Catastrophic Data Loss: Or is it? And how do you recover?

Recently, my relatively new Dell laptop experienced what is sometimes called a recovery loop error that seems to plague my particular make and model of computer. It is apparently being floated around that there is a link with the particular arrangement of hardware I bought and Windows 8. Not surprisingly, Dell (and another company) blames Microsoft for the error, and Microsoft blames the hardware manufacturers. This habit of passing the buck is apparently more tiring when you are the person with the problem than the attorney of the person with the problem.

But here begins my ghastly tale, sure to send shivers up any attorney's spine. My client files are digital, backed up weekly or bi-weekly, depending on how busy (or not busy) I happen to be. Being a soloist, I operate on a shoestring, and cannot afford being backed up minute by minute like some of you big law types can out there. (I'm sticking my tongue out now).

So this past Sunday evening, my computer, running ever so smoothly blacked out leaving but a blinking cursor. I assumed I lost the last 15-20 minutes of work and waited for a bit before resetting the system. When I reset the system, this appeared:

... and didn't go away. I reset again, still nothing. I left the system on and went to eat, hoping when I returned that for some unfathomable reason my system would repair itself or load up after some inexplicably long time. No luck, although dinner was tasty so there's that. (I'll be damned if I can't get the transparent feature to work, I thought I figured that out once).

Finally, I had to come to grips with reality. My world was ending, in fact, it was very likely I would soon be disbarred. There was no other reason why fate would allow me to lose 15 minutes of work and then spend hours hoping it wasn't. Still, I had no properly set up computer and (egads!) no worthy internet connection. Surely I would soon be disbarred.

When I stopped drooling irrationally over my situation I dropped back into tech mode and started troubleshooting. Windows 8 (I had never really taken the time to look into this OS but I used to be a tech support representative at a Gateway call center) had an interesting recovery feature, and (without getting into details) any attempt to boot into safe mode, safe mode with networking, safe mode command prompt, blah blah blah... just looped me back to the recovery menu. In other words this new feature was worthless. There are nine options by the way, and I tried them all. Nothing.

Finally, I rebooted for the 10th time when I heard a distressed BEEP! like I had just offended R2-D2. The magic words "NO OPERATING SYSTEM DETECTED" appeared. Something was seriously wrong. Either 1. the operating system had been corrupted somehow, or 2. the hard drive had spun its last. The former was acceptable to me, the later... not so much.

Calling India

So I needed my system recovery disk with Windows 8 on it. I opened up the box (yes I kept it) and of course, no disks. Great. So I dial up India and ask for a Dell customer support representative and get a nice girl named "Susan" on the phone and she proceeds to treat me like I just figured out my fingers exist. After the niceties we finally got to the part of the conversation that I enjoy: 

Her: "Can you send us your laptop?"

Me: "No."

Her: "Sir, we can't repair it if you don't send it back."

Me: "I don't need you to repair it, I need the software sent to me on a recovery disk because the recovery partition doesn't seem to work or even exist."

Her: "It would be easier if..."

Me: "I don't think you understand how serious the Florida Bar takes client confidentiality. They will stab me in the neck if I send my client files to you. I would rather set my laptop on fire and hope that magically downloads the pertinent files into the chip I didn't know the aliens implanted in my brain."

Her: "Oh."

Me: "I just need the disk, please. Besides, I need to see if the files on the hard drive can be recovered."

Her: "For a small fee we..."

Me: "No thanks. Just the disk, please."

The rest of the conversation went smoothly. But I couldn't help but look up data recovery services for lawyers. See, the problem with data recovery is that if an attorney lets a third-party view the files, then technically it's not possible for said attorney to be 100% sure that a bored IT guru didn't peruse the Killemdeadski file and discover that the sympathetic father of three really is guilty of murder. 

The bigger problem is that emergency data recovery services can cost between $1000 and upwards of $5000 / day. That's not good either. Especially for me, since I do not have a spare five grand just lying about begging to be used.

So did the hardware crap out, or was it the OS?

The OS. See, and you thought I was going to draw that answer out didn't you. It's 2am, I need to sleep.

What should be done in the event of such a failure?

After your initial half-day of being uselessly in shock over the loss, you should remember that you have a backup and only really lost at best a few days work. Thanks to eFiling, if you filed anything that you lost you should be able to hunt it down in the folder containing all the notifications and reconstruct your file. You do save all of those right?

Next you can drop your back up on an old computer while you are waiting for tech support to give you the classic fdisk-format-reinstall routine. Next, you should start going through the process of elimination to find out what the problem is:

- Run a hardware diagnosis. There is usually one available with the newer systems in a BIOS like environment that I really know nothing about because like I said above, I've been too busy practicing law to learn the ins-and-outs of Windows 8 or my hardware (which is a shame). In any event, it wasn't difficult to use, and it tests all of the hardware and gives you a report. My report came back with all hardware functioning at 100%. (I assume that if it was running at 90% it would probably tell me that too.) Anywho, thank goodness I don't need to buy new hardware. I am assuming that the diagnosis software is itself functioning, or else this diagnosis is shot.

- Boot up in safe mode and/or try to restore Windows to an earlier state when things actually worked. I couldn't tell you how to do that because my Windows 8 repair and recovery utilities looped until the lethal moment when my OS exploded in my face. But, I know the screens are there... so, good luck?

- Call tech support and waste another hour until they agree to send you the software you should already have on DVD but that they were too cheap to ship with your system. Ah, to have the time to build your own again.

- Finally, when all else fails it's time to recover the data or kiss it goodbye forever. Luckily, if the hard drive is working fine and the only thing that melted was the OS itself (Windows 8 in my case) then you can still recover the files you were working on. All it takes is a little knowledge of linux and another computer with a DVD burner available (go visit that friend you've been meaning to catch up with never.) I used Ubuntu and performed the following:

1.) Download Ubuntu 48.19 or whatever the current version is. It's FREE, so don't complain. What you download is an .iso file.

2.) Check your .iso file's hash value with the documented hash values on Ubuntu's website to ensure the image did not get corrupted during your download. If they match, goto number 3. If they don't match, restart the download because the image was corrupted during your last download.

3.) Properly burn the .iso file to a CD or DVD. Ubuntu's advantage is that the install image file also acts like a live distribution disk as well. That means you can run the OS right off the DVD. In the event you think that's better than having the OS on your harddrive... well, it isn't unless you enjoy the nostalgic speeds of your old Apple IIc.

4.) With burn in hand (or in the player as the case should be), restart the computer. If it fails to restart or (not in my case) tries to boot up windows again, your boot order is not... well, in proper order. Go into your BIOS and switch your boot order so that your CD/DVD player attempts to boot before your hard drive. Reboot to begin again. If you did this right...

5.) You should get a prompt asking if you would like to "try" Ubuntu. Do say yes, without installing it. If you install it, you run the risk of being responsible for a kitten dying for lack of you serving her milk... well, at least that's what your high pitched whimpering will sound like if you make this mistake.

6.) You should now be in the Ubuntu OS, and able to bring up a list of the disks. Mount whichever ones you need and go hunting for your files. Transfer them to a thumb drive and viola, instant recovery. $17k / day in cash save... you owe me a drink. 

Don't know how to pull this off? Well, this isn't really a tutorial. It's just part of my blog, written solely for the wishful thinking that you, the reader, will one day hire me, the attorney, to do some legal work for you.

But before you spend $2 mil / day (which is what I would charge to say... SAVE THE WORLD!) on data recovery services (who mostly do what I just told you to do) call me. I'll be glad to help, and my fees are much more reasonable. If I have to take your system to work on it, I'll even shoot you an affidavit promising I didn't browse through your case files like a naughty little IT professional.

Seriously though, call me... I might be able to help. Oh, and you might be disappointed to hear this, but I'm going to have to keep my hectic blog schedule to a minimum until next year. That's life I guess.

The Motion for Attorney Fees: What is Reasonable?

After a review of attorney fees in the landlord - tenant ("LL/T") arena, it was clear that neither judges nor attorneys are really clear as to what is a reasonable fee or not. It's almost as if there is a gut instinct about what is fair and what is not. The result is that either attorneys are not being paid a fair wage for their work, or the landlord is being overcharged. Neither is a good thing.

An informal poll of attorneys indicated that I was worth anywhere from $175 - $250 per hour. Surprise, surprise: the attorneys who represent landlord downplayed my worth, while the attorneys who represent tenants increased my value. So what is the answer? At the time of this writing, I am calculated to be worth $241.34 per hour.

Whoa, Whoa, Whoa... How Did You Arrive at Such an Exact Figure?

Good question. But before I get to that figure let's go over what is happening in the marketplace. The landlord - tenant statutes grant attorney fees to the prevailing party. This is the flip side to the landlord favorable statutes. If a tenant is intelligent enough to grab an attorney and that attorney prevails, the landlord is looking at a financial thumping for messing up. On the other side, if the landlord's attorney wins the chances of regaining money from the tenant is pretty negligible because... well let's face it, a lot of tenants cannot afford a mortgage, much less an attorney bill.

In the beginning, not being familiar with the worth of attorneys and not understanding where these figures came from I did what most newly minted attorneys do, I looked it up and discovered several sources which discussed what a reasonable fee was but either didn't really give a good reason for how they calculated it or what it actually should be (in the form of a convenient chart or formula I could work with). Fla. R. Pro. Conduct 4-1.5 for example outlines "factors" to be considered in determining reasonable fees and costs.

Factors like, "the nature and length of the professional relationship with the client." Really? How does that come into play? If I represent my wife, does the cost go up (because I'll never hear the end of it if I lose) or down (because I have a personal incentive to win)? If I have had the client for years, does it go up or down? If the client is an ex-girlfriend, does the cost go up or down? What if it's my dentist? Accountant? Pharmacist? What about the staff of my favorite restaurant who know my family and I by first name?

The rule goes on to say that "[i]n determining a reasonable fee, the time devoted to the  representation and customary rate of fee need not be the sole or controlling factors. All factors set forth in this rule should be considered, and may be applied, in justification of a fee higher or lower than that which would result from application of only the time and rate factors." Well... I don't know about you, but that cleared it up.

Unsatisfied, I decided there has got to be an easier way, based on empirical methods, to calculate the attorney fees in LL/T matters. So yeah, damn that science background of mine, because here is comes...

Known Orders and Illogical Curves

When I began this study I decided to obtain as many orders detailing the award of attorney fees and see what the data would be like. I was pleasantly surprised because the awards listed hours worked, the worth of the attorney (in $ / hr), years of experience, expert witness fees sometimes, and contingency fee multipliers (which, by the way, is now between 1.5-3 depending on difficulty; but that's another post). Just with the years of experience and hourly values I could put together a fairly decent ball park estimate.

With this kind of data, I should be able to approximate a math formula so that I could calculate my own worth. I was overjoyed, until I saw this:

What is this? Attorneys with 5-7 years of experience making more per hour than attorneys with around 30 years of experience? These were all within the past five years, and most of the data points were between 2012-13. This curvy... curve thing, while a formula, makes no sense.

The problem is that a reasonable attorney fee can only go so high, and any higher it obviously becomes unreasonable. Also, whatever that limit is, anything below it is more than reasonable. Attorneys out there are underpricing themselves, likely in an attempt to assure the judge that their rates are indeed reasonable. But why should an attorney cut him or herself short?

What Type of Curve Should Be Used?

That is a really good question. I settled on a linear function because a linear function would allow the profession to up their worth at certain levels of experience without drastically affecting the remainder of the curve, or giving ridiculous results over time. So if a 1 year attorney was getting $200 and then an order comes out giving that attorney $220, the new standard is $220 and only slightly ups the rates between 1 year and 15-20 years of experience.

Imagine a curve that curves upward from year one and flattens out around 15 years at $400 per hour. Over time, as orders come out giving more worth to beginner attorneys, the experienced attorneys will not progress and soon a flat line will emerge. This would mean that unless experience attorneys are increasing their worth in a field of practice as regularly as young attorneys are, soon a flat line will be observed. Then it will not matter if you are starting out or about to retire, you are worth $400. That hardly seems fair for the extremely experienced attorneys out there.

Next, imagine another curve that starts flat and ramps upward instead. While this may seem grand (and I certainly would appreciate it in 1-2 decades) the curve never stops and the "reasonable" rate for experienced attorneys would certainly be cringe-worthy. While at 15 years an attorney may be worth $400 per hour, soon after that attorney would be worth $500, $1000, $15000, $1,000,000 per hour. Such results are absurd and certainly not what is intended.

Eliminating the Orders Given to Attorneys Who Undervalue Themselves

Next, the values which are obviously undervalued are removed from the dataset, meaning: 1. any order awarding a more experienced attorney less hourly then an attorney with less experience; and 2. any order awarding less hourly to an attorney where another attorney of roughly equivalent experience was awarded more. This is not to say that the other orders were unreasonable, but the purpose of this exercise is to determine the upper limit of attorney fees that should be awarded.

When these orders were eliminated what emerged was a roughly linear trend for attorneys between 4-15 years of experience.

This is really good. Although I initially wanted a linear function it appears that the seemingly random logic of the orders giving attorney fees was that roller-coaster looking curve above, when everything undervalued is extracted what appears is a pretty decent function.

So You Look on the Graph and See What You're Worth?

Yup. Or you can plug your experience (in years) into the following formula (current as of 11/5/2013):

W(y) = (125y + 2525)/11

where W is your worth,

y is your experience in years, and

A is for how awesome this is!

Like all blog entries dealing in the mathematics of law, an example is required:

I've been practicing in landlord - tenant matters for 1.038356164 years (that's so ridiculously precise)

W(1.038356164) = (125*1.038356164 + 2525) / 11

W(1.038356164) = (129.7945205 + 2525) / 11

W(1.038356164) = 2654.7945205 / 11

W = $241.34

And that is how I got such a precise calculation, to answer your earlier question. In other words, I calculate my going rate based on the years I've been practicing measured in days. This means I get regular raises and my reasonable rate is always bumping up against the line and never falling behind where I should be. Tomorrow I get to celebrate when my going rate goes up to $241.35, joy!

For those of you who hate math, you're welcome:

• 0 years = $229.55
• 1 years = $240.91
• 2 years = $252.27
• 3 years = $263.64
• 4 years = $275.00
• 5 years = $286.36
• 6 years = $297.73
• 7 years = $309.09
• 8 years = $320.45
• 9 years = $331.82
• 10 years = $343.18
• 11 years = $354.55
• 12 years = $365.91
• 13 years = $377.27
• 14 years = $388.64
• 15 years = $400.00

Beyond that we have no good data, but to project:

• 16 years = $411.36
• 17 years = $422.73
• 18 years = $434.09
• 19 years = $445.45
• 20 years = $456.82
• 21 years = $468.18
• 22 years = $479.55
• 23 years = $490.91
• 24 years = $502.27
• 25 years = $513.64
• 26 years = $525.00
• 27 years = $536.36
• 28 years = $547.73
• 29 years = $559.09
• 30 years = $570.45

There you have it, what you're worth in Florida's market for landlord - tenant matters. So the question now is this, do you have an order awarding attorney fees in Florida? If so, send it over and I'll include it in the data if it isn't already included which may make things a little more accurate. If there is a change, it will be reflected in this blog.

If you are in need of an expert in attorney fees in a landlord - tenant matter, don't get your briefs in a bunch, give me a call. I'll be happy to review your file, sign an affidavit, and appear in court for you if your file is in order. TTFN.