“Always and never are two words you should always remember never to use.” Wendell Johnson A recent ‘debate‘ on Ron Baker’s Verasage site got me thinking about hourly versus value or fixed fee pricing. The substance of the debate between Ron and Colin Jasper focuses on whether hourly billing is ever justifiable. As reflected by the above quote, I am skeptical when someone claims you can “always” do one thing, or “never” do another. So I respectfully disagree with Ron on this one, noting that it is not the law firm who will decide if hourly billing is the right option, but the client. Where I agree with Ron generally is that fixed fee pricing isn’t rocket science. Engineers, architects, construction companies, even plumbers are service providers who have been doing this for years. As a provider, you develop a scope of work and then give the client a price for it. From my growing experience in dealing with alternative fees, I can tell you the scope of work effort is the part outside and in-house counsel struggle with the most (alluded to in Colin’s reply to Ron). For years both sides have used this problem/challenge as an excuse for not having fixed fees. The common reason was that “there are too many variables” to possibly develop a scope of work for a matter. Although lawyers don’t use the term ‘scope of work’ they are referring to their inability to define the parameters of a legal matter due to outside influences. This reasoning applies to both litigation and transactional matters. But let’s take a pragmatic look at this approach. At the outset of a case it may be very difficult to develop a useful scope of work. At that point, many critical unknowns may exist, like opposing counsel, jurisdiction, judge and most of all, the complete facts of the matter. In contrast, at the end of a matter all of this is known. So the question becomes: At which point in a representation do we know enough about the matter to develop a useful scope of work? Even the well-known ACES model from Jeff Carr provides for a period of time for lawyers to gather the relevant information before they give a hard budget for a matter. So based on numerous alternative fee deals, I predict something in the future along these lines for value pricing legal services:

  1. Matter comes to law firm
  2. Law firm and client agree to an investigation stage. The fee for this stage may be fixed or hourly, based on the clients’ needs and the complexity of the case. On some matters this may be done for free.
  3. At the completion of that stage, the law firm provides a scope of work and fixed fee for the matter. There may be phases priced out separately (e.g. trial).
  4. If events drive work outside the scope: a) The scope is redefined and the price re-set, or b) A fee is set for the out-of-scope work (hourly or fixed as preferred by the client)

The more routine the work, the more likely all aspects can be fixed fee (but not necessarily). The more complex and ‘bespoked’ the work, the more likely hourly billed components will be utilized. If something has changed in the legal market (and I believe it has) it’s that the excuses for developing useful scopes of work will no longer be tolerated. What will (and should) be tolerated are efforts to bring focus to a legal matter to properly develop the scope. These new efforts will bring a high value proposition to clients and lead law firms to more profitable structures. To reiterate, the hard part of value pricing and alternative fees will be developing useful and effective scopes of work. This is a new thing for law firms, and it will lead to more and deeper changes in the profession.

One of the bad things about a down economy within a BigLaw library is that you need to reevaluate the way you are spending money on your resources. One of the good things about a down economy within a BigLaw library is that you need to reevaluate the way you are spending money on your resources. In the previous post, Mark Gediman mentioned:

“Most law firm decision makers believe that actual costs, while important, are secondary to perception when it comes to budgeting decisions.”

In reality, the Partners tend not to focus on the actual cost of a resource they need, because they see it as necessary for their matter or business development (or they wouldn’t have asked for it in the first place!) But those on the Administrative side of the BigLaw library have to care about actual costs (because that’s their responsibility!) As I mentioned in the previous post, the Administrative side is generally winning this “actual cost” vs. “actual need” debate.
There is a definite paradigm shift going on in the BigLaw libraries where lawyers will no longer be able to add ‘actual costs’ to the library budgets, without showing the ‘actual need’ for the product. The justification of resources seems like a change that has been long overdue in may BigLaw firms. One of the reactions to the change that I fear is that the pendulum will shift too far the other direction and that firms will create a “slash and burn” policy when it comes to library resources. If the partners do not take the time to justify the resources they need, the Administrative team may set up a method of review where the default answer is “cut the resource.”
The “slash and burn” policy on cancelling subscriptions (both print and electronic) may start out being a good process that will get rid of resources that are not really needed in the law firm. The attorneys in the firm have demanded a lot of resources over the years, and some of those resources were used a few times, then never really used again, or were duplicates of existing resources, because a certain Partner liked the “other” resource better than the one the firm already has. With the “slash and burn” policy, all of those resource have to be defended in order to keep them. Plus, now that firms are using additional monitoring tools (OneLog, LookUp Precision, etc.) librarians and administrative bean counters now have the ability to call Partners on those resources that aren’t being used.
The problems that are going to arise over the “slash and burn” policy is one that is as old as the law firm itself. The firm is not a corporation, it is a partnership. Each Partner believes that his or her work is vital to the survival of the firm. If a $10K research tool is needed in order to help on a $1 million matter, then so be it. The true test is going to be not in the ability to cut resources and identify what is essential and what is not. Rather it is going to be stopping the firm from winding right back where it is in 10 years through placating Partner demands to add new resources. When you have dozens (or hundreds) of Partners to deal with, and each believes his or her requests are necessary expenses, you’ve got an administrative nightmare on your hands. Some firms are erecting barriers to these types of individual Partner requests, such as purchasing committees, but most of us know that it doesn’t take long for Partners to find ways around those barriers.
The reality of the current situation is that creating a “slash and burn” policy is a desperate attempt by the leaders in the law firm (both Partners and Admin) to say “Please save us from ourselves!!” There’s going to be a lot of conflict over the next few years when those tasked with controlling research costs are approached by different Partners that say “I know we’re cutting costs, but this expensive resource is absolutely needed for my important cases.” These exceptions build up over time and tend to be approved more often than not. I’m just afraid that we’re not going to learn from our past mistakes, and all we’re going to wind up with is another bloated budget, and a big stack of “CYA” paperwork to show how we ended right back where we started.

Toby pointed me toward Ron Friedmann’s post Slashing BigLaw Libraries where Ron reviewed the AmLaw Law Librarian Survey and asks whether law firms and librarians are “fundamentally” rethinking the way the library works and delivers services. I shared the following response with my good friend Mark Gediman, and Mark gave me back some comments and an alternate view. I thought I’d put both of these together to offer a couple of views on how law libraries are changing the way they service the law firm in a fundamental way. My thoughts focus on some of the problems I see with how library services are being changed to increase the overall efficiency of how the library works, while Mark’s views are more positive and lay out some specific examples of how services are changing, but continue to focus on the value that each individual contributes to the firm.
[Greg Lambert]
The “fundamental” change in library services that I’ve been seeing is one of organization. The structure of library services is changing in a way that fits what the Administrative leadership of the firm views as the most efficient method [think of “The Bobs” from the movie Office Space.] Here’s a breakdown of some of the fundamental “structural” changes in the law firm library:
  1. Library services are adopting the “IT” model of the centralized help desk.
  2. The Administrative leadership of libraries wants all of the researchers to be “generalist” rather than “specialist”. a. That way each researcher can handle any question. b. This makes scheduling easier (since every researcher is basically the same) .
  3. Attorneys still want “specialists” that are their “go-to” people on particular issues. Obviously, this creates a conflict between the “efficiency” that Admin is being asked to design, and “effectiveness” that attorneys desire when calling upon the research staff to assist in their matters
There is a conflict between what the Administrative Leaders of the firm are being tasked to do with the library and the desires of the attorneys that use the resources found within the library. The administrative side is focused on cost cutting and reducing overhead of the library. The cuts range from physical space, to electronic and print collections, to staff. The attorneys within the firm want a library that responds to their needs, on an as-needed basis.
This is not a new conflict between the Admin and the Attorney sides of the firm, but we’ve reached a point now where the Admin side is winning. My fear is that the resulting economically efficient library will no longer effectively handle the needs of the attorneys it serves.
[Mark Gediman]
I think that too little has been said about the significance of Greg’s points #1 & #3. We have adopted the helpdesk approach to wean the attorneys from calling only their go-to people as well as leverage our far-flung staff. The helpdesk approach addresses the following issues:
  1. complaints about lack of service when the attorney’s favorite person is not available.
  2. Staff located in peripheral locations are not fully utilized
  3. a frustration factor sets in as the attorney works his/her way down a directory looking for someone to assist them.
I think having everyone with basic reference skills is necessary in this time of “lean and mean” staffing. But I also feel that having specialties can enhance the quality of the library service. For example, having a legislative specialist on staff enables the firm to take costs that were originally “pass-throughs” from contract services and add them to the firm’s revenue stream. In fact, these specialists can generate revenue in excess of their salary which allows the library to provide additional admin services without being a drain on resources. Members of the library should also be liaisons/specialists to specific practice groups. Combining a helpdesk with allowing (and encouraging!) the library staff to specialize is similar to the law firm IT model where everyone provides level 1 (help desk) support, including the level 2 specialists/engineers. It also allows the firm to ensure that help is always available without making a large investment in staff.
The Library as a department needs to make itself indispensable to the firm. Performing unique specialized services that add to the success of the firm, like Competitive Intelligence / Business Development and practice specialists, serves to emphasize that fact. Most law firm decision makers believe that actual costs, while important, are secondary to perception when it comes to budgeting decisions. The Library manager needs to constantly remind the firm of why they exist and the services they provide. This is accomplished by offering to present at retreats and attorney meetings, visiting each office regularly and putting on regular CLE programs in each office taught by various library staff members. This elevates our visibility, puts a face to a voice and showcases the individual skills of the library staff as well as reminding them that we are here and we perform a valuable function.
I was surfing the blogosphere yesterday and came across an article discussing copyright issues and some of the false hurdles it creates in creativity.

Although the article was very good, it was the use of this Plato quote from Phaedrus that caught my imagination. Plato was discussing the discovery of the alphabet and writing:
“…for this discovery of yours [writing] will create forgetfulness in the learners’ souls, because they will not use their memories; they will trust to the external written characters and not remember of themselves. The specific which you have discovered is an aid not to memory, but to reminiscence, and you give your disciples not truth, but only the semblance of truth; they will be hearers of many things and will have learned nothing; they will appear to be omniscient and will generally know nothing; they will be tiresome company, having the show of wisdom without the reality.”

I thought how much this is related to what we as librarians are fighting today. I thought I’d modify Plato’s words and have it be from a “Librarians” or “Researchers” point of view when talking an attorney using Google to do their legal research:

“… for this discovery of yours [Google] will create a laziness in the attorneys’ souls, because they will no longer desire to use their research skills; they will trust to the external Wikis and Blogs rather than remember their training. The results that the search engine returns through the use of a few keywords is not adding to their skills, but rather diminishes their abilities, and the answers they receive are not authoritative, but only attempt to give the appearance of authority; they will achieve millions of results and will skim the top few; they will think they are searching all of mankind’s knowledge, but in truth will barely scratch the surface; they will tire of the true researcher, as they believe the wisdom of Google is the new reality.”

Photo courtesy of WordPlay at http://hubpages.com/hub/2008-election-clipart-Obama-McCainFor reasons I won’t go into now, I don’t watch TV. If I can’t watch it online, I’m not doing it. So when the President was inaugurated or when he was giving an important speech, I watched it online via streaming video. Tonight I missed Obama’s speech to the Joint Session. And when I went onto C-SPAN, they pulled the video while I was watching it (it is up now). So I opted to download his speech and read it (as an aside, I will continue to do this in the future–it only took 15-20 minutes to read). Anyway, my point is this: the President does not have very good grammar skills. I must have spotted about 10 typos. Now before you start thinking (if you haven’t already), “what does this have to do with online legal marketing,” let me explain. Everything. Due to the demands and expectations of our “get-it-now” culture and the speed of technology, more web content than ever before is now being posted on a daily basis. The Online Publishers Association reports that, in July, the average online user either read or posted content on over 1,000 pages–let’s be conservative and say the average user wrote 300 pages of content. It could be a tweet, a blog, web content. This means we are writing just as much as we ever have but even more people are reading what we have written. The need for proof-reading is at an all-time high. Which brings us to the law: lawyers and law firms are judged by their legal writing skills and, consequently, grammatical mistakes are not well-tolerated. But what I have learned in my business as an internet marketer is that mistakes will happen. All the time. So what I have taught my staff is one of my favorite “Lisa-isms”: “We are not perfect, we all make mistakes. All I ask is that you fix it.” So I was greatly comforted to find that even the President of the United States has problems with grammar. I do too. Despite the fact that I majored in English Literature, most of the grammar I learned was from on-the-job training. So Mr. President, on the behalf of legal online marketers every where, I thank you. P.S. Another favorite “Lisa-ism”: “everything is fixable on the web.” Photo courtesy of WordPlay at http://hubpages.com/hub/2008-election-clipart-Obama-McCain

Coming on the heels of our Gmail Waives Privilege dialogue, I came across even further evidence of the dangers of using free email systems like Gmail. As reported in the Washington Post and published by the Houston Chronicle, for only $100 you can buy the password to a any freemail account. The article explains how a ‘woman scorned’ contacted YourHackerz.com and was able to purchase the password to her “married boyfriend’s” AOL email account. She followed that up by securing the passwords to people he emailed who used similar accounts.

We at 3 Geeks are aware that a number of state bars have opined that email has a reasonable expectation of privacy and as such is ethical to use when transmitting confidential client information. In part, the reasonable expectation comes about since it is illegal to intercept email. However, the article points out:

Federal law prohibits hacking into e-mail, but without further illegal activity, it’s only a misdemeanor, noted Orin Kerr, a law professor at George Washington University and a former trial attorney in the Justice Department’s computer crime section.

Wow … a misdemeanor.

The feds usually don’t have the resources to investigate and prosecute misdemeanors, Kerr said. And part of the reason is that normally it’s hard to know when an account has been compromised, because e-mail snooping doesn’t leave a trace.

Ethics issues aside (which still need to catch up with reality) lawyers should have their eyes VERY wide open when using these email services. In addition to email being inherently insecure, hacking freemail accounts is now as easy as buying a book on Amazon. As we’ve noted previously, the higher duty of care lawyers hold demands a higher level of practice.

Previously on 3 Geeks, we posted on the dangers of using free email services like Gmail. The basic argument is that by granting a property right to content (a.k.a. client information) to Google, lawyers risk of waiving privilege. We had an interesting set of comments come in from this post, exploring how serious this problem is. Some people thought it wasn’t a problem at all, since Google is using machines to read your content. Others thought it was similar to FedEx reviewing packages for safety. My position is that the granting of rights to your clients’ information to someone else (be it Google, Yahoo, etc.) on its face creates an ethical issue for lawyers.

To add fuel to this fire, I saw two posts this week on a related subject. In July the New Jersey courts released an opinion (Sengart v. Loving Care) where an employee was using their company laptop to communicate with their lawyer about possible litigation against the employer. At the core of this argument is that fact that employers retain property rights to any information that resides on their computer equipment. Most employment policies inform employees about this, such as the one from Loving Care.

E-mail and voice mail messages, internet use and communication and computer files are considered part of the company’s business and client records. Such communications are not to be considered private or personal to any individual employee.

Compared to Google’s TOS:

By submitting, posting or displaying the content you give Google a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive licence to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, post or display on or through, the Services.

Google notes that this right is for the sole purpose of proving the Services. However, that is not much of a limiting factor. Google uses this right primarily to direct ads to its users. But I don’t see anything in the TOS that limits them to this behavior.

Although Sengart and the Google TOS situations are not entirely similar, they share that core issue of giving property rights to content to a third party in exchange for the use of the technology. The one key difference with Sengart is that the client is the one who compromised the ownership of the content. Frankly, it’s the client’s right to do this since it’s their content. But even in that situation, a lawyer would be wise to warn clients about using email in such a way that privilege is compromised.

The legal profession holds itself out as having higher duties of care when it comes to securing client information. I suggest that using free email services with a TOS like Googles’ runs counter to this professional responsibility.

A lot of us in the law firm library field have been asking for database and resource “monitoring” software for a few years now. Most of us have had our requests rejected because the cost of the software was seen as too high, or the benefits from such software were seen as too low back when the economy was booming. Now that law firms are cutting staff, attorneys, resources and salaries, some of those firms that rejected the monitoring software now understand the potential benefits that we’ve been talking about.

The Players
A little background on the big players in the database and resource monitoring world. There are really three main products out there:
1) OneLog 2) LookUp Precision 3) Research Monitor 4*) LexisNexis Cost Recovery Manager [PDF] (not really in the same league, but also used by some firms)
What is “Monitoring” Software?
The basic idea behind the monitoring software is to create an interface that tracks the usage of specific databases (i.e., Westlaw, Lexis, PACER, BNA, CCH, HeinOnline, etc., etc.) Many of these work within Internet Explorer and are fairly seamless for the person accessing the database. The last time I checked, most did not work with any other type of browser (of course, they all say they are “working on it.”) But most of the law firms are still using IE (according to my logs, many of you are still using IE6) so, that shouldn’t be a big deal for most of us. The software maintains information on:
1) Usernames & Passwords (either on a group level, or individual level) 2) Records which databases are used, by which users, and for how long 3) Restricts use of certain databases according to the license agreement (so if Partner “X” is the only person authorized to access a database, then Associate “Y” can be blocked from the application.) 4) Allows the administrator of the monitoring software to log out users remotely. Nothing is more aggravating than trying to access a database, but you can’t because someone logged in, then went to lunch without logging out. 5) Create billing reports. Instead of going through manually to bill out the PACER quarterly reports, the monitoring software will create those reports automatically. 6) Set pricing on each database. Most firms charge back for Lexis, Westlaw and PACER usage, but many do not charge back for other databases. Monitoring software would allow you to put a “per usage”, “per minute”, or “per transaction” price on any database. 7) Create a “What Isn’t Used” report. Now you can really see if that expensive database that the Practice Group Leader demanded a few years ago is really being used. When the librarian goes to the PGL and says “we are thinking of cutting this database”, and the PGL replies “Don’t cut that, I use that all the time!” Now the librarians has a way to see if that is true or not. Most of the time we know it isn’t being used, but didn’t have a good way to prove it.
Additional Ways to Use Monitoring Software
You can probably think of a few more good ways to use monitoring software. One of the ways that I’ve promoted is the “internal” resource monitoring. The IT or KM departments (or in some cases, the techie librarian) have created a lot of internal products that have great benefits to the firm. The monitoring software can be used to see what products are or are not being used, and who is using them. This can be a great resource when it comes to training, or spotting trends within practice groups on what tools are used, and what are not.
Is Big Brother Watching You?
In a word, “yes”. The initial thought behind this type of software is to save money by getting rid of databases you don’t need, or to reduce the number of users when demand for a database is low. Theoretically, it could also be used to monitor other things, such as how much time someone spends on Ebay or Craigslist. But, most IT departments can do that now, so this would just be another way of doing it.
Monitoring Software is Going to be Huge!
In a time when the fat is being cut, along with the meat, and some of the bone, monitoring software is going to be a tool of choice for many firms. The latest Law Librarian Survey mentions that many librarians are already using these tools as a cost cutting resource. The costs of just the monitoring software runs in the tens of thousands of dollars (depending upon the size of your firm, generally) and the first directive that librarians get is to cut enough in current database subscriptions to pay for the cost of the monitoring software. This is going to be one of those situations where firms will spend a little money in order to save a lot in return.

It’s been a busy week around the three geekdom. Although I couldn’t attend the ILTA 09 meeting in Washington DC, I monitored it religiously (via the #ILTA09 tag) and helped my boss prep for her back-to-back presentations on Records Management and Library Services contract negotiations. We had a Westlaw blowup mid-week, and I talked with my local Westlaw Library Relations Manager (LRM) yesterday and we had a nice discussion about what the LRM’s are doing to work with law librarians. So, getting on the bus this morning, I thought that I didn’t have anything to blog about other than TGIF!! But, as usual, I was wrong.

I mentioned a few post ago that I was reading Sir Ken Robinson’s book The Element. As I was reading it this morning, I read one of those sentences that makes you sit up and say “Wow!” (If I were a child of the 60’s I’d have said “whoa… that’s deep, man.”)

“… conformity has a higher value than diversity.”

Although Ken (he lives in America now, so I refuse to call him ‘Sir’ Ken) was talking about primary and secondary schools, this could actually apply to many facets of life, and I’m tying it to some of the conformity we have in law firms.
There are a lot of us that are pushing Enterprise 2.0 tools within the law firms. The reason many of us believe this will be a great resource for everyone in the firm is the fact that it gives a voice to everyone. Conformity equals the standard monthly or quarterly meeting, diversity equals wikis, blogs and other social media tools that allow you to put your ideas forth at any time.
Another standard idea within law firms is the establishing of a committee to plan how the firm will handle an issue. Committees are made up of individuals who represent various divisions within the firm (Partners, Associates, Counsel, C-Levels, Directors, Managers, etc.) and even each of those represent certain practice areas or departments. Committees equal conformity, Teams equal diversity. When you set up a committee the members are focused first on how to best represent themselves, their individual departments or groups, their peers, then the firm – in that order. Teams are set up to go the opposite way. Look at the process in a more holistic fashion — how it affects the many, rather than the few.
Those seven words made me sit up and think about how we can look at what we are doing in a different way. Enterprise 2.0 tools and Teams are just two examples. The next time you approach a project or think about the process you use to perform your tasks, ask yourself are you valuing conformity or are you valuing diversity?

As I watched the #ILTA09 session tweets roll by from @VMaryAbraham, I just got more and more disgusted. Not at Mary, mind you (she was rockin’ with the informative tweets), but rather at the presenter Jason Dorsey and his message. Now, I must give a full disclaimer here and say that I was not in the room for the presentation, but I did watch an interview with him after the session on ILTA TV, and the interview seemed to back up Mary’s Tweets. Jason Dorsey calls himself the “Gen Y Guy”, talks about the differences between the generations in his presentations, and I hear he’s a great presenter. If I get a chance to see him present at another conference, I will make every attempt to be there.

[Creative Commons photo from Lorchaos]
Now that all of the praise is out of the way, I’m going to say that the message I read from Jason’s presentation was one of stereotyping, oversimplification of generational differences, and taking simple known facts and leaping to conclusions about entire sections of our population. In other words, Jason (and many other of the self-help presenters out there) wants to give you a short presentation that will help you compartmentalize people that you work with. When he is finished, you will now have a better understanding of why a Gen Y person is one way, while the Gen X and Boomers are another. Perhaps your Human Resources department has put on one of these little shows at your office. We all walk away with a better understanding of why “Bob is a jerk” and “Sally is lazy.” It isn’t because they have bad personalities or habits… it’s because they are of a particular generation.
I’m always worried about labeling people, and I’m really concerned about labeling groups of people. The labels tend to be too broad, and overly simplistic. It is like taking the Myers-Briggs Type Indicator (MBTI) tests and saying that everyone fits within four distinct boxes out of a total of 16 potential boxes. The personality tests, and the generation “generalization” can help define how someone might perform as a worker, but I’m always afraid that sessions like these create situations where we stereotype entire groups of people and make it too easy for someone to be labeled as “blank” Generation with “blank” MBTI, therefore slap “blank” label on them.
I have to agree with something I read from Ken Robinson, in his book The Element. Robinson talked about trying to label someone with the 16 categories of the MTBI. “My guess is that sixteen personality types might be a bit of an underestimate. My personal estimate would be close to six billion.” The reason behind this is when you start to place people in boxes it tends to close doors on people rather than opening them.
I understand that Jason Dorsey pulled his research from over 500,000 interviews of Gen Y’ers, and used a lot of research conducted by Strauss and Howe, so I’m not doubting that he’s done the research. However, I did hear Jason give an example in his live interview of how Gen Y’s have a unique experience that helps explain their impatience. He roughly said that Gen Y’s are the first generation to enter the workforce with no expectation of staying with the same company for 30 years and retiring. I can only talk anecdotally here, but from what I remember, the 30 years and retire has been a dying or dead idea for nearly 30 years now. Do I have to start singing Billy Joel’s Allentown from 27 years ago?
Presentations like Jason’s are good exercises in “generalities”, but not for individual application. Be very careful not to over generalize entire groups of people. Remember they are individuals, with individual experiences and capabilities — treat them as such.