Benchmark Column - May 2009 - Thomas M. Cooley Law School

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FEATURE ARTICLEFacultyBriefsFrank C. Aiello,Assistant ProfessorPresented, “Michigan ModelConservation Easement RevisionProject Status Update” at theHeart of the Lakes Center for LandConservation Policy Member Summit, Dec. 2, 2008,in Lansing, Mich.Represented, the Six Rivers Regional Land Conservancywith approximately 60 hours of pro bono legalservice in Hilary Term 2009.Ron Bretz, ProfessorPublished, an article, “New Eraor Will the High Court Retain ItsRadical Ways?” in Dome Magazine,February 2009, online atdomemagazine.com.Lectured, with Professor Jim Peden, Criminal LawUpdate, Wayne County Criminal Advocacy Program,Detroit, Mich., Nov. 21, 2008.Spoke, at Lansing Community College’s ConstitutionDay Symposium, Sept. 17, 2008.Lectured, on “The Michigan Criminal Justice System”at the People’s Law School, Lansing, Mich., Oct. 21, 2008.Mark Cooney,Associate ProfessorPublished,”The Runaway Verdict,”in Vol. 88, No. 2 Michigan BarJournal. 40 (February 2009).Appointed, to the State Barof Michigan’s Standard Criminal Jury InstructionsCommittee.Mary Phelan D’Isa, ProfessorPublished, “The Removal-RemandShuffle: Is a Remand Order Based on aDiscretionary Decline of SupplementalJurisdiction Reviewable?” PREVIEW ofUnited States Supreme Court Cases(ABA Div. for Pub. Ed.) Issue No. 5, Vol. 36, Pg. 307,Feb. 23, 2009, 2008-2009 Term.Published, “What is the Appropriate Standard ofReview for Forfeited Error?” PREVIEW of United StatesSupreme Court Cases (ABA Div. for Pub. Ed.) IssueNo.4, Vol. 36, Pg. 247, Jan. 12, 2009.Norman Fell, ProfessorAttended, the 2009 InnocenceNetwork Conference, March19-22, 2009, in Houston, Texas.Attended, the National Institute ofJustice Post-Conviction DNA CaseManagement Symposium Jan. 21-23, 2009, in PalmHarbor, Fla.Attended, the National Association of CriminalDefense Lawyers “A New Legal Architecture – LitigatingEyewitness Identification Cases in the 21st Century,”March 14-15, 2009, at New York University Law School.Spoke, on “Wrongful Convictions, Actual Innocence andthe Innocence Project,” at The Wrongful Convictions andthe Innocence Project Presentation on Jan. 26, 2009, atthe University of Michigan Law School.Spoke, on “Ineffective Assistance of Counsel and theWrongly Convicted; The Public Defender Clinic,” at TheState of Indigent Defense in Michigan on Feb. 26, 2009at Cooley Law School.Spoke, on “Criminal Justice and Actual Innocence,”at the Criminal Justice Department Presentation onMarch 2, 2009 at the University of MichiganDepartment of Criminal Justice.Spoke, on “Wrongful Convictions, Actual Innocenceand the Innocence Project,” at the Michigan PsychiatricSociety Annual Meeting Nov. 14, 2008, at the Centerfor Forensic Psychiatry in Ann Arbor, Mich.Named, A Leader in the Law, by Michigan LawyersWeekly, on March 25, 2009.Alan Gershel, Associate ProfessorAppointed, Chair, of the UnitedStates Federal Magistrate Judge MeritSelection Committee by Chief Judge,United States District Court, EasternDistrict of Michigan.(continued on following pages)e- DISCOVERYDISCOVERINGTHE BENEFITS AND CHALLENGES OFDerek S. Witte, an e-discovery expert and assistantprofessor at Cooley Law School’s Grand Rapids campusTHE SMOKING GUN IN AN INCREASING NUMBER OF LEGAL CASES ISN’T A SURPRISEWITNESS, IT’S A DELETED E-MAIL, TEXT MESSAGE, OR VOICE MESSAGE.Yet tracing the e-trail of potentially explosive data duringthe discovery phase of a case can be an overwhelmingand costly process. It can also mean the difference inwinning or losing a case; consider Clark Hill PLC’s(Detroit office) DaimlerChrysler Motors v. Bill DavisRacing, Inc. (2005 WL 3502172 [E.D. Mich.]), whichnetted a $6.5 million settlement for Chrysler based onspoliation or destruction of e-evidence.“It’s a vast sea of data out there in the e-universe, whichcan often be more retraceable than not,” said Derek S.Witte, an e-discovery expert and assistant professorat Cooley Law School’s Grand Rapids campus. “Manycompanies and individuals have no idea how long andhow deep e-mails, text messages, instant messages, andvoice messages can exist in cyberspace. This has a lot ofimplications for litigation, and the ultimate question iswhether e-discovery helps or hinders cases.”No e-mail is safe from discoveryFor instance, Witte explained that one e-mail can“live” on a multitude of servers, even after the e-mailhas been deleted. “Assume that it will never be totallygone,” said Witte.The plethora of data, combined with its “stayingpower,” presents a multitude of legal and IT issuesfor businesses and individuals, many of whom maynever be part of any future litigation but should considerpreventative policies to keep potentially reckless e-datafrom surfacing.“People can become very informal and unprofessional inall of the new ways there are to communicate, and thatis often how missteps are made,” said Witte. In theChrysler v. Bill Davis case, for instance, the racingcompany was found guilty of passing confidentialinformation to Toyota based on e-mails sent from theprivate AOL account of one of Bill Davis’ engineersto a Toyota employee.Many states are now just catching up with the speedand sophistication of e-discovery. In January, Michiganadopted a series of electronic discovery amendments,including a party’s ability to object to a subpoena fore-files based on “reasonable inaccessibility.”Cooley takes the lead in e-discoveryconversation, educationCooley is taking a lead role in educating the legalcommunity – and its students -- about the implicationsof these new rules.Witte recently moderated Tackling Michigan’s newE-Discovery Rules and Cross-Examining the Experts, amajor panel discussion at Cooley’s Grand Rapids campusfor area attorneys and Cooley students, hosted byCooley and sponsored by Lumen Legal and the GrandRapids Bar Association. The roundtable featured a slewof experts on the topic, ranging from computer forensicprofessionals to a trial and litigation attorney.“It’s about being on the forefront of this growing issueand helping the legal community and Cooley studentsbecome very comfortable and skilled in navigatingthrough this area,” said Curt Benson, a Cooley associateprofessor and panelist. Benson is a member of theRules Committee responsible for drafting the newe-discovery rules.Because e-discovery can be a big expense on a case(basic e-discovery activities can carry a $50,000 pricetag), e-discovery can pose ethical implications as itmay prohibit smaller cases from going to trial.“Unfortunately, in these economic times, companiesdon’t want to spend the money on the front-end; yet, ifthere is ever a legal issue, the costs to comb throughmountains of data can be staggering,” said Witte.As e-discovery becomes a core competency of practice,Cooley continues to offer students a variety of courseoptions, including Advanced Document Discovery.Cooley grads ready to navigate e-discoveryIn addition to teaching students about the latestapproaches to successful e-litigation, Witte ensuresstudents are armed with solid e-litigation preventionpolicies.“I am always amazed at the number of sophisticatedbusinesses that do not have a company policy forbasics like e-mailing, document storage, and retrieval,”explained Witte. “Instant messaging, which by itsnature fosters a more relaxed, less professional formof communication between two people, can beanother danger zone for a company,” he said. “Thatdata is more recoverable than people think. Peopleneed to ask themselves if this were (broadcast) on thefront page, how would I feel about it. Just because it’smarked ‘private,’ it’s not. In litigation, you have todisclose all data sources.”According to Gary Hayden, director of IntelligentDiscovery Solutions, Arlington, Va. and adjunctprofessor at Cooley Law School, Cooley studentsare well prepared to tackle this growing area ofdiscovery and litigation.“This area of law continues to grow and will continuehaving a profound impact on our students’ careers,”said Hayden. “Cooley is committed to helping ourstudents and the legal community keep ahead ofthe curve; e-discovery is here to stay.”BENCHMARK COLUMN | MAY 2009 | VOLUME 1 | NUMBER 2
FEATURE ARTICLEOne Law Degree;Multiple UsesA growing number of Cooley graduates are using their degrees tobolster current careers or open doors to new onesAlthough she’s been an attorney for 16 years, Hiroe“Ruby” Makiyama has spent very little time presentingcases before a judge. Yet that hasn’t stopped the43-year-old lawyer from taking full advantage of herCooley degree in her native Tokyo. In fact, Makiyamacontinues to credit the outstanding legal education shereceived at Cooley two decades ago with opening newcareer doors and helping her to be an inspiration toother Japanese women.This working mother of two is part of a growingnumber of Cooley graduates who are flexing thevalue of a legal education in non-traditional ways.According to the most recent Employment Reportand Salary Survey (ERSS), about 45 percent of Cooleygraduates were employed in positions other thanprivate practice, echoing a trend at the national level.“The ERSS statistics show that law school graduates,more than most other professionals, have the abilityto be very creative in the use of their degree, and inthis economy, being flexible, knowledgeable, andexperienced in a variety of areas can help distinguisha candidate more than anything,” said Charles R. Toy,Cooley’s associate dean of career and professionaldevelopment.Today, Makiyama holds a prestigious seat with theNational Diet of Japan, the equivalent of serving as aU.S. Senator. Her journey spans more than 25 yearsand 8,000 miles, and first took root in an unlikelyplace – the Tokyo Broadcasting System, one of thelargest national broadcast networks in Japan.At 21, Makiyama held the demanding position asdirector of the network’s entertainment and celebritynews program. While she enjoyed her work, theposition went far beyond the normal demands of ahigh-powered career: Makiyama worked 20 hourdays and even slept at the station because she didn’thave time to travel home. She became increasinglydetermined to take the next step in her career.“I had always wanted to work in the entertainmentworld, but while I was working at the TV station, Iknew I wanted to do something more to differentiatemyself,” Makiyama said. “I wanted to have a specialtythat other directors didn’t have.”Makiyama credits a 1987 newspaper article forsparking her interest in the ways a degree from aU.S. law school could propel her career in Japan’sburgeoning entertainment industry. The article featuredthe first female Japanese national to earn herlaw degree in the U.S. and return to Japan to applyher studies. This was the unique advantage Makiyamawas looking for.In her precious free moments at the TV station,Makiyama secretly studied for the LSAT in the company’sbathroom. Of all the U.S. law schools, she selectedCooley, not only for its sound reputation, but forits flexible scheduling that fit her fast-paced career path.“I saw a Cooley brochure and thought, ‘wow,’ thisschool might be perfect for me because I can finish intwo years,” she said. By January of 1988, Makiyamawas living in Lansing and taking classes at Cooley.Twenty years later, Makiyama is confident herCooley law degree continues to reap benefits. She hasworked in the legal departments of various entertainmentbusinesses, including the largest and oldest filmand production company in Japan, and started herown charity club (non-profit) called Budokai. In 2007,Makiyama was elected to the House of Councillors inthe National Diet of Japan and began a new full-timecareer as a government official. Makiyama representsthe Kanagawa-ken region, the second-most populatedprefecture in Japan and the equivalent of a U.S. state.Makiyama’s position with the National Diet of Japanallows her to advocate for underserved populations.Budokai, the charity club that Makiyama founded,flourished from 10 friends to over 300 membersunder her leadership. While it was successful in raisingmoney for the underserved, Makiyama wanted tomake a larger impact.“I always dreamed of doing something bigger,” shesaid. “I wanted to do more for those people who arereally tortured and are suffering from serious diseaseand hunger.”She views her position in the National Diet as anopportunity to prominently highlight social injusticeissues, as well as to bring attention to how difficultit is for Japanese women to maintain their careerswhile raising children.“Housewives who were never interested in politicsbefore became interested because of me,” she said.“They thought, ‘Maybe she will represent us becauseshe is in the same shoes.’”Makiyama also pointed out that her campaign postersprominently touted her background as a U.S. lawyer,which is something she feels was key to her election.“In the National Diet, we make new laws for Japanevery day. While knowing U.S. law doesn’t directlyhelp [when working with Japanese law], a legal educationreally trained me to have a legal mind and tothink logically, theoretically and critically, and I’m ableto express myself clearly,” she said.“My law degree has opened many new doors, andallowed me opportunities to grow personally andprofessionally beyond my dreams.”15% GOVERNMENT4% ACADEMIC4% PUBLIC INTEREST5% JUDICIALCLERKSHIP17% BUSINESS2% OTHER53% PRIVATE PRACTICEHiroe “Ruby” Makiyama (Lawrence Class, 1991) credits her Cooley law degree with her election to National Diet of Japan, the equivalent of serving as a U.S. senator.OPPORTUNITYCooley graduates use their law degree in a variety of ways. About 45%of Cooley’s 2008 graduates hold positions other than private practice,echoing a trend at the national level.“The Employment Report and Salary Survey statistics show that lawschool graduates, more than most other professionals, have the ability tobe very creative in the use of their degree, and in this economy, beingflexible, knowledgeable, and experienced in a variety of areas can helpdistinguish a candidate more than anything.”Charles R. Toy, Cooley’s associate dean of career and professional developmentKNOWLEDGE. SKILLS. ETHICS.
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Benchmark Column - May 2009 - Thomas M. Cooley Law School

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