State Immunity, Torture, and Impunity

slaw - Fri, 10/10/2014 - 11:42

Today, justice was denied to Zahra Kazemi and her family. After an eight year struggle, the Supreme Court of Canada released the decision many of us feared: Iran and its functionaries are immune from the civil jurisdiction of the Canadian courts for having arrested, tortured and murdered Ms. Kazemi, a Canadian journalist.

There will be time to pick apart the decision over the coming months, and years. Right now, though, I can’t do much more than shake with frustration and grief. In my 2009 comment on this case, when it was still pending before the Quebec Superior Court, I was hopeful that the law was rapidly moving towards holding states, and individuals acting under colour of state authority, accountable for breaches of jus cogens norms. We are not there yet. But one day, we will be.

Let me pay tribute to, and give thanks for, the extraordinary efforts and courage of Stephan Kazemi, son of Ms. Kazemi, and the many, many people who worked with him in this struggle. I know some of the lawyers involved in this case – indeed, several are my close friends. They are a truly remarkable group, and have done immense credit to the Canadian bar. I know that they share my view that we have not lost, so long as we continue to fight.

Human beings suffer,
They torture one another,
They get hurt and get hard.
No poem or play or song
Can fully right a wrong
Inflicted and endured.

The innocent in gaols
Beat on their bars together.
A hunger-striker’s father
Stands in the graveyard dumb.
The police widow in veils
Faints at the funeral home.

History says, Don’t hope
On this side of the grave.
But then, once in a lifetime
The longed-for tidal wave
Of justice can rise up.
And hope and history rhyme.

So hope for a great sea-change
On the far side of revenge.
Believe that a further shore
Is reachable from here.
Believe in miracles
And cures and healing wells.

Call miracle self-healing:
The utter, self-revealing
Double-take of feeling.
If there’s fire on the mountain

Or lightning and storm
And a god speaks from the sky

That means someone is hearing
The outcry and the birth-cry
Of new life at its term.

from Seamus Heaney, “The Cure at Troy: A Version of Sophocles’ Philoctetes”

Categories: Teknoids Blogs

Unique Opportunity to Help Ontario Lawyers Avoid Claims and Succeed in the Practice of Law

slaw - Fri, 10/10/2014 - 11:16

Are you ready to bring change to the legal profession? LAWPRO (the Ontario malpractice insurer) is looking for a lawyer who is passionate about helping Ontario lawyers and paralegals avoid malpractice claims and succeed in the practice of law. This is a high profile opportunity for a dynamic individual who will become the public face and engine behind the practicePRO program, our internationally recognized risk management and claims prevention initiative. See a more detailed list of responsibilities and requirements here.

Categories: Teknoids Blogs

Exude Professionalism: Get a Real Email Address

The Lawyerist - Fri, 10/10/2014 - 06:12

In an age where email has become a standard medium for communication among lawyers, potential clients, actual clients, opposing counsel, and judges, the way you present yourself speaks volumes about your reputation, professionalism, and credibility. And as much as I would like to be able to say that the only thing that matters is the content of one’s communiqué, its presentation in terms of look, feel, and source also greatly influence its reception.

The digital age has made it far easier and more cost effective to become a solo practitioner, allowing individuals to design their own websites, write their own articles, produce their own marketing materials, and forego the use of a secretary for communications. But with this DIY ability comes the responsibility to ensure that one’s DIY projects exude the same competence and professionalism that would come with professionally produced materials.

All this is a long-winded, overblown introduction to why I think it’s important to have your own email address instead of an email address hosted at Hotmail, MSN, Yahoo, AOL, or even Gmail (my personal webmail service of choice).

For those in the know about the history of the web, each webmail service carries its own baggage (e.g., AOL is old and sluggish, Hotmail is free and full of junk and advertisements, etc.). Whether these judgments are true or not is irrelevant — all that matters is how the recipient perceives the email address. I know that every time I see another attorney’s email address that is not part of his or her own domain, I cringe a little and find myself thinking he or she is less credible.

Mostly this is because I know how simple it is to sign up for a website and set up an email account attached to that website. You don’t even need to have a website set up, so long as you have a domain purchased for yourself!

You can purchase a domain name for as little as $10 per year at Hover (what we use for Lawyerist.com) or GoDaddy.com, and there are plenty of other options. Any good host will also have an option to set up an email address of your own choosing, which means you can end up with something as simple as mickey@mouse.com. My email address is firstname@mydomain.com. Easy for people to remember, and professional to boot.

Also important to note is that any host worth its salt will make it easy to forward email from that email address to whatever other email address you may want to use. For example, I use Gmail as my email client because I love its interface and search capabilities. But I have my host set up to forward my email to my Gmail address, and I have Gmail set up to send email using my hosted email account. So even though I have and use all the functionality of Gmail, I have a professional-looking email address, which — although a small detail — helps establish me as a professional.

At $10 to $50 per year it’s hard to argue that having a professional email address is unaffordable. And given the tools provided by both web hosts and webmail providers (like Gmail) for displaying your email address, it’s hard to claim that it is too hard to set up.

So if you want an email address that is easy for clients to remember and professional-looking, sign up for a domain, add email service (if necessary), and start emailing like a professional.

Need help setting up your email forwarding or response address? Let me know in the comments and I will help as best I can.

Updates
  • 2011-11-01. Originally published.
  • 2014-10-09. Revised and republished.

Featured image: “Young successful businessman pointing and winking” from Shutterstock.

Categories: Teknoids Blogs

The Friday Fillip: An Indifferent Foot

slaw - Fri, 10/10/2014 - 06:00

Remember school physics and the whole business of learning the difference between mass and weight? Weight is what you gain as you get older and what the Beatles were singing about; mass is, well, a much heavier concept by far, given that it remains constant no matter where you are — here, on the moon, or in deep space.

And constancy is the thing. At least it is if you’re to swap measurements with others or carry measurements over time. Think only of the Chancellor’s foot, as John Selden did four hundred years ago:

. . . what an uncertain measure would this be? One Chancellor has a long foot, another a short foot, a third an indifferent foot . . .

So, fed up with arpents, minots, perches, lieues and, yes, pieds, not to mention three-footed Chancellors, the revolutionary French brought reason to bear and went metric. With respect to mass, the unit was the gram — and the source of constancy was water, thought to be (on Earth) everywhere and always the same: a gram was the mass of one cubic centimetre of water. You’ve spotted the flaw? So had the French: what’s a centimetre, then? Things were stopped from going circular or regressing into the channel by the decision to define a metre as “la mesure de longueur égale à la dix-millionième partie de l’arc du méridien terrestre compris entre le pôle boréal et l’équateur” (one ten-millionth of the distance between the North Pole and the Equator). Easy peasy. [All of this is spelled out in Le décret relatif aux poids et aux mesures, 18 germinal an 3 (7 avril 1795).]

Surveying expeditions thither and yon notwithstanding, this basis proved problematic. And as a means of measuring mass in a practical way, it was difficult to use. So as early as 1799 a prototype object was created the mass of which was deemed to be one kilogram. This object and the definition behind it eventually gave birth to a more . . . exquisite object, which still to this day is what a kilogram is for all the world’s purposes. The object — the International Prototype Kilogram (or, as it’s familiarly known, Le Grand K) — is held in France, with “exact” copies held at various crucial spots around the world, one of which is Canada’s National Research Council. The copies are checked by comparing them with the original from time to time, to ensure . . . the constancy we started with.

Only it’s not working perfectly enough for current scientific purposes. Occasional checks against all the copies have shown that Le Grand K varies in mass ever so slightly over time, perhaps accumulating molecules from the air, perhaps for other reasons.

So there’s a move afoot to dump the kilogram — or, rather, to find a purer basis for the measurement of mass and then to create a practical kilogram in these new, more fundamental terms. Not that any of this will affect the amount of bacon you bring home from the butchers, but there’s something appealing about absolutes, about fixed things — about constancy. So I thought you might be interested in listening to University of Nottingham prof Michael Merrifield talk about where things might be going mass-wise, as yet another element in our culture moves into the abstract:

[PS: This involves something called Planck's Constant, which is, as they say, another story. But there's a pretty good explanation of it (i.e. one that non-physicists can understand) over on the PBS website, in case you're intrigued.]

Categories: Teknoids Blogs

A Public Comprehensive Collection of Supreme Court of Canada Decisions Is Now Within Reach

slaw - Fri, 10/10/2014 - 06:00

This July, the Centre d’accès à l’information juridique (CAIJ), funded the addition of 546 Supreme Court of Canada (SCC) decisions to CanLII’s databases. With this addition every SCC decisions originating from Quebec are now available on CanLII (CAIJ’s press release). This effort constitutes one more step in assembling a collection of SCC decisions freely accessible to the public. These decisions are accessible through CanLII, but also through the Judgments of the Supreme Court of Canada website published by Lexum.

The long story of assembling the public collection of SCC decisions

Even though not yet finished, the project to build a comprehensive public collection of SCC decisions started over 20 years ago. Actually, the publication of SCC decisions on the web was the very first activity launched by the U. of Montreal research team which became Lexum Inc. in 2010. Along the years, many stakeholders contributed to building this public collection. The following table summarizes how the collection was assembled.

Additions Contributors Content additions 1994-… Lexum (then at U. of Montreal) Ongoing, current decisions since 1993 Mid 1990s Lexum Decisions published, 1984 – 1993 2007 Law Foundation of Ontario (through a support grant to CanLII) All missing decisions appealed from Ontario 2008 SCC and Lexum All missing decisions, 1965-1984 2009 Law Foundation of British Columbia (through a support grant to CanLII) All missing decisions appealed from British Columbia 2009 SCC and Lexum (SCC Grant and Lexum contribution) All missing decisions, 1949-1965 2009 Lexum Missing decisions appealed from PEI, NFLD, and the Territories 2010 Alberta Law Foundation (through a support grant to CanLII) All missing decisions appealed from Alberta 2011 SCC and Lexum (SCC Grant and Lexum contribution) All missing decisions since 1907-1948 2014 Centre d’accès à l’information juridique (CAIJ) (support to CanLII) All missing decisions appealed from Québec


What remains to be added?

The most obvious remaining gaps are constituted by the sets of decisions appealed from Manitoba, New Brunswick, Nova Scotia, and from the federal jurisdictions published in the Supreme Court of Canada Reports before 1907. The total number of those decisions is estimated to 522.

Missing sets (decisions reported before 1907) Number of decisions Appealed from Manitoba 44 Appealed from New Brunswick 126 Appealed from Nova Scotia 234 Appealed from Federal jurisdictions 118 Total 522

However, even then, with all the decisions ever reported in the Supreme Court of Canada Reports (SCR) part of the public collection, the historical collection of SCC decisions will not be complete. Indeed, yet another set of decisions from the SCC must be identified and acquired, the ones not selected to be reported in the SCR.

I’m sure that many professional law librarians are aware of the fact, but I still remember my surprise when I discovered a in a paper from Peter McCormick and Tammy Praskach (“Judicial Citation, the Supreme Court of Canada, and the Lower Courts: A Statistical Overview and the Influence of Manitoba”, (1996) 24 Man. L.J. 335-364) that not all SCC decisions have been reported in the SCR. In their presentation of a citation study of the Supreme Court case law, the authors informed their readers of a known limitation of their research: “[…] since 1970, almost all Supreme Court decisions are reported, but before that time the selection process was sometimes criticized as unreliable and erratic, a consideration which slightly qualifies findings for the first half of the period”. They further mentioned that “several hundred” pre-1970 cases omitted from the Supreme Court Reports were reported in the Dominion Law Reports. When questioned, Ms. Rosalie Fox, director of the SCC Library, further disturbed me by confirming the incompleteness of the SCR and adding that unreported cases existed from the Court’s inception, Cassels digested some in the 1880s, other have been reported by Cameron and further indexed in the appendices to volumes 14, 16 and 18 of the SCRs. All in all, Ms. Fox estimated the number of unreported Supreme Court of Canada decisions to some five hundred cases. To have a really comprehensive public collection of the Supreme Court decisions, these ones too will have to be identified, compiled, digitized and published.

To sum up, around a thousand decisions are still to be digitized and published on public and free platforms. While not a trivial project, such an addition is very much within reach. With 9,700 decisions already published, more than half of them in both official languages, it can be estimated that soon the opportunity will be found to add the last one thousand. It appears now certain that in a very near future a complete historical collection of all decisions from the higher court in Canada will have been made public and hopefully will remain so forever.

– Daniel Poulin

Categories: Teknoids Blogs

Katz: Slides: Five Observations Regarding Technology and the Legal Industry

Legal Informatics Blog - Fri, 10/10/2014 - 03:27

Daniel Martin Katz of Michigan State University has posted slides of his new presentation entitled Five Observations Regarding Technology and the Legal Industry, which he gave as a keynote address at Legal Week Global Corporate Counsel Forum 2014, 8 October 2014, in New York City.

According to one of the early slides in the deck, the topics covered by the presentation include:

  • complexity and legal production functions
  • lex.startup
  • quantitative legal prediction
  • horizontal integration of legal IT
  • polytechnic legal education

Filed under: Applications, Policy debates, Presentations, Slides, Technology developments, Technology tools Tagged: Complexity in law, Daniel Martin Katz, Legal complexity, Legal education reform, Legal startups, Legal technology, Legal Week Global Corporate Counsel Forum, Legal Week Global Corporate Counsel Forum 2014, Quantitative legal prediction
Categories: Teknoids Blogs

My Twitter Digest for 10/08/2014

<CONTENT /> v.5 - Thu, 10/09/2014 - 14:30
Categories: Teknoids Blogs

Could a Court Simulator Help Pro Se Parties?

The Lawyerist - Thu, 10/09/2014 - 14:11

From the Hartford Courant:

[L]egal aid lawyers in Connecticut and NuLawLab of Boston’s Northeastern University School of Law hope creating a video law game that puts litigants before a virtual judge will help the increasing numbers of people representing themselves in civil legal proceedings throughout the state and nation.

Seems worth a try, actually. It’s easy to give someone a script, but it’s really hard to teach them how to respond to questions. A simulation might do a better job of preparing pro se parties to stand in front of a judge.

(h/t LawZam & John Mayer)

Categories: Teknoids Blogs

CALL/ACBD Substantive Law Webinar Series With Ted Tjaden

slaw - Thu, 10/09/2014 - 13:48

The Canadian Association of Law Libraries‘ Webinar Committee has announced a substantive law webinar series created and presented by former Slaw contributor Ted Tjaden. This follows from a successful Civil Procedure 101 webinar they presented earlier this year. These sessions are aimed at information professionals and others in the legal industry who would like to expand their understanding of the law. All are welcome.

See the details below. Click through the individual topics for more information and to register. Note the mention at the bottom–you can also register for all 5 webinars at a 20% discount (essentially getting one of the webinars free). See also the CALL/ACBD Webinars page.


Substantive Law Webinar Series
The Webinar Committee is pleased to offer a series of substantive law webinars delivered by Ted Tjaden. Ted delivered a webinar on Civil Procedure in March, 2014, and due to the level of interest, the Committee has paired up with Ted to offer the following subjects over 2014 and 2015.

Tort Law – October 30, 2014 from 1:00pm-2:30pm
Contract Law – December 9, 2014 from 1:00pm-2:30pm
Constitutional Law – February 12, 2015 from 1:00pm-2:30pm
Real/Personal Property Law – April 21, 2015 from 1:00pm-2:30pm
Criminal Law – June 18, 2015 from 1:00pm-2:30pm

SPEAKER:

Ted Tjaden, a long-time member of CALL/ACBD and the 2010 recipient of the Denis Marshall Memorial Award for Excellence in Law Librarianship, is the national litigation precedents lawyer in Gowlings’ Toronto office. Ted works closely with the firm’s national precedents team and litigation lawyers to organize and annotate the firm’s litigation research and precedents for use by the firm’s advocacy professionals. Ted has extensive experience as a litigator and knowledge management lawyer and is called to the bar in both British Columbia and Ontario. In addition to being the author of Legal Research and Writing, 3rd ed (Toronto: Irwin Law, 2010) and The Law of Independent Legal Advice, 2nd ed (Toronto: Carswell, 2013), he is a regular speaker at conferences on issues of knowledge management, technology and the effective organization of litigation documents.

REGISTRATION FEES:
CALL/ACBD Member: $40 + $5.20 HST = $45.20/webinar
Non-member: $60 + $7.80 HST = $67.80/webinar

*A 20% discount will be applied to registrations for the entire series (5 webinars). Please contact events@callacbd.ca to register for all 5 webinars.

Categories: Teknoids Blogs

AODA Compliance in 2015: Are You Up to Date?

slaw - Thu, 10/09/2014 - 12:27

Are you up to date with your compliance obligations under the Accessibility for Ontarians with Disabilities Act? If you answer no, do you know what the AODA is, what you are required to do and when?

For those who don’t know what the Accessibility for Ontarians with Disabilities Act (AODA) is, let me explain. The Act sets out a series of standards with the aim of achieving accessibility for persons with disabilities with respect to goods, services, information, accommodation, facilities, employment, buildings, structures and premises throughout Ontario by 2025.

The Accessible Customer Service Standards took effect on January 1, 2012 for all organizations in the private and non-profit sector that provide goods and services in Ontario, with at least one employee. As of that date, obligated organizations were supposed to have implemented the following requirements:

  1. Establish policies, practices and procedures on providing goods or services to persons with disabilities.
  2. Use reasonable efforts to ensure that policies, practices and procedures are consistent with the core principles of independence, dignity, integration and equality of opportunity.
  3. Establish a policy on allowing individuals to use their own personal assistive devices to access your goods and use your services and on any assistive devices your organization offers to enable persons with disabilities to access your goods and use your services.
  4. Establish methods and ensure your employees communicate with a person with a disability in a manner that takes into account his or her disability.
  5. Allow persons with disabilities to be accompanied by their service animal on your premises that are open to the public, unless the animal is excluded by another law. If a service animal is excluded by law, use other measures to provide services to the person with a disability.
  6. Permit persons with disabilities who use a support person to bring that person with them while accessing goods or services . Where admission fees are charged, provide notice ahead of time on what admission, if any, would be charged for a support person of a person with a disability.
  7. Provide notice when facilities or services that persons with disabilities rely on to access or use your goods or services are temporarily disrupted.
  8. Train staff, volunteers, contractors and any other individual who interact with the public or other third parties on your behalf on your customer service standard policies and requirements as outlined in the customer service standard.
  9. Train staff, volunteers, contractors and any other individual who are involved in developing your policies, practices and procedures on the provision of goods or services on the requirements as as outlined in the customer service standard.
  10. Establish a process for individuals to provide feedback on how you provide goods or services to persons with disabilities and how you will respond to any feedback and take action on any complaints. Make the information about your feedback process readily available to the public.

If an organization prepares emergency procedures, plans or public safety information and makes the information available to the public, the organization is required to provide this information in an accessible format upon request. In addition, all employers must provide individualized workplace emergency response information to employees who have a disability, if the disability makes such information necessary and the employer is aware of the need for such accommodation.

Additional requirements for organizations with 20 or more employees include:

  • Documenting in writing all your policies, practices and procedures for providing accessible customer service, and meeting other document requirements set out in the standard.
  • Notifying customers that documents required under the Customer Service Standard are available upon request.
  • Providing required information in a format that takes into account a person’s disability.

Once all of the above was complete, organizations with 20 or more employees were required to file compliance reports in relation to the Customer Service Standards by December 31, 2012.

If you have not yet complied—for example, because you think your organization is exempt from the AODA since you do not receive customers on your premises—don’t fool yourself; there is no such exemption. The definition of “customer” is very broad and includes your vendors, suppliers, consultants, among others.

The second round of requirements were due by January 1, 2014—this time under the Integrated Accessibility Standards Regulation (Ontario Regulation 191/11), which includes standards relating to employment, information and communications, transportation and the design of public spaces (the first Accessibility Standard for the Built Environment). The Integrated Standards also contain certain general obligations regarding accessibility policies and plans and further employee training. Small private-sector organizations’ compliance obligations under the Integrated Standards begin in 2015.

By January 1, 2014, large organizations were required to:

  • Develop and implement accessibility policies and a multi-year accessibility plan describing how the organization will achieve accessibility and compliance with the Integrated Standards. The document must include a statement of commitment, and be posted on the organization’s website.
  • Incorporate accessibility issues into designing, procuring or acquiring self-service kiosks.
  • Develop websites that generally meet the specifications of the Web Content Accessibility Guidelines (WCAG) 2.0 Level A, but only if the website was created or underwent a significant refresh after January 1, 2012.

On or before December 31, 2014, obligated organizations with 20 or more employees must file a second report informing the ADO that they are still complying and achieving accessibility under the Customer Service Standard.

By December 31, 2014, organizations with fifty or more employees must in addition report that they have Accessibility Policies in place and that a Multi-Year Accessibility Plan has been developed to help meet the requirements under the Integrated Standards.

Subsequently, large organizations will be required to file an accessibility report under the Integrated Regulation for all three standards, information and communication, employment and transportation, every three years.

January 1, 2015, Requirements

Adding to those AODA requirements under the Customer Service and general requirements under Integrated Accessibility Standards that are already in force, a number of additional requirements take effect January 1, 2015:

  • All employees and others providing services on behalf of a large organization must receive training on the Human Rights Code as it pertains to persons with disabilities and the Integrated Standards.
  • Large organizations must ensure that their feedback processes can be administered in accessible formats and with communication supports, upon request.
  • Small organizations must have developed and implemented accessibility policies describing how the organization will achieve accessibility and compliance with the Integrated Standards. These policies do not have to be in writing, but how are you going to communicate these policies to the public or employees if they are not in writing? Something to think about!
  • Small organizations must consider accessibility issues when designing, procuring or acquiring self-service kiosks.
  • Large and small producers (publishers) and educational libraries must make conversion-ready educational textbooks (with some exceptions)

The government has divided the Accessible Built Environment Standards into two parts, public spaces and buildings. The public spaces standards were added to the Integrated Accessibility Standards Regulation in 2012. The buildings standards are part of Ontario’s Building Code and will come into force in January 2015. The amended requirements will substantially enhance accessibility in newly constructed buildings and existing buildings that are to be extensively renovated. Changes to the Building Code are being phased in to allow building owners, the building design industry and contractors, architectural, and ergonomic/accessible design consultants to plan for and adjust to new requirements.

Organizations including law firms are cautioned to comply with AODA and its regulations as significant penalties can be imposed for non-compliance.

Categories: Teknoids Blogs

Does Using Gmail Put Attorney-Client Privilege At Risk?

The Lawyerist - Thu, 10/09/2014 - 11:14

That’s the silly question asked by the ABA Journal in this blog post. The answer is no. Using Gmail will not void or waive the attorney-client privilege.

Related“Everybody Panic: Google’s Computers Are Reading Your Email”

But what the comments make clear is that most lawyers think Gmail can only refer to the free email service. But Gmail is also part of the paid Google for Work service, and it comes with different terms.

Those different terms may be important, particularly if you are in Texas, because Texas Disciplinary Rule of Professional Conduct 1.05 says attorneys cannot use “privileged information of a client for the advantage of the lawyer or of a third person, unless the client consents after consultation.” By letting Google serve ads on your client communications in exchange for “free” email, it certainly seems like you and Google are both getting an advantage your client didn’t consent to.

Even if you do not practice in Texas, you should probably pay for your email service — Gmail or not — and use your own domain as a matter of professionalism instead of letting some company serve you ads based on the contents of your attorney-client communications.

Pay for your email, whether or not you use Gmail, and you will solve the problem and look like a professional.

Categories: Teknoids Blogs

Legal Advice Services Cannot Be Automated by Alternative Business Structures

slaw - Thu, 10/09/2014 - 09:00

The fact that legal advice services cannot be automated is of critical importance in determining whether the legal profession should accept proposals for “alternative business structures” (ABS’s). They are being promoted by a Committee of the Law Society of Upper Canada (LSUC) as a means of lowering the cost of legal services.[i] The “unaffordable legal services problem” afflicts both kinds of legal services: (1) legal advice services; and, (2) routine legal services that don’t require legal advice. ABS proposals have three parts: (1) law firms can be invested in (owned—up to 49% or 100%) by non-lawyer people and entities; (2) legal services be enabled to be provided with related non-legal services; and, (3) routine legal services be automated by software applications. The theme of these ABS proposals is that in order to have (2) and (3), the legal profession must accept (1). “It ain’t necessarily so.” And, what is not dealt with in these proposals is how they are going to make legal advice services affordable.

With good law society leadership, the automating of routine legal services with software “apps” can be done by Canada’s legal profession itself. We don’t have to surrender our professional integrity to investors providing ABS’s. Anything that they might make available to the practice of law can be done by the legal profession itself. Authorize our law practice management divisions to do it. We can bring in the necessary experts to help us, rather than having ABS investors tell us what is best for us. Canada’s law societies created CanLII—a national success story the legal profession can be very proud of. And LAO LAW at Legal Aid Ontario (LAO), was created (beginning July 3, 1979) when the LSUC was the manager of LAO. LAO LAW is the best legal research unit in Canada. These great successes prove that the “unaffordable legal services problem” can be solved with the power of a collectively as represented by a law society, rather than attempting to do so by way of the very limited powers and resources of individual law firms negotiating with high-powered investors. And, the efficacy of law society powers to regulate the legal profession will not be at risk. The legal profession is in bad economic shape right now; investors are going to want a lot of control to compensate for that risk.

The method of making legal advice services affordable exists within Canada’s legal profession itself. Moving the legal profession to a “support-services method” of delivering legal services from its “handcraftsman’s method,” will solve the “unaffordable legal advice services problem.” Handcraftsmen don’t use support services; they do all the work themselves. Therefore the legal profession doesn’t have the ability to solve the “unaffordable legal services problem,” because the economic forces that enable a support service to improve its goods or services without having to increase their price, are not available using a handcraftsman’s method. That is why the handcraftsman’s method has been abandoned in all forms of competitive production except in the legal profession.

CanLII can be enabled to provide the legal opinion and related support services that LAO LAW provides. Its 35 years of innovation as a sophisticated support service has saved LAO millions of dollars. CanLII can make LAO LAW’s support services available to all lawyers in Canada at cost. When I was LAO LAW’s first Director of Research (1979-1988), my staff was producing close to 5,000 legal opinions per year for lawyers in private practice.[ii] Because of the economics of greatly scaled-up specialization and volume of production of a sophisticated support service, we were far more cost-efficient than any law firm can be. No investor in a law firm can do that, nor will it create anything comparable to CanLII or LAO LAW. Therefore they will not be bringing the economic advantages of support services to bear upon the cost of legal advice services. Using that same LAO LAW technology, a wide range of support services can be created in whatever areas of the law that lawyers want them. No law firm need change its methods of practising law, nor incur ownership by investors. Such support services will help lawyers make money and service their clients better. That is why they used LAO LAW when I was there, and do so now in even greater numbers because of its long history of quality services and because several more support services have been spun-off from that original legal opinion service. See my Slaw blog article, “CanLII as the Solution to the Unaffordable Legal Services Problem” (October 24, 2013).

The legal profession is very right to be cautious and suspicious about inviting in non-lawyer investors to own law firms. The increased “profits duty” they will impose will conflict with a lawyers’ fiduciary duty to every client. The great danger is that such increased profits pressures will not make a distinction between routine legal services and legal advice services. Both will be subjected to “volume practice strategies”—maximizing the number of clients advised per unit time. And that pressure will be there whether the investor owns one law firm or a string of law firms controlled as franchises. The owner of a franchised outlet must follow the procedures laid down by the franchisor—“fast food legal services.” In the daily lives of the lawyers in those owned law firms, law society powers to regulate and discipline the legal profession will be effectively diminished by that added “profit duty.”

There are no definite statements or proof in the analytical literature concerning ABS’s that show that they can solve the unaffordable legal services problem concerning legal advice. But, by combining legal services with non-related legal services they should be able to make legal services more attractive to clients who can still afford legal advice services. The majority of the population cannot. And changing law and practice to make such combinations “legal” and affordable doesn’t require ABS’s.

All of the new developments are based upon improving the handcraftsman’s method of law firms delivering routine legal services. They do not take advantage of the economics of support services technology that can greatly aid lawyers providing legal advice services as does LAO LAW. None of them can provide 5,000 legal opinion services per year, and none shows any understanding of such support services providing legal opinion services. With the development of such support services, law societies can themselves make legal services affordable. They have two critically important advantages over ABS’s: (1) no law firm or lawyer need change—just decide whether or not to use support services (my experience at LAO LAW proves that they will, enthusiastically); and, (2) you don’t have to cope with an investor living in your law firm as “another mouth to feed.” If a number of support services were developed and used, the legal profession and law schools would be expanding instead of contracting.

The best solution to the unaffordable legal services problem is a law society solution, not corporate money owning law firms. Lawyers’ professional duties to, social justice, the rule of law, and their fiduciary duties to their clients, should never be sacrificed to the profit duties imposed by the investment market. The practice of law is a profession, not a business, and business is not the only agency that can make the practice of law as cost-efficient and affordable as necessary.

As to financing such development by Canada’s lawyers (instead of by commercial investors) of software for automating the delivery of routine legal services: more than $11 million could be raised if every lawyer in Canada paid an addition one-time $100 increase in annual law society fees. Any additional costs or annual usage fees could be negotiated by the Federation of Law Societies of Canada (FLSC) for the benefit of all lawyers and their law societies. (CanLII was thus sponsored and developed by the FLSC.) The negotiating power of the legal profession as a single group is much greater than that of any single law firm negotiating with an investor for an ownership share of that law firm or of a string of law firms to be made franchises of the investor. Such financing would be far more economical and controllable than the resulting costs imposed by such investors in the form of an increased “profit duty” to pay for such investments.

As to potential self-interest in the outcome of the ABS debate: the members of the Working Group that wrote the Report to Convocation of Feb. 27th, and LSUC’s ABS Discussion Paper, released on Sept. 24th, should declare any interest that they or their law firms will have in enabling investors to own law firms. For example, will they, or any clients of their law firms be such investors? Similar declarations should be forthcoming from the members of LSUC’s Professional Regulation Committee from whose members the Working Group was composed. Such declarations or denials of self-interest should be immediately forthcoming. They are necessary to dispel any appearance or suspicion that Benchers are using their position for self-interest and not solely in the public interest.

Note that the Discussion Paper is not a neutral text, providing a balanced review of the issues. It reads like a promotional text for its proposals.

Ken Chasse (“Chase”), member LSUC (1966); LSBC (1978). The “access to justice” articles that I have posted on the SSRN (Social Science Research Network) provide the footnoted authorities and in-depth analysis that support these statements. SSRN author’s page

____________________

[i] Alternative Business Structures Working Group Report to Convocation (at Tab 4) of the Professional Regulation Committee Report, February 27, 2014 (Co-Chairs, Malcolm Mercer & Susan McGrath). And see also this statement on LSUC’s website: “The Law Society released Alternative Business Structures and the Legal Profession in Ontario: A Discussion Paper on September 24, 2014, to seek input from lawyers, paralegals, stakeholders and the public about Alternative Business Structures (ABS).” Comments and requests to attend meetings may be sent to, abs.discussion@lsuc.on.ca by December 31, 2014. (This discussion paper reads more like a promotional text than a neutral text providing a balanced presentation.)

[ii] However since then, LAO has suffered a number of funding cuts. Therefore LAO LAW’s staff is now smaller, and works by a different strategy of emphasizing its very large catalogue of memoranda and draft pleadings and other support services, all available for free download by lawyers who service legal aid cases. But it still provides legal opinion services and works by way of the same centralized legal research technology developed during its initial years to provide a large cost-saving to LAO.

Categories: Teknoids Blogs

Thursday Thinkpiece : Boddie on Succeeding as Outside Counsel

slaw - Thu, 10/09/2014 - 08:00

Each Thursday we present a significant excerpt, usually from a recently published book or journal article. In every case the proper permissions have been obtained. If you are a publisher who would like to participate in this feature, please let us know via the site’s contact form.

SUCCEEDING AS OUTSIDE COUNSEL: A LAWYER’S GUIDE TO PROVIDING FIRST CLASS LEGAL SERVICES FROM THE CLIENT’S PERSPECTIVE

by Rod Boddie © 2014 American Bar Association. Reprinted with permission of the American Bar Association. All rights reserved. (ABA LPD 2014)

Excerpt: Chapter 1: Legal Services

To begin the discussion about the provision of legal services, let’s briefly discuss the client who will be receiving these services. When you are retained by a company, it is the company to whom you owe your fiduciary duty, and when defining your obligations toward your client, it is generally the company to whom your rules of professional conduct refer. For purposes of this book, however, the client is not that corporate entity; rather it is the in-house counsel or other corporate officer who is your conduit to the bill-paying entity.[1] These individuals are the ones with whom you will forge a personal and professional relationship. They are the ones who will look to you for guidance, who will rely on your expertise to make their jobs easier, and who will be evaluating you (consciously or subconsciously) throughout the course of the representation. It is ultimately the impression that you make on these individuals that will determine your long-term relationship with the institutional client and that will impact your professional success in the future.

Results-Oriented Services

When a company decides to retain outside counsel, it usually does so with a specific purpose in mind—to win a piece of litigation, negotiate a lease on favorable terms, assist the company in avoiding criminal prosecution in connection with a governmental investigation, file applications to protect the intellectual property of the company, or to handle some other specific legal issue. The goal (for the most part) is clear, and the outside lawyer retained generally has the technical expertise to accomplish that goal. With ample experience in the requisite subject matter, the vast resources of the firm behind him, and a laser focus on the goal in his sights, the lawyer is prepared to plow forward to achieve the desired result for the client.

But should attaining the right result really be outside counsel’s primary goal? Should winning the litigation, for example, be the lawyer’s focus in representing his client? To answer these questions, we need to know what the client wants. While it is clear that attaining the right result is of the utmost importance to the client when retaining outside counsel, the needs and desires of the client go far beyond the result. In the Association of Corporate Counsel’s 2011 CLO Survey (referred to here as the ACC CLO Survey [2]), which surveyed over 1,100 Chief Legal Officers, the CLOs were asked what they would like to see outside counsel do to improve the relationship with, or work done for, their respective legal departments. The top five responses, and the percentage of CLOs who responded in kind, were as follows: [3]

Source: Succeeding as Outside Counsel by Rod Boddie. © American Bar Association 2014

 

In addition to the five responses above, there were nine specific responses from the CLOs surveyed, none of which focused on results-oriented desires. While the manner in which the survey was constructed inherently has an effect on the outcome, the inescapable truth is that clients expect more from their outside counsel than just getting the right result. Although a favorable resolution of the matter for which outside counsel is hired is important to the client, it is only one of many factors that clients weigh when evaluating the services provided by outside counsel, and it should just be one of many objectives on which outside counsel focuses when delivering legal services.

As evidenced by the responses in the ACC CLO Survey, and as we will see in more detail later in this book, to deliver legal services that satisfy the wide array of needs of their clients, outside counsel must move from a results-oriented approach to a broader experience-oriented approach, focusing on the client’s experience from the day outside counsel is retained up to and beyond the completion of the matter. Effectively, each outside lawyer must change his or her mindset from that of serving as legal counsel for a particular matter to serving in a more comprehensive capacity—as a sophisticated legal concierge, if you will, who deploys all the resources at his or her disposal to address the client’s wide-ranging legal and business concerns.

While outside counsel should continue to work diligently to achieve the right result for the client, the experience-oriented approach demands that in the course of outside counsel’s efforts, the client’s broader concerns and the client’s inclusion in the endeavor are at the center of outside counsel’s focus. It is the client—not the matter—that must be foremost on the mind of outside counsel. As a legal concierge, outside counsel should make no bones about pampering the client by exploring ways to exceed expectations with legal support and services that go beyond the contemplation of the engagement letter. In the single-minded approach towards addressing all the needs of the client, the right result will be a natural byproduct, but more importantly, this approach will result in an increase in the client’s level of satisfaction, trust, confidence, and commitment to outside counsel.

Undoubtedly many lawyers will instinctively balk at the notion of serving as a legal concierge—of working to satisfy amorphous needs that leak beyond the scope of the matter for which they were retained. They will argue that such a mindset jeopardizes the work product of outside counsel, cripples the intellectual rigor that lawyers bring to each matter, and reduces outside counsel to overpaid customer service representatives.

We will see in the pages to come that such concerns are unwarranted. In fact, we will see that by taking a broader view of a lawyer’s representation of the client, the work product of outside counsel is far more likely to improve, the work will be more intellectually stimulating, and counsel’s role with the client will broaden, allowing counsel to serve as a true partner to his or her clients. In short, the service to the client is improved and outside counsel’s practice is enhanced.

Even now you may ask, “Why all the fuss about service if I manage to get the right result for the client?” Why should the client care about anything other than a favorable disposition of the very matter I was hired for? To answer these questions, let’s look at the world through the eyes of the client. Imagine that you are doing work for ABC Corporation, and your client is the company’s general counsel.

The general counsel hired you to represent ABC Corporation in connection with a suit filed by a competitor. The general counsel reports to and supports a CEO, a Board of Directors, and an executive management team, some of whom are extremely demanding, others annoyingly anxious, while still others are irascible and perpetually skeptical. All of them, however, have one thing in common: they look to the general counsel to provide timely, astute, and comprehensive legal advice and guidance for the company. The general counsel, in turn, looks to you for timely, astute, and comprehensive legal advice and guidance. So if your representation of this client is based on the narrow premise of getting the right result with little concern for the customer service aspects of the relationship, what happens when the general counsel is reviewing the company’s legal issues with his team and they arrive at the piece of litigation on which you are working for the client? With such a limited view of your obligations, it would be fair to assume that the conversation could go something like this:

Hypothetical Example 1.1 Disastrous Representation

CEO: What’s going on with the Acme Corp. litigation?

GC: We plan to file the response to the plaintiff’s amended complaint next week.

CEO: I thought we were going to get that filed earlier this week.

GC: Well, outside counsel promised to get me a draft of the response last week, but I haven’t received it yet.

CEO: When will you be getting it?

GC: I should get it today. I’ve been trying to get in touch with him, but haven’t heard back.

Irascible and skeptical sales executive: How long have you been trying to reach him?!

GC: (a bit embarrassed) Uh…it’s been a couple of days.

Irascible and skeptical sales executive: He’s dodging your calls, the SOB!! Some of our largest customers are tracking this litigation and are concerned about our ability to continue delivering service based on the claims in the complaint. This can’t continue to go unaddressed.

GC: I completely agree. His assistant said he’s wrapping up a deposition. I’m sure he’ll call today.

CEO: When is the deadline for filing?

GC: Ah, I don’t know the exact date. There were a few changes in timelines based on the new scheduling order, but I haven’t gotten an update on the status. I’m sure we still have plenty of time.

CEO: You’re sure?

GC: Well, that was one of the issues I was going to clear up with counsel.

Painfully direct executive: You have no idea, do you?

CEO: You understand how important this matter is, don’t you?

GC: Of course, I emphasized the urgency of this in my last voice mail and e-mail.

Chief financial officer: Our exposure on this is about $12.5 million, correct?

GC: That’s right.

Anxious executive: Oh, dear!

Irascible and skeptical sales executive: He’s probably billing you for dodging your calls! I bet if you check next month’s invoice, it’ll say “2.5 hours—dodging client’s calls”!! I know a couple of senior partners over there… Do you want me to reach out to them?!

GC: No…I…

Chief finanical officer: Speaking of bills, we received counsel’s invoice this month and it’s for $34,000. I know it was like pulling teeth for you to get a budget out of him, but he only budgeted $20,000 for this month. He’s been over budget every month!

GC: I know. That was one of the things I was going to talk to him about when he called.

Irascible and skeptical sales executive: I guess he didn’t budget for the time he spent dodging your calls!!

GC: No. He added a partner and two associates to the team and they did a fair amount of work without running it past me, so I was going to discuss that with him.

Painfully direct executive: He’s walking all over you.

CEO: This litigation is getting expensive! They’re writing off some of that time, right?

GC: That’s part of what I wanted to talk to him about.

Irascible and skeptical sales executive: You’re damn right they’re writing it off!! If our customer service was this bad, we’d be out of business!

CEO: So, I read your memo and it said that the plaintiff raised an unfair competition claim out of the blue. How did we not see that coming?

GC: Well, I had to twist counsel’s arm to put together a pre-matter assessment, and it was rushed and not as comprehensive as it could have been. I’m not sure they understood the intricacies of the business to grasp the substance of the claim.

Chief financial officer: (flipping through stacks of spreadsheets) They charged us $11,500 for that assessment!

CEO: Wasn’t it this firm that looked at our practices a couple of years ago on this issue? They certainly seemed to grasp the issue then.

GC: Yes, but it was a lawyer from another department in the firm. It appears that they didn’t communicate the information across practice groups.

CEO: So, what’s the danger in this new claim they raised?

GC: Well, it could result in treble damages.

Anxious executive: Oh my! Goodness gracious!!

Painfully direct executive: You’re doing a terrible job.

CEO: Can all of you excuse us? I want to speak to [general counsel] alone.

GC: (Gulp!)

Although this parade of horribles may seem like hyperbole, I assure you that there are a number of in-house counsel who have experienced a similar grilling (albeit on a smaller scale) stemming from the neglectfulness of outside counsel. When providing legal services, it is imperative that outside counsel keep the client in mind and informed throughout the representation. The hypothetical illustrates why the issues in-house counsel deems important extend beyond the resolution of the matter at hand. It also serves as a telling example of how in-house counsel can suffer a thousand cuts at the hand of an inattentive outside counsel during the course of the representation: cuts that will not be easily salved by ultimately obtaining the right result, and cuts that will lead in-house counsel to find new outside counsel when the next matter of significance arises. Most importantly, these cuts could have easily been avoided if outside counsel had viewed the representation of the client more broadly and focused on the customer service component of the job. We’ll explore exactly how outside counsel can broaden her perspective in the upcoming chapters.

Profit-Oriented Services

For almost as long as lawyers have been plying their trade, the cost of legal services has been a source of friction in the relationship between lawyers and their clients. In 1993, the American Bar Association issued a Formal Opinion in which it stated, “One major contributing factor to the discouraging public opinion of the legal profession appears to be the billing practices of some of its members.” [4] You will see that the results of surveys of in-house counsel presented in Chapter 2 will serve as strong reminders that the tension created by the way legal services are billed continues today.

One of the foremost concerns expressed by clients about legal fees is the use of billable hours as the primary means of charging for legal services. The most prominent complaint of the hourly billing model is that it gives law firms the incentive to work inefficiently, to employ the “no rock left unturned” approach, which can significantly increase the client’s legal costs, without necessarily having a corresponding increase in the chances of a favorable result. In fact, in the aforementioned Formal Opinion, the ABA went on to state that “pressure on lawyers to bill a minimum number of hours and on law firms to maintain or improve profits may have led some lawyers to engage in problematic billing practices.”[5] At the end of the day, as the argument goes, the hourly billing model is not congruent with the interests of the client.

This incongruity has resulted in an ever-increasing number of companies and business groups pushing for alternative methods of billing. The Association of Corporate Counsel (ACC) [6], for example, has launched a national campaign called the ACC Value Challenge. The stated purpose of the ACC Value Challenge is to provide networks, tools, and dialogue to bring law firms and corporate customers of law firms together to develop ways to reconnect value with the cost of legal services. New businesses have spawned in an effort to assist law firms and their clients in structuring alternative “value-based” billing models to better align the cost of legal services with the value provided to the clients.

While I support the efforts to find creative alternatives to billing for legal services, I do not subscribe to the proposition that the hourly billing model is irreparably broken. In fact, it is not the model that is really the issue; it’s the mindset behind it. Much like changing a lawyer’s thinking from providing results-oriented services to providing experience-oriented services, an outside counsel (as well as law firms themselves) must make a seismic shift in mindset about billing to properly address concerns about the cost of legal services. Yes, alternative or value-based billing could certainly be a result of this change in mindset, but so will a more equitable implementation of the hourly billing model.

To start the first rumblings of this seismic activity, it is important to acknowledge that the legal profession is a very specialized one. Every specialist should be paid appropriately for the value derived from the employment of his or her skills. A good plumber is worth his weight in gold, as is a good heart surgeon, engineer, or lawyer. One challenge that every profession faces is properly valuing the skills in question. For the most part, the market does a decent job setting the values of the various skilled professionals. For purposes of this discussion, we’ll employ the hourly billing model and we’ll assume that the hourly rate charged by a lawyer properly measures the true value of that lawyer based on his or her skill, knowledge, experience, connections, and access to resources.

Having established that its services are properly valued, a law firm can then bill a client under one of two approaches. The first is based on the value that the lawyer adds to the client’s cause, which I call billing-for-value (this resembles, but is more specific than, the value billing discussed by the Association of Corporate Counsel in its Value Challenge initiative). For example, if a lawyer’s services are deemed to be worth $300/hour, and that lawyer spends 100 hours working on a matter, then the cost of the legal services would be $30,000. Assuming that the hourly rate is an accurate representation of the lawyer’s value and that the lawyer has efficiently worked the matter, the value of the legal services provided to the client is $30,000. This works well from the client’s perspective, as the client is getting $1 of value for each $1 it spends.

Unfortunately for clients, a large number of law firms bill under the second approach—a profit-oriented billing model. Under the profit-oriented billing model, outside counsel’s billings are driven less by the value provided to clients and are more a product of growing the firm’s bottom line. Under this model, the law firm bills the client for the firm’s opportunity cost—that is, any time that a client’s matter may have taken a lawyer, paralegal, or other billing personnel away from billing another client. While the law firm will still bill the client for the value provided by the lawyer (i.e., the work the lawyer performs that is directly related to resolution of the matter), it will also bill the client for its opportunity cost—the loss of potential revenue to the firm for having personnel dedicated to that client’s matter. Going back to the example above, the $300/hour lawyer who spent 100 hours working on the matter also spent an additional 15 hours of time traveling to and from the client’s office in another city, as well as driving to and from court. That’s an additional $4,500 in legal fees for which the firm will bill the client, yet for which no additional value was provided to the client. Now, for every $1 the client pays the law firm, it gets $.87 of value. When you include the fact that the client is likely also being billed for the firm’s internal costs (sometimes at a profit to the firm) such as faxes, long distance calls, copying charges, and secretarial overtime, the value received per dollar spent goes down even further.

From a purely financial perspective, the profit-focused approach that drives opportunity-cost billing makes immense sense for the law firm. To the extent a client takes an asset of the firm away from other paying clients, why shouldn’t the firm be compensated for that asset, regardless of whether there are direct benefits to the client? From the financial perspective of the law firm, opportunity-cost billing is reasonably defensible.

But, this approach makes far less sense from the client’s perspective, where the client hires a firm for its expertise and expects to pay the firm based on the value the firm provides the client. Generally speaking, clients are willing to pay for the value received as a result of the expertise of its counsel. They are willing to pay for the hours it takes for an expert litigator to devise and revise a litigation strategy, to research, to draft briefs and motions, to prepare for hearings, and to argue the case at trial. This is why the client hired the lawyer—for his or her expertise and the value the client will derive from that expertise. The client, however, does not want to pay $300/hour for the lawyer to drive to and from meetings, for the training of first- and second-year associates, for any law firm personnel to do administrative work or for the law firm’s cost of doing business (i.e., copying, faxes, or overnight courier charges). The client hired the firm for its expertise, and wants to pay for the firm’s expertise—no more, no less.

It is with this understanding, and from this perspective, that the law firm must approach how it bills for its legal services. When operating as a legal concierge, outside counsel must have a mindset that embraces a broader view of their role in the provision of legal services, so the client’s needs, rather than obtaining a desired result, are the focus of outside counsel’s efforts. The way counsel bills the client should be approached with that very same focus on the client. Specifically, the client should be billed not in a way designed to increase outside counsel’s bottom line (however justified), but in a manner that is designed to ensure the client only pays for value – $1 of value paid for $1 of value received.

Will employing this new approach to billing result in smaller margins for your law firm? In the short run, absolutely. But, if implemented in conjunction with the other tools and techniques outlined in this book, the likelihood is that the tighter margins will be more than offset by the higher volume of business and more certainty of future business, considering that tighter bonds will likely be formed with clients. Additionally, those margins are likely to grow in the future as outside counsel takes on more substantive work for the client, gains a deeper understanding of the client, and increases its efficiencies when working with the client.

We will discuss how to bill for value under the hourly billing model in Part II, Chapter 8, as well as briefly address varying alternative billing models that can be employed to better align value with the legal services provided by outside counsel. As firms begin to embrace this billing-for-value approach and alternative billing methods, firms who stick with the old profit-oriented mindset will be billing an ever-shrinking pool of clients.

Client-Centric Services

The purpose of this chapter is to push outside counsel to think about the relationship with each client differently – to get away from a results-oriented state of mind and focus efforts on maximizing the experience of the client during the course of the representation; to discard the profit-oriented billing practices and strictly adopt the practice of billing-for-value; to evaluate outside counsel’s actions from the perspective of the client, and to view herself as a legal concierge, retained for the purpose of addressing the numerous and varying needs of the client. Only by adjusting outside counsel’s thought processes in this manner can she provide the type of service that adds immeasurable value to clients—the type of service that we’ll be discussing throughout the remainder of this book, to which we’ll refer to simply as client-centric legal services.

The essence of client-centric legal services is that outside counsel builds the practice around the needs of the client. The terms of the engagement letter, how the matter is staffed, how services are provided, how information is gathered and communicated, how the matter is billed, and each aspect of outside counsel’s practice is structured around the client’s business and satisfying the needs of that business.

Amazon is a great example of a company that has prospered by focusing on the customer experience. When contrasting the plight of big box electronic retailers with the success Amazon has enjoyed, it becomes clear that adopting and investing in the customer-first approach pays off. While it’s true that Amazon may have benefited from the fact that most of its customers were not charged sales taxes for their online purchases (although that benefit is quickly changing), by most accounts, it is the service that has been the gating factor in Amazon’s success.

Amazon has built its business around the customer’s point of view. Its inventory is extensive, yet carefully managed to ensure products are immediately available when customers want them. When Amazon makes a mistake, they’re quick to fix it, usually at no cost to the consumer. They have helpful representatives available in real time to answer questions, but they also have ample pages on their website dedicated to product reviews and FAQs that assist in guiding customers’ decisions. Because they lack physical locations, Amazon goes the extra mile to make returns easy by paying for the cost of shipping items back. I read of one instance where a customer purchased a television with a manufacturing flaw, and Amazon insisted on picking up the unit, sending the customer a replacement, and installing the new television for the customer. Yes, there’s an expense to providing this type of service, but the upside to building a business around the needs of the customer is a loyal, stable, and growing customer base that has made Amazon one of the most significant players in the retail sector.

Law firms and sole practitioners, too, must transform their businesses to provide client-centric services and to build their businesses around the needs of the clients, rather than around the expertise of the firm. Outside counsel should take an accounting of its intellectual resources and implement processes, procedures, and systems that enable clients to better benefit from those resources. Every major initiative of outside counsel should be driven by how those initiatives can add value for the client.

Under Steve Jobs, Apple, Inc., became the most valuable technology company in the world in 2011. Oddly enough, Jobs grew Apple into a money-making juggernaut not by focusing on profits, but on a maniacal commitment to building great products. The result is a loyal customer base that knows it will get a perfectly designed product that “just works,” and customers who are willing to pay top dollar for that product. With a great product, the profits will follow.

Outside counsel must adopt a similar commitment to delivering value-based, client-centric legal services that comprehensively address the needs of their clients. While restructuring to mold outside counsel’s business around clients’ businesses may require a dedication of financial and human capital, it will also lead to a foundation of stability and profitability that will serve outside counsel for years to come. The remaining pages of this book discuss in detail what outside counsel can do to build a practice dedicated to the delivery of client-centric legal services.

  1.  Also for purposes of this book, we’ll refer to the company for whom the “client” works as the institutional client.
  2. The survey results can be downloaded from http://www.acc.com/legalresources/resource.cfm?show=1294806.
  3. ACC CLO Survey, p. 43.
  4. ABA Formal Opinion 93-379
  5. ABA Formal Opinion 93-379
  6. The Association of Corporate Counsel, with over 30,000 members, is, in my view, the most influential and effective association established for in-house counsel; therefore, its initiatives should be taken seriously by all members of the legal community.
Categories: Teknoids Blogs

Be Less Awful About Your Social Media Use

The Lawyerist - Thu, 10/09/2014 - 06:12

If you are a practicing attorney, chances are high that you have had a person on the street stop and tell you that you need to leverage your social media presence. First things first: step away from anyone who uses the term “leverage” in any other context than using actual levers and force to move a thing.

Next, think about whether you want to actually be social or whether you want to be the digital equivalent of a guy who aggressively ambulance chases at his kid’s swim meet. You would not do that (hopefully) and you should not do that on social media.

Does that mean you shouldn’t have a social media presence? No. It just means that you should participate in the rich pageantry of social media like a normal human being, not simply as a client-gathering machine.

Be Social

Here is the big secret to being a successful social media person, lawyer or otherwise: be social. People are on Twitter and Facebook and Tumblr and Pinterest and Ello (okay, no one is actually on Ello) because they want to talk with friends, discuss issues of the day with like-minded people, and share pictures of their cute animals and children. They are rarely there to get yelled at about what legal needs they might theoretically have but never mentioned.

Facebook

Perhaps because everybody and their mother (literally!) is on Facebook, lawyers do not seem to be quite as awful on Facebook. We all know that Facebook is where you post cute kid pictures, create a group for all your friends training for a marathon, or invite people over for a barbecue. It often functions as the digital equivalent of a neighborhood group or the more convenient version of an email list. Neither of those are places where you would just randomly start shouting your practice areas or credentials at anyone who stopped to talk to you. Do not do that on Facebook.

Twitter

Twitter is a unique online experience. In fact, I can’t think of any real world analogue. Never in my pre-web life did I send small bits of text off into the world for anyone who might wish to read them. It would have been like mailing hundreds of postcards with the same message, at the same time, to a few people I knew and hundreds I did not. Perhaps because it is such an oddity, Twitter is the repository for a lot of bad lawyer behavior like the kind Sam wrote about.

This happens on Twitter when lawyers — or anyone else, really — don’t understand that Twitter may feel like a yelling into the void, but it really isn’t. Regardless of the superficial oddity of the format, Twitter still requires you to converse with people about things they care about other than your business. Yes, those people might be more attenuated than your somewhat-real-life Facebook friends, but they still do not need you to tell them every hour that you are a lawyer who handles bankruptcy cases.

Pinterest

Need I even warn you off of Pinterest? That is for posting recipes and paint swatches, not lawyering.

Linkedin

If you want a platform to advertise your credentials and discuss your last big win, use LinkedIn, particularly if you are job hunting. However, LinkedIn is generally the least social of all the social media, and rightly so. First, as far as talking to your colleagues, everyone knows it is not that interesting to stand around talking to other lawyers about your credentials. If that is the thing you love most, you are probably already networking in person. As far as talking to prospective clients, if they are finding you on LinkedIn, fantastic — but you are then taking that conversation offline (or at least to email) right away.

Be Ethical

Other corporations and brands use Twitter and Facebook to connect … why shouldn’t we? This is mostly because we are under ethical obligations about how we advertise.

You will not be surprised to learn that if you are going to use the Internet to promote your business interests, you fall under certain of the rules of professional conduct. The big thing you need to know about how the rules address social media is this: a consultation can now occur in any medium in which a lawyer advertises, and that presumably includes offering your services on Twitter. This means that your chat with a virtual acquaintance on Twitter or Facebook might drift into representation territory if you are not careful. Besides, even if it might be permissible under the rules of professional conduct in your state, do you really want to be the lawyer that offers a $100 discount for liking you on Facebook? Worse, do you want to be the person that begins conversations about people’s potentially sensitive legal issues in a public forum? No you do not.

Be Patient

Much like real-life friend-making, being social online is a process. You build a following on Twitter by tweeting posts that interest a wide variety of people and responding to interesting tweets posted by other people. You make and keep friends on Facebook by sharing common interests. People will follow one of your boards on Pinterest if you post pictures of delicious pies. Some or all of these things may lead to clients in the same way that real-life friendships can lead to clients. People learn to like you and trust you in a non-legal setting, paving the way to like and trust you as their lawyer. See? No mystery.

Categories: Teknoids Blogs

Maybe I Should Do What I Say…

slaw - Thu, 10/09/2014 - 06:00

I was recently asked to give a presentation on marketing and communications for a national firm. The target audience has various levels of knowledge and experience within the organization. The presentation needed to have a practical component ensuring everyone would have a something to take away. To add a bit more complication, the group did not share a practice or to a large extent a client base.

No problems right? Many of us have been given similar assignments and have been able to come up with topics that we think would appeal to the audience.

I put together what I thought was a winning presentation highlighting areas that I considered important to the audience. I ran through it and it seemed to cover the main themes. Then it hit me – is this what they want to know or am I simply telling them what I know?

I am constantly talking to people about asking questions and coming up with solutions for clients problems yet when I started putting together this presentation I went in as the know it all rather than focusing on the audience. I wasn’t living up to my own mantra which really struck me.

I spent the next couple of days contacting a few key stakeholders that would be part of the audience. These leaders were able to help me focus the presentation on their needs which in fact changed how I was presenting the information. The overall content of the presentation didn’t change drastically but the approach did, the examples did, and the highlighted areas did.

The presentation likely would have been fine without me taking this extra step but by doing so the audience received a more customized presentation that had more impact.

It is funny how we don’t always listen to our own advice.

Categories: Teknoids Blogs

How to Cite Buzz Lightyear in a Legal Brief

The Lawyerist - Thu, 10/09/2014 - 04:11

Now you know. Although I think there is a space missing between Pixar and Animation.

I suppose you might also be wondering, “In what situation might I feel compelled to cite an animated action figure as an authority in one of my briefs?” That one I can conclusively answer: none. There is no situation in which you would need to or should do this.

Related“An Open Source Bluebook May Be Just Around The Corner”

If you aren’t subscribed to Lowering the Bar, just go and remedy that right now.

Categories: Teknoids Blogs

Call for proposals: EC Action Grants for European national or transnational e-Justice projects

Legal Informatics Blog - Thu, 10/09/2014 - 02:38

A call for proposals for Action grants to support national or transnational e-Justice projects, has been issued by the European Commission.

The submission deadline is 7 January 2015.

Here are excerpts from the announcement:

[...] The European Commission has just published the new call for proposals on “Action grants to support national or transnational e-Justice projects”.

The announced indicative budget is: 2 755 000 EUR.

The deadline for this call for proposals is 07/01/2015 12:00 (noon) CET.

This call for proposals aims at contributing to achieving the objectives of the European e-Justice Strategy 2014-2018. It will support the implementation of e-Justice projects within the European e-Justice Portal and at national level, in as far as they have a European dimension. Priority will be given to projects aiming at joining or enhancing existing or on-going e-Justice portal projects, such as:

[...]

More information, please see the call for proposals.

HT @cottinstef


Filed under: Applications, Calls for proposals, Grants, Projects, Technology developments, Technology tools Tagged: Bankruptcy registers, Court decisions, e-CODEX, e-Justice Action Grants, ECLI, European Case-Law Identifier, European Commission, European e-Justice Portal, Insolvency registers, Judicial decisions, Legal directories, Legal identifiers, Legal metadata standards, Online legal directories
Categories: Teknoids Blogs

An Open Source Bluebook May Be Just Around The Corner

The Lawyerist - Wed, 10/08/2014 - 21:00

Looks like the good people at the Harvard Law Review who have been aggressively protecting the copyright of our be-loathed Bluebook against all those who would let legal citation free into the wild forgot to renew the copyright on the 10th Edition.

As a consequence, the 10th edition is in the public domain. Public Resource will thus publish an electronic version of the 10th Edition. [...]

[W]e have embarked on a joint project with Public Resource to create and publish a public domain version of The Bluebook – a project we refer to as Baby Blue. Our project will mix public domain portions of the 19th edition with newly-created material that implements the Bluebook’s system of citation in a fully usable form.

Couldn’t have happened to a nicer book.

Categories: Teknoids Blogs

The Bluebook Challenge, and a Promise to the Public Domain

slaw - Wed, 10/08/2014 - 18:28

We see a noteworthy update this week in the back-and-forth between public domain advocate Carl Malamud and representatives of The Bluebook: A Uniform System of Citation®.

As I understand it and as you might know, Mr Malamud has been working for some time to challenge both the appropriateness and the legality of the copyright protection claimed in The Bluebook. This week, on behalf of Mr Malamud and his foundation, Public.Resource.Org, Professor Christopher Sprigman of the Engelberg Center on Innovation and Policy wrote to counsel for the Harvard Law Review Association to outline its current position.

The letter is fascinating.

Not only does it outline the bold, multi-pronged, and factually and legally researched particular legal premise that underpins Mr Malamud and Public.ResourceOrg’s position, but it also announces plans to create a public domain version of The Bluebook. From the letter:

Based on what we’ve learned, we have embarked on a joint project with Public Resource to create and publish a public domain version of The Bluebook–a project we refer to as Baby Blue. Our project will mix public domain portions of the 19th edition with newly-created material that implements the Bluebook’s system of citation in a fully usable form.

The Legal Informatics Blog reports on the project and the letter, as does the LawGives blog, highlighting the interesting legal . And Public.Resource.Org has posted the letter, so we can all see its analysis and plans.

A hat tip to Robert Richards and the Legal Informatics blog for the news and links to the resources.

Categories: Teknoids Blogs

Speaking of Inappropriate Courtroom Attire: Nazi Uniforms

The Lawyerist - Wed, 10/08/2014 - 17:05

Related“Pajamas Are Not Appropriate Attire for District Court”

From the New York Post:

A white supremacist who named his oldest son Adolf Hitler strolled into a New Jersey courthouse yesterday dressed in full Nazi regalia — to try to convince a judge to allow him visitation with his toddler, Heinrich.

Solid strategy.

(h/t @FCInjustice)

Categories: Teknoids Blogs