Expert Analysis

• Learning From Trump And Bannon Discovery Strategies

  

  Court-imposed sanctions on both former President Donald Trump and his former aide Steve Bannon for failing to comply with subpoenas illustrate that efforts to bar the door to valid discovery can quickly escalate, so litigants faced with challenging discovery disputes should adopt a pragmatic approach, say Mathea Bulander and Monica McCarroll at Redgrave.

• Potential Benefits Of Adding Attorney Fee-Shifting At The ITC

  

  If Congress authorized the U.S. International Trade Commission to award attorney fees to the prevailing party in exceptional cases, it could improve notoriously expensive ITC proceedings and might deter entities from filing or maintaining meritless cases, say attorneys at Ropes & Gray.

• The Risks In Lateral Hiring, And How To Avoid Them

  

  As law firms increasingly recruit laterals, they must account for ethics rules and other due diligence issues that can turn an inadvisable or careless hire into a nightmare of lost opportunity or disqualification, says Mark Hinderks at Stinson.

• Judges Who Use Social Media Must Know Their Ethical Limits

  

  While the judiciary is permitted to use electronic social media, judges and judicial candidates should protect themselves from accusations of ethics violations by studying the growing body of ethics opinions and disciplinary cases centering on who judges connect with and how they behave online, says Justice Daniel Crothers at the North Dakota Supreme Court.

• Rebuttal

  ABA Is Defending Profession's Values From Monied Influences

  

  A recent Law360 guest article suggested that the American Bar Association ignored new opportunities for the legal industry by opposing nonlawyer ownership of law practices, but any advantages would be outweighed by the constraints nonlawyer owners could place on the independence that lawyers require to act in the best interest of their clients, says Stephen Younger at Foley Hoag.

• 4th Circ. Underlines Immigration Judges' Standard Of Conduct

  

  The Fourth Circuit's recent decision in Acevedo v. Garland that an immigration judge’s bad behavior is central when considering a request for a new hearing critically recognizes that the judge’s behavior determines whether a respondent can meaningfully participate in their proceeding, says Monica Mananzan at the CAIR Coalition.

• How In-House Counsel Can Better Manage Litigation Exposure

  

  In anticipation of economic downturn and increased litigation volume, the true struggle for an in-house team is allocating their very limited and valuable attentional resources, but the solution is building systems that focus attention where it can be most effective in delivering better outcomes, say Jaron Luttich and Sean Kennedy at Element Standard.

• Practical E-Discovery Lessons From The Alex Jones Case

  

  The accidental disclosure of mobile phone data during the Alex Jones defamation damages trial underlines the importance of having in place a repeatable e-discovery process that includes specific steps to prevent production of data that may be privileged, sensitive or damaging to the case, say Mike Gaudet and Richard Chung at J.S. Held.

• Opinion

  Mar-A-Lago And The Inherent Problems With DOJ Filter Teams

  

  A Florida federal court's decision to appoint a special master to screen the documents seized from former President Donald Trump's Mar-a-Lago estate for privilege is not an outcome normally seen in white collar practice, but it is a welcome change as there are three significant problems with government filter teams, say Jack Sharman and Mary Parrish McCracken at Lightfoot Franklin.

• The Ethical Risks For Lawyers Accepting Payments In Crypto

  

  Ohio recently became the fifth jurisdiction to provide attorneys guidance on accepting cryptocurrency as payment or holding cryptocurrency in escrow, but lawyers should beware the ethics rules such payments may implicate, and consider three practical steps to minimize the risks, say Hilary Gerzhoy and Jared Marx at HWG.

• Envisioning Metaverse-Based Litigation In The Real World

  

  Attorneys should entertain the possibility of the metaverse becoming a matter of interest in real-world courts by considering what could cause actions outside the virtual world and digital forensics hurdles to be cleared in demonstrating the offense, identifying the culpable parties and collecting damages, say consultants at Keystone Strategy.

• Potential Charges That Could Stem From Mar-A-Lago Search

  

  Drawing on his experience as a criminal defense attorney and former CIA officer, Kevin Carroll at Hughes Hubbard explains how document themes, handwritten notes and potential foreign influences could determine possible charges that may be levied against former President Donald Trump or his staff after the FBI’s search of Mar-a-Lago to seize classified documents.

• Opinion

  ABA Stance On Role Of Nonlawyers Is Too Black And White

  

  The American Bar Association's recent resolution affirming its long-standing opposition to nonlawyers owning law practices or receiving shares of legal fees overstates the ethical, professional and regulatory challenges — and ignores the potential benefits — of allowing nonlawyers greater participation in the legal industry, say Peter Jarvis and Trisha Rich at Holland & Knight.

• Harnessing The Power Of Big Data In Litigation

  

  The growth in the volume, scope and utility of available data — with vendors tracking and selling data, and government releasing large data sets — requires consideration of new data analysis approaches and technological tools that can help provide objective insights in litigation matters, answer key liability and damages questions, and support critical discovery efforts, say analysts at Bates White.

• How Law Firm Operations Can Adjust To New COVID Realities

  

  Given that COVID-19 may be here to stay, law firms must once again rethink their office policies and culture to adapt to new trends and the permanent lifestyle changes that many attorneys and employees have made, say Kami Quinn and Adam Farra at Gilbert.