Couldn’t make this year’s ClioCon? Don’t know why you would if you could? Jeff is on location in Austin, Texas, and reports in on the latest legal tech trends, like:
We also discuss the new Doxing Victims Recourse Act, Civil Code section 1708.89, which creates a cause of action for online doxing—publishing a person’s personal identifying information (including a photo) with the intent of causing harm to that person. Another dicey intersection between harassment and Free Speech.
Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.
Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.
Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.
Announcer 0:03
Music. Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis,
Jeff Lewis 0:17
welcome everyone.
Tim Kowal 0:18
I am Jeff Lewis and I'm Tim Kowal AS certified appellate specialists. Both Jeff and I face a lot of unusual problems that come up at trial and on appeal, and in this podcast, bringing you recent cases and guests, we expose you to the unusual. If you find this podcast helpful, please recommend it to a colleague. Yeah,
Jeff Lewis 0:33
and if you like being surprised in your legal practice, take this as your spoiler alert.
Tim Kowal 0:37
Yeah, who doesn't like surprises, except when you're at the hearing and you realize, oh, was I supposed to get a court a court reporter? Okay, so Jeff, we have talked about legal tech quite regularly on this podcast, and we've had a couple of episodes devoted to legal tech, and we've got another updated version in the works for a little bit before the end of the year. Certainly, we've talked about chat GPT and the law, how to use it responsibly. We've talked about some gateway drugs of how attorneys can dip their toe in the water of legal tech, like using Sanebox email filters and using text expander text snippets so they can stop typing the same verbiage in every single brief and email and get some consistency going in their practice and among their associates and paralegals, and we've covered clear brief, which I'm excited to talk about again, since the last time we talked about it, like a year ago, I've integrated it into my practice, and there's hardly anything we do anymore that's not done through clear brief. So Jeff, I'm excited to get a dispatch from you, because I understand you are in Austin, Texas, visiting Clio con. What is Clio con? And why did you travel to Austin, Texas to attend Clio con?
Jeff Lewis 1:48
Yeah, I can report I'm back in Texas for the first time in 55 years. I was born in Texas, left as a baby, and it's my first time back. And Cleo con is an annual convention. It's my first time here. My paralegal went last year. He had a great time, and he came back fired up and inspired, and he suggested that I sign up. And I'm so fired up and inspired from this year's conference, I have already signed up. It's not over yet, and I've already signed up for next year's Clio con in Boston. So I think we're offering a discount if you sign up in October to get a low rate. So that's why I'm here, let me say, Yeah, I've been to other legal conventions, and annually I go to Comic Con down in San Diego. This con has a nice vibe to it. It's not terribly crowded. There's lots of people here, but there's lots of space. There's not long lines. There's no urgency that, hey, you're going to miss this here, at this meeting, or this thing or this booth. It's a very laid back conference with legal tech nerds, and a big chunk of it are the partners who work with Clio that have add on products. Like one of my favorite add on products is wise time they have a booth here. Yeah,
Tim Kowal 2:54
told me about wise time before, so I'm I'm anxious that's I've adopted many of your recommendations. Jeff, wise times, not one that I've adopted yet, but I sometimes think about it when I'm dashing around doing all these different projects and maybe not accurately capturing everything I'm doing in my time entries. And I think Jeff told me about wise time, I wonder if he still uses it and finds it valuable. So I hope you give us a little more more of a scoop on wise time and how you used it successfully. Yeah.
Jeff Lewis 3:19
So let me say this, the key note that started us off was about a CEO of Clio con. I mean, of Clio, I should say. And he talks every year about AI, that's his thing. But this year he was talking about AI, really interesting. You know, every product out there in the legal world has an AI component. But what this talk was about was more about the relationship between AI and the work that lawyers do, and how some of our revenue might be disappearing in the near, very near future, because especially sophisticated clients are no longer to be willing to pay for extensive document review or basic document preparation when those tasks can be automated by AI, and he did a report on trips folks at Clio, do a report that took a bunch of the Clio time entries on an aggregate basis, and analyze how much of these tasks are automatable, if you will. And came up with some stats and some slides. I think the reports available online, or maybe we'll link to it that basically says something like the order of 70% of tasks that lawyers do can be aI automatable, and that those tasks represent a portion of revenue that's going to disappear. And the thesis by the Clio folks is that this is going to put pressure on the billable hour and put pressure on lawyers to offer either discounted rates or a flat fee rate, because sophisticated clients aren't going to pay what
Tim Kowal 4:48
they used to pay. Wow, that. Well, I want to probe a little bit more on that 70% number I would get. I'm not surprised that that there would be a big number like that when it comes to tasks that. That could be assisted by AI, but is the 70% number to suggest that 70% of the tasks could be eliminated, or 70% of tax tasks could just be assisted or be made more efficient by the use of AI.
Jeff Lewis 5:13
You know, I think everybody at Clio, I suspect, wants a human being involved, and never wants a fully automated process, but they're talking about 75% of billable work could be compressed with human involvement and human review, and so not eliminated completely, but just the task will be just done more efficiently and in less time.
Tim Kowal 5:36
Yeah, yeah, I could, I could see that, and I still think there is a learning curve to AI. I think the learning curve is fairly it's a it's a fast learning curve in the sense of, I think you could, you could get value out of AI very quickly, but learning to use it most effectively and avoiding the pitfalls that are presented by overuse or misuse of AI, you know, takes some time. So for example, I use it. I use it. Now we've we've used case text for a long time, and it's parallel search, and now it's co counsel product a lot, and I've come to use CO counsel, and then I also have a Lexus account, and they have a similar product, similar to co counsel. And I sometimes I run the same search on both, to see which one comes up with the better results. And sometimes I do spend more time trying to get the right kind of junior, junior associate research level memo from one of these AI products, when I should probably just find the key case and just read the damn case, instead of trying to keep getting the perfect AI generated summary of the case. Yeah,
Jeff Lewis 6:39
yeah, yeah. I get that. By the way, you just mentioned Lexus. I have to say, I'm a lifelong Westlaw user, and there's very few times in my life that I hear, Oh, man, Lexus can do that. I wish. I wish I had Lexus. But let me say this clear brief now integrates really nicely with Lexus, so that if you are linking to cases, the cases pop up in Lexus, as opposed to fast case. Oh, I haven't noticed that yet. Yeah, well, that's what Jackie told me today, the CEO So, boy, that that's a huge thing.
Tim Kowal 7:13
Does that mean in the PDF generated final version of a clear, brief, clear brief or document, and for for those of our listeners who aren't aware of what clear brief is, it's a it's a tool that allows you to create fully hyperlinked PDFs of your brief so that it will, it will have hyperlinks of all your fact sources and hyperlinks of all your legal sources, so that the reader can just easily see side by side, your your brief on the left side, and then the source document or the legal authority that supports your position on the right hand side. So there's no none of this. You know your reader having to open multiple documents or have stacks of documents on their debt on their desk to understand what the heck you're talking about in your brief. It's just a side by side. It gives full transparency to what you're doing. But for for case authorities, it will use clear brief, will use a free source like fast case to to look at legal authorities. And it's not, it's not 100% sometimes it's not able to pull from the fast case database. So there's sometimes some broken links there. So it sounds like Jeff, if they are integrating Lexus, does that mean you, do you have to have a Lexus account to make that work, or will it be available to any user of your clear, brief document?
Jeff Lewis 8:25
I think the end user has to have Lexus to see the cases in Lexus. So I imagine when you click on the link, there's something that happens in the background that detects if you're a Lexus person, the Lexus case spits up. It gets picked up, and if not, you get fast case. But I'm not sure,
Tim Kowal 8:40
yeah, yeah. Maybe there's an option to you, and you can always download your your source authorities and make those available as part of your source documents within the case. But the automated if you're going to just rely on the automated feature, it's not 100% I've
Jeff Lewis 8:54
had to do that for land use cases where I have local, local ordinances or quasi judicial like HOA resolutions that are necessary to be cited in briefs. It's really handy. So let me, let me, let me just say a few things on clear brief. By the way, I did a demo with Jackie today where she recorded it and probably be on on their Twitter account soon. And I use clear brief pretty regularly. You know, maybe once a week. Boy, there's new things coming out every day on this product. So one of the products they had today was called cross exam builder, which I hadn't noticed before, and note taking mode. And what I'm seeing is a trend here. For a long time, clear brief has done what's called extracting AI, where you can put up a bunch of documents and search for the right fact, it'll, it'll extract that fact out of the appellate record, and that's helpful. But now on the on the I guess you call it generative AI side, they have this thing where you can build a timeline. It gives you a table of all your source documents. And the events associated with those source documents. But then you can take that and click a button and turn it into a statement of facts for your appellate brief or a demand letter or all sorts of other things. It was really super interesting how quickly clear brief is broadening out the generative AI piece.
Tim Kowal 10:22
Yeah, I'm excited to see that I've used the I've used that fact chronology builder, in clear brief, to to great success. I've done, you know, appellate intake evaluations to see if there is a good, appealable issue on something like, say, for example, a motion for summary judgment that was granted on a statute of limitations basis. And I want to see if there is a tribal issue that was overlooked by the trial court on a delayed discovery issue. And for that, I need to really look comprehensively at all the chronology of the case. And so I had clear brief generate that table of the chronology of the case for me that includes a citation to the source document and page number of every document that it finds, every fact that it finds in that table. And, and I've been able to use that to spot issues that, hey there looks this. Looks like it was an a tribal issue that that was overlooked by the court summary judgment was not appropriate. And, and it's a great resource to share with the client so they can, they have transparency to know exactly what you're looking at, and when I have associates, or, you know, co counsel, working on it, I can share exactly what I was looking at in the source documents without having to have them reinvent the wheel entirely. So it's, it's a huge time saver once you get to learn these tools and use them effectively. Yeah,
Jeff Lewis 11:37
and similar note taking, let's say you've got 10 documents need to review for a case, and you haven't looked down before, and you want to make notes and share those notes with other people. They have this note taking mode where you basically dump these 10 documents into clear brief. And you click the note taking mode and it creates a table in Microsoft Word with three columns. One of the columns is a date, one is a description, and then one is the hyperlink to the source with this in the right citation format, and in the description column you can write whatever notes you want, or you can cut and paste from the document. And yeah, it's just amazing. And then once you've done those notes, you can then take that table and do other things in terms of generative AI, so yeah, highly highly recommend that. Let me say one other thing before I move on from this tech subject, and that is, they announced something called Clio duo, which is an AI, think it's like a chat bot on steroids for Clio users. And if you've been following what Apple iPhone is doing in terms of artificial intelligence and conversations with Siri and how it can have a long conversation and remember the context from prior questions, so that each time you ask Siri a question, it's not like you're having to start from the beginning. Similarly, Cleo is going to have this product called duo. Imagine a chat box comes up when you start your day and it says, Hey, Tim, I've noticed you have five overdue items. You should work on these. And you can ask, ask natural language questions about cases and case status, and it will bring you right to the the answer. So it's going to make I've always found Clio a little bit cumbersome to navigate. I think this duo product is going to help me access information a little bit better. So I'm excited to see that.
Tim Kowal 13:22
Yeah, yeah. That reminds me of the I think Microsoft Word, for example, has just a search box at the top. So instead of having to hunt and peck for the, you know, to find the auto correct option, you know, you can just type in auto correct and it'll take you right to the level of the settings where you need to go to make whatever adjustments you have in mind. So I wonder if that's similar in Clio you can adjust settings. Or I find this often with one of my templates that I use, I use Clio to help me generate, like, a case memo template or a trial brief template, or appellant's opening brief template. And I realize, oh, you know, I need to make this fixed to my template, but I don't want to have to go back and dig through where the options are and open up the document, re, import. I wonder if the do the duo feature will help make it easier to to make those changes on the fly to your system. Oh, yeah, that's
Jeff Lewis 14:13
a great question. And then one other thing I will share, one of my favorite vendors is wise time. It works with Clio. Helps you track your time, and I was sworn to secrecy. I cannot announce anything, but they told me about a new feature coming to wise time, which is going to be such a complete game changer for users of wise time and tracking time and capturing missing time. I can't wait, but I was sworn to secrecy. But you haven't checked out wise time. It's a great time to check out the wise time product.
Tim Kowal 14:42
Well, I checked it out a year or so ago when you when you were trying to sell me on it. I think it's a really interesting product. From what I recall. What it does is that it uses AI to track what you're doing on your computer, and it uses what you're doing on your computer to populate the. A narrative for the time entry so you capture more time. And if there's, I think, if there are gaps in the in your day wise time, will suggest to you that, hey, remember when you were digging on the Secretary of State's website for business entity information? Do you want to attribute this to your new matter where you're trying to identify defendants or something, yeah,
Jeff Lewis 15:21
or it'll show you how much time you're spending on Facebook. It also does, does a pretty good job of tagging. So I named my documents in my in my firm that always says the client name somewhere in the document, the file name, and as a result of that, with wise time, it picks up on that and pre populates the client matter on wise time. So it makes it much easier. It saves you a step in terms of billing time to the right matter. Okay,
Tim Kowal 15:48
yeah, that's, I think that, you know, the wise times, a product that, like I mentioned at the top, something that I periodically think, do I need to integrate that into my system? Because I feel like I may have some leakage answers, yes,
Jeff Lewis 16:00
so, so that's it, in terms of AI, and it's all very exciting. And let me just bring the room down now and talk about something that's terrifying, which was the topic of today's keynote. We started off this morning with a keynote about neuro technology and the premise of this, this keynote, which was presented by a very impressive professor from Duke University. Her premise was that brain data, your thoughts, Tim, are subject to invasion and use by high tech companies, and they need to be protected, much like browsing data. You know, when you're browsing the internet, and then five minutes later, you go to Facebook, Facebook, and you see an ad showing of just what you were looking at. Our thoughts are going to be invaded by big tech and and you it sounded crazy when she when she premise her her talk on this, but then she started going through the tech that exists today, the hardware that exists today that through physical contact with your body, can read brain waves and translate, through the use of AI, those brain waves into images, thoughts, words. I mean, it's essentially like a lie detector test, and it's not like as invasive as Elon Musk's current experiments, you know, putting these wires into people's brains to help them learn how to walk again or speak again. It is as simple as wearing a watch, like an Apple Watch, or wearing a headband, something that looks like a headband. And the implications are pretty staggering in terms of if you think about how big tech has with Google and Facebook used our browsing data and our email data to kind of target us with ads, same thing is going to be happening with brain data. It was, it was fascinating. You know, how, how
Tim Kowal 17:54
robust is the brain data that they can harvest today with the technology available today? It's, it's,
Jeff Lewis 18:02
it's certainly not 100% okay, so they showed some examples of someone who sat in an MRI and heard a podcast, and then they used a combination of llms and AI to translate the brain waves what they read on the MRI to words, and they put it up on the screen during this keynote, and there were some hits and there were some misses, but it was more often right, and the gist was pretty darn right of what somebody was listening to. Yeah, it's fascinating.
Tim Kowal 18:32
And so the topic of the keynote is, is, what the extent to which your brain data is protectable? Is it? Is there a question of whether it's whether it belongs to you and whether other these companies that are harvesting it can use it to their own economic advantage,
Jeff Lewis 18:49
whether governments will act fast enough to enact protections or brain data or privacy rights for your brain data in time Before big tech goes out over its skis and does things they shouldn't
Tim Kowal 19:03
Well, yeah, and I can already anticipate the argument that, you know, the the the future cannot slow down to the pace of these antiquated, you know, rights to to your your ideas. You know the ideas are, are a, you know, are a commons and they should be used for the benefit of all,
Jeff Lewis 19:24
yeah, well, yeah, and, and, let me just say this, not all of it is gloom and doom. She talked about this tech being used for, for example, ADHD kids getting immediate feedback for them and others, such that their brain can literally be rewired based on on feedback from reading their brain scans, and kids who have seizures or people have seizures, getting an alert through brain scans so that they know to take their medication or go or stop driving pull over the car before they have a seizure. So it's not all doom and gloom. Boom, there are some great uses for this technology, or there's some countries right now, I don't think this would ever fly in the US that when you have a criminal defendant, you show him images of something only the murderer would know, only the criminal would know, and based on their brain waves you can see, does that person recognize that image, and does that tell you anything about his guilt?
Tim Kowal 20:22
Yeah, now you implicated the right against self incrimination, yeah, based on the use of this data. Well, very interesting. It gives a you know, we should all have heightened vigilance whenever we get those cookie warnings, you know, because this is just a hyper aggressive version of cookie harvesting. Yeah.
Jeff Lewis 20:43
And you know, there were questions asked at this thing, at this at the speaking event today, saying, Well, look, you don't have to put the Apple Watch on. You don't have to put the headset on. It's all voluntary, right? No one's going to hack you. And that's true to a certain extent. Except, you know, at some point, you know, Apple or meta or whoever, will stop updating the older gadget. That's that, you know, and the only gadget you'll have to keep up with life will be the one that hacks into your brain.
Tim Kowal 21:08
Isn't that the way it happens? Yeah, there's yeah, pretty soon, yeah, yeah. Soon there will be no such thing as a as a non smart watch. They'll all be smart. Yeah. Just a question. Yeah. Okay, yeah, that is, that is concerning. It's, as always, these AI and technology issues emerging emerging tech present exciting possibilities, but also frightening downsides. Yeah,
Jeff Lewis 21:33
so that's you should go next year. Tim, I
Tim Kowal 21:38
want you to sign up. Okay, yeah, I'm gonna plan to to join you in Boston next year. Okay, and you had some non Clio related content you wanted to talk about today? Yeah,
Jeff Lewis 21:49
one quick subject I wanted to talk about, which is a new law that just got enacted within the last few weeks in California. It is AB 1979 the Doxxing victims recourse act. It adds a new section to our Civil Code, Section 1708, dot, 89 and it really fills a gap or a hole that existed in the law about, what do you do if somebody goes on Twitter and Oh, dilute you.
Tim Kowal 22:16
Oh, yeah. Jeff, you, yeah, you just went quiet on us for about three seconds. Hey, you were talking about Wi Fi, yeah, you got, you're dealing with your hotel Wi Fi, and you're talking about the, yeah, this, this doxing victims recourse act that provides a remedy for those who have been the victim of Doxxing, which, as I understand it, let me see from the statute here that I think it's just when someone publicizes your address for the purpose of imminently causing that other person unwanted physical contact, injury or harassment by a third party that include, includes electronic distribution of an image of the other person or other information about that other person that would be likely to incite or produce that unlawful action. So, yeah,
Jeff Lewis 23:01
yeah. So, you know, interesting. I'm sure lawyers are gonna have a field day litigating this in terms of First Amendment vagueness and all that. But look, you know, look, if someone puts a picture of Tim Cole on Twitter with his address that says, kill this guy, clearly, that's a violation of this law, and you could get civil penalties, etc. But what if someone puts a picture of Tim Cole on his address and says, Twitter, do your thing, right? Is that? Is that a violation? Probably not. The edges of this law of what is covered and isn't covered is going to be, I'm sure, the subject of a lot of litigation. But I thought it was notable this new law now exists, yeah,
Tim Kowal 23:38
and it carries civil penalties between $1,500 up to $30,000 and it's got a one way attorney fee shifting for successful plaintiffs,
Jeff Lewis 23:48
right? Nothing for the defendant. You know, usually when you have fee shifting provisions like this, it'll say, Well, if a lawsuit brought bad faith or unreasonably, the defendant can recover fees. Nope. There's not even that. It just says, one way attorney fee shifting.
Tim Kowal 24:01
Okay, well, Jeff, did you catch when section one 1708, dot, 89 is effective?
Jeff Lewis 24:09
Yeah, it was signed in late September, and it's not retroactive, so it's only prospective, but you know, it applies right now, so don't put my name out there on the internet. Tim, okay, well,
Tim Kowal 24:20
and I'm going to, I got to put a Lexus alert in now for Section 1708, dot 89 so I can pick up on, you know, the new cases that are coming out interpreting this, this new statute, and identifying the parameters of when you know what is free speech is Twitter do your thing. Free speech is it just all inferred from the context, whether you are trying to incite unwanted harassing contact with the subject, yeah.
Jeff Lewis 24:47
What if you innocently post something and then, but the internet goes wild and does things that is not foreseeable. Are you responsible? Who knows? Yeah,
Tim Kowal 24:56
yeah. It seems to me like it's probably going to depend on. The extent to which you're putting the person's person, other personal information on there, enough, sufficient to make personal contact beyond mere social media. You think that's a touchstone that if it's, if it's just, you know, Twitter, do your thing in the sense of, you know, shame him send nasty Twitter messages. Well, that's probably First Amendment. But if it's go to the person's house, or here's another way to find this person on other avenues, then you're starting to stretch reach into this harassing contact area. Okay? Well, another one to watch, all right. Well, Jeff, thank you for those dispatches. As always, we're we're interesting to see what emerging tech is going to be, is going to be affecting us? It's so how is this how's this tech going to be supporting our practice, and how is it going to be maybe working against us or creating some unwanted problems? But as always, we need to know what's coming so we can know how to use it or avoid it.
Jeff Lewis 26:00
That's right. That's right. So I guess that wraps up this episode. Yeah. And
Tim Kowal 26:05
if you have suggestions for future episodes, as always, email us at info, at Cal podcast.com in our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial. See you next time
Announcer 26:18
you have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes visit the California appellate law podcast website at Cal podcast.com that's C A L podcast.com thanks to Jonathan Cara for our intro music. Thank you for listening, and please join us again. You
