Pardon The "App" Interruption

I had a great time last Friday presenting with Barbara Fullerton from Morningstar, and Scott Riggins from Houston-based Social Mobility at the SLA Texas annual meeting held at the University of Houston. We had a great time going over some new – and some not so new – apps and mobile devices called "Pardon The 'App' Interruption."

The audience got a chance to participate by holding up cards with "Like", "Fail" or "Meh!" to show what they thought of the product we were discussing. It made for an enjoyable interaction with the audience (and caused us to run over our alloted time… no big surprise there!) I have to give some love to Google Docs for allowing the three of us to work on a presentation from three different locations (and for somehow keeping all of the formatting from becoming garbled as I went in and out of PowerPoint to G-Docs and vice-versa.)

Here's the Google Docs version… enjoy!!

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Yes, Virginia, There Still Is Privacy

I’ve been watching a disturbing trend. More and more people are laconically letting the likes of Facebook, Google, Amazon, Twitter and FourSquare taking over their lives. I admit. I am as much a victim, perhaps even more of a victim, than you are. My excuse is that it’s my job. But what about the rest of the world? Have we become so used to the entertainment value of being connected to the internet that we have forsaken our right to privacy? Are we so driven by “ease-of-use” that we are willing to let the likes of eBay, Continental and Amazon into the privacy of our homes? Will we, as a nation, place so much value in our desire to be connected to one another that we are willing to forfeit what many perceive to be an inherent right? But first a history lesson. The right to privacy is not in the U.S. Constitution. Nor is it in the Bill of Rights or the Declaration of Independence. Yep, its true. The right of privacy didn’t make its way into our collective conscience until Justice Brandeis issued his ground-breaking dissent in the 1928 case of Olmstead v. United States. This criminal case swirled around the admissibility of a wiretapping. In a somewhat prophetic analogy, he compares the act of wiretapping to the act of tampering with someone’s mail and says, “the evil incident to invasion of the privacy of the telephone is far greater than that involved in tampering with the mails." You’re thinking to yourself, “well, I’ve got mail. Tons of mail. An inbox full of e-mail.” Brandeis goes on to talk about the peril of not subjecting our government to the same rules of conduct that we expect of our citizens. I suggest we take Brandeis’ point one step further: we should hold our corporations to these same rules of conduct. We could be taking these companies like Twitter, Facebook and Google to task for spreading our likes and dislikes to the four corners of the winds and ads are chasing us from online store pillars to online posts. But the real problem is those darned EULAs. In our rush to gain access to our Gmail and one-click ordering on Amazon, we have clicked through those end-user agreements without even reading them. GASP—yes, I, a lawyer, don’t even read the fine print. Daily, we are forfeiting our right to privacy. Incrementally, injudiciously and surreptitiously, we are handing the biggest companies in the world our personal information. And we don’t even care. Have we become so comfortable in this Oprah-confessing world that we have no problem baring all before God and man? Have we decided that there is no shame in ripping off the fig leaves from Adam and Eve? Are we comfortable letting everyone know what we think, feel and believe? And is this such a bad thing? I don’t know. Maybe the right of privacy only exists in my imagination. But then isn’t that really the crux of it? That privacy is a concept that we created in our own minds—that nothing is truly private once a thought is created, vocalized or expressed? For I see that if we do let go of our right to privacy, the next right to be abandoned would be the right of creation. Yes, the rights of intellectual property. So with that, dear reader, is where I will leave you. I have no answers. Only my muddling mulling. And, so at least for today, I would tell Virginia, “yes, there is a right to privacy.” Photo by woodleywonderworks

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AFAs in the Fulbright Litigation Trends Report

I reviewed Fulbright's Litigation Trends Survey Report for Alternative Fee Arrangement (AFA) findings and came up with the following analysis.

It's clear from the Report that clients have a significant focus on reducing legal costs. It is also apparent that the focus on reducing costs will not be decreasing any time soon and is expanding in various markets. The result is a growing adoption of AFAs in the market.

AFA Highlights from the Report:

I - Who is using AFAs?
51% of those surveyed are using AFAs
Larger/Public companies are almost twice as likely to be using AFAs as small companies
(61% vs 37%)

II - Primary Reason for using AFAs:
78% said “Lower Costs”
18% said "Predictable/Fixed Costs"
Smaller companies are more cost sensitive – with 84% stating “Lower Costs”
The US Energy industry shows 83% choosing “Lower Costs” as the reason

III - Estimate of the percentage of your billings done via AFAs:
78% say that more than 10% of their billings are under AFAs
18% said that “50% or More” of billings are under AFAs
However, there are numerous regional and industry adoption variations.

IV - What types of AFAs are currently in use?
Fixed fee is #1 at 55%
In the US fixed fee use is a bit higher at 58%
In the UK - 74% report using contingency/conditional fees
Smaller companies appear to favor blended rates - 50%
The Energy sector prefers using fixed fees - 66%

V - Are the use of AFAs going up?
Only 1% expect a decrease in AFA use
37% expect their use to go up
45% of larger companies expect the use of AFAs to go up

Interestingly, the answers to the general, opened ended questions on the survey also touched on the AFA subject. These are were broader questions about the state of the industry. Two of the quotes from these answers sum up the sentiment.

"An intense drive to lower legal costs."

"I think alternative fees will become the norm, not the exception."

These survey results bring strong evidence that things have changed and will not be changing back. The strong consensus on cost savings and the expanding use of AFAs reflects this.

Given what I do for a living (AFAs) these findings do not surprise me. Based on what I am seeing now in the various AFA deals I handle, I expect this trend to continue into next year's survey results.

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Guns, Liquor & Facebook Status Updates - Helping Police to Find Their Man

Well, Facebook?? Do You??
If there is one thing that social media has helped amplify, it's the fact that stupid people do stupid things, and love to tell everyone about it. Case in point – Scott Harris of Staten Island, NY.

Seems that this 31 year-old man decided that shooting a .38 caliber pistol out the second floor window of his father's house at 4:30 AM – after a few shots of liquor – would be a great idea.  (Yes, ladies, he's 31 and lives with his dad and apparently is available…) One of his neighbors heard the shot and dialed 911 and alerted the police that they heard a shot (the news report doesn't verify this, but I'm assuming the shot was prefaced by Harris' repeated yelling of "YOU TALKIN' TO ME??")

In the good old days (read: pre-Facebook), the police would have canvased the neighborhood, looked for shell casings, interviewed some neighbors, and may or may not have found out that Harris was their drunken shooter. However, social media (combined with a severe case of the dumba**) has made investigations easier. Harris took the time to update his Facebook status about the "good idea" he had about shooting toward the swampland out his Dad's window (just how is this guy still on the market??) The police found the Facebook update, tracked down Harris and he confessed to being the drunken–facebook–status–updating–shooter.

Long story short… Guns, Liquor and Facebook don't seem to mix very well — especially if you're an idiot.

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Elephant Post: Consultant - "Your Job Should Be Outsourced… Prove Me Wrong!"

Consultants say that your job should be outsourced because of __________. Are they wrong?

The downturn in the economy has amplified the calls from management of "justifying your worth" to the firm. Many of us fear the "efficiency experts" (think "The Bobs" in the movie Office Space) coming in and suggesting that the work we do could be consolidated, downsized, outsourced, flat out eliminated. So we thought that for this week's Elephant Post, we'd see what you'd say about justifying your worth.

We have perspectives from the Information Resources Center, the IT Help Desk, and Information Technology on the justifications they mention when the consultants come calling.

Once again, don't forget to take a peek at next week's Elephant Post question (it asks about your boss!!) at the bottom of this post, and send me your thoughts to share with everyone.

Information Resource Perspective

It's Not About "Cheap Service" – It's About Great Service That Watches the Bottom Line
Carol Bannen

The Information Resource Center staff here is made up of information specialists that not only get requests from anywhere in the firm for information but we are also proactively participating in practice group meetings to offer help and information relevant to the projects they are working on and didn't even think to ask about.

I am not sure that outsourced library/research services would be able to offer the same proactive service that we are able to do by attending these meetings and interacting with the attorneys face to face.  In the Great Recession we have not only maintained our staffing levels but also greatly increased our billable hours.  I believe this is a direct result of our IRC Liaison program and the marketing of our services.  We offer services that go directly to the firm's bottom line.  I don't see any outsourcing company doing that.

HelpDesk Perspective

It’s all about value

So, I’m the HelpDesk person that refuses to be outsourced. Not me. It’s not entirely about *money*, it’s about *value*.

In short, if I can deliver what my customers want for a comparable (or even slightly higher) dollar cost than my competitors, I’ll remain. What do my customers want in their support guy?

  1. The right answer. Provide the answer they need. Take the time to understand the business and the process so that you understand the need, not just the expressed desire du jour that comes over the phone or email.
  2. The right answer, at the right time. The first time is always the right time. If not the first time, a mutually agreed upon interval that hopefully demonstrates my knowledge of what the right answer should look like (see prior point).
  3. The right answer, at the right time, delivered by the right person. What good is it being in-house if I don’t leverage my knowledge about the personalities and conditions from an insider perspective? Being the right person means a genuine interest in others that they can recognize and appreciate.
  4. Do the decision makers know what a swell person I am? This isn’t just a schmooze maneuver. I need to make sure that important people know that I’m contributing to the bottom line by keeping things moving. I can’t expect anyone else to be clairvoyant about my contribution any more than I can be about the resolution to their problems.
Though simple, these are what I use as touchstones: Am I known to be a great person, delivering the helpful information in a timeframe that’s actionable? If those points are done well, then I’m a confident employee. If someone else does these better than I do at a similar cost to my employer, I’d better be taking lessons very quickly.

IT Perspective

Consultants say that IT jobs should be outsourced because of cost, efficiency, expertise and/or customer service.  Are they wrong?

There is no categorical right or wrong answer to this statement. In the Information Technology (IT) community, outsourcing has a home and it doesn’t plan on moving anytime soon. Can the outsourcing express roll through the district and evict residents? Yes. I contend, however, outsourcing need not be the obnoxious neighborhood pest. It can be the friendly neighbor that mutually benefits the subdivision.

My organization redirects the Helpdesk hotline to an outsourcing service during the night shift. This fulfills a gap in one of our customer service objectives by providing human operators to answer Helpdesk calls. Before this change, our low call volumes scarcely merited the need for a night shift operator and calls to the Helpdesk would roll to voice mail.  Outsourcing provided the means of fulfilling one of our customer service objectives at a reasonable cost.

At my organization’s smaller satellite offices, we are unable to justify an IT position. Establishing a relationship with local outsourcing services extends our coverage to these offices in an efficient manner.  The time and material arrangement provides positive ROI and offsets the cost when the situation calls for staff to travel to the satellite offices.

These outsourced services examples are arguably long-term fundamental IT responsibilities. Does this mean I can someday be outsourced? Yes. However, I think the more an IT position provides value to core business needs, the less likely that position will be outsourced. I favor this adage, “If you are not an asset, you are a liability.” 

My organization is highly dependent on IT for email, document management and financial services. Will these core business needs be outsourced? Probably not. In contrast, we have less expertise and more elasticity with audio and web conferencing technologies. These services are outsourced. 

I think the recession brightens the spotlight on business values. The call for moral and ethical standards is clear in Ben Horowitz’s blog . While the blog focused on Hewlett-Packard’s dismissal of former CEO, Mark Hurd, the message of “… people working together to deliver value …” is true for all ranks of an organization. Outsourcing, after all, is still about human resources. The more a person increases his or her value, the more valuable the person, position and department become to the organization.

How’s your value proposition?

Next Week's Elephant Post:

We've usually focused on the "negative" when it comes to the Elephant Posts, but next week we want to give you a chance to "talk-up" your boss or perhaps some peer that has been influential in your career. 
What is one thing that you have learned from your boss that has been transformational for you?
This question brought back memories of a job interview I had once (I didn't get the job), but there was a moment when my potential boss said something to me that he doesn't remember, but I never forgot. I'll explain more next week in my contribution.

We encourage our readers to step out from the anonymity of reading 3 Geeks and contribute to next week's Elephant Post. If you have a story about how your boss, or someone you worked for did something that transformed the way you thought about your profession, then send me an e-mail to discuss.

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Litigations Trend Report Released - More Litigation, More Regulation

Fulbright's released its annual Litigation Trends Report this morning. In its seventh year, the report has become a standard in BigLaw circles and has earned its share of kudos from companies around the country. So what's the big story this year? Survey says: GCs are predicting that, despite the end of the recession, more litigation and more stringent regulations are coming. The survey, conducted by the independent research firm of Greenwood Associates, polled over 400 GCs in the U.S. and U.K. during the 2nd quarter of 2010. Want to read the full 57-page report? You can download it from Fulbright's web site for the small price of entering your contact info. Better go get it before copies run out! ;) Note: in the interest of full disclosure, I work in Fulbright's marketing department.

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Creative Commons Releases the Public Domain Mark 1.0

The Creative Commons announced the release of its Public Domain Mark 1.0 (PDM) yesterday in an effort to help identify works on the Internet that are free of known copyright restrictions. The aim of the PDM is to assist teachers, students, artists, writers, and that aunt of yours that always asks if it is alright to post a Van Gogh painting on her website, in knowing what works are free from copyright restrictions.

Creative Commons already has one big PDM contributor on board. Europena – Europe's digital library, museum and archive – announced that it will work with Creative Commons on labeling works on its portal with the PDM symbol where that work is free of all known copyright restrictions. It seems to be the goal of Creative Commons to get more trusted participants to use this mark to help the public quickly know what works they can use without having to ask permission.

Hopefully, over time, more and more repositories of public domain works will adopt the PDM symbol in order to help the public understand that that specific work can be used, modified and distributed without the worry of someone or some organization coming after you later. Of course, my personal advice is that if you see this symbol on a piece of work that you use your own judgement to determine if the person or organization labeling the work with the PDM is trustworthy. If Europena or the National Archives places the mark on a piece of work – it's most likely outside of copyright protection. However, if "Bob's Blog" throws it up on a piece of work – you might want to verify that it really is in the Public Domain before relying completely on Bob's opinion.

Here are the guidelines of the Public Domain Mark 1.0:

No Copyright

  • This work has been identified as being free of known restrictions under copyright law, including all related and neighboring rights.

    You can copy, modify, distribute and perform the work, even for commercial purposes, all without asking permission. See Other Information below.
  • Other Information
    • The work may not be free of known copyright restrictions in all jurisdictions.
    • Persons may have other rights in or related to the work, such as patent or trademark rights, and others may have rights in how the work is used, such as publicity or privacy rights.
    • In some jurisdictions moral rights of the author may persist beyond the term of copyright. These rights may include the right to be identified as the author and the right to object to derogatory treatments.
    • Unless expressly stated otherwise, the person who identified the work makes no warranties about the work, and disclaims liability for all uses of the work, to the fullest extent permitted by applicable law.
    • When using or citing the work, you should not imply endorsement by the author or the person who identified the work.

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IBM's Jeff Jonas: "The Future Doesn't Look Like Tom Cruise in The Minority Report at All"

I just sat down and watched this video from IBM's Chief Scientist Jeff Jonas, and he gives us a lot of food for thought on why you should first master the concepts of accounting before you try to work on systems that attempt to make sense of data. The main thought on data, context and accumulation is that the future should bring us a system "where the data finds the data, and the relevance finds the consumer." My favorite part comes around 4:30 where Jonas references the way Librarians index information and weaves the information together like a puzzle gets put together.

If your interested in what the future has to hold for moving "big data" into relevant information that leads to smart decisions, then this is a 17-minute video that is well worth your time to watch. Jonas covers the following questions:

  • How important is understanding big data for our future? (0:17)
  • Why are organizations failing to understand this big data? (2:20)
  • Do organizations need to transition to an API-based approach? (4:15)
  • What can companies learn from casinos? (4:50)
  • Will the big data problems encompass the web at large? (6:28)
  • How does the emergence of many edge points influence this equation? (8:19)
  • What needs to happen on the back end to enable these changes? (10:08)
  • What kind of infrastructure is required? (11:08)
  • How does the social web impact big data? (12:24)
  • Can Google evolve to keep up with big data? (13:13)
  • What is the role of people and crowd-sourcing in big data (14:52)
  • What are the challenges of the future? (16:41)

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Public Libraries & E-Book Collections – Exactly Who Is This Serving?

"We're very 'Green' here.
The library's e-book collection is actually powered
by incinerating all those books behind you."
I look around my desk at work and I tick off all the technology I have in front of me.
  • Desktop PC w/side-by-side monitors … check
  • smart phone … check
  • iPad … check
  • e-book reader … check
  • laptop in travel bag … check
  • scanner … check
  • teleconferencing camera w/built in mic and speakers … check
  • multi-line telephone system with headset and hands-free capability … check
If access to technology were a tax bracket, I’d definitely be in that upper 2% range.

I also have a public library card in my wallet, and my username and password stored on my individually Wi-Fi enabled devices that allow me to connect to the wealth of resources that are available through my public library. Quite frankly, I’m a great consumer for my local library system and they are happy that I’m taking advantage of the resources they are providing to customers like myself. Although I am a great customer, I would not say that I am the typical customer of the public library. In fact, I would say that I am probably a tiny percentage of the overall customer base of a public library. The typical person that walks into a public library is lucky if he or she owns one of these items. Yet, if you’ve attended any online library seminars lately, you might think that everyone has a Kindle or an iPad or a smart phone … and that makes me worry a little.

A couple weeks ago, I followed the twitter hash tag (#ebooksummit) associated with the Library Journal’s virtual summit called “ebooks … Libraries @ the Tipping Point” and I became a little concerned that one comment that Eli Neiberger made in the opening session was getting retweeted a lot:
#ebooksummit — Nice quote from Eli Neiberger: “Libraries are screwed”
Oh joy … glad the audience grabbed a hold of that quote and put it out for the Twitterverse to see. Neiberger was discussing the issue of publishers moving from “ownership” (where libraries buy and own the books in their collections), to “access” (where libraries purchase licenses to use online materials, but they do not actually own the material.) This isn’t a new concept, but it is one that more and more libraries are looking at recently because with “access” you can typically have a larger collection for less money. In a time where public libraries are the “low hanging fruit” of a city or county looking to cut expenses, the “access” model looks good … at least on the surface. Once you’re locked into one of these access models, however, this is where the “libraries are screwed” comment comes into play.

Putting aside the “access v. ownership” issues, I found that many of the attendees at the virtual conference seemed to think that ebooks were absolutely the wave of the future for public libraries, and a general assumption that the community that the libraries served would eventually own their own e-reader (Kindle, Nook, Sony, etc) and that libraries had better get on board now, or they will get left behind in this ebook revolution. This is when I chimed in via Twitter and asked if this transition from libraries shelving books to a scenario where libraries have a majority of their collection available only through ebooks was really what libraries should be doing. 

According to a Harris Poll, 80% of adults said they had no plans to ever buy an e-reader. I even put out a link to the Forbes blog post that discusses this issue of e-readers out to the attendees to see why they could justify the transition from book collections to e-collections when only a fifth of the adults said they would even consider buying the devices needed to access that collection. I got two generic responses:
1. “It’s not for the adults … we’re making this transition for the children who love e-books.”
2. “Yes, only 1/5th will buy e-readers … the rest will read the books on their smart phones.”
After I removed my palm from my forehead, I mentioned that according to the same survey that said that only a 20% of adults planned on buying an e-reader, that number only goes up slightly (25%) when you asked 15 to 17 year olds if they ever plan to own an e-reader. If you go down to the 6 to 8 year olds, you finally get to a group where more than half “enjoy reading ebooks.” 

As for the “they’ll read them on their smart phones”, the percentages drop even further for this reasoning. According to a Forrester research survey, 82% of Americans own a cell phone, but only 17% of American own a smart phone. Even I had to look at that number twice … 17%?? That’s all?? I looked around my office last week and noticed that almost everyone had a smart phone holstered to their belts or clipped to their purse straps. When I looked around on the bus that I take to work, however, I realized that most of the people on the bus that had a cell phone, had a basic Nokia phone, and the most advanced thing they did with this was use it to place SMS text messages. 

I know that it is easy to fall into the belief that everyone will eventually get an e-reader, or some other device that will allow them to access a public library's electronic collection, but the anecdotal evidence that I'm seeing seem to point in the direction that only about a third of Americans will eventually have the resources to take advantage of these types of collections. Ask yourself these questions … how many of that 1/3rd are actually customers of their local public libraries? How many of the people that use and need the resources of the public library are going to benefit from the access to e-collections, versus the number that will see their true access to the collection actually diminish?

There is a saying that we use around here (generally when our Internet connection goes down, or the teleconference software stops in the middle of a presentation): "Technology Is Great … When It Works!" It is important to know that library collections are only "great" when the consumer that uses the library can actually use it. I hope that public libraries don't loose sight of this in their attempt to transition to electronic collections. 

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Elephant Post: How Do You Build Upon the Strengths of Your Firm's Administrative Staff?

How do you build upon the strengths of the administrative people within your law firm – from the mail room to the C-level? We thought of this question after we read a Hildebrandt Baker Robbins blog post called "One Word For Talent." In that post, Mark Sirkin brings up the fact that firms tend to divide the firm into "lawyers" and "non-lawyers," with the focus primarily on the lawyers when it comes to managing talent. We thought we'd expand the idea and give you a chance to talk about opportunities that firms have regarding those "non-lawyers" (some of whom are actually lawyers, just not practicing). This week we have the admin perspectives coming in from the IT Help Desk, IT, and Internet Marketing. Don't forget to take a peek at next week's Elephant Post question (it's a good one!!) at the bottom of this post, and send me your thoughts to share with everyone!!
IT Help Desk Perspective Three Steps to Build That Relationship Gene Hamilton First – learn to observe. I am frequently outdoors, and I also conduct many training sessions for volunteer leaders of the Boy Scouts of America. One training is designed to ensure that these adult volunteers can safely and effectively function in an outdoor setting, including rudimentary skills of plant and animal identification. We try to take some time just to do some undirected observation, after which we come back together and discuss what we observed. Watching, listening, smelling, touching and (occasionally) tasting are encouraged, within limits of safety. Invariably, there’s a whole new level of excitement in the room about things they just discovered, which have been hidden in plain sight until they learned to observe. Law firm application: Do you actually know the names and faces of employees in your firm, much less what they’re doing each day? Take the time to know and be known, and you’ll begin to see the abilities and strengths of people. Once you’ve established a relationship, others are more comfortable showing you what really happens in their area, and are willing to share their ideas and pent-up potential. Second – make sense of what you see. Back to the outdoors. Did you know that plants in the mint family have square stems? That one piece of knowledge can tell you whether that pretty plant in the nursery is one you want to plant in the middle of your garden. Hint: you probably don’t, without containment measures. Mint can be terribly invasive. Law firm application: Lots of things “just happen” within our firms each day. Learn about the larger context of job functions of your fellow employees. Third – encourage the wings, remove the anchors One more time, back outside. If you want the best vegetables, it’s not enough to provide sunlight, water and dirt. You’ll also need to keep the pest population under control. Law firm application: You, the trusted and increasingly knowledgeable partner (see what I did there?) have not only the ability to encourage effectiveness and efficiency, but the responsibility to remove the outdated and ill-suited. Sometimes those are processes, sometimes those are people. Eliminate a weakness along with building a strength, and you significantly multiply the potential effect of the positive change.
Information Technology Perspective Two-tiers is one too many Scott Preston I agree with Mark Sirkin’s point that law firms would do well to adopt a competency model that is inclusive of both practicing lawyers and those supporting the practice of law. If you examine companies that deliver impeccable service, you will find companies that have all employees taking ownership of the company. Employees who take pride in their work and are motivated, continue to improve processes and find efficiencies. Building upon employee strengths first requires that you recognize the strengths of individuals. It requires that you devise a plan to make the most of those strengths and that you execute that plan. Find what motivates the employee and make sure to incorporate that motivation into your reward system. Law firms typically use remuneration as their main source of motivation. The reason we are working is money, but is money the top motivator? Experts say: Feeling that your ideas are being heard, considered and valued is the top motivator. Feeling you are included in the decision making process or informed about what is happening and why is the next highest motivator. Feeling you are adequately rewarded (salary, continuing education, etc.) is the third highest motivator. Law firms that leverage one competency model, instead of the current two-tier system, will be able to deliver better service and become more efficient. And they will do it more quickly, because everyone is working toward a common goal, everyone feels included and everyone feels empowered to improve processes.
Internet Marketing Perspective Everybody Knows a Lawyer Lisa Salazar Get to know your people. Developing relationships with everyone from the file room to the C-level suite is not only good for morale, it can also be good for business. I recall an incident in which I was having one of the IT guys work on my computer for me. We were chatting while we were waiting for software to upload. Turns out that his daughter was in-house counsel for one of the biggest whales in an ongoing debacle. Needless to say, he became very popular over the course of the next few days. Another time, I was the recipient of that attention. Because one of the lawyers had befriended me, he learned that I had family that worked in legal for a large Fortune 500 company. When he needed access, he just called me. Yet another instance arose when I was chatting to our security guard. Turns out his daughter just graduated with her MBA and is now working for one of the largest media companies in the world and is on the fast track to upper-management. Don't you know I tucked that factoid into the back of my brain! So don't be so foolish to think that only lawyers spawn lawyers. In this day and age, everyone knows a lawyer …
Next week's Elephant Post Question: Consultants say that your job should be outsourced because of __________. Are they wrong?? This one is interesting because it gives you a chance to share why your department, practice or skill set is still an asset to the firm. Quite frankly, if you can't justify your own position, who do you think is going to do that for you?? If you have some ideas or suggestions and want to contribute to next week's Elephant Post, then send me an e-mail to discuss.

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Thoughts on Dropping Martindale-Hubbell Contracts

Seems that Client Relationship Management (CRM) expenses aren't the only perceived wasteful expenditures on a law firm's balance sheet. One other costly resource that firms seem to be taking another look at lately is their Martindale-Hubbell contracts. One librarian from a mid-sized Georgia firm decided to query her peers to see if they also thought that M-H was worth the investment. Although this isn't a comprehensive or scientific survey, it seems to show that the return on investment for Martindale-Hubbell doesn't seem to match up with the cost.

Hmm... anyone else notice that both the CRM and M-H products are touted as resources for the attorneys, but end up essentially as resources for the Marketing department??

Here are the comments from other librarians about the ROI of M-H:

One thought:  can the firm attorneys QUANTIFY how many referrals (how much business) they got in the past calendar year?  Versus where referrals and new business originated?  Was enough generated to offset the firm’s cost of listing?  You may have to piece this together depending on how your firm does things, but in-house data will carry far more weight than outside studies.

One reason we dropped was the lack of business M-H generated.

[from a corp. legal department] I don’t know if this will have any sway or not, but as a huge consumer of legal services from many, many law firms throughout the US, we do not use MH when making a decision on what outside counsel firm to use.  And we dropped our own listing last year.

Have you tried getting Marketing in on the "Drop M-H Bandwagon".  It worked here but the change came from Marketing since they were paying for it. I just verified that no one ever used it (housed in the library). Then we showed them how to access this same information on online.

A couple of years ago after we decided not to participate in Martindale, we had to make the decision again because the publisher gave us a free year.

I had an intern and a case clerk go through Martindale online to see which of the AmLaw 100 and 200 firms had listings in M-H and at what level. Don't "the powers" always ask what your competitors are doing?  You can see the results in the attached (now dated) spreadsheet.

We opted out and put the money into other marketing projects (like a refurbished website).

I have that MH in a budget too.  I think transferring it to marketing or some other department will go a long way to having the cost reviewed.  My attitude towards MH is completely indifferent when I don’t have to pay for it out of library funds.

This is a comment from our marketing director re canceling MH:

“I am happy to discuss with someone. It is a complicated discussion…but the evaluation we completed clearly indicated that the ROI on the dollars spent were no longer justifiable.”

I remember discussing this via email with the local law librarian group, and many had canceled MH. One reason is that many folks, both attorneys and the public use Google to find attorneys. Plus MH’s cost were too high.

I'm not sure whether your request has drawn much response.  If not, you just ask librarians to tell you whether their firm has dropped M&H.  I suspect that the resulting list would be a Who's Who of American Law Firms.

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"White Space Broadband" - Good For The Internet, Potentially Bad For Your Wireless Microphones

tap-tap... Is this thing on??
Way back in the day, I was a techie-librarian at Oklahoma City University School of Law. One of the list servs that I frequently monitored (and still monitor today) is the Technoids list serv which discusses technology issues that law school technology workers face. Last week, an interesting post came in from Ryan Overdorf from the University of Toledo College of Law that identified a potential problem concerning the FCC's approval of using televisions "white spaces" as broadband Internet access and wireless the microphones used in law school classrooms. For those of us in law firms, some of us use these same wireless mics in our conference rooms, training rooms, or trial prep courtrooms. Rather than try to interpret Ryan's evaluation of the problem, I just asked that he guest post today and relay the message directly.

Guest Blogger - Ryan S. Overdorf 

The FCC has finally opened up the TV white spaces.  The new Television Band Devices (TVBDs) hold the promise of providing improved high-speed broadband access at reduced cost.   For wireless microphone users who must share those white spaces, however, these benefits do not come without challenges. The FCC eliminated the proposed "spectrum sensing" regulation that would have required TVBDs to avoid TV channels where wireless microphones were actively operating.

Wireless microphones will be protected from interference by TVBDs only in channels specifically reserved for their use. The first vacant TV channel above and below channel 37 is reserved for wireless microphones nationwide. In some markets and under some circumstances vacant TV channels from 14-20 are also reserved for wireless microphones.

Manufacturers and vendors have been selling microphone systems operating on unreserved channels because they thought the regulations were going to include spectrum sensing. If you use wireless microphones operating on those channels, your options for mitigating the interference risk are limited. You can increase the microphone squelch in an attempt to suppress the TVBD signal. TVBD users may be able to select specific channels, and you could specify certain channels to avoid. You could also ask TVBD users to shut down their devices when your wireless microphones are in operation.

It is possible that all of these measures would fail. A TVBD signal may be too strong to be squelched. A TVBD signal may extend too far to make either specifying channel selection or requiring device shutdowns a practical solution. No one will know for sure until TVBDs come on the market and begin competing with wireless microphones for vacant TV channels.

If you use wireless microphones, the first step is to determine the channels of operation for your microphones. Consult your manufacturer's manual. Some manuals list specific TV channels and frequencies while others list only the frequencies. The FCC lists each TV channel and its associated frequency in 47 C.F.R. § 73.603(a) [PDF].

For more information, see the "Changing Channels: TV Spectrum for Wireless Microphones and Wireless Broadband" web page.

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Lexis Advance for Solos: What It Is... What It Does... And, Yes... Even What It Costs

Back in March, I wrote an "Open Letter to New Lexis.com" where I asked that they "let everyone know exactly who you are, what you can do, and how much you are going to cost us." Last week, I talked with Marc Osborn and Jorge Martinez of LexisNexis and they gave me a preview of the first release of the "New Lexis 1.0 Platform", called "Lexis Advance for Solos." It seems that the Lexis Advance people took my advice to heart and even told me that they re-read my open letter to make sure that they tell everyone exactly what the Lexis Advance for Solos is... what it does... and how much it costs. Over the hour-long conference, that is exactly what they did. Now that the embargo period is over, let me share with you what I learned.

Lexis Advance for Solos — What is it?

LAS Carousel
Lexis Advance for Solos (LAS) is the first public release of the new Lexis Advance platform, which LexisNexis developed as a completely new and separate platform from the existing Lexis.com platform. Just as with the WestlawNext product, there is a lot of changes in the look and feel of the product, but the most significant changes are on the back end of the product with new database structures, and re-engineering of the entire structure of the data, search and retrieval systems based on thousands of interviews, interactions, and evaluations by legal professionals. The team at LexisNexis has decided that they will launch the first iteration of the new platform only to Solo and Small Firm attorneys and will use this experience to build the next releases aimed at starting in 2011. 

So, what is the Lexis Advance for Solos? Here's a snippet of the press release that shows exactly what is in the product:
Comprehensive and fully enhanced primary law from all states: All available LexisNexis case law (Federal and State), including all LexisNexis headnotes and case summaries. All available statutes and constitutions (Federal and State) from all 50 states and US territories.
Shepard’s case citation service: The LexisNexis exclusive citator allows solo practitioners to quickly check if a case is good law.
The LexisNexis industry-leading collection of jury verdicts, briefs, pleadings and motions: Includes premium materials from IDEX.
LexisNexis CourtLink content: Includes the full collection of dockets.
Expert witness transcripts, depositions, and curricula vitae.
Additional content will become available in future Lexis Advance releases: news, public records, legislative and additional secondary materials, and other content will be available in subsequent Lexis Advance releases.
The "Additional Content" would most likely be an add-on to the Lexis Advance for Solos product, and would not be included in the cost of the core LAS product.

In addition to the products listed, the initial release also includs a core set of 24 treatise titles. I was not told specifically which titles were included, and I was specifically told that this was an introductory offer only, and when the initial contract ended, these titles would be an additional cost. The initial contracts could range anywhere from one to three years in length.

One other caveat was that this product would be sold to new customers only, or those where existing contracts were expiring. During the initial roll out of Lexis Advance for Solos, they would not attempt to renegotiate existing contracts. I'll come back to this later when I discuss how much LAS costs.

Lexis Advance for Solos — What Does It Do?

LAS Search Results w/Filter Options
The Lexis Advance platform claims to improve upon many features from the current Lexis.com platform (it also has a look and feel of the iTunes coverflow carousel to me):
Easy search: An intuitive single search interface that eliminates the need to select sources before searching, cutting out multiple steps in the search process. This simple feature enables a full search across all included content to ensure complete results.
Integrated results from the open web: Allows users to search the free Internet via Lexis Web along with premium content from LexisNexis simultaneously in a single step, efficiently delivering results organized by content type.
Pre and Post search filters: Gives users the control to get relevant search results faster and with more confidence that they will not miss critical information. By selecting pre and post filter criteria users are able to control and refine their comprehensive searches for additional precision.
New Innovations: My Workspace Carousel and Legal Issue Trail deliver entirely new and more efficient ways for users to access, organize and verify legal research.
Change Client Option
The developers and LexisNexis told me that this specific product was set up specifically with the solo and small firm attorney's style of practice in mind. The focus at this time is to allow for such things as ease of client tracking, foldering of research trails, and ease of transitioning between different clients without a lot of effort on the part of the attorney. Some of the features that are needed by large firms, but not usually necessary in solo or small firm environments (such as cost recovery tools) are not built into this release of Lexis Advance. Those bells and whistles will be coming in future releases.

Some of the bells and whistles that are included in LAS are:

Word Wheel
  • "My Folder" creation – Allows attorney to create and save search results, documents and notes within a LAS folder and can store that information indefinitely. (No folder sharing with other LAS users will be available in this release.)
  • Privacy Options for Folders – You can set up by default to 'hide' the folders on the screen to prevent "wandering eyes" from seeing what you are working on.
  • Entire Search History – Review your entire search history and retrieve previous research results quickly and easily.
  • "Word Wheel" – most searched queries on these topics. This helps with the search strategies and suggested search terms.
  • Boolean Search Still Available - Not all connectors… just the most used will be brought into Lexis Advance for Solos
Lexis Advance for Solos — How Much Does It Cost?

To be honest with you, I really didn't expect to be quoted a price on the LAS product when I talked with Marc and Jorge. When they came right out and said that the introductory price would be $175 per month for solos and $315 for a two-lawyer firm, I can honestly say that my head shot up from my note taking, and I asked them to repeat that to me one more time because I thought they just slipped up and exposed a corporate secret to me. After all the frustration involved in the WestlawNext release, and the obscure "modest premium" pricing fiasco, I was relieved and impressed that LexisNexis would come right out and say "this is our price." This isn't just the "street value" of the product, it is the actual "take it or leave it" price. Local sales reps do not have any authority to negotiate pricing (up or down). Again, after dealing with the WestlawNext pricing issues, and then having the sales force turned loose on the law firms with orders to basically "get as much as you can from them," this was a huge relief to hear that LexisNexis wouldn't be taking this type of approach on its new platform. Also, according to the press release, the product is set up so that "there is no risk of out-of-plan charges." So, taking the sales pressure off and then adding in the stability of knowing that you're not going to get a surprise invoice in the mail at the end of the month because you got into something outside of contract, should be welcome news to solos.

Note: The second lawyer pays $140. There is talk of allowing LAS to go to firms of more than two lawyers, but the initial press release seems to limit it to one or two attorneys.

Lexis Advance for Solos — Who's the Competition?
Since LexisNexis is going after new customers with this product, you have to ask yourself exactly who are they going to be competing with in this market? Of course, WestlawNext is one key competitor. For those solos and small firm attorneys that are sitting on the fence on making the switch to WestlawNext, the content and predictable pricing of LAS may entice them to make the switch to the new LexisNexis platform instead of the new Thomson Reuters platform.

Although WestlawNext seems to be who you think of as a traditional target for LAS, I think there is more competition on this end of the legal market than just the duopoly of LexisNexis and Thomson Reuters. Low-cost providers that sell primarily to solo and small firm clients, such as Loislaw, Fastcase or TheLaw.Net may find that LAS is directly going to be a direct competitor. Why would a solo or small firm attorney pay for these products when they could get a premium and well-trusted product directly from LexisNexis? Just think about what an attorney would get for $95 a month from a Fastcase product and compare that with what they get for $175 from LAS. The fact that LAS includes unlimited Shepardizing in of itself could give the justification to switch. Add in the reliability of the Lexis product, the fact that all cases, statutes and regulations are built into the Lexis platform (no linking out to state or federal websites for that data), and then add in Courtlink docket information and other products like IDEX, then you'd have to say that the products on the low-cost side of the legal research market have themselves a tough competitor.

Lexis Advance for Solos — What Does This Mean?

LAS Search Results Screen
I wouldn't have thought that LexisNexis would create a product to compete on this end of the market, but after thinking about it, it does seem to be a niche that has a lot of customers, and is a full of potential for LexisNexis in expanding its customer base beyond the high-cost market of larger firms. On the surface it sure seems like a smart move on LexisNexis' part. It will be interesting to see how this effects the low-cost legal research market over the next couple of years.

I've only seen snippets of the new Lexis Advance for Solos, but I was impressed with what I was shown, but more importantly, I was impressed with what I heard from the people at LexisNexis. It does sound like they took the advice I gave them in the "Open Letter to the New Lexis.com" to heart. Whenever you launch a new product and you can tell me what it is, what it does, and how much it costs, then you've already cleared three major huddles in getting my attention and keeping it. If Lexis Advance for Solos turns out to be what Lexis is saying it is, and they continue to shoot straight with their potential customers, I think they may just have a winner on their hands.

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In Nine Days... We Will Finally Know The Answer To The Universe

Someone pointed out to me today that October 1, 2010 is 10/01/10 (for us Americans, anyway) and they were surprised that Google hadn't done something wacky with their logo today. The assumption we both made was that Google will probably wait until 10/10/10 (that works for non-US dates, too) and will be creative that day.

I got to thinking about the two numbers and did a search on "The Great Oracle" (aka Google) to find out what the binary equivalent to these numbers represented. Turns out that:
Oct 1st:     100110 = 32
Oct 10th:   101010 = 42
As any geek worth his or her salt knows, "42" is a very significant number. According to our instructions found in the Hitchhiker's Guide to the Galaxy, the "Answer to the Ultimate Question of Life, the Universe, and Everything" is... "42"

So, perhaps The Great Oracle known as Google is not simply going to impress us with a logo that combines some variation of Google + 101010....  Oh No!! I'm thinking that nine days from now, we will finally be told the answer to the Universe!! (of course, I could be wrong and they just do something goofy with the logo again... but, you can always hope!!) Hopefully, Google won't tell us to come back in 7 ½ million years to hear the answer.

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Elephant Post: What Would You Tell a Law Student Before They Enter the 'Real World?'

"If I could talk to a class of law students, this is what I would say that would help them once they enter the 'real world' of working in a law firm."

Everyone seems to be picking on the way law schools prepare their graduates for the work force... but, what exactly would you do to help prepare graduates for the "real world?"

This week we have a variety of legal perspectives coming in from the solo/small firm, client services, business development, information technology, Internet marketing, library, and human resource angles. The common threads seem to say that there are opportunities available to new lawyers, if you just take the time to think, ask, act and build upon those opportunities.

Thanks to all our contributors this week. As with every Elephant Post, we will list next week's question at the bottom, and hope that you'll take advantage of this opportunity to contribute.

Solo / Small Firm Perspective

You'll Have Enough Debt From Law School, Don't Add To It!

If you are setting up a new private law practice, just remember that every dollar you do not spend is a dollar you do not have to earn and, in a very real sense, every dollar of overhead ultimately comes out of the take home pay of the lawyer (or partners). So be very thrifty in setting up your new law office. Go to some auctions or other sales and look at good quality used furniture, for example.

Client Services Perspective

Solve A Real Person's Problem
Ayelette Robinson

Take a clinic – When you start to practice, what will set you apart from everyone around you is your ability to provide exemplary client service. Taking a clinic will show you what it feels like to see your client’s face as they express that they need your help, and to want to be the person who can help them. Especially for those who go to big law firms, you may not meet a client for months or even years, and doing work because your boss says so is a completely different feeling from doing work because you know that you have the knowledge and ability to solve a real person’s problem. The latter is what triggers you to provide highly personalized, detail-oriented client service that sets you apart from the pack, both at a big firm where you're being compared against other associates, and as a solo or small firm practitioner where you expect to get clients by word-of-mouth.

Business Development Perspective

How You Develop Relationships Will Determine How Well You Do as a Lawyer
Toby Brown

Dear Law Student,

The next time you are sitting in class, I suggest you take a minute and look around you. Although your success in law school will come from the attention you have been giving to the professor, your success in building a law practice or career will come from paying attention to those in the seats around you.

In other words, your professor will not be sending you any work once you become a lawyer.

Those in the seats around you will be the in-house lawyers of the future who decide who gets their work. They will be the law firm partners who help you land a job as a general counsel. They will be the government attorneys who decide on project assignments.

In short, it will be your network of contacts that will be the deciding factor in how successful you are as a lawyer. Going forward good technical skills as a lawyer will not be enough. Your ability to develop and foster strong relationships will be THE determining factor in how well you do in your legal career.

Those relationships start now.

My advice: In addition to doing well on your exams, spend time getting to know your colleagues. You will be rewarded with lasting friendships and valuable professional relationships.

Now you can turn back and pay attention to the lecture.

The Human Resources Perspective

If You Want To Know How You're Doing... Then Just Ask!
Greg Lambert
[note: this is a combination of a couple of HR perspectives who wish to remain anonymous]

You have decided to make the legal profession, your profession. For those of you that have worked hard, studied hard, and, quite frankly, are lucky enough to land a job right out of law school, let me be the first to congratulate you, and give you some things to think about as you go forward.

Statistics show that 80% of you will leave your first law firm before your fifth year with the firm. I’ve found that there is a consistent theme that resonates in the exit interviews of most of these departing associates. Most believe that they were not being mentored sufficiently by the partners they worked with. At this point in the exit interview, the associate would lean in, lower their voice and tell me stories of how these partners never pulled them aside and said “hey, you’re doing a great job” or “you really need to work on ‘X’ skill because this is important in this area of the law.” Then they would lean back in their chairs, raise their voices back to a conversational level and explain how this lack of communication was one of the contributing factors in why they were leaving the firm.

When I ask if they have ever sat down with any of the partners they worked with, they would stare back at me for a few seconds, and then start rambling on about how it wasn’t their responsibility to ask the partner how they were doing… it was the partner’s responsibility. I would simply smile at the associate, but in the back of my mind I’m thinking how frustrated the associate has become and how simple it would have been for them to just go ask the partner for some feedback. I guess at some point it becomes easier to leave than it does to ask.

My advice to law students is to not become these associates. Yes, in a perfect world, the partners would sit you down and explain to you what you are doing well, what you need help with, and what areas you simply fail to comprehend. But this isn’t a perfect world, and partners tend to focus on their work more than they do managing associates. Sorry… that’s the truth and what you will most likely encounter when you start working.

Fortunately, these same partners will usually take time to answer your questions, if you only take the initiative to ask them. It may not be a formal sit down process, or a bullet-point presentation that lays out exactly what your strengths, weaknesses, opportunities and threats are in your work performance. In fact, it will probably be a few comments (maybe over lunch or late-office dinner), that points out a few things you need to work on, and a few things that you’ve done well. Take those comments, work on them, and from time to time, follow up with that partner to see if you’re improving in those areas.

If feedback is important to you, then occasionally ask the partner how he or she thinks you are doing and what you could do better. It takes at least two people to have a conversation. As you move into your career as a lawyer, remember that you have just as much power to start that conversation as the partner you’re working with does. Take advantage of that power.

Information Technology Perspective

Embrace law firm culture, it will be noticed
Scott Preston

Partners notice technologically proficient associates, especially associates who work within the provided framework of a firm. Moving from a law school to a law firm is a big change and one such change is the way you use technology. Adapting to the culture of a firm includes using technology in a way that makes it easier to find and share information.

Find the time. Take advantage of training to understand how the firm’s technology works and how you will benefit from using it correctly. Using Microsoft Word on your personal computer in college does not prepare you to work in Word within a law firm. Most law firms use document templates and macro packages to help create consistent looking documents.

Find the gold. Understanding how to find and leverage the institutional knowledge of a law firm is very important. You must know how to produce quality work product quickly.

Find the players. Law firms have many great resources available to attorneys.
Professional Development: If you have a Professional Development department, take advantage of it. Professional Development will help you understand how to stay on the Partner track.
Library Services: Librarians are very resourceful and well-versed in research. Spend time with them in order to find their strengths, their data sources and which online services are available to you.
Knowledge Management: Knowledge Managers will help you find the golden nuggets of information that are stored within a law firm and they are also helpful in streamlining workflow.
Human Resources: Something new to law students transitioning to a law firm is having a secretary. Interacting with your secretary can be challenging and most young associates probably have little experience in this area. Talk with your HR resource about interacting with secretaries.
Information Technology: Get to know your local IT resources, they will be happy to help you. Share your previous experience with IT, this will help them better understand how to bring you up to speed with the firm’s systems.
The best opportunity you have to learn this information is when you first join the firm. Take advantage of this time and become an important part of the legal team.

Internet Marketing Perspective

You're Already Marketing Yourself - So Think Before You Update Your Status!
Lisa Salazar

Would you rather live in infamy or fame?

I thought so.

So next time you or your friends are thinking about posting up those super-fun photos of you in your cute little Halloween outfit and bobbing for apples, think twice.

Those Facebook photos can live for a very long time.

And start your LinkedIn profile now. You are already writing articles, are members of professional organizations and alums.

Just think of it as the adult version of Facebook.

Library Perspective

Did you know...
Mark Gediman

Did you know...

Lexis and Westlaw aren't free for law firms?

The only enticement you get to use either service in a law firm is a free meal?

Firms frown upon charging these expensive services to nonbillable or administrative numbers?

To get an offer, you need to use these services as efficiently (read inexpensively) as possible?

The first words out of my mouth during orientation is the annual amount the firm spends on online research services.  Now that I have their attention, I then explain the pitfalls of inefficient research.  Now that I have them sweating, I proceed to show them how to efficiently use the services and to offset the firm's costs at the time.  By the time I'm done, most summer associates don't want to even log on to the service.

Are  my methods draconian?  I don't think so.  if I save one summer associate from charging $2300 to a client, I've accomplished three things: 1) Prevented the firm from losing said client, 2) prevented the partner from having an aneurysm and 3) helped that summer associate earn an offer.

Now, you might say "But Mark, isn't it counter-productive to purchase services you don't want people to use?"  It would be if i let it end there.  I follow up this spiel with a series of lunch presentations on researching specialized topics using these services efficiently as well as one-on-one coaching from the Library staff.  We offer assistance to composing the search before they log in and work with our vendor representatives on an ongoing efficient research program throughout the summer.

Now, to close:

- Lexis & Westlaw are not free
- Being an efficient researcher is the key to a successful law firm summer
- The Librarian is a summer associate's best friend

And most importantly, TaNSTAFL - There is no such thing as a free lunch (or dinner or baseball game or Broadway show or...)

Next Week's Elephant Post Question:

How do you build upon the strengths of the administrative people within your law firm – from the mail room to the C-level?

We thought of this question after we read a Hildebrandt Baker Robbins blog post called "One Word For Talent."  In that post, Mark Sirkin brings up the fact that firms tend to divide the firm into "lawyers" and "non-lawyers," with the focus primarily on the lawyers when it comes to managing talent. We thought we'd expand the idea and give you a chance to talk about opportunities that firms have regarding those "non-lawyers" (some of whom are actually lawyers, just not practicing).

If you have some ideas or suggestions and want to contribute to next week's Elephant Post, then send me an e-mail to discuss.

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Why it is the General Counsel's Job to Secure E-Communications, Not Just IT's

Steven B. Roosa, partner with ReedSmith, wrote an enlightening client alert yesterday explaining that in the business world that requires secure communications over the Internet, it requires the company's General Counsel to step up to that task. The alert focuses on attacks on electronic information conducted through websites that use the "Certificate of Authority Trust Model" (CA Trust Model). Once you read Roosa's explanation of the holes found in the CA Trust Model, it will make you think twice about just how secure your electronic transactions really are.

Roosa points out that there are three major flaws in the CA Trust Model:

  1. Way too many CA providers.
    Your browser trust more than 100 by default.
    There are over 600 global CA providers.
    Some are connected to governments or quasi-governments that you wouldn't want to deal with.
  2. Even legitimate CA providers have proven themselves incompetent in providing secure transactions.
    They poorly configure their digital certificates.
    They've issued digital certificates without checking if the entity requesting it is legitimate.
  3. Any of the CA providers can issue bogus, yet technically valid digital certificates to any website.
    In other words, a crafty hacker could be issued a legitimate digital certificate for a legitimate bank, even though the hacker has no relationship with the bank.
With all of these issues surrounding how secured, encrypted communications on the web, Roosa advice for General Counsels is that they work along side their IT departments to make sure that they do not leave themselves open for "phishing" or "man in the middle" types of attacks that can come from untrustworthy CA providers:
As an initial matter, it is important for General Counsel to determine which outside organizations can be trusted with the security of the organization. Although the IT department should certainly be involved as well, it is a task that is most appropriate for General Counsel because it requires legal and investigative resources to: assess the criminal and regulatory background of the CAs, analyze affiliations with state actors and quasi-governmental entities, and determine the governing law that controls the CAs' conduct. The goal is for the organization to configure its browser platform so as to trust as few CAs as possible, and to "untrust" those CAs deemed to be unnecessary or untrustworthy. Additionally, the IT department may wish to explore the use of various plug-ins and software add-ons to assist in the detection of CA irregularities and CA-based attacks. Finally, businesses can also engage a CA in dialogue regarding the CA's practices, both with respect to adherence to best practices, and also to address the issue of whether, or to what extent, the CA trusts other CAs. 
Seems like solid advice. I'm wondering how many GC's will actually follow this advice and work along side their CIO's to identify which CA providers are trustworthy and which are not remains to be seen. I'd suggest that CIO's need to send a copy of Roosa's article over to their GC's to stress the importance of working together on this one.

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