Racing to Res Judicata
When two or more lawsuits over the same set of facts are being resolved simultaneously in bankruptcy and state courts, figuring out who has jurisdiction over what can get tricky. Yesterday, the Tennessee Court of Appeals issued a decision untangling a dispute between business partners that stretched between three different courts, and in doing so provided a helpful roadmap for resolving such disputes in the future. Spivey v. King, No. E2011-01114-COA-R3-CV (Tenn. Ct. App. Feb. 2, 2012)
By Dan Lins
Tags bankruptcy litigation, business litigation, jurisdiction
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Round-Up: Insolvency in the News
In case you missed them, here are bankruptcy stories from around the web making headlines this week:
Bankruptcy filings by publicly traded companies fall 17 percent in 2011.
CEO of Pinnacle Airlines in Memphis warns of possible Chapter 11 in light of recent losses.
Ryan’s Steakhouses across Tennessee being boarded up as part of Buffets Inc.’s restructuring plan.
Clarksville medical center finds investor to guarantee $37 million needed to complete reorganization.
Marilyn Monroe estate gets iconic photo rights as part of bankruptcy settlement.
Technology Update for Bankruptcy Litigators: Tablets in the Courtroom
It nearly goes without saying that the regular use of technology by lawyers and judges is on the rapid rise in courtrooms around the country. Over the past decade, everything from state courthouses in rural counties to federal courtrooms in larger cities have been retrofitted to incorporate video displays, network and video inputs for laptops, digital projectors, and the like. Bankruptcy courts have been on the leading edge of such developments in some instances. As practitioners in the United States Bankruptcy Court for the Middle District of Tennessee well know, certain judges have expressed a strong preference for use of these resources for the presentation of evidence in contested hearings and at trial.
As is typically the case, however, the speed of technological development far outpaces the capacity of an established profession like ours to react. While hardwire infrastructure is being built into courtrooms, bulky laptops and network cables increasingly have been replaced by smartphones, wireless hot spots, and tablets in many lawyers’ folios.
The Apple iPad was introduced in April 2010. Very shortly thereafter, some lawyers were seen whisking between courtrooms at the Customs House, iPad in hand, PDFs downloaded from PACER at the ready. (While others have remained true to the first, widely-successful mass-market tablet, Amazon’s Kindle, both in court and out.) Still others have sought to avoid the digitization of litigation altogether — “they call it a ‘legal pad’ for a reason!” — although it appears this latter group may not enjoy this option forever.
Just this past December, the English Court system unveiled a plan to move to completely paperless courtrooms in England and Wales in 2012. In a test run, prosecutors, defense lawyers, judges, and jurors in the city of Norwich are being given HP tablets for use in conducting court hearings. These tablets are intended to contain all the written evidence and documentation needed by all parties at trial. Test trials are underway. Other Crown Prosecution Service (CPS) departments in England and Wales are preparing to roll out the devices beginning in April. Facing 25 percent cuts over the next four years, the CPS is hoping these devices (at a cost of approximately £1,000 each) will save around £50 million in paper costs during that time.
Here at home, tablets are being used in litigation more and more as well—in depositions, hearings, and at trial. William H. Latham, a litigator in Columbia, SC, who blogs at The Hytech Lawyer, uses his iPad while on the road and preparing witnesses for deposition, hearing or trial testimony. “This typically involves reviewing dozens if not hundreds of documents with the various witnesses. Prior to the iPad, that often meant lugging around two or more bankers boxes all over the country. No more.”
When conducting depositions, Latham uses two iPads, each loaded with all the documents he intends to use. One iPad is wiped clean of any sensitive legal documents or information and given to the witness. His own iPad is connected to a projector or monitor, allowing him to mark up and highlight different portions of the documents and ask questions of the witness.
Peter Summerill, a litigator from Utah and author of the MacLitigator blog, believes tablets, particularly the iPad, really shine at trial. “Trial technology should be transparent. This means that it should not appear to the jury as (1) overly flashy; or, (2) a complete headache and a distraction to the attorney. [The iPad] facilitates presentation of evidence without getting in the way and does so in a completely unassuming fashion.”
Others are less enthusiastic. Ted Brooks, a legal technology consultant who works primarily on large trials (with such notables as David Boies), and who writes the Court Technology and Trial Presentation Blog, fears that tablets introduce unnecessary risks and challenges for the sake of looking cool. He prefers laptops and more traditional trial-presentation software and says he would use a tablet at trial “only if there were some compelling reason to do so.”
Still, in my view, the paperless tablet-based system being considered by the English courts is a glimpse of the not-too-distant future: a collection of tablets, connected wirelessly, being used in depositions, hearings, and at trial. In addition to being great tools for showing documents and video clips to witnesses, fact-finders, and colleagues, tablets are increasingly efficient and conserve valuable resources.
For example, every original document that comes into our office is scanned electronically. When those documents are needed for depositions, for example, they are printed out, and multiple copies are prepared for witnesses and counsel. After the deposition, the paper exhibits (now with notes, annotations, etc.) are converted back to electronic form, and the paper copies are destroyed. It is easy to see how the use of tablet computers could virtually eliminate the need for such wasted paper at depositions and improve efficiency.
With this in mind, it might be useful to outline a few of the tablet applications our office has found most useful in its litigation practice:
In my opinion, Dropbox is an essential application, providing encrypted cloud storage for all kinds of files. Dropbox allows you to drag and drop files from any Dropbox-enabled computer or tablet into a folder, and those files are synchronized and available across all your devices, such as your laptop, smartphone, and tablet. This is one of my primary means of transferring data between devices and, when paired with a tablet, helps avoid the bankers-boxes problem. Dropbox is free up to 2GB storage, with monthly charges thereafter.
Another tool our office has found useful for the iPad is iAnnotate, which allows you to view, annotate, organize, and send PDF files. iAnnotate allows presentation of PDFs through a projector, with markups displayed on the screen, and allows you to pinch-zoom the onscreen document. iAnnotate has a tabbed interface with which you can project a document or exhibit while privately viewing your notes or outline on the iPad. iAnnotate can do full word searches through PDF files (or group of files) and, on the fun (and useful) side, has a number of drawing tools, such as arrows, callouts, and different highlighter and annotation colors. iAnnotate is $9.99.
Speaking of presentations, perhaps the most popular presentation software for the iPad is Apple’s Keynote. This app is intuitive and user friendly, offers standard editing capabilities (including animation), and has a number of good-looking presentation themes from which to choose. Keynote is compatible with Microsoft’s PowerPoint, so you can open and edit PowerPoint files, and then save your work in Keynote or PowerPoint format. Keynote is $9.99.
Unlike the foregoing apps, which are frequently adapted by lawyers for use in their practices, TrialPad for the iPad was developed by lawyers for lawyers. TrialPad was specifically designed to organize case presentations for the courtroom, enabling attorneys to organize, annotate, and manage their case files for hearings, trials, and other presentations. It combines a number of the key features of iAnnotate and Keynote, above. TrialPad is reported to be one of the top-grossing iPad business apps, despite its $89.99 price tag, which makes some sense when compared to lawyers’ average hourly billing rates across the country.
In my view, litigation is moving toward becoming a paperless practice. As useful and relevant technology continues to develop and improve, and bottom-line concerns like those of the English court system are more and more realized, I believe we could see a dramatic change in our profession in the next ten years. This is not a matter of keeping up with the Joneses, but rather staying with (or slightly ahead of) the curve. Beginning to incorporate tablets into your presentations, deposition preparation, and even trials, will allow you to do just that.
Round-Up: Insolvency in the News
Here are some insolvency stories from around the web making headlines this week:
Despite its ongoing liquidation, Borders stores may remain open overseas: WSJ Bankruptcy Beat
Lehman Brothers drops its attempt to collect $11 billion from Barclay’s over Lehman’s distressed sale in 2008.
Chuck Greenberg, owner of the Texas Rangers, may seek to buy the NHL’s Dallas Stars in bankruptcy.
The Tennessean reports that incomes in the Nashville area plunged sharply last year, according to the latest census.
In a sign of the times, Hallmark has started selling greeting cards for when that special someone loses his or her job.
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