If you are like me, you have a lot of people that you “follow” via your social media channels. For example, I have over 2,600 folks that I follow via Twitter. But, out of those 2,600+ I probably only have the emails to a couple of dozen, and the phone numbers of a handful. My guess is that there are a lot of folks like me in the Social Media world. I like to run across new ideas by “happenstance”, but there are a few of those folks that I know will challenge me intellectually with what they say, and I’ve made an effort to keep closer track of these specific individuals. On my way into work this morning, I got to thinking that it is time to take a few of these social media relationships to the next level. (Creative Commons image by jhf)

A couple years ago, I read Keith Ferrazi‘s book Never Eat Alone. It was recommended to me by a partner in my firm, and I enjoyed it so much that I bought a copy for each of my library manager peers in my firm. The concept is very simple — take the time to meet with people you want to know better, usually over lunch. The idea behind Ferrazi’s book is that you have a lot of nodding relationships, but in order to better understand someone, or to open a comfortable line of communication between yourself and one of your colleagues, you need to meet face to face and actually have a conversation. All the emails, tweets, Facebook wall postings, etc., don’t replace the energy you get from actually meeting with someone and getting to know them better on a personal level.
So here’s my challenge to you. Pick 2 or 3 of the people you converse with on a social media platform that you would love to talk to face to face (your “fav 3”). I’m guessing that for 99.44% of you, these folks do not live in your city or work for the same firm or company that you do. Now, send them this message via a Direct Message on Twitter, or an email (standard email, FaceBook email, or LinkedIn email, Pony Express, whatever):

I saw this (http://bit.ly/5adI1) and thought of you. Next time I’m in [enter person’s city] or you’re in [enter your city] let me take you out to lunch. – [enter your name]

Do this for just 2 or 3 of those folks you’d really like to meet. Don’t worry about hurting the feeling of the other 2597+ people… chances are they probably will never find out that they are not in your “fav 3”.
For me, my “fav 3” are in Los Angeles, Boston and London. Believe it or not, the cities did not play a role in my picking the three. Now, chances of me going to London anytime soon are slim to none, but if I do, I’m offering to take someone out to lunch! My goal is to make the effort to better know a few select people and build upon the relationships that we’ve formed online.
Select your “fav 3” carefully. There’s a great saying by the author Margaret Atwood that I quote a lot – “Wanting to meet an author because you like their work is like wanting to meet a duck because you like pate.” We’ve all experienced this at one time or another. I remember meeting one of my law school professors for the first time. I’d read some of his writings and thought he was a genius. Then I met him. Turns out that sometimes you can be a genius, but still be a big jerk, too. I don’t think that my “fav 3” are like this, but I could be wrong. I guess I won’t know until I actually meet with them face to face.
Now, do me one other favor. Once you send out your message to your “fav 3”, come back here and put a comment that says “Next time I’m in [list the two or three cities], I’m taking someone to lunch.” I’m really hoping that I’ll see a lot of “Houston’s” in that list!!

[Please welcome 3 Geeks’ Guest Blogger, Mark Gediman]My Grandfather was notorious about finding a deal. He would go into a major department store and dicker with them over their prices. To him, the published price was just a starting point and he refused to buy unless he thought he was getting the price that he felt was reasonable. Clients in today’s legal marketplace have this same attitude. You can see it in recent news items discussing the attitudes of General Counsels at large corporations as they struggle with reducing costs with major law firms. They are negotiating hourly rates aggressively and questioning every item that appears on their bill. The question of whether or not the hourly billing model has gone the way of the dodo has been debating extensively, including by 3Geeks’ own Toby Brown on this page. I think the hourly rate issue should be separate from the online research charges that appear on the bill. As you can see in my analysis below, these charges actually reflect the efficiencies these services provide. In my position as Information Services Manager for a great metropolitan law firm (naw…even I don’t believe I’m Superman…all of the time), I find myself constantly explaining/defending/justifying our cost recovery policy. Maybe I’ve been sampling the Kool-aid along the way, but I’ve come to realize that most firms that charge back for online services are actually saving their clients money. Here are some examples of why I’m not delusional: – Charging a fee for pulling a case online is less than the cost of pulling it off the shelf Let’s say a firm charges clients $10 per case. It takes about a minute to pull and print the case. With a billing rate of $300/hr, the total cost to pull that case would be $15 ($10 for the case, $5 for the attorney’s time). If the case is pulled from the shelf, let’s figure the following time is spent: 5 minutes to walk to the books, 2 minutes to pull the right volume, 5 more to copy the case and 5 more to walk back to the office for a grand total of 17 minutes. The cost is $85. And this doesn’t count the cost of the space required to house the cases or the copying charges. The cost to pull the case online is only 17% the cost of pulling it in print. I realize that not everyone does these activities in exactly the same way. However, what is clear is that the client actually saved money in the process. – Case & Code research is better online First, let’s do this research online. Type in your search, starting broadly, and then narrow your search with focus or locate. It takes about 5 minutes to run the search and about 15-30 minutes to review the cases with your terms in context. In the interests of fairness, we’ll go with 30 minutes. Then print the cases you want and you’re done. Total time spent we’ll round up to 40 minutes to allow for printing. At our hypothetical $300/hr rate, the cost of the time spent comes to $200. Add in $40 for the search and you’ll have a total cost of $240. This analysis assumes that this is a normal search, not too esoteric, and that the search result is manageable, say about 20 cases. The analysis is essentially the same for searching codes. Next, let’s look at the process for researching cases and codes in print. Picking up a digest or a code index, and looking for the correct subject can take anywhere from 10 minutes to an hour. This assumes that what we are looking for is easily translatable into the canned headings they use and not horrendously cross-referenced (i.e., “See post-trial” which then says “See Judgments”). This process can take anywhere from 10 minutes to an hour depending on the research. For the sake of discussion, we’ll stick with 10 minutes. Then we spend about an hour pulling and reading the cases that were listed in under the digest heading. Then we add in the 17 minutes it takes to copy the darn things. We now have a total time spent of 1 hour and 27 minutes and a cost of $435. The cost to research cases and codes online is only 55% the cost of doing it in print. A significant difference I would say. -Researching can be more cost effective online The online process is relatively simple. Run the search in one or several treatises, focus or locate the sections discussing your specific terms, review the results and print the sections you want to keep. Say, about 40 minutes of your time. Couple that with the $40 search charge gives you a total cost of $240. It is not quite as simple to do this with print. The process and time spent are similar to the case/code research referenced above. Assuming the book is on the shelf to begin with, start with the index or table of contents, look at the several sections/chapters that you find for the most relevant and then copy what you want. Total time is 1 hour 35 minutes and cost comes out to $435. Again about a 55% difference in cost. -Caveat The same is not true if it is a treatise, usually a practice guide, that the end user knows intimately. Several years ago, I published an article discussing this phenomenon and concluded that it is actually better to keep these types of treatises in print. I cannot think of anyone who practices law in this day and age (yes, I realize that phrase dates me) that does not subscribe in some way to an online service. To not do so would be to invite a malpractice claim. Courts have stated unequivocally that firms should utilize these resources to provide their clients with the best representation possible (Margolis, Ellie, Surfin’ Safari-While Competent Lawyers Should Research on the Web, 10 Yale J.L. & Tech. 82 (2007-2008)). An example of the advantage of using a service online instead of in print can be found with Shepardizing (or Keyciting for you West folks). The Shepard’s print service is 6-9 months out of date when the firm receives it, a delay caused by editorial deadlines and publishing requirements. Compare this to the online service that is updated within 24 hours of an opinion being issued and it is easy to see why this could be important to client. We all know that these services come at a price. But, as you can see from the examples above, these services actually serve to save the clients money and advance their cases. It is reasonable for firms to bill the charges back to the client when they create efficiencies and add quality to the firms’ representation of their interests.


Peter Schwartz of the Huffington Post writes in his article “The Reinvention of Legal Research: The Future is Now” about information being a commodity and how the easy availability of access to “data” is posing a new challenge to legal research giants Lexis and Westlaw. As much as I wish that Peter’s assumptions were true, or at least had the chance of happening, judging by these same giants of legal research are posting huge profits during a slump in the global economy, I’d say the “future” is still in the future.

Let’s look at the points that Peter lists:
  1. Data Trumps documents
  2. Information is liquid
  3. Information is a commodity
  4. Customers will not pay for research
  5. Large legal publishers are in trouble
  6. These are the wondrous times in the world of online publishing
Before walking through these points, let’s remember what is the “end game” of legal research. When all is said and done, your final product should be something that is upheld by a court of law if challenged by another. Within the common law courts, this generally means that you must point to existing documents that support your claim. The whole idea behind such concepts as stare decisis is that the “law” is built upon existing law and decisions and is usually not changed except in extreme circumstances. When you have concepts like stare decisis, you need to be able to rely upon solid resources that have earned the trust of the courts. It may be true that information is liquid, but laws and the legal information behind those laws are much more like ice than they are like water.
The good and bad thing about legal research today is the fact that information is a commodity. This has created a conception that all information is online (and free) and can be found if you are a savvy enough researcher. Granted, there is an enormous amount of information available to legal researchers and a lot of it is free. That may be fine if you are writing a blog or even an article for a news organization. But, quick and easy and free information will not necessarily be viewed as authoritative by the courts. For example, try to submit a Wikipedia citation to a court. It will be tossed because its lack of consistency and authority. My friend and fellow Houstonian, Jason Wilson, wrote about this topic in his posting “Screw Authenticity, I Want It For Free” and Jason makes a good point that although folks like Chris Anderson say that information wants to be free (and that people don’t want to pay for information), when it comes to case law or legal authority, you’re going to have to go to a stable information source and usually have to pay for it. Otherwise, you risk the chance of having a judge question the authority of the information you are presenting.
Anyone that has been in the legal research for the past 20 years knows that it is a shrinking world. The big legal providers have been acquired and turned into huge conglomerates of online publications. If you’re on the legal publisher side, you say that you’ve “diversified”, and if you’re on the legal research side, you say that the legal publication world has “shrunk”. Although there are a number of smaller legal publishers, non have the general authority and respect – in the eyes of the courts – that the two big players have. Although big pocket publishers like Bloomberg are jumping into the fray, they have a huge uphill battle to wage before they can compare themselves to the big two publishers. Just ask big publisher Wolters Kluwer if their acquisition of Loislaw has panned out the way they thought.
I have to agree that these are wondrous times in the online publishing world. Aggregators and blogs like the Huffington Post are thriving in a world starved for quick information and real-time search. But, the courts aren’t in this same category. Legal researchers do not have to satisfy the world’s hunger for information, they have to satisfy the court’s expectation of presenting authoritative information that can withstand the challenges of a system that relies upon that authority to drive the decision it makes.

There comes a point in time where you have to shake your head and say that we’ve created something that is unsustainable. Whether it was the Dot Com bubble in the 90’s or the Housing bubble this decade, there is a point in which you have to stand back and say that reality is going to cause a backlash at some point and cause the bubble to burst. It is August 2009, and I’m calling it: “Electronic Discovery Is A Bubble” and in the next couple of years, if not sooner, it is going to burst.

Why is it a bubble?
First of all, the basic “idea” behind e-discovery is something that is difficult, if not impossible to accomplish. That idea is that electronically stored information (ESI) can be captured, indexed, encoded, filtered and searched so that you can find that smoking gun that every lawyer dreams of finding. Craig Ball, in the August 2009 issue of Law Technology News, gives some good examples of how difficult this process is.
Secondly, it is too expensive. Just with the Dot Com and Housing bubbles, you cannot expect clients to continue to pay exponentially for the cost of processing, indexing and reviewing ESI if that cost is greater than the reward. In other words, why would your client pay $1 million in E-Discovery costs for a reward of $500 thousand?
Zubulake vs. Rule 1, FRCP
In the same issue of Law Technology News, David Waxse, U.S. Magistrate Judge, District of Kansas, gives us his favorite quote, and I find it to be a great quote to use when discussing E-Discovery and the overall cost:

Our job is to secure the ‘just, speedy, and inexpensive determination of every action.’ — Rule 1, Federal Rules of Civil Procedure

Compare this quote to the rules set forth in Zubulake or in the new California E-Discovery rules (here’s a great [PDF] overview from Winston Strawn attorneys), you’ll find that the two concepts do not mesh.
I’m not saying that E-Discovery is going away, what I’m saying is that there is going to come a “correction in the market” over the next few years that will burst the bubble in the cost of collecting and analyzing ESI. Whether it is through reduction in cost by companies doing ESIwork in-house, through outsourcing, settling costly ESI matters early, or by courts revising laws to prohibit costly E-Discovery requests or shift the cost burden across the parties, you are soon going to hear a “pop”.

Last week I vacationed in Colorado and did not take my work laptop with me. Instead, I relied upon my 3 year old BlackJack (version I) and limited cell reception to check work emails once a day. In the end, I’m sad to find out that the office back in Houston survived just fine without me for a week. But, I’m also happy that I’ve not created a situation where I’ve become indispensable to my co-workers. I’ve had a saying that I’ve used over the past 20 years or so that I’m always afraid of breaking: “If someone has made themselves indispensable or unreplaceable, then you need to fire them.” The primary reason is that if you have someone like this, you’ve allowed them to created a single point of failure that will eventually come back to haunt you and your organization.

When I worked for a library services company, I was required to take a vacation each year of no less than 5 consecutive workdays in a row. The idea behind the forced vacation was to make sure 1) that I was actually taking some time off from work; and 2) that I wasn’t creating my own little fiefdom within the organization where we couldn’t survive without me.
I remember one time questioning my boss (different job) about relying too much on specific individuals for important business processes. When I asked my boss who was backing up the guy (I’ll call him ‘B.A. Baracus’) in charge of our email system when B.A. goes on vacation, the reply was that B.A. was required to take his work laptop with him on vacation and therefore there wasn’t a need to have a backup for B.A. I sat there and nodded, watched B.A. lug a 10 lbs. laptop bag over his shoulder, and then went back to my desk and made sure my resume was updated and ready to send out.
Now, granted, there were many little things that didn’t get completed while I was out on vacation, and my physical in-box was stuffed full of invoices ready to be sent to accounting, but almost all of it could have been handed off to someone else if I had decided to escape from the world and become a recluse in a cabin somewhere around Pikes Peak. I’m glad that I’m appreciated at work and missed when I’m away on vacation, but I’m also happy to see that I haven’t become unreplaceable. Now I can go on that winter cruise to Mexico and not even worry about checking email… that’s a great feeling.

Jordan Furlong’s question on The Future of CLE posted on LinkedIn got me thinking. The question leveraged my prior 3 Geeks post on the Googlization of CLE and included his comments about how CLE’s role could shift towards professional development. So what if we take a step beyond Googlization (which is so “3 months ago” as my son says) and think of applying Web 2.0 to the CLE world?

In Web 2.0 environments you stay current by monitoring blogs, watching tweets and engaging in the dialogue. Most of my continuing education comes from these sources. And more importantly, it has greater value based on my participation. I can comment on LinkedIn like I did with Jordan. I retweet on interesting tweet and add a thought. Then another participant does the same. Or they pick up a related line of thinking and extend the dialogue. The result is a combined, asynchronous effort that brings many minds together and allows them to all benefit from the shared experience. The sum is much more than the parts.

This post is a great example of that effort. Last October I made a blog post. Jordan creates a Discussion on LinkedIn that extends the idea. A number of comments give me the CLE 2.0 idea which results in this blog post (which will result in some tweets and more comments). On one layer this is basic 2.0 in action. But from the CLE perspective, I now have a new set of tools and methodology for helping lawyers stay current on their practice skills. And this new approach has the potential to deliver much higher value than the old-school presenter/audience model.

Am I suggesting CLE Boards accredit CLE 2.0? They should at least start thinking about the idea and how it might benefit the practice of law.

Do I still go to live programs? Of course. But those are for the personal interaction as much as the education. If I relied solely on live programs for continuing education, my current knowledge base would be considerably less (Greg – hold your comments on that point).

As you might guess – I welcome your comments on this subject.

Do you know what I hate about movie reviews? Chick flicks. Yeah, that’s right. Chick flicks.

And do you know what I hate about book reviews? Romance novels. Yep.

And do you know what I hate about car reviews? Make-up mirrors. Uh-huh.

Are you sensing a theme here (pretend its the SAT/LSAT/MCAT/Dumb, generalized, multi- tests that allege to set standards)?

ANSWER: The reviewers are not of the same personality-type as the consumers.

So remember, when testing your web pages, don’t build them to please yourself or your boss.

As my boss told me when I first started, “we’ve fallen in love with our own artwork”.

I know it is hard to remember. I cannot tell you how many meetings I have been in and we all get caught up in how slick and gorgeous the page, the color, the design, the layout is. We forgot: we aren’t the ones who are looking at the pages once it is built.

Or we are worried that the approving partner won’t like it so we build it to get it approved.

Instead, think about your audience; your potential site visitors: what is the predominant personality type? What appeals to them?

I know that marketing people that I have worked with are the creative sort. We love to talk, like lots of colors, the prettier it is, the happier we are.

And IT, well, they like black and white, either/or kinds of choices. Plain, straight-forward, no-nonense pages are our designs of choice.

Now do you see why web sites should be built by both marketing and IT people?

So put on your thinking cap: envision your “jury”. Conduct voire dire. Once you’ve figured this out, you’ve done some good research and can start putting together a plan.

Oh.

And the chick flick/romance/car rant? Well, its just me being me. I saw “Ugly Truth” and loved it. The Chronicle book reviewer panned one of my favorite authors. And, well, you know, car reviewers NEVER mention make-up mirrors.

See?

The Cheap Geek took advantage of the Cash 4 Clunkers deal this week and traded in my 17 mpg Chrysler MiniVan for a 50 mpg Prius.

The minivan was probably worth $2000.00 tops – as it really got about 14 mpg and had 176K miles on it. So in the end, I got a deal, the car dealership got a sale, and my van got removed from the road and will get to retire to the farm along side my childhood pet dog, Lucky. According to the papers this morning, the program is so popular that it is quickly running out of money, and Congress is rushing to put more money into the program to keep it going.

Now my thoughts start to wander and I begin thinking how can this idea be transferred to helping the court system reduce the number of cases it handles, thus reducing the overall strain on the system? I’m going to toss out a couple of suggestions, but I really would like everyone to put on their “thinking caps”, or as I like to call it “crazy idea initiators”, and help me come up with some other ideas that might help reduce the number of cases currently clogging up the courts.
Here’s my thoughts:
  1. Civil Cases: If the case is older than 1 year and is still ongoing, offer the Plaintiffs a cash payment of $4500 or 50% of the demanded amount (whichever is less) to drop the case. Make the Defendant pay $2750 or 25% of demanded amount (whichever is less). That way, everyone “gets a haircut” and the courts reduce their overall burden.
  2. Criminal Cases: Same idea — misdemeanor cases that are older than 1 year and the penalty can be handled by a “fine” – Have the defendant plead “guilty” or “no contest” with agreement by the court to expunge the record after one year if the defendant is not arrested again. Have the defendant pay 25% of the fine. On this one, there shouldn’t be a need for the government to ante up any money as it would “pay” the court to get this case off of its docket.
I know… I know… you’re thinking that I’ve hit Happy Hour a little early for a Friday morning. But, why not have some fun with this??
What are your suggestions (crazy or not) on how the Cash 4 Clunkers concept could be used to reduce the caseload on our courts??

Reading Patrick Lambe’s Green Chameleon post entitled “Memory and Infantilism” reminded me of a saying I heard in law school about identifying what is, and what is not important. Lambe discusses the total screw-up that NASA did with the Lunar tapes, and the UK police did in losing important files related to a horrific child-rape case. Although there is a lot of facts surrounding both of those examples, it really, really boils down to the fact that we believe we can basically capture and maintain everything that we think is relevant to what we may want on down the road.

In a way, we do this with our Knowledge Management approach to everything from email to client files to court documents to contact relationship data. There is a whole subset of the legal industry (e-discovery) that has sprung from the idea of “everything is there, we just need to drill deep enough into the data to find it.” These practices have created a misconception that if we keep everything, the “important” information will be there when we want to find it. Tapes regarding the Moon landing will be there 40 years later… files regarding DNA evidence will be there when the Judge asks for them… that email that your former boss sent you telling you to do something will be at your fingertips when your new boss asks “why the Hell did you do it that way?”
This all reminds me of a saying that someone told me back in law school. “If you highlight the entire casebook, you’ve learned absolutely nothing.”
In other words, you should only highlight (store and archive) those things that you think you’ll have to recall later on the final exam. The same concept could be adapted to how we treat the KM life cycle of information that flows through our possession today. Regardless if it is email, client files, or court documents there needs to be a realistic approach to how we handle that information. The most obvious would be any legal obligation we have to maintain and archive the information. There are certain things we should legally and/or ethically keep for a specific period of time. But, most of the data that we handle does not fall under these requirements. In fact, I’d wager that 90% of the emails, electronic documents, or paper documents we keep, we do because we are implementing the “CYA” rule.
The problem comes down to an issue of “mass”. It is very easy to file things away on backup tapes, or ship hard drives and paper documents off site for a hundred years. In some cases it is actually cheaper to keep files in off site storage for a few decades, than it is to pay the cost of having the items destroyed. The combination of “CYA” + ease of storage + idea of easy recall creates a situation where we’ve highlighted everything, and cannot recall the important items later. The result is like a 2nd year law student that has highlighted his entire Federal Civil Procedure book… When asked to recall specific information, we find that we either cannot recall the information (tapes got erased, DNA evidence got misplaced, etc.) or, we cannot isolate what is important versus what is irrelevant (the old back the dump truck up and give them everything we know approach.)
Knowledge Management should not be based on a “cast a wide net” approach to the information that flows in and out of our firms. In fact, most information should be ephemeral in nature; addressing only the specific need of the moment and not be thought of as a permanent addition to the knowledge of the firm. When we try to capture everything, we end up capturing nothing. In the end we end up losing the important pieces of knowledge because they are buried in a mountain of useless data filed under the topic of “CYA”.

Some recent comments disparaging leverage inspired me to pick up the gauntlet. Much like Dennis and Tom’s recent podcast on “What Technology is Dead Today” I expect the title and discussion promoting leverage may bring some attention.

In Patrick Lamb’s post on the subject he chastises Lexis for promoting good leverage in an ad campaign. Patrick thinks this is ridiculous and “out of touch.” The Lexis ad states that with good leverage “even though billings shrink – profit per partner goes up.” Patrick closes by commenting “what does this ad say to clients ….?”

Normally I am very much on the same page as Patrick, but will take the opposite podium on this one. First, let’s bring the two statements above together, which is to say – What do lower billings say to clients? As a client I want my law firm to be pushing work to its lowest cost source. Why would I pay partner rates for associate level work? Especially in traditional hourly billing arrangements, smart leverage benefits clients. The price of the 20 hours of time the client buys goes down. This is a win-win deal.

Adding alternative fee arrangements (AFAs) to the mix ups the ante on leverage. Under AFAs law firms are more financially motivated to be efficient (and effective). Numerous articles and posts on AFAs state that the real trick for lawyers using AFAs will be effectively managing to a budget. What this means is using smart leverage.

The ugly side of leverage as always been the pyramid-scheme aspect of it. A firm cannot keep adding to the base of the pyramid when all entrants are expected to rise to the top. That type of leverage is dead.

Look at Microsoft, IBM, etc. These companies are leveraged to the hilt. They don’t have a quarter of their employees serving as owner-managers. Their employees are … employees. Though employees own stock, they do not have input into management decisions. Besides, I don’t want Bill Gates programming code for me. I can only imagine what his hourly rate would be.

Firms that will succeed going forward will be those who understand that effective leverage means lower costs for clients and better profitability for the firm. At the same time they will retire the pyramid scheme that should have died a while back.

Let the games begin!