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Top Lawyers 2013: Richard Herrmann, E-Discovery-Technology Law

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Photographed at Widener University School of Law, Delaware campus (special thanks to Mary Allen)

What’s at stake when an attorney carelessly forwards a confidential email to the wrong person—or everyone on a copy list? What happens when an attorney is overheard speaking about a firms’ private affairs on his cell phone in public? Sometimes a sanction by the court. Sometimes millions of dollars in the settlement of a legal malpractice suit. That’s where Richard Herrmann comes in. As co-chair of the Commission of Online Technology, an arm of the Delaware Supreme Court, it is his task to build competence in technology among members of the bar association in part by educating them about best practices. That means, for example, making lawyers aware of the dangers of working over an unsecured network at a coffee shop or making them aware of the liabilities of working on their personal computers. “This is the most rapidly growing body of law I’ve seen in my career,” says Herrmann, who has practiced for nearly 40 years. Herrmann started his career in patent and intellectual property law. He became directly involved in technology in the late 1970s, when he sued a software outfit that was marketing an application to track billing for law firms—including his own—for failing to back up its product. That led him to lecturing about billing systems for mighty IBM. A few years later, Herrmann was lecturing about the use of technology at Widener University School of Law until, in 1993, he was teaching courses in it. In 2003 Widener became the first law school in the country to teach e-discovery at about the same time a judge in New York issued a series of opinions that became the foundation of e-discovery law. “It’s been one of the big tangents in the legal industry,” Herrmann says. Herrmann has also taught about the use of technology in the courtroom, where, for example, computer simulation can help the jury in a patent infringement case understand complex devices, and he teaches about practices such as teleconferencing to depose witnesses remotely. That puts him, and Delaware, at the fore of technology in the law. After the American Bar Association amended its ethics rules in April to identify the importance of competent use of technology, Delaware became the first state to amend its rules. Now other states are watching us, Herrmann says. “The next 10 years will be about ethics and privacy.” Having a small community of lawyers and a forward-thinking bench that is highly adept at handling technology “makes it easy to keep Delaware ahead of the curve,” Herrmann says. “We were the first to have electronic filing in the world. We are watched by courts everywhere.”


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