Category Archives: Five by Five

Ten New Rules of Legal Marketing

Legal Marketing has changed.  It used to be enough to keep an ad in the yellow pages and belong to the Rotary Club.  Not anymore.  Times are tough, so I present to you Ten “New” Rules of Legal Marketing.  Let me know what you think.

1.  “My lawyer can beat up your lawyer” isn’t a marketing strategy.  “My lawyer will call me back before yours will” is.

2.  Google tells me there are 337,000 “Full Service Law Firms” out there.  Which one was yours again?

3.  Unless the person who founded your firm 100 years ago is still alive and practicing law, he’s completely irrelevant to every client who’s thinking of hiring you.

4.  Market to a “want” not to a “need.”  By the time your clients realize they “need” you, it’s often too late — for them and for you.

5.  Your “keep great clients happy” budget should exceed your “try to get new clients” budget by at least 3:1.

6.  Thanksgiving cards say you’re thankful for your clients’ business.  Christmas cards say you’re just like everybody else.

7.  Having the scales of justice on your business card says you’re a lawyer — an old, stodgy, unimaginative, do-what-everyone-else-has-done-for-fifty-years lawyer.  Same is true for your yellow pages ad.

8.  Speaking of yellow pages, don’t abdicate your marketing strategy to their salespeople.  They don’t know marketing.  They only know how to sell you a bigger ad each year.

9.  Your future clients have been living their entire lives online and will expect the same from you.  If you’re invisible on the web, you won’t exist to them.

10.  The single best marketing strategy in the world is to find your best clients and ask them, “How do I get more clients like you?”

Look for ten more rules next month.  For hundreds of legal marketing ideas, check out my Marketing Category on this blog.  And if you want to get these in real time, follow me on Twitter.

Whew!

1718 posts in two days.  I’m beat.  I will have some pretty cool news to share with you on Monday, but until then, I’m doing “real work” for the next few days, then heading for Blogher on Friday.  In honor of this wonderful event, I’m going to repost my first Five by Five from just over a year ago where five amazing women answered this question:  What are the five worst mistakes a lawyer can make when marketing to a female potential client?

See ya next week!

Five by One – Serving Latino Clients

Quite some time ago, I asked several bloggers to participate in my next Five by Five, and answer the question:  What five ways can lawyers better serve their Latino clients?  I had a devil of a time rounding out my panel of five, but the one person who stepped up right away was Juan Guillermo Tornoe, author of the fantastic Hispanic Trending Blog.  He posted his response to my question on his site here.  Go check it out.

Five by Five – Ambivalent Ambroglio

Our final contributor to the Law Student Edition Five by Five is another anonymous law student, Ambivalent Imbroglio – the only two-time 5×5 contbibutor

1. Make classes smaller – especially in the first year. Classes of 100 or more people are an incredibly inefficient way to learn. They are an efficient way to move people through a degree program, but they are not a good way for those people to really learn anything. Law degrees should not be mechanically mass produced like automobiles. If you cut classes to a maximum of 20 students, you could cover the same amount of material twice as fast because you could approach the material much differently. Large classes allow for almost no discussion; therefore, law professors generally assign too much reading and spend all their class time trying to get one or two students to superficially summarize that reading and pull out one or two main points that the professor thinks important. Guess what? We can get the bulk of that from a commercial outline, and we don’t need to mortgage our entire future for the pleasure. Other graduate programs in the humanities and social sciences offer a better model for classroom learning. There, classes are generally “seminars” of 12-16 students. A typical class begins with the professor doing exactly what most law professors do-asking some basic questions and highlighting some main points to make sure everyone has read and understood the material. The difference is, in a class of, say, 20 or fewer students, everyone can ask questions and all of this introductory matter can still be covered in a tiny fraction of the time it would take to do the same thing in a class of 100. In these smaller classes, professors then often give a mini “lecture” on the material, offering background that wasn’t in the reading, and bringing in new material and perspectives for students to consider. Then the professor will generally begin asking more serious, in depth questions of individual students about the material, and the majority of class is discussion. This allows students to raise whatever issues or questions they’d like, and it ensures that those questions get treated seriously and that everyone can learn from both the questions and the answers. Finally, so much discussion exposes indefensible views and biases, while giving a fair airing to those for which legitimate arguments can be made. Having spent four years in such classes, I can say that they were much more difficult intellectually, and therefore much more rewarding. But more important, they’re simply a much better format than the 100-per-class model for addressing the complex moral and ethical issues at stake in every area of the law. I won’t attempt to seriously address the financial repercussions of cutting every law school class to a max of 20 students, but possible ways to cut current expenses include: cutting faculty pay by 20-40% at the top and 5-10% at the bottom (enough good people are dying to teach that this won’t damage faculty too seriously; if you’re a law professor in it for the money, you should get out, anyway); spending less money on aesthetic improvements (flatscreen monitors that are nice to look at but largely useless, lots of wood panelling, leather couches) that do very little to improve education but merely attempt to raise a law school’s U.S. News rank; locating law schools in lower rent parts of cities and towns, etc.

2. If you must have large classes, make use of teaching assistants. Since it could be a while or never before law schools get to smaller law school classes, then fergoodness sake, make better use of your top 3Ls by employing them as teaching assistants in those enormous classes. Three-five TAs per 100 students could meet for an hour a week in small sections to lead discussion of the issues that get skimmed right over in class. They could also manage web discussion boards and class blogs where students would be encouraged (and required) to participate in the conversation. The goal of all of this would be to get every student engaged and thinking critically about the material, rather than simply trying to memorize rules and cases to regurgitate on an exam. The TAs could be paid or volunteers, but the experience could be good for a couple of credits for 3Ls-especially those who think they might one day like to teach.

3. Forget about “blackletter law” for the first semester or year. The first semester should be general legal history and theories of what law is, where it comes from, the possible ends it might serve, different legal systems around the world, and a basic introduction to major schools of thought about the law (“crits,” formalists, law and econ, social justice, etc.). This new “context” curriculum for the first semester should also include serious examination of the difference between practicing law in the public interest v. practicing in the private interest-and isn’t simply that one of them pays more money. Why rearrange the first semester or first-year curriculum? Because this would teach students what it means to ask questions about what they learn and show them where to look for both the questions and different perspectives on their answers. How can you think critically about a law and econ approach to torts if you don’t know what “law and econ” means or what it stands in opposition to? You can’t. And where in the current typical first year/first semester curriculum is a law student supposed to learn this? The idea seems to be that one of the 1L profs is bound to mention what law and econ means at some point, but the random approach is no way to show students the terrain on which they’re going to live and work for their legal careers.

4. Drown professors in fines and peer opprobrium when they encourage students to become evil – even or especially when such encouragement is only implicit. From day one, my law school experience has been peppered with little jokes from professors and administrators through which they express their assumptions that their students are going to graduate and immediately begin doing anything for money, regardless of the moral or ethical consequences. These jokes come with a sort of wink in the form of, “I know none of you would ever rob six American Indian tribes blind, but the attorneys that did sure made a lot of money!” Ha. Ha. Ha. These jokes seem to come almost unconsciously from faculty, probably as a sort of cynical defensive mechanism they’ve developed to protect themselves from being paralyzed with horror by the awful things that lawyers sometimes do. However, here’s where faculty need to take a serious stand; they should be condemning such humor and behavior in the strongest terms, making an example of any faculty member who feels it is professionally acceptable to suggest to students that, while it’s officially wrong to lie, cheat, and steal, as an attorney, that’s what you’ll get paid for. The point of this reform is larger than putting an end to this form of dark humor in the classroom; the real objective is to require faculty to model good professional behavior to their students and to accept nothing less. This could be the beginning of a profession-wide renewed commitment to ethical lawyering. Faculty could join collectively in condemnation of every scandal that hits the news involving attorney misconduct, spending 5 minutes in each class pointing out what the attorney did wrong, and making sure every student understands that such behavior is a disgrace to the profession-not with a joke and a wink, but with serious and uncompromising disdain. The ABA could follow up by demanding that state bars institute serious, effective, and efficient malpractice grievance and punishment systems to help weed out the “bad apples” and begin showing the public that lawyers really aren’t the slimy subhuman species they so often appear to be. So long as the profession-at every level-tacitly endorses lawyer crime, lawyers will continue to be criminals.

5. Make clinics, internships, and externships mandatory, and/or make a J.D. a two-year degree. Breadth in education is great; however, law students pay too much damned money to waste time in a third year of law school simply for the sake of being more well rounded. The law degree could be a 1-yr. degree plus a 1-2 year apprenticeship, or it could be a 2-yr. degree with no apprenticeship, and the world would not suffer one bit. In fact, society would benefit b/c more law students could get through law school with small enough debt loads that they could actually afford to work in the public interest instead of the corporate/private interest. Seven states already offer ways to gain bar membership w/one year of law school or less; more schools should support such programs and encourage them in their own jurisdictions.

Five by Five – Anthony Rickey

The next guest is Columbia law student Anthony Rickey, author of Three Years of Hell to Become the Devil:

First of all, thank you to the [non]billable hour for inviting me to one of his “Five by Five” forums.  Before giving my five answers, I’d like to explain a bit of where I’m coming from. At the beginning of my 1L year, Scheherazade of Stay of Execution recommended that I read Patrick J. Schiltz, On Being A Happy, Healthy, and Ethical Member of an Unhealthy, Unhappy, and Unethical Profession, 52 Vand. L. Rev. 871 (1999).  If you’re a law student, or considering becoming a law student, I can’t recommend it more highly. (Then go to Westlaw, check the papers citing it, and read some of the folks who disagree with Prof. Schiltz. It’s a good habit to get into.)

I picked up two things from the piece. First, that there the profession of law contributes to a chronic unhappiness among many of its members. Second, addressing these flaws may involve a lot of small steps, but it also requires a great deal of what we used to call “blue-sky” thinking back when I held the august title of “online strategist” and advised my clients on how to change their business processes.

So, I’m taking my host’s question very broadly and marking down the changes I would make if I had an infinite amount of political and social power, an unlimited budget, and more than enough rope to hang myself and ever co-conspirator I could ever hope to muster. These suggestions come from the perspective of a student skeptical of the justifications for leaving the practice of law as a profession rather than a business, so take them with however much salt you think needs to season them. But here goes.

1.  Eliminate the ABA’s accreditation system. The requirement for ABA accreditation of law schools preserves little but the high price of becoming (or retaining) a lawyer. To the extent that these are “one-size fits all” rules, they prevent us from coming up with new and innovative ways of addressing the problems of lawyers and legal education. From online law schools like Concord to more traditional ideas of apprenticeship, there should be more than one path to a career in the law.

Did you know that the following are requirements: Every law school must have its own law library (Standard 601), and these may not include only electronic sources (Standard 606); that library must have a full-time director (Standard 603), who must be responsible for library policy in association with a dean (Standard 602); every full-time faculty member must have their own office (Standard 701)?

None of these seem too unreasonable in themselves, until you think of the innovations they forbid. Why shouldn’t all the law schools of New York City get together and contract out library services to some McLawLibrary? Why shouldn’t first-year full-time professors be made to share offices if it meant more could be hired? And why shouldn’t a school be able to survey its library usage and decide that for some things, paper is just a thing of the past?  Does anyone really think that ignoring these requirements would result in substandard lawyers destined to fail the bar exam or underserve their clients? Is having a single micromanaged standard for the whole nation really in the best interests of justice, our economy, and our students?

2. Increase the signal-to-noise ratio in evaluation:  One of the most frustrating aspects of my time in law school has been exactly how bad most signals of student success actually are. It’s a familiar chestnut among first years that you will get your best grades in the classes you felt you did worst in and vice-versa.  Not only is this true, it fosters an immense cynicism: many of those who are successful feel more lucky than justified, while many of those less fortunate have little guidance for the future. A number of the latter students comfort themselves with the idea that the whole system rests upon random chance–and to a degree they may very well be right.

In my best courses last year, I had a number of assignments throughout the course, generally graded by TAs. These helped me guess at what I could expect on the exam. Even better were those professors who encouraged us to pick up our papers after the exam and review what we’d written.  One professor had a simple and direct rubric for figuring our grades; another had a multi-layered, multi-level grading process explained in exquisite detail.  The former professor gave me one of my worst grades, the latter one of my best, but either way I understood how and why I’d received what I did.

In too many other cases, a review of my exam revealed a bright and shiny letter grade and a few squiggled comments that I swear to God reminded me more of classical Japanese than anything approaching English. When asked, one professor said that grading was a more holistic process, too difficult to pin down numerically. I can understand that feeling, but that’s not an excuse: good feedback is what makes academic growth possible. Lack of feedback just makes the process look arbitrary.

Oh, yes, and by the way: make any grade curve center around something sensible, like a C+. B/B+ centered curves just increase the noise-level involved in grading because there’s not enough differentiation in grades. An A should mean something extraordinary, not just “good.”

3. Move EIP to the second semester of 2L year.  I’m not giving away any secret here: at many law schools, most students accept crushing debt burdens in exchange for the promise of dramatically-increased future earnings. While there’s always the pro bono contingent, many of us are going through this whole system because we want a job. Change how one gets that job, and every other motivation shifts.

At the moment, too much of legal job searching focuses on the first year of law school. With the early interview process starting about the same time as 2L year, the only thing employers see is first-year grades. Since most students expect to work for their summer firm–or at least they hope for an offer–1L grades become overemphasized. This makes no sense at all to me, because first-semester 1L grades measure two different things (to the extent that they measure anything at all):  what one has learned in a given class, and how fast one has picked up on a very new and often very foreign system. In many cases, I think the second factor is much more important than the first.  But if a law firm is hiring for the long haul, is this really the quality they’re looking for?

Ideally, I’d get rid of the connection between 2L summer positions and final jobs, but I assume that this is driven at least partly by the law firms. Failing that, moving the entire process to the second semester of 2L year would increase by half the amount of information a law firm had to observe from a transcript. And at schools where 1L classes are fixed, some of the information would be much more indicative of an individual student’s personality: that 2L semester is much more likely to include electives at most schools.

4. Describe the whole lawyer, not just grades. When I was searching for my 1L summer job, I was struck by an odd contradiction in my law school’s rules: I wasn’t allowed to put my GPA on my resume, but I could send a transcript to prospective employers. Now, most law firms have some serious resources devoted to recruiting. Wasn’t it reasonable to expect that they’d just plonk my grades into a database that would spit out a GPA for them?  (And indeed, this is what many of them did: I heard one recruitment coordinator typing my grades as she asked me about them over the phone.)

There’s a lot of this in law school: when faced with the fact that the evaluative techniques are too rough to be truly meaningful, systems are put in place to artificially underemphasize them. The feeling seems to be, “The information revealed by our current technique (a grade-point) is imprecise, so let’s have less information.”

This is backwards. As already mentioned, a lot of this problem could be resolved by recentering grade curves and grading more granularly. But wouldn’t it be better to have multiple systems of evaluation, each of them summarized on the transcript?

For instance, if a school truly wants to emphasize pro bono work, put the number of pro-bono hours a student has worked right on the transcript–and put it first.   Want to give a student a chance to shine in his or her own particular area of interest? Let him or her choose an elective in the first year instead of competing in a uniform set of classes. Allow and even encourage students to do extracurricular legal work, pro bono or even for-profit, and put it on the transcript. Even better, if a school thinks a student’s GPA doesn’t accurately reflect the depth of the student, find a way to factor such things into the GPA itself.

5. New paths for students start differing new paths for professors.  Too much of law school is built around “standard” patterns. Law students take the LSAT, get into the best school they can, work one or more summers at a firm, and end up an associate at one of those summer firms. Students compete to be on Law Review, and then compete for clerkships.  Very rarely does anyone ask why.  As Dahlia Lithwick puts it, “Not since the days of the Tonka backhoe and Malibu Skipper will you have so lunged for stuff in which you have no real interest, just because everyone else is lunging.”

What struck me this summer was how much further up the line this consistancy goes. This summer I received an email from a student–not at my school–quite bitter about not having made law review, angry because now he’d “never become a professor.”  I tried to search out some advice–some page helpfully titled ‘How to become an academic even if you didn’t make law review’–and was shocked at how little I could find. The advice was almost always the same: get on the (not “a”) journal, clerk as high up the chain as you can, and then start the application process after a few years of practice. 

There’s a certain sense of “as above, so below” to this system: so long as the majority of professors have the same background, they’re going to tend to guide pupils through the same set of experiences. Students will see how their mentors have advanced, and emulate them. I’d love to be taught by a professor who was granted tenure not because of a particular piece of scholarship (a “tenure” article), but solely because of his skill with students (perhaps “tenure” students) or his prior history in practice. The mere existence of such teachers gives hope to those who, for whatever reason, choose a different path for their own career.

That probably sums up my five answers:  law school and the legal profession will flourish when success can be reached by differing paths.  Students should be able to enter the profession in different ways, free of the stultifying hand of the ABA.  They should be evaluated honestly, but in ways that reflect the differing skills and values that they bring to the school, and that they will take with them into practice.  And no matter the path they took to become an attorney, they should be able to follow that path straight back into academia.

Now, certainly that was enough rope to hang myself. As I said, take it with a grain of salt: it’s a very large question, and if I knew the answers, I wouldn’t be a student.

Five by Five – Jeremy Blachman

The third spot in our Law Student Five by Five is held down by Jeremy Blachman, author of the eponymous Jeremy’s Blog.  Jeremy is a 3L at Harvard who is not going to work for a law firm.  Here are his five answers to our question, “What five things would you change about legal education?”

1. Okay, I’m going to start off bold. I think law schools ought to exert some collective energy to get the law firms off the campus until the third year of law school.  

In a way, I feel like legal education is caught between two paradigms, and hasn’t figured out how to reconcile them. On the one hand, in a lot of ways, law school provides a very liberal arts-like education, with a lot of talk about legal theories and ways to think about the law, and very little comparative emphasis on the actual practice of law. On the other hand, from the moment you get to law school, you find yourself showered with information about law firms and how to get a job at one, and pulled toward this vocational emphasis. I think this creates a real inconsistency in trying to make sense of what the heck the point of law school is. Is the point to get a legal education, or is the point to get a law firm job? I think they’re pretending it’s the former, but really it’s just a cover for the latter. 

At least here at Harvard, from the moment we arrive on campus 1L year, we’re invited to law firm receptions, information sessions, resume workshops, interview training, dress code seminars, job fairs, and handed printouts of 50-slide PowerPoint presentations on the process. We learn more about how to get hired by a law firm than what lawyers at law firms actually do. We learn more about the difference between cotton fiber resume paper and white linen resume paper than about the difference between corporate practice, litigation, and whatever the heck lawyers do if they don’t work at firms. We learn more about what to wear to an interview than why we should be thinking about going. So a few people get law firm jobs 1L summer, and the rest cry about how they didn’t. And then before school even starts 2L year, we’ve got resume deadlines and lists of firms to select and interviews to start preparing for.

2L fall meant half-filled classes while people flew out to visit law firms, and much more talk about the Vault rankings than about the merits of whatever we were supposed to be learning in class. By Thanksgiving of 2L year – less than halfway through law school – pretty much everyone has a law firm job lined up for the following summer, and since the firms can’t risk getting a bad reputation on campus by deciding not to give some of their summers full-time offers, everyone knows they’re set with a full-time job after law school, if that’s what they’re looking for. And the next year-and-eight-months is spent with one foot out the door.

As soon as the recruiting process was over, the collective energy of my law school class collapsed. Law school doesn’t matter anymore. Our grades don’t matter, our attendance doesn’t matter, the reading doesn’t matter, and learning doesn’t matter. Part of the problem is that classes just aren’t that engaging (see #3), but part of the problem is that if the point was to get a job, you’re done. Having your post-graduation outcome set for you less than halfway through school is stupid. It undercuts the whole point of being here for three years.

The presence of law firm recruiting on campus largely changes law school from an educational experience to a job mill. But I don’t know what the answer is. Obviously, there are lots of students who are here expressly to get a law firm job, or at least that’s one of the reasons they’re here. And that’s completely fair. So I don’t think we can or should necessarily forbid students to seek out firm jobs, or law firms to seek out students. But there ought to be some way to postpone the process a bit. In the broader sense, law schools need to decide their mission: are they trying to train lawyers for firm jobs, or is the purpose more high-minded than that? If they’re just training people to work for law firms, the education we get matches up poorly (see #2). But if the goal is something more, the presence of law firm recruiting and the emphasis given to it from the very start of 1L year is desperately hurting.

2. And now, the flip side of #1. If law schools are trying to train their students to be practicing attorneys, no one has told the people writing the curriculum.

It seems like the energies here are largely spent on this theoretical education, reading old English cases, figuring out where the law comes from, trying to understand the reasoning behind different legal regimes. All interesting and valuable stuff, for sure. But then the practical aspects of what lawyers actually do are shoved off, at least here, into a pass/fail “legal writing” class taught by “instructors” and given no respect at all.

Law school hasn’t provided a particularly good sense of what lawyers do on the job, or how to actually practice law. We learn how to think about the law, but I took contracts and don’t know how to write one. I took civil procedure and don’t know how to file a lawsuit. I didn’t take evidence, and no one’s making me. Even after spending a summer at a law firm, I’m still not entirely sure what lawyers do. And lawyers who don’t work at law firms? Are there any? What do they do?

I think law school does a relatively poor job of introducing us to the range of careers that lawyers have, and what the day-to-day practice of law in a variety of settings is like. I have heard the excuse given that you can only learn these things on the job, and law school’s role is just to provide a foundation. That’s fine, but a little more emphasis on the practical side of things – especially if we’re going to have to decide our career paths before we’re even halfway through – would be nice, and not just as part of a pass/fail class designed not to be taken seriously.

3. These problems are all interrelated to some degree. The timing of the recruiting process making more than half of law school feel irrelevant wouldn’t be such a big deal if classes were engaging for their own sake.

I expected the quality of teaching at law school to be a great deal better than it has been. I can’t help but think that for a good number of professors, the teaching is secondary – as far as why they got hired, and as far as what they spend their time on once they’re on the faculty – to publishing papers. It’s great to be taught by top-notch scholars; it would be even better if they could actually teach. I have had some absolutely brilliant professors; having them has made me see how good a law school class could be, and has made me disappointed with the rest of my professors, who haven’t even come close. Part of it is that they don’t seem like they’ve prepared for class, they haven’t read the materials, they haven’t thought about what they’re going to say before they start talking, or they just aren’t particularly engaging and dynamic speakers able to convey knowledge in a compelling way.

I would change the tenure process. I would include a real teaching evaluation, and not just rubber-stamp candidates based on their research and publications. I would incorporate salary incentives for excellent teaching (I realize measurement is difficult, although, really, can’t you tell within five minutes of sitting in a classroom whether this is a professor who is truly competent or not?). I would demand excellence. I don’t think excellence in the classroom is currently demanded. I wish that would change.

4. Of course, good teaching would be easier if the materials professors were working with were stronger. Casebooks are awfully boring. 

I have no problem with the case method as a foundation, although I haven’t really thought through the alternatives. I have no problem with the Socratic method. I think the Socratic method done well is really quite excellent. The Socratic method done badly is dreadful.  But so is a terrible lecture.

The problem, I think, is that we don’t see enough materials in law school about how the law relates to the broader society, and to people’s lives. Some of the most interesting readings I’ve been assigned have been newspaper and magazine articles, television news program transcripts, and books written for ‘normal’ people. I think the cases we read can be supplemented with outside materials. The law is important in everyone’s life. If we practice law, we will be dealing with how the law plays a role in people’s everyday lives. Law school, especially in the reading materials we get assigned, pays relatively little attention to this. I think that’s a mistake.

5. Finally, I don’t think legal education does a very good job of fitting all of the pieces together. 

I have a fine understanding of the isolated areas of law I’ve taken in classes in – I know some contract law, some constitutional law, etc. I have no idea how they all come together in one big legal system. I have no idea if there’s any relationship between our torts regime and our criminal law regime; between our tax law and our constitutional law. Maybe these links don’t exist. Or maybe if I sat down and thought about it for a while, I could come up with something. But I don’t know where I would even look to find a discussion of these macro-issues, what class I would take, or whether they’re even important. We have a legal system, but what we learn are fragments of it, and I don’t know that we ever see how it all fits together to create a rule of law. This seems like a gap in the education. I might be wrong.

I haven’t touched on other areas where legal education could improve –its use of technology, lack of focus (at least in the U.S.) on issues of international and transnational law, the unchanged-for-generations 1L curriculum, the high cost of education leading people to take the law firm route in greater numbers than might otherwise, the student-run legal journals, and more issues I’m sure I’m not even thinking of. But, for me, I think my five are the areas where I’d most like to see change, and feel like change would have the most impact on legal education overall.

Five by Five – Buffalo Wings and Vodka

Our second contributor in the law student edition of this Five by Five is another anonymous blogger.  This time, the author of Buffalo Wings and Vodka gives us the Five Things he would change about Legal Education:

 1. Make Legal Research & Writing a Real Class:  I know this may be better at some schools, but a lot of places only give LR&W a pass/fail status, or, like UT, make it a one-credit-hour affair. I understand that this is in an effort to take some of the pressure off of us, but it doesn’t work because:

A. We do realize, on some level, that it’s the only useful thing we’ll get out of law school.

B. If it is for credit, no matter how small or insignificant, we’re going to stress out about it.

C. If we’re going to stress out about it anyway, then we should be rewarded in the only currency that law students (at least of the first-year variety) understand: Grade Points.

So make it a full class. I don’t care if you staff it with lecturers, or third-year students, or exceptionally bright kindergartners. Just stop putting it into our heads that it is somehow less important, and then sticking us with a pair of B-minuses that haunts us for the rest of our legal career, causing us to question our self-worth and to seriously consider dropping out and working at Applebee’s.

2. Condense it to Two Years:  Don’t get me wrong: I love law school. But while I’m going to enjoy my third year full of interdisciplinary classes and whiskey, I would probably be better off out in the world, making money and impressing women. The only real reason for law school to last as long as it does is that universities need to pick up extra cash wherever they can, and I understand that. But why not milk the undergraduates instead? I’m just a future commercial litigator, trying to scrape by on $60,000 in living expenses a year so that I can go out and do God’s work. So let me do it already.

3. A Pass/Fail First Semester:  Since nobody is going to accept the Two-Year Law School idea, we might as well make the three years a little more workable. Though I’m not
going to say that first-semester grades are no indicator of intelligence, I will suggest that they are an even stronger indicator of who has figured out how to take a law school exam. And it’s a shame that not everybody gets a chance to do this before stuff really starts to count. The fact that I’m awesome at bolding subheads and underlining key concepts should not be able to make up for the fact that I know less about the law than the dude next to me (or, for that matter than my cat). So why not give everyone a chance to get the lay of the land, so that you can make evaluations based on something that matters?

Now, I appreciate the need of law firms to have an early sorting mechanism, but this really wouldn’t hurt them much. We could move interview season to the beginning of the second semester of 2L year instead of the first semester, and everyone could still make their decisions in plenty of time for the summer. “But what about 1L employment?” you say. Well, I decided not to work as a 1L, and it didn’t hurt me. So I say that all law students across the country start using the 1L summer to get a tan, write that novel they’ve been
putting off, and cherish the last few months of freedom they’ll ever have.

4. Get Rid of Open-Book Exams:  In law school as we know it today, everyone has a friend that it’s in an older class, and every friend knows someone who took every class, and at least one of those people is going to have an outline that is of publishable quality. So we all walk into exams with these massive binders that are tabbed and indexed and have charts and graphs and pop-up pages and advertising in them, and it’s just ridiculous.

Go back to closed-book exams. Go back to a system where I’m only responsible for as much as I can cram into my head.  As things stand now, I’m carrying so much into an exam with me that I can barely get through the door, let alone get it all on paper.

5. Eliminate Wireless Access in Classrooms:  The Internet, in general? Good. The Internet in law school classrooms? Bad. On any given class day, you’ll find someone playing solitaire, someone watching ESPN highlights, someone IMing people across the room, and someone reading stupid law student weblogs. Which is why I am absolutely not allowed to bring my laptop to class. I just can’t hack it.

But it’s not enough that I alone practice laptop abstinence. Because, since everyone else has one, I end up spending the class period watching someone else suck at poker, or buy crap they don’t need, or read “Sugar, Mr. Poon?”. And that’s just not good for anyone.

Five by Five – Sugar, Mr. Poon?

Our first panelist in the law student edition of this Five by Five is not a law student at all, but was when he started his blog, Sugar, Mr. Poon?, so I asked him anyway.  Though I know his secret identity, I am sworn to secrecy (go to the FAQ’s 1 and 2 to see if you can figure it out yourself).  So, here you go Mr. Poon.

Five Things I’d Change About Legal Education:

Note:  I just noticed that my distinguished co-panelists are still law students.  I’m  a recent graduate now working at a big firm in NYC.

1.  Teach Us to be Lawyers Better:  My first-year Legal Writing professor told us that his pass/fail writing class would be the most important in our 3 years of law school.  I don’t think that’s quite right — but I do think it’s right with respect to many students who don’t take advantage of clinical opportunities in law school.  Evidence and Corporations and Tax and “Law and Jackson Pollock’s Motorhome”-esque classes provide a good basis of information, but when you’re practicing you’re gonna need to look up that issue of Delaware law to avoid malpractice, whether you got an A+ on your Corps exam or not.

I was fortunate to have been involved in several practice-oriented classes, and I’ve found that it was THOSE experiences that prepared me to be a lawyer — or at least a first-year associate at a big firm.  (Although friends who are working in much different jobs — either at law firms or in other sectors or what not — agree with me on this point.)

Or, put another way, being able to debate the Supreme Court’s revitalization of the sovereign immunity doctrine is great, but it doesn’t give you a clue about what makes a good Statement of the Case.

(And don’t get me wrong — your ConLaw class has a good deal of value.  I really enjoyed law school on an intellectual level because of classes like ConLaw and Torts and so on.  But in terms of the “traditional” practice of law — be it at a big firm or as a solo practitioner — knowing how to draft a motion or defend a deposition are more important skills than knowing Potter Stewart’s shoe size.)

On that note…

2.  Make the Third Year More Clinical:  Maybe this is Part 1(b).  I would be surprised if one of my distinguished co-panelist-type-people doesn’t offer the suggestion that law school be shortened to 2 years. I hear this a lot.  I don’t think it’s the most terrible idea, especially given the cost of law school these days.

I have a better idea:  integrate clinical/practical classes into the third-year curriculum and make one or two mandatory each semester.  My school had a mandatory public service requirement, which was a very good thing.  But it didn’t mean you’d get any practical experience. Integrating those experiences into the third year would keep that year alive and fill the practical experience void at the same time.  (See also #5 for a discussion of judicial internships/clerkships in the third year.)

And one of those classes should be on Lawyerly Advice.  Law students need to hear things like “Always hand in work that is good enough to be filed” and “Stay away from that Whitewater thing”.

(A more stark version of this model is used in a majority of American medical schools, where the education is (roughly speaking) 2 years of book learnin’ and 2 years of <strike>touching peoples’ privates</strike> <strike>poking and prodding strangers</strike> <strike>taking someone’s temperature… and not orally</strike> hands-on learnin’.  Works well.)

3.  More cookies:  Seriously.  Sometimes my professors gave out cookies or other sweets.  And sure, I got a little jumpy from the sugar high and probably blogged more than usual during that class, but I recall paying attention more too.  And besides, you know, like, cookies are yummy, and stuff.

4.  Depress the Cost of Bar/Bi:  Look.  You can go to law school and not practice law.  Fine by me.  May be joining you sooner or later.  You da mon.

Statistically speaking, however, most of us law grads at least take the Bar Exam and try out this lawyerin’ thing in one capacity or another.  And the Bar Exam in each state in the Union now uses the Multistate Bar Examination — a horrid little 200-question test that I hate with a passion because it is evil and should be burned.  (No, I’m not bitter – I passed the NY Bar. . . but I’m angry at that stupid f-ing test anyway.  I hate you so much, MBE.)

The MBE deals in majority and minority rules and is generally designed to confuse you with poorly-worded sentences and trick you into not using your common sense.  I think law schools should have a class on this stuff, just to get you ready.  Could be an elective.  Just a thought.

5.  Push More Students Toward Judicial Clerkships and Internships:  I think that a lot of law schools don’t push clerkships and internships enough.  Yes, the clerkship market, especially in the federal courts, is very competitive.  But internships are generally much easy to come by, and can be done while in school.

In fact, as part of “Mr. Poon’s Happy Fun Time Third-Year Clinical Bonanza” detailed in #2 above, I would reach out to judges in the area to set up semester-ly internships that get students into chambers and into court.  Being in a courtroom for the trial process is great experience, both in law and in life.*  Law schools should use their position in the  community and prestige to create those opportunities for their students which will make them better prepared to be lawyers and/or good at Grand Theft Auto.

*May or may not be true — I got it from a fortune cookie.

PS - After re-reading the above, it may seem to some like I’m complaining that law schools aren’t enough like trade schools and/or lawyer factories.  That’s not what I’m saying.  I’m saying that for all the wonderful things I learned in law school – and I learned a lot – the things I learned in my clinics and internships were the most valuable to what I am doing now (and what most of my friends are doing, including those not at a job similar to mine).  And they need to be a greater component of American legal education — or at least mandatory, for Newdow’s sake.

PPS - It also may seem like I’m complaining that law schools aren’t giving out enough cookies.  I am.  They aren’t.  No, seriously.

Five by Five – Law Student Edition

By Monday, I’ll have up the next Five by Five.  This time, I’ve asked five law student bloggers to answer this question:  What five things would you change about legal education?  On the roster:

Ambivalent Imbroglio

Three Years of Hell to Become the Devil

Sugar, Mr. Poon?

Jeremy’s Weblog

Buffalo Wings and Vodka

I’ve also asked my pretrial students at Washington University Law School for their responses.  If you’ve got some good ideas, let me know. 

Five by Five – Stephen M. Nipper

Our final contributor is Stephen M. Nipper, a registered patent attorney working in Boise, Idaho with the firm Dykas, Shaver & Nipper, LLP and author of the Invent Blog.  His contributions:

What five things would you change about IP law and/or practice?

[What started as "five things" has quickly digressed into a rant to my fellow practitioners about how they need to change THEIR IP practice.  Hope you all don't mind.]

1.  Embrace the future.  Lets face it, the Internet is changing the practice of intellectual property law. Many of the businesses we used to rely on for patent copies, copies of file wrappers, etc., have had to evolve or die as more and more of the USPTO’s data and knowledge is made available on the Internet for free.  Do you really think that is the end of it?  Do you think that it is not going to affect IP attorneys too?  I’m afraid that you’ve got a big surprise coming.  It is time to start thinking outside the box about how we provide our services, how we bill for them and how clients find us.

2. Due to the Internet, people now have unfettered access a litany of information about the practice of intellectual property law.  Because of that, they are expecting more and more from us.  Gone are the days when “the only thing my client needs to know about the law is my phone number.”  Instead, attorneys need to realize that that your new client likely knows more about IP law than the average general practitioner does.  You should treat them with respect.  Work with them on projects instead of for them, make yourself more available to them, visit their office/factory/shop.  Quit biting the hand that feeds you.

3. You are your brother’s keeper.  One of the things IP practitioners tend to do is ignore our responsibility to spend time educating non-IP attorneys as to the basics of IP law.  Lets face it, our colleagues (understandably) aren’t typically very good at issue spotting when it comes to IP issues.  The result is countless pain and suffering (and much gnashing of teeth).  Solution?  Go teach a CLE to general practitioners, blog, write articles for your local bar journal, start writing a newsletter, etc.  You will be rewarded.

4.  The Princess Principle.  At my house we joke about “The Princess,” often referring to my daughter being demanding (or when said jokingly to my wife, often followed by me sleeping on the couch…but I digress).  Too often I see IP attorneys (especially the patent attorneys) strutting around like they are somehow better than other attorneys.like they are the Princess and everyone should worship them. I can especially see the Princess Principle when I look at how non-IP attorneys treat my staff (usually with respect) vs. how IP attorneys treat my staff (rudely, impatiently, etc.).  Just because our IP attorney ancestors narrowly defined who could practice IP law doesn’t make any of us The Princess.  Get over it, you were a geek who happened to go to law school and has benefited from the “System.” Realistically, we’re all more like court jesters than princesses.

5.  Billing.  What would a post on Matt’s blog be without talking about billing?  Intellectual property practitioners need to work harder at providing alternative billing methods to their clients and need to be more responsive to billing issues in general.  Why? Because the Internet is dramatically changing both the quantity and quality of competitors who are now only a few clicks away from your clients.  Clients are becoming less and less inclined to merely get annoyed when they have issues with one of your invoices or your prices, and more inclined to start looking for your replacement.  One thing you should remember about that replacement.it is just as likely to be a firm in a distant, smaller metropolitan area as it is to be a firm down the street.  The Internet has really opened up the practice of IP law, making firms in smaller towns (with less overhead) able to provide competitive services to clients all across the nation.  If you don’t take care of your clients.they (we) will.

Now that I have totally annoyed all of my competitors. I’m out.

Five by Five – Doug Sorocco

Up next is Douglas Sorocco, partner in the Oklahoma law firm of Dunlap, Codding & Rogers and author of the PHOSITA blog.  Doug’s Five Ways he’d change the practice of IP law:

1.  Everyone needs to take a deep breath regarding software patents.  The end of the world is not near, the seas are not going to be flooding our coastal cities and software  patents are not stifling development of new and useful tools and processes.  Software developers are simply going to have to become better business people and accept that nothing is free and patent clearance searches must be made an integral part of the development process.

2.  Continuation application practice must be reformed to require the update of the “best mode” of practicing the invention every time a new continuation application is filed.  A loophole (according to my opinion) in continuation practice is the fact that anyone can file as many continuing applications as they want and never have to update the “best
mode” in the application.  If a continuation application is filed several years after the parent application, it is likely that the best mode of practicing the invention is woefully out of date.  U.S. patent policy of limited monopoly rights for full disclosure would be better served by updating this crucial piece of information every time a new continuing application is filed.

3.  Clients and businesses see the patent lawyer as integral to the business model and growth strategy.  Any patent attorney that doesn’t request a business plan or meeting with management to discuss the implications of intellectual property filings should be disbarred.  Do not pass go. Instantly disbarred and perhaps made to wear a chicken suit as future employment.

4.  All law and graduate students should be required to take a general intellectual property overview class as part of their first year curriculum.  Our society and economy is quickly becoming knowledge based.  Every attorney (and business person) should have at least a fundamental understanding of the legal protections underpinning such fundamental aspects of day to day business and technology life.

5.  Significant and substantive reform of the U.S. patent office procedure for patentees, lawyers and patent office employees.  The current system is broke and the pressures put on patent employees are absurd.  As applications become more complex, Examiners are not being given the appropriate amount of time, training and resources to complete
their jobs efficiently and expertly.  Fee diversions must be stopped and quality made the “gold standard” rather than production and counts

Five by Five – Martin Schwimmer

The next edition of this Five by Five comes from Martin Schwimmer, lawyer and author of The Trademark Blog and one of the founding members of The Blawg Channel.  Martin’s response:

What are some of the most important issues and developments in trademark law today?

In terms of jurisprudence, I think two of the most important areas are the development of the concept of initial interest confusion, and the development of contributory and vicarious infringement in the Internet context.  With respect to initial interest confusion, a tremendous amount of what trademark owners hate about Internet activity consists of third parties using their marks to divert traffic to unauthorized sites.  We saw this concept in cyber squatting litigation, and now see it in the use of keywords.  Related to this is the development of the concepts of contributory and vicarious infringement.  It’s hard to get one’s hands around fly-by-night operators, so trademark owners go after the Internet service provider or registry or search engine.  I think these are the key areas in which we are going to see development in U.S. jurisprudence.

I also think that the development of the UDRP is an astounding success in that it represents a model of dispute resolution.  There are times that a trademark owner has to walk away from the misuse of a mark in a domain because litigation will cost $50,000, but a UDRP can cost under $3000.  The UDRP is not a perfect solution, but it has absolutely achieved what it set out to do.  I still do a lot of them, probably one a week.  I think the UDRP may pave the way to other forms of alternate dispute resolution for IP problems.

In addition, technological systems are developing to take some of the drudgery out of trademark practice.  For example, xml, which stands for “eXtensible markup language” allows structured information, such as the information required in most trademark applications around the world, to pass from one system to another.  So, for example, the information in a client’s database in the United States could be coded using XML to label the relevant information, such as the mark, the description of goods, and
applicant’s address, and transmitted into corresponding ‘buckets’ used by whatever software application is used by the foreign associate or foreign trademark office.

Five by Five – Dennis Crouch

Next up is Dennis Crouch, a patent attorney at McDonnell Boehnen Hulbert & Berghoff LLP in Chicago and author of  Patently Obvious: Patent Law Blog.  Dennis’ Five Things:

 

This is going to sound corny, but the fact is that I absolutely love being a patent attorney. I enjoy talking with inventors.  They are generally smart, quirky and forward thinking.  I get to think about and work with new technology all day and am paid to write. 

 

I am clearly an optimist and tend to see the good side of any situation.  I actually found it quite difficult when Matt asked me to take part in this 5×5.  What is the bad side of the field I enjoy so much?

 

  1. Law Firm Life: Billing Requirements:  Billing expectations at most large law firms are simply unreasonable.  They disrupt family life and tend to destroy any solid mentoring program.  Today, however, I’m upset with how the long hours spent billing really cramp the ability of associates to begin to build a practice of their own.  The hour requirements were raised after the salary bump several years ago.  Now, there are rumors that another salary jump is in store for BigLaw associates.  In my opinion, rather than increasing associate salaries, firms should compete based on hours.  

 

  1. Law School: Becoming An Attorney:  If you are a scientist or engineer who is thinking of becoming a patent attorney, my advice to you is to broaden your outlook.  When you go to law school, don’t just worry about becoming a patent jockey – rather you are becoming a lawyer.  Learn to think like a lawyer and talk like a lawyer.  Take classes that have nothing to do with patents and make as many friends as you can. (Your classmates will likely refer some of your first clients).  Law school provides a great transition point in life, and there is no requirement that pushes an attorney with an engineering degree into patent law.  Take time to enjoy the freedom. 

 

  1. Technology: Electronic Patent Filing System:  The Patent & Trademark Office (PTO) has taken great measures over the past few years to transform the Patent Office into an electronic office.  However, the electronic filing system for patents still stinks.  A user friendly solution is needed as soon as possible.

 

  1. Patent Litigation: The Expense:  Patent litigation is simply too expensive.  The average case, including those that settle, runs into hundreds of thousands of dollars in legal fees for each side.  Cases that do not settle often cost well over a million dollars to litigate.  This is a major problem.  There are some simple tips that a patentee and patent prosecutor can follow to reduce future litigation costs.  Examples are writing clear and precise claims, summarizing the invention in a way that is accessible to a jury, and conducting regular market surveys to ensure that your patent explicitly covers any technology that you feel is infringing. 

 

  1. Patent Law: Uncertainty of District Court Opinions:  The claims of a patent define its scope.  Almost every patent infringement lawsuit involves arguments over whether claims terms should be given a broad or narrow interpretation.  The problem is that claim construction, like statutory construction, is reviewed de novo by appellate courts.  And, the appellate courts have been reversing cases with fury.  Almost 50% of claim construction cases are overturned on appeal.  Under the current scenario, anyone preparing for patent litigation should prepare for at least one appeal and remand.

Five by Five – Mark Partridge

 
THE FIVE THINGS I’D CHANGE ABOUT IP LAW
 
1.  Rediscover the public mind.
 
One of the first changes I’d make in trademark law is to rediscover the public mind as an essential element in the creation of rights. In my book Guiding Rights: Trademarks, Copyright and the Internet,  I go into this issue in the chapter entitled “Trade Dress Protection and the Problem of Distinctiveness.” The recent history of trademark law reflects a regrettable trend toward a point where there is little or no attention paid to the connection between the mark at issue and the public’s reaction to that mark. This has proceed to the point where an appellate decision has stated that the issue of trademark rights is the relationship between the mark and the product, “not whether . . . consumers associate the design with its source,” and “not the relationship between the [mark] and the consumer.  See Stuart Hall Co. v. Ampad Corp., 51 F.3d 780 (8th Cir. 1995). As discussed in Guiding Rights, the resulting analysis then bears little relationship to whether the public will react to the mark as an indication of source. But that, of course, is what trademark law is all about.
 
A proper understand of trademark rights involves recognition that rights only exist when there is a connection between the mark with goods or services from a particular source in the public mind.  It is not enough to simply select a compelling mark and affix it to a product.  This was long ago stated by Justice Frankfurter in Mishawaka Rubber & Woolen Mfg. Co. v. S.S. Kresge Co., 316 U.S. 203 (1942):
 
“The protection of trade-marks is the law’s recognition of the psychological function of symbols. . . . Whatever the means employed, the aim is the same – to convey through the mark, in the minds of potential customers, the desireablity of the commodity upon which it appears.  Once this is attained, the trademark owner has something of value.”
 
Thus, a mark has no value as a trademark unless and until there is recognition in the public mind.
 
More recently, the Seventh Circuit in Zazu Designs v. L’Oreal, S.A., 979 F.2d 499 (7th Cir. 1992), similarly recognized that an ongoing plan to use a mark or even sales to a small inner circle created no rights, stating: “Only active use allows consumers to associate a mark with particular goods and notifies other firms that the mark is so associated.” 
 
In other words, there is no protectable mark unless there is a relationship between the mark and goods from a particular source in the public mind. This necessary consideration is seems often overlooked or misunderstood by both trademark owners and the courts. My first change would be to rediscover the importance of the public mind in all dialog about trademark rights.
 
2.  Eliminate rights in gross mentality
 
My second change, admittedly related to the first, would be to eliminate the “rights in gross” mentality. By this, I mean the notion that a trademark creates an absolute and exclusive right. One sees this tendency on both sides of the rights issue. A trademark owner may have the view that no one else may use its mark for any purpose. The junior user may believe there is no infringement if the mark it adopts is not identical to another’s trademark.
 
Both views are mistaken, of course. The rationale for protecting trademarks is preventing deception of the public, not to protect a right in gross. Again the effect of the marks in question on the public mind is critical. Some uses of another’s mark are permitted because they do not deceive the public. The use of nonidentical marks on related goods may still be an infringement because they deceive the public.
 
3.  Require ADR before litigation
 
Litigation is extremely expensive, almost shockingly so to most clients, and prohibitively so to many. The 2003 Report of the Economic Survey by the American Intellectual Property Law Association found that estimated total cost of a trademark infringement suit where less that $1 million was at risk ranged from $200,000 to $400,000. The litigation cost in larger matters reached up to $4 million for a single case. The result is that even successful litigation may end up substituting a financial problem for an infringement problem. We also know that most civil cases, over 90% in federal statistics, never go to trial.
 
My change would be to require all trademark litigants to try forms of alternative dispute resolution before proceeding with the expense of discovery and trial.  As both a mediator and as an advocate in mediations, I know that facilitated negotiations can lead to resolutions at substantially reduced cost.  Unfortunately, ADR is underused for many reasons. Clients don’t want to be the first to blink. Litigators don’t want to appear weak, loss control, or disclose information. Whatever the reason, the hesitancy to use ADR (either mediation or early arbitration) could be overcome by making it mandatory. Some jurisdictions already do. More should. An early effort to settle, facilitated by a competent neutral could, I believe, save the courts and clients a great deal of money.
 
4.  Improve ICANN UDRP submissions
 
As an ICANN UDRP Panelist with over 100 reported decisions for WIPO and NAF, I have read many submissions over the past five years, some very good, many bad.  The fifth thing I’d change would be to improve the quality of the submissions.  I recently spoke on UDRP advocacy at seminar hosted by DePaul Law School and the Intellectual Property Law Association of Chicago, and offered these six tips:

1. The Complaint (or Answer) should be a brief.  This is your only chance to argue your position. Treat it like a memorandum in support of a motion for preliminary injunction or summary judgment by presenting your case as an advocate. Mere notice pleading allowed in our federal system is not effective for the circumstances. 

2. The Pleading should be brief.  Although the providers’ limitations on length are largely ignored and exceeded, as a Panelist I urge you to remember that effective legal writing is brief and to the point.

3. The Pleadings should follow the Policy.  Follow the elements of the Policy in stating your position.  Remember that the Panel must address each of these issues.  Make it easy for the Panel to decide in your favor by organizing your argument around each element of the claim or defense.

4.  Support your position with proof.  You need more than bald allegations to prove rights and bad faith, and you will find an increasing number of cases in which complainants are called upon to make additional submissions or lose their claim due to lack of proof. Strong submissions present evidence by way of exhibits and short affidavits. But don’t merely shovel in piles of documents. Remember point 2.

5. Make good use of supporting authority.  Give cases to support your argument and show why the cases are relevant.  Avoid merely citing cases. There have been over 7800 reported UDRP decisions. Don’t assume the Panel knows the result and reasoning of each case you cite.  Help the Panel by providing at least a parenthetical on the cases you cite.

6. Recognize the limits of the Policy.  The Policy is designed to address cases of cybersquatting involving protectable trademarks.  It is not intended for contract disputes, garden variety infringement cases, defamation claims, or personal names that are not entitled to commercial protection. Adverse decisions are often the result of claims that obviously stretch beyond the scope of the Policy. Matters outside the scope of the Policy are better directed to appropriate civil courts.

5.  Create regionalized registrations
 
My fifth change would be to create regionalized trademark registration systems.  One of the fundamental principles of trademark law is territoriality.  Trademark rights are deemed to be specific to a single country.  Outside the United States and a handful of common law countries, civil law prevails and rights in trademarks arise from national registration, rather than use.  In our global Internet world, however, the continued reliance on national jurisdictions doesn’t fit the market reality.  Further, the cost of worldwide protection is incredibly expensive.  I recently advised a client that she could expect an average cost of about $2000 per registration.  She wanted to protect twenty marks used in a worldwide Internet business.  With about 250 jurisdictions accepting trademark registrations, the cost obviously is huge.
 
There has been some movement toward regional registries.  Of note are the Benelux registration for Belgium, Luxembourg and the Netherlands, and the CTM for the European Community.  More can and should be created.  Doing so could reduce the cost of registration and afford protection for territories that better fit regional markets that span the borders of of several countries.
 
 

Where have you gone Five by Five?

If you are wondering when I’ll have another of those great 5×5′s, wonder no more.  Beginning Monday, the series restarts with five intellectual property bloggers answering the question:  What five ways would you change IP law? 

For you non-IP people (like me), the topic seems a bit dry, but I’ve read most of the responses already and they are great!  See you then!

 

Five by Five – The IP Edition

Summer is often a slower time for me, but this year it seems like I’m getting hammered from all angles. I have six clients who all have projects to get done now. I know that being in demand is a really great problem to have as a lawyer, but I’ve been neglecting the people I really care about — my blog readers.

All kidding aside, I have some great Five by Five news. In the works are Law Professor and Law Student editions, along with a Business Book edition (answering the question, “What five business books should every lawyer read — and why?”).

Up next, however, is a Five by Five I’m really looking forward to. I’m asking five lawyers who concentrate their practices in the intellectual property (IP) fields the following question:

What five things would you change about IP law and/or practice?

The participants are:

Dennis Crouch: Patently Obvious;

Stephen Nipper: Invent Blog, f/k/a Necessity’s Progeny;

Mark Partridge: Guiding Rights;

Martin Schwimmer: The Trademark Blog; and,

Douglas Sorocco: POSHITA.

We are coordinating schedules for the posts, but look for the responses soon.

Five by Five – Technology Edition Wrapup

Well, that wraps up another edition of the Five by Five. For your linking pleasure, here are the all the links in one easy place:

The Whole Enchilada
Jeff Beard
Ron Friedmann
Kevin Heller
Dennis Kennedy
Jerry Lawson

And if you haven’t read any of the other great Five by Five editions, you can find them here, here, here, and here. Thanks to everyone for participating. I’ll have a preview of the next Five by Five before the end of next week.

Five by Five – Jerry Lawson

Here are two ideas on security and three on marketing, in no particular order:

1. Anti-Spyware Software. Most lawyers have not yet figured out that if “malware” proponents can do something like change the home page in your browser, they can also do much worse. It’s not that hard for would-be snoops to things like install keystroke loggers that send everything you type to a snoop by e-mail. Even worse, snoops might surrpetitiously install a “remote access trojan” that lets an intruder do anything on your computer that you could do, a sort of malevolent version of legitimate software like PC Anywhere. Keeping such software off your computer involves a multi-layer defense of firewalls (preferably both hardware and software), frequently updated anti-virus software, frequent patches and common sense (like avoiding opening dubious attachments, clicking on dubious URLs or visiting dubious web sites) and, probably, avoiding MS Internet Explorer. Even if you do all this, your defenses may break down. A new category of software, anti-spyware programs, will help you find out if you have suffered a breakdown and correct it if so. No single anti-spyware program catches everything. Two current favorites are Spybot Search and Destroy and Spy Sweeper.

2. Encryption Software. The ABA ethics advisory opinion that using unencrypted e-mail does not amount to a waiver of the attorney client privilege put the e-mail security issue on the back burner for many lawyers. However, the issue has definitely not gone away. Attorney client privilege is an evidentiary doctrine, governing what evidence can be admitted in court. Most e-mail snoops want information that would damage you or your clients outside any courtroom. The ABA’s opinion on attorney client privilege is irrelevant to them. Most attorneys will not need to encrypt most of their messages, but it is foolish to send highly sensitive information by e-mail without encrypting it. More information about this is available in some essays on e-mail security at Netlawtools.com.

3. Blogs. As I’ve explained in detail over the past 18 months in articles, including the Ernie the Attorney piece, the Blogs As A Disruptive Technology article and threads at Netlawblog and eLawyering.org, well-executed blogs can provide enormous benefits to certain lawyers.

4. RSS Feeds on Frequently-updated Conventional Web Sites. This makes so much sense as a way of getting your message through the clutter. It’s a new form of “push” that works, and will work even more effectively as even more people begin to use news readers.

5. RSS Feeds to Supplement/Replace E-Mail Newsletters. Though I’ve been a proponent of e-mail newsletters for lawyer marketing from the earliest days of commercial use of the Internet, the spam deluge has lessened their usefulness. RSS feeds offer a new, more effective way of getting out your message, generating new business and earning client loyalty.

Five by Five – Kevin Heller

Matt asked me about 5 new technologies, but I decided to stray and discuss 5 aspects of a single technology that lawyers have attempted to incorporate into their practices, but have generally done a pretty bad job of it. What I’m saying is that there are attorneys like Matt and Evan Schaeffer who get it, but the majority of firms that deal with the tripartite corporate relationship do not:

The web aka the internet aka WWW.

1. Where is your law firm web site? Most law firms have them, but there are still some holdouts. Even when firms do throw one up, they are massively un-navigable. The firms generally make it very difficult to find any attorney by practice area, and even harder to find where they are located or how to contact them. All I want is to be able to copy and paste their contact information into a spreadsheet, because I may want to retain them. Why frustrate your potential customers?

2. Search Engines. If you’re an attorney that wants to market yourself to new clients and your name and/or the name of your law firm is not the first result in either google or yahoo and I have to start doing “searches” and multiple searches then I become annoyed. You see, I don’t use a rolodex. I use google. If I can’t find you doing a simple search, then why should I send work your way if I can’t even find you’re phone number.

3. Email. I understand that many firms don’t want their attorneys using this new technology, but letters and faxes get lost or go unread. Send me an email to update the status of the case. Send your bills via Pony Express.

4. Knowledge Management & Distribution (via email or your corporate web site). Lunch and after hour drinks work on many corporate clients, but I’m much more interested in the accumulation of knowledge. Sending me (along with the rest of your clients) a quarterly email or when an important decision affecting our business is handed down. Post some knowledge (or at least use a hypertext link) about recent decisions or articles you’ve written to your attorney bio page is key to your acquisition of new business.

5. Associate Blogs. There are a couple examples of attorneys using content management systems for the distribution of knowledge about legal issues (see above). But outside of the anonymous blogs, there aren’t too many (any?) examples of associates at law firms posting their thoughts to the web. I think as long as they avoid discussing client sensitive topics this can only be a benefit to your firm’s marketing strategy. Unless your firm sucks to work at, that is.

Bonus: New technology not to adopt: Stop using flash. Text works fine.

Five by Five – Dennis Kennedy

There is a certain sense of resignation in the question that, as the eternal technology optimist, I’m unwilling to accept. On the other hand, lawyers are notoriously late adopters of technology. I put together my first document assembly application for drafting wills in 1990 and document assembly is still treated as a new development by many lawyers.

Technology implementation should be considered in terms of portfolio management, just as you would do with your financial investments. Diversification should be your bedrock principle, mixing together low, medium and high risks and low, medium and high returns across your “technology portfolio.” Lawyers, conservative by nature, tend to stick solely to the low risk, low return approach, which will be as devastating over the long run as will a solely low risk, low return investment policy be as it gets hammered by cycles of inflation.

“Safe” and “prudent” approaches require that you direct some of your investment, in technology or otherwise, in higher risk, innovative approaches that may pay off extraordinarily well or may cost you your shirt, but make sense in terms of a diversified portfolio. The one approach that I believe all lawyers and law firms should incorporate into their practices, but probably won’t, is the application of modern portfolio theory to technology.

I’ve provided two sets of answers, a detailed set for individual lawyers and a quick list for law firms, because many times the interests of firms and lawyers are quite different. What the two should have in common today, however, is that technology should be implemented on an “lawyers first” priority, meaning that the needs of the lawyers in their practices should be given the highest consideration, rather than the traditional “secretaries and staff first” approach or today’s common “IT Department first” approach. My opinion on this point has proven to be more controversial than I ever expected.

Five For Individual Lawyers

I have a simple three-step approach for technology decision-making for individual lawyers. First, honestly and courageously identify your existing system that will be affected by the technology you are considering and clearly spell it out in writing – no matter how wacky it may be (e.g., “certain pieces of paper are stacked on my desk, others are on a chair, others are on a credenza and others are on the floor, but I (or my secretary) usually know where everything is”). Second, ask yourself whether the technology you are considering either (1) replaces the existing system with something better or (2) improves or enhances the existing system. If the answer is “no” in both cases, either forget about the technology or admit to yourself that you will buy it only because you “want” it. Finally, if your answer is “yes,” make your decision about how the costs and benefits balance out for you.

1. Technology to Help You Manage Your Time and Priorities. How many balls do you have in the air? There is nothing that would help any lawyer more, yet gets considered less, than something that will truly help manage time and priorities. The big problem is that every one is different, so there is no single answer. In a firm setting, you will get a one-size-fits-all-that-actually-works-well-for-nobody approach. The fact is that many lawyers have their own “DayTimer” or other system. They then create (or are forced to create) a parallel system on their computer. The result: the worst of all possible worlds – multiple calendars and to do lists and ensuing chaos.

You must find a technological solution that takes the place of the paper system to have any chance of success. There are solutions that may work well for you – The MasterList, Outlook with David Allen’s Getting Things Done add-in, case management programs, mind mapping programs. This is so important that, in a firm setting, you should be willing to spend your own money to get a solution that works for you. That’s how important this issue is.

2. Technology to Help You Find Things That You Need When You Need Them. Lawyers spend a stunning proportion of their time trying to find things that are hidden in piles, files and even in the ceiling tiles. The reasons relate to the problems I mentioned in category #1, the steady stream of interruptions and crises in the average lawyer’s day, and to their own failings at personal organization. “A place for everything and everything in its place” makes perfect sense, but the notion gets blown away when people drop off files, your mail arrives and you get fifty emails all while you are on a telephone call with a crisis that has interrupted what you were in the middle of working on.

Computers where supposed to help with this, but papers and voicemail still don’t make it into our digital systems and our computer world consists of separate and unconnected “silos” of information – documents, email, bookmarks, RSS feeds, and the list goes on and on. Our document management system does not do the trick. It doesn’t cover everything and we never bothered to fill in the field that would have helped us.

Interestingly, solos and small firm lawyers may be in the best position in this area. They can use a simpler document management program like Worldox, which includes a great local search capability, or get great results from a general case management tool. Both local search engine tools and the “enterprise search” category of tools also show some promise.

3. Technology to Help You “Remember” What You Already Know When You Need to Know It. This category is different from category #2. It’s what you can focus on only after you get a handle on the “finding things” problem. Because of your experience, there are many things that you “know.” There are also many things you (or someone in your firm) have researched, found an answer for, done before, found the appropriate resource person or created something that can be reused. It might be a document. It might be a note about a client’s birthday, a recommended expert, a recent case, a good article, an important URL or some handwritten notes. Unfortunately, there’s no personal search engine for your brain yet.

We need to capture, store, be able to retrieve, and, ideally, to incorporate into our existing forms and processes all of this knowledge and know-how. The phrase to remember is “personal knowledge management.” Unfortunately, the key word is “personal.” Again, this something we all do differently and there’s no single solution.

However, we need to work on finding a tool or set of tool. I advocate a “do-it-yourself knowledge management” approach. Start finding all of the tools you already have that you can use. You can use more features of some of the tools I mention in category #2 as a start. If you have document assembly applications, you can begin to incorporate experience, expertise and knowledge into your forms on a routine basis. In the litigation context, CaseMap is a perfect tool for getting results in this area. Another example Outlook 2003 users might consider is the suite of tools included in the “Business Contact Manager” component of Outlook.

4. Technology to Help Your Clients in Ways They Will Appreciate. One of my pet topics is “client-driven technology.” Lawyers and law firms are notorious for not using (and, in some cases, refusing to use) software that is compatible with what their clients use. I’ve talked with many people who have complained vocally about their lawyers sending them documents in WordPerfect or in a format they can’t use. In one case that I remember especially well, the complaint ended with this: “They are working for us and they should give us the documents in the format we use.” It’s hard to argue with that point.

Other stories abound about lawyers unable to use email, create PDF files or pronounce the word “Pentium” correctly. To make the situation worse, your business clients already assume that you have state of the art technology. When they say that they think you can create their agreements with a push of the button, they really mean that. I’ve seen lawyers who will say “yes, we can do that” to clients on legal issues they have never heard of tell clients that there is “no way” they can adopt a technology that would help the client. I’ve seen that even when the client has offered to pay for the new technology.

This category is the easiest category to make positive changes and see positive benefits. The first step is preposterously easy. Ask your clients about what they use and their preferred ways of working with you. Legal tech consultant Adriana Linares has a simple technology survey that can be made part of the engagement letter or the client intake process. The second step is to evaluate your current technology and any contemplated changes in light of its “friendliness” to clients. The third step is to do a little research into all of the “low hanging fruit” projects you can do right now. Take the lead on providing your clients with metadata scrubbing guidelines and tools or ways to address security issues. Use extranets, deal rooms and electronic workspaces where you can clearly save your clients money. How many clients today tell their friends, “My lawyer just came up with a great new way for me to save money”? Consider electronic billing, electronic closing binders in PDF, and the new ReportBooks in CaseMap 5. It’s all part of showing clients that you care about their businesses and not just yours.

5. Technology to Help You Practice Law in the Way You’ve Always Envisioned. If you talked the best students at the best law schools who want to work for the best litigation firms, you probably would not find a single one whose vision of the practice of law includes finding themselves in a rodent-infested warehouse full of cardboard boxes of old files stamping numbers on pieces of paper for twelve hours a day for months at a time. Yet, that’s where they might find themselves. I think the vision would be more that they are using sophisticated search and visualization tools on a laptop computer to locate the fact no one else could have found that wins the case and instant partnership for them.

That’s one thing. What’s worse, though, is seeing the lawyers who have reached the holy grail of partnership only to find that they work harder and longer hours, have more pressures, and find that they have little, if any, enjoyment about what they do. Tom Davenport, a knowledge management expert, has written that we may now spend 40% of our work day fighting against the tools that were implemented to help us be more productive. In any law firm, there will be a lot of hardware, software and systems that are far more burden than benefit. Almost everyone learns to live with that, to their detriment.

A far better approach is to focus your technological change on ways to reduce your pain and increase both your ability and your time to do the work you love. There are endless ways to do this. For me, the answer might be a blog that allows me to talk about a subject I like and attract others interested in the same thing. For you, it might be a way to automate a time-consuming and tedious process so that you can spend more time talking with your clients and helping them do what they want rather than trying to talk them into taking approaches that better fit your existing forms. For someone else, it might be to get the Tablet PC that you know would really help you out. For others, it might be finding a way to automate the routine work you are doing for a great client and free up the time to do much higher-level work.

There’s never been a time where we have had more tools and capabilities available to us that could enable us to spend more time doing the things that brought us to the practice of law and the things we love the most. I don’t want to be one of those people who said I could have done that, but I didn’t. As the quote goes, “some ask why, but I ask why not?” I’m one the “why not” people.

A Quick Five for Law Firms.

1. Client-retaining Technologies. Compatible software and systems; extranets; electronic billing; document assembly applications; online education; creative file management; allowing clients to track their projects.

2. Client-pleasing Technologies. Technology that reduces cost or streamlines process and allows you to try alternative billing methods; telling clients about solutions that have worked for you that might work for them; collaborative projects where you adapt to their technologies; automated delivery of relevant news and developments; automating processes requiring them to pay for the same number of hours over and over again; coming to clients with HIPAA, Sarbanes Oxley and other solutions rather than waiting for clients to ask for them.

3. Client-focused Technologies. Technologies that make it easy for clients to work with you; extranets or other applications designed with clients in mind; facilitating access to your IT staff to resolve problems; fixing technology and communications issues; taking the initiative in technology projects with clients; handling document filing and management issue or tracking cases; IP filings or other matters; getting bills to clients in a way that fits their accounting systems.

4. Client-producing Technologies. Websites, blogs and feeds; creative uses of extranets for training and other purposes; business intelligence and customer relationship management tools; innovative billing arrangements enabled by technology; winning a high-profile case using state-of-the-art presentation and other litigation technologies; not sending your lawyers out to clients with aging technology.

5. Keeping Your Best People Technologies. Willingness to take individual approaches; generous replacement and acquisition policies for new technology; willingness to allow test projects; listening to young lawyers; rewarding creativity and results more than raw numbers of hours; helping people learn to use software better; resisting the urge to say “no” to every request for new technology; getting technology into the hands of the people who are most likely to use it best; give your people the tools they need, the respect they need and a little room so that they can fly.


The Product List.

I got to thinking that Matt might have meant products. Here are five that should be on every lawyer’s list in today’s legal world.

1. CaseMap 5 (if you are a litigator).
2. Microsoft Office 2003.
3. Adobe Acrobat 6.
4. Tablet PC (or notebook) with WiFi and OneNote.
5. FeedDemon or news aggregator of choice.

Five by Five – Ron Friedmann

Choosing specific technologies is less important than how you think about using technology:

1.  Learn more about what you already have. Most lawyers have more software than they already know how to use effectively. And I am not talking about esoteric stuff either. Some examples:

Spreadsheets: Learn at least enough about spreadsheets to know when, if you can’t use one on your own, you should get someone to use one for you.

Presentations: PowerPoint is how many business people communicate. Learn how to use presentation software effectively and at least be aware of some of the more advanced features (e.g., how to use “animation” so that bullets appear one at a time).

Task Management: Figure out how to use the features of your personal information software (e.g., Outlook) to manage and track your many tasks.

2.  Consciously develop best practices and figure out where technology fits. It’s one thing to know your substantive area of law, another to know how to practice effectively. Good doctors read medical journals to learn the latest treatments. The law has no equivalent of clinical trials to establish what “works best.” The burden is therefore on you to consider your own “processes,” everything from when, where, and why you save documents and information to how you deal with clients to how you keep time and bill. Examine how you work and compare it to other practitioners and incorporate technology as appropriate. For example, if you are a litigator, be sure you understand the legal and technology issues of digital discovery and various approaches to managing it.

3.  Adopt a new personal productivity tool. Once you do examine how you work, you will undoubtedly see ways to improve your own productivity. My two current favorite personal productivity tools are full-text search software for my hard drive and Microsoft OneNote. Even if you are highly organized, for example, putting all e-mail messages and documents in hierarchically nested folders, you will have trouble finding your own work by browsing folders only. You need to use a search tool; a product called X1 has received many good reviews. For lawyers in large firms, lobby your firm to buy a robust, enterprise-wide search engine. Separately, OneNote makes outlining very easy and it’s a great place to store information – client, administrative, and personal – that otherwise tends not to be stored or gets lost across multiple locations. See my blog post on OneNote for more details.

 

4.  Use technology to connect to your clients. You are in a service business. Technology can help you connect with and serve your clients; your choices are many, from blogs to extranets to expert systems. I think that one of the least discussed but perhaps most useful choice is a Web-based, desktop and application sharing tool. Provide a higher level of service by working with clients interactively, sharing files using tools such as Webex or LiveMeeting. Large firms can license these products for the enterprise. Smaller firms can “pay as you go” with ASPs (see, for example, Comminique). Consider using this software to offer Webinars to your clients – it’s a great way to market yourself.

 

5.  Be curious and open-minded. Technology changes. Business changes. Your own needs change. Read the Wall Street Journal, Business Week, or New York Times technology coverage to learn what’s new. Talk to techie friends and ask for suggestions. Periodically, check out something you read or hear about and see if it will work for you. Invest some time occasionally to learn new software.

Five by Five – Jeff Beard

 When you get me started on a topic like this, I can’t just stop at five, since there is much more available that lawyers should investigate for their clients’ needs as well as their own:

1.  Using RSS Readers (News Aggregators)

On a daily or weekly basis, how would you like to stay up to date on a hundred or more different web sites and blogs in under an hour, all without having to surf individual sites until your mouse pad wears out?

I’m not exaggerating. Many mainstream news sites and blogs offer RSS feeds (Really Simple Syndication or Rich Site Summary). Much has been said about this topic, so I won’t go into the technical details. Suffice it to say, it allows people to read more content in less time and with less effort than manually visiting each site on their daily or weekly mental list. It’s a convenience and time management approach to keeping abreast of online content, both internally within an organization as well as on the Internet. Many RSS Readers have a search feature so you can search for specific topics across your selected sites.

Adding RSS feeds to you own site gives you additional reach to many more people who would not otherwise have given your site the time of day. This translates into more visitors, increased hits on your site, and potentially more business and referrals. And if more web site and blog operators end up linking to your site, you may just get higher Google rankings too.

With all due respect to legal publishers, if you’ve ever watched the movie, “Men in Black”, I consider blawgs (legal blogs) to be the “Hot Sheets” of the legal world. To adapt Tommy Lee Jones’ line: “Best damn legal practice commentary on the planet. But hey, go ahead, read the New York Times if you want. They get lucky sometimes.” RSS readers enable us to increase our overall awareness in a more efficient manner.

You’ll note that I’m consciously excluding blogs from my list, in the context of my not recommending that all lawyers publish blogs. Why? Because the question posed relates to all (or at least most) lawyers. While using an RSS reader to consume information is something everyone can do, even the technophobes, blogging itself is a bit different.

So although I could write volumes extolling the many benefits of blogging, I agree with fellow blawger Jerry Lawson when he stated that:

“Blogs have enormous potential, but it’s important to keep the phenomenon in perspective. I think we’re going to see another instance of the ‘80/20 Rule.’ It will probably shake out something like this: About 80% of all lawyer web logs will fail. The remaining 20% will have greater or lesser degrees of success, mostly modest. One per cent or so, maybe less, will be extremely successful. However, some of that 1% will be so successful that they will make their owners very, very glad they got into the blogging game.”

Thus I believe blogging (both in front and behind the firewall) has many benefits relating to personal KM, collaboration, best practices, marketing, and many more. But unless the people doing the blogging truly “get it” and invest the appropriate time commitment and mindset, I’m with Jerry. I believe they will be disappointed from what has been hyped on the subject.

There are also a slew of collaborative web tools available. Some lawyers will “get it” and use them with other attorneys and clients, some won’t get it at all, and probably many more will keep wishing for it, but not implement anything due to cost vs. ROI concerns.

2.  Using Smarter E-Mail Tools

E-mail used to be a great tool, wasn’t it? It beat faxing for speed without long distance charges, and you ended up with an electronic document that was actually readable and could be reprinted if you lost the hardcopy. We got to stay in touch with friends, colleagues, clients, and could access it from a variety of methods. Sounds great, right?

Then came e-mail newsletters, listservs, a flood of internal “Does anyone know where the Smith file is?” queries, and worst of all, spam.

Thus e-mail has quickly devolved into a free-for-all of information glut, requiring spam filters, e-mail filter rules, and zillions of folders to sort, spindle, and archive all those seemingly important pieces of information. There was a lack of good tools included in the major e-mail packages to actually have a way to manage and find things without spending a lot of time trying to manually create organizational tools (e.g., folders and mail filter rules) and concocting creative search strings, hoping that you recalled the exact phrasing of the e-mail just right.

Worst of all, due to spam filters, we now have to worry that our message was actually seen by the recipient, thus forcing some to have to call the recipient to make sure it made it past her spam filters.

Is e-mail broken? You bet. However, it’s still an effective tool if you can get it under control. That’s exactly what new services or programs are trying to accomplish:

Gmail is Google’s new webmail service, with 1GB of storage, but without the need for using e-mail folders due to the ability to do a Google search within your e-mail.

Bloomba is an e-mail client with very fast search speeds and a PIM (Personal Information Manager), so you can instantly search all e-mail, attachments, calendar and contacts, and schedule appointments with colleagues remotely over the web. Bloomba is smart enough to know they can’t take on Outlook directly, so they are going after the smaller business and SOHO markets.

Nelson E-mail Organizer, or NEO, is a search or indexer add-on for Outlook, which offers a slew of additional e-mail management tools, including fast searching, categorizing, saved searches, search on conversation, etc.

New technologies in this category are on the horizon, as others are exploring the concept of meta-mail, the term for the extension of e-mail into a broader set of tools that can manage processes and the user’s attention, instead of just information and content.

While there’s a lot of hype in this space, it bears watching.

3.  Spreadsheets – Financial, Trend, and Fact Analysis

Okay, so perhaps this isn’t a “new” technology, but there are numerous uses for spreadsheets that most lawyers just don’t realize. Besides number crunching, they’re great for creating charts, parsing data between different programs, spotting issues, and analyzing trends. I’ve found many attorneys tend to be “math adverse” (but ironically not “math challenged”, as they certainly dive into every detail of their yearly compensation and bonus plans). So what’s holding them back from using spreadsheets? In a nutshell, ease of use. Spreadsheets can be daunting at first glance. However, many overlook some of the wizards and pre-created templates that are included with various spreadsheet programs like Excel. Other programs exist to create spreadsheet-like “what if” comparisons, especially for tax and financial planning.

Savvy litigators are already using spreadsheets in a brand new way – analyzing facts and issues. CaseMap is a perfect example of an innovative use of a spreadsheet interface. In any case, but in particularly complex ones, mastery of the facts is a great advantage. Tie it together with a good timeline chart generator such as TimeMap, and you’ve got a powerful set of tools that doesn’t take an MIT grad to understand them.

Surprisingly, despite the above, I still see that many attorneys are not using these tools, which is why I think it’s a technology that many should incorporate into their practices, but probably won’t.

4.  Alternative Billing Practices and Processes

This isn’t a technology per se, but savvy technology implementation sure helps in a number of ways to make this happen. Used properly, things like document assembly and matter management allow one to generate repetitive work in far less time than without it. And that provides the time flexibility to consider non-hourly billing options, including value-based, task-based, and flat rate billing options.

Clients like choices, and particularly, the ability to know exactly what a legal matter is going to cost them. The billable hour alone falls short in meeting this expectation. Over the years, I’ve had a number of business people and governmental attorneys tell me that they need the ability to set a monthly or yearly budget for legal fees, and many of them have sought out attorneys and firms who were willing to provide this level of predictability combined with competent representation.

5.  Wi-Fi Access and Laptops

There’s a certain freedom and creativity that wireless connections provide. I wrote this post on my laptop at home on my Wi-Fi network while doing a number of other things that relaxed me and got the creative juices flowing: Sitting out on the deck, having a beer, later watching a movie, or listening to Internet radio stations playing exactly the kind of music I liked (with no commercials I might add), being accessible to my wife and kids, and so forth. In other words, I wasn’t chained to my desk and PC, and I had a fast Internet connection should I need to run a Google search on a whim.

But Wi-Fi isn’t just about you, even though it’s incredibly useful while traveling. It’s also a great resource to provide to visiting guests and clients, especially when tied to your office’s broadband connection. While you certainly don’t want to let them into your regular office network for security reasons, a Wi-Fi network can be crafted to allow guest Internet access in a DMZ (DeMilitarized Zone) or another area of your network that is separate from your sensitive areas. Which brings me to the next topic…

6.  Wireless Security

It’s shocking and downright negligent that the vast majority of private wireless networks are left completely insecure. Many people just take the wireless routers and access points out of the box, plug in their Internet connection and PC’s and start surfing. Newer Wi-Fi devices include much more secure technologies such as WPA (Wi-Fi Protected Access) encryption, TKIP (Temporal Key Integrity Protocol, which provides a method for automatically rotating the security keys of your wireless network – very cool), and AES (Advanced Encryption Standard, a much more robust type of encryption). It’s definitely an area ripe with acronyms, jargon and technical alphabet soup, but it’s careless to ignore them completely.

When enabled, and especially when used in conjunction with other security measures such as MAC address filtering (i.e., limiting network connections to specific network cards), these newer technologies help make wireless networks more secure. Let’s face it, if a wardriver or hacker is not targeting you or your company specifically, then an appropriately encrypted, reasonably protected Wi-Fi network is going to require them to take much more time to hack than does your neighbors’ wide-open network. Unless they’re looking for a challenge, they’re going to move on to easier pickings.

Even though many wireless routers have easy-to-use browser based configuration screens, and it’s fairly easy to conclude that most people don’t have the necessary understanding of networking and wireless security to secure them properly. Luckily, a number of wireless manufacturers’ web sites include tips for securing their network, and folks like me have written things like “Wireless Networking Best Practices”. So you don’t have to be a networking guru to harden your Wi-Fi network. However, if it’s still Greek, I’ve found that some of the wireless manufacturers’ tech support people to be quite helpful in this regard for the how-to’s. And if all fails, you’re better off hiring someone knowledgeable to do this for you. Don’t just leave it wide open for convenience.

Lastly, don’t forget about installing personal firewalls, antivirus, and anti-spyware programs for essential protection.

7.  Metadata Cleaners

More and more lawyers tend to know at least a little something about metadata. Yet only some are using metadata cleaners or using alternative measures for minimizing the risk of having embedded metadata being used against them. In this era of electronic discovery, that’s just an accident waiting to happen. Common metadata in MS Word documents show who authored it, how many minutes it’s been open in editing mode, the drive letter and directory path where it’s stored, and potentially the prior revisions and changes, among other things.

Thus I feel it’s a best practice to implement a method for removing the metadata from one’s documents, especially before sending them to the outside world, or even to another internal department. Generally, the cost per person for a good metadata cleaner is far, far, far less than the time, effort, embarrassment, and other costs and risks associated with leaving metadata unchecked in your electronic files.

8.  Flash Drives

Call them thumb drives, key drives, flash drives, USB drives, or whatever, these tiny storage devices are easy to use and therefore a hot technology. In newer versions of Windows, you just plug them in and they’re instantly mounted as a new drive letter, just like a hard drive. Some come with encryption features for added privacy, and new features and faster read/write speeds are popping up all the time.

Regardless of whether you’re a mobile or office worker, and whether or not you have a floppy drive, these devices are much smaller than floppies and are perfect for transferring files between home and work, between laptops at meetings, and so on. Prices have plummeted so much that the smaller capacities can be had for as little as $10-$20. Some manufacturers and web sites have even provided tools and drivers to make them bootable as part of one’s emergency recovery tools.

The latest trend in flash drives is to provide the mobile user with a portable replica of their office PC’s data, look, and feel when working on a completely different PC in a different location. For instance, I’ve come across two emerging products that claim to do this: M-System’s Xkey 2.0, and Powerhouse Technologies Group’s Migo. Obviously, it bears watching to see if either truly delivers on all the promises. One concern it that when working from an untrusted PC (e.g., public kiosk, hotel business center PC, etc.), these solutions need to incorporate a method for scanning and ascertaining if that PC is free from malware including keyloggers, spyware, etc., before typing in anything confidential. Otherwise, one can unwittingly provide the perpetrators with sensitive information that could lead to many kinds of problems.

9.  ActiveWords

How much time do you waste doing repetitive task in Windows? Think of repetitive typing of common information, clicking on Start, Programs, Whatever, ad nauseum. ActiveWords is an interesting type of Windows macro program that allows you to automate a variety of tasks and assign a word to it. Typing the word nearly anywhere within Windows or a running program launches the macro to do your work for you.

Much of what we do everyday is repetitive in some fashion, so when looking for personal productivity boosts, macro programs are often a nice solution if you can make them work for you. The problem with creating macros the old-fashioned way is that one needed to be proficient in a macro programming language, such as VBA (Virtual Basic for Applications). I like to look for things that are simpler, yet deliver.

10.  Tablet PCs with Microsoft OneNote or Similar Application

Tablet PCs have been available for a couple of years, but there’s two particular combinations I find compelling with an application such as Microsoft’s OneNote: The first is a “convertible” – a tablet PC which can be switched between a typical laptop screen/keyboard layout to a slate-like tablet. This way it can do double-duty between serving as a regular PC for applications requiring mousing and keyboard entry. However, for note-taking, something that attorneys do a lot, the conversion to a digital pad of paper is useful and compelling.

Programs like OneNote add some great features that allow you to take notes more in your own free form style, rather than have to conform to more rigid tools such as Word and outliners. A key feature is the ability to take your handwritten notes and convert them into actual text – this makes it a lot easier to search and pass them along in e-mail.

The other format I’d like, but have yet to see, is a “slate” (keyboardless) tablet PC that’s closer in size to a thin softbound book. It’s smaller than a normal 8 ½ x 11” pad of paper, yet larger than a paperback. Notice my reference to good ol’ paper – it’s critical because most people still work with paper and this human factor needs to be embraced for it to succeed. The idea is to have something small, thin, and lightweight to be your digital notepad of paper that never forgets. Smaller size makes it easier to carry around so you’ll actually use it more. For instance, if I took notes at a meeting 6 months ago, I want to be able to search for and pull it up in real-time at a critical meeting. Likewise, if I have a brainstorm at an odd time or in transit, I want to be able to write it down for further refinement later, without having to carry around a 20+ lb. bulging laptop bag. I consider this second category to be the ultimate genetic splicing between PDA, paper, and laptop – if it happens.

Now add Wi-Fi to these tablets, and you have an indispensable personal productivity tool to recall everything you’ve written coupled with the ability to get to the Internet and an organization’s network for accessing, saving, or disseminating additional information on the fly without having the need for anyone to type up your handwritten notes. The main thing I keep hearing from organizations is that the perceived cost premium and lack of compelling tablet applications is holding back wider adoption in the legal market. Truth be told, the price gap is narrowing. I also wouldn’t be surprised to see more attorneys interested if someone who understands their needs would just present them with the right hardware/software combination. Thus OneNote has possibilities.

 

Five by Five – Technology Edition

The next edition of the Five by Five debuts today. Five all-star panelists answer the following question:

What five new technologies should all lawyers incorpoate into their practices, but probably won’t?

This edition’s experts are:

Jeff Beard – Attorney and Legal Services IT Manager with Caterpillar, Inc. Jeff blogs at LawTech Guru, and is a frequent national author and presenter on legal technology and practice management topics.

Ron Friedmann – Lawyer and legal technology expert. He is the founder of Prism Legal Consulting, Inc. and blogs about “Strategic Legal Technology” here.

Kevin Heller – Attorney and author of the Tech Law Advisor and Kevin Esq. weblogs. Kevin also is a contributor to the The Blawg Channel.

Jerry Lawson – Author of The Complete Internet Handbook for Lawyers and blogger extraordinaire, authoring or contributing to eLawyer Blog, IECJournal.org, Fedlawyerguy.org, Chesslinks Worldwide, and the Netlawblog and Netlawtools sites.

Dennis Kennedy – Attorney and legal technologist. Dennis is a prolific writer and speaker. Dennis blogs at the self-titled Dennis Kennedy Blog, and is one of the founding members of The Blawg Channel.

This should be fun, so here we go.

Five by Five – Entrepreneur Edition Recap

Well, the Entrepreneur Edition of the Five by Five is done. Absolutely great advice for lawyers (and other service professionals) about how to cater to entrepreneurial clients. All of the posts are here in one spot.

Next week (or thereabouts) we’ll have five legal technology gurus answer the following question: What five new technologies should all lawyers incorporate into their practices, but probably won’t?

Five by Five – Barry Moltz

The final installment of the Entrepreneur’s Edition of the Five by Five comes from Barry Moltz, author of You Need To Be A Little Crazy: The Truth About Starting and Growing Your Business who also blogs about entrepreneurism and his book. Barry’s finishes up the Five by Five with:

1. Don’t just keep track of the hours you spend with me, think value. There is nothing that gets me more angry than receiving an bill from an attorney for a tenth of an hour. When an attorney does this I think they are more interested in their time than the value they can bring to my business. I would rather have the attorney make their rate higher and not charge me for these short phone calls. Although I know all the attorney has to sell is their time, please disguise it a bit better. It makes me feel better.

2. Stop charging me for all those copies you make or faxes you send. There isn’t another business on earth that charges me to make copies of my documents at 5- 25 cents a page or send a fax at $1.00 to $5.00 a page. I always kid my best friend who is a personal injury attorney that if he wants to make some money today, all he has to do is take out a file and start copying! Maybe, I am just jealous and wish I could do this in my consulting business. Again, hide this in your hourly rate. To me, this just seems like you are piling on! These services are a cost of doing business. Treat it that way.

3. Insist that I have all the correct agreements and legal documents. Entrepreneurs are famous for being sloppy on operating and partner agreements. Be ruthless with them and help them think through ALL the issues that could happen. Insist that these are update and in place.

4. Act as a “Lovecat” and connect me to your other clients that may be able to help my business as a vendor or customer. Entrepreneurs need your help referring them to other people that can use their services or products. You can be a key conduit. Try to make it happen. Likewise, maybe you other businesses that can help them as a vendor. Make the call and connect your two clients.

5. Counsel them not to sue every person that angers them. Tell them how expensive it will be. Help them understand that trying to mediate through issues is much better than going to court. In the end, at the court, the only one that usually wins in an attorney.

Five by Five – Businesspundit

The fourth contributor to this the Entrepreneur Edition of the Five by Five is Rob, the anonymous Businesspundit. Rob writes one of my favorite blogs on entrepreneurship and business issues. Because he writes anonymously, he pulls no punches. His Five:

1. Think customer service. Lawyers are in the customer service business, and they should act like it. If clients aren’t happy, they shouldn’t have to pay full freight.

2. Change the way you bill. I’d rather get away from this billable hour nonsense.

3. Technology, technology, technology. Why do lawyers generate so much paperwork? It’s 2004.

4. Understand my business. I get way too many cookie cutter answers from lawyers.

5. Help me plan for the future. Most lawyers I have dealt with are great at writing and analyzing contracts, but I need more. Help me think about the way my strategies will play out from a legal perspective. Help me understand what issues and challenges I may face, and the best way to deal with them,

Five by Five – Jon Strande

These responses come from Jon Strande, writer of the Business Evolutionist blog and author of the e-book, “The Cash Register Principle.”

1. Form partnerships with other service professionals and offer entire solutions. For instance, I think the idea of being able to “plug in” to a business backbone would be cool. If I’m starting a small business, there are whole series of things that I need to do, file paperwork with the state, getting a tax-id number, getting some accounting software set up, printing business cards, etc, etc, etc. Imagine bringing together a bunch of preferred business partners together and offering a turn-key business formation service. The businesses in the “partnership” could chip in and pay for a concierge/liaison that would hold the hand of the business owner during the process. In addition to that, make the billing for the “service” simple… seamless across all the offerings.

2. Continue that service beyond the business formation stuff. That business concierge should be someone to facilitate anything at any time for the business owner. My point in this is that if you’re lawyer (or banker, or accountant, or whatever) you’re just a silo, you might have something to offer the time-starved entrepreneur, but you’re just a piece of the puzzle. You view the law as super important, and it is, but think about what the entrepreneur wants/needs – TO SELL. Not get burdened with legal stuff or anything else.

3. Play the role of connector. As an attorney, you have tons of contacts in various lines of business, facilitate introductions of clients that might be able to help each other. If you have a marketing firm as a client, introduce them to other clients that could use their services. If you want more business from someone, help them be successful, they’ll remember you for it and most people will repay that kindness by telling others about you.

4. Automate stuff that you can automate. Not to sell what an attorney does short, but several of the documents that you generate for clients are based on templates (be honest here), why not make that stuff available online, in a protected area, for existing clients. If I need a new contract for something at 8:30 at night, let me go online and create it instead of having to wait until 8:30 the next morning when you get in the office. Not all of the documents you produce can be automated, but for the ones that can be, automate them. Make them available to me when I need them. Add the simple stuff as well. Let me search other information, ask questions, etc…

5. Last, but certainly not least, remember that you’re in the people business. Treating people well, regardless of what business you’re in, is THE most important thing you can do… obviously.

Five by Five – Michael Cage

The next contributor to the Entrepreneur Edition of the Five by Five is Michael Cage.  Michael writes about “Small Business Success, Marketing, and Entrepreneurship” at his Entrepreneurslife.com blog.  Here are Michael’s responses:

I was thrilled when Matt asked my to contribute to this edition of Five-By-Five. As a lifelong, parallel entrepreneur I’ve had more than my share of dealings with attorneys. My role has been as client, adversary, and occasional small business-to-business marketing “hired gun.”  I’ve often found myself thinking, “finding a great attorney who understands my business just shouldn’t be so hard.” Alas, it is. And, I’m still looking. Hopefully my answers will get you thinking at a minimum, and jump-start some changes at best. I haven’t pulled any punches, nor have I been polite. I hope you’ll appreciate the intention behind this: I’m telling you what entrepreneurs think, but often don’t say, as they are walking out your door.

1. Don’t make the mistake of thinking entrepreneurs know all you can do for them. It took me years and numerous businesses to fully appreciate the ways a good attorney could help me, and I’m not alone. This is both a disservice to your clients and a profit-killer for your business, and it can be traced back to the general fear and total misunderstanding most attorneys have about marketing. Good marketing does more than bring clients in the door, though that is the standard by which it should be judged. It also teaches and educates about exactly how you can help businesses, why you are uniquely qualified to do so, and the dangers lurking around the corner if you are consulted you too late. How many times do you say, “If you had only seen me sooner?” This should not happen, and, frankly, you have only yourself to blame when it does. Get off the high horse and embrace marketing as a way to help both your practice and your clients.

2. I’m not hiring you to bring the apocalypse. All too often entrepreneurs see attorneys as the place where deals go to die. A close friend of mine, a millionaire many times over, once completed the negotiations for a substantial deal. He said the next step was to take it to his attorney, where he’d have to fight and argue for hours to get the deal OK’d. It shouldn’t have to be that way. Yes, I know your job is to keep me and my business out of trouble. I do appreciate it. But you can’t lose sight of the fact that, ultimately, entrepreneurs hire you to keep their businesses out of trouble AND make it possible to grow. When proposed deals and contracts do not make your first cut; pro-actively give an alternative way to make it work.  Realize entrepreneurs are driven by questions like, “How can we make this happen?” instead of “How many ways won’t this work?” Cut the cynicism off, and work with your clients in a pro-active and positive way to make the deals happen. Then go from being perceived as “deal killers” to being known for understanding entrepreneurs and having the disposition to work with them.

3. Small business owners want specialists. Small business owners believe their business is unique. There is some, though not much, validity to the belief. The important thing to realize is that if you take the time to become familiar enough with your clients’ businesses to grasp the unique aspects, you will be rewarded with a unique selling proposition no generalist competitor can touch.  The reverse is also true. If you do NOT take the time to understand what makes your client businesses tick, they will defect to the first “more specialized” attorney who comes along. Specialization can be as simple as have a specific set of marketing campaigns for a specific type of business. I’ve seen response increase by as much as 72% by taking a generic marketing piece and making a single change — calling out a specific type of business in the headline and delivering it to a targeted audience of those businesses.

4. Spend less time focusing on your peers and more time focusing on your clients. I’m fortunate to count three extremely good, prominent attorneys among my close friends and associates. All three are master marketers, and understand how their clients want to be communicated with and marketed to. They share another commonality. All three have been brought up on downright silly ethics charges because of their marketing. The real reason? Up-tight peers who adhere to an antiquated set of “marketing rules” that benefit only those lazy, apathetic, and fearful of competition. As an entrepreneur, an attorney afraid of competition is of no use to me. As a potential client, I want comparative advertising allowed, I most definitely want to see testimonials in advertising, and I sure as heck would love to see an attorney use a guarantee. Taking it a step further and shifting gears, I’ve yet to meet a successful business owner of ANY kind who spends more time worrying about what their peers do than what their clients want. Loosen the death grip on marketing standards, and everyone who is worth their business license will benefit. (Those who aren’t? They die or go work for someone else. As it should be.)

5. Entrepreneurs WANT to be marketed to. Once we do business, do not take me for granted or cease communicating with me. Thinking I will come back to you or refer business when I haven’t heard a peep from you or your office in months is a very poor assumption to make. At the same time, don’t mail off a newsletter produced outside of your practice and think it’ll do for maintaining our relationship. It won’t. If you want me as a client and a great source of referrals, you had better show you value my business by communicating with me on *at least* a monthly basis. The more relevant the content is to my business the better. And, above all, do not commit the cardinal marketing sin of being boring. Throw the tiresome, professional voice out the window and really communicate to me. Person to person. Just like you would a close friend who asked for your advice over a couple of whiskeys at the local bar.  Remember, people complain endlessly about big, dumb corporations. Yet most professional service providers, and almost all attorneys, go out of their way to sound just like them. Take the time to learn how your clients like being communicated with, and the language they like to use.

I’ll leave you with this final thought: Be bold. If all else fails, observe what your colleagues are doing in terms of marketing and service delivery and do the opposite. Your peers might snipe at you, but your clients will love you. Think about it

Five by Five – Professor Jeffrey R. Cornwall

First up for this edition of the Five by Five is Professor Jeffrey R. Cornwall, who holds the Jack C. Massey Chair of Entrepreneurship at Belmont University. Professor Cornwall has written four books on entrepreneurship and writes The Entrepreneurial Mind weblog. From the Professor:

1. “Invest” in your Clients. By this, I don’t mean that attorneys should literally become equity investors in the entrepreneurial companies with which they work. But, they may need to “eat” much of what would normally be considered billable hours when first working with a start-up company. During the time before the business actually starts creating revenues through the early stages of business development is when many key legal issues need to be addressed. Shareholder agreements, patents, financing agreements, leases, employment contracts, etc. all require careful business and legal consideration. Yet, many entrepreneurs are strapped for cash. By offering heavily discounted fixed prices for such services, or by discounting hours billed, the attorney can actually make a major contribution to the early success of the business. The attorney will reap the benefits of this in the longer term as the company grows and its cash flows become positive.

2. Talk openly about fee structure for any project and work within their budget. Even as a business grows cash flow and budgets can remain fairly restrictive. Work with your entrepreneur clients to give them the most value for what they can afford. Offer them a fixed project cost rather than open ended hourly billing.

3. Develop a long-term legal plan. Work with your client to develop a long-term legal plan so they can plan for legal expenses that they will need to consider into the future.

4. Help your clients to make you more efficient in your work for them. Let them prepare their own drafts on documents. This can save a lot of money and will result in documents that better reflect their business and their strategies. Encourage them to organize their meetings with you to help make each meeting more efficient by covering several issues at once.

5. Help them to understand your world. The world of law is where you live. However, it is a scary, foreign land to most entrepreneurs. Help to translate what you are addressing with them into language they will understand. It is not the precise and technical way of dealing with clients in which most of you are trained, but it will lead to better outcomes for all concerned

Five by Five – The Entrepreneurs

After a brief hiatus, this Entrepreneurial Edition of the Five by Five answers the following question:

What five things can lawyers do to better serve entrepreneurs and their businesses?

I’ll post each response over the next few days. As always, I welcome your comments. For the lawyers reading this, give me your ideas how you better serve your entrepreneurial clients. For the entrepreneurs, let me know how your lawyers should work for you. Also, anybody with ideas on a Five by Five they’d like to see, let me know.

Five by Five – Entrepreneur Edition

I’ve been a bit quiet about upcoming Five by Five’s, but I have some really cool news to report, and some more in the wings. First, the bad news: because it is really difficult to keep the feature going every week, I’m going to spread them out just a bit. The great news is that I’ve lined up the participants in the next Five by Five. The feature will run on July 19 and the question will be:

What five things can lawyers do to better serve entrepreneurs and their businesses?

The All-Star Cast:

Rob a/k/a BusinessPundit.

Michael Cage – Who writes about “Small Business Success, Marketing, and Entrepreneurship” at his Entrepreneurslife.com blog.


Professor Jeffrey Cornwall
– Professor of Entrepreneurship at Belmont University and writer of The Entrepreneurial Mind.

Jon Strande – Writer of the Business Evolutionist blog and author of the e-book, “The Cash Register Principle.”

Barry Moltz – Author of “You Need to Be a Little Crazy” who blogs at his Barry Blog.

To say I’m excited about this upcoming edition is an understatement. I continue to be amazed at the wonderful people who agree to participate in my little Q&A.

Coming soon: Five Legal Technologists answer the question, “What five new technologies should all lawyers incorporate into their practices, but probably won’t?”

Five by Five – Fred Faulkner

These Five ideas come from Fred Faulkner, a blogger I met at the ABA Techshow blogger’s dinner.  Fred works for the ABA and maintains the ABA TECHSHOW site

While I’m not a lawyer, my past three years working in the legal industry has led me to these observations about the practice of law and what needs to change for it to survive for the future.  These are in no particular order, but are somewhat all related.

1) Embrace Technology –
Get with the program folks.  There are a plethora of technological tools that will help you not only practice law better, but give you more time to have that balanced life everyone is talking about.  Those who have found the balance have learned to leverage technology to give them the freedom they need to get away from the office. 

2) Loose the Billable Hour -
It may have been a profitable way of doing business in the past, but there are proven ways that show lawyers can get a better ROI on their time and investment in their practice by <em>not</em> being in a billable hour environment. 

3) Understand That Practicing Law is Not Any Different Than a Regular Business -
It doesn’t matter if you are a solo, small firm, or a multi-national firm, you still need to understand overhead, payroll, management, administration, cost-per-employee, and other “business” activities to make sure you are in the black at the end of the month. 

4) The Practice of Law is Not a Boys Club Anymore -
Women are here to stay in this profession, and in many cases they are better than men in the courtroom.  Every individual brings certain qualities to the courtroom, male or female.  Women can also bring the rain into the firm just as much as a male, so they should get equal opportunities. 

5) Practicing Law is a Service, and Therefore Should Be Able to Marketed as One -
I know that marketing is a little taboo in the legal profession.  Not that it isn’t allowed, but just not like most any other business.  There are ethics that must be followed in any profession, but marketing your ability to be able to provide a service should not be as restricted as it is.  Firms need to understand that marketing is crucial to the future of the profession (as well as all mentioned above).  I know it is still in its infant stages, but lawyers need to understand that it can be done ethically, as part of everyday business, not be penalized than working on billable hours, and still be done right.

Those are my five things.  If we can get off this high horse of “if it isn’t broke, don’t fix it” attitude, the legal profession will be better off. 

Five by Five – Ann M. Byrne

 Here is a Five by Five contribution from Ann M. Byrne, author of the Quid Pro Quo blog. 

1. Rambo lawyering is out; civility is in.

Let the law be known as the profession where lawyers can be vigorous advocates and go out of their way to respectful and considerate to others. Lawyers would promptly return calls. Lawyers would keep their clients fully informed and encourage them to promptly and completely respond to valid discovery requests. Lawyers would adhere fully to the spirit and the letter of the court rules and rules of professional responsibility. Lawyers would cheerfully and graciously share tips, forms, best practices, and other information with other lawyers.

2. Lawyers and the law would embrace technology and new ways of doing things.

Many others have spoken far more eloquently than I could about technology and its role in the practice of law. I came to the legal profession from another career and had used computers intensively for years. I was astonished to see that only the secretaries had computers. I was amazed that the lawyers touched only the paper files and routinely misplaced their contents. I was stunned to see the index cards for checking conflicts and looking up case law. I could not understand how these people functioned. Everywhere I looked, people were drowning in paper. Things have improved some over the years I’ve been in practice. Yet, even today when I read the statistics on the number of lawyers who do not use any case management software, I am shocked.

Lawyers say they don’t have time to learn how to use a computer, a computer program or a feature of a program. Lawyers also say that the systems they use work quite well and that they see no need to change they way they do things. I am reminded of the industries that saw no need to change how they did business and which are no longer in business today.

Lawyers have little incentive to be efficient, especially if they work on a billable hour model. Other billing models haven’t convinced me, yet. Any way, very little of the practice of law is based on what makes sense or is efficient. The whole system needs to be revised and made more efficient and more modern. There are some bright spots of change on the horizon, which is encouraging.

The ability to successfully implement technology in the practice of law would, in my ideal world, be as highly valued as the ability to successfully try a case or the ability to write a cogent brief or the ability bring in clients. Lawyers and law firms would recognize that it takes many different abilities and skills to be successful in the practice of law. Each of those abilities and skills would be valued and considered when compensation and promotion decisions are made.

3. Lawyers and law firms would make a commitment to revamp the practice law; then execute their plans.

Staff would be included and will be valued participants in the process. Everyone would look high and low for all the things that we have always done that don’t need to be done and can safely be omitted. Then we would stop doing them. We would ask your clients which of the things you do for them that they don’t need, don’t want, or don’t find helpful. Then we would stop doing them. We’d ask clients what things we could do for them that would be more helpful to them. Then we’d look for ways to do them and we would start doing them. Then we’d look for inefficiency and waste. We’d figure out how to get rid of it. Then we’d eliminate it.

If we’ve been hankering to try something, we’d go ahead and give it a whirl. When we find the right situation, we’d make the time to get it done. Then we’d do it. We’d expect some things to not work out and we’d value what we learned from the attempt. We’d share what we learned, our successes and our misses. We’d make this revamping an on-going process until we had completely revised our practices, our courts, and our profession.

4. Lawyers and law firms would institute a sabbatical program for lawyers, perhaps along the lines of the MacArthur Fellowship, funded by lawyers and law firms for the benefit of the profession.

Everybody needs a break or a change of pace at some point in their careers. Why not allow lawyers to go work for a limited time to improve access to justice, to develop e-lawyering programs, to do pro bono work in an entirely different area of law, to help reinvent local, state, or federal government, to work on projects for courts, or to undertake some other worthwhile project. There are literally thousands of things that need to be done. Lawyers are wonderful problem solvers. Let’s figure out a way to tackle some of those challenges and get them resolved! What a great way to recharge our batteries and get a new perspective.

5. There will be laughter in law offices.

Most of lawyers I know have wonderful senses of humor and love the work they do. They see the humor in a funny situation and their peals of laughter are an elixir. May each of us be blessed with at least one good belly laugh a day. You just feel great after a good laugh. Have one along with your apple every day!

Five by Five – Ambivalent Imbroglio

The next contributor is the anonymous law student author of Ambivalent Imbroglio with this post:

 

1. Close down Lexis and Westlaw and bring an immediate and permanent end to for-profit legal research. The law belongs to the people, not Westlaw. The services now provided by these companies should be done by public employees paid by tax dollars, then the cost of legal research and representation would drop for everyone. See also Carolyn Elefant’s suggestion #1. Same idea, mine just goes further; instead of having one free Lexis/Westlaw account per library or school, every computer w/internet access should have free, unlimited access to the publicly-funded, non-profit replacement of Lexis and Westlaw. This new database should also be searchable by Google and any other search engine.

2. Dissolve the ABA’s cartel-like stranglehold on law schools and legal education. This would involve eliminating current requirements in most states that you have three years of law school before you can even take the Bar. Perhaps we should eliminate the Bar exam, as well. See Scheherazade’s suggestion #1 . But even if some sort of qualifying credential is required to practice law, it should not require any sort of formal training. If there’s a Bar exam or something like it, and you can pass it without a day of formal education, you should be able to practice law.

3. Reduce firm salaries and billable hours requirements by half, across the board, while at the same time doubling salaries for public defenders, legal aid attorneys, non-profit attorneys and all other “public interest” practitioners. That wouldn’t even the playing field, but it would go a long way. See also Scheherazade’s suggestion #4.

4. Make lawyers accountable for the work they do. I really don’t know how to do this, but perhaps a google-able database of lawyers and the cases they’ve worked on would go some way to making attorneys accountable for the work they’ve done to protect big tobacco, to help Enron rip off its shareholders and the American public, and convince the Bush administration that it doesn’t have to follow the Geneva Convention.

5. Require law schools do more than pay lip service to public interest law. Again, I’m not sure how to do this, but law schools need not be factories for producing BigLaw drones. For a start, professors who make jokes to their classes about how rich attorneys can get by screwing their clients should be fired. Becoming a lawyer should not be about making money.

Combined, my suggestions should go a long way to taking the money incentive out of the practice of law. Making the best available legal research free to all will reduce the overall demand for attorneys—more people will be able to do their own research and represent themselves. Freeing law schools from the dictates of the ABA will allow new schools to spring up, and eliminating the law school requirement altogether will allow the number of lawyers to skyrocket. All that great competition (lawyers love competition, right?) will mean no one will get much money. And, since legal research will be free, lawyers will be able to charge much less there, as well. Reduced firm salaries will become a necessity; therefore, law students will be much less motivated to go to BigLaw anyway. Plus, since they won’t be paying such high tuition (because there are more law schools and because some people won’t go to school at all to become lawyers), students will graduate with much less (or no) debt, removing another reason many people now go to BigLaw. Finally, if lawyers are forced to make a public accounting of the work they do, we’ll have fewer people writing terror memos and defending companies that destroy the environment and public health and all those other bad things. The world will be a better place, and all because of these five things.

What was it Aerosmith said? Was it, “dream on”?

Five by Five – Russel Trust

These Five by Five come from reader Russel Trust:

 1.  Law Firms should be limited to no more than 100
lawyers.
 Why have law firms turned into corporations?
Maybe because law firms don’t look like law firms,
they look like corporations.  There is no collegiality
when partners don’t even know each others names; there
is no professionalism when a law firm needs a CEO.  If
law wants to stay a separate, distinct manner of
business, it has to stop doing business like any other
corporation.

People hate corporations.  People had the anomie, the
isolation, the inhumanity of it.  Sure, it’s useful,
but only to a point.  Why do so many lawyers leave the
practice?  Perhaps in part because they can’t stand
the atmosphere.

True, 100 is still too large a firm size, but at least
it is a start.

2.  Abolish All Mediocre Law Schools.  One of the
reasons the practice of law is so troubled, is that
law firms can always find another monkey to do their
document review/boring research/etc.  There is no
excuse for a Stanford Law graduate to have to look for
a job when a Georgetown grad has a job.  The flood of
lawyers that the sub-par schools deluges the
profession with keeps salaries down and partnership
tracks long.

Thus, we should permanently close all sub-par law
schools.  I’m not just talking about Hastings and New
York Law School, I mean American University, Fordham
Law, Duke Law, et cetera.  Don’t try to tell me
there’s a “top 14″ these days.  Face it–there are
good reasons you were rejected by Harvard Law.  You
just are not that smart.

3.  Increase Pay of Government Attorneys.  Big time;
you want the best, you gotta pay for the best.  A lot
of lawyers would love to do work for the public
interest instead of helping some big company avoid
paying its taxes.  Those lawyers who do that should be
rewarded.

4.  Fully Fund the Public Defender System At All
Levels.
 Ineffective assistance for poor people will
lead to a fundamental undermining of the legal system.

5.  Cap Billable Hours At 1850. In the 1950s, the ABA
said that billable hours per year should be about
1300.  And now, with Lexis, Westlaw and the internet,
billable hours are supposed to be longer?  You’ve got
to be kidding me.

Working longer still does not equal working better.
The money-hungry part of the profession must be
capped, lest it drain out any joy.  Being a lawyer
does not mean being rich; it used to mean being a
member of one’s community, of playing a vital role in
society.  Just because asshole corporate lawyers have
perverted the practice, doesn’t mean we’ve lost
forever the lawyer-statesman.

Five by Five – Charles E. Petit

The first contribution to the Reader’s Edition of the Five by Five comes from Scrivener’s Error author Charles E. Petit.  His references are to the posts from Week Two.

  1. Simplify the ethics rules and then enforce them. The only ethics rules we really need are those that govern the behavior of military officers: “Thou shalt not lie, cheat, steal, or tolerate others who do” and “The appearance of a conflict of interest is a conflict of interest until proven otherwise.” There can certainly be regulations that define administratively how to comply; but they need not include unenforced (and unenforceable) rules like MRPC 4.4. Really, now: when is the last time that you know of an attorney who was actually disciplined for harassing a potential witness? And, conversely, when is the last time that you know it happened? (Statistically, about thirty seconds ago.) In this state, disbarments are almost always for one of three classes of “offenses”: comingling or converting client funds (even if there is no harm and it is corrected), a felony conviction, and offenses related to substance abuse (even if not so charged). Please don’t tell me that everyone is following all of the other rules, unless you really want to see coffee all over the front of your clothes.

    As an obvious corollary, whatever rules we do have must be realistically enforced equally against everyone. Being a bee inside of a big law firm should not excuse anything, contrary to the assumption of MRPC 5.2(b). That’s the “Nuremburg Defense” writ large. Similarly, it shouldn’t matter whether one is representing a plaintiff, a defendant, a government agency, an administrative claimant, a buyer, a seller, a securities issuer, or whomever; one’s duties are the same, and one should be held equally accountable. That’s not to say that every transgression justifies disbarment, or even discipline of any kind; people do make honest mistakes, and sometimes circumstances leave an attorney no “acceptable” course of conduct. It is to say, however, that the nature of one’s clientele should not diminish one’s responsibilities.

  2. Reinforce that clients are people, not causes. This is one place that I think the case method does active harm. When we read cases in textbooks—especially those that are followed by a string of hypotheticals, each linked to one or more other cases—we lose sight of what a lawyer really does, and for whom. Consider, for example, the story I told about Jenkins some time back. If one looks just at the opinion in some casebook, one might think that somebody other than lawyers won. I’m afraid not; winning in the Supreme Court just resulted in a remand, followed by another appeal (this time unsuccessful for the plaintiff).

    Instead, at some point—and I think it vital that it be earlier rather than later—law students need to learn that there are people behind every lawsuit. Even when there are corporations involved, those corporations don’t act for themselves; instead, there are people who make decisions to act (or not). There are costs to litigating—and, sometimes, to not litigating—a dispute, or to contract and transaction negotiation, that go far beyond the attorney’s fees in the case. Perhaps this is more an indictment of our courts’ turn toward law and damages as the only appropriate means of decision, disfavoring equity and equitable remedies (which are hellaciously difficult to value in a contingency matter!). It is absolutely, however, an indictment of the “black-letter law” result of most casebooks.

    This is perhaps more obvious to me than to most attorneys, because my clientele is intensely emotionally involved with every dispute, whether actual or potential. Books (and articles, and songs, and symphonies, and paintings…) are children to their creators, being sent out into the world. Some parents are abusive or neglectful; but not most. Most care deeply—often too deeply from an “objective” point of view—about how their children are treated, even after they “leave home.” The emotional cost of copyright litigation is often far, far greater to the actual creator of a work in dispute than is any possible financial reward; conversely, the emotional cost of doing nothing can be unbearable.

  3. Adopt the Louisiana Rule for naming parties in interest. Ernie Svenson can correct the details if I get them wrong, but Louisiana requires that insurance companies that may have either exposure to damages or a duty to defend be named as parties in interest in civil suits. This is the tip of the iceberg; leaving aside “John Doe” lawsuits, I think that all parties in interest should actually be named in lawsuits. Not just “Melinda J.,” but her “next friend”‘s name too. The business about “the existence of insurance coverage inflaming the jury against the big corporate defendant” is both hogwash and counterintuitive. There are very, very few people who don’t believe that almost all corporations have insurance coverage for anything for which they’re sued. And it’s not just corporations; it’s drivers, and doctors, and law partnerships, and… So we’re kidding ourselves if we try to pretend otherwise; and self-deception does not make for good resolution of disputes.
  4. Eliminate state regulation of the law in favor of a national system. With teeth. Scheherazade (point 1) and Carolyn Elefant (point 5) argue persuasively concerning interstate restrictions to practice. I do not think they go far enough. If we are taught “black-letter law” in law school, and that is all that is required for the [unbelievably foul and offensive expletives concerning the parentage of the authors deleted] multistate “bar exam” and multistate “professional responsibility exam,” then that should be good enough to have a license to practice. Instead, all of the resources that go into those worthless exams and state-by-state monopolies should be poured into a meaningful character and fitness examination, perhaps a mandatory six-month internship following graduation before granting the license to practice, and programs that will benefit clients. Sure, states are going to have procedural and substantive quirks in their laws; for that matter, so do federal courts. Just try filing a late amicus brief in the Seventh Circuit if you’re used to doing so in the Ninth Circuit and see what happens! The point is that basic qualification does not, and should not, depend upon those quirks; that’s what day-to-day research teaches. If a given state bar wants to require a ten-hour CLE-like course on state civil procedure and highlights of substantive law, that’s fine, and probably a good idea. Division of territories that, but for the legal profession’s avowed (and illusory) “self-regulation,” would be per se antitrust violations is not.

    State-by-state regulation also creates some serious problems of its own, particularly in cross-border situations. It’s not just a case of “reciprocal discipline” being at one extreme nonexistant and at the other draconian. It’s that the differing standards create a bar with isolated but insulated pockets of both competence and incompetence, obscene expense and market rates so low that it’s difficult to support a family.

  5. Give the judiciary the support and respect it deserves. Judges at any level are among the most poorly paid members of the legal profession when compared to their responsibilities. “Doing more with less” really means “doing more for the big cases, because I don’t have the time to give to little ones.” Most judges work tremendously hard and tremendously long hours, and frequently agonize over decisions far more than do the lawyers in front of them. Consider this statement: “the Court itself spent easily over one hundred hours researching the law and analyzing the evidence in the instant case and reached its final decision after months of careful consideration.” Admittedly, this was in a matter that everyone involved agrees was cutting-edge, and resulted in a summary judgment opinion noting in the first paragraph that it “presents a question of first impression in the Ninth Circuit.” But even when the law is clear, the facts may not be; or the application of the law to the facts may not be; or the balance for admission of an expert’s opinion between relevance and prejudicial effect may not be. If something reaches past the dismissal stage, there is almost by definition at least some potential merit to both sides’ positions.

    Ernie (point 2) understates the case, if anything, for appointment of judges. It’s not just the potential influence of campaigns, campaign contributions, and so on; it’s the appearance of partiality aside from the money. I live in a largely rural area, which means rather conservative and law-and-orderish. At least two judges currently sitting on state courts in this area were elected based on platforms promising to be “tough on crime.” What does that say to a defendant, particularly a poorly educated or non-English-speaking defendant, about his chances for a fair trial in front of those judges? It’s the appearance of impropriety here that is enough to call the concept into question. Then there’s the constitutional question—one largely punted to date—of whether an elected judiciary is a “Republican Form of Government” (Art. IV, § 4), when the only example of such at the time the Constitution was drafted was the Constitution itself, with its appointed and tenured judiciary.

Five by Five – Kevin Heller

Kevin Heller, author of Tech Law Advisor writes a response to my second Five by Five only “half tongue in cheek.”  Check it out here.

Two by Four to take on Five by Five?

Proving the adage imitation is the sincerest form of flattery, Dennis Kennedy announces his new “Two by Four” feature:  

The Two By Four ™.” It’s based on the old mule training proverb that you need to whack a lawyer, er, mule with a two by four just to get the mule’s attention. It will be a weekly collection of of four items from two well-known experts of things that most businesses already know or are already doing that it will take a whack from a two by four to get lawyers and law firms to pay attention to.

Dennis is a great friend and has been one of those fantastic acquaintances I’d never met but for this blog.  I do need to check with at least one intellectual property lawyer to see if he’s infringing, though.

(This is my first test trying out BlogJet – If it works, I’ll write more).

Five by Five – Third Edition

Been cleaning up the blog a bit today. Dennis Kennedy suggested I make it easier to link to each edition of the Five by Five, so I’ve added individual categories for each week’s group of posts. Week One is here. Week Two is here.

I’ve also cleaned up my sidebar a bit and am working on editing the rest of my categories down to a manageable ten or so. If the maintenance results in a rehash of old posts for those of you reading the RSS feed, I apologize.

I’ll also have the new Five by Five up by tomorrow. I’ve gotten several great suggestions on how to improve the practice of law and I can’t wait to share them.

Next Week’s Five by Five

The response to this week’s Five by Five has been so overwhelming, I’m opening it up to everyone. Leave a comment in this post, or e-mail me with your answers to this question:

If you had the power to change five things about the practice of law, what would you change?

I’ll post the responses next Monday, along with my own.

Five by Five – Scheherazade Fowler

Up next is Scheherazade Fowler, prolific author of the Stay of Execution weblog. According to her bio, she is a “young lawyer, an extrovert, and an insatiably curious woman living in Portland, Maine.” Scheherazade’s contribution to this week’s Five by Five:

1) Abolish the bar exam. It’s nothing more than ridiculous hazing. We all know that nobody remembers anything they learn for the bar exam, that the things everyone learns for the bar exam aren’t the law anywhere except for some fictitious “Multistate” jurisdiction that doesn’t conform to any actual place, and that the bar exam tests only one’s ability to outwit a particularly devious multiple choice testing service and/or a temperamental and unpredictable group of bitter essay graders. It has nothing whatsoever to do with functional mastery of subject areas, with compassion, judgment, or preparation to help clients. It instead serves the following functions: A) it enriches Bar/Bri, and perhaps a few lesser-known bar prep services, as well as the authors and graders of the exam. B) It empowers the bullies at the Board of Bar Overseers, who hassle and sneer at any nontraditional applicants, or people have life experience or pasts that might have given them wisdom or direction prior to entering the career of law. C) It keeps bright, qualified, ambitious, energetic young applicants off the market and in misery from May through August, without letting their energy, enthusiasm, brains, or knowledge benefit the profession, and without letting them learn any practical skills at all. Instead, they get sick to their stomachs and devote their days to memorizing the difference, according to the strict Multistate Bar Examiner Rules, between a springing executory interest in land and a shifting executory interest in land. D) It keeps bright, qualified, ambitious, energetic applicants in limbo from July through late October, wondering whether they’ll get the nod or whether they’ll instead have to repeat the misery. This benefits nobody, not the students, not the legal profession, and not the clients or the existing pool of lawyers.

There might be some good reasons that something like the bar exam was conceived. Maybe it was meant to be a means of testing basic competency in certain subject areas. That’s a sensible function. It seems to me that if a degree from an accredited law school doesn’t serve that function we as a profession might think about looking at the core curriculum of these accredited law schools instead of inventing a ridiculous test. Or we might test core competencies in subject areas and let people take those tests following a semester or year of study of the subject matter—when it’s likely that such knowledge has been learned in a way it might actually be retained. Demanding that people shovel huge amounts of obscure knowledge covering twenty or thirty subjects into their heads for a one-time test is almost a sure-fire way to minimize retention. This seems to undercut the stated goal of minimum mastery of a subject area. Or maybe the unstated goal of the bar exam is less noble: maybe the bar wants to keep these new lawyers off the market a little longer. There are still better ways we could do that. We could at least require them to apprentice to us for slave wages, like the medical profession requires of its residents. That would be more intellectually honest than pretending we are asking them to prove themselves when we’re just stalling. Or we could require them to do pro bono work, so that their talents and energy would perhaps be of service to human beings in the world and could provide them with useful skills, and would still keep them out of our hair for six months or so before we’d have to compete with them on the merits. But instead we ask them to learn obscure nuances that aren’t even the law in any jurisdiction, and that we all expect them to forget the day after they have taken the exam. This, to me, is the cruelest and most senseless act of hazing that the legal profession engages in. There are many alternatives to the bar exam, all better than the current system. The fact that we don’t change it is an indictment of the profession—our blind conservatism, our fear of change, our fear of young minds, I don’t know what. If the purpose of the bar exam is to keep the young graduates out of the profession, shame on us. If it is to require them to attain useful practical knowledge, let’s get real. Do you remember anything you learned for the bar? I don’t. Why do we make people do it?

2) If I had some money, and I were in charge of a big law firm, I would absolutely do the following two things. I would immediately abolish my summer associate program, and with the seven or eight hundred thousand dollars or more that I would save on salaries and lunch tabs, etc. over the course of a summer, I would set up a shop in India, or Romania, or perhaps even Ireland if the exchange rates were decent. And there I would set up a nice document review, research, and writing shop. Why on earth would I pay inexperienced people $2500 a week to do work that I could have done for a fraction of the cost, by well-educated, intelligent, English-speaking talent—talent that can work all night long and get me an answer in the morning because of the wonders of time zone differences. There’s not any kind of imperative that research, writing, and document review take place on site; a .pdf and a Westlaw password are pretty transportable. As head honcho at BIGLAW, I am aware that only a tiny fragment of my associates are going to last more than three or four years—neither they nor I have any illusions that this charming courtship will really lead to a long-term commitment. Why on earth should I take on that overhead? Why would I wine and dine these people who are, essentially, extremely expensive resources that are hardly irreplaceable. No, I’d eliminate the summer associateship and instead invest in smart folks overseas who can do more work, year round, at a fraction of the price. Like these guys are doing. Expect it.

To be honest, if I ran BIGLAW I’d have some grave doubts about whether I was meeting my fiduciary duties to my clients if part of the overhead of my firm were these lavish summers. And if you’re a client, why on EARTH are you paying fees that let your law firm take law students out to $100 lunches? Why are you paying for fountains and town cars and tickets to baseball games? How does this help your shareholders? If your law firm is profligate with its money, that means you are paying that firm too much. Invest in the firm that is thinking about how to bring value to you. I expect in the future that value is going to be offshore. Legal research, writing, and document review can and will move to smart folks who can do it for less money. If I ran a law firm, I’d be leading that trend. Those who will resist will couch their resistance in terms of “prestige” and “reputation” and wave their hands around saying “you don’t know what you’re getting if you farm out this kind of work.” These appeals to an ill-defined notion of “quality” will work perhaps for a little while, but ultimately are doomed, because the truth is that a lot of the work young lawyers do isn’t rocket science, and even if it were, talent is not the exclusive province of three or four New York law firms. It just isn’t. Knowing this, I would want to be the first “prestigious” law firm brand to exploit a worldwide talent pool and an extraordinary wage differential. That firm will be positioned to make great profits in the near term, and to be nimble enough to compete when savvy clients demand truly competitive rates.

3) I don’t think I fully understand the connotations of the word “profession” when people say that “Law is a Profession.” It appears to be used to imply something noble, exclusive, honorable, and dignified. That’s cool. I agree that law is a profession in that way. We’re all working to help sort out the consequences of human decision making, and the social consequences and procedures around decisions that are challenged. That’s a noble goal, and all (or most) of us doing it are doing something highly worthwhile. It is service in the best sense. But sometimes I hear the term “professional” used as a means of bullying someone into conformity, a way of expressing discomfort with informality or stylistic or aesthetic differences. Like the article on law blogs that suggested that it might be okay for a lawyer to blog about the hobby of sailing, but that it might not be professional to blog about an interest in NASCAR. I think that is a hijacking of the term “professional.” All of us, if we’re pursuing the highest good of the law, in a way that is courteous and thoughtful and earnest, are “professionals” paving a noble road. The style a person brings to that endeavour, the way he or she dresses or speaks while doing it, that’s not appropriate fodder for attack. To the extent some people in our profession use the idea of a “profession” as an excuse for conformity or a silencer of innovation or honest expression, I think that is wrong.

4) We should be more ashamed of ourselves. I am a capitalist at heart, and I don’t believe in government-induced salary caps, but I do think that social mores are powerful and that greed is ugly and shameful. I think there should be a real sense of social shame if you are earning more than 10 times more than the lowest-paid person in your office. Maybe that multiple isn’t right—maybe it should be 8 times, or maybe it should be 15 times, I haven’t thought through the multiple. But there should be a point at which people are just ashamed to look their assistants in the eyes, or the guy driving their cab or painting their house. Ashamed to look the court clerk in the eyes. I think many people in the legal profession are past that trigger point, whatever it is. Do we lawyers really think 10 minutes of our time is six, eight, twelve, forty times more valuable than 10 minutes of a fellow human being’s time? If we do, we should be ashamed of ourselves. And if we don’t we shouldn’t bill people as though it were.

5) Along with the other statistics that law firms give out to NALP (e.g. starting salaries, number of lawyers, billable hour requirements, percentage of minorities, pro bono opportunities, etc.), every law firm should publish the divorce rate among the attorneys at the firm. That’s a clear, measurable, statistic that I argue is relevant to the measure of the success of a firm and the attorneys within it. What if having lawyers with intact families were part of the measure of the prestige of a law firm?

Five by Five – Carolyn Elefant

First up in this week’s Five by Five is Carolyn Elefant, solo practitioner, and author of the My Shingle weblog. Carolyn’s site is more than a blog. She’s collected hundreds of links and resources for lawyers looking to go out on their own.

So, Carolyn, if you had the power to change five things about the practice of law, what would you change?

1. Every law school and courthouse library should be required to make full service LEXIS (not the junky lexisone service currently available free) and Westlaw, i.e., all the libraries and citation service, available at no cost on at least one computer. In fact, law schools and courts should make a free LEXIS and/or Westlaw (or both) account a condition of taking service from these companies.

To me, this proposal is really a no-brainer – and frankly, I don’t know why there hasn’t been an outcry for free research service by the bars, law libraries and the courts. Access to free legal research service in this manner is the cheapest way that I can think of to improve the quality of legal services for all. Many solo attorneys do not have access to this type of service and either rely on “manual” research which is incredibly time consuming and not nearly as effective (even law librarians will resort to LEXIS to answer questions rather than stumble through the decennial digests – and they are supposedly research experts) Moreover, the ability to run a search not only in one’s own jurisdiction – but across the board and to search law review articles might give practitioners ideas on arguments that they might raise. I would even go so far to argue that death row clients might not be there had their attorneys had access to LEXIS and Westlaw which would have afforded a whole range of issues to raise during a capital trial.

LEXIS and Westlaw already offer full service LEXIS and Westlaw packages to law schools for so-called “academic” purposes, so free service is not unprecedented. Moreover, it’s not as if these companies would lose customers by giving away service for free. Biglaw attorneys – and indeed, all attorneys with a decent budget – are always going to purchase some computerized research package to have 24-7 access and avoid a possible line at the free kiosk. Moreover, free LEXIS and Westlaw in libraries and courthouses would also give the general public a way to research the law, which after all, belongs to us.

2. The bar associations ought to encourage more mingling and cooperation between big firm, small firm and government attorneys.

I’ve said it before, but what I love most about the blog-o-sphere is the conversation and discourse between biglaw, solo and government attorneys. That’s something that I’ve never experiences with the bar. In fact, there’s very little crossover between big firm and small firm lawyers at least where I practice – and my experience, I don’t think, is unique. For example, on a trip to Boston this past fall, I visited with two friends who are biglaw partners and neither even knew a solo practitioner.

I realize that some of the segregation is self-selecting. For example, a solo might not have any interest in a bar committee on corporate securities law while a biglaw attorney would not be inclined to join a bar section on general practice. Still, one would think there would be opportunities for solos and biglaw attorneys to work together on pro bono projects. However, (at least in my area), what typically happens is that one law firm will man a legal clinic for an evening. And frequently, when the bar or a legal aid group assigns a large pro bono matter, it will be handled by one firm. Why not staff the matter with, for example, a solo attorney, a government attorney and a biglaw attorney? Solos and government attorneys might also be more inclined to accept a pro-bono matter if they could work with a biglaw attorney who could more easily cover most of the costs.

All of us – biglaw attorneys to solos – share the law in common. We can learn from each other and gain a new perspective if only there were more opportunities for interaction.

3. E-filing at every court with searchable data bases.

This is a dream, I know, but every court should aspire not only towards a robust e-file system but also one where attorneys can perform word searches to pull documents from court files. The federal court developed an e-file system in-house and it has drastically cut my work load and likely that of other users. But the cases that are filed – and all of the pleadings only searchable by party name or docket number, possibly case type. Users can’t use a word search to find documents with arguments that might relate to their cases. As a result, there is a wealth of information – pleadings with legal arguments, maybe even factual information about parties who’ve been in litigation before which is still impossible to find unless you know what case you’re looking for. What a waste to spend so much money on e-filing and only have it reach half its potential.

Also, relatedly, I have noticed that at least one court where I practice is now watering down e-filing and requiring attorneys to send paper copies of documents over 25 pages which is a minor annoyance. Let’s not go backwards on this.

4. Modify the case method as taught in law school.

I don’t advocate abandoning the case method system – after all, that’s pretty much what we attorneys need to do in our careers- understand the principles in cases and analogize or distinguish them to build our arguments to the court or advise our clients. Still, to get students thinking more about how the judge reached a decision, I’d take at least one case in every course and really analyze it in depth – review the complaint, the pleadings – all materials readily available in the court file (which should be much easier now that we have e-file). I’d have students look at the briefs – many will be surprised to learn that courts sometimes don’t address certain arguments – or mischaracterize others. Perhaps students will identify certain factors – like a sloppy, typo-ridden brief or a nasty tone – that may have influenced a judge to rule one way or another. I realize that after law school, some students take on clerkships and learn this anyway. But most other law students will never have an opportunity to examine cases in this way. And, this is one exercise in practical lawyering where law professors (many of whom have never worked at a legal job) could actually be of value, since most, if not all have held clerkships and could provide insight into the judicial decision process from that perspective.

5. At a minimum, allow lawyers who have practiced law for more than three years in one state to automatically be eligible to practice in any other state touching their jurisdiction. (so for example, a DC attorney could automatically practice in Maryland and Virginia after 3 years).

I understand that bars want to uphold professional competence standards and all that, but frankly, it is just ridiculous for attorneys admitted in one state to have to either take another bar exam or fill out a lengthy admission form and pay hundreds of dollars in fees (as well as annual dues) just to go to court on the other side of the border. And pro hac vice motions don’t help much either because in many jurisdictions, the attorney of record has to appear in court with the foreign attorney anyway.

Five by Five – Second Edition

This week’s Five by Five will follow this post. The question of the week:

If you had the power to change five things about the practice of law, what would you change?

Without further delay, here we go!

Five by Five – Second Edition Preview

After an incredibly successful first “Five by Five,” I’m proud to announce that the second edition will be up on Monday. The question of the week is:

If you had the power to change five things about the practice of law, what would you change?

My panelists for the second edition are among the most influential and prolific legal bloggers. They also are really nice, cool people. They are:

Carolyn Elefant (My Shingle);
Scheherazade Fowler (Stay of Execution);
Denise Howell (Bag and Baggage);
Evan Schaeffer (Notes from the Legal Underground); and,
Ernest Svenson (Ernie the Attoney).

Tune in next Monday for their Five by Five.

Five by Five – Jennifer Rice

Last but not least are the wonderful suggestions of Jennifer Rice, the author of the What’s Your Brand Mantra? weblog, and president and founder of Mantra Brand Communications, a brand strategy consultancy representing the voice of the customer within client organizations.

1. Focus. Pick a group like women business owners and learn what their needs are. The deeper you can understand a small group, the more effectively you can win business. You’ll begin attracting more new clients within that group because you’ll have built credibility and trust among other women just like them. Be sure to collect testimonials!

2. Find out how they perceive lawyers. Ask what their previous experience has been with lawyers; if they’ve had a bad experience, find out why. This will tell you what objections (logical and emotional) that you’ll need to overcome. You’ll be light-years ahead of the pack simply by finding out where she’s coming from.

3. If you’re a male attorney, check out how female attorneys market to women. Or find a female attorney with whom you don’t compete directly; learn new ideas and tag-team at networking events. Female attorneys are probably your strongest competition; personally, I prefer to work with women because the perceived trust level is higher. But a non-competing female attorney (or other professional like a CPA) can be a great advocate, referral partner and mentor for you.

4. Women rely on intuition more than men. Guys, you might think your argument is flawlessly logical, but women don’t make linear decisions. We pick up on small cues, usually subliminally, and incorporate emotion into our decision-making process. The end result is our ‘gut instinct’. If that bugs you, don’t try to get women clients. You won’t be on the same wavelength – which you may not pick up on, but women definitely will!

5. Yours is a relationship business; traditional advertising won’t be effective. Practice your listening and empathy skills on your wife, girlfriend, sister, and any woman that crosses your path. The quality of your relationships with the women in your life is a perfect barometer for your ability to attract female clients!

Thanks everyone! Tune in next week for another edition of the Five by Five. See you then.

Five by Five – Yvonne DiVita

We’re hitting the home stretch here in Week One of the Five by Five. Up next for your consideration are the suggestions of Yvonne DiVita, a business and technology writer, president of Windsor Media Enterprises, LLC, and author of “Dickless Marketing: Smart Marketing to Women Online.” Yvonne also writes the Lip-Sticking weblog.

Yvonne’s responses:

The 5 Worst Mistakes a lawyer can make when marketing to potential female clients:

1. Assuming a condescending attitude. We know you went to law school, we accept that you know more about the law than we do—that’s why we’re there–but don’t pat us on the hand with, “Don’t worry, I’ll take care of everything,” blather or write your sales copy as if you’re God.

2. Passing out flyers that have only men’s pictures on them or heavily promote the executives in your firm–who all happen to be male! Or, looking around us for the ‘man’ in our lives.

3. Going overboard with pink. Guess what: Pink used to be the dominant color for boys. It was considered a watered down red and too ferocious for girls. Girls were dressed in blue. This is pretty much a ‘christian’ concept, notice that the Virgin Mary is always in blue. Today, women have adopted pink wholeheartedly, but that does not mean you should have a pink flowery background on your website or throughout your offices. Trying too hard to appeal to us using the color pink will backfire every time. We know frivolity when we see it!

4. Immediately calling us by our first name. Not many women openly admit this, but we are selective about getting personal with people. Getting to a first name basis is our choice, not yours. It’s Ms. or Mrs. or Miss, and only Jane, Jill, or Sally if we offer that option. Business etiquette dictates a formal introduction. If you rush right into using our first name, we may not show it, but we’re bristling inside.

5. Talking over us. Two ways this can happen: on your website or in your sales literature, using too much legalese…find a way to simplify your information without making us feel stupid. (hire a writer, if need be.) If we’re visiting you in your office for the first time, don’t interrupt before we’re finished explaining why we’re there. You may instinctively know what we mean after only a sentence or two, but let us finish anyway.

6. Oops…you only asked for 5. Okay…never mind.

Now, the 5 best things a lawyer can do to secure a female’s business:

1. Make eye contact. In your literature, put women’s faces in prominent places and use women’s names—either clients who have given you permission to use their names, or made-up clients that represent smart, savvy women…yet, ones who may be overlooking critical needs you can provide.

2. Offer free consulting. I’m not saying you should “give away the store” but if you want our business, show us how knowledgable you are about what we need (there’s that listening thing from #5 above), and that you not only can meet our needs but that you want to partner with us to solve whatever issue it is we came to you with.

3. Follow the lead of banks and offer specific programs aimed at women. Develop workshops for women entrepreneurs, for widows, for women entering into business partnerships, for single Moms, etc.

4. Expand your marketing focus to women in all walks of life. Approach women executives differently than you would approach stay at home Moms…do this by having separate marketing materials that speak to the individual’s needs. Notice how financial firms have separate marketing materials for each service they offer, and they portray men and women together and separately.

5. ASK questions…and expect answers. Once in awhile, bring the stay at home Moms together with the business executives and entrepreneurs and listen to what they talk about. Build a community of women networking to solve family and business issues; they will ultimately see you as one of them and bring you more business.

6. Market ‘couple’ seminars or workshops to women not men. Show women and men together. Real life consists of real people, both male and female.Use the word partner…partnerships exist between couples, married, engaged, or merely cohabitating, and partnerships also exist between you and the clients you serve, making this word a powerful introduction to a long-term relationship.

7. Oops…there I go again…overkill.

Five by Five – Anita Campbell

Our third distinguished participant is Anita Campbell, the founder, president, and chief consultant of Anita Campbell Associates Ltd., a business consulting firm specializing in helping businesses in the technology, retail and varied services sectors grow. Anita is also the co-author of the Small Business Trends weblog, most noted for its “Power Blog Reviews.”

Anita’s contributions to this week’s Five by Five:

When entertaining, choose an entertainment that is not a sporting event, unless you know for sure the woman is a sports fan. One law firm I know invited half a dozen clients to a hands-on crafts class in making metal lanterns at the local museum. Intended to build creativity and encourage easy bonding, it was one of the most memorable client entertainments I have ever experienced. I can’t recall a thing about any of the baseball, basketball, or (yawn) football games I’ve been invited to over the years. But ten years later, I still have the lantern and vivid memories of the experience.

Show visible commitment to women’s business in general. For example, volunteer to serve on a Powerlink (an organization dedicated to advancing women’s business) advisory panel. Speak at local meetings of NAWBO (National Association of Women Business Owners). And, make sure you have a user-friendly bio in your marketing materials detailing this kind of commitment.

Nominate the woman whose business you are trying to get for a business or community award. Ask her to serve on a charitable board with. Do something such as this to demonstrate that you hold her in high professional regard. Women like to be around lawyers who make them feel intelligent and worthy.

In a professional services business, your best bet for getting business from women, or from anyone for that matter, is referrals. Ask other professionals in adjacent but different fields for referrals. Create referral circles, for instance, with an accountant, a financial advisor, a marketing consultant, and a management consultant. Make sure that you seek out women professionals in creating these circles.

This is something you should always do, but be especially sure you do it when you are entertaining a woman. Be respectful with female support staff at all times. Same goes for female wait staff in restaurants. If you want to get business from women, you need to show sensitivity to women’s issue. That’s tough to do when you’re belittling female support staff or berating a female server in a restaurant.

Five by Five – Michele Miller

Up next is Michele Miller, author of the great WonderBranding: Marketing to Women weblog. She is now a partner in the Wizard of Ads, Inc. marketing firm, serving clients across North America. Michele is also the author of “The Natural Advantages of Women” (Wizard Academy Press), the audiobook that has been hailed for its concepts, principles, and new scientific information that explains how the female brain is “hardwired” for personal greatness. To watch a video of Michele, click here.

Michele’s five ideas on the topic of the day:

R-E-S-P-E-C-T.
When marketing to a woman, never forget that her greatest strength lies in her individuality. You are not expected to treat a woman as being someone “special;” you are only expected to acknowledge and deal with her as an equal. Always assume that your potential client is smart and saavy. If you address a woman from that perspective, it will shine through your presentation and open many doors that are normally closed tight against the “typical” lawyer.

Give her the 4-1-1.
With four times as many connections between the left and right sides of the brain, women process information at very high rates of speed. They are not only masters of multi-tasking, they are expert gatherers of information and thrive on the word “share.” Approach your marketing from the “educational” angle and you will have clients for life – blogs, newsletters, free seminars, etc. are all excellent tools for positioning yourself as the lawyer who “cares and shares.”

Make it memorable.
Have something in your marketing toolbox that might not normally be associated with an attorney – something that shows you’ve connected with your potential client. Listening is key – what if you followed up an initial consult with a note or small gift that is related to a topic she discussed? It could be anything from the stock market to knitting. You have to go the extra mile here, but it creates clients for life.

How is the world inside your door?
Too often, business people forget that marketing is everything you do each day. Consistency of message is not just restricted to your marketing materials, website, ads, etc., but must extend to your office, and staff. Is your office conveniently located – is the parking lot safe? How is your office decorated – does it have a built-in comfort factor, or is it sterile and uninviting? What kind of magazines do you have in your waiting area…. is there reading material for both genders? How is the phone answered? The personal experience factor of a potential client is one of the biggest factors in your marketing campaign – the better the experience, the better you are at branding!

Who rates first?
As Howard Schulz, CEO of Starbucks says, “The customer comes second… employees come first.” He knows that if you focus on the happiness and stability of your employees, it naturally rubs off on to customers and clients. Are your employees given a “psychological contract” to try, succeed, and even sometimes fail if it’s for the betterment of your business? If they have your trust and training, they provide a confidence that often resonates more clearly to potential clients than anything you can do on your own.

Five by Five – Kirsten Osolind

First up in the Five by Five this week is Kirsten Osolind, the CEO and “Kinda Cool Chick” of re:invention, inc. re:invention offers marketing services for women-led businesses. Kirsten writes the re:invention blog, “a fun, flippant BLOG with points of interest about women & small business.”

Now, for Kirsten’s amazing answers to my first Five by Five questions:

What are the five worst mistakes a lawyer can make when marketing to a potential female client?


1. During your first encounter, suggest your inspiration and role model is Arnie on ”L.A. Law” or Reese Witherspooon in “Legally Blonde.”
2. Don’t bother sharing the possible adverse consequences if her case is lost.
3. Be “time stingy” and only allocate 5 minutes for her initial consultation (time IS afterall, money).
4. Forget to market to her in her world (i.e., don’t attend women’s events or write columns for women’s publications). Avoid all “gals only” networking events and media because they make you squeamish. Eeew!
5. Be openly inflexible about your billing or refuse to return any unused portion of her retainer (i.e., Be like Daffy Duck. “It’s mine! Mine! All mine!”)

Alternatively, what are the five best things a lawyer can do to secure a female’s LONG-TERM business?

1. Identify a problem, suggest a solution, and show her examples of how it will work.
2. Promise to work hard for her, even if you can’t promise or guarantee you will win.
3. Make her feel comfortable during her first appointment and reserve plenty of time to discuss the details of her case.
4. Be a good teacher and take the time to educate her about the legal environment of her business. She’ll know you have her best interests at heart.
5. Explain your fee arrangements (no hidden fees) and give her a “freebie” every now and then. Heck yes I said a freebie. A freebie every now and again will keep her coming back for more.

Five by Five – First Edition

For my first edition, I’ve asked five seriously cool women bloggers for their five thoughts on the following question(s):

What are the five worst mistakes a lawyer can make when marketing to a female potential client?

Alternatively, what are the five best things a lawyer can do to secure a female’s business?

I’m amazed at how great the ideas are, and how generous all of the participants have been with their time and advice. I’ll post each blogger’s ideas in individual posts throughout the day. Enjoy!

Five by Five: Marketing to Women

The first Five by Five is on it’s way. I’ve asked some seriously cool women for their five ideas on this week’s topic. This week’s roster of experts:

Kirsten Osolind, Anita Campbell, Michele Miller, Jennifer Rice, and Yvonne DiVita.

All are bloggers, and all have a unique insight into this week’s question:

What are the five worst mistakes a lawyer can make when marketing to a female potential client?

Alternatively, what are the five best things a lawyer can do to secure a female’s business?

Look for their answers next week.

Coming Soon – Five by Five

One of the ideas from my innovation weekend is a weekly forum I’ll call “Five by Five.” In weekly posts, I’ll ask five people — who are experts in their fields — to give me five ideas on a given topic. Every week, the five people will come from a different (usually non-legal) discipline, but the topic will always focus upon the innovative marketing, pricing, and delivery of legal services.

I’m already working on my list of invitees and welcome any suggestions. All participants in the Five by Five will get their choice (and I’m completely serious here) of an official “the [non]billable hour” hat or t-shirt.

As a compliment to the weekly series, I’ve set up a kind of a [non]billablehour extranet/wiki for all my readers to participate in and contribute to the discussion. I’ll unveil more details tomorrow.