November 29, 2004

Mobile Lawyering Presentation in Chicago

If you're in Chicago this Tuesday (Nov. 30th), you might want to stop by the UBS Tower for the 2004 Midwest Law & Technology Conference & Expo. I'm honored to present again this year, and will be speaking with Nerino Petro on a favorite topic of ours: "Lawyers on the Go: Tips, Tricks & Tools for Mobile Lawyering".

Just like the title says, Nerino and I will be covering a lot of tips, tricks and tools for the mobile professional. We've all heard the hype over the years about going mobile and have seen the sizzle fizzle at times. So we've geared our presentation toward the things that really help you when you're away from the office, including savvy use of wireless technologies, the right mobile tools and gadgets that actually work, and a healthy focus on security, just to name a few.

This year, the conference is a joint effort between the Milwaukee and Chicago Bar Associations. It will be held in Chicago on November 30th, and then in Milwaukee the next day on December 1st, at the Wyndham Milwaukee Center. The unfortunate demise of the annual LegalTech Chicago conference left a void in the Windy City for the latter half of the year, so it's nice to see the Chicago Bar step up and join the Milwaukee Bar's efforts.

Topic(s):   Legal Technology  |  Mobile Tech & Gadgets
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November 20, 2004

More on In-House EDD

Continuing the discussion between Dennis Kennedy, Ron Friedmann, Bruce MacEwen, and myself on law firm in-house EDD:

Dennis is "a bit more optimistic about law firms going into the electronic discovery services business". Along those lines, I think that the right combination of legal, lit support, and IT staff could do well with examining, searching, organizing, and producing electronic evidence that has been collected by a qualified EDD source. Indeed, many firms have been doing this to some degree already. There is a particular line of evolution that has the potential to serve firms quite well if they're willing to commit to it and recognize the value of their Lit Support Manager and IT Department collaboration.

Before I get to that, however, Dennis could very well be right in that an extremely small number of law firms with the properly trained and certified EDD people on staff and the right hardware and software savvy just might pull it off -- but by far this is the exception to the rule, as it's going to require an unconventional progressive-thinking and tech savvy culture (not too common in law firms, I'm sad to say). And they will still need to consider and address all the issues we've collectively mentioned, and more. Is there first-mover advantage? Possibly. However, I think there's a more "balanced" approach worth considering.

For this, I'm going to refer to several sources that Mike Arkfeld mentioned on his Electronic Discovery and Evidence blog a little over a month ago:

75% of Top Law Firms Not Qualified to Handle EDD Matters

E-Discovery Execs Name Top EDD Law Firms; 75% of AmLaw 200 Not Qualified to Handle Complex EDD Matters. "However, when asked, "What percentage of AmLaw 200 firms has the requisite knowledge and experience to professionally handle a complex EDD matter?" there was broad consensus that the answer was not more than 25%."

I actually read Mike's post well after I expressed similar thoughts. I'll reiterate from my prior posts that I believe that counsel and staff need to challenge themselves to be more educated on technical matters relating to computer systems, data, and EDD issues, and they need to be closely engaged with the EDD process. Of course, this is not going to happen overnight. But in doing so, they can guide the process, offer counsel, and make sure that the expensive EDD resources are being focused in the appropriate areas.

Mike also has another key post on this topic that is definitely worth mentioning:

Role of IT in Law Firms re EDD, which links to this article: Conference Preview: Use your EDD by Andrew Haslam. Andrew explores many of the issues we've discussed, and the example of a firm who crashed their entire computer system by hosting EDD is a good caution.

Having worked closely with various Lit Support and Project Managers, I think he's on the right track in the following quote, because I've seen it happening already:

"How will all of this affect IT departments? I believe that the role of the litigation support manager will evolve from one focused on the processes of scanning, coding and hosting systems, into a higher level of strategic adviser and project management. In parallel, the IT function could start to move from being a cost centre to a business contributor."
Now this is where I suspect more firms will be successful overall in extending their EDD savvy, rather than trying to become the full-blown in-house EDD provider. It allows a more gradual, less-costly ramp up. It also provides a greater opportunity to improve the quality of advice and service to their clients -- with less overall risk to both relating to EDD collection and custodianship. Another advantage is that it gives the firm time to evaluate their options and directions as they evolve with EDD. For more firms, this is probably the most doable proposition I've seen to date, because it enables firms to progress while keeping closer to doing what they know best -- their core competencies.

Topic(s):   Electronic Discovery  |  Law Practice Management  |  Legal Technology
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November 09, 2004

In-House EDD: A Controversial Topic at Best

Ron Friedmann (Strategic Legal Technology), along with Bruce MacEwen (Adam Smith, Esq.), think that bringing Electronic Evidence Discovery processing in-house in law firms (as suggested by this recent Law Technology News article) is a bad idea.

I agree with Ron and Bruce's comments, which I've summarized below:

Bruce's post explains several reasons why law firms should not bring EDD in-house:

1) EDD is not a law firm's core competency (the "stick to your own knitting" Management 101 theme)
2) Evidentiary issues
3) Malpractice issues
4) Highly variable demand and capacity utilization
5) Technology and processes in a constant state of flux
6) Disequilibrium in the state of the EDD industry and its profit margins

To this, Ron adds his note of caution:

"It is much easier to explain and justify a third-party disbursement than a law firmís own time or line item charges (e.g, copying). Clients realize that the EDD space is rapidly changing and can reasonably expect a law firm to seek competitive bids. This does not mean that the lowest price wins; rather, it helps assure a reasonable price for the right services."

To these I'll add a few thoughts of my own:

1) Anything that puts a law firm member on the witness stand during the course of client representation is probably not a good thing. In the case of EDD, I believe it increases one's malpractice risk and the risk of losing cases and clients -- unreasonably so.

2) Consider the conflicts of interest inherent in offering certain ancillary services. This isn't new ground. It's been done before, and here's the best example of its impact: Recall the great "consulting" expansion of the Big Six (now Big Four) accounting firms? These firms discovered that their consulting arm created a number of conflicts.

Section 201 of Sarbanes-Oxley now expressly prohibits a large number of these ancillary services from being offered in conjunction with audit services. Even before SOX, some firms began to spin off their consulting divisions. Maintaining objectivity, especially when it comes to rendering expert services and opinions, is more valuable than most professionals realize.

3) While I know a number of very tech-savvy attorneys, I believe most law firms, and their lawyers in particular, lack the required competence in technical and forensic matters. This probably sounds harsh, and perhaps even a bit jaded, but it's my perception of current state of the legal market. There are always exceptions, and lawyers are generally becoming more tech savvy -- but overall, very few have the requisite tech knowledge in this highly specialized area.

I'll extend this point: Many law firm IT and litigation support departments, in general, are probably not properly trained in the necessary forensic techniques and issues, nor on all of the various client computer systems from which they would need to extract and collect data. Again, I'm talking about the technical proficiency issues here, not the legal ones. While a firm could go out and hire EDD professionals, consider then who will be responsible for managing them and the results. It just doesn't seem to me to be anywhere near the average law firm's core competence. This stuff is tricky, and if you don't know what you're doing, you can end up in a world of hurt in a hurry. Which brings me to my next point...

4) For a reality check, read "Prosecutors Leave an E-Trail" from October 2004 issue of Law Technology News as a good example of in-house EDD processing gone seriously wrong -- in this case, for the U.S. Attorney's Office. While they were fortunate in securing a conviction, it illustrates many of the points above. For a simplistic-yet-drastically more catastrophic result, read "Fax Error Costs EC Ä100m Court Case". While these are probably the more extreme examples of what can go wrong with technology, the sad fact remains that they occurred.

5) As Ron stated, clients pay for outside experts in litigation all the time. Why would they believe a law firm would have a higher or even equal level of experience and objectivity with lower overall costs when compared to an established outside expert/consultant? Also consider that if a lawyer or a client becomes dissatisfied with an expert's services, they can fire the expert and obtain another while maintaining the valued continuity of the lawyer's core services. When the lawyer or law firm becomes the expert, guess who gets fired? Donald Trump would have a field day with his slogan. The lawyer/firm gets thrown out with the bath water.

6) EDD service providers and consultancies have sprung up out of the woodwork, and I expect the EDD market to grow in revenue dramatically as more "core" information in cases is digital. However, like Bruce mentioned, I too expect a lot of shakeout in this market segment. Remember the ASP (Application Service Provider) craze near the end of the boom? Where are they now? A lot of consolidation and bankruptcies occurred in the interim -- and it all took place in less than five years (I'd say between 1999-2003). There are still ASPs in various markets, including legal, but it was a very turbulent ride that many did not survive.

This isn't to say that all ancillary services are a bad idea, nor should this be taken one way or the other regarding MDP (multidisciplinary practice) in general. These are all controversial issues at best. I'd suggest that one needs to look beyond the perceived gravy train to consider all ramifications, and especially those for the clients. However, I believe most law firms (and their clients) considering this specific service option would be better served in the long run by letting this one go.

However, as a seemingly-paradoxical corollary, lawyers (not just the litigators) as well as their clients need to challenge themselves to become as tech savvy as possible in this electronic era. Only more electronic information is being created, not less. There's much value to be had in the ability to know which questions to ask, how and where to find information, perceive patterns and issues, identify appropriate courses of action, and counsel clients on the associated risks and cost-benefit analyses. Now those are the lawyers and legal staff I want to know.

[As with all my posts, I should clarify that the above statements are made completely in my individual capacity as my own thoughts, and that none of this constitutes legal advice of any kind. You're free to draw your own conclusions. I'm simply applying good old fashioned common sense coupled with my experience in legal technology issues.]

Topic(s):   Electronic Discovery  |  Law Practice Management  |  Legal Technology
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November 05, 2004

The New Math at palmOne

Uber-gadget hound David Pogue has a good review of the new Tungsten T5 PDA at the NY Times. After all the smoke clears, he concludes that the T5 is inferior to its stunning predecessor, the T3, in every way but one: "This palmtop is also a flash drive." Per David:

"PalmOne has built a 160-megabyte flash drive right into the T5. As long as you have its U.S.B. cable with you, you can plug this palmtop into any computer for full access to your files. And that's without having to install any software on that computer first.

In some cases, you can open, play or edit your stored files, including pictures, movies, MP3 songs and even Microsoft Office documents, right on the T5." [...]

"On top of that 160 megabytes, the T5 has 55 megabytes of free memory for you to fill up with, for example, any of the 10,000 add-on palmtop programs. [...] There's something special about this memory chunk, too: for the first time in palmtop history, it isn't wiped out when your battery dies. [...]

All told, that's 215 megabytes of memory available for your use, more than any other palmtop on the market. It's enough for you to carry around several CD's worth of music, for example, without having to buy an external memory card."

Okay, that's cool and useful. Of course, to get this functionality, there's much that's been stripped from the T5 compared to the T3:
"So, with the T5, PalmOne giveth, and PalmOne cutteth corners. If you choose a T5, you'll gain one gigantic, brilliant, workflow-boosting feature, but you'll lose six others (collapsible body, brighter screen, vibrating alarm, Universal Connector, voice recorder, charging cradle). Call it the very new math of PalmOne:

T5 = T3 + 1 - 6."

Wondering where's the T4? "Answer: There never was one. Turns out the word "four" sounds like the word for death in some Asian languages. (Now that would be a big seller. "New from the U.S.A.: the beautiful new Tungsten Death!")" Hilarious, but I'll actually give palmOne kudos here in their market research. Chevy has never lived down the embarrassment from trying to sell the Nova in other markets. (In many romantic languages, "no va" literally means "no go".)

Interestingly, the new Treo 650 sports "23MB user-available stored non-volatile memory", but no native flash drive capability mentioned yet. Something to look forward to in a forthcoming Treo? Sounds great as long as palmOne doesn't continue to use their new math on the features list.

All in all, I think the changes in the T5 reflect the change in the standalone PDA market, which I've posted recently -- the sizzle of standalone PDAs has all but fizzled. If I'm going to spend $400-500 on a new PDA, then I'm going to buy a Treo, not a Tungsten. Thus while it's somewhat surprising to read the T5 lost its signature collapsible screen, which I really liked, I think it's a harbinger of things to come in the condensation of the standalone PDA market.

I also think palmOne missed the bullseye on the USB flash drive: Who wants to have to remember to carry a USB cable around in their pocket, even a Zip-Linq? I realize the T5 is probably too heavy to embed a slide-out USB connector and have its full weight dangling from your PC's front-side USB jack. But if I had to carry the larger T5 and a USB cable, size-wise, isn't that worse than carrying the smaller T3 and a tiny thumb drive? I like the Palm/storage integration, but what good is it if I'm not carrying the darn cable? The beauty of having a small thumb drive is that it's always ready to use and it's so small and light that you don't even notice you're carrying it.

And I almost forgot: Where's the Wi-Fi? (Done in my best "Where's the Beef?" impression.) Message to mobile device developers: Integrated Wi-Fi is a big deal. RIM gets this. The forthcoming BlackBerry 7270 is rumored to incorporate both VoIP and WLAN support. Yes, it affects battery life. But you know what? We know that. Give us some decent power management tools, a tiny portable charger, and we'll decide when to use Wi-Fi, okay? What do you think we've been doing with laptops?

It must be that "fuzzy math" again...

Topic(s):   Mobile Tech & Gadgets
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