Failure to Check Spam Folder Leads to Missed Deadline

Court notices delivered via email are a known point of vulnerability for law firms: failure to timely check messages, accidental deletion of court notices, or haphazard review of spam folders.

Now The Researching Paralegal reports on the latest variation of this theme.

A trial court clerk in Florida served an order by email awarding a significant amount of attorney fees to the prevailing party (appellee).  The opponent/appellant claimed it did not receive the order, resulting in its failure to file an appeal.  What happened? The opponent/appellant’s email system automatically deleted the court’s email as spam.

The opponent/appellant asked the court to vacate the original order on the grounds of excusable neglect.  The trial court declined and Florida’s First District Court of Appeal affirmed. The Researching Paralegal cites these factors:

First, the review of the court clerk’s email logs confirmed that the email with the court’s order was served and received by the law firm’s server. Second, the law firm’s email configuration made it impossible to determine whether the firm’s server received the email. Third, the law firm’s former IT specialist’s advice against this configuration flaw was deliberately rejected by the law firm because its alternative cost more money.

The trial court concluded the law firm made a conscious decision to use a defective email configuration merely to save money, which was not “excusable neglect.”

Another nail in the coffin was testimony by the appellee’s attorney. His firm assigned a paralegal to check the court’s website every three weeks to safeguard that his firm would not miss any orders or deadlines.  The court held that the appellant had a duty to check the court’s electronic docket.

Emerald Coast Utilities Authority v. Bear Marcus Pointe, LLCCase No. 1D15-5714, Fla: Dist. Court of Appeals, 1st Dist (2017).

What can we learn from Emerald Coast?

  1. Whitelist important email. Set your spam or junk email filters to allow receipt of messages from approved senders or domains. Include courts, administrative agencies, key clients, opposing counsel, and any other senders whose email you don’t want to miss.
  2. Review spam quarantine summaries daily. Aggressive spam filters will occasionally block senders and domains you have added to your whitelist if the filter finds content in the email to be possible spam.  Addresses and domains may also change, causing new notices to be marked as spam.
  3. Don’t forget to look at your junk mail folder, another place where legitimate messages can land.
  4. Check online court dockets. Weekly will work for most firms; others may need to login daily, depending on case volume.
  5. Listen to your IT staff.  Here, the IT specialist argued against automatic deletion of junk and spam messages and recommended hiring a third-party vendor to handle spam filtering.  He also suggested investing in an online backup system, another idea rejected by the law firm.  Following either of these recommendations may have prevented the firm from missing the deadline.

A few more takeaways

  • It should be clear, but just in case:  everyone needs a backup system. If you can’t afford the cost of an online subscription, buy an external hard drive on sale and use the backup utility built into your operating system.  For backup protocols and additional backup options, see How to Backup Your Computer from the Professional Liability Fund (Practice Management > Forms > Technology).
  • Can’t afford a third-party vendor for spam filtering or another IT task?  Understandable, but the work itself still needs to get done. This may mean you, your partner, or your staff.  Technology is a tool, not a substitute for human judgment.

There are some other interesting twists and turns in Emerald Coast.  For examplethe law firm also refused to join in on a motion for a case management conference – a step that would have likely revealed the existence of the attorney fee award.  Additionally, automatic deletion of spam wasn’t the only email configuration procedure that caused problems for this office.  If you have a few moments, read the full opinion here.

Beverly Michaelis – All Rights Reserved 2017

Getting Your Head into the Cloud

Whether you’re setting up a practice for the first time or upgrading existing technology, odds are you’re taking a long, hard look at the cloud. Here is a checklist to help you through the process.

Getting Started

Moving your data to the cloud is all about vetting the cloud provider – will they or won’t they keep your client information secure?  Here are your marching orders:

Research the Provider

  1. What is their reputation?
  2. How many years have they been in business?
  3. Are bloggers and news outlets critical or supportive?
  4. Can the provider give you a list of other lawyers who use their product?  (If so, check the provider’s references.)
  5. Talk to friends and colleagues: are they familiar with the product or provider?  What are their thoughts?
  6. If you belong to a listserv, poll the members of the listserv.
  7. Use the power of Google to reveal problems.  A general search using the product or provider name is a good start.  To uncover security issues, Google the product or provider name followed by the words “security concerns” or “data breach.”  To reveal if outages are a problem, search the product or provider name followed by the words “downtime statistics.”

Evaluate Speed and Reliability

Uptime, bandwidth, and general reliability of the Internet matter.

  1. Check on provider uptime statistics as part of your general research – see the discussion above.
  2. Make sure your technology is up to the task.  To use the cloud effectively you must have a fast, reliable Internet connection. If you don’t, contact your ISP.  If there is a remedy (and you can afford it), great.  If not, taking your practice into the cloud is likely not a good choice.

Read the Fine Print

  1. Dig into the provider’s website and follow any links that reference Terms of Service, Terms of Use, Privacy Policy, Security, or Service Agreements.
  2. Contact customer service for clarification of terms if needed.

Educate Yourself about Encryption

Every cloud provider encrypts your data.  The devil is in the details:

  1. Is your data encrypted at all times (in transit and at rest)?
  2. Does the provider hold a master encryption key?  (If so the provider can access your data at any time, thus defeating client confidentiality.)
  3. Is third-party encryption an option?  If the answer is yes, you can lock out the cloud provider.  A master key only permits the provider to unlock their encryption, not yours.  With third-party (AKA client-side) encryption, you – the user – apply your own encryption software before uploading any content to the cloud provider’s site.  Here’s the rub:  encrypting your own content isn’t always an option for compatibility reasons, so check with the provider.

Learn about Data Access Policies – “Authorized” and “Unauthorized”

Getting an answer to the master encryption key question will resolve whether the provider’s employees can freely access your information.  Now you need to ask:

  1. Will the provider notify you if authorities seek access to your account information?  (Some providers comply with subpoenas first and tell you about it later.)
  2. What is the provider’s procedure if a data breach occurs?

Know Before You Go: Security, Backups, Redundancy, and Local Copies of Your Data

  1. Find out what the provider has to say about the physical security of its facilities.  Features like fire suppression, redundant electrical systems, temperature controlled environments, video surveillance, and 24/7 monitoring by security personnel are standard.
  2. Learn everything you can about how your data is backed up. Where, when, and how.  A decent cloud provider has multiple servers that are geographically dispersed.
  3. Consider it a deal breaker if you can’t download a local copy of your own data. Keeping a local copy just makes sense.  First, it protects you if the provider goes out of business (some have).  Second, if the provider suffers a catastrophic breach you’ll still have a pristine copy of your information.  [Caveat: ability to download a local copy of your data does not mean you can work with it offline.  This is simply a way to protect yourself in a worst case scenario.]

Nail down the Details: Support, Training, Data Migration, and Data Integration

Cloud products are generally pretty easy to use, but at some point you’ll need help – maybe at the outset when you import your data – or later when you start using more advanced features of the program.  Either way, ask:

  1. Does the provider offer live telephone support?  Live chat?  Email?  What are the hours?  Is it free or is there a support contract?
  2. What resources does the provider have on its website?  Searchable knowledge base?  User forums?  Blog?  Training videos?  Webinars?
  3. Will the provider help you migrate your existing data?  Are you on your own?  If there is a fee for data migration, get an estimate.
  4. What about product compatibility and integration?  Some users need the cloud product to communicate with an existing piece of software, like QuickBooks or Outlook.  [Tip: don’t just take the cloud provider’s word for it.  Run another Google search: Is (cloud product name) compatible with (existing program)? If the blogosphere has spotted issues, you’ll uncover them quickly enough.

Product Cost and Licensing

Most cloud products are sold on a monthly subscription basis.  Do a bit of research:

  1. What is the current fee per user?  Any price breaks for multiple licenses?
  2. Research historic costs.  If monthly fees have jumped significantly in the recent past, factor this into your choice.
  3. Are product upgrades or new features included in existing subscriptions or is there an additional fee?
  4. What does a single license or a single user account include? Some providers are strict: one user/one license/one device.  Others are more flexible: one user/one license/multiple downloads: desktop, laptop, tablet.

Choose the Right Version

If your cloud provider offers multiple packages or products, proceed cautiously.

  1. Look for a Web page on the provider’s site that will compare the features of each version side by side.
  2. Call customer service when in doubt.
  3. Take advantage of free trials, which are almost universally available. A trial run is the best way to know whether you’re really going to like something.

Cyber Liability and Data Breach – What if the Worst Happens?

If you’ve decided to store your data in the cloud, it might be a good idea to have cyber liability and data breach coverage.

The Professional Liability Fund Excess Claims Made Plan automatically includes a cyber liability and data breach response endorsement with these features:

  • Forensic and legal assistance to determine compliance with applicable law
  • Notifications to individuals as required by law
  • 12 months credit monitoring to each notified client
  • Loss mitigation resources for law firms

If you aren’t eligible or don’t wish to purchase excess coverage through the PLF, contact a commercial carrier.

This is Too Much Work – Can’t You Just Tell Me What to Do or Give Me a List of Recommended Products?

No.  I can’t make this decision for you.  You and I have different likes, dislikes, needs, skill levels, and preferences.  (Think: Windows vs. Mac, Word vs. WordPerfect, or Mayonnaise vs. Miracle Whip.)

If you want to be happy with your choice, you have to make it.  We can talk, I can point you toward resources, or send you comparison charts.  But in the end you are the decider.

[All Rights Reserved 2015 Beverly Michaelis]

 

Once You Go Mac, You Never Go Back

Macs in the law office continue to gain traction. Why you ask? Find out from the experts at the 2014 ABA TECHSHOW:

The Mac Philosophy

“Time is Money for Attorneys – You need (the) best computer that works the way you want, when you want it. That’s a #MAC” @rajuip – via @MrsMacLawyer

@rajuip: “If there is a mantra for macs – it just works” – The Business Case for Going All Mac. @jwlounsberry

IT #Secret: If you’re in a big firm, your IT guy won’t like #Mac conversion – makes their job obsolete. @rajuip @themaclawyer – via @MrsMacLawyer

RT @larryport: CIO Study cited that in one company, employees with identical titles but using Macs vs PC found Mac ppl generated 26k more $… – via @MrsMacLawyer

Built-In Backups

All #Macs come with #TimeMachine. The ability to backup can’t be done this cheap on PC. It just works. @themaclawyer & @rajuip – via @MrsMacLawyer

Files are Hard to Lose

Spotlight on a #Mac: Once something in on your Mac, it’s really hard to lose it.” @themaclawyer – via @MrsMacLawyer

Printing to PDF is Easy Peasy

Print to #PDF is built into the #Mac – Command+P+P = print to PDF automatically. @rajuip – via @MrsMacLawyer

(Use) TextSoap to clean up copied text from PDF, Web etc for #Mac per Mark Metzger @david_bilinsky

The iWork Office Suite is Free and Preloaded

#Macs now come fully loaded w/ the iWork suite of software – No add’l $ outlay for software to support the machine. #MacTrack – via @MrsMacLawyer

Go Mini

Wanna make case to switch Get a Mac Mini. It will work w/ existing PC monitor, etc It’s a #Mac & it WORKS @rajuip @themaclawyer – via @MrsMacLawyer

[All Rights Reserved – Beverly Michaelis – 2014]

 

 

Coping with Gmail Outages

Many lawyers rely on Gmail and Google Calendar as part of their practice management routine.  But what happens when Google experiences an outage, data corruption, or data loss?

According to Business Insider, Google’s own redundant backups ensure that you will eventually reclaim all your data.  You can rely on this or implement your own recovery plan. (Hint: implement your own plan.)

Here’s how to get started:

Establish a Backup Routine

In this older post, Lifehacker offers five simple ways to backup Gmail.  You’ll find some additional suggestions here. Since Hotmail is no more, swap out Outlook.com as a replacement solution.

Follow Google’s Post-Outage Advice14 - 1

After the recent Gmail debacle, Google sent the following message to all users:

Deleted Forever?

In my personal Gmail account, I didn’t experience messages being moved to Trash or Spam.  Instead, old messages that were “deleted forever” reappeared in Trash.

According to Google: “If you’ve deleted a message permanently by clicking Delete Forever in your Spam or Trash, you won’t be able to recover the message using the Gmail interface.”  Translation: You can’t recover it, but Google can.  Here is some further advice from Gmail help:

“In the past, users have reported that they are missing all of their messages as a result of unauthorized access. If your account was compromised* and you would like us to investigate whether recovery is possible, please first complete this process to secure your account and then file a report.

If you’ve moved a message to Trash, by clicking Delete, but it’s been fewer than 30 days and you haven’t permanently deleted it, follow these steps to put it back in your inbox:

  1. Sign in to Gmail.
  2. Click Trash along the left side of any Gmail page. (If you don’t see Trash along the left side of your Gmail page, go to the Labels tab in Settings, then click the show link next to the Trash label.)
  3. Locate the message you’d like to move to your inbox, and check the box next to the sender’s name.
  4. Click Move to Inbox.
Have your messages gone missing? Click here to start investigating.”
*Presumably Google would also honor this process following an e-mail outage.
Best Practices
One of the ways you can “backup” Gmail is to download messages to your Desktop E-mail Client (Outlook, Thunderbird, or Apple Mail).  But why not take it a step further?  Make your Desktop E-mail Client your primary method of interacting with messages.  Last year, I published two articles in the Oregon State Bar Bulletin on how to properly document client e-mail as part of the client’s file.  The first article focused on e-mail missteps; the follow-up on the mechanics of electronically filing e-mail.  Here is what I said about Web e-mail options like Gmail:
I find it ironic that lawyers who are leery of cloud computing don’t give their Outlook.com, Gmail, or Yahoo! accounts a second thought. When you leave e-mail on a web server, your confidential client data is not entirely under your control… If your provider’s server is down, or you can’t get on the Internet, then you can’t access your client information. Additionally, reliance on cloud solutions for e-mail may raise security and privacy concerns. Macs and PCs both ship with an e-mail application. Set it up to download your web mail. Doing so is absolutely free since you are using a program preloaded on your computer. Go to your web mail’s help page and search for instructions on how to download web mail to your specific program. For Google, log in to Gmail, click on Help, and click on POP under “Other Ways to Access Gmail.” Google offers instructions for setting up Apple Mail, Outlook Express, Outlook 2002-2010, Thunderbird, Windows Mail, the iPhone and other mail programs.

Google Calendar is Not Immune to Problems

Google Calendar isn’t immune to problems either.  When Gmail goes down, Google Calendar is likely to follow, which is what happened during the recent outage.  Google Calendar can also be a source of spam or scams.

Setting that aside, Google Calendar plays well with others.  So set it up to sync with your phone, tablet, or built-in desktop calendaring program.  If you establish a backup routine for Gmail, include Google Calendar.  For example, Backupify will capture all data from Google Apps.

All Rights Reserved 2014

Beverly Michaelis

 

 

Recovering Deleted Dropbox Files

File sharing and online collaboration is the driving force of Dropbox.  It does a stellar job in this area, but like all tools, remains subject to the human factor.  What if you, your staff, or someone with whom you are sharing a Dropbox folder accidentally deletes a file?  Most everyone has had this experience on their personal computer, so it’s bound to happen sooner or later in the cloud.

If you notice a file has been deleted and less than 30 days have passed, you can easily recover the file on the Dropbox Web site.  Here are the steps, as explained in the Dropbox Help Center:

Restore Dropbox files

If more than 30 days have elapsed, you are out of luck unless you have a Dropbox Pro or Dropbox for Teams account.  Both include Packrat which “captures unlimited snapshots of your files,  allowing you to recover any file as far back in time as you like.”  Dropbox Pro and Dropbox for Teams users may also be able to restore a file from the hidden cache on their computer.  (Instructions are provided for Windows OS.  Contact Dropbox if you are using a different system.)  Dropbox recommends trying the restore steps described on their Help page first.)

Take Aways

1. Backup.  I can’t say that enough times.  See How to Backup Your Computer on the PLF Web site for a thorough discussion on the subject.  Select Practice Aids and Forms > Technology.

2. Train.  Make sure everyone you add to your Dropbox account understands how it works.  I’m writing this post because my husband and I had a personal experience with a family member who mistakenly deleted some shared files.  We successfully restored the files on the Dropbox Web site (and had a backups, just in case).  The family member deleted files after she received an e-mail message warning her that her Dropbox folder was full.  At the time our shared Dropbox folder was at about 50% capacity.  She had one item in her personal Dropbox folder.  Whether this was an error by Dropbox or malicious spam, we don’t know.  After the family member deleted the Dropbox files she also deleted the e-mail.

3. Share thoughtfully as all users are not equal.  However, if you follow the other two take-aways (backup and train) sharing is far less risky.

Copyright 2013 Beverly Michaelis