Reverse Deception: Organized Cyber Threat Counter-Exploitation (51 page)

How to Work with a Lawyer

To begin, do not assume that your lawyer has only you or your operation as his sole focus. Your lawyer probably has more than one client/issue on his plate. It is therefore imperative for you to engage this busy professional in a manner that is most likely to produce optimum results for you both.

Always come prepared to any engagement or meeting with your lawyer. It’s a good idea to begin your preparation by doing a little research on the lawyer or lawyers you will be meeting. Lawyers frequently post professional bios online, so it should not be difficult for you to find some information to help you better understand the person with whom you’ll be dealing. Also, you might be able to obtain information just by asking colleagues who have had prior dealings with the lawyer about their experiences. This kind of information, while anecdotal, often proves quite valuable.

Be prepared to explain, in nontechnical language, exactly what you propose to do. Of course, use common sense. If you’re dealing with a technically sophisticated lawyer with experience in dealing with the types of issues confronting you, you can raise the degree of technical language. However, don’t be afraid to ask if you are speaking too technically. Always offer to explain again, using more plain English. If the operation is especially technical, consider bringing along visual aids. As they say, a picture is worth a thousand words. Therefore, you may find that using two or three simple presentation slides or diagrams to illustrate or storyboard your operational goal may be clearer than merely talking, especially if you have trouble breaking down technical details into plain English.

It is ignorance of the law rather than knowledge of it that leads to litigation
.

—Cicero,
De Legibus

Of course, it can be very helpful if you know something about the law. However, such knowledge generally proves to be of little value if your goal is to “out-lawyer your lawyer.” Try to maintain a balanced approach by providing the kinds of information a lawyer would find of value. An example of valuable information is walking the attorney through the technical details regarding the degree to which a proposed operation is a derivation from a previously approved or rejected approach, or why the approach is utterly unique but still falls within acceptable legal parameters.

In the beginning, you may need to actually ask what type of information the lawyer needs to help you, but this should become easier over time as a rapport develops. Once you’ve developed a good, collaborative relationship, you should be able to anticipate or predict the nature of the questions or information that counsel might have. You may also find that you’ll become more proactive and seek out engagement earlier in the planning process. If you only have infrequent dealings with lawyers, or work with a different lawyer each time, compress the approach and focus on the clarity of delivery of the information.

If you must do legal research, do it to become a better partner, not to become a lawyer (that’s already the lawyer’s job). As the lawyer becomes more familiar with cyber issues, you become more familiar with legal issues regarding the cyber realm. This will facilitate discussions for all parties and help focus the discussions, while avoiding long explanations from either side. It’s certainly fine to convey your understanding of the law and knowledge of legal issues, but getting into a confrontation rarely will serve your goal of getting the operation approved. While it is technically possible to debate a lawyer on the interpretation of the law and convince that lawyer you are correct, this often isn’t the wisest initial approach. Seek a partnership with your lawyer, and you will find an ally who will support you and take the time to work with you.

Be prepared. You should develop the story in your head, and perhaps even write it down and practice it. Ideally, you should be able to explain in plain English, in about ten minutes, the nature of the proposed operation or problem you would like addressed. If you believe the law is on your side, then applying it in your explanation of the situation can be helpful, but it is not necessary.

Get legal counsel involved as early as possible. Indeed, you are much more likely to have an activity or operation approved if you’ve been working with the lawyers from the outset. Typically, it is well along in the planning process (or, from the operator’s perspective, all the planning has been done) when the operation is presented to legal for review. The resulting delay caused by conducting a review from scratch late in the game frequently has a negative operational impact. At a minimum, you aren’t taking maximum advantage of your lawyer’s information. Remember that the lawyer’s job is to keep you on the right side of the law, out of court and out of jail. It’s that simple. Keeping the lawyer in the loop along the way is smart. It builds a professional rapport, and the increased familiarization can pay dividends for you both.

To me the law seems like a sort of maze through which a client must be led to safety, a collection of reefs, rocks and underwater hazards through which he or she must be piloted
.

—John Mortimer,
Clinging to the Wreckage

What You Should Know About Legal Research

You only need to concern yourself with the basics of what the law is and where to find it. To answer these questions, you’ll need to understand where laws come from and how they are codified.

So where do you find the information on the law you want? There are several online services that you can use to find statues, regulations, and case law, which may help you to understand how to best approach a discussion with legal counsel. These resources are often referred to by IT professionals as
data repositories
(lawyers don’t consider these sites to be merely collections of data, so they never use the term in this context). Even if your position at work means that you never need to deal with lawyers, it’s still a good idea to be familiar with laws that potentially impact your job, especially if your boss will be the one who meets with the lawyers to pitch your operation.

For the hard-chargers, consider subscribing to any of the myriad of legal websites and blogs that follow cyber law generally, and others that focus exclusively on the top-ten cyber cases. With time and effort, you’ll be at least conversationally familiar enough with the legal issues in these cases. Having a running knowledge of the major themes of these cases is important, but even more important is how they apply to your situation. Well, that’s precisely where your lawyer comes in, and with the background knowledge you’ve acquired, you’ll be able to engage in more fruitful discussions.

Online Legal Resources

The online resources described in this section are especially helpful if you feel the need to brush up on your legal knowledge. Some require paid subscriptions; others are free or offer free trials. Depending on your employment situation, you may have access to subscription-based legal research tools.

Legal research tools and resources vary widely. The ones recommended here should be especially helpful for those who are not lawyers. Since how you feel about interacting with a website is a matter of taste, we recommend visiting a few sites and taking them for a test drive.

Fastcase.com

Per the Fastcase website (
www.fastcase.com/whatisfastcase/
), “
Fastcase.com
is the leading next-generation legal research service that puts a comprehensive national law library and smarter and more powerful searching, sorting, and visualization tools at your fingertips.” Fastcase is very user-friendly, whether or not you’re a lawyer. The Fastcase search engine makes finding what you’re looking for easy.

The libraries are searchable by keyword (or Boolean search), natural language search, or citation lookup. This is the same as searching the Web or traditional legal research services, but what makes Fastcase’s solution so much smarter is its tools, which find the best answers fast.

Fastcase features an interactive map of search results, so you can see the most important cases at a glance. Long lists of text search results (even when sorted well) show only one ranking at a time. Sorting the most relevant case at the top might put the most cited case at the bottom. Sorting the most cited case at the top might place the most recent case at the bottom.

Fastcase also has a fairly revolutionary visualization tool called the Interactive Timeline. This tool shows all of the search results on a single map, illustrating how the results occur over time, how relevant each case is based on your search terms, how many times each case has been “cited generally” by all other cases, and how many times each case has been cited only by the super-relevant cases within the search result (“cited within”). The visual map provides demonstratively more information than a mere list of search results. Interactive Timeline is a powerful tool in the hands of a capable lawyer or paralegal; however, it might be a little overwhelming for others. Still, for the hard-core techno geeks who want to be in the deep end of the pool on everything they do, the Interactive Timeline should be the perfect way to get fully immersed in legal research.

One of the most important tasks for anyone conducting legal research is finding the seminal case. Generally speaking, when making legal arguments, you must be prepared to offer up cases that support the proposition of the law that is the basis of your position in the matter at hand. The seminal case is typically the first case from the highest court to have decided the issue and stated the proposition of law in question. If the proposition was itself a reversal or revision of earlier authority, the seminal case is the reversing or revising case (“The Art and Science of Selecting Cases to Cite,”
Texas Bar Journal
, April 2000). As the first case to have stated the proposition in question, the seminal case has generally gone into some depth in analyzing the issue and the court’s rationale in a manner that might not be repeated in later cases.

Search results on Fastcase automatically include the number of times each case has been cited. It’s the only service that allows you to find the most cited case in your results with a single click. On traditional services, you could do that only by Shepardizing or KeyCiting (propriety approaches found at LexisNexis and Westlaw KeyCite, respectively, which are used for determining the relevance of prior court decisions as precedent in the current case at hand).

NOTE

One of the most important skills a law student can develop is how to Shepardize a case, or check the relevance of a past court decision as precedent for a current case. US courts rely heavily on the principle of
stare decisis
(“let it stand”), so it’s critical to know whether the case law you’re relying on is actually still valid and pertinent. This task would be an endless nightmare if you had to hunt down the many cases that cite any one case by yourself. Fortunately, Frank Shepard, the nineteenth-century legal publisher who gave his name to the process, developed an indexing system that’s still in use today
.

If you have the time and access to a really good law library, you can also do the analogue approach with hard-copy volumes and supplements. Note that this is very tedious work indeed, because you must do it for every case in the search results.

For lawyers, determining the seminal case is among the most important tasks in legal research, and Fastcase’s integrated citation-analysis tools are probably the most powerful and efficient way to find it. Others usually don’t need to take legal research to this level, but for those who do, Fastcase is the answer.

Best of all, Fastcase has a great app for the iPad, which is a pleasure to use. Considering that the word “pleasure” has probably never appeared in the context of legal research (and in the same sentence) in the history of man, that’s really saying a lot!