Strategic Legal Technology

The Wall Street Journal reports today on the growing use of technology in trials. This raises an interesting point, an extension of my prior post about lawyer resistance to change.  

“Courtroom-Technology Firms Give Evidence State-of-the-Art Look” (WSJ, 5/26/04) reports that growing use of technology in court has “spawned an industry of tech firms revolutionizing the traditional courtroom with plasma screens, flat-panel monitors, and other sophisticated display devices.” Spurred by the Internet boom, more and more courts are wired to support computer use and display. The article reviews some of the pros and cons of computers in court.

I have always been a big believer in the visual display of information. I even wrote an article called “Practicing Law with Pictures” (published in an early edition of Law Technology News), but that was so long ago, I no longer have a digital version. It examined how even “still displays” could achieve great effect, both in and out of the court. Examples, all from actual cases at Wilmer Cutler, included a transaction flow-chart that finally allowed everyone to understand all the steps in a complicated sequence; a diagram of regulatory jurisdiction over banks that was widely credited with winning an argument on appeal; and a series of about 10 “stop sequence” schematic views of the final thirty seconds prior to a crash that was essential to letting a jury understood exactly what went wrong. The fact that I remember all these 10+ years later without anything to look at is a testament to the power of visuals over words.

PowerPoint may be overused and many displays may be (in the words of Edward Tufte) “chart junk,” but that does not diminish the value of visuals in or out of court. A dozen years ago Wilmer lawyers regularly used poster boards in court. Fancier display systems have been available for almost a decade. Why has it taken the profession so long to adopt?

I suspect that the main reason is another dimension of resistance to change (see my prior post, A New Approach to Control Outside Counsel Costs). Just as managing a case requires a different way of thinking than does arguing a case, visualizing it requires a different way of thinking than does writing about it. Lawyers who are not comfortable with visualizing should at least recognize this and be sure (whether for a trial or transaction) to have access to someone skilled in visual presentations. Technology here is merely a means to an end - the content is what counts.

Hildebrandt consultant Rees Morrison wrote a very good article, Cost Control Patrol (Legal Times, May 17, 2004), in which he outlines five existing approaches for inhouse counsel to manage outside counsel and proposes a new, sixth way. It’s an interesting idea and raises indirectly, I think, some provocative questions about lawyers and technology.  

Morrison describes five approaches to controlling outside counsel costs that have been tried over time:
1. “We’re legal professionals, leave us alone.” Until 1980 or so, business people did not even concern themselves with legal expenses.
2. “You can only manage what you measure.” Law departments utilize metrics such as task-based billing or legal expense as a percent of revenue. “Six Sigma is the latest manifestation of the metrics model.”
3. “Technique of the day.” Techniques tried include convergence, budgeting, and now, e-billing.
4. “Let your administrator do it.” Have a staff person manage outside counsel using the above three approaches.
5. “Procurement to the rescue!” Let the procurement professionals fix the problem (even if they do not understand what lawyers do).

Morrison then describes what he views as a sixth, new model, that he describes as “[e]nlist the lawyers.” He argues that the cost of outside counsel is determined by “myriad, day-to-day” interactions and that inhouse lawyers must therefore be actively involved in managing outside counsel. This means annual reviews must incorporate measures of controlling outside counsel cost control. This model “will incorporate the best of the previous five.”

I agree with Morrison that the best way to control outside counsel is for the inhouse lawyers actively to manage them. The question is, can they? Over the last 15 years I have seen many lawyers resist learning new technology, complaining that it is too complicated. At one time, this complaint was valid. I no longer buy it though. I am increasingly of the view that lawyers’ resistance to learning or using technology reflects a deeper seated resistance to changing how they work.

For example, why don’t more lawyers - inside or outside - prepare case budgets? Some lawyers would answer that it’s not their job to learn a spreadsheet. First, I disagree - that’s like saying a doctor does not need to learn how to use a particular instrument or test. And second, a lawyer can delegate the mechanics if necessary. The resistance is to the underlying idea of budgeting and managing but can manifest itself as resistance to technology. A similar argument applies to litigators who fail to decide consciously and in a timely manner on a document management strategy. They say that it’s not their job to understand databases and digital data. I believe the real resistance is to planning, managing, and making decisions.

Morrison actually tips his hand a bit in this direction when he writes, in his section about techniques, that “for a general counsel, techniques seem always to be activities that someone else should do, that pass the unpleasant work elsewhere.” I believe this attitude must be overcome; lawyers need to stop passing the unpleasant buck. They have to learn better ways of working and managing. Sometimes this may mean learning new software, but many times it means new ways of thinking. It’s likely that the technology is the easy part!

For related ideas about managing outside counsel, see my posting Five Big Ideas Reviewed - Need for a Process Approach

ADDED 5/27/04: Morrisons’ article is now available at Corporate Counsel magazine

Marsh & McLennan announced on May 18th that it would acquire Kroll, provider of electronic evidence services via KrollOntrack. It will be interesting to see what impact, if any, this has on the litigation support and electronic evidence market. 

Identical press releases (Marsh and Kroll) provide detail, as do articles in today’s issues of the New York Times and Wall Street Journal. According the press release, “[t]he transaction will broaden significantly the range of MMC’s risk and insurance services businesses and enhance its leadership position in risk management services. ”

Last summer, Lexis acquired Applied Discovery (see my prior blog post for details). That acquisition was presumably motivated by Lexis’ interest in expanding the services it offers in the legal market. In contrast, I would guess that the discovery and electronic evidence services that Kroll offers were, at best, a minor factor in Marsh’s acquisition.

Kroll, with 2003 revenue just shy of $500 million, was already a fairly large company for a legal vendor. It’s not obvious the added heft of Marsh adds value in its own right. So it will be interesting to see how KrollOntrak fares under new ownership. One concern - and I am no expert here - is conflicts. It’s possible that Marsh’s far-flung business dealings will create more conflicts for KrollOntrak than it would otherwise have had.

Since I first studied the litigation support market in 1989, it has been highly fragmented. A 2003 survey (PDF) of the electronic evidence discovery market by George Socha confirms that this is still true. In the 1990s, before the age of digital discovery, my recollection is that Uniscribe and Merrill attempted “roll ups” of litigation support vendors. My impression is that these roll ups were not smashing successes.

With two large corporations standing behind electronic evidence vendors now, it will be interesting to see if the supply side of the market changes or consolidates.

“Despite the popularity of enterprise portals, portal projects aren’t delivering the expected benefits.” So reports the column Analyst Watch: Portals Underperform in Information Week (5/3/04). More on this, and a Webinar that explores portals follows… 

The column cites a Forrester Research survey (fee-based) on portals. Among the problems identified are weak alignment with business goals and too many choices. Overall, the column tends to confirm my impression that portals are over-hyped. Law firms considering portals or that already own one should be sure they know what problem they are trying to solve.

To help identify problems and solutions, you may want to attend a Webinar that my client ii3, Inc. is hosting on June 2nd. This Webinar, which I helped plan, will focus on how portals help law firms solve practical problems, covering topics such as

The Webinar will be a moderated session with three panelists:
1. Margaret Grottenthaler | Partner, Stikeman Elliott (Toronto, ON)
2. Mark Zoeckler | Managing Director, Global Knowledge Management, Pricewaterhouse Coopers (Los Angeles, CA)
3. Jamie Booth | Director of Information Technology, Hunton & Williams (Richmond, VA)

To register (no charge), click here and complete the registration on the ii3 web form.

Thomson Elite has acquired Expert Ease, the developer of Deal Proof and other software. This adds to Thomson’s already strong offerings in knowledge management.  

The press release on PR Newswire provides additional detail. I could not find any information on this story on either the Thomson Elite or the Expert Ease sites.

I have never been a hands-on user of Deal Proof, but I have evaluated it and the related Quicksift product. Both are very interesting and promising technologies. I believe the press release that this will help Thomson and West extend Westkm to provide greater functionality in transactional documents. It will be interesting to see how the merger is managed and what combined products are offered.

With the explosion of digital data in litigation, lawyers may need to re-consider the application of full-text technology to manage discovery. New technology and new thinking may converge to help tame discovery.  

In previous blog postings, I have mentioned Attenex, H5 Technologies, and Cataphora as potentially interesting approaches to help identify and manage documents in discovery. More recently, I have come across InfoTame and Northrop Grumman software offered by Driven, Inc.. I believe these and other advanced full text approaches are promising, but only time will tell if they are superior to ordinary Boolean searching (for more on this, see my post Thoughts on Full Text Retrieval). [Ordinary Boolean search uses logical connectors such as AND, OR, and NOT and proximity operators such as “in the same sentence” or “within so many words.” These advanced tools usually have these features but layer on top of them various sophisticated techniques to extract more meaning automatically.]

Some serious commentators have suggested that the problem of huge volumes of data in electronic discovery could be addressed if opposing parties were to agree to use full-text searches to narrow the universe of document. I first saw this approach advocated by Adam Bendell of Strategic Discovery, Inc. in his article “Discovering a New Approach” in the The Future of Litigation, a Fall 2003 supplement to the American Lawyer magazine. More recently, Robert Brownstone of Fenwick & West writes in Collaborative Navigation of the Stormy e-Discovery Seas (10 RICH. J.L. & TECH. 53 (2004)) that “[t]o be efficient and effective, [the electronic discovery] process must mandate and enforce cooperation among the litigants as to search terms and other selection criteria needed to narrow down huge data sets into manageable subsets.”

As I understand Bendell and Brownstone, it would suffice just to use simple Boolean search software to narrow the field. That sounds right to me. But forward-thinking litigators and law firms need to consider whether more advanced search technology can provide tactical advantages and lower costs.

A recent article by KM guru Tom Davenport focuses on the importance of personal productivity, a theme I’ve recently started to develop in this blog. There have also been a lot of reviews of a product called X1 for personal full-text searching - an example of a personal time saver.  

In Decoding Information-Worker Productivity (Optimize Magazine, April 2004), Davenport writes that

“Management of personal information and knowledge at work is at the core of personal productivity, but has only recently become the focus of many businesses. Our hypothesis is that companies—and CIOs in particular—will increasingly have to address how employees manage their personal information at work. When they do, we expect that they’ll achieve substantial benefits in productivity and effectiveness.”

I agree and that is the conclusion I reached in adding a Personal Productivity category to my blog recently. One of my favorite personal productivity tools is a search engine called 80-20 Retriever. It indexes Outlook and whatever directories on my hard drive that I select. While this product appears not be available for individuals any longer, a personal full-text search product called X1 has recently received quite a bit of good press (see, for example, Business Week, April 26th, “Search-Boosters for Your PC,” by Stephen Wildstrom). With these and other similar products, you can instantly search your mail and file directories using full-text techniques.

My challenge now is to figure out if I should give up on foldering e-mail messages. I am in the category of users that create extensive and fairly deeply nested folders for both my files on the drive and my e-mail messages in Outlook. Arguably, with 80-20 or its equivalent, I don’t need to spend the time filing messages, I could just rely on full-text searches. I find, however, that I frequently want to review related messages in chronological order and so still find folders valuable. But I have a nagging suspicion that this may just be an addiction and that I could save time by skipping foldering.

On balance, I think I will continue foldering. My experience over the years with work product retrieval, litigation support, and other information management strongly suggests that it’s best to combine full-text with browsing topics (that is folders) and/or links. Bottom line: whether you have the folder discipline or not, full-text search is a real time saver.

Applying technology to improve law practice is a continuing challenge, as those of us who have been doing it for years can attest. What, one might ask, are the law schools doing to help? 

A New York Law Journal Article, Law Schools Steal a Page From Business Schools (May 5, 2004), discusses whether law schools should offer more business training than they currently do or consider work experience in admitting students. I have always been of the view that law school should provide more practical skills training, so was happy to see that there appears to be serious discussion of the curriculum in the academy.

In particular, it seems to me that law schools, aside from any business skills they could teach, should also teach law students about practice and information management, including the use of technology. Medical students are trained to use a range of equipment that they need to be effective doctors. Why is the same not true in law? The answer surely cannot be that neither equipment nor tools are needed.

I am not suggesting turning high-end law schools into trade schools. But it is a fact that lawyers in all types and sizes of practice need to manage a lot of information. One or two classes on matter management, databases, spreadsheets, document management in large cases, risk analysis, and so forth would surely not destroy all that is sacred. And, as an economist, I would argue that the marginal value of one or two practical classes greatly exceeds the marginal value of yet one more substantive law class in a topic the student will never once encounter in practice.

Speaking of marginal value, the value of my entire third year of law school was very low. I think there’s a strong case that law training could be very effective with just two years. I’ll stake a strong - but I think entirely reasonable and defensible - position and say that requiring the third year benefits mainly law schools, by supplying an extra year of tuition, and the profession, by creating an artificial barrier to entry to the profession. Now that my cards are on the table… it seems to me that at least the academy should provide some practical business and technology skills if they insist on keeping the degree a 3-year affair.

Many law firms continue to struggle with their “portal strategy.” Is the goal unifying applications? Is it knowledge management? Is it matter-centric views? A recent article in LegalIT is helpful in considering these questions. 

Knowledge Management Portals: It’s just a phase asks what is the purpose of a portal in a law firm. This is a good question because, as the article notes, “the sheer breadth on the subject matter illustrates the peril inherent in talking ‘portal’ before you know exactly what you are trying to achieve.” Once a firm defines its goal, it has three broad portal choices: (1) build one on top of the document management system, (2) buy a dedicated product such as Plumtree or LawPort, or (3) build from components such as Microsoft Sharepoint. The article goes on to describe how UK firm Dentons is building its portal using Hummingbird and how Freshfields is building one using Microsoft components and Interwoven’s Worksite. One of the concerns at Freshfields is allowing lawyers to do as much as possible in Outlook - a concern I hear increasingly voiced among large law firms.

Thinking about portals reminds me of a great line about computer standards (attributed to Esther Dyson when I first heard it): “The great thing about standards is that there are so many to choose from.” Similarly, with portals, the great thing is that there are so many platforms, features, functions, and design choices. Of course, that means a firm should think carefully about what it wants before embarking down the portal path.

For more on portals and KM, see my prior post on this topic at Portals and KM - Part II.