The Lawyer's Guide to Collaboration Tools and Technologies: Smart Ways to Work Together, the new book from Between Lawyers' own Dennis Kennedy and Tom Mighell is now now available for preorder at the ABA Web Store. There's a 15% discount if you preorder now.

The "official" launch of the book will be at the ABA TECHSHOW 2008, where Tom and Dennis will be speaking on the topic of collaboration tools, and will be happy to sign your copy of the book.

The book reflects the idea of collaboration that underlies the Between Lawyers blog.

Here's the book description from the ABA Web Store:

This first-of-its-kind guide for the legal profession shows you how to use standard technology you already have and the latest "Web 2.0" resources and other tech tools, like Google Docs, Microsoft Office and SharePoint, and Adobe Acrobat, to work more effectively on projects with colleagues, clients, co-counsel and even opposing counsel. In The Lawyer's Guide to Collaboration Tools and Technologies: Smart Ways to Work Together, well-known legal technology authorities Dennis Kennedy and Tom Mighell provide a wealth of information useful to lawyers who are just beginning to try these tools, as well as tips and techniques for those lawyers with intermediate and advanced collaboration experience.

Collaboration technologies and tools are the most important current developments in legal technology and are likely to remain so for the foreseeable future. Explained with minimal technical jargon, the book focuses on highly practical and usable ideas that you can put to work straight away.

With practical advice on how to use specific tools and concrete action steps to take, lawyers and law firms at all levels will benefit from working together better.

You'll learn:

+ The basics of collaboration and collaboration tools

+ How to select and implement tools and strategies

+ The best ways to collaborate on documents, cases, transactions, and projects

+ How to collaborate inside and outside the office

+ How to collaborate using tools you already have or own

Technology now makes it easier than ever to work with others -- this is the first guide dedicated to the special requirements of the legal world with the practical steps it takes to do it right.

I encourage you to preorder now and take advantage of the 15% discount or to consider ordering the book here if you are reading this at a later date.

I'm planning to write an article about what I'm calling "MacGyver" technology tricks. I'm assuming that you are familiar with the MacGyver concept (or you can wikipedia it).

As an example, consider using a digital camera or cameraphone as a document scanner in a pinch (or sending a document as a fax to a nearby fax machine when you aren't able to print it any other way).

I'm looking for some good examples and wanted to get a little help from the readers of this blog.

Remember, the idea is not something like using the top of your laptop as a cutting board, but ways to use software and hardware in unexpected, but logical and useful ways, in a pinch when you don't have the normal tools available. Another example: using a video iPod to run your PowerPoint presentation when your laptop won't work with the projector. I'm also looking for something that the average lawyer would be able to do with gadgets, hardware and software (or Internet apps) readily at hand for most lawyers.

However, I'm not looking for examples like this one, because it requires that you have a specific device available.

You get the idea.

Let me know your best ideas by leaving a comment to this post or joining the Between Lawyers Facebook Group and leaving your recommendations as a response to the discussion thread there.

On an unrelated note, be sure to take a look at a great roundtable article on legal podcasts and lawyer podcasting in the latest issue of the ABA's Law Practice Today webzine, with Denis Howell, Tom Mighell and Dennis Kennedy among the participants.

Tom Mighell and Dennis Kennedy have posted a new episode of their podcast, The Kennedy-Mighell Report (RSS feed here).

In this episode, Dennis and Tom discuss the use (or potential use) of Facebook by lawyers, giving some potential benefits and risks, practical tips, and observations about their experiments in using Facebook. They also talk about how they use the Google Reader for RSS feeds and Google Docs and Spreadsheets for simple collaborations. They also talk about the other podcasts they listen to and how they listen to them.

It's a good introduction for lawyers and other legal professionals to these topics.

You'll find the podcast episode here and there's an archive of earlier podcasts.

It's also a good time to remind you to check out Denise Howell's podcast - This Week in Law - on which you'll find some of the authors of the Between Lawyers blog appearing from time to time.

And, for Facebook members, we invite you to join the Between Lawyers Facebook group.

TechnoLawyer's new free eBook, BlawgWorld 2007, features a selected post from 77 different law-related blogs. It's a good introduction to the current state of blogging for everyone, no matter what your familiarity, or lack of familiarity, with blawgs. You'll even find a choice post from the Between Lawyers blog.

The untold story of this blog is that the Between Lawyers authors spend more time gabbing with each other via email than posting to the blog. During one of our recent quite extended email conversations, we decided experiment with and open up those discussions in a Facebook group so that friends/readers can also play along.

Without further adieu, you can now check out the Between Lawyers Facebook group.

Denise Howell raises some questions for bloggers and others who embed YouTube and other videos into their blog posts. Even better, she offers some answers to the questions in her post "Embedding a Headache."

Shelley Powers does a great job of summing up some of the key issues and unanswered questions about the Creative Commons licenses in her post "Virgin Bites Creative Commons on the Butt." Highly recommended.

We discussed the Creative Commons licenses (and some of the issues Shelley raises) a few years ago when we started the Between Lawyers blog as an effort to show our readers how a group of lawyers would think about applying a Creative Commons license. Those posts are collected here. I also talked about Creative Commons license issues in the recent Episode 26 of the WordPress Podcast.

Members of the Between Lawyers blog can be heard in a number of recent podcasts.

Tom Mighell and Dennis Kennedy have posted the latest episode #5 of The Kennedy-Mighell Report, in which they cover the recent ABA TECHSHOW, legal technology trends for 2007, current developments in electronic discovery, and their upcoming book on collaboration tools for lawyers.

Denise Howell has posted the latest episode of This Week in Law, which includes fellow regular Ernie Svenson. An earlier episode feature Between Lawyers' Marty Schwimmer.

Technorati tags: legal technology podcast electronic discovery between lawyers

Between Lawyers' own Dennis Kennedy and Tom Mighell are pleased to announce that they will be writing a book on collaboration tools that will be published in early 2008 by the American Bar Association. The book is tentatively titled: "Collaboration Tools for Lawyers: Essential Ways to Work Together with Colleagues, Clients and Even Opposing Counsel."

Nearly every lawyer finds that colleagues, co-counsel, clients and even opposing counsel use the Internet and technology to collaborate and work together on documents, projects and cases. In the simplest scenario, lawyers and clients use the "track changes" feature in Microsoft Word to work together on a document. Technology today lets lawyers take collaboration to the next level. Many legal technology tools now include collaborative elements.

At the same time, lawyers increasingly use the Internet in many ways to work together. From document sharing to videoconferencing, there are more tools than most lawyers can imagine for working together, online.

Two key trends are at play here. First, for years lawyers have understood the clear benefits of collaboration and working together as a routine matter. Second, the availability of simple, inexpensive (even free) collaboration technology has created an environment where working together makes sense to nearly every lawyer in nearly every firm. The push forward on both trends is likely to continue.

Two other important factors also come into play. First, business clients are routinely using technology to collaborate and will expect their lawyers to follow. Therefore, collaboration tools illustrate a classic example of a client-driven technology. Second, events in the world from increased travel costs to possible pandemics make it even more likely that these tools will be adopted by necessity.

To the extent lawyers have experimented with these tools, they may have the nagging feeling that they are simply touching the tip of the iceberg of what might be available to them and how they might use these tools to their benefit. We believe that they are right to feel that way, because it is undoubtedly true.

The book will provide intensely practical advice for lawyers and law firms wanting to take better advantage of these tools and the benefits they bring. It will take a look at how to use these tools wells, focus on both categories of tools and specific individual tools, and provide concrete action steps and techniques so that even the least tech-savvy lawyer can catch up with the early adopters and successful innovators.

Collaboration Tools for Lawyers: Essential New Ways to Work Together with Colleagues, Clients and Even Opposing Counsel, by Dennis Kennedy and Tom Mighell (expected publication date: early 2008)

Legal marketing guru Burkey Belser takes a few stabs at the recent New York and Florida efforts to restrict legal advertising and communications in his post "Rotten to the Core." I agree with his assessment that the law of unintended consequences will apply many times over with these rules and the risks of arbitrary enforcement are quite high.

The money quote:

One wonders if federal regulation of legal marketing will ever overtake the state-by-state model currently saddling the profession. So many firms have so many offices across so many state lines that the old regulatory model hardly makes sense anymore.

There's good practical advice in the post and a helpful chart you can download.

Tom Mighell and Dennis Kennedy have published an introduction to wikis and a primer on how they might be used in the legal profession. The article is called "Wikis for the Legal Profession," and it appears in the the February 2007 issue of Law Practice Today.

Ken Adams explores the practical potential of using wikis for contract drafting in a piece called "What Are Wikis?" in the New York Law Journal today. Excellent article.

I agree with Ken's conclusion, but I think that the value of wikis will not come through their use as a drafting tool, per se, but as a way to collect the "knowledge" about how contracts are drafted, when you use certain clauses and why, and the like.

Well, the new New York advertising rules for lawyers are out. They are quite extensive. Fortunately, there are some analytical pieces and summaries out already ready.

As a good starting point, check out Allison Shields' extensive summary here. Larry Bodine does not mince words in his reaction. Carolyn Elefant at Law.com summarizes a few posts. John Caher takes a gentle approach in the New York Law Journal..

I'm sure we'll see more commentary later, but there's a lot to read and digest.

My first quick read gave my the odd feeling that I was reading a new Miranda marketing warning for legal marketing ("You have the right to remain silent. Anything resembling marketing that you or your law firm may do may be treated as an ethical violation."), but I'll reserve judgment until I can read the rules more closely.

Two thoughts: First, I think that my characterization of the proposed rules as "micromanaging" is even more true of the final rules. Second, I believe that this type of state regulation, which undoubtedly will be picked up by other states, all but begs the FTC to step into lawyer regulation.

I understand that the next item on the New York agenda is a lawyer dress code. ;-) Hmm, maybe that's not so far-fetched. Consider this quote from the Caher article:

Finally, the new rules ban advertising "techniques to obtain attention that demonstrate a clear and intentional lack of relevance to the selection of counsel, including the portrayal of lawyers exhibiting characteristics clearly unrelated to legal competence." That provision was added partially in response to advertisements run by a Long Island, N.Y., attorney who permitted herself to be filmed in provocative poses to tout her real estate practice. Those ads generated complaints from Long Island practitioners who noted that the attorney's cleavage had nothing to do with her legal abilities, officials said.

The one element of these new rules I really like is the use of the all-but-forgotten word "moniker." I assume that the rules on use of monikers may bring the end to Morrison Foerster use of the term of endearment "MoFo." Heh.

I'm quite curious to see what the response of New York lawyers will be to these rules.

It was recorded a while back, but I wanted to recommend the excellent discussion on legal technology and outsourcing you will find on the podcast featuring Ron Friedmann and Ross Kodner that's part of the Coast to Coast podcast series. It's called "Legal Technology: A Doubled-edged Sword?"

Ron and Ross are on top of their games and you'll get some fascinating insights into the ways law firms are using outsourcing and insourcing. We talk about Law 2.0 on this blog on a regular basis and this podcast will give you some practical ideas about what Law 2.0 might mean and what it might look like.

Bar regulators in New York and many other states will be on the phone scheduling meetings to stamp out some of the new and innovative marketing ideas in Ari Kaplan's new article, "Lawyers Must Get Creative About Marketing."

There are some great ideas and insights in the article. I personally would be afraid to try them in today's increasingly "Lawyers Must NOT Get Creative ABout Markeing" environment. The biggest danger: since the suggested methods are reasonable and recommended by marketing experts outside the legal profession, they might work.

As we continue to keep our eyes on the proposed regs in New York and elsewhere and the ongoing efforts of regulators to cause the FTC to regulate the regulators, it might be useful to think about Between Lawyers' own Denise Howell's quote in this article:

Blogging reaches a broader, more distributed audience, and provides a search-friendly, enduring archive of knowledge-oriented breadcrumbs.

There's nothing more fun than when a couple of us here at the Between Lawyers blog actually get the chance to get together in person.

Tom Mighell and I (Dennis Kennedy) just returned home from a presentation on electronic discovery (From Basics to Beyond) we did in Washington, DC for a law department.

It reminded me to mention the obvious. All of us at Between Lawyers are available, individually and in combinations, to speak on a variety of topics for your events, groups or organizations. We'll be posting more information about that soon, but, if interested, be sure to contact us to see if there are ways we might work together to present topics of interest.

Between Lawyers' own Denise Howell has debuted her newest solo blogging effort - Lawgarithms - on ZDNet.

Subscribed!

It would be difficult to overestimate the importance of Open Source software and, as a result, the Open Source licenses.

There's a lot to think about in the land of Open Source these days, much discussion, and much discussiion to come. And there is much rethinking.

This is a discussion that readers of this blog should be following and, where it makes sense, contributing to.

First, consider carefully the discussion opened by Tim O'Reilly's recent post "Open Source Licenses Are Obsolete," which, not surprisingly, has generated some controversy and discussion. However, O'Reilly raises several key points, one of which has been discussed for a while - how do software license models, including Open Source licenses, work in a world that is moving toward "software as a service" models?

At the same time, work on a major revision of the General Public license continues. The current draft of version 3 of the GPL is here. John Paczkowski's humorously titled post is a good intro to the GPL revision, covering Linus Torvald's objections and giving some good links.

I've written about the Open Source licenses in what I hope is a practical and understandable way (links here).

The Open Source licenses, Open Source software and the Open Source philosophy and community may well be the most significant and influential area of technology today. It's a subject that you must educate yourself about.

Anyone else flummoxed by the proposed new advertising rules for lawyers in New York? Take a close look at this Law.com article and the text of the proposed amendments to the rules and let me know what you think.

As I read the rules, EVERY public communication is an advertisement and any communication that isn't an advertisement is probably a solicitation. That should cover almost every communication between lawyers and the public.

In either case, a shocking number of draconian and micro-managing rules will apply.

I'll let others consider the free speech and other aspects of these rules, but I'd love to see some marketing experts analyze what the actual marketing effectiveness of any communication that satisifes these rules will have. My tentative conclusion is that if an "advertisement" or "solicitation" might in even a limited way be effective, it will violate the rules. If it has even been recommended as an effective form of marketing, it will probably cause you trouble.

This seems to be another in a series of recent regulatory efforts by state bar regulators that seem woefully out of touch with the Internet era.

Should you care? Well, consider this quote from the rules: "A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this state if the lawyer provides or solicits any legal services in this state." Take a quick look at the definition of "computer-accessed communication" in the amended rules and consider how a website or blog located anywhere is likely to be treated by the plain language of these proposed rules.

Once again, we see a concern about a limited problem being turned into wide-ranging regulations that will have enormous unintended consequences and seem designed primarily to protect established, successful practices from new competition.

Are we seeing the last gasp of an attempt to apply 19th century concepts to a 21st century world, or will lawyers be the only group able to roll back the changes the Internet has brought to the rest of the world? I'm betting on the Internet, but I'm quite curious about what others think about these proposed rules and others like them. It might be a good discussion topic for a summer Friday.

In an interesting bit of irony, PodTech.Net takes the occasion of the move of leading corporate blogger Robert Scoble to its ranks to unleash a breathless story (and accompanying podcast) about the dangers of corporate blogging. In the article and podcast, Allen Weiner, a media analyst and Research Vice President with Gartner, Inc. says he thinks companies need policies that govern in-house blogging, or, "all hell breaks loose." Yikes!

Weiner adds that “Unsanctioned corporate blogging is absolutely a tough call. And it happens in just about every organization.” Hmmm . . . "just about every organization," he says. I'd love to see the stats backing that assertion. In fairness, I'll note that I pulled the quotes from the overview article and suggest that people listen to the podcast of the interview of Weiner to get a fuller picture of his views.

Let me simply say that in "almost every organization" there probably is a corporate communication policy or Internet use policy already in place that comfortably covers blogging and bloggers. As we've mentioned many times on this blog, considering policies in a vacuum, or rushing in with standardized and ill-conceived "blogging policies" will be the recipe for making all hell break loose. Any reasonable approach to these issues involves a three-sided approach, reasonable policy, consistent enforcement and excellent training. Skimp on any of the three and you will have problems. Focus only on the "blogging policy" issue (especially without integrating the other aspects of corporate communications) and all hell may break loose.

We've covered the issue of "blogging policies" repeatedly and, we believe, reasonably on the Between Lawyers blog. It's sad to see that the hype and selling of corporate blogging policies continues unabated. For a very reasonable approach to this issue, see Denise's recent post "Blog in Peace." She doesn't talk about hell breaking loose even once in the post.

It'll be interested in seeing see if and how PodTech.Net implements Weiner's approach with Scoble, won't it? We'd certainly hate to see all hell break loose at PodTech.Net because of Scoble's blogging. I'm just noting the irony of the timing of this article and Scoble's move.

What might be quite useful to the blogging community at large would be for PodTech.Net and Scoble to share the "blogging policy" that will apply to Scoble so it might be analyzed and critiqued and possibly used as a model for companies taking progressive approaches to employee bloggers. Just a thought and an example of what we call open source lawyering might look like.

There is a growing discussion of the relevance of our current court system and the ways lawyers want to use it in the Internet era. More accurately, there is a concern about whether the system continues to be workable.

Ernie points to a recent (and some might call mind-boggling) ruling of a federal judge that requires the opposing attorneys in a case to settle their latest dispute with a game of "rock, paper, scissors."

Ernie does a nice job of explaining the basis point of our court system and concludes, succinctly, that:

Hell, when a federal judge has to tell the attorneys to use a child's game to resolve their disputes then you know the system is completely broken.

I'm willing to be persuaded otherwise, but I completely agree with Ernie. This isn't Law 2.0.

Where do we go from here? What client is going to be happy with this kind of ruling and the behavior that leads to it? Will lawyers chuckle at this and similar stories as they reap the unintended consequences of breaking the court system? If lawyers make a joke of these matters, why should we expect others to take us or the court system seriously? Consider Ernie's comments carefully.

More on the underlying story here.

The phrase "the interstices of ivory tower and pop culture" that Denise quoted in the previous post reminded me of the core concept and mission of "Between Lawyers" (see "About this Blog") at bottom of left column of our blog. "Between Lawyers provides just-in-time group commentary on the issues raised when technology, culture and the law intersect."

Then I read the following in the article Denise linked to:

"From the fistful of judges (including Richard Posner) who maintain regular blogs, to the vast and growing number of law professors and law students who find the time to post daily, it's clear that the real bones and guts and sinew of the national conversation is happening online, and not in print."

What, what, what? What about the practicing lawyers with blogs who try on a daily basis to translate legal issues and legal developments into practical explanations and a conversation that we can all understand.

Looks like we have more work to do at the Between Lawyers blog, RethinkIP, Evan Schaeffer's Legal Underground and the many other lawyer and law librarian blogs that are changing the dynamic and the way that the law is discussed today before we get our message out there.

Or maybe the message really is getting out there already. If Marty is getting a million hits a month talking about trademark law, I submit that lawyer bloggers are talking about law in ways that people want to hear it talked about.

Look, I like the law professor blogs and law student blogs, but ultimately what we all really want to find are practical answers to real-word legal questions, issues and problems that face us.

Check out Denise's recent post "Apple v. Does Decision Issued" if you want to see where I think blogging is leading us in the ways we discuss breaking legal developments.

I enjoyed Lithwick's article and agree with her main premise about the value of law-related blogs and what they add to the discussion of legal issues, but I'm surprised by the over-focus on law professor blogs and the invisibilty in the articles of the categories where most of the law-related blogs live.

Interstices are OK for some things, but there are good reasons we called this blog "Between Lawyers" rather than "Jurisprudential Interstices."

What do you think?

Tom Collins, in his excellent More Partner Income blog, describes a phenomenon that I've seen for a long time, yet have found difficult to explain to people. In fact, I often feel that people do not believe me when I talk about this. It is somewhat counter-intuitive.

As Tom explains, lawyers in mid-sized firms (and also in more larger firms than people might expect) are consistently working annd billing more hours than associates. There is no "leverage" and in many mid-sized firms the partner/associate ratio is 1:1 (or less).

What has happened, especially since the notion of minimum billable hours got applied to partners, is that partners hoard work and do not delegate it to associates. The reasons are pretty clear - if your compensation and review is based on making your own quota of billable hours as a partner, then, even though you are defeating the basic economic purpose of having a firm and using leverage with associates, you will make sure that you have sufficient work to make your own billables quota first. In firms that use "billed" or "collected" hours as a measure, the tendency to hoard is even greater.

Tom's post does an excellent job of describing the phenomenon and explaining the many negative consequences that flow from it. Tom's suggestion of a more rational compensation scheme for mid-sized firms is mandatory reading, especially if you are a parther (or a partner-to-be) in a mid-sized firm.

My own take on this is that the work-hoarding partner phenomenon is one of the most insidiously destructive forces at work in law firms today. If you ask senior associates and young partners why they have left firms, it is rare not to hear some variation on this theme.

I applaud Tom for asking the questions and proposing a starting point for finding a solution.

The money quote:

The firm gets a bonus out of the new approach. The firm gains a farm team out of which the future partners and leaders of the firm will come.

It should concern us that Tom has to remind us of the basic truths he notes in his post. More firms, however, should be concerned that the farm team has already left the ranch.

I doubt that anyone has more trouble with or dislikes cell phone service more than I do. Today was another adventure in tin-can-and-string sound quality and dropped calls - and I was the one on the land line today.

I don't know anyone who does not admit to having similar problems when I press them, even though they seem to love their actual cell phones - the hardware, that is. What the heck are we all paying for?

Tonight, I found a podcast of a a presentation from Ed Zander of Motorola and here's the description:

Motorola Chairman and CEO Ed Zander says the ultimate cell phone would come back into the home–that is, it would be the only phone one would need. But that development seems far away for users in North America. “People always say to me, ‘I can go to China, and go to the Great Wall of China and make a better phone call than here in the United States,” Zander offered during his keynote interview with Gartner analysts Nick Jones and Ken Dulaney. “And it’s probably true,” Zander noted.

Zander is more polite than most people I know when they get started on this topic - here's a link to the podcast - http://www.podtech.net/?p=645. Check out his point of view.

What do the rest of you think of cell phone service in the U.S.? What are we getting for what we are paying? Is it reasonable to expect more? Or am I the only one this really bothers?

Tom and Dennis have posted Episode 3 of The Kennedy-Mighell Report podcast, in which they talk about their recent trip to the ABA TECHSHOW and developments in legal technoloogy and the implications for lawyers, law firms and clients of lawyers.

Evan Schaeffer offers a thoughtful and thorough critique of an effort by the Florida Bar to legislate how lawyers can and cannot use metadata. As Evan points out, the rationales for and provisions of the proposed rule are confusing and contradictory (or even miss the point completely) to lawyers who are familiar with and comfortable with the underlying technology issues.

I don't have much to add to Evan's analysis other than to wonder why a rule directed at requirements for a lawyer protecting the confidentiality of his or her client is being used as the basis to create a prohibition on opposing counsel who do not represent that client from looking at metadata in documents? That seems like a long stretch in logicto me.

Evan points to several good resources on metadata issues, including an article Evan, Tom Mighell and I wrote called "Mining the Value from Metadata."

The money quote from Evan's post:

Given a choice between hiring a lawyer in Florida, where lawyers may not be allowed to use technology as it was intended, and hiring a lawyer somewhere else, why would anyone choose the lawyer from Florida?

From my point of view, this proposed rule once again raises the question of the proper place for state-by-state regulation of lawyers in an Internet era.

Your thoughts are welcomed in the comments to this post.

Ian Best has a great interview of Judge Richard Kopf that arose out of Kopf's citation of a blog in a court opinion.

I recommend reading the whole interview because it clearly points to the future and may suggest to many lawyers that the future will arrive much more quickly than they anticipate.

The money quote:

9. What advantages and disadvantages do legal blogs have when compared to law reviews and other traditional forms of scholarship?

The advantages are obvious: speed, availability, and topicality. I don’t see real disadvantages.

Highly recommended.

Shortly before Hurricane Katrina hit New Orleans, we at the Between Lawyers blog got together via conference call to do a test for what we thought might become a Between Lawyers podcast. Events intervened, the sound quality disappointed us, and the project got put aside. We will probably will never release the recording. It was a test, after all, and some of the topics are well out-of-date at this point.

I was listening to parts of it last night and found a 45-second clip of it that I really liked. I tried to clean up the recording and equalize the voice levels. I like the clip because it has all five of our voices on it and it nicely captures some of the rapport that the five of us have and the sense of humor we all share. The clip is from a point about two-thirds of the way through the recording and we had gotten comfortable with the format.

In the clip, Denise tells the story of Jorn Barger, who coined the term "weblog," and the "economic rewards" that it brought him as mentioned in this Wired magazine article. We. of course, cannot resist speculating on whether Denise will end up in the same place as a result of coining the term "blawg."

I hope you enjoy the clip (download here as mp3 (approx 750K)). It's short and it will give you a different view of the five of us.

If you like the clip, let us know. We still toy with the idea of creating a Between Lawyers podcast from time to time.

I've gotten a number of inquiries on my recent post about whether lawyers might use podcasts, videocasts or other audio and video recordings as samples of their work that might be heard or viewed by clients and pootential clients.

I'm personally not aware of any examples of this, but would appreciate it if people might let me know by way of a comment to this post or by email of any examples where this is now being done. Thanks.

There's been a lot of discussion in recent days on the latest round of associate salary increases at large US law firms, Bruce MacEwen does a nice job of summarizing the issues here.

The Wired GC has now weighed in with a thoughtful and thought-provoking post taking a client's point of view, the first of what he promises will be several posts on the topic. I can't wait to read them all.

The Wired GC stirs the pot with a couple of must-read observations, but here's the money quote:

(We of course know it’s not about price-fixing.)

Hmmm, there's that one hyphenated word.

I remember an earlier round of associate salary increases back in the dot-com era when I was on my firm's hiring committee. As we considered, all the issues you read about in the discussion of the economics of these issues and the need to raise salaries to attract new lawyers, a good number of my friends in small law firms kept using that hyphenated word - "price-fixing." I never bought their arguments.

The category of this post is called "Provocations." Here comes the provocation and we'll see what discussion we get.

In recent months, I've noticed a ratcheting up of the "protections" of the legal profession from within - stories about lowering the rates of bar exam passage, decisions that law firms can't use certain types of advertising (pit bull ads anyone?), other efforts on preventing "unauthorized practice of law," and and now law firms all over the country raising starting salaries by same amounts in all but unison.

Is the legal profession begging for outside (governmental) investigation, intervention and antitrust regulation?

I'm just raising the question to see what people think, not necesarily as a reflection of my own opinion.

Thanks to the Wired GC for asking some tough question. I highly recommend his post.

Julian at Exceller8ion has a great discussion of corporate blogging policies, the need for them and the forms they might take.

He concludes with a suggested one sentence corporate blogging policy:

When blogging: better to be a smart ass than a dumb ass.

You might have a little trouble getting your lawyer to sign off on that one, but Julian's discussion will help you think through what approach you do want to take.

In response, Heather Hamilton has a great post that gets to the root of the corporate blogging question with her post called "The difference between companies that WANT their employees to blog and companies that ALLOW their employees to blog."

The money quote:

It's not necessarily any one policy that concerns me but that, taken together, they seem to represent a fear of allowing employees to blog. As if to say: "we don't really want you to blog, but if you must, follow these vague rules". Telling people not to violate agreements they have signed? Duh! You can't disclose proprietary information? Duh! No obscene material? Wait while I delete a post I've been working on. I guess my position is that if you need to spell it out for people this plainly, you really don't trust them to blog in the first place and/or you need to raise your hiring bar. Are you trying to scare them off blogging? Giving yourself something to point to if you don't like what they say? I'm not trying to criticize any one company; I just don't buy into these extensive blogging policies.I prefer the "don't do anything stupid" policy, which assumes (hopefully based on proof) that you hire smart people.

Excellent contributions to the ongoing discussion of corporate blogging policies in the real world and the hidden dangers of adopting "standard" and draconian policies.

Denise posted a "blink" the other day on the article called "Intellectual Property Run Amok" in Mother Jones.

In one of our occasional posts on what goes on behind the scenes at Between Lawyers in which we open the door on how lawyers really discuss legal issues of the day, here's the very learned discussion that ensued:

Dennis (note that Dennis did not realize that Denise had already posted on this topic):"Here's an interesting list on IP extremes [from Mother Jones mag], but when you read the blurb about John Cage below, it makes you wonder whether Marty might have been the lawyer in the case."

The blurb: "FOR INCLUDING a 60-second piece of silence on their album, the Planets were threatened with a lawsuit by the estate of composer John Cage, which said they’d ripped off his silent work 4’33”. The Planets countered that the estate failed to specify which 60 of the 273 seconds in Cage’s piece had been pilfered."

Marty: "I've never heard one of Cage's actual pieces. Are they 'dead air' or is the point that you hear the ambient noises (musicians sitting quietly)?"

Dennis: "Well, 4'33" is an anomalous work in Cage's canon - an intellectual witticism and a response of sorts to critics who thought his music was so darn weird. The answer to your question on the piece is, therefore, "yes." The intention of the silence would be to force you to reconsider what music, sound, silence and performance really are - a riff on Magritte's "Ceci n'est pas une Pipe" painting. It's kind of one trick pony, though, because you can only do something like that once. In its context, then, the lawyer's response to the lawsuit is the perfect artistic response and, in my mind, perhaps the artistic zenith of the legal profession in the last however many hundreds of years. Another contemporary analogy, of course, would be Lou Reed's Metal Machine Music. Excuse me, while I go crank that up and meditate on these artistic thoughts. Just my two cents."

Marty: "I guess my question really was, how did Cage's lawyers know that it was Cage's silence at all? Agreed that it is a truly great response."

Denise: (who noticed that neither Dennis nor Marty had been aware of her post on the topic) "Given that I blogged the Mother Jones List on BL, PLEASE blog at least some of the delightful context set forth in these emails there as well. (And don't be callin' ME no one trick pony, because there obviously are no limits to how many times I can persuasively urge you/all to "blog it.")"

Jake Parrillo got my attention today with his post "Blawggers Getting Their Due." And not just by mentioning the Between Lawyers blog and several of our individual blogs.

What interested me were his comments on the possible uses of FeedBurner's new FeedFlare tool in connection with blawgs.

Jake says:

Brad Feld got all of us thinking about 'blawg'-focused FeedFlare.

Brad's idea was to add a Flare that would 'add a disclaimer' on each post that would be a small 'bio' link that would list the firm where the blawger is an attorney. That's a great start, but I'm sure there's bound to be more ideas. What about adding a Flare that would link back to the lawyer's latest publication?

The FeedFlare page suggests some other ideas as well.

Take a look and give it some thought. Let's collect and share ideas in the comments section for this post and we can get back to Jake with some good ideas. I agree with him that this idea has a lot of potential, especially if Rick Klau is involved.

Technorati tags: FeedFlare blawg between lawyers Law2.0

Professor Jim Maule at the Mauled Again blog continues to make me wish that I could have taken a class with him. That might be the highest compliment I can give a law professor blog.

There's been a recent brouhaha in legal education after a law professor banned the use of laptop computers in her classes. It should surprise no one to find that I think this action is preposterous.

However, Professor Maule, in his post called "To Allow Laptops or Not to Allow Laptops: That is the Question," offers a thorough analysis of the issue that most people will find much more convincing that me just saying "Preposterous!"

The money quote:

One goal of legal education is to teach future lawyers that professionals need to be responsible. Teaching law students to be responsible requires more than denying them the opportunity to be irresponsible. It requires guiding them around the tempting distractions. If law faculty become too controlling, how are the students going to fend for themselves after graduation when the faculty isn’t there to control things for them?

The snarky ones out there might say, "Taking away laptops in law school will prepare students to work in those law firms that are busily trying to take laptops away from lawyers and have them only work on desktop computers." Some might think that I would be one of the snarky ones, but that's probably not the case.

Professor Maule, however, is a welcome voice of reason in this discussion. Highly recommended.

Let's discuss.

Consider this use of technology in the practice of law:

Imagine that you can have an Internet communications feed between a lawyer in a courtroom, arbitration hearing or deposition and other lawyers, outside experts and/or client representatives who receive a live feed from the proceedings. Those outside the proceedings can use instant messaging or other techniques to assist the lawyer at the proceedings in much the same way they might if they were physically present.

I saw this kind of technology demoed live at the ABA TECHSHOW in 1998. I thought that it was a great way to improve the representation of your client and offered some significant benefits for training and supervising lawyers, savings on travel costs, and the like.

Move the clock forward eight years.

The Detroit News has a story called "High-tech snooping corrupts legal system: Attorneys in legal case transmit private arbitration hearing to off-site consultants," in which there are scathing denunciations of what seems to me to be exactly the same use of technology.

As I understand the story, there does not seem to be a question about whether the outside consultant could not be in the arbitration hearing, although there is a lot of discussion about whether this use of technology should be disclosed to the other side. There is not a lot of discussion about whether this approach afford a client better representation.

Here's my question: Am I missing something here if I am thinking that this is an innovative use of technology (even though the tech has been around for awhile) rather than a "corruption of the legal system"? I'm willing to learn where I'm wrong, but I like this use of technology.

What do you think?

Via John Robb:

Jesper Bindslev's post "Strategic Agility and Corporate Blogging - The OODA loop as a model for organizing corporate blogging activities" is an important contribution to the discussion of corporate blogs and employee blogging.

The post may be a little bit of hard sledding for those not familiar with John Boyd's notion of the OODA Loop, but the patient reader will be well rewarded.

The money quote:

Internal blogging combined with external blogging, rss aggregators and social tagging are all important tools which enable the team to organize information efficiently to insure that the data is activated and distributed to the right people at the right time. From this angle blogging helps companies cope with challenges like complex environments, gathering and activation of information and efficient, up-to-date decision-making for various team efforts. As such blogging can efficiently help organization on one of the contemporary top-priori[ty] business imperatives: corporate agility.

Something to think about for companies thinking about slapping on draconian employee blogging policies.

Technorati tags: blogging policies OODA Loop corporate blogging Between Lawyers

Here's a provocative topic for a Friday afternoon from a fascinating article in today's ABA Journal eReport. Terry Carter's "No Time for a Round-up" covers a recent Kansas case where a court censured a lawyer for, among other things, rounding 45 minute blocks of time to one hour.

The article then goes into detail about what might and might not be permitted in the rounding of time to the nearest billing increment. Read it yourself. I'll simply note that some of the examples referred to specific questionable practices that looked suspicious on their faces.

The most interesting comments are from a law professor who suggests than ANY rounding should be prohibited. In other words, time entries would become 5 minutes, 24 seconds, rather than .1 hour. The technology, she suggests, is available to do this. This might give new meaning to "being on the clock." Before long, embedding chips directly into lawyers' brains might make timekeeping even more accurate.

You might want to read this article right before you read Ron Baker's recent comments about lawyers as knowledge workers.

This might also be a good place to plug my recent white paper on improving time capture for lawyers, a topic which might have become much more interesting to lawyers, especially those in Kansas.

If this article makes you think about alternative billing models, Tom Mighell and I wrote a couple of columns about resources on this topic here and here.

Technorati tags: law practice timekeeping legal ethics billable hour between lawyers

From Scout comes a good list of "10 Tips for Becoming a Great Corporate Blogger."

Interestingly, it must not have been written by a lawyer caught up in the latest blog policy marketing fad - not one of the ten tips talks about implementing a draconian "standard" blogging policy. Food for thought.

Jim Maule's thoughtful post "In Defense of Law Blogging, Part 2" will show you why he's one of my favorite law professor bloggers.

He discusses the debate in academia over whether academics should be blogging or, instead, confine themselves only to traditional academic vehicles. He frames the issue: "From my vantage point, it appears that the so-called traditionalists are beginning to sense the threat to their way of academic life that blogs, and technology generally, pose. Understandably, they seem concerned that the foundations of the think/write/publish routine to which they are accustomed and with which they are comfortable are beginning to crumble. The irony is that the approach held so dear by traditionalists probably isn't old enough to qualify as a tradition."

The money quote (but you should read the whole post):

If there is a difference, it's that I have almost instantaneous access to what others are thinking, ideas that would not see, and do not see, the light of day in the world of student-edited, paper format reviews that often are too late to be of use. Sometimes I seek feedback, and learn far more from listserv discussion than I would chatting with the one or two members of my faculty who have expertise in my area of the law. Then I write. The difference is that when I'm ready to publish, I publish. I don't go begging to second-year and third-year law students who have little if anything to add to the analysis, and whose focus on the technical insanities of the Blue Book or whatever citation format directive is in vogue adds weeks if not months to the process without adding anything to the message.

Farmshoring has a catchy ring to it. According to Wikipedia, "Where offshoring is the relocation of business labor to foreign nations, farmshoring is the relocation of business labor to small rural American towns."

I've heard the terms "homesourcing" and "insourcing" to refer to outsourcing work, including legal work, to the US Midwest and other "non-coastal parts of the US. It's an idea that starting to get a lot of discussion and some traction, including in the discussion of Law 2.0. One more piece of "the world is flat" conversation and a new meme to watch..

Thanks to Rob McMay at BusinessPundit.com for the explanation and links.

Technorati tags: farmshoring outsourcing insourcing homesourcing Law2.0

First Monday has republished "Law and Borders - The Rise of Law in Cyberspace" by David Johnson, a seminal article on online law from 1996, as part of a collection of articles on online law.

Also included is a new article from Johnson called "The Life of Law Online" that I highly recommend to anyone who wants to think about where law is headed in an increasingly online world.

The new article ends with this paragraph:

Our geographical, sovereign law may be well suited for regulating physical things and protecting us from real world threats. It will undoubtedly persist in its own appropriate environmental niche. But, even in that context, we would do better to treat it as an organism, rather than a mechanism — viewing it as a complex whole, disallowing efforts to redesign it from outside, discrediting efforts to analyze it by reductionist means. In any event, we must recognize that our current legal organism, transplanted online, will not prosper. As we interact globally over the Internet, we create a new non–local citizenry, a netizenry, occupying many different kinds of online spaces that both need and can create rules of their own. The new global metabolism will produce new forms of social order that use fundamentally different forms of repair, goal setting and legitimation. Our old meta–meta–story of citizen consent to a social contract empowering a territorially local government just won’t work in this new context. But new repair mechanisms, new complex systems, new forms of social order will arise. These will involve voluntary navigation and filters, not voting. They will demand and receive deference from local legal regimes, because they will be better than any current legal systems at creating social order online. Long live the new legal organisms of the net.

A profound and fascinating article. Johnson's writings have been a big influence on my thinking for many years and he is one of the giants in both the legal aspects of technology and the use of technology by lawyers. I'm thrilled to learn that Johnson will be speaking at ABA TECHSHOW 2006, where I hope to meet him and say thank you in person.

Technorati tag: Law2.0

It's hard to believe that it was almost a year ago that we were discussing on the Between Lawyers blog a series of breathless announcements from lawyers and other pundits about the dramatic dangers for employers who did not have a "blogging policy" in place. Too many of those announcements suggested that "thou shalt not blog" was the best policy, not realizing that there might even be positive benefits of employee blogging in the sense of the Cluetrain Manifesto and other thoughtful approaches.

Concerned that the general public would see the new-found concern of lawyers as being simply a law firm marketing flavor of the day, we decided to shine a little light on the topic, cut through the hype and take an approach that focused on education rather than fear. You can find our posts on this topic in the blogging policies archive of the Between Lawyers blog. I've just read through the posts and they seem so reasonable that you may wonder if lawyers actually wrote them. There are also some great links and resources.

I think that the discussion here did some good because I didn't see any "Blogging Policy Alerts" for quite a few months after we (and others in the blog world) discussed the topic.

Well, it was a short ceasefire. A new article at Forbes.com called "Protecting Employers Against Bloggers" is a recent example of the alarms being sounded again.

I've read a whole bunch of these articles on the dire need for "blogging policies" and I'm forced to conclude that I'm just a dumb country lawyer who doesn't get what all the brouhaha is and maybe my experience as a blogger really has not given me any insights into these issues. I'm also a little more dubious of surveys than most people seem to be.

Maybe someone can help me understand why I can't understand why having or not having a "blogging policy" is such a cause for alarm.

As I see it, if you have the normal sort of well-drafted employee manual or guidelines, Internet or technology use policies and corporate communications policies, it seems like you should have blogging covered. I just cannot see how blogging raises issues that are any different from public speaking, email, websites, and even use of the telephone. In fact, if you substitute "telephone" for "blog" in the recommendations at the end of the Forbes.com article, you'll see that the same principles apply equally to telephone use.

On the other hand, if you have none of these policies, then concentrating on "blogging policies" without addressing the other policies seems a little silly.

In all events, expecting to find a one-size-fits-all policy is not a wise move. These policies need to fit your culture and the unique circumstances of your business. The Forbes.com article ends with what I believe is the most important point of all in this area (and it's not a legal one) - training. As the article says, "Employees should be trained about the existence and contents of these policies and their obligation to maintain the employer’s reputation in the community at large." Bingo. Policies without training and leadership at the top levels create their own set of problems, especially if the exercise is just to slap a "standard policy" into place.

However, I'm willing to learn where I'm missing the point. In the meantime, I recommend that you read the posts in our archive in addition to the dire warnings about blog policies that seem to be bubbling back up to the surface in recent weeks.

Did you ever wish that you could have old email addresses forward to your new email address? How about a way to remember which of your throw-away email addresses you might have used to register on a website?

A story on the ComputerWorld website reports that Miller Brewing has touched off some controversy by sending follow-up emails to the "real" email addresses of people who register with "throw-away" email addresses. Some describe it as a little eerie or feeling a little like being stalked. I'm wondering if there might be a business model in providing a service that eventually reaches you at a good email address as you change, forget and move through a variety of email addresses.

I'll let you decide how creepy this story seems to you.

The detective efforts of the people involved are noteworthy for giving you excellent practical tips for digging for this type of information.

Fred von Lohmann's fascinating post on EFF Deep Links called "RIAA Says Ripping CDs to Your iPod is NOT Fair Use" suggests that the RIAA's aggressive policy on how NOT to make friends and influence people continues unabated.

The money quote:

So your ability to continue to make copies of your own CDs on your own iPod is entirely a matter of [the RIAA's] sufferance.

Although it was predictable that the RIAA would take this position, it's still sad to see that they want to go down this road. Wouldn't it make more sense to do things that help people enjoy music rather than to try to exact a tribute payment for each way people normally use music?

Let me say this as simply as possible: Ron Baker's post called "Attorneys Aren't Knowledge Workers" must be read and discussed by all lawyers. No excuses - read it.

Tom and I have put together the details for the Sunday evening blogger meetup we're putting together while we are in New York for the LegalTech conference.

This is going out to everyone who expressed interest in meeting up (bloggers or otherwise) on Sunday night in NYC. Rather than try to find a restaurant that would fit all of us, we decided that you're on your own for dinner. Let's meet for drinks at 8:00 p.m. at the Hilton New York's Bridge Bar. The address is 1335 Avenue of the Americas. It's just off the lobby. The Hilton is where LegalTech will be held, so hopefully you'll all be somewhere in the neighborhood.

See you Sunday night!

Tom, Dennis and Marty(?) (we're still not sure whether Marty will be able to make it there)

I've been intrigued by the ways people can use blogs and RSS for nonprofit organizations and other charitable efforts, especially after what we saw after the tsunami. A while back, I found Netsquared.org and became acquainted with Marshall Kirkpatrick, who writes a great blog of his own and is involved in the NetSquared effort.

Last night, Marshall and I did an interview session via Skype IM that he's published on the Netsquared site. I cover a wide-ranging list of topics and had a lot of fun doing the interview.

Netsquared has a cool upcoming conference that will bring nonprofit and tech people together. If my interview helps publicize what they are doing, that would be great. Please check out my interview, then spend some time on the Netsquared site and see if you might be able to help out.

Gerrit Visser points to Eli Noam's article in the Financial Times, "Moore's Law at Risk from Industry of Delay," about the impact of Moore's law and the impact of non-technology factors on technology laws.

Noam says:

So, in technology, Moore’s Law is alive and well. But technology does not operate in a vacuum. No business or government institution can change at 50 per cent a year. While stability and tradition are important, if a fundamental technology progresses far beyond society’s ability to absorb its impacts, a growing disconnection occurs. When, in the 19th century, technology proceeded at a rapid pace while social institutions did not, the results were upheavals and revolutions. Today, again, the key elements of the information economy are progressing at a scorching rate, while private and public institutions are lagging behind.

But, here's the money quote that lawyers those in the tech world should meditate on:

In businesses, competitive pressures lead to a speed-up of internal processes or companies fail. But for government the same is not true, even with globalisation. Courts can take years to resolve disputes. Regulators and legislators require years to establish rules. There is an entire industry out there, the main product of which is delay.

Some of the problems of these decision processes are inherent and based on the need to balance social objectives. But others could be remedied. In the US, the delay in courts could be alleviated by tripling the number of judges. Compared with the overall cost of government, judges are cheap. So are patent examiners. Streamlining administrative law, simplifying the appeals process or creating mandatory arbitration mechanisms should not be expensive. The economic benefits would be incalculable.

One needs focus not just on policy substance but also on its process – the small but constant frictions in the mechanism of government that grind down innovation and threaten to repeal Moore’s Law where physics could not.

Noam makes an interesting observation about patents and patent offices: "Patent offices every­where are falling behind their workload. It may soon take more than five years to get a patent in the US."

Are we already seeing the symptoms of the increasing pace of the pace of change that Kurzweill has called the coming Singularity?

In other patent news, on Slashdot, ScuttleMonkey points to an article on The Register, based on research from a company that provides proofreading and other services, that says:

Almost every US patent contains at least one mistake, according to new research. The vast majority are trivial errors, most of them the fault of the USPTO; but two per cent of the patents examined were found to contain serious mistakes that weakened the core claims.

Most of them the fault of the USPTO?

Technorati tags: singularity patents Moore's Law

When I met Tony Colleluori last year, I was reminded that it is far too easy these days to forget that many lawyers entered the legal profession because they see it as a caring profession,

Tony's post on That Lawyer Dude today about the death of one of his criminal defense lawyer friends demonstrates that sense of caring and concern that is often seen inside the legal profession, but, unfortunately, not so well known outside the profession.

In part, Tony writes:

I am older and wiser now. I am sitting at my desk and I am still working, but in part that is about the need to mourn an old friend. In part it is also to not let his death be in vain, but to serve as a warning to the Novices and experienced alike that what we do should never become who we are. That our duty to our clients ends at the beginning of our duty to our families and our God. That we can offer those whom we fight for, only ourselves, and if we allow ourselves to become nothing, then what can we offer those that need us?

It's a sad story, a cautionary story, and a touching story - one that will make you feel Tony's loss and show you the power of blogging, even lawyer blogging, to carry emotion, feeling and a sense of connection. Please read.

The Wired GC reports on recent developments in the "Law 2.0" discussion, which has taken a look at what the current notion of Web 2.0 may mean for the the delivery of legal services and the practice of law. Ideas like open source lawyering, self-service law, virtual law firms and new forms of delivery and billing for services and products all arise in this context.

The Wired GC notes that the Law 2.0 got some recognition, along with similar ideas in other fields, in Dion Hinchcliffe's excellent summary post called "The Web 2.0 Revolution Spawns Offshoots," which references, among other things, the articles that Tom Mighell and I, along with a few other pforward-looking thinkers, helped put together in the recent issue of Law Practice Today.

The money quote from Hinchcliffe's article:

The interrelated, mutually reinforcing concepts in Web 2.0 like true disintermediation, customer self-service, and harnessing collective intelligence, are resonating with many other industries. As it turns out, these industries are in the process of being transformed by technology including the relentless collapse of formal central controls, pervasive Web usage, rapid technological change, and more. These communities seem to be craving a new model for collaboration, relevance, and usefulness. And Web 2.0 seems to give them both a beacon to rally around and a useful set of practices that can then be used for constructive reinvention.

Technorati tag: Law2.0

Andrew Sullivan writes about a Stephen Hayes article on terrorist training camps in Saddam's Iraq. In the Hayes article, we learn that of approximately two million seized documents, only 50.000 have been translated and analyzed in the last few years, causing growing levels of exasperation in the U.S. government and intelligence community.

It goes without saying that this state of affairs again raises the "are we safer now?" question and, if you read the entire article, you'll wonder where priorities really lie in the current bureaucratic approaches.

HOWEVER . . .

In the middle of Hayes' article comes one of the most intriguing, even innovative ideas we are likely to see in the field of intelligence analysis.

Consider this quote:

Following several weeks of debate, a consensus has emerged: The vast majority of the 2 million captured documents should be released publicly as soon as possible.

Defense Secretary Donald Rumsfeld has convened several meetings in recent weeks to discuss the Pentagon's role in expediting the release of this information. According to several sources familiar with his thinking, Rumsfeld is pushing aggressively for a massive dump of the captured documents. "He has a sense that public vetting of this information is likely to be as good an astringent as any other process we could develop," says Pentagon spokesman Larry DiRita.

Fascinating stuff. Surely putting thousands of eyes onto these documents must be better that storing them in boxes. It would also be interesting to see what cutting-edge scanning and analytical tools used in electronic discovery could do with these materials.

I encourage you to read the article and draw your own conclusions. I find this story quite troubling and think that it would be a good idea to "open source" this material rather than to keep it in closed boxes. A public debate over the issue would also be worthwhile. Consider this approach in contrast to John Robb's recent comments on the problems of isolated decision-making.

Scott Jaschik's "Goofing Off in Law School" in Inside HIgherEd News documents what many of us had only suspected - that there is a marked tendency for third-year law students to slack off in that third year of law school. Not that any of us at Between Lawyers did anything like that. No sirree.

I do remember an early morning class I had in my third year where on the last day of classes before the exam (the day you found out what was going to be covered on the exam) I noticed quite a few people were shaking hands with people they hadn't realized were even on the class roster because they hadn't seen each other all semester. In other words, I don't think that this story points to a new phenomenon or is symptomatic of a "new generation of law students."

I'd be curious to learn the correlation between these stats and time spent looking for a job, interviewing and working part-time jobs during the third year.

We want to welcome the Wall Street Journal to the world of blawgs. Peter Lattman, WSJ journalist via Forbes Magazine and former New York litigator, is the author of the just-launched (and cleverly-named) Law Blog. (feed). Check it out.

Peter writes:

Our mission: to scour the universe for compelling stories in two related areas: business and law, and the business of law. Law and business is a broad intersection, encompassing such current news as the Enron trial, the Merck litigation and the RIM patent dispute. The business of law is focused on law firms and in-house law departments. We’ll write about industry news and legal trends, with a sprinkle of good old-fashioned gossip.

We’ll link to the best coverage of law and lawyers from around the Web, report some news of our own and look to you for contributions. We heartily invite your comments, tips and insights.

We want to welcome Peter to the "blawgosphere" and look forward to the topical coverage the Law Blog will be providing.

It's often a very useful exercise to stand in someone else's shoes and see things through their eyes.

For lawyers, one exercise is to try to see things from the point of view of your clients. When it comes to legal technology, I usually refer to this approach as "client-driven technology."

Michael Kraft and Robert Enholm have written a great new article called "GC Tech Wish List for 2006" that will give lawyers some ideas about how legal technology looks from the corporate counsel's side of the table.

They offer six items:

1. Faster Communication.

6. Document Assembly/Contract Process Software.

There's a lot of food for though in the article. I was so taken with point #6, which talks about contract life cycle management, that I wrote an exegesis of the point and its implications for Law 2.0 on my blog.

Check out Between Lawyers' own Marty Schwimmer's inspired solution to the seemingly-growing problems of "splogs" and the republishing of blog posts without permission.

Also, if you'd like to learn more about the current discussion and debate on this issue, Om Malik has written an interesting post (that has gotten quite a bit of comment and discussion) on the interplay of splogs and Google's AdSense program.

Eric Mack has started a discussion on another of those seemingly simple questions about copyright fair use that ends up appearing to be far more complicated than you might initially think.

Here's the basic premise:

Eric wants to scan a textbook for a class he's taking and read and annotate it in digital form on his Tablet PC. He's already bought the book. As he started to think about it, he became concerned about whether he could legally do that. As a result, he's started a discussion in the comments to his post and plans to use this topic for a research paper. I encourage you to join in, because these straightforward, practical questions should not be so difficult for people who aren't copyright lawyers to determine.

I'd enjoy seeing whether Eric can get the publisher's answer to his question.

A few observations:

1. Is / should this be any different from underlining, highlighting and annotating the book itself?

2. The difficult part of this question under the classic four question fair use test is that he plans to scan the entire book.

3. This question raises the issues of time-shifting and personal convenience not in the areas of video or music where it has been traditionally considered, but in the classic book context. To use Nicholas Negroponte's "bit and atoms" framework, are we seeing copyright law written for a world of atoms run into difficulties as we move into a world of bits.

I invite you to read Eric's post, the comments so far, and add your own thoughts and analysis to the comments for Eric.

Ryan Paul has a great post on Ars Technica called "Congress Has Big Plans for Technology Reform in 2006." The post nicely summarizes the likely legislative proposals for 2006, all of which should be watched and some of which raise the question of what precisely the word "reform" means in the U.S.. Congress. It looks like there will be plenty to debate this year, although I question whether in an election year we'll see "technology reform" make it any further than "tax reform" or "social security reform" made it in 2005.

Update: Sabrina Pacifici points to another article in PC World that also discusses the legislative agenda,

I like hyperbole as much as the next person (or maybe a little bit more), so I encourage electronic discovery buffs to take a look at Ephraim Schwartz's InfoWorld column called "Document Management Systems Go to Court," in which he reports on two proposed amendments to the federal Rules of Civil Procedure that one expert he spoke with called, if enacted, a "legal Chernobyl."

I've found the legal articles I've read on these proposed amendments to use much more measured and sober tones and analogies. I like this approach much better.

That said, I like the column because it looks at the impact of the rules on the IT departments and business departments of companies rather than solely from the view of lawyers. It's an eye-opening discussion of the practical concerns these rules might have.

I've been trying to take a less alarmist tone on electronic discovery issues (I don't think it's really helpful - I want to talk more about rolling up your sleeves and getting things done), so some of this article feels a little "over the top," but I recommend it especially for IT people who want to get a flavor for what may be coming down the road.

The (fun) money quote:

If you think calling the changes to Rules 26 and 37(f) “Chernobyl” is a bit of hyperbole, well then, you can always sit back, do nothing, and wait for the fallout.

I had a similar experience recently to the one Ernie talked about in his post today about Martindale-Hubbell. I received the same type of rating letter as Ernie did. In my case, I found that I recognized only a few names in the three-page list and I simply did not know enough about them or their practices to rank them. So, like Ernie, I threw the letter away.

However, even though I kind of like helping with the rankings, I think that not evaluating lawyers I don't know enough about is much better than guessing about ratings or giving people low grades because I nothing about them. As Ernie mentioned, the ranking system is a little obscure and I'm not sure that what it would mean if someone got that "X" rating on ethics.

The ratings always have had a bit of mystery about them and, for many years, you weren't allowed to use your ranking in your marketing materials, not that putting a little "av" in your materials would mean that much to most people.

I've actually used the Internet version of Martindale Hubbell for many years. In most cases, I'm simply looking for the address, phone number or email address of a lawyer whose name I already know.

I've found two negatives in my use of Martindale.com.

First, it really is not a complete list of all lawyers and firms. Often, it seems, solo and small firm lawyers simply are not in the database and lawyers in corporate legal departments are especially hard to find (perhaps this is done intentionally to keep them from being bombarded with resumes). If lawyers are in the database, the amount of information that is available will vary, depending on the type of (paid) listing they have.

For example, I just checked, because I didn't know for sure, whether I am included in the online directory. It turns out that I am. Compare Ernie's listing to mine and you will see that Ernie's firm probably pays for a higher level of listing, because there is much more information about him than there is about me.

Just now, for example, I checked Marty's listing (Marty, you've never mentioned that you went to Harvard), Denise's listing (Berkeley law school - I assumed one of the Southern California schools), and Tom's listing (OK, I knew the Texas undergrad degree, but wasn't sure about UT as well for law school). I would not have guessed Ernie's law school correctly. Memo to the Between Lawyers group: maybe we need to learn a few more details about each other. I also noted that Lawyer X is not listed in the directory.

Which brings me to my second observation: I've found that, invariably, once you get into the Martindale-Hubbell directory, you get distracted and spend time looking up friends, old classmates and the like.

So, over the years, I found that I preferred the West Lawyer Digest (now part of FindLaw) to the Martindale Hubbell database. However, in many instances, I ended up using both.

These days, I tend to do the quick Google search, but even there the results can be unsatisfying, especially if you are looking for a lawyer with a common name or, more likely, the lawyer's firm has done a poor job in managing its Google rankings. And then there's the all-to-common problem of law firms making it way too difficult to find mailing addresses, phone numbers and email addresses of their lawyers. (Memo to law firms: the danger of losing potential business is much higher when you hide lawyers' email addresses than any potential danger of increasing the the amount of spam you might get by making the email addresses readily available).

All of which leads to the reason for this post, which is that you will definitely want to read the Wired GC's post called "Law 2.0 Through the Martindale-Hubbell Telescope" in connection with Ernie's post, my post and any comments on them. The Wired GC has a fascinating take on this issue and I highly recommend his post.

It's also intriguing to think about these issues in terms of Web 2.0 applications. Imagine using the Martindale database in connection with the Google Maps API to map lawyers with "av" ratings (or matching other criteria) in your geographic area. Or, how about using the Rollyo search engine tool to create mini-search engine that searches only from a limited set of legal directories?

Law2.0

Dion Hinchcliffe has supplemented his great list of Web 2.0 apps we mentioned a while back with a post called "More Great Web 2.0 Software. Great stuff and a great starting place to find Web 2.0 apps to test.

Tom and I (Dennis) have been working on two articles on Web 2.0 for the legal profession that will appear soon in this month's issue of Law Practice Today.

"Web 2.0" is one of those classic Internet phenomena where one group of people are calling it yesterday's news or even dead, while another, much larger group are hearing the term for the very first time. While generally it means that we are pretty far into a trend if lawyers are writing about it, the apps and ideas that generally fall under the category of Web 2.0 will, I think, remain quite interesting for quite a while longer, despite reports of the death of Web 2.0. As they say, "Web 2.0 is dead! Long Live Web 2.0!" Don't get hung on the label - look at what is happening and how it might be useful to you.

The Wired GC has another in an excellent series of posts discussing the notion of Web 2.0 concepts in connection with the practice of law. This post was motivated by a unilateral increase in rates for legal research services. Price increases tend to motivate customers to consider what they are getting for their money and whether, if they are free or low-cost "good-enough" alternatives on the Internet, there is a need to continue with business as usual.

There's a cautionary tale well worth your consideration in The Wired GC's post and it will help all of us who are trying to determine what Web 2.0 applied to law (or Law 2.0) will look like.

Law 2.0

Continuing our recent Web 2.0 theme, I wanted to highlight Dion Hinchcliffe's excellent overview list and general guide to the world of Web 2.0 tools. It's a great entry point for anyone interested in seeing what Web 2.0 apps look like.

I spent some time today reading posts on Rob Hyndman's excellent blog and was well-rewarded for my efforts. As sometimes happens in blogging, I also noticed I had been unknowingly echo-blogging some of the same things he's been posting on. I recommend that you take a visit to his blog and subscribe to its feed.

In particular, note well his post called "Community Review of EULAs, which points to EULAscan, a new service that is starting to collect community reviews of End User License Agreements (EULAs).

Even if you don't get that whole wiki thing, put your imagination to the potential benefits of online repositories of comments, tips and pointers about certain types of agreements, legal situations, issues, forms and the like that would provide some helpful basic guidance and education. That's part of the notion of open source lawyering and Rob is one of the lawyers who has blog the most frequently about the open source lawyering concerpt.

On a related note, Tom Mighell pointed out to me a while back a software tool called the EULAlyzer (free personal version available), which will analyze the clickthrough agreements that pop-up in front of you everywhere you turn these days. The EULAlyzer doesn't, at this point, provide a lot of helpful legal analysis (at least in my opinion as someone who reviews these types of agreements), but that's not its purpose - it focuses on highlighting some of the interesting surprises you might find in EULAs these days.

I'm fascinated by how the EULAlyzer suggests a foundation from which a much more interesting legal tool set could be created. Imagine that kind of tool on the web as a service and you will get an idea of some of what people have in mind when they talk about legal apps in a Web 2.0 world.

In the kind of story that fuels the general level of suspicion many people have about advice from huge consulting firms, I saw that CNET has an article called "Gartner's advice: Halt BlackBerry deployments" that makes the usual advice you get from lawyers seem clear and concise.

I can't resist quoting:

The research note advises enterprises to "stop or delay all mission-critical BlackBerry deployments and investments in the platform until RIM's legal position is clarified," because "U.S. BlackBerry users would lose messaging services...and international users would lose message service while traveling in the U.S."

However, Gartner expects the two companies to reach a settlement within three weeks because an agreement would be "in both companies' interests."

There is a possibility that RIM could bypass the patent dispute by deploying a workaround, but Gartner said this path could be "highly problematic."

"RIM claims its workaround is legally sound, but its history in the courts does not inspire confidence. Moreover, end-user validation and implementation would take time, resulting in a temporary loss of service," the research note said.

Gartner advises enterprises "not to sign any agreements that could involve them in the RIM-NTP dispute" and "demand that RIM discloses its workaround plans."

If RIM deployments are not mission-critical, Gartner said, enterprises could take no action for the moment but rather "assess the potential impact of operation outages of unknown duration."

I believe that advice covers every possible side of this issue and hedges every bet.

In fairness, I read only the article and not the full research report.

Perhaps this is the best summary of the report:

"If you read it closely, we're telling people to sort of take a break here and wait until this case settles within two to three weeks," Gartner analyst Ken Dulaney told Reuters.

Of course, if you expect the case to settle, as everyone seems to believe these days, why report that the sky is falling?

Between Lawyers's own Tom Mighell has published an excellent, succinct explanation of basic Web 2.0 concepts, along with a great set of examples that might be used by legal researchers and lawyers. Get the details here.

Tom and I (Dennis) also participated in a roundtable article in the new issue of the ABA's Law Practice Today that a group of us created using the Web 2.0 tools at Writely.com. The article, "Looking Back and Looking Forward" looks at some of the technology tools we used and liked in 2005. The issue had a "Best of 2005" theme and Tom and I also polished up Tom's "Strongest Links: Ethics" column from earlier in the year, and added in some new, interesting ethics sites. The new column can be found here.

Also, in keeping with the Web 2.0 theme, Ernie has announced a wiki project to help New Orleans lawyers.

I'll note that there's been a lot of discussion about wikis and some new legal wiki projects announced in recent days. It's an area to keep your eyes on.

It's highly likely that we will be putting together a roundtable article about the potential uses of Web 2.0 tools in the legal profession for next month's issue of Law Practice Today. If you are interested in being a contributor to that article, please let me know.

Addition: Marty appears on a church signboard.

The Grateful Dead ended the controversial reversal in policy made to their long-time concert recording and sharing policy that I mentioned here a few days ago. In other words, the reversal was reversed, as Fred D. mentioned in the comments to my original post.

Fred Wilson sets the story in a traditional holiday framework in his "A Deadhead Carol."

David Hudson's article, "Florida Muzzles Pit Bull Ads," in the ABA Journal eReport tells the detailed story of the recent Florida Supreme Court ruling that the law firm Pape & Chandler's use of a marketing logo and campaign featuring the image of a pit bull violated Florida's Rules of Professional Conduct. It does a great job of talking with people involved in the case and analyzing the arguments and the ruling.

I mention this decision because it iillustrates how difficult it is for lawyers and law firms to do "creative" advertising and, indeed, use the normal types of advertising techniques that are commonplace in advertising for other goods and services. This case should show those outside the legal profession why lawyers seem so reluctant to try standard advertising and marketing approaches and why many inside the profession think the rules create a minefield of potential problems for both the unwary and the well-intentioned.

The money quotes;

[T]he Florida Supreme Court reversed the referee’s ruling, finding the pit-bull ads "demean all lawyers and thereby harm both the legal profession and the public’s trust and confidence in our system of justice."

The state high court relied in part on the comment to Rule 4-7.1, which provides: "A lawyer’s advertisement should provide only useful, factual information presented in a nonsensational manner. Advertisements using slogans … fail to meet these standards and diminish public confidence in the legal system (Note: emphasis mine; quoting the material quoted in the article, which uses the ellipsis)."

The law firm plans to appeal the case to the U.S. Supreme Court. It might be interesting to hear Judge Alito's answer to a question about this type of regulation of the legal profession.

My own opinion, for what it's worth, is that rulings such as this one provide a real disincentive for lawyers who want to innovate in almost any aspect of the practice of law, whether they are in Florida or elsewhere, because of the "chilling effect" that they create. I'm curous what others think.

The opinion does seem to only address actual advertisements. As you may have noticed, many law firms have marketing slogans these days. It'll be interesting to see how other Florida firms change their ads in light of this ruling.

It is difficult to estimate the number of articles and blog posts that have used as an example,the way the Grateful Dead allowed its fans to record concerts and share those recordings. Often, the Grateful Dead's approach was used as a counter-point to the "aggressive" policies of the RIAA. Some even suggested that this approach pointed us toward a future "enlightened" approach to fair use and other copyright policies toward music that reflected the ways people actually used and wanted to use music, especially as part of a community. Some even argue that the approach points to a highly-effective alternative business model for musicians.

Recently, Deadheads and more than a few pundits were surprised by a drastic change in the Grateful Dead's policy.

Dave Bollier's post called "The End of a Long, Strange Journey" does a nice job of summarizing the story (and launching a flurry of references to Grateful Dead song titles).

He reports:

As reported in today’s New York Times (November 30, 2005), they are trying to stop downloads of Dead music from an independent website that has made thousands of recordings of Dead concerts available. The band has asked the Live Music Archive – part of the indispensable Internet Archive run by Brewster Kahle – to make the music available for online streaming only, not downloads.

This has enraged many fans, who consider this move a deep violation of trust with the community of fans. They consider it a betrayal of the band’s deepest ideals. A petition drive has been launched calling for a boycott of Grateful Dead recordings and merchandise unless the decision is reversed.

Yes, in other words, and here comes the obligatory Grateful Dead title reference, the fans plan to keep on truckin' this petition until the policy gets changed.

Why is this important? As Bollier says, "The long, strange journey of the Grateful Dead has taken a new twist, one that forces us to ask – Who really owns music, the artists or the fans? Who owns the value (and values) generated by a band and its fan base, and how should that “wealth” be controlled and allocated? "

And the money quote:

A band spokesman, Dennis McNally, told the Times that Internet music-trading is radically different from the previous kind of sharing because the former does not build community: “One-to-one community building, tape trading, is something we’ve always been about. The idea of a massive one-stop Web site that does not build community is not what we had in mind. Our conclusion has been that it doesn’t represent Grateful Dead values.”

For a band that once celebrated its mystical idealism and blithe defiance of mainstream culture, this explanation has the whiff of lawyerly b.s (emphasis mine). Market control and profit maximization were never high on the list of Dead values. The band was cavalier about intellectual property because its members reaped an ample livelihood, not to mention great fun and joy, by concentrating instead on their be-here-now performances and humanity. The Dead’s franchise was based on their passion and purity, forged in collaboration with an adoring fan community. This not only made them a legend. It was a fantastic business model.

Has that been jettisoned by what remains of the Grateful Dead, who now want to cash in on their archives? Is this the real end of the long, strange journey – a fork in the road that the fans will reject?

The outcome of the dispute will say a lot about who really exerts control in the networked environment and where value resides. It’s a struggle that is playing out in countless permutations in other corners of the Internet. For myself, I’m betting that the Deadheads are likely to be the more enduring and powerful champions of Dead values than the band itself, R.I.P.

That's a big question: Who really exerts control in the networked environment and where does value reside? Another big question is whether our current copyright laws balance those interests and answer that question in a way that makes sense in our networked environment and reflects people's reasonable expectations and, in this case, a pattern of practice upon which people have relied?

In any event, I could not agree more with Bollier that "it’s a struggle that is playing out in countless permutations in other corners of the Internet."

It also raises one of my favorite questions: why isn't it OK to purchase/own a recording of a live concert that you bought a ticket for and attended?

Expect fans to be living under a dark star until this issue gets resolved.

Brenda Sanburg's article today on Law.com that summarizes a recent survey of the 200 largest law firms in the U.S. makes for interesting reading, especially if you've just read Ernie's post on this blog about the frighteningly high cost of litigation.

I recommend that you read the whole article and the accompanying survey results, but let me highlight two things that struck me about what Brenda described as the "upbeat" results, at least if you are not an associate, of this survey:

1. "Firm leaders still aren't spending much time getting feedback from their clients. Forty-eight percent said they had met with five or fewer of their 20 top-billing clients in the last 12 months to discuss the firm's performance. Six percent said they hadn't met with any."

2. 99% of the responding firms plan to increase billing rates for 2006. "Billing rates will continue to go up. Fifty-three percent of respondents expect to increase billing rates by 5 percent or less; 46 percent anticipate raising them by more than 5 percent."

Food for thought: the combination of these two factors in most, if not all, other businesses would be a recipe for disaster.

Of course, there's much more information to consider in the article and survey results, but I think I might have gotten your attention with the two quotes I highlighted, eh?

The Online Guide to Mediation blog has a post with a great collection of resources about the future of the practice of law, with an emphasis on alernative dispute resolution.

I also keep a small collection of links to resource on the future of the practice of law here.

As many of my friends know, I've been bitten by the Web 2.0 bug lately and done a lot of thinking (but not very much public writing yet) about how Web 2.0 might be applied in and to the delivery of legal services and practice of law. Steve Nipper has also recently raised the question about how to bring Web 2.0 into what is fundamentally a Web 1.0 world.

I think that this is a very important, yet quite esoteric, topic. However, The Wired GC has made an enormous contribution to the discussion with his post called "Web 2.0, Law Style," which definitely makes my "must read" category. It's both a good introduction and a map of the territory and its implications.

I expect to see not only more discussion of the topic (and I invite you to use the comments to this post as one method to do that), but some actual announcements of things that fall into the Web 2.0 category, including at least one of the ideas mentioned in the Wired GC's post in the very near future. In fact, I'm quite sure of it.

My article called "Best Legal Practices for Open Source Software: Ten Tips For Managing Legal Risks for Businesses Using Open Source Software" has just been published on the excellent LLRX.com website, along with several other articles that will make a trip to the site well worth your effort.

In the article, I take a very practical approach to dealing with the legal risk management issues that arise when a business uses or wants to use Open Source software. I take the somewhat unusual point of view for lawyers that people might actually want to use Open Source software in many situations and that the standard lawyer approach of saying "no" to everything really is not useful. Check it out if Open Source software or that approach to it interests you.

I'll also note that the article grew out of a presentation of mine that helped me put together some of my initial ideas about "open source law." If you read the article, you may see some of the basis for some of my thinking about what we talk about on this blog from time to time under the topic of "open source lawyering."

If my writing on the Open Source licenses piques your interest to delve deeper into the topic, I recommend my article called "A Primer on Open Source Licensing Legal Issues: Copyright, Copyleft and Copyfuture" (PDF), which was one of the earlier law review articles on the Open Source licenses. It's much more academic, but I still think it's very accessible - it still gets downloaded a lot.

Doug McCollam writes in The American Lawyer: "The Billable Hour: Are Its Days Numbered?".

The answer, not contained in the article except if you read between the lines, is: only if clients want them to be numbered.

The article does a good job of sketching the history and background of hourly billing for legal services and gives an update on efforts by the ABA and others to explore and support alternative billing methods.

The money quote:

But if the billable hour is such an inefficient system, then how did it come about in the first place? The blame can be traced, as you might suspect, to Harvard University.

McCollam's article should start some discussions.

The UK Department for Constitutiional Affairs recently published a white paper ‘The Future of Legal Services: Putting the Consumer First’, setting out proposals for the regulatory reform of legal services in England and Wales. Download it here.

The recommendations date back to Sir David Clementi's efforts to:

* consider what regulatory framework would best promote competition, innovation and the public and consumer interest in an efficient, effective and independent legal sector.

* recommend a framework which will be independent in representing the public and consumer interest, comprehensive, accountable, consistent, flexible, transparent, and no more restrictive or burdensome than is clearly justified.

Your assignment: Compare and contrast these efforts in the UK to recent efforts in the US to implement increasingly onerous, state-based regulation.

Will this be a sign of things to come in the legal blogging world? The RethinkIP guys have announced here and here that Matt Buchanan (of RethinkIP and the Promote the Progress blog) has joined the Oklahoma City law firm of Dunlap, Codding & Rodgers, the firm of Doug Sorocco (RethinkIP and PHOSITA).

Informal and incomplete research suggests that this is the first move of one legal blogger to the law firm of another legal blogger. However, as some have pointed out, the blogosphere is a self-correcting medium, so we may find out otherwise.

Whether or not this is the first such move, it's a sign of the growing signs of collaboration among legal bloggers (and bloggers of all kinds).

I wanted to pass along my congratulations to Matt and Doug. I've learned a lot from these two and Steve Nipper, the third member of RethinkIP, over the course of this year. I think the world of all of them and their abilities and look forward to seeing what Matt and Doug accomplish together at Dunlap, Codding & Rodgers and what the three of them continue to do and have planned at RethinkIP - definitely a place to watch.

We've returned from the largest gathering of the Between Lawyers group to date, topping the previous record of three in one place. At the recent BlawgThink conference, Tom, Marty, Ernie and I got together as speakers, attendees and friends. Denise had another commitment. We sure missed her and the rest of us vowed to find a way to get the five of us together. We're thinking that any number of conferences might benefit from getting the five of us to speak at a panel session. Conference planners take note.

We had a great time. I write a bit about it on my blog, primarily in a post called "Blawgspace is a Generous Place, Round 2."

We are back now and regular posting on this blog will be resuming.

Here's another important article on law practice and law practice management trends - Well-known law practice management expert Ward Bower, of Altman Weil, has written an article called "The Business of Law in 2005 (PDF)."

The titles a bit of a misnomer because the article analyzes trends that will extend long past 2005, but should definitely be on the radar.

The money quote:

Emergence of the Buyers’ Market

Foremost among all the trends is the shift of the legal services marketplace from the sellers’marketplace of 15 or more years ago to an increasingly buyers’market today.In a sellers’ market the supplier (i.e.,law firm) determines price, staffing and strategy.In a buyers’market these roles are reversed and it is the buyer (i.e., client) who determines price, staffing and even service strategy. Increasingly today, clients determine what they are willing to pay for legal services, how many lawyers and at what levels are needed to serve them, and even how case management, strategy and communications are to occur. (emphasis added)

I've begun calling this trend "client-driven technology." I could not agree more with Ward about its importance. Will we talk about it at BlawgThink? You betcha.

Tom Collins has a post on the business of the practice of law that discusses the viewpoint of corporate clients of the "practice of law as usual." It strikes me as one of the more important posts lawyers should read this year.

The money quote:

"Michael at GM explains, 'We know far more about a law firm’s performance and inefficiency than the law firm knows and that is sad.' GM knows the ratio of partner to associate use. They know when partners are doing work that an associate should be doing. They know when the firm doubles up on work that should be done by a single fee earner. When the customer knows more about the vendor’s product and cost structure than the vendor, that vendor is at a material disadvantage."

Highly recommended.

Steve Nipper has some thoughtful and thought-provoking commentary and analysis on trends in the increasingly interesting phenomenon of "insourcing" of legal services - the movement of legal work from hig-priced coastal U.S. firms to more reasonably-priced interior U.S. firms. Highly recommended.

Evan Schaeffer and Between Lawyers' own Tom Mighell and Dennis Kennedy have written a new column where we take on one of the most interesting questions in the practice of law in 2005: if everyone thinks that electronic discovery is the next big thing in the practice of law and is so important, why are lawyers staying away from electronic discovery in droves?

I was thinking after we had our discussion of metadata in Word documents the other day on Between Lawyers that electronic discovery could actually be fun - checking for metadata and using all the new electronic discovery tools. Most lawyers, it seems, prefer to stay squarely in the world of paper. I've even heard that some judges make it all but impossible for lawyers who want to get electronic files to obtain them.

Is your lawyer asking you to print out documents for a hoard of high-paid associates to review or more comfortable pawing through a banker's box of papers than mousing through computer files? Maybe it's time for clients to become a lot more concerned about what their legal fees buy them in the world of practice-as-usual. In any event, you'll want to read the column to see how Evan, Tom and I grapple with the question. It's a thorough, well-rounded conversation that will make you think.

The three of us write a regular, more or less monthly column called Thinking E-Discovery on the DiscoveryResources.org site.

Marty raised the issue of "do you you feel safer now?" in his provocative post yesterday.

For those of you who'd like to think more deeply on this topic and for those wanting to think more carefully about my recent post about corporate bribery and Saddam, I suggest two provocative readings for you. I think they raise important questions.

W. David Stephenson, among others, reports on Davd Rosenbaum's NY Times article report (now part of the NYT's gated content rather than part of the public discussion - does that make sense?)on survey results showing a level of morale at the Department of Homeland Security that is so low as to be almost impossible to believe. The statistic that many newspapers led with is that only 12 percent of the more than 10,000 DHS employees who returned a government questionnaire said they felt strongly that they are "encouraged to come up with new and better ways of doing things."

DHS rates at or near the bottom in many categories among governmental agencies.

Where does DHS rate highest? It places second with 56% of employees strongly agreeing with the statement "The work I do is important." What?!! 44% do not strongly agree with that statement! That may be more disturbing than some of the really low scores.

Secondly, Peggy Noonan has written a distrubing piece in the Wall Street Journal called "A Separate Peace." The subtitle is "America is in trouble--and our elites are merely resigned."

Think about this quote:

I think there is an unspoken subtext in our national political culture right now. In fact I think it's a subtext to our society. I think that a lot of people are carrying around in their heads, unarticulated and even in some cases unnoticed, a sense that the wheels are coming off the trolley and the trolley off the tracks. That in some deep and fundamental way things have broken down and can't be fixed, or won't be fixed any time soon. That our pollsters are preoccupied with "right track" and "wrong track" but missing the number of people who think the answer to "How are things going in America?" is "Off the tracks and hurtling forward, toward an unknown destination."

So, Marty's post seems not so much a provocation, but a reading of a general sense of unease and a call to start asking important questions as if they matter, whether or not they involve legal issues. I know that some of our readers are uncomfortable with the discussion of these kinds of issues on this blog, but I think that the points Noonan raises in the following quote, which does refer to lawyers, are certainly well worth taking some time to raise and discuss:

I suspect that history, including great historical novelists of the future, will look back and see that many of our elites simply decided to enjoy their lives while they waited for the next chapter of trouble. And that they consciously, or unconsciously, took grim comfort in this thought: I got mine. Which is what the separate peace comes down to, "I got mine, you get yours."

You're a lobbyist or a senator or a cabinet chief, you're an editor at a paper or a green-room schmoozer, you're a doctor or lawyer or Indian chief, and you're making your life a little fortress. That's what I think a lot of the elites are up to.

Not all of course. There are a lot of people--I know them and so do you--trying to do work that helps, that will turn it around, that can make it better, that can save lives. They're trying to keep the boat afloat. Or, I should say, get the trolley back on the tracks.

For further reading, you might move on to Barbara Tuchman's book, March of Folly.

If you are interested in what the practice of law might look like (and what roles might be left for lawyers to play in the practice), take a trip to the Online Cyberweek site (free registration required).

I especially recommend the online discussion on the Internet Bar Association's portion of Cyberweek on the topic: Will Web-enabled Document Automation Disrupt the Legal Profession?

I attended the live session that kicked off this discussion at the ABA Law Practice Management Section's fall meeting in Philadelphia on Saturday. Marc Lauritsen and Richard Granat, both legal tech and elawyering pioneers, led the discussion. Darryl Mountain's presentation was the highlight as he applied Clayton Christiansen's theories of disruptive innovation to the practice of law. His one page handout from that session is something that you will definitely want to get a copy of.

There was a great discussion that followed the presentation, with document assembly expert Tim Allen of Business Integrity and I being especially enthusiastic contributors. This great discussion made me really look forward to the discussions we'll have at BlawgThink and gave me some ideas for topics that I'll try to discuss there.

As part of Cyberweek (and beyond), there will be a continuing discussion of the issues raised during the initial presentation. I think it's a discussion that readers of this blog will find especially compelling.

Spam blogs (splogs) are a growing problem. A good number of them grab the content of other blogs and copy it on the splog. It's annoying and irritating.

Unfortunately, today's ad programs make splogs a very attractive away to make money off advertising on blogs. I recently met an SEO expert who explained to me how splogs are perfect vehicles for ads. It's annoying and irritating that sploggers probably are making more money off splogs than bloggers are making from their blogs.

A number of people have brainstormed ways to combat the problem.

Perhaps the most interesting commentary is from Jeremy Wright, who raises a number of interesting and insightful questions.

I recommend reading and thinking about Jeremy's post and taking a look at some of the other commentary on the issues raised by splogs.

Then, I want us all to think about what it means to apply a Creative Commons license to our blogs and whether it is fair to expect that the Creative Commons organization take on a leadership role in fighting splogs by assisting CC license users in enforcing the terms of the CC licenses? In other words, as I've often asked, what is the practical value of the CC licenses or, as some have suggested, are the CC licenses primarily a marketing effort for the CC licenses?

I don't know the answers to these questions, but I would like to see the CC group more out front on the issue of splogs.

We had a follow-up discussion this morning on our back-channel email list about metadata and the post on metadata I made yesterday.

We thought we'd let you see our discussion and invite you to join in.

Marty started it by saying:

Dennis:

Maybe you could recommend a specific meta-cleanser and provide a link?

Meta-cleanser - sounds like something an existential cleaning service might use.

Marty

p.s. The WSJ ran a piece on the UN report with the title "Will Bill Gates Topple Assad?'

+++++

Denise replied:

How do you reconcile the tension between the fact that on the one hand metadata can convey information you might not have wanted to convey, and it also enhances searchability and the richness of one's internal database? Is the solution just to ensure metadata is purged before things break free of the firewall?

+++++

Dennis replied:

Aye, there's the rub.

In the article on my blog and when I speak about this issue in more detail, I try to reconcile the two faces of metadata and emphasize that it can be quite a good thing. (e.g., "Metadata is not inherently evil. It is often quite useful.")

I'd almost think of metadata with the idea of DRM in mind. Internally and with clients, metadata, especially the collaborative info, is incredibly useful. However, in someone else's hands, it can be quite damaging. The "scrubbing" is almost like sending the doc out with limited rights and access to the "full" document, at least conceptually.

So, metadata can't be handled appropriately without considering who the audience is (or might be). You then start to think of the document not just as a document, but as a published product.

In the classic approach, you would "scrub" the document (or create a new clean version or create a PDF) just before you sent it to an opposing party or someone who should not see the metadata. I.e., handle it as a separate process before the doc leaves the firewall.

BTW, I think the good of metadata far outweighs the bad, and, frankly, it's not that difficult to deal with metadata in most cases, if you take the time to learn about it.

I'd mention a metadata scrubber, but since I'm not getting any royalties on the gigantic amount of business I'd send over to them by mentioning a product on this blog, I probably won't do that on the blog. ;-)

Microsoft has a free downloadable Remove Hidden Data tool for Office 2003/XP that some experts turn up their noses at because it doesn't clean EVERYTHING, but, if you are aware of what it doesn't do, most of the time you'll be fine with it Note that it's for Office 2003 and XP, but, seriously, why are law firms still using older versions of Office as we near the start of 2006?
.
Donna Payne has a cleaner called Metadata Assistant that's more or less become the de facto standard tool in legal. It's $79.There are a couple of others (E.g., EZClean.or Workshare Protect.)

Even with scrubbers, you still have the possibility of user error problems.

Both Tom and Ernie are very knowledgeable on these issues and probably have a few other pointers.

My main recommendation is to go into MS Word's properties and turn on what I think is called the "Show Hidden Data" setting (that's the one that will automatically show you the stuff in docs people send to you). Also very helpful is a setting that will pop up the properties window when you first save a document, so you can delete some of the standard automatically-generated metadata.

Here's an article George Socha and I wrote on metadata that's pretty good
- http://www.discoveryresources.org/04_om_electronic_discoverers_0405.html

+++++

Ernie replied:

I think that most explanations of metadata are laden with fear-mongering. Of course, this is probably called for since the greatest danger of metadata is not knowing that it is created in the first place. It's a very binary problem. If you know about metadata and know about the threat then the odds are you aren't going to make a mistake (note I said 'the odds are' and not 'you won't make a mistake').

I think many people don't want to understand the problem; they just want to avoid it. And for those people I would say this: make your document into a PDF using some tool that lets you 'print to PDF.'

Make sure that you have chosen to print only the document and not 'the tracked changes' or any similar thing.

Then after you 'print to PDF' open the document and see if the metadata is visible in the PDF document. If it is go back to step #1. If it's not. then feel free to send it.

If you are doing anything more complicated than that (i.e. redacting using an advance PDF function in Acrobat etc.) then read everything that Dennis has written on the subject of metadata and be afraid. Be VERY afraid....

+++++

Dennis replied:

I really agree that the basics of metadata aren't that hard to learn, if you just invest a little time. Once you start sending Word docs around, though, you really should know what you are doing or you're asking for trouble, just like the UN group.

+++++

Marty replied:

pls blog this thread

+++++

One in our occasional series of looks into our behind-the-scenes discussions.

The Times Online reports the latest in the growing list of documents that have been released with previous edits and other information still contained in the documents and readily accessible.

In this case, the UN released a report on the murder of Rafik Hariri, the former Lebanese Prime Minister, only to have, to put it mildly, embarrassing edits revealed because they were still contained in the released document.

As the article says:

THE United Nations withheld some of the most damaging allegations against Syria in its report on the murder of Rafik Hariri, the former Lebanese Prime Minister, it emerged yesterday.

The names of the brother of Bashar al-Assad, President of Syria, and other members of his inner circle, were dropped from the report that was sent to the Security Council.

The confidential changes were revealed by an extraordinary computer gaffe because an electronic version distributed by UN officials on Thursday night allowed recipients to track editing changes.

Extraordinary computer gaffe? These "gaffes" have become all too commonplace.

And too many lawyers remain unaware of the issue.

As an example, a lawyer sent me an email today noting this article and saying, "is my understanding correct that the two ways of preventing prior versions from being disseminated in a Microsoft Word document are by either changing the format to pdf or rtf, or by clicking 'accept changes' in Word?"

I thought I'd share my answer to that question:

Arrrghhh!!! Your second assumption is probably the CAUSE of the revisions being able to be revealed! It's absolutely not the solution.

The first method will generally work, but you can mess up and reveal revisions and other information (which I'll refer to as "metadata") even when using RTFs and PDFs. If you want to be really sure, you'll want to use a metadata cleaner and then save the document as a PDF. However, even then you need to become acquainted with the various issues out there and the actual dangers in documents.

Be aware that you can reintroduce that hidden info in a variety of ways after you think that you have "cleaned" it. By the way, don't make the assumption that the doc was in MS Word, even though the odds are that was the program used here. You can pull that prior version info out of other programs as well, including the beloved tool of many lawyers, WordPerfect. In addition, be careful about the assumptions you make about different versions of different programs. Don't make assumptions - make it your business to learn about the issues and the solutions.

This is important stuff, often with embarrassing and far-reaching results. There's no excuse for lawyers (and others) not to be familiar with the basic issues of metadata and to be knowledgeable about both the problems and the solutions. That is, unless they want to have their documents or their clients' documents appear in similar stories in the newspaper. Too many lawyers are operating in the dark on this one. Lawyers routinely send me documents that have metadata that is either easily visible or can readily be surfaced with little or no effort.

I posted a short primer on metadata and the related issues on my blog at http://www.denniskennedy.com/archives/2005_10.html#a000891. Use it as a starting point and then set aside a little time to get yourself up to speed on these issues. Making assumptions in this area is especially dangerous.

How many times do you (and lawyers in general) need to hear the alarm go off on these issues before you stop hitting the snooze button and going back to sleep?

Denise was thinking in search the other day and looking at Google News alerts for KM.

Bill Gratsch's post, "A Website Screaming for Self-Syndication," reminded me that I tend to think in terms of RSS feeds these days.

And, more frequently these days, I'm thinking terms of search feeds and using them more often. Same ideas as Denise mentions, but in a somewhat different context.

A few notes on upcoming appearances by members of the Between Lawyers group:

Tom and I (Dennis) will be at the ABA Law Practice Management Section's Fall Meeting in Philadelphia. There will be some other bloggers there as well. We're planning to do some kind of blogger meet-up (very informal and very lightly organized) in Philadelphia, probably on the evening of October 20. We'll post details, but let us know if you are interested in meeting up with us.

We're still waiting for the first combined appearance of the entire Between Lawyers group (other than Lawyer X, of course). However, you can see a number of us at the BlawgThink 2005 conference on November 11 & 12. If you are interested in blogging, especially blawgs and blogging by and for lawyers, BlawgThink is the place you'll want to be. More information here or contact me directly.

We'd greatly enjoy getting the chance to meet readers of Between Lawyers in person at events like these.

I was surprised the other day to see a "Lawyer X" posting on the Between Lawyers blog.

Well, maybe I wasn't surprised. Here's the story.

When we started this blog, we asked Hylton Jolliffe if he would set up an author account called Lawyer X that any of us could use. One of the many reasons we like being part of the Corante family of blogs is that Hylton immediately agreed to do so.

The idea of Lawyer X was fuzzy, at best. First and foremost, we saw it as an easy way to bring guest bloggers (especially those who might be risking their reputations to be seen blogging with us) into the blog. It could also be used as a way to play devil's advocate, raise issues in different ways, and as a way for any of us to "step out of character" to make the blog more lively and creative.

And, if you know us, this will be no surprise, it gave us another avenue for mischief and fun.

I remember saying at the time that the danger of creating a Lawyer X was that there was a risk that one day we would all be posting as Lawyer X and no one would be posting in his or her own name. I believe someone pointed out the name of my blog and expressed doubt that I'd ever be posting anonymously.

Although we've talked about having Lawyer X make an appearance on the blog on several occasions, we finally decided last week to bring Lawyer X into the conversation at Between Lawyers.

Now, I have to admit that my first reaction to unveiling Lawyer X at this time was to say, "But everyone will know that Lawyer X is Marty."

Denise's response to that, by the way, was: "< whoosh >milk through nostrils< /whoosh >".

Marty, the serious one in our group, then said, "It doesn't matter, there's a point to using a penname even if some know who it is.and you're free to use lawyer x as well, unless you would like to really fool them and use lawyer D or something."

So, Lawyer X has arrived. Let's go back to the purpose of Lawyer X. Lawyer X is intended to be (1) a vehicle for a guest blogger and/or (2) a rhetorical device in the form of a fictional character that can and may be used by any or all of us.

Now, I have to admit that I'm not really sure who is posting as Lawyer X, although I'd probably be saying that even if I was using the Lawyer X penname (and, Marty, I got the dig about using "Lawyer D").

So, that's the story. Several people asked me in the last few days who or what Lawyer X was. I'm happy to have gotten the chance to identify him or her and to clear up any mystery about his or her identity.

The new issue of the ABA's webzine Law Practice Today has about ten articles on disaster recovery and business continuity issues for law firms (and others) in this month's specially-themed issue. That's in addition to 6 or 7 (depends on how you categorize the articles) on marketing, management, technology and other practice issues (check out the McKenna and Buchanan articles in particular). And it's all free!

The Between Lawyers bloggers are well represented with Dennis Kennedy's article, Ten Tips for Dealing with Disaster Recovery and Business Continuity Issues and Dennis Kennedy and Tom Mighell's Strongest Links column on Internet resources for disaster recovery and business continuity, but this is an excellent issue, full of valuable, practical information.

Highly recommended and very timely (one of the benefits of the webzine format).

I greatly enjoyed Jeremy Wagstaff's carefully annotated and hyperlinked post called "The New Cliche: "It's the Wikipedia of . . ." and wanted to join in the cliche-creating game.

For Wikipedia fans, I do realize that this blog and Wikipedia have very little in common, except both Wikipedia and Between Lawyers credit Denise Howell with coining the word, "blawg."

It's turned into a poetry fest at the Between Lawyers blog, with both Denise and Ernie taking breaks from brief-writing to post poems this weekend.

First, 'twas Denise's deservedly praised blog poem (with hyperlinks) called 'Twas the Night Before Zeitgeist.

Then came Ernie's post with his reflective poem, Driving to the Airport.

I thought I'd join Denise and Ernie and post a poem I wrote a few years ago. It is based on my reading and some remixing of a wonderful book by Peter Matthiessen, not any trip to Tibet by me.

Tibetan Daydream
(after Peter Matthiessen)

The ground, whirling its own energy
in a slow spiral,
joins my body to the sun
until, no longer mine,
small, silver breaths of cold, clear air
are lost in the mineral breathing of mountains.
Grown onto the mountains like moss, bewitched
in blinding snow peaks, crystalline air,
sounds of earth and heaven drifting into a silence
of requiem birds, mythic beasts, flags, great horns,
old carved stones and rough-hewn Tartars
in braids and homespun boots.
Silver ice on a black river,
the Crystal Mountain.
In a rising spring of forgotten knowledge,
a glimpse of one's own nature,
a homegoing that needs no home,
like that waterfall on the Suli Gad
that turns to mist before it touches earth,
then once again rises into the sky.

- DK

Marty? Tom? Care to join in?

I tend to shake my head in disbelief as the entertainment industry lurches from one audience-alienating position to another on copyright, digital rights management and other issues. Recent talk about entitlement to some kind of fee or royalty on iPods seems like the "topper," but you never know how far the recording industry is prepared to go to protect their 20th century business model.

According to Michael Geist, the CRIA may have taken things a bit too far for our Canadian friends with recent efforts to conduct surveys "that seek to link seemingly all teenager problems and recording industry woes with file sharing."

Geist notes, "The claims are so over-the-top - as if a reduction in file sharing would somehow lead to less shoplifting or cheating on school tests - that the press release would be more at home as an article in The Onion, than in the traditional media."

Geist also shares this storys: "Perhaps the most telling response, however, came at the Bill C-60 Open Forum yesterday. The CRIA release was mentioned by one of the speakers. The entire audience from all sides of the copyright debate just laughed."

By comparison, Geist recently gained many fans by making his new book on Canadian copyright law, In the Public Interest, available for free download in the PDF format under a Creative Commons license. I would guess that the entire audience applauded when they heard that.

Stephen Friedman of Pace Universtiy Law School has written A Practical Manifesto for Legal Education. It's good summary of the big issues being raised in the discussion of the current state of legal education that has been heating up in the last few months.

Friedman, who has a background in the actual practice of law, lays out the case for a practice-oriented approach to legal education and identifies the key concerns practicing lawyers have expressed about today's model of legal education. I especially want to emphasize his point about the over-concentration on litigation in the curriculum, especially in clinical training.

The money quote:

Clarity of purpose is as fundamental to a law school curriculum as it is to most other endeavors. Learning to think like a lawyer is a technique, not the goal of law school. For me, it is clear that the educational goal of an American law school should be to educate and train effective new lawyers. To many practicing lawyers, that goal seems obvious. If it had been accepted, however, there would be an ongoing dialogue between legal academia and practicing lawyers on precisely how to go about creating effective new lawyers. There is little or no such discussion

I expect to see see much more discussion in the coming days, weeks and months. The tensions created by the current system and the expectations for that system are sufficiently out of alignment that I expect to see the beginning of innovation and change in fairly short order. Some of the changes could be quite massive and it is reasonable to expect to see new models of legal education arise.

If you consider only one fact out of Friedman's article, consider the amount of training that PLI does. Then ask yourself this: if PLI offered its own law school, how interested would you be in hiring its graduates? Think about that one.

I enjoyed B. L. Ochman's succinct summary of the recent story of the New York and San Francisco transit authorities sending cease and desist letters to a blogger who was making available iPod versions of the printed subway maps they provide for free.

She says:

Go figure. Cease and desist letters are a bit of a joke in the blogosphere. Once you see them, and how seriously preposterous they are, it's hard to take the writer seriously.

There are many lawyers who see every issue as a legal issue for which only legal options, such as cease and desist letters, are the only conceivable options. How much better it would be for everyone if the lawyers here had simply suggested that the people involved talk to each other and work together to see how they could make the useful downloadable versions of the maps available to users of the transit systems?

Since I've seen at least a half-dozen mentions of this public relations fiasco today, I'm guessing that some people might be reconsidering the wisdom of acting purely on legal advice without considering real-world consequences and common-sense alternatives.

This story also raises the issue I've seen raised on the PR blogs over the past year or so - are companies looking to public relations, marketing and other professionals rather than lawyers to handle issues with real-world implications? Would you rather have B.L. Ochman advising you on how to handle this issue or a lawyer who is firing off cease and desist letters? I simply ask the question.

Erik "Eloquence" Moller has a critique of the "non-commercial use only" Creative Commons licenses in a post on Kuro5hin called "Creative Commons -NC Licenses Considered Harmful." Be sure to read the extensive comments to the post, too.

I recommend the article to all who routinely apply CC licenses without reading them (I mean reading the actual licenses, not just the summaries).

I urge people to consider especially the points Erik raises in section 2 of his post. What do you really intend "non-commercial use" to mean? Is is "commercial use" when a blog is running an ad program or otherwise generates revenue? Whose responsibilty is it to enforce the provisions of these licenses? Should the Creative Commons organization take a stronger leadership role in providing interpretations of the license provisions? Well. the last one is an easy one - the answer is "yes."

As I've said before, the use of CC licenses probably will be a good thing in a general sense, but blithely applying CC licenses without considering the consequences is still not a wise move, legally or practically.

I appreciate Erik's contribution to the debate. He may or may not be right on every issue, but he's asking some of the right questions. I still question whether the Internet community is looking critically enough at the CC licenses or whether too many people see the CC licenses as a way to join a cool club. As always, I recommend reading the discussions we had on Between Lawyers about whether we should apply a CC license.

It's no secret that big law firms forcing lawyers back into waering suits and ties and dispensing with "casual days." What can lawyers do about this disturbing trend? Here's a great new idea.

There's a post on Engadget today about the Burton Ronin Espionage Jacket . The jacket has an extra feature that some lawyers might prefer over even the traditional gray suit jacket: a hidden digital camera. The possible benefits, especially in a litigation practice, are beyond calculation.

Potential downside: As this picture shows, although the camera may be hidden, people might suspect something is up when you wear the coat.

Check it out. It might become the legal fashion craze for depositions and on-site document review.

It might make for a good law school exam question to ask what legal issues might be raised by wearing and using one of these jackets, but I'll leave that project to the law professors.

Lawyers have been a little slow to adopt instant messaging technologies. In fact, some law firms even prohibit the use of IM by their lawyers.

That may soon change.

Well . . . maybe not. But Between Lawyers contributors Tom Mighell and Dennis Kennedy (that's me) are trying to help lawyers with IM. Their new "Strongest Links" column in the ABA's Law Practice Today webzine will give you a wealth of resources on instant messaging. We cover everything from fundamentals to tools to practical issues to electronic discovery to business and security implications to acronyms and emoticons.

You may notice that Tom and I have put our lawyer membership cards at risk by taking a creative and non-traditional approach to writing the column. We had lots of fun (another word not often associated with lawyers) writing the column in this style and hope that you enjoy the article and find the resources we list to be helpful in considering and using IM as a collaboration tool.

Jason Krause's article "The Cisco Way" is a must-read for anyone who wants to understand some of the forces of changes in the practice of law. This article is an important one.

My point of view is that the vast majority of lawyers are unlikely to adopt significant technological changes without serious pressure from clients. As the article shows, we are now starting to see some of what I've called "client-driven technology" start to happen.

Jason's article illustrates some of the external pressures on the profession in the high-end corporate arena. There are similar forces at work in the consumer, small business and other areas of the legal practice. Changes may not come quickly, but they may be quite profound. Whether you are a client or a lawyer, you need to become more familiar with these forces and the practical and real-world changes these forces are creating. This article is a great starting place for you to learn about this subject.

Expect to see much more discussion of this topic and related matters on Between Lawyers in the coming months. Here's a recent post on the topic.

People who know me know how much I admire law librarians. The law librarian blogs routinely give you great information. For example, Sabrina Pacifici's BeSpacific.com has information on government efforts on Hurricane Katrina that I simply haven't seen elsewhere and I recommend that you make a visit to her blog to see what I mean. In fact, long-time legal bloggers regularly refer to Sabrina as the best of the legal bloggers.

I was reading the law librarian group blog called "Out of the Jungle" and was, once again, struck by the high quality of librarian blogs.

Let me point you to the recent post on Out of the Jungle called "Practical Skills." In this post, Diane Murley addresses in a thoughtful and thought-provoking way a question that has been on the minds of lawyers and law students, but too infrequently, law professors and law school administrators: why don't law schools teach law students the practical skills needed to practice law?

Hey, that's a pretty simple question, and one that goes right to the heart of the matter.

Diane's post also goes to the heart of the matter and raises a series of questions that all of us in the legal community should thinking about and trying to answer.

When I was an adjunct law professor and taught an IP contract drafting course, I remember how much students appreciated the class where I took about 20 minutes and explained to them what they would actually do when given an assignment at a law firm to draft a contract. They told me tha they didn't feel that they were getting that information in their other classes.

The money quote from Diane's post:

"Do law school professors seek input from practicing lawyers on how the professors can better prepare their students for practice? Should they? Do substantive law professors care what lawyers think? If not, why not? Should they care more about whether students will be ready to practice law when they graduate?"

Her comments comparing what the approach of law professors with that of law school librarians will open your eyes and make you think.

I didn't think that it was possible for me to be a bigger fan of law librarians, but Sabrina and Diane and other law librarians have made me raise my admiration level even higher in the last few days.

"The PSF is Everything!" is a new manifesto from Tom Peters published as part of the excellent set of "manifestos" on the Change This website. From the description: "Tom Peters is his usual provocative self as he rants on the professional service firm."

The subtitle of the manifesto is Making the Professional Service Firm a "Lovemark" in an Age of "Managed Asset Reflation." It's on my reading list. Maybe we can discuss it here.

The Wired GC had a post a while back called "Law On Line" that deserves more attention than it seemed to have gotten initially. So, I wanted to see if I could give it a second chance to gain some attention.

The post describes an online human resources document preparation service offered by the British law firm Eversheds. The post goes on to discuss the receptivity of clients to online services offered by law firms.

The money quote:

"If one of the law firms I use sent me a link to an online solution that could deliver quality work quicker at a lower cost, I would fall out of my chair.

Why? Because it would mean this firm is thinking about solving my problems and not just about raising revenues. With a bit more focus on the former, the latter may be more likely."

Anyone else think that the key to the successful practice of law in the future might be contained in the paragraphs I quoted?

Blogpulse Newswire has published an interview with Ernie Svenson that tells some of his story of getting out of New Orleans and helps explain the mystery of how he was able to keep posting to his blog.

Ernie has a good update about an effort Ross Kodner and others are putting together to assist lawyers in getting their businesses restarted and, undoubtedly, to provide help to the wiped out court system.

For those who have asked us - the best way to learn what Ernie is doing is to follow his blog, Ernie the Attorney.

Lisa Stone reports on efforts of law schools to make room for displaced law students.

The ABA's Legal Technology Resource Center has put together a page of technology-related resources for lawyers, law firms and others affected by Hurricane Katrina. Again, let me emphasize that humanitarian efforts are clearly more important than technology concerns, but these resources may be helpful to those starting to dig out and rebuild. If you are aware of or wish to contribute links and other resources, the LTRC page will be a great place to submit them so that many resources can be found in one central place.

Thanks to Fred Faulkner for the link:

The American Bar Association's web portal for Katrina-related efforts and resources is at http://www.abanet.org/katrina/.

Although, obviously, there are many more immediate human concerns to be addressed, I did want to point to some of the efforts being made to pool resources to help law firms, courts and other parts of the legal infrastructure in the Katrina Aftermath.

The link at http://www.bashasys.net/support/viewforum.php?f=29 will give you a way to enter a discussion and organization process intended to help assist and coordinate these efforts.

Ross Kodner has allowed me to post a copy of an email he sent earlier today to help get this effort started. Please keep in mind that we all realize the importance of current humitarian efforts and encourage donations to the organizations involved in this effort, but want to help in something where we can be of some help.

Ross said:

"Good morning everyone,

I'm sure that all of you are experiencing something similar when watching the horrible images unfold on the news in Louisiana and Mississippi. I'm finding it hard to keep my composure watching and feeling pretty powerless to do anything. Sure, we can all donate money to the Red Cross and any other agency, but as in the aftermath of 9/11 four years ago, I do think those of us in the legal technology, bar association and the legal tech media world may be able to offer more practical assistance.

Here's what I'm thinking - thousands of law practices have been disrupted, physically damaged and/or completely destroyed. The basic ability to communicate with employees likely no longer exists for many firms. Offices are not accessible, or have been damaged. I'm sure that computer systems are either totally offline, or if they were up by some miracle, there is likely little to no Internet connectivity (if they even have AC power at all). Paper documents for many are likely a total loss. All the data backups in the world aren't going to help with business continuity issues if the media is not accessible and there is nothing to restore it to anyway.

Insurers, stretched thin and strappd like everyone else involved in the restoration efforts, are likely to focus on much more basic issues than replacing computer systems for lawyers and funding business disaster recovery - people, housing, etc. are going to come first.

What I think we can do is any of the following:

* The legal tech consultants I've included on this mailing (and any others) could make themselves available as resources to be consulted with free of charge on data recovery, data access, system re-designs, equipment acquisition, PC rental resources, re-establishing communications - anything a law practice would need to know quickly (and get right the first time) in trying to re-connect with employees, clients and resume operations

* Build a centralized system for anyone to post useful, categorized information about these topics as well as provide a communication network where lawyers involved in helping can post "services available" notices and those in need could find the information they need.

* The ABA's LTRC posted on Lawtech this morning that they are building a list of links to resources - a great start - fragmentation of efforts will only dilute the overall effectiveness and accessibility to this kind of information.

* I think a Wiki may be the ideal mechanism for dissemination of this kind of information with full posting ability, categorization, etc. Opinions from those more knowledgeable than me would be helpful, quickly.

* Getting an online contact listing of all of us who are willing to volunteer our time with contact info, services listings, etc. is imperative.

* Getting the word out to the legal bloggers, Catherine Sanders-Reach at the ABA LTRC, your own bar associations and members that any such resource is available and can/should be linked to, referred to, etc. - and getting it out to the listserves like Solosez and others that all of you participate in to get the maximum reach to anyone who needs help. Solosez, for example, has a number of New Orleans area lawyers who have been reporting on the situation.

I propose we call this effort something easy to remember like "KatrinAID" or something like that. We need a domain registerered, a Wiki (or blog or whatever) built ASAP and volunteers coordinated. I am personally willing to devote any time needed to this project immediately - I intend to explain to my clients in other parts of the country that their projects may need to wait a bit. I think that by the end of the Labor Day weekend, we can get much of this work done, ready, in-place and announced.

Who is interested in helping with any aspect of this? Please say so and indicate specifically what you can help with a "reply all" to this message. I will try and act as a conduit/clearinghouse to get this initial communication working. I thought of as many people as I could right off the top of my head but I'm sure I overlooked some valuable people who could have something to offer - forward to anyone.

Immediate need --> Volunteers - a core group to rapidly brainstorm and then put in the time to execute the basic online information structure and then keep this organized. Again, a fragmented effort won't help anyone

We have an opportunity to do some significant good for people in serious immediate need.

Regards,
Ross"

Dan Pinnington has prepared a great booklet (available in PDF) on disaster recovery. I do not know of a better starting point.

I collected a number of links to disaster recovery issues in a column I wrote earlier this year for Law Practice Today called "Resources to Help You Avoid Disaster in Your Disaster Recovery Plan."

Ann Byrne has set up two Quick Topic pages for lawyers affected by Hurricane Katrina. She says, "The idea is that lawyers can log onto the page of their choice and get in touch with other lawyers - members of their firm or opposing counsel."

The pages are:

New Orleans Lawyers http://www.quicktopic.com/32/H/GTuHaYDwKWr [Note that link has been recently changed and the link should now work]

Hurricane Katrina Lawyers http://www.quicktopic.com/32/H/ZXpdiAP9phhH

More links to good starting points to find resources:

Glenn Reynolds

Denise Howell

Dennis Kennedy

Ernie Svensen (for general coverage)

In addition, note this press release from the ABA:

"THE ABA WILL HELP HURRICANE VICTIMS

FEMA is now in the process of establishing a hotline staffed by ABA volunteer lawyers to assist victims in each affected state. A complete listing of the FEMA hotlines and other available legal resources will be posted on the ABA Web site, www.abanet.org, in the coming days."

Things were quite a bit more anxious behind the scenes at Between Lawyers than we let on while we were trying to learn what had happened to Ernie in New Orleans. We're very relieved that he has gotten out, but we're stunned by the impact of the disaster. We recommend that you visit Ernie's personal blog for his description of his experience and what promises to be touching and insightful coverage of the aftermath.

We'll be posting information and links about way to help out with this disaster on this blog and our personal blogs as well (example).

Cory Doctorow read the PodShow license for use of commercial music in podcasts and recovered enough from the shock to post about it. He illustrates why it's important to read the fine print. After all, you might want to simply to use the music, not limit what you can and cannot talk about.

As Marty recently said, "Maximizing every short term advantage may not be the best long-term strategy."

The title of this post by Doc Searls says it all so succinctly and so clearly. the post comments (by not commenting) on tsome companies wanting to ban instant messaging because of Sarbanes Oxley concerns.

I'm constantly surprised at the ways some people / organizations forget basic notions of common sense when faced with a new technology. I'm now convinced that there is no way that the telephone would be approved for use in many companies if the issue was addressed in the same way companies look at new technologies. Put your focus on people and not technology and you should end up in the right place.

Dave Winer's post "NY Times and the Web" asks some important, tough questions about mainstream media and its attitude toward blogging in these blogging times.

The money quote, in a great example of Dave's signature style:

"You'll know they're really jumping in when they let a blogger onto the op-ed page. I don't mean when they give a blog to one of their op-ed columnists, rather when they put someone who is rooted in the blogosphere in a position of power and authority in their midst, someone who can call the Times on their bullshit, in the Times. Until that happens they'll be cloistered, insulated, immune, clueless. I loved the quote from Sulzberger, btw, but it was bullshit."

David Appell's post at TechnologyReview.com's blog called "Google Pettiness" raises the "what's good for the goose is good for the gander" question, among other questions about privacy, media relations and handling criticism. According to the post, it seems Google has ceased communications with CNET for a year because CNET published some information found via the Google search engine that Google apparently found a little embarrassing. Ironically, in so doing, Google has guaranteed that many stories will appear that repeat the information it found problematic.

Wonder where this story will rank on a Google search for "Oh yeah, then I'm not talking to you."

It all goes to show you that it's good to run a Google search on your own name from time to time to see what the Internet world sees when they are looking for you.

Google may suffer more potential harm for perceived high-handedness and vindictiveness than most other companies, so I'm surprised that they are not more careful about this type of things than they seem to be. Part of the aura of Google is that it is a search engine that simply indexes the Internet and helps us find whatever is out there, almost as if for the public good. The notion of the secret Google search algorithm promotes this notion. To the extent that the Google IPO resulted in certain Google people making tons of money, the sense of a "resource for the good of the public" is weakened. To the extent that Google manifests this type of pettiness directed at critics, it potentially damages the aura that the rankings are "objective" and derived from "algorithms. I can't even imagine why they'd take the risk at that kind of self-infllicted damage.

I suspect that we'll see that they soon back away from the "not talking to you" approach. At least Google didn't announce that it would hold its breath until it turned blue unless CNET did something about the story. The Internet audience can be a fickle one, and there has already been plenty of grumbling about Google for a variety of reasons this past year. Pettiness is not a good trait to be associated with a search engine.

All of this is food for thought for anyone who is trying to decide how to respond to what it perceives, rightly or wrongly, to be criticism in these blogging times.

Evan Schaeffer offers his take on the question: Is the third year of legal education wasted?

Like Evan, I lack the credentials to enter the kind of academic debates he references in his post. So, I thought it might be fun to launch a parallel discussion among the insufficiently-credentialed, non-academic "practicing lawyers and others" group.

Interestingly, I had a discussion with a non-lawyer the other day about the nature of legal education and found it difficult to explain the current state of legal education. Especially difficult to explain (probably because I don't understand it myself) is the accreditation process for new law schools, with its heavy emphasis on number of volumes in a school's law library. My friend kept shaking her head in disbelief.

One way to deal with Evan's question is to ponder whether law school has become impossibly over-academized and there is a need to go back to something that resembles a professional training school. For example, my friend and I were discussing what doctors would be like if medical school and residency focused only on academic theory and not practice, as legal education, some might argue, has seemed to have done.

Then there's always the interesting question: why do I even need to go to law school if I can pass the bar exam? And its corollary: why do I need to take the bar exam if I graduate from law school?

The interesting empirical study related to our initial question is: what is the attendance rate of third year law students in their classes? Some lawyers would be a little embarrassed by their own answer to that question. Not me or anyone I know, of course, but I have certainly heard some stories.

Cliff Atkinson has interviewed Don Dansereau about a phenomenon known as "map shock," another malady of the information overload era.

"Map shock" is described as:

"A visual, often audible reaction upon first exposure to the presentation of a complex node-link map."

Presumably, the audible reaction begins with the letters "WTF."

The broader category of problem is called "visual shock," which refers to the same problem as brought on by graphs, charts, and diagrams.

While I sometimes kid around, I think that this interview touches on a very serious problem. From maps to instruction manuals to PowerPoint slides crafted by committees of lawyers, we too often see graphical information crammed into charts, maps and slides in a way that boggles the mind and, in truth, will produce an audible gasp. In some cases, they can even be more confusing than a lawyer's PowerPoint slide crammed with 300 words of ten-point Times New Roman type (and no graphics, of course).

I've long been intrigued by Edward Tufte and others who have addressed the issues of visual display of complex information. Some very interesting approaches to this issue have been made by the people at Xplane in St. Louis and you might enjoy taking a look around their website.

There are many ways to complicate our information overload problems, so it's always good to be on the lookout for ways to alleviate the issue.

Tom Mighell and Dennis Kennedy of Between Lawyers will be featured with Raza Hasan (FindLaw's Manager of Product Development) in a free one-hour webinar called "Blogs for Lawyers: Building an Audience to Build Your Practice," brought to you by the nice people at Thomson FindLaw.

We'll cover the world of lawyer blogs in general and talk about how lawyers are using blogs and where legal blogs are headed. Our focus will be on practical, useful information. The webinar is designed to be at the introductory level, but even long-time bloggers will benefit from the material covered in the webinar.

The webinar will be produced live twice on Tuesday, August 9 and here are the links:

August 9, 11:00 AM CDT

August 9, 3:00 PM CDT

Hope to see you there. Please pass the word along to anyone you think might be interested in this webinar. And keep your eyes and ears open for future appearances by members of the Between Lawyers group. Maybe we'll be coming to your town.

I wanted to see how the task force report Ernie referred to covered the topic of technology, so I did a search of the PDF file for the term "PowerPoint." There were zero occurrences.

For an interesting comparison on the subject of PowerPoint in trials, check out Cliff Atkinson's post called "Beyond Bullet Points on Trial" and Evan Schaeffer's comments about the article referred to in Atkinson's post. For my enthusiastic comments about Atkinson's book, see my comments here.

I may have some other comments on training trial lawyers later - the comments to Ernie's and Marty's posts are quite good, so I'm a little reluctant to introduce the level of irreverence I'm likely to have into the discussion.

However, I have made a few observations over the years that I might share. For example, I've always been intrigued by the breed of litigator who seems to spend so much time telling you how busy he is that you begin to wonder how he can get any work done and bill all those hours. I don't know how they could fit training into that schedule. Trial lawyers in general never seem shy about telling you how hard they work (and implying that you must be a slacker in comparison). Just an observation.

No time to add anything else - gotta get back to work.

I noticed via CNet.com and GigaLaw.com that Google has apparently decided to take another step in the ongoing battle among technology comapnies to determine what company can obtain the patent that most infuriates the blogging and Internet community. I believe that Google's patent application for "embedding advertisements in syndicated content" for placing ads in RSS feeds has now put Google comfortably into first place over a host of challengers, capping a recent flurry of efforts that included Microsoft's custom emoticons patent application.

Even though some might complain about the apparent incongruity of Google's aggressive use of intellectual property laws to protect its own intellectual property while developing a business with a market cap in the billions based at least in part on caching copies of other peoples' copyrighted materials on the basis of a "fair use" argument, I choose not to go that route. In fairness to Google, I will assume that the headlines I've seen do not do justice to the nuances in the Google patent application, which I invite you to read for yourself (in part to illustrate why I would not ever want to be a patent lawyer and read patents all day long).

On the other hand, I will also note that I've been talking on my blog and elsewhere about placing ads in RSS feeds for several years and never even once thought that the idea of trying to patent "ads in feeds" (even "automatically") was something I might try to patent. It seemed a little, well, obvious. Probably the hundreds of others discussing ads in feeds over the past few years have reached the same conclusion.

I now wonder if my cautious approach as compared to Google's very aggressive approach to this "invention" and the patent process explains why Google is worth billions of dollars and, sadly, my net worth is far less. The future, at least in the patent world, seems to belong to the filers and not the thinkers and talkers.

Maybe I still have time to try to get that patent for my idea of a combination computer mouse and electric razor to help you freshen up before late afternoon meetings or after-work events.

In fairness, however, let's read the actual text of the patent as well as the articles about it, and then make up our minds. It might be possible to interpret the following paragraph, for example, in many ways:

"47. A system for generating information including targeted ads, the method comprising: a syndicated information and ad mixer including: means for receiving information in a syndicated format; means for receiving a first targeted ad from an automated ad server system; and means for combining the first targeted ad with the received information to generate a set of response information which is also in a syndicated content format."

But, I'm no patent lawyer - just someone trying to make some sense out of all this stuff.