Legal Transformation: The Changing Legal Profession

Thank You Larry Ribstein.

2011-12-27T10:00:00.001-05:00

I learned last evening of the passing of Larry Ribstein – a legal scholar but more than that a provocateur of the legal profession. I had the pleasure of meeting Larry in March 2010 at Georgetown’s Center for the Study of the Legal Profession conference “Law Firm Evolution.” It was there that I heard Larry speak about the “Death of BigLaw.” Listening him speak unabashedly about the problems and accompanying arrogance of the BigLaw law firms – whose business models are destined to fail once the egos and reputations that currently support them retire - was refreshing. He was direct and articulate in his approach – a matter-of-fact manner that distilled a lot of the noise one hears and reads in this arena into sound arguments and logical observations.

The conference as a whole was spectacular but it was Larry’s presence and presentation that stood out for me. It is not exaggeration or a morbid opportunistic ploy to state that Mr. Ribstein helped ignite in me my passion to provoke change within the legal profession. For that I am truly grateful. Thank you Mr. Ribstein . . . you are already missed.

For a glimpse of that presentation here is a video of Larry speaking with Gregory Bufithis of ThePosseList.com.

Capitalism: A Lawyer's Role

2011-11-14T15:23:00.000-05:00

Our world is a complex one. While global markets converge, market capitalism has been a dominate force in social, political and financial realities – really the world economy. Recently however there has been a corresponding divergence of national and political rules and regulations and market capitalism has taken a beating both by populist distrust and by a weakening tide. While it has served as a serious engine for wealth creation over the last few decades we have witnessed recently (see 2008) the fragility of our institutions, governments and businesses. We have dealt with a too-near collapse of the US financial system and now we are dealing with an economic crisis in the Eurozone. While governments fail to create solutions, businesses are caught in a state of “wait and see” as new regulations, new regimes, and new rules emerge out of this global transformation of public and private concerns. Disruptive forces are upon us and will only continue to develop. As governments flounder, business has an opportunity to pick up some of the pieces and preserve if not advance capitalism within the markets. Lawyers working inside and for these businesses can be positioned at pivotal stations which would allow for influence and change-making. That is if lawyers think to be or even want to be in these roles.

In 2008, Harvard Business School celebrated its 100th anniversary of its Global Business Summit. Prior to this event, the school polled numerous business and government leaders around the globe to learn what issues should be on the agenda. Communicated by all was concern over the sustainability of the global markets. In other words, will capitalism survive? Some of the key trends that were cited for raising this concern were volatile financial markets, pressure on free trade and the rise of state-sponsored capitalism, widely divergent industrial policies, and failure of the rule of law. Harvard took the position that in order for capitalism to prosper it is incumbent on businesses to innovate new strategies that turn the systemic problems into opportunities for growth. Further, Harvard promotes an activist model whereby business looks beyond its own balance sheet and works to mobilize coalitions of companies and government in an effort to support and strengthen current market infrastructure - even develop new institutions which will sustain the system. In order for business to succeed in this mission lawyers will have to play a key role. Some are already doing so.

There are two related concepts that are in play here for lawyers to advance the most influence on markets – the rule of law and globalization of law. The rule of law (as mentioned above as one of the disruptive trends) is a very capacious concept with many different definitions. Read Robert Gordon’s piece The Role of Lawyers in Producing the Rule of Law: Some Critical Reflections from the Yale Faculty Scholarship Series for a detailed discussion. During a recent conference, I was in the audience to hear Frank Steeves, General Counsel of Emerson Electric Co. speak about the globalization of law. While the two concepts are similar in terms of their focus on building legal frameworks to foster stability and predictability in the law they differ in their targets for such creation. The focus of rule of law is on governments and political institutions. Globalization on the other hand addresses the laws and regulations of private interests in dealing with one another and the markets. According to Steeves, in globalization there are no agreements between sovereigns but rather between private parties. This in turn weakens sovereign borders and their ability to impact society and the markets. In a way it subverts international law and is in many ways the advancement of private law making.

Developments in technology of course have played a role in allowing globalization to occur - the grease on the wheel so to speak. The wheel is trade and commerce. With the dynamics of the global trade markets changing this has created the opportunity and outright need for globalization of law to expand. With the advance of the BRIC nations and other developing countries coupled with the retreat of formerly powerful trade countries such as most in the Eurozone, the leverage points have and are being altered. To use Steeve’s words, “[this] movement of different power is just really a product of millions of different commercial transactions between businesses and government [and] customers . . . all those commercial transactions have to have rules for things to be able to move. Where are those rules? Well standardization of contracts clauses.” So as the global trade and power structure adjust to the corresponding transactions – those transactions take new forms as new parties contract with one another and formalize agreements. What happens is that the incumbent trade party will use an existing contract, modify it to fit the situation and look to the new party to agree to it. Rather than start from the scratch both parties recognize the value in doing this. While this is a gross simplification of what occurs it nonetheless represents the reality out in the marketplace.

Steeve’s used the example of reviewing employment contracts for his company’s China division. In reviewing them they seemed quite similar to what he recalled from his time as a lawyer in Wisconsin. Upon further research he not only found that the majority of the provisions were identical to the State of Wisconsin’s but that there was a common thread across other subject areas beyond employment law. To explain this he stated, “[i]t really came into being as a result of private law making within the contracts. It’s got nothing to do with governments or government enforcement. The global markets are pressure for uniform contract and commercial terms obviously because you can’t function otherwise; the business doesn’t work. Private agreements take on a uniformity and that uniformity then becomes a global standard you see in this country and this country, wherever else you deal with it.”

Fortunately for US lawyers, the US is still the global leader in many rights. And English is the universal language of business. Therefore, there is a tremendous gravitation pull exerted from the US in the adoption and use of our contractual language and practices. This is one of the key elements that place lawyers in the pivotal positions to exert influence and impact market capitalism around the world. If you are an in-house lawyer for a global company doing business in a developing country where perhaps there is less developed law and practice in a certain arena, you will be able to influence that arena through the use and adaption of US law and your own company practices. This in turn will create a standard for the foreign company that they may use in future dealings, and so on. This is how globalization of law works. To bring the point more close to home. If you have ever dealt with the commercial behemoths such as Walmart, Apple, and ExxonMobil you know that it is typically not a negotiation but rather an acceptance of terms. Take a look for yourself how Walmart allows for zero ability to negotiate. From their FAQs for new supplier process this language appears.

“After the buyer reviews this questionnaire, the supplier will receive an email granting the vendor agreement. The supplier will complete and sign the vendor agreement by clicking the ACCEPT button. This will start the approval process”

This is a prime though somewhat atypical example of how globalization proliferates. By being in the dominant role, Walmart is able to extend its own contractual language across borders. Another example would be to look at how the US FCPA or UK Bribery Act extends their reach into any foreign jurisdiction in which one of their companies are doing business in. These do not look to foreign governments to grant jurisdiction rather each exercises jurisdictions based on private action – that is that due to the fact the a company is located or does business in the US or the UK – these governments then have the right to monitor and act in any foreign nation the company acts in. In both instances it can be said that the US and UK are exporting their own versions of the law and demanding that companies comply regardless of local custom or behavior.

Granted the globalization of law is more evolutionary than revolutionary it nevertheless represents a significant influence on global commerce. Since the US is a market-based economy and one that subscribes to capitalism as the underlying philosophy, our business practices reflect this. Business practice is not something found in an employee handbook or spelled out in some policy or handout. Business practice consists of culture, behavior, language (jargon), and people and how these elements combine to interact with other companies, consumers, and governments in conducting its business. One of the key troves of tangible evidence of business practice can be found in the language of a company’s contracts and how it utilizes these instruments to conduct its business. Lawyers typically control this language and so have real power to control the transaction and thus the market.

While lawyers have the ability to strengthen capitalism by exporting these commercial legal assets we must be careful to limit or avoid exporting other uniquely US legal elements into the world economy such as extensive litigation and tremendous expense. But then again such work creates jobs and increases transactions so in some sick way our legal system –though broken in the minds of some – also promotes a healthy market of activity. So it can be said that litigation itself promotes capitalism. Ok I wrote that last sentence just to see if you were still paying attention.

2011-07-07T12:21:00.000-04:00

Now Comes Proportionality in Sanctions: Or Rather Sanctions Based on Proportionality in Process.

2011-05-10T16:45:00.001-04:00

Last week a federal District Judge Susan Wigneton in Newark reduced a previously awarded sanction from $246k to $10k. She found the original to be “extremely unreasonable” given that this “was merely a discovery matter.” The underlying discovery issue here was one that was born out of a third party action to collect relevant documents and the costs associated with this effort. On its face it appears to be a rather typical matter – that is a primary party needs documents held by a third-party. The primary party subpoenas, collects, reviews and analyzes these documents in helping to build their case. This effort costs money and so they ask the judge to award them these costs.

What is interesting in this case is what constituted the underlying costs. To state it simply - it appears there was a severe lack of proportionality in terms of the process and staffing used in this regard. It was disproportionate in that the true costs were upwards of $800k plus. The magistrate judge who initially awarded the sanctions found it excessive that a twenty three member team billed over 2100 hours on this project. She thus awarded the $246k (See the Conclusion in her written opinion for details of costs). The federal judge found this “clearly erroneous” and reduced the sanction to $10k. There was no reason given for this decision by the federal judge.

The New Jersey Law Journal has more coverage on this.

Legal Services Act comes to US

2011-04-06T16:28:00.000-04:00

UPDATE 4/5/11: The ABA released an issue paper through its Commission on Ethics 20/20 seeking comments on allowing Alternative Business Structures (ABS). As the paper states it is looking at how "core principles of client and public protection [can] be satisfied while simultaneously permitting U.S. lawyers and law firms to participate on a level playing field in a global legal services marketplace that includes the increased use of one or more forms of alternative business structures.” Basically this would allow for active participation of non-lawyers in law firm operations and business models. The smart folks at Legal Futures have a good overview here.

North Carolina State Senator (and lawyer), Fletcher Hartsell, Jr., introduced a bill into the NC General Assembly that seeks to allow non-lawyer ownership of law firms – known as Bill S254. UK’s John Flood asked the question briefly “[h]as the US finally adopted the legal services act?” Those familiar with the LSA know that it is a transformational law within England and Wales that is changing the landscape of the legal profession – to what degree remains unclear. The ABA Journal also reported on this NC bill simply providing the name of the State Senator and the basics of the bill.

While the NC bill is referred to the Judiciary Committee (and I admit I am not a NC parliamentarian so have no idea on the course this will take or time line) it nonetheless represents at least some effort here in the US to change the way in which law firm ownership is controlled – moving from an lawyer only private equity partnership model to non-lawyer owned share-based model.

Who cares and what could this mean? Well it is worth noting that the bill in its current form only allows up to 49% ownership of nonlicensee (non-lawyer) so control of any organization pursuing this model would still rest presumably in the hands of licensees – barred lawyers. While not as significant (yet) as the LSA it nevertheless is a serious effort to alter the way in which firms are structured and operated. While I am not sure what Senator Hartsell’s motives were for this I do hope that they were similar to that of the UK’s Ministry of Justice – as stated on its home page:

The Legal Services Act reforms the way legal services in England and Wales are regulated and puts the consumer interest at the heart of the regulatory framework.

It is worth noting that Senator Hartsell himself is a lawyer and is a named partner for his firm Hartsell & Williams, P.A. – what can be considered a small regional firm. I note this as this is not a Big Law initiative - something that I at least thought any movement on this topic would originate from.

More to come . . .

UPDATE:

Most recent articles:

1. Forbes - expanded coverage

2. The Lawyer - quoting Georgetown Law's Mitt Regan
3. Legal Futures - who contact the NC Bar for more info

Proportionality in Ediscovery: Getting Beyond the Academic and Practitioner Perspective

2011-04-04T17:44:00.000-04:00

The concept of proportionality in discovery is not new. In fact it has been around for awhile and I will not add to the technical or academic dialogue here. I have spoken on this recently at the ACEDS conference and will be talking more about this at the upcoming InsideCounsel SuperConference.

Today I am at the Enterprise Data World conference and perhaps that is why I am thinking 'data' in terms of of bits and bytes. The vast array of information contained in data is staggering and the proliferation of data across society and in our organizations continues to accelerate. The folks at this conference are struggling to get hold of this data and organize it for better quality and accessibility. Ediscovery, to this crowd, would be a small fraction of the overall challenge they are tackling.

So in this post I am seeking to simply frame proportionality as an inevitable development resulting from the profound expansion of the data-verse (data universe) not to mention social media.

Point 1: The expanding digital universe will exceed 35 zettabytes by 2020, IDC predicts.

In 2009, global diital data topped 800,000 petabytes and was projected to reach 1.2 million petabytes in 2010. Storing 1 million petabytes on DVD would generate a stack of discs that reaches the moon and back. However, that rate of growth—62% in one year—pales compared with IDC’s prediction that the figure will top 35 zettabytes (36.7 million petabytes) by 2020, or 44 times as much as 2009. That stack of DVDs would reach halfway to Mars.

(following graphic originally posted by Tech News Ninja here)

Point 2: Usage of Social Media is increasing: (from comScore's US Digital Year in Review 2010)

Point 3: Social media represents significant ediscovery challenges:

The SCA is a formidable obstacle for parties looking to collect data from a social network. Often the only option is to seek voluntary waiver by the person of interest. Needless to say, more often that not any request to collect and analyze this type of data will need to be targeted and precise so as to avoid privacy concerns and other rights. If the information is available on a public-facing portal of a social network then the collection may be easier to accomplish though the ability to do a targeted collection is somewhat limited by the user interface and/or local API. Further it is difficult to think of this dynamic and changing data as a "document" under traditional ediscovery practices and so reviewing and analyzing presents unique challenges.

Point 4: Data Governance is becoming a stronger practice and discipline - it is also on the rise: (graphic created by DAMA.org)

Conclusion: Data - how we use it, how we access it, where we create it - is changing. All of this leads to more and more data from more and more sources. The MDM/Data Governance movement is seeking to organize data inside organizations and seeks to make information (which is what data contains and transports) more accessible. So while the universe of data grows so does the ability to seek and capture only the relevant or useful information (See graph below for a non-scientific illustration.) So proportionality could eventually be "built into" our ediscovery methods and practices - it simply will not be feasible any other way.

Do Lawyers Have Artificial Intelligence?

2011-01-28T11:57:00.003-05:00

Artificial Intelligence (AI) is almost here. Lawyers rely on knowledge and intelligence in practicing law. Technology has made lawyering more difficult by increasing the amount of data that represents potential evidence while making it easier to search, retrieve and review such data. AI represents the potential to better organize the ever-increasing amount of data and make "finding" data easier. Implications for Law? Many. Below is just an overview of some.

Most readers of this blog are familiar with the name Richard Susskind. His most recent book “The End of Lawyers” has been a fixture in the legal transformation debate and has slowly penetrated the everyday lexicon of the legal practice – though there are still many lawyers who have not heard of him. The name Watson – most people will recall as Arthur Conon Doyle’s fictitious sidekick to Sherlock Holmes. There is a new Watson however and like the literary character this one could put Holmes and any of us through our paces in terms of reasoning and having the answers.

Watson is an IBM supercomputer that was built to advance the theory that computers can and will be able to “understand natural human language.” Note: the computer was named after IBM founder Thomas Watson not the literary figure. Its predecessor, Deep Blue, rose to fame by beating the Chess World Champion in 1997. Watson took what Deep Blue was many steps further in that it can listen to/read language as spoken by humans and respond accordingly. To do this requires amazing amounts of processing power and storage. Watson must be able to detect nuance, puns, emotive language, whether a statement is a declarative or a question, and overall – understand what is a person “saying.” Its processing power is an astounding 80 trillion operators a second which allows it to scan its brain (consisting of 200 million pages of content) in 3 seconds. This brain was developed by scanning in everything from encyclopedias and books to move scripts. Watson is not small – it is roughly equivalent to 10 refrigerators. This bring to mind the first computers ever built that filled rooms and had roughly the computing power of a throw-away solar powered calculator that sits on many of our desks today.

Watson is powerful to be sure - so powerful that it can compete against humans on the game show Jeopardy!. And it wins! The show proceeds like any other where there are three human contestants expect in this case the show takes place where Watson is located. The host reads the answers as he would on any other show and the contests are to “buzz in” and respond with the correct question. Watson participants just like any other contestant but for in place of a human body there is the logo for Watson – behind which is Watson itself.

Moore’s Law + Kryder’s Law = AI

Most people are familiar with Moore’s Law which basically states that the number of transistors that can be placed on an integrated circuit doubles every 18-24 months – doubling the power and memory of a microchip. A lesser known but equally critical law (though debated as to being an actual law) is that of Mark Kryder which states that the amount of information that can put placed on a hard drive doubles every 13 months. Later research has found that it is more close to 18 months. Regardless, the trends on both fronts are advancing and so we are getting much faster computers able to store much more information. Watson is the current barometer for this potent combination. While today it sits inside a room and has an enormous foot print – so did the world’s first computers. How long will it take the capabilities of Watson to be delivered in a computer the size of a pocket calculator (or an iPad) – or even just in a more manageable size of a typical rack server?

In Susskind’s 1999 book “The Future of Law” he briefly touches upon some implications for the law for when artificial intelligence becomes a reality. “The shift from data processing, through information processing on to knowledge processing is all about increasing performance, range, and scope of computers, moving technology from mere number crunching and data storage and retrieval to task which would depend on knowledge and intelligence” Susskind writes. Knowledge and intelligence has been “the line in the sand” separating humans from computers since the dawn of the technical age. If computers are to step over this line, the future of law (and other professions e.g. health-care) will be here. In other words we will then witness artificial intelligence and are on the brink of convergence (or The Singularity). In terms of AI’s impact on the law, Susskind uses the example of computerized judges. Making the distinction between matters that involve moral judgment (something Susskind recognizes may be the next challenge for computing) and those that involve mere factual issues. He states that there is some “promise of systems which will help choose between diverging accounts of facts of cases – by applying probability theory together with the rules of evidence.”

Obviously another potent use of this type of AI would be to make ediscovery as simple as collecting data and then literally asking the computer to find all relevant information. Actually if we had AI, ediscovery would be easily eradicated. The implications on data management for any organization would be that business intelligence, risk management, compliance, knowledge management, information governance, and records management are made to be so easy and intuitive that there would be no need for ediscovery as we know it today. I predict that we would look back on ediscovery and think of it similar to how we view VCRs in today’s iTunes on-demand Netflix smartphone world – clunky and redundant. Nick Brestoff wrote a piece in Legal Technology News earlier this week that looks specifically at AI and ediscovery. Nick draws a similar conclusion as I have - the true power from a legal perspective of AI would lie not with making dispute resolution easier but rather making dispute-avoidance a reality.

The Future is Now!

If this all seems too distant or too nerdy-techy to resonate with lawyers, I invite them to watch Watson on Jeopardy! on February 14 through 16 via their iPad (or Slingbox). They will be watching "the future" now on a device that would have been as crazy an idea back in the VCRs days as AI may appear to be today. Changes in the legal profession are coming. Law has already become more technological (ediscovery is just one example). Lawyers will continue to further interface with technology – technology that is gaining in knowledge and intelligence.

An Image Problem? Legal Outsourcing

2011-01-25T09:04:00.000-05:00

Two recent articles in the legal press continue the on-going discussion around the reality, potential value and inevitable outcomes of law firms outsourcing. The first article looks at the recent acquisition of Pangea3 by Thomson. In it the merits of this acquisition are examined from the perspective of the outsourcers. Naturally they see this type of event as a smart, if not natural, path to take given the growing pressure on the legal industry to establish lower costs and deliver services in an efficient manner. Sounds familiar – typical talking points of other industries that have proceeded to adapt their business models and incorporate outsourcing.

The second article looks specifically at the outcome of an outsourcing deal in the UK. Last year UK firm CMS Cameron McKenna (“Camerons”) announced it had struck a deal with Integreon to replace its entire back office operations. This week we are seeing the outcome of this deal – Camerons has announced that it will be laying off one third of its support staff. Ultimately over 400 business service roles will transfer to the direction of the outsourcer. That is unquestionably a deep impact on this firm’s business operations.

While the debate rages specifically within the US legal market as to the merits and adoption of legal services outsourcing – forward thinking organizations and foreign competitors are simply moving ahead. That said it is no secret in the US that many law firms use legal outsourcers in some capacity – they simply to do publicize or talk about this in public. So perhaps the “debate” is over and now we are just dealing with acknowledgement. Legal outsourcing is here to stay. It is helping to change business models. It can be competitive to law firms while also being a competitive advantage. Why is it such a secret in the US? My answer: Image. Firms want to portray a certain image – that of the traditional white collar trusted advisor firm that conducts legal business (aka Traditional model). Perhaps the smarter image is that of a smart and agile Business which offers legal services (aka Sustainable model).

Note: If you are new to this topic you should check out two books: UNBOUND: How Entrepreneurship is Dramatically Transforming Legal Services Today & The End of Lawyers?: Rethinking the nature of legal services

Do Lawyers Have a Role in Data Management?

2010-11-20T10:42:00.000-05:00

Having attended the ACC annual meeting in San Antonio last month, I have many fresh ideas and thoughts in my head as I listened to and participated in numerous conversations around the challenges GCs are facing. If you look at any of the Twitter updates coming out the conference (#accam10) you will notice a focus on using data. No, I am not talking about ediscovery.

Discussions out of panels addressing topics from the ACC Value Challenge to project management to setting fees - incorporated in some fashion the concept of gaining visibility into one’s own data. Using your own data to gain insight sounds logical enough but in practice it is a rare find in corporations. Rarer still inside the GC domain – well let’s just say the legal domain as a whole. Lawyers both fear and quest for data (depending on the matter and side they are on). Data represents a treasure trove of information that is used by adversaries in the discovery process. Ediscovery has awoken lawyers to the idea that “data” is ubiquitous. But it has also led to misconceptions on it use as too often data is used in only an adversarial manner. This is unfortunate as data represents a virtual treasure trove of information to any business person looking to know more and do more to help their organization.

Too often when data is mentioned the first thing that comes to mind of most lawyers is the dreaded “ediscovery.” Yet that represents only a fraction of the data-world. Corporations are literally swimming in data. We talk about data being in silos, or something IT controls, or being overwhelmed with data in our professional and personal lives or even worse – data being our enemy as it can expose us and break down privacy. But from a corporate perspective data should represents intelligence first and foremost. BI (Business intelligence) folks understand this. But BI is a foreign concept to most lawyers regrettably. And those that are aware of it tend to regard it as some secret ops team that no one knows of or knows of what they do – so basically they ignore them. While BI is arguably a crucial component of any corporation looking to increase operational excellence or market performance it too represents only a portion of how one can use data.

The question is really who does “own” the data of a corporation? Own in the sense of manage and/or control or better yet govern? It seems that just now there is a growing awareness that GCs need to dig deeper into their organizations data assets to learn more about how to manage legal services. It is becoming more commonly known that using data regularly collected by time keeping systems has been immensely helpful in understanding fees better. What has been missing is an internal view in to the corporation itself to look for and learn about what other data sources may be helpful to GCs and the business as a whole.

So who should take “ownership” over an organization’s data? This is a difficult question because “owing” data it often misunderstood – this is due to how one generally thinks about data. Most people would say IT owns the data. But as stated in a recent article by Martin Hansen at Information Management:

“Storing the data is an IT issue, but understanding and interpreting the data is a business issue done by the business functions. This is one of the primary challenges when trying to place the ownership. Data is not owned, but partly managed by IT, and business doesn’t want to own anything that ‘smells’ like IT. This is typically the reason ownership is not anchored, and hence, falls between two chairs.”

I would add to this that the legal sector in a corporation currently neither wants to own nor manage data. However, lawyers often have to “deal” with the data and more often the “data” is outcome determinative in legal events. Arguably legal needs to take a more active role in its organization’s data. I am not suggesting by any means that legal needs to own or even manage data but rather instead of addressing data in a reactionary method – having to address data issues as they arise in response to discovery – legal has a vested interest in the on-going or living architecture of the its organization’s data ecosystem.

As data convergence (or information convergence) continues to accelerate and diversify – lawyers will continue to confront data issues – issues that may have been able to be remedied by other practices, initiatives, or internal business groups prior to the lawyers’ involvement. By taking an active role in data management lawyers have a lot to gain and little to lose.

Note: For some decent reading on this and related topics - IT Savvy: What Top Executives Must Know to Go from Pain to Gain

ACC Twitter Transcription

2010-10-29T10:48:00.001-04:00

New dad and new job equals lack of posts . . . But stay tuned. I will be posting soon enough.

In the meantime I put together a Twitter stream transcription from this week's ACC (Association for Corporate Counsel) annual meeting that was in San Antonio. Enjoy it HERE.

Stossel, Lawyers and a Missed Opportunity

2010-07-12T08:24:00.005-04:00

This past week, Fox Business’s, Stossel – a show featuring reporter/journalist John Stossel – ran a segment with the theme “The Trouble with Lawyers.” While it did focus on lawyers, it specifically zeroed in on the plaintiff bar and tort reform. While the show had the typical arguments for and against trial lawyers and unfortunately featured less than convincing guests, it also ignored the true problem with lawyers. And the true problem has nothing to do with politics, ideology, or whether you are plaintiff or defense orientated. The real trouble with lawyers is not the lawyers themselves but the process of our legal system. In short – it is much too costly and too complicated for any person or organization to navigate on their own. Further you know that a system has failed when the very threat of just getting caught up in the system- regardless of eventual outcome – is enough to change behaviors and squelch rights (“Bleak House” anyone?).

It is always funny to hear plaintiff lawyers and defense lawyers along with tort reformers argue back and forth. It is obvious that all perspectives are valid and indeed we as a society need each of these stakeholders. However, both sides of the bar abuse the process of our legal system to “game” one another and drive up costs, add delay, cause emotional harm, etc. And it is not as though it takes a superstar lawyer to do this. The process of litigation in particular is so easy to abuse that it has become the norm. We as society have come to accept that it will cost us money to defend ourselves against baseless claims and/or pursue our legitimate rights and claims. In essence we are optioning our rights.

While it is always instructive to have programming on lawyers and our legal system, Stossel could have had a deeper impact if he steered clear of attacking plaintiff lawyers and instead attacked the process that is abused by all lawyers. The process is the main cost obviously and is where anyone serious about fixing our legal system should look. Like it or not, lawyers are and will be necessary but that is not a bad thing. Change the process of our legal system and you can change the behavior of the lawyers. But do not expect lawyers to lead the charge despite the posturing, proclamations and blame on the other guy. Those with a vested interest in the status quo typically do not have cause to change it but rather defend it and keep it.

Training & Building Better Lawyers.

2010-06-10T10:30:00.002-04:00

There is growing interest within the US in examining how lawyers are educated and trained to better perform in the changing legal practice. Legal educators themselves have recently stepped up efforts to advance this dialogue and promote the conversation of this topic. This year has already seen three conferences that specifically address legal education put on by New York Law School, University of Maryland Law School and most recently at the University of Southern California, Gould School of Law. It can be generalized that each of these conferences were convened in order to bring together legal educators and professional leaders with the goal of examining current practices and methodologies of legal education along with those of the profession itself in order to:

1. identify the “gaps” in skills and foundational training.

2. learn how to move forward in a way that better prepares lawyers for the life of practice and of serving clients.

3. create a sustained effort devoted to ensuring that legal education adapts and grows as the profession itself changes.

While each conference was productive and brought new ideas to the table, the most recent was held at the University of Southern California – entitled “Building Better Lawyers” and sponsored by the Southern California Innovation Project (SCIP). It is this effort that is perhaps the most ambitious.

Professor Gillian Hadfield of USC was the architect behind this event held on May13 & 14^th. Prof. Hadfield is a well-published scholar on this topic and on legal transformation in general. She along with other legal education, client company and law firm representatives convened with the specific purpose of getting beyond debate and to a place where there is true commitment to exploring ways in which legal education can be more effective in developing the core skills that are necessary in today’s legal practice.

In attendance were partners from leading law firms such as Wilmer Hale, Howrey, Skadden, and Fenwick & West to name some. Along with these partners there were a number of General Counsel from companies such as Cisco, HP, IBM, Apple and CDW. Law schools such as Stanford, UC Berkely, Notre Dame, and Columbia were represented. Finally there were the entrepreneurs and transformationalists such as Paul Lippe of LegalOnRamp, Patrick Lamb of Valorem Law Group, Gerry Riskin of Edge International, and Sasha Mrozoff of Axiom Law to name just sum. All in all this was a gathering of some of the leading minds and ambitious innovators currently participating in the global legal markets.

There were three main goals or tasks that this event looked to execute on:

1. Decomposing legal practice to identify the core components of effective practice

2. Identifying methods of evaluating performance to improve the capacity to select and develop effective lawyers

3. Identifying methods of teaching/training lawyers to improve performance throughout their career.

Based on the post conference report it is apparent that the participants see that there are changes within corporate legal departments and that this is presenting serious challenges to practitioners and legal educators. The concept of “new” lawyering was emphasized time and time again as compared to the traditional model of lawyer.

“New” lawyering consists of:

asking the right questions of the client on a continuous basis
acting in a team mentality with the client and the rest of the legal team
being proactive
looking at the problem as a whole and not just an exercise to deploy a series of legal tactics
converging legal analysis with that of business analysis – allowing for more useful and germane advice to corporate legal departments
making actual judgment calls and providing actual answers not just analysis with a “it’s the client’s choice” mind frame
assessing risk and providing alternative strategies rather than just identifying risks

It was generally accepted that changing the institution of legal education will be an arduous task and one that is fraught with such basic challenges of finding a common language. Nevertheless this group seems poised to continue pushing ahead. Where a lot of conferences and events may stop once dialogue and debate have happened this effort is looking to keep moving ahead and provide actual outputs.

Two initiatives have been outlined for this group to continue building their efforts upon and through. One is the Building Better Lawyers (BBL) Test Group and the other is an executive education component.

The BBL Test Group will be a group of corporate counsel and law firms that are committed to finding ways to test for higher-value performance of “new” lawyering. This is human capital endeavor that will look to evaluate candidates for not only employment but also once employed their ability to serve on different teams and within practice groups. This effort will focus on looking at new ways to evaluate students with something other than grades.

Specifically this group aims to develop a suite of tests that will be given to new associates to both ascertain their candidacy as well as their on-going developmental/training needs. Simultaneous to this effort (most likely dues to the participating members) the group will then look to identify and secure commitment of corporate counsel to actual hire lawyers who perform well on these tests. Finally there will be a satisfaction measurement of those who take the test to learn of their reactions and progress.

The Execute Education initiative will look to create workshops for new, mid-career and senior lawyers deliver in one to two day sessions. A key component of these workshops is that they will include participation of in-house counsel as well so there will be both in-house and outside counsel working and learning together. Some possibly examples of areas of study/learning/training could be:

1. Post-case reviews in which clients and their counsel look to gain a deeper understanding of how the matter could have been handled differently. For example an area of focus may be on how the law firm could have better controlled client spending while providing the same level or service or even better value.

2. Simulations consisting of business challenges so that lawyers are allowed to unburden their perspective of legal constraints and look at a problem as a business executive see it.

3. Failure exposure though simulation to allow for greater comfort for failure and how to respond

4. Teaching through case-study – employing business school educational methodologies for both legal educator and law firm educators.

Certainly this effort by Prof. Hadfield and the folks at SCIP is ambitious and transformational in its commitment and goals of on-going actions. But it is not the last word on the topic of legal education and change. There is one more conference scheduled for October of this year. It is part of the Future Ed program of New York Law School but will take place at Harvard Law School. It slated to be a robust program and attended by dynamic leaders and committed educators.

The Thin Line Between Legal & Business Advice

2010-06-07T11:36:00.000-04:00

Reading the most recent Inc magazine (June 2010 edition) I glanced over the Street Smarts section. For those of you not familiar with this section it is where veteran entrepreneur, Norm Brodsky, answers questions submitted by various businesses and entrepreneurs. Most of the time it focuses on such primal entrepreneurial issues as how to compete better in a local market or the best strategy for running operations. In the latest version however, there was a question submitted by a lawyer (hopefully this lawyer and I are not the only two lawyers who read this magazine). The gentleman asked how entrepreneurs can get the most benefit and the best value from their [lawyers].

Before I read Norm’s answer I reread the question again and focused on “benefit” and “value.” In most businesses and professions the definitions of these two words are well established and known. In the law however it appears we are in a time where these two concepts are being debated and fleshed out. Certainly the traditional services of a lawyer are well understood and arguably therefore so are the accompanying benefits and values. We know the benefit of having a will drawn up and its value both in terms of cost in the immediate term and in the long term by having clarity over disposition of property. In the corporate sense we know the benefit of having our lawyers review potential transactions for liabilities or outline a proactive sexual harassment training/avoidance program. The value represents both the cost of the legal services and the prospective avoidance of future legal liability.

What happens though when a business faces an issue that touches both upon a legal issue as well as a business issue? After reaching this point in thinking I returned to the article to read Norm’s answer. In short Norm states quite clearly and emphatically that lawyers should stick to giving legal advice and not business advice. He goes on further to state that business advice when given by a lawyer is almost always bad advice. The point – there is no benefit or value to seeking business advice from a lawyer. This is fairly damning language about the legal profession by a well-regarded businessperson so I took Norm’s point seriously and not as a cynical pot shot at lawyers (considering he is one himself).

So can lawyers ever give sound and useful business advice? Or better yet, where is the line drawn between legal advice and business advice? Is it not foreseeable, if not unavoidable, to have a scenario where a legal question directly informs a business decision or strategy? Or vice versa?

To use a medical analogy; when a person goes to their doctor should they only listen to “medical” advice? How can one determine what is medical advice versus other types of advice, such as lifestyle advice? When a doctor says to a patient “you should exercise more often” – is that medical or lifestyle advice? Thus in the business context when a lawyer says to the entrepreneur that they should be protecting their assets, is this legal advice or business advice or is it both?

A lawyer is in many ways like a doctor – they have seen many different patients/clients with similar problems and therefore have a perspective that the individual may not possess. There is value in this experience - though it may not directly apply to every situation. How one evaluates and considers advice is the key. Just because advice is given does not mean that it should be followed. It is worth remembering that lawyers dispensing legal advice may not always be 100% correct but that should not make their advice of no benefit or value. In fact getting a lawyer to proclaim that their legal advice is 100% accurate may be a Herculean task. Nevertheless their advice is considered valuable.

I do agree with Mr. Brodsky when he states that most lawyers, by training and habit, think differently than business people. I do not agree however that therefore their business advice should be avoided. As always it comes down to the individual lawyer – some may be great with business while many if not most may not be (despite what they think). Certainly the profession can and should move towards a more business capable mindset. But I leave that issue to debate for another day . . .

So while Mr. Brodsky’s advice should be respected it is somewhat shallow in that it does not recognize that the two types of advice are not so neatly decoupled and isolated from one another. In fact, as many businesses come to recognize, the challenges that are most perplexing and worrisome are the ones in which business and legal concerns collide. In these situations I would argue it unwise to forgo any type of advice – that said it should all be weighed and evaluated. In the end though most businesses, especially entrepreneurs have to rely on something even more innate yet powerful – they own street smarts.

One final thought: In the wake of the BP oil spill the convergence of legal and business issues and advice can be seen vividly. I would invite Mr. Brodsky to watch the commercial where BP CEO Tony Hayward states that BP takes full responsibility for the tragedy and that BP will “honor all legitimate claims.” Was Mr. Hayward following business or legal advice using the language he did?

The "Required" Skills of Lawyers

2010-05-18T21:32:00.000-04:00

Hard skills, soft skills, lite skills, skill gaps and skill bridges, and so on. There is growing talk in the legal markets over just what set of skills a successful lawyer is to have. Setting aside labels for the moment I have outlined below the skills that appear to be most relevant and important for any lawyer – in-house or at a firm – junior or senior. It is important to note that I craft and explain these skills not based so much on my own opinion (though I do agree obviously) but on the words of lawyers and clients themselves. Or in some cases based on my direct observations when working with clients and witnessing the interaction/intersection of Law and Business. I will insert my opinion to say that too often the lack of these skills in the legal market is quite simply tolerated – so much so that most folks do not even think about them. One could say that this is evidence that they are unimportant – as if to say if it does not have a lawyer’s attention it must not matter (and a lawyer actually did proclaim this to me).

Commerciality or Business Acumen:
Layers are geared and hard-wired to approach problems from a legal standpoint first and foremost. Often we tend to have a laser-like vision on detecting and identifying all possible pitfalls and risks associated with a certain event or deal. This is all fine and indeed what the typical role of lawyer has been. But what if we saw the bigger picture? The forest from the trees? What if we not only had a deep understanding of the legal landscape but also had a deep understanding of the business of our client and the markets in which our client operates within? Having this potent combination of perspective and intelligence could arm a lawyer with the ability to offer value to the greater business interests of the client not just the legal. This allows the legal function to move closer to the overall business function therefore becoming more aligned with the overall decision making of the client. More importantly this allows a lawyer to move from typical to unique- a differentiator, a valuable resource.

Accountability and Ownership:
Too many times in counseling clients we hide behind the built in uncertainty of the legal process. Instilling confusion, uncertainty or even fright in the minds of our clients by pointing out that a jury could decide anything or the judge can be erratic or the mediator’s job is to make sure both parties walk away unhappy. Surely there is inherit risk within our legal and regulatory system but that should not excuse a lawyer from pronouncing their advice with a sense of confidence and ownership. We need to make decisions for our clients not just present the options and say, ”choose wisely.” When we make these decisions we also need to stand behind them and take the good with the bad not just take the good and blame someone else or the system for the bad. Lawyers too often want to be the hero but not the loser – who does? But our clients pay for our advice and so when it does not turn out well we need to own up to it. Ideally in these cases we would also follow up with the client and review the process and events to help craft a better approach in future matters.

Option Orientated versus Risk Orientated:
We are trained and educated begin day one in law school to identify risks. What we are not provided in our education and later in practice is instruction on how to acknowledge these risks while also pursuing a specific plan or goal. Too often lawyers say, “you cannot do this” or “you should not do that” even when it is not in regards to criminality or legal liability. The client may want to pursue a new direction or allow a group to embark on a new project that carries with it some risks of failure and potential liability for the client. A lawyer rightfully needs to point out all possible risks and negative implications. However, the lawyer needs to recognize that if this is a business goal of the client then they ought to work to find the best potential plan that achieves the goal while controlling for the most risk. A lawyer can then say something akin to “you can do this and here is how and what we need to be careful with and watch for.”

Resourcefulness (the 80/100 Rule):
Knowing when to turn over every single pebble and knowing when to focus on boulders is more art than science - and less obvious than this metaphor depicts. Yet most lawyers approach almost every client issues looking for every pebble and begin looking for why this case/issue is different than any others. We are so strong at reading content and then arguing for or against the principles within it that we have lost the ability and sometimes willingness to first see similarities in the overall matter. Without going into the billing paradox embedded as part of this sentiment – we do not and should not look to reinvent the wheel with each new issue that our client presents us. Rather successful lawyers are excellent at leveraging prior knowledge and work to their and their client’s advantage. Sometimes bringing an answer to the client quickly but only being 80% confident is extremely more valuable than bringing an answer feeling 100% confident much later. Business moves swiftly at times and a lawyers needs to understand that they ought to be operating at the clients pace not their own. Plus generally the time it takes to get from 80% to 100% compared to the value it brings tends to flatten and stagnate. Put another way –many times an 80% solution that is ready now is better than a 100% solution that is ready later.

Consistent Diligence:
Lawyers need to strengthen as best they can to ensure our advice is based not just on diligent analysis of all the relevant facts and concerns, applying the relevant laws, regulations and/or policies. We need to do this while taking into account the business context in which events occurred and the solution is now being applied in. In doing so we need to ensure that we capture and are able to explain how we arrived at the advice we have. This helps in building trust with the client as they may ask for further explanation or question our level of confidence in our counsel. It is during these times that we must be able to honestly demonstrate our command of the situation as a whole not just some part of it.

The balancing act that lawyers need to perform is that of Resourcefulness with Consistent Diligence. They are not polar opposites but rather two distinct efforts that can be individually calibrated per each situation.

Back to the labels that started this article: Labels may be useful to draw distinction in some contexts but I would rather call all of these skills simply “required skills.”

Legal Innovation: Outside In

2010-04-29T16:03:00.003-04:00

This past week there was a conference held in the UK that looked at the Future of Legal Services. While much of the conference certainly focused on innovations and developments coming from law firms there was a growing dialogue around innovation from outside the traditional legal circles. As I have worked with clients in the UK – both firms and corporations – my envy has grown over their more open competitive landscape as compared to ours in the US. The UK does not have the “unauthorized practice of law (UPL)” claim/defense/challenge that the US has. Further, the UK tends not to hold the legal profession as some sort of sacred cow, as the US Bars do.

In today’s Legalweek, Claire Ruckin (see article here) reports on the statements and sentiments at the conference in regards to innovation, at least within the UK market. Given the looming changes to UK’s legal markets thanks to the Legal Services Act (LSA), investors will soon be able to invest directly in law firms – something that may not be so appealing to many, at least according to some. Simon Beswick of Osborne Clark stated it plainly “Venture capitalists see more opportunities in setting up new businesses to compete with law firms, as opposed to direct investment into existing firms (as quoted by Ruckin)." This goes against both of the widely held assumptions that investors would want direct investment in firms and that innovation can only come from law firms themselves.

Yesterday I attended the Univeristy Of Maryland School of Law conference “Addressing Major Changes in Law Practice.” Gillian Hadfield of USC Law often asks the question and raised it yesterday as well “where are the garage guys of legal?” It is by no coincidence that she uses that term as she is currently at USC – close to the birthplace of so much innovation and where departing from the mainstream to go invent and create in a one’s proverbial garage has led to some amazing products as services – see Apple, Google, Microsoft. But as Gillian and others have pointed out, here in the US too often any innovation in the US is squelched by UPL claims when they come from outside the law – or even from within it. It is instructive to review the claims against LegaZoom and TotalAttorneys for evidence of this - - or just talk to anyone who disagrees with the use of off-shore LPOs.

So while the UK moves forward and loosens the constraints and barriers to entry to their legal market, the US holds fast to arguably antiquated and weak claims of self-regulation and professional protectionism. For the record I am not against law firms nor am I out to seek their Ribstein-ian death. Rather I am confident that the US market is in dire need of serious innovation in creating more options for consumers and clients - the old way can stay, just make room for some new way as well. Why is this change necessary for the US? Because every other legal market is either developing or changing as we speak – that is besides Mexico who is looking to replicate ours. My guess with Mexico though is they will embrace our distinctive advancements (Constitutionality, rights, judicial system) and disregard our ignorance and/or arrogance in not recognizing and not pursuing significant change. Then again, as I stated yesterday in Baltimore – perhaps the US is truly brilliant and we will lead by NOT changing. Call me patriotic but that does not seem to reflect the famous American spirit.

In the meantime though I tend to believe consultant Stephen Mayson (a recent Georgetown Law: Law Firm Revolution panelist) when he argues that the next five years would expose the shortcomings of the profession's business model and capital structure, arguing that law firms "don't understand value." He was speaking in the UK but his remarks apply here as well – perhaps even more so.

Addressing Major Change in Legal Profession (UMD Law Conference)

2010-04-28T17:35:00.013-04:00

This is a ”live” blog transcript for the “Addressing Major Changes in Law Practice” presented on April 28, 2010 by the University of Maryland School of Law. For more information on agenda and participants please click HERE.

This conference follows on the tails of the other recent legal conferences that have examined both the changing legal profession as well as the growing interest in changing legal education. See the Georgetown Law conference “Law Firm Evolution: Brave New World of Business as Usual.” Also the recent NY Law School “Future Ed: Business Models for U.S. and Global Legal Education.”

Readers of this may also be interested to learn of the upcoming conference at the University of Southern California in conjunction with that school’s “The Southern California Innovation Project (SCIP).” This event has been organized by one of today’s panelists and active thinker/writer in this area, Gillian Hadfield of USC School of Law. The name and focus of this event is “Building Better Lawyers.”

Live Blogging:

9:20am

Phoebe Haddon, Dean of MD Law School begins off the morning. This conference hopes to be a bit different than the recent conferences on the changes in the legal profession. She notes that the profession is calling into question whether the traditional employment model of recent grads going into law firms will remain the status quo. Dean Haddon is touching upon most of the recent conference topics. She notes that this focus is on law schools and law students and what they will be experiencing as they leave school and seek employment.

Working collaboratively and approaching problems from an interdisciplinary way are key going forward - citing the 2007 Carnegie Foundation report on legal education. It highlighted the gap that exists between legal and practical knowledge.

What should we be advising students in regards to these challenges?

In thinking of the much often touted “having a global vision” – this is a mutual and shared sense of problem solving and how we confront the social and economic problems found in the world.

University of MD School of Law has created the Leadership, Ethics and Democracy (LEAD) program – law schools have an obligation to prepare law students for the leadership roles they will find themselves in later in their career. This is a growing trend for more “leadership” within both the profession as thus in legal education.

9:30am

First Panel “Changes in Big Law Firms and the Issues These Changes Raise.”

Bill Henderson presenting “Models of Practice: Past, Present & Future”

BH: Highlighting the past models and economics circa 1948 – in short much smaller firms – much smaller profits. Then came the Cravath Model. The Chicago Lawyers study “Two Hemispheres Theory” – look at who’s the lawyers clients are - 1975 50/50 personal lawyers versus corporate - 20 years later the hemispheres shifted – 2/3 were then working for corporate interests.

Highlighting how the lawyer population has outpaced total population increase. Yet the ABA is reluctant to say we have too many law schools.

Class of 1991 entry level salary was $40k. 8% to 10% making $70-80k. In 2007 the median is $65k. 20% making between $120 to 140k per year. Law school grads have become too expensive to train – citing how more and more clients refuse to pay for 1^st or 2^nd year associates. This coincides with the on-going structural change – nature in the client/lawyer relationship is changing. GC motto is “do not let legal costs outpace revenues”

The old broken model – flipping Cravath model on its side. Associates now equal loss – partners still equal profit. New model demands expertise beyond lawyers – folks such as Specialists, Project Managers, Team Leaders, Price Estimators are more and more in demand.

Future Models

Mentioning Susskind’s Book “End of Lawyers.” Society wants us to move along the path towards commodity (iPods, Blackberrys, are innovations that are commodities yet valuable to both maker and consumer.) Lawyers need offer both to but also stay up in the specialized arenas.

9:54am

Marc Galanter: Looking at profession in year 2020. We probably know just as much about what things will look like in 2040 as we do 2020.

How much of the larger legal profession could we have imagined ten years before? Change happens in certain periods of time. Outlines 4 major periods of change in the legal profession in the US (see below).

A 1935 – 1945

B 1960 – 1970

C 1985-1995

D 2010 – 2020

Now we are facing the next ten years (2010-2020). A great deal of change can be packed into a ten years time frame. This is a greatly unstable period – perhaps more so than any previous. Legal profession is growing but much more slowly – and it is getting older in terms of its ranks. Firms are becoming more elastic – new titles and employees (true employees). Competition between lawyers within firms is higher. Firms are incapacitated in solving the lifestyle problem. Greatest challenge is the new information order that arrived in the late 70’s – proliferation of press and information technology.

Facing challenges form new areas – outside capital. Are there states that want to take the lead on this? Capitalization will accelerate the innovation and technology use by such a firm further undercutting those firms that do not.

Looking ahead all we really know is that change is ahead – status quo no longer

10:18am

Michelle Harner: We are in a time of change for the legal profession more generally. Law firms are right-sizing. That is normal part of an any organization’s evolution.

Lawyers at Big Law “add value” – To create and find solutions that are not in the forms and treatises. Clients hire creative problem solvers and skilled technicians.

Pushing back on all this talk of change – there is a lot of noise out there about how we need to fix the legal profession and the death of big law. Not sure they reflect the majority of opinions out there.

We are doing a disservice to clients if we buy into all this noise. There is room for unbundling and outsourcing. Let’s not undervalue what it is lawyers and legal educators do.

10:23am

Lisa Fairfax: Agrees with Michelle Harner’s comments regarding “noise” out there but does highlight some disconnects that must be rectified.

Disconnects in the profession:

Last year more than 12000 people were laid off yet in Sept 2009 more than 60,000 sat to take the LSAT (largest ever). We have an absorption problem – how can law firms absorb all of these folks?

We are still training lawyers as if they are in a 1947 practice.

Group decision making is yet another disconnect. Mention “group project” in law school and students run screaming. Yet in firms lawyers and other must work together – especially with clients.

10:33am

Neil Dilloff - Been in a large firms for 33 years.

1. Large law firms will not vanish – these claims are premature. BUT things have changed. Competitors are coming from “spin-offs”

Sophisticated clients hire lawyers first, law firms second. Going with the old “you do not get fired for hiring IBM” - but regardless in most cases it is the lawyer not firm that is hired

2. Firms are looking for grads with judgment, people skills, sensitive to integrity and honesty, and people that are “workplace” ready. Law firms need help from law schools in this preparation and training to make them client ready /business ready.

3. Lectures are good but practice is better – immersion. Start in 3^rd year in stuffing their heads with as much practical knowledge as possible

Truth in law firm training: If you are lucky and you are assigned to the right partner you will get opportunities to actual learn and do something. Assigned to wrong partner and you will sit in a room and what to “blow your brains out.” I try to bring the law firm into the classroom as both an educator and a practitioner.

Georgia Sorenson comment of U of MD School of Law: Articulated planned sustainable measureable change = equals transformational change

11:09am

Gillian Hadfield: The IX Challenge in her classroom: Legal Entrepreneurship - presented students with a challenge concerning a true start-up company. The CEO stated that the company was not closing deals fast enough. In part because the contract is too long boring, dry, and daunting. We all get excited but then have to deal with the contract.

So how to create a contract that is smaller, simpler and still protects us? Form 10 pages to 2 or 3? This was the project for the class. Failure – solutions longer or minimally reconfigured could not get is smaller than 10 pages.

It was a success from the teaching perspective. It reminds us that it is rally hard to teach all of this stuff.

Where are the “garage guys” in law? The young ones who drop out and go set up and innovate some cool idea to change the world. The adage in Silicon Valley is that somewhere there is a 26 year old working on killing your business model. In law we have no such thing.

Today’s lawyers and students do not have the inspiration or skills to tackle innovation. The growing value gap is increasing the dissatisfaction levels of big law.

How do we produce the “garage guys?”

Current legal education model does not allow for this as it:

-Produced judges

-Produces big law firm associates (research memos)

What would it take to produce a legal entrepreneur?

1. Deep appreciation for underlying functions, purposes of legal work.

a. NOT how many lawyers (today) think and do things

2. Problem-solving orientation and expertise

3. Able to transcend the existing models and forms

11:31am

William Hornsby – Counsel ABA

Focuses on small and solo firms –

3 dynamics changed the practice

1. In 60’70s we had consumer movement

2. In 1990s we had the internet

3. Economic contraction

Unbundled services have to cross two hurdles

1. Informed consent

2. Reasonable under the circumstances

The Rise of Niches/Specialties and innovation:

Examples:

A2J by Kent School of Law – (SJI)

11:54am

Jeanne Charn: Changes and how that impact access to justice/legal services

Pro Bono is getting better understood but it is tough to fit pro bono into every practice.

See CLASP Website for 2007 Houseman “Civil Legal Aid in the Unites States.”

12:10pm

Ward Coe: on mid-size firms

25 to 65 lawyers in this area. Mid-size firms have not been tacking large firm in terms of impact from economic downturn. Midsize business models are fundamentally different. Hardly any have lines of credit. They may be a bit more flexible in the management operations thought most do no t have formal management structures.

Mid size firms rely less on leverage of associates – as in most first year associates gain real experience sooner that big firm – further, mid-size have less of a budget for training so they train through real experience.

Lawyers may be self selected for lack of creativity. Law students do not question authority.

Harvard, Yale and NYU do not even have UCC course some not even professors yet lawyers can make a wonderful living practicing it.

Live blogging end . .

Four Quadrants of Legal Education: And Educating Thy Self

2010-04-20T15:46:00.005-04:00

Recently I have been in many conversations relating to the US legal education system. The debate is generally centered on who has the responsibility to train new lawyers – law schools or law firms? Many believe that both carry a responsibility and both are failing at it. While it is easy to pick apart the dogmatic approach taken at most law schools and it is just as easy to criticize law firms for their lack of training seldom do I hear someone examine the young lawyers themselves.

In preparing lawyers for the “real world” of practice, the education and training debates tend to focus on law schools, professors, law firms, and practitioners. I ask where does the responsibility of the actual young lawyer/student come into play? Do they not have an obligation to pursue their own personal and professional growth? Are they not the ones who ultimately carry the burden of performing?

Bear with me as I touch upon some personal history briefly.

Being a middle-of-the-pack graduate of a 2nd Tier school (now known as the Top 100 - as there is no 1st or 2nd Tier) I knew my legal career would be on a much different trajectory than those in the elite schools. I would not have the Summer Associate offers or the First year offers that follow. For me and the majority of other graduates (as most do not graduate from top schools in the top of their class - see Bell Curve) the heavenly gates of the AmLaw 200 were not open to us – if we wanted in we had to pick the lock or find a side-door – some did. Me, I chose a different path, as many do who do not necessarily even want to practice Big Law.

Recognizing early on as a full-time 1L that my path would need to be non-traditional I quickly found a job working in one of the most elite DC firms – Williams & Connolly. My job – cite checker. To this day I cannot state with any certainty where I learned more that year – in my classes or at the firm. At class I was learning Contracts and Civil Procedure (with such useful topics as the Court of Exchequer). At my job I was proofreading, editing and cite-checking Supreme Court briefs and other pleadings. At class I was called on to recite the findings of a 100 year old case. At work I had to explain to a prominent partner why his cite was wrong both in terms of style (Bluebook) as well as prevailing authority. At school I struggled to make sense of the wide disparity of law I was being taught – from Tax to Criminal Law to Property (with the rule against perpetuities). While at work I learned the dynamics of firm politics, economics, and practice as I was participating in each in some small way.

This experience provided me key insights that have informed my path and choices since. I understood there was a much deeper well of knowledge and experience I needed to draw from than just my classes. This is not to say I disregarded my schoolwork in any way but I did strike a balance between work and school that at the time appeared to be career suicide to my classmates but I argued it better prepared me in the long run. My classmates would not see the inside of a firm until their summer of second year and that would be through the notorious “Summer Associate” programs that do little to teach and a lot to woo and court.

I end my personal story here but want to highlight that beginning my 1L year and ever since I have worked to refine what I observed to be the four quadrants of a legal education.

The challenge is determining where to gain each of these. That debate will carry on for some time, as it needs to. Just now we are witnessing the awakening that the right half of the above are necessary in today’s legal industry and that a majority of new graduates as well as many of the current lawyers ranks are clueless about.

To return to my story quickly – many of my fellow classmates who graduated near the top and wrote for law review are now partners in big firms. They make decent money. But two characteristics abound: First, they are not all that happy or fulfilled. Second, they only know quadrants the left side of the graph above. As the pressure builds to gain more client work and clients apply pressure to bring more value these lawyers are dumbfounded and paralyzed in many ways - a sorry state to be in especially given today’s legal market. Who is to blame? I argue the lawyers themselves. The more important question however is who’s issue is this? I say it is every one of ours in the profession. We need to come to terms with this and address it soon – especially all those senior associates and partner who have no true sense of “business.”

Moving from Debate to Dialogue

2010-04-07T10:35:00.001-04:00

In response to a thread started on LegalOnRamp by USC’s Gillian Hadfield discussing how to “build better lawyers” I provided the following. I thought it was useful to share here as the application of dialogue over debate is certainly crucial to the ongoing transformation of the legal profession.

A useful case study for this is The Sedona Conference. It is a legal think tank of lawyer, judges, and other experts that work to produce defining principles that guide certain areas of the legal practice. Several times a year professionals from varied backgrounds and practices come together to work through complex issues and ill-defined problems. With all these lawyers in one room it could easily be a haven for uncontrolled debate and typical “lawyering.” However it is anything but. Rather the tone is one of collaboration and teamwork. Sure there are many different takes on the same issue but in the end the work product reflects a thorough analysis and thoughtful approach. So much so that Sedona is often cited in case law and statutes. The reason: Sedona is guided by dialogue NOT debate.

The key is to understand the difference between dialogue and debate. Lawyers learn to debate – arguing a point, anticipating the opposing viewpoint, countering and so on. From Day 1 in law school we are taught this technique and to “think like a lawyer.” Perhaps even before we get to law school many of us are already predisposed to argue and fight verbal battles based on logic and wit. However this type of communication is not conducive to collaboration or teamwork. In a lawyer’s mind someone will win and someone will lose. Also lawyers tend to focus on problems NOT people. On the other hand dialogue is a communication tool used to foster openness and acceptance while allowing for an ultimate conclusion to be reached. Acceptance of opposing ideas is crucial but in the spirit of furthering the conversation not to stop it or the speaker of it. Dialogue focuses on the problems as well as the people recognizing both as well as addressing them.

To return to the initial issue on this thread: Training our lawyers at any stage of their education and/or career to dialogue rather than debate will foster the change spoken of here and create a more “open” and collaborative environment. Being a co-author and active contributor to Sedona has allowed me to gain a stronger sense on how to effectively communicate and work in a team of lawyers. This exposure and experience has been invaluable to me personally and professionally. And I have heard the same from many other members.

Law Firm (R)Evolution & Gaps

2010-03-26T08:00:00.002-04:00

Earlier this week Georgetown Law School held a symposium on the on-going law firm evolution. Much reporting has been done on this focusing on different issues and components of the presentations (See Lance Godard's collection). Perhaps the most valuable and insightful information coming out of the conference was from the exchanges of dialogue between participants. There were many themes that emerged over the two days but one stood out more than any others - collaboration. There still exists a “gap” between in-house counsel and their outside counsel that is prohibiting robust and meaningful collaboration that would benefit both parties.

This gap can be best said to have three components or flavors. There can be a Knowledge Gap, a Trust Gap, and a Risk Sharing Gap. All of these gaps were touched upon at some point throughout the conference. It was noted time and again that as much as things are changing in the legal marketplace there still is an apparent lack of collaboration occurring that better aligns the interest of outside counsel with their client. Given that the traditional interests of both parties have been stated to be misaligned or in conflict it is easy to see that it may be difficult to readjust and recalibrate accordingly. What was most apparent was that both parties understood and appreciated the other’s position – for instance it is clear that most in-house counsel understand and wish for law firms to be profitable. So the issue in not necessarily in the ends but rather, in the means. In house still needs solid representation along with trusted advice and counsel, but the way in which in-house is getting this is changing and what they look for outside counsel for is changing as well.

Three Gaps.

Knowledge Gap: Lacking of knowledge about the business of the client. This gap can exist as to both outside counsel and in-house counsel. It is obvious to see where outside counsel may have limited exposure and insight into the actual business of its client because it is indeed “outside” counsel. This is not to say that this is acceptable and sustainable perspective. Perhaps more compelling and disconcerting is where in-house lacks the knowledge of their client. Paraphrasing Mark Chandler “as part of the GC office - knowing your way around the business/company and its people/processes is critical.” If in-house is not successful in gaining the knowledge of its client how can it expect outside counsel to do so? Further this knowledge of how the company runs from operations, to sales, to R&D, etc. is critical to providing proactive advice and counsel. Too often both in-house and outside counsel are brought into a matter that has already become critical rather than having been involved earlier perhaps thwarting any major issue. Proactive versus reactive.

Trust Gap: Lacking the insight into incentives and methodologies in how each party is conducting its work. For instance, in-house is reluctant to trust outside counsel in terms of how it is providing its services and what they are charging for it. This goes back to the traditional misalignment of interests – in-house knows that outside bills by the hour in most instances and there is almost no real incentive to dispose of a matter quickly and cheaply. Further, outside counsel is spare with its trust of in-house when in-house selects other firms or suppliers to work with. Leah Cooper provided a great example of this when she stated that too many times outside counsel acted as though the choices she made as part of Rio Tinto’s in-house team in selecting vendors were suspect and came from an ill-advised process. She continued to say that this notion that outside counsel carried regarding working with any other vendors or suppliers often frustrated the purpose of the project and led to too much time wasted in getting outside counsel to work effectively with the other suppliers. This lack of trust of both parties leads to much waste and frustration.

Risk Sharing Gap: Lacking the ability or willingness to properly and fairly allocate risk. Jeff Carr and Tom Yannucci had an animated exchange on the opening evening of the conference. Carr was making the point that outside counsel needs to take a more active role in the risk sharing of the matters they participate in. This was geared towards fees meaning that outside counsel should not look to just bill by the hour in instances they have plenty of experience and knowledge on. They should be willing to devise a system of billing that takes into account their prior experiences and shift some of the risk of success or failure onto their billing schemes. As Carr put it – as a GC representing only one client he does not gain the breadth and depth of experience that law firms do in representing hundreds of clients. A matter that may appear to be unique to Carr may in fact be run of the mill or at least more familiar to his outside counsel. This being the case, outside counsel should have a better handle on what these matters typically cost and what the best manner is to proceed in. Yet not only do outside counsel typically fail to offer any such guidance but more sadly they often fail to even measure or capture any such data that would be useful for such purposes. If outside counsel had a better understanding of costs and strategy they would be better able to provide in-house with a budget. Further, they could then work to devise a billing mechanism that rewards success – success as defined jointly by in-house and outside counsel. Thus sharing both the risks and rewards is more easily achieved.

Filling any portion of the gaps should allow for more effective and collaborative work between in-house and outside counsel. It is clear that as William Perlstein of Wilmer Hale put it, in-house needs to take up the challenge of managing more both in terms of their client and in actual legal matters. It is no longer acceptable to be in the GC’s office and never reach into your own client to learn and always reaching to the phone to have outside counsel take care of everything. Also, outside counsel have to move beyond focusing on their clients in terms of matters and cases. They need to view their client more organically, getting to learn the nuances of their businesses and people. As both Chandler and Perlstein emphasized – both in-house and outside counsel need to “know their client well.” The client is the company and both in-house and outside counsel need to serve it actively and knowledgeably.

Wordle for the Georgetown Law Firm Evolution conf.

2010-03-24T11:09:00.000-04:00

This is drawn from the actual tweeting from the conference. Taking Lance Godard's (@lancegodard)"What the Hashtag?" page and striping out as many names of tweeps and presenters as I could here is the Wordle for the conference.

Resource Management within Legal Project Managment

2010-03-16T19:37:00.000-04:00

Today we see increasing numbers of law firms and in-house counsel investing in project performance and project management (PM) tools. While this is still a nascent development for the legal markets it may seem premature to point out some its failures. It is necessary however in order to ensure proper growth of this area and to continue to strengthen “buy in” from the stakeholders – for one failed project is not just a single failure but also serves as reason not to deploy PM methodologies at all in the risk averse culture of a legal practice.

Here I focus on the one failure that most often sinks the entire project management effort and in most cases the actual performance of the project as well (on-time, on- budget, results, and quality). This failure centers on the ability to have the right people at the right time at the right place. Sounds simple but it is not. Another way of wording this concept is “Resource Management.” Here the resource is people.

In today’s legal landscape the human capital component of our work is dramatically changing. Considering such things as outsourcing, off-shoring, near-shoring, and captives as well as new roles and positions within departments (discovery manager/counsel, project manager, strategic development) the spectrum of labor skills and locations has become more complex. Projects are typically not initiated, managed and executed from within one office or location. The Project team can consist of internal personnel (lawyers, non-lawyers, business executives, and support staff) as well as external personnel (experts, consultants, co-counsel, vendor partners and others). A project manager may be managing a team consisting of folks in different time zones, with varying backgrounds, and with varying degrees of exposure to PM. Managing not only the project but these resources is vital. Thus, properly articulating and documenting a resource management methodology along with the associated PM processes will allow for more consistent long term benefits of the overall PM implementation.

So what is resource management in terms of legal PM? The easiest way to think about this is yet another comparison to the manufacturing world. Decades ago the manufacturing process was relatively simple – a factory made a product on-site – bringing all the needed parts and labor to the factory’s central location. As the need to produce more products for less cost increased, the industry realized that it had to learn how to eliminate costs associated with storing inventory and under-utilized labor during down cycles as well as how to respond to peaks in demand that otherwise would be lost opportunity. The industry looked to alternative methods that allowed for a decentralized approach - having certain components manufactured elsewhere and then shipped to the main factory for product assembly and completion. This ultimately led to “just in time” practices whereby a company is able to control its supply chain with such a degree of accuracy that often times dozens, if not hundreds, of individual components arrive to an assembly location “just in time” (meaning no warehousing needed) for production. Further, the supply chain is diverse enough to compensate for supply shortage and spikes in demand.

History is repeating itself within today’s legal services market. Competition is fierce, margins are tight, and the traditional business model of the law firm is being questioned. The competitive pressure to produce quality for less is a reality that firms face every day. Couple this with the increased competition from non-traditional entities (such as MDPs and LPOs along with soon-to-be annexed businesses under the UK’s Legal Services Act) and firms are facing a challenging and complex operating environment. The stakes for deploying effective management tools have risen.

Resource management can be seen as part of the initiation and/or planning phase of a project (See http://en.wikipedia.org/wiki/Project_Management_Triangle) or it can be an organizational approach to controlling costs and working more efficiently. Regardless of scale, RM constitutes 5 basic elements.

1. Identification: prior to any project it is necessary to identify the bevy of skills needed in order to perform and complete the project. These can be subject matter skills (such as tax expertise or foreign language) or operational skills (such as technology knowledge or process mapping). Though it should be a goal to outline all of the skills needed prior to project initiation, the skills needed may change throughout the project and/or certain new needs will emerge or others will become unnecessary.

2. Audit: Once identified the next step is to thoroughly examine your organization beginning with your immediate sphere of influence. This may depend on the hierarchy of your company and your placement within it, your physical location, peer group, etc. Once your immediate sphere is examined next look beyond to discover any other resources that may exist in your company but you may not have immediate access to.

Next look to outside groups and persons for the skills needed. Perhaps you are working with an outsourcer or a subject matter expert. If your project already involves these types of groups it is easy to skip this part and take it as a given that they will offer someone with the requisite skills. Nevertheless it is highly recommended that each potential member of the project team from outside groups be vetted. Beyond that, if you have visibility further into the outside groups, use it. Look to see if perhaps there is someone else who may be stronger or more “on point” for your needs that is not currently slated to work on your project – try to get them.

3. Access: Discovering what you need and where it is is one thing. Determining whether or not you can actually use a resource is entirely different. This is where compete analysis is vital. It must be determined whether or not a specific resource can be devoted to the project and what the “politics” will be if they are not in your immediate sphere of influence. It can easily frustrate the purpose of the project when a resource thought to be accessible is later - once the project has begun – not accessible.

4. Utilization: For each resource, what will be the productivity required and is this the best use of the resource’s time? As to productivity, will the resource need to commit 10 hours per week or per month? Is there more than one resource available? What are their varying degrees of competence and cost – meaning if one is more expensive but can get more done in less time versus a less costly resource but who is also less productive (e.g. senior partner versus 1st year associate). Depending on the scope and schedule of your project you may want one over the other.

Regarding “best use” of time – this is something that others may need to provide information on –including the resource itself. There may be other needs for a specific resource that outweigh your project’s need. It may be a loss to the organization to pull this resource from other more pertinent matters to commit any time to your project.

Finally under utilization, it is vital to properly scope and measure as best as possible the “optimum” utilization for each resource. This should be communicated to and agreed upon with the resource prior to engaging that person. And of course this must be measured to track performance and adjust for any deviation – whether the project direction changed and thus a new allocation of time is needed or the resource is not fully utilized for some other reason. Idle time of any resource is waste (cost) and will ultimately impact the project’s performance and success.

5. Control & Direction: Finally to what extent are you able to control the resource commitment and performance on the project? This is often an issue when a project manager needs a resource that is more senior to them – in a law firm setting think of a project manager trying to control a senior partner. This can be a challenge to any project and thus needs to be considered early on. There may be a resource that is perfect for your needs but in the end you may not have any ability to control them. If this is the case you may need to look elsewhere or more narrowly define the scope of work you need from the resource. If you fear you cannot control the resource – instead of looking to them to fulfill 100 hours on the project maybe you can define the most critical area they are need and attempt to secure only 5 hours.

Performing this analysis and conducting each step will help ensure that not only you have the right people and the right time in the right place but it will also set expectations of all team members. The more complex a project and the more member of the team, the more important this becomes.

The "work" of In-house Counsel

2010-03-10T07:51:00.002-05:00

Rees Morrison’s recent post about how most in-house counsel neither manage nor lead others - they simply “work” – truly got me thinking. The obvious question that came to my mind was “what are they working on?” I agree to some extent that in-house counsel typically do not carry large numbers of direct reports and but for the General Counsel herself, most in-house would not ordinarily see opportunities to lead really anything or anybody. Putting the daily work aside along with the effort associated with managing outside counsel is there nothing left for in-house to work on if they have no direct reports and no leadership opportunities. Are they locked in a world where managing and leading are unnecessary traits and skills? Is simply “working” enough for in-house to do? I have stated for some time that in-house not only has abundant opportunities to lead and manage others (in ways other professionals do not) but also that they have an obligation to do so. Focusing on work at hand is not enough regardless of the size of the law department or the client/company.

In working with in-house counsel over the years I have had that good fortune to meet and learn from some remarkable folks who viewed their in-house role as much more than simply doing their work. Or rather they viewed their work in terms other than performing legal duties and managing counsel. Often these individuals were active within the business itself, serving as solutions architects for different business groups facing unique challenges. On occasion I was able to speak with the business stakeholders that the in-house worked with and for about the particular lawyer. I would be told that this person “really understands our business,” “he looks for a way to get things done rather than telling us how not to do something,” “it feels like they are part of this team; active and engaged; not someone we have to go find in another part of the building and ask for a time to see us,” and so on.

While working and collaborating with in-house teams over the years I have made note of certain qualities and characteristics that appeared to be highly valuable and also led to a much more rewarding tenure for some. Below are some things to consider and questions to ask for any in-house member who solely focuses on doing the typical work or for the person who is looking to grow beyond that role:

1. How closely aligned are you with the business units you support and interact with?

a. Can you name the major competitors of your company?

b. What are the key market forces currently impacting the business?

c. What are the ancillary market components/participants impacting business?

d. What are the major opportunities for your client in the market?

e. What are the major threats for your client in the market?

f. Do you know the strongest/weakest part of your client’s business and product/service?

g. Are there new entrants on the horizon?

2. How familiar are you with the different roles within your organization? Do you understand the challenges faced by:

a. HR

b. CFO & Financial team

c. Sales & Marketing

d. Operations

e. CIO & IT

f. Facilities

g. R&D

h. Production

3. How comfortable are you with the business practices and processes of the organization?

a. Compliance and Governance

b. Vendor selection

c. Supply Chain Management

d. Labor relations

e. Insurance and Risk Management

f. RFP and Bid proposal

g. Multi-jurisdictional transactions

h. Environmental practices

4. If you lost your job tomorrow, who would hire you and why?

a. How are your communication skills? When was the last time they were tested?

b. Do you have a foundation in proactive solutions and activity?

c. How robust is your professional network? Who knows and how do they know you?

d. Could you land your client yourself if you were not in-house but rather outside counsel?

This is not meant to be an exhaustive list rather it is meant to illustrate the abundance of areas in which in-house could focus and strengthen their overall value to their client – creating scenarios in which they will lead and manage. Also I am not the first to suggest that in-house needs to operate more business-minded folks and less legal minded. Overall there are plenty of opportunities to lead and manage for the in-house counsel willing to do so in any type of organization. These opportunities may not be apparent at first but they are certainly there – one may just have to work to uncover them.

Note: This list can be used by outside counsel as well to determine where they stand on adding more value to their clients.

Yes US, there is such a thing as EU Data Privacy

2010-02-25T08:59:00.002-05:00

All too many times, it is easy to get the sense that the ediscovery market is a US one. Given the notorious American litigious nature, many people and companies are solely focused on how to react and respond to discovery within the borders of the US. Though much does indeed occur here, those of us that participate in the global arena understand there are greater interests and conflicting rules that can greatly impact one’s ability to respond to discovery. I have to admit that I have been witness to too many instances of “grabbing data” that may otherwise be legally “ungrabable.” Pardon my parochial verbiage but in these instances it appeared not so much that data was collected as it was indeed “grabbed.” This of course is where the party was aware of international regulations – most often however ignorance of such controlling law was rampant.

Enter the work of the EU Article 29 Working Party and that of Working Group 6 of The Sedona Conference (WG6 & TSC). Both groups have attempted to add some clarity to the obligations of parties involved in cross-border matters which involve the transferring of data from one jurisdiction to the other. I will borrow the words of Chris Dale here for a proper description, including his intro as I believe it sums of the lacks of awareness quite well:

I will interpose only the briefest of introductions for the benefit of those bewildered by the whole subject, a group which, alarmingly, includes many for whom it all matters very much, if only they knew it.

The Article 29 Working Party is an independent European advisory body on data protection and privacy, established under Article 29 of EU Directive 95/46/EC. Its tasks include consideration of the conflicts which arise between EU data protection and privacy laws and the requirements of foreign courts and other bodies for documents which may contain private information covered by the Directive. The Working Party issued a document on 11 February 2009 called Working Document 1/2009 on pre-trial discovery for cross border civil litigation (“WP158”). The Sedona Conference responded on 30 October 2009 with a formal Comment of The Sedona Conference® Working Group 6 to Article 29 Data Protection Working Party Working Document 1/2009.

Read Chris’s entire post HERE

Recently, Jim Daley the Co-Chair of WG6 provided an update on the conversation with the EU and TSC. You can read more in Chris’s post above but I wanted to highlight the discussion that best illustrates where the current thinking is with this group and where they want it to go. Needless to say that there is some distance still on how the EU and the US see data privacy, specifically the transferring of personal data. To quote Mr. Daley:

"We received very spirited questions from the several Working Party members regarding why anonymization was such a burden for companies responding to cross border discovery, and why recourse to the Hague convention posed practical issues. We were also asked whether we believed there is really any hope that the U.S. federal judiciary will consider data protection and privacy and blocking statutes in balancing the privacy interests of Data Subjects with the disclosure obligations of multinational corporations. The questions led to an expansion of our time to 45 minutes. We all were able to participate in the discussions.

"The Chairman, Jacob Kohnstamm [Dutch Data Protection Commissioner], concluded by observing that he felt this might provide a 'win--win' situation if we can work toward complimentary goals of minimization of transfer of personal data, and overall reduction in e-discovery costs as a result.

While I do not believe that the US will embrace a more EU-type view on privacy the fact that this dialogue is occurring and continuing does provide hope that each party will find better ways to reconcile the different views each has. In the meantime there is every reason for companies to acquaint themselves with these issues so that they can better manage data transfer issues. If nothing else, understanding that there are even such things as “blocking statutes” and specific rules prohibiting personal data usage as well as what is defined as personal data – would be a valuable exercise.

The next step for this effort is the TSC Solutions paper that is currently being drafted and that will be discussed and used to frame the future discussions. WG6’s next meeting is slated for Washington DC later this year (tentatively September) and is by invitation only. If you are interested in attending you can send an email to Jessica Buffenstein at jdb@sedonaconference.org.

A note on participation: my direct involvement with Working Group 6 was only for a short time having participated in a Bermuda meeting prior to the dialogue with the EU. I would like to be of more value to the group to be honest but in all candor the state of work and dialogue currently transpiring between TSC and the EU is of such a high caliber that only those “neck-deep” in these issues are truly valuable. I do await in anticipation the end result as these folks work to clear the path for the rest of us and provide guidance on how best to navigate the international terrain of data transfers.

Trojan Horses, Rabbits and Red Herrings

2010-02-07T12:53:00.002-05:00

For ease of reading I am posting here an on-going conversation that Steven Levy and I have been having on the role of Project Management within organizations looking to find the "hidden ROI" within their information assets. It all started with Feb. 1 post here. Once again, thank you to Steve for his comments and informative perspective. In case you have not read it yet he has recently published the book "Legal Project Management."

Steve's reply is below (link to his blog HERE)

Joshua Kubicki* of Legal Transformation published an interesting and thoughtful piece Monday on Using Project Management to Find “Hidden” ROI.

He writes that he’s drafting a new proposal for the Sedona Conference about “establishing a business case for finding the hidden ROI in an organization’s information assets.” He talks about project management as an essential — and missing — factor.

While I’m (obviously) a huge supporter of the right kind of project management in the legal arena, I wonder if project management per se is just a bit of a red herring in the case of hidden ROI.

In the business world, you wouldn’t make any major move without thoroughly considering all the aspects of ROI, an nontrivial exercise. However, the concepts of ROIC, opportunity cost, IRR/NPV, and such seem alien to the way most attorneys practice law — and indeed often to the firms themselves [abbreviations summarized below]. I’m not talking about the terminology per se; there are plenty of ways to debate the net present value of various projects and cases without ever using the term.

What may be a “better” approach would be to apply a greater degree of business logic to the mechanics of the practice of law. I don’t mean attorneys should get a dual JD/MBA any more than I think they should chase PMI certification. Rather, they should develop a certain base level of business (and project) literacy before they are considered as potential members of the partner pantheon. The basic concepts of both disciplines are easily understood; NPV, for example, is a shorthand for discussing the time value of money and opportunity cost, both of which can be applied to thinking about case management without ever cracking a spreadsheet.

I put “better” approach in quotes for two reasons. First, I think it’s essential for senior and partner attorneys to participate in the profitability of their firms or corporations, which means applying business thinking to their work, as alien as some may now find the concepts. Second, given the degree to which this is all thinking from another planet, perhaps project management is after all the right guise in which to slip business thinking into the firm’s mental drinking water.

It’s an interesting article; take a look.

My response was . . .

Steve,

Thanks for reading and then posting your response here. In your response you hit on one of the major challenges I and the other drafting team members of the Sedona paper have been wrestling with.

In scoping the framework of a business case for approaching information assets from not only what the value is today or for a particular use but what the value “could be” for others or at a later time, multiple parties within the organization come into play. Each groups brings with it their own sense of knowledge and processes. Take for instance the C-suite. This group typically addresses issues from a high level, leaving the granularity to subordinates and experts to examine. They consider market knowledge, financial positioning, shareholder return, Board response and other “global” factors. Contrast this with the RIM (Records and Information Management) professionals who are typically sequestered into a realm of paper and data storage and retention. Too often these folks are not allowed into strategic arenas where their approach could enlighten others. In fact it is only recently that they have advanced to a place where they influence such things as legal holds, ediscovery, and knowledge management. Much of this growth has come from self-motivation and bootstrapping these areas along with their traditional domain. Groups such as AIIM and ARMA have been key in this regard. Other groups necessary for this effort are IT, Legal, and front-line business persons – again each with their own sense of “how we get things done” and “what we need to do.” Each indeed injecting their own brand of “business logic.”

As I mentioned in my article – the formation of an Interdisciplinary Team is key. The various types “business logic” of these diverse members are necessary due to the broad and expansive reach of information and the kaleidoscopic definition of “value.” Gathering these different groups together to take on the challenge of finding “hidden ROI” is just the start. Finding a “leader” or rather a person otherwise responsible for the planning, tracking, benchmarking, and sustaining momentum is perhaps more vital as without this person the diverse group will have a tendency to pursue others agendas and may deviate from the overall goals. This is where I suggest a project manager is needed – if to serve no other role than as the gravitational center of the group – keeping it close, moving and always focused on the end goal.

Red herring, maybe. Better yet, a Trojan Horse. Though neither idioms are needed in organizations that claim advanced business logic and represent a culture of information sharing versus silo-ing.

Steve sums it up best in his reply and his use of a Monty Python clip to drive our idioms home.

Trojan Horse is indeed a much better metaphor than red herring. However, I fear it will prove to be a Trojan Rabbit unless the records folks learn to speak the language of business. It’s not that they’re not allowed into strategic areas, but that they neither know how to speak the right language nor understand means of gaining entree. Getting their project act together is necessary, but not sufficient, I believe, without solving these other two issues.

Using Project Management to Find "Hidden" ROI

2010-02-01T12:03:00.000-05:00

I have mentioned here before that I am currently on the drafting team for a new Sedona Conference project. This effort is a not yet a formal Working Group for TSC but it is an effort that been in play for over a year now. The focus/topic of this examination is on establishing a business case for finding the hidden ROI in an organization’s information assets. Think Business Intelligence meets Records Management meets ediscovery meets IT and you will have a basic idea of where this paper begins. Because of the nature in which organization create, disseminate, and store information – often siloed, disaggregated, unstructured, and untracked - there is a large amount of “value” that is unseen and untapped. We are seeking to lay out the plan for initiating the effort to corral this information and extract the “hidden” ROI and uncover the riches in having a more dynamic aggregated information asset model. The debut of our work was presented in draft form at last year’s ARMA conference in Orlando where it was received with generally positive reviews but further clarification and redirection was needed on the part of the drafters after hearing the feedback. We are still in the process of drafting this piece and look to have it out for public comment in the near months ahead.

While working on this topic many related subjects and issues have been co-mingled in my mind. Certainly the aspect of IT and legal convergence is of great potential in any scenario that looks to define ROI for informational value. Costing studies on implementation and financial ROI will be necessary as well for any implementation. Defining some of the many ancillary benefits of strengthening such diverse business process as R&D in product development, early case assessment in legal matter management, and improved customer satisfaction will be helpful in further expanding this topic. Perhaps the most important question however is who within an organization will be charged with this task? Records Managers have a stake and so would make a likely choice. IT obviously carries the burden from an architectural perspective as well as content access and security and so may be a wise choice. If an organization already has a BI or KM team they might also make for a strong choice. Even a techno-type out of the in-house legal team may make a solid implementer. However all of these positions currently exist and in most cases are already over burdened with their day-to-day responsibilities. Executing on a cross-organizational ROI business case that looks to mesh all informational assets into a holistic system and process that is able to extract potential value for all relevant parties will require a skill set that is adept and working with diverse groups and business functions. It will require someone who has a grasp both of the underlying objectives but also on how to organize and plan for such an undertaking.

Without divulging too many of the key elements of the paper, in it we do outline the necessary elements for it to succeed. One of the most import factors is that of creating an Interdisciplinary Team made up of key stakeholders within the organization (I mentioned some of them above). However, there is a knowledge gap in this group no matter the type or size of organization (with some exceptions) – there is no person identified that has the core project management skills of the quality that this implementation demands. A project manager would be of great value and importance. Their discipline in organization, planning, measuring and executing would add a tremendous advantage in this cross-function organization-wide undertaking.

Obviously it is our hope that this paper and business case contain therein will be a catalyst for organizations to review their current information architecture and decide to undertake a deeper, more meaningful effort of establishing the process of extracting ALL value from it. I look forward to sharing this paper with the project management community to assess its potential impact from their perspective and hear how the PM role may take part.

Legal Project Management as your GPS (a basic overview)

2010-01-25T14:39:00.004-05:00

I am often asked just what is Legal Project Management. Because most folks think in terms of their own experience and thus have varying ideas of what it is I have used the following analogy to help frame it. Though it is a basic framework I have found it does aid in adding context to a sometimes slippery topic.

GPS is everywhere today and most people have experience with it in some fashion. Most folks I know have it built right into their cars, while others have pocket-sized units to take on the go, while still others rely on GPS technology built into smartphones or use mobile Google Maps. I think it is safe to say that most everyone uses GPS in some fashion or are at least is familiar with it. So let me use it as a metaphor for Legal Project Management (LPM).

When you have a GPS and want to go somewhere you first punch in the destination. The unit then calculates the route based on a number of factors – some user-defined such as, “avoid traffic,” “quickest route” or “scenic.” Based on these variables the unit will then calculate other variables like traffic patterns, weather, time of day, etc. and then plot your course. You can then proceed per the visual and audio guidance the GPS is providing. It is always reading the road ahead, providing feedback and directional changes in advance of you arriving. If you were to stray off course the GPS unit will recalculate based on your current position and can either track you back to the point you departed the route or simply redirect you to your destination based on where you are. You are never lost and in most cases can tell how long it will be before you arrive at your destination. Most importantly you can always change your destination mid-course or enter numerous destinations and proceed accordingly.

LPM is in many ways similar to GPS. Constructed properly a LPM plan will provide a roadmap, guidance, be able to address and react to variables, and always lead you toward your destination with a sense of visibility and confidence. But just like a GPS, without a destination or goal defined, LPM is relatively worthless. Further, GPS does not actually “drive” or execute, it guides and monitors just like with an LPM strategy – having a plan will not be enough, someone will still need to actually perform the work.

When I am working with corporations and law firms it is not shocking to learn that often times the goal(s) have been ill defined. Ask different people and you get different answers as to what the goals of a project are. Most enlightening are projects that involve both outside and in-house counsel. Ask outside counsel what they determine a “win” to be and then ask in-house what their definition is. Disparity often? You bet. Why? It is not because outside counsel is ambivalent, or ignorant, or unconcerned. It is most often that the goal was discussed once at that outset of the project and never again since. As the project progressed and variables came into play that could alter the potential paths or even the eventual goal no one was ensuring that this was communicated throughout the team. Without a constant feedback loop the LPM strategy may ultimately become ineffective and in most cases complicate things and drive up costs.

It is as if you were driving in your car using your GPS heading to the grocery store but remembered half way there that you need to fill up on gas first. You would not expect to the GPS to just automatically head to the gas station based on your realization. You would need to input the destination and let the GPS recalculate. Similarly, in-house counsel needs to ensure that there is sufficient communication occurring to allow for recalibration and consideration of the LPM. Note that I have put in-house counsel in the “driver’s seat” operating the GPS (For more on what in-house should be doing revisit the open letter written by Pamela Woldow). Though outside counsel may be responsible for achieving the goal(s) it is the responsibility of in-house counsel to provide the necessary parameters and ensure that if there is a change of destination that outside counsel is aware of it and recalculates.

LPM can be used to get you anywhere and accomplish most things but it does require communication. And often times there simply is not enough of it to make legal project management as effective as it needs to be.

I use the scenario of LPM within the context of outside and in-house counsel working on a project. Obviously LPM can be deployed internally on matters of legal department management that do not directly involve outside counsel. So to can law firms deploy LPM within their firms to accomplish any number of tasks and projects.

Jury Verdicts & Settlement research: Part of ECA

2010-01-23T10:17:00.000-05:00

To follow up on my last post, I thought I would add a quick note on the topic of Jury Verdict and Settlement research. Any early case assessment strategy as part of a litigated matter will most likely encompass a valuation component. How much does the Plaintiff know to state as the value(s) of the matter(s)? How does a Defendant know what the value is? Research. And this has nothing to do with ediscovery but everything to do with ECA.

Here is a link to a posting by Jamerra Cherry a 12 year veteran medical malpractice paralegal in Philadelphia. It states in part:

No matter what type of law you practice, researching jury verdicts and settlements is an important part of any case. How would you know a plaintiff's demand is over the top if you didn't research it? Don't wait until your case has been active for a year to start researching. Early case assessment is helpful when going to mediations, arbitrations or when having a meeting with your client. Plaintiffs utilize verdict research to outline and support a demand. On the flip side, defendants use verdict research to state why a plaintiff's demand is unreasonably high. In order to properly evaluate your case, verdict and settlement research is key.

Click HERE to read the full article.

Early Case Assessment is being marketed NOT provided

2010-01-15T13:49:00.002-05:00

Early Case Assessment (ECA) has gained momentum recently as ediscovery matures and clients look to improve their ability to not just respond but detect and assess issues proactively. The unfortunate truth is that the strong majority of proposed ECA solutions or products are nothing more that ediscovery accelerators. What is being sold is not necessarily ECA but a quicker more robust ediscovery process. The fact is that ECA has been around for decades and it is not something that can be addressed by technology alone or by speeding up the ediscovery process (though this could be useful at times.)

According to the International Institute for Conflict Prevention & Resolution ("CPR") “[ECA] is a simple conflict management process designed to facilitate informed decisions-making at the early stages of a dispute.” In providing these guidelines the stated purpose of CPR is actually a better definition of what ECA should be.

“[To] set forth a process designed to help businesses decide early on how to manage disputes, including identifying key business concerns, assessing risks and costs, and making an informed choice or recommendation on how to handle the dispute.”

Notice use of the word “dispute” rather than “case.” ECA is often deployed prior to any formal action being taken by a party. In many ways proper ECA could be called “Early Matter Identification,” “Early Issue Detection,” of “Early Scoping & Strategy.” There are many other names as well. The point is that with ECA, there does not need to be an actual case at hand. It can be proactive, a self-diagnosis or evaluation of the party or position, or it can be reactionary, used to take inventory on resources, strength of opposition, variables in play, etc.

Lawyers have been practicing ECA arguably since the profession first came into existence. It is a process of gathering information on the client and issue(s) to determine the nature and scope of the matter (potential or real). It is the initial fact gathering that can occur on the first meeting between client and attorney. Obviously in today’s’ market, this process can be complicated and protracted by such factors as size of the corporate client, nature of the issue(s), number of potential parties, volume and location of potential evidence, and the complexity of any potentially applicable laws, regulations, etc. But the essence of ECA is simple - learn what you can as quick as you can to determine if and how to proceed. To put it into the human context it could be analogous to the “fight or flight” response that is triggered in a given situation by all the information our senses take in at a given moment. Though typically not as dramatic or swift, ECA is similar – based on what we know now what should we do? And what more do we need to learn?

It has been stated that conducting "very good" ECA often results in learning at the front-end roughly 80% of all that you will ever know about a matter. This means looking at "the facts and the law and the witnesses and the documents" according to PD Villarreal, the head of litigation for Schering-Plough. It has also been noted that where ECA is performed the results can be significant for the matter overall leading to a favorable outcome 75% of the time and halving litigation costs.

Therefore, ECA spans a greater spectrum of practices and concerns than ediscovery. Though it can aid in coming to the meet and confer better prepped on the ediscovery issues of a matter it does not necessarily lead or need to be on the front end of ediscovery. It can be used to assess potential issues, conduct preliminary investigations/audits, determine strategy and inform settlement prospects – all prior to and sometimes voiding the need for ediscovery.

ECA is a combination of practices and tools. The current market is certainly offering a greater mix of potentially useful tools in this matter but none alone can nor should be labeled ECA. It is being marketed really just as the next generation of the ESI review process – more condensed, more powerful and faster. These tools are indeed helpful and offer strong advantages but true ECA is not simply about getting more relevant data (presumably less volume) in front of reviewers more quickly.

There are millions of dollars being spent on marketing the idea that automated and robust ECA is here today. My view is that this is just marketing hype – wrapping an ediscovery accelerator with the label of early case assessment.

New research highlights financial benefits of legal process outsourcing

2010-01-13T12:10:00.000-05:00

Via LegalWeek.com

New research produced by PricewaterhouseCoopers has highlighted the growth of legal process outsourcing (LPO) services in the wake of the economic downturn.

The study, which canvassed 514 outsourcing service providers in 50 countries around the world, identified legal services outsourcing as providing the highest cost savings - 44% - in comparison to other markets.

The research also revealed that LPO services realise the highest profit margin for providers, with an average margin of 29%, ahead of IT (24%), finance and accounting (21%) and procurement (19%).

Meanwhile, 82% of LPO providers that responded to the survey are planning to expand the scale of their existing services over the next two to three years, while 11% of all respondents said that they intend to provide legal services for the first time during the next 18-36 months.

To continue reading full article CLICK HERE

Mega-Firm - Hogan Lovells

2009-12-15T19:02:00.000-05:00

The mega-merger of Lovells and Hogan is almost complete. Today was the final voting day for each firm’s partners on whether to proceed or not. Come May 1, 2010 there will be a new “global” firm of 2500 lawyers and combined revenues of just under $2 billion. That is a mega-firm to be certain.

Now I am not privy to any details of this deal nor I am even in the same universe as these two firms. However, I am both an active participant and observer of the legal industry and come from a perspective gained from over ten years being immersed in it. So when I look at this merger the one question I have: truly the only one that matters I argue, is, what is the reason for this merger?

No doubt I would get many answers from those polled inside the two firms and I would hear things like, “it makes sense,” “it is either grow or die,” “our clients are global so we need to be,” “we need to create critical mass in certain international market,” and “the timing is right for a strategic risk.” These all may be fine reasons and they may actually be part of the overall reason. But I would like to know if anyone asked the question, is this merger good for our clients? If so, for which ones and if not, for which ones? Fair enough this is not one question but it is one theme –it is client focused.

I am sure the firms would state that they have asked. In fact Warren Gorrell of Hogan stated that “[w]e have got a lot of positive feedback” from clients. That may be true but what was the negative feedback and were clients either for or against it or were many clients conflicted – they see value but also see potential issues. What will the two firms do to address these issues? It has been witnessed time and time again with large law firm mergers that the “be bigger” approach will eclipse the finer points of client centric service –with focus on scale and volume there is a lack of organization around what serves clients best versus what serves the firm. Further, as has been documented and mentioned countless times, law firms are not managed well, certainly when compared to other services organizations and businesses. Yet there seems to be this proclivity to keep getting bigger. If you cannot manage what you have well what makes you think you can manage something larger?

Further rapid expansion comes the economic pressure to make the merger work is enormous. Certainly in the formidable years of the merged firm there is considerable overlap of services and costs existing within the former firm’s operations. With such a focus on new business I hope there is an equal amount if not more on retaining and serving the existing clients.

My point here is not to bash law firms and certainly not to bash Hogan or Lovells. My point is this – if a client’s billing gradually lowers from say $3 million to $500,000 what will the firm see as the reason, if they see it at all. In a smaller firm, that $2.5 million loss will have a much greater impact than in a larger $2 billion firm. Will there be less attention paid or if attention is paid will the tendency be to attribute it to a down cycle in the client’s legal matters or some other client business issue. Will a mega-firm have the sensitivity to ask the client why? The better question is to ask that client what percentage of their legal work is the firm getting. And who would ask? What happens to the relationship partner the client once had prior to the merger once he or she is shifted to become a transitional partner who will need to focus on the integration issues of the firm? Does the client get shifted to another partner, get less time of their original partner, or some other alternative? As the saying goes, clients hire lawyers not law firms. How do two merging firms reconcile this notion?

David Harris managing partner for Lovell’s stated in Legal Week that “[t]his proposition is unique – we will be able to attract new business going forward. We will have scale and a profile that will be much more powerful.” Powerful for who - the firms, the partners, or the clients? Lawyers using terms like “powerful” typically make me nervous. It makes me wonder just what end they are trying to serve – their own or their clients’.

The smart mergers will serve client interests first. The mega mishaps will not. So perhaps the real question is which type will this merger be?

Caveat to "The Future of Law is Process"

2009-12-08T08:50:00.000-05:00

I am posting here a new discussion occurring on LegalOnRamp (LOR). Ron Friedman at prismlegal.com posted his recent blog “The Future of Law is Process” on the LOR discussion forum. I posted the below comment.

See Ron’s original blog here where he discusses how “process” is key to the continuing change occurring in the legal profession. I do not disagree but added the caveat below.

I agree with Ron that the future is process. But let us not reinvent the wheel in legal – there are countless methods, processes and measurements already developed and proven in other industries. We should look to borrow and repurpose what is out there before we create and birth our own. Actually I just finished watching Paul Lippe talk at the Supernova conference last week in San Francisco (via Ustream recorded video) and he recalled the difference between creating new knowledge and uncovering knowledge that already exists. Because someone did not know something existed prior they may perceive it as new when they think of it or create it - but in fact it did exist prior. The best analogy is Columbus “discovering” America. The continent had existed prior and so had the inhabitants but since the “western world” had not sailed beyond the edge of the Earth and seen the “new” land previously everyone perceived this “discovery” as new. Yet the inhabitants (human and animal) had been there for millions of years.

LPOs are not bringing anything “earth shattering” to the legal profession. Rather what they are doing is bringing a concept of process-focus and orientation to the performance of legal tasks. These concepts have been around for years in other industries – just now are they cracking into the legal profession. To many folks outside of the law, LPOs may not seem to be unique or special in anyway. In fact when talking to CIOs – a group who has been immersed in outsourcing for decades – LPOs represent nothing new or novel other than the fact that they are doing work typically done by legal professionals in their own companies or its firms - but the model, work methods, technology and organizational characteristics are familiar.

LPOs are helping the legal profession sail over the edge of the Earth to discover “new” ways of doing things. Let us all hope for more fair winds for a long time.

Special Masters & Mediator Opportunities

2009-12-02T10:17:00.000-05:00

There are two great opportunities to gain insight into special master and mediation techniques coming up in January 2010. The first is at the CPR Annual Meeting in NY on January 14-15. CPR is the International Institute for Conflict Prevention and Resolution. Notice the “Prevention” aspect of this title – resolution is often discussed but prevention remains a topic that receives little to no attention within the practitioner arena. Running concurrently with this event which features such folks as Richard Susskind, Ken Fienberg, Paul Lippe and Jeff Carr is a training course for mediation – the CPR Basic Mediator Training. The Training starts a day before the conference and into the first day. But those that sign up for the training will be able to attend any session of the conference that the training does not overlap – mainly Friday’s programs.

The second opportunity on this front is the upcoming Sedona Conference Ediscovery Dispute Resolution for Special Masters & Mediators on January 28 – 29 in Phoenix. NOTE: this is currently a filled conference but there may be a chance of getting a spot by signing up for the wait list. This program features some of Sedona’s most prominent regulars – most notably the Judges Facciola, Rothstein, and Scheindlin. This focus is specifically on training and learning about disputes involving the preservation, collection, review, management, and evaluation of ESI.

In case you want to learn more about the use of Special Masters within the ESI domain I suggest hearing over to Ralph Losey’s post earlier this year where he discussed this very topic. His post was a detailed overview and summary of the Scheindlin/Redgrave Cardozo Law Review article on the same topic.

Published Article - UK Law Business Review

2009-11-30T07:02:00.001-05:00

I wanted to share a recent article of mine that was published in the most recent edition of the Law Business Review - a publication of LexisNexis UK. This article was written to address the market disruption LPOs have caused within the legal services arena.

With the advent and increase in Legal Process Outsourcing (LPO), law firms are facing greater challenges in maintaining the broad spectrum of legal services historically provided to clients. LPOs and other outsourcers have already taken a noticeable share of the low-level support services and look to expand into more substantive middle-tier legal services. With each new service acquisition LPOs disrupt the business and profit models of firms.

The online article is in an "ebook" format so you may have to page through the magazine to get to Page 56 where the article "LPO: Friend or Foe" appears. Have a look throughout the magazine as there are a number of useful and interesting articles that provide an insight into the UK legal market.

Here is the link: http://www1.lexisnexis.co.uk/2008/magazines/2009/LBR/LBR_Winter%202009/LBR_eBook/flash.html#/58/

From Megamania to Expertopia: Four Scenarios for the Legal Profession in 2020

2009-11-25T08:48:00.000-05:00

As I wrote two weeks ago here I will be detailing and discussing a unique and influential study that was conducted a year and a half ago. Here is the latest article.

Until recent years, changes in legal services arrived in slow-motion and were easy to handle. But today the future requires advance preparation, almost like an appearance in court. Market forces keep growing more complex and global events are accelerating. Corporate counsel, and especially their law firms, risk getting blindsided and having to catch up to the present.

Indeed, just over the last decade, litigation fees soared and companies began seeking to offshore and commoditize legal work. The consequences have been deeply disruptive. And as business uncertainties grow, legal practitioners face a constellation of new challenges that can spur or slow the growth of the companies they serve.

General Counsels are leaders, not just firefighters. They must not only maintain current performance, but enhance the productivity of their teams, reduce burdens to the company, and strategically plan for the future. So what will the legal future look like for corporations? The industry could consolidate, as financial services did. Or barriers may intensify specialization, somewhat as they have in healthcare. How can we identify such scenarios early and prepare for them, rather than coping after they arrive?

The Legal Transformation Study: Your 2020 Vision of the Future is a comprehensive analysis of these challenges, with a wealth of projections about the changing role of the GC, opportunities, and paths for preparedness. Its conclusions arise from an expert, wide-ranging examination of trends and variables facing the industry. To avoid blind-spot assumptions, study authors examined the spectrum of possibilities. They also looked at fields like HR, where metamorphosis has been swift and unexpected. The result is a quartet of novel, illuminating scenarios.

The Legal Transformation Study is a milestone toward this end. The future is all about uncertainties, but it concludes that two will likely dominate:

Meta-Uncertainty 1: What Will the Legal Services Landscape Look Like? Will a few mega-firms rule the earth or will specialty shops prevail? Will we see a handful of Wal-Mart-type law firms or endless boutiques?

Meta-Uncertainty 2: Will Regulatory Barriers Rise or Fall? Will state rule-systems grow more harmonious or more diverse, complex, and forbidding? The answer is unclear and companies can face impossible decisions. For instance, consider the EU data privacy initiative. Europe is a quilt of regulations on the confidentiality of Internet information and companies may have to choose between refusing EU data to a U.S. judge who has ordered it, or providing it and risking EU penalties.

In combination, the two meta-uncertainties yield four strikingly varied scenarios of the future. In two, the world is a jungle of rule-systems, with either the huge or the nimble prevailing. In two more, regulations grow uniform, with techno-giants or small, online firms flourishing. Each scenario describes a culmination, and the 2020 world will likely lie on the trendline, not at the terminus.

Scenario 1: Blue-Chip Megamania

This is the world of the one-stop megashop. Major economic blocs — East Asia, Europe, and North America — are vying so ferociously that protectionist walls have risen again. Only legal behemoths can break through them. About ten mega-firms sprawl across continents, and they offer the gamut of services: legal, forensics, accounting, research, litigation support. Far below lay tiny, highly specialized firms, of inconsistent quality.

Most GCs simply run a department of liaisons to the mega-firms. Choosing one is difficult. The buying gets diluted. A global, dominant firm brings numerous conflicts of interest for a potential client, and sharply narrows the buying field. The same forces also forge lock-in. Hence the GC faces the challenge of obtaining legal quality across the board, since the mega-firm may lack the expertise needed for, say, South America.

In many ways this is the environment we are in now. Law firms are spreading across the globe and seeking to penetrate the legal services market, both in practice and in process work. Suppose you are in patent law. If so, are you also in patent prosecution? If you are in patent prosecution, then are you in patent filing? Law firms are teetering on the edge of trying to own it all.

Scenario 2: Expertopia

Here, the world is also a patchwork of regulation-systems, complex and volatile. Yet now they actively thwart the mega-firms and a flotilla of speedy, agile specialty shops has arisen to negotiate the barriers.

This is the antithesis of Megamania. Gone are the general services of a law firm with 17 practice areas. Buyer choice increases dramatically — a mixed blessing. A global corporation now needs, say, different patent counsel in a string of countries. The GC engages the firms and soon is managing a swarm of outside attorneys.

Most GCs are now executive vice presidents and serve on the governance and compliance committees, since managing these providers has become critical. Yet, surprisingly, hiring among these myriad, highly competitive outfits is much easier. Companies just use Legal OnRamp or ACC ratings. Rating agency evaluations are validated by peers not paid-for listings so purchasers are able to better choose the appropriate counsel.

Scenario 3: Technolaw World

Globalization is at a climax and has proliferated. Borders have virtually vanished and regulations tend to align across nations. Travel is ultra-fast and easy. Free trade has led to unprecedented peace and wealth creation. All media have merged, and the wireless internet is now an ultra-fast, super-collaborative system. Ubiquitous video screens enable near-constant contact with others.

Mega-firms span the planet, but their role has changed. Since smart technologies now perform much of the lawyer’s former work, firms focus more on devising and selling software platforms. Attorneys remain but often their job is to create integrated legal/business processes, along with business experts.

We use the phrase ‘legal advice in a box’ and view the law as a technology deliverable. The human element is partially removed here, as lawyers become techno-lawyers. You can see bits and pieces of this happening right now. Whether it expands, contracts, or flatlines we have yet to see.

Mediation and arbitration have greatly increased. Damages are capped in tort cases. Losers in litigation pay the fees of the winners. As state regulations have declined, specialists in their byways have slowly disappeared.

This world is highly litigious and lawsuits can yield enormous settlements, but technology handles most of the combat. However, company preparation is critical and hence the GC becomes a strategic risk manager. GCs reduce costs through good outsourcing relationships, which tend to be strong and resilient.

Scenario 4: E-Marketplace

This is the doomsday scenario. The world economy has collapsed and nations have massively deregulated to prod it to life. The Internet helps struggling laypeople do much of the work of professionals, and legislation removes the need for legal credentials. Amateurs and aggregators assume key roles. Law is no longer a high-margin profession, given outsourcing and technology.

Since global harmony has led to similar rules, legal software proliferates. GCs buy services mainly over the Internet, through a Legal Facebook platform or other Web2.0 portal. Everything is online that can be. Heading a shrunken department, the GC works closely with the CIO and tends to focus on business-process planning, workflow analysis, and business-rule validation. In-house lawyers expand their role as educators and develop videos to explain legal procedures to non-attorneys.

The GC has little relationship with the providers. Price is the main concern, along with online ratings. At any hint of a problem or price change, the GC may find another provider.

This scenario represents a 180-degree turn away from relationships. Law is and forever will remain based on that trusted advisor concept. E-Marketplace takes that much of that out of the equation.

The Future of the Study

The Legal Transformation Study: Your 2020 Vision of the Future continues to evolve. This study was not a snapshot - it’s an organic living document.

In today’s world, where domino effects can begin in the far corners of the peripheral vision and foresight has never mattered more, the Legal Transformation Study confers a critical competitive advantage.

Strategies for a more Integrated Approach to Litigation Management

2009-11-23T08:39:00.000-05:00

Increasingly, executives and corporate boards are realizing that their litigation “readiness” may be putting their organization at undue risk. Despite investing billions of dollar in processes and technology to locate, retrieve and produce required documents that are electronically generated and stored, only one in five companies characterized themselves as “well prepared” and felt confident in their ability to manage the risks associated with legal discovery. Of those with a Records Information Management (RIM) policy in place, confidence wasn’t high, with some 40% of companies surveyed indicating they failed to stringently enforce their own policies.

Widely considered to be the most costly and time intensive aspect of the litigation process, discovery is not something to be done piecemeal or in damage control mode. The risks are simply too high—and are escalating with recent court decisions. Yet, for too long, executives (and boards) have been willing to “roll the dice” as they have failed to make an integrated, pro-active approach to litigation management a priority.

A holistic or integrated approach to managing litigation challenges is as basic to an organization as a crisis management plan or a risk management plan. Yet, for too long, litigation management has been left out of the business process improvement push.

Parallel Processes
Litigation management is a process, not an endpoint. It needs to be viewed in the same way companies view their manufacturing processes, hiring or R&D processes, their risk management or crisis management processes. Like other processes that are so fundamental to a business’ operation, litigation management cannot (and should not) be isolated within the company’s legal department. The e-discovery process is pervasive—as it includes virtually any (and every) document or data set produced by employees in every division and department of the company.

The cornerstone of preparedness is thoughtful planning and training of key personnel backed by the right systems, including processes and technology to ensure efficiencies and streamlined communications. To be effective these elements must be coupled with regular review and updates to ensure the processes and policies in place remain relevant. With today’s rapid technology advances, keeping generation, retention and storage procedures for electronic documents current can be daunting.

As with crisis management, investments of time and resources must be made to audit, plan and map out processes. Many find this upfront investment in planning is directly proportional to the level of risk or exposure the company potentially faces. Minimizing business interruptions and potential damage to the company’s reputation are byproducts of successfully run processes. At the same time, having a robust readiness process positively impacts a company’s ability to expedite early case assessment—to determine which cases merit time and resources, which cases pose the greatest potential risk or liability.

Litigation readiness requires disciplined planning, thinking and a commitment to refresh policies and procedures to ensure changes in document generation, storage and management are always factored in. Without that careful pre-planning, the organization’s e-discovery procedures will not be defensible in court, exposing the company to added risks, sanctions, fines and potential obstruction of justice charges.

The amended Federal Rules of Civil Procedure (FRCP), which went into effect on December 1, 2006, had the same far reaching effects that governmental regulations such as the Sarbanes- Oxley Act (SOX) and the Health Insurance Portability and Accountability Act (HIPAA) had on businesses. In fact, the impact of FRCP may be even more widespread, since the requirement for an effective and disciplined electronic information management infrastructure is one shared by public companies as well as private businesses; in short, any business operating in the United States.

The demands of discovery require businesses to preserve any electronically stored information (ESI) that may be considered relevant evidence in a potential lawsuit. Fail to produce the requested documents and the consequences are severe, including monetary sanctions and potential charges of obstruction of justice.

Even ESI that was considered “not reasonably accessible” by the courts may be subject to discovery demands which, based on recent court decisions, are likely to continue to shift and change. Some companies operate under the misconception that having a document destruction policy in place is an adequate safety net. A basic “do this, then this” approach is not suitable since the legal requirements for document retention can vary widely from department to department. Finance teams, for example, are required to keep certain securities and filing document for a given number of months. And, perhaps even more challenging for companies to navigate is the onslaught of new technologies that are changing the very nature of documents—how they are created, accessed, used and archived. Additionally, the court’s view of reasonable or acceptable data management and retention policies is not a constant, or set in stone. It is changing as new technologies and processes come into use.

Companies today face a daunting challenge in simply keeping up with technology advances and understanding how those changes impact their litigation management processes. In the past, discovery was comparatively simple and straightforward: Ask for documents, get documents on paper. With rapid technology advances dramatically altering the landscape the need for Records Information Management (RIM) is ballooning exponentially. All employees within a company need to begin to understand this—and act accordingly. Much of what will likely become relevant discovery in the future will not, cannot, or should not be printed. Web 2.0, user-contributed data-driven sites and a host of other new technology solutions foster an environment where the data is more fluid or dynamic than ever before—yet that ephemeral data is still discoverable (see sidebar for the latest.)

And, just when a company has its litigation readiness policies in place, technology advances change the landscape again. New applications, including user editable websites (such as wikis), web blogs and instant messaging (IM), Twitter, Facebook, and groupware applications are changing the nature of what is—and is not—discoverable data. Meta data (or data about the data), for example, is the type of ephemeral data that could be required by the courts to produce, yet remains challenging for companies to track, preserve and archive.

Like crisis management, the success (or failure) of e-discovery planning will affect the entire organization. The process cannot be isolated or contained within the company’s legal (or legal and finance) teams. The discovery tentacles stretch into every area of the organization—and can quickly put a halt to day-to-day business operations. The pervasive nature of e-discovery, coupled with the rising levels of risk many corporate boards will find themselves in, warrants a senior team member from each of the company’s core functional areas may need to be actively engaged in the planning, testing and program refining process.

In recent years, closer integration of legal and technology teams has led to the adoption of innovative technologies that are transforming the way teams work, manage work product and respond to pressing legal issues. The next major challenge is for legal and IT to collaborate with other functional areas within the organization and work together to identify core legal and business processes that could help streamline the processes associated with document creation, management, and recovery. Providing the tools is a step forward. Streamlining the processes and supporting those refinements with the proper technology is a more integrated or holistic—and effective—way to approach the challenges.

Moving to a more integrated approach to litigation management—and by extension, the discovery process—will require corporate counsel to adjust their practices and adapt. They must collaborate, understand the technical aspects of the process and anticipate shifts in the landscape. Perhaps more importantly, they must demand the same from their outside counsel and their discovery partners.

Redefining the Document—and What is Discoverable
A core part of the challenge ahead hinges on the fact that the accepted term “document” is dated and conceptually misleading in context of litigation readiness and electronic discovery issues. Collection and review of voice, video, databases, and Internet-based communications all come into play. When addressing these types of data, the average person’s concept of a document--something that may be printed, read, and held in a person’s hand--begins to blur. Now companies need to tackle a wider (and ever expanding) set of data as part of the discovery process.

Although expanding the legal definition of a document to include electronic data creates the obligation to produce that data as part of discovery, courts offer no guidance on how that production should be carried out. It’s not surprising that the approaches and methods used to produce electronic data for discovery vary radically. With paper documents or even word processing files, the definition of document was clear and contained. The document was started, worked on, saved. There was a linear progression or structure. Adding one level of complexity—information about the document’s lifecycle—was still manageable. The challenge for companies today is that familiar structure no longer fits digital data, creating immense records management challenges.

Technology: Simplified Complexity
Exactly how new, more ephemeral data sources impact records and litigation management is not always at the forefront of the minds of those who select, pay for or implement new technologies like instant messaging (IM), collaboration software, data warehousing, ISP-hosted e-mail, and cloud or web-based applications. While each new solution presents an opportunity for improved personal productivity and corporate efficiencies, it also raises challenges (some still untested) relative to litigation readiness and e-discovery processes.

Issues relating to data dissemination and archiving are coming the forefront.

• How do you archive when the data is “live” and changes by the nano-second?
• How can data capture and regular deletion policies be enforced when employees begin saving emails to their local inboxes?
• How do you control the location of data with pervasive use of thumb drives, micro drives and other devices that enable employees to take data home, on the road—wherever and whenever they need to?

Some businesses are employing biometric devices (such as fingerprint recognition systems) to help control storage and transporting of data—but those devices are costly and add another layer of complexity for users and the IT teams supporting them. This is just the start of the IT / litigation readiness chasm. Oftentimes, since the consequences are still unknown or uncharted, engaging in a cost / risk analysis with IT staff and governance, risk and compliance (GRC) team members does not happen.

One of the key factors adding to the technology tangle is simply too much data—and too much of it being stored because the cost to do so is low, prompting companies to “just store it” rather than systematically review and purge. The reported average storage capacity of a company’s Windows NT servers is 43 terabytes—if those stored documents were printed, they would stack over 800 miles high. From a litigation readiness perspective, this data can begin to feel like dead weight.

New Direction
As with most complex business processes, the first step toward creating and documenting a streamlined, holistic approach in a discovery playbook is to document a detailed understanding of the current state. This is a fundamental part in shifting from a reactionary mode (or a crisis management mode every time a major litigation matter hits) to one in which a planned process is followed. It is also a fundamental step in developing a defensible process that is tailored to the business.

This initial step is a substantive one—and one that an increasing number of in-house teams have dedicated time to addressing. In a recent survey of over 350 corporate counsel, approximately 40% rated themselves as “proactive” when it came to litigation readiness; yet, only 26% acknowledged they had a discovery response workflow in place. Less than one-third (29%) believed they had appropriate processes in place for collecting potential evidence in a legally defensible manner.

The costs and time associated with computer based discovery can be greatly minimized with prior planning—upfront investments to conduct an audit, outline the processes and roles and responsibilities of key players will yield tremendous benefits over the long run. A clear first step for companies interested in improving their litigation readiness include:

AUDIT:
• Assess current approaches / sources for data generation/document creation, management, and retention. Document and map the current state -- what records are retained, what policies are in place, what systems and data structures exist (and where), what processes are employees following, what is being enforced—and what is not.
• Identify the key players and decision makers.
• Identify different levels of risk the current litigation management approach presents—and what actions and investments could be made to help mitigate those risks.

READINESS PLAN
• Define roles and responsibilities.
• Create a lexicon or terminology to ensure all involved have a common understanding of terms, decisions, risks.
• Set forth proposed policies and annotate with the team’s rationale; how were these decisions made, what trade-offs were considered
• Map out how the new / proposed records retention practices should be applied companywide
• Ensure proposed approach conforms with international standards
• Set forth an update or refresh plan to ensure plan (including all policies and procedures) remains current with technology advances and changes as well as changing court definitions on what is discoverable, and what is not.

Companies do not operate blind today when it comes to crisis management—virtually every Fortune 500 corporation has a plan in place that is reviewed and refreshed periodically. The same diligent planning should be applied for litigation management, which has the potential to escalate into a costly, cumbersome and potentially high risk exercise for the organization. Establishing best practices for data retention and preservation can help legal and IT teams (and the rest of the organization) address issues proactively. A constant refresh to ensure that policies and procedures are taking in to account technology advances as well as newly defined court interpretations of what is discoverable is an absolute must in order for a company to ensure its litigation readiness.

Litigation Process Reengineering

Business process reengineering (BPR) is process that corporations began to adopted in the 1990s—and one that continues today as teams assess their current practices and seek radical redesign of processes, better use of advanced technologies and more focused use of human capital.

A core component of business process reengineering is the active participation of cross-functional teams.

“By redesigning processes, by measuring and managing them, and by organizing around them, companies are able to achieve unprecedented and sustainable improvements in operating performance.” BPR approaches and thinking are new to many legal teams—yet, it is at the heart of what litigation readiness processes demand. Some advice from the “father” of reengineering, Dr. James Hammer (who passed away in Summer 2008) underscores the importance that BPR can play enterprise-wide. Remarks from the bestselling book “Reengineering the Corporation: A Manifesto for Business Revolution” that Hammer
co-authored with James Champy underscore the importance for all in the corporation to get involved and commit to a different way of working.

“I would advise anyone considering a reengineering program to confront early on the tough business decisions that such a transformation demands. Don’t assume that problems will get swept under the carpet or someone lower in the organization will make decisions for you. This ‘reengineering thing’ will not just happen. You have to vigorously attack the business issues and then actively demonstrate leadership from the top down.”

“Reengineering is not gone…the truth is, it never went away. Real businesses have been using reengineering assiduously to transform vast segments of their operations.”

The Future of Search (and the practice of law?)

2009-11-11T15:35:00.000-05:00

Yesterday I attended the Ediscovery: Future of Search seminar sponsored and put on by Capital One. It was at their Northern Virginia headquarters and moderated by a slew of their in-house counsel.

To be honest but for the participation of Jason Baron and Ralph Losey I more than likely would have skipped this seminar. After all there are so many “ediscovery” related seminars that I find myself reacting in similar fashion that GCs do when they hear the word “ediscovery” – I shutter or roll my eyes with exhaustion. Nevertheless, this seminar was valuable and had nuggets of useful information and new perspectives. If a participant were new to the practice and process of ediscovery this seminar would have been invaluable to their education.

The highlight of course was the new video that Ralph and Jason premiered. If any of you are familiar with the “Did You Know?” videos that have been viral on the web and in many presentations over the last few years you will know what this may look like. In short, they pieced together some rather intriguing and thought provoking facts, comparisons, and predictions about where the future of data and search are going. Ralph had to manually manipulate the slides as this was a beta-version so to speak but I know that in talking to him later in the day he plans to have this as a self contained movie in short time. I believe their target release date is the next LegalTech in NY.

Back to the seminar. The range of topics and panels encompassed the spectrum of ediscovery and search. Some of the highlights included having Ellen Voorhees of the NIST explain the TREC project and some of the key findings and methodologies. Also, J udge Paul Grimm gave the lunch speech and discussed his 5 P's of effective search (Preservation, Processing, Privilege, Production, and Proportionality).

One of the more enlightening panels was the one moderated by Heather Bryden – Capital One’s ediscovery Director in which she asked questions to a panel of four law firm partners. The topic was on how to partner with IT and outside counsel to search ESI but the conversation veered into other areas of the processes and practices of law firms. Of note was that underlying sense that no one really wanted to address the realistic aspects of conducting a powerful and efficient search on data that would more than likely represent a significant reduction in time the firm would spend on review and search itself. The discussion had an academic feel to it rather than practical. I do not fault Ms. Bryden for not pushing on this and I do not necessarily fault the partners for avoiding this aspect. It was however a classic illustration of the difference between academic pursuit of change and practical pursuit.

It is an on-going debate that is thankfully growing in volume as to law firms’ incentives and interests in changing or getter better at processes at all. LegalOnramp is filled with this discussion and it is often brought up at Sedona Conference meetings too. Firms may talk to the talk but few are walking the walk.

When I mentioned this to Jason Baron in an email after the conference he reminded me of the Darwinian analogy to this. That is that the firm that looks to automate and deliver a quality process will win over the competition and the “old dinosaurs” at the firms who wish not to change will lose. Jason also pointed me to the Sedona Conference paper on Achieving Quality in the Ediscovery Process, specifically the executive summary. In part it states

“The legal profession is at a crossroads: the choice is between continuing to conduct discovery as it has “always been practiced” in a paper world — before the advent of computers, the Internet, and the exponential growth of electronically stored information (ESI) — or, alternatively, embracing new ways of thinking in today’s digital world. Cost-conscious clients and over-burdened judges are demanding that parties now undertake new approaches to solving litigation problems.

An excellent point to be sure. My problem is that I cannot wait for the glacial pace of evolution to take place. I am seeking change now and looking for others to do so. In the meantime I will continue my pursuit and also celebrate the likes of Bartlit Beck and Adams Holcomb – two firms that are not waiting to become extinct – they have already evolved.

The Legal Transformation Study - a framework for dialogue

2009-11-09T18:33:00.000-05:00

In February 2008 a group of legal industry experts representing many facets of the profession published a collective work entitled “The Legal Transformation Study (‘LTS’).”* The aim of the LTS was to apply a future planning method called scenario planning to the legal profession and its ongoing evolution. Through the use of this scenario planning LTS explored what the legal profession could look like in the year 2020.

The substance of the LTS was based on interviews, research, analysis, and market findings as contributed and provided by many reputable individuals. Some of the participants included the likes of Jeffrey Carr of FMC Technologies, Mark Chandler of CISCO, Ward Bower of Altman Weil, Ed Breen of Tyco Int’l, Fred Krebs the ACC President, Justin Miller of DuPont – among other prominent opinion leaders and practitioners.

In early 2008 I was one of the first presenters of this material and its findings at a Corporate Responsibility Officer conference at the Union League Club in NYC. It was there that we began to witness the LTS becoming a useful tool to frame many of the current issues in the evolution of the legal industry. What we also realized was that the LTS would be relevant for years to come as we progress towards the year 2020 – the end date of which the LTS contemplates. From that moment until the year 2020 (and most likely beyond) the LTS would be used as a guide to not only frame discussion on change but also guide the dialogue and track the evolution of the legal industry. In short the LTS gave us a means to discuss change with our colleagues, clients, customers, and peers that expanded beyond mere guesses or conjecture.

In the coming weeks I will be discussing the LTS and its findings here. Rather than simply repeat and copy what is found in the study, I hope to explain the content in a way that engages the reader to think about what signs they see in the industry that could impact the LTS - validating or invalidating its scenarios as time progresses. From this I hope to contribute to the and findings of just how the legal profession is changing and perhaps not changing.

Another hope is that I will be able to coax or bribe others to contribute here or on their blogs or in other mediums. The LTS was a collective work not one person’s opinion and so it’s discussion and dialogue ought to be as well.

*Disclaimer: I am an Expert Contributor to this Study as well as one of the initial Sponsors.

Information: management, governance, lifecycle and/or ecosystem.

2009-10-20T18:08:00.000-04:00

Though the notion and schema of information management has been around since the dawn of information itself recently there has been an uptick in discussions and focus. Much of this is due to two things: One, the volume of information organizations deal with exponentially increases almost daily. Two, the nature of information has radically shifted from not only a physical to digital state but in the digital state information is now viewed as independent of the vehicle in which it is carried. For instance, information was once seen as contained in a record or document but now it can exist in formats with definitions that do not fit into those categories – take Google Wave for one very recent example.

The legal field with its ubiquitous ediscovery has found that though perfecting ediscovery may be a worthy and valuable notation, the soundness of the process actually rests on what condition the information is in prior to inducting it into the ediscovery process. That is, ediscovery is a “use” of information and not the “management” of it. This inevitably takes the discussion to how to manage information in the first instance so that ediscovery and the myriad of other uses –from business intelligence to audit reporting – are more effective and perhaps more important – cost effective.

There are many groups and scholars that have discussed information management over the decades – scan the archives of Harvard Business Review for a quick tally. Recently, however the legal community has begun to grapple with this as it takes its earned knowledge form the ediscovery world and brings it to the larger problem.

The question ultimately posed by such groups as EDRM and The Sedona conference – both of whom have begun initiatives on this front – is can this community of legal scholars, practitioners, and experts comprehensively address and answer the problem of how organizations are to best manage their information?

As co-author of a Working Draft paper by The Sedona Conference, I and the other authors toiled with this question almost a year ago as we began to formulate ideas and methods to address the issue. Just today as part of the EDRM project, I sat in on the IMRM (Information Management Reference Model) meeting that was dealing with this very issue. The IMRM has been in existence for at least six months but the EDRM project has been tinkering with the idea for more than five years. Their initial thoughts came out of constructing the first box in the EDRM – Information Management. Being the first box in the EDRM chart, this group obviously sees the ediscovery process starting here. And it does.

Given that two reputable groups within the legal arena are tackling this issue the broad question of if they can indeed answer the problem remains to be seen. For Sedona’s part, we discussed the initial draft of the paper last week at the ARMA conference in Orlando and look to have public commentary on it in the near future. As for EDRM (IMRM) we are in the beginning stages and look to provide material that is unique yet complimentary to the recent efforts of others.

Stay tuned.

UK firms embracing LPO; what are US firms embracing?

2009-10-06T14:56:00.000-04:00

In a soon to be published article I authored, I briefly examined the current state of LPO within the UK law firm market and suggested three strategies for addressing LPOs. What I did not discuss was the somewhat self-evident difference between the two legal markets (UK and US) and how each has reacted to the LPO industry.

Just this week it was announced that one of the UK’s most conservative firms Slaughter and May was engaging LPO to shift work away from the firm itself in an effort to control costs for clients. In this specific case it is rumored that it was just one single client that made the request which was the catalyst for this effort. We have seen this client centered effort before with Rio Tinto but this is different in that Slaughter’s client has not yet bypassed them in seeking LPO but requested that the firm determine a course of action.

Slaughter’s move is anything but unique in the UK market. The Lawyer (UK publication) has reported that the likes of Linklaters, Freshfields, and DLA Piper are also currently examining outsourcing options. Further, another UK firm Pinset Masons LLP announced in June that it was adding litigation support and edisclosure (ediscovery) work to its LPO team of 75. Eversheds and Lovells are two more UK firms that have or are about to execute on an LPO strategy. Add to these some longstanding outsourcing platforms such as Clifford Chance’s India operation which has performed some 12000 hours of works for the firm’s clients over the past three years and you have a veritable LPO tidal wave washing over the UK legal markets. It is worth noting that this is not simply for low-level back office work but for actual billable work such as due diligence, document and contract review, compliance, etc.

In preparing that article I was not surprised to find that so few US firms openly embrace the LPO phenomenon but what was shocked that so many US firms are still either openly opposing LPO or worse, simply ignoring it. Now I am not here to advocate for LPO – as I have stated before each firm needs to determine its own strategy for outsourcing – whether to use it or not and to what extent (firm cost savings or client cost savings or both). What I do openly advocate for is that indeed every firm should be aware of the alternatives to their very own services. Blind spots are never wise to embrace or ignore as a strategy. US firms ought to be investigating and examining all angles that their clients could pursue or that they could pursue on client’s behalf to define better practices for achieving legal goals. Perhaps US firms are – if so they are certainly not talking about it. Why? If they are not, no doubt we will not be talking about them in the future – as they may no longer be around.

UK firms in general seem poised to lead in the overall legal industry transformation with such initiatives as the Legal Services Act to fostering groups such as Juridica (a strategic capital group that funds cases) to embracing alternative legal services markets like LPO.

So where is the US legal market leading in change or alternatives?

Is Twitter for networking or clique building?

2009-09-07T16:41:00.000-04:00

I have been struggling with this question since I joined the Twitter parade some time ago. It is a question I avoided asking as I do not want to be labeled a whiner or social miscreant. However, I consider myself an intermediate with Twitter at this point and have spoken with others who have asked themselves the same questions. Where does cross-pollination of ideas and information stop on Twiiter and self or other promotion begin? Is Twitter just another portal to track one’s popularity and status in the digital universe or is it about expanding ideas and meeting new thinkers and individuals?

Like many newbies to Twitter I remember being vexed by how you get followers and how someone can amass thousands. And so I began simply tweeting and following folks who I wanted to read and thought I could learn something from. I found that for the most part they would follow me back but sometimes someone would follow me, I would then reciprocate and follow them and low and behold they would unfollow me later on. Twitter itself is not proficient at tracking “unfollows” so I went to a third party application to use (http://twitapps.com/) that emails me when I have new followers and when people unfollow me . It is quite helpful to at least see who has decided I am not worth following. It is also great to learn which people I have followed that have yet to follow me back. Unfollows or a lack of follow vexes me in many ways and I struggle to figure out if perhaps they simply get too many followers and never weed through them to follow back or if they simply do not care to follow me.

I am a lawyer and there are thousands of lawyers and legal professionals on Twitter. Just go to Lextweet to see this. Often the folks I will follow have something to do with the law or technology – a fairly broad scope. There is no expectation that everyone I follow will in turn follow me – I am fairly certain that the CTO for Cisco, Padmasree Warrior (@padmasree) would know me or really care to know what I tweet (though I would like to think so). Nevertheless, I was not surprised to learn that she does not follow me as I do her. What does surprise me is that many of my peers that I follow simply do not follow back. I began to watch them on Twitter – to notice their tweeting habits and what I learned was interesting. There are definitely defined networks of individuals who read, retweet, direct message and otherwise communicate with one another. This is not necessarily bad and is even one of the benefits of this platform. What is troubling is that these networks appear after a time to actually be cliques – self-selected groups who promote one another at the exclusion of all others. Again I want to avoid appearing to whine about this – in fact I am fine with it – but it does illustrate a point. That twitter though it may be a new vehicle for social communication carries with it the same human behavior as others social tools – whether personally or technologically based.

It would be untruthful to suggest here that I am not irked to some degree when I choose to follow someone that chooses not to follow me (and no I was not always the last picked in gym class). This is not because I am trying to amass followers to up my count. Disclaimer: early on I did use one of those “build your Twitter followers” services not knowing exactly how that worked. After one day I ceased it as I was being followed by incredibly random people who I knew would not care what I wrote and I was fairly sure I would not care what they wrote (my apologies to the person who kept tweeting about “Best Mattress Ever – Discount prices” – but that was not useful to me in the slightest). I committed the cardinal sin of Twitter – and any social media really – I put quantity above quality. I am not alone in this realization. Both Kevin O'Keefe (@kevinokeefe) and Scott Greenfield (@ScottGreenfield) have recently written about this very issue – quality over quantity. Mr. O’Keefe has been on a multi-day mission to go through each of the folks he follows and unfollow all who he does not care to read or get to know. A useful endeavor to be sure.

I enjoy following some people who I know would not necessarily follow me back and that is fine. This what I love about Twitter - that I can follow someone who I respect and want to get to know - it is a scope into their mind and thoughts – an extremely valuable thing for me as I am always seeking to build on my ideas and learn something new. What I have learned using Twitter has been amazing and it is almost like a real-time Google or a river of information constantly flowing. For some this can be overwhelming – for others stimulating. The quantity and quality of information available is unmatched in many ways by any other tool. There is Twitter-pollution to be sure as I mentioned to Cordell Parvin (@cordellparvin) last week. Folks who tweet that they are watching Real Housewives eating ice cream are not useful to me (collateral damage from my foray into followers building). These people I tend to unfollow and I am sure they do not care except that I am one less follower on their count. So I respect the effort O’Keefe is putting into his Twitter rolodex by cleaning it up. It has motivated me to do so as well. For those though that remain to not follow me even though I follow you . . . your loss and my gain I guess.

So the lesson for me has been, follow who you choose, make sure that what you tweet about is interesting to at least one other person and hopefully more and let the others who follow you enjoy and learn. Those who not for whatever reason will miss out and who knows perhaps they will re-discover me and click on “follow” sometime in the future. As for Kevin O’Keefe, I just hope that when he gets to my name he chooses to follow me as I think I have something to share (pick me, pick me).

Alt Fees and the Billable Hour (again . .)

2009-09-03T12:57:00.000-04:00

Ok so discussing and debating alternative billing (fee arrangements, fee engagements, or whatever phrase one uses to describe anything but billable hours) is not new or novel. Yet recently there has been am uptick in conversation from the likes of legal innovators like Paul Lippe and Jeff Carr (I am realizing I mention them a lot – but for good reason I argue) to bloggers like Mary Abraham and Twitterers like Pam Woldow.

In a recent article written for AmLaw by Paul Lippe, I commented that it was not so much the billable hour but the value of what you get for that fee. Meaning in short, sometimes paying $500+/hr for a lawyer’s time may be well worth it. That has nothing to do with the actual billing metric of the “hour.” Indeed this debate is often more about form over substance and it ought to be substance over form. I do not necessarily care if my law firm charges me x amount of dollars by the hour, minute or some other scheme. I just care that for whatever I am charged I receive equal (if not more) value for that. See more on this at Adam Smith.

Now I recognize that the billable hour has been demonized by many as a vehicle for over padding, inflating or otherwise inaccurately accounting for the total work a firm or lawyers does. However, that speaks more of the firm ‘s ethics rather than the metric of the billable hour. If someone is going to cheat you, they will find a way.

This brings into light another blog entry by Mary Abraham that has experienced a lot of debate in the last few days. In her September 1st entry, Mary discussed an Australian firm’s technology that allows for greater transparency into its workflow and work product. The debate on-line has been centered on just what level of transparency is needed within the practice of law. Some argue that all the client should see is the end product. While others argue that there should be no more “man behind the curtain” and that firms should open up their practices and work product creation to their clients. Regardless of which argument one makes I will state that any tool a firm can offer that allows this type of transparency is a great thing for the industry. Clients in the end will determine if they want to use it or not. Any time a firm can offer a client something new, innovative, and unique – the client can choose to take advantage of it or not depending on its own culture and practices.

The billable hour has often been seen as a cloak for firms to hide much of the particulars about what they do. Flat fee can be no different in many ways. The only true method a client can use to determine whether they are receiving value for fees is to know more about exactly what the firm did and how it did it. Then the clients can make the determination themselves. This new technology can certainly help. And that is a good thing.

Building a New Kind of Legal Conference

2009-08-25T14:21:00.000-04:00

It is ILTA week here in DC as the litigation technologists, purveyors of software and services, geeks, practitioners and others parade through the immense exhibit hall and attend the conferences sessions and seminars. With this event I am reminded of the need to reexamine our legal conferences and search perhaps to craft a new model. This is nothing against ILTA at all – in many respects it is unique and offers value other conferences do not. But it is inescapable reality that if you were to attend three or perhaps just two of the major legal conferences offered in a year you would encounter the same material, studies, information, with nothing truly “new” or “unique” offered.

I understand that conferences such as ILTA or Legaltech are not necessarily geared towards the purpose of advancing the dialogue of legal transformation but rather report on what has happened or is happening. Groups such as The Sedona Conference and the Futures Conference from the College of Law Practice Management in Denver have the aim of exploring potential for change and looking to prepare or even craft solutions and guidance. The other difference being between many gatherings is that in some “vendors and sales” drives the agenda and even makes such gatherings possible through underwriting and sponsorships while other conferences are self-funded through grants or attendance fees. I will leave it to readers to debate the value of each. Needless to say both serve a purpose just perhaps not the same one.

It is difficult and would leave the end-product too bloated or diluted to look to combine all the best of the annual masses of legal conferences into one big one. But there is room for changing the model of how these conferences are constructed and participated in. I envision an event that is scholastic and academic in approach, bringing into its folds the practitioners, experts and others who have relevant voices for advancing the profession and for changing it (not just something to sell). I am not a revolutionary who seeks change simply to cause havoc and unrest but I am a transformationalist – one who understand the profession is in the midst of fundamental pressure to change – and I want my voice to be heard as to how best to adopt the change and integrate new ideas and models into the process and practice of law.

I believe that the folks who are gathering in DC this week for ILTA would gain much to be active participants in a Sedona event while most Sedona attendees would do well to attend ILTA (and I believe many do). I believe the likes of CIO.com should be embraced in this environment to capture the thoughts and ideas of this profession – as the decisions on ediscovery, discovery technology, legal spend software, time keeping, etc. are moving into the CIO suite – both within firms and in corporations.

Just some ideas. All the boondogglers out there have no fear – many other conferences will remain for your pleasure.

Open Content & Legal Education Tranformation

2009-08-19T16:17:00.000-04:00

Changing the landscape of how higher education operates is perhaps a bit too humble. Revolutionizing the business of higher education is much more succinct. In reading last months issue of Fast Company the article “How web-Savvy Edupunks Are Transforming American Higher Education” my first thought was that I would like that title – Edupunk. My second was that this “transformation” should and could be applied to law school.

The legal industry is facing its own transformation. Why allow the transformation to begin with just the practice why not at the inception of the industry – law students. Law school like the law is a stalwart institution that does not change easily. There are many reasons for this that I will not go into now. Nevertheless, it can change and the easiest is for the consumers (law students and prospective law students) to force it – even create it themselves.

Content is like water in many ways – it seeks to be free and will always find a way out of most things that try to contain it. Education is pure content. Books are being digitized. Lectures are being taped and disseminated over the Internet. Learning is happening virtually. But all of this is currently happening in one of two ways in our law schools. One, is on a school-by-school basis – each with its own protocol and agenda for allowing access to content outside its lecture rooms. These are typically extremely primitive and often lack such basics as user-friendly user interfaces and security measures. The second way is by grassroots sharing. What began as sharing hand written outlines amongst peers or study groups to prepare for exams has expanded into the virtual world of virtual workspace, other-internet media, file sharing and even social networking tools.

Law schools charge a premium for their content. Much of it is identical to all other law school. In fact, most first year law students are learning the exact same thing whether they are attending Yale or Quinnipiac. The classes are the staples, the foundation for the remaining two years. So if all content is the same at least for the first year (arguable for all three years) why is it that law schools charge differently and what are they charging for anyway? Obviously it is the professors’ salaries and the facilities in which they lecture. Opening the content of education would erase those costs or most of them anyway.

Then again many make the argument that law school has little to do with the actual practice of law (that is what first year associate-hood is for) and nothing to do with the business of law (that is for some partners and all solos).

Perhaps opening content is not enough – transforming it also necessary. For that see Mr. Paul Lippe.

Legal Transformation WATCH

2009-05-29T15:26:00.001-04:00

As evidence of the on-going transformation in the US legal industry as of May 9, 2009, just under 12,00 people have been cut from major US law firms since the start of 2008, according to Lawshucks.com. Just under 10,000 in 2009. 576 for May alone.

Though the level of layoffs appears to be declining this represents a fundamental shift in law firm operations and profit models.

Separating the Practice of law from the Process of law.

2009-05-29T11:01:00.000-04:00

Legal transformation is creating a fundamental change within the profession of law. This is due to the recent emergence of prolific technology use (finally within the law), and also of an efficient orientated focus on conducting the process elements of law. As Paul Lippe of Legal Onramp noted in the past and has Jeff Carr, GC of FMC Technologies (Jeff breaks it into his four buckets) – the fundamental elements of the practice of law are diverging in how they are delivered.

Perhaps too simple, I break the profession of law into two components – practice and process. For most people, the practice of law is what they picture when they think of lawyers. They see courtrooms, arguments, strategy and maneuvering, consultation and advice. Generally one can think of the practice as most things the lawyer writes or speaks based on original research and analysis. Note the use of the word “original” as many times what a lawyer speaks or writes is just a mashup of previous work with some minute edits, if any at all – but that is for another article.

The process of law then is almost everything else – that is everything a lawyer uses or needs in compiling their thoughts for analysis and content creation. Think of research, investigation work, evidence analysis, etc. Today either robust technology applications or third party experts who are stronger at specific skills can handle much of this work. For example, most law firms do not have a forensics capability to conduct data investigations – that service is almost entirely outsourced to third-party experts. Or conducting research – gone are the days when lawyers walked into the firm’s library to pull books and conduct actual research – now they log onto either Westlaw or LexisNexis from the desktops, laptops or is some cases their blackberries.

Forensics and research have existed outside the walls of the firm for some time and are easily justifiable for a firm to not participate in delivering themselves. Mainly because I cannot conceive of a client who is still willing to pay for book-based research or thinks its firms is as strong in forensics as an expert. Contrast these highly visible skills/tasks with the less visible process management or workflow methods that a firm utilizes in how it operates.

Lawyers are neither used to nor comfortable thinking in terms of process. A lawyer’s mind is trained and sharpened beginning in law school to always seek an exception or define a unique fact or argument. Put simply, every scenario, situation, or circumstance that a lawyers comes upon they see as entirely unique and different from any other. Put more simply, everything in a lawyer’s work is a variable with no constant. Contrast this viewpoint with say an engineer who often design processes that are based on handling all similar elements in an efficient fashion but allows for (controls) variables. Best model – an assembly line. An auto manufacture building cars with 99% same components on one assembly line but the 1% difference (exterior color, interior fabrics, radio) is controlled by a separate yet integrated process.

In the practice of law the best place to look for an analogy to the assembly line is document review. Document review by its nature lends itself to a process-orientated workflow (assemble line). There are mass amounts of data to review all generally similar in that they originate from one company, one person or deal with one topic. All of these documents then have to be reviewed (the process) for certain parameters (variables).

Firms have historically and presently tackled this by looking at every single document as separately unique. Each document separately examined. Often times by as many as a few dozen lawyers when it is all said and done. This is the equivalent to building a car one at a time. Build one then start the next. Whether firms use their own staff or temporary staff – this practice is repeated almost universally in the practice of document review.

Enter a process approach – most recently championed and promulgated by outsourcers – offshore companies and technology providers. This group is firmly planted in the process methodology framework. Mapping and measuring processes are part of not only how they deliver services but also how the operate as companies. Process is everywhere for most of these groups and they apply it everywhere they can.

In document review – most off-shore companies who participate in the is market have applied and continue to perfect the mapping of processes that can achieve greater quality and cost control. This is forcing firms to reexamine how they conduct their own work and is also forcing them to defend their processes to their clients. Most often firms will challenge the quality of any outsourced work and/or claim that because they are the firm representing the client that they can only have complete confidence in the work that they conducted themselves. A convenient argument on many fronts.

Whether firms can or will adopt any of these process methods will remain to be seen. Much will have to change in how they operate and generate profit in order to do so. In the meantime however, the process of law is continuing to be refined and perfected by non-lawyers - outside experts and providers. And this is driving legal transformation and widening the divide between practice and process.

Legal Transformation WATCH

2009-05-27T15:20:00.001-04:00

In today's "Work & Family mailbox" in the Wall Street Journal a reader asks Columnist Sue Shellenbarger about becoming a paralegal in lieu of continuing to look for a job in fashion. In her response Sue states some interesting facts that demonstrate a widely accepted idea that the legal profession in going through transformation:

1. The Bureau of Labor Statistics states that employment in the paralegal profession will grow 22% between 2006 and 2016. Note: this is based on data from 2007.
2. Law firms employ roughly 70% of all paralegals.
3. Law firms have experienced significant change in the last year with mergers and staff cuts.

Ms. Shellenbarger then goes on to provide a quote from the National Association of Colleges and Employers – a non-profit.

“A serious reshaping” of the [legal] industry is underway that could change the outlook.

More people seeing more legal transformation.

Find article here: http://online.wsj.com/article/SB124337477321155853.html

My take on Twitter

2009-05-07T12:59:00.000-04:00

“Enough already!” is most people’s response when I mention Twitter to them. Most of us have been inundated by the recent (or not so recent depending on how plugged in one is) bombardment by commentators, bloggers, and other media about the use and proliferation of Twitter. Disclaimer: I tweet at www.twitter.com/jkubicki

It seems there truly is no rhyme or reason for just who “gets’ Twitter and who does not. Most technology use can be broken down by many demographic elements. MySpace for example was keen with the GenY crowd at first and still is to large part though it has grown in use amongst other age groups. LinkedIn obviously caters to the professional networker but has adopted a more robust platform and seeks diverse user groups. Facebook has an enormous membership and a broad one at that . . . now. But again it began as Gen Y tool for real-time life-sharing and gossiping.

Twitter on the other hand appears to be a combination of all demographics – from the young to old – from the casual to professional user – from social to academic to networking. I will not ask the “chicken or egg” question here as to which came first – the need to have a more real-time- cross demographic social media tool or did the tool create the need? Rather, I want to focus on the membership of Twitter itself.

Twitter is thus far the only mass popular social media that allows access to others in a rather simple way – just hit “Follow.” Though doing so does not necessarily mean anyone will return the favor – there is some etiquette to at least giving any person who chooses to follow you a shot at being informative/entertaining/etc to you by following them (many later “unfollow” – Twitter’s version of de-friending in Facebook). The “Follow” function is a one-way transaction and does not require others to grant you permission or otherwise do anything – compare this to the other tools mentioned above. This simplicity has at least two effects that make Twitter different. One – you do not have to know someone or be introduced to someone to follow them thus this allows for a much more diverse and abundant population of potential people one can reach and be associated with. Two because of its platform Twitter allows access to virtually anyone who signs up – young, old, gossip user, scholar, USA, China or Brazil, etc.

As an example, currently I have followers from virtually every continent and follow folks from them as well. The information I share reaches not only people who know me, share my interests, or know someone who knows me, but it also reaches total and complete strangers – people who may either never have thought of what I am twitting about (and this can help proliferate ideas and/or create new ones) or they do not care about what I am saying. Either way the information is getting out and reaching people I would never and may never know.

I am sure there is a useful analogy or metaphor to make this point and perhaps it will come to me in short time. In meantime however, I will end this by suggesting that Twitter may not be the final word on social media but it is a fantastic bridge to the next thing – whatever that is. The question is do you have to be on this bridge in order to make it to the next one? If you are not transforming with technology will there come a time when the amount of user knowledge one lacks will prevent them from actively participating or understanding?

CIOs' role in a GC's life

2009-05-05T17:40:00.000-04:00

Just returning from the CIO Leadership conference I am struck by both the parallels and differences of the CIO position in the evolving C-suite community of US corporations with that of the General Counsel or other in-house counsel.

For those not familiar with what a CIO is or does here is my brief explanation. CIO stands for Chief Information Officer. Though this specific title is anything but standard at this point in time it is the most popular. Others in this arena may be called Chief Solutions Officers, VP of Technology, Director of IT, Chief Technology Officer (CTO), and so on. I will use CIO for simplicity.

The role can be best summarized as that which is responsible for dealing with the electronic information management systems and overall technology of the organization. From the back-office systems like payroll, email, CRMs, etc. to front-end systems like client interface tools, communications, product development, mobility, etc. No doubt I am leaving much out here but my point is to give you the general idea of who this person is. It is worth noting that not all CIOs have a seat at the executive leadership meetings like the CEO, CFO, and GC do.

The CIO’s main challenges are to manage the day-to-day technology functions of the organization as well as manage the innovation/development of future technologies that the organization may have to rely on, offer in terms of products, or otherwise integrate with in some fashion. With the current pace of technological advancement both challenges are changing in terms of what the CIO must be aware of and what he/she does to address them. In short the target is constantly moving.

Not dissimilar to a GC - a properly positioned CIO will have a complete vision and access across the entire platform of the enterprise - front-end and back-end services (note this is not as prolific as is needed at this point). A CIO has access to all business units within a company and all the support departments. The CIO is aware of the major technological changes that are occurring both enterprise wide and within specific areas and/or geographic regions (especially important in global companies). A CIO may have to fight to gain access to the top tier of her company and getting access to the executive committee but they often can offer insight and intelligence in a unique and useful manner about all other levels and groups – something a GC should seek. Perhaps a quid pro quo – GC helps CIO access the top-tier and the CIO provides GCs access and vision across the footprint.

A marriage made in heaven – perhaps not that dramatic but an incredible powerful alliance for certain.

New Blog - temporary look

2009-05-05T17:36:00.000-04:00

I have been struggling with some hacker/technical issues with gaining access to my previous blog. Much of the material has been altered and/or destroyed so I am basically starting from scratch. Now I am constructing all blog entries off-line first to create an archive (no brainer there just never did it with the last one). Perhaps a lesson in SAS 101 - even though I do not own the data I need to keep a copy of it for my own purposes especially for disaster recovery efforts.

Stay tuned on further postings.

Committee for Economic Development and Legal Reform

2008-11-20T18:15:00.000-05:00

Earlier this morning, author and attorney, Phillip K. Howard spoke at a breakfast for the Committee for Economic Development (http://www.ced.org/) in Washington DC. Mr. Howard was there to discuss his upcoming book “Life Without Lawyers: Liberating Americans from Too Much Law.” In his remarks, Mr. Howard touched upon many of the key challenges and issues facing the current system of law and how it is administered and practiced.

Though his focus is rather broad examining everything from how teachers are forced to interact (or not) with students to how the health care industry operates with such inefficiencies and a sense of schizophrenia – the main premise of his book is that the American legal system is so pervasive (and in a sense perverse) that ordinary people make daily decisions not based upon good judgment but rather out of fear or with the encumbrances of some aspect of the law. For example, Mr. Howard presented the example of how children’s playgrounds are no longer as fun and adventurous as they were a couple decades ago when seesaws and carousels were the norm. Now, due to litigation, regulations, and special interests all these ‘fun’ instruments for children have been removed. A child who once would have ran to the playground and run in circles around and on the carousel now has no such diversion or toy. Or he pointed out the idocy of such safety instructions on baby strollers . . . “DO NOT attempt to fold stroller for storage while child is sitting in it.”

Further, Mr. Howard stated that recent research indicates that only 16% of Americans feel that if they were to be brought into a lawsuit with no grounds and while they were completely innocent that they would be confident that the outcome would be justice. Only 16%. The remaining population has a sense that though they may indeed be innocent, if one were to be named in a lawsuit, no matter how arbitrary and trumped up the allegations that they may indeed be found liable to some degree.

So while Mr. Howard certainly has demonstrated keen interest in reforming, transforming, changing, etc. the American Legal system it is difficult to learn from him his plan for implementation or execution. One should admire him for all his work and interests in this arena but even Mr. Howard recognized that we are but at the very beginning of any change and that it will take immense time and resources to force it. He even went so far as to say that the Bar itself is conflicted in this arena and that we most likely should not expect lawyers themselves to prompt the change he suggest we need.

For more on Mr. Howard you can see his profile at his firm Covington & Burling here http://www.cov.com/phoward/. Also he is the Founder and Chair of Common Good http://commongood.org/learn-people-founder.html a not-for-profit non-partisan legal reform coalition dedicated to restoring common sense to America.

Litigation Support - What does the future hold?

2008-11-15T23:28:00.000-05:00

The Association for Litigation Support Professionals (ALSP www.alsponline.org) held its inaugural Fall Forum this past week in Chicago. The ALSP has the mission of establishing the litigation support profession as a legitimate profession with standards and principles. Though there have been and still are many organizations that cater to the litigation support community (see ww.iltanet.org, www.womeninediscovery.com) ALSP is the first to formally pursue a standardization goal for the practice as a whole.

The Fall Forum was the first event for the national ALSP that focused on education and collaboration. The event followed the typical session format of educational conferences that are familiar to any conference frequenter. The depth and breadth of the panels spanned the spectrum of both experience and relevance to advocacy and thought leadership. The attendance was around 120 or more and those were made up of a complete mix of individuals within the litigation support community.

The challenge that ASLP and for the matter the litigation support community as a whole is faced with is taking an otherwise new, highly mobile (attrition), broadly defined group of individuals who work in corporations, organization, government and possible every iteration of business imaginable and constructing for them a set of applicable standards and practices that will help define the profession itself. Speak to any litigation support professional and more likely than not one will hear things that are reminiscent of then IT was a new and burgeoning profession. The filed is ripe with high attrition rates, lack of job descriptions, catch all practices, and feeling of isolation and misunderstanding as to its value and function. A sure sign of a young profession/practice.

Litigation Support faces the same issues any new profession has and the main one is recognition. Recognition by the communities they serve and work with as well as recognition by and among peers. To be clear there is a lot of self dealing that transpires within this arena but often it is a necessary step in order for experienced individual to take the next step into higher roles and higher paychecks. Promotion from within is still a rarity rather than the norm. Think free agency in profession sports and one will have a grasp of what the current landscape looks like in litigation support.

The Fall Forum illustrated all of this and ASLP is on it game for at the very least getting this group together and attempting to have thoughts exchanged in a manner that might lead to consensus. While most of the sessions presented practical information on such topics as marketing litigation support to your firm, wrestling with various ediscovery issues, and career pointers. Other sessions presented material that was not practical in the typical sense but was thought provoking and prodding. The session that this author presented was intended to provoke thought and present tools/concepts that will aid individuals to not simply get through their day but to contemplate and plan for the next day and next year within their profession. The theme was based on scenario planning and future analysis. The material was based upon the Legal Transformation Study and co-presented by Stephan Hagelauer of Decision Strategies International and Joshua Kubicki then with Solomon Page Group LLC but now an solo legal strategist.

Legal Transformation Study

2008-09-27T13:30:00.000-04:00

I wanted to share this information regarding this stellar study that may serve as a guidebook to the change that will and is occurring in the legal industry.

Here is the Overview as found in the Study itself:

The legal industry is undergoing significant change and transformation due to numerous external forces influencing the nature and quality of legal service delivery. Some of these changes, such as the changes in the Federal Rules of Civil Procedure and globalization are obvious. Other changes, while receiving less media coverage, are also beginning to affect how legal teams are servicing their clients.

In the past, law firms, law departments and the internal and external customers they serve, have frequently been taken by surprise by unexpected practice forces – trends and uncertainties that directly influence the practice of law. These surprises have often negatively impacted the quality and value of the legal services delivered (or received) and force the practitioner into a reactive solution mode – at a higher risk and greater cost for their clients. Electronic discovery is an example. In retrospect, it seems possible to have predicted and planned for the explosion in electronic evidence, had we stopped ten years ago to consider that computers were enabling more and more documentation, and email inbox sizes were rapidly growing. It has therefore become increasingly important for legal professionals to identify and assess the impact of these practice forces, trends and uncertainties on the representation of their clients, so they can provide informed, proactive legal counsel before they are blindsided by unexpected events and risks. In order to continuously enhance the quality, value and efficiency of legal services to their clients — and proactively manage the expected risks that threaten our clients’ interests — lawyers must be more cognizant of the forces in the following categories that will directly influence their practice in the coming years:

Societal
Technological
Environmental
Economical
Political

In response to this legal industry and practice challenge, in 2007, a group of legal industry thought and practice leaders from law firms, corporate law departments and legal service supplier organizations were brought together to better understand and plan for the future of the legal profession. The group commissioned global strategic and scenario planning experts at Decision Strategies International (DSI) to create a Legal Transformation Study to help all participants in the legal industry better understand our collective future, through the design of four potential legal service delivery scenarios that may unfold between 2007 the year 2020. This Study contains the forces constituting the four scenarios, the scenarios and their strategic implications readers can plan for and leverage these scenarios to their clients’ strategic advantage by better managing their clients’ risk profile. Finally, the panelists will help attendees anticipate these trend forces in ways that will improve the quality of their legal practice and service delivery.

You can find more info at www.legaltransformation.com