Strategic Legal Technology

Over at the EDD Update blog, there is a very good discussion of defensible EDD / ESI search. It’s worth reading and prompts me to ask what we mean by reasonable. 

Eric Mandel of Zelle Hofmann posted Searching for the Definitive “Search” Tool on July 23, 2009. As of now, there are comments by Herbert Roitblat, Craig Ball, Tom O’Connor, Eric (in rebutal), and Chris Spizzirri. This is one of the more interesting dialogues I’ve read on e-discovery in sometime. (The discussion gets a bit heated in places but I ignored the polemics.)

Eric suggests the current discovery system is broken, that humans are not reliable reviewers, that machines may not be reliable, that the introduction of statistics may confound matters, and concludes that “So the question remains, how do we find a definitive search tool that is affordable, manageable and defensible in 94 district courts, never mind who knows how many state courts? ”

The comments all discuss what makes e-discovery defensible and are worth reading. My take away of the comments is that a “reasonableness” standard will prevail, though one is left with the question of just what is reasonable.

I do find it hard to anticipate what courts will consider reasonable or defensible. For example, lawyers assume that lawyers must review documents. Why? I know of instances where paralegals have reviewed documents. And I’ve not found any lawyer or lit supp professional who can point to legal authority requiring that lawyers be the ones to review documents. It’s possible that some community college grads with a few days of doc review training could do as good if not better job than some contract lawyers. Of course, I don’t know any lawyers who would risk using non-lawyers in a doc review, even if they had test results showing no statistical difference in review designations between lawyers and non-lawyers.

My more general point is that I have a hard time believing in a standard of reasonableness in a system with unstated and untested assumptions. Is it fair to say that reasonableness in doc review is judged primarily (solely?) by prior practice rather than by any objective standard? And, if so, is that a good way of approaching the definition of reasonable?

Since not everyone is a Twitter fan, I reproduce here a selection of my recent Tweets.  

Lost more time, again, to fixing problems with Sprint Blackberry desktop sync to my BB 8830. It’s never ending. I’m not ready for iPhone.

Large UK law firm Shoosmiths to adopt SAP for financial system reports Orange Rag, Legal Tech Insider by @ChristianUncut.

‘KM on a Typical Day’ great NLJ story about making KM pay. http://bit.ly/LxdsF. Also illustrates power of story telling.

RT @wilsonig Lawyers and judges waiting for each other – Catch-22 for EDD standards? http://bit.ly/oxNZT || Don’t expect EDD rule clarity!

‘Aussie firms embrace LPO’ but quietly report Lawyers Weekly, http://bit.ly/10gFNy. With all the global PR, what’s the big secret?

Global 100 UK Firm Goes Public on Legal Outsourcing http://bit.ly/3xJNpj by @RossMark || LawScribe’s Mark Ross interviews Pinsents lawyer

Is There a Virtual Worker Personality? Biz Week http://bit.ly/17oHvx. Consider personality for working virtually. Extroverts work best.

RT @PetePepiton @EDDUpdate: Gibson Dunn & Crutcher e-Discovery Statistics Reveal New Trends http://bit.ly/Sa5wt || Dan Regard blog post

RT @wilsonig Lawyers and judges waiting for each other – Catch-22 for EDD standards? http://bit.ly/oxNZT || Don’t expect EDD rule clarity!

‘Mumbai law: 1,000 City staff ‘will lose jobs’ as legal work goes to India’ London Evening Standard. http://bit.ly/3Su8Nt

‘India Beckons to US Lawyers’ in NLJ. http://bit.ly/QxeER. Some LPO in India are hiring US lawyers.

Article on role of technology in legal outsourcing (LPO) in Texas Bar Journal, July 2009 http://bit.ly/1iTOVN. Good read (and I’m quoted)

www.whichdraft.comnew free web-based doc assembly. Also open source law. Biz model unclear. IACCM article about it http://bit.ly/Wqtgk.

Theories on Why the Most Profitable Law Firms Don’t Blog. http://bit.ly/3dMj5q. re Drug and Device Law recent posts http://bit.ly/dxPU2

‘Law Firm Cost Recovery Is Here to Stay’ law.com http://bit.ly/QqSWB. Nero fiddled while Rome burned? Can the old model keep working?

Big US and UK companies have cut spending on BigLaw. Has anyone stepped back to ask how much should they should spend? The current US debate on health helps illuminate the answer. 

The US spends far more on health care than other developed countries yet achieves similar outcomes. Perhaps the same is true for corporate consumption of legal services. (Comments here are not about consumer legal spending.)

Experts debate what woes US health care. I think over-spending is fueled by unnecessary diagnostic tests and rampant over-treatment. (For example, re the former, see In Push for Cancer Screening, Limited Benefits, New York Times, 17 July 2009, and re the latter, recent studies show that back pain usually resolves without treatment yet many have surgery anyway).

Last week in Reducing Legal Costs Beyond Tinkering with Price I suggested that business should reduce the demand for legal service and that lawyers should fulfill that demand more efficiently. Thinking about that post plus reading a week of articles about pending US health care legislation got me thinking more about aggregate corporate legal spending.

In health care, numerous experts study spending and results, both at an aggregate level, comparing countries and regions, and at a micro level, comparing hospitals or treatments. In contrast, what informs client decision-making about legal spending other than their own experience or industry benchmarks?

I wouldn’t rely on industry benchmarks because law is driven by precedent and lawyers by the question of “who else is doing this.” Whole industries may well be getting legal spend wrong. Unlike in health care, no third parties study legal spend nor search for the cause of what may well be serious over-spending.

Like the US health care market, the US and UK legal market may be spending far too much for average results. It may be that a lot of the diagnosis and treatment that corporate law departments order do no good or even cause harm. If so, then the drastic reduction in legal spend prompted by the crisis is just an opening act.

I’d love to figure out a way to analyze this - any ideas? And who is institutionally positioned to do the analysis?

We may or may not be in the midst of a legal market revolution. Many an article suggests that general counsels are slashing costs. At best, however, the data are still anecdotal. GCs are, at most, tinkering with pricing rather than removing costs. 

By “tinkering with pricing” I mean they are bargaining for lower rates, seeking (putatively) alternative fee arrangements, and moving work to firms with lower billing rates. That’s good as far as it goes. Better yet is “removing costs", by which I mean lowering the demand for legal services and, for those services still required, reducing the hours required to perform them.

Demand reduction is a combined business and legal decision. Clients need to do a better job assessing risk and deciding what warrants legal attention. Suppose every CEO and CFO assumed that, pick a number, say 20% of legal work was unnecessary. They should ask the GC to prioritize work and list that 20% least risky to cut and what the impact would be. Then make a business decision if the risk of cutting is a good one.

Hours reduction is a legal function. I’ve frequently suggested that law departments must actually manage inside and outside counsel, looking at how lawyers perform their work and actively seeking more efficient and effective ways to practice. They need to ask questions such as, “which tasks are really necessary” and “what is the most appropriate person to perform this task: inside counsel, outside counsel, temp lawyer, paralegal, other professional, or offshore lawyer.”

They also need to apply specific techniques that can control hours. For example, in A radical proposal – divert bill-review time to firm-direction time (3 May 2009), law department management consultant Rees Morrison points out that reviewing bills after a matter is over is much less effective than actively managing the matter while it’s happening. Another example: Ken Adams, an expert on writing contracts, argues persuasively that lawyers can reduce risk and cost by simplifying contract language (see his blog post 14 July 2009 blog post that points to an article about the commodification of contract language).

Fixed fees certainly motivate hour reduction but I’d love to hear from readers on other good ways to reduce hours for that legal work truly necessary.

A new article nicely explains how law firms should think about the use of technology when outsourcing. 

Technology and Outsourcing (Texas Bar Journal, July 2009, PDF) is by Michael Bell, founder and managing principal in Fronterion, L.L.C., a legal outsourcing advisory firm. It’s a good discussion of why “[t]echnology plays a central role in an outsourcing engagement” and how a law firm can “leverage technology advantages through outsourcing.”

[I’m not entirely unbiased in commenting on this article since I’m quoted in it.]

Today I re-visit my favorite personal productivity technology tools. I’ll do another post about “technology productivity blackholes", tech issues that suck time out of my day.  

Screen Real Estate and Multiple Instances of Application Windows. For me, ample screen space is the most important productivity tool. I’ve previously blogged about the benefits of dual monitors. I suspect you can achieve the same two benefits with a sufficiently large monitor:

• “Random access” to any open application with the click of a mouse.
• Ability to drag items between two open applications

The second point is key. I regularly work with two open windows of MS OneNote and three of MS Outlook. Especially in Outlook, I find that I save much time being able to drag messages from my sent or inbox folder into a folder list in another open window.

Telecommunications. Telecom has changed dramatically in a decade.

• My business phone is a VOIP line; I receive voice mail messages as WAV files attached to an e-mail. It is hugely convenient to listen to v-mail on my PC rather than having to dial in by phone. I can delete the v-mail with the click of a link in the e-mail message. This works from my PC or my BlackBerry smartphone.
• I auto-dial from my contact list via the PC’s built-in modem. Old but effective technology.
• What good is talking on the phone if you have to hold a handset? I use a high quality wireless handset that keeps my hands-free to type. It also lets me roam anywhere in my house and even outside.
• When I’m overseas, I use Skype to make phone calls. If I were truly high tech, I might rely entirely on Skype for all calls.
• High speed mobile broadband keeps me productive during the hours I spend on Amtrak and at airports. I use my BlackBerry in “phone as modem” mode; it’s slower than than a dedicated wireless card but cheaper and one less device to carry (and lose).

Favorite Free or Low Cost Utilities.

• Google Picassa for pictures (hard drive and web)
• SugarSync for backing up files except PSTs
• SmartSync to synchronize files between any two disk locations
• Norton Internet Security 2009 - as MSM reviews point out, this edition of NIS does not monopolize the processor and kill PC performance. I list here because it is a huge improvement over prior versions that were productivity blackholes.

A blog post over at the Drug and Device Law blog sparks me to return to the issue of BigLaw blogging. Two lawyers, one from Jones Day and one from Dechert, write this blog jointly. 

By now, blogs are so popular that many observers blame them, in part, for the demise of mainstream print media. So blogging hardly seems controversial or quirky anymore.

In The State Of The Big Firm Blogosphere, Jones Day lawyer Mark Herrmann observed “Of the ten firms with the highest profits per partner (we know, we know! everyone criticizes that metric, but the public is still fascinated by it) in the United States, only one has any connection to a blog.”

In a follow-up post, More On Big Firm Blogging, Dechert lawyer Jim Beck picks up on this observation, offering a synthesis of the many comments they received with theories of why lawyers at the most profitable firms don’t blog. This is a must read for anyone interested in BigLaw blogging.

I put my cards on the table in a 2008 presentation, Blogging: Why the Fuss, arguing that blogs are among the most-cost effective approaches to marketing for lawyers.

It’s hard to square the theories Beck reports hearing with the current legal market depression. Absent a return to growing demand for high-end legal services and BigLaw pricing power - both of which seem unlikely anytime soon - BigLaw will have to grab for market share. If so, let’s see how these theories hold up.

Update (8 July 2009): The AmLaw Daily blog, in No Time for Blogging When There’s Work to be Done?, picks up on the Mark Hermann blog post. AmLaw contacted several of the top 10 firms that don’t blog to ask them why. AmLaw also raise a point I make in my “Why the Fuss” presentation: if a firm is going to publish memos or e-mail alerts, why not also blog.

Update (8 July 2009): See also Bob Ambrogi’s Why the Biggest Firms Don’t Blog at Legal Blog Watch.

Since not everyone is a Twitter fan, I reproduce here a selection of my recent Tweets. 

RT @jordan_law21 New at Law21: measuring lawyer productivity: http://tr.im/qjpD || also consider actual outcome v. expected / hoped for

RT @glambert ‘Alternative Fees - “How To” Tech’ - http://bit.ly/NFYQK - there’s Redwood, then … not much else? || good blog by @gnawledge

Altman Weil survey: signs of real change in legal market. Press release re new GC survey with link to summary PDF. http://bit.ly/nOCd4

Maybe GC don’t exercise market power b/c their law firms are job landing pads. Rees Morrison suggests a policy to fix at http://bit.ly/HjZLf

‘Pinsents – first firm to offshore work of qualified UK lawyers’ The Lawyer. http://bit.ly/5IXPE

RT @jordan_law21 New blog: the UK crucible: http://tr.im/p4lG || Great update on UK legal reform; links to recent reports

RT @PosseList Womble and Alt Fee Arrangements – Focus Report for ACC http://is.gd/16EYn || Wow - first time I see Monte Carlo sim in legal

More Sprint Nextel - RIM Blackberry 8830 issues: I’m techie and cannot get sync to work. What do non-tech users do?

@VMaryAbraham great KM blog re mixologists v bartenders. Applies to IT too? http://bit.ly/FTXrH

@RossMark RT Managing Partners on Outsourcing, Cost Control, Indian Liberalization, and Law Firms of the Future: http://tinyurl.com/ndtzjc

Alt fees = avoidance. To lower lawyering cost: accept some risk; decision tress, budgets, processes, metrics, best practices. What else?

Am I the only one who finds that the ABA website is chronically among the slowest sites to load?

Can we tell if BigLaw revenue decline is bigger than total drop in legal demand? That would be best sign of structural buying change by GC.

Jones Day tells staff to work harder http://bit.ly/TY3T0. imo: tell lawyers to get over their caste system mentality and learn team work

Anyone have experience w http://www.paperchace.com/ for litigation risk analysis w decision trees? Esp. curious to hear from TreeAge users