Martindale-Hubbell released an interesting report this morning called “The Profitable Legal Department: How legal departments can prosper by generating revenue for their company.” The report follows the legal departments of DuPont, Tyco and Standard Life and reports on the success of each of their “recovery programs” that take a more aggressive stance to assert the company’s rights through litigation.

The report focuses on “how legal departments can cease to be viewed purely as a cost centre in the company and, instead, can proactively generate (or recover) revenue for the business to the point where it may even become a profit centre.” The theme seems to be that the financial crisis has caused companies to re-evaluate their legal departments and no longer be content with looking at them as purely an overhead expense to monitor compliance, but to revamp the department to be more vigilant in protecting the company’s Intellectual Property and other rights through legal action.

Derek Benton, Director, International Operations at LexisNexis Martindale-Hubbell, says that “The recovery program approach does not advocate increased litigation, rather a change of mindset for the business, from a passive approach of conflict avoidance, to one that asserts its legal rights to ensure that business-to-business agreements are honoured.” Perhaps that is splitting hairs a bit, but the part that caught my eye, and will probably catch the eye of in-house counsel everywhere was the fact that in “2009, four out of five DuPont recoveries were resolved without litigation and most without the need for outside counsel.”

The report concludes that taking an adversarial approach to the company’s rights is good business and it is time for in-house counsel to shift the way the approach legal matters away from defensive, and more toward assertive. “Few CEOs or CFOs will disagree with the concept of taking a proactive stance instead of always being defensive or reactive. Attack is a good form of defence and lawyers should, when possible, be adversarial. That is the nature of their job. It may mean embedding a culture change within their own department and within the business, but a good and successful recovery program will always pay dividends.”

Martindale-Hubbell has a free 36-page report detailing the approaches taken by DuPont, Tyco and Standard Life’s legal departments, including key points from DuPont on how a legal recovery program should be established and operated by a company.

I have to tell you that coming away from the ARK conference on Knowledge Management, I was a little disappointed with the direction that many of the law firms are taking with the idea of Knowledge Management (KM). Some of the presenters were showing products that were very “flashy” and useful, but weren’t really what I would consider “KM” resources.

Many of them were “Client Services” products… or were fancy dashboards attached to accounting or time and billing resources, but not really what I would think of when it came to capturing “knowledge” at a firm. Don’t get me wrong, these projects were very cool, they were very useful for getting information in the hands of clients or attorneys, but to call them knowledge management resources would be stretching the truth a little bit because they didn’t really capture and reuse existing firm knowledge in the traditional meaning of knowledge management.

The biggest problem with KM in a law firm seems to be the fact that those creating the knowledge (aka attorneys) either have to actively participate in the KM process, or allow for some type of automation in the KM process. Unfortunately, the attorneys seem to neither want to actively participate, nor do they want their information/knowledge to be automatically captured. This makes for a tough position for KM to be in.

There were two comments that caught my attention, and made me wonder if KM just needs to be scrapped at law firms altogether.

  1. When asked about “who” creates the documentation behind a firm’s model documents resource, the answer was that this would be a good opportunity for those in KM who were former practicing attorneys. (Translated: “You’ll need to have someone in KM do this, because no one else in the firm will.”)
  2. When discussing how the library can be advocates for KM in promoting the internal resources developed by KM groups in capturing firm knowledge, one of the members of the audience said that if he discussed these products to the partners in his firm, he’d be fired because no one is interested in this type of Knowledge Management resources.

As long as you have a cool dashboard to present information from third-party systems, and can tap internal financial or time and billing software, then you have a successful KM tool. If your dashboard requires anyone to actively participate, or give permission to automatically capture information being created by individuals within your firm, then abandon that project immediately. You’re only setting yourself up to fail.

The entire conference seemed to be about keeping KM relevant, by expanding the definition of KM and taking it in the direction of Law Practice Management, or Alternative Fees, Accounting and Financial Interfaces, or Client Development Resources. All noble things for a law firm to do… but again, completely outside the scope of what KM was meant to bring to the firm. As Mary Abraham put it in a tweet:

“Why is #KM obsessed with PM? Because desperate knowledge managers are searching for a raison d’être.”

As you can probably tell, I am a little depressed after hearing everyone basically say that in order to stay relevant, you need to abandon most of your objectives and principles and turn KM into something else. I’m hoping that I’m wrong.

It has taken me years to control my eye-rolling response to irritating on-hold message of “Your call is important to us. Please stay on the line.” Not to worry, though, I heard another version of this sarcastic message this morning. While trying to update my account at the gym – yes, the one that I haven’t actually been to in a few weeks – I had the following experience:

Me:   [Dial number, new credit card in hand]
Gym: Six-Pack Gym… can you hold, please?
Me:   Uhh…
Gym: Click — [Thumping Hold Music begins]
Me:   Sure, I’ll hold… hello?
Gym: [Automatic Message] Thank you for holding. Our customer service representative is currently serving another valued customer, just like you. Thank you for your patience. We’ll be with you shortly. [bass-thumping music begins again]
Me:   [eye-rolling response kicks in… with a slight shaking of my head — hey, that’s a new one!]

30 Seconds Later…

Gym: This is Fran, how may I help you?
Me:   I need to update my credit card information, please.
Gym: Oh, you can just come on in and update that information.
Me:   Uhh…
Gym: Thank you. Goodbye.
[Click]
Me:   ARE YOU SERIOUS?? YOU CAN’T UPDATE THAT OVER THE PHONE??
[that last part was an internal conversation with myself]
[Place receiver back in phone cradle… which was difficult because eye-rolling response was still going on.]

I guess I’m just going to have to fight back against my gym and start going there everyday this week and use two towels instead of one!! That’ll teach them about this “valuable customer.”

When I worked as a programmer, we used to have a saying that “making something was easy, but making something ‘easy’ was difficult.” I guess the same could be said for customer service. Saying that you’re a valuable customer is easy, but showing someone that they are a valuable customer — you know, like by updating credit card information over the phone instead of making them come to your store apparently takes some effort. This makes me want to take a look at my own style of dealing with my customers (aka Clients), and make sure I’m not just saying “valued customer”, but actually delivering valuable customer service.

Guest Blogger Elizabeth Black Berry, librarian and attorney with Weil, Gotshal & Manges LLP brings us another Pro Bono discussion to celebrate Pro Bono Week. Elizabeth discusses the opportunities for Houston area lawyers to participate in the Houston Pro Bono Network and help bring a broader access to justice for all. Elizabeth’s contact information is listed below if you are interested in learning more about these programs.

If you are not in the Houston, contact your local bar association to see what Pro Bono opportunities are available in your area.

In December, 2009, the Houston Pro Bono Network (HPBN) launched the Houston Pro Bono Joint Initiative with in-house counsel, kicking off the cooperative effort with a planning meeting featuring a presentation by the Pro Bono Institute.  The HPBN’s new Pro Bono Joint Initiative aims to coordinate pro bono activities among law firms and the in-house legal departments of corporations in the Houston area in order to more strategically serve the pro bono legal needs of the greater Houston community.

The HPBN, founded in 2007 by a group of Houston attorneys including Weil, Gotshal & Manges LLP Partner Sylvia Mayer and Mayer Brown LLP Partner Charles Kelley, is an informal group of pro bono coordinators from large and small Houston law firms.

“The Houston Pro Bono Network initially brought together law firm attorneys to share best practices and discuss ideas in order to expand the pro bono base in Houston,” said Mayer.  “From this effort came the idea of working in partnership with our in-house colleagues, recognizing that we have shared challenges and shared goals, and that together we can make a greater impact on those in need in the greater Houston area.”

The new Houston Pro Bono Joint Initiative will focus on enhancing the pro bono base and offerings of Houston’s legal community through the following strategies: identifying and recruiting attorneys interested in doing pro bono work; sharing of pro bono opportunities; leveraging the collective strength of law firm and in-house attorneys; and raising the profile of the group’s pro bono efforts within the community and legal profession.  It will provide a central platform to generate broader participation and partnership among businesses, and consequently, expects to produce successful pro bono results to better serve the Houston community.

“Corporate legal departments have a tremendous interest in giving back to the local community and in setting a high standard for citizenship and professionalism by providing pro bono service to the neediest Texans,” said Peggy Montgomery, retired counsel at ExxonMobil and founding member of the Houston Pro Bono Joint Initiative Coordinating Committee.  “We are certain that this new initiative will provide a valuable and powerful mechanism to align the pro bono efforts of in-house attorneys and Houston-area law firms, resulting in broader access to justice for all.”

The inaugural members of the Houston Pro Bono Joint Initiative Coordinating Committee were: Christian Callens, Skadden, Arps, Slate, Meagher & Flom LLP; Patrick Cohoon, Cozen O’Connor; Rob Fowler, Baker Botts LLP; Ivett Hughes, Halliburton and Pro Bono Coordinator for the Association of Corporate Counsel Houston chapter; Charles Kelley, Mayer Brown LLP; Karen Lukin, Marathon Oil; Sylvia Mayer, Weil, Gotshal & Manges LLP; Peggy Montgomery, ExxonMobil; and Laney Vazquez, BP.  Since formation of the Joint Initiative, Susan Sanchez with ExxonMobil has replaced Peggy Montgomery and Mike Rigo with BP has replaced Laney Vazquez.

Law Librarian and attorney, Elizabeth Black Berry at Weil in Houston is the administrative member of the HPBN and HPBJI.  She also takes her own Pro Bono cases and will be happy to field any questions or comments about the work of the two Houston Pro Bono groups.  She can be reached at elizabeth.berry@weil.com or (713) 546-5055.

October 24-30, 2010 is National Pro Bono Celebration Week, and Kate Bladow, blogger at Techno.la, encouraged us to contribute a post this week to help celebrate. As a result, we asked a couple of attorneys to write out a few thoughts on why they think Pro Bono work is important. We have the privilege of having David Curcio, Partner, Jackson Walker, and Tara Kelly, Counsel, King & Spalding taking time out of their day to share their Pro Bono experiences with all of us.

Pro Bono: Helping Others, Helping Yourself, Helping Your Profession

David Curcio, Partner (LinkedIn)
Jackson Walker L.L.P.

While we hope that our pro bono efforts help those receiving the services, attorneys should also know that there are benefits to the provider of pro bono services as well. In our regular practice, especially in the corporate or commercial realms, we are sometimes far removed from helping ordinary people navigate the legal system. Personal satisfaction can come from using your skills to help someone facing a crisis and from knowing that you are helping to improve the image of our chosen profession.

We take for granted our ability to understand legal procedures, terminology and processes, as well as the sophistication of our clients. Yet for someone whose only contact with the legal system is an eviction notice, a collection suit, a divorce suit or an arrest, the legal system can be daunting and overwhelming. For a minimum of effort, you can put your years of training and experience to work for an ordinary citizen and truly be a lifesaver. Sometimes, all it takes is listening to someone’s problems to help them feel better about their situation and their options for dealing with a legal problem. The satisfaction of helping someone does not necessarily require taking on an entire case or transaction, it can be as simple as answering the phone lines for an evening.

Actually speaking with a lawyer who listens to and alleviates their worries helps improve the image of the legal profession in the minds of ordinary citizens. Too often their impression of lawyers arises from lawyer jokes and the ambulance chasers portrayed on television. After their experience with a real life lawyer who is there to jelp them, people’s impressions of lawyers cannot help but improve. Perhaps they can begin to see us as professionals rather than just hired guns.

So, the next time a pro bono opportunity presents itself, think about what you can do to help someone in need, while helping yourself and your profession.

Changing the World of Our Pro Bono Clients

Tara Kelly, Counsel (LinkedIn)
King & Spalding LLP

For 10 years I have been working as a lawyer and for each of those years, I have had a pro bono case. Looking back, they have a common thread. Each one of them involves children.  My first pro bono case was representing a mother, a former drug addict, in a termination of parental rights case brought by her cousin who had been taking care of the child since she was a baby.  There were certainly two sides to this story. The cousin had given the little girl a stable home when she needed one.  But, even though I hadn’t had my own daughter yet, I could understand and feel the heartbreak of this biological mother who had kicked a very powerful heroin addiction, made a good life for herself, and was facing the loss of her parental rights. While she did not lose her rights, there was no good end to this story, which involved a lot of bad blood between family members that could never be put right by the judicial system and an estranged relationship between a mother and daughter.

More recently, I represented a young teenager from Honduras who left the country after witnessing a gang murder and receiving death threats from the notorious gang, MS-13.  She fled the country with a coyote leading her through Mexico and then through the United States. She became lost along the way and was picked up by the US Border patrol.  I helped her apply for asylum, which required me to the learn the very interesting law around asylum based on social groups and understand how difficult it is, even if you’ve suffered extreme hardship, to win such a case. I also learned firsthand how hard it was to navigate the immigration system as a lawyer – let alone a teenager who is new to the country and doesn’t speak English. In the long hours I waited outside the immigration court, there were lines of immigrants confused by the processes – some who asked  for my card. This client moved away before her case concluded and I found able lawyers in New York to take on her representation. I still have the large plastic diamond ring she gave me as thanks.

Now, I am working with the non-profit, Justice for Children, on a case involving a mother in a custody dispute. The father, who filed for change in custody, has been indicted for sexually assaulting the child and we are awaiting the criminal trial before moving forward on the custody matter. I have learned a few surprising things from Justice for Children working on this case. First, while many lawyers feel sympathy toward children suffering sexual and physical abuse, they often do not want to work on these cases because they are emotionally difficult.  Second, many jurors don’t want to believe sexual abuse happens, especially by a parent, and winning these cases can be extremely difficult. While it is true that a case involving sexual or physical abuse of a child is not easy, it is exactly in these case where the assistance of a lawyer and often times  a court-sponsored Child Advocate – another organization I volunteer with – are crucial.  Children cannot speak for themselves and while we cherish our own and others, children in this society are abused at alarming numbers and many tragically do not get the help they need.

Working with pro bono clients is a privilege. It reminds me of how lucky I am to have a law degree and, that simply by showing up, I am giving the client something they wouldn’t otherwise have – a spokesperson.  It is not emotionally easy, though.  And, I frequently find myself frustrated, either with a family-law dispute that cannot be a win-win situation for everyone; an immigration court that is overloaded with immigrants who can’t represent themselves and can’t afford lawyers; or by a system where abused kids fall through the cracks.  Nonetheless, while it may not be easy and we can’t change the world through our representation of pro bono clients, we do change the world of our clients merely by being their advocate.  This is why I do pro bono work.

We are having some fun with this week’s Elephant Post, so you’ll need to follow along with my thinking on this.

In the movie The Princess Bride, there is an exchange between Vizzini and Inigo Montoya. Vizzini keeps saying “INCONCEIVABLE!!” and
Montoya calls him on it:

Vizzini: HE DIDN’T FALL? INCONCEIVABLE!!
Inigo Montoya: You keep using that word. I do not think it means what you think it means.

For this week’s Elephant Post we modified this somewhat:

“I think you need to look up the meaning of ________. I don’t think it means what you think it means.”

Have some fun with this weeks post and provide your own spin in the comments section.

Internet Marketing Perspective:
Lisa Salazar
“I think you need to look up the meaning of Marketing. I don’t think it means what you think it means.”

Everyone that has watched Mad Man thinks they understand marketing.
“Its just an ad!” “Just throw a party!” “You just need to network!”

Ummh. No.

People do get Ph.D.s in marketing, you know. They study statistics, economics, research, psychology, advanced mathematics. Really fun stuff.

In fact, most of my day is spent sifting through data, looking for gold. Some days I feel like the proverbial Rumpelstiltskin spinning wheat.

To be a really good marketer you need to have the smarts to find a lead, develop a lead, then turn that lead into business then go back and find more.

People get hung up on the first part–the party-throwing, the ad making, the web design.They forget that middle piece: taking the people they meet at that event, get from that ad or capture on the web and developing a relationship. And also examining the results of the party, ad or website and seeing if you can build it better to get better results.

If marketing is done with a whit of science it can create real measurable results.
Marketing. Its not what you think it is.

Competitive Intelligence Perspective:
Emily C. Rushing
“I think you need to look up the meaning of Intelligence. I don’t think it means what you think it means.”

Intelligence is one of those buzzwords that gets slapped on any process or document and, as we say down in Texas, “WAH-LAH! Y’all got some intelligence!” (not really)

This is, sadly, a misuse (abuse?) of the word “intelligence”. I don’t mean human intelligence, artificial intelligence, or the intelligence of your pet Labrador. I mean intelligence as it relates to businesses and their strategies.

Let’s do some comparisons.

Intelligence is, among other things, the:

  • Development of key topics as defined by the business’ strategies
  • Collection and evaluation of information relating to these topics, and
  • Analysis and perspective on the information resulting in an actionable set of findings and influencing the businesses strategic decisions.

Real life examples of intelligence processes and deliverables include Business Intelligence, Market Intelligence and Competitive Intelligence. If you are missing any of the above pieces then what you have might not be “intelligence”.

Intelligence is not:

  • A collection of weblinks in an email
  • An article someone thought was “interesting”
  • Stuff in a database
  • Anything you put into Excel
  • Anything you print to PDF
  • A pie chart, bar graph or other infographic, however pretty

None of the above things are bad but please don’t think that because you have this that your company has a robust or sophisticated intelligence program. And please find something else to call it because “intelligence” has a specific meaning and it might not be what you think.

Alternative Fees Perspective:
Toby Brown
“I think you need to look up the meaning of Profitability. I don’t think it means what you think it means.”

Revenue – cost = profit. Seems like a simple formula, yet it escapes the grasp of most law firm partners. The challenge arises since just a few years ago, revenue = profit. Existing in this odd in-between space where revenue no longer equals profit, but firms really haven’t grasped the concept of profitability on a client or matter level basis is challenging.

What this means is that law firms and lawyers still exhibit ‘revenue equals profit’ behavior. So most definitely “profitability” doesn’t mean what they think it means.

And if you don’t know what profitability means, how can you possibly remain profitable?

I’m just sayin …

Information Technology Perspective:
Scott Preston
“I think you need to look up the meaning of Intuitive. I don’t think it means what you think it means.”

From time to time I hear “this software is not intuitive.” This always strikes me as funny since the people most likely to say this are also the people least likely to go to training. If you have little or no experience with a piece of software, how can you expect it to be intuitive.

The concept of intuition is based on past experience. If you have little or no past experience with a computer, how will it ever be intuitive? If you never take the time to use your word processor for anything more than a virtual typewriter, why do you care about intuitive software?

Knowledge Management Perspective:
Ayelette Robinson
“I think you need to look up the meaning of Usability. I don’t think it means what you think it means.”

I may be pummeled by virtual tomatoes for saying this, but here goes: SharePoint is not usable. Here’s a tip for knowing whether a system is usable: if you need to click on every link you see within the four corners of your monitor before figuring out which button performs a function, you’re not dealing with a usable system. Here’s another tip: if you use a feature on a fairly regular basis (even once every few weeks), and each time you go to use it you forget where it is and need to re-click every link you see to find it, you’re not dealing with a usable system.

Usability does not mean that you can eventually use it, after painstakingly going through all possible options. It also doesn’t mean (hold your ears, Scott) that the only way to use it is by going to training. Google doesn’t need training. eBay doesn’t need training. Amazon doesn’t need training. Craigslist doesn’t need training. YouTube doesn’t need training. Need I go on? Plenty of systems out there, with plenty of sort-of-different, but also similar-enough, features, are able to be adopted by users without requiring training. Imagine if Eric Schmidt had sent out an all-user email to the world: “Exciting new tool available soon! It’ll change your world, but you won’t know how to use it unless you attend a training!” Think how ridiculous that would be. Why is it that within the enterprise we assume it’s the user’s responsibility to figure out how to use a system? That approach in the real world wouldn’t get you far, and certainly wouldn’t have put Mr. Schmidt on the map.

Usable means that when you’re using a system and think of a reasonable function you want to perform within the context of that system, you know – without training – what action to take to perform that function.

Next week’s Elephant Post:

What is something you can do immediately to be more productive?

In an effort to encourage our readers to step out from the anonymity of reading 3 Geeks and contribute to next week’s Elephant Post we decided to give you an easy question. We have received some really interested contributions over the last several weeks and we hope to see more over the next several.

If you have an idea for this weeks post or a suggestion for next week’s question, then send Greg an e-mail to discuss.

Without sharing, what is knowledge?  As parents we work hard to share our life experiences with our kids.  Why is the work environment so different?  
I have said for years that the term Knowledge Management is so misunderstood that it does more harm than good.  I strongly believe there is a place for knowledge management, but more importantly, we all need to focus on knowledge sharing.
Humans are pre-programmed to share their experiences with others.  We do it with our children, our family and our friends.  We even do it with complete strangers.  How many times has someone asked you for directions or for a suggestion for a good place to eat?  More often than not, we gladly volunteer our knowledge and wish the knowledge seeker good luck.
We are pre-programmed to share, we get enjoyment from doing it, yet we don’t seem to embrace it at work.  Why do we act so differently at work?
Is it too difficult to share knowledge at work?  We have many systems designed to help facilitate knowledge sharing at work and yet we struggle.  
Are we simply too busy trying to get our work done to worry about sharing information?  This is a silly notion, it’s like saying that we are too busy to be more productive.  Do we feel it is a competitive advantage to hoard information, thus making it more difficult for the next guy?  Some companies do not foster knowledge sharing even when studies prove that it leads to greater productivity.  
I believe there is much room for improvement in knowledge sharing tools.  If the tool requires a knowledge worker to take extra steps to make his or her knowledge available to others, the opportunity for failure increases.  We need to be keen about how we design and use systems.  We need to include knowledge sharing frameworks as part of an overarching system design and deliver frameworks that are easily portable to different applications.  E-mail is a great example of a tool that would benefit greatly from such an approach. (see Get the conversation out of email).  

We need systems that incorporate knowledge sharing as a core feature.  But most important, we need companies that understand and promote the value of sharing knowledge.

The best approach to knowledge sharing is both the use of technology and a corporate culture that fosters knowledge sharing, supports the effort and clearly communicates the value. There are plenty of examples where knowledge sharing technology was in place and yet the initiative fails.  Technology will help the adoption rate, but clearly, a cultural understanding of the benefits of sharing is key to the transformative success of knowledge sharing.

Bloomberg Law hit a milestone this week when U.S. Magistrate Judge Douglas Arpert (U.S. Dist.Ct., D. New Jersey) used the “Bloomberg Law” citation when it cited to a number of unreported cases. In the case Homa v. American Express Co. [PDF], Civil Action No.: 06-2985 (JAP)., 2010 BL 245394, [*12] (D.N.J. Oct. 18, 2010), Judge Arpert lists a number of cases cited by the Plaintiff, and left in the Bloomberg Law citations:

United States v. Stuler, Civil Action No. 08-273, 2010 U.S. Dist. LEXIS 43338, 2010 BL 99422 (W.D. Pa. May 4, 2010); Bell v. Alltel Communications, Inc., Civil Action No. 08-648, 2008 WL 4646146, 2008 BL 235539 (W.D. Pa. Oct. 17, 2008); S. Freedman & Co. Inc. v. Raab, Civil No. 06-3723, 2008 WL 4534069 at *2, 2008 BL 223083 (D.N.J. Oct. 6, 2008); and Kirleis v. Dickie, McCamey & Chicolte, PC, Civil Action No. 06-1495, 2007 WL 3023950, 2007 BL 124745 (W.D. Pa. Oct. 12, 2007) Id. at 9-10.

Although the cites all either have the alternative Westlaw or Lexis cite, it does seem to be the first time that the “___ BL ___” has made the cut. The corks are being popped at Bloomberg Law to mark this occasion, and they are hoping that this is the first of many “___ BL ___” cases being cited. For attorneys, paralegals, librarians and judges all over the country, there is more of a “oh, great… one more Blue Book rule I have to learn!”

Does that mean that the 20th Edition of the Blue Book will be coming out soon?

Congratulations to Bloomberg Law. It is a big day for them, and perhaps a day that the duopoly of “___ WL ___” and “___ Lexis ___” have a new partner.

I thought the two emails I just received were “very interesting” – not right or wrong – just “very interesting” in how the same survey was marketed to two different ALM clients. ALM just announced a new survey call ALM Legal Intelligence Billing Package, where it seems they are willing to pit lawyers against in-house counsel – at least so far as how they are marketing the product.

I looked over the emails, and other than the part that I’ve put below, there seems to be one single survey – just the marketing message behind the survey seems to be different. It seems that ALM understands that inside and outside counsel are just not trusting each other these days.

This first one was meant to go to law firm attorneys:

This next one was sent to in-house counsel:

Notice the difference??

Like I said, I’m not saying this is good or bad, it’s just marketing the same survey to two different segments of the legal market. Does anyone feel they are being played, though??

Seems that the issue of paying third-party vendors a fee to file documents in state courts has raised its head again – this time in Georgia. We covered this issue back in April when a claim was made against a Texas court that these types of fees were RICO violations. According to a Fulton County Daily report (paid service) and a Courthouse New Service report, a plaintiff was ‘locked out’ of the Lexis File and Serve service because the plaintiff’s counsel had allegedly not paid the service’s fees. The fees run from $7 to $12 per document and are paid directly to Lexis, and not the courts. Also according to the complaint, the Fulton County court apparently would only accept the electronic filing in this class-action case, and no paper documents would be accepted (supposedly getting around the $7 and $12 Lexis fees.)

In one of those arguments that fits the saying of “it may be true, but do you really want to use that as your defense?” Lexis’s attorney, William K. Whitner, said “The Georgia Supreme Court has repeatedly held that there is no constitutional right to access to the courts.”

This was swiftly met with a response from DeKalb Superior Court Judge Robert J. Castellani asking Whitner, “Did you just say there’s no right of access to the courts?”

Without skipping a beat, Whitner replied “No constitutional right… That’s the what the case law says; I’m not saying it’s right or wrong.”

Judge Castellani gave some sage advice to Whitner when he followed up with “I hope that’s not what your case rests on.”

There are a lot of issues that surround the idea that courts outsource their electronic filing. One of the things that seems to pop up in these cases is the fact that the plaintiffs and defendants are paying court fees directly to third party private vendors, and then the vendors are sending those fees on to the courts (after taking their cut.) I know that this is “logistically” a good way of doing things, but it does raise issues of people being excluded from the public court system because of money owed to a private company. Seems like it would be smarter for the courts to set their electronic fees in a way that builds the cost into the court fee, and not as a separate fee, then the court would pay the vendor a fee. That way, at least logistically, citizens would be failing to pay the court, not a private party. That would make the access to courts issue something that would then throw out the issue of private companies having a role in excluding citizens from the courts.