Top of Mind

TOP OF MIND with Friedman, Oster & Tejtel

EGCR’s Director of Media Content, Jenn Grauer, and Production Specialist, Caroline Sprance, sat down with David Tejtel and Jeremy Friedman of Friedman, Oster & Tejtel, a firm founded in 2014 that “specializes in high stakes, sophisticated business litigation in federal and state courts.” Today’s Top of Mind topic is smoking gun evidence and how the location and access to substantive information is changing based on new modes of technology.

JG: For anyone who isn’t familiar with the term “smoking gun evidence,” can you please explain what that actually means?

DT: Yes. Smoking gun evidence translates to compelling, persuasive evidence of case-critical facts.

JG: With today’s advanced technology, global communication has evolved at an exponential pace. Emails, IMs, hand held devices, text messaging and countless other digital advancements have changed the way people are able to communicate and store information electronically. How is this shifting the location and accessibility of smoking gun evidence?

DT: It’s a very interesting question because defendants never volunteer evidence of their misconduct. So whether you’re a regulator, a prosecutor, or a plaintiff’s attorney, it’s your job to locate the evidence that actually proves the wrongdoing. Before, most communication took place over the telephone or in written documents. When email first emerged, it didn’t occur to most people that those emails could be discoverable and used as evidence against them. Eventually, people started deleting their emails, thinking they were eliminating potentially incriminating evidence, but technology soon caught up and allowed for deleted material to be recovered.

Smart corporate counsel then started advising their clients to be careful about what they wrote in emails. For whatever reason, a significant number of people didn’t realize that those same rules and risks also applied to instant messages. As a result, critical evidence began arising from that type of communication technology. People eventually started to understand that anything they typed into their computer could be recovered through forensic analysis no matter how many times, or ways, it was deleted. But interestingly, the lessons learned in the office didn’t seem to apply outside that professional environment. People were more apt to say something incriminating when writing an email or a text on the street or in a bar on their hand-held device, for example, creating a new refuge for smoking gun evidence.

CS: Do you find that it’s difficult to harvest that evidence? You know it’s there, you know it exists, but how are you accessing it?

DT: The only way to access information in someone’s phone is to either have them agree to it, which they are unlikely to do, or have the court order them to hand it over. You need the court’s buy-in, which is an interesting point because courts aren’t always quick to recognize shifts in communication technology and the resulting need to broaden the scope of discovery. It’s imperative that the courts understand this and say, for example, Well, now not only do you get to look at these emails, you should also get to look at text messages.

The other question is from a technological perspective: does access to someone’s phone or to printouts of their existing texts give you the information that you actually need? The answer is, not always.

JG: Can you give us an example?

DT: Sure. In a recent case, an individual had sent text messages that we knew were important evidence. We insisted that the individual produce their text messages and luckily the court agreed. We got the text printouts and it seemed like something had been deleted. The question was how could we convince the court to grant us broader access to what might be in there? We saw one text message that seemed to be responding to a text that wasn’t in the printout, and we used that as our hook for a deeper investigation. The court enlisted a neutral expert, and the expert went into the phone and retrieved numerous important deleted text messages. This could only happen because two things occurred: first, and critically, the court allowed it to happen; and second, technology has reached a point where you can resurrect deleted information.

JF: We had another situation where we knew an individual had sent really damaging text messages, but we couldn’t access them. Mobile companies frequently offer technology upgrades, and the individual no longer had the phone with those damaging text messages.

JG: How have you found that the courts are responding? Are they aware of the urgency and time-sensitive nature of these situations?

DT: Generally, they are responding rationally. When a plaintiff or defendant requests access to information, the court has a duty to balance the likelihood that the request will lead to admissible and important evidence on the one hand, and a person’s right to privacy on the other. The court needs to constantly be thinking about this. Access to emails and IMs is now fairly ubiquitous. We’re now starting to see a greater judicial willingness to allow access to discovery of text messages. Would we like to see even greater access? Absolutely. Would we like to see it happening faster? Absolutely. We need the courts to adapt very quickly or else the litigants will fall behind in the struggle to prove their case.

CS: I can imagine timing is key in these matters.

DT: Yes, this is all the more reason why it’s important that the courts act quickly, or even create a presumption that access to phones and text messages is allowed. It’s sort of reminiscent of a quote from Alice in Wonderland, “Here we must run as fast as we can just to stay in place.” The defendants will always have the upper hand because they know what to say and what not to say, and they know where the evidence is and isn’t. I’m not suggesting that they intentionally destroy evidence, but they always have the upper hand. We need to be running as fast as we can just to keep up and that means identifying how people are communicating, where they are putting the important information, convincing the court that we should have access, and also figuring out the technological means to actually extract the information that we need.

JF: And this will only be getting more complicated as new forms of communications emerge where messages auto-delete after a minute or two. At that point, we’ll have to figure out how to retrieve even that information. So while technology evolves, we also need to evolve our techniques of uncovering evidence.

JG: What is your firm doing to stay on top of new developments around technology?

DT: One advantage is that generally, the decision makers in these corporations are not the 19-year olds living in Brooklyn and communicating through WhatsApp or whatever the latest app is. We usually have time to identify and understand emerging technology before it filters its way up to the older generations, at which point it becomes highly relevant to our cases. But generally, it’s just a matter of trying to stay current with new technology, and certainly communication technology.

JF: The flip-side in our cases is that occasionally the relevant parties include junior or midlevel analysts who actually could be in their twenties and using cutting-edge technology.

DT: The next few years will be interesting. Many social media platforms historically were, and still are, focused on how to broadcast yourself. I predict that technology will start moving in a different direction where people start asking: “How do I close myself off? How do I hide myself? How do I delete information?” There’s no obligation before a case is filed for corporate defendants to retain all of their electronically stored information. On any given day, a defendant not subject to pending litigation can erase his email. He is free to push a button on a new app that deletes everything on his phone. It’s very important that we stay abreast of technology like this that can make it easy for people to potentially hide important information.

JG: Very compelling considerations. We’ll definitely check back with you next year to see what else has developed in regard to smoking gun evidence. Thank You.



TOP OF MIND with PRYOR CASHMAN

In a Pryor Cashman conference room, 40 floors above the bustle of Times Square, Ellen Grauer and Ellen Grauer Court Reporting’s Director of New Business and Media Content, Jenn Grauer, sat down with Philip Hoffman, one of Ellen’s most loyal clients.  They met in 1996 when Ellen requested a meeting and brought Phil his transcript on the latest technology at the time, an ASCII disk.  A veteran trial lawyer with over three decades litigating high profile cases across industries, Phil was joined by Michael Mellor; Head of Marketing, and Christine DiCrocco; Communications Specialist at Pryor Cashman to discuss how social media and new technology are changing the way attorneys practice law. 

JG: Marketing has become such a big part of Pryor Cashman’s culture.  What are some of the changes you’ve seen that have impacted the firm?

PH:  When we first started marketing in 2004, our website looked like a postage stamp.  In 2007, we revamped the entire website and came up with a marketing tool that we were all very proud of.  In October 2015, when our new marketing group came in, all of our marketing activities were taken to a new level beyond anything we ever had before.

I work closely with the marketing team and am privy to the influx of emails that have poured in since we developed our new initiatives.  People are doing the marketing here like they’ve never done it before.  There is a stream of traffic from attorneys realizing what we’ve got and how to use it.  It’s really expanded the way we work and connect.

We’re actually doing on-campus interviews now for law schools for next summer.  I’m learning that people are talking to our interviewers about materials they received from Pryor Cashman, which drove them to our website.  We’ve never had marketing involved like they are now, raising the interest and engagement of potential hires. 

JG: “We are creators, supporters, protectors, and connectors.  We see the world beyond law.”  This is Pryor Cashman’s motto on the website.  As the landscape of media evolves and our culture is more connected than ever, what is the firm doing on its marketing end to carry out this belief?

MM:  As far as social media, it’s really about developing a unique selling proposition and perpetuating our message through every channel.  We recently won the Venture Capital 2:1 ranking nationally for working with smaller organizations through out their life cycle; everything from their formation to licensing to litigation.  Everything we do is embraced in our motto, whether that’s through on-campus interviews, recruiting, or our relationships with media.

JG: Tell us about some of Pryor Cashman’s marketing initiatives and social media best practices.

MM: Doing the homework to understand what people are responding to is really important to us – making sure there’s social listening imbedded within what we’re doing, having a human voice, asking questions like “what’s driving engagement,” and doing A/B testing.  We’ve changed our tone to see what works, and we’re using software like Buffer to figure out best timing for when people are reading and responding to particular tweets.  We’re doing one to two LinkedIn posts a day because that’s what the science is telling us.  We’re doing four to five tweets a day, scheduled at different times, testing that, trying not to overburden people, and also realizing where our company sits as a law firm. 

We’re up 400% in @PryorCashman twitter impressions in 6 months, 40% in twitter followers, 26% in LinkedIn followers, 50% in profile views. So we’re listening to what people are telling us and tweeting accordingly.  Again, its about process and consistency.

PH: What’s amazing with these numbers is you might just think off-hand, “well that’s because of the people we represent.”  But for the most part, those people don’t allow us to post anything about them.  We win these cases for *******, for example, and it’s all over the press, but we can’t report it. 

We’re also starting to post all the different social events at Pryor Cashman. All that gets reported now, which is great to show internally because people take pride in how the firm is engaging.

CD: Our attorneys are active in so many speaking engagements and noteworthy organizations.  This is a big part of what we like to talk about through our marketing channels.  It’s a great platform to expand our audience.

EG:  Do you find that the older attorneys, who might not be tweeting on their own behalf, are getting a feel for this? Are you able to train them?

MM:  That’s a great question and will be the biggest game changer.  Employee advocacy is a high priority for us.  If you can get 80 of your attorneys on board, the magnifying effect is amazing.  We can’t enterprise and push out our agenda, so we engage the attorneys individually.  We set up times to help people with their LinkedIn profiles to teach them how to mine business development and understand the benefits. We’re a small organization, so reporting little victories goes a long way.  We’re starting to get more people picking up the phone and reaching out to us.

JG:  It sounds like your initiatives and strategies have helped build further comradery within the firm and also higher visibility in the public eye.

MM: That’s the hope – it’s contagious.  People see a process that works and they trust it.

JG: I read about one of Pryor Cashman’s newest partners, Thomas Vidal, in a recent article the firm posted on LinkedIn.  It looks like he’s really harnessing his background as a software developer to put some very innovative systems in place at the firm.  How else is the firm using digital solutions to further their practices?

 MM: There’s a lot of information sharing at Pryor Cashman when it comes to innovative ideas – we have the ability to move really quickly without bureaucracy.  It’s a culture where a lot happens organically.  We’re able to be at the forefront and really adapt to new technologies.

PH: Before it would take six hours to process all the paperwork when filing an appeal.  Now you can go onto the court website, download every document and shoot it directly.  That time-consuming process now takes me 15 minutes. 

The firm also just put in a new document management system called iManage.  I’ve always prided myself on being organized, so I was hesitant about what would happen to all my folders. I went and coded all my documents, and now this system automatically puts your documents into folders and stores all your emails.  So it’s making the disorganized more organized, and someone like me, I’m off the charts now! [Laughs] I think that’s going to have a real impact on our time and the way we practice law.  The whole way we work is changing. 

@PryorCashman
https://www.pryorcashman.com
https://www.facebook.com/PryorCashmanLLP

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Ellen Grauer, Philip Hoffman, Michael Mellor, Christine DiCrocco

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Jenn Grauer, Philip Hoffman, Christine DiCrocco, Michael Mellor


One Woman’s Journey Back to Herself

From East Los Angeles to a small Mormon town in Utah to the tango stages of New York City through the solitary trails of El Camino, Shauna Hankoff, EGCR’s Senior Account Executive, is a fascinating woman who has certainly danced the dance, walked the walk, and talked the talk. 

In a recent interview, before temporarily relocating to Paris, we talked about the lost art of seduction, her career transitions, and the unconventional, often challenging, path she has taken to ultimately reclaim her freedom.

Shauna started her formal dance training in junior high and went on to study ballet at the University of Utah, the only school west of the Mississippi that offered a ballet major.  Because her technique was not considered strong enough, she moved to New York to study classical Spanish dance at the encouragement of her teacher, the dance director for the Vienna Opera Ballet.  One step led to another, and soon she was studying and dancing Flamenco with Sol y Sombra, The American Spanish Dance Company of Andrea del Conte, and Jose Molina in various clubs and private parties through out New York.

Having always had a knack for sewing, Shauna started repairing costumes for dancers, including her teacher Mariquita Flores, a talent that led to her making costumes for the Ballet de Monte Carlo de Troquedero, Flamenco Vivo Carloto Santana, and the American Spanish Dance Company.  Her costumes sold for $250 and skirts for $125 a piece; no small feat in the 1970s.

Divorced with 2 kids at the time, she knew she could not sustain her career and support her family.  Up to her ears in ruffles one day, her then-boyfriend suggested she interview at a friend’s court reporting agency.  She put on the only suit she had, got the job, and the rest was history. “It was all or nothing,” she said.  She stopped dancing and began selling court reporting.  That was 25 years ago.

Though not the most obvious career transition, Shauna brought her grace and tact as a dancer to her position in sales.  “Sales is a form of dance as well.  It’s about building trust, developing relationships, and knowing which steps to take.  That’s why I felt sales was the perfect next move in my career.”

Two years ago, while at Ellen Grauer Court Reporting, she attended a show in the East village where an old friend of hers was performing.  Serendipitously, a singer and a musician friend she had known from her past were there as well. After the show, they went out for a drink to catch up.  “We’re your family, you’re coming home,” they told her.  So began her re-entry into dancing flamenco, and then tango.

“I’m a person who requires a lot of physical activity, so tango is nice because I can find a “milonga” and go dancing any night of the week.  You just show up and dance with whoever is there.”  Milongas are Argentine tango parties known to start late and go all night, often until 5am. 

The route of Santiago de Compostela, where Shauna has returned twice in the past two years, is the site of Le Puy, the classic starting point in France that ends in the northwest corner of Spain.  El Camino, as the walk is known, was a pilgrimage in the Middle Ages that served as a spiritual journey for absolution from sins, punishment for crimes committed, crimes for state, and a route by which news traveled.  Known for its harsh conditions, there was no guarantee of survival.  Wealthy people followed the trail on horseback, others traversed on foot.  Today, the trail is walked by travelers looking to reconnect with the spiritual resonance of the land.  Though a series of synchronistic encounters, her last pilgrimage marked a turning point when she decided to start planning her move to Paris.

“I knew that someday I would move there.  I had this sort of fantasy that I would dance tango on the Seine. Dancing is a commonality that crosses barriers.  It’s not about the venue, it’s about the art.” 

Shauna relocated to Paris at the end of May, where she continues working as an Account Executive and cultural correspondent for Ellen Grauer Court Reporting. 

“I don’t have anyone to please.  I am who I am, and that enables me to walk into a “milonga” and know that somebody’s going to ask me to dance, and I don’t care who it is,” she says. “The old me would have been fearful.  My life is my own now. It’s a revelation.”

Shauna Paris Shauna flamenca 

Shauna Hankoff, EGCR’s Senior Account Executive and Cultural Correspondent