Embracing Technology & the Future of Family Law

Noted family lawyer Randy Kessler discusses embracing technology as a crucial strategy as the business and practice of family law evolves.

You can read the video transcript here.

The benefits of a Smart Phone

Here is a blog entry I was asked to write by LinkedIn. It was published there earlier this week:

I consider myself an early adopter. It is fun to try new things, to explore, and it keeps me in the know. Years ago, no one had websites. Then they began gaining in popularity, but lawyers are typically late adopters. When I set up my first one, apparently only eight lawyers in Georgia had them. The way I figured, if Coca-Cola, IBM and Delta had websites, and they were real companies, I wanted to be a real company too.

Then one day I was in court and opposing counsel and I were discussing dates for depositions (this was back in the 1990’s). He whipped out a device and told me what dates he had available. I was amazed since I had to call my secretary to go into my office to look at my paper calendar to perform the same task.

I had to get one, so I did — my first Palm Pilot. Thus began my path of using smart devices, hand held devices, to save time and create efficiency.

For a lawyer who bills by the hour, the time I can save on logistics (like setting dates for depositions), creates more time I can spend on what’s important for my clients, like researching the law (which I now often do on my smartphone), reading their file and talking to them.

Then of course the Palm Pilot evolved: Instead of just being a device which had to be carried in my “man purse” together with my cell phone, car keys and wallet, it morphed into a combination cellphone and PIM (Personal Information Manager).

Then it got smaller, eventually becoming a clamshell phone (us “old” folks remember those days). And we no longer had to manually connect it to our desktop to get email or to send email from or on our Palm phone. We just pushed a button on the phone whenever we wanted it to send and receive our email.

Then, a new era dawned: the Blackberry. It did everything Palm did, but better and quicker. And those got smaller and sleeker, until one day, my law partner (younger by 10 years and instrumental in keeping me moving forward with technology) said he was switching over to the new iPhone and so was I. I thought I had been through enough change and what could be so great? Well he was right and again I moved forward with the first version of the iPhone and have purchased each new edition the day they arrived to market (and iPads, Mini too).

Whether it’s an iPhone, Samsung or whatever, a smartphone, to me, is invaluable. In fact, I carry two (on different cellular networks in case of a network issue, dropped calls or a phone failure). It is what keeps me connected at all times, especially with my often hectic travel schedule.

So why is this device so important to me that it outweighs all other things I could carry with me? Because it is not one “thing”, it is a thousand. For anyone reading this, you are apparently already very technology literate and very likely reading this on a smartphone. So how is it a thousand things?

It is a newspaper. I read my Atlanta Journal Constitution, the Associated Press, WSJ and NYT on my phone each morning. No need to walk up the driveway, the whole paper is in my hand. Of course I still check emails and write emails on my phone. Like many of us, even when sitting at our desktop, I often simply pick up my phone and check my emails on it so I do not have to switch windows (I know, I could have two monitors at work, but I don’t).

But more than the basics of email and news, my phone is connected, so I am connected. All of our client files are in the cloud, so they are available on my iPhone. So many ancient tools are subsumed into this device that it is really something we could not have imagined twenty years ago. It has replaced so much, a Rolodex or little black book, a camera, a video camera, a video phone, a pager (texting does the same thing, just better), a mirror, a copy machine (yes, think about it, taking a photo of a document is all your copy machine does), a file cabinet, a photo album, a translator (try Google translate and you can speak any language), a map, a navigation/gps device, a dictionary, a thesaurus, a tape recorder, a flashlight, restaurant menus, a “Walkman” (portable music player), a radio, a TV (yes, you can watch live TV), a bible (can be saved on your device), the U.S. Constitution, a laptop for playing powerpoint programs (try SlideShark or others to play your powerpoint programs to a projector), a remote control for your TV, your AC, your home security system or even to start your car, thus replacing car keys.

And soon smartphones will replace your entire wallet or purse. Credit card payments can now be made (or received) via smart phone, so no need to carry a credit card. Driver’s licenses and eventually passports will all be on your Smartphone, leaving you nothing to carry.

And to continue, a Smartphone can also be a VCR, a DVR, a weather radio, an emergency roadside flare, a magnifying glass, a security camera, a TV guide, a portable DVD player, games for your kids, a chessboard, checkers, video arcade games, bowling, golfing, a diary and so much more. The list is as endless as the human imagination.

Then there’s social media. The need for instant connection. What better way to facilitate it than a hand held device? If social media is what allows us to stay connected to friends, business colleagues or leaders in our field, smartphones are what give us instant access to social media. We take a photo and post it or read an article and share it, and we have socialized, we have networked, instantly. We can debate all day long whether this need for instant and constant interaction is healthy, but it is certainly human.

I certainly have written much more than originally intended, but it is clear to me, there is one thing I carry that is much more important than anything else, in fact it is a thousand things. My smartphone has consolidated my life.

Of course, we need more self-discipline to put it down to play with our kids, to interact with the ones we love and to be a part of the real, not just the virtual world. But it certainly has made things easier for me.

So now I’ll hit “save” on my smartphone and conclude this entry, and look forward to your comments and thoughts.

Social Media Implications in Family Law Cases

The landscape of evidentiary tools available in today’s divorce cases is rapidly evolving, and the courts in this country are becoming more openly accepting of them. With the advent of social tools like Facebook and Twitter, incriminating evidence has never been easier to obtain. You now must be extremely mindful and filter the information and pictures that are posted to your profile page, because such evidence can be used against you and possibly deal a devastating blow to your divorce and/or custody case.

One recent example of a court ruling in favor of full disclosure of social media profiles comes out of a personal injury lawsuit in Pennsylvania, Zimmerman v. Weis Markets, 2011 Pa. Dist. & Cnty. Dec. LEXIS 187. The employer being sued filed a motion to compel disclosure and preservation of the employee’s Facebook and Myspace information on the non-public portions of the websites, which would require disclosure of user names and passwords to the employer. The basis for the employer’s motion and the rationale for the court’s ruling was that because there was evidence contrary to the employee’s claim available on the publicly accessible portions of the websites, it was reasonably likely for there to be other relevant information to the claim on the non-public portions of the pages.

The court granted the motion, reasoning that “no privilege exists for information posted in the non-public sections of social websites, liberal discovery is generally allowable, and the pursuit of truth as to alleged claims is a paramount ideal.” The court agreed that allowing a party to a lawsuit to hide behind privacy controls on a website which enables people to share social information risks depriving the opposite party of access to relevant material and a fair trial. The court also held that such a ruling does not violate any fourth amendment rights, which protects people, not places; further, there is no reasonable expectation to privacy on a social website, and privacy concerns are far less where the objector voluntarily disclosed the information. The court strongly closed their opinion, stating that “any relevant, non-privileged information about one’s life that is shared with others and can be gleaned by defendants from the internet is fair game in today’s society”.

The rationale adopted in this case is yet another example of how litigants should be extremely careful when navigating through social media.   Remember, once you post something, it is extremely likely, if not certain, that such information will be used against you in a family law case.

Thanks for the opportunity.

I am now a few months into my year as Chair of the American Bar Association’s Family Law Section. Wow, it goes fast. There seem to be fires to put out every week (or every day), but we have great staff at the ABA that really make things easier. There are budget concerns, planning of Continuing Legal Education Events, policy issues and the like. But most of all, there is a sense of responsibility that our group, our Family Law Section has a responsibility; a responsibilty to help. There are issues with military family law matters that we are addressing as well international custody issues (which will be discussed heavily at our Annual Fall Meeting in Las Vegas in two weeks; to see a link to the brochure, click here).

I said in my first Chair’s Column in the Family Advocate and in my speech as I became Chair, that I want to help everyone: lawyers, clients and others, understand the family law process better (chairs column1). Knowledge is power and we should all be as knowledgable as we can about the laws that so vitally affect families, especially children. I look forward to the seminar in two weeks and to making this and future years great and helpful to all lawyers and people, and especially to those dedicated to the field of family law and to helping those with family law problems.

New DNA Testing Claims Paternity Can Be Determined ASAP

For years DNA testing could reveal the paternity of a child after birth. Then came pre-birth testing. Now comes DNA testing in the twelfth week of pregnancy. This is a game changer. Read the story by clicking here.

Conceivably now, a couple could learn the paternity of their child in the first trimester of pregnancy, when termination of the pregnancy is legal in most places. Just think of the issues this raises. If the pregnancy is the result of an extra marital, or extra relational encounter, does this make it more likely that a pregnancy will be terminated? What if technology and science progress to the point where paternity can be established “the morning after” or at one month of pregnancy?

And perhaps the ability to know who the father is, so early on, will encourage more mothers-to-be to tell their partner that there may be doubt about the paternity of their expected child. Or at least the mother-to-be could get a test with her paramour and hopefully exclude him as the father early on, thereby perhaps saving her relationship with her husband or significant other?

This new technology, if accurate, could change many lives and many relationships. Some say ignorance is bliss. This may be one such occasion?

Facebook and Divorce discussed in WSJ

The Wall Street Journal had an interesting piece about Facebook and Divorce today. It was written by Carl Bialik, “The Numbers Guy” (click here for a link to his blog and to the article). Feel free to read the article, which focuses on the issue, but it really just scratches the surface. Facebook cannot “cause” a divorce any more than a plane can “cause” a crash. People initiate, respond and act. Facebook may facilitate things. Facebook may create introductions, or re-introductions to former friends (or to friends of friends). But human beings are the actors, not Facebook.

Yes, as divorce lawyers we see Facebook arise in all sorts of ways. It sometimes provides a vehicle to gather evidence (photos of a spouse kissing a paramour or vacationing in Florida while the other spouse thinks they are in Boise?). But even before Facebook, the internet did the same thing, but perhaps not so easily. There were emails, Chat Rooms, Dating Sites and even “Histories” (a list of recent websites visited by a computer user). But as a divorce lawyer who has practiced family law since before the Internet, I don’t think human nature has changed, or been changed by Facebook. Human beings seek happiness. Sometimes they find it in a good book or movie. Sometimes in alcohol, sometimes in a lover, and hopefully, in the best case scenario, they simply find happiness in themselves and their loved ones.

No, Facebook doesn’t “cause” divorce. But can it provide opportunities, connections and introductions? Sure. But so can other avenues. The difference is that Facebook feels safe, innocent. Typing from your home is much easier and less aggressive than going out to meet people, especially if the intent is to meet someone to be unfaithful with.

Cheaters will find a way to cheat, Facebook or no Facebook. But there are folks who may not otherwise cheat. Perhaps they didn’t have the courage to flirt? Perhaps they had no way to meet people (they may live in a remote area)? Perhaps they are just shy? Facebook (and really the internet) eliminates these obstacles.

So what can be done? Nothing. It is really the same dilemma that has been around fory ears. Do spouses trust each other? In the past it may have been do you trust your spouse to work late, especially if there is someone at work to whom he or she may be attracted? It all comes down to love and fidelity. Some people just have it. And they are the lucky ones.

Technology and Family Law

Today I served as Co-Chair for the Institute of Continuing Legal Education’s Georgia Technology Seminar (click here for a link to the program agenda). Steve Best, the Co-Chair really did all the work. He put the program together and invited the speakers, etc. So what did I do? I learned. I spoke a little on how technology is useful in a family law practice, but mainly, I learned. Chairing, speaking at or even simply attending continuing legal education seminars always offers a chance to learn and improve.

I learned that I should blog more often. I learned that we are really just in the beginning stages of understanding how much technology can improve our law practices, and more importantly, our lives.

It was also a time to reflect. I have chaired this program for about ten years. When I was first involved, many attendees did not have email and most did not have a website. How far we have come!

It seems much of the focus of the program was on remote computing, in addition to good law office management. Remote computing! What a concept. Computing as a concept is not new. But working on your primary computer, from any location? That is amazing, and common today. Today lawyers can really focus on what they do best, advise. They need not wait for a letter to come in the mail, or even by facsimile. They know what their clients want, not just because of cell phones, email and texting, but also because voice mail allows a client to let the lawyer hear the tone of their voice (and how desparate they may be).

The tips included how to talk into your cell phone and then receive an MSWord version of the document you dictated to your phone five minutes ago. Or how to translate, by simply speaking to your phone, and having it repeat it back, in another language! The materials for the program are probably still available, but if you missed it, come next year. And in April the big version is in Chicago, the ABA Techshow (click here for a link to the website for the ABA TEchshow). That is one really worth attending.

I can’t wait to see what next year’s program brings. As my grandfather used to say “I was born too early”.

International child related issues on the rise.

As the Chair Elect of the ABA’s Family Law Section, I have made it clear that one of my priorities will be to focus on international custody issues. Given the many widely reported cases of international kidnapping and custody battles, such as the Goldman case, it seems we must focus more on these situations to protect all children.

But now there are much more complex issues relating to children across the globe which go beyond mere custody battles. Issues such as surrogacy and adoption. What if one country’s laws do not allow for a certain type of adoption or a certain type of articifial insemination? There are now ways to work around laws in one country by using another country as a vehicle for certain procedures. And this can be dangerous.

A recent Wall Street Journal article entitled “Assembling the Global Baby” discussed these issues in fine detail (click here for a link to the story). There are American companies orchestrating surrogacy and reproductive technology across the globe. While the term “orchestrating” may sound negative, that was not my intent. My intent was to demonstrate the internationalization of child related issues. What body or organization will set the rules? Is this something for the United Nations to look at? Conferences like The Hague will certainly look at these issues, but then a country’s willingness to sign a treaty is purely voluntary.

This internationalization of child birth, adoption and reproduction may be a very good thing. It seems very well intended. The problem is with the unintended consequences. When things go wrong, who is accountable? Which country’s laws apply? Is it more important where the birth occurs, where the semen was taken, where the parties live or which country the egg came from? These are fascinating issues that we must consider before they overwhelm us. I have no idea where we go from here, but I am sure that we need to start asking the right questions which will hopefully lead us to the right answers, or at least to the right forums and formats for seeking comprehensive answers to these emerging issues.

Learning from Mark Cuban’s brother

I was fortunate to be asked to present in Dallas to the Sports Financial Advisor’s Association. My co-presenter was…..Brian Cuban. I knew all about Mark Cuban, the maverick owner of the Dallas Mavericks. But Brian is a superstar as well. When I learned he was going to be my co-presenter, I started reading up on him (check out his site and his blog by clicking here). Interesting guy. He has put himself out there, on his blog, on Twitter and everywhere as a crusader for many things. He is very outspoken against hate crimes and generates a lot of much needed discussion on that topic.

The topic of our presentation? How can/does regular and social media affect our business and our entertainment/athlete clients? While I consider myself a novice in these areas, Brian is obviously an expert. He discussed aspects of social media I had not appreciated. But what really impressed me about him (and I realize this applies to many) is that he learned and understands the workings of, and value of social media……by doing it. He has created a niche for himself and a social media identity and a “brand”.

All in all, like many seminars, I learned a heck of a lot, and. More importantly, I met a heck of a lot of nice folks.

Recalling the first test tube baby

In 1978. That was the first time in the history of the world that a child was conceived outside of a mother’s body (an egg being fertilized in a dish), and then successfully carried through pregnancy to life by the mother. Until then, we were always certain that if a mother delivered a child, it was her biological child since her egg was fertizlized within her body, even if the sperm was donated. In 1978, everything changed. The child was Baby Louise and her story can be found via an easy internet search (you can read more about her story by clcking here). That was the start of successful in vitro fertilzation and the start of a brand new area of law.

I write about this since a guest lecturer for the Domestic Relations Law School course I teach discussed it last night. Ruth Claiborne is a leader in the legal field of assisted reproductive technology (ART) and her insights made for an exciting and interesting class.

From that day back in 1978, the field of ART has exploded. So have legal quandries surrounding it. Frozen embryos, inheritance by an embryo, custody battles between a surrogate mother and the biological mother, adoption of children not yet born and other legal quagmires have made this area of the law fascinating. There is a growing interest in ART among lawyers and non-lawyers. At our Spring and Fall ABA Family Law Section seminars, we are seeing more and more programs dealing with these topics. The leaders in this field, including attorney Steven Snyder and Professor Charles Kindregan and many others have generously given their time and talent to educating other lawyers about this new and emerging are of the law.

And these issues are everywhere. They have impacted almost every area of family law. For instance, some opponents of gay marriage used to argue that marriage was only for people who could procreate. Well that argument is now gone, or severely dimished since a same sex couple can now have a baby using donated sperm or a donated egg.

By no means am I an expert in this area. To the contrary, I still feel often like a little boy in science class learning new things. Last night during my law school class, I had that feeling again, and it was great.