Following on the heels of my prior TECHSHOW post on clients being smart … another phrase I heard repeated often at the conference was that we are experiencing rapid change. Really?
Finally I heard a variation of this that rang true to me. I overheard someone say, “The Change has already happened.”
After giving this some thought, I have to whole-heartedly agree. The change has happened. There may well be further changes, but the market shift change everyone seems to be yakking about has already occurred. We’re in a buyer’s market. There’s tremendous pressure on hourly rates and on the number of hours lawyers bill – regardless of how many AFAs are in use. Clients have changed their legal spend habits. So what we’re really experiencing now is a Darwin effect. After change comes adaptation.
Two Thoughts:
1 – If you’re waiting to see what the new normal will look like. We’re there.
2 – You should focus your efforts on adapting. Following a survival theme, this means doing things differently, not the same way only smarter (again – see my “Clients are Smarter?” post).

The news that Thomson Reuters announced that they are shutting down the Banks Baldwin Company seems to have flown under the radar. Last week, Thomson Reuters’ spokesman Scott Augustin announced that it will shut down the 207 year old Banks Baldwin Company and shift the work of the 132 laid off employees to New York, Minnesota, the Phillipines and India. There were three sentences in Augustin’s statement that I want you to read and think about:

  • “After it closes, the work will be shifted to New York, Minnesota, the Phillipines and India”
  • “It’s important to note that this action is in no way is a reflection on the performance of the Cleveland office staff or the quality of their work”
  • “the [Thomson Reuters/Westlaw] merger had no bearing on the [Banks Baldwin] office’s closing”
Thomson Reuters already started the layoffs last Friday and plans six more rounds of layoffs this year and will shut the Banks Baldwin office down for good by the end of 2010.
It seems that Banks Baldwin was a victim of its own forward thinking ideas. According to the Encyclopedia of Cleveland History:

Banks-Baldwin has long been an innovator in legal information product development. The company established computer databases for its publications in the early 1970s; established the first monthly session law service in 1971; published the only Approved Edition of the Ohio Administrative Code in 1977; provided access to Ohio unreported appellate cases beginning in 1981; launched new product lines for handbooks, journals, and newsletters throughout the 1980s; licensed its publications for online search and retrieval in 1985; and pioneered the development of CD-ROM products for the legal market beginning in 1988.

So, it wasn’t like Banks Baldwin was just a stodgy old print shop operation. However, like many within the US manufacturing industry, the ‘work’ those employees perform is a lot cheaper to do in India and the Phillipines, although the quality may not be as good. It makes you wonder whether there is a future for not just law books, but also whether there is a need for legal research and editing within the United States or if it can just all be outsourced to the cheapest resource?
I hope that another publisher (maybe a new upstart from the ashes of Banks Baldwin) can use the talent that is being left behind in Ohio.

You got to love a court opinion that starts out by reminding the attorneys of their responsibilities in filing petitions on appeal.  In B.J. v. State of Utah (PDF) the three-panel judges from the Utah Court of Appeals spends about 1/3rd of the opinion explaining to the attorneys that spitting out a series of citations without any facts to place those citations in context is failure to meet the requirement set by the appellate court.  Here’s the quote from the court:

As a preliminary matter, the court takes this opportunity to remind all counsel appearing in child welfare proceedings of their responsibilities to file petitions on appeal, and responses to those petitions, that comply with the requirements of rules 55(d) and 56(b) of the Utah Rules of Appellate Procedure. While the court is mindful of the restrictions placed upon litigants due to the expedited appellate process in child welfare proceedings, petitions on appeal and responses to those petitions must be designed to zealously advocate the positions of the parties and to assist the court in resolving the matter. In so doing, the parties should provide the court with an adequate statement of facts that will allow the court to understand the nature and history of the case. Further, the parties should attempt to apply legal authority to the particular facts of the case. See In re B.A.P., 2006 UT 68, ¶ 12, 148 P.3d 934 (discussing the obligation to include an argument section in a petition on appeal). Legal citations unaccompanied by an application to the particular facts and issues involved in the case are rarely helpful. Ultimately, counsel should consider petitions on appeal and responses thereto to be more like briefs than docketing statements. [emphasis added]

 Hat’s off to Judges Davis, Thorne and Roth for handing out a little wisdom as well as a decision.

[note:  Thanks to Mari Ferguson Cheney for pointing this out via Twitter.]

If you ever want to see a law librarian blow his or her top, then do to them what Thomson Reuters (West Pub and Warren, Gorham & Lamont (WG&L))  is doing right now. It seems that someone at TR Legal decided that it would be a great idea to start sending out new print publication titles (specifically the new “KeyRules” titles for the state court rules series.)  For any law libraries that currently subscribe to the West’s State Court Rules series, you will be automatically sent the new volume of that series and it is up to you to either keep it and pay for it, or send it back (postage pre-paid by TR Legal).

This is an old trick of hoping that law librarians are either too busy to notice that they’ve just received unsolicited material, or that they simply give in and decide that it is too much of a hassle to open up all the boxes, reattach the return labels and have the items shipped back to West.  Just do a quick Google search on “law-lib unsolicited West” and you’ll see complaints going back to 1995 (probably earlier) complaining about this very practice. In a letter attached to WG&L’s new title Transfer Pricing Strategies, TR Legal makes it sound like they are doing me a favor by sending this $135.00 book (plus shipping and handling) to me without my being asked.  And, they make it sound like it is no big deal that they’ve burdened me (and hundreds of others) because we could just simply slap a return label and ship it back.  Here’s a copy of the letter I got from WG&L telling me how lucky I am to get this unsolicited title.

I understand that print sales have fallen off a cliff over at TR Legal, but stunts like this will only serve to make customers angry. Hopefully, AALL’s CRIV (Committee on Relations with Information Vendors) is looking into the practice and asking TR Legal to stop it.  I noticed that something like this has happened in the past where West claims that because they sent out an email alerting everyone that they were going to ship these, that makes it “okay” and not regarded as “unsolicited”.  Even if that ‘technically’ make is okay, it still smells of trickery and desperation to me.

I talked with my West publication reps about this and they are taking care of it.  So, I appreciate what Ann and Terri are doing to make this right.  I also don’t personally blame either of them for this happening, but did ask that they pass the “chewing out” that I gave them up the ladder to those that made this stupid decision.

Some recent posts on the hot and getting hotter topic of Legal Project Management (LPM) somehow reactivated some dormant college brain cells. After ‘enjoying’ 10 years of Economics I did my best to suppress those memories, but yet they still seem to pop up at the oddest times.
The concepts that came to mind were market requirements and differentiators. A market requirement is an asset or skill required to be a participant in a given market. If you’re a ditch digger, a shovel and the ability to dig would be market requirements. A differentiator might be an extra sharp shovel for digging in hard rock. In a market – a requirement gets you in; a differentiator gets you hired.
LPM, as such a new concept is an obvious differentiator – for the future. But my thought is that there is actually an immediate differentiator to consider when buying legal services. In my experience, some lawyers have innate project management skills, or they may have picked them up in a prior professional life. In any event, these lawyers know how to manage a legal matter to a budget and thus have a significant market differentiator right now.
If you’re a client, now is the time to look for these differentiated lawyers. You probably already know some, but may not have thought of them in this way:
Requirement: Excellent legal skills
Differentiator: Good project manager
As a client – recognizing and rewarding this differentiating factor may do more to reach your goal of saving on legal fees than discounts and AFAs will – especially in the short-run.

This morning I was getting an update from LexisNexis on their new and yet-to-be announced stuff and happened to see something flash by on one of the screens. I said: “Whoa- back up there.” Listed on the ‘already have’ section of the presentation was an iPhone App.

After having heard ad nauseam about how Fastcase was the first to release a legal research iPhone app – I had to ask: When was that release?
Answer: Last November.
Two points:
1 – Apparently Fastcase didn’t have the first one.
2 – LexisNexis could have had all that press and market buzz if they had been more Web 2.0 savvy.
BTW – once I get word back from LexisNexis on what is public, I will be posting on some of their upcoming stuff. There’s some interesting tools in the pipeline.
Yes… the title is a Star Trek reference (after all, this blog is called 3 Geeks and a Law Blog).  We’ll get to the management styles of Engineers Montgomery Scott vs. Geordi La Forge in a minute.  
Since the Great Recession started in October 2008, I’ve been seeing and hearing more and more comments about how librarians need to give up certain things in order to survive the economic downturn. While some of those statements may be true, I’m not sure I like the blasé attitude that I’m hearing from others in the field about ceding ground on a number of library issues.  For example, I had to sit through a library meeting on the east coast a few weeks ago and listen to a consultant tell the group that if your employer (law school, firm, court, etc.) is discussing layoffs… go ahead and volunteer some of your staff for layoffs so you’ll be seen as a team player.  WHA??? I looked around at the room waiting for someone to jump up and hit the speaker, but very few in the audience seemed to have noticed the great insult the consultant hurled at them. I had missed the first half of the presentation, so I thought maybe I missed the front end of this story that made the “go ahead and volunteer some staff to be laid off” as the punch line to the joke mentioned earlier.  But when I checked with a friend afterward and she said that it wasn’t a joke and that the consultant was giving clients the same advice. And, just think… those clients are paying for that advice.
This morning, I read an article on LLRX.com called “From the Law Firm Library Trenches: A Conversation Between Two Veterans” where a running dialog between two experience law firm librarians (Karen Krupka and Elaine Billingslea Dockens) discussed a variety of issues.  Now, I’m going to be a little unfair to the two authors because I’m going to criticize a small piece of an otherwise great article and probably take the comments out of context as well. So, now that I’ve apologized in advance…
When discussing the value of membership in professional organizations, attending professional conferences, and continuing education programs, both Karen and Elaine agreed that if the firm doesn’t pay for these activities in its professional development budget, then “you should pay for it yourself and include the expenses in your personal budget.”  I agree… but felt that about five “you should fight for this” statements that were missing between the “firm not paying” and the “pay for it yourself” statement.  The library’s professional development budget is probably one of the smallest line items in your budget.  Giving in on this produces very little “budget cutting” and ends up being a morale buster and in my opinion creates a situation where you’re hamstringing your ability to be risk manager for your firm.  It is through professional development events that we connect with our peers, get the latest information on what new products are being introduced, and have the ability to foresee issues that will affect the firm in the near future and be ready to proactively address them now rather than react to them later. Rolling over on issues like this may make you a team “player”, but it most certainly doesn’t make you one of the team “leaders”. 
There is always a “game” being played between the leaders of the law firm libraries, and those that want to cut what they see as firm overhead.  In the crudest of terms, it can be called the “Prove Your Worth Game.”  First of all, if you don’t know there’s a game being played, or you don’t know the rules of this game, you’ve probably already lost.  Libraries tend to have one of the highest budgets in the firm, and are always under attack.  Since you probably spend most of your money on two specific vendors, it makes it that much more difficult on other line items (such as professional development).  When you’re faced with the situation where you have to make cuts, you can be a team “player” and methodically go through and trim line item after line item and even volunteer a few more things along the way.  Or, you can be a team ‘leader’ and start trimming those same items, but at the same time standing up to those that want to cut overhead and let them know the overall effect that each of these cuts will have on the firm and the library’s ability to manage risk for the firm.
This brings me to my Scotty vs. La Forge comparison.  Take this conversation between the two engineers and see if you can spot who is the team player and who is the leader:

Geordi: Look, Mr. Scott, I’d love to explain everything to you. But the captain wants this spectrographic analysis done by 1300 hours.
Scotty: [thinks about it some time] You mind a little advice? Starfleet captains are like children. They want everything right now and they want it their way. But the secret is to give them only what they need, not what they want.
Geordi: Yeah. Well, I told the captain I’d have this analysis done in an hour.
Scotty: How long would it really take?
Geordi: [annoyed] An hour!
Scotty: [looks unbelieving] Oh. You didn’t tell him how long it would REALLY take, did you?
Geordi: Of course I did.
Scotty: Oh, laddie. You’ve got a lot to learn if you want people to think of you as a miracle worker. 

There will be many times when you’ll need to cede ground on issues like professional development and have to face the fact that if you want to do it, you’ll have to pay for it out of your own pocket.  However, items like professional development shouldn’t be given up with out a fight; otherwise those that are looking to cut overhead will see you as weak and will be back for more.  If you are expected to pay for your own professional development today, and you give in without a fight, then what will you be asked to pay for out of your own pocket tomorrow?  

Brian Harley, LLM at Columbia, is writing an interesting multi-part article entitled “Semantic Lawyering: How the Semantic Web Will Transform the Practice of Law“, where he discusses the potential to use advanced and emerging technology to analyze information in order to create “smarter information” that assists lawyers in how they conduct legal research and thusly how they practice law.

The idea of using the concept of Semantic Web technology (which Harley defines as “a way of making data smart”) isn’t new, even in the legal field.  However, with the massive amount of information that exists, combined with the additional information that is created over time, many believe that there needs to be an automated method that makes the information more understandable by “computers” and in return, makes relevant information easier to find by the “human.”

Semantic Web technologies are already being looked at by companies such as New York Times, recovery.gov, BBC, and Thomson Reuters. Harley attempts to take us in the future of how legal information is created, stored, tagged, queried, analyzed and formalized into a ‘set of machine-readable rules’.  Harley even ponders that in such a future “would we even need lawyers and judges, or could they be replaced with computers and Semantic engineers of the law?”  Since practicing law is more of an art than a science, the Semantic Web may not replace those lawyers and judges, but it might make them much better at practicing their craft.

Although Harley’s article begins with Richard Susskind’s quote of “predicting the future is a hazardous business”, it is interesting to read a practical application of how the Semantic Web might affect the practice of law. I look forward to seeing part four of Harley’s vision of the future.

Semantic Lawyering: How the Semantic Web Will Transform the Practice of Law:
Part 1 – The problem: too much data
Part 2 – What is the Semantic Web?
Part 3 – A Machine Readable Version of the Law?
Part 4 – Smart documents and semantic contracts (coming soon)

I started bouncing an idea around in my head this weekend while all of the Sunday Morning news shows were discussing Justice Stevens’ retirement. “If I had to replace Justice Stevens with a law librarian… who would I pick?” Now, you may chuckle about the idea of having a law librarian as Supreme Court Justice, but it may not be that far of a stretch to think of someone with the skills of a law librarian to put on the black robes and write judicial opinions.  In October of 2008, US News and World Report said that the “Best Nonpolitical Job” for a political junkie was a librarian. The US Supreme Court is supposed to rise above the fray of politics, so who better to do that than a law librarian?

If I weren’t limited by the fact that serving on the Court requires you to be alive, my choices would have immediately gone to two personal legends in the field;  Roy Mersky (1925-2008) of the University of Texas or Bob Oakley (1945-2007) of Georgetown University.  Both were known as “giants” in the field of law librarianship and deeply respected for their leadership.  Although I’d only met Roy Mersky a few times, it was clear that he commanded whatever room he was in.  I had the pleasure of serving with Bob Oakley on the American Association of Law Libraries’ (AALL) Future of Law Libraries in the Digital Age special committee, where Bob made sure that all of the committee members stayed on task. However, since Merksy and Oakley are no longer around, who are the giants of the law library field that we could nominate today?

We could look at the list of past presidents from AALL for names of leaders within the field.  Cornell’s Claire Germain (2005-2006) jumped off the list as someone that commands a room like a Roy Mersky.  Claire would most likely make a great Justice, but her French accent may not play well on some of those cable news networks. Another great choice might be Barbara Bintliff (2001-2002) who was just announced as the new law library director for the University of Texas.  I’m not sure if Barbara is willing to give up a great position in the capital of Texas to take up one in Washington, DC at this moment.  How about someone like Mark Estes (1992-1993) from the Alameda County law library?  Mark and I have made some appearances lately on Rich Leiter’s Law Librarian Conversation podcasts, so I hope I haven’t diminished his chances for nomination.

How about someone that is not on the AALL past president’s list?  There are a few names out there that always seem to be discussed in law librarian circles.  Jim Milles from the University of Buffalo would be a good choice.  Although, anyone that knows Jim might think that his trail of blog posts might make him a target of some within the Senate confirmation hearings.  Tom Bruce of Cornell’s Legal Information Institute (LII), might be another law librarian to consider (note: although, not officially a law librarian, his work with LII earns him an honorary title).  Tom’s work with LII, and his current affiliation with Carl Malamud’s LAW.gov effort might also make for some interesting Senate hearing discussions.

With the exception of Mark Estes, it seems that the picks for law librarians to replace Justice Stevens have an academic bias. So, let’s pick a couple of names from law firms.  There’s Bob Oaks from Latham and Watkins.  That would be an easy choice since he’s already right there in Washington, DC.  There’s also the famous “Al of Cleveland” Podboy from Baker Hostetler.  However, I just don’t think that Al Podboy would want to give up the comforts of Cleveland and move to Washington.  My personal favorite in the law firm category would be Steven Lastres of Debevoise and Plimpton.  Anyone that can master libraries, knowledge management, and records management (and I’m sure a few more departments on top of those) should be able to step right in to the Court without blinking an eye.

[Note:  It was pointed out to me that I did not list any women law firm librarians on this list despite the fact that probably 80% or more of the AmLaw 100 library directors are women.  I apologize, for there are a number of qualified women that make the list with Jean O’Grady from DLA Piper being one, and Gitelle Seer from Dewey & LeBoeuf being another of a long list.]

I’m sure there are a number of well qualified law librarians I missed on my very short list of potential replacements for Justice Stevens.  So, if I missed your name, or someone that you would like to see nominated for the high court, chime in below.

Texas resident Karen McPeters has brought a class action lawsuit against Montgomery County Judge Fredrick E. Edwards, Montgomery County Court Clerk Barbara Gladden Adamick, and LexisNexis claiming that requiring her to exclusively file documents through LexisNexis’ FileandServe product is a violation of US and Texas laws, and that the county and LexisNexis are engaged in RICO violations with their exclusive agreement.  McPeters, through her San Antonio attorney, Robert L. Mays, Jr., has filed the class action suit in the US District Court Southern District of Texas in Houston (Civil Action No. 4:10-CV-1103).

McPeters’ claim states that Court Clerk Adamick requires all of Judge Edwards civil cases to go through LexisNexis FileandServe, and will stamp any documents filed directly with the Court Clerks office with a “VOID” stamp and return the documents unfiled.  In her complaint, McPeters states that Adamick is relying upon an unsigned order from Judge Edwards from February 10, 2003, and there “is no standing order, signed by all of the District Judges in Montgomery County, establishing e-filing requirements for one, or more, of the courts of Montgomery County.”  According to the 2003 Judge Edwards order, only civil litigants are required to file through FileandServe and that criminal defendants are not required to use FileandServe.  Judge Edwards also excluded the following from the same requirement:

  • The State of Texas
  • Child Protective Services
  • Adoption Agencies, and
  • New divorce and annulment cases that are resolved within 90 days.
McPeters claims that the agreement between the courts and LexisNexis is a RICO violation through what she calls the “Plan” between the court and LexisNexis that requires her and other litigants “to pay filing fees, service charges and taxes that are no authorized by statute, and that exceed the amounts required by statute.” She believes that the “Plan” also financially benefits the county and that Judge Edwards and Court Clerk Adamick have gone beyond their official powers to require electronic filing and refusing to accept or file any documents presented directly to the Court Clerk’s office.  
The claim goes on to add that the exclusive agreement violates McPeters’ and other litigants’ due process rights, equal protection under the US Constitution as well as the open courts and due course of law rights under the Texas Constitution.  McPeters is seeking exemplary damages and wants the County enjoined from requiring that the court documents be filed exclusively through FileandServe.
It is always interesting when courts get into these agreements with private vendors where the court gives the vendor the exclusive rights to something like electronic filing. Yes, it does make things convenient for many of us who file regularly with the court, but what is convenient for some may not be for all litigants.  Requiring someone to only use a private vendor to file court documents, while at the same time refusing to accept the physical documents through the Court Clerk’s office seems like one of those situations where a Draconian Rule overrode common sense. It will be interesting to see how this suit takes shape over the next few months and what affect it will have over other courts that have exclusive contracts with vendors for e-filing, and if they can force everyone to use (and pay) that vendor while the court clerk refuses to accept any documents filed directly with his or her office. 
Thoughts??