This, I now realize, is what parents must feel when they briefly lose sight of their children at the supermarket. Without my iPad, after all, I am incomplete.

(Fortunately, I had taken all of the relevant precautions to securitize my iPad with password protection and the “Find My iPhone” app to permit me to track its location by GPS).

Whatever the case, shortly thereafter, I arrived back at my hotel and realized my grievous error.  By that time, the courthouse was closed, and no one in the building was there to answer my frantic telephone calls.  I thought to call the local county sheriff’s office to see if I might be permitted entry into the courthouse after hours to retrieve it, but they advised that I would need to wait until the next day.  Fortunately, the events that brought me to the courthouse that day were a series of depositions noticed by a plaintiff’s lawyer who, rather than selecting an office or hotel conference room, chose the grand jury room of that courthouse as the site of the depositions.  Fortunately for me, the plaintiff’s counsel had noticed so many depositions that she had scheduled them across two days, meaning that I would be returning to the courthouse the following day.  Whew. However, the fact that I was to return to the courthouse a half a day later did nothing to ameliorate my fear and concern.

It was a long night.  But here is the really interesting component of the story.  As aforementioned, on both my iPhone and my iPad, I had installed the “Find My iPhone” app.  This utility allows the user to log in, on a mobile device, tablet, or desktop computer, to Apple’s services and utilize the GPS function of the missing mobile device to identify its exact location.  The utility will then produce a map – which can be converted to an overhead satellite image – with a blinking dot indicating the precise – or almost precise – location of the missing device.  Knowing this, I immediately used this on both my iPhone and laptop to locate my iPad, which I was certain was plugged into the wall charging in the corner of the courthouse’s grand jury room.  The “Find My iPhone” app confirmed the suspicion, and the blinking dot, when placed on the overhead satellite image, appeared exactly where it should have been on the overhead image of the local courthouse.  However, there is also something perilously inexact about this utility. Depending on when the users login, how they login, what Internet connection service they use to login, and what device they use to login, they may receive an ever so slightly different result.  Thus, five minutes later, when I, in my paranoid state, sought to again confirm the location, the dot had moved slightly away from what I suspected was the grand jury room to a new position: the parking lot.  Seeing the blinking dot on the overhead aerial map in the parking lot shook me.  However, when I hit refresh, the dot returned to its original location on the aerial map image to the grand jury room.  Refreshing the image would often cause the dot to move slightly sometimes across the street, sometimes to the parking lot, sometimes to a different portion of the building.  Although I knew that this was probably just the result of the inexactness of the program, it did little to calm my nerves.

The next morning, I woke up extra early and was the first person at the courthouse at 7:59 AM.  I immediately made my way to the grand jury room where I found my iPad waiting for me.

There are several lessons to be learned from this incident.  Fortunately, I already knew to heavily securitize the iPad.  Fortunately, I store little work information on my iPad, but I had protected it in various ways, including password entry.  I flirted with deleting the contents of my iPad from afar – something that one can do using the “Find My iPhone” utility – but I decided that if there was one safe place one can leave one’s iPad overnight – it is the grand jury room of a county courthouse.

But of course, the main lesson to be learned is to keep better track of one’s mobile devices.

Vexing as it is, some of these apps, particularly the free apps, maintain advertising to support their operations. There is nothing inherently wrong with this approach, although advertising on one’s mobile phone, particularly on mobile apps, is really, really annoying. Of course, that’s the compromise we make in able to enjoy free apps that allow us to unlock the magic of today’s mobile telephone technology. Usually, it’s all good.

But there was something peculiar about the ad which popped up in the app that day.

Take a look:

The advertisement reads: “Have you ever been injured?  Talk to one of our guys.  They can get you a *phat* settlement.  Learn more.”

The reader is then called upon to click the “Learn more” button to investigate and, presumably, learn more about the offer.

Really?

Who is this advertisement targeted towards?  Is there a significant enough market of movie time seeking smart phone users with potential personal injury claims that such an app is rewarding?  The ad suggests that the reader “talk to one of our guys,” although it is unclear whether one of the “guys” is in fact a lawyer (not to mention the implications for diversity of the profession by mentioning only “guys”).

Further, there appears to be no disclaimer or geographic reference to be found in the advertisement.  Although we must confess we did not click the “Learn more” button for fear of what might happen if we did so. Perhaps some braver souls than we can do so and report on the results of that endeavor.

Oh, and after all of this, we decided not to see a movie.

Wikipedia tells us that Siri is a “is an intelligent personal assistant and knowledge navigator which works as an application for Apple’s iOS.” Kevin quotes the complaint (available online here): “For instance, when Plaintiff asked Siri for directions to a certain place, or to locate a store, Siri either did not understand what Plaintiff was asking, or, after a very long wait time, responded with the wrong answer. . . . Upon information and belief, Plaintiff’s problems with Siri are not unique . . . .” In his post, Kevin scrutinizes the distinction between Plaintiff’s claim that he was “exposed” to Apple’s alleged marketing misrepresentations and the traditional legal requirement that one must have “relied” upon misrepresentations in order to recover in such a lawsuit.

Concludes Kevin: “You do have to wonder if Siri will suddenly become especially good at finding things in the Northern District of California (San Jose Division), especially things that federal judges might need. Don’t do it, Siri. It’ll just look bad.”

We got to thinking about the discovery in this case.  Perhaps there will be some pre-certification interrogatories and requests for production.  But wouldn’t it be interesting if Siri, the most famous example of artificial intelligence, was deposed in the litigation?  We couldn’t wait, so we noticed that depo and began.

Of course, there are the formalities which must be addressed:

Even artificial deponents must be sworn, right?

We have found that a little background questioning is always appropriate:

That may sound like an error, but a lot of witnesses ask for clarification on that question, not being familiar with the process.

Of course, sometimes it’s best to just cut to the chase and get straight to the allegations in the lawsuit.

“I’ve never really thought about it?” An interesting concession!

Let’s go in for the kill!

Ouch! Maybe this wasn’t such a good idea after all.

(Oh, and see Kevin’s follow-up post on this type of litigation here.).

1. Generally, how has the practice of law changed with the advent of smartphones?

When the BlackBerry and similar devices started to become popular almost ten years ago, the practice of law began to change dramatically. Tech savvy lawyers could impress clients by always being available to receive and respond to an e-mail. This then led to clients expecting that they could contact their lawyers 24/7. Around the time that the Palm Treo 650 started to become popular, attorneys were able to do more than just read and respond to e-mail; they also had tools to find information on the Internet, edit documents, et cetera. We saw the possibility of being a mobile attorney without having to carry around a laptop. When the iPhone debuted in 2007, it forever changed what consumers expected from a smartphone interface, but it didn’t have much of an effect on the practice of law at first. But, in 2008, when the iPhone 3G came out, and the iPhone was suddenly able to work with Microsoft Exchange, the e-mail used by many lawyers and law firms, and at the same time the App Store opened, the iPhone started to become an extremely powerful device for lawyers. The tools that made mobile lawyering a possibility on the Treo 650 started to become available for the iPhone, but this time, the software was much more powerful and polished. We are now at a stage where clients are very used to expecting 24/7/365 availability for their lawyers, and with the iPhone, lawyers really can do quite a bit to meet those needs even when they don’t have a laptop computer nearby.

2. What ethical issues surround the use of a smartphone, and of them, what is the most overlooked? Are there any that are iPhone specific?

Preserving confidentiality is always a concern for lawyers, but not only is this not unique to the iPhone, it isn’t even unique to technology. If you leave a legal pad — or even worse, a briefcase — in an airport, restaurant, courtroom, et cetera, you risk possible exposure of lots of confidential attorney-client information and attorney work product. A smartphone can potentially hold much more confidential information than a briefcase, but at the same time, there are tools to help keep data private (such as password locks) and to locate a missing iPhone or remotely erase the iPhone if it is lost (such as the fantastic Find My iPhone app that Apple recently made free for the owners of all new iPhones).

Another concern that I see is that e-mail on a smartphone tends to be much more casual than e-mail on a computer, which is more casual than a letter drafted on the computer. And yet, the consequences of the written word can be the same, regardless of whether it is in the form of a text or an iPhone e-mail or a formal letter. Clients need to be aware of the potential for liability that results from sending a message without really thinking about it, but attorneys need to follow that advice, as well. Moreover, risks such as accidentally using REPLY ALL or FORWARD exist on the computer and the smartphone, but can be easier to make on a smartphone when people are trying to dash off messages in a matter of seconds.

3. Not too long ago, there were some concerns expressed on some blogs about the security of the iPhone and its appropriateness in legal practice. Have those concerns been put to rest?

You still see a few people issuing dire warnings about security on smartphones such as the iPhone, but often, these people are security professionals looking to sell their services. In the real world, I am not aware of any instance in which an attorney’s iPhone or other smartphone has been obtained by a hacker who knows how to use sophisticated tools to access data notwithstanding the use of passwords, et cetera. I know that these tools are out there, and I know that many police forces are learning how to use the tools (with court approval) to obtain information from a suspect’s iPhone or other smartphone. But the fact that a trained professional can hack into an iPhone or a laptop computer doesn’t lead me to believe that attorneys shouldn’t use an iPhone or a laptop computer. Instead, I urge common sense. If you use your iPhone in your law practice, activate the passcode lock feature so that a stranger cannot simply pick up your iPhone and start to read your e-mail, and be aware that there is some information that is so confidential that it should receive extra protection.

4. What are the three most essential apps for the practicing attorney?

In the spring of 2010, I did a “60 Apps in 60 Minutes” presentation at ABA TECHSHOW 2010 that sought to answer that question. You can still see that list here; I’m working on a new list for ABA TECHSHOW 2011 in April. But if I had to pick just three, I would probably pick Dragon Dictation (so that an attorney can quickly dictate an e-mail), DataViz Documents to Go (so that an attorney can edit MS Word documents and more easily view Word documents) and LogMeIn Ignition (so that an attorney can access his or her desktop computer even when out of the office). Having said that, I really hate to pick just three because there are so many great apps with so many new great apps coming out every day. After a hard day of work, sometimes I consider it “essential” to play a quick game of Angry Birds.

5. If you could will into being one legal app that does not yet exist, what would be its function?

The best feature of the iPhone for attorneys is having information at your fingertips. The information that I want to access is usually available somewhere, but sometimes, can be a little difficult to access. My dream app would be able to sort through information from all of my data sources — my document management system, my e-mail, the documents on my work and home computers, court dockets for my cases, such as the PACER system for federal courts, my notes, et cetera — and allow me to find information from any of those sources with the speed of a Google search.

BONUS QUESTION: What do you think is the best depiction in popular culture of legal technology?

For lawyers and non-lawyers, I think that the technology goal is the same; we want powerful technology without the human interface barriers. As a child, watching Luke Skywalker, Michael Knight, and Dave carry on conversations with C-3PO, KITT, and HAL 9000 made me long for the day when I would be able to access vast amounts of information just by asking questions to a computer or robot. Speech is making great advances, not only on the computer, but also in cars and on small devices like the iPhone, but the reality is that whether I am walking down the street or trying to work in my office, I don’t want to be surrounded by lots of people talking to their computers, their watches, the water cooler, et cetera But the new touch interfaces — which amazed all of us when we saw Tom Cruise in Minority Report, and which we are now seeing in real life on the iPhone and iPad and with the Xbox Kinnect — seem to have the advantage of removing barriers without the noise. I am excited to see these technologies continue to improve in the future.

BIOGRAPHY: Jeff Richardson is the publisher of iPhone J.D., the only website devoted to the use of iPhones by attorneys. iPhone J.D. was voted by readers of the ABA Journal as the best legal technology blawg in 2010. Mr. Richardson is a New Orleans native and a partner in the New Orleans office of Adams and Reese L.L.P., where his practice primarily involves representing defendants in class action and complex litigation, appellate litigation, products liability litigation, constitutional litigation and legal ethics. He has served as court-appointed liaison counsel for defendants in numerous complex cases. Mr. Richardson graduated from Emory University in 1991, summa cum laude, and Georgetown University Law Center in 1994, magna cum laude.