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.
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. 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.
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 ), 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: 
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?!
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.
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.
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.”  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.” 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) , 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.
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.
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.
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.
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.
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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.
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.
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.
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.
As a Bencher of the Law Society of BC, I voted against the accreditation of TWU Law on two occasions—first in the original Benchers’ debate on the subject in April, and then again in September following a Special General Meeting of BC’s lawyers. Both votes were defeated.
Between the two votes, I penned a Slaw column entitled TWU Law and the New Segregation. It was lauded in some corners for capturing the evolved public interest in equal treatment of LGBTQ people, and panned in others for being long on emotion and short on analytical rigor. The latter view noted that my arguments gave little regard to the Supreme Court of Canada’s 2001 decision in Trinity Western University v. British Columbia College of Teachers, and the rule of law in general.
The same view underpinned much of the Benchers’ reluctant justification for granting TWU’s accreditation in April. A large majority of the Benchers then held their noses—while variously describing TWU’s impugned Community Covenant as “abhorrent”, “repugnant” or “objectionable”—and voted according to the rule of law as they perceived it. Here, I set out a final time to respectfully argue that their reasoning was sound, but their conclusion was wrong.
My argument is nothing new, but is based on the reality that so much around us is new. Simply put, it posits that the rule of law is dynamic and must respond to changing circumstances within society. This is part and parcel to the established “living tree doctrine” of constitutional interpretation and the principle of constitutional supremacy. It takes into consideration the principle of stare decisis and the accompanying notion that stable and predictable application of law promotes the rule of law. Objectives of consistency, certainty and predictability are all foundational to the rule of law, but its relevance is sustained by adapting to transformative changes in the everyday experience of citizens. Public confidence depends on it.
In the recent SCC decision in Canada v Bedford, Chief Justice McLachlin outlined two basic conditions that each permit a lower court to depart from precedent set by a higher court: (1) a new legal issue is raised by the parties or by significant developments in the law; and (2) new circumstances or evidence fundamentally shift the parameters of the debate. The threshold is set high to respect stare decisis, but not so high as to prevent the rule of law from operating in symbiosis with other values like constitutionalism, democracy, fairness and human dignity.
Since 2001, there has been a sea change of circumstances in the debate over TWU’s Community Covenant. The change is known by simply looking around. Public acceptance of LGBTQ relationships and open identities has taken a quantum leap over the past 13 years, and is now commonplace. A lesbian woman was recently elected Premier of Ontario. Pride parades attract thousands of supporters of all ages and backgrounds. City halls fly rainbow flags without a whiff of dissent. In the uber-macho realm of professional sports, athletes are increasingly comfortable with coming out during their playing careers. Yes, entrenched pockets of bigotry and hate persist to threaten and marginalize the advancement of LGBTQ people, but basic acceptance is the new norm.
The clincher is the fact that same-sex marriage was legalized in BC and Ontario in 2003, and Canada-wide by 2005. Within this particular debate, there can be no more significant development in the law. It is so significant as to be politically untouchable; even a majority Conservative government will not re-open the issue for fear of being punished at the polls. The new reality is that an increasing number of Canadians believe that public institutions have no business placing dogmatic restrictions (or lending approval to such restrictions) on an LGBTQ person’s ability to express their fundamental identity or formalize their loving relationship in equal ways to others. To the extent that this is a generational phenomenon fueled by familiarity and integration, popular support for equal treatment of LGBTQ people and their relationships is unlikely to regress.
And given the new reality, the legal issue for consideration now and in the future by Canadian law societies and courts is not whether TWU Law graduates would become good lawyers and judges who do not discriminate against LGBTQ people—few opponents of accreditation doubt that the vast majority of them would become good lawyers and judges despite some discriminatory beliefs. The new legal issue for consideration is whether the discriminatory conduct of TWU Law is an acceptable infringement of the equality rights of LGBTQ people, and consistent with an evolved public interest in the administration of justice. In my view, it is neither.
This is an issue of our time. And this month, BC lawyers vote in a referendum on TWU Law’s accreditation. They have an opportunity to keep legal education and the administration of justice on the path of inclusion and equality—a path that reflects societal aspirations in 2014 and enhances the legitimacy and acceptability of the rule of law. They will show us the way.
The “cool kids” have made it popular to discriminate against adverbs. Stephen King, captain of the I-Hate-Adverbs Club, even said “The adverb is not your friend.” This problem goes all the way to the top, apparently:
[L]awyers who stuff so-call intensifier adverbs in their legal briefs—words such as “very,” “obviously,” “clearly,” “absolutely” and “really”—are more likely to lose an appeal in court than attorneys who avoid those “weasel words” …
Lawyers, aided by legislative champions of the downtrodden in many states and the United States Congress, have come to the rescue.
Adverbs in recent years have taken on an increasingly important—and often contentious—role in courthouses. Their influence has spread with the help of lawmakers churning out new laws packed with them.
A legal anthropology professor (which is a thing?) in Kentucky even wrote that “law generally, and criminal law especially, emerges through its adverbs.” Bryan Garner has pretty much settled the issue, of course. According to the Washington Post, Garner points out that “legislators and adverbs need one another.” Then he points out that King doesn’t know anything:
No legislative drafter ever says: Did I pull my readers in? That’s something Stephen King has to ask.
Featured image: “Opening a can of Whoop Ass” from Shutterstock.
Why is it so hard for the legal profession to act on what we know about the benefits of working in an environment that reflects the diversity of those we provide services to?
As a member of numerous volunteer committees, both inside and outside the legal profession, I’m often struck by the extent to which diversity challenges pervade most every sector. In the social and community services sector where I work and volunteer, I often find myself involved in committees made up largely of women and often failing to reflect the diversity of the service users in that sector. In legal circles, it is far more likely that I’ll find myself among a majority of privileged, often older white men.
These issues have been circling round in my head, and so it was with great interest that I noted Osgoode Dean Lorne Sossin’s recent tweet announcing publication of a paper he wrote with Sabrina Lyon, Data and Diversity In the Canadian Justice Community. Sossin and Lyon, in the paper, describe the ongoing failure of the legal profession to reflect the faces of those it serves as “a mischief that cannot be ignored.” Ultimately, they recommend addressing the gap through collection and dissemination of quality data that forms the evidentiary base for development of “responsive and effective policies.”
I agree that data collection is a necessary starting point and that once gathered, can inform policy development. Without good data, as Sossin and Lyon warn, policies are mostly developed in the dark and may not be effective.
But even with a foundation of good data, what’s the point of having “responsive and effective policies” if no one acts on them, consistently, persistently and especially when it’s inconvenient to do so?
In a recent post on Precedent, Daniel Fish asks: Why is diversity so hard to achieve? One answer is that many lawyers hold the belief that they are, by virtue of their profession, “objective and fair….They falsely think they are immune from holding prejudicial views. Too many lawyers, as a result, unknowingly favour people of the same gender and cultural background.”
This results in what is known as “affinity bias.” Affinity bias is described in a 2003 Harvard Business Review article, How (Un)ethical Are You? by Mahzarin R. Banaji, Max H. Bazerman and Dolly Chugh, as an “in-group favoritism” that each of us is unconsciously susceptible to engage in. We tend to favour those who are most like us and in doing so, disfavour those who are not. They note that:
…when those in the majority or those in power allocate scarce resources (such as jobs, promotions, and mortgages) to people just like them, they effectively discriminate against those who are different from them. Such “in-group favoritism” amounts to giving extra credit for group membership. Yet while discriminating against those who are different is considered unethical, helping people close to us is often viewed favorably.
In-group favoritism is tenacious when membership confers clear advantages, as it does, for instance, among whites and other dominant social groups. (It may be weaker or absent among people whose group membership offers little societal advantage.) Thus for a wide array of managerial tasks—from hiring, firing, and promoting to contracting services and forming partnerships—qualified minority candidates are subtly and unconsciously discriminated against, sometimes simply because they are in the minority: There are not enough of them to counter the propensity for in-group favoritism in the majority.
In Reducing Impact of Affinity Bias in the Legal Profession, Stella M. Tsai notes the importance of relationship to achieving success in the legal profession. She writes:
…relationships have a profound effect on the opportunities the attorney receives. Diverse attorneys can be viewed, often unconsciously and unintentionally, as outsiders due to their difference— which makes it difficult for them to be informally included in work assignments, social events, coffee breaks, casual conversations and other situations that are essential to success.
She goes on to note that:
The research compiled by the bar associations shows that diverse attorneys report having limited access to formal and informal networking opportunities; internal information networks, i.e., the proverbial grapevine; meaningful work assignments; training; mentoring and sponsors; and substantive contacts with clients. Also, they will receive inadequate feedback and “soft” evaluations (doing “fine” as opposed to meaningful review and suggestions for actions that will lead to advancement) and report that others feel uncomfortable around them.
Is it enough to be aware of this bias in order to combat its effects? Banaji, et al concluded that affinity bias cannot be combatted merely by “simple conviction nor sincere attention” but that those in authority must be ever vigilant and actively collect data, shape their environments and broaden their decision making. Further, those in leadership must take every opportunity to implement policies of affirmative action.
This advice is consistent with the solutions proposed by Sossin and Lyon but goes a step further into concrete action. Tsai sets out a range of other steps for law firms to take, based on the body of research in the U.S. Her suggestions include:
Each of these actions, on its own, won’t likely suffice, and doubtless even more action is required. Whether hiring associates, selecting volunteers for committees or inviting speakers to participate in conferences and panel presentations, what is clear is that good intentions and rhetoric alone won’t help to close the gaps.
Action is required and in order to be effective, it must initiate with those in positions of authority or leadership. Unless those at the top of our profession “walk the walk” in collecting and analyzing data, developing and implementing policies and ensuring that concrete action is taken on an ongoing basis, we’re unlikely to see any significant progress toward that goal when we look around our boardrooms, classrooms and conference halls.
The goal of Cyber Security Awareness Month is to remind us to guard against cyber threats. The Canadian Government getcybersafe website has resources to describe the risks and suggest ways to protect against things such as cyberbullying, scams and fraud. It covers both personal and corporate risks for smartphones, social networking, online banking, online shopping, and more. It also explains the differences between common threats such as pharming, phishing, and spoofing.
If you’ve ever wondered how many people actually fall for what appear to be blatant phishing attempts, take a look at this infographic that shows that even a very small percentage of phishing success translates into significant actual numbers.
Printers are pretty basic technology, after all. Nobody is really innovating in the “printer space” (if that’s a thing).
But printers are also critical technology for law practice. Whether you are a litigator or a transactional lawyer, and regardless whether you have a paperless office, you probably print out a fair number of important documents.
Imagine this scenario: you are going to try a case and you need to have four copies of every exhibit (one for the judge, one for the jury, one for opposing counsel, and one for you). Many of those exhibits are pretty big PDFs, too. Are you really going to print out hundreds or thousands of pages of exhibits, in quadruplicate, on a cheapo laser printer?
I tried that once and I don’t recommend it. I was up until 4 a.m. the night before trial, just printing things. My $120 Lexmark laser printer was struggling to keep up with the volume, and some of the larger PDF documents overwhelmed its onboard memory, slowing printing to a few pages a minute. I don’t know what I was thinking, and as soon as that trial ended I went out and spent about $400 on a workgroup-class laser printer.
I got a good printer, but I still found myself missing some features. Based on what worked for me and what didn’t, and some of the reviews we have done, here is what I think you should look for in a printer for your law practice:
The HP LaserJet Pro 400 M401DW that Randall reviewed last year ticks all the boxes. It’s what I would buy if I needed a new printer right now. The Brother HL5470DWT is a cheaper option without the fancy Internet-printing options but with an extra paper tray for letterhead or envelopes. I’ve met lots of happy Brother customers; I’ve just always been impressed with the durability of HP printers. Both should get the job done and last you a very long time.
Printers aren’t as exciting as smartphones and tablets, but they are far more important to a law practice. You will never be sorry if you spend money on a good one.
Each Wednesday we tell you which three English-language cases and which French-language case have been the most viewed* on CanLII and we give you a small sense of what the cases are about.
For this last week:
1. Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59
 The issue in this case is whether court hearing fees imposed by the Province of British Columbia that deny some people access to the courts are constitutional. The trial judge, upheld on appeal, held that the legislation imposing the fees was unconstitutional. I agree.
 In my view, the fees at issue here violate s. 96 of the Constitution Act, 1867. Although the province can establish hearing fees under its power to administer justice under s. 92(14) of the Constitution Act, 1867, the exercise of that power must also comply with s. 96 of the Constitution Act, 1867, which constitutionally protects the core jurisdiction of the superior courts. For the reasons discussed below, the fees impermissibly infringe on that jurisdiction by, in effect, denying some people access to the courts.
2. Stewart v. Hosack, 2014 ONSC 5693
 A lawyer or law firm cannot be disqualified unless there is a risk of prejudice to the client, although in some cases the client benefits from a presumption of risk of prejudice. A fair conflicts rule must balance the conflicting values of preserving the high repute of the legal profession and the administration of justice against the values of allowing the client’s choice of counsel and permitting reasonable mobility in the legal profession. See: Hames v. Greenberg, 2013 ONSC 4410 (CanLII), 230 A.C.W.S. (3d) 588.
 A lawyer cannot act in a matter where he may use confidential information obtained from a former or current client to the detriment of that client. A two-part test is applied to determine whether the new matter will place the lawyer in a conflict of interest: (1) Did the lawyer receive confidential information attributable to a solicitor and client relationship relevant to the matter at hand? (2) Is there a risk that it will be used to the prejudice of that client? If the lawyer’s new retainer is sufficiently related to the matters on which he or she worked for the former client, a rebuttable presumption arises that the lawyer possesses confidential information that raises a risk of prejudice. See: Canadian National Railway Co. v. McKercher LLP.
3. R. v. Conception, 2014 SCC 60
 When an accused person has been found unfit to stand trial and the other statutory requirements have been met, the court may make a disposition order directing that treatment be carried out for a specified period not exceeding 60 days and on such conditions as the judge considers appropriate for the purpose of making the accused fit to stand trial. The disposition order may not be made, however, without the consent of either the person in charge of the hospital where the accused is to be treated or the person to whom responsibility for the treatment of the accused has been assigned. (For ease of reference, we will refer to this as the hospital’s consent.)
 The main issue on appeal is whether, as the appellant contends, the court may make a disposition order directing that treatment begin immediately even though the hospital or treating physician does not consent to that disposition. In our view, the answer to this question is “no” in all but the rare case in which a delay in treatment would breach the accused’s rights under the Canadian Charter of Rights and Freedoms, and an order for immediate treatment is an appropriate and just remedy for that breach.
The most-consulted French-language decision was 159191 Canada inc. (Discount Location d’autos et camions) c. Waddell, 2013 QCCQ 3560
 Comme mentionné précédemment, la défense s’articule autour du caractère illisible de la clause dont veut se servir la demanderesse. Cette notion est véhiculée par l’article 1436 du Code civil du Québec 
« 1436. Dans un contrat de consommation ou d’adhésion, la clause illisible ou incompréhensible pour une personne raisonnable est nulle si le consommateur ou la partie qui y adhère en souffre préjudice, à moins que l’autre partie ne prouve que des explications adéquates sur la nature et l’étendue de la clause ont été données au consommateur ou à l’adhérent. »
 Comme nous le verrons, les principes applicables en l’espèce débordent le cadre de ce seul article.
* As of January 2014 we measure the total amount of time spent on the pages rather than simply the number of hits; as well, a case once mentioned won’t appear again for three months.
Finally, a tablet that can replace a laptop. Much as lawyers love their iPads – and they are great for surfing, e-mailing and presenting evidence in court – they are not true laptop replacements when it comes to business productivity. This is the next true war – consumer tablets have reached a saturation point and consumers are not replacing them as fast as manufacturers had hoped.
Always in search of profits, the major manufacturers have finally come to recognize that the enterprise table market is hot hot hot for any company that can get the technology and the security right.
While we attended the ABA Annual Meeting in Boston, we had a chance to visit a Microsoft store and test drive the Microsoft Surface Pro 3. To put it mildly, we were both impressed and left the store discussing when we would buy them and with what configurations.
The only thing that irritates us is that the keyboard is “optional” (not if you want to work) and carries an additional charge of $129.99. That aside, we loved it – more information from Microsoft may be found here.
Business-grade tablets, those that can truly replace a laptop, are quickly becoming the next big thing in solo and small firm technology as well as in the general marketplace. We are being bombarded with questions on this topic at our CLEs. Everyone is looking for a laptop replacement.
Happily, you can now leave your 4.5 pound laptop and clunky travel bag at home when you need to hit the road.
The Microsoft Surface Pro 3 is truly a laptop replacement and has received some glowing reviews, which certainly could not be said of the preceding two generations of the Surface. The tablet boasts a 12” display with a resolution of 2160×1440. The 4th generation Intel Core processor (i3, i5, i7) is the same processor that you will find in your laptop computer system, and provides this tablet with more than enough horsepower to run your business applications smoothly. The tablet comes preloaded with Microsoft Windows 8.1 Pro, which means that you can load and run any of your necessary business software –allowing users to get the same functionality out of this device as they can out of their laptop – at just a fraction of the weight!
The device can be configured with 4 or 8GB of memory and anywhere from 64 to 512GB of storage space. There’s a USB 3.0 port (unlike the iPad) and you can increase storage space by utilizing the microSD card capability. For network connectivity, this device comes with a wireless adapter supporting 802.11a/b/g/n and Bluetooth 4.0. It has both a front and rear facing camera, as well as a stereo microphone perfect for video-conferencing. We would recommend that you give serious consideration to the 8GB memory, 256GB storage, i7 unit.
The Microsoft Surface Pro 3 tablet can be purchased online from Microsoft’s webstore (www.microsoft.com) or from your local electronics retailer starting at $799.
The authors are the President and Vice President of Sensei Enterprises, Inc., a legal technology, information security and digital forensics firm based in Fairfax, VA.
Grant summarizes the controversy in this way:
[...] The term “Legal Hackers” is currently pending trademark registration with the USPTO. It was Published for Opposition on September 16, which means that there is a 30-day window from that date for anyone who believes they will be harmed by the trademark registration to formally oppose the mark. Anyone who is considering opposing the mark can also file a 30-day Extension of Time to Oppose at no charge which would extend the deadline for opposition (for the filer) until November 15.
The registrant of the “Legal Hackers” trademark is Legal Hackers LLC [...]
That said, I am opposed to the idea that the term “Legal Hackers” should be granted federal trademark protection. In a nutshell, I believe that the “Legal Hacker” moniker should remain in the public domain and not be subject to the blessing, or withholding, of a single person or entity. To me, the notion of “Legal Hackers” as a proprietary brand runs counter to the whole ethos of the movement and threatens to stall it, or fragment it, or both. [...]
By way of background, the term “legal hacker” is often used by participants in the legal hacking movement, in which software developers and legal professionals/academics cooperate to develop new technologies and law reform proposals.
From my perspective as someone who studies this movement, this attempt to trademark one of the key terms used in the movement seems particularly interesting, for two reasons.
First, the movement, which began around 2011 and now has participants in several countries, has both non-market-oriented and market-oriented dimensions, including professional (for-profit), professional (non-profit), governmental, civil-society-oriented, social, and cultural aspects.
Second, the controversy is interesting because one of the themes of the movement has been a call to remove property rights in law-related information in order to foster improved public access to legal information as well as innovation in legal technology and legal services delivery.
Paul Maharg of Australian National University has posted slides of a presentation entitled Convergence and fragmentation: Research, informatics and legal education, being given this week at Melbourne Law School.
Here is the abstract:
Fragmentation and convergence are two discoursal lenses that have been used to describe changes that we perceive in the domains of legal services, the legal profession, regulation and legal education. While they may appear orthogonal, the relationships between them are intimate, sophisticated and constantly shifting.
In this paper I shall argue that law schools need to engage with both processes. Fragmentation of knowledge offers law schools significant opportunities to reshape fundamentally what they do. Convergence opens up considerable dangers for law schools if the process is misunderstood or elided. To exemplify this argument and to begin to examine its strength as a tool for analysis I shall focus on one area of convergence, namely the three fields of legal information literacies, legal informatics and legal writing are sited. All three need to converge their interests if they are to gain status in the law school hierarchy of knowledge. I shall explore how studies in New Media on media convergence give us models for such convergence, and can show us the effects that the process may bring about.
The goal of creating content shouldn’t be to come up with a bunch of great keywords; it should be to come up with great content.
If you want to know what search-engine optimization is all about, spend a few minutes with this article from HubSpot.
Featured image: “A red rose bloom by gift” from Shutterstock.
A computer-science professor at Dartmouth College is building a smartphone application that can detect users’ levels of happiness, stress, and loneliness, he says, with the hope of helping students monitor their mental health.
The app, called StudentLife, draws on sensor data from smartphones to “infer human behaviors,” says the professor, Andrew Campbell. It was inspired partly by the mental-health struggles that Mr. Campbell’s brother experienced while in college. The professor also wants to test his hypothesis, based on classroom observations, that students’ fluctuating stress levels correspond to their behaviors.
“I feel as if there’s a divide between faculty and students. We don’t want to delve too deeply in their lives, but we want to be as helpful as we can,” Mr. Campbell says. “Is there anything that could give us an objective view?”
To find out, he ran a 10-week experiment in the spring of 2013 that compared behavioral data gathered by the app with self-reported assessments of mental health by 48 student subjects. Doctors and psychologists at Dartmouth and the University of Texas at Austin, who helped design the study, recommended which health surveys to use.
Using the GPS, motion-sensor, and microphone features built into smartphones, as well as machine-learning algorithms that infer behaviors, StudentLife recorded participants’ movement, sleep, and number of face-to-face conversations each day. Users uploaded their class assignments to a shared Google calendar so Mr. Campbell could track their workloads.
“I was really interested, in days they had lots of deadlines, what were their stress levels?” he says.
The results, according to Mr. Campbell, showed that the behavioral data correlated significantly with participants’ mental health and academic performance. Findings suggested, for example, that students who sleep more or have more conversations are less likely to be depressed, and that students who have higher grade-point averages tend to be less physically active.
Victor Schwartz, medical director of the Jed Foundation, which promotes emotional well-being among college students, has reservations about the app’s diagnostic capabilities. “It’s not really telling you if you’re depressed. It measures activities that he’s trying to associate … with being more likely you’re depressed,” Dr. Schwartz says. “I think there could be really very valuable targeted utilities for this kind of thing, but I think we need to be aware that there could be pitfalls.”
Objective behavioral feedback may motivate some users, Dr. Schwartz believes, but it could also make others feel guilty. “For every positive way of this playing out, I could easily imagine a negative scenario where they’re getting pressure and they’re getting pissed off.”
Mr. Campbell is concerned about the security of data gathered by StudentLife. He thinks it should be up to students to decide with whom they share their data. “I err on the side of being incredibly conservative when it comes to private data,” he says. “You own this data, but if you want to share it with your counselor, that’s completely up to you.”
Using an app like StudentLife as part of a treatment plan designed by a mental-health professional could be beneficial, Dr. Schwartz acknowledges. One of the first signs of bipolar disorder, for instance, is irregular sleep patterns, and so a counselor who notices changes in a patient’s sleep data could make a diagnosis more quickly, he says.
“In those well-thought-out circumstances, it could be extremely helpful,” Dr. Schwartz says. “I could see where this would be a really nifty tool.”
Mr. Campbell’s write-up of the experiment was nominated as a “best paper” last month at the ACM International Joint Conference on Pervasive and Ubiquitous Computing. A second study, planned for the spring, will provide feedback to participants during the course of the experiment.
The finding Mr. Campbell found most surprising? “No correlation between grades and attendance in class,” he says.