I’ve always thought I wrote my blog posts in the tradition of great writers like Jonathan Swift, and now I have the data to back up my claim. The website “I Write Like” allows you to paste in some of your writings and it will analyze it against the writings against a list of famous authors and let you know who you resemble the most. The fact that I match up against a writer in the know for satire, fantasy and sci-fi doesn’t surprise me at all. In fact, it verifies (in my own mind at least) the style of writing I am attempting.

The next time you are turning in your legal brief to the court or an exam to your professor, copy and paste it into I Write Like’s analyzer and see what famous author you are channeling. Perhaps at the top of the document you could mention that you write like “J.R.R. Tolkien”  and give the reader a little ‘heads-up’ to your style so that they can put themselves in the proper state of mind while reading your masterpiece.

And, just for fun, I decided to see who my co-bloggers write like.

Toby Brown = Edgar Allan Poe
I know both Toby’s and Edgar Allan Poe’s writings have creeped me out in the past, and have left me wondering what kind of ‘medication’ they took right before sitting down to write.

Both Lisa Salazar & Scott Preston = Cory Doctorow
In fact, it seems that many of the guest bloggers match up with Cory Doctorow as well. Apparently, we are a bunch of Canadian Journalist, Sci-Fi writers on this blog!! I thought that title belong to all the folks up at SLAW.CA.

Comedian Daniel Tosh holds his book burnings every Tuesday, but thought that he needs to be “greener” in his desire to rid the world of books and push people back to watching his show on Comedy Central.

He also suggests a way that your local governments could make a little money back. Since we now have Kindles, Nooks and iPads, and no longer need books, those libraries would make for some sweet living quarters for those wanting to live the Urban dream.

Tim Corcoran’s and Jordan Furlong’s recent posts on the potential obsolescence of law firms – alongside the news about the downfall of Hurd from HP got me thinking.
Corcoran made a distinct point about the risk to law firms that brought this concept together in my mind, “[B]ut are law firm leaders listening? The point being – are law firm leaders in tune with what’s going on? Based on my observations – I believe they are or are headed that way. The follow up question becomes: What are they doing about it?
The short answer: more of the same – only with more intensity.
What law firms really need is a Mark Hurd (minus the sex issues) as a Managing Partner (MP). Hurd went into HP, cut the bloat, restructured for efficiency, cut away poor performing and non-core business units and drove HP to profitability. He’s the classic turn-around guy.
So even though law firms are seeing the future, they don’t have these kinds of skills to adapt to it.
They need a Mark Hurd to come in, kick butt and move on. At first as I contemplated this need, I envisioned firms switching to MPs with this skill-set, but I think that’s a show-stopper. Existing partners will be VERY reluctant to take any action that might hurt or offend another partner. Firms need someone not carrying this kind of baggage to effect such radical change.
Absent this type of radical leadership change, I fear Jordan and Ron are right. Firms will focus on moving the deck chairs around more efficiently, but avoid the hard decisions. It’s not that they don’t want to. It’s decades of culture holding them back.

When does your firm’s culture trump potential innovations you want to put in front of them?

Idea came from a quote in Craig Roth’s Knowledge Forward post, Technology After Culture? Not in a Million Years.

So basic technology evolved before the basic social construct – the family?  No wonder I still encounter people spending all their time optimizing technology only to find that organizational structure and culture sink their projects. 

The purpose of the Elephant Posts is to ask the same question to professionals from different legal fields, and to encourage guest bloggers to come on 3 Geeks and contribute with a short answer. The idea behind keeping the answers “short & sweet” is to give the reader an opportunity to fill in the blanks, or continue the conversation in the comment’s section (hint, hint!!) This week, we’re taking this question and applying it to Alternative Fees, IT, Library and Records management perspectives. Next week’s Elephant Post question is listed at the bottom of this post.

The Alternative Fee Arrangement Perspective

Culture Rules – But AFAs don’t care
Toby Brown

One of the best pieces of advice I ever heard related to KM was that culture always trumps technology.  The director of KM for ConocoPhillips had a slide showing the Pacman of Culture devouring KM.  His point was that any KM project that ran counter to culture was doomed.  This visual has long echoed my experience at law firms.  Culture is like mud in these places.

That being said – when it comes to alternative fee arrangements (AFAs), culture shows its weakness.  Law firm culture is not compatible with an AFA world, since that world is all about change.  That change is unavoidable and sweeping its way across all practices.  Clients make demands – law firms respond.  AFAs  have a certain power over culture.

What’s interesting is the next layer beyond AFAs.  Here I find an odd, ever shifting battle between culture and change.  For instance, everyone is clamoring for the ideal budget tool (relative to their practice).  Why can’t we just pull that info from the billing system?  Well … we don’t capture the billing information in a way that allows this.

Here attorneys want something desperately, but will only get their question answered if they throw-off the chains of culture and actually make some changes.  That doesn’t go over well.  In the interim there is a lot of gnashing of teeth and pulling of hair.  “There should be a  button we can push that will simply create a budget!”  As they walk down this road, logic takes over and culture is thrust aside.  At some point they see the absurdity of culture’s drag on progress – toss it aside and start making better choices.

I wonder how long this will last.

The Information Technology Perspective

Rip Off That Cultural Band-Aid
Scott Preston

Culture is going to win every time unless the need for change or innovation is clearly communicated and understood.  Human nature craves predictability, consistency and familiarity.  This is true our entire lives.  Some tolerate change more than others but only to a certain degree and the older we get the less we are willing to tolerate change.

Amazingly, it often seems more difficult to make incremental innovative shifts (the phased approach) than to make one big shift, as though there is only so much tolerance for change big or small.  This is the “rip the band-aid off” approach.  Yes it hurts, but the pain quickly dissipates and then we get on with business.  Tolerance for change usually correlates directly to the understanding behind the need for change.  Firms with good communication from management tend to accept innovation more readily because there is an understanding of the direct benefit.  Firms that lack good communication from management continue to look for the magic button to solve the problem.  Why?  Because they don’t want to feel the pain without seeing any direct benefit.

Internet Marketing Perspective

No Innovation, No Sale
By its very nature, if Internet Marketing isn’t innovative, we won’t make the sale. I have to constantly push the envelope to make sure that our message is delivered. This often means I am counter-culture and at cross-purposes. Especially at a law firm.
But I keep pushing, keep trying, keep asking, keep fighting the good fight. Eventually, I get a toe hold. Then, great things can start to happen.

The Library Perspective

Culture vs. Change…  Or Culture and Change?
Mark Gediman

Most people think that the tension between the Firm’s culture and the change needed to remain competitive is one of the few constants in law firm governance.  I disagree. I thought about ending here but didn’t want to face the Wrath of Lambert (Yes, it is a little known fact that he is a distant relation of Kahn Noonian Singh).

In my career as a librarian, I have worked for both corporations and law firms. Law firms have always been for me the greatest challenge.  Only in a law firm do you work with and affect the shareholders on a personal level.  If you start with this in mind, any change can be implemented as long as it is presented in the right way. You need to show the shareholders that it will save them money while still giving them what they need in a usable format and in a close approximation to the way they are used to getting it to have a good shot at success.  My library research portal came about with this in mind.  I was given a mandate (reduce the print collection by moving materials online) and needed to implement this in the culture of a 120 year-old firm.  The only way I felt I could do this and justify the firm’s online investment was to create something that replicated the Attorney’s research process as closely as possible.  I used the Middle- and Senior-Level partners to vet this concept with the idea that an acceptable product to them would be accepted culturally on a large scale.  Addressing their problems and challenges also gave them ownership in the final product.

Culture to me is merely the framework any change or innovation must take place within.  The changes don’t change the culture, they modify how people work within the culture.  Culture does evolve over time but at a glacial pace.  Any changes that are being implemented must keep that in mind or they are doomed to failure.

The Records Management Perspective

When CYA gets in the way…
Janice L. Anderson (Former Records Manager, Corporate Legal Dept.)

While sitting eating a delicious bowl of curry with Greg, Toby and Scott, I listened to the three of them discussing document management and the challenge of records retention implementation.  I realized they were discussing putting into action something that I worked on 5 years ago in the legal department for an oil and gas corporation.   Who knew that we were so ahead of the game?

When you question how the culture of a firm may override the innovation you are trying to implement, I cannot think of a stronger example than the culture of Cover Your Butt.  While trying to roll out a retention policy to a large corporation, we continually ran into folks who did not want to shred a document when they were no longer  legally required to hold on to it.  We always, always were given, “but I may need to cover myself in the future.”

When the climate of a firm puts an employee on the defensive, they do not trust that removing the proof of their work ethic won’t come back to bite them.  Companies store more documents than they need, ignoring the costs of storage, the space on servers, the boxes and boxes of evidence available for discovery.  But their backsides are padded and safe.

Next Week’s Elephant Post Question:


When Does “Great” Get In The Way Of “Good”?
The idea behind this question is whether the pursuit of perfection causes a paralysis in actually getting something accomplished, or as Scott eloquently puts it – “Don’t over think it, stupid!!”

We’ll be out recruiting for guest bloggers this week, so if you want to grab a piece of the elephant and give your perspective on this question, please feel free to email me for more details.

I recently had the privilege of participating in a mentoring session given by a senior partner in my firm.  This partner is a consummate rainmaker and he was sharing how he approaches finding opportunities.  In essence, he is always looking for opportunities to make connections with people.  He talked about making the effort to provide answers even if the answer is connecting someone with a problem with another attorney.  He said “the attorney will not forget that you provided an opportunity and will reciprocate eventually and the person with a problem will see you as a problem solver”.  He went on to say, “even if the problem has nothing to do with legal services, offer a solution.  If the problem has to do with plumbing issues, find a plumber”.  This partner explained these ideas in very simple terms.  Easy to digest and even easier to implement.
The concepts and approaches he describes are even more relevant today, but the techniques are changing.  

Today, an attorney needs to know how to leverage social networking as a way to become “part of the conversation”.  

While the Internet has certainly changed the concept of community, it does not change the essence of being a trusted advisor.  Toby helped me understand the notion of “being part of the conversation” as a differentiator.  His point, more and more people are turning to the Internet to find quick answers.  

If they don’t hear your voice as part of the conversation, they will not know you are part of the community.  

As Toby usually does, he started explaining this by drawing a picture.  That picture is elegantly displayed in my office and usually becomes a point of discussion.  It is a constant reminder to me and serves as an opportunity for me to educate others around me about the power of the virtual community that has come to be known as social networking.
Have your voice heard, get involved, become part of the community and contribute to the conversation.  Provide your thoughts and share your interests.  Give a little, get a little.

Lynn Lenart, Law Librarian, and Richard Cohen, Associate Professor & Director of the University of Akron’s Legal Writing program have written a “Guide for WestlawNext & LexisNexis Online” that should give a lot of you a good overview of the new legal research products (and tweaks to existing products).  It is written from an academic point of view (after all, it is a LR&W course!), but most of the research information is applicable to anyone looking at transitioning over to the new products, or assisting you if you’ve already made the jump.

Here’s what Lynn Lenart posted to the law-lib listserv this morning, along with a link to the PDF.

At the suggestion of the Director of Legal Research & Writing Program, Professor Richard Cohen, I am sharing … the link to our Guide for WestlawNext & LexisNexis Online Research.   http://www.uakron.edu/law/library/docs/user_guide_nat.pdf

  • The Guide was written at the introductory level for new law students taking their first legal research and writing course.  The legal research portion is tied in with the writing assignments so statutes are covered first in the Guide, then case law and lastly, secondary sources.
  • Westlaw and Lexis both have research guides but we know that students do not take the time to read the vendors’ guides.  
  • The Guide will have to be updated when the new LexisNexis interface is rolled out but we did not have access to the new Lexis this summer.  The law librarians and LARW faculty have been using WestlawNext since the end of March.  Our law school chose to have WestlawNext turned on for our law students in September in time for legal research training.  I presume that the new LexisNexis interface will not be available to our students until spring semester and we will update the Guide then.
  • For this national version of the Guide, we did not include our handouts for using the local library catalog, other library databases, or using Google Scholar.  

Thanks to Lynn and Richard for pulling this information together and sharing it with us.

That was the lyric of the Some Girls’ song I was listening to while I just happened to be reading how Google’s boss, Eric Schmidt, suggested that someday young people will have to change their actual identities to escape their online identities. Schmidt, like a lot of other “non-young people”, seem to think that young people give out way too much information online and that companies like Google end up knowing “roughly who you are, roughly what you care about, roughly who your friends are.”

I think that Schmidt is right, to a point, but may be over-dramatizing quite a few things, and seems to be slightly hypocritical since Google has taken liberties with people’s online identities in the past (i.e., linking Gmail and Buzz accounts without permission) and probably will in the future. Especially since the rumored “Google.Me” product is another Google attempt to enter the social media network (after the less than successful attempts of Orkut and Buzz.)

Schmidt also has a pie-in-the-sky view of what Google will eventually become. I found this quote to be a little cocky when Schmidt said “I don’t believe society understands what happens when everything is available, knowable and recorded by everyone all the time… I mean we really have to think about these things as a society.”

Schmidt really believes that Google will create a search engine that makes everything available, knowable and recorded by everyone all the time??? Sounds to me like someone has a God-Complex if he thinks that Google is going to eventually be omnipotent. Google’s good… but it’s no God.

As for the topic of people eventually having to change their real identity to escape their online presence, it seems that many are turning that concept on its head through the creation of fake online ids in order to protect their real identities. The BBC blog asked its readers “Are you ashamed of your online past?” Most of the answers were “of course I am… that’s why I use a pseudonym and a cute little avatar.” Perhaps that is working for the time being, but perhaps Schmidt and God Google are working out the algorithm to uncover who really is behind that cute little avatar.

My words of wisdom: “Don’t put anything on the Internet that you wouldn’t read out loud in front of your Grandmother, in Church, on Sunday morning — or to your boss on Monday morning.”

Sometimes reading the morning legal headlines can be funnier than reading the comics. This morning I came across two articles where Judges dismissed the cases and also blasted the plaintiffs for submitting petitions to the court that either didn’t list a single legal reference to back up the claim, or attempted the “everything and the kitchen sink” approach. Apparently, Judges still want you to state a legal claim (and actually cite the statute, regulation, ordinance, etc.) and at the same time be “a short and plain statement of the claim”.

NotMyBathRoom.com v. City of Missoula (no legal basis cited for claim)

The folks behind “notmybathroom.com” filed a complaint against the City of Missoula, MT to strike down an anti-discrimination ordinance that seems to allow transvestites to use the public bathroom of their gender choice (as well as protecting them from housing and employment discrimination… but, I’m assuming with the name like “notmybathroom.com” it was the public bathroom issue that drove their case.) According to District Judge Douglas G. Harkin, it was impossible for him to make the City follow the law when the Petitioners’ failed to cite what law the City was supposed to follow in the first place. [PDF]

Judge Harkin went on to bench-slap the Petitioners and to tell them that the Montana Supreme Court takes “a dim view of a request for a writ of mandate that does not identify the law which it is alleged has been ignored or the facts which support the request.” I guess implying that “there ought to be a law” just isn’t good enough for Montana courts.


Woodward v. Raymond James (When a 112-page, 243-paragraph complaint just pisses off the judge.)

Perhaps the problem with this case is that it had six different plaintiffs’ attorneys from four different law firms and they couldn’t decide who would write the complaint… so they just combined all six drafts??[PDF] I guess this footnote [PDF] from Judge Robert P. Patterson really says it all:

The Court notes that the extreme length of the Amended Complaint is an independent ground for dismissal, pursuant to Rule 8(a)(2) of the Federal Rules of Civil Procedure, which requires that a pleading contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” See Local No. 38 Intern. Bhd. of Elec. Workers Pension Fund v. American Express Co., No. 09-cv-3016, 2010 WL 2834226, at *1 (S.D.N.Y. Jul. 19, 2010) (“While securities fraud claims must be pled with particularity, a plaintiff need not lard a pleading with streams of consciousness from confidential witnesses and block quotes from analyst calls. Plaintiff’s hydra-like complaint sprawls over 243 paragraphs, some silted with more than 500 words.”). The Court notes that this appears to be a trend in complaints filed in securities actions, and emphasizes that the federal rules do not require this sort of kitchen-sink complaint in order to survive a motion to dismiss.

The lessons to learn from these two cases?  

  1. Petitions should only be as long as absolutely necessary.
  2. Don’t forget to mention specifically what law you think has not been followed.

Follow those simple rules and you’ll be less likely to find yourself on the wrong end of a bench-slapping.

If I were to say the phrase “Temporal Analytics Engine” to you, would you think I was quoting something off of Star Trek: The Next Generation? Well, it would turn out that (this time at least) you would be wrong. A temporal analytics engine (TAE) is actually a method of searching documents that discuss related people, places and events and then attempts to determine what will happen in the future. The website Recorded Future is one attempt at creating a usable TAE, and it has got the interest of a number of competitive intelligence organizations, including Google and the CIA.

Many of us that compile competitive intelligence analysis understand that some of the best information is freely available, especially in the Google Era.As  However, uncovering the golden nugget of information in a mountain of raw data is how most CI Analysts make their marks within organizations. It looks (from my brief review anyway) that Recorded Future is attempting to not just pick out the gold nuggets of information from publicly available documents, but to also create a map to locate the next golden vein within the mountain of future data. The trick, according to Recorded Future’s CEO Christopher Ahlberg, is that “you can actually predict the curve, in many cases” of what will happen.

Here’s the blurb and a short video that Recorded Future has on its competitive intelligence gathering approach:

Competitive intelligence research
Media analytics on corporate activities…
Competitive intelligence- follow future strategic plans and historic activity ; learn from your competition

  • Find out which products your competitors are using
  • Spot mergers, acquisitions, financial ratings, analyst guidance,accounting changes
  • Monitor for product recalls, companies using products, legal issues, IPOs, patent issuances, product releases
  • Uncover strategic alliances and business relationships
  • Find quotations and track sentiment in analyst, commentator, news and blog statements

There is a free version of Recorded Future that gives you some limited functionality (email reports, but none of the cool visualization widgets).  To get all the bells and whistles of Recorded Future, you need to upgrade to the Premium Package of $149.00 a month. I’d be very interested in hearing from anyone that is using the Premium Package of Recorded Future and seeing if it delivers as well as the presentations appear… because it and the whole Temporal Analytics Engine idea appears to be a very powerful resource.

A recent conversation lead me to draw this graph on a napkin over lunch. The graph is a comparison of pricing power and profit margins for monopolies versus competitive markets over time. What the conversation was about was the shift in the legal market away from monopoly pricing – towards a competitive market. As one might expect, monopolies have extraordinary pricing power and can extract higher margins. Monopolies can also slow the product pricing drifts toward the commodity level over time. One economic rule is that all prices tends toward the commodity level over time (ending roughly equal to the rate of inflation).
There are numerous articles and blog posts that discuss this phenomenon from practical implementation perspectives. This post examines the shift from an economics view point. Exploring law firm pricing and service behavior to understand and suggest how market shifts might occur.
The difference between these two pricing lines represents the shift from the old way to the new normal for law firms. This shift is occurring at different rates for different practices, but my projection is that all practices will follow this shift at some point, in some fashion. This doesn’t mean they will all have commodity pricing and margins, but instead means the high margin niche work will not be as rich and will not last as long as it has in the past. It also means that a current practice that falls within the widest difference between these two lines will have the biggest challenge adapting. Since existing legal service delivery models are built on the monopoly line, the costs of delivery may even be above the new margin line, resulting in negative profits (an odd yet useful economic phrase).
As previously posted on 3 Geeks, legal project management (LPM) is a first line of attack to adjust the delivery model to lower cost levels. However, in practices that fall between the yellow lines on the graph , LPM will probably not reduce delivery costs enough to maintain positive margins as this is merely providing service with the same basic model – only more efficiently.
In the past, many law firms could lazily drift towards the left on the monopoly line and comfortably live in a non-commodity (and generally non-competitive) pricing market. These law firms do not know how to adjust delivery costs down, since they have never had to do it. So the new skill of reducing delivery costs is required (versus reducing overhead costs).
There will only be a limited market for the high margin niche work, and too many firms think that is their market based on past experience. Firms that attempt to sustain monopoly pricing and service behavior when their service lines don’t support it, will struggle to survive.
I suggest you take a hard look at where you practice likely falls on these curves. The traditional dismissal of “this doesn’t apply to me – my practice is unique” is most likely misguided. There is not a lot of space on the upper end of the normal market curve. So brushing this type of analysis off may well put you in the cross-hairs of change.
Even if you are right about your practice being high-margin, you will note that the margin level for non-commodity practices gets reduced as well. Better to adjust your behavior “as if” than hold on to an arrogance that will doom your practice or firm.
Also as previously noted on 3 Geeks – the monopoly is broken. Even prior to the recession there were definitive signs of this shift. The long-held pricing power of the sellers (i.e. law firms) was slipping. The recession accelerated this shift and compounded it. The third leg of this stool comes in the impact of technology. Long have lawyers held back the advantages of technology, since they had a strong incentive to maintain the monopoly-type, inefficient service methods.
This ‘perfect storm’ in the market should not be ignored. Clients are making their intentions clearly known. The days of expected annual rate increases are gone. The days of ‘no stone left unturned’ service models are gone. What is coming, across the board, is a new value-to-price expectation. The market continues to struggle with what the ultimate shape this shift may take. Pricing/margin curves will take different shapes for different practices. However, this shift is happening. Holding on to some hope or notion that you will be one of the lucky few to only experience a minimal impact is not what economists call “rational market behavior.”