Damien Riehl

Even lawyers don’t generate as much paper as they used to.

That doesn’t mean our tendency to use too many words has diminished. It simply means that nearly everything we write and read is now done electronically. From e‑mail to advocacy, we write in an electronic age, and many of our words are never reduced to paper. The Clerk of one federal court of appeals estimates, for example, that 70% of that court’s judges read briefs on screens, not paper. And screen reading can be very… Show more

Even lawyers don’t generate as much paper as they used to.

That doesn’t mean our tendency to use too many words has diminished. It simply means that nearly everything we write and read is now done electronically. From e‑mail to advocacy, we write in an electronic age, and many of our words are never reduced to paper. The Clerk of one federal court of appeals estimates, for example, that 70% of that court’s judges read briefs on screens, not paper. And screen reading can be very different than paper reading, triggering disparate cognitive processes. Put simply: paper readers and screen readers read differently. As such, writers who empathize with their readers should consider adapting. Show less

Co-authored chapter on appellate briefs and appendices, including requirements, best practices, and suggestions for drafting briefs -- particularly for judges who are more-frequently reading on screens.

Stories of technological authoritarianism are timeless: in 1984 and Brave New World, George Orwell and Aldous Huxley created dystopian visions filled with fanciful surveillance mechanisms meant to strike terror into the hearts of their mid-century readers. In those novels, citizens could be continuously monitored — logging even fleeting utterances in perpetuity. The good news: this bleak dystopia has finally arrived — just 30 years after Orwell predicted. But its arrival is accompanied by… Show more

Stories of technological authoritarianism are timeless: in 1984 and Brave New World, George Orwell and Aldous Huxley created dystopian visions filled with fanciful surveillance mechanisms meant to strike terror into the hearts of their mid-century readers. In those novels, citizens could be continuously monitored — logging even fleeting utterances in perpetuity. The good news: this bleak dystopia has finally arrived — just 30 years after Orwell predicted. But its arrival is accompanied by something that Orwell and Huxley probably did not anticipate: people welcome it. We love our sensors, and we use them every day — voluntarily and happily. Even more, we pay a collective fortune for these expensive tracking devices. We've adopted them because the gadgets promise to make our lives easier. And they do. In the process, though, they also bring many legal issues that require resolution Show less

Cautionary tales have long served humanity — allowing us to view others’ tragedy or misfortune with an eye toward our own self-improvement. We often repeat cautionary tales with some mixture of the following: sympathy, our belief that we wouldn't have made the same mistake, worry that we might, and personal resolve not to repeat those errors. All those feelings may have crossed the minds of lawyers who heard the story of a missed deadline — related to electronic service — that might cost their… Show more

Cautionary tales have long served humanity — allowing us to view others’ tragedy or misfortune with an eye toward our own self-improvement. We often repeat cautionary tales with some mixture of the following: sympathy, our belief that we wouldn't have made the same mistake, worry that we might, and personal resolve not to repeat those errors. All those feelings may have crossed the minds of lawyers who heard the story of a missed deadline — related to electronic service — that might cost their client $40 million. If your heart has ever dropped, fearing that you might have blown a deadline, read on. Show less

Litigators often lose sleep worrying about some misstep that will ultimately sink their case. Most cautious lawyers subscribe to Murphy’s (non-legal) Law: “Anything that can go wrong will go wrong.” A litigator’s version might be something like this: “If I don’t include the kitchen sink, then what I don’t say can and will be held against me by a court of law.”

Litigation’s uncertainties, coupled with notions of zealous representation, make this approach understandable. But for some… Show more

Litigators often lose sleep worrying about some misstep that will ultimately sink their case. Most cautious lawyers subscribe to Murphy’s (non-legal) Law: “Anything that can go wrong will go wrong.” A litigator’s version might be something like this: “If I don’t include the kitchen sink, then what I don’t say can and will be held against me by a court of law.”

Litigation’s uncertainties, coupled with notions of zealous representation, make this approach understandable. But for some appellate issues, those sleepless nights and the kitchen sink might be less prominent if you know where to look for help.

While statements of the case (also known as "appeal information statements," "case information statements," "civil appeal statements") are not to be taken lightly, the anxious litigator may take some comfort in the fact that most state and federal appellate courts will likely reject any attempt to bind parties to the docketing statements’ stated list of issues. Show less

As more judges read briefs and supporting materials on tablets, not paper, lawyers should reconsider how they construct documents. Importantly, when readers consume text through pixels on screens, the process is much different than reading on ink and paper. As such, lawyers would do well to adhere to some of the best practices discussed in this article.

The first sale doctrine permits those who own physical copies of songs, movies, and books to transfer that ownership to someone else — but it has no direct counterpart in the digital realm (i.e., downloaded songs, movies, and e-books). This article discusses the potential for a digital version of the first-sale doctrine. As society’s digital appetite increases, we should consider how those purchases are treated: as “ownership” or as a “lifetime lease.” This article discusses the first sale… Show more

The first sale doctrine permits those who own physical copies of songs, movies, and books to transfer that ownership to someone else — but it has no direct counterpart in the digital realm (i.e., downloaded songs, movies, and e-books). This article discusses the potential for a digital version of the first-sale doctrine. As society’s digital appetite increases, we should consider how those purchases are treated: as “ownership” or as a “lifetime lease.” This article discusses the first sale doctrine’s history, the potential for a digital first-sale doctrine, and the effect that licenses and subscription services may have on such as doctrine’s development. Show less

This article discusses how digital property (e.g., social media, gaming currency, e-mail accounts, photographs, videos, music) might be managed during the account holders’ lives. Upon the account holders’ deaths, what should happen to it? How should it be maintained? How should it be distributed? The article begins by defining digital property and discussing why it must be managed. The article then discusses how digital property affects powers of attorney, conservatorships, probate… Show more

This article discusses how digital property (e.g., social media, gaming currency, e-mail accounts, photographs, videos, music) might be managed during the account holders’ lives. Upon the account holders’ deaths, what should happen to it? How should it be maintained? How should it be distributed? The article begins by defining digital property and discussing why it must be managed. The article then discusses how digital property affects powers of attorney, conservatorships, probate administration, and trusts. After illustrating the problems that digital property creates for each fiduciary, the article shifts to resolving these problems. It begins by debunking purported solutions by both private and governmental entities. It concludes by offering a holistic approach to resolving the conflicts facing account holders, fiduciaries, and service providers and providing the level of security sought in fiduciary property management, as well as a best-practices approach in the interim to a complete solution. Show less

This article discusses some challenges involved with electronic discovery and digital forensics arising from cloud computing infrastructure as a service, detailing how the nature of cloud computing challenges the process and product of electronic discovery.

This article, which was published when the Napster was still awaiting a Ninth Circuit decision that would ultimately seal its fate, discusses how peer-to-peer sharing makes it difficult to enforce copyright, identify defendants, and determine jurisdiction. While Napster did not last much longer, courts today continue to consider and develop law on the other issues.