For the Lawyers: Suggestion for the Downturn

A silver lining for us from LLRX.com - The Upside of the Downturn – Time to Work on Your Know How:

"So far, US law firm knowledge management initiatives have focused on finding the killer app to store and retrieve content – without adequately focusing on the quality of that content. If you have a state-of-the-art search engine, you can find all that great knowhow that distinguishes your firm from its competitors, right? But if there has been no strategic effort to develop a quality collection of the firm’s knowhow, what is your search engine retrieving?

A good collection of your firm’s knowhow should be a given in any law firm. Yet too often firms complain about the lack of good content that is easily accessible.

Content is what knowledge management is all about – and it’s your lawyers who need to develop that content. Those are the same lawyers who currently don’t have enough client work to fill their timesheets or to keep them feeling productive and challenged."

Justice Scalia on Persuading Judges

The American Bar Association Magazine excerpted parts of Justice Scalia's book on legal writing and argument in Making Your Case. I disagree with most of Scalia's jurisprudence but his advice about writing is spot on:

Value clarity above all other elements of style In brief-writing, one feature of a good style trumps all others. Literary elegance, erudition, sophistication of expression—these and all other qualities must be sac­rificed if they detract from clarity. This means, for example, that the same word should be used to refer to a particular key concept, even if elegance of style would avoid such repetition in favor of various synonyms. It means that you must abandon interesting and erudite asides if they sidetrack the drive toward the point you are making. It means that you should never use a word that the judge may have to look up

One for the Lawyers: Adam Smith, Esq. on Knowledge Management

One of my infrequent posts on knowledge management (KM) and it comes originally from the Adam Smith, Esq. Blog. The following points are from An inquiry into the economics of law firms....

"But despite the (I believe) inarguable centrality of KM to what we do, there are three enormous problems with it:"

• Too many lawyers don't understand why it's of value to them, or, more precisely, why the return they could get out of it would exceed the investment they'd have to put into it. (Never mind the threat of "giving away" your core professional asset—what you know.)
• Too many technologists and IT types don't understand how lawyers work, and end up creating shockingly powerful but essentially useless applications.
• And even the most powerful and user-friendly system requires constant care and feeding because legal learning is in a state of constant flux: In a sense, pure white ignorance beats obsolete and mistaken knowledge.
  

(By the way, the link to videos in the original post did not work for me. You can reach the videos here.)

Even those of us with an interest in knowledge management face competition for our time from the present work paying the fees that keep our offices open and all the multitude distractions of life. I put off on a wiki project on Indiana mortuary law so that I can keep up with other matters.

Which brings me to the point I think inheres in the quote above and my own situation, knowledge management requires a merging of the qualities of a technologist with a lawyer. Lawyers having no experience with technology have no means of understanding how to save and recycle work product. The quote above describes the technologist side of the problem all too well but I would add the technologists see a technology solution for everything.

The British have a better idea. They have professional support lawyers:

The PSL role may also include new firm-wide role elements such as:

• Know-how, precedents and standard forms: drafting, updating, managing and disseminating documents, setting up or dealing with online document systems.
• Research: analysing new law and practice, researching points of law or directing fee earners to appropriate sources.
• Training: organising internal lectures or seminars for trainees, solicitors groups or firm-wide. Dealing with external training, building up relationships with speakers and event-support.
• Marketing and business development: producing newsletters for clients, arranging or assisting in marketing events, arranging client seminars.
• Information technology: working on IT-specific projects such as setting up internet dealrooms, creating and updating websites, developing a firm's information/knowledge base and/or Intranet.
• Dealing with fee earner enquiries: answering queries relating to maintained information, new areas of law, and complex areas of law / specialisms.
  

We have nothing like this over here.

Practice Management: Why Here Is There and There is Here

With the Internet and tools like this:

Google Apps is a cool way to collaborate on documents with co-workers and share calendars online. But up to now, you've had to go through the hassle of associating Google Apps with your domain if you wanted to have a set of documents and calendars just for you and others at your company. Today Google's launching a free service, Google Apps Team Edition, which lets you set up your company's Google Apps universe just by entering an e-mail address.

People soon will have the ability to work anywhere with anyone anywhere. I have only two reservations.

First, I am not sure about the security for this particular application. I am looking at Zoho and some other providers. See Google Makes it Easier to Share Documents with Co-Workers for more about how Google implements this app.

Second, I can afford to wait as either my clients - at this time - have either dial-up or e-mail suffices for their needs.

The Care and Feeding of Lawyers

I wrote two posts on hiring lawyers on my Indiana Divorce and Family Law Blog, Following up on How to Hire the Right Divorce Attorney and How to Hire the Right Divorce Attorney. I think if you ignore the titles given the posts, anyone looking to hire an attorney can find some wisdom in the posts (truth-in-advertising point: the wisdom will more likely to be found in the original posts that I linked to).

A bit of a follow up, this is from For more advice on finding the Best Lawyer in the World, check out my earlier posts on the subject here and here. on the Darroll article I refer to in my "Following up on" post. This is about the best patent attorney:

For more advice on finding the Best Lawyer in the World, check out my earlier posts on the subject here and here.

Interesting post on flat fees - for the client

Until I read How to prove savings from a fixed-fee arrangement,I had not considered what flat fees look like from a client's perspective. I thought clients only considered - should consider maybe - that a flat fee brings some predictability to legal fees. Maybe I am wrong about this as I find it hard convincing business clients that some services can be handled on a flat fee bases.

I am looking at overhauling the fee structure for my family law/divorce side of my practice. I have enough of the documents automated that an hourly rate is unjustified. I know what work needs to be done in what circumstances and I want to restructure my fee agreements to reflect this reality. I want to follow up this idea on the civil and business side.

Some thoughts on contracts and other legal documents

Reading this post from Adams Drafting I came upon this and it triggered some thoughts which I feel necessary to share:

It’s clear enough that eliminating archaisms such as WITNESSETH wouldn’t affect meaning. But what about eliminating the extraneous shall? Using shall outside of an obligation is sometimes just a distraction, as in This agreement shall be governed by the laws of the Province of Ontario—there’s no risk of the extranous shall affecting meaning. But it might be a different matter if you use shall when attempting to express a condition: as I discussed in this post and this post, it’s relatively commonplace for parties to dispute whether a given provision constitutes an obligation or a condition.

Too often I have found clients who think they are not getting their money's worth unless the contract or other document comes freighted with so many legalisms that the contract becomes unintelligible even to those drafting the document. Or I find myself confronted with a document written by a non-lawyer with the sort of language that would have overjoyed a lawyer from the era of wingtip collars and spats but does not give the protection or rights that the parties thought they were getting in the deal.

I came from law school when plain English was being touted as a great quality in legal writing. I try to educate my clients that a contracts needs above all to be intelligible to everyone and anyone who reads the documents. I am not always successful in my efforts. For the reason why I fail and why I think people still crave and pay for legalese, I think the answer can be found in this quote from David Hume:

...As these enemies are entirely invisible and unknown, the methods taken to appease them are equally unaccountable,° and consist in ceremonies, observances, mortifications, sacrifices, presents, or in any practice, however absurd or frivolous, which either folly or knavery recommends to a blind and terrified credulity.° Weakness, fear, melancholy, together with ignorance, are, therefore, the true sources of SUPERSTITION.

David Hume, OF SUPERSTITION AND ENTHUSIASM.

Practice managment- the future?

I like reading Adam Smith, Esq.. Yes, it caters mostly to big firms but not everything for the big firms does not apply also to small firms like myself. Today, I get an update on article where I got to say that little firms can learn from and possibly teach the big firms.

"IT Commoditizes Everything." Discuss deals with a lot of issues that might seem to apply only to the mega-firms, but I suggest reading it. I caught myself thinking back to when I ran a consumer bankruptcy practice. Computer programs for preparing the bankruptcy petition commoditized consumer bankruptcies. The same applies to all areas of the law where the routine, document preparation areas can be subjected to computer preparation. I see this changing our fee structures, how we deal with clients, and how we provide our services.

I suggest reading the whole post, but I found this part particularly interesting:

The increasing embrace of IT, and its true embedding within the essence of what firms do, comes, I hasten to add, with one enormous challenge which no one to my knowledge has yet answered in a satisfactory way that might yield a long-term equilibrium solution: That challenge is commoditization.

Its sources are various, but primary among them:

• In the online world, we increasingly expect information to be free; why should clients expect otherwise from their law firm?
• Technology fuels arms races: If it is true that "among UK firms, however, there are a number of examples where firms have generated revenue through subscription-based, lawyer-light projects," then how long will it be before those services begin to invade practices higher up the value chain?

My view is more sanguine, primarily because I believe the phrase "commoditization" is flung around far too loosely and generates free-floating fear divorced from real-world implications. I'm closer to the position articulated by David Jabbari, Allen & Overy's head of knowledge management, who believes that “Clearly, any information that can be commoditised is going to be, and will be free,” but who also pointed out that we've known for a hundred years, since Henry Ford introduced the assembly line, how to efficiently build a car, and yet the auto industry is one of the most hotly competitive and least "commoditized" around.

Seventh Circuit Wiki

Let me say first, I do not practice in the Seventh Circuit Court of Appeals. Secondly, this post really does not fit into any category or the purpose of this blog. Last, I think this is cool and so I am going to ignore that this really probably will be of no interest.

The Seventh Circuit has its Practitioner's Handbook on the web as a wiki. A wiki like Wikipedia. Yes, you got to be a lawyer with a good dose of geek in them to be really interested in this. I guess that might describe me to some. After all, what has the Seventh Circuit done? They have made an electronic version of their arcane procedural rules available online for the all the world in a format neutralizing that same arcana. What if the Indiana Supreme Court (which does a very good job of putting its rules online in different formats) did this for its rules?

For anyone thinking I am getting a bit arcane myself, please take a look at these articles on lawyers using wikis:

A few words about practicing at home

Since January 1, 1998, my office has mostly been at home except for my sidetrack to Indianapolis from 2000-03. Even then I would say that I would say that I had an exclusively home office only between 2005 and this year. It works for me and I think it works for most of my clients.

It did bother one client very much and I suspect that it bothers some others in other ways. It really distresses my father. I have debated the matter many time. For me, the decision since 2003 came down to this:

1. I could put the usual front with its costs or put the money into other areas of the practice that did something useful for myself and my clients.
2. Where is the office? I do all my work on a computer connected to the Internet. The telephone can reach me wherever I want it to reach me. I use Vonage and that allows me to move the office telephone from home to the office and back.
3. Too many of my business clients can ill afford to come to the office for meetings.
4. When I had the more common sort of office, I always hated clients seeing my working process. Making sausages is prettier.

On the other hand, I need some place to meet non-business clients and they need some place to drop off their paperwork.

So I share office space that allows me to meet with clients by appointment only and for them to drop off documents. I can get my work done. Hopefully, everyone is happy.

What got me to write on this is a bunch of articles that I ran across the past few days. After reading them, I decided that I had made a better choice than I first suspected.

Chuck Newton has several posts about this on his blog: Overhead Creep (no kidding about that one), Et tu, Brute, and What Part Of Solo Do You Not Understand?. I keep my costs down and I can provide good services for a reasonable fee. (I am just enough of a cranky smart aleck to ask anyone balking at my office set up whether they want to pay the higher fees to pay for digs rather than what they are paying for the services.) Keeping the costs down keeps the stress from getting any worse.

Building a Solo Practice, LLC blogs on the general insecurity of our economy and Big Law in general. The post is titled:Do You Need Anymore Reasons To Not Be Part of Big Law?

But that is not the main reason I am bringing this article to your attention. I'm alerting you because so many students tell me they need the security of Big Law, a steady paycheck because of their financial and familial obligations. This article, just one of many, that if you read between the lines you will hear it shouting through a bull horn, 'no security here."

As I tell everyone, my format means that any screwups in the office are mine. I worked for a firm in Indianapolis that spent a lot of money on office furniture and by picking up the tab at Morton's and Shula's. They went under. None of these did anything to impress the clients except the closing of the firm.

Prestige can buy a a lot. Prestige and fifty cents can get you a cup of coffee. If you need some evidence on this, then read this article from The San Francisco Magazine.

Now, I need to get the desk uncovered.

More automating the office

I wrote about automating the practice under the heading Fees, Automation and Business Clients - it is a long one. This post follows up on that post.

For almost nine years I have been trying to follow Ross Kodner's PaperLess Office concept. Every document coming into the office and every document going out becomes a scan on the computer. Where I differ from Ross Kodner's program is that I do not use Worldox. I am finding that a combination of Paperport (ver. 10) and Copernic desktop search tool handles the document management tasks. (I create a folder for each client under Paperport and I convert the scans into the Adobe Portable Document Formant - PDF - for searching under Copernic. I use Copernic since Google Desktop did not include WordPerfect files in its search parameters.) Crude but effective for a solo office, but I suggest that anyone who has not set up a system like this read everything you can Ross Kodner's site.

Frankly, I see a great benefit from scanning and not touching the hard file. I can read the documents on the computer screen while talking on the computer and not take the time to find the file while keeping a court, a client or another attorney on the line. Another benefit comes from clients who have e-mail: I can e-mail them PDF files without having to copy and send by regular mail. (I did have an odd incident where a client insisted that I had not e-mailed him all the documents but that was the concluding incident of many in a deteriorating relationship. Yes, not every client is a happy person.) Kodner's theory is we cannot eliminate paper and I still agree with that theory. However, I do think that as more clients and attorneys use e-mail that we will get closer to a no paper office (on the other hand, no one wants to hear me rant about my problems with electronic filing with the federal courts). I think this post at TechDirt is more about this future than the present.

What does this have to do with document automation? A lot. Forms received from other attorneys or form books can be can go from a scan to the word processor via Paperport. That they need cleaning up (no OCR - Optical Character Recognition - software is perfect) has less importance when they are going to converted over to HotDocs templates. (I have written a bit more about using HotDocs here on my Indiana Divorce and Family Law Blog.) The time saved by scanning and converting to a WordPerfect document beats typing directly into WordPerfect.

All this does have two weaknesses and one problem. First, making sure that everything is scanned in. I recently hired a girl to do some part-time work. I found she did not scan everything and now she is unemployed. The other weakness lies in the scanned documents being on a desktop machine. Since I acquired a laptop, I expect that problem to fade away

I think I discussed the problem before: documentation only succeeds if the work can be automated. That means in practical terms what gets processed through HotDocs are those documents for an area I practice in on a regular basis or routine work for a particular client.

For Lawyers: Apply for scholarships to Solo & Small Firm Conference

A friend forwarded this me via e-mail. I am not certain I have that many attorneys reading this blog but here goes:

The YLS is awarding two scholarships for the Solo & Small Firm Conference scheduled for May 31-June 2 at the Sheraton Hotel located at Keystone at the Crossing, Indianapolis . For details about the conference, visit www.inbar.org.

Applicants must be a member of the Young Lawyers Section, in a firm with less than 15 attorneys, and have practiced less than 3 years.

Please send your résumé (or bio) and letter of interest (including your name; name of firm/employer; number of attorneys at firm/employer; number of years in practice; why you would like to attend the conference and what you hope to gain by attending; and why you believe you should receive the scholarship) to Paula Chan at the ISBA no later than Friday, May 11, pchan@inbar.org, 317-266-2588 (fax) or ISBA, One Indiana Square, Suite 530, Indianapolis, IN 46204.

Scholarship will cover the full conference registration and two nights stay at the Sheraton Hotel.

Paula Chan

Assistant Director of Sections, Meetings & Events

Indiana State Bar Association

Phone: (317) 639-5465 ext. 26/(800) 266-2581

Fax: (317) 266-2588

www.inbar.org

Reading about: mortgage crisis news, the problems of e-mail,

I admit this post is mostly an attempt to catch up with the news. Some interesting tidbits that I do not think need a full post - especially after a rather long day.

Looks like some lenders are stepping up to the plate and dealing with the subprime mortgage mess.

Freddie Mac, the government-sponsored company that is the second-largest buyer and guarantor of home loans in the country, announced Wednesday that it will buy as much as $20 billion in fixed-rate and adjustable-rate mortgages to help borrowers with high-priced loans keep their homes. The new mortgages, expected to be available by midsummer, will include loans with longer fixed-rate terms.

Fannie Mae, the No. 1 mortgage financer, also is offering new options so that lenders can help subprime borrowers refinance out of high-interest adjustable-rate mortgages or other difficult loans.

And Washington Mutual Inc., one of the country's largest financial institutions, said it will refinance up to $2 billion in subprime mortgages to help borrowers avoid default and foreclosure, allowing them to apply for discounted fixed-rate home loans or other refinancing alternatives. Subprime loans comprise only about 6 percent of Seattle-based Washington Mutual's mortgage holdings, but they dealt a heavy blow to its first-quarter earnings, which slid 20 percent.

If you or someone you know has one of these subprime mortgages, I strongly suggest checking out these offers. The AP article obtusely headlined Lending giant moves indicate cooperation,can be found at this link.

This article, Technology Quiz: How Does E-Mail Disappear?, covers a lot of the territory I wrote about in Electronic discovery - E-mails, Enron, and Karl Rove. The article's style differs a good deal from the article I wrote about and that might make for a more interesting read, but I suggest reading this article only supplements my earlier post and not vice versa.

I get this e-mail newsletter from Lumen Legal. Sometimes they have good articles and sometimes the articles are just okay. Ignorance about e-Discovery No Longer an Excuse falls under the latter category. Nothing in the article explains its conclusion: "[f]ailing to show litigators and regulators how you have tried to preserve data can be as dangerous as not knowing where it is at all...."

I am still pondering why I want to find a Federal Employer Identification Number, but this very short article, Find a Federal Employer Identification Number informs me that there are services out there for finding this information. The article also has three screenshots.

Well, that is all for today.

Where are the official forms?

I once worked for a legal services program that started in Michigan. I should have been worried when they asked about official court forms. I remember telling the fellow from Michigan that Indiana has no official forms.

The Indiana Supreme Court created protective order forms with a required format soon after that conversation. One can find those forms at the office of the local county clerk.

On Law Guru, people continue to ask where to find Indiana's forms online. The Indiana Judicial Center now has about 16 forms listed under civil forms. One applies only to Marion County and six are Orders dismissing different proceedings. Unlike, say Michigan, the Indiana Trial Rules require the use of these specific forms other than the Appearance. No forms exist for probate matters at this site. Anyone trying to file their own civil lawsuit on the regular docket (rather than the small claims docket) will not find anything to help them on this site.

Hamilton County has forms required by local rule. These forms include family law, criminal, and probate forms. Still nothing for anyone wanting to file the initial documents (pleadings for those lawyer readers who need precision). The Delaware County Clerk has some forms online also for family and civil suits, but no probate. So far as I am aware, this is the only site with a civil complaint form. No probate forms, though. Marion County has forms online which really do not have much practical use for litigation.

I have not looked at the sites for all 92 counties and there may be more counties with forms on their websites. Let us say that this is a survey of my usual practice area.

I suppose I have puzzled you if you are a lawyer from a state with official forms or a non-lawyer from Indiana. If no official forms, how do we Indiana lawyers do what we do? My short answer is this: we steal. My slightly longer answer is: we still and use our wits.

We steal forms from our predecessors and our contemporaries. I know I use pleadings forms that I got from the attorneys in the office where I first started and who knows where they got their forms. Stealing a form requires knowing (if the pleading is a complaint or a petition) that the form properly states the law. Which in turns also means that the pleading works. No sense stealing something that does not work.

I also started by buying form books. I guess that form books constitute another form of stealing. I will tell you that I finally understood the abstractions of civil procedure by diligently reading and using and copying from form books. Nowadays, I refuse to purchase any formbook that does have a CD-Rom with electronic versions of the forms.

Every office needs a scanner and optical character recognition software (OCR). Take the form that you like, scan the document, and then convert the image into text. Converting to text allows you to manipulate the text and to re-use the form over and over again.

I take that text file one step further and convert the text into a HotDocs form. You need to know the variables to design the forms but I think anyone practicing any length of time can see where the variables are in the form. What this does require is time and hard work. I find it useful - automating documents like this allows me to dispense with a secretary to do the typing.

Problems exist with this method when the desktop dies as it did two nights ago. One can get too dependent on them. I am still in the midst of reclaiming all of my old forms into HotDocs forms and I am still getting a bit flummoxed when I find that a file I think I have has not been reclaimed for HotDocs. I wrote generally on the problem of computer dependence earlier.

Document automation increases the costs for a law practice. Short term those costs include the costs for the scanner, OCR software, the HotDocs software and the time for converting the forms. While the process poses some intellectual interests, the process must benefit the client. Remember that benefiting the client benefits the practice.

As I see it, the less time I spend drafting common documents means more time spent for dealing with the client and the more complex parts of the case. Which does bring another point to mind: the more that does a certain area of law, the more that you will develop a library to deal with that area of law. I found this particularly true in my collections practice. Collections require a volume of cases. Business law provides a similar sort of repetition suitable for automation. Family law provides a similar basis for automation as there is a great repetition of issues.

All this brings up a question about fees but I will save that for another post.

Relations with business clients - miscellaneous thoughts

I caught a profile of a Scots construction lawyer in last Sunday's Sunday Herald and I thought how lucky this lawyer was:

Her focus is not just on problem solving but on building long-term relationships with clients. She says this has led her into work on facilities management and PFI projects as her clients diversify into these fields.

Business clients here seem uninterested in anything but a one-off relationship. Yes, we may have a surplus of lawyers here but how many business people give their lawyers time to understand their businesses rather than just their kind of business?

Scotland has the same problems as Indiana - litigation costs money.

When she began to specialise in construction disputes in the late 1980s and early 1990s, the trend was for litigation, some of which dragged on for years, racking up enormous legal bills and involving bitter altercations. Now the trend is to avoid court and to seek resolution of disputes through an adjudication hearing presided over by an industry expert who normally delivers a verdict within eight weeks.

The impact of high-profile cases such as those involving Trafalgar House and Eurotunnel pushed the industry towards disaffection with the process of bringing a case to court, Patterson says. "No-one wins in that process. We're in a much better place today," she adds.

Similar solutions could apply here. For years I tried to get the attention of business clients by emphasizing preventive measures. No interest. Ever. I would be quite willing to credit this to a poor presentation but I know from my stint as in-house counsel that presentation has nothing to do with the lack of response. Businesses here prefer waiting for the axe to fall. I am assuming that times have changed enough to get businesspeople to listen. It may be - or so I hope - that I learned enough to better present the utility of preventive legal measures for businesses. If nothing else, it gives a sharper point to this blog.

Electronic discovery - keeping records

The January 2004 Law Practice Today (yes, the issue has been around that long) has an interesting article on record retention policies. While geared towards lawyers, I suggest that business owners might want to take a look at the article. The writer outlines the importance of a record retention policy, the problems of retaining records and possible solutions. Here is the conclusion to the article:

Demonstrating to the Court the existence of a reasonable, well thought out, comprehensively distributed, and carefully adhered to and monitored records preservation and retention program with rigorously enforced penalties for non-compliance is critical in limiting the exposure of a client, its management, and its attorneys to potentially serious statutory and spoliation sanctions. A proactive records preservation retention program can also help prevent a potentially ruinous criminal prosecution for obstruction of justice and protect the organization’s outside counsel itself from claims of negligent representation or even malpractice.

Employment law, civil litigation, white collar crime

Some new resources I ran across this week.

First, another of the Law Professor Network Blogs - Workplace Prof Blog. Lively, with news as well as case reporting but still academic (if less so than most of the Law Professor Blogs).

Second, is the Trial Lawyer Resource Center. The site's format differs from the usual blog but it calls itself a blog and it has an RSS feed. The site describes itself:

You've found the blog where a number of the USA's top trial attorneys join together with litigation experts to lend their expertise on topics that matter in your trial practice. Gain insight in case selection, work up, trial strategy, evidence, and post settlement issues. Contributors will regularly share their real life experiences and knowledge to help you represent injured consumers.

The Daily Caveat covers white collar crime and corporate fraud but is not written by an attorney.

About the Daily Caveat

The Daily Caveat is written by Michael Thomas, a recovering corporate investigator in the Washington, DC-area. Michael was a co-founder of Caveat Research, LLC., a business-oriented private investigative firm providing sophisticated corporate research and investigative services to corporate boards, law firms, consultancies and investment banks.

DocuTicker poses some interest and a problem for me. The site describes itself as "DocuTicker offers a hand-picked selection of resources, reports and publications from government agencies, NGOs, think tanks and other public interest organizations." The interest comes from the range of topics covered including small businesses. The problem lies in the more academic tendencies of the posts and applying them to practicalities of my practice.

I am very much intrigued by Settle It Now Negotiation Blog. Practical and lively written. This blog lead me to Trial Lawyer Resource Center, so I am very impressed.

Oh, boy, electronic discovery - businesses be aware

Electronic discovery does not mean using some electric gadget to find something. For lawyers, discovery means finding the evidence from the other side. The federal and state rules have changed to recognize a world now mostly computerized. I am trying to get into this a bit deeper for my business clients and getting them ready for any future litigation.

Educating the clients on this subject, has been a bit difficult. Outside of the media reporting on e-mails in regards to the United States Attorney firings, there really is a lack of understanding with the general public about how much of our lives and business now resides in electrons dancing with one another in computer hard drives. Finding something written for clients instead of lawyers or technicians has not been easy. The clients do understand do not delete anything in any way that looks suspicious, if you delete anything the do it as part of a company policy that is neutral, and have some means of retrieving everything there is on any subject.

Meanwhile, I am educating myself with articles from blogs such as the The Illinois Trial Practice Weblog. That blog has posts such as Emails as "Smoking Gun" Evidence and All You Need to Know About Electronic Discovery. Dennis Kennedy is required reading on this subject. Thanks to The Illinois Trial Practice Weblog I also found myself back to DiscoveryResources.org.

All this and trying to keep with the stuff on my desk, too. Such is the practice of law.

What Lawyers Do - More on Knowledge Management and Fees

Practicing law means more than juggling forms. If you really want to know what lawyers do, read this post on knowledge management and contracts. Especially read Ed Poll's comment. This paragraph from Mr. Poll captures my approach to automating my practice and practicing law:

We still remain, however, with the mentality that it’s too easy to use an exemplar without “thinking” whether this applies “on all fours” to our current matter. Isn’t that why we went to law school: To learn how to think? It’s just too easy for the laziest amongst us to say that because it’s in print, it must be right for this matter as well.

For those who want to do their own legal work, think what it means for you. It is not enough to just grab a form but know to what do with the form. The process takes time but it is worth the effort to make sure that the documents prepared for the clients are the right ones.

Fees, Automation and Business Clients - it is a long one

I have been trying to rebuild my office systems after two crashes in the past three years. Then several things came together in the past few weeks which impacted on that long term project. So, I decided I might as well combine them into this post.

I began my experiments with office automation over thirteen years ago. I was solo practitioner dealing with Indianapolis firms and computer automation seemed to hold a key to success. I really began when I first started to use Symantec's Q & A for DOS 4.0.

Q & A no longer exists, so let me give you a brief description. Symantec bound a pretty darned good flat-file database with a okay word processor. The database and the word processor shared a macro language and one could inject the database's programming into the word processing documents. This was in addition to the usual mail merge capabilities for the word processor. The word processor could not compete with a stand alone word processor like WordPerfect 5.1 (remember, this is the time of DOS) but it was far more than adequate for preparing pleadings and writing appellate briefs. I still have yet to see a word processor and database so closely bound together, and which with the macro language could be brought even closer. Wikipedia (of course) has an entry for the software and details the history.

By the time that Symantec stopped producing Q & A, I had invested heavily in programming Q & A. I had databases for attorneys, cases, calendar, and clients. Using information contained in the databases, I could manage a case and prepare documents without a secretary easily and inexpensively. I do miss it.

While I was practicing in Indianapolis between 2000 and 2002, I became acquainted with HotDocs. HotDocs automates documents. I still use HotDocs in my practice. When I wrote above that I was reconstructing my office systems, I meant rebuilding my collection of forms that were automated with HotDocs. Which I did over several years (if one includes the forms that were converted from Q & A Write forms, that would be many, many years) and includes many, many forms. Probably nothing has hindered me more in my practice these past few years than not having the full capabilities that I had and had grown very accustomed to having.

With this background, I was very surprised to read what two eminent writers on legal technology wrote on document automation. The first came from Adams Drafting.

I understand the point: no company wants to pay a steep hourly rate for the dubious privilege of having a partner scissor-and-paste together a contract.

On the other hand, one could conclude from the quotation that drafting contracts is a rudimentary undertaking that can safely be left to associates. That brings to mind a scary vision of largely clueless associates hacking at forms of questionable quality and relevance.

The solution isn’t to have partners more involved. Instead, associates should be less involved: drafting should be commoditized.

I thought that turning documents into commodities was now a self-evident proposition. With Q & A I learned to breakdown the documents into the boilerplate and variable parts. HotDocs merely continues that process.

Then I read this from Dennis Kennedy:

Document assembly, properly employed, offers a quantum leap over increased typing speed and lets you apply the knowledge and expertise that you've developed over the years. That is the flip-side of commoditizing drafting and a very interesting place to be.

Another idea that I did not know that I was executing on my own or of its exoticness. I decided to include the statute or whatever authority supported a term in a document into the document. I use WordPerfect, so I used its Comment feature. Word and Open Office both possess a similar feature. I could also put hypertext links into the Comment instead of text.

I must declare that I got these ideas from an English and Irish practice. Over there, they have been using what they call a professional support lawyer. (For an idea of what this type of lawyer does, here is a job posting from Dublin and this agency of professional support lawyers.) I once considered leaving the private practice to pursue something along the lines of this second example; albeit closer to the Wabash than the Atlantic.

I cannot say that being automated has brought me any appreciation from my clients, but neither have I made a big deal of it. I think I have been too annoyed by the systems being not up to my standards. Instead, I have had clients unhappy with my not having a secretary and having a home office. Which lead me to some reactions to Mr. Adams and Mr. Kennedy.

I would say to Mr. Adams: partner involvement makes a good impression on the client who will never understand the same results could be had from commoditizing the documents because the attorney never educates the client since the attorney thinks the knowledgeable client will balk at paying a suitable fee.

To Mr. Kennedy, I would say that you forget one component of the office and especially the smaller office: the secretary. After returning to Anderson from Indianapolis, I was talking with a former secretary about HotDocs. I recall that the Indiana State Bar Association offered a version with some stock Indiana forms. She could not see how the investment in HotDocs would be of any benefit over Word's templates and cut and paste. It was not from a lack of intelligence on her part, and I would not say that it was due to a poor explanation on my part. It could be that the attorney she worked for had a practice limited to personal injury and criminal defense. I do think that there was more than a bit of job security in her views. I think in smaller offices (and maybe also in larger ones but they are not within my experience) secretaries make much of the software decisions and certainly most of the word processing decisions. A short-sighted view on job security may come into play.

I think another post from David Kennedy nails the self-interest in job and income preservation.

The money quote from Susskind's article:

"The top US law firms are hugely and satisfyingly profitable. Accordingly, they seem to be moved to change more by the threat of competitive disadvantage than by the promise of competitive advantage. Without hunger for change, without the worry of being left behind by the competition and, vitally, without clients clamouring for new forms of service, it will be business as usual for the US legal behemoths for many years yet. They will wring every last cent out of the increasingly unsustainable practice of hourly billing and will steer well clear of innovative IT."

The full post is here. I could not find the original Susskind article, though.

These posts and the project of rebuilding the HotDocs library were in the back of my mind and came popping up the middle of last week. I was in Indianapolis for the Trial Advocacy Skills College. The program emphasized using a trial notebook. I saw that this was a way to unify and organize the HotDocs documents. Not that it will work for all cases but only for those that are in litigation.

It also means revamping my office contracts. Those documents which can standardized with HotDocs will be charged on a flat rate basis. That leaves the hourly rate for non-standard documents and interacting with clients.

That same change in office procedure will apply even more to my transactional practice. That is drafting the contracts, non-compete agreements, non-disclosure agreements and so on.

I also think the time is past to inform clients about the benefits of using this kind of technology. It may be that some will not understand and others will not care so long as the results are to their liking. However, only by educating clients on the benefits will there be the changes advocated by Mr. Adams and Mr. Kennedy. Of course, I am also hoping that when clients understand the advantages that this will aid my practice.