A list of any "Pretrial Motions" still pending before the court.
 -- A statement regarding "Trial Briefs," including whether they will be filed and the filing schedule.
 -- An "Itemization of Damages or Other Relief Sought," including a computation of any economic damages, set forth by every claiming party.
 -- "Identification of Witnesses and Exhibits--Juror Notebooks," including:
  --- Witness List: attached to TMO, list as "may call" or "will call," and whether accepting or objecting to experts
  --- Exhibits: attach list, using numbers for plaintiff and letters for defendant, as well as notation if opposing party objects to authenticity, and if the opposing party stipulates to the authenticity.
  --- Juror Notebooks: proposal for items to be included.
  --- Deposition and other preserved testimony: see checklist on designation and objection to preserved testimony.
 -- A section addressing "Trial Efficiencies and Other Matters," which is an opening for general discussions of trial efficiencies, but must include a statement that the parties have considered "ways in which the use of technology can simplify the case and make it more understandable."
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Thoughts & Best Practices:
- If there are any disputed sections of the TMO, consider filing a Notice to Set Trial Management Conference at the time of filing the TMO to resolve these issues as far in advance of trial as possible.
- Consider requesting a TMO conference to discuss subtleties and courtroom specific procedure, such as audio/visual set-up and preferences of the judge.
- Where preserved testimony will play a significant role, especially the playback of video depositions, consider highlighting to the judge the importance of rulings on objections to preserved testimony in time to prepare an admissible video clip for trial (and to avoid the challenges of editing/fast-forwarding/muting on the fly to account for rulings on objections while a videotaped deposition is playing).
- Depending on the motions practice to date and the parties intentions regarding filing trial briefs, the statement of claims and defenses in the TMO may be the first or best opportunity to set up your story for the judge.  Accordingly, it should not be merely a dry recitation of claims or defenses.
- Consider reaching an agreement as to sequestration of witnesses in the proposed TMO.  Additionally, where one party has more than one corporate representative, it is worth considering whether more than one representative (and potential witness) will be allowed at counsel table and exempt from sequestration.
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Example Forms:
- Click Here for Example Trial Management Order (Locked)
- Click Here for Publicly Editable Trial Management Order (Please feel free to make improvements to this form, and comment below to describe what changes were made)
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Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit www.vail-law.com for more information.
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This trial management order checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.

Case Management Order (Litigation Checklist)

This case management order checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.  Because case management, as governed by C.R.C.P. 16, is one of the few areas where the Colorado rules differ significantly from the Federal Rules of Civil Procedure, this checklist is only intended for use in Colorado state courts.  C.R.C.P. 16 provides for a presumptive case management order for most civil litigation, but Rule 16(c) permits parties to move for a modified case management order within 45 days of the at issue date, either individually where the parties do not agree on the appropriate modifications or by filing a motion for entry of a stipulated case management order.  The following checklist and list of best practices is intended for use when considering and moving for a modified case management order.
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Checklist:
- Must file for entry of a modified case management order within 45 days of the at issue date.
- Confer with opposing party prior to filing as required by C.R.C.P. 121 Section 1-15(8).
- File a [Stipulated or Unopposed] Motion for Entry of Modified Case Management Order, and attach the Proposed Modified Case Management Order as an exhibit to the motion.
- Rule 16 only requires that the modified order state the differences from the presumptive case management order, though it is common practice to set forth a complete case management order.
- For every point of divergence from the presumptive case management order, set forth "a specific showing of good cause for each modification sought including, where applicable, the grounds for good cause pursuant to C.R.C.P. 26(b)(2)."
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Thoughts & Best Practices:
- The provision for requesting a modified case management order is one of the most powerful tools available to the litigator to tailor procedure to the demands of a specific case, to control discovery costs, and to control the litigation schedule.  Parties seeking to limit discovery and control cost should keep in mind the provision of Rule 26(b)(2)(F)(iii) which states that the court, in considering a motion to depart from the presumptive discovery provisions, should consider "[w]hether the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues in the litigation, and the importance of the proposed discovery in resolving the issues."  In other words, it may be reasonable to move for limitation of discovery below the presumptive allowances for depositions, interrogatories, etc.
- Additionally, a modified case management order is an ideal tool to set forth a timetable for matters not covered by the presumptive case management order, such as the disclosure of a log of privileged documents, to set forth the requirements of such a log, to address disclosure of electronically stored information, and to set forth a timetable for the submission of a proposed protective order.
- Consider "outside the box" possibilities to expedite litigation and control costs, including a "sneak peek" of purportedly privileged or work product documents subject to a non-waiver agreement, etc.
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Example Forms:
- Click Here for Example Proposed Case Management Order (Locked)
- Click Here for Publicly Editable Proposed Case Management Order (Please feel free to make improvements to this form, and comment below to describe what changes were made)
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Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit www.vail-law.com for more information.
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This case management order (Colorado) checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.

Identifying Disruptive Technologies for Law Firms

A "disruptive technology" is an innovation that improves a product or service in a way that the market doesn't expect, and as a result challenges the assumptions upon which existing business models are based.  I've identified a number of disruptive technologies for law firms below.  The first two are widely discussed and may no longer be disruptive to the extent that they are generally known to the marketplace.  The next three are, in my opinion, far more disruptive and largely unrecognized.  When discussing disruptive technologies, most commentators focus on "nuts and bolts" technologies--mobile devices, software, etc.  In my mind, the most disruptive technologies in the legal world will be found in new and innovative organizational structures, business models, systems and platforms:

Automated Document Assembly & Commoditization:  This includes legal "expert systems" and easily commoditized legal work.  To the extent that this is a means of undercutting rates currently charged for routine and routinized legal work, it is really a low-cost technology, and as Dvorak points out, not accurately described as a disruptive technology.  However, to the extent that automation and expert systems change the way attorneys perform bespoke and sophisticated legal services in partnership with those systems, this may be truly disruptive to contemporary law firms.

Value Billing:  The notion of charging for legal services based on the value provided, rather than the time taken to perform the service (the ubiquitous "billable hour"), is also a disruptive technology.  From the client's perspective, paying for value provided makes far more sense than paying for an attorney's time.  Law firms, however, are largely structured around the billable hour, and are having a very challenging time adjusting.  To the extent that some firms develop ways to effectively implement value billing, clients will flock to those structures and the existing assumptions of most firms will be challenged.

Open-Source Knowledge Management:  This has my vote as the most potentially disruptive technology for law firms.  What lawyers do, at its core, is manage knowledge and implement systems for applying that knowledge to solve clients' problems.  I'm not talking about case law, statutes, and other knowledge accessible via legal research here--that is so voluminous that, while they may keep some tidbits in their heads, most lawyers have long ago realized that they had to rely on external archives of information.  Instead, what I'm talking about is the knowledge of how to apply the law, lists of best practices for doing so, and systems for applying those best practices.  Few, if any lawyers have conceded that they might need a system for this knowledge.  Instead, it is something that you're supposed to learn and remember.  But our memories are spotty, and even the most experienced lawyer doesn't have access to the depth and breadth of best practices available to the "crowd."  For that reason, the potential of open-source knowledge management and development of legal systems (checklists, indexes of best practices, etc.) has the potential to truly disrupt the way most lawyers and law firms do business today.  Additionally, while many firms tout the benefit of their institutional knowledge to clients, no firm can compete in breadth and depth with a cooperative, open-source knowledge management tool that connects solo and small firms across the country.  Because it has the potential to fundamentally change how attorneys practice, and because it has the potential to eliminate the single greatest selling feature of mid- to large-size firms, open source knowledge management is a disruptive technology to watch.

Ad Hoc Legal Teams:  Another disruptive technology, closely coupled in theory with open-source knowledge management, is the potential to use our more connected, more peer-to-peer networked society as a means of connecting attorneys as needed on the basis of geography, skill, and specialty to best serve clients.  While this already happens in some cases, it is a dramatic departure from the traditional firm business model that seeks to capture all the talent, specialities, and experience needed to serve clients within the borders of a single firm, at the exclusion of competing firms.  As with knowledge management, even the largest firm can't cobble together as highly specialized and tailored a legal team as can be assembled by picking and choosing the most appropriate attorneys and non-attorney specialists from around the nation (and world).  Because it has the potential to eliminate the advantage of firm size and multiple firm office locations, the potential to build ad hoc legal teams is another disruptive technology to watch.  It is not yet well understood or accepted by clients, but it seems to be only a matter of time before innovators figure out how to address the potential ethical and business issues and sell clients on its inherent advantages.

Access to Capital Markets:  Open-source knowledge management and ad hoc legal teams--the disruptive technologies listed above--act as vectors pointing toward a future of more decentralized (but networked), smaller-scale or individualized law practices.  One innovation, arguably a disruptive technology, however, points boldly in the opposite direction:  capital.  In the US, law firms are ethically prohibited from having non-lawyers as owners.  That means that law firms don't have access to capital markets (angel investors, VC, stock markets, bond markets) in the way that traditional companies do.  In the UK and elsewhere that is changing (there is already a publicly traded law firm in Australia), and **if** it were to change in the US, it could lead to a radical restructuring of law firms through consolidation and growth.  Large firms, backed by significant infusions of capital, are also far more likely to invest money in innovation, automation, expert systems, and knowledge management and then staunchly protect these assets as trade secrets and intellectual property.  I'm not aware of a serious push at the moment to allow law firms access to capital markets, but this must be considered as a potentially highly disruptive technology should it ever come to pass.

What are the most disruptive technologies for law firms that you see emerging in the next few years?