Image [cc] Cory Holms

A couple of weeks ago, I sat in on a webinar with a number of Alternative Fee Arrangement folks, including consultants and General Counsels from a few major companies. The talk was the typical discussion of change in the industry, need to adjust the billing structure, AFAs… yada yada yada… the legal industry is saved from itself. However, there was one little nugget of information that came out of the discussion that made me think about how we in the law firms communicate with our clients, and how that communication frustrates clients because we are reactive in our approach to our clients’ needs, rather than proactive. Although I’m paraphrasing, here is the gist of what was said on the webinar by the General Counsel:

One of the things that really frustrates me when dealing with my outside counsel is when we get sued and over the next few days I start receiving a steady stream of emails from those outside firms, as well as other firms that aspire to do work for us, saying:

“Hey, did you know you’ve been sued in ‘X’ Court by ‘Y’ plaintiff?? Please contact us to help you with this case.”

First of all, HELL YEAH I KNOW WE’VE BEEN SUED!! This type of communications of after-the-fact issues doesn’t help me as a General Counsel.
What I really want to see one day in my in-box is this from my outside counsel is:

“Did you know that your direct competitor, ‘X’ Company, was sued in ‘Y’ court for the following issues, because they were exposed the the following risk factors, and if you think you and your company may be exposed to those same factors, let’s sit down and talk about what we can do to mitigate those risks before you are sued for the same issues.”

That’s what I want to see!

It’s similar to what I heard Richard Susskind say at the AALL Conference this week about the fact that law firms need to be acting as guardrails at the top of a cliff, and not as ambulances at the bottom of that cliff.
As a librarian, and as someone that thinks about how we can get the right information to the right people, at the right time, I started to think about ways that we could help our attorneys get that type of information and can become a risk guardrail for their clients. I thought of all of the Business Development and Competitive Intelligence resources and tactics that we use, and in a way, we are set up to do this very type of proactive communications, and we can be there to help the attorneys spot issues that affect specific clients, their competitors and their industry. However, there is one area that I think we could actually use help with when compiling this information, and I’ve been bouncing an idea around in my head (as well as bugging anyone at the AALL Conference in Boston who would listen to me.) The idea is that what we really need on staff is a reporter.

There are a couple of reasons why I think a reporter would be valuable. First of all, reporters are great at fact gathering, but they are really good at analyzing those facts and coming out with a clear story at the other end. They are also not afraid to pick up the phone and call people to verify issues and obtain additional details that aren’t laid out in the fact set. The second reason that I thought about bringing reporters in on staff is the fact that they are suffering, as a profession, probably on a greater scale than any other information professional, and there are some great experienced reporters out there that are needing work. 

Here’s my rough idea… feel free to poke holes in it, or add your own ideas if you think I’ve missed a few other opportunities to bring into the fold of a law firm.

I’d like to put a reporter on a project that covers four or five practice groups and have them create a weekly update that covers the important issues that face the clients of those groups. The practice groups would need to narrow the focus of which clients, industries and issues they would like to follow, and they would need to be willing to work with that reporter to make sure he or she stays on top of any new issues that pop up from time to time. The Library staff could also work with the reporter to make sure news alerts, case filings, and other timely information is fed to the reporter throughout the week. At the end of the week, an article (or articles) are written and edited, and then sent on to the practice group. This type of proactive, narrowly focused, reporting can help alert the attorneys on issues that affect their clients, and help them craft a few of those “guardrail at the top of the cliff” emails that the General Counsel said he would like to see.

In a way, this would be like a Law360, or industry specific news type of articles, but crafted specifically for the practice group and its clients. In my discussions with a number of vendors this week, we tried to think of ways that we could purchase this type of narrowly tailored information from vendors, but really couldn’t think of ways that they could serve the large pool of law firms and attorneys, and scale that down in a way that gives them actionable information specifically focused on their practice group, their clients, and their clients’ individual risk exposures. In order to have that, firms need that expertise on staff… and that type of expertise is exactly what a reporter could bring into a firm to help them build proactive guardrails for their clients.

Earlier this week, I had the honour of attending the SLA (Special Library Association – for the non-librarian 3 Geeks crowd) Annual Conference in Chicago.  As one of the competitive intelligence guest Geeks, it should come as no surprise that I mostly spent my time at the CI Division sessions.  Each CI session was was better than the last. Topics ranged from Cross Cultural CI (how to get information, collaborate, and understand various cultures when doing CI) to the Evolving Role of CI in Law Firms (a session I would imagine would be of particular interest to the 3 Geeks subscribers).  Sessional information, including presentations, will be available here in the next few weeks.

In the mean time, I wanted to share a few highlights in no particular order:

·    Special librarianship is alive and well. We keep hearing about layoffs, decreasing budgets, shrinking floor space and such across libraries.  That all may be well and true, BUT the rallying power of librarians is astounding.  New titles are popping up, new roles are being created, and librarians are leading that change. The energy is amazing.

·    Big data is coming to a library/information centre/shop near you.  Get in front of it.  Start thinking about how you can help your clients manage and understand their data.  We need to think beyond taxonomy, even beyond knowledge management, to something tangible and actionable.  Internal and external data are the keys to AFAs, increased productivity, and competitive advantage.  Harnessing big data will be the differentiator for law firms in the next several years.  Librarians with their information knowhow need to be involved in this process in firms.

·    Get embedded.  We’ve heard it before and it is starting to stick.  Building relationships from the inside is central to garnering trust, and being able to provide proactive information. Even if your firm doesn’t operate on an embedded basis, keep your pjs nearby, and invite yourself over to the slumber party when the opportunity presents.  Figuratively, of course.
·    Librarians can do CI and can do it VERY well.  Wednesday morning, the last day of the conference, at 8 a.m. no less (following the famous IT Division Dow Jones Sponsored Dance Party), Michel Bernaiche of Aurora WDC and Chairman of the Board at SCIP and Fred Wergeles, a SCIP fellow, presented a workshop type session on analytical tools that deliver value.  The librarians/attendees learned a couple of new tools for analysis, but the real learning came when the participants blew the panelists away with their ability to digest, synthesize and pull out the actionable tidbits of information – i.e. intelligence.  Don’t be afraid of doing CI, embrace it.
·    Social media is not a trend.  For several years now, there have been sessions at all manner of professional development conferences related to social media.  SLA 2012 was no different.  Social media, whether you personally engage or not, is not going away.  And if you don’t believe me, check out the twitter stream #slachicago from the past week.  Or check LinkedIn updates or Facebook statuses.   Like it or not, if you don’t yet have a strategy to deal with it, get one.  There may even be an app for that.
Roles are changing, responsibilities may be increasing, and the data sources are becoming more layered and hard to control. But, whoa is not (or shouldn’t be!) you.   It is an exciting time for law librarians/information professionals/law firm CI practitioners. 

For those of a certain age, the phrase “I read it for the articles” will resonate. Well … I was reading Above The Law this week and stumbled on a substantive article (since I read it for the substantive articles) on law schools. It was actually a thoughtful piece on how ABA accrediting standards have locked law schools in to their current model – which everyone seems to agree is broken. The author had been to a conference on the subject and not only did everyone agree, they were offering viable alternative models that unfortunately run counter to the current accrediting model. 

One statement particularly stood out to me, “Does any school want to sign up to be the first “second tier” practitioner law school that only gets one year of tuition from would-be lawyers instead of three?” It stood out since I read something similar-sounding from the NY Times Economix blog on lawyer salaries, “Not paying the standard top-tier salary is a tacit admission that you’re no longer top-tier.”

So law firms and law schools are in what appears to be a no-win situation (a.k.a. The Kobayashi Maru). If you are the first firm or law school to embrace a new model, you lose. But if you don’t embrace a new model, you still lose. Before you jump to the comments section at the end of this post, let me further explain my thinking.

Now many people feel $160k is outrageous for first-year lawyer salaries. For argument’s sake, suppose something like $80k might be a more reasonable number. But imagine a large firm that drops its starting salary to $80k. Even if this firm provides candidates with significant bonus opportunities, an intensive professional development program and no billable hour requirements for the first three years, how many and which graduates will opt for the $80k deal? And remember, these people have $100k in law school loan debt.

Or imagine the firm that tells its partners their comp is being changed to a base salary, performance bonus, and equity reward program. Will partners with sizable books of business sit back and accept that, or are they more likely to jump to another firm and retain their current (known) incomes?

Those who know me know I am a strong voice for change. But seeing these statements brought home the challenge of being the first to change. Yes – eventually these changes will bear fruit for market participants. It’s just that being first may have extreme risk, with only moderate short-term rewards.

And we all know how lawyers love taking risks.

Every year there seems to be a hot topic revolving around some action taken by the American Association of Law Libraries (AALL) Executive Board as we head to the annual meeting. This year is no exception, and the topic involves the expansion of defining who can be a full-fledged member of AALL and what this means for the Association as a whole. I love a healthy debate, so I’m looking forward to talking, arguing, agreeing, compromising where possible, holding my ground where necessary, and then taking action when the discussion is over. As someone that was elected to the Executive Board last year, it is the very thing I signed on to do. Before we all pack up and head to Boston and meet up with our peers, I wanted to put a few personal comments out there on my stance on the issue, and when you see me in the Vendor Hall, or conference rooms, e-board meeting, or even on a tour of the Sam Adams brewery, you can come up and give me your take on the issue, and we can have a healthy debate.

Of course, the usual disclaimers go here, such as, these are solely my opinions are are not a position taken by the full board, yada, yada, yada…

First of all, the issue came up that AALL should restrict membership by adding a category that would essentially ban any member that worked for a vendor from holding any elected office, or be selected by the AALL President or Executive Director to a committee position. The category was created because there were law librarians that worked for vendors, and let’s not kid ourselves, the vendors were Westlaw and Lexis, that held themselves out as full-fledged members because they were law librarians that have gone from one of the three main types of law libraries (Academic, Private, or State-Court-County) and made a career change to go work for Wexis. They still considered themselves law librarians, and wished to be active in AALL as a law librarian who just happened to now work for a vendor.

The initial definition of the “less than full member” category expanded beyond the vendor role and was so narrowly defined that is basically excluded anyone that didn’t work in the four-walls of a brick-and-mortar law library. In my opinion, and one that I voiced loudly, AALL should be proactive in expanding the definition of our membership and not attempt to close ranks and be more exclusive. I didn’t think that this type of membership was necessary, and in fact, I thought it would cause much more damage than good. Instead, I believe that we need to be ahead of the curve in the change in our profession and start welcoming in members that have a vested interest in our profession, regardless if they sit in the library, within a practice group, have moved on to become Deans of a Law School, or have moved on to work for a vendor within our profession, but still consider themselves law librarians.

I know that there are talks out there on listservs and blogs that this exposes the Association to risks of vendors having more influence over the Association by putting their employees in key positions of power. I will argue that I think this is a risk worth taking. My friend, Joe Hodnicki, joked that someone like Dick Spinelli could be AALL President for Life if he wanted to (and anyone that knows Dick, knows that he is one of the most respected and well-liked people in our profession,) even though Dick works for one of the larger vendors in our shrinking vendor pool. If we were to get Dick nominated, and then elected, I think he’d be great. I also think that scenario is one that wouldn’t play out for many years, if at all, due to the adversarial relationship that has happened between AALL Members and AALL Vendors over the past few years. (That’s another topic that you can discuss with me while standing in the line to get another beer at Sam Adams.)

My thoughts on creating a rule to exclude Vendors from participating in decision making roles within the organization falls back to a basic belief that I have that we shouldn’t make up rules simply to protect ourselves from ourselves. This is what I think this rule would accomplish, keep us from having the ability to decided if we wanted someone in a position of power that happens to work for a vendor. I’ll use another friend of mine as an example. Sarah Glassmeyer is a law librarian that went to work for CALI last year and would therefore be excluded from full membership because she would no longer be considered a full-fledged law librarian. I think it would be a shame to have something like this happen, because I think Sarah is one of the brightest minds and forward thinkers of our profession, and she has experience and insights that would be beneficial to the Association. However, she would have to stand on the sidelines because we made a rule that prevented us from even having the ability to choose her for a leadership role. I have enough faith in our membership and our organization to make good decisions when the time comes, and I don’t think we need to enact rules that strip that ability away from us just because we are afraid we might make a bad decision sometime down the road.

So, there… that’s my simplified opinion of expanding the definition of a member of AALL. Feel free to come up to me and tell me I’m wrong, or that I hadn’t thought of something, or to offer to take me out for a beer. I prefer that it be some kind of combination of the three.

I also wanted to quickly talk about the issue that the AALL Executive Board tried to sneak this change in the by-laws through on the sly and that there was some sort of hidden agenda from our Chicago meeting. I can assure you that this was not something that the Board was trying to sneak through. I think there has been lots of folks out there that have come to the same conclusion as I have, and that everything we discussed and voted on was in the Board Book, and available to all members as required by AALL rules. Some argue that the issue was buried in the Board Book, and I have to say that I think that isn’t true. There is a nice Table of Contents at the beginning that points to the items discussed and voted on (there weren’t that many despite the size of the book) and the language and results were there for any and all to see.

That being said, I will say that I’ll bring up the issue of how these types of topics, especially by-law changes, can be better communicated to the members once the Board has acted. However, one of the things that we all have to realize is that we elect members like myself to these positions so that the decision making process can be handled in a way that moves things forward in an orderly method. It is how the Association is set up to run, and there will be times when the Board takes action on behalf of the membership that some will not like. It’s all part of the good and bad that comes along with having a Board and electing them to their three year post. Things can be better, and communication can be better. I’ll discuss this with the other members when I see them in Boston and we’ll find ways to make it better. I can tell you that, to a person, everyone on the Board that I work with has very good intentions, and no one would attempt to bury any issue that comes before us. To say otherwise is simply not true and is pure conjecture on that person’s part. Again, feel free to debate me on that.

I’m sure there are a hundred other issues that I could bring up, such as rewording the language of the draft, how and when the full membership vote will happen, etc., but I need to finish putting my bags in the car and finish my road trip to Boston. Look me up in Boston and we can talk about anything you want. I look forward to seeing everyone there. If you are not going to Boston, then feel free to carry on this discussion via my email, and I’ll get back with you if I have a few moments while at the meeting, or once I make it back to Houston.

Last week I posted on how recent DC Bar opinions would cause clients to have to pay for more lawyer time. I don’t think the DC Bar was attempting to directly protect the lawyers’ market from e-discovery vendors, but instead saw that protection as an unintended consequence. As a result of the post, I received a few requests to explain my position. Being a former mandatory bar guy, I explained that ethics opinion committees, when ask to clarify a rule for a given situation, will typically go with the most ethical answer they can find.

In the DC situation, the question involved the “adequate supervision” of people performing lawyerly tasks (lawyers or not) employed by a non-law firm – in this case those doing first document review with e-discovery vendors. The answer was the higher bar, stating that 1) a DC lawyer must make the final choice of personnel, and 2) a DC lawyer must supervise the personnel involved. As well, the DC Lawyer could not be employed by a non-law firm and has to have a direct attorney-client relationship with the client. The result is clients being forced to spend more on the service, in order to provide better protections for … the client.

So Greg, Ryan and I were in the pursuit of a three-beer solution when we came up with the idea for the: Ethics Opinion Question Challenge. The Challenge is to submit ethics questions to bar ethics opinion committees that force bars to release ever more restrictive ethics opinions. We think bars are at the back of the line when it comes to adapting to a changing market and this will force the issue with them, bringing them in to this wonderful mess the rest of us our dealing with. However, as a warning we should point out than an ‘unintended consequence’ of this challenge may be result in a smaller, protected market that belongs exclusively to lawyers.

Here’s an example to help participants in The Challenge: In DC, submit follow-on clarification questions related to the selection and supervision of non-law e-discovery vendor personnel. For selection – Does the final selection process need to include a full interview and verification of qualifications? It likely will, since the existing requirement for the lawyer to make the final selection implies the e-discovery vendor is not to be trusted. So the lawyer will need to conduct their own, independent review of the candidates. For supervision – Will the lawyer need to be on-site with the e-discovery personnel to supervise them, or can she supervise by occasionally checking in on them? Again, the best protection for the client will be on-site supervision.

Now here’s one trick to The Challenge. If the burden of extra effort in maintaining higher ethics falls mainly to the lawyer, the resulting opinion can backfire and be less protective for the client. In our example above, we end up with more billable hours for the client to pay. As a counter-example, ethics opinions on protecting electronic client communications came out saying no extra protection was needed. In this circumstance, requiring lawyers to employ encryption would only put a burden on … lawyers – and not lead to an increase in billable time.

So … there you have it, the Ethics Opinion Question Challenge. Feel free to post your questions here, or send them directly to your own ethics opinion committee. By the end of the year, we should have numerous opinions helping better protect the interests of clients.

Image [cc] Helico

While having an off-the-cuff Twitter conversation the other day with my friend Sarah Glassmeyer, regarding if technology and open access can transform us as a society and make us better people. My tweet was joking about how 95% of librarians believe that Open Access publications is delivering benefits to society, and that they support Open Access. My snarky addition to this was to add in “and the other 5% are really mean librarians!”

I received an interesting view from Nicholas Schiller on how he thinks that technologies may advance, but jerks will still be jerks regardless of the technology. Although I understand his reaction (jerks will be jerks regardless if they weld a club, a gun or a keyboard), but I’m still one that believes that in the end, we all would tip the balance of things against the jerks, and allow the better parts of humanity to win. To back this up, I’ll point out two stories. The first was actually brought to my attention by Nicholas Schiller, and the other was how someone was wronged, twice, yet the good in society helped turn that into something impressive

Anita Sarkeesian and the Misogynistic Corner of the Gaming Industry

Schiller pointed directly to what happened to Anita Sarkeesian when she attempted to conduct a Kickstarter project for $6,000 to produce a video on five common stereotypes of female characters in video games. The backlash to this project was unbelievably viscous, but the backlash to the backlash… made me think that there is some hope for us after all. It also reminded me of another story where good triumphs over evil, and in the end makes me feel a little bit better about humanity in the age of the Internet.

You can read more about Sarkeesian’s story at her website, but the breakdown of the situation was that there were some members of the gaming community that did not like even the idea of someone questioning how female characters are stereotyped in video games, and they left thousands of demeaning and misogynistic messages, and let loose with a horrific barrage of images, denial of service hacks and messages across the Internet against Sarkeesian and her project. It exposed the worst aspects of one part of our society, and the whole situation was a black-eye on the gaming industry, in my opinion. Especially since some idiot in the gaming world created a game that allowed the player to give Sarkeesian a black eye.

The backlash to the backlash, however, was something that we could be proud of. The bloggers and online media picked up on what was happening to Sarkeesian, and exposed what was happening as a pure hate crime toward someone that hadn’t even created anything yet. They placed a spotlight on the gaming industry and its dark little corner of men that “just don’t get it” that someone might think that the way they display and treat women in their games may be offensive to others. Most impressive, however, was that Sarkeesian’s previously subtle $6,000 project became a huge $159,000 project supported by nearly 7,000 individuals across the globe. Kind of a reverse Streisand Effect for Sarkeesian, and a win of good over evil against those attacking her.

I think that this video does the best job at explaining good vs. evil in this situation:

Matt Inman, FunnyJunk, Stupid Lawsuits, and $211,223 for Charity


I’m sure that most of you have heard of Matt Inman of Oatmeal.com and his pointing out that the website FunnyJunk was taking his material off of his website and repackaging it as its own without any permission. The reaction from FunnyJunk was to sue Matt Inman for some asinine reason. So, poor Matt not only has his content ripped off… he has the pleasure of dealing with a lawsuit from these jerks asking for $20,000 because he pointed out their actions. It was enough for most of us to scream out WTF!??!

Luckily for the better nature of humanity, Matt Inman did something that turned a twice bad situation into one that created 211,000+ good situations by raising donations for charity to spotlight the stupidity of what was going on, and expose a jerk for being a jerk (in this case, both FunnyJunk and the Lawyer, Charles Carreon.) The pièce de résistance was Matt taking photos of the cash he’d raised in the shape of a big FU to FunnyJunk (I’m sure he was just attempting to spelly FunnyJunk and ran out of stacks of cash.) So, good can triumph over evil plus give them the finger at the same time… I’m cool with that.

Both of these situations show us the worst and best of the Internet and Humanity. Luckily, good seems to be winning.

At 3 Geeks, we have previously touched on the concept of Third Party Litigation Funding (TPLF) and its potential impact on the profession. Today we are fortunate to have Danielle Olofsson, a Knowledge Management Lawyer from Montréal Canada, bring us the Canadian perspective. This guest post highlights the continued evolution and growth of TPLF along with thoughts on how it may need to adapt to different markets. Thanks to Danielle for sharing her insights!

On June 26, 2012, The Globe and Mail published an article on third party litigation funding (TPLF) making it impossible to deny any longer that TPLF has reached Canada. As in the other legal markets where TPLF occurs, it is still too early to predict the lasting effects in Canada. My reactions, however, are first to welcome the potential efficiencies TPLF may impose on the practice of law and second, to question whether Canada will prove as attractive a market for TPLF as some other countries.

Efficiencies

On a selfish note, as a knowledge management lawyer, I welcome anything that makes me look less heretical to my colleagues when I speak of increasing efficiencies in the way we practice law. Canada has not been affected by the economic downturn of the past five years in the same way as Europe and the United States. The result of this on the legal profession is that we are behind on things like legal project management, alternative fee arrangements and anything that would encourage us to work more efficiently. We haven’t been pushed as hard by our clients so why respond as radically – despite what Cassandras like myself keep repeating. Perhaps having a third party involved in a case asking questions about file management and cost might bring us up to speed with other major legal markets.

Similarly, having a third party’s assessment of a file – in the instance where the funder has asked for an outside risk analysis of a case – might also facilitate the often awkward discussion with our clients about risk, cost and expectations and thereby protect us against incurring great loss on files which have little expectation of success.

Canada as a Market

Given the willingness of Canadian courts to limit non-pecuniary damages as well as amounts collected as “fair fees” in contingency cases, will Canada prove as attractive a market for third party litigation funders as some other legal markets? In 1978 the Supreme Court of Canada in a series of tort cases referred to as the “trilogy” caped the amount that could be awarded for non-pecuniary damages at $100,000. Although this amount has been indexed, the Supreme Court has proven unwilling to revisit the question of a cap on this type of damages.

Likewise, provincial courts have not been shy to review contingency fee arrangements. For example, the Ontario Court of Appeal upheld a motion judge’s decision to reduce a contingency fee of $27.5 million to $14.5 million in a class action case as it would leave members of the class without any cash from the settlement. Although this might not apply directly to third party litigation funders because, as in the case reported in the Globe and Mail, the court had approved the funding arrangement of 7% capped at $10,000,000 million, the fact that the court must approve the funding arrangement demonstrates its willingness to determine what constitutes fair compensation for the risk assumed by the funders.

So while some market is perhaps better than no market, the judicial scrutiny to which third party litigation funders may be subjected could render Canada a less attractive environment for funds that expect substantial percentages of large awards or settlements. In Canada, third party litigation funders may, like our lawyers, have to find ways of making more from less.

OK … so that’s not exactly what the DC Bar said, but take a moment and think about what two recent DC ethics opinions are suggesting. The Bar opinions note that many e-discovery vendors providing document review services are either a) practicing law without a license (opinion 21-12), or b) splitting fees improperly with non-lawyers (opinion 362). The obvious way to comply with these opinions will be for these e-discovery vendors to be limited to a) lawyers, b) practicing at law firms.

Are e-discovery vendors practicing law? Probably. 

Will ethics rules and opinions stop them? Probably not.

And we continue to long for the good ole days …

In my role, I am fortunate to see the various market updates on demand, productivity and other key legal market stats. One fairly consistent stat over the past few years has been flat market growth (a.k.a. no market growth). Although there have been minor ups and downs on this stat (most recently a slight up-tick), the overall demand has been and continues to be predicted as … flat.

But is it?

The market intelligence is taken from law firm financials. In the good ole days it may have been safe to assume this data captured a relatively complete market picture. However, I question that wisdom now. If market share is going to providers outside the scope of data captured, then the data is incomplete and not an accurate measure of the market’s activity.

Now Why Would I Think That?

In a recent interview, the co-founders of Pangea3 stated they are experiencing growth of 40-60% per year. Recent market stats on e-discovery services show positive growth there as well. Wait a tick? How can their market be growing while law firms’ is not. Usually these complementary market providers have their business wax and wane with that of firms.

The simple math of 50% market growth suggests LPOs are taking market share from firms. And it’s likely other non-traditional providers are doing the same. Ron Friedmann points out the likelihood that Axiom must be doing just that. As a counter-example of regulatory authorities not noticing this behavior, the DC Bar issued an opinion calling out e-discovery vendors as their offerings appear to be crossing the line in to the practice of law. 

What Does That Look like?

My view: law firms used to provide the complete stack of legal services to clients. Consider seven years ago, first document review in discovery was performed by associates in law firms. Now that rarely happens. This work is going to non-law firms.

So perhaps the market for legal services is not really flat. Instead, whatever growth is occurring is being siphoned off of the bottom of the market by new competitors. Law firms appear to be ceding this market space, since ‘if it can be done by non-law firms, it must be a commodity and beneath our services.’

Forecasting this trend in to the future would likely have non-law firms moving up the stack of legal services, taking on more sophisticated work as they gain market share and experience. But like the DC Bar, I’m just guessing at all of this based primarily on the marketing materials of non-law firms. A big problem for law firms is that whatever is happening is occurring in the shadows since the market data we rely on does not include it.

Real Market Data Would be Nice

So – to all of the legal market intelligence vendors – please start looking past law firm data to a broader, more realistic snapshot of the market so we actually know what’s going on. GM wasn’t just watching domestic auto competitors in the 70’s and 80’s. GM actually watched what the overseas vendors were doing as well. (Although many argue this didn’t help GM that much.)

Part of my job is watching the market. My growing concern is that our market data is not giving us the full picture. And I’m just guessing that picture would further accelerate the impetus for change.

According to the Washington Post, the Justices on the US Supreme Court are big fans of Googling facts not presented to the court in briefs or oral arguments. Although the practice of in-house fact finding is not prohibited by any rules, the practice does raise some questions about how Justices research the issues presented before it and the resources they use to conduct those in-house fact finding missions. Since this is probably a trend that won’t go away anytime soon, may I suggest that while all of the Justices are out until October, that they seriously consider taking Google’s online course called “Power Searching With Google … a short course on becoming a great internet searcher.”

Now, the Justices will need to hurry, because registration ends on July 16th, and you’re already too late to beat the suggestion that “you register before the first class is released on July 10, 2012.” So, hurry!! If you finish the six 50-minute classes, they’ll send you a link to a printable Certificate of Completion that you can hang next to your Law School Diploma!!

Since I’m pretty sure that SCOTUS Justices search like many lawyers, this course may be one of the best ways to spend their summer and be better prepared for all those voters’ rights issues that will probably be landing on their steps this Fall. Perhaps they’ll teach you a few more tricks to finding facts other than simply searching the words ‘Voter’ and ‘Rights’ in the Google text box. In the course description, they state that they will cover:

search techniques and HOW TO USE THEM TO SOLVE REAL, EVERYDAY PROBLEMS!!  [emphasis added]

That sounds like exactly what the Court needs!!

In addition, the Justices could also learn how to set up their own Google Groups, Google+ and use video conferencing with Google Hangouts – it would be interesting to see if Justices Scalia, Thomas, and Alito will put Chief Justice Roberts in their “circles” in those groups.

I think this would be a great use of free time for all the Justices while they are vacationing at the ‘Impregnable island Fortresses’ this summer. I’d give the Justices a link to the course, but I’ll go ahead and just let them Google it… since apparently, they have used it to find things much more important than a power searching course.