Starting in 2015, William Mitchell College of Law will begin offering a hybrid curriculum that involves online classes punctuated by intense classroom time. This pretty much puts William Mitchell on the cutting edge of legal education.The History of (the Lack of) Innovation in Legal Education
In October, the ABA Task Force on the Future of Legal Education released its draft report and recommendation. In the report (pdf), the task force urged the ABA to encourage law schools to innovate and make better use of technology in education. William Mitchell’s Dean Eric Janus observed that most legal education happens more or less the same as it always has: 50-minute blocks of time, three times a week, with students trapped in a classroom.
“The ABA has been a little conservative over the years in terms of its standards and allowing for innovation.” —Dean Eric Janus
Maybe that’s because innovation is discouraged in the legal academe, says Sara Glassmeyer, CALI’s Director of Community Development (though she was not speaking on behalf of CALI). Glassmeyer said that one of her former law students went to an American Association of Law Schools (AALS) Workshop for New Law Teachers, where he was explicitly discouraged from trying anything new. She said many professors even use the same books they were taught from. So, either law schools are not very open to trying to new things, or they aren’t very open about the new things they are trying. Glassmeyer said her attempts to assemble a list of innovative law school programs has been an exercise in frustration.
There are some law schools out there innovating. I have written about Case Western’s “Client-Ready” Practical Skills Program and the similar program offered by Washingon & Lee. And Glassmeyer pointed out that some unaccredited law schools are handing out online law degrees. But William Mitchell is definitely out front not only for seeking a variance from the ABA that will allow it to deliver about half of its curriculum online, but along with Case Western and Washington & Lee, for talking about it.William Mitchell’s Variance and its New Curriculum
“What’s really exciting is that the ABA has now undertaken a program of fostering innovation in legal education.” —Dean Eric Janus
Ordinarily, the ABA standards (pdf) require two-thirds of the law-school curriculum to take place in a classroom. Only twelve credits may include “distance education” classes, which are defined as courses in which more than one-third the instruction happens outside the classroom. William Mitchell’s variance — apparently the first “innovation-related” variance granted by the ABA — raises that threshold to half, so that every class can include more distance education (which includes online learning), and allows the school to include distance education in the first year.
The new, four-year curriculum, which will be offered as an alternative to its existing part-time and full-time programs, will embrace e-learning and make the most of classroom time. The program will not be fully-online, but it will involve a lot of e-learning. Most of each semester will be spent learning through a combination of digital learning tools, such as web-based lectures, chat rooms, discussion boards, flipped classrooms, and more. (For example, in a trial practice class, students might record their performance and upload their video for critique.)
Classroom time will be concentrated in short, intense bursts devoted to skills training rather than lectures. The first and third semesters will launch with preparatory work alongside faculty, while each semester will end with a one-week, 56-hour “capstone” on campus. This will involve simulation related to the subject taught during the preceding semester. The program will also include externships during the fourth and last semesters, to give students real-world lawyering experience.
The goal, says Dean Eric Janus, is to “think much more creatively about how to get students to become expert practitioners.” He says the program’s focus is on enabling people to attend law school who cannot afford to move close to campus for three years, or who have work or family commitments that make it inconvenient or impossible to be on campus for a traditional full-time (or even part-time) schedule. Janus says William Mitchell is not lowering its standards for students interested in the program, and it is not interested in drastically increasing the size of its student body.The Future of Legal Education
William Mitchell’s new law degree program does not launch until 2015, so it will be some time before we know whether it has been a success, by any measure. But just by moving foward with what looks like a pretty radical transformation of the law-school curriculum, it seems sure to make waves.
Will other schools follow suit? Keep in mind that William Mitchell is certainly no diploma mill innovating out of desperation. It is a 113-year-old law school with a strong local reputation that can boast a former U.S. Supreme Court Chief Justice (Warren Burger) among its graduates. US News ranks William Mitchell in its first tier.
I think we will see more law schools seeking variances along the same lines between now and 2015. I doubt William Mitchell’s program will stand alone by the time it welcomes its first new students. And if the program is a success, you can bet more first-tier law schools will follow suit.
Glassmeyer may be right that the legal academe has stifled education, but with applications dropping, many law schools in the red, and law jobs in short supply, it looks like more and more law school deans and professors are going to be willing to try something new, anyway. For the next few years, at least, it seems like a good bet that online learning tools will play a big part in the drive to innovate.
Update: Elie Mystal points out at Above the Law that tuition for the new program won’t initially be discounted. Dean Janus did tell me that he hopes the program will eventually carry a lower price tag, but he said there is nothing particularly low-cost about setting it up.
William Mitchell Goes Online — Is This the Future of Legal Education? is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
Barring an end-of year viral hit (which, let’s face it, is unlikely), these are the posts from 2013 that you clicked on the most, so fire up Instapaper (the Instapaper iOS app is free for a few more days, FYI) or Pocket and take a few of them home for the holidays for a re-read:1. Microsoft Says No Office for iPad
Back in February, Deborah extracted this from a Businessweek interview of Microsoft’s former CEO:
When asked point blank by Bloomberg Businessweek, Microsoft CEO Steve Ballmer gave a terse answer to the question of when we can expect an iPad version for Office: “I have nothing to say on that topic. … We do have a way for people always to get to Office through the browser, which is very important.”
It went viral, and a lot of people stopped by Lawyerist to read and comment. With over 130 comments, it’s also one of the most-discussed posts on Lawyerist.2. Best Law Firm Websites, 2013 Edition
Our annual law-firm websites contest is always popular, and so it was again in 2013, when we had some of the most-impressive law firm websites yet. Next year, we will be moving up the date of our contest and calling for nominations early in January. Keep a lookout for our announcement after the fog of New Year’s Eve wears off.3. Proper Deposition Objections
Susan Minsberg’s beginner’s guide to objecting at a deposition has been popular since she first posted it, and it is even more popular now that she has revised it, adding details and more information about handling deposition objections.4. Fujitsu ScanSnap iX500 Desktop Document Scanner Review
After several years without a new flagship model, Fujitsu finally released the iX500 at the beginning of 2013, and it was worth the wait. Some might suggest that we talk too much about the ScanSnap around here. Fair enough. It’s just that we really really like it.
If you are in the market for a desktop document scanner, this is the one you should buy. There’s no other scanner I would want sitting on my desk.5. Law School Do-Over: 7 Things I’d Do Different
Chris Bradley offered 7 recommendations to current law students, and most of them boiled down to this sage advice for life as well as law school: stop taking yourself so seriously! All 7 are worth passing along to the law students in your life.6. Your Personality Matters to Clients
Does law school rob lawyers of their common sense, or are people who go to law school just less likely to have any? In either case, lawyers seem to need to be reminded of obvious things, now and then.
Whatever the reason, Randall’s very good, commonsense advice on personality (have one) has been a very popular read this year.7. Switching to Mac isn’t That Hard, Even for a Lifelong Windows User
Judging from the popularity of this post, a lot of lawyers are tired of Windows. I was, and I was especially turned off by Windows 8, which is why I finally bought a Mac. Turns out it’s not hard to switch, and I definitely don’t regret it.8. Three Grammar Rules to Forget (Because They’re Wrong)
Forget about these “rules”:
1. Don’t start a sentence with “and” or “but”
2. Don’t end a sentence with a preposition
3. Adverbs must always end with “ly”
Just forget about them.
Why eight popular posts? Why not five or ten? I guess eight just seemed like the right number.
Lawyerist’s Most-Popular Posts from 2013 is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
A scanner is no longer optional equipment for lawyers. Even if you have not gone paperless, courts, clients, and other lawyers will expect you to be able to scan things and distribute PDF files. You need a scanner in your office, at least, and probably on your own desk.
And not just any scanner. All-in-one systems are clumsy and inefficient, and flatbed scanners are too cumbersome for scanning multi-page documents. In a law office, you need a dedicated document scanner. Depending on how you practice, you may also want a portable scanner, or one that can scan 3-D objects like books or small physical exhibits.
Here are the ones you should consider.Best Overall: Fujitsu ScanSnap iX500
If you are only going to own one scanner, it should be this one. The ScanSnap iX500 is compact, fast, ridiculously easy to use, and good-looking. Plus, it works over wi-fi and scans to your smartphone or tablet. It comes with a copy of Adobe Acrobat (for Windows), and … well, I just can’t say enough good things about it.
I’ve owned three ScanSnaps, the S500, S1500, and iX500, and I have been thrilled with all of them. You can’t go wrong with a ScanSnap iX500, with just one narrow exception …
It is easy to add hyperlinks to legal documents, but it seems to intimidate lawyers, because they rarely do it. I get a lot of Word documents as draft posts for Lawyerist, and very few of them contain hyperlinks. And I’ve seen a lot of pleadings and memoranda in state and federal court litigation, but none of them (other than my own) have had hyperlinks.
Adding hyperlinks to Word documents is easy, it is useful, and it is something you really need to know how to do.Inserting Hyperlinks in Word Documents
For starters, you will need the URL of the hyperlink you want to insert into your document. Navigate to the web page or document in your web browser, and then copy the URL from the address bar. (Just highlight the URL and select Edit > Copy from the browser or right-click menu, or use Ctrl +C in Windows or Cmd + C on a Mac.)
Now, in Word, select the text you want to link to something. In a statement of facts, for example, you might select your citation to the record, like so:
Now, go to Insert > Hyperlink, right-click and select Hyperlink, or just press Ctrl/Cmd + K. The resulting dialog looks slightly different in Word for Windows and Mac.Windows (Word 2010)
The Insert Hyperlink dialog on Windows versions of Word is confusing, but all you need to do is paste your URL (Edit > Paste or Ctrl + V) into the Address field.1
Then, click OK, and that’s it, you’re done!Mac (Word 2011)
Just paste your URL (Edit > Paste or Cmd + V) into the Address field, and click OK. Done!Converting Word Documents with Hyperlinks to PDF
There is a right way and a wrong way to convert Word documents to PDF. The right way results in smaller files and preserves hyperlinks. The wrong way makes your documents look silly, with unclickable, blue, underlined words.
For the right way, go to File > Save As in Word, select PDF from the Save as type (on Mac, Format) menu, and save your PDF document. If you use Windows and have Acrobat installed, you will also have a File > Save as Adobe PDF option, which you can use instead. This gets you a text-based PDF, instead of a scanned image, which means it preserves most of the information your Word document had, including links. If you print the document and scan it, you just get an image. OCR can restore the text information (albeit with some errors, usually), but it will not automatically add things like links.
If you need to add your real signature (as opposed to an e-signature) to your document, then just scan the signature page, not the whole document. You can replace the blank signature page in your PDF with your scanned signature page. Do do this in Acrobat, just go to Tools > Pages > Replace.
For a lot more information about using Acrobat for legal documents, and in law practice generally, check out PDF for Lawyers.Why You Should Use Hyperlinks in Legal Documents
When it comes to litigation, at least, because judges want you to. Linking citations to the record on PACER or your state’s e-filing system, if it has one, is a big time-saver for judges. When it comes to legal documents you draft for other purposes, it may be useful to add hyperlinks, but consider how the document will be used.
If people are likely to read the document on a computer, tablet, or smartphone, and if hyperlinks would be useful, then you should definitely use hyperlinks. But you cannot click paper, so if there is no chance people will read your document in an electronic format, then it probably does not matter if you add hyperlinks, unless they are for your own use.
FYI, there is no point in linking to documents on your computer or a file server unless the recipient of your document will be reading it on your computer or, in the case of a document on your file server, on a computer on your network. This can be useful for internal documents, but it is useless for anything else. ↩
How to Insert Hyperlinks in Word Documents is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
Getting Things Done is both a book and a productivity system. But GTD, as it is affectionately known by its practitioners, does not prescribe a set of tools. It is really much more simple. It’s really just the Right Way to make and manage lists.
“You have to think about your stuff more than you realize but not as much as you’re afraid you might.” (Page 15.)
The system is quite simple: get your stuff out of your head and into a trusted system that holds everything you need to do at work, at home, and anywhere else. Once you clear your mind by getting your to-do lists out of your head and into your system, you can stop putting out fires and start focusing on doing things, instead of just thinking about doing things all the time.
You may think productivity systems are for gunners, but GTD is for anyone who wants to get more done with less stress. Read: lazy people. GTD works fine for gunners, but it is also a really-effective productivity system for lazy people. Lazy people who still need to get things done, that is. Like me. And probably many of you.
Here is the gist of GTD, and some tips for applying GTD in a law practice. This article is no substitute for actually reading the book and going through the exercises in it, but it will give you the overview, and you can probably get started doing GTD before you even start reading Getting Things Done.Capture: The Inbox
Inboxes are key to GTD, and to use them properly, you have to shift your thinking just a bit. Inboxes are not places to store the things you have to do. They are places to capture the things you have to do.
A key tenet of GTD is the separation of capturing, processing, and doing. Capturing is just gathering everything you need to work on, in as few places as possible. Hence, the inboxes.
You should have as few inboxes as you can, but as many as you need. Most people will need at least two: an email inbox, and a physical inbox on their desk. You may be tempted to pull things out of your inboxes one at a time to process them, like you always have. Resist this impulse. Instead, set aside time to process your inbox to empty, as often as it needs it. You may need to process your email inbox a few times a day, but your physical inbox may need processing only once a week.
The key is to separate the gathering of information from the processing of the stuff you have gathered, and from the doing the tasks you have put together. Your inboxes are just collection points.
From day to day, write down everything that pops into your head that you need to do. You can carry around a notebook or notecards, or just use something like Evernote. Do not do it. Just write it down. Use a separate page or card or note for each thing, and drop these notes into your inbox every chance you get.
Other things that can go into your inbox:
And so on. In short, anything and everything you have to do something with. Just don’t worry about what you have to do, yet. That comes next.Do It, Delegate It, Defer It, Drop it: the Heart of the Getting Things Done System
You should sit down to process your inbox at least once a week. When you do sit down to process your inbox, you will mostly just be sorting things into your system, but anything you can do in two minutes or less, you should just do right away.
In other words, take one thing out of your inbox at a time. Decide what needs to happen to it. If you can do it right now, in two minutes or less, do it. Otherwise, do it, delegate it, defer it, or drop it.
Sort everything into three piles and the trash can. While processing, you may find reference material, too. If you don’t have to do anything with an item, but you want to keep it around, it’s reference material.
The three piles correspond to three lists:
What you put on those lists (or in those folders) should be the “next action” towards the goal.Next Actions
Most people put goals on their to-do lists. For example, a typical to-do list might include “respond to defendant’s motion for summary judgment” or “plan a trip to Hawaii” or just “SmithCo merger.” But those do not describe what you need to do, they describe what you ultimately want to accomplish.
The things you need to do are next actions. If you need to deposit your client’s advance payment, that’s a next action: “Deposit Smith retainer check at Wells Fargo.” Many tasks are actually composit tasks, though. In GTD, these are projects.Projects
It is natural to think of each client or matter as a project. But in GTD terms, a project is merely anything you need to accomplish that consists of multiple steps. Take that summary judgment response, for example. The next actions might include:
Because projects will consist of next actions across your lists, think of the project as a label or tag that goes with a next action. In Remember the Milk, for example, which is what I use, you would probably just use a tag for each project. On paper, you might keep a separate list for the project, so that you can see all the related next actions at the same time. However you do it, make sure that all your active projects have a next action at all times. When you complete one, add the next one.43 Folders
You can track things to do later on a list, with due dates. This is especially effective if you use Outlook or Clio or Remember the Milk, so that you get a reminder when things are coming due. But you can also use a low-tech-but-highly-effective method, the 43 folders.
The 43 folders are just that, 43 manila folders. Label 12 with the months, and the other 31 with the numbers 1–31. Put them all in a file cabinet next to your desk. The folder for the current month goes in front, then the numbered folders, then the other months.
When you defer something, put it in the month that it will come due. The last day of each month, take out the next month’s folder and sort anything in it into the numbered folders. (If you’ve got a deadline on the 15th, however, you may want to “tickle” yourself the month before. To do this, just drop a reminder in the previous month, or even a couple of reminders, if you want to keep reminding yourself as the deadline approaches.)
Each morning, take out the folder for that day of the month, pull out anything in it, and add the next action to your Do Now list.
The 43 folders are a simple and effective, paper-based tickler system.Reference Material
You will also receive reference material. This might be stuff you just want to hold onto, or it may support a project you are working on. A set of alphabetical folders works great for this, and they can be in a physical file cabinet, or on your computer. A personal database like Evernote also works well for reference material.Using GTD in a Law Practice
GTD is perfect for lawyers. Lawyers are “knowledge workers,” which means they are just the sort of people David Allen had in mind as he was coming up with GTD.
The only difficulty I have had applying GTD in my law practice is figuring out how to fit clients and matters into the system. Because, as I mentioned above, under Projects, the client or the matter is rarely the project. Most of the matters you work on are actually a collection of projects, like opening the file, getting up to speed on the background, creating documents, and so on.
So you will have plenty of projects, but when it comes to your practice you also need to organize projects and next actions under the clients they belong to. My solution was my paper work plan, which helps me organize next actions under the relevant matter. The only downside is that I never figured out an easy way to track projects as part of the work plan. I would generally just use an ad-hoc tag on the list (like “+MSJ”) to help me keep each project moving forward.
Staying on top of deadlines is, obviously, one of a lawyer’s most-important tasks. That’s why a weekly review of your system is so important, so you don’t miss anything. Take the time to sit down and review your work plan or your lists at least once a week. Then make sure you identify what’s coming up, so you can work ahead of schedule, instead of just barely getting everything finished on time.Don’t Let Getting Things Done Get in the Way of Getting Things Done
Just remember that fiddling with these tools is not the same thing as being productive.
Many people who get into GTD spend a lot of time coming up with their own, personal implementation of GTD. They play with pens and notebooks and apps and templates, and so on. You probably will, too. It can take a little while to figure out just how to get GTD to work in your life. Plus, it’s kind of fun. Just remember that fiddling with these tools is not the same thing as being productive. When you find something that works, stop fiddling and use it.My GTD Toolbox
Because talking tools is part of the fun, though, here is what I use. I have three inboxes. The first is my email inbox. Then, I have my physical inbox, at my desk. And I use Evernote or whatever is handy to jot down notes on the go, or capture anything that needs capturing, including stuff from other inboxes, like Facebook, text messages, Hangouts, etc. Everything I capture gets dropped in my __Inbox_ notebook in Evernote by default.
Sometimes I carry my own version of the “Hipster PDA,” a bunch of blank index cards in a Levenger Shirt Pocket Briefcase. I prefer writing on paper, even if it is less convenient and means carrying more stuff. I just take notes or write things down, one thing to a card. Then, I drop the cards into my inbox, or else snap a picture of them using Evernote’s document camera.
(As long as you keep your inboxes to a minimum, it doesn’t really matter what you use to capture your thoughts. You could switch it up daily, as long as the things you capture end up in the same place: your inbox.)
I process my email inbox several times a day, and my other two inboxes about once a week. Anything I can’t knock out with the two-minute drill goes into Remember the Milk or Google Calendar.
Because I can do nearly everything on my to-do list from wherever I happen to be, I don’t find contexts particularly useful beyond the basic do now, waiting for, and later, which are my task lists in Remember the Milk. I also have a list for recurring tasks in Remember the Milk. I use tags for projects, which usually get their own tab, but I try to keep tags to a minimum so I can focus on just entering tasks, not tagging them.
My calendar is just a calendar, but I am dedicated to it. If it’s not on my calendar, I’m not doing it.
I use Instapaper for things I want to read later (usually on my iPhone or iPad), and Evernote for my reference file. And I use Delicious for saving links, although I should probably just use Evernote for that, too.
From day to day, I often make a list of most-important tasks, or MITs. These are the two or three tasks that, if I accomplish nothing else, will make for a productive day. When I was practicing law full-time, I used my work plan to keep track of my active cases (you could also track them as projects, but I liked having a dedicated work plan, on paper). Now, I use an editorial worksheet to keep track of deadlines and revisions in progress for Lawyerist.
When I sit down to work, I review my Do Now list and my editorial worksheet, pick a task I’m up for, and get it done. Checking off tasks gives me that little hit of endorphin, and I move on to the next one. This is a whole lot better than putting out fires all the time. Fires break out all the time, of course, but since I know I am in control of my task list, it is easier to process them into my system instead of feeling compelling to put every one of them out, right away.
My GTD-ish system is a bit more complicated than I would like, but it is about as simple as I can make it. And it has stayed pretty much the same for several years, now, which means I don’t waste time fiddling with it. My system is just how I do everything, from little things like scheduling a haircut or washing my daughters’ blankets for daycare to big things like redesigning Lawyerist or planning a vacation. Everything goes into the system.
That means that I really can check out of work on the weekends, or when I go on vacation. Everything I have to do will be waiting for me when I get back, safe in my system, so I don’t need to waste brain power worrying about it.
That’s the real value of GTD, I think. It’s not just that it’s a pretty effective way to get organized. The killer feature is that once you adopt GTD, you can check out completely. And when you check back in, you can be productive immediately.Get the Book, and Make the Most Of It
Obviously, I think you should read Getting Things Done. It truly is a life-changing productivity system.
But if you do get the book and read it, plan on following the exercises. At one point, for example, Allen will tell you to sit in the center of each room in your office and your home with a stack of paper to capture all the “open loops” in those rooms (watering a plant, fixing the molding). And he will tell you to do the same with your email inbox, and just about anything else. This initial capture is critical. Don’t just read about it, do it.
You will not realize the benefits of GTD until you dive in and do it. And once you do, I’m positive you will be glad you did.
This article was originally published on July 16th, 2009. That’s why there are some really old comments on it. I re-wrote the post entirely and re-published it on December 12, 2013.
Getting Things Done, for Lawyers is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
Last week, Bitter Lawyer’s Greg Luce committed “Avvocide” by sabotaging his own Avvo profile. He put more work into his fake profile than he ever put into his real one, and he was rewarded with a boost in his Avvo Rating, to 9.2 (“Superb”).
Avvo, if you don’t get out much, hosts profiles for every lawyer in the country. You can claim your profile, add your picture, information about yourself and your practice area, and endorse other lawyers. Think Yelp for Lawyers. You can also, somewhat controversially, answer consumers’ legal questions online. There’s more to Avvo, but that’s the gist of it. Some lawyers swear it gets them lots of referrals. Others just swear about it. Still others ignore it.
To find out how Avvo handles this sort of thing, as well as less-ridiculous profile problems, and why Greg’s — er, the Goat Lawyer’s — score went up as a result of his prank I called Avvo’s general counsel, Josh King.Goat Lawyers Aren’t a Major Problem for Avvo
When Avvo was new, according to King, a lawyer did something similar to his profile as a form of protest. He used a profile picture of Bozo the Clown, and filled out his profile with bogus awards and fake information. King said they “sort of let him run with it” for a while. Greg and this lawyer are definitely outliers.
Since it’s rare, Avvo does not have formal policies on dealing with such ruffians. In Greg’s case, Avvo reverted his profile to its previous state, and, according to King, “our customer care changed the [password] on Goat Lawyer, concerned that he would continue his hircine ways.” Seems fair. King said an email to him (or, presumably, a support ticket) should get Greg’s account restored.Policing Avvo Profiles
In Greg’s case, Avvo picked up on the prank via Twitter, where we were having fun with it all day.
— Lawyerist.com (@lawyerist) November 27, 2013
Avvo does some policing of lawyers’ profiles, but mostly it relies on lawyers to police themselves. King pointed out that “the disincentive to put fraudulent stuff on an Avvo profile is pretty high.” False advertising is an ethics problem, after all, and dealing with your state’s ethics board is probably worse than anything Avvo could do. But lawyers also like to keep Avvo up to date on their colleagues, often with letters. “It’ll just be a blank envelope with an order or a newspaper article about someone being disciplined,” King said. He assumes the anonymous letters are probably coming from other lawyers, which makes sense. Nobody else uses the mail anymore.
Would ethics boards distinguish Greg’s ridiculous false information from actual misleading information in a lawyer’s profile? While ethics boards don’t appear to have much of a sense of humor, King said it would be hard to see how Greg’s Lifetime Achievement Award from the Minnesota Ruminant Lawyers Association, for example, would mislead anyone.Goat Lawyer’s 9.2 Avvo Rating
When Greg sabotaged his profile, he was surprised to see his Avvo Rating jump to 9.2. This has to do with which profile information Avvo uses to calculate the Avvo Rating, particularly the awards, publications, and speaking engagements.
Your score will not go up with every award, publication, or speaking engagement you add. King said it’s probably a good idea to add non-legal awards, for example, to flesh out your profile, but they will not increase your Avvo Rating. Avvo keeps a database of organizations, publications, and conferences that do boost the score, though.
In other words, adding a fake award from a fake organization will not increase your score. But adding a fake award from a real organization, might.
In Greg’s case, it was probably due to his fake Creighton Law Review article, “Reexamining EPA Regulations Regarding Plastic Fencing, BPA, and Chewable Contours of the Farm,” and his Minnesota CLE speaking engagement, “Tech Tools for Lawyers, Goats, and Canaries.”A Related Issue: Endorsement Spamming
Since I had King on the phone, I also asked him about the endorsement spamming Mark Bennet discovered. King called it a fairly new development in the way lawyers use Avvo, and that they are looking into it and considering what to do with it. He did point out that, beyond a certain number, endorsements do not affect the Avvo Rating. On the endorsement spam, King said “It’s weird because it doesn’t really do him any good.” Likewise, he thinks endorsing lawyers you don’t really know just reflects poorly on the lawyers involved.
I’m not sure my endorsement of the Goat Lawyer reflected well on me, but it did make me laugh:
Why the Goat Lawyer Had a “Suberb” Avvo Rating is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
Law school final exam season has begun, and whether you are a 1L or a 3L, you are probably digging into your outlines and meeting with your study groups. Going through our archives last week, I realized we’ve practically written a book on law school final exams, written by some pretty successful law students, now adjunct faculty, Nena Fox and Randall Ryder (although short enough that you’ve got time to read it, now). Here are the posts, which cover big-picture stuff like winning the law school mind game and detailed advice for closed-book, open-book, take-home, and essay exam-taking (each link will open in a new window).Winning the Law School Mind Game
First things first. One of the most important pieces of advice I received during was: “first, win the mind game.” To do this: remember what you know, prioritize something that has nothing to do with law school, make a plan and stick to it, and limit talk of law school and exams.
Image: “Male hands writing task while examination” from Shutterstock.
The Lawyerist Law School Exam Study Guide is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
Law school success can be defined multiple ways, but getting good grades meets any definition of success.
Law school exams are unlike any other test you’ve taken, which means you need to meticulously prepare and execute your gameplan.
Here’s how to make it happen.
Read all our posts on law school exams: Winning the law school mind game / Closed book law school exam preparation tips / How to succeed on open book law school exams / How to succeed on take-home law school exams / 10 steps to writing a great law school final paper / Clearly, the answer is not obvious / Tips for hand-writing a law school exam.Step 1: get your head right and make a game plan
Completely overlooked and underrated, getting yourself in the right frame of mind is a critical step to success. Law school exams are different from college exams, but you can still rely on some of your old (and presumably successful) study habits. One of the most helpful things I learned to do was live in a bubble from other law students. What other people are studying, where they study, and how much they study is not relevant to you.
You have to make your own plan and study in a way that works for you. For me, that meant literally creating a calendar of when I would study for each class. I was never a fan of cramming a semester’s worth of a class the night before the exam. That way, I could ensure I devoted sufficient time for each class, rather than haphazardly deal with each exam as they occurred. Don’t forget that the grade for each class, depending on the number of credits, counts the same. Getting an A in one class and C’s in three others is not a success.
Perhaps the best way to create your gameplan is to talk to 2Ls, 3Ls, and review old exams on reserve at the library. Here’s another brilliant tip: listen to your professors. They will usually tell you what to expect on the final—and eliminate topics that you do not need to study.Step 2: adapt your strategy to the type of exam
Every professor is different, which means you can expect in-class finals, take-home finals, or even a final paper in lieu of an exam. Regardless of the type, you should still follow step 1 to gather information and create a plan specifically for each final.
Closed-book exams seem to be less prevalent, but they can also be the most difficult. Not only do you need to master the material, you need to have all of it stored in your brain. It’s a little deflating to realize how important memorization is, but put that aside and start connecting concepts to names of cases. That can be a very easy and very effective way to score points.
If you are taking an in-class exam that’s open book you still want to prepare in a similar manner, but tweak your approach. Having a well-organized outline is much more important and can become a lifesaver during the actual exam. Quite simply: know where to find what you are looking for. Your outline and your notes are only useful if you can find that needle in the haystack.
A take-home exam is a different kind of beast that requires a different approach. You have more variables to control and take into account. First of all, decide in advance where you will write the exam. School is a default choice, but don’t forget about the distractions and mad rush to the printers near the finish line. Second of all, pay even more attention to style and editing. Your professor will expect something more polished than a 3-hour final. Budget at least a half-hour, if not more, to edit and revise your work. Never underestimate the importance of a well-written paper.Step 3: never panic—take a deep breath and press on
The competitive nature of law school makes even the brightest students think they are in the wrong line of work. I’ll never forget looking at one of the class gunners during an exam and realizing he was sweating more profusely than anyone else in the room. That was pretty gratifying moment.
Regardless of how well you prepared, you are bound to get some curve balls during exams. But don’t forget that everyone else is getting the same curve balls and is probably as dumbfounded as you.
During my 2L year, the last essay question on an exam asked how a specific law applied to a situation. I stared at it blankly for five minutes and thought “it has zero application” but kept thinking I was missing something. Finally, I wrote sentence along the lines of “that law has no application to this situation.” Afterwards, I found out that it was a trick question—and I had written the best answer.
So when you find yourself freaking out and fighting your instincts, stop. Go get a drink of water, trust your gut, and answer the question. More often than not, your gut is right. And it’s a skill you need to start developing in law school.
This was originally published on January 8, 2013, but since fall semester exams start next week for many, it seemed like time to put it back on the front page.
Featured image: “Perfect school grade A plus of exam and happy woman” from Shutterstock.
How to Succeed on Law School Exams is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
Buying a good document scanner is obviously critical for going paperless. So is a solid backup strategy. But there is a bit more to going paperless than that. You need to think about your paperless workflow.
In other words, how will make sure you collect, scan and file all the documents that come into your office? And I am using the word office loosely, here. You may get things in the mail, by email, or from other sources. You have to make sure you collect everything, scan everything, and until you scan it, keep stuff that has not been scanned and filed separate from stuff that has. If you do not, you will waste a lot of time, at best. At worst, you could lose documents.
Nothing may leave the inbox unless it is scanned before you do anything else with it.Adopt inbox-centric thinking
The inbox is probably the most-crucial element in a paperless office. Your inbox collects the document you need to scan and file. That means your inbox must be sacred. Here is my rule: Nothing may leave the inbox unless it is scanned before you do anything else with it.
This is a hard-and-fast rule. Violating this rule is grounds for dismissal from the firm.
If you go paperless, you have to know that your digital file is complete. You can only have one, complete copy of your file, and it should be the digital one. Once you go paperless, the digital file is the useful one, the one that will be backed up remotely and redundantly, and the one you will be working from. You should be able to shred anything that is not (a) in your inbox, or (b) filed away in your physical file cabinet, which you should not need to access very often.
The only way to ensure that your digital file is the complete one is to have a hard point at which files make the transition from not-filed to filed. That should be your inbox. Your inbox_es_, really. Besides the one on your desk, you obviously have an email inbox, and you probably have other inboxes that you use to collect things that need to be filed in your clients’ files. Keep track of all of them, and apply this rule to all of them.After the inbox
Everything that is not in your inbox or in your filing cabinet should be shreddable
Immediately after you pick something up from the inbox, it must go into your scanner, after which you should file it where it belongs. Now, you can do one of the following with the paper you just scanned:
You will probably shred most of the paper you get. Getting rid of paper, after all, is the best part about going paperless. Most of the paper you get is not worth keeping, anyway.
But think about the word paperless as meaning less paper, not no paper. In addition to originals you have to keep, keep whatever other paper you want to, for whatever reason. Just remember that your digital file is your “real” file. In a paperless office, there should be only two kinds of paper outside of the inbox:
Everything that is not in your inbox or in your filing cabinet should be shreddable, even if you do not actually shred it.Alternative approaches
There are many other ways to manage your paperless workflow, but I don’t think any of them are as simple and effective as what I have suggested, at least not for small firms. The above rules are clear and easy to follow, which makes it easy to hold lawyers and staff accountable if they don’t follow them.
Going paperless should be efficient, not tedious.
Some offices do not scan everything that comes in, and instead prefer to stamp documents that have been scanned. This eliminates the need to be draconian about the inbox, but it introduces inefficiency and the potential for confusion into the process. At some point during every file, someone will have to manually sort through a stack of paper, looking for SCANNED stamps.
Going paperless should be efficient, not tedious. Create an unbreakable “wall” between paper than has been scanned and paper that has not.
Other offices do not scan files in progress, but only digitize their archives. While digital archives have advantages over paper archives, this defeats nearly every other advantage of going paperless. If your files are on paper, they are not backed up. You cannot access them remotely. You cannot sync them to all your computers. You cannot pull them up on your phone. You can do this, but if you do, you are really missing out on the advantages of going paperless. Since you will be scanning everything, anyway, why not do it up front?
The only time I think it makes sense to try another approach is when your firm is big enough that it would be difficult to put a scanner on every lawyer’s desk (or their assistant’s desk) and ensure they are all following procedures correctly.Bigger firms
If your office is big enough that lawyers do not do their own filing, putting a scanner on each lawyer’s desk probably does not make sense. The scanners should probably go on the secretaries’ or paralegals’ desks. Otherwise, the system can function pretty much as above, with one exception. You will need a way to inform the lawyers when they have a new document to review.
As new documents are scanned and filed, the responsible lawyer(s) (and their staff), may need to know about the new documents. I can think of a few ways to do this:
Those are just a few of my ideas. If you have found something else that works, please let us know in the comments.
If your firm is big enough that you have someone (or a department) responsible for mail, you should probably incorporate scanning into that department so that everything is gathered and scanned centrally. The scanning department would then be in charge of circulating documents or notices to the appropriate lawyers and staff. Or, perhaps, a new department is necessary to handle the scanning and notification, depending on the size of the operation.
But as soon as you take responsibility for managing the file away from the lawyer, documents can start to fall through the cracks if you are not careful. Even if you have a central department scanning and distributing incoming documents, what about email? What about phones? What about the lawyers’ notes?
Whatever you do, make sure you have a solution for collecting all the documents relevant to a file.
And if you are at the scale where you are realistically considering a central scanning department, you should probably hire a consultant to help you procure the right equipment and create a paperless workflow and procedures.Closing files
When you terminate the representation, get rid of any paper you still have by sending it to your client, along with a copy of their digital file on a CD, DVD, or USB drive. (Use a storage format they are likely to be able to access from a typical computer. Also, notify your client of your document destruction policy, and let them know that when the time comes, you will be destroying their file without further notice to them.
In order to do this, you have to make sure you have gathered everything into the file. That means emails, notes, drafts, documents, etc. Make sure you can gather everything into the client’s digital file, in one place. If you have physical evidence, take a picture and return the original to its owner. When you close a file, your goal should be to have nothing but a single file in your archive, which you will delete in 10 years (or whatever your malpractice insurance carrier recomments).Take the time to design a paperless workflow
Once you find out how simple it is to scan things, you may be tempted to just dive in and start scanning everything in sight. That is actually a good idea, at first, but you need to come up with a system to make sure that you collect, scan, and file every document that comes into your office, or that you generate, or that otherwise materializes. The best way to do this is with a firm inbox policy that separates documents that are not scanned from those that are, and can be shredded.
This article was originally published on August 10, 2010. It was pretty much entirely rewritten before being republished on December 4, 2013.
How to Design Your Firm’s Paperless Workflow is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
Technological incompetence used to be merely a competitive disadvantage. Now, it is a potential ethics violation — or even legal malpractice.
During my first year of law school, we were not allowed to do computerized research. Instead, we were taught to use the leather-bound reporters, Shepherds, and treatises. It was only during our second year that we were deemed worthy to use Westlaw and Lexis to “confirm” our book findings. (Of course, I doubt any of us ventured into the stacks again.)
This approach reflected the general attitude of the legal profession in the mid-to-late 1990s. Technology was grudgingly accepted, but not required. Lawyers at big firms had online research accounts and solos went to the law library to use the books. Nobody thought anything was wrong with this, although online research did give big firms a competitive edge.
In 2013, email is ubiquitous, and just about every lawyer has some form of electronic research available on his laptop, tablet, or phone. And everyone — lawyers included — uses Google to find everything else. In law practice, that includes research on witnesses, opponents, judges, and anything else not found in a Fastcase, Westlaw, or Lexis database. Technology is an unavoidable part of practicing law.Ethics rules follow practice
The ethics rulemakers have taken note of this evolution, and the rules have grown to require technological competence.Lawyers cannot ignore technology
The ABA made it abundantly clear that lawyers must keep up with technology when it amended comment 8 to Model Rule 1.1 on competence. Comment 8 now reads:
To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.
As Nicole Black, Director of Business Development at MyCase, puts it, “I think it’s pretty clear that […] lawyers can no longer turn a blind eye to technological advancements and their effect on the practice of law.” Without necessarily invoking the ABA comment, courts are taking a similar approach.
“The court considered it a “matter of professional competence” that lawyers should investigate social networking sites ….”The duty to Google
A seminal case in the area of availability of information and lawyers’ obligations to seek it out is Johnson v. McCullough, 306 S.W.3d 551 (Mo. 2010, en banc), in which a party sought a new trial based on a juror’s nondisclosure of his litigation history. While acknowledging the lack of a Supreme Court rule on the extent to which a party is required to research a potential or actual juror, the court stated:
[I]n light of advances in technology allowing greater access to information that can inform a trial court about the past litigation history of venire members, it is appropriate to place a greater burden on the parties to bring such matters to the court’s attention at an earlier stage. Litigants should not be allowed to wait until a verdict has been rendered to perform a Case.net [state online database similar to PACER] search for jurors’ prior litigation history when, in many instances, the search also could have been done in the final stages of jury selection or after the jury was selected but prior to the jury being empanelled.
Johnson, 306 S.W.3d at 558-59.
The court ultimately ruled that parties must use “reasonable efforts” to conduct the described search, and courts must ensure the parties have a reasonable opportunity to do so. Given this rule, if a lawyer in Missouri fails to conduct this search and later discovers information that may have impacted a juror’s service, he is likely to find the court unsympathetic to a motion for new trial. And in that case, the lawyer may have committed malpractice and an ethical violation.
Maryland took a similar approach in Griffin v. Maryland, 192 Md. App. 518 (2010), where the court considered it a “matter of professional competence” that lawyers should investigate social networking sites as part of their due diligence. (Griffin’s holding on authentication of that social media evidence was overruled on appeal, but the appellate court took no issue with the idea that attorneys have an obligation to review social media evidence as part of their due diligence.)
“We have not quite reached the level of ‘if you can google it, you must,’ but we are fast approaching it.”Judges can use Google, too
Other courts have ruled against parties claiming not to be able to find particular people (usually other parties to the case) when searches turn up contact information not found by the complaining party. For example, see Munster v. Groce, No. 18A02-0409-CV-738, n.3 (Ct. App. Ind. 2005) (court stated that “In fact, we discovered, upon entering ‘Joe Groce Indiana’ into the Google™ search engine, an address for Groce that differed from either address used in this case, as well as an apparent obituary for Groce’s mother that listed numerous surviving relatives who might have known his whereabouts.”); DuBois v. Butler, 901 So.2d 1029 (2005) (in referring to locating a party, “advances in modern technology and the widespread use of the Internet have sent the investigative technique of a call to directory assistance the way of the horse and buggy and the eight track stereo”).
We have not quite reached the level of “if you can Google it, you must,” but we are fast approaching it. Lawyers are no longer safe ignoring potentially-discoverable information online.
These examples pertain to due diligence in litigation, but the vast possibilities for extrapolating these rules are limitless. What if a party to a contract could have discovered a mistake of fact or a fraudulent misrepresentation with a simple Google search? Parties’ rights may be tremendously affected by the availability of information online, and attorneys’ failure to attempt to locate that information may prove fatal to claims and careers.Technology competence is now required
Even seemingly minor administrative details of practicing law are now unavoidably ruled by technology. In the mid-1990s, as email began to emerge as a societal trend, it was frowned on by the legal profession. In 1999, email was still a clunky and barely-used tool at the federal court where I clerked. It was used primarily to let us know of building closings and fire drills. We certainly had no significant contact with each other or counsel appearing before the court. We did not even email draft opinions to our judges; they were printed out and hand-delivered.
“The obligation to keep up with technology is not a directive to buy every new gadget and gizmo.”
Now, many states require attorneys to maintain an active email account, to monitor that account and respond to messages, and to disclose the email address to the state bar. A South Carolina lawyer was even suspended recently for failing to do so. See Supreme Court of South Carolina Order in Appellate Case No. 2012-213164 (discussed in detail by Nicole Black on her blog, Sui Generis). Attorneys must at least be competent in electronic discovery and know what options are available for electronic storage of documents and files.E-discovery competence
In order to competently conduct discovery and meet the relevant ethical obligations, lawyers cannot bury their heads in the sand about electronic documents and the trails they leave behind.
When the concept of e-discovery began to emerge, it seemed primarily limited to BigLaw litigation involving big, corporate clients. My own experience was a securities enforcement action in 2001, where we combed through audit workpapers and emails using a Lotus database. Now, even litigation between individuals represented by solo attorneys is likely to involve electronic discovery.
Effectively performing e-discovery is required by basic rules such as ABA Model Rule 1.1 on the duty of competence and the Federal Rules of Civil Procedure on e-discovery. Preservation of electronic documents on your own side of litigation is mandated by the same rules always governing preservation of evidence (such as ABA Model Rule 3.4), and also by specific e-discovery rules in place in the Federal (such as FRCP 26(f)) and some state courts. Moreover, the Federal courts require parties and counsel to report to the court on the details of their e-discovery, bringing in attorneys’ duty of candor to the tribunal (ABA Model Rule 3.4).
Failure to adequately and competently perform e-discovery is a host of ethical violations just waiting to happen.Staying on top of tech trends
The obligation to keep up with technology is not a directive to buy every new gadget and gizmo. It most certainly does not mean you must use them in your practice.
New technology like cloud computing makes tasks like file sharing quick and easy, but lawyers must consider client confidentiality and data security. So far, seventeen states have weighed in on the question of how to use cloud computing within the confines of ethical rules. They primarily focus on balancing risks and benefits while ensuring client files remain safe and secure. (For more detail, see my article on upcoming regulations.)
Of course, approaching new technology with caution does not mean discarding it until ethics regulators form an opinion. Regulators are often slow to act, for good reasons, and while we wait for them, some technology has the potential to quickly resolve dilemmas facing attorneys. For example, disasters like hurricanes Katrina and Sandy resulted in chaos in the courts as courts and attorneys lost files. It would most likely be a violation of Model Rule 1.1 to ignore remote backup in any state, but especially if you live in an area at risk of similar natural disasters.Luddites are at a competitive disadvantage
Technological competence is not just unethical; it can make you look foolish and impair your effectiveness as an advocate.
A great illustration of this went viral during the George Zimmerman murder trial, when the prosecutor attempted to show that a witness had close ties to Zimmerman’s brother by introducing her Facebook and Twitter pages.
Here, he attempts to show the brother and witness were connected on Facebook and Twitter. But his complete lack of understanding of either platform makes the whole thing laughable. The prosecutor may not have violated any ethics rules, but he looked like a fool in front of the jury.
This problem is not limited to the courtroom. Private lawyers may have a hard time getting hired if they cannot use technology efficiently. Billable rates are already high, and technologically-incompetent lawyers may spend too much time on tasks that technology should make simple. The result is, effectively, churning of the bill. One in-house lawyer even gives a skills test to potential outside counsel. The results of his initial test had 100% of 9 firms he tested failing miserably.Where the rules are heading
New rules and comments on attorneys’ need to keep up with technology have begun to propagate, and more will follow. With substantive rules come ethical obligations and malpractice standards. The age of the law firm partner who can’t remember what Facebook is called, or who asks his secretary to print out his emails, or who goofs up a video conference during trial, is past. Technology is integral to the practice of law, from both a practical and ethical perspective.
Luddite Lawyers Are Ethical Violations Waiting To Happen is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
Plaintiffs’ contingency fee litigation is costly and risky. Occasionally, fee delays and litigation costs can build up, leaving the firm in a bit of a slump. Working with traditional lenders can be troublesome. These cash flow issues can seem overwhelming, but fortunately, specialty litigation finance companies offer a solution in Attorney Fee Acceleration. Fee acceleration is when a specialty funding company offers an advance on an attorney’s legal fees when a settlement payout has been significantly delayed. This product, offered by certain legal funding companies, can help contingency fee attorneys who are struggling with difficult cash flow issues.
Contingency fee law practice is an inherently risky endeavor. For one, contingency fee attorneys do not charge an hourly rate, and do not accept payment until after a settlement has been awarded and paid. This means that an attorney can go the entire duration of a case without receiving any payment. Secondly, contingency fee attorneys often invest their own funds into cases and the firm’s other expenses. It’s uncertain whether there will be a return on investment at the end of the day; cases can be lost, or settle for less money than anticipated. Moreover, attorney fees can be challenged by the judge, defense, or client, and wind up being reduced. It’s uncertain whether or not the case in question will even settle favorably. Cases can be lost, or settle for much less than originally anticipated. Basically, attorneys invest incredible amounts of time, energy, and capital into cases that may not make them any money in the end.
The costs associated with litigation, as both plaintiffs’ and defense attorneys are aware, can be enormous. However, defense firms are often more well-off than plaintiffs’ firms, and usually have an easier time financing litigation because they are paid either at the beginning of the litigation process, or are paid incrementally throughout the case. Contingency fee plaintiffs’ attorneys are not, and are responsible for financing litigation without advanced payment. The litigation costs that attorneys are responsible for include discovery, expert witnesses, deposition, document production, and travel, among other things. Financing litigation of a single case, or even multiple cases, coupled with potential payout delays, can create a huge financial burden for contingency fee attorneys. In this situation, many contingency fee plaintiffs’ attorneys will seek financial assistance.
At first glance, traditional lenders seem like a good option because they offer relatively low interest rates and are typically low-risk. However, for attorneys, traditional forms of financing, like bank lines of credit or personal loans, make it difficult to acquire enough money to finance necessary expenses. Traditional lenders seek physical collateral, which attorneys and law firms lack. Many plaintiffs’ attorneys rent office space, so the office could not be used as collateral, and a bank is less than likely to accept an attorney’s desk as a secured deposit. On top of that, the bank will not accept the attorney’s balance sheets as real value. An attorney’s balance sheet is based on projected payouts without any set payout date. Unlike most companies that can use invoices as valued collateral, the nature of contingency fee work is too uncertain for securing traditional loans. Fortunately, non-traditional funders offer services that do not require secured collateral, and have financial services tailored specifically to meet an attorney’s needs. One such service, as mentioned earlier, is post-settlement attorney fee acceleration.
Fee acceleration has many benefits, both in terms of the financial stability that it offers, and in terms of the convenience of application. Unlike a traditional loan, accelerating legal fees does not require collateral, personal credit information, or knowledge of the attorney’s or firm’s assets. Only the delayed legal fee is considered for the funding application. Once an application is processed and approved, a contingency fee attorney can start reaping all the financial benefits of accelerated fees. With access to advanced capital, the law firm can start investing more into current and future cases, which will in turn allow the attorney to collect more fees down the road.
A law firm cannot be successful without the capital to invest in the future. If you ever find yourself in a position where your firm is struggling with cash flow, a post-settlement fee advance may be the best solution. Attorney Fee Acceleration is one of the products offered by RD Legal Funding to provide contingency fee attorneys with the financial boost they need to run a successful practice. Fee Acceleration can help you access the capital you need to grow your firm, invest in new cases, and collect the top litigation resources you can. With a steady flow of capital, you can do the best you can possibly do for your client, which in turn helps you do the best you can do for your firm.
Attorney Fee Acceleration: A Solution to Law Firm Cash Flow Issues [Sponsored Post] is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
Practice management software can be an extraordinary tool for organizing your practice, especially if you have to coordinate with other attorneys or staff. But not everyone needs or wants to use it.
Software is not a silver bullet, either. It will not magically transform a disorganized practice into an organized one. It really only works if you have the discipline to stay organized in the first place. If you can do that, you can do it just as easily on paper. In fact, the best case management system I have used — by a long shot — is paper-based: my weekly work plan. (You can download it in .odt or .doc format.)
My work plan is just a template, obviously, but it is a pretty straightforward example of one. If you master work planning on paper, you will be less likely to miss dates or be surprised by deadlines, even if you decide to do your work planning in practice management software in the future. You may decide you prefer the advantages that come with planning in software, but it is just as likely that you decide paper is more effective. Give it a try, then decide.
Here is how to use a paper work plan:Plan weekly
Either Sunday night or Monday morning, sit down with your work plan from the previous week. By now, it will probably be covered in notes and scribbles, and that makes it the best place to start.
The first time you sit down to do work planning, of course, you will have a blank work plan. Here is how to fill it in.
Each open case file should be on its own row. In the CASE column goes your identifier for that case (client name, case number, or whatever you like). Under UPCOMING DATES, put all your hard deadlines and appointments. For example:
I have developed all sorts of little annotations and conventions for this column, and I am sure you will, too. Feel free to develop your own style, although you may want to develop a standard set of abbreviations if other people in your office may need to decipher your work plan.
Under DO NOW, put all the stuff you need to be working on for the client that you can be doing right now. I sometimes annotate these with dates, too, if there is no corresponding date in the previous column. For example, you might need to call your client to discuss a settlement offer, email your partner a quick status update, and figure out how to get a recording from your client into your digital file system. (Put everything you have to do on your work plan, big or small.)
Under DO LATER, put all the tasks you will have to do on the case, but that you do not need to be working on right now. Here, dates really are helpful. For example, if I know I will need to be working on a summary judgment brief in two months, I will put a start date or due date to remind me when to move it to the DO NOW column.
Under WAITING ON, put everything you are waiting for someone else to complete. I use this column as a tickler, and I also tend to send out a bunch of emails at the end of each week (gently) reminding people of the things I am waiting for them to do.
I generally type everything into my work plan at the beginning of the week, and then scribble all over it during the week week. When I sit down to do my work planning again, I start with the saved copy from the previous week, and add everything from my scribbled-up copy. I also scan my old work plans, which is probably not necessary.
Always leave a few blank rows at the bottom for new cases that come in during the upcoming week.Most-important tasks (MITs)
The top row of the work plan is for your most-important tasks. You can start filling in this row by looking down your UPCOMING DATES and DO NOW columns. If anything in those columns is due in the coming week, you may want to add a related task to the top row. For example, if you have a hearing on Wednesday, add a “hearing prep” MIT in the TUE box (this should also be in your DO NOW column for that matter).
Limit yourself to 2 or 3 MITs on most days. You should still feel pretty productive if you accomplish nothing but your MITs on a given day (along with all the fires you have to put out and the little things that come up during every work day).Take your work plan with you
I use a two-hole-punched manila folder for my work plan. That way, my work plan is a little protected (including from prying eyes), and I can fold it open and leave it on my desk. Whenever you learn of a deadline (a scheduling order arrives in the mail, for example), sit down and add the dates to your work plan. Do the same for any tasks that come up during the week. If something switches from a DO NOW task to a WAITING FOR task, scratch it out in the one column and move it to the other.
If you stay on top of your work plan, it will be a comprehensive, at-a-glance picture of your entire caseload. There’s no software I am aware of that can give you that kind of information. If you ever need someone to stand in for you in an emergency, all you need to do is hand them a copy of your work plan, scribbles and all. After a short orientation, they should be able to pick up right where you left off.Caveats
Okay, there are always caveats. I started out by saying that a paper work plan is “the ultimate case management software.” That’s true, but it obviously does not have all the features of full-fledged practice management software. For example, it will not handle your trust accounting. And if you try to manage more than one person’s caseload on a single work plan, it quickly becomes unwieldy and ineffective. But if you are managing your own caseload, and if it fits on a few pages, there is no better solution.
I don’t recommend that you give up your task manager and digital calendar, though. I would have a hard time getting by without Remember the Milk, especially for recurring tasks. And I definitely could not live without an online calendar synced up to my phone. Does this result in some duplication? You bet. But I’ve never regretted having to double- or triple-check my scheduling order deadlines. Keeping my paper work plan “synced” to my task manager and calendar is good redundancy.
You can easily do the same with practice management software. A paper work plan complements just about every productivity system. So whether you love your cloud-based practice management software or not, give paper work planning a try.
This article was originally published on July 30th, 2013. It was significantly updated and re-published on November 30, 2013.
The Ultimate Case Management System: a Paper Work Plan is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
Conveying the meaning of laws to human beings is hard enough when you can use your own words. But sometimes the law itself dictates the exact language — including fonts, capitalization, boldface, and more — that you must use to convey its meaning.
The result is to obscure the meaning of laws, whether or not that’s what the lawmakers intended.The law looks terrible
Let’s take the all-too-common requirement that some piece of the law be displayed somewhere in ALL CAPS. This provision in a life insurance–related law in Minnesota requires insurers to provide a certain disclosure immediately above the signature line with the word WARNING in 14-point boldface capital letters. The remainder of the text must be in 10-point boldface capital letters. See Minn. Stat. 62B.04 subd. 2(b).
Here is what the disclaimer ends up looking like:
WARNING: IF YOU BECOME DISABLED AS DEFINED IN THE POLICY/CERTIFICATE, THIS DISABILITY INSURANCE POLICY/CERTIFICATE MAY NOT COVER YOUR ENTIRE INDEBTEDNESS. IF YOU BECOME DISABLED AT A POINT WHERE THE NUMBER OF MONTHLY INSTALLMENT PAYMENTS REMAINING EXCEEDS THE PERIOD OF COVERAGE BEING PROVIDED BY THIS POLICY/CERTIFICATE, THE BENEFITS AVAILABLE WILL BE LESS THAN THE AMOUNT NECESSARY TO PAY OFF YOUR LOAN. IF YOU WANT COVERAGE FOR THE FULL AMOUNT OF YOUR INDEBTEDNESS OR HAVE ANY QUESTIONS ABOUT THE EXTENT OR NATURE OF YOUR COVERAGE, YOU SHOULD DISCUSS THEM WITH YOUR AGENT AND/OR ENROLLER BEFORE SUBMITTING YOUR APPLICATION.
(Except probably in a terrible font like Times New Roman so it is even more squished together.)
What happened to you when you started reading that? I describe it as my brain starting to hum. It begins in the second line or so and drowns out any ability I have to read the thing. The hum stops only when I get to the end of the giant glob of text. And I am not alone.
Typographic studies reinforce the fact that reading all-caps text decreases your reading speed anywhere from 13 to 20%. Contracts, of course, are not works of art. There is little incentive to slow down rather than just skim or skip the all-caps text entirely.
Web readability discussions also help illuminate why our brain fails to comprehend the wall of ALL-CAPS text:
When we read, we don’t actually look at every letter in a sentence, but actually the shapes of the words. When text is in All Caps, the height of every letter is identical making every word an even rectangular shape, forcing us to read letter-by-letter, reducing our reading speed. Take a look at the shapes made by the two words below.
Similarly, typographer Matthew Butterick points out that making everything bold does not lead the reader to understanding that you want to place particular emphasis on the bolded text. If everything is emphasized, says Butterick, nothing is emphasized.
So both Butterick and the government tell you that using ALL CAPS or bold text for more than a few words actually slows your comprehension. This does not end up being a problem just for lawyers and briefs. That disclaimer is required — in exactly that format — in contracts a layperson is supposed to read, comprehend, and sign.
For a real glimpse at the underbelly of legal language gone horribly awry, take a look at franchise agreements. If you apply to be a franchisee for, say, Subway, you will be faced with a thicket of legalese that differs depending on what state you’re in. Here’s an example of the language and format required in Hawaii:
THESE FRANCHISES WILL BE/HAVE BEEN FILED UNDER THE FRANCHISE INVESTMENT LAW OF THE STATE OF HAWAII. FILING DOES NOT CONSTITUTE APPROVAL, RECOMMENDATION OR ENDORSEMENT BY THE DIRECTOR OF COMMERCE AND CONSUMER AFFAIRS OR A FINDING BY THE DIRECTOR OF COMMERCE AND CONSUMER AFFAIRS THAT THE INFORMATION PROVIDED HEREIN IS TRUE, COMPLETE AND NOT MISLEADING.
THE FRANCHISE INVESTMENT LAW MAKES IT UNLAWFUL TO OFFER OR SELL ANY FRANCHISE IN THIS STATE WITHOUT FIRST PROVIDING TO THE PROSPECTIVE FRANCHISEE, OR SUBFRANCHISOR, AT LEAST SEVEN DAYS PRIOR TO THE EXECUTION BY THE PROSPECTIVE FRANCHISEE OF ANY BINDING FRANCHISE OR OTHER AGREEMENT, OR AT LEAST SEVEN DAYS PRIOR TO THE PAYMENT OF ANY CONSIDERATION BY THE FRANCHISEE, OR SUBFRANCHISOR, WHICHEVER OCCURS FIRST, A COPY OF THE OFFERING CIRCULAR, TOGETHER WITH A COPY OF ALL PROPOSED AGREEMENTS RELATING TO THE SALE OF THE FRANCHISE.
THIS OFFERING CIRCULAR CONTAINS A SUMMARY ONLY OF CERTAIN MATERIAL PROVISIONS OF THE FRANCHISE AGREEMENT. THE CONTRACT OR AGREEMENT SHOULD BE REFERRED TO FOR A STATEMENT OF ALL RIGHTS, CONDITIONS, RESTRICTIONS AND OBLIGATIONS OF BOTH THE FRANCHISOR AND THE FRANCHISEE.
That is a veritable wall of words to say four simple things:
Worse, sometimes the contract contains an all-in-one state law attachment that includes law for states you are not actually in.
To make things even more difficult, much key information shows up on a computer screen — legalese and all. That makes perfect sense, but reading on a screen is slower — about 25% slower —than reading in paper. There is also evidence that we lose reading comprehension when we shift to the screen. It turns out that we often “map” where we see things on the printed page, and we lose that ability onscreen, which can lead to less understanding of the text. We also fail to re-read difficult sections when we read on a screen, so we don’t check out whether and how we are understanding the material. In short, we skim when things get difficult (probably unconsciously to get back up to our on-paper speed) which means we don’t necessarily take the time to absorb key information.
Nowhere is this more true than in the land of software and website terms and conditions. Apple’s iTunes Terms and Conditions is one of the most legendary, clocking in around 56 pages and being read by pretty much no one. The sheer length of everything that a company deems legally necessary to protect itself practically guarantees a consumer won’t read or comprehend it. Indeed, three years ago, 7,500 unwitting shoppers who didn’t read some terms and conditions agreed to give a British gaming company their immortal souls:
By placing an order via this Web site on the first day of the fourth month of the year 2010 Anno Domini, you agree to grant Us a non transferable option to claim, for now and for ever more, your immortal soul. Should We wish to exercise this option, you agree to surrender your immortal soul, and any claim you may have on it, within 5 (five) working days of receiving written notification from gamesation.co.uk or one of its duly authorised minions.
In an odd twist, though the laws themselves contain a great deal of superfluous and deliberately difficult language that gets codified into required documents, notices, and signs, the government itself has made great strides in creating easy-to-follow explanations of key laws and rights. There are highly-readable posters for key laws like OSHA and the Fair Labor Standards Act. Those posters are the very epitome of readability, and follow many of the principles laid out by web usability gurus like Jakob Nielsen. The federal government also maintains a usability site with information on how to make websites easy to read and navigate. If only the government took its own advice with the first iteration of healthcare.gov, which Nielsen points out has at least ten usability failures. That’s an unfortunate stumble, but doesn’t change the fact that the government has actually been working hard to ensure, rather than obscure, understanding in some key areas.
All of this bad writing raises an interesting question: can we ever get out from under a law because it is just too terribly-written for us to understand? Can we have a cause of action based on, essentially, a void-for-vagueness argument that no one could rationally follow what the required language of the law actually meant?
There have already been numerous lawsuits about the Byzantine language of contract terms and conditions. Spoiler alert: the consumer almost always loses. Courts have even held that it doesn’t matter if you don’t click through and read the gazillion pages of conditions. Simply by being near them or performing certain actions like purchasing tickets will be enough for a court to presume you knew what you were getting into. These activities, though, are voluntary. You can decide not to download music from iTunes or buy tickets through Ticketmaster. (And really, don’t buy tickets through Ticketmaster if you can at all manage it anyway. Your pocketbook will thank you.) You can’t, however, decide to draft your franchise contract and omit the terrible government-mandated language. As a lawyer, you’d probably hesitate about even adding a section to that language that purported to explain it. Do you really want to be on the hook for saying you know what the government was trying to say? Do you want to end up in court arguing about which interpretation controls the contract — your explanation or the mandated language? Of course not.
Judges have found statutory language incomprehensible, however. On at least one occasion a judge declared that a longstanding finance-charge statute was unconstitutional because it was incomprehensible, even though the lender used the formula exactly as stated in the statute. This appeared, ultimately, to be only for show, as the charge was ultimately reinstated and upheld by the same judge, but it’s useful to take a look at the language he took issue with.
(1) The finance charge in a retail installment sale shall not exceed the following rates:
Class 1. Any new or used motor vehicle designated by the manufacturer by a year model not earlier than the year in which the sale is made–eleven dollars ($11) per one hundred dollars ($100).
Class 2. Any new motor vehicle not in class 1 and any used motor vehicle designated by the manufacturer by a year model of one (1) or two (2) years prior to the year in which the sale is made–thirteen dollars *680 ($13) per one hundred dollars ($100).
Class 3. All other motor vehicles not in class 1 or 2–fifteen dollars ($15) per one hundred dollars ($100).
(2) Such finance charge shall be computed on the principal balance as determined under KRS section 190.100(2) on contracts payable in successive monthly payments substantially equal in amount extending for a period of one (1) year. On contracts providing for installment payments extending for a period less than or greater than one (1) year, the finance charge shall be computed proportionately.
(3) When a retail installment contract provides for unequal or irregular installment payments, the finance charge shall be at the effective rate provided in subsection (1) of this section, having due regard for the schedule of payment.
(4) The finance charge allowed by this section may be pre-computed by using an add-on method. Alternatively, the seller may, at his option, compute the finance charge on a simple interest basis, at a fixed or variable rate, but in such case the amount of finance charge that the seller may collect shall not exceed the amount that could be collected if the finance charge were precomputed.
So. Any clue, if that was in your installment agreement, what your finance charge would be on a 1997 Mazda? Me either. And the judge couldn’t figure it out either. He ruled, sua sponte, that the statute was unconstitutional and void for vagueness, as it was not written “in language that the people upon whom it is designed to operate or whom it affects can understand” because it essentially required a borrower to apply an algebraic formula to determine the legality of the rate he or she was being charged.
Ultimately, all this bad legislative writing should be adding up to a cautionary tale for legislators and the public. Somewhere there is a lawsuit lurking that will invalidate something critical, something large, something that voids language that affects a ton of people. Perhaps that’s what legislators need to have happen in order to stop including incomprehensible-but-required provisions in the law.
How Laws Are Written So You Ignore the Important Parts is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
Organizing paperless client files is simple: organize digital client files exactly how you organized your files before you went paperless. Go with the “folder” analogy that your computer uses for organizing files, and use them just as you use your red ropes and manila folders.
Consider your “paper-full” workflow. You probably get a document in the mail, review it, then two-hole-punch it and add it to a manilla folder, which is put in a red rope “bucket file” and stored in your filing cabinet (or in a stack next to your desk). A paperless workflow is similar; but most of it happens on your computer. After you get a document in the mail, scan it and file it in a folder on your computer. That folder is similar to the manila folder, and it should be located within a folder for the client (the red rope) that is, in turn, stored in a Client Files folder (your filing cabinet).Client files folder structure
Here is an overview of how I organize my client files:
This is a screen capture from my actual client files archive, so I’ve blurred out the names of my clients, but you get the idea.
Instead of a filing cabinet, I have a folder called Client Files. Inside that folder are sub-folders (red ropes) for all of my client files. Each matter has the file number and client’s last name. You can use your /Client Files folder as a “tickler” for work planning meetings, if you are reasonably diligent about closing files.
Within my /Documents folder, I also have folders labeled Billing, Temporary, Closed Client Files, and Declined. (The Billing and Temporary folders are not shown in the image above, because it comes from my archive.) Here’s how I use each folder.
I also have a Client Files Archive folder in my Documents folder with a folder for each year. At the end of each year, I move all the inactive (closed and declined) files into an archive folder for that year. It helps keep my Client Files folder uncluttered, and makes it easy to delete archived client files on a ten-year schedule.Blank new folder template
I keep a blank new folder template handy for new files. Here is what it looks like:
It makes sense to stick your templates in your blank folder, as well. Put your letterhead and envelope templates in your Drafts folder, and a settlement negotiations spreadsheet in your Notes folder.File numbers
If you do not already have a file numbering scheme, try mine. I decided it was worthless to assign arbitrary numbers, and started using numbers that reflected the date the client signed a retainer. So if the client signed a retainer on August 3, 2013, the file number would be 130803. If multiple clients sign a retainer on the same day, just add a letter, like so: 130803a for the first, 130803b for the second, and so on. This makes it easy to tell, at a glance, how long a file has been open. That’s not information I need all the time, but it is more useful than consecutive numbering that says nothing at all about the file.File naming
File naming is also important. Generally, you would sort documents by the date of the document (not the date you scanned the document, which may be days — or years — later). To do this, start filenames with the date, year first: yyyy-mm-dd Filename.pdf. (You have to start with the year, or all your Januarys will end up next to one another. I prefer to separate the elements of the date with hyphens to make it easier to read the date when looking at a list of files.
One last thing. Do not store Word, WordPerfect, Pages, OpenOffice.org, etc., files in any folders other than Drafts or Notes. Those files are not copies of documents. They are malleable drafts that probably look slightly different on different computers, and can be easily edited. PDFs are documents (and PDF is the file format you should use).
The exception is when a client provides you with a digital document. In that case, store it in the format in which you received it in the Docs from Client folder, since that digital file is the actual document you were given.
This was originally published on October 20, 2010. It was significantly updated and re-published on November 25, 2013.
How to Organize Paperless Client Files is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
“I do not see much of a future (beyond 2020) for most small firms ….”
— Richard Susskind, Tomorrow’s Lawyers
Will the next 5–10 years really see the end of solos and small law firms? I’ve heard Susskind talk before, but today, I sat down with him at the William Mitchell College of Law to find out more about his predictions as they pertain to small law firms.The future according to Susskind
Susskind’s most-recent book, Tomorrow’s Lawyers, is short and worth a read, but I will try to do it justice in brief. Basically, the future according to Susskind will come about due to three drivers of change:
In the near future, cost will be the biggest driver of change. On the big-corporations-and-big-firms end of the spectrum, Susskind says in-house counsel are being pressured to reduce their legal “spend” by 30–50%. I recently covered the other end of the spectrum, at which lots of people cannot afford the legal help they need. The bottom line is that people and corporations cannot or will not pay the same prices today or going forward that they have been paying — or at least, were paying up until 2006 or so.
Downward pressure on legal fees, Susskind believes, must drive sweeping changes to the way firms and clients operate. The end result is that few clients will tolerate lawyers who bill time for doing work that does not require a law degree, and the amount of “bespoke” legal work performed by lawyers will shrink as far as possible. Some of the things lawyers do now (document review, legal research, project management, negotiation) do not require a law degree. Lawyers will not be doing those things. Some of the things that require a law degree (everything LegalZoom does) do not require a human being. Lawyers will not be doing those things, either.
What’s left? Litigators will still be around for strategy, tactics, and advocacy. Transactional lawyers will still be around for bespoke drafting and legal advice. The rest of the lawyers will be performing non-traditional roles, which Susskind describes in Chapter 11 of Tomorrow’s Lawyers. Here they are, as he names them:
If those sound more like supporting roles than what you went to law school for, then you are on the right track. None of them require a law degree, and all of them require skills not currently taught in law schools. Those are tomorrow’s lawyers, according to Susskind, with the exception of the few (“expert trusted advisors” and “enhanced practitioners”) who manage to find a traditional role to play.Liberalization
“[i]t is our collective arrogance as lawyers that we feel we can take on a neighboring discipline over a weekend.”
I recently wrote about whether it is time for non-lawyer ownership. Susskind, like Andy Daws, unequivocally says yes. I asked Susskind the question left over from my previous article: can corporate structures really be so much more efficient than law firms?
Yes, he says. Alternative Business Structures (ABS) in Europe are showing cost savings of 30–40% and higher client satisfaction. He tells a joke about litigators, who frequently tell him their job is more project management than anything else. When he asks what training they have, some answer that they took a two-day course. He says “[i]t is our collective arrogance as lawyers that we feel we can take on a neighboring discipline over a weekend.” That rings true. (It probably explains all the lawyers-turned-marketers, too.)
Putting real project managers in charge of litigation makes more sense, says Susskind, but law firms are unwilling or unable to do so. That kind of specialization — and the efficiency that comes with it — will only come with non-lawyer owners.
Non-lawyer ownership is off the table in the U.S., at the moment. But Susskind thinks the U.S. will eventually allow non-lawyer ownership because U.S.-based international firms will push for it. Without non-lawyer investment and ownership, U.S.-based firms may find themselves at a competitive disadvantage, but in any case their clients will demand the same sort of service they are used to at home. This pressure will build until big law firms themselves become the ones lobbying for non-lawyer ownership in the U.S.
Liberalization boils down to lawyers giving up the non-lawyering parts of running a firm, and focusing on lawyering while other tasks are handled by people more competent to handle those tasks.Technology
After describing Moore’s Law for those who still aren’t aware of it (i.e., most of an audience of lawyers), Susskind writes:
You can call me radical, but it seems to me that if we can see the day when the average desktop machine will have more processing power than all of humanity combined, then it might be time for lawyers to rethink some of their working practices. It is simply inconceivable that information technology will radically alter all corners of our economy and society and yet somehow legal work will be exempt from any change.
When is that day? 2050, give or take a year or two. Susskind is obviously not radical. Assuming there is any way for human lawyers to compete with an artificial brain the size of a planet (much less one on every desktop), legal work will likely be different.
What form this will take, exactly, is hard to predict, though. Susskind talks about the potential for teleconferencing to change the way we meet with clients and attend court, and he thinks online dispute resolution could offer substantial advantages over litigation. Plus, that sort of processing power should be able to make serious inroads on actual legal work (estate planning lawyers, your days are numbered) by online legal services, which may be increasingly free.
But those are all fairly routine changes. When lawyers — along with everyone else — have all the processing power of humankind on an iPad, it seems like science fiction may be a better guide. But however this technological revolution comes to law, smart and experienced lawyers — or perhaps their AI replacements — will still need to do most of the programming.Is this really the future of law practice?
Nothing Susskind says seems particularly far-fetched. He’s not the only one who sees such changes coming down the pike, either, as this infographic shows:
Susskind is surely right that clients want more for less, and that technology has the potential to drive massive change in the legal industry, over time. Alternative business structures (non-lawyer ownership) seem less inevitable in the U.S., but their eventual existence does not seem like an unreasonable prediction.The small firm of the future
You will notice that, so far, Susskind’s descriptions and predictions are mostly for big firms. He really does not see much of a future for small firms, at least not as currently run. He added as currently run when I interviewed him in order to clarify his point. Small firms may not disappear, but just as large firms will have to fundamentally alter their business models, so will solo and small-firm lawyers, and Susskind believes it will be harder for them to do so.
Big firms and alternative business structures can scale to the point where they will be able to offer superior legal help at lower prices (even access-to-justice prices). This will leave little room for inefficient solos and small firms that cannot take advantage of the same economies of scale. To compete, small firms will have to figure out a way to take advantage of some of those same economies of scale, or else materially differentiate themselves.
The big firms and ABSes will be able to take on investment, use the skills of non-lawyers for work that is not strictly legal, and collaborate with one another on big-idea solutions, software, resources, etc. “Solosmalls” would be hard-pressed to do the same, which will put them at a serious competitive disadvantage. Think Wal-Mart running all the small businesses out of town. In short, solosmalls may have to surrender their lunches.
If Susskind is right about the future of law practice, solos should be worried enough to start exploring alternative ways to practice law.
Susskind did concede that his predictions may not apply to all solos and small firms. It is hard to imagine criminal defense lawyers being replaced any time soon, for example. Not unless the criminal justice system undergoes sweeping changes. And to the extent there is still a need for litigation with all the online dispute resolution Susskind predicts will be going on, there will be a need for skilled and experienced lawyers to do it. But in the main, Susskind sees different roles for solos of the future. While he does not think solos and small firms will be competitive with big corporate legal service providers, he does think innovative small firms may be able to prosper other ways.
Solos and small firms of the future might work with those ABSes to handle bespoke work, for example. Maybe by officing in the same location or entering into a referral or independent-contractor agreement. Or they may be able to carve out a niche as a trusted advisor in smaller communities. There are also broad categories of law where consumers do not know or appreciate their rights and remedies — or even realize that a lawyer can help them. Perhaps a WebMD-like service for legal problems will be able to help in place of a lawyer, but based on my own experience, many people will still want a lawyer to guide them through the process, even if the process looks much different than it does now. And what about contingent-fee practices, where the client is not actually paying for the legal representation up-front. That would seem to take price considerations out of the picture.
But while Susskind seems pessimistic about the survival of solosmall, I don’t think it has to be that way. Solo and small-firms can be much more nimble. Change is relatively easy when you do not have to overhaul a massive, ponderous business organization. As a solo, adopting a new technology is easy. Want to go paperless? Buy a scanner and start scanning. Want to teleconference? Get a camera and a nice backdrop. Want to distribute online forms? Sign up for a service and paste a few lines of code into your website.
On the other hand, the collective arrogance Susskind describes is in full effect in solo practices and small firms. Solosmall lawyers not only do the legal work, they send the invoices, cut the checks, and manage the accounts. They answer the phones, do the marketing, and (try to) fix the computers. They review the documents and manage the staff. And they probably cannot afford to cut rates much more. In order to compete at lower rates, solosmalls will have to find ways to take advantages of economies of scale — without the scale.
That is a tall order. There may not be a need to panic, but if Susskind is right about the future of law practice, solos should be worried enough to start exploring alternative ways to practice law, from business structures to value propositions.
Then again, maybe he’s not right. Predicting the future is a messy business, and law has been remarkably resistant to change for decades, if not centuries. Maybe the next generation of lawyers really will still be banging out briefs and contracts, in Microsoft Word, on a computer than can simulate the mental capacity of the entire human race.
Is There a Future for Solos and Small Firms? is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
Marc Zwillinger is, in all likelihood, the only private lawyer in America to have argued a case in front of the Foreign Intelligence Surveillance Court of Review, or FISC-R. And though he has also litigated in the lower FISC — the so-called “rubber stamp” for approving government surveillance applications — Zwillinger did not know how to describe the place when I asked him. “There is no ‘setting foot’ inside the FISC,” he told me. “The case was litigated on the papers.”
“[F]iling documents with the court, frankly, has always been a little bit like trying to get a letter to Santa Claus.”
The case involved Yahoo!, Zwillinger’s client, which had apparently refused to comply with the NSA’s directive to Yahoo! to turn over private information about its users. The FISC-R recently released a heavily-redacted version of its 2008 order (pdf), in which it concluded that the directive was reasonable under the Fourth Amendment. This was only the second order to come down from the FISC-R in its lifetime.
The job of litigating a case in the FISC is unique, to say the least. On November 4, 2013, Zwillinger testified before the Privacy & Civil Liberties Oversight Board (PCLOB), the independent agency charged with parsing issues of privacy and civil liberties in light of national security. There Zwillinger said: “[T]he logistics of handling a classified litigation are very difficult, and filing documents with the court, frankly, has always been a little bit like trying to get a letter to Santa Claus. It requires a lot of blind faith.”The Foreign Intelligence Surveillance Court
Unlike the FISC-R, the lower FISC has been quite busy over the years, in its primary role as an “approver” of the government’s surveillance applications. The seven FISC judges are Article III judges, selected by the Chief Justice of the U.S. Supreme Court. Their primary job is to decide surveillance applications from federal law-enforcement agencies like the FBI and NSA, when those requests implicate national security.
Although the FISC has only recently become the target of criticism, it was originally created in 1978 to act as a check on the power of the executive. Before the FISC was created, the Senate’s Church Committee found that the executive branch was abusing its authority to conduct domestic surveillance. Today, however, the FISC does not seem to be much of a check. Since 1979 it has rejected just 11 surveillance applications, and granted 33,942, according to Wikipedia. But those numbers don’t tell the whole story.
On the surface the FISC seems willing to facilitate executive abuse of power. This has given rise to the widely-held characterization that the FISC is nothing more than a rubber stamp. But James Carr, who served as a FISC judge from 2002 to 2008, has a different opinion. Carr testified alongside Zwillinger on November 4th on the way FISC judges consider individual surveillance applications.
According to Carr, so-called “legal advisors” do the job of vetting surveillance applications even before they get into FISC judges’ hands. At the FISC, legal advisors function as neither law clerks nor magistrates. Their role, in part, is to push back against the Department of Justice and the intelligence agencies. They decide whether or not to formally present applications for judicial review. Those applications the advisors choose not to present are “off-docket” — simply not considered for approval — meaning that the true rate of rejections, even if those rejections don’t come from the judges themselves, is greater than that indicated by the 11 applications turned down since 1979.
This suggests an internal, quasi-adversarial process.
The problem, however, is that the adversarial process is a hallmark of our legal system, and Zwillinger and the Internet service providers he represents (and, by extension, the millions of users who expect some modicum of online privacy), play very little role in it.Zwillinger, lone defender of online privacy
Saying that Zwillinger is our lone defender of online privacy when it comes to national security is perhaps an overstatement. Google itself recently pushed back against NSA overreaching with its heady graphs on government requests for users’ information. And nearly all the big names in Internet service providers, from Google to Yahoo! to Facebook and others, are currently seeking a declaratory judgment from the FISC-R (Zwillinger is again representing Yahoo! in this case) asking the court for the authority to publish the number of surveillance demands — just the number — the government has made. In short, the service providers are asking for a bit more transparency.
But there’s some truth in my lone-defender label.
“[T]rying to meaningfully litigate in an adversarial way […] is an uphill battle.”
Whether or not the FISC is a rubber stamp is sort of beside the point. What matters is meaningful legal process. It is only possible, at the moment, to point to a dark gaping hole where process is concerned.
Zwillinger testified that the law is currently designed to make service providers like Yahoo! “the last bulwark” against overzealous surveillance, because the FISC does not have the authority to do a full review of a government directive unless a service provider first initiates a challenge. And it is exceedingly difficult for a provider to initiate a challenge, because they are the only parties with the statutory authority to challenge orders before they’re executed.
It’s not clear whether the law was intentionally designed this way, but it doesn’t matter. What matters is reflected in Zwillinger’s testimony: “[T]rying to meaningfully litigate in an adversarial way […] is an uphill battle.”
This is strong language coming from someone with his background.
Zwillinger started with the Department of Justice as a computer crime prosecutor. From there, he founded ZwillGen PLLC and went into private practice, defending clients facing government demands for electronic evidence in criminal cases. Zwillinger’s practice evolved to a point where he began helping clients respond to all types of demands for user data, in both civil and criminal cases, as well as intelligence cases under the Foreign Intelligence Surveillance Act, or FISA.
To date, Zwillinger’s 13-plus years in this line of work means that he understands a thing or two about litigating privacy cases, yet there he was in front of the PCLOB, using words like “uphill battle” in describing his experience litigating in the FISC.
It comes down to a veil of secrecy over anything that touches FISA law.The government’s show
The FISC procedural rules are available on the US Courts website. Reading them, it becomes clear that litigation in the FISC is the government’s show. Nothing makes that clearer than Rule 7(j), which requires the judge to review the government’s applications ex parte and in camera any time the government asks, which is, as Zwillinger testified, “very difficult to deal with and overcome.”
The government can serve unclassified, redacted versions of its submissions on other parties, as long as those versions clearly articulate the government’s arguments. If you go before the FISC, in other words, you will have to respond to a redacted version of the government’s pleadings, while everyone else knows what’s actually going on. Do redacted pleadings clearly articulate the government’s arguments in a meaningful way? Is clear articulation of the arguments, but with none or nearly none of the substantive facts, enough to craft a meaningful response?
The answer, generally, is no, and we start with how government orders first arrive on Internet service providers’ doorsteps.
“[A] decision by a provider to challenge must be made alone, under acute time pressure, with sensitivity to what’s at stake, with little context and while under a gag order.”
Zwillinger testified: “When providers are served with classified FISA orders or directives, they are seeing an entirely unfamiliar process containing very few specifics which they can review only for a brief period of time before they have to hand it back to the government. Yet based on that mere glimpse, they’re being asked to disclose — compelled to disclose — the most private user communications they carry.”
If a provider has the gall not to follow orders, the case moves to the challenge phase. This is where it starts to get even trickier, prompting Zwillinger’s references to Santa Claus and blind faith: “[A] decision by a provider to challenge must be made alone, under acute time pressure, with sensitivity to what’s at stake, with little context and while under a gag order.”
If a provider ultimately makes the decision to challenge, rest assured the ex parte provision will rear its ugly head during the litigation phase: “[E]ven when appearing before the court, the government regularly submits ex parte papers that a provider is not permitted to read, even if the provider is represented by a lawyer with the right clearance.”
Zwillinger is one of the few lawyers with the right clearance.
He had it eight years ago when a provider first asked the government to clear him so that he could give that provider legal advice. Zwillinger has held this security clearance ever since.The “independent counsel” idea
Would independent counsel help lift the veil of secrecy? Would it make litigating in the FISC more meaningful for private lawyers like Zwillinger and the providers he represents?
Carr, the former FISC judge, seems to believe that judges should have the opportunity to call on independent counsel on an as-needed basis. In his New York Times op-ed arguing for a better secret court, Carr wrote: “Congress can take a simple step to restore confidence in the court’s impartiality and integrity: authorizing its judges to appoint lawyers to serve the public interest when novel legal issues come before it.”
Scott Greenfield, criminal defense lawyer and author of the blog Simple Justice, wrote that it isn’t enough to authorize FISC judges to call on independent counsel only when they feel like it.
The point of an adversary system isn’t just to oppose the government’s lawyers arguing the government’s position for the government’s benefit, but to challenge the neutrals to be neutral. The government isn’t there only when the court decides it would be a good idea to hear from them, but to push the government’s agenda. To shackle the government’s adversary by only seeking an appearance when the court decides it could use a hand isn’t any adversary system at all.
Greenfield’s argument aligns with what Zwillinger, as a private lawyer with clients to represent, conveyed in his testimony before the PCLOB. Litigating in the FISC is like seeing snapshots of the landscape while bound and gagged in the trunk of a car (my tortured metaphor, not Zwillinger’s). From the miniscule crack in the lid, you can just barely see the landscape of the government’s arguments and the court’s decisions as they evolve, if at all. “[A]n advocate,” Zwillinger testified, “would know that two years ago the Solicitor General stood up and made a representation to the court that […] there is no database of incidentally-collected U.S. persons’ communications and only an advocate who had been there on several cases would know that the representations the government is making in one case may be inconsistent with the representations that are made in another.” (Emphasis mine.)
The problem right now is there is no advocate litigating in the FISC from case to case, which is why lawyers only get snapshots. So from Zwillinger’s perspective, the role of independent counsel should be much more than running to argue in the public interest when FISC judges call for them to do so. Independent counsel would have to be an integral, permanent part of the system, with a clearer view of the landscape of arguments and decisions the government makes, from Point A to Point B.Moving from blind faith to something better
In the end, the idea of independent counsel is just an idea. Who knows how far we will go until the idea becomes reality. For now, Zwillinger must deal not only with a lack of transparency but a lack of precedent.
“[N]obody’s been there before,” Carr testified, referring to when novel issues come up before the court. In other words, there really is very little precedent to build arguments on. This, combined with the redactions, makes for difficult advocacy (again, from the perspective of private counsel, not from the perspective of the government, which has all it needs to build its case).
But there are signs of improvement.
Zwillinger referred me to Tumblr, of all places, where the intelligence community has published some declassified documents. It’s even on Twitter @icontherecord (“Intelligence Community on the Record”). At the moment, the account has 2,330 followers. (Glenn Greenwald is among them, the journalist who originally broke the Snowden story.) This effort, along with the greater-than-believed rate of rejections of surveillance applications (even if we don’t know what the number actually is), indicates the slippery slope may not be quite as slippery as we thought.
Still, the current process of litigating in the FISC merits improvement.
As it stands now, looking again at the FISC-R’s 2008 order (pdf), you wouldn’t even know who —the NSA or the FBI or Martians — is making the application. That’s redacted. And you really have no idea whether the procedures in place to safeguard whatever level of privacy we are allowed to have are actually working, other than the assertion of earnest people that they are, in fact, working. Descriptions of all such procedures are redacted. The only thing we do know is what is publically available — i.e. not secret. Namely, that the NSA certifies to the Attorney General that who it wants to target is an agent of a foreign power. It does so through the means of a two- or three-page submission and an oral briefing.
Zwillinger’s testimony lends support: “In the 2008 case, the question was […] the lawfulness and constitutionality of the directive. The court relied heavily on the minimization of the targeting procedures to say that the procedures in place were sufficient to provide constitutional protection. The provider never got to see the minimization and targeting procedures and, had it not been for the leaks, it’s not clear we ever would have seen them. So […] without seeing some of the factual basis makes it very difficult to present a constitutional argument about whether the safeguards are sufficient.”
“Notwithstanding much that has been written in the press, the FISA court is a national treasure.
James Baker, the third panelist alongside Zwillinger and Carr at the PCLOB hearing, served as Foreign Intelligence Policy Counsel with the Department of Justice from 2001 to 2007. It was Baker’s job, in his role at the DOJ, to point out to judges like Carr any new or unusual surveillance techniques or requests the government wanted to use. Baker was, presumably, one of the government lawyers who would pull judges aside ex parte to discuss classified documents, while Zwillinger was forced to wait it out in the hallway. Having worked closely with the FISC, Baker seems to have formed the opinion that the court functions very well.
It is, in fact, “painful” for Baker to see that many Americans don’t share his point of view.
“Notwithstanding much that has been written in the press,” Baker testified, “the FISA court is a national treasure. It has done its job in exemplary fashion during wartime.” Apparently — and Baker does seem quite earnest — we are to take him at his word about how well the FISC works in balancing the interests of national security and citizens’ privacy.
The FISC may very well be a national treasure. It may very well have done an exemplary job. But this contention, like the contention that the FISC is nothing more than a rubber stamp, is beside the point. Litigating in the FISC is like arguing with a brick wall; you cannot meaningfully argue against the government when there is scant precedent on which to build a case, no true adversarial process as we’ve come to understand one, and where the facts on which the government relies to make its case have been attacked with a Sharpie.
Blind Faith: Litigating in the Foreign Intelligence Surveillance Court is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
While you may have to use a commercial printer for business cards, you do not necessarily need professionally-printed letterhead. If you already have a logo, you don’t even need professionally-designed letterhead; you can just DIY.
This is especially true when you consider that most correspondence never gets printed, and a lot of correspondence does not go out on letterhead in the first place. This makes DIY letterhead an increasingly defensible choice. Using resources like Typography for Lawyers, a few Word tips, and perhaps a bit of well-placed graphic design help, you can design your own letterhead. Here are step-by-step instructions for designing your own letterhead in Microsoft Word, plus examples from Lawyerist readers who have done just that.
Unless otherwise noted below, all instructions, screenshots and videos are for Microsoft Office 2010 for Windows.Sample DIY letterhead
Recently, I asked for samples of DIY letterhead in the LAB, and I got a bunch of responses. If you want to see what is possible on your own, check out the submissions. While there was a lot of diversity (and creativity) among the contributions, several people showed their Word savvy by using headers.Using the First-Page Header to Embed Letterhead Elements
If you want to make a letterhead template that’s both easy to use and difficult to accidentally screw up, you need to learn how headers work in Microsoft Word. Embedding all of the name and address information in the top of the document itself works fine as long as everyone who uses the template knows what they’re doing. In my view, though, it’s better to place that information out of harms way.
If you’re starting your letterhead template with a blank document (my recommendation), the first thing you’ll need to do is set up the document so that the first page has a distinct header from all following pages.
The easiest way to do that is double-click into the header area (or, you can go to the Insert tab and choose Header > Blank) and then, in the contextual tab that pops up (named “Header/Footer Tools”), check the box next to Different First Page. This, obviously, will ensure that only the first page of your letter will have the firm name/logo, address, etc. (or at least the large version of them).
While you’re in this contextual tab, you may want to make a decision about how far from the top of the paper you want your letterhead information to start appearing. By default, headers are 1/2 inch from the top edge of the paper. You may want to place your letterhead information a little higher, but if you’re actually planning on printing letters out, it may be wise to check to ensure your printer can actually deposit ink or toner that close to the edge of the paper.
The beauty of placing these elements into the header is that they stay safely separate from the text of the letter. You can always go back and change something in your letterhead template by double-clicking into the header, but there’s no danger of you accidentally backspacing over your phone number at the top, for example.
How you place those elements at the top is entirely up to you. For example, Mark J. Kolber placed his letterhead elements inside a table in the header, which is a really smart solution because it allowed him to place the address and other elements precisely:
What a lot of people don’t realize, however, is that header elements don’t always have to appear at the top. Several of the sharpest-looking samples we saw in the LAB printed the firm name and address information along the left-hand edge of the paper:
Both of the above samples use a technique involving embedding a text box inside the header and specifying its vertical and horizontal placement so that the letterhead information appears on the first page along the left-hand margin. The use of the text box technique also allows for embedding a logo file.
Let’s take a moment and deconstruct both of these examples to see how they executed this technique.
Want to learn how to do this yourself? Here’s a demonstration of how to embed, anchor and style a text box for left-margin letterhead:
The letterhead built in the video above really has the same left margins throughout the document, but because the first page text box is set up to have text wrapped around it, the text reverts to regular 1” margins on both left and right on the second and subsequent pages:
Because of the way Microsoft Word compresses image files, embedding logos requires a little extra work, especially if you plan on printing or exporting your letterhead to Adobe Acrobat. Beginning with Microsoft Word 2010, however, you can instruct Word to not compress images contained in a document. (Sorry, Word 2007 users — this option doesn’t exist for you.) When you finish creating your Word letterhead template, go to the File tab and click Options. Under Advanced, find the section called Image Size and Quality and check the box “Do not compress images in file” and make sure that “Set default target output to:” is set to the maximum dpi in the drop-down.
If you want to make this setting global (in other words, effective for all documents) and you’re particularly tech-savvy and adventurous, you can modify a setting in the Windows Registry and never have to worry about this again. When I say “tech-savvy and adventurous,” I’m not kidding. Messing around with the Windows Registry is not for the faint of heart, because one slip-up can render your computer unusable. If you aren’t already comfortable with tasks like this, it’s better to get a professional to do it for you.Got Questions?
Of course, everybody wants to do something a little different with their letterhead. If you’ve got a formatting problem you can’t quite solve, hit me up in the comments. Better yet, post your sample in the LAB discussion thread.
(image: http://www.flickr.com/photos/letterheads/8992273923/; check out all the amazing letterhead on Flickr)
DIY Law Firm Letterhead Using Microsoft Word is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
The ScanSnap formula has been pretty well-established for more than ten years: great document scanners coupled with truly easy-to-use software that makes document scanning as simple as possible. The ScanSnap SV600 follows this formula, except that it’s not really a document scanner. Not in the sense of a sheet-fed scanner that can plow through stacks of paper at a time, anyway. Instead, the SV600 is an overhead-style scanner, which means it can do some special tricks.
It can scan things no other scanner can.
An overhead scanner is perfectly capable of scanning flat documents, but the real benefit is the ability to scan three-dimensional objects — like books, legal pads, and other objects that are 3cm tall or less. Plus, since it doesn’t touch what it is scanning, delicate exhibits are safer than they are when being fed through a document feeder.
Like most of the ScanSnap line, the SV600 comes with Acrobat XI Standard for Windows, the latest version. As a specialty scanner, however, it is quite a bit more expensive: $795 from Fujitsu (Fujitsu is currently out of stock, but you can get the SV600 from its direct market resellers for less than $660). Then again, it can scan things no other scanner can.Scanning with the SV600
Like all ScanSnaps, the SV600 is surprisingly simple to operate. Install ScanSnap Manager (or update your current version, if you already have a ScanSnap), plug it in, unroll the scanning mat, and push the Scan button. And get your hand out of the way. The head of the SV600 will rotate outward, and you will see the scanner’s light sweep over whatever is in front of it. It’s fast, but it is a manual process; this won’t replace your regular document scanner. It is more like a flatbed scanner than a tray-fed document scanner like the iX500.
Watch this to see me demonstrate what it’s like to scan with the SV600:
When the scan is finished, you will get the chance to adjust your image. This is mandatory for scanning books. I was hoping the ScanSnap Manager would auto-detect the contours of my Moleskine notebook, like it did my phone, but it didn’t. Instead, you have to drag the six points to the corners. Here’s what that looks like (click to see full-size):
It turns out that ScanSnap Manager should actually get the contours of a scanned book. The Fujitsu rep thinks it will work better if the book is placed right up to the scanner, in the center. He also advises holding the pages down with your fingers to reduce curvature and keep them from moving. (The software lets you remove fingers, as well.)
The software will do a pretty good job of finding the contours of your page once you get those square points to the corner, but it is a bit tedious. When you are done, the ScanSnap Manager will try to compensate for any distortion, and the result will be an image like this:
While 3D objects take a little work, scanning flat objects is straightforward. The software will detect the edges with reliable accuracy, and you can just save the file. Here is a selection of scans I made with the SV600:
It doesn’t do a great job detecting the edges of dark objects, since the scanning mat is black. I tried putting my Kindle on a sheet of white paper, but the software stopped at the edges of the white paper, and I had to manually find the edges myself. The same thing happened with the M&M package left over from my daughters’ Halloween candy, although I didn’t try to use a white background. Adjusting the edges manually is made more difficult by the lack of a zoom in/out option when adjusting flat objects (you can zoom in and out on books, though, and it’s possible this is just an unintentional omission from the brand-new Mac version of ScanSnap Manager).
You might also notice the perspective of the scanner in the image of my Kindle. The SV600 is not directly above the scanning mat, so it scans most of the surface at a slight angle, which is just noticeable in some objects by the shading.
The quality of scans of flat objects is on par with other ScanSnaps, here is a scan of the same document I scanned with the ScanSnap iX500, the Panasonic KV-S1026C, and other scanners I have reviewed. Scanning multi-page PDFs is no more difficult with the SV600 than it is with small, portable scanners like the Xerox Mobile Scanner. In other words, you can do it, but you wouldn’t want to scan more than a dozen pages or so in one sitting. On the plus side, you can put multiple items on the mat, and the ScanSnap Manager will assign each one to its own page. So you could come back from a networking event, drop up to ten business cards on the mat at a time, and scan them all in one go. You won’t fit more than two full-size sheets of paper on the mat at the same time, though.Who should buy the ScanSnap SV600?
It probably would not make much sense to have the SV600 as your primary scanner. As you can see in the video below, scanning more than one thing at a time is slow. Something like the ScanSnap iX500 is what should be sitting on your desk doing daily duty.
But being able to scan 3D objects (as long as they are no taller than 3cm, anyway) comes in really handy. You can capture physical evidences, or notes from your legal pad or notebook — without ripping out the page. Or you can make a digital scan of delicate documents, without mangling them. (As good as the document feeder in the iX500 is, it does occasionally mangle pages.)
In the end, though, you can do most of that with the camera on a good smartphone. Not as well, and not as conveniently, but well enough.
The SV600 is for someone who regularly needs to scan books, notepads, delicate documents, and small objects. If you aren’t likely to use it every day, you would probably be better off with a decent camera (even an iPhone would do the trick) and a DIY lightbox. But I can imagine the SV600 could be really useful for immigration lawyers (passports) and product liability litigators (product exhibits), for example.
It is an extremely easy-to-use scanner for things that will not fit into a regular document scanner — although it will easily handle flat documents, as well. It is not perfect; I wish it did a better job of automatically detecting the contours of book-shaped things and dark objects. But it does scan things other desktop scanners cannot handle.Summary
Summary: The Fujitsu ScanSnap SV600 is an attractively-priced overhead scanner for someone who regularly needs to scan books, notepads, delicate documents, and small objects.
Score: 3.5 (out of 5)
Fujitsu ScanSnap SV600, reviewed by Sam Glover on November 11, 2013.
Fujitsu’s New ScanSnap SV600 Can Scan Books and Other 3-D Objects is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
There is a gap — a pretty big one, in fact — between those who need legal representation and those who can afford it. Many people believe “innovation” will substantially narrow or close this gap. This is a load of hooey.
Neither technology nor business models can make competent legal representation cheap enough to close the justice gap — well, not until after the Singularity, anyway. In the meantime, the only innovation that will make a difference is regulatory. That is because the only way to eliminate the justice gap is to eliminate the prohibition on unauthorized practice of law.
See, I knew you wouldn’t like it. But it’s the only way.The high cost of legal representation
Our legal system has a pretty obvious problem: its cost. The cost of legal representation, in particular. Average hourly rates in 2012 were about $370 for associates. It would take someone working at minimum wage (currently $7.25) more than a week to pay for a single hour of the average associate’s time. At the median U.S. household income of $50,502, that’s still a bit less than two days of work, before taxes.
[A]ny way you look at it, though, there is a gap. A huge gap. A lot of people cannot afford a lawyer.
Fortunately, lawyers.com says that in rural areas and small towns, fees of $100 to $200 per hour are “probably the norm.” So anywhere from two to four days for someone working at minimum wage, without taking taxes into consideration. Or a day, for someone at the median. That’s without taking into account the cost of living, obviously.
And then, Americans average around $15,000 in credit card debt, $147,000 in mortgage debt, and $31,500 in student loans. In other words, for many Americans hiring a lawyer probably means going into more debt, which means adding interest, and often late fees and overdraft charges, to the lawyer’s hourly rate.
If you are really poor, you might be able to get a lawyer to represent you for free. In general, this means people at or below 125% of the poverty line. (125% of the poverty line is currently $14,363 for an individual, and $29,438 for a family of four. That’s about what you’d make working full-time for minimum wage, and most people would consider themselves poor at twice that.) Free legal services can’t help everyone, either. The Brennan Center for Justice) says about 80% of the need is unmet. Legal Services Corporation says (pdf) it turns away about 50% of those who apply for help.
Regardless, free legal services are limited to certain legal issues. As you might imagine, people who fall into this category are at least as likely to need legal services as those with higher incomes.
And, of course, those eligible for free legal services are hardly the only people who need them. The income limitations leave out the lower middle class, or about a third of Americans, and most of them would have a hard time paying for a lawyer, too. That’s also probably true of many in the rest of the middle class.
While it is not hard to find estimates of the number of people whose needs are unmet by legal aid organizations, I could not find any estimates of the number of Americans who need legal help but are either unable to afford it or too “wealthy” to qualify for free legal aid.
Still, any way you look at it, though, there is a gap. A huge gap. A lot of people cannot afford a lawyer. Most people who cannot afford a lawyer, probably don’t get one.The myth of rich lawyers
Most lawyers couldn’t afford to hire themselves.
So legal representation is expensive, and lots of people can’t afford it. It’s not clear that there is anything unfair about lawyers’ hourly rates, though. Despite the size of lawyers’ fees, lawyers aren’t automatically wealthy. Remember: most are not earning the six-figure salaries represented by a tiny point on the NALP lawyer salary curve. Most lawyers are earning just $40–65,000, before taxes. That puts most lawyers at or below the median on most personal income scales. Most lawyers couldn’t afford to hire themselves.
In other words, lowering hourly rates will only result in impoverished lawyers. Or more-impoverished lawyers, in many cases.
If legal fees are so high that most Americans can’t afford them, why can’t more lawyers make a good living? The answer is complicated, but in a nutshell, it is expensive to become a lawyer, stay a lawyer, insure against risk, and run a law practice, and it is hard to make a meaningful dent in those expenses. There are lots of ideas for partial solutions, but no proven ways to make lawyering work — at scale — for substantially-lower prices.
Online legal document services are barely smart enough to handle basic legal document prep. Virtual law firms and unbundled services aren’t enough, either. Even virtual lawyering pioneer and evangelist Richard Granat admits that “pure” virtual practices don’t work. He meant “for lawyers.” And if they aren’t a sustainable business model for lawyers, they aren’t going to work for consumers, either. Others think corporatizing law firms by allowing non-lawyer ownership and investment will introduce game-changing efficiencies and new, more-profitable business models. And the various plans to put law students and new lawyers to work for low-income clients is simply untenable without substantial long-term funding — not to mention unhelpful. People need competent legal help, not inexperienced law students and lawyers.
At best, online document prep, virtual law firms and unbundled services, and non-lawyer ownership are components of a solution. They are not the solution itself.
Simply increasing efficiency is not enough. Pretending that reducing overhead is the main thing keeping lawyers from cutting fees is like pretending the cost of paperclips is the main thing keeping Dell from giving away laptops.
So, something’s gotta give, and it is the prohibition on unauthorized practice of law.Eliminate UPL laws, eliminate the gap
The practice of law is premised on the idea that clients should get competent representation in every case. We aren’t willing to accept many mistakes, and we have a complicated set of professional responsibility rules that set a fairly high bar (even if not all lawyers don’t get over it). That high bar comes with a price — the price of trained, tested, licensed, and experienced lawyers. But that is a price many people cannot pay.
The only way to lower the price is to lower the bar and let everyone compete for clients in the legal marketplace. That means getting rid of laws that forbid the unauthorized practice of law. A couple of years ago, Andy Mergendahl took a look at what would happen if UPL laws were eliminated. Here are his posts:
You should read through Andy’s posts, but consider what it would mean for those who fall into the gap.The costs and benefits of deregulation
Sure, the quality of some legal services will go down, perhaps drastically. But fees are probably close to the lowest they can get under the status quo. If you want fees to drop further, you have to accept a reduction in quality. On the upside, even if the quality of legal representation drops, there still should be a net positive, overall. More people will get the help they need, even if more people get less-than-competent representation.
More justice, in other words, depending on how you measure “justice.”
The question becomes what is the lowest level of legal quality we are willing to accept, and at what price?
Think about it in terms of a simple will package for sale by one of the big online legal document vendors for $69 (the starting price on LegalZoom). Substantially the same thing from a lawyer would probably cost somewhere between $500 and $2,000, although the lawyer is more likely to identify the clients for whom the package is not appropriate. But a lot more people can afford the LegalZoom version, and as at least one lawyer is willing to admit, most of the people who use the online service will be just fine. Sure, there are horror stories, but if more people can afford a simple will package, and simple will packages are things worth having, then it’s a net positive. If we are willing to accept a few more “bad” wills, we can get good-enough wills to a whole lot more people.
The same scenario can play out for other legal services. There are certainly non-lawyers who could do as well as some lawyers in the courtroom. Why not let them? Why not force lawyers to compete on a level playing field?
The question becomes what is the lowest level of legal quality we are willing to accept, and at what price? And keep in mind, there are definitely lawyers who aren’t clearing the bar right now. Lowering the bar will certainly impact quality, but the status quo hardly guarantees it.Innovating away the gap
Perhaps rating services like Avvo can learn to help potential legal services customers choose the level of quality they are willing to accept. At the high end, those high-priced lawyers will probably still command an impressive hourly fee. Lawyers with less-impressive track records will have to accept less. Slick marketing — by lawyers and non-lawyers alike — will proliferate. (Maybe even by vending machines.)
Perhaps non-lawyer advocates will prove to be a complete failure. But if people like ABA president James Silkenat really want to solve the access to justice problem, this is what they should be talking about. There is no clear benefit to assigning incompetent lawyers (read: new law school grads) to clients of any income level. And lawyers cannot solve the access-to-justice problem. We have had decades to try, and all we have done is chip away at the problem and talk about “innovation” without any apparent ability to do it.
Instead, we should be talking about opening the legal market. If we want drastic change, we have to take drastic measures, and we have to let others take a shot at solving the problem.
We Can Close the Access-to-Justice Gap, But You’re Not Going to Like It is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
Throughout history the beard has served as a sign of royalty, virility, and badassness in various cultures. A shorn beard used to be a sign of shame. Even today, many would argue that a proper beard makes a man more intimidating to his enemies. And since lawyering is about 90% mental, you should all listen up.
Unfortunately, since the time of Alexander the Great, beards have come and gone from the mainstream. He banned them because he believed they were a liability in battle. Today, some argue that facial hair is unprofessional, while others believe that there is simply a favorable bias to clean-shaven men. In fact, some employers even have policies forbidding or limiting facial hair.
I can agree that some facial hair does not belong in the courtroom.
But you should not let the one percent of inappropriate facial hair growers dissuade you. Nor should you bow to the naysayers. The idea that all facial hair is unprofessional or not appropriate for attorneys is ridiculous.
Facial hair can provide many benefits to a lawyer’s image. A consistent look will make you easy to find and describe. It’s hard to miss the guy with the Gandalf-esque beard. It can provide part of your image, as the Fishtown Lawyers illustrate with their home page. For younger attorneys, facial hair can make one seem older. But that is a double-edged sword. It can also make one look like he is trying to look older.Considerations When Growing Facial Hair
Let’s assume I’ve convinced you that beards and facial hair are generally awesome. Before you embark on a facial hair journey, there are several things to consider. First, when will you start to grow or change your current facial hair? How long will it take? Can you definitely grow the facial hair you want? Will maintenance be difficult or time-consuming?Timing
If your face is as smooth as a marble statute, a Monday morning may not be the best time to start growing your facial hair. It will give you the “I didn’t shave this morning” look for at least a day or two. And, unless you’re devilishly handsome, you may have trouble pulling off the five o’clock shadow without looking lazy or unkempt. Steve Wilson of beards.org disagrees with me. He thinks you should decide to go for the beard and just do it.
Let’s face it: some men cannot grow a proper beard. Some can grow a beard but not a mustache. Others cannot connect their mustache to a goatee. And that’s OK. We’re all unique snowflakes when it comes to facial hair. Others can grow a full beard, but the hair is so light it looks like peach fuzz. We aren’t here to insult your masculinity or judge your legal skills because of it. But you need to know your limitations.
To undertake a facial hair experiment without knowing your limitations is akin to taking on a client with no knowledge of the substantive law involved. It’s a bad idea. Know your limits and respect them.The Morning Routine
Some men believe that if they have a beard or other facial hair, it will make their morning easier. After all, if you don’t have to shave your whole face every day, won’t it save you minutes each morning? Not exactly. With great facial hair comes great responsibility. Shaving around a beard, mustache, or goatee can take more precision and thought than just doing a clean shave. You need to be focused to make sure everything turns out OK. Otherwise you could end up shaving too much of your facial hair and having to start from scratch (which I have definitely done before).The Options
Facial hair can be as varied as the men who sport it. But some looks are more amazing than others.The Beard
There are only two acceptable ways to wear a beard at work. Either the beard covers your entire face, or it extends down onto your neck. If the hair is only on your neck, that is a neck beard and only appropriate for comic conventions. If the hair only goes along the side of your face and your chin, you’ve got a chin strap. Unless you’re seventeen or a biker, the chin strap is wholly inappropriate.
That being said, the beard can come in various lengths, ranging from short to dwarf-like. The longer the beard gets, the more difficult it can be to maintain a “professional” appearance. But a long beard is not necessarily a bad thing. Compare these short and long beards below:
Depending on the type of beard you decide on, maintenance can be very easy or somewhat time consuming. The longer beard, for example, may need to be hand trimmed with scissors. But a full beard can usually be managed with a set of clippers and minimal razor shaving.The Mustache
Like the beard, the mustache can come in many variations. But unlike the beard, fewer variations are as widely accepted. Fancy variations like the Fu Manchu mustache, the handlebar mustache, or the Charlie Chaplan are much more difficult to wear, and require a very specific persona.
Eliminating those mustache possibilities still leaves the intrepid whisker-bearer with several options. A classic choice is the full, thick mustache often associated with Tom Selleck and 1970s porn stars:
But beware. That option could easily entail genetic setbacks if your mustache does not grow in thick enough.
A subtly different example of a full mustache comes from Burt Reynolds. Notice that Reynolds’ mustache is pointed at the ends, where Selleck’s is not:
As you explore thinner mustaches, there are more options for shapes. But with a thin mustache there is also a risk of that creepy look, so beware. To get your creative juices flowing, Wikipedia can provide some great examples:
More than the other styles, the goatee is often dictated by how your hair grows and where it grows. If you cannot connect chin hair to your mustache, you may want to avoid the goatee altogether. If you can only grow a thin mustache, a thin goatee is probably your only option.
The goatee in general provides a nice look without the need for a full beard. It also usually looks better as it grows in, as opposed to just a solitary mustache. You can also have a little more fun with styling a goatee. Like Tony Stark. But you can keep it simple and it will still look good, like Tyrion Lannister.
You can easily manipulate the goatee. It’s a fun option because you get to combine the fun aspects of a mustache and a beard into one.Go Forth with Confidence
The most important part of facial hair is how you wear it. And there is only one way to wear it: with confidence. Your facial hair will become a part of you. A part of your image. An extension of your face. Choose your style well, and enjoy the superiority you will feel over all your competition.
(image: Set of men’s hair and facial hair graphic designs via SHUTTERSTOCK
The Gentleman Lawyer’s Guide to Facial Hair is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.