Letter from the President

Originally published in the printed bar journal, Communiqué (June/July 2017).

You will be assimilated.

Tami D. Cowden is Of Counsel with Greenberg Traurig LLP. Tami has more than 20 years’ experience as an appellate attorney with a focus on representations in the Supreme Court of Nevada and the Ninth Circuit Court of Appeals. Tami serves as President of the CCBA through December 2017. Contact her at cowdent@gtlaw.com.

By Tami D. Cowden, Esq.

I receive e-mails listing headlines from an assortment of legal publications. I generally only glance at them. But today’s review was particularly rewarding because it yielded this headline from the ABA Journal: “ Murdered woman’s Fitbit data inconsistent with husband’s story, police say.” last viewed, April 26, 2017. I clicked on it.

Seems some guy in Connecticut is alleged to have murdered his wife in 2015. The defendant claimed that while driving to work at around 8:30 a.m., he received an e-mail alert that his home security system had been activated, leading him to e-mail his boss that he would be late, and then returned home. He claimed he confronted an intruder upon arriving home, but his wife returned from her exercise class in the middle of the encounter and was shot.

However, as the headline indicates, his story did not hold up under scrutiny. The home alarm data did not show an alert, the e-mail to the boss had been sent from husband’s laptop at home, and the wife’s Fitbit tracker showed she was active for at least an hour after hubby claimed she had been killed. She also posted videos to her Facebook account while “dead.”

I confess, my first thought when reading this was that it had absolutely nothing to do with the practice of law. Instead, the professional instincts from my other career, fiction writing, were sparked. I will definitely be looking at the prospects of a role for fitness trackers and other technology when plotting my next murder mystery!

But the litigator part of my brain kicked in very quickly afterwards. For years in my civil practice, I have routinely Googled opposing parties and checked for public social media accounts and the like for anything that might be relevant to my clients’ cases. I am pretty sure there is a lot more out there that I should be considering. And what advice should I be giving to clients about technology’s evidentiary trails?

A question like this could easily become more than academic for attorneys here in Nevada. To date, at least 27 states have adopted rules creating an ethical duty of technology competence. Many are patterned after comment eight to the American Bar Association’s Model Rule 1.1, which includes, along with the requirement to keep abreast of changes in the law, a requirement that attorneys also know “the benefits and risks associated with relevant technology.” Can Nevada be far behind?

As it happens, Connecticut, the state where the unfortunate wife was killed, adopted that rule in 2014. I doubt the accused husband was represented at the time he made his statements to police. But if he was, I wonder what sort of advice might have been given regarding the ways in which technology would allow his story to be examined so carefully?

We at Clark County Bar Association want to help our members stay ahead of the curve. Who among our attorney members is up to date on all the applications available to aid attorneys in their practice? Where are our early adopters of the latest technology? Who is consciously tracking the intersection of law and technology? In addition to always welcoming ideas for CLE programs useful for our members, we would love to have a technology columnist for the Communiqué. If interested, please contact CLE Committee Chair Rob Telles at rob@accoladelaw.com or Publications Committee Chair and Communiqué Editor-in-Chief Heather Anderson-Fintak at Fintak@snhdmail.org.

— Resistance is futile. —

Note: This page is updated with the release of each edition of the printed bar journal, Communiqué.