Filing a Post-Grant or Inter Partes Review
Before taking the step of filing a patent challenge, there’s a lot more to consider than just whether a claim seems invalid. Post-grant proceedings like Inter Partes Reviews (IPRs) and Post-Grant Reviews (PGRs) are powerful tools that can reshape the landscape of intellectual property disputes. They offer defendants a quicker, more technical route to contest a patent’s validity, but they also carry strategic, financial, and procedural traps that can have long-term consequences.
Understanding when and how to use these tools is key. As David Tobin of McDermott Will & Schulte LLP underscores, it is critical to understand your options before you act. Recent developments at the Patent Trial and Appeal Board (PTAB), including new USPTO Director guidance on discretionary denials designed to prevent duplicative proceedings and to ensure that PTAB cases are efficient alternatives to district court litigation, have made timing and case strategy more important than ever. The PTAB was designed to streamline the process of challenging questionable patents, but the rules have evolved significantly since its creation under the America Invents Act (AIA). Today, a successful filing demands not only legal insight but also careful coordination between business, legal, and technical teams.
When To File
Anyone other than the patent owner can file a PGR or IPR, however a party that has already filed a civil action challenging a patent’s validity cannot later file an IPR or PGR.
A PGR can be filed within nine months after the patent is issued, while an IPR can be filed any time after that period. That nine-month window is critical because it determines which types of arguments can be raised. In a PGR, a patent can be challenged on any statutory ground, including subject matter eligibility, written description, or enablement, while IPRs are limited to anticipation and obviousness arguments based on patents and printed publications.
Filing early may seem aggressive, but it can be a smart move, especially if a potentially problematic patent surfaces during freedom-to-operate analyses. Early action can help challengers to avoid the higher estoppel risks that follow an IPR decision. For business leaders, it’s worth considering these filings as part of broader risk management. The cost of waiting can be far higher than acting early.
Standing and Appeal Rights
Standing doesn’t matter much when filing a petition (assuming no statutory bars), but it matters later. “You don’t need standing to file, but you do to appeal. That’s a nuance that can catch people off guard,” cautions Patrick Richards of Much Shelist, P.C.
The Federal Circuit requires a concrete injury to appeal, meaning a petitioner who isn’t directly threatened by enforcement may be left without recourse. This creates strategic tension: some entities, such as industry groups or third-party funders, may initiate a challenge but ultimately have no standing to appeal if the PTAB rules against them. Balancing advocacy, ownership, and risk exposure is therefore critical.
Building a Strong Petition
A strong petition must tell a clear, particularized story of why a patent claim is invalid. The PTAB expects precision: each claim, prior art reference, and argument must be mapped explicitly and supported with evidence. The PTAB disfavors overly broad or scattershot petitions; specificity and clarity can make or break a petition. Petitioners should avoid relying too heavily on expert declarations without integrating those points into the main text of the petition.
The Standards of Review and Evidence
For IPRs, the ‘standard for institution’ is whether the petitioner has a ‘reasonable likelihood’ of success. For PGRs, the threshold is slightly higher: ‘more likely than not.’ After institution, both use the ‘preponderance of the evidence’ standard, which is less stringent than the ‘clear and convincing’ standard applied in district court litigation.
These differences make the PTAB an attractive venue for validity disputes. But petitioners must still present a focused and credible argument from the outset. Failing to properly construe claims or provide adequate evidence can lead to dismissal before reaching the merits.
Cost, Timing, and Strategic Considerations
An IPR typically costs around $50,000 in filing and post-institution fees, while a PGR is closer to $60,000. These costs rise quickly when challenging patents with more than 20 claims, and they don’t include legal fees or expert costs, which can easily double or triple total expenses.
“The PTAB is fast, but not cheap. It’s an investment in clarity,” notes Jeremy Albright of Norton Rose Fulbright US LLP.
The process from filing to final written decision generally takes about 18 months, though extensions may occur for complex cases. Coordinating among co-defendants can reduce costs but may also create complications around ‘real party in interest’ issues and estoppel.
Amending Claims and Other Avenues
Under recent USPTO rules, patent owners may now file motions to amend their claims during PTAB proceedings. But beware, amendments can cut off past damages and open the door to new prior art challenges. When an amendment is too risky, another option is an ex parte reexamination: an alternative post-grant process handled by a patent examiner rather than the PTAB. As Andrea Shoffstall of Unified Patents notes, “Ex parte reexams are another outlet for challenges. They can be slower, but they still work.”
Amendments and ex parte reexaminations offer different advantages depending on the end goal, whether that’s clearing a competitor’s patent or strengthening one’s own.
Key Takeaways
Post-grant challenges remain a cornerstone of modern patent strategy, but they’re not one-size-fits-all. Whether you’re defending your company’s intellectual property or challenging a competitor’s, success depends on understanding the interplay between timing, cost, and risk. The best-prepared parties approach the PTAB with the same precision they would a courtroom.
To navigate these proceedings effectively:
Track deadlines. The nine-month PGR and one-year IPR bars are hard limits, not suggestions. Missing them can close the door to powerful defensive tools.
Know denial triggers. Discretionary denials can derail even the strongest case if the district court timeline or patent age works against you.
Identify real parties early. Overlapping interests between funders, licensees, or co-defendants can raise estoppel and standing issues that can be difficult to unwind later.
Focus the arguments. The PTAB rewards clarity and precision, not volume. Every sentence in a petition should serve a purpose.
The PTAB is a forum where preparation, data, and narrative persuasion meet technical rigor. Ultimately, the value of these proceedings lies not just in invalidating weak patents, but in shaping a company’s long-term IP posture.
To learn more about this topic, view Things to Consider Before You File. The quoted remarks referenced in this article were made either during this webinar or shortly thereafter during post-webinar interviews with the panelists. Readers may also be interested in reading other articles about intellectual property.
This article was originally published here.
©2025. DailyDACTM, LLC d/b/a/ Financial PoiseTM. This article is subject to the disclaimers found here.
Take Time to Update Your Handbook
When did you last update your employee handbook? With the end of the year nearing, now is a good time. Your policies should provide clear guidelines to your workforce about what you expect of them. Policies should also be a guide to HR regarding complaint procedures, discharge procedures, and even investigations if those are a part of your policies or handbooks. The new year also provides a fresh start, as well as an opportunity for you to roll out new policies (hello, social media and return-to-work policies) and remind your workforce about your company’s expectations.
Good Point. What Do I Do?
Take a breath, grab a cup of coffee, and use the tips below as a starting point.
Step 1: Review Your Handbook and Policies
Check to make sure you have key policies. Some of our favorites to consider:
Disclaimers for at-will employment and to make clear the handbook is not a contract of employment
Equal Employment Opportunity policy
Anti-discrimination and anti-harassment policy.
Anti-retaliation policy
Complaint procedure for employees who feel they have been subjected to discrimination or harassment
Accommodations procedures under the Pregnant Workers’ Fairness Act (PWFA), the Americans with Disabilities Act (ADA), and Title VII Religious Accommodations (note: these three laws define reasonable accommodations differently)
Payroll practices and compensation policies, including a clear way to complain about a paycheck issue
Background check policies (if applicable)
Attendance policies
Standards of conduct
Disciplinary policies
Check to see if your policies are easy to understand and match your actual practice. (We’re looking at you, complaint procedures.)
Identify new policies you want to incorporate, like social media or remote work policies.
Check to see if you should narrow your policies.
For example, do your policies allow employees to report sexual harassment to everyone under the sun? Would it be better to limit the recipients to certain HR employees or specific higher-level employees?
Does your discipline policy leave room for discretion when needed?
Step 2: Work with Legal
Some policies are legally required, while some have specific processes or language that must be used. Working with a lawyer to assist you with these specifics will help you avoid legal pitfalls.
If you have employees in multiple states, legal can help flag potential state issues.
If you have a unionized workforce, legal will help you align your policies with the collective bargaining agreement.
Step 3: Roll Out Updated Handbooks and Policies
Tell your workforce about any new policies and reiterate old ones. It never hurts to remind your workforce about your anti-discrimination and anti-harassment policies and how they can file a complaint.
Get everyone’s acknowledgement that they received the updated handbook.
Host a specialized training for managers and supervisors.
Step 4: Set a Reminder to Do the Same Handbook Audit Next Year (or at least every other year)
An ounce of prevention is worth a pound of cure. Taking steps now to update your policies and ensure legal compliance may help deter costly litigation in the future or at least provide good defenses.
The Changing Face of Legal Practice
For many years, the practice of law revolved around the ‘billable hour.’ It was the common language of profitability and productivity; a simple equation that linked time to value. But in a world now defined by data, automation, and client expectations for efficiency, that formula is breaking down. With technology redefining how work is done and measured, the question is no longer whether to adapt, but how.
The Tech Transformation
Legal technology (‘legal tech’) is no longer just about digitizing documents or improving research speed. It’s about redesigning the business model itself. Tools like e-discovery software, contract-automation platforms, AI-assisted drafting, and client collaboration portals have turned what were once tedious manual processes into streamlined, data-rich systems. But as Charlie Uniman of Legal Tech StartUp Focus observes, without leadership, technology adoption stalls. Firms that integrate technology into strategic planning, rather than treating it as an IT expense, are the ones that capture real value. Law firms increasingly need to think like startups: experiment, test, and iterate until technology becomes second nature.
This shift isn’t only cultural; it’s financial. When used strategically, legal technology enhances profitability by reducing write-offs, shortening turnaround times, and creating data that informs pricing and resource allocation. The key is to link these operational gains directly to the bottom line; something many traditional firms are still learning to do.
Automation and the End of the Billable Hour
Automation is now central to the legal tech transformation. It powers contract review, billing, docket management, and even elements of due diligence. But it also exposes a structural flaw. As Mathew Kerbis of Subscription Attorney, LLC notes, in a billable-hour world, efficiency can actually hurt revenue. In fact, his observation captures a hard truth: many firms are trapped in a model that rewards inefficiency. To move forward, they must separate value from time and adopt pricing that reflects outcomes, not hours.
To that end, Kerbis champions the subscription model, a system in which clients pay a set fee for defined ongoing services. For instance, a small business might pay a monthly fee covering employment advice and contract review. This approach turns legal work into a predictable service rather than a fluctuating expense. It also creates recurring revenue, which can build stability and provide opportunity for scalability. A predictable income stream allows firms to plan, invest, and weather market fluctuations. Subscription and fixed-fee pricing make automation an ally of profitability instead of its enemy.
Data and Decision-Making: The New Legal Currency
In every industry, data drives smarter decisions, and law is finally catching up. Today, firms are using analytics to understand case costs, predict matter timelines, and analyze profitability across practice areas. The result is a move from intuition-based management to evidence-based strategy.
Firms that leverage analytics to refine pricing and forecasting can gain a measurable competitive edge. Those firms can model profitability by matter type, anticipate overruns, and negotiate smarter alternative fee arrangements. Understanding one’s cost of delivery, the total expense of providing a service, is fundamental to pricing effectively. Without that data, firms can’t confidently offer fixed fees or value-based pricing.
Matter analytics, combined with client feedback, also improve relationships. When lawyers use data to demonstrate efficiency or accuracy improvements, they strengthen client trust.
Maya Markovich of the American Arbitration Association cautions, however, that technology alone won’t change anything. Adoption, not acquisition, determines success. Data must be used to inform daily decision-making; otherwise, it is useless.
Clients Are Driving the Change
Perhaps the most powerful force behind the legal tech transformation is client pressure. Corporate legal departments and business owners increasingly measure legal value the same way they assess any other vendor, i.e., by outcomes, predictability, and return on investment. They are demanding more for less, and they have the leverage to get it.
According to Dennis Kennedy, Professor Emeritus and Director Emeritus, Center for Law, Technology & Innovation at the Michigan State University College of Law, clients want clarity. They want to know how technology improves quality, how pricing aligns with results, and how data ensures accountability.
Many general counsel now evaluate firms using metrics such as turnaround time, budget variance, and satisfaction scores. This client-driven revolution forces firms to adopt technology not for novelty’s sake but because it’s now part of doing business. In that sense, the market, and not regulation, is driving innovation.
Reimagining the Legal Business Model
Technology and client demands are converging to push firms toward a more entrepreneurial model. The traditional structure that included partners, associates, and billable hours is giving way to smaller, multidisciplinary teams supported by digital systems.
Forward-looking firms are testing hybrid pricing structures: partial fixed fees, success bonuses, or subscriptions combined with hourly elements for unpredictably complex work. These approaches reflect the blended reality of modern legal practice; some parts of a matter can be automated or standardized, while others still require bespoke strategy and judgment.
Incorporating these hybrid models requires cultural change. Partners must see technology as an enabler of better margins, not a threat to tradition. When firms view process improvement as an investment in long-term profitability, they build resilience against market shifts and pricing pressure.
From Innovation to Impact
With the evolution and adoption of legal tech, the future is not about working harder but working smarter, and aligning every decision with client value. The challenge for every firm is to recognize that change is already here and to embrace it as an opportunity rather than a threat.
Those firms seeking to integrate legal tech into their practice can start with a few disciplined steps:
Start with the client: Identify their pain points.
Map your workflow: Visualize every step of how a matter gets done and flag inefficiencies.
Automate selectively: Start with routine tasks like intake forms, NDAs, or invoice reviews.
Measure cost of delivery: Understand all inputs, staff time, tools, and overhead, to price confidently.
Experiment with Alternative Fee Arrangements: Begin small with capped fees or flat-fee pilots, and expand what works.
Empower champions: Assign respected partners or managers to lead innovation and reward participation.
Track metrics and share wins: Celebrate measurable outcomes like reduced turnaround or improved satisfaction.
This article was originally published on November 10, 2025 here.
Out-of-State Sony TV Users Can’t Sue Under California Privacy Laws
A recent ruling from the U.S. District Court for the Northern District of California underscores the limits of state privacy statutes, particularly when plaintiffs reside outside the state and the alleged misconduct lacks a clear connection to California. The decision by Judge Jacqueline Scott Corley dismissed a proposed class action against California-based analytics company Samba TV Inc., clarifying the reach of both state and federal privacy protections. Steve Dellasala, et al., v. Samba TV, Inc., No. 3:25-CV-03470-JSC, 2025 WL 3034069 (N.D. Cal. Oct. 30, 2025).
Plaintiffs from North Carolina and Oklahoma claimed that Samba TV, whose technology is installed on certain Sony televisions, intercepted their private video-viewing data in real time and without consent. The data allegedly included unique device identifiers such as IP addresses.
These individuals brought their suit in federal court in California, asserting claims under:
The Comprehensive Computer Data Access and Fraud Act (CCDAFA)
The California Invasion of Privacy Act (CIPA)
The federal Video Privacy Protection Act (VPPA)
Intrusion upon seclusion under general privacy law
Judge Corley found that both the CCDAFA and CIPA specifically indicate the California legislature’s intent for the statutes not to apply extraterritorially; that is, they do not reach conduct occurring wholly outside California. Since the alleged collection and interception of data took place from televisions in North Carolina and Oklahoma and the complaint did not sufficiently allege that the conduct occurred within California, the court held that the California statutes are inapplicable.
The plaintiffs also invoked the federal VPPA, a law designed to protect video rental records from unauthorized disclosure. Judge Corley ruled these claims failed as well, holding that Samba TV does not qualify as a “video tape service provider” under the statute. Instead, Samba was deemed an analytics provider using information about video product usage, rather than distributing, renting, or selling video materials.
Lastly, the court evaluated whether the invasion of privacy was sufficiently “highly offensive” to sustain a claim for intrusion upon seclusion. Collecting an IP address alone, without more, the court held, does not meet the legal threshold for such a claim, especially without allegations showing exactly how the data was used or disclosed.
This decision provides a few key takeaways:
Geographic Limitations of State Laws: California’s privacy statutes are meant to protect California residents and activities occurring within the state’s borders. Out-of-state plaintiffs cannot easily reach for these statutes in California federal court if the alleged misconduct occurred elsewhere.
VPPA’s Narrow Scope: Plaintiffs should be cautious in applying the VPPA to technology or analytics firms unless those entities directly provide video rental, sale, or similar services.
Heightened Requirements for Privacy Claims: Simply collecting identifiers like IP addresses, without more “highly offensive” conduct or misuse, may not clear the hurdle for intrusion upon seclusion or comparable claims under tort law.
This decision highlights the continued challenges in holding technology and analytics companies accountable under a patchwork of state and federal privacy laws, especially for consumers outside states with robust data privacy protections. Plaintiffs seeking redress for alleged privacy violations must pay close attention to jurisdictional limits and the scope of relevant statutes, as courts may remain vigilant in enforcing these boundaries. As data privacy concerns continue to grow, both legislatures and courts will likely face ongoing pressure to clarify and expand the reach of these protections.
The New Rules of AI-Driven Search Visibility for Law Firms
For more than two decades, law firms have relied on Google as a primary channel for attracting new clients. But that reality is shifting. Generative AI platforms such as ChatGPT, Google AI Overviews, and Perplexity are redefining how people find and evaluate professional services, including legal counsel.
The traditional experience of typing a few words into a search bar and scanning a page of results is giving way to direct, conversational searches and answers drawn from trusted sources, client reviews, and credible mentions. Instead of lists of firms, consumers are now being presented with just a few recommendations.
For law firms, appearing in traditional Google search results is no longer enough. If a firm is not visible to AI-powered discovery tools, it risks being invisible and losing potential clients.
What Has Changed with AI and Search Visibility
Generative AI does not rank websites the way Google’s search algorithm does. Instead, it looks for signals of authority, trust, and corroboration across the web. A first-page Google ranking does not guarantee inclusion in an AI-generated answer.
This has created what can be called the AI visibility gap. Many firms are absent from AI-generated results because their digital credibility signals—such as reviews, citations, structured data, and mentions—are not strong enough.
AI-driven traffic also behaves differently. These potential clients may click less, but when they do, they are often further along in their decision process. The implication is clear: firms must adapt how they are discovered and how they convert that visibility into consultations and cases.
How Law Firms Can Stay Visible
The fundamentals of visibility are evolving, but the roadmap is coming into focus. To remain relevant in an AI-first world, firms should focus on three core areas:
Strengthen authority and relevance signals.Publish content that answers client questions directly and in plain language. FAQs, explainer articles, and resource pages written in a conversational tone help AI models understand your expertise.
Build external credibility.Encourage client reviews on trusted platforms. Seek mentions in directories, legal associations, and reputable media outlets. Reviews and citations are key trust indicators for AI systems determining which firms to recommend.
Optimize for AI-driven leads.Even if the way people find your firm changes, pay attention to which sources bring them in and what they do once they arrive. Ensure the calls-to-action (whether calls, forms, or chat) are clear, accessible, and easy to complete.
A firm’s local presence still matters. If your Google Business Profile is not accurate or consistent, AI will not trust it. Visibility starts with the basics.
Why a Clear Visibility Strategy Matters
Ranking for keywords is no longer the goal. Firms should align their optimization and content efforts with measurable business outcomes such as qualified leads, consultations booked, and new client retainers.
It is important to recognize the different types of visibility and how they play distinct roles for potential clients:
Google Maps for location-based searches
AI search results for general questions, such as “how much does it cost to get a divorce?”
Voice assistants for people searching verbally while driving or multitasking
Directories and review platforms for building and verifying trust
Each of these requires a slightly different approach. Firms cannot afford to chase every channel. The key is prioritizing the tactics and platforms that best align with your goals, resources, and competitive landscape.
Feeling Overwhelmed? You’re Not Alone
Keeping up with these changes can feel daunting. Most firms do not have the time or resources to track AI search trends, manage structured data, or stay on top of reviews and directory updates.
That is where the right marketing partner makes a difference. Experienced partners bring the tools, scale, and expertise to help firms test new strategies, whether optimizing for AI discovery, refining website content, or integrating new communication tools, without distracting from the work of serving clients.
The payoff is real: law firms that strengthen their online authority and maintain a consistent digital presence are more likely to appear in AI-generated results and be recommended by modern search tools.
Measuring Success in the AI Era
Traditional SEO metrics still matter, but they no longer tell the whole story. Firms should also track:
Conversions from calls, chats, or form fills tied to AI-originated traffic
On-site engagement signals, such as time on page and bounce rate
Growth in client reviews and reputation strength
Combining traditional SEO data with new AI-specific insights provides a more complete view of how visibility translates to client growth.
Adapting to Win in an AI-Driven World
The way people search for legal help is evolving rapidly. What has not changed is their need for fast, trusted answers. Increasingly, those answers are being delivered by AI platforms that surface only a select few firms.
The takeaway for law firms is clear: Visibility now depends on authority, consistency, and credibility across the web. Firms that adapt early, strengthening digital signals, refining strategy, and aligning marketing with business outcomes, will be best positioned to stand out and win more clients.
The rules are changing. The opportunity is real. For firms ready to lead, now is the time to prepare for the future of search, because the future is already here.
Why Law Firms Need a System for Attorney Development
Introduction: The Growing Challenge of Attorney Development
Law firm leaders everywhere are increasingly recognizing the need for structured, intentional systems that support the development of their attorneys. Despite their best efforts, many firms struggle to create environments where associate attorneys thrive, contribute meaningfully, and remain with the firm long term.
Too often, vague expectations, inconsistent supervision, and a lack of clear developmental milestones lead to underperformance, high turnover, and missed opportunities for growth for both the attorney and the firm.
Having worked with law firms of all sizes for decades, we have seen that attorney success doesn’t happen by chance. It requires practical, transparent, and data-informed systems that clearly communicate what is expected and how success is achieved.
Introducing ARMS: The Attorney Relationship Management System
This series introduces the Attorney Relationship Management System (ARMS), a strategic framework designed to intentionally develop attorneys who are skilled, profitable, engaged, and aligned with the firm’s long-term success.
At its core, ARMS is an interconnected system of attorney development resources. It enables firm leaders to take a proactive and purposeful approach to attorney supervision, skill development, and career planning. The system is flexible enough to adapt to each firm’s unique culture and practice areas, while still maintaining a disciplined structure for goal setting, evaluation, mentorship, and accountability.
A System That Brings Clarity and Consistency
With ARMS, law firm leaders can manage attorney development with clarity, transparency, and consistency. It ensures that attorneys understand:
What is expected of them
When they are expected to achieve it
How will they be supported along the way
The system promotes professional growth in a way that strengthens each attorney’s connection to the firm’s mission, culture, and business goals. It’s a foundation for firms that want to move from reactive management to intentional leadership.
What ARMS Delivers
ARMS connects a firm’s performance expectations, developmental programming, compensation strategies, and employee experience into one cohesive system.
It provides the structure to align economic goals with attorney growth and to ensure the firm’s investment in its people pays dividends in performance, satisfaction, and long-term loyalty.
The framework is divided into two major segments:
Foundational Analysis: understanding your firm’s current culture, economics, and performance management systems to build a realistic strategy for development.
Attorney Relationship Framework: the operational structure that includes tools for managing performance, mentorship, evaluations, compensation, and career progression.
The American Legal Technology Awards Name 2025 Winners
The sixth annual American Legal Technology Awards were presented on Wednesday, October 15th, at Suffolk University Law School (Boston), recognizing winners across ten categories. There were 211 nominees who were evaluated by 27 judges.
The honorees on the night included:
2025 Awards Winners by Category
Access to Justice: Maryland Justice Passport “We really set out to make the delivery of legal services more humane.” The Passport coordinates intake across 10 Maryland organizations and is achieving an 81% case placement rate.
Court: Ohio Legal HelpOhio Legal Help showed how mobile‑first courts can meet people where they are. As their team put it, “We talk about access to justice, but if we can’t get them to the finish line, it’s incomplete.”
Education: Sarah Mauet Sarah Mauet’s UX4Justice course uses a research‑driven framework that trains students and professionals to design trauma‑informed tools that truly serve court users.
Enterprise: Onit (Unity)Onit’s acceptance captured the legal‑ops zeitgeist: “AI [at Onit] is conceived by lawyers for lawyers… we’re allergic to inefficiency.” Unity embeds intelligence across the legal workflow—proactive insights, automated decisions, and predictive analytics—transforming how departments operate.
Individual: Nick Rishwain Nick invests where impact multiplies: mentorship, introductions, funding, and access for underrepresented founders and for markets incumbents overlook.
Journalism: Marlene Gebauer (The Geek in Review) “Podcasting’s about telling stories,” Marlene said, thanking a community that’s grown with the show for seven years. Journalism that illuminates without hype is a public good; we’re grateful.
Startup: ClaimScore ClaimScore reminded us that integrity and accessibility can coexist. “We’ve seen up to 99% of claims [in a single matter] be fraudulent… These [bad] actors are stealing millions… from class members who deserve this,” co‑founder Brian explained. Their real‑time fraud detection protects settlements while smoothing the path for legitimate claimants.
Law Firm: Gunderson Dettmer (ChatGD+)Gunderson’s ChatGD+ isn’t a pilot; it’s a culture. Built on a modern research/workflow stack, it puts AI into research, drafting, and routine tasking while attorneys feed continuous feedback to make the tools better.
Artificial Intelligence: Free Law Project Jennifer Whiston spoke to Free Law Project’s mission: “We believe that the law should be accessible to everyone, not just those with resources or representation… Everything we do is open source… We keep a human in the loop in everything that we do.”
Lifetime Achievement: Jim Calloway For three decades, Jim has been the legal profession’s most trusted technology mentor. Jim reminded us that technology training is a form of social justice. His closing challenge reverberated: “If the people in this room would reach out, even if it’s just teaching one enrichment course, you could change a lawyer’s life.”
Runners‑up noted in the official summaries were: Nora Cregan (Access to Justice); Maryland Center for Legal Assistance (Court); Rebecca Fordon (Education); BigHand (Enterprise); Colin Lachance (Individual); Stephen Embry (Journalism); New Era ADR (Startup); Janice Dantes / Pinay Law (Law Firm); and Descrybe.ai (Artificial Intelligence).
Program Notes
The organization’s co-founders came together to underscore how the legal technology community continues to serve both the profession and a larger public good.
Building Together: Co‑founder Tom Martin framed this year’s theme as “Time to Build.” “One thing that’s more important than technology is us: human beings. When we work together and collaborate… we all want better lives for ourselves and our families.” That’s why we build.
Progress and Principles: Co‑founder Patrick Palace underscored the profession’s oath to the Constitution and the importance of judicial independence.
Shining a Light: Co‑founder Cat Moon introduced the Lifetime Achievement Award and emphasized that highlighting and sharing work across the community is the best way to accelerate progress. She spoke about shining a bright light on the work so we can “be inspired by each other, learn from each other, and make each other better.”
Host & Partners: Suffolk University Law School hosted the ceremony; event sponsors included 8am, Clio, and ARAG Legal.
For category descriptions and short profiles of each honoree, see the Summaries of Winners, Runners Up, and Honorable Mentions booklet distributed with the event. The full-length video of the awards ceremony is now available on YouTube.
AI Tools in Use – Time for an AI Policy
Every RIA that uses artificial intelligence (“AI”) tools as part of their day-to-day operations should have an AI policy that outlines appropriate use of these tools in the firm’s practice.
New AI tools are rapidly being integrated into firms’ operations. From productivity and search tools like ChatGPT and Gemini to meeting transcription tools like Microsoft CoPilot, AI tools are changing how we work.
While these tools can help improve efficiency by assisting with tasks, such as conducting online research, summarizing meetings, and automating routine workflows, the use of these tools heightens the need for Firms to adhere to all applicable regulatory requirements. This includes safeguarding client data, privacy and confidentiality considerations, maintaining accurate books and records, conducting due diligence of vendors, and potentially being prepared to provide search or transcript history to regulators during an examination.
Without a formal policy, there is a risk that AI tools may be adopted and implemented without appropriate due diligence and oversight. This could lead to errors, data breaches, or failures to comply with regulatory requirements.
Furthermore, the AI policy should indicate to employees which AI tools are authorized for use and specify appropriate uses of AI tools by establishing these guidelines, the Firm can help ensure that AI is integrated in a way that aligns with its objectives, while maintaining strong compliance standards and safeguarding client privacy.
An AI policy is essential to help ensure the Firm complies with regulations, protects clients, and responsibly integrates AI tools into its operations.
Regulatory Update and Recent SEC Actions/October 2025
Recent SEC Administration Changes
SEC Announces George Botic to Serve as Acting Chair of the PCAOB
The Securities and Exchange Commission (the “SEC”) announced on July 21, 2025, that George Botic was designated to serve as the Acting Chair of the Public Company Accounting Oversight Board (“PCAOB”), effective July 23, 2025. Mr. Botic is a Certified Public Accountant and became a PCAOB Board Member in October of 2023. Prior to joining the PCAOB Board, he served as the Director of the PCAOB’s Division of Registration and Inspections. Former PCAOB Chair Erica Williams resigned from the PCAOB’s Board, effective July 22, 2025.
SEC Names Judge Margaret Ryan as Director of the Division of Enforcement
The SEC announced on August 21, 2025, that Judge Margaret Ryan has been named Director of the Division of Enforcement. The appointment became effective on September 2, 2025, and Acting Director Sam Waldon returned to his previous position as Chief Counsel for the Division of Enforcement. Judge Ryan has served in a variety of roles throughout her career, including serving as an active-duty U.S. Marine Corps officer, with two deployments; a judge advocate in the U.S. Marine Corps; a partner at two different law firms; and a law clerk to both Supreme Court of the United States Justice Clarence Thomas and Judge J. Michael Luttig of the United States Court of Appeals for the Fourth Circuit. Most recently, she served as a senior judge of the United States Court of Appeals for the Armed Forces from 2006 through 2020 and has since been a lecturer at Harvard Law School and The George Washington University Law School, as well as a visiting professor at Notre Dame Law School. Judge Ryan obtained her B.A. from Knox College and her J.D. from the University of Notre Dame Law School.
James Moloney Named Director of Division of Corporation Finance
The SEC announced on September 10, 2025, that James Moloney was named Director of the SEC’s Division of Corporation Finance. Cicely LaMothe, who was serving as Acting Director, will return to her previous role as Deputy Director of the Division. From 1994 to 2000, Mr. Moloney was an attorney-advisor and special counsel in the Office of Mergers & Acquisitions in the Division of Corporation Finance where he was the primary author of the proposing and adopting releases for Regulation M-A. Since 2000, Mr. Moloney has been at Gibson Dunn & Crutcher, where he worked his way from a corporate associate to an equity partner, serving as the longstanding co-chair of the firm’s securities regulation and corporate governance practice. Mr. Moloney obtained his B.S. in business administration from Boston University, his J.D. from Pepperdine University, and his LL.M. degree in securities regulation from Georgetown University Law Center.
Jon Kroeper Named Deputy Director of the Division of Trading and Markets
The SEC, on September 24, 2025, named Jon Kroeper as deputy director of the Division of Trading and Markets, effective September 29, 2025. Mr. Kroeper previously spent eight years (1994-2000; 2005-2007) working as an attorney-advisor, senior counsel, and counselor to a Commissioner and a counsel to the SEC Chairman, advising on rulemaking, enforcement, and policy matters before the SEC with an emphasis on market structure, exchange, and broker-dealers. From 2007 until 2024, Mr. Kroeper was an executive vice president at the Financial Industry Regulatory Authority (“FINRA”) in the market regulation department. Mr. Kroeper received his J.D. from the Chicago-Kent College of Law and his B.A. in government from Georgetown University.
SEC Announces Departure of Chief Operating Officer
The SEC announced that Ken Johnson, who had served as Chief Operating Officer (“COO”) since December 2017, will retire from the agency in December 2025. As COO, Mr. Johnson has overseen the SEC’s operational and administrative functions, including the agency’s Office of Human Resources, Office of Acquisitions, and Office of Financial Management. Mr. Johnson also served as the SEC’s chief financial officer from 2010 to 2017 and as a management analyst and chief management analyst between 2003 and 2010.
SEC Rulemaking
SEC Permits In-Kind Creations and Redemptions for Crypto ETPs
The SEC voted on July 29, 2025, to approve orders to permit in-kind creations and redemptions by authorized participants for crypto asset exchange-traded product (“ETP”) shares. The approval orders reflected a departure from recently approved spot bitcoin and ether ETPs, which were limited to creations and redemptions on an in-cash basis. The approval orders allow all bitcoin and ether ETPs to create and redeem shares on an in-kind basis, consistent with commodity-based ETPs.
“It’s a new day at the SEC, and a key priority of my chairmanship is developing a fit-for-purpose regulatory framework for crypto asset markets,” said SEC Chairman Paul S. Atkins. “I am pleased the Commission approved these orders permitting in-kind creations and redemptions for a host of crypto asset ETPs. Investors will benefit from these approvals, as they will make these products less costly and more efficient.”
Division of Corporation Finance Issues Staff Statement on Certain Liquid Staking Activities
The SEC’s Division of Corporation Finance issued a staff statement clarifying that, under specified conditions, “liquid staking” arrangements—whereby crypto asset holders deposit their tokens with a protocol or third-party service provider and receive one-for-one “Staking Receipt Tokens” that evidence continued ownership and accrued rewards—generally do not involve an “offer or sale of securities” under Section 2(a)(1) of the Securities Act of 1933, as amended (the “Securities Act”) or Section 3(a)(10) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Applying the Howey analysis, the Division concluded that the limited, administrative or ministerial role of Liquid Staking Providers—who simply facilitate staking, hold the assets in a wallet or smart contract, and may deduct a fee—does not constitute the “entrepreneurial or managerial efforts of others” required to create an investment contract, and the Staking Receipt Tokens themselves function merely as receipts for the underlying non-security crypto assets. Accordingly, neither the minting, issuance, nor redemption of these tokens, nor related secondary-market transactions, require Securities Act registration—unless the underlying crypto asset is itself part of, or offered in connection with, an investment contract. The full statement and discussion can be read here.
Staff Issues FAQs to Help Broker-Dealers Implement Financial Responsibility Requirements Related to U.S. Treasury Clearing
The SEC’s Division of Trading and Markets, on August 6, 2025, issued answers to Frequently Asked Questions (“FAQs”) that broker-dealers have posed to the staff regarding amendments to Rule 15c3-3 under the Exchange Act (the customer protection rule). The FAQs include topics ranging from the use of customers’ securities to meet margin requirements, excess margin collateral, and mark-to-market or variation margin payments.
President Donald Trump Signs Executive Order to Facilitate Retirement Plans Access to Alternative Investments
President Donald Trump signed an Executive Order (“EO”) on August 7, 2025, directing the U.S. Department of Labor (“DOL”) and the SEC to take action to review regulations and guidance to make it easier for retirement plans to invest in a wider range of “alternative assets.” The EO defines alternative assets to include private equity, real estate, commodities, and actively managed investment vehicles that are investing in digital assets. The EO tasks the DOL with re-examining guidance on alternative assets in 401(k) and other defined-contribution plans and the fiduciary duties involved with offering asset allocation funds that contain alternative investments, as well as instructs the SEC to consider ways to facilitate access to investments in alternative assets by participants in participant-directed defined-contribution retirement savings plans, within 180 days of the EO.
SEC Staff Issues Guidance on Registered Closed-End Funds’ Investments in Private Funds
The SEC staff in the Disclosure Review and Accounting Office of the Division of Investment Management published an Accounting Disclosure Information document (the “ADI”) on August 15, 2025. The ADI states that the staff of the Division of Investment Management will no longer provide comments requesting that a fund either (i) include accredited investor status and minimum investment requirements or (ii) limit its private fund investments to 15 percent of assets. According to the ADI, these changes reflect the evolution of both registered funds, private fund advisers, and the rules and regulations governing both since 2002 when the registration statement for the first registered closed-end fund that invested in private funds was approved. Furthermore, the ADI states that any closed-end fund currently operating and that has invested (or seeks to invest) over 15 percent of its assets in private funds and has removed, or seeks to remove, accredited investor and/or investment minimum shareholder limitations from its registration statement should (i) file an amendment to its registration statement through rule 486(a)-(b) under the Securities Act or (ii) file prospectus supplement updates through rule 424 under the Securities Act, as appropriate. Such funds should consider whether the cumulative changes incorporated in those amendments and updates (including any changes in addition to removing the accredited investor and investment minimum shareholder limitations) are material, which would require the staff’s review under rule 486(a).
Further, the SEC staff indicates that registrants that currently limit private fund exposure to 15 percent of assets and never imposed accredited investor and/or investment minimum shareholder limitations in their registration statements and now seek to remove the 15 percent limitation should reflect such changes through a post‑effective amendment filing under rule 486(a), as such a change is material and should be reviewed by staff. The ADI further states that the Division encourages registrants to engage with the staff to determine what filings and disclosures are appropriate for closed‑end funds that invest in private funds. The full ADI is available on the SEC’s website, here.
SEC and CFTC Staff Issue Joint Statement on Trading of Certain Spot Crypto Asset Products
The SEC and Commodity Futures Trading Commission (“CFTC”) issued a joint statement, on September 2, 2025, clarifying their view that SEC- and CFTC-registered exchanges are not prohibited from facilitating the trading of certain spot commodity products. The SEC’s Division of Trading and Markets and the CFTC’s Division of Market Oversight and Division of Clearing and Risk are coordinating efforts to facilitate the trading of certain spot crypto asset products on registered exchanges.
“Today’s joint staff statement represents a significant step forward in bringing innovation in the crypto asset markets back to America,” said SEC Chairman Paul Atkins. “Market participants should have the freedom to choose where they trade spot crypto assets. The SEC is committed to working with the CFTC to ensure that our regulatory frameworks support innovation and competition in these rapidly evolving markets.”
SEC Approves Generic Listing Standards for Commodity-Based Trust Shares
The SEC voted to approve proposed rule changes by three national securities exchanges to adopt generic listing standards for exchange-traded products that hold spot commodities, including digital assets. The approval, announced on September 17, 2025, allows exchanges to list and trade Commodity-Based Trust Shares that meet the requirements of the generic listing standards without first submitting a proposed rule change to the SEC pursuant to Section 19(b) of the Exchange Act. Furthermore, the SEC approved the listing and trading of the Grayscale Digital Large Cap Fund, which holds spot digital assets based on the CoinDesk 5 Index, and the listing and trading of p.m.-settled options on the Cboe Bitcoin U.S. ETF Index and the Mini-Cboe Bitcoin U.S. ETF Index. The SEC’s order approving the standards can be found here.
SEC and CFTC Extend Form PF Compliance Date to October 1, 2026
The SEC announced on September 17, 2025, that it and the CFTC each voted to further extend the date for investment advisers to comply with amendments to Form PF, the confidential reporting form used by certain private fund advisers. The SEC extended the compliance date to October 1, 2026. The Form PF amendments were originally adopted in February 2024 with an original compliance date of March 12, 2025. This is the third time that the compliance date has been extended. For a discussion of the Form PF amendments, please see our past Regulatory Update discussing the topic here.
SEC Issues Policy Statement Clarifying that Mandatory Arbitration Provisions Will Not Affect Effectiveness of Registration Statements
The SEC published a policy statement on September 17, 2025, which announced that decisions about whether to accelerate the effectiveness of a registration statement will not be affected by the presence of a provision requiring arbitration of investor claims arising under the federal securities laws. The policy statement announces that the SEC does not view these provisions as inconsistent with the federal securities laws and thus, the presence of such a provision alone, will not be determinative as to whether to accelerate effectiveness of a registration statement. The full policy statement can be found here.
SEC Seeks Public Comment to Improve Rules on Residential Mortgage-Backed Securities and Asset-Backed Securities
The SEC published a concept release on September 26, 2025, soliciting public comments on how to improve the SEC’s current rules governing residential mortgage-backed securities (“RMBS”) and certain aspects of asset-backed securities (“ABS”) (the “Concept Release”). Although there have been no public RMBS offerings since 2013, the Concept Release seeks feedback on whether certain disclosure requirements should be revised and how to share certain sensitive mortgage information with investors in light of privacy and confidentiality concerns. The Concept Release also seeks comments on whether certain regulatory definitions should be revised and whether revisions to any other ABS regulations should be considered to facilitate access to the public market. The Concept Release can be found here.
SEC Enforcement Actions and Other Cases
11th Circuit Overturns Funding Model for SEC Database
The United States Court of Appeals for the Eleventh Circuit vacated a 2023 SEC order on July 25, 2025, that created a new funding plan for the Consolidated Audit Trail, a centralized database the SEC created in 2012 to track trading on securities markets. The new funding plan would have required broker-dealers to provide two-thirds of the cost for the build-out and continued maintenance of the database and the SEC and other self-regulatory organizations running the site would pay the remaining third. The Court noted that it is possible for these self-regulatory agencies to pass through their fees to the broker-dealer members. The Court determined that the SEC had not considered the potential pass through to broker-dealers and, as a result, the order was unreasonable.
5th Circuit Rules Against SEC’s Short-Selling Rules
The United States Court of Appeals for the Fifth Circuit issued an opinion on August 25, 2025, remanding a pair of rules aimed at bolstering transparency in the short-selling market, ruling that the SEC had failed to consider the economic impact of adopting both rules at once. Rule 13f-2 and the amendment to the National Market System Plan governing the consolidated audit trail were originally adopted on October 13, 2023. For a discussion of the rules, please see our Regulatory Update, here. The Fifth Circuit held that because the rules were related, the SEC should have considered the combined costs of complying with both, and remanded the rules to the SEC to allow the agency to consider and quantify the cumulative economic impact of the rules.
Shareholder Files Class Action Lawsuit Over Fund Accounting Practices
A shareholder (the “Shareholder”) filed a class action lawsuit in Delaware Court on behalf of investors in nine mutual funds (the “Funds”) against the trust of which the Funds are series, their investment adviser and other related parties, as well as the Funds’ independent directors. According to the complaint, the suit was brought to recover for losses associated with alleged false and misleading statements and material omissions in registration statements and prospectuses related to (i) accounting practices and treatment of accrued dividend income and capital gains from underlying fund portfolio holdings; (ii) inflated net asset value (“NAV”) calculations resulting from such accounting practices; and (iii) failures to disclose the risks of such accounting practices. The plaintiff alleges that the Funds’ NAVs were inflated by adding in dividends and capital gains before they were distributed, which would cause investors to overpay for shares and face higher tax liabilities. Furthermore, the complaint alleges that the independent directors of the Funds signed misleading accounting statements. The Shareholder’s law firm filed a nearly identical suit against another mutual fund complex and its independent directors in New York Supreme Court. On October 2, 2025, the Shareholder dropped the independent directors and multiple of the Firm’s officers from its complaint.
Federal Court Enters $0 Judgment Against Airline Company in ESG Suit
Earlier this year, a Texas judge issued a finding of fact and conclusion of law that an international airline company (the “Defendant”) violated federal benefits law by emphasizing environmental, social, and governance factors (“ESG”) in its 401(k) plan decisions. A discussion of this initial ruling can be found in our Regulatory Update, here. On September 30, 2025, the court issued a final judgment (the “Judgment”) that the plaintiff failed to meet their burden of proof establishing a causal link between the Defendant’s breach and actual economic loss. The Judgment, however, imposes equitable relief in the form of a series of new plan policies including a ban on proxy voting and shareholder proposals motivated by non-pecuniary ends, and the appointment of two independent members to the plan’s benefits committee.
Other Industry Highlights
SEC Chairman Atkins Launched ‘Project Crypto’ to Overhaul Policy
SEC Chairman Paul Atkins (the “Chairman”) said on July 31, 2025, that he has tasked staff members across the agency to craft rules and exemptions for digital assets. The Chairman said that the commission-wide initiative directs the agency’s policy divisions to quickly develop clear guidelines that market participants can use to determine whether a crypto asset is a security or is subject to an investment contract. The Chairman stated that he envisions a framework that allows crypto assets that are not securities to trade alongside crypto securities on SEC-regulated platforms. The Chairman noted that another key priority for the SEC staff would be addressing how best to adapt existing rules for the safekeeping of tokens, including potential exemptive relief. The SEC has already begun developing rules and guidelines, including those that we discussed above in “SEC and CFTC Staff Issue Joint Statement on Trading of Certain Spot Crypto Asset Products” and “SEC Approves Generic Listing Standards for Commodity-Based Trust Shares.”
Project Crypto is not operating in isolation. Rather, the President’s Working Group on Digital Asset Markets recently released a report with recommendations to help the United States maintain its position in crypto asset markets. The SEC’s Crypto Task Force, led by Commissioner Hester Peirce, has been traveling around the country and meeting with industry experts and stakeholders concerning policies and regulations that will best allow digital asset development to flourish. Project Crypto will work closely with the Crypto Task Force to understand the needs of the industry and to develop proposed rules consistent with the goals of the President’s Working Group.
SEC Creates Artificial Intelligence Task Force
The SEC announced the launch of a task force on artificial intelligence (“AI”) that will lead the SEC’s efforts to enhance innovation in operations. Valerie Szczepanik, who has been named the SEC’s Chief AI Officer, is leading the task force. Ms. Szczepanik previously was director of the SEC’s Strategic Hub for Innovation and Financial Technology and was the senior advisor for Digital Assets and Innovation and an associate director in the SEC’s Division of Corporation Finance. Ms. Szczepanik received her J.D. from Georgetown University and her B.S. in Engineering from the University of Pennsylvania.
SEC’s Office of Information and Regulatory Affairs Releases Its Spring 2025 Regulatory Agenda
The SEC’s Office of Information and Regulatory Affairs announced on September 4, 2025, its Spring 2025 Regulatory Agenda, which includes three rules in the pre-rule stage, eighteen rules in the proposed-rule stage, and two rules in the final-rule stage. The agenda is highlighted by potential proposed rules on instituting a crypto asset framework, amendments to Rule 17a-7 under the 1940 Act, and amendments to the custody rules. Notably, there are only four items held over from the SEC’s agenda under former SEC Chair Gary Gensler. One of those items, related to transfer agents, has a new description. Previously, the SEC was considering whether to update and refine transfer agent oversight. Under Chairman Atkins, the SEC is now considering updates specifically relating to crypto assets and the use of distributed ledger technology by transfer agents. The SEC is also considering amending rules around custody of advisory client and fund assets, in each case addressing custody of crypto assets. Other agenda items include an examination of the Consolidated Audit Trail, cross-trades exemption, amendment to fund portfolio holding disclosures, and both a crypto market structure and crypto asset regulation. The full Spring 2025 Regulatory Agenda can be accessed here.
Chairman Atkins stated that the new agenda “reflects our withdrawal of a host of items from the last administration that do not align with the goal that regulation should be smart, effective and appropriately tailored within the confines of our statutory authority.”
Department of Labor Announced Spring 2025 Regulatory Agenda, Including Review of Plan Sponsor’s Fiduciary Duties
The Trump Administration announced on September 4, 2025, its Unified Agenda of Regulatory and Deregulatory Actions, which included nearly 150 proposals under the DOL’s jurisdiction. These proposals include a review of fiduciary duties associated with retirement plans. Specifically, the DOL will review the extent to which fiduciaries may consider ESG factors in investment decisions. A final rule is expected in May 2026.
SEC Approves Dual Share Class Structure
The SEC, on September 29, 2025, issued a notice to an investment adviser that it would grant its request to offer and register funds that would have share classes of both mutual funds and ETFs in a single investment vehicle. The approval allows asset managers to add share classes to funds rather than having to prepare, launch, and manage separate versions of products. There are about eighty other investment companies waiting for similar approval of the dual share class structure.
“We see this as a win,” Brian Daly, director of the SEC’s Investment Management Division, said in an interview with Reuters. “We are increasing choice. We are reducing expenses. We are increasing tax efficiency, and we are making the innovation of the ETF – which is now decades old – more accessible to the average retail investor.”
SEC Approves Application for New Dallas-Based Stock Exchange
The Texas Stock Exchange (“TXSE”) reported on September 30, 2025, that the SEC approved its application to launch a new national stock exchange. The Dallas-based exchange has indicated that it will begin trading stocks and exchange-traded products by early 2026. TXSE’s parent company stated that TXSE is the first fully integrated national securities exchange to get SEC approval in decades.
Using Deposition Testimony at Trial
From Discovery to Trial: Making Every Word Count
A well-prepared deposition can win or lose a case long before the first juror hears opening statements. The process captures testimony that can later be used to impeach a witness, refresh recollection, or serve as substantive evidence under Federal Rule of Civil Procedure 32. The difference between success and failure often lies in how a deposition, recorded months earlier, is used when it matters most.
According to Seth Horvath of Nixon Peabody LLP, ultimately depositions are not just about gathering facts; they’re about shaping the story that will unfold at trial.
The Value of Depositions
Every deposition serves multiple purposes: uncovering information, preserving testimony, testing theories, and creating leverage. Yet, as Richard Hellerman of The Law Office of Richard K. Hellerman, P.C. emphasizes, understanding what kind of deposition you are taking, and why, is crucial.
In Illinois, for example, the law distinguishes between ‘discovery’ and ‘evidence’ depositions. The former is exploratory; the latter is meant to stand in for live testimony. Under Federal Rule 32, the distinction may be less formal, but the intent remains the same: to capture admissible, reliable evidence that can later be presented to the court.
Cost is also a major factor. Matt Christensen of Johnson May notes that cost is the biggest disadvantage of depositions, particularly in bankruptcy or commercial cases where margins are thin. Depositions require attorney time, transcription fees, and sometimes travel or video setup costs. In high-volume or time-sensitive litigation, not every witness can or should be deposed. Selecting the right witnesses, identifying key issues, and controlling costs are therefore essential strategic choices.
Despite the expense, the benefits of a deposition, locking in testimony, evaluating witness credibility, and preserving evidence, often outweigh the drawbacks. The goal is not to take as many depositions as possible, but to take the right ones, with precision and purpose. A single well-executed deposition can create multiple pathways for use at trial.
Using Depositions for Impeachment
One of the most common uses of deposition testimony at trial is impeachment, i.e., challenging a witness who strays from their prior statements. This starts with a clear, accurate record. Leading questions, specific references, and careful follow-up all ensure that any inconsistencies later stand out. Ambiguity is the enemy of effective impeachment; every question should serve a purpose. Effective impeachment relies on precision, not aggression.
Hellerman advocates for the ‘funnel’ approach: starting broad, then narrowing down to exact statements that can be used later. This method ensures that the jury can easily see where the truth diverges. But restraint is just as important as precision. Over-impeaching can appear petty or distract from the bigger narrative. Jurors respect advocates who use cross-examination to reveal truth, not to badger witnesses.
Substantive Use: When Deposition Testimony Speaks for Itself
Deposition testimony isn’t limited to impeachment; it can also be used as substantive evidence. Under Federal Rule 32(a)(3), deposition testimony may be used if a witness is unavailable due to distance, illness, or death, or when it involves admissions by a party-opponent. That flexibility is critical for complex or multi-jurisdictional cases. It also means that attorneys must approach depositions as though they may be presented directly to the trier of fact. For this reason, preparation is critical.
Exhibits should be marked clearly, objections anticipated, and foundation established in the deposition itself. Failing to authenticate a document or clarify a statement at the deposition stage can lead to exclusion later. Pretrial organization, including transcript management and coordinated designations, can drastically reduce trial time and prevent confusion.
A dry transcript may suffice for a bench trial, but in front of a jury, presentation matters. As Jeff Leon of Karon LLC underscores, “You have to treat that deposition like it is the trial testimony.” Attorneys should consider using video depositions or dramatized readings to maintain attention and convey tone. The choice of format can transform passive testimony into persuasive evidence.
Bench vs. Jury Trials: Knowing Your Audience
In a bench trial, the judge values clarity and efficiency; in a jury trial, persuasion takes center stage. Federal Rule 32(c) acknowledges this by allowing flexibility in how depositions are presented. This may mean reading key excerpts with emphasis or playing video clips to convey demeanor. Judges are trained to parse transcripts, but jurors rely on delivery, tone, and context. Tailoring deposition presentation to the audience can make the difference between comprehension and confusion.
This distinction also affects preparation. For bench trials, concise designations and logical sequencing help the judge follow the testimony easily. For juries, attorneys may reorder testimony to fit the narrative arc of the case, ensuring it supports the theme established in opening statements. Every decision in presentation, from pacing to phrasing, shapes how evidence resonates.
Refreshing Recollection
Sometimes, deposition testimony isn’t admitted into evidence at all but is used to refresh a witness’s memory under Rule 612 of the Federal Rules of Evidence. This allows a witness to review their own prior statements and then testify based on refreshed memory. However, the deposition itself usually remains unseen by the jury, which hears only the new testimony.
Still, this tactic carries risks and overusing it can backfire as a jury could become skeptical of a witness who relies heavily on their previous deposition testimony. Using depositions to refresh recollection should therefore be a tool of necessity, not habit.
Turning Depositions Into Trial Advantages
The true value of a deposition lies in foresight. Every question, every objection, and every marked exhibit can become a building block for trial. Depositions should be treated as part of the trial itself, not as a separate phase of litigation. Used wisely, deposition testimony can make or break a case at trial. By treating every deposition as a rehearsal for trial, and every transcript as potential evidence, attorneys can turn ordinary questioning into an incredibly valuable resource.
To learn more about this topic, view Using Deposition Testimony at Trial. The quoted remarks referenced in this article were made either during this webinar or shortly thereafter during post-webinar interviews with the panelists. Readers may also be interested to read other articles about litigation.
This article was originally published here.
©2025. DailyDACTM, LLC d/b/a/ Financial PoiseTM. This article is subject to the disclaimers found here.
MA Office of Bar Counsel Pens Guidance for Lawyers Using AI
Continuing the weekly blog posts about lawyers using AI and getting in trouble, the Massachusetts Office of Bar Counsel recently issued an article entitled “Two Years of Fake Cases and the Courts are Ratcheting Up the Sanctions,” summarizing the problems encountered by courts when confronted with lawyers citing fake cases, and the subsequent referral to disciplinary counsel.
The article outlines multiple cases of lawyers being sanctioned for filing pleadings containing fake cases after using generative AI tools to draft the pleading. The cases range from lawyers not checking the cites themselves, to supervising lawyers not checking the cites of lawyers they are supervising before filing the pleading.
The article reiterates our professional ethical obligations as officers of the court to always file pleadings that “to the best of the attorney’s knowledge, information and belief, there is a good ground to support it,” that “any lawyer who signs, files, submits, or later advocates for any pleading, motion or other papers is responsible for its content,” and that lawyers are to provide proper supervision to subordinate lawyers and nonlawyers.
The article outlines two recent sanctions imposed upon lawyers in Massachusetts in 2025. The author states, “Massachusetts practitioners would be well-served to read the sanction orders in these matters.” I would suggest that non-Massachusetts practitioners should read the article and the sanctions imposed as they are similar to what other courts are imposing on lawyers who are not checking the content and cites of the pleadings before filing them.
Courts are no longer giving lawyers free passes for being unaware of the risk of using generative AI tools for drafting pleadings. According to the article, sanctions will continue be issued, and practitioners and firms need to address the issue head on.
The article points out several mitigations that lawyers and firms can take to avoid sanctions. My suggestion is that lawyers use caution when using AI to draft pleadings, communicate with any other lawyers involved in drafting the pleadings to determine whether AI is being used (including if you are serving as local counsel), and check and re-check every cite before you file a pleading with a court.
More Sanctions + Inquiries Against Lawyers + Judges for Cite Hallucinations
U.S. District Judge Amit P. Mehta sanctioned an attorney who filed a brief containing erroneous citations in every case cited after the attorney admitted to relying on generative AI to write the brief. The attorney had used the tools Grammarly, ProWriting Aid, and Lexis’ cite-checking tool. The attorney was ordered to pay sanctions, including opposing counsel’s invoice for fees and costs. The court noted that sanctions were necessary because the attorney had acted “recklessly and shown “singularly egregious conduct” because they did not verify the citations and the citations of all nine cases cited were erroneous. The court further noted that the lack of verification raised “serious ethical concerns.”
The attorney’s co-counsel was not sanctioned as they indicated they were unaware of the use of generative AI, but they admitted that they didn’t independently check and verify the citations and underwent questioning by the court.
The sanctioned attorney self-reported the incident to the Pennsylvania Disciplinary Board and filed a motion to withdraw from the case.
This is a hard lesson to learn: it is not the first time an attorney has been sanctioned by a court for filing hallucinated citations. The message in all of the cases is that attorneys have an ethical obligation to check every cite before filing a pleading with the court, and extreme caution should be taken when using generative AI tools in the brief writing process.
Similarly, Senator Chuck Grassley, Chairman of the U.S. Senate Judiciary Committee, sent letters to two federal judges this week requesting information about their use of generative AI in drafting orders in cases. According to Grassley, original orders entered by the judges in July in separate cases were withdrawn after lawyers noted that factual inaccuracies and other errors were contained in the orders. Grassley noted that lawyers are facing scrutiny over the use of generative AI, and therefore judges should be held to the same or higher standard.
The judges have not responded to date.
The same lessons learned from attorneys using generative AI tools may wish to be considered by courts and their law clerks. Proceed with caution.