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Updated: 53 min 53 sec ago

Clio is Now Popular Enough to Have a User Conference

Mon, 09/22/2014 - 00:35

Lots of popular software companies have user conferences. Evernote is having its fourth one in a couple of weeks. There are WordPress conferences all over the world. Warcraft, StarCraft, and Diablo players get together every year at BlizzCon. But a legal software company? Can lawyers actually get fired up about their practice management software?

Apparently.

The vibe of the 2013 conference as portrayed in that promo video is pretty accurate. There were about 225 lawyers in attendance, and the vast majority were definitely fired up about their practice management software. This year, there are about 450 attendees, and everyone I have met so far is pretty fired up, too.

Six years ago, when I first discovered Clio, I was just fired up to discover a cloud-based practice management software that felt like a “breath of fresh air” compared to the competition. Now, Clio is all grown up. So grown up, in fact, that ~450 people will show up to its user conference.

That’s pretty impressive.

I won’t be blogging from the conference like I did last year, but I will be teaching a session tomorrow.

Categories: Teknoids Blogs

How the Government Might Circumvent iOS 8 Security

Fri, 09/19/2014 - 10:30

With iOS 8, Apple has implemented a new “zero-knowledge” security policy when it comes to iOS devices. In part, that means “it’s not technically feasible for [Apple] to respond to government warrants.” At The Volokh Conspiracy, Orin Kerr points out that the government might not be willing to accept that scenario.

1) The most obvious option would be follow the example of CALEA and E911 regulations by requiring cellular phone manufacturers to have a technical means to bypass passcodes on cellular phones.

2) A second option would be to enact a new law severely punishing a target’s refusal to enter in his passcode to decrypt his phone.

3) A third option would be to impose data retention laws.

(h/t Simple Justice)

Featured image: JPL Designs / Shutterstock.com

Categories: Teknoids Blogs

I Dare You to Wear this Onesie to Court (It’s Not What You’re Thinking)

Thu, 09/18/2014 - 13:20

I so want this.

And yes, it’s a real thing:

(h/t @chrisremo)

Categories: Teknoids Blogs

HIPAA-Compliant Cloud File Services

Thu, 09/18/2014 - 12:45

Generally, we urge a healthy level of skepticism about cloud storage. This view is based on the pragmatic acknowledgement that it is nearly impossible to not have some data live in the cloud (good luck trying to use email sans cloud) combined with the equally sensible belief that cloud storage can be less than ideal for security purposes.

More importantly, some lawyers and law firms may need to comply with the Health Insurance Portability and Accountability Act (HIPAA), and Dropbox won’t cut it. We have mentioned HIPAA-compliant cloud services before, but in this post we will attempt to create a comprehensive list.

Who Needs To Comply With HIPAA

HIPAA’s privacy rule is written quite broadly to ensure that business associates with access to medical data — like attorneys, accountants, and financial services providers — also maintain heightened levels of privacy standards and security safeguards. Data storage and transmission services can fall under the law, and failure to appropriately protect data can result in fines as high as $1.5 million per year with the possibility of criminal charges.

That said, merely handling some medical data in the course of your practice does not require you to comply with HIPAA. Minnesota’s Bench and Bar reviewed the 2013 changes to the law, and discussed when law firms become business associates that are covered under the law. In looking for a HIPAA-compliant data storage provider, you should determine if they can sign a Business Associate Agreement (BAA). A BAA is a contract between an entity covered by HIPAA and a business associate that will be accessing personal health information. This agreement must put in place data protections that conform with HIPAA guidelines.

IndexAmazon Web Services

For a long time, Amazon’s cloud storage (AWS) was definitively not HIPAA-compliant. However, with the recent changes to the HIPAA law, Amazon began signing business associate agreements with covered entities. AWS also offers a white paper on how to use AWS in HIPAA-compliant systems. In the event you are considering using AWS, you should set up a free account to see how their storage system works. You can keep free storage for one year, but it is unclear as to whether that type of storage would be HIPAA-compliant.

Box

Box, which also provides non-HIPAA-compliant storage to the masses, states that it specifically supports HIPAA regulations and can sign HIPAA Business Associate Agreements (BAAs). The company says their HIPAA practices have been evaluated by an independent third-party auditor (there is no government HIPAA certification) that details information about how Box conforms with the HIPAA requirements. Box provides data encryption, restricted physical access to servers, restricted employee access to data files, training of their employees on security controls, and a formally defined breach notification policy. Box does not break out the HIPAA-compliant storage pricing, so you will likely need to contact them directly for a quote.

Carbonite

Carbonite states it is a HIPAA business associate and follows the security protocols of Massachusetts’ Data Security regulations. Per Carbonite, this is considered the strictest data protection regulation in the nation. Carbonite’s HIPAA-compliant storage prices begin at $269 per year and all plans allow for an unlimited number of computers. Prices increase based on the size of your storage needs. They have a 20% off deal running at the moment if you commit to a two-year contract.

CareCloud

CareCloud is a medical billing software company that also offers HIPAA-compliant cloud storage.  CareCloud says its healthcare software exceeds government security standards for data transmission and storage, although it is unclear what standards they are referring to. They encrypt traffic during transmission, use a commercial-grade firewall, and store data at maximum security centers inside a private cage (no, really). They also back up customer data to their disaster recovery center in real-time. Pricing for the cloud storage appears tied to their general medical billing software and starts at a hefty $449 per provider per month.

ClearData

ClearData, which specializes in healthcare data, offers a free 60-day no obligation trial so you can assess their HIPAA-compliant storage. They also promise 100% redundancy, 100% network uptime, 100% business continuity, and 99.999% server uptime. If you give them your email, they will send you a white paper on best practices in cloud computing for the healthcare industry. Their white paper may prove useful if you are deciding how to manage healthcare data in your practice.

Connectria

Connectria has both server and desktop software that will assist you in encrypting and syncing your data to their HIPAA cloud storage. They will enter into a BAA and will provide desktop backup, server backup, or enterprise backup as needed. Connectria will also help migrate existing Amazon S3 customers to Connectria’s HIPAA-compliant service. You pay based on how much data you need to store, but you will need to contact them to find out what that cost will be.

CrashPlan PROe

CrashPlan, one of the most well-known backup services, provides what is probably the most cautious explanation about being HIPAA compliant. They will sign a BAA, but only for CrashPlan PROe (enterprise) plans and only if you are using an on-premises master server instead of a fully-hosted public cloud deployment. You can get a free trial of the enterprise software. Pricing starts at $60 per user per year and scales downward if you commit to a two- or three-year term.

Egnyte

Egnyte is an enterprise file services provider that integrates file serving, cloud storage, and file sync and share. That model, according to Egnyte, allows easy HIPAA-compliant file sharing besides just providing compliant storage. Egnyte is a Business Associate to covered entities and will sign a BAA detailing their safeguards. They will also provide internal practices, books, and policies to help you determine your HIPAA-compliance. It is unclear whether Egnyte’s “Business” plan, which costs $15 per employee per month, provides HIPAA-level compliance or if users need to buy an enterprise solution from Egnyte.

firehost

firehost, a general-service secure cloud provider, also offers specialized HIPAA-compliant storage. However, firehost is clearly geared toward healthcare entities that need the full range of data management; their centerpiece offering is a bundled service that covers hardware, software, security, and managed services. Functionally, they create a virtual server for that data. You will need to provide them some minimal data — name, email, phone, and company — in order to get started with configuring a server for that level of firepower.

FolderGrid

FolderGrid offers HIPAA-complaint file sharing for project teams and also offers FTP access. Their HIPAA statement explains that they encrypt all data in transmission and storage. Additionally, administrators maintain full access control. They also redundantly store data on multiple devices in multiple facilities. Pricing begins at $10 a month and scales up from there based on the storage size you need.

Google Apps

Google was not always HIPAA-friendly, but as of about a year ago, you can now request a BAA that covers Gmail, Google Calendar, Google Drive, and Google Vault. This does not apply to those using the free Google Apps suite. You will need to be an administrator for Google Apps for Business, Education, Government, or Unlimited, which are all paid services. If your HIPAA-compliant data needs are minimal, Google may provide a low-cost solution if you are already invested in the Google Apps ecosystem.

Green House Data

Green House Data differentiates itself from other data centers by being, well, green. They are 100% wind-powered and are an EPA Green Power Partner. They also offer a webinar on when companies need to sign a BAA and what questions you should ask of your HIPAA data storage provider. Green House looks more geared towards providing you with a complete IT infrastructure solution, and for that you will need to contact them for a pricing quote.

Iron Mountain

Iron Mountain, long known for those enormous trucks that come to your office and take the giant shredding bins away, offers a number of white papers about HIPAA-compliant storage, but it does not appear that you can learn anything more about their data storage options without contacting them directly.

MyVault

MyVault has a lengthy explanation of HIPAA requirements and states they are HIPAA compliant. However, they also explicitly state that because they are an automated digital online data storage solution provider, they are not considered to be a business associate under the law. This is concerning given that other providers specifically agree to sign a BAA. There is an online demo you can try to get a feel for the features of MyVault and the pricing starts as low as $2/month, but whether or nor they would be considered truly HIPAA-compliant is not clear.

Microsoft Office 365 for Health Organizations

As with Google Apps, if you are already heavily embedded in the Microsoft ecosystem, going with Microsoft Office 365 as a HIPAA-compliant data storage solution may be wise. Microsoft has a lengthy white paper you can read about how their cloud services conform to regulator requirements. Microsoft will sign a BAA and connect your data to the full Microsoft cloud, including SharePoint.

Online Tech

Online Tech states that it recently completed an independent audit that found it to be 100% HIPAA-compliant. They provide a number of HIPAA webinars and can provide HIPAA-compliant cloud storage, managed servers, and full colocation. You’ll need to contact them directly for a quote.

onramp

onramp provides a comprehensive-looking three-step risk management assessment process for giving you HIPAA-compliant storage. They determine what you need and create a custom Business Associate Agreement, a risk management plan, a backup plan, and a disaster recovery plan. You will need to email them for a quote to receive this level of attention.

SpiderOak

SpiderOak says they are a Business Associate and are HIPAA-compliant. SpiderOak prides itself on its “Zero Knowledge Privacy” stance. Their servers are not capable of viewing any of your data in plain text. You can get two gigabytes of storage from SpiderOak for free, while business pricing starts at $100 per year.

Symform

Symform is another general service secure cloud storage provider. They offer HIPAA-compliant storage with clear access control policies and restrictions, data backup and disaster recovery, and encryption during data transmission. Symform will give you 10GB of data storage free and, in a very Dropbox-esque way, allow you to earn more free cloud storage by contributing your own local drive storage. Symform boasts it is the only storage solution that gives you HIPAA-compliant storage for free, which very well may be true.

TrueVault

TrueVault is designed for the developer side and has an API to facilitate secure healthcare software development. They also offer plain old HIPAA-compliant storage that is searchable and allows for file sharing. They will sign a BAA and have a data breach insurance policy. You can test the service for free. Pricing is based on how often you call to their API, rather than the size of the data stored, so you want to be familiar with how that works before taking the plunge.

Categories: Teknoids Blogs

Apple: “it’s not technically feasible for us to respond to government warrants”

Thu, 09/18/2014 - 10:48

Starting with iOS 8, according to Apple’s newly-updated privacy statement your photos, messages and attachments, email, contacts, call history, iTunes content, notes, and reminders are “placed under the protection of your passcode.” Apple cannot bypass your passcode, which means it does not really have anything to turn over to the government.

From the sound of it, this only applies to the information on your iPhone or iPad. However, Apply says 93% of the requests it gets from law enforcement are “device requests,” and most of those “come from an agency working on behalf of a customer who has requested assistance locating a stolen device.”

This is all good news, and it means that any client data you might have on an iPhone or iPad is pretty safe. As far as I can tell, however, it does not have much to do with information stored in the cloud. While that information may be safe on your device, the government (or a hacker) could potentially still get it from your cloud provider — even if that cloud provider is Apple.

(h/t Gizmodo)

Featured image: “Lock : Vector padlock icon flat design” from Shutterstock.

Categories: Teknoids Blogs

Clippy to Return in Microsoft Office 16?

Thu, 09/18/2014 - 10:08

According to the Verge, it will be called “Tell Me,” and look like a lightbulb.

While testing is in the early stages, we understand Microsoft is adding the “Tell Me” helper found in its Office Online apps to the desktop versions. Tell Me sits at the top of documents as a type of help and search tool. It’s similar in function to Clippy, providing a quick way to discover features and ask questions without digging into the vast help documentation found in Office. There’s no animated character like Clippy, just a simple bulb icon to indicate its presence in documents. Asking questions like “how do I insert images?” will bring up relevant features and additional help. It’s mainly a tool to help Office users discover the vast amount of features that are available across all the individual apps.

Okay, so not really Clippy, fortunately. Just a different help tool that probably won’t be sophisticated enough to help you pass the Legal Tech Audit. If you want to know what it will be like, check out the Office Online apps:

If you want a sneak peek at the new version of Office, check out the screenshots at the Verge.

Categories: Teknoids Blogs

BP Lawyers Stretch the Meaning of “Double-Spaced”

Wed, 09/17/2014 - 13:58

BP’s counsel filed a brief that, at first blush, appeared just within the 35-page limit. A closer study reveals that BP’s counsel abused the page limit by reducing the line spacing to slightly less than double-spaced. As a result, BP exceeded the (already enlarged) page limit by roughly six pages.

The Court should not have to waste its time policing such simple rules — particularly in a case as massive and complex as this. … Counsel’s tactic would not be appropriate for a college term paper. It certainly is not appropriate here.

Any future briefs using similar tactics will be struck.

— Louisiana U.S. District Court Judge Carl Barbier in In re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010 (h/t NPR)

Featured image: “Image of schoolboy smiling showing thumbs up” from Shutterstock.

Categories: Teknoids Blogs

Rocket Matter Gets an iPad App and a New Logo

Wed, 09/17/2014 - 11:31

Rocket Matter just released its first iPad app. I haven’t gotten a chance to play with it because Rocket Matter revoked our reviewer access, but from the photos accompanying the press release, the app and the new logo look pretty good:

Rocket Matter also posted a video showing a bit more of the new app:

Hopefully the iPhone app will be next. It still looks like it was designed for the original iPhone.

Categories: Teknoids Blogs

Smartwatches for Lawyers

Wed, 09/17/2014 - 10:38

From Niki Black at Legal IT Professionals today:

I can … assure you that wearable technology will be embraced quickly by lawyers. Smartwatches will lead the way, with Google Glass and other wearables adopted at a slightly slower rate.

Me, last week in the Lab:

Mark my words, ["How Lawyers Can Use the New Apple Watch"] will be the serious title of a dozen or so blog posts within the next 3 months.

(Tip o’ the hat to @Mythosopher for reminding me about my “prediction.”)

Categories: Teknoids Blogs

New Lawyers and Law Practice: the Velociraptor You Don’t See

Wed, 09/17/2014 - 06:12

The #1 concern of new lawyers considering starting a law firm is usually how to get clients. It is a perfectly reasonable concern, but for some it becomes nearly all-consuming. These new lawyers starting new practices are so laser-focused on marketing that they are likely to get blindsided (clever girl) by the other essential parts of a law practice: lawyering and running a business.

The results are predictable: their practices do not usually last very long.

The One-Person Show

Lawyering is, to a great extent, a one-person show. This is obviously true for a solo, but it’s also true for any lawyer at any job. You are responsible for your own work as a matter of law, ethics, and fact. You are also responsible for your clients — and often for getting them. You are responsible for doing administrative stuff like tracking time, and if you are a solo, for managing back-office tasks like balancing your accounts and licking stamps.

If you devote an inordinate amount of time to marketing, everything else will suffer. And you can’t afford to ignore those other things.

If you neglect your finances, you are more likely to slip up and violate some obscure trust accounting rule. If you neglect your education (not law school or even, necessarily, CLE, but actually learning how to be a lawyer and run a business), your business will get out of hand. And if you neglect the actual practice of law, you will never develop the skills that you need to represent your clients, or that will enable you to get more efficient so you can handle more clients, or that will enhance your reputation so that people want to refer more clients to you.

Moderation in All Things

There are three things you should be working on at all times — three velociraptors you need to keep track of — in this order of importance:

  1. Lawyering
  2. Administration
  3. Marketing

These aren’t equally important, but you do have to do all of them in order to have a successful law practice.

Take care of your existing clients. This is the #1 most important thing you need to be working on. Be a good lawyer. Second, take care of administrative tasks, like paying your bills, balancing your bank accounts, and ordering new office supplies. This stuff is usually tedious, but it just has to get done. Third, take care of marketing. Network, write blog posts, work on your website, and manage your ad campaigns.

Although they are not equally important, you do have to do all of them. If you don’t work on your clients’ matters, you will be missing the whole point of being a lawyer. Plus, you won’t be earning your fee, and issuing refunds won’t help your bottom line. If you ignore administrative tasks, your business will crumble, so you have to find time for that, too. And if you don’t market, you won’t have any clients next month. Any one of these velociraptors can land you in hot water with the ethics board, your clients, or your balance sheet.

That’s three velociraptors to keep track of. (Okay, two if you work for the government or in-house or in public interest and don’t have to think about marketing.) Don’t miss the one in the bushes off to your left. It will eat your head law practice

Updates
  • 2012-09-24. Originally published.
  • 2014-09-16. Revised and republished.

Featured image: “red traffic label with dinosaur pictogram” from Shutterstock.

Categories: Teknoids Blogs

7 Questions Your Website Should Answer

Mon, 09/15/2014 - 06:12

You have a few precious seconds to get a visitor’s attention so they will stay on your website. Why does this matter? Because the longer they stay on your site, the more likely they are to contact you.

One of the best ways to grab a visitor’s attention and keep it is to answer the most frequently asked questions users have. If you fail to do so you will lose visitors fast, and each visitor you lose is a missed opportunity.

To increase your odds of improving your site’s conversion rates (how many visitors turn into clients) make sure you answer these five questions:

  1. Who are you? This one seems obvious, but so many law firm websites fail to even indicate it is a website for a law firm. Numerous sites make it nearly impossible to find out anything about the people who work at the firm. So when you go to answer this question, make sure your firm’s website lists all the attorneys in the office. Take it one step further by providing individual bios that tell prospective clients more about each lawyer.
  2. What do you do? This is as simple as stating up-front which types of cases you handle. If you are a general practitioner, this list can get quite exhaustive. In that case, I |suggest highlighting your favorite types of cases or your bread-and-butter cases — those cases that help pay the bills. If you want to stand out from the crowd, take it up notch by not only describing your preferred cases, but also how you work and how you interact with your clients. The more personal you can make this, the better off you are.
  3. Can you solve my problem? If someone is scouring the Internet for a lawyer, chances are he or she is facing an issue that needs addressing right now. If you can speak to their immediate concerns, provide them with actionable steps to take, and describe how you will help that person through the legal process, you are golden.
  4. Where are you located? Clients often prefer nearby lawyers for convenience and comfort. Make it clear where you are located. This is true whether you have one office or a multi-state presence. Law firm websites that do this best often have their location in their tagline or at the top of their website, in the copy on every page, and on individual office location pages.
  5. How can I contact you? You want to make it as easy as possible for prospective clients to contact you. Put your phone number at the top and bottom of your website and in the copy on each page. Also, make sure you have an easily accessible contact form for visitors to fill out.
Get Honest With Your Visitors

If you have already made sure to answer the above five questions, great, but don’t stop. Answer these two questions, too:

  • Why should I choose you over the competition? This does not mean you should compare your practices to Joe Smith’s practice. It means you should detail what it is that makes your services unique. Perhaps you only practice in one niche area. Perhaps you had your own run-in with the law and decided to become a lawyer. Perhaps you have a bedside manner that puts even the most nervous clients at ease. Whatever it is, identify it and explain why that unique thing about you benefits your clients.
  • How much do your services cost? I am not suggesting you must publish your hourly rate. What I am proposing instead is some transparency when it comes to your billing practices. For instance, do you offer free consultations? How long are those consultations, and why are they important? Do you offer unbundled services to keep costs lower? Explain what that means. Do you know if your prices are highly competitive in your area? Then say so. The more you can address the pricing fears of your prospective clients, the better off you will be.

Your law firm website can be one of your most powerful marketing tools. Make it as effective as possible by clearly answering these questions. If you do, you will position yourself to receive more leads that better fit the services you prefer to provide.

Featured image: “FAQ concept – machine answering frequently asked questions

Categories: Teknoids Blogs

The Legal Tech Audit Proves Lawyers Are Terrible at Technology

Fri, 09/12/2014 - 15:33

At last year’s LegalTech West Coast Conference, D. Casey Flaherty, Kia Motors America’s in-house counsel, made the provocative assertion that many lawyers are technologically incompetent, and this incompetence leads to wasted time and money. In an attempt to address this, Flaherty developed a legal tech audit (LTA) designed to test basic competencies in working with PDFs, Word documents, and Excel spreadsheets. Flaherty first administered the audit to nine outside counsel firms. According to Flaherty, all of them failed spectacularly.

After using an early version of his legal tech audit in house, Flaherty teamed up with Suffolk University’s Institute on Law Practice Technology and Innovation to make the LTA available for lawyers and law students.

Recently, both Sam Glover and I1 had a chance to take the audit, and here’s what we found.

Lawyers Really Are Terrible at Basic Office Productivity Technology

First, there is no question that Flaherty is right about the fact that many, if not most, lawyers are shockingly bad at the things really are very basic skills, like making changes in Word documents, de-duplicating Excel spreadsheets, and redacting PDF files. Indeed, Flaherty’s own administration of the audit to outside firms makes that clear. Make no mistake — these are skills that should be expected of every attorney. Being able to do things like editing your own documents in order to make them presentable and preparing documents for e-filing are legal work.

That said, the Legal Tech Audit should be considered an office productivity software skills audit, rather than a legal technology audit. This audit won’t test you on whether you know how to share client files securely via cloud storage or FTP, or whether you know how to properly encrypt client files. This is about Microsoft Word, Excel, and Adobe Acrobat, basically.

The LTA website doesn’t give away all the secrets of what is tested, and I won’t do that here either, so I’ll only be talking about a few of the tasks. In Word, you will do things like move text around, delete comments, renumber contract sections, and remove identifying metadata. In Excel, you will be expected to do things like de-duplicate a spreadsheet and perform basic calculations. Finally, in Adobe Acrobat, prepare yourself for redacting documents, combining pages, and preparing for e-filing.

The Audit is Not Ready for Prime Time

Unfortunately, while the idea of a legal tech audit is great and this one does test critical skills, the software for the testing is less than ideal. Flaherty definitely designed this with BigLaw in mind, assuming that the attorneys that take the test will be in a firm that has its own training department, learning management system, and IT staff that will facilitate taking the LTA. Perhaps that setting may change some of the problems both Sam and I had getting into the audit and working through it, but that setting will not fix all the problems with the user experience.

The audit runs only on Windows, and only in IE (or possibly Chrome or Firefox with an IE plugin). You’ll need Microsoft Word and Excel. In theory, you could do this in OpenOffice.org or something similar, but you’ll likely run into trouble because the audit expects you to do certain things in an exact way. You will also need Adobe Acrobat Professional or a similar PDF program that allows for redaction. (Not all do).

You’ll also need full administrative access to your computer and and network so that you can make the training page a trusted site in IE and let it do things like run executable files on your machine. The audit also records every keystroke you make during the test.

The invitations Sam and I received didn’t specify the system requirements (but invites to others would have) so as a result I took it in less than optimum conditions. I only have Mac and Linux machines at home, so I ran the entire test in Microsoft XP running in Parallels on Mac, which resulted, regrettably, in most of my keystrokes not being tracked. (This is probably due to Parallels.) I used Microsoft Office 2011 for Mac, but I did not have a PDF program installed that does redaction.

Full disclosure: I have no doubt that I did horribly anyway. I don’t need to see my scores to do that. The Excel portion was a killer, and I’m not ashamed to admit I did terrible at it.

Sam took the audit on a Windows 7 machine with Microsoft Office 2010 and Adobe Acrobat X Standard (which does not do redaction, either).

Assuming you have a compatible system (and obviously you will if you take the test in what Flaherty considers an ideal testing environment), you will find that the interface itself is odd. The buttons are detached from the instructions and the program bogged down and stopped running at one point. And there is no back button if you make a mistake and want to go back through previous instructions. This becomes a big issue when the instructions are vague, which they are in several places. For example, the Excel instructions do not specify which of two worksheets you should be modifying. And in the PDF section, you have to attach an exhibit that doesn’t exist in your sample documents. It may or may not be a PDF page you extracted earlier, but the instructions are not helpful.

At the end of the audit, you will get what is essentially a raw score. Your ultimate “grade” on the audit will be expressed as a function of the time it takes you to finish it, including time penalties for things you did wrong. This should arrive within a week, and the report will show you exactly where you went wrong. If you perform a task wrong or skip it altogether, you will be assessed a time penalty that is pegged to how long it would take the slowest person to complete the task.

Our concerns with the audit’s missteps may appear petty, but what those concerns generally mean is that the bad (and outdated — IE, really?) technology driving the audit and the clunkiness the user experiences end up overshadowing the usefulness of the audit itself.

The Audit Could Have a Bright Future — For Some Types of Attorneys

Because we think the Legal Tech Audit is not ready for market (even though it is already available to attorneys who would like to learn how little they know about field codes in Word), that does not mean we think the audit should be written off. First, Flaherty and Suffolk are very responsive to suggestions about necessary changes, and have already modified one part of the Excel portion of the test after Sam ran into errors.

In the right situation — BigLaw, lots of training resources, a decent amount of money and time to spend on the audit — the LTA could become a meaningful way for general counsel to benchmark the efficiency of outside counsel. Law firms will be charged $250 per user for a one-year subscription, and can pay $150 per user for an additional tutorial. Additionally, Suffolk and Flaherty have partnered with training companies that can work with firms to increase proficiency on these skills. The hoped-for (and likely) outcome is that corporations who are shopping around for outside counsel will be able to request that the firm members take the test and provide the scores so that the company can choose a cost-conscious and efficient provider.

This scenario sounds great, but it also highlights why the audit is not for everyone. At the law school I teach at, more than half the students each year have Macs, and will probably stay with that platform if they are able to (even if their firms are officially using Windows). Solos might not have $400 to spare on learning material and are probably more likely to be running what the audit considers non-standard software, such as Google Docs or Preview. Small firms simply do not have the training department or learning management platform that the audit envisions. But for those people who work at firms that fall into the category of firms that Flaherty and Suffolk are targeting, this audit may very well be something you find yourself taking quite soon. Brush up on those Excel skills.

Updates
  • 2014-09-09. Originally published. The license costs $250 per user for a one-year license, not $250 a year for a firm-wide license. Thanks for pointing out our mistake, MG.
  • 2014-09-12. Article revised with information we learned after publication.
  1. Both Sam and I would be considered tech proficient under any rubric. 

Categories: Teknoids Blogs

Find Out How Much You Are Overbilling Your Clients

Thu, 09/11/2014 - 11:11

Ask someone how much they worked last week, and they will probably overestimate the number by 5–10%, according to a study published by the Bureau of Labor Statistics. And the more someone thinks they worked, the greater their overestimate is likely to be, says the Economix blog at the New York Times.

Humans (well, American humans, at least) have really inaccurate memories when it comes to the time they spend working, in other words. We aren’t nearly as busy as we think we are, according to sociologist John Robinson, even if we feel like we are working all the time.

Lawyers are even worse when it comes to remembering billable time. Viewabill, a service that allows clients to see what their lawyers bill in real time, says that waiting until the end of the month to record your time means you are probably overbilling your clients by about 23%.

Delayed Billing Adds Inaccuracy — And Cost

That number comes from Viewabill’s aggregated data. By comparing timely entries to delayed entries, co-founder David Schottenstein estimates firms that keep time regularly are saving their clients as much as 23%:

Viewabill thinks its software changes behavior through transparency, because clients can see the time as it is entered. If you know your clients can see what you bill in real-time, you are less likely to record all your time at the end of the month. (Again, Viewabill’s aggregated data bears this out.) Schottenstein says Viewabill is like an empty police car next to the freeway. Even if clients don’t check in very often, they could — and they can see when time was recorded no matter when they check in. This strongly encourages lawyers, to change their behavior.

After this article was originally published, Viewabill added some context to its numbers on Twitter in response to questions from @DiligenceEngine and @abziegler:

@abziegler @DiligenceEngine @samglover case-by-case, but CalBar suggests block billing = 10-30% overbilling. http://t.co/pll87wW90a

— Viewabill (@Viewabill) February 10, 2014

@DiligenceEngine @abziegler @samglover It also tends to correlate with amounts slashed by judges in fee disputes. Ex: http://t.co/vf69T1HFpS

— Viewabill (@Viewabill) February 10, 2014

You don’t need Viewabill to ensure your timekeeping is accurate, of course. But you do need to record your time as you work. The more frequently you record your time, the more accurate it will be. If you wait until the end of the month and then reconstruct your time, you are probably overcharging your clients.

“Capture More Time!”

Related“How to Keep Track of Your Time”

Many timekeeping products claim to help lawyers “capture more time.” Time Matters, for example, cites “[c]aptur[ing] billable hours and client expenses while you work to prevent revenue leakage” among its benefits. Rocket Matter says you can “Forget about losing track of precious billable time or expenses.” Amicus Attorney says it will help you “capture more billable time.” You can see similar claims from most practice management and timekeeping-and-billing software.

The idea is that, by making it easier to record your time, you will record it more frequently, so that you are less likely to miss things. This makes perfect sense, and it does turn out to be true, according to Schottenstein.

If you bill more frequently, you are likely to capture time you would miss if you tried to reconstruct your time at the end of the month. But, he says, your bills will still go down. That’s because you probably aren’t missing 23% of your bill. The time you overestimate you spent is almost certainly greater than any missed time you might catch with more-frequent timekeeping.

Teaching Old Lawyers New (Timekeeping) Tricks

Whatever the benefits of real-time timekeeping, some firms really don’t want to do it. Or at least some influential partners at those firms don’t want to. Faced with clients who wanted them to use Viewabill, two large firms (one a prominent employment law firm based in San Francisco, another a large employment law firm in DC and Cleveland) mounted a spirited defense that included spreading a bunch of uninformed FUD about the cloud.

Why? Well, assuming the lawyers at those firms aren’t trying to pad their bills by 23%, the most-likely reason is that, as one firm admitted to Schottenstein, 80% of its billers do not put in their time until the last two days of the month. Apparently, they are willing to fight for their right not to change. You can’t always teach old partners new tricks, even if it means overcharging clients.

But clients are not yet insisting on real-time timekeeping and transparency. They probably will, eventually, no matter how hard the holdouts try to convince them not to. Eventually, those firms will be forced to accept greater billing transparency, and those partners will have to change. If that 23% figure is anywhere close to right, corporate clients will not stand for end-of-the-month billing for long. Sooner or later, they will make real-time billing a condition of representation.

How About Alternative Fees?

If waiting until the end of the month to record time means you will be overbilling your clients, then you probably ought to stop it, and start billing in real time.

A partial solution might also be to stop using time to measure the cost of representation — at least when you don’t need to. If you quote flat fees or use subscriptions, unbundled services, or alternative fee arrangements, you can stop tracking time altogether. No timekeeping, no padding (inadvertent or otherwise).

Except sometimes hourly billing really is best, so don’t give it up entirely. Just use other options when they make more sense.

And when you do bill by the hour, consider doing it in real time. Don’t wait for your clients (or ethics boards) to find this article and start asking questions.

Updates
  • 2014-02-06. First published.
  • 2014-02-10. Updated with tweets from @DiligenceEngine and @abziegler.
  • 2014-09-11. Updated with links to new studies.

Featured image: “Businessman and earning balance concept” from Shutterstock.

Categories: Teknoids Blogs

Seven Ways Your Law Firm Can Learn from a Tech Startup [Sponsored]

Wed, 09/10/2014 - 17:44

At first glance your law practice might not seem to have much in common with Silicon Valley companies like Facebook and Google. However, in today’s rapidly evolving world, the ability to innovate and adapt is crucial for any business…including large legal firms and upstart solo practitioners. Here are seven lessons you can learn from successful tech startups in order to grow your business and improve your practice’s bottom line:

1. Understand the key metrics shaping your business

As clients increasingly push for lower legal costs, it’s all the more critical to understand how metrics like realization rates (the difference between recorded time and the percentage of that time paid by clients) are impacting your short- and long-term profitability. According to Georgetown Law’s 2014 Report on the State of the Legal Market, the average overall realization rate in 2013 was 83.49%, down 8% from 2007, and well below the ideal target of 95%.

You should track metrics like billing, collection, and overall realization rates in order to see how you are trending over time, as well as compare your data with other lawyers in your firm or even with other firms. You can find more details about how to measure and apply metrics to your business in the paper “Realization Rates in Law Firms.”

2. Differentiate: Don’t commoditize

To survive in the era of LegalZoom and RocketLawyer, you need to identify market opportunities beyond commoditized services. Think about the unique value you can bring to your clients by positioning yourself as a trusted advisor, instead of a billing agent.

If you do not bring added value to the table by building relationships and guiding your clients, you risk losing business to someone who does or being undercut by the low prices of an online service. Richard Susskind’s book, Tomorrow’s Lawyers, is a must-read for anyone interested in going beyond the commoditized offerings of other firms and legal services.

3. Focus on the customer experience

Tech companies like Apple understand the difference between delivering an experience and selling a product. Lawyers need to think about the overall customer experience from intake to billing. According to Matt Dixon, the author of “The End of Solution Sales”, in an interview with the Harvard Business Review, numbers show that a customer experience with a trusted advisor leads to more repeat business, referrals, and revenue.

4. Build out a team

Too many lawyers go the “pure solo” route, handling anything from client intake to billing to answering the phone themselves. However, successful startup founders have learned that no one person can build a successful business. Having the right team in place can yield massive productivity gains.

Audit your time on a daily basis and ask yourself: Is each thing I’m doing the best use of my time? What tasks can be delegated?

5. Culture matters

We have all heard the stories of startups going to extreme lengths to shape company culture and keep employees happy: onsite massage therapists and yoga classes, along with free dry cleaning, hair cuts and oil changes. However, culture is more than just the perks; it’s what your company stands for, your missions and beliefs. When employees embrace a firm’s culture, they put their best work forward. A strong company culture increases employee loyalty, encourages teamwork, improves productivity, and leads to better customer relations.

6. Leverage technology

Clients today don’t have any patience for firms that insist on dragging out work by using outdated tools. They want real-time updates via client portals, after-hours services, and instant delivery of completed work.

The right technology platform, whether it’s for billing or document automation, can be a strategic partner to help you scale and operate more efficiently. Let technology handle the busy work, so you can focus your time on your client’s needs that require individual attention and are worthy of your law degree.

7. Think about the big picture

It is easy to get bogged down in the day-to-day grind…the next hearing, brief, or meeting. However, without high-level thinking, your firm can stagnate. Reflect on where your firm is now and where you want it to be. Point the ship in that direction and lean on your technology, team, and company culture to take you there. Don’t be afraid to think big and experiment.

Attendees at the upcoming Clio Cloud Conference can learn more about the future of law and the rapidly evolving technology landscape, including a keynote presentation from Richard Susskind, author of “Tomorrow’s Lawyers.” Save $100 when you register with this exclusive discount code for Lawyerist readers: Lawyerist-CCC14.

Categories: Teknoids Blogs

How To Keep Your Client Safe From Solicitation

Wed, 09/10/2014 - 10:31

Some of the most fundamental rules governing the ethics of lawyers relate to attorney advertising. Don’t over-promise in your ads, include basic disclaimers, and never offer your services to someone you know is already represented.

So what do you do when another lawyer is trying to solicit your client?

On the one hand there is the issue of whether to report unethical conduct to the proper regulators. In brief, in many states there is some obligation (or at least encouragement) to report lawyers who violate the rules.

On the other hand, there is the issue of keeping your client while still meeting all of your own ethical duties.

Determine Your Client’s Knowledge

The Unsophisticated Client: Some clients are not particularly sophisticated, especially when hiring lawyers, and will not realize the issues raised by solicitation. They may be easily swayed to hire the soliciting lawyer without realizing the impact on their own case and fees. Of all the types of clients, it is this one you need to be most concerned about protecting their interests, beyond protecting your own bottom line.

The Sophisticated Client: Other clients hire lawyers routinely, and do so primarily for business reasons. They understand the game well enough to know that there are lots of lawyers out there, and will be less easily sucked in.

The Lawyer Client: Some clients are lawyers themselves, and they understand exactly what the soliciting lawyer is doing and the unethical nature of the conduct. They are likely to be as peeved as you are by the contact.

Determine the Offense

If the contact from the soliciting lawyer is a simple flyer or letter offering services in a very general way, much like the letters often sent to people who have gotten traffic tickets, it is far less likely to cause any issues between you and your client.

Consider, though, the soliciting lawyer who presents to your client a specific idea or general impression that implies you may be failing at your job. An ethics defense lawyer knows that the state bar has jurisdiction over lawyers practicing in the state and licensed by the bar. He also knows that lawyers facing bar prosecution chaff at the idea. The lawyer’s client, also an attorney, receives a solicitation pushing the client to hire new counsel and make a motion to dismiss on due process and jurisdictional grounds. The soliciting lawyer claims that the state bar has no authority over the client.

Even a lawyer client (or perhaps especially one) will be intrigued by the prospect of a sexy game-changing jurisdictional argument. If you never addressed this potential argument with the client, and if the soliciting lawyer is being really aggressive, you may have a real issue on your hands between you and your client.

Courses of Action

There are a couple of options on how to proceed. You might call the soliciting lawyer and inform them that your client is represented, but that does not negate the damage already done. The client ultimately has the right to change attorneys at any time, so this will not protect your client relationship.

In an effort to preserve the relationship, you should explain to your client that the soliciting lawyer has violated ethical rules by soliciting them, and who knows what other rules they will violate. That said, be careful with your choice of words. You do not want to inadvertently slander a fellow attorney.

Another explanation owed to your client is the cost involved to switch lawyers. You do not want to imply that you are forcing or pressuring them to stay with you, but you should objectively explain the costs, such as paying the new lawyer to get up to speed on their case. Additionally, you can ask your client if there is any way to improve your services. That is a perfectly acceptable question to ask, and is good business practice.

Finally, consider whether you want to report the attorney to the ethical authorities. In some states it is mandatory to report unethical conduct (those following Model Rule 8.3 as written). In other states it is encouraged but not required to report unethical conduct. Some states are completely silent on the issue, but no state would prohibit you from reporting ethical transgressions.

Balancing Act

It is obviously a problem to have other lawyers attempting to poach your business, but in our “gentlemanly profession,” we must also be careful in how we handle it. Clients need our protection from unethical would-be poachers, but they also have a right to choose their counsel. Balance the  sophistication of your client with the nature of the soliciting lawyer’s conduct, and you will find the appropriate action to cover all your bases, protect your client, and hopefully keep your business.

Categories: Teknoids Blogs

The Wrong Way To Network

Mon, 09/08/2014 - 09:05

Like most successful legal professionals, I engage in a fair amount of networking. Much of my networking time is devoted to developing my own business, but sometimes I am on the “receiving end” of a networking exchange — someone is trying to develop their business through me. I am almost always happy to do this, even when there doesn’t seem to be much in it for me.

I do this because I take a long-term view towards networking. Networking is not just about making yourself more successful; is should be about making both parties more successful. If I can help someone become more successful today, maybe he or she will be able to return the favor in the future.

I also approach these seemingly one-sided networking events as a learning opportunity. I am always curious to see how effective other people are at networking for business development.

Recently, I had a networking coffee of this type with an individual who had created a software product for in-house counsel. He wanted my feedback. It did not go well.

First Mistake: Not Being Inquisitive

This guy did not get a passing grade from me in networking. At an initial meeting like this between two people who do not know each other, an exchange of questions is expected. I certainly peppered him with questions about his background and product. To prepare, I had reviewed his LinkedIn profile and the product’s website before our meeting.

What did he ask me? Nothing.

When networking, you want a new acquaintance to walk away liking you. In this case, there was nothing to indicate this person was remotely interested in me beyond what I could do for him. His total lack of interest in me created no positive feelings in me, and I did not walk away liking him.

His performance did not improve over the course of our meeting. It was obvious to me why he wanted to meet me: although I wasn’t a potential customer, I could provide him with ideas for marketing his product to his target demographic. I market my services to lawyers and have learned much from my experiences. In addition, I suspect, he was hoping for some leads.

Second Mistake: Being Pushy

I am more than happy to let others pick my brain about marketing ideas via networking, but I always warn them in advance that the advice may be worth only what they are paying. I am not nearly as generous when it comes to my leads. I am willing to leverage my relationships to help people I know well, but rarely for strangers. I certainly cannot make a sound judgment about someone after only 45 minutes, and I am not willing to risk offending or wasting the time of a close professional colleague if I guess wrong. I am especially wary when I know that the follow-up to any lead will be a sales pitch.

In any event, this individual didn’t hesitate to ask for names — several times during our meeting. I found his requests annoying, but also a bit naïve.

Final Mistake: Forgetting to Say Thank You

Finally, it is fundamental to thank someone for taking the time out of their busy schedule to meet with you. I would like to think some of the information and ideas that I provided were helpful to this fellow. A thank you at the end of our time together would have gone a long way towards softening the above mistakes. But do you think I received any sort of acknowledgement? I did not. Hence the failing grade.

Whenever you meet with someone in a networking context, ask questions. Be interested in getting to know more about that person and their business. If you have to ask for leads, save it for a subsequent meeting or a follow-up conversation. And always say thank you.

Updates
  • 2013-07-17. Originally published.
  • 2014-09-08. Revised and re-published.

Featured image: “Airport Moment” by Antonio Viva is licensed CC BY-NC-SA 2.0.

Categories: Teknoids Blogs

Why Your Law Firm Should Have a Logo

Fri, 09/05/2014 - 11:42

There is a good reason why some law firms dedicate significant amounts of time and money to developing a professional logo. Logos remind customers of your best attributes, and contribute to the growth of your firm through branding, recognition, and consistency of visual messages. Keep in mind that a logo does not equal a brand, but it does help build value in your brand. On the value of branding, Forbes says:

Branding is fundamental. Branding is basic. Branding is essential. Building brands builds incredible value for companies and corporations.

What Makes a Logo Great?

A great logo reflects your firm’s brand and the quality of your work. Professional, memorable logos need to be simple. The goal is for people to immediately associate your logo with your firm.

If your logo fosters brand awareness (i.e., people think of your firm when they see your logo), it will be invaluable marketing for your law firm.

Simple

Think of a logo as a one-second commercial that plays every time something from your business appears. You want certain associations to be broadcast effectively so that potential customers know exactly what your business does well. Additionally, your logo needs to be recognizable in many contexts. A simple logo will be effective regardless if it is big, small, online, or in print. For example, take a look at the Akerman logo on the right. It is simple and clean, but the bold color is memorable and used throughout the site as an accent.

Professional

A polished logo is a sign of professionalism, and it implies that you bring professionalism to everything you do. That helps to persuade clients that you will do your job well. The logo of the McKenzie firm in Florida is a great example of a mark that displays professionalism without being cheesy:

Another example is the logo for Yong Gruber in Los Angeles, which features subtle modern elements of modern font design and a bit of color for the accent:

A professional, polished logo sends a positive message about the lawyers you employ, which can earn you customers and help attract the best employees. Success is not simply a matter of doing good work. Success is also about communicating to customers a commitment to quality and professionalism, and a great logo can help you do that.

Updates
  • 2014-09-05 The McKenzie firm is in Florida, not Pennsylvania. Thanks for pointing out our mistake, Florida Esq.
Categories: Teknoids Blogs

Offer Unbundled Legal Services to Compete in Today’s Legal Market

Thu, 09/04/2014 - 08:33

Startups and entrepreneurs in need of legal assistance are seeking alternatives to the traditional law firm model for convenience and affordability. Law firms are responding by providing unbundled legal services through different models, and doing so without sacrificing revenue.

I have written before about how lawyers can use unbundling as part of a marketing strategy for their law firms to differentiate themselves from traditional full-service law firms that stick to the billable hour model. Unbundling facilitates fixed fees and packaged legal services, and can be delivered online using secure methods. These alternatives to traditional delivery of legal services particularly appeal to busy and often money-strapped startups and entrepreneurs.

Take for example Cooley LLP’s Cooley Go. Pitched as a “mobile-friendly microsite,” the service of the firm caters to the startup and entrepreneurial set by providing unbundled legal forms and resources online, including a document assembly tool. Clients can take advantage of the Cooley Go’s unbundled services, and can connect with one of their lawyers for additional full-service representation. While this is no doubt part of a larger marketing strategy to attract cost-conscious and busy entrepreneurs and small business owners, this model still offers flexible payments and delivery.

Fenwick and West LLP created Fenwick Flex as a way to provide unbundled legal services and in-house counsel where legal assistance can be purchased by the number of hours a project might need. A startup needing a lawyer to assist it in a specific acquisition or other event might want to retain the unbundled services on a project basis, rather than retaining the traditional firm on the billable hour model for full-representation.

What both of these online models demonstrate is the law firm reaction to the market need by startups and entrepreneurs for unbundled and convenient legal assistance. What is also clear is that these services are not being offered at the detriment of the law firms, but rather as a creative way of inviting a target market base into their firm’s trusted fold. The projection of choice and flexibility that these models provide for clients is what sells the law firm. The use of technology, in the case of Cooley Go’s document assembly tool, allows their lawyers to offer services unbundled without sacrificing time or charging the same billable hour for standard documents.

This is an important lesson for law firms, because other online legal services such as UpCounsel are already on the scene attracting startups, small business owners, and entrepreneurs with affordable and convenient unbundled legal services. As the ABA Partners with Rocket Lawyer on pilot projects to connect members with clients through their platform, we will see unbundling occurring in more practice areas.

For solos and small firms, you will want to find ways to collaborate with companies like Rocket Lawyer and UpCounsel to connect with clients who desire unbundled legal services. Larger law firms will want to look at ways to create unbundling departments within their existing business model, such as those at Fenwick and Cooley. Lawyers will not have to sacrifice legal fees to offer unbundled services if they take note from the business models that work best.

A shift to unbundling in the legal profession will lead to greater access to legal assistance across most practice areas. The Legal Services Commission already acknowledged the benefits of unbundling and mobile delivery to increase access to justice in its 2013 Report of The Summit on the Use of Technology to Expand Access to Justice. The ABA House of Delegates adopted a Resolution 108 on Unbundling in 2013 encouraging the practice.

While the unbundling trend may be starting out with larger firms for startups and entrepreneurs, it will make its way to down to smaller sized firms and encompass many more areas of law. All lawyers can benefit from learning techniques for unbundling and using technology to deliver services online.

Categories: Teknoids Blogs

How to Ask Another Attorney for Help

Wed, 09/03/2014 - 06:12

One of the toughest aspects of being an attorney (especially a solo) is that you can find yourself living in your own little bubble. Whether you are calling another member of your firm, or another attorney that you know, reaching out for help is easier said than done.

Regardless who you ask, be respectful of the other attorney’s time and advice.

Step 1: Know What You Need To Ask

It is best to determine how much help you need before picking up the phone. To get started, here are some basic questions you should ask yourself.

  1. Do you need information on one or two issues related to the claim?
  2. How much time will you need to discuss your questions?
  3. Do you need to be taught a practice area?

The answers to those questions should guide how you ask for help, and what kind of help you are asking for.

You should also use the correct medium when requesting assistance. I would much rather have a ten minute call than a chain of emails throughout the day. If it is a detailed discussion, I would prefer lunch for an hour over numerous phone calls.

If you think you need more than a lunch meeting, then you should really consider asking someone to co-counsel or simply refer the case. There is nothing more awkward (and frustrating) than someone that buys you lunch, and then regularly wants to “bounce a few ideas off of you.” If they are someone you just met, you are burning down that bridge before you can even build it.

Step 2: Be Respectful of Their Time and Schedule

Do not call someone out of the blue at 3:30 in the afternoon, and tell them you need to talk them right away about a case.

At that time of day, most attorneys are either putting out their own fires on a case, or starting to plow through work pushed aside earlier in the day. This is especially true if you do not know the person.

To be fair, there are situations where you might need an immediate answer. If that is the case, try reaching out to attorneys you have built relationships with. I would happily take phone calls from my close colleagues at any time of the day.

If you need to cold call someone, make sure your introduction follows these three important rules: you are respectful of their time, you have an estimate of how much time you need, and you offer an opportunity to set a meeting at their convenience.

If you are asking the right person for help, they are probably busy, so make it as easy as possible for them to say yes. If you send an email or leave a voicemail and do not get an immediate response, wait a day. Remember that your emergency is not another attorney’s emergency.

Step 3: Respect Their Advice

If you are asking for advice, it is likely you are unsure of your client, the case, and procedural status. You may not be clueless, but you lack confidence in your position.

Keep that in mind when you ask for advice. There is nothing wrong with disagreeing over an interpretation of the law, facts, rules, and just straight up ignoring rock solid advice or common sense.

For example, I regularly get calls from attorneys that want to pursue a claim under the Fair Debt Collection Practices Act (FDCPA). The FDCPA protects consumers against abusive and unfair debt collection. It also requires that the debt at issue must be a consumer debt.

I have had more than one conversation that goes like this:

Them: “Yeah, so they went out of business and now these collectors are threatening them with garnishment and harassing them.“

Me: “Wait, so this is a business debt?”

Them: “Yeah, it’s their business credit card that they used to buy stuff for the business.”

Me. “It has to be a consumer debt to bring a FDCPA claim, so your client doesn’t have standing. The other side will realize that immediately, and your case will be over before it starts.”

Them: “What? Oh, whatever. I’m just going to file it and see what happens.”

Not only did the attorney ignore me, they dug the hole deeper by professing their intention to plow ahead with a frivolous claim.

To be fair, it is not always that cut and dry. There is nothing wrong with having a discussion about an undecided fact, rule, or law. But be respectful about how you discuss it. If you are wading into unknown territory, remember that the other side probably understands the situation better than you.

Updates

September 17, 2013. Originally published.

September 3, 2014 Entirely rewritten.

Featured image: “Young busy businessman at his desk” from Shutterstock.

Categories: Teknoids Blogs

Using Social Media During Jury Trials

Tue, 09/02/2014 - 06:12

Most of us know only enough about jury selection to figure out how to get bounced from a potential jury. Lawyers who work in jury selection, though, know its ins and outs and have a new tool to consider: social media. So how much can lawyers use social media to learn about jurors, and how far may a juror go in social media posts about their jury service before they corrupt the judicial process? And how will we all see this play out the next time the country gets wrapped up in a “trial of the century”?

Social Media in Jury Research

Jury research is an entire industry unto itself. Trial lawyers and jury consultants frequently spend substantial resources to learn about the people coming into the courtroom who are just hoping to be excused to go back to their lives.

Books and movies like The Runaway Jury dramatize the jury selection process and give some actual insight into how it is really done. Media coverage of major trials like the Zimmerman trial bring jury selection into our living rooms. As lawyers and jury consultants seek to learn about potential jurors, social media postings provide great fodder for ferreting out a juror’s beliefs and personal preferences.

Is looking at a potential juror’s social media postings ethical?

In other posts, I discussed the ethics of investigating witnesses, judges, and other parties through their social media posts. The common theme is that so long as posts are public and a lawyer need not “friend” the posting person in order to see the post, the information is fair game. The same holds true for juror research.

_Communicating_ [with a juror, for example,] in the social media context includes sending a friend request.

The New York City Bar Association issued an opinion on this point. In Formal Opinion 2012-2, it said that an attorney may view publicly available social media postings for the purpose of evaluating a potential juror, but the attorney may not “communicate” with the potential juror any more than he could have before the advent of social media.

Communicating in the social media context includes sending a friend request or otherwise allowing the potential juror to know that the attorney is viewing the juror’s posts. Moreover, the attorney may not engage in any deception, including pretending to be someone else, for the purpose of gaining access to the potential juror’s posts.

This ethical framework is consistent with an attorney’s obligations regarding social media and other individuals as well, including judges and opposing parties.

Social Media and Sitting Jurors

Sitting jurors are subject to court order not to discuss the pending case, but this can be a tough rule for many jurors to follow. (It shouldn’t be, but real-world examples show that it is.) As a result, many of them violate it. Lawyers are watching and taking these violations to the judge.

The New York City Bar Association’s Formal Opinion 2012-2 and the New York County Lawyers’ Association Committee on Professional Ethics Formal Opinion 743 addressed this issue, along with citing a number of actual cases where it has been a problem. The New York opinions concluded that an attorney who sees that a juror has violated the court’s order not to discuss the case must bring the violation to the attention of the court. The court will then act upon it just as it would if the court learned that a juror discussed the case in a non-social-media forum, such as during a phone call or a conversation. Lawyers must not take their own action to address the juror misconduct.

The problem of jurors on social media is not theoretical. Juror misconduct on social media can have a major impact on the administration of justice. Take for example the Arkansas case where a murder conviction was overturned because a juror tweeted during the trial. See Dimas-Martinez v. State, 2011 Ark. 515 (Ark. 2011).

There is also a big gray area between jurors ignoring the court’s instructions and misconduct leading to overturned convictions. Many cases have come down where jurors disregarded the court’s instructions and posted on social media about the trial, but the court did not find the misconduct severe enough to declare a mistrial. In Smead v. CL Financial Corp., No. 06CC11633, 2010 WL 6562541 (Cal. Super. Ct. Sept. 15, 2010), the court found that social media posts about the length of the trial were not prejudicial. Similarly, in United States v. Ganias, 2011 WL 4738684, at *3 (D. Conn. Oct. 5, 2011) juror postings such as “Guinness for lunch break. Jury duty ok today” did not taint the trial.

Courts are beginning to deal preemptively with the problems jurors and social media may create. In New York the pattern jury instructions now include a provision reminding jurors “It is important to remember that you may not use any internet services, such as Google, Facebook, Twitter or any others to individually or collectively research topics concerning the trial …” New Jersey and Florida have made similar provisions. These instructions coupled with ethics rules that explicitly allow attorneys to monitor the publicly-available social media postings of sitting jurors attempt to maintain the integrity of the judicial process in the digital age.

Today’s Reality

Today we find ourselves immersed in periodic social media circuses during which the country will be riveted to the judicial process at work. The prosecutors and defense lawyers vet potential jurors, and they probably check the social media accounts of each and every one. As the trial progresses, they will also monitor jurors’ compliance with court instructions by keeping a close eye on those accounts. But as long as the lawyers refrain from communicating with the jurors, all of that monitoring will be ethical.

Featured image: “Lawyer showing evidence to the jury” from Shutterstock.

Categories: Teknoids Blogs