9/8/09

More on the Dangers of Freemail

Coming on the heels of our Gmail Waives Privilege dialogue, I came across even further evidence of the dangers of using free email systems like Gmail. As reported in the Washington Post and published by the Houston Chronicle, for only $100 you can buy the password to a any freemail account. The article explains how a 'woman scorned' contacted YourHackerz.com and was able to purchase the password to her "married boyfriend's" AOL email account. She followed that up by securing the passwords to people he emailed who used similar accounts. We at 3 Geeks are aware that a number of state bars have opined that email has a reasonable expectation of privacy and as such is ethical to use when transmitting confidential client information. In part, the reasonable expectation comes about since it is illegal to intercept email. However, the article points out:
Federal law prohibits hacking into e-mail, but without further illegal activity, it's only a misdemeanor, noted Orin Kerr, a law professor at George Washington University and a former trial attorney in the Justice Department's computer crime section.
Wow ... a misdemeanor.
The feds usually don't have the resources to investigate and prosecute misdemeanors, Kerr said. And part of the reason is that normally it's hard to know when an account has been compromised, because e-mail snooping doesn't leave a trace.
Ethics issues aside (which still need to catch up with reality) lawyers should have their eyes VERY wide open when using these email services. In addition to email being inherently insecure, hacking freemail accounts is now as easy as buying a book on Amazon. As we've noted previously, the higher duty of care lawyers hold demands a higher level of practice.

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9/3/09

Gmail Waives Privilege - Part Deux

Previously on 3 Geeks, we posted on the dangers of using free email services like Gmail. The basic argument is that by granting a property right to content (a.k.a. client information) to Google, lawyers risk of waiving privilege. We had an interesting set of comments come in from this post, exploring how serious this problem is. Some people thought it wasn't a problem at all, since Google is using machines to read your content. Others thought it was similar to FedEx reviewing packages for safety. My position is that the granting of rights to your clients' information to someone else (be it Google, Yahoo, etc.) on its face creates an ethical issue for lawyers. To add fuel to this fire, I saw two posts this week on a related subject. In July the New Jersey courts released an opinion (Sengart v. Loving Care) where an employee was using their company laptop to communicate with their lawyer about possible litigation against the employer. At the core of this argument is that fact that employers retain property rights to any information that resides on their computer equipment. Most employment policies inform employees about this, such as the one from Loving Care.
E-mail and voice mail messages, internet use and communication and computer files are considered part of the company’s business and client records. Such communications are not to be considered private or personal to any individual employee.
Compared to Google's TOS:
By submitting, posting or displaying the content you give Google a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive licence to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, post or display on or through, the Services.
Google notes that this right is for the sole purpose of proving the Services. However, that is not much of a limiting factor. Google uses this right primarily to direct ads to its users. But I don't see anything in the TOS that limits them to this behavior. Although Sengart and the Google TOS situations are not entirely similar, they share that core issue of giving property rights to content to a third party in exchange for the use of the technology. The one key difference with Sengart is that the client is the one who compromised the ownership of the content. Frankly, it's the client's right to do this since it's their content. But even in that situation, a lawyer would be wise to warn clients about using email in such a way that privilege is compromised. The legal profession holds itself out as having higher duties of care when it comes to securing client information. I suggest that using free email services with a TOS like Googles' runs counter to this professional responsibility.

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The Next Big Thing: Software to Monitor Those Expensive Databases

A lot of us in the law firm library field have been asking for database and resource "monitoring" software for a few years now. Most of us have had our requests rejected because the cost of the software was seen as too high, or the benefits from such software were seen as too low back when the economy was booming. Now that law firms are cutting staff, attorneys, resources and salaries, some of those firms that rejected the monitoring software now understand the potential benefits that we've been talking about.
The Players
A little background on the big players in the database and resource monitoring world. There are really three main products out there:
1) OneLog 2) LookUp Precision 3) Research Monitor 4*) LexisNexis Cost Recovery Manager [PDF] (not really in the same league, but also used by some firms)
What is "Monitoring" Software?
The basic idea behind the monitoring software is to create an interface that tracks the usage of specific databases (i.e., Westlaw, Lexis, PACER, BNA, CCH, HeinOnline, etc., etc.) Many of these work within Internet Explorer and are fairly seamless for the person accessing the database. The last time I checked, most did not work with any other type of browser (of course, they all say they are "working on it.") But most of the law firms are still using IE (according to my logs, many of you are still using IE6) so, that shouldn't be a big deal for most of us. The software maintains information on:
1) Usernames & Passwords (either on a group level, or individual level) 2) Records which databases are used, by which users, and for how long 3) Restricts use of certain databases according to the license agreement (so if Partner "X" is the only person authorized to access a database, then Associate "Y" can be blocked from the application.) 4) Allows the administrator of the monitoring software to log out users remotely. Nothing is more aggravating than trying to access a database, but you can't because someone logged in, then went to lunch without logging out. 5) Create billing reports. Instead of going through manually to bill out the PACER quarterly reports, the monitoring software will create those reports automatically. 6) Set pricing on each database. Most firms charge back for Lexis, Westlaw and PACER usage, but many do not charge back for other databases. Monitoring software would allow you to put a "per usage", "per minute", or "per transaction" price on any database. 7) Create a "What Isn't Used" report. Now you can really see if that expensive database that the Practice Group Leader demanded a few years ago is really being used. When the librarian goes to the PGL and says "we are thinking of cutting this database", and the PGL replies "Don't cut that, I use that all the time!" Now the librarians has a way to see if that is true or not. Most of the time we know it isn't being used, but didn't have a good way to prove it.
Additional Ways to Use Monitoring Software
You can probably think of a few more good ways to use monitoring software. One of the ways that I've promoted is the "internal" resource monitoring. The IT or KM departments (or in some cases, the techie librarian) have created a lot of internal products that have great benefits to the firm. The monitoring software can be used to see what products are or are not being used, and who is using them. This can be a great resource when it comes to training, or spotting trends within practice groups on what tools are used, and what are not.
Is Big Brother Watching You?
In a word, "yes". The initial thought behind this type of software is to save money by getting rid of databases you don't need, or to reduce the number of users when demand for a database is low. Theoretically, it could also be used to monitor other things, such as how much time someone spends on Ebay or Craigslist. But, most IT departments can do that now, so this would just be another way of doing it.
Monitoring Software is Going to be Huge!
In a time when the fat is being cut, along with the meat, and some of the bone, monitoring software is going to be a tool of choice for many firms. The latest Law Librarian Survey mentions that many librarians are already using these tools as a cost cutting resource. The costs of just the monitoring software runs in the tens of thousands of dollars (depending upon the size of your firm, generally) and the first directive that librarians get is to cut enough in current database subscriptions to pay for the cost of the monitoring software. This is going to be one of those situations where firms will spend a little money in order to save a lot in return.

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8/28/09

Which Do You Value More - Conformity or Diversity?

It's been a busy week around the three geekdom. Although I couldn't attend the ILTA 09 meeting in Washington DC, I monitored it religiously (via the #ILTA09 tag) and helped my boss prep for her back-to-back presentations on Records Management and Library Services contract negotiations. We had a Westlaw blowup mid-week, and I talked with my local Westlaw Library Relations Manager (LRM) yesterday and we had a nice discussion about what the LRM's are doing to work with law librarians. So, getting on the bus this morning, I thought that I didn't have anything to blog about other than TGIF!! But, as usual, I was wrong.
I mentioned a few post ago that I was reading Sir Ken Robinson's book The Element. As I was reading it this morning, I read one of those sentences that makes you sit up and say "Wow!" (If I were a child of the 60's I'd have said "whoa... that's deep, man.")
"... conformity has a higher value than diversity."
Although Ken (he lives in America now, so I refuse to call him 'Sir' Ken) was talking about primary and secondary schools, this could actually apply to many facets of life, and I'm tying it to some of the conformity we have in law firms.
There are a lot of us that are pushing Enterprise 2.0 tools within the law firms. The reason many of us believe this will be a great resource for everyone in the firm is the fact that it gives a voice to everyone. Conformity equals the standard monthly or quarterly meeting, diversity equals wikis, blogs and other social media tools that allow you to put your ideas forth at any time.
Another standard idea within law firms is the establishing of a committee to plan how the firm will handle an issue. Committees are made up of individuals who represent various divisions within the firm (Partners, Associates, Counsel, C-Levels, Directors, Managers, etc.) and even each of those represent certain practice areas or departments. Committees equal conformity, Teams equal diversity. When you set up a committee the members are focused first on how to best represent themselves, their individual departments or groups, their peers, then the firm - in that order. Teams are set up to go the opposite way. Look at the process in a more holistic fashion -- how it affects the many, rather than the few.
Those seven words made me sit up and think about how we can look at what we are doing in a different way. Enterprise 2.0 tools and Teams are just two examples. The next time you approach a project or think about the process you use to perform your tasks, ask yourself are you valuing conformity or are you valuing diversity?

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8/26/09

Generation Generalization - Get In Your Box, Please

As I watched the #ILTA09 session tweets roll by from @VMaryAbraham, I just got more and more disgusted. Not at Mary, mind you (she was rockin' with the informative tweets), but rather at the presenter Jason Dorsey and his message. Now, I must give a full disclaimer here and say that I was not in the room for the presentation, but I did watch an interview with him after the session on ILTA TV, and the interview seemed to back up Mary's Tweets. Jason Dorsey calls himself the "Gen Y Guy", talks about the differences between the generations in his presentations, and I hear he's a great presenter. If I get a chance to see him present at another conference, I will make every attempt to be there.
[Creative Commons photo from Lorchaos]
Now that all of the praise is out of the way, I'm going to say that the message I read from Jason's presentation was one of stereotyping, oversimplification of generational differences, and taking simple known facts and leaping to conclusions about entire sections of our population. In other words, Jason (and many other of the self-help presenters out there) wants to give you a short presentation that will help you compartmentalize people that you work with. When he is finished, you will now have a better understanding of why a Gen Y person is one way, while the Gen X and Boomers are another. Perhaps your Human Resources department has put on one of these little shows at your office. We all walk away with a better understanding of why "Bob is a jerk" and "Sally is lazy." It isn't because they have bad personalities or habits... it's because they are of a particular generation.
I'm always worried about labeling people, and I'm really concerned about labeling groups of people. The labels tend to be too broad, and overly simplistic. It is like taking the Myers-Briggs Type Indicator (MBTI) tests and saying that everyone fits within four distinct boxes out of a total of 16 potential boxes. The personality tests, and the generation "generalization" can help define how someone might perform as a worker, but I'm always afraid that sessions like these create situations where we stereotype entire groups of people and make it too easy for someone to be labeled as "blank" Generation with "blank" MBTI, therefore slap "blank" label on them.
I have to agree with something I read from Ken Robinson, in his book The Element. Robinson talked about trying to label someone with the 16 categories of the MTBI. "My guess is that sixteen personality types might be a bit of an underestimate. My personal estimate would be close to six billion." The reason behind this is when you start to place people in boxes it tends to close doors on people rather than opening them.
I understand that Jason Dorsey pulled his research from over 500,000 interviews of Gen Y'ers, and used a lot of research conducted by Strauss and Howe, so I'm not doubting that he's done the research. However, I did hear Jason give an example in his live interview of how Gen Y's have a unique experience that helps explain their impatience. He roughly said that Gen Y's are the first generation to enter the workforce with no expectation of staying with the same company for 30 years and retiring. I can only talk anecdotally here, but from what I remember, the 30 years and retire has been a dying or dead idea for nearly 30 years now. Do I have to start singing Billy Joel's Allentown from 27 years ago?
Presentations like Jason's are good exercises in "generalities", but not for individual application. Be very careful not to over generalize entire groups of people. Remember they are individuals, with individual experiences and capabilities -- treat them as such.

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8/25/09

Don't Tick Off the Mess Cook, the Supply Sergeant, or the Law Librarian

When I was in the US Army, we used to have a saying: "Do not tick off the Mess Cook, the Supply Sergeant, or the Payroll Officer." The reason was simple... you didn't want to worry about what was in your food, pay for items that were mysteriously signed out to you and then lost; or, find that your check got routed to Ft. Dix, NJ and will make its way back in a couple of weeks. None of these guys were your boss, or even that high ranking a soldier. However, they had power and could use it in ways that could make things difficult for you if they wanted.
Think of that saying when you read this little email advertisement that was sent out by someone at Westlaw.
"Are You On A First Name Basis With The Librarian? If so, chances are, you're spending too much time in the library."
This little doozey was making its way around the law-lib listserv on Monday and was causing quite a stir on at least one blog. Although this is a pretty poor advertisement, I don't think they meant it the way it came out. A fact which was verified by Anne Ellis later on Monday.
Here is what the ad department at Westlaw was probably trying to say: "If you're a lawyer, you shouldn't rely solely on the law librarian to pull your documents or do your research." That would actually be a great ad.
This contentious ad seems to promote the idea that the librarian is a resource of last resort. Of course, this flies in the face of the argument that most librarians (including myself) tell their lawyers and paralegals, which is: "if you cannot find what you are looking for in a short period of time, call the law librarian for help. Chances are he or she has already researched that topic and can point you in the right direction."
I'm pretty sure that the genesis for the Westlaw ad was the fact that the sales reps from the legal research providers see the librarians as "gatekeepers." All of us know how frustrating it can be to deal with gatekeepers, whether it is a certain secretary, paralegal, junior partner, etc. So, in a way, I can understand how the creator of this ad came up with the idea, but the fact that they actually sent this thing around as an email was just bad judgement. You can criticize gatekeepers all you want to your friends and colleagues, but for goodness sakes, don't put it in an email and broadcast it.
Just like with my Army buddies at the mess hall, the supply room or the payroll office, law librarians have a job to do, and as a general rule, we do it well. So, let's be a little more careful with how you think lawyers should be using the librarian as a resource in your next ad.

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8/24/09

Are Blogging and "Thought Leadership" Compatible?

As I was following some of the ILTA '09 Conference chatter, I read something from David Hobbie that caught my attention. David was quoting Kevin O'Keefe's comment of "thought leaders will blog because of their insatiable desire to learn." I thought that was a pretty good quote, so I retweeted it with a comment of "(so true!)". Within a few minutes, Jeff Gordon (the licensing handbook guy, not the racer) challenged me on that saying that he thinks "thought leaders will COMMENT when they want to learn. Blogging isn't learning (even if you have to do research)."
This had me scrambling to make sure that my definition of 'Thought Leader' was correct. [I'd hate to be the guy from Princess Bride yelling "Inconceivable!"] So, I quickly went to Wikipedia and got the definition:
Thought Leader - A person who is recognized among peers and mentors for innovative ideas and demonstrates the confidence to promote or share those ideas as actionable distilled insights.
My definition was a little simpler: "A person who comes up with some good ideas, and like spaghetti, throws them against a wall to see what sticks."
In my retweet I was thinking that the blog could equal the wall, and the sticking would be the ability for the thought leader's ideas to stand up to the comments of his or her readership. In a way, you could think of it as a "quasi peer-review" process. A great example of this would be my co-blogger Toby Brown's post on GMail and Privilege. Toby threw his ideas of what happens when you combine legal ethics rules against a Terms of Service agreement from an email service provider. He tossed out his interpretation on the blog (for God and everyone to see), and found that his peers both agreed and challenged him on his interpretation.
Jeff is correct in that Thought Leaders do tend to 'comment' more than they teach on their blog, but in a way they are challenging their readership to either accept their comments as a great innovative idea, or to point out the flaws in their ideas. In the "old days" we would have to meet them face-to-face or write them letters or emails to engage in the discussion. Those conversations, however, would be limited to the audience in attendance or would simply be a one-on-one conversation. With blogs, those leaders can be engaged in multi-party conversations over a period of time.
Now, I might be stretching the definition of "Thought Leader" slightly (or in Toby's case... enormously!), but I do think that blogs are an excellent platform for though leaders to discuss their ideas and generate feedback from their peers. If you fall under my loose definition of "thought leader", I expect to see some spaghetti sticking on the walls of your blog.

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8/21/09

Google and Privacy, cont'd.

Interesting turn of events: Vogue model Liskula Cohen won the right to force Google to unmask a blogger who defamed her character. Taking a turn from Toby's previous post on Google's Gmail, I have to raise an eyebrow. On the one hand, Google claims that they have a right to scan all of your e-mail for advertising opportunities but then when someone uses their blogging forum to castigate someone, the big old "privacy" walls come down. You can't have it both ways, Google. Turns out that we the people have bought into "the man" now called Google. Oh. Yeah. Our blog is on Blogger. I guess we are biting the hand that feeds us. Oh, wait, is that dog food ad I see? ;)

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8/20/09

Teaching a Person to Fish in a "Reactive" World

If you are like me, you spend most of your time "reacting" to the demands of the day. People walk into my office, call me on the phone, or email me requests all day long, and I (like the good little automated message that I am) try to answer them in the order they were received. When I go home at night, I generally quote one of my favorite Thurgood Marshall sayings to myself -- "I did the best I could with what I had." This usually satisfies that little voice in my head that wonders if I could have approached a project in a different way, or made a better decision if I had more time. Unfortunately, my little voice hit me with a different question -- "Hey, shouldn't you be teaching these requesters how they can answer some of these questions themselves?" (darn little voice....) [Photo Credit to wstryder (creative commons)]
The little voice was right, of course. Especially since it was referring to the fact that there are some specific questions that I handle over and over again. In this instance it is a generic question of taking a huge list of company names and finding a way to quickly identify which of these companies has every hired the firm to represent them. For anyone that has had to deal with the mixture of business development, marketing, competitive intelligence or records departments within law firms, this is a question you'll get a lot.
I created a pretty good solution to this almost two years ago. I created a MySQL database that stored some basic client information, indexed it, and then placed a simple (yet superb!) PHP web front end on the database that allowed me to copy and paste the names of the companies and do a quick search on our index to see if they matched. I even created some fancy "fuzzy" logic buttons that really stretched the idea of "best guess" results (but was still effective in finding matches.) I demonstrated the database, passed out the link to the different departments so that they could run these searches themselves, and I've used it quite a few times. But... (and here's the morale of this story) I never really followed up with anyone, or did any additional training on the product after that initial introduction. I just assumed people were still using it and it was such a great product that obviously they would understand how to use it, remember it was there when they needed it, and gush over how smart I was for having come up with this great product.
My first clue that I was assuming incorrectly should have been the lack of my not winning the "Internal Product of the Year Award". The second clue should have been the fact that people were still coming to me with this same request. But, I, like many people, don't actually see the big picture until I got someone (usually an "angry someone") telling me that they spent hours doing this project and it would have been nice if I'd have shown them this product before they wasted all their time on it. Somehow my pointing out to them that I showed them this two years ago doesn't seem to fly as a good excuse on why I haven't followed up with anyone since.
The good news is that I get to reintroduce my great product and train people on how to use it. I'll probably do a cool little video screencasting of my desktop to show them exactly how to use the product for some "on demand" training. And in a few months, I'll follow up with everyone to see if they are still using the product. I'll also expect to be in the running for the "Internal Product of the Year Award."
My little voice is still telling me that I should have been more proactive over the past two years and made sure that the product was being used and that people understood it. It is pretty darn hard to be proactive in the reactive world where we work. But, the little voice is right, and I'll learn from this lesson to work harder at being a little better at recognizing when it is time to stop feeding my folks fish, and instead teach them how to fish for themselves.

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8/19/09

Use Gmail – Waive Privilege?

Recently I noticed a resurgence of the debate on the wisdom of lawyers using hosted, freebie email accounts. The basic concern has been about the security of these types of email addresses. It is quite easy to spoof one of these addresses and intercept communications. As well Twitter can testify that once cracked, the passwords for these sites are quite useful for other hacking. An avid Gmail user myself, I was recently accessing my account via browser, and noticed the text-based ads. After some various testing, it became apparent Google was ‘reading’ my email to present ads relevant to the topics of my email. In one example, I could tell Google knew the content from the message body versus just the subject line. After a gentle reminder from my 3 Geeks co-blogger Lisa, I went and re-read the Terms of Service (TOS) from Google, followed by the same from Yahoo. Both services retain rights to any Content that touches their services, including communications (a.k.a. email). Google TOS:
8.3 Google reserves the right (but shall have no obligation) to pre-screen, review, flag, filter, modify, refuse or remove any or all Content from any Service. 11.1 By submitting, posting or displaying the content you give Google a perpetual, … free … licence to … any Content. 17.1 [a]dvertisements may be targeted to the content of information stored on the Services, queries made through the Services or other information.
Yahoo TOS:
6. You acknowledge that Yahoo! may or may not pre-screen Content, but that Yahoo! and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or remove any Content….
And from the ABA Model Rules of Professional Conduct:
Rule 1.6. (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent ....
So beyond the security concerns, it appears that the use of popular, free email services for client communications is a violation of ethics rules since lawyers are revealing client information to a third party. If you didn’t have enough reasons for moving to a secure email address on a domain you own, you can now add “getting a letter from Discipline Counsel” to the list.

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8/17/09

It's Time To Take Our Social Media Relationship To The Next Level

If you are like me, you have a lot of people that you "follow" via your social media channels. For example, I have over 2,600 folks that I follow via Twitter. But, out of those 2,600+ I probably only have the emails to a couple of dozen, and the phone numbers of a handful. My guess is that there are a lot of folks like me in the Social Media world. I like to run across new ideas by "happenstance", but there are a few of those folks that I know will challenge me intellectually with what they say, and I've made an effort to keep closer track of these specific individuals. On my way into work this morning, I got to thinking that it is time to take a few of these social media relationships to the next level. (Creative Commons image by jhf)
A couple years ago, I read Keith Ferrazi's book Never Eat Alone. It was recommended to me by a partner in my firm, and I enjoyed it so much that I bought a copy for each of my library manager peers in my firm. The concept is very simple -- take the time to meet with people you want to know better, usually over lunch. The idea behind Ferrazi's book is that you have a lot of nodding relationships, but in order to better understand someone, or to open a comfortable line of communication between yourself and one of your colleagues, you need to meet face to face and actually have a conversation. All the emails, tweets, Facebook wall postings, etc., don't replace the energy you get from actually meeting with someone and getting to know them better on a personal level.
So here's my challenge to you. Pick 2 or 3 of the people you converse with on a social media platform that you would love to talk to face to face (your "fav 3"). I'm guessing that for 99.44% of you, these folks do not live in your city or work for the same firm or company that you do. Now, send them this message via a Direct Message on Twitter, or an email (standard email, FaceBook email, or LinkedIn email, Pony Express, whatever):
I saw this (http://bit.ly/5adI1) and thought of you. Next time I'm in [enter person's city] or you're in [enter your city] let me take you out to lunch. - [enter your name]
Do this for just 2 or 3 of those folks you'd really like to meet. Don't worry about hurting the feeling of the other 2597+ people... chances are they probably will never find out that they are not in your "fav 3".
For me, my "fav 3" are in Los Angeles, Boston and London. Believe it or not, the cities did not play a role in my picking the three. Now, chances of me going to London anytime soon are slim to none, but if I do, I'm offering to take someone out to lunch! My goal is to make the effort to better know a few select people and build upon the relationships that we've formed online.
Select your "fav 3" carefully. There's a great saying by the author Margaret Atwood that I quote a lot - "Wanting to meet an author because you like their work is like wanting to meet a duck because you like pate." We've all experienced this at one time or another. I remember meeting one of my law school professors for the first time. I'd read some of his writings and thought he was a genius. Then I met him. Turns out that sometimes you can be a genius, but still be a big jerk, too. I don't think that my "fav 3" are like this, but I could be wrong. I guess I won't know until I actually meet with them face to face.
Now, do me one other favor. Once you send out your message to your "fav 3", come back here and put a comment that says "Next time I'm in [list the two or three cities], I'm taking someone to lunch." I'm really hoping that I'll see a lot of "Houston's" in that list!!

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8/14/09

Cost Recovery…Such a deal

[Please welcome 3 Geeks' Guest Blogger, Mark Gediman]

My Grandfather was notorious about finding a deal. He would go into a major department store and dicker with them over their prices. To him, the published price was just a starting point and he refused to buy unless he thought he was getting the price that he felt was reasonable. Clients in today’s legal marketplace have this same attitude.

You can see it in recent news items discussing the attitudes of General Counsels at large corporations as they struggle with reducing costs with major law firms. They are negotiating hourly rates aggressively and questioning every item that appears on their bill. The question of whether or not the hourly billing model has gone the way of the dodo has been debating extensively, including by 3Geeks’ own Toby Brown on this page. I think the hourly rate issue should be separate from the online research charges that appear on the bill. As you can see in my analysis below, these charges actually reflect the efficiencies these services provide.

In my position as Information Services Manager for a great metropolitan law firm (naw…even I don’t believe I’m Superman…all of the time), I find myself constantly explaining/defending/justifying our cost recovery policy. Maybe I’ve been sampling the Kool-aid along the way, but I’ve come to realize that most firms that charge back for online services are actually saving their clients money. Here are some examples of why I’m not delusional:

- Charging a fee for pulling a case online is less than the cost of pulling it off the shelf

Let’s say a firm charges clients $10 per case. It takes about a minute to pull and print the case. With a billing rate of $300/hr, the total cost to pull that case would be $15 ($10 for the case, $5 for the attorney’s time).

If the case is pulled from the shelf, let’s figure the following time is spent: 5 minutes to walk to the books, 2 minutes to pull the right volume, 5 more to copy the case and 5 more to walk back to the office for a grand total of 17 minutes. The cost is $85. And this doesn’t count the cost of the space required to house the cases or the copying charges.

The cost to pull the case online is only 17% the cost of pulling it in print. I realize that not everyone does these activities in exactly the same way. However, what is clear is that the client actually saved money in the process.

- Case & Code research is better online

First, let’s do this research online. Type in your search, starting broadly, and then narrow your search with focus or locate. It takes about 5 minutes to run the search and about 15-30 minutes to review the cases with your terms in context. In the interests of fairness, we’ll go with 30 minutes. Then print the cases you want and you’re done. Total time spent we’ll round up to 40 minutes to allow for printing. At our hypothetical $300/hr rate, the cost of the time spent comes to $200. Add in $40 for the search and you’ll have a total cost of $240. This analysis assumes that this is a normal search, not too esoteric, and that the search result is manageable, say about 20 cases. The analysis is essentially the same for searching codes.

Next, let’s look at the process for researching cases and codes in print. Picking up a digest or a code index, and looking for the correct subject can take anywhere from 10 minutes to an hour. This assumes that what we are looking for is easily translatable into the canned headings they use and not horrendously cross-referenced (i.e., “See post-trial” which then says “See Judgments”). This process can take anywhere from 10 minutes to an hour depending on the research. For the sake of discussion, we’ll stick with 10 minutes. Then we spend about an hour pulling and reading the cases that were listed in under the digest heading. Then we add in the 17 minutes it takes to copy the darn things. We now have a total time spent of 1 hour and 27 minutes and a cost of $435.

The cost to research cases and codes online is only 55% the cost of doing it in print. A significant difference I would say.

-Researching can be more cost effective online

The online process is relatively simple. Run the search in one or several treatises, focus or locate the sections discussing your specific terms, review the results and print the sections you want to keep. Say, about 40 minutes of your time. Couple that with the $40 search charge gives you a total cost of $240.

It is not quite as simple to do this with print. The process and time spent are similar to the case/code research referenced above. Assuming the book is on the shelf to begin with, start with the index or table of contents, look at the several sections/chapters that you find for the most relevant and then copy what you want. Total time is 1 hour 35 minutes and cost comes out to $435.

Again about a 55% difference in cost.

-Caveat

The same is not true if it is a treatise, usually a practice guide, that the end user knows intimately. Several years ago, I published an article discussing this phenomenon and concluded that it is actually better to keep these types of treatises in print.

I cannot think of anyone who practices law in this day and age (yes, I realize that phrase dates me) that does not subscribe in some way to an online service. To not do so would be to invite a malpractice claim. Courts have stated unequivocally that firms should utilize these resources to provide their clients with the best representation possible (Margolis, Ellie, Surfin’ Safari-While Competent Lawyers Should Research on the Web, 10 Yale J.L. & Tech. 82 (2007-2008)). An example of the advantage of using a service online instead of in print can be found with Shepardizing (or Keyciting for you West folks). The Shepard’s print service is 6-9 months out of date when the firm receives it, a delay caused by editorial deadlines and publishing requirements. Compare this to the online service that is updated within 24 hours of an opinion being issued and it is easy to see why this could be important to client.

We all know that these services come at a price. But, as you can see from the examples above, these services actually serve to save the clients money and advance their cases. It is reasonable for firms to bill the charges back to the client when they create efficiencies and add quality to the firms’ representation of their interests.

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8/13/09

Information Wants To Be Free -- But, We'll Still Pay For "Authority"

Peter Schwartz of the Huffington Post writes in his article "The Reinvention of Legal Research: The Future is Now" about information being a commodity and how the easy availability of access to "data" is posing a new challenge to legal research giants Lexis and Westlaw. As much as I wish that Peter's assumptions were true, or at least had the chance of happening, judging by these same giants of legal research are posting huge profits during a slump in the global economy, I'd say the "future" is still in the future.
Let's look at the points that Peter lists:
  1. Data Trumps documents
  2. Information is liquid
  3. Information is a commodity
  4. Customers will not pay for research
  5. Large legal publishers are in trouble
  6. These are the wondrous times in the world of online publishing
Before walking through these points, let's remember what is the "end game" of legal research. When all is said and done, your final product should be something that is upheld by a court of law if challenged by another. Within the common law courts, this generally means that you must point to existing documents that support your claim. The whole idea behind such concepts as stare decisis is that the "law" is built upon existing law and decisions and is usually not changed except in extreme circumstances. When you have concepts like stare decisis, you need to be able to rely upon solid resources that have earned the trust of the courts. It may be true that information is liquid, but laws and the legal information behind those laws are much more like ice than they are like water.
The good and bad thing about legal research today is the fact that information is a commodity. This has created a conception that all information is online (and free) and can be found if you are a savvy enough researcher. Granted, there is an enormous amount of information available to legal researchers and a lot of it is free. That may be fine if you are writing a blog or even an article for a news organization. But, quick and easy and free information will not necessarily be viewed as authoritative by the courts. For example, try to submit a Wikipedia citation to a court. It will be tossed because its lack of consistency and authority. My friend and fellow Houstonian, Jason Wilson, wrote about this topic in his posting "Screw Authenticity, I Want It For Free" and Jason makes a good point that although folks like Chris Anderson say that information wants to be free (and that people don't want to pay for information), when it comes to case law or legal authority, you're going to have to go to a stable information source and usually have to pay for it. Otherwise, you risk the chance of having a judge question the authority of the information you are presenting.
Anyone that has been in the legal research for the past 20 years knows that it is a shrinking world. The big legal providers have been acquired and turned into huge conglomerates of online publications. If you're on the legal publisher side, you say that you've "diversified", and if you're on the legal research side, you say that the legal publication world has "shrunk". Although there are a number of smaller legal publishers, non have the general authority and respect - in the eyes of the courts - that the two big players have. Although big pocket publishers like Bloomberg are jumping into the fray, they have a huge uphill battle to wage before they can compare themselves to the big two publishers. Just ask big publisher Wolters Kluwer if their acquisition of Loislaw has panned out the way they thought.
I have to agree that these are wondrous times in the online publishing world. Aggregators and blogs like the Huffington Post are thriving in a world starved for quick information and real-time search. But, the courts aren't in this same category. Legal researchers do not have to satisfy the world's hunger for information, they have to satisfy the court's expectation of presenting authoritative information that can withstand the challenges of a system that relies upon that authority to drive the decision it makes.

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8/11/09

I'm Calling It!! - There's an "E-Discovery Bubble"

There comes a point in time where you have to shake your head and say that we've created something that is unsustainable. Whether it was the Dot Com bubble in the 90's or the Housing bubble this decade, there is a point in which you have to stand back and say that reality is going to cause a backlash at some point and cause the bubble to burst. It is August 2009, and I'm calling it: "Electronic Discovery Is A Bubble" and in the next couple of years, if not sooner, it is going to burst.
Why is it a bubble?
First of all, the basic "idea" behind e-discovery is something that is difficult, if not impossible to accomplish. That idea is that electronically stored information (ESI) can be captured, indexed, encoded, filtered and searched so that you can find that smoking gun that every lawyer dreams of finding. Craig Ball, in the August 2009 issue of Law Technology News, gives some good examples of how difficult this process is.
Secondly, it is too expensive. Just with the Dot Com and Housing bubbles, you cannot expect clients to continue to pay exponentially for the cost of processing, indexing and reviewing ESI if that cost is greater than the reward. In other words, why would your client pay $1 million in E-Discovery costs for a reward of $500 thousand?
Zubulake vs. Rule 1, FRCP
In the same issue of Law Technology News, David Waxse, U.S. Magistrate Judge, District of Kansas, gives us his favorite quote, and I find it to be a great quote to use when discussing E-Discovery and the overall cost:
Our job is to secure the 'just, speedy, and inexpensive determination of every action.' -- Rule 1, Federal Rules of Civil Procedure
Compare this quote to the rules set forth in Zubulake or in the new California E-Discovery rules (here's a great [PDF] overview from Winston Strawn attorneys), you'll find that the two concepts do not mesh.
I'm not saying that E-Discovery is going away, what I'm saying is that there is going to come a "correction in the market" over the next few years that will burst the bubble in the cost of collecting and analyzing ESI. Whether it is through reduction in cost by companies doing ESIwork in-house, through outsourcing, settling costly ESI matters early, or by courts revising laws to prohibit costly E-Discovery requests or shift the cost burden across the parties, you are soon going to hear a "pop".

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8/10/09

It's "Not" The End Of The World - And I Feel Well Rested

Last week I vacationed in Colorado and did not take my work laptop with me. Instead, I relied upon my 3 year old BlackJack (version I) and limited cell reception to check work emails once a day. In the end, I'm sad to find out that the office back in Houston survived just fine without me for a week. But, I'm also happy that I've not created a situation where I've become indispensable to my co-workers. I've had a saying that I've used over the past 20 years or so that I'm always afraid of breaking: "If someone has made themselves indispensable or unreplaceable, then you need to fire them." The primary reason is that if you have someone like this, you've allowed them to created a single point of failure that will eventually come back to haunt you and your organization.
When I worked for a library services company, I was required to take a vacation each year of no less than 5 consecutive workdays in a row. The idea behind the forced vacation was to make sure 1) that I was actually taking some time off from work; and 2) that I wasn't creating my own little fiefdom within the organization where we couldn't survive without me.
I remember one time questioning my boss (different job) about relying too much on specific individuals for important business processes. When I asked my boss who was backing up the guy (I'll call him 'B.A. Baracus') in charge of our email system when B.A. goes on vacation, the reply was that B.A. was required to take his work laptop with him on vacation and therefore there wasn't a need to have a backup for B.A. I sat there and nodded, watched B.A. lug a 10 lbs. laptop bag over his shoulder, and then went back to my desk and made sure my resume was updated and ready to send out.
Now, granted, there were many little things that didn't get completed while I was out on vacation, and my physical in-box was stuffed full of invoices ready to be sent to accounting, but almost all of it could have been handed off to someone else if I had decided to escape from the world and become a recluse in a cabin somewhere around Pikes Peak. I'm glad that I'm appreciated at work and missed when I'm away on vacation, but I'm also happy to see that I haven't become unreplaceable. Now I can go on that winter cruise to Mexico and not even worry about checking email... that's a great feeling.

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