Computer Counselor - July/August 1998
Four Blunders That Lawyers Can Blame on Their Computers
Smart machines still need the attention of experienced lawyers
By Daryl Teshima
Daryl Teshima is the editor-in-chief of Legal Assistant Today and Law Office Computing, two bimonthly magazines published by James Publishing. He can be reached on the Internet at firstname.lastname@example.org.
With the advent of powerful computers and the Internet, attorneys can now make a mistake on a level of speed and magnitude far exceeding that of their previous nightmares. This fact does not make technology developments bad. Few attorneys would be willing to trade computers and peripherals for dictation machines, stenographic pools, and manual typewriters. However, technology advances have created new malpractice opportunities. With the press of a button, a mistake not only can be made in the blink of an eye but also can be sent anywhere in the world. Four such traps are e-mail, upgrading too soon, upgrading too late, and incomplete deletion. Thankfully for your malpractice carrier, most of these computing pitfalls are foreseeable and easily avoided.
E-mail is the most compelling (and some say the only) reason for bringing the Internet into a law firm. E-mail is a better delivery system than Federal Express. The cost of sending unlimited e-mail messages is usually less than $25 per month. E-mail messages can also contain such file attachments as client memorandums, drafts of appellate briefs, and scanned and signed agreements. Best of all, messages are sent in a matter of seconds, not days.
These benefits also make it easy to commit malpractice. Because e-mail messages take only a minute to compose and send, thought and care are often omitted from their composition. Unfortunately, e-mail messages can be as damaging as an ill-conceived letter or an emotional outburst made under oath. Even worse, you pass the point of no return as soon as you push the send button. An indiscreet message can haunt you for a lifetime.
Another common pitfall is not double-checking the recipient list. With many e-mail packages, users reply to an e-mail message with the press of a button. This makes it easy to overlook who the reply recipients are. If the original message was sent to a group, you could be replying to everyone who received the message and not just the sender. What you think is a private conversation with a colleague about strategy (and the negative aspects of your client, opposing counsel, and family members) can reach the entire legal team, your client, and even your opposition, with brisk efficiency.
This risk is multiplied if you participate in public e-mail lists or newsgroups. A public response or posting made to such groups reaches an audience that could consist of not only coworkers and opposing counsel but also the general public in a jurisdiction where you have no authority to practice or give advice.
E-mail messages can be intercepted as well as misdirected. Cybersnooping, however, requires technological expertise and patience. It is more likely that human error or malice will be the reason behind the disclosure of e-mail.
Always check the content and recipient list of any outgoing e-mail message, especially if it contains sensitive or confidential information. Another alternative is to configure your e-mail program not to send messages instantly. Instead, configure the program to place the messages in a queue or folder, allowing you (or another colleague) to review all electronic correspondence before it goes out. That message drafted in a fit of rage may not seem like such a good idea when viewed a few hours later. This procedure gives you a chance to look before you leap.
To keep e-mail from falling into the wrong hands, make sure that the reply button on your e-mail software automatically sends the message only to the sender and not to every recipient of the previous message. Also consider using encryption software. If encrypted, the message will not make sense if it gets into the wrong hands.
First to Upgrade
In the technology world, newer is not always better. This is an era of bug-ridden software and hardware. For example, Microsoft recently estimated that there were more than 10,000 bugs and problems in the Windows 95 operating system. A fourth service pack (requiring a whopping 13.4 MB download) was recently released for Corel's WordPerfect for Windows 8. It seems that nearly every program and hardware device needs to be patched every other month.
In fairness to software and hardware developers, producing bug-free products is almost an impossible task. With the dramatic decrease in computer prices, companies have been forced to reduce technical support staff and testing cycles. There are an infinite number of software and hardware combinations in the PC world, and it is almost impossible to test them all. The increasing complexity of operating systems also makes it difficult to pinpoint the problem. Was the crash caused by the operating system or the program? A bad driver? User error?
For all these reasons, proceed with caution before implementing new software and hardware. A good starting place is to search the Internet and newsgroups for other people's experiences, which can tell you about common pitfalls. Also schedule updates and rollouts during noncritical periods, such as three-day weekends or after that big case settles. That way, you will not be under deadline or client pressures when trying to troubleshoot problems.
Take extra precautions for critical computing systems, such as calendaring programs, operating systems, and time-and-billing applications. Make sure that you have at least two recoverable backups of all data. For specific programs, call the vendor and arrange to have a technical support person on call.
Another alternative is to utilize update utilities, such as CyberMedia's Oil Change and Quarterdeck's TuneUp. The programs actually inventory your system and check an online database for new patches and releases. Microsoft "borrowed" this concept with its new Windows Update feature in Windows 98, which goes to Microsoft's Internet site and checks for updates and new components.
If It Ain't Broke…
In a 1998 technology survey, 22 percent of those surveyed reported they still used WordPerfect 5.1 for DOS. Many law firms follow the conservative approach to upgrades best summarized with the phrase: if it ain't broke, don't fix it.
From a bottom-line perspective, this philosophy makes a lot of sense. After years of debugging, a firm's computer applications and hardware can run like clockwork. The features offered by Windows and newer versions of programs do not seem worth the cost and effort, especially considering that if newer programs were implemented, nearly every computer would need to be upgraded or replaced and every user would need retraining.
This policy ignores the unfortunate fact that older systems are often ticking time bombs. DOS and older applications are a technological dead end. Software vendor support for them is minimal, if not nonexistent, and no new versions are planned. Another problem is that older programs do not support newer hardware. For example, DOS and Windows 3.1x programs usually require special printer and monitor drivers to run. With technical support for these programs disappearing, no one is left to develop the necessary drivers for new peripherals.
Worst of all, future operating systems may not be able to run them. Microsoft, for example, has announced that Windows 98 will be its last operating system that will run 16-bit and DOS applications. Computer systems have a limited life span, and components such as hard drives, monitors, and printers simply wear out over time. Like it or not, computer hardware will need to be replaced.
If you do not decide when to upgrade, sooner or later your computer will decide for you. Computer decisions have been known to come at inopportune times that anger both clients and malpractice carriers. Planning computer and software upgrades should be as important to your firm as supplementing code books and researching the latest case law.
Thankfully, upgrading and replacing computers have become less expensive. A powerful law firm work station (such as a Pentium 233 MMX MHz computer with 64 MB of RAM and a 4 GB hard drive) can usually be found for less than $1,000. Software prices have also dropped, especially for those who are upgrading an existing program to the latest version.
With a little planning, your firm can replace systems at an evolutionary pace. This method will allow you to manage your technology budget more efficiently. Sooner or later it will break, so fix it before it does.
The Agony of Delete
Most computer users never give deleted files a second thought. They assume that pressing the delete button means the file has completely disappeared. Deleted files, however, remain on their disks. This is good news when a deleted file needs to be recovered, but bad news indeed when the wrong party finds what was supposed to be erased.
In Windows and Macintosh operating systems, the default action is to place the deleted file in a trash can on the desktop. The file is kept there until the user "empties" the trash can or until the trash can reaches full capacity and older files begin to be purged. A file in the trash is not destroyed.
Even emptying the trash can does not completely destroy the file. When the trash is emptied, only the first letter of the file's directory entry is deleted. This makes the space occupied by the deleted file available for use by other programs. However, the data from the deleted file is not actually erased from the disk. Until overwritten, the old data remains. Accordingly, a great deal of the data can often be recovered by using an unerase utility, which replaces the deleted first letter. A disk editor can also uncover deleted data by displaying the information that is stored in each segment of a hard drive or diskette.
If your desktop, floppy, or portable computer gets into the wrong hands, files that you thought were long gone can be easily uncovered. Accordingly, be very careful before passing your computer on to anyone in or out of the office. Those who sell their computers should also remember that data erased from hard drives is often recoverable.
A more dangerous and common situation is the ability of diskettes to transfer deleted file data. Many firms recycle diskettes when passing files to clients and colleagues. The same delete limitations that apply to hard drives apply to diskettes, and an industrious recipient can resurrect files that once were on a floppy but were supposedly deleted.
Another scenario is old e-mail messages, which may, for example, be preserved on backup media. It is one thing to discover an innocent memo; it is another to discover the incriminating e-mail message that accompanied that memo.
There are several methods to delete files for good. The easiest way is to reformat the hard drive or diskette. Users must perform a full format, however, which overwrites each sector of the disk and hard drive. Several utility packages can also wipe a disk of sensitive file data. For example, Network Associates' Nuts & Bolts contains a shredder function that can perform seven erase passes. It also erases the filename of a deleted file.
Some rules for avoiding computer malpractice, such as not letting your laptop out of your sight, reflect knowledge that is older than electronics. Other rules, such as those regarding erasure of files, require only a modicum of understanding of how the technology works. In all cases, however, nightmares will come true for those who believe that bad computers do not happen to good people. Lawyers who use computers can avoid serious mistakes by remembering the traps and limitations of the technology.