Several large law firms have laid off lawyers and staff. Less publicized are other cutbacks.

I hear from friends in multiple BigLaw firms that they face pressure to reduce travel costs. If "necessity is the mother of invention" and there is a "silver lining in every cloud," then perhaps we will see wider adoption of collaborative technology. Much non-client-billable law firm travel is to attend conferences or visit other firm offices. Many web-based technologies allow teams to collaborate and people to present without anyone leaving their desks.

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As this recent article indicates, lawyers are more than a little nervous about job security today (I take the stats with at least a grain of salt, but the trend is definitely interesting). That's no surprise in a time of shaky (or worse) economic news.

As Carolyn Elefant notes, there is far less guidance for lawyers on how to leave a job - and to leave it professionally - than there is on how to find a job. Her new article, " Don't Neglect Your Reputation When Leaving A Firm," is an excellent addition to the resource list and especially timely in this environment. It also gives me another chance to recommend her book, Solo by Choice.

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In the late 1990s, large law firms started creating web-based interactive legal advisory systems. What happened to that trend?

Market data on the number subscribers, and revenue is not available; as far as I know, the best listing of these types of systems is my Online Legal Services list. Anecdotal evidence suggests that online advisory system development crested around 2002 or 2003 and that many firms did not earn the hoped-for return.

We may be seeing another round of investment now; see below for two relatively new services. Here is why I think we may see a resurgence:

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Law firm CIOs who think strategically need to understand the where the legal market and large law firms are heading.

Large UK law firm Eversheds recently released its Law Firm of the 21st Century report. I found it provocative and had hoped to comment about it but too much time has elapsed, so let me point you to two good commentaries on it.

Eversheds Brings Us "The Law Firm of the 21st Century" by Adam Smith, Esq., provides both a summary and trenchant comments, including "My take on it is that the changes expected are both more and less radical than we have imagined."

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Cowell Taradash of Chicago, Illinois, launched the website www.illinoisdivorce.com five years ago after they realized they were losing clients to low end, discount divorce attorneys. Managing partner Wes Cowell said this was a preventive measure to stop market loss while at the same time to gain market share. The five-lawyer firm’s decision to provide legal services via the internet proved successful:

• The site alone generates 10 to 15 percent of the firm’s business.
• The availability of their services over the internet presents convenience for both the attorneys and their clients.
• The internet empowers clients to seek and obtain information regarding legal services at their own convenience.
• eLawyering saves time for both lawyers and clients by offering online forms that dramatically reduce the need for travel.

Not only has the site been great for business development, it won the American Bar Association's 2008 James I. Keane Memorial Award, which honors law offices that successfully and innovatively deliver legal services over the internet. The exceptional and affordable online legal services provided by the attorneys at Cowell Taradash earned them the award for excellence in eLawyering.

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A pending change in Internet domain names creates new law firm branding opportunities.

The New York Times reports in New Flavors for Addresses on the Web Are on the Way (27 June 2008) that the authority regulating Internet domain names, the Internet Corporation for Assigned Names and Numbers (ICANN), has approved custom “top level domains” (TLD). Common TLDs are .com, .edu, .org, .net, and a host of two-letter country codes. Moving forward, at six-figure plus cost, anyone can purchase a custom TLD. So I could purchase .friedmann or a law firm, say Skadden, could buy .Skadden.

The article does mention the confusion this may cause. But think of the branding opportunities…. www.securities.skadden or www.mergers.wachtell. Of course, this extends to e-mail addresses such as smith@energy.sutherland or jones@antitrust.howrey. This type of naming is distinctive and potentially memorable; it could also create style and usage challenges.

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Can lawyers rely on search to find documents in e-discovery? Recent decisions suggest perhaps not.

Craig Ball’s blog post, Grimm Prognosis for ESI Search (6 June 2008) recaps decisions by Magistrate Judge John Facciola in U.S v. O’Keefe and Equity Analytics v. Lundin and by Magistrate Judge Paul Grimm in Victor Stanley, Inc. v. Creative Pipe, Inc.. Ball captures a central issue: "It’s assumed that lawyers are qualified to review documents and decide their relevance, responsiveness and privileged character. But are we qualified to craft proxies for our judgment in the form of keyword searches?"

Ball quotes Judge Grimm’s ruling that testing ("utmost care in selecting methodology") is required to rely on software searches. I'm all for process and testing and the utmost care - if applied uniformly, including to lawyer performance on document review. Most judges and lawyers seem to assume that lawyers are (1) qualified to review documents and (2) better at doing so than software. The truth of either is purely an empirical question; the presumption of lawyer accuracy may well be false.

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I'm back home after having a great time at the bigger and better than ever Missouri Bar Solo and Small Firm Conference. It once again lived up to its reputation as the premier conference of its kind in the US. But don't take my word - just count the number of people from other state bars who come every year to learn ways to improve their own conferences. I may do a blog post or two later this week about my experiences there.

Today, I thought it might be interesting to share some details about one of my presentations. The presentation was about "Internet presence" for lawyers and the ethical issues affecting the ways lawyers now use the Internet.

As many of you know, I'm a big fan of Cliff Atkinson's Beyond Bullet Points approach to PowerPoint presentations and have used his style for several years.

Too often, the BBP approach gets over-simplified and described as slides with pictures and few words.

Certainly the initial reaction can be that you are seeing the opposite of the dense, text-intensive slides that lawyers often use. But I think that misses the (bullet) point.

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1) For corporate law departments, this is a great way to have on-line access to the status of your cases, legal documents or case/trial calendars.

2) Legal collaboration systems provide anytime, anywhere access to case information and documents, wherever an Internet connection is available.

3) This is a turnkey (Application Service Provider or ASP) solution, there are no servers to set up and there is virtually no technical assistance required to set up a new collaboration system.

4) Collaboration systems can track many things -- cases, litigations, practice support projects, vendors, budgets, etc....

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Successful large law firm CIOs have learned many secrets to managing legal technology.

Over the last year, I wrote in this blog about maxims for managing legal technology. I collected and refined these blog posts, which have now been published as Maxims for Managing Legal Technology: Unwritten Rules for the Law Firm CIO or IT Director in the June 2008 issue of Law Technology Today, an e-zine of the ABA.

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1) For corporate law departments, this is a great way to have on-line access to the status of your cases, legal documents or case/trial calendars.

2) Legal collaboration systems provide anytime, anywhere access to case information and documents, wherever an Internet connection is available.

3) This is a turnkey (Application Service Provider or ASP) solution, there are no servers to set up and there is virtually no technical assistance required to set up a new collaboration system.

4) Collaboration systems can track many things -- cases, litigations, practice support projects, vendors, budgets, etc....

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Any time the name of a lawyer or a law firm shows up in the media, it is usually the consequence of either advertising or public relations. The two are very different.

Advertising is publicity that is paid for. As a result, the lawyer or law firm controls the final product - the exact words or graphics that appear in the ad or the "advertorial."

Media relations is publicity that is "free" (although the firm might be paying an employee or agency to generate it). As a result, the lawyer or law firm cannot control the final product - the exact words or graphics that appear in the resulting editorial content.

Because it has gone through the filter of an expert outside reporter and editor, editorial content has more credibility with the public than advertising. A good media relations program helps a law firm balance the considerable benefits of lower cost and greater credibility against the calculated risks that come with loss of control.

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There are no magic words you can use to get everyone on your list to open your emails, but there are steps you can take to get more people to open them. In this article, we'll look at how open rates are recorded, what the standard rates are, and things you can do to boost your rates.

How and When Is an Open Recorded?

An open is counted when a small 1" by 1" image known as a web beacon (invisible to the eye) is downloaded. When this happens, the sending server records that the email has been opened.

Open rates do have their challenges. Sometimes opens are counted when they shouldn't be and other times they aren't recorded even when the email is opened (perhaps because images are disabled or the email is viewed as text-only). While they aren't 100 percent accurate, open rates are an important metric and a good indicator of the success of your email campaigns. They serve as a relative measure from email to email, providing you with a benchmark to measure future campaigns against.

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As lawyers, most of us focus on providing counsel to our clients, processing abundant paperwork, and dutifully recording our billable hours. Marketing and client development is often pushed to the margins of our day in favor of the client work that needs to be done. An attorney may be brilliant in achieving results in the courtroom, but how does he or she provide excellent service while being a rainmaker at the same time?

Lawyers aren't trained to be marketers and yet, at the partner level, they need to bring new business into the firm. In an increasingly competitive marketplace, Darwin's "survival of the fittest" principles apply to law firms. The "fittest" law firms are those that approach client development in a proactive manner, instilling in their leadership the idea that constant attention to business development is critical for success.

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One of our favorite contributors, trial consultant Lynn Packer, posted a YouTube video two days ago that showcases his DepoDisplay paperless deposition system.

Lynn has written several TechnoFeature articles for us in which he recounted his struggle to modernize courtrooms in Utah. Therefore, it's encouraging to see his vision up and running, albeit not in a courtroom, but in a forward-thinking Utah law firm.

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Recently we were on a call with two partners at a well-respected law firm about their media strategy. They're commonly viewed as a high technology firm. We chatted about familiar media outlets, then we asked them to consider online advertising. Our lively exchange came to such an abrupt halt that we suspected the call had been dropped.

"Hello? Are you still there?" we asked.

When they confirmed that indeed they were still on the call, they somewhat sheepishly-and with full understanding of the irony-admitted they don't yet understand the medium or believe online advertising will deliver.

Why?

Because of a classical "thinking error." They don't respond actively to online ads themselves, thus they believe others are not motivated to notice or click though online ads either. This is exactly how great opportunities are missed.

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Champerty is one of the those great law school words that few think about or remember in detail. Something to do with buying law suits being illegal. Funding them, however, may be a different story.

Third-Party Litigation Funding Stepping up in U.K. in the Wall Street Journal Law Blog by Ashby Jones comments on large UK firms turning to outside cash to fund litigation. Jones picks up on External Funding Booms as Litigators Plot Upturn in Legal Week (20 March 2008), adding some of his own comments.

I have long thought that outside funding of litigation would bring a business discipline and risk assessment often lacking in litigation. I left a comment at the WSJ blog:

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Does finding the best way to search through huge volumes of e-data sometimes feel like the quest for the Holy Grail?

I've previously written about applying smart search tools and using offshore lawyers to manage e-discovery reviews more effectively. In thinking about process improvement, we should not forget the importance of human expertise in conducting search. Better Search for E-Discovery by Will Uppington at the E-Discovery 2.0 blog is a good summary of recent TREC research. A key finding: one of the most effective techniques to reduce the volume of docs to review is to have expert searchers iteratively conduct searches. As the post notes, this may be obvious but that does not mean it's widely followed.

I think this has been true for decades and will likely remain true absent a software revolution. So I disagree with Uppington's explanation for why iterative search by experts does not occur in all cases: "the single biggest reason is that the technology used to perform searches for e-discovery has simply not been easy enough for legal experts to use."

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Judith Lamont's KM World article "KM for Legal Apps: Time is Money" gives a good picture of some of the practical uses law firms are making with knowledge management applications. Conflict-checking, integrating paper and electronic document management and enhanced full-text search are some of the uses highlighted in the article.

The article also highlights a number of KM and other tech tools being used, including Microsoft SharePoint, something on which I'm quoted in the article. As Judith points out, "Kennedy also expects the various products used in law firms to work better together, more as an integrated whole than a series of functionally unrelated products."

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Security settings and methods are critically important in the area of deploying client extranets. Here are some of the "basics".

Firstly, we expose extranets both on the internet and intranet. Therefore, it is necessary to protect the data with an SSL certificate so that any data flowing over the internet is appropriately encrypted.

Within your application itself, there are several dimensions to consider. Some of the more important areas are:

- The type of access you will grant to various types of data (submit, modify, delete). Ideally, the access levels can vary by entity type (cases, documents, calendar events, etc.).

- The creation of a set of system privileges (to grant access to see various types of functionality) and a set of corresponding roles granting different sets of privileges. The system roles should correlate to functional roles within a law firm and clients of the law firm. To cite a primitive example, one might consider creating roles for Administrators, Staff Members, Staff Attorneys, Partners and Clients, each with a different set of system privileges (depending on the nature of work they need to do in the extranet).

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The recession winds have hit the economy at gale force levels in the last few weeks. Many people spent a nervous day watching the stock market today.

The natural reaction to news of a slowing economy is to cut back on spending. Recession often goes hand in hand with retrenchment, and there's little doubt that the legal profession is already casting a nervous eye toward technology budgets.

Today, I took a look back at an article I wrote in 2001 called "A Prudent Approach to Legal Technology Spending in a Slowing Economy." It's been one of my most popular articles. I wondered how relevant it felt today.

The article actually holds up well, despite the outdated examples and reference to Y2K efforts.

It also reflects some of my common themes, including my stubborn insistence that the concepts of modern portfolio theory (diversity of investments, et al.) should play a role in legal technology strategy and planning.

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If you hire the Delta Law Group to handle your divorce or draw up a will, your first meeting will likely be a face-to-face session during which one of the partners videotapes an in-depth interview with you. After that, don't expect to see him again for a very long time.

Not that the lawyer plans to skip town. But Delta is one of a small, but emerging group of "virtual" law firms that wants to conduct most of its business on-line. That means the attorney you met in person will post your video and all future case proceedings to the firm's interactive Web site, www.makinglaweasy.com. You'll receive a password to access the site where you can view documents, receive court notices, pose questions and communicate with your attorney as often or as little as you like.

Like other virtual firms, Delta, based in Monroeville, PA, markets itself as a low-cost, no-frills alternative to traditional law firms because it eliminates much of the overhead and paperwork that contribute to high hourly rates.

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A reader asks:

I am a legal assistant in need of some quick advice. My employer recently asked me to track down a powerful and efficient program that would help take the entire firm electronic- files, client information, discovery. Is there one all-powerful program, or a line-up of key programs, that you would suggest to help take us virtual?

I get asked this question in one form or another on a regular basis.

I always suggest that the questioner take a look at the latest version of Ross Kodner's Paper Less Office presentation as the starting point. Let me also say congratulations to Ross on his recent wedding.

I've always liked Ross's emphasis that scanning does not necessarily mean OCR and the presentation and article I link to above will help you understand the different factors that you should consider.

I've found that often people are really asking there is a fast, easy and inexpensive way to "go all electronic."

My personal "quick advice" on getting something workable, simple and inexpensive in place would be to take three steps:

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According to Troll Tracker, the anonymous blogger with the bounty on his head, while the number of patent cases has not increased much from 2006 to 2007, the number of actual defendants in those cases has increased significantly during than period. Troll Tracker attributes to this increase to Patent Trolls running rampant in our court system.

Patent trolls are patent holders that do no make any actual products. Instead, Patent Trolls derive income by suing others on patents purchased from third parties. According to Troll Tracker, the increase in the overall number of patent infringements is disproportionately due to suits by patent trolls. Troll Tracker estimates that in the busiest patent court in the country, The Eastern District of Texas, Patent Trolls account for about 40% of the patent cases filed.

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December 4, 2007
By Kenneth Jones
From Legal Extranet

The use of legal extranets is expanding to users within law firms as well, most notably to promote firm-wide, cross-office sharing of work product.

For example, the potential to share briefs and documents in a "Brief Bank" across offices is an emerging area of need. With collaboration technology, attorneys can quickly and easily share work product on a secure, web-based manner and facilitate efforts such as relying on particular documents as "best practices" and other strategies designed to allow attorneys and paralegals to work in a more efficient and productive manner.

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One of my side projects for the last year or so was being part of a Missouri Bar task force charged with bringing a legal research alternative as a member benefit to members of the Missouri Bar.

It was a productive and fun experience, and I'm proud to say that it resulted in both a great new member benefit and a President's Award for the task force from the Missouri Bar.

We recommended FastCase as the service provider and the service launched last summer. More details here.

We had a follow-up conference call yesterday and I was pleasantly surprised by the amount of usage the service is already getting, and the positive response it seems to be getting to this point...

A Do-It-Yourself, or "DIY," trend has permeated the legal industry when it comes to electronic discovery and litigation consulting services. In an effort to reduce costs, law firms and corporations are building internal teams to rely less on outside vendors, with varying degrees of success. However, certain DIY missions in litigation are fraught with peril and should be carefully examined. Such is the case with computer forensics, the discipline of digital evidence gathering and examination, which often culminates in expert testimony in a court of law.

Computer forensics and the collection of digital evidence is a field with its deepest roots originating in law enforcement. Police and government investigators use various tools and techniques to mine digital evidence, tracking down perpetrators in both criminal and civil matters. With the recent explosion of electronically stored information (ESI) and eDiscovery in litigation, computer forensics is much more widespread now, and the demand for skilled professionals has outpaced the supply. Electronic discovery now appears in most cases, as e-mails have become a main form of communication, and electronic financial transactions and money management are commonplace...

'Cause We're So Cool
Among the huge number of attendees and speakers at BlogWorld in Las Vegas were some of the brightest online minds on the planet. Not surprisingly, these folks' main focus was harnessing the Internet to do their bidding. While the established ventures had their cadre of lawyers, thwarting legal dangers at every corner, most smaller companies had no idea if what they were doing was simply an online version of digging their own legal grave. Emboldened by the impunity with which sites like YouTube seem to operate, many figured that even if they were breaking the law, some magical YouTube fairy was going to sprinkle magic invincibility dust over their business. You know, because their approach was so cool.

How Much Fairy Dust Do You Have
Most of the smaller companies seemed to be betting their entire future on the existence of this magic fairy dust. The fairy dust approach, however, may not be as strange as it might appear on first blush. Confronted with the crippling legal fees necessary to bring their websites into legal compliance, smaller companies often opt to funnel money toward growth, rather than prophylactics (think back to your youth). Eventually all large online companies get their legal ducks in row. It is just a question of whether you have enough fairy dust to last you until you can afford competent legal counsel...

Should law firms do e-discovery data collection and processing inhouse?

Most large firms have - and should have - the capacity to process and collect some amount of data. The question is how much. As far as I know, only a handful of large firms have significant in-house EDD collection / processing and run it as a significant profit center.

Personally, I would avoid the risk of mistakes and challenge of keeping up with ever-changing technology. A more general issue is the role of businesses beyond pure practice inside of or connected to a firm. Law Firms Backing Away From Affiliate Businesses (National Law Journal, 11/2/07) reports that many firms are selling affiliates and few are opening new ones.

Whether a big e-discovery processing center is run as a legally separate affiliate or not, I think it raises the same issue: should law firms be in businesses other than law practice? I think that this article adds to the reasons to avoid turning EDD processing into a business venture.

Blowing up in your face.
When faced with someone stealing their patents or trademarks, some companies opt to craft their own little witty missive to the perpetrator. Sometimes these letters work. More often they don't. The problem is that when they don't, the letter writer typically miscalculates the blast zone by a rather wide margin. Like Wile E. Coyote after a failed bombing, the scrivener stands addled and smoldering, wondering how things could possibly gone so horribly awry.

What is the point?
Getting an infringer to stop infringing is merely one, lesser, goal of a cease and desist letter. The primary goal of a cease and desist letter is to set the stage for a subsequent lawsuit. By laying out your rights and the application of the law to the infringer's acts, a properly drafted cease and desist letter puts the infringer on notice of the alleged infringement. The better positioned you are to win a subsequent lawsuit, the more likely the other side is to settle...

Well-known legal commentator Richard Susskind again predicts the end of law practice. I respectfully disagree.

The TimesOnline is publishing extracts of Susskind's forthcoming book. The kick-off article, Will lawyers exist in 100 years? (10/22/07), links to landing page The End of Lawyers, which in turns links to book excerpts - the first is Legal profession is on the brink of fundamental change) - and comments from two well-known managing partners. The article aptly summarizes Susskind's key point:

"The driving force towards the end of lawyers as we know them is twofold: information technology and what Susskind calls the market pull towards commoditisation - carving up a lawyer's job into identifiable and discreet pieces that can be outsourced and done more cheaply by others. As a result, the jobs of many traditional lawyers will be substantially eroded and often eliminated."

After two decades in the legal market working for and with large law firms and with extensive experience in legal technology, online systems, and legal outsourcing, I do not share this view...

The "new media revolution" has taken over the Internet. Blogs, podcasts, videos and wikis are no longer only the domain of the "technophile," but are tools being used by everyone from CNN to Payless Shoes. (Seriously, even Payless has video applications on their webpage!) Many are still on the fringes of the revolution, but are beginning to see the value of this next wave of Internet technology. The question is: can implementing and understanding these new Web tools help you and your law firm bring in new business?

Over the last few years, many law firms have begun to notice the increasing online presence of both their clients and competitors, which goes beyond the standard Web site. It's no longer enough to only have a stock Web page that's purely informational. The modern Web user wants interaction. As Jason Parkman, General Manager at Hubbard One, explained at the August 2007 LMA Chicago meeting, "You need to engage your audience in such a way that they feel you are having a conversation with them, not just marketing to them."

Understanding "Web 2.0"

The Web, as Parkman describes it, has gone through three significant phases. The first phase he labels "browsing." This is your basic Web use or "surfing the Web," that is, going to specific Web sites to find content. The second phase he labels "searching." This is the Web phase that ushered in the Google Empire. Web users found it harder to find the content they were looking for by simply going to specific Web sites and started frequenting search engines that compiled lists of Web results. The third phase he labels "sharing." This phase is centered on the concept of user Web-based interaction. This is the Web 2.0 phase, where applications like blogs, podcasts, wikis and social networking sites rule the day. Most law firms have only entered the first two phases of Web use or are only just beginning to see the value of an interactive Web site.

I greatly enjoyed getting the opportunity last week to give the keynote presentation at the 2007 Lexis Concordance Partners in Excellence. It was a great group of people and I learned a lot about Concordance, its resellers, and related products. I was especially intrigued by the MindTalent Reader / HeadCram program and expect to write about it soon.

I used the presentation as a way to look at some of what I saw coming in the next year or two in electronic discovery. I mentioned 26 trends to consider for 2008 and beyond. These are trends I'm thinking about and, although the list is extensive, I would not say it s complete. I offer a summer of the list to get you thinking about what we might be facing in the near future of electronic discovery. A discussion starter, if you will. These ideas will find their way into my future EDD presentations...

Two current articles raise some interesting questions about law firms and outsourcing.

Small World in Law Firm Inc. (10/07) is an interview with White & Case CFO Greg Dolan. The firm outsources some word processing to a legal process outsourcer (LPO) in Chennai. It has also opened its own "captive" or "insourced" center in Manila to handle accounting, finance, and some tech. Asked why outsource, Dolan says "we decided to do both and see which one we like over the longer term."

Now that I work for an LPO, I am not dis-interested, but I think that captive centers are unlikely to prevail long term. Scale, focus, and specialization are key reasons to outsource; running a captive does not capture these benefits. (That said, I applaud W&C's empirical testing; my Best Practices posts argue that firms should manage based on real evidence, not myth.)

Look at legal technology as an example: large law firms increasingly outsource...

I'm giving a keynote presentation tomorrow on electronic discovery trends at a conference of electronic discovery vendors. This audience is different from my usual audience of lawyers and that has allowed me to take some creative new approaches to the topic.

I was fiddling with the introduction this evening and went back to Cliff Atkinson's approach outlined in his essential book for presenters, Beyond Bullet Points. He has a great exercise to help you organize your introduction. I worked through the exercise and was pleasantly surprised with what came out of the exercise. It's a little long and doesn't fit the recommended template, so I'm not sure that I'll use the entire thing, but I thought I'd post it here, in part to help me get it fixed in my mind by typing it out.

Let me know what you think and whether this intro makes you interested in the presentation that will follow it...

Many lawyers like to be trendy and fashionable. In law firm marketing circles, you are not exactly Nostradamus when advising people with incredible predictions of "new" marketing ideas-blogs, podcasts, annual reports, CRM systems-among them. They were new and trendy many years ago, and most catch on just about the time advanced marketers are on to the next great thing.

What do in-house counsel look for? If you are a decent lawyer and have to ask, the general answer is "not you."

Should I have a web site? Hey, you just got a beeper message-1998 called. Call me.

We should cross-sell. Why? The other practice group leader is only going to steal the origination credit.

Let's do sophisticated associate development programs. Because for $165k a year, I'd hate to make you actually bill.

In the 30 years since Bates, law firms have come a long way in understanding that they need to market, and need to spend on marketing. Yet, attorneys remain frustrated as to how-relying on anyone who sounds the least bit knowledgeable to guide them...

Don't mess with bloggers.
A New Zealand Amazon.com customer, disgruntled that his order had taken too long to arrive, decided to take on Goliath, Amazon's 1-click patent. The 1-click patent is probably the most famous, and most controversial Internet-based patent ever issued.

The Problem
Until the State Street case in 1998, the United States Patent and Trademark Office (USPTO) had not allowed any patents on methods of doing business. That all changed after the Court of Appeals for the Federal Circuit ruled that business methods could be patented. This led to a deluge of patent filings. Since the USPTO had no bank of business method patents against which to vette these new patents, the USPTO issued many patents on technology which was old or, at the very least, non-obvious...

Have you every wondered why people refer to BlackBerrys as CrackBerrys? It's not because of mobile email. It's because of synchronized email.

On a BlackBerry that connects to a BlackBerry Enterprise Server and Exchange Server, your email is the same everywhere. For example, when you send a message on your BlackBerry, that message also appears in your Sent Mail in Outlook and vice versa. The same goes for any folders you create.

If your law firm doesn't use BlackBerry Enterprise Server, you can still have nearly the same experience using IMAP, an email protocol available on most email servers and from many ISPs (we use Webmail.us, an ISP that specializes in email).

Because IMAP is server-based, your email is identical everywhere you check it - work computer, home computer, laptop, smartphone, other computers, etc...

This is the second in an occasional series of "maxims" on managing legal technology. Each one is a bit edgy - you have to decide where the line is on just how true it is!

Less is More. When trying to persuade law firm management or technology committees about doing something new, don't write a long report or provide too much detail to start. Remember, lawyers love to find fault with proposals. The more detail, the easier it is for them to find fault. Also, more is a bore. Stick to concepts and business value initially; drop the detail. With this approach, the discussion is more likely to focus on the big picture and business benefit. Tell your audience that if they like the idea, you can develop supporting detail later. They can always nix the idea then. But if they buy into a concept to start, they will be less likely to find fault with the details later. (And if someone asks for answers to details at the outset, ask them how the answer would change their decision. This can get testy but it helps point out that without knowing the big picture, the details may not much matter.)

Social networking (e.g., Facebook or MySpace) is the rage. Can it support knowledge management efforts?

The Water Cooler Is Now On The Web (Business Week, 10/1/07) reports that the software "turns out to be an efficient way to mine for in-house expertise, discover new recruits, and share information within their own walls." Ok, I admit it. I don't have much hands-on experience with social networking. And therein lies a problem. I'm more techie and adventurous than the typical BigLaw lawyer. I have a hard time imagining lawyers creating profiles and using social networking (whether public or behind the firewall) to describe their experience. So I am skeptical that social networking will solve any KM problems in the near term. Granted many lawyers are on Linkedin, but I would hardly call that a serious experience location system. Am I missing something?

Intellectual Property

Wow. Intellectual Property. It's quite a mouthful. Sure, it's something you hear international playboy/patent attorneys throw around all of the time, but what does it actually mean? Intellectual property refers to laws that allow you claim ownership over certain intangible creations, like inventions, books, movies and trademarks. Next time you are in Monte Carlo playing Baccarat at the big boy table, try slipping it into the conversation. The knowing winks from around the table will indicate you have used it correctly.

IP and Blog

Okay. You know what it means, but how does intellectual property relate to blogs. Intellectual property is that part of the blog you own. Most bloggers have a copyright in their content and a trademark on their name and do not even know it. Some bloggers even have valuable intellectual property in their domain name, patentable process and/or the trade secrets embodied in email lists and what goes on behind the scenes. Unfortunately, failure to properly protect this intellectual property can cause it to move into the public domain and be lost forever...

This is the first in an occasional series of "maxims" on managing legal technology. Each one is a bit edgy - you have to decide where the line is on just how true it is!

Reverse the Persuasion Equation (also known as Don't Push on Strings). Many CIOs, KM Directors, and others try persuading lawyers to adopt new technology, to do something different. Change directions. Supply standard productivity tools and make sure they work well. Then provide information on options for doing better to those willing to listen. In fact, make any lawyer who wants to go beyond the standard persuade you that it's a good idea. That persuasion can be an e-mail with a couple of bullet points. Anyone who cannot take the time to do this in support of what is often an expensive change is unlikely actually to use or benefit from the new thing.

This will be the topic of my speech at BlogWorld Expo in Vegas November 8. If you plan on attending, come hear me speak and/or look me up. The first five readers who do, will get a signed copy of my new CyberLaw book.

While we are on the topic of keeping your blog out of court, Rush Nigut and Kevin O'Keefe both wrote excellent posts on a Texas mother suing Verizon for using Flickr ads of her minor daughter in an advertising campaign. While the photographer gave consent to use the photo, the subject did not. Copyright and creative commons guru Lawrence Lessig notes that creative commons licenses are designed to deal with copyright and do not purport to address privacy issues. Lessig notes that without a "model release" issues of publicity and privacy remain a problem...

Wow! There's been a lot of conversation over the last few days on lawyer salaries, the legal job market, recruiting and retention issues. As much as I'd like to believe that my post "The Brand is the Talent" last week set off this discussion, in fact it was Amir Efrati's The Dark Side of the Legal Job Market in the Wall Street Journal's Law Blog that kicked off the lively conversation. Bill Gratsch does a nice job of summarizing and linking to the some of the posts on this topic.

I also liked Rob Millard's America's Two Legal Professions, Gerry Riskin's Sharp Pin Approaching Associate Starting Salary Balloon, and Michelle Golden's Law Students Building a Better Profession (a great example from the LSBABP blog Michelle discusses is called High Billables & Attrition Take Their Toll on Summer Recruiting). It's worth tracking down and reading the posts on this topic...

The latest issue of the ABA's Law Practice Today webzine has a great article called "Legal Talk Radio on Demand: Podcasting for Lawyers." It's a roundtable article about lawyers using the podcasting medium and includes a stellar cast of podcasters - Bob Ambrogi, Evan Brown, Jim Calloway, Denise Howell, Tom Mighell, and Sharon Nelson, with me thrown in as organizer and, since I was unable to resist joining in, as a contributor too.

If you have any interest at all in podcasting, you will find valuable, practical information and tips from lawyers who have been podcasting for a long time and have some of the best-known legal podcasts.

The money quote (one of many possible candidates) is from Bob Ambrogi, host of one of the longest-running, best-known and most-listened-to lawyer podcasts...

In the last decade, many US and UK law firms have adopted an "operate globally" strategy, buying or building practices around the world. The rationale is to be where their global clients are. I think that in the future, successful global firms will need to do more than merely be where their clients are.

They will also have to operate and manage more like their clients do. Law firm management has improved but still lags corporate management and operations significantly. Take for example how big companies work. How Teams Can Work Well Together From Far Apart (Wall Street Journal, 9/17/07, $) explains how "IBM uses high-tech tools to grapple with an increasingly common problem: making far-flung teams work well together." I've read many similar articles recently about global teams and working virtually...

It is not what you think.

Next to "fair use," "work for hire" is probably the most misunderstood concept in copyright law. Under 17 U.S.C. 101, a "work made for hire" is:
a) A work prepared by an employee within the scope employment; or
b) A work (if the parties expressly agree in a written instrument signed by them that the work should be considered a work made for hire) specially ordered or commissioned for use as:
a contribution to a collective work,
a part of a motion picture or other audiovisual work,
a translation,
a supplementary work (forewords, afterwards, editorial notes etc.),
a compilation,
an instructional text for use in systematic instructional activities,
a test,
an answer material for a test, or
an atlas.

You can't put a square peg into a round hole...

Gautam Ghosh's post, "The Brand is the Talent," (also seems to work if you say the talent is the brand) makes some great points and directs you to a short, pithy video of Tom Peters speaking (on a slide that says "Brand = Talent") and a blog post from Peters called "Competing To Achieve Excellence: You Are Your Only Competitor!".

Ghosh singles out a passage in Peters' post in which Peters says in part:

it's not an externally directed "war to snatch talent from the other guy" by "being more aggressive than the competition"-but an internally directed competition against ourselves (and our outrageously strong beliefs about people) in which we aim to create an unimaginably attractive workplace.

I also like Peters' comment that:

I contend that the bedrock of finding and keeping and co-creating with great folks is not about clever tools to induce prospective "thems" to "shop [live] with us," but a 99% internal effort to create such an exciting, spirited, entrepreneurial, diverse, humane "professional home" that people will be lining up by the gazillions (physically or electronically) to try and get a chance to come and live in our house and become what they'd never imagined they could become!

Peters also links to a set of his slides on the topic...

Knowledge management in North America has long had a different flavor than KM in the United Kingdom.

At the risk of oversimplifying, UK firms have focused on a relatively labor- and human-intensive KM, relying heavily on practice support lawyers (PSL). In contrast, the US firms have focused on relatively technology-intensive KM, relying far more on software than on humans.

The traditional role of the PSL, however, appears to be changing. One sign of the change is the upcoming September 20th conference in London, Capitalising on the client-focused professional support lawyer role by the Ark Group. I have co-chaired Ark KM conferences in the US, so know that Ark gives careful thought to constructing an agenda that reflects current issues...

Enterprise search is a hot topic for large law firms.

I recently cited John Alber's excellent article on enterprise search. Another leading thinker about search is Oz Benamram, the mover behind Morrison & Foerster's AnswerBase (AnswerBase article; AnswerBase demo).

In a message circulated to an ILTA listserv, Oz wrote about two additional search considerations (quoted with permission):

1) Search Engine vs. Enterprise Search:

John focused on the differences among search engines. Even even the most accurate search engine, however, is likely to yield too many results merely because most firms have so many responsive documents. What good enterprise search systems, such as Recommind's, do to solve that problem, is to provide users with context to (i) further narrow down the results list and (ii) determine the value of each result.

For example, after searching for a "motion to dismiss" you may want to narrow down the results by jurisdiction, court, or judge, and select only those that won. You may want to focus on motions written by a specific individual or by the author's practice group, or that were used when Bryan Cave was on the other side...

The College of Law Practice Management annual meeting took place on Saturday, September 8th. We spent the morning examining the future of law practice management.

Our wide ranging discussion is hard to summarize in a few words. For each of the several broad topics we covered, I offer below a few of the observations and comments that struck me as most interesting.

Law Firm Marketing

• A leading marketing expert believes that law firms have, by and large, blown branding.
• The huge success of leading law firms inhibits marketing. Hungry firms will innovate. Except for lock step Magic Circle
• Marketing is about content and blogs are best way to get content out on the web. [ok, said and reported by a blogger.]
• Alternative billing is the future - it has been for a long time and will be in the future...

We often receive inquiries from small firms, sometimes very small firms with 1-3 attorneys, regarding legal technology and litigation support extranets.

From these types of firms, the interest is generally a bit different from that of large nationwide law firms or Fortune 500 companies. Unlike the larger entities, who typically are interested in connecting large workteams spanning multiple locations and organizations, these firms are often interested in an ASP type law firm extranet solution which will allow them to outsource some of their key functions (sometimes case management, sometimes task management, sometimes document management, sometimes all of the above)...

A while back, I had a great conversation with Frank Gillman, Chief Technology Officer of Allen Matkins LLP, about the different ways that lawyers could use technology to attract and retain lawyers and other professionals. Our conclusion was that there were many underused and untapped opportunities - some quite simple and inexpensive - to use technology in these areas.

Fast forward a few months (and after starting associate salaries took another big bump up into the $150,000+ range at leading US law firms). Andrew Sandler at Aspen Knowledge called me about kicking off the Strategic Speakers Series that he was planning. He wanted to produce a series of video webinars that addressed legal technology with a strong business focus. His goal was to give law firm decision-makers information on ways to think strategically about technology in law firms and to place technology squarely within the business needs of a law firm.

That's the approach I like best, and I also really enjoyed working with Andrew on a video webinar about best practices for technology committees last year...

Web 2.0 is both "techniques" and "technology." There are marketing trends and techniques that underlie Web 2.0 and maybe even caused the term to be coined. And there are technologies, few of which are new, that support those techniques and make the media experience much richer, both in terms of the types of media you can use to communicate over the web and, most important, the ultimate communication experience for your clients.

Networking

Networking and connectedness are at the heart of what people are calling variously Web 2.0, the new media, online media 2.0, and other such tags. Social networking sites that tie a lot of these techniques together, as we'll see later this evening.

I want to stress that what we're talking about here is online networking, networking in a traditional sense done online, in a way that extends your ability to make contacts beyond your own geographical boundary...

After a brief, ritual flirtation with Moneypenny, Agent 007 was usually sent off to Q to make sure he was fitted out with the latest equipment before he embarked on his next assignment. Competitive intelligence experts at top law firms today have at their disposal an array of cyberweapons that are, if equally potent, somewhat less life-threatening.

Today's CI tools can help firms prospect for new clients; profile existing clients (in order to cross-sell to them, or guard against raids from competing firms; target opportunities in unfamiliar industries; headhunt lateral hires; spot trends in litigation by company, practice area, or law firm; profile competing firms and study their client lists; and determine client share, or how much of its total business a client company is actually sending the firm.

The roots of CI software are in bean counting. But time-and-billing software quickly evolved into sophisticated financial analysis tools. Don Murray, of Seattle's Serengeti Law, was an early pioneer, and in the late nineties demonstrated the value of such tools for analyzing who in the firm was actually delivering the most bang for client bucks, or the most black ink for the firm's bottom line -- or, with good luck, both...

Lawyers seldom actively contribute know-how to knowledge management systems so KM professionals increasingly turn to alternatives. One interesting approach relies on user self-interest to create KM value by inference.

Almost everyone knows what it means to bookmark a web page. Originally, bookmarks were private, for the convenience of the user to find the same web page again.

Part of the "Web 2.0? revolution is "social bookmarking or tagging." In brief, if enough users tag a page as relating to a topic, search engines can better find and rank that page. For example, if every reader of this blog tags it with "KM" using a service such as del.ico.us, this blog would rank higher in search results than other KM resources with fewer such tags. The premise is that self-interest drives users to tag content and that collectively the tags serve as "votes" on the value of the page...

The number of legal process outsourcing (LPO) companies continues to grow.

Joy London and I have updated our Outsourced Legal Services list: it now includes 100 LPOs, up from 77 in just three months since our last update.

Some notes about our list: It reflects published sources (web sites and articles). It does not distinguish between companies that may have 2 people versus those that may have 2000. We no longer check existing entries for each update. Instead, we now indicate the date we first added the LPO to the list and the date we last checked the web site; we hope to check web sites at least annually. As always, we welcome additions and corrections (e-mail to info at prismlegal dot com).

Some observations:

• Anecdotally, it appears that more and more LPOs offer offshore document review. Reading vendor web sites, however, it can be be hard to distinguish between responsiveness and privilege reviews versus more limited ojbective or subjective coding...

Ron Friedmann's post, "Why Specialists Should Manage E-Discovery," provides an excellent introduction to and arguments for the use of specialized lawyers dedicated to managing electronic discovery efforts. It also points to Ron's recent white paper, "4 Ways an eDiscovery Attorney Can Make Your Firm More Successful." I highly recommend the post and the white paper.

The money quote (from the white paper):

[Fullbright & Jaworski's Laurie Weiss] notes that the translation between law and technology is key. "E-discovery lives in the space between law and technology," she said. "And mistakes happen in that vacuum. Our e-discovery and information management practice is working to fill that vacuum."

When I speak about trends in electronic discovery, I highlight the growing role of litigation support managers in the everyday practical aspects of electronic discovery. The time of the litigation support manger has definitely arrived.

The arrival of eDiscovery attorneys makes great sense to me, but, as Ron notes, we are in the early stages of the development and evolution of this role...

Corporate litigation is a costly, time consuming proposition. There are several traps a company can fall into in the very early stages of litigation if it's not aware of its preservation duties and has an effective strategy and procedures to ensure that responsibilities are met. One of the major traps is not ensuring that responsive record deletion has stopped when litigation is anticipated or pending. The rise of email as a universal business platform for both communications and transactions has made email and other collaboration related documents a prime target for electronic discovery. Yet, due to the transitory nature of email and the distributed systems in which it resides, identifying the correct documents to hold and then ensuring the hold is carried out presents a major challenge for organizations of all sizes. This article will make the point that current best practices and litigation risk management for messaging environments dictate a detailed, hands-on approach to ensure end-users are aware of and follow litigation hold instructions. We will look in detail at two ways to ensure email deletion is stopped using the Microsoft Exchange email system to illustrate our point...

Every litigation practice may soon need its own e-discovery attorney.

I recently wrote a white paper for Renew Data called for Renew Data discussing the emerging role of "e-discovery lawyer" (see my prior blog post, Managing E-Discovery (EDD) . You can now read it here at primslegal.com: 4 Ways an eDiscovery Attorney Can Make Your Firm More Successful

The four reasons are

1. Build the Right Team to Handle a Complex Problem
2. Master the Intersection of Law and Technology
3. Develop EDD Best Practices to Minimize Risk and Make Life Easier
4. Advise Clients on E-Discovery and Litigation Readiness

Lawyer recruiting is in the news. Given the cost and the stakes, BigLaw should be doing more with technology to recruit.

Annual Survey Shows the New Reality of Associate Life (American Lawyer, 9/07) reports on the challenge large law firms face recruiting new talent:

"First, in the short run, the war for talent will become more ferocious. Second, the cost of talent will only increase. And third, the need for firms to differentiate themselves will become apparent even to the hidebound."

And how well does BigLaw do differentiating itself? Not so well. A related article, Is This Any Way to Recruit Associates? reports that

"Students also have problems vetting firms. They aren't helped much by firm marketing materials, which often say the same thing and make firms indistinguishable from each other. 'They all tell you they have great clients, and they work hard but [have] a very collegial atmosphere,' says the Stanford student. 'It's the same discourse over and over again.' Because so many firms look alike to students, they are now making several visits to firms after they get offers - simply to find a reason to pick one firm over another."

This article also reports that firms "spend as much as $250,000 to recruit a single summer associate." Given that huge cost, one might think that firms would take special pains to differentiate themselves or to manage the recruitment process. But there's scant evidence of that...

While Web 2.0 applications (software that runs in your web browser) may be the future of law office computing, the primarily shortcoming is the current inability of those programs to work and access your data when you don't have an Internet connection. Web 2.0 application providers appear aware of this shortcoming, and are beginning to offer solutions.

Google is probably the best-known purveyor of Web 2.0 applications with its Google Apps suite. Recently it released its Google Gears API that will eventually lead to the ability to copy your data to your local PC, work on it while off-line, then seamless sync your data back to its on-line repository. So far, this ability to work off-line is limited to the Google Reader RSS application. But once it expands to the full Google Apps suite, we could see law office users more willing to try Web 2.0 apps. This will also depend on the ability of Web 2.0 application providers to assure security and confidentiality of a firm's data.

Amendments to the Federal Rules of Civil Procedure became effective in December 2006 with expectations that they would constitute a sea change in electronic discovery practices in the US. Has that actually happened?

In The New Federal Rules on Electronic Discovery: The First 180 Days, John Tredennick, Craig Ball, Joe Kashi, Sharon Nelson, Browning Marean and I have a roundtable discussion about the real-world impact of these rule changes. It is informative and it will make you think. We deal with the changes we've seen (and haven't seen), native file production, state court developments, and then check our crystal balls for predictions.

There are many choices for the money quote in this excellent article, but let me give my money quote award to John Tredennick, who says:

As the volumes of native files continue to mount, there is little chance of going back to paper discovery. There aren't enough trees in the forest for one thing, let alone enough printers to spit out the paper. And, our clients would go broke trying to manage the process. No, electronic discovery is here to stay and paper discovery is on the way out. That means new techniques will have to be developed to handle the mountain of electronic content and lawyers will have to get comfortable with the fact that they will not be able to review every document.

The article is part of an excellent new issue of the ABA Law Practice Management Section's new webzine Law Technology Today, of which I am a member of editorial board. I invite you to check out the entire article because you will be rewarded with some useful, practical articles and great information.

Price umbrellas and inefficiencies create market opportunities. At least so it seems when it comes to reviewing discovery documents in litigation.

General counsels complain about law firm costs to review documents flowing from e-discovery (EDD). The market is listening. One year ago, I blogged about offshore options for document review. Recently I've come across some US companies that review discovery documents. The list here is likely not complete (identifying review companies by web searching is hard):

• Barrasso Consulting
• Black Letter Discovery
• De Novo Legal
• DiscoverReady
• Digital Mandate
• Huron Consulting Group (which acquired Nextra)

There are probably lines to be drawn in the market among consulting companies that focus on managing the discovery process, staffing agencies that also provide facilities (and I understand more and more are doing so), and companies focused primarily on document review...

The current (August 2007) issue of Laptop Magazine, perhaps the best mainstream technology publication for lawyers interested in mobile computing, has an article on the 50 best Web 2.0 sites. Of particular interest is the list of productivity sites ranging from office suites to email to calendaring. Not mentioned, but beginning to have an impact, are on-line payroll processing sites and even the beginning of time/billing/practice management sites.

What is Web 2.0? In simplest terms, it describes sites that allow you to run applications from within your web browser instead of on your computer. This has many advantages. You don't have the burden of installing and updating the application. That is handled by the web site owner. And if you are running any standard browser, your operating system is irrelevant. You could be on a Windows PC, Mac, Palm Treo, Windows Mobile smart phone, Linux computer, etc. And you are not tied to any particular computer. You can typically log into your account from any computer in the world that has Internet access...

What exactly is Web 2.0 and how can law firms profit from it? This was the central question that Canright Communications of Chicago and The LawMarketing Portal asked in a survey conducted in June with Evalueserve.

Web 2.0 will boost law firm revenues, support marketing efforts, improve communication with existing customers and help get new clients, according to the survey.

At the same time, the survey shows that lack of knowledge and expertise of Web 2.0 techniques provides the greatest challenge for organizations.

The term "Web 2.0" refers to a wide range of online services, networking techniques, and software systems applications to foster communication and participation. The techniques and technologies of Web 2.0 are transforming marketing, public relations, and publishing...

E-discovery (EDD) press coverage suggests problems galore. Have we lost sight of the real purpose of discovery in litigation?

E-discovery means more than producing relevant, non-privileged documents. It means winning by telling the best story possible. So much of recent EDD discussion revolves around doing it right and avoiding disaster. Reported judicial opinions self-select for problems because absent a problem, no opinion issues. There's no equivalent judicial mechanism to learn about winning discovery strategies. Nor is there any other apparent mechanism: clients and vendors seldom share details of their victories.

I would like more press and conference coverage on how to use the available tools to achieve outstanding results. Stories along the lines of "I used the text of the ideal incriminating e-mail as my search and that led me to a treasure trove of documents that helped win my case. Or "Mapping documents, e-mail, and calendar entries on a date line proved a perfectly innocent explanation for events that plaintiffs alleged constituted intent to defraud." EDD defeats are well-documented; it's time to start telling victory stories.

No matter how large or small an organization, managing data storage is generally a challenge for the Information Technology (IT) department, and it's becoming more challenging every year. IT has always had the charter to manage the storage and protection of data, but in recent years new responsibilities have emerged to include data security, long-term archival strategy and the basics of regulatory compliance requirements. If that weren't enough, IT is also being called upon to manage detailed data discovery and compliance requests, which shift into high gear when legal discovery becomes a necessity. Compliance and legal discovery in civil cases are complex issues for IT because they usually involve large amounts of data and require IT to interface with not only multiple internal departments but also external personnel such as opposing IT departments, general counsels or sometimes even representatives of the court. The intent of this article is to advise and guide IT professionals on how to select tools that will help them meet the new legal discovery and compliance requirements.

Compliance in these cases became much more complex due to changes in last year's Federal Rules for Civil Procedures. Addressing these new rules requires IT to discover the actual content and overall themes of the millions of files and emails within an enterprise's data storage complex. The rules require all files and emails with content pertaining to the suit to be submitted during the discovery phase...

Technology innovation is alive and well in large law firms.

Later this week, The College of Law Practice Management will announce the winner(s) of its InnovAction award. Leading up to this, the College has been blogging each application entry. [I am a Trustee of the College but not involved in the InnovAction judging.]

Several entries posted so far are based on technology:

• Foley & Lardner's Private Equity Matchmaker "brings together Foley clients from around the world who are seeking capital with those who are actively pursuing private equity investment opportunities."
• Holland & Hart's internet-based compliance management system helps its "clients increase the return on training investment, improve employee knowledge and understanding of policies and regulations applicable to their businesses, and automate retention of training records."
• Reed Smith's IP Management Mapping Program "provides a web-enabled "snapshot" of an IP portfolio in real time in presentation-ready format...

Thanks to Silverbrook Research's Memjet, HP's Edgeline, and Kodak's EasyShare we might someday look back at 2007 as the year the inkjet printer began to leapfrog the laser printer in terms of speed and cost per page.

A few weeks ago, Databazaar Blog published five interviews about the printer industry's past, present, and future with five printer pundits. They all agreed on the importance of 2007, but offered different forecasts of the future. However, they did agree on one issue - inkjet versus laser.

For example, Vince Ferraro of HP felt that both inkjet and laser printers would continue to play important but different roles in offices. Inkjet supplies analyst Andy Lippman of Lyra Research noted that even today "25% to 35% of all desktop inkjet devices are installed in a business environment." He expects this percentage to grow, but not necessarily at the expense of laser printers...

I've been off the grid the past week at the annual firm