September | 2015 | FBC

Technology

Going Mobile

By Charles C. Platt

For decades, lawyers have been tethered to their offices. Most of their information was stored there, and that is where they interacted with colleagues, clients, and adversaries. That world has changed. Lawyers have gone mobile, and can carry most information with them that is downloaded to, or accessible through, small devices. The legal profession and the courts now must find the best ways to use these devices in every step of the litigation process, to be sure we are maximizing efficiency and productivity, and meeting the needs of clients.

The American Bar Association Legal Technology Resource Center’s 2014 survey, titled “Mobile Lawyers,” reports this trend in detail. According to the survey, 91 percent of lawyers use smartphones, and 49 percent use computer tablets, for their work. They use these devices for making and receiving calls; sending and receiving emails and attachments, keeping all calendar appointments and contact information, and accessing large databases of information on the internet. A growing number (17 percent) now use their phone or tablet as an e-reader, or for legal research or word processing.

Efficiency and Productivity

Lawyers have become dependent on mobile devices because they offer flexible and convenient access, from almost any location, to information and to other people. With expanded wireless and cellular data networks, lawyers can significantly increase their efficiency and productivity when they are out of the office — at home, on the road, or even during waiting time for appointments or court appearances. What used to be sizeable gaps of “down time” each day are now employed sending and receiving correspondence, reviewing documents, attending web-based conferences, or even researching factual or legal issues.

Perhaps more importantly, clients today expect their lawyers to be taking advantage of every technological edge, just as clients themselves are increasing their use of these devices to meet the competitive demands of their respective industries. Indeed, Comment 8 of the ABA’s Model Rule 1.1 states that lawyers must keep pace with such technological demands to meet their duty of competence to clients. As a result, instantaneous access to information, and accelerated processing of that information for decision making, is the new normal for client service, and is more readily achievable through mobile devices. Web sites, blogs, forums, and conferences have sprung up to advise lawyers on how to keep pace and maximize their use of technology in their practice.

The usefulness of these mobile devices will only increase. Tablets with a lightweight wireless keyboard can now be used to draft, revise, and share briefs, motions, and other documents. Visual presentations, such as PowerPoint or videos, can be prepared and stored on a tablet or light laptop computer, to be shared at a meeting or in court. Once documents have been filed with the court, or information has been gathered during discovery, it can efficiently be stored, retrieved, and reviewed on tablets or on smartphones with larger screens. Applications permit these stored documents to be highlighted, tabbed with notes, and shared with others electronically, increasing collaboration and productivity. The days when lawyers were in court or at a meeting without a critical piece of evidence should be over: all the relevant material is now instantly accessible, and much more manageable, on a device that weighs one pound or less, and is less than 11 inches diagonally in size.

Finally, legal research is now fully available on mobile devices. There are free law libraries that can be downloaded on a mobile device, and used to rapidly search case law, sort and customize the search results, and integrate citation analysis. There are also applications for downloading the federal and state rules of civil procedure, rules of evidence, and local court rules, so that they are available at a lawyer’s fingertips, even during a trial or an oral argument.

Unleashing the Devices

In short, mobile devices are increasingly integrated into every aspect of lawyers’ work lives. We can no longer operate without them. To the extent there are still restrictions on the use of these devices in some courts, conversation should begin between the bench and bar on the most appropriate ways to fully unleash the efficiency and productivity of these devices.

A Personal History

Lawyering at a Federal Detention Center in Texas

Pete Eikenberry

In June, I was a volunteer lawyer at the federal detention center in Dilley, Texas. I worked with immigrant women and children coming from El Salvador, Guatemala, or Honduras who had crossed the Rio Grande. According to the clients I interviewed or represented, daily life in those countries is ruled by criminal gangs who threaten and then commit murder and rape to back up their extortion and recruitment efforts. Detainees often had come to the attention of the local gang members for having a relative in the U.S. who was capable of sending funds to pay the extorted amounts. Most detainees I spoke with were under a specific threat of murder.

With the extraordinary capacities of the two administrators, only one of whom was a lawyer, and with only volunteers — most available for only a week — the Dilley office effectively represented hundreds of detainees, mostly in asylum interviews or hearings or in bail applications. With a positive finding of “credible fear” by an asylum officer, a detainee had a significantly increased chance for a favorable bail hearing. Out on bail, the immigrant had a substantially increased chance to retain effective counsel for a court hearing on an asylum application. Most of the detainees’ stories were so dire that they fit the legal standard for being granted asylum in the U.S. (which could then become a path to citizenship) by proving that they had a credible fear of torture or persecution.

Mayra’s Story

Dilley, Texas, with a population of about 3,400, is located midway between (and a long way from) Austin and Laredo, Texas. This summer, the population of the detention center exceeded 2,000 mothers and children. Mayra’s story was typical of the clients I interviewed or represented in hearings.

She with her twin sons (13 years of age) left El Salvador after gang members threatened to kill one of her sons if one did not agree to serve as spy for a gang to report on anyone other than the gang members selling drugs in the community. After each son refused to join, a gang member came by Mayra’s home to tell her that she had to pay the gang because her sons had refused to join. If she did not pay, they would first kill one of her sons and then her. When she went to the police, she was told not to make a formal report. If she did, members of her family would probably be hurt or worse. Although she owned her own home and was self-sufficient, she felt she had no choice but to pay a “coyote” to get them across the border to the U.S.

Waiting for Flores

When I was in Texas in June, everyone was “waiting for Flores.” It was a federal case in California where the government’s detention of mothers and their children was under legal attack for violating the terms of a 2009 settlement mandating that children be detained under sanitary conditions. On July 27, Central District of California Judge Dolly M. Gee found that detaining minors was illegal and ordered the minors and accompanying mothers to be released. Since that decision, the agencies, the courts, and the lawyers have been concerned with the unwinding of detention. Apparently no one believes that the ruling will be overturned. Although the detainees will not be free to stay in the U.S. indefinitely, it appears that they will have a decent opportunity to remain here long enough to obtain lawyers and pursue their remedies for asylum. One cannot help but wonder about what is going to happen short term and long term to those three troubled countries just to the south of the U.S. where gangs rule the countryside and so many of those who live there will continue to have to flee or die.