Strategic Legal Technology

Since not everyone reads Twitter, I reproduce here a selection of my recent Tweets. I am now organizing Tweets by broad topics 

Mainstream Media Reports on the Legal Market

NYTimes: What They Don’t Teach Law Students: Lawyering http://nyti.ms/uhQK6Q || Is there any hope for US law schools? 20 Nov

NY Times - more lawyers skip partner track to start own practices http://nyti.ms/sXf2Tz || anecdotal but indicates MSM still taking note  24 Nov

WSJ: At GE, Robo-Lawyers: Oil + Gas Unit Tests Online Resolution to Control Costs http://on.wsj.com/uXBGm5 | blip or trend? (w @Cybersettle)  28 Nov

The Price to Play Its Way http://nyti.ms/sBm2lo || NY Times Biz sec cover story rips into ABA law school accreditation (HT @richards1000)  17 Dec

BigLaw Management

The Lawyer: Lawyers and business plans <sigh> http://bit.ly/tp0xeR || time for BigLaw to get serious about strategy  25 Nov

@AmLawDaily ABA Panel Says No to Outside Law Firm Ownership bit.ly/tHTGR8 || Empirical evidence supporting this “client protection"?   5 Dec

RT @gnawledge (3 Geeks) The End of Traditional Billing http://bit.ly/sCpmPz || law firms have lost pricing control  6 Dec

Hildebrandt Blog: Rising expenses and uncertain economy cause firms to re-evaluate staffing http://bit.ly/uXo2wP || Agreed  9 Dec

Legal Process Outsourcing

The Lawyer (UK) analyzes costs of legal + biz support globally. http://bit.ly/tdUQoX || will more firms nearshore, farshore, or use LPO? 21 Nov

RT @redbridgestrat Beyond India – Optimizing the Locations of Offshore Operations http://bit.ly/uJrMbl || Good LPO analysis  23 Nov

@ALB_magazine: Aussie GCs say legal process outsourcing (LPO) here to stay, better than paralegals bit.ly/uJKiwt  28 Nov

Legal Week: Eversheds mulls low-cost service after joint LPO bid falls thru http://bit.ly/tu8BS7 | can firms survive w/o lower cost options?  7 Dec

Fronterion legal processing outsourcing predictions: Ten for 2012 http://bit.ly/veiwyB || LPO has transformed market but faces challenges  12 Dec

@DannyErtel on legal process outsourcing: Selection criteria that are fit for purpose bit.ly/sLWfh7 || gd advice 4 GC looking at LPO  12 Dec

e-Discovery

Pippins v KPMG #eDiscovery: @chrisdaleoxford (http://bit.ly/rDDnmi) on Craig Ball’s http://bit.ly/s9y2xM || holds + proportionality   25 Nov

LeClair Ryan’s @denniskiker: Who Will Save #eDiscovery? Say “Hello” to Big Data! http://bit.ly/rLjiZk || Will we need quant jocks?  2 Dec

a rel="nofollow” href="https://twitter.com/#%21/RalphLosey">@RalphLosey on human doc review limits bit.ly/vc2eR0; I too flagged #eDiscovery Gold Standard bit.ly/tYje7z | more evid today  12 Dec

@DannyErtel post: HP - %5 legal process outsourcing doc review in 2006 to 80% in 2011 bit.ly/w3oWAs || #eDiscovery #LawFactory  20 Dec

Legal Tech

Two New State Bar Ethics Opinions Suggest Cloud Computing OK http://bit.ly/s3jzqe (via @catalystsecure @bobambrogi) || BigLaw CIO take note

The cloud’s dark lining. Connected MS OneNote to SkyDrive to sync to iPad. With OneNote saving to cloud, as fast typist, I see lag. #in  14 Dec

Dear BigLaw Managing Partner:

You recognize that the Old Normal is gone. Inertia may carry you a bit but change looms. If you are not retiring soon or if you want to help your younger partners, you need to take four actions to thrive in the New Normal. They’re hard and will take time, so start now. 

1. IMPROVE VALUE BY PRACTICING LAW MORE EFFECTIVELY AND EFFICIENTLY

To meet the growing client demand for better value, you must improve how your lawyers practice.

Yes, partners don’t like others poking around what they do. But you can’t credibly say to clients you are one firm when every partner works differently. Figure out best practices, develop check lists, and standardize. Tell your partners this frees them to be creative where it really counts.

That will take time. So meanwhile, get cracking on legal project management. Whether your process is good or not, someone other than the billing partner needs to manage it. Grow or hire real project managers.

If you don’t have good KM and IT to support better process and project management, get it.

2. DIAGNOSE AND IMPROVE YOUR BUSINESS OPERATIONS

Have you taken a good look at your staff functions? Lay-offs reduced cost but did not fix underlying inefficiencies.

Find the fluff in your finance, marketing, IT, HR, library, secretarial, recruiting, and facilities. Figure out what you can centralize and streamline. You almost certainly have too many staff in your most expensive office space. If you don’t have the scale or stomach to open a low cost service center in a place like Wheeling, Dayton, Manila, or Nashville then consider outsourcing. Or consolidating operations in one of your own lower cost office locations.

3. ENGAGE YOUR CLIENTS

Delivering a brief, advice, or deal document is easy and billable. But to truly engage clients your lawyers need to know their business. Partners must read the news and attend the events important to clients and spend non-billable time talking to them about their business and legal problems ("what keeps you up at night?").

Separately, you personally need to know what big clients think of your firm. Find out what your clients think; have regular conversations and act on what you learn.

4. ADOPT METRICS AND FORMAL GOVERNANCE MECHANISMS

You won’t succeed with the above unless you measure what you do. Decide what’s important prospectively, then measure to see if you hit targets. Rinse and repeat. You’ll also need a governance structure: who does what when you don’t hit the targets.

***

Your work is cut out for you. But you have one other task to do support all this: quit saying “non-lawyers”. Dividing the world in two serves no good purpose. Teams works best when you eliminate castes. And in the New Normal, it takes a team.

Happy New Year.

I have been doing e-discovery, nee litigation support, since 1989. In the last few years, I have seen the legal market diverge into two new worlds of electronic data and discovery (EDD). How does each look and what does it mean for its inhabitants? 

[Note: This article was first published in slightly different form in InsideLegal Thought Leaders Digest, College of Law Practice Management Issue, October 2011.]

The Old World of Ignorance and Denial World

In the old world, still with us sadly, lawyers and law firms seem unfamiliar with e-discovery. I wish I could say “uncomfortable” but discomfort suggests a degree of familiarity that is absent.

I often hear stories about lawyers who are shockingly unaware both of the legal rules and practical issues of EDD. At conferences, the handful of judges known for their grasp of and decisions on EDD say many litigants (and judges) are clueless about EDD. For example, in October, I attended the Masters Conference, an EDD event. In the session More on E-Discovery Certification, the panelists bemoaned how many lawyers and other legal professionals lack even basic EDD know-how.

I offer two hypotheses to explain the old world. One is ignorance. It’s hard imagining, however, a lawyer missing the hundreds if not thousands of articles, conferences, and advertisements about EDD over the last half-dozen years. Even general legal publications and mainstream media cover it. If, in fact, more than a few lawyers have missed all this, perhaps we as a profession have an even bigger problem to fix.

Another possibility is denial. Some lawyers seem to think digital data is unimportant or that the rules of civil procedure regarding EDD somehow do not apply to them. The willing suspension of disbelief is fine when enjoying a movie, but not for professional pursuits.

Old World inhabitants take a big risk, namely judicial sanctions and malpractice. And let’s not forget ethics: Model Rule 1.1 requires competent representation. Failure to at least consider the role of EDD in a contentious matter arguably violates the rule.

Education is the cure. It is readily and widely available. Now, persuading this world’s inhabitants that they need it… well, that goes beyond my expertise.

The New, Real World

Fortunately, many lawyers and law firms live in the New World. In this real world, they know about and regularly engage in EDD. However, its inhabitants may not yet have noticed that after a period of rapid evolution, their world is entering a new, slower phase.

EDD became a big deal around 2002 or 2003. I characterize its early days as the Wild West. Technology debates loomed large, for example: file formats (TIFF, PDF, or native); review systems (hosted or in-house); and productions (include metadata or not). Litigators and commentators alike hung on every word of the few judicial decisions. The Federal Rules were up for review and were amended in 2006. Vendors came – and they came and they came, from copy shops, Silicon Valley, and points in between. Smart law firms saw opportunity and built document review empires, generating huge profits, while others put their heads in the sand and ignored EDD. Corporate law departments struggled with information governance and retention policies.

Two events in October caused me to realize that the New World has vastly slowed down. EDD today has matured; it has become a business battle. Of course, not every debate is resolved, but the areas of contention have narrowed considerably.

First, when I was at the Masters Conference, I had many private conversations with EDD experts, some leaders in the field. They confirmed that the market is maturing and consolidating, even if it is still growing, even if debates on computer-assisted review loom large.

The Wild West has been tamed. Now, it’s a matter of case law development and convergence on a few technologies and processes. The action today seems more in the realm of marketing than of solving fundamental problems. (It’s just a matter of time before mythological belief in the reliance on human review falls by the wayside.)

And second, days after the conference, in the October issue of Corporate Counsel magazine I found a two-page ad for WilmerHale’s Discovery Solutions offering, at www.wilmerhalediscoverysolutions.com. This site describes in detail, including pricing, the firm’s approach to e-discovery and document review. The reference to the firm’s low-cost (relative to Washington, New York, or Boston) Dayton service center is via a listing of lawyers in Dayton. This is a substantively impressive site; more importantly, it reflects that marketing and positioning have become primary.

WilmerHale competes for e-discovery and document review with other large firms and vendors. To illustrate, here is my “unaided recall” list of firms (i.e., ones I happen to remember) with dedicated e-discovery practices:

• Pillsbury
• King & Spalding
• Morgan Lewis
• Orrick 
• Fulbright
• LeClair Ryan
• Hughes Hubbard
• Ryley Carlock & Applewhite

Yet law firms have no lock on this business. In fact, in the Wild West days, the vendors dominated. I first started seeing a change in 2007: my blog post Coming E-Discovery Battle between Vendors and Firms noted the emergence of law firms with their own EDD capabilities. I even encouraged this trend with my white paper that year called 4 Ways an eDiscovery Attorney Can Make Your Firm More Successful, suggesting that law firms consider hiring lawyers specializing in EDD.

Law firms listened. They built EDD capabilities to compete with their clients’ in-house EDD capabilities and a still-long list of vendors. So as I see the EDD market, the real action is no longer fundamentals, but a battle for market share based on pricing and feature mixes.

One of my recent Twitter exchanges helps makes the point. I asked re WilmerHale “Do other firms have dedicated #eDiscovery sites?,” to which leading UK EDD expert Chris Dale responded “any firm not doing something similar within 2 years is dead for #ediscovery work.” I think Chris is right.

Any firm that litigates will need not just to understand e-discovery, but also to have the capability to do it. Owning is one option, outsourcing another. Either way, firms that litigate will need this expertise and capability.

Many lawyers are “outstanding”. Clients take that for granted. They also take for granted decent technology and process. So law firms need to persuade ever-more-sophisticated clients that the firm can do the EDD work cost effectively. Go ahead, tweak your process, tune your technology, but make sure you have the right business strategy and marketing.

As EDD capabilities grow and converge toward standards, competitive differentiation is increasingly hard. Price, service, and marketing become the keys to winning. Okay, I am forward thinking. We may not be quite there yet but, to paraphrase Churchill, in the New World, we are way past the end of the beginning.

Evan Koblentz of Law Technology News asks today Will Tablets Replace Laptops? I think the answer is yes for some and false dichotomy for many. 

I was a late tablet adopter, buying an iPad 2 in September of this year. A year earlier, at ILTA, I talked to a lot of my friends about tablets because the iPad 1 was so hot then. Based on my conversations there, I held off buying one. I realized that I create a lot of content, working frequently and intensively in Microsoft Word, Excel, PowerPoint, and OneNote. Full-featured desktop applications and a 19″ virtualized external monitor are keys to my productivity. Tablets won’t do for that.

Not everyone, however, is a content creator. Many partners in large law firms, for example, are more content consumers than creators. They, like many experienced professionals, mainly review documents, comment on those document, send relatively short e-mail messages, and reply to e-mail. If those are your primary tasks, I think you can get by with just a tablet. At minimum, a tablet will serve you just fine while traveling - you may still want a notebook at home or in the office.

So, how do I use my iPad? When I am away from the office for a day of meetings, I find the iPad _very_ useful. If I have an hour break, I can read and reply to many e-mail, read my RSS feed, and read the daily news. All this is _much_ easier on the big screen of tablet than on a smartphone. Carrying the iPad is much easier than carrying a PC.

It’s true that coming generation of PC Ultrabooks may serve this purpose. Ultrabooks are an emerging category of notebooks, designed to mimic the Mac Air in thinness, lightness, and fast boot-up. But they will be expensive to start and I’d rather not buy the first generation. Moreover, when my only task is reading documents, handling the iPad is much easier than a PC. I can be sitting, lying down, or even standing waiting for a train and use a table. I’m not persuaded that Ultrabooks will substitute for that.

So my own answer to Evan’s question, for the next two years at least, is “No, tablets will not replace PCs” for users who need to create a lot of content. Content creators will still need a full-fledged PC, at least in the office or home.

Tablets may replace PCs for users who mainly consume content. In the legal market, however, where time is money and partners at least can afford multiple devices, I think they will co-exist.

[End Note: Although I am pretty good at typing on the virtual screen, I also have a Bluetooth wireless keyboard, Apple brand. To me, the minimal extra weight and space is worthwhile for the faster typing on an iPad.]

Two recent general counsel surveys give us an indication of the current state of legal market. Do you want the good news or bad news first? 

Below I highlight survey findings by Altman Weil and Corporate Counsel magazine. The italicized leaders are my words / interpretation of specific survey findings, quoted or paraphrased.

Here’s my take away: The bad news is that for all the talk by general counsels about controlling cost, I see little evidence of success in the data. The good news is that GC still have plenty of opportunity to do better. And while law firms may have less to worry about than they think, ones that offer creative and value-enhancing services have a good shot at gaining share.

The survey highlights:

Altman Weil recently released its 2011 Chief Legal Officer Survey. Findings include:

• Budgets Up. More than one-half of law departments had higher budgets in 2011 than in 2010, with the median up 7%.
• AFA Limited. “84% of law departments report using some non-hourly fee arrangements… Non-hourly fees accounted for 14% of total fees”.
• Light Pressure on Law Firms. CLOs do NOT think law firms “are at all serious about changing their service delivery model, rating them a median 3 on a 0 to 10 scale.” But on the same scale, they assess themselves at 5 for pressuring firms.
• Limited Law Firm Evaluation. “Only 35% of law departments regularly and formally evaluate outside counsel”.
• Big Opportunity to Expand Offshoring. 10% “offshored some of their legal work in 2011, and 91% expect the amount of work offshored to stay the same or increase next year.”

Taking Your Measure in Corporate Counsel Magazine (1 Dec 2011), reports on its GC survey (click on PDF link in article for survey details). Findings include:

• Limited Use of Metrics. “Only a third of respondents said their departments had set up performance measurements and benchmarks.”
• Budgets Up?? The survey found 27.6% of departments cut their 2011 budgets; of these, the weighted average cut was 9.1%. The survey does not report on whether the 70%+ that did not cut had increases and, if so, how much.
• AFA Limited. 75%+ “of legal departments surveyed are initiating talks with their law firms over alternative fee arrangements, but these rarely bear fruit”

So why the title “New Surveys Show Still More Talk than Action by Law Departments?” Altman Weil’s survey found that the highest 2012 priority for law departments will be controlling costs. This has been a high priority for several years but the I just don’t see it reflected in the actions GCs reported in these two surveys.