Monday, October 20, 2014

"Shark Tank" Law and "Decomplexification" at the COLPM 2014 Futures Conference



2014 Futures ConferenceLast Friday I had the honor of being named a “Fellow” in the College of Law Practice Management at their annual meeting and  2014 Futures Conference at Suffolk University Law School in Boston.  The conference  examined the continuum legal disruption/dysfunction across law schools, law firms and pro bono/public interest law.



Change Hasn't Come Easily

Michael Mills of Neota Logic summed up the challenge of dislodging paradigms:


13 Takeaways/ Insights from the Law Futures Summit

  •    Law firms have been in the business of selling hours, not results. Clients are interested in  buying results
  •     Map your strategy to the clients values
  •      The law IS a code and it CAN be programmed.
  •    The marginal cost of delivery of legal services should be decreasing.         
  •    Innovation in law firms is met with "Massive Passive Resistance".
  •    Law firms have been in the business of selling hours, not results. Clients are interested in  buying results
  •    It is time for law firms to embrace prevention over crisis management.
  •    Tiny law small consumer driven solutions. No lawyers involved. People make decisions differently than companies.
  •   Emerging Law  will prevent the need for high cost legal solutions. Move from fire fighting to prevention. Zero defects rather than heroic solutions.
  •    In house lawyers are the primary drivers of change in the legal profession.
  •   Performance metrics bring credibility, force discipline and precision.
  •   Define need, understand process, measure effectiveness, reduce risk.
  •   Legal Services for the poor.  Old Question was how do we pick the right 20% to serve. New Question – How do we serve them all?
The Law Futures "Shark Tank" 

 The most exciting part of the Futures Conference was engaging in a "Shark Tank" style team event focused on developing a new products to solve legal problems or improve service.

  It was a wild mash up of creativity:  Flash-mob juries, crowd sourced legal solutions, flying law squads, legal help kiosks on street corners or grocery stores, geospacially enabled self help and legal referral, legal chat rooms, apps, self help diagnostic kits, freemium models, cloud based legal translations, virtual, legal emergency rooms. Think legal services with elements of Uber, Angie's List, Walmart and WebMD.

Decomplexification

Speaker Jeff Carr's call for "decomplexification" of law became a recurring theme.The conference reminded me of environmental scientist  Amory Lovins  comment about the dangers of over executing solutions or “ cutting butter with a chainsaw.”  Could our civil justice system work better if there was more focus on preventing legal engagements and finding simpler, more immediate solutions for the middle class as well as  the hoards of people waiting in line for public service lawyers? In the words of Ron Friedmann it may be time to "practice less law" by inventing new solutions.


Tuesday, October 14, 2014

Law Firms Listen Up: Link Rot and Reference Rot Present Serious Risk Management and Associate Training Issues

 "Works of Scholarship have long cited primary sources or academic works to provide sources for facts to incorporate previous scholarship, and to bolster arguments. The ideal citation connects an interested reader to what the author references, making it easy to track, down, verify and learn more from the indicated sources." from Perma: Scoping and addressing the problem of link and reference rot in legal citations.

 Link Rot and Reference Rot: Beyond Inconvenience to Malpractice
  • Link rot refers to the obvious and easily identifiable phenomenon of broken links. When the linking page is missing we see the ubiquitous 404 error. message.
  • Reference rot is a more insidious problem. In "reference rot" the link still works, but the content of the page has changed. The principle or facts cited may have materially changed and new content may even contradict the original proposition being cited.

 In legal scholarship the problem is confined to the (not insignificant) inconvenience of tracking down an unavailable source. In litigation or in transactional practice, the inability to retrieve sources of facts cited to support a client brief or transactional deal has serious legal implications. Could a firm lose a case on appeal? Could a firm be accused of malpractice? Could reputations and careers be hung on the frail branch of a 404 error?
 Until I read the "Perma" article this week I was only aware of the concept of "link rot." I had heard about the sobering statistic that 49% of sources cited by the United States Supreme Court no longer link to the original content or page.
But the concept of "reference rot" made my hair stand on end... the implications for academic scholarship are significant, but the implications for law firms could be devastating. What happens when a law firm submits a brief citing a scientific study, a government report, an Open Web data set or a press release from a company website that completely vanishes or is materially altered? Can you imagine the young associate who has to face down the withering stare of a partner as (s)he explains that a key source has disappeared or contradicts the proposition for which it was cited? 

 Last March Jonathan Zittrain, Kendra Alter and Lawrence Lessig published Perma: Scoping and addressing the problem of link and reference rot in legal citations in Harvard Law Review. Contrary to popular belief, the authors point out that it is sometimes easier to find print sources which predate the Internet than to find  "born digital" references which no longer reside at their original URL. The problems are not confined to the obvious scenarios: Companies get sold and merge - and so do their websites. Private bloggers lose interest in their obsessions. Non-profit organizations, lose funding or lose focus. A webmaster loses their job or gets promoted... Even government websites as prestigious as the White House and the Department of Justice have removed and altered web content without indicating that a document has been revised and/ or replaced with a new version. The Internet is littered with the equivalent of "space junk" and law firms -- like the Supreme Court will find themselves unable to easily locate or recover the original Open Web sources, cited in their documents.
Worst of all --a cited website could potentially include altered content which contradicts the statements for which was originally referenced. There is a risk management/malpractice elephant in the room.  No one has yet developed software to redline and track changes on the Internet, but law firms need to consider what processes or tools they can employ to mitigate the consequences of the mutable and transient ocean of web content. Products such as Icyte, capture copies of web pages which you can store in a personal account, but what is a complex organization to do?

Possible Implications: 
1. It is time to require citations to open web sources to have date and time stamps.
2. The Internet can't be continuously 'redlined" to highlight changes over time, someone needs to develop this killer app.

2. Associates need to read and validate all cited authority. They may get to the website and find that the content has changed.

3. Law firms need to develop standard protocols for preserving cited pages. If Open Web sources are used they should be preserved as a PDF-type file  and associated with the citing document.
4. Do we need a "citation exception" to copyright law? Maintaining access to a source could require the copying of a volume of source material beyond what is normally considered “fair use.” If we can't count on website owners to preserve access  to digital content or to “redline” changes we need a legal way to preserve  whole websites, treatises, documents and datasets.
5.Love ‘em or hate ‘em, Lexis, Westlaw, Wolters Kluwer and BLaw offer  a mighty bulwark against an ocean of 404 errors. Their ability to offer permanent access to multiple versions of cited sources will provide an important value add over Open Web sources.

6. Digital Object Identifiers may offer a solution to determine if  a source has been replaced.
7. Bad URLs and transient web content will increase demand for librarian sleuths and knowledge management professionals.
8. The Perma Project is targeted at creating permanent access to legal documents. Law firms face the challenge of cobbling together technologies and processes which will assure permanent access to wide universe of non-legal content which they rely on in the course of litigation and transactional analysis. Information professionals should be tasked with developing standard protocols by examining practice needs, processes and available technologies to assure preservation of cited sources.
 Learn More About Link and Reference Rot

On October 24th Georgetown Law Library is hosting a program:404/File Not Found: Link Rot, Legal Citation and Projects to Preserve Precedent. Speakers include  Jonathan Zittrain one of the authors of the Perma article, Roger Skalbeck of Georgetown, Ed Walters of Fastcase and Mary Alice Baisch, Superintendent of Documents of the USGPO.  Unfortunately I will travelling and not be able to attend this program.   Roger Skalbeck   has agreed to author a guest blogpost on this very important Conference.
__________________________________________________________________________
A Researcher Finds the Following notice for the www.ssnat.com website which was cited in a Supreme Court Decision:

404 Error - File Not Found

Aren't you glad you didn't cite to this webpage in the Supreme Court Reporter at Brown v. Entertainment Merchants Association, 131 S.Ct. 2729, 2749 n.14 (2011). If you had, like Justice Alito did, the original content would long since have disappeared and someone else might have come along and purchased the domain in order to make a comment about the transience of linked information in the internet age.

And if you quoted this in the NY Times, will you do a correction for the now changed text?
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Monday, September 8, 2014

Do Stand Up Comedians Take Knowledge Management More Seriously Than the Average Lawyer? "Can We Talk?"

Until last week, I never thought of Joan Rivers as a brilliant taxonomist. I was a fan  of Rivers back in her "can we talk" days, but I hadn't really followed the recent "red carpet" phase of her career.  In the deluge of tributes and remembrances since her passing, I did a "double take" when one of her friends described her amazing catalog of jokes.  She was reported to have written, collected and cataloged over a million jokes during the course of her career. Apparently each joke was assigned descriptors and filed in in a massive catalog which resembled a traditional library card catalog. So I did some research. Not only had she developed a personal knowledge management system, but she did it the old fashioned way... no keyboards, no network, no database. A lot of sweat equity invested to stay "at the top of her snark."

A Tumblr site from Austin Kleon pointed me to this clip from a documentary called Joan Rivers: A Piece of Work.




GQ even posted a selection of her typed cards.


Bob Hope's Joke Vault  ( LOC exhibit c- A Leibovitz)

 
Do comedians take KM more seriously than the average attorney?

Apparently Milton Berle and George Carlin had also developed sophisticated systems for organizing and retrieving their jokes. Bob Hope had what was called a "joke vault."

Lawyers like stand up comics live by their wits and have to be prepared with their "best material" in every context. The average 21st Century lawyer has the advantage of access to sophisticated technology, yet they remain largely adverse to contributing even the most basic descriptive  attributes (e.g. a meaningful  title beyond the word "memo" or " contract")  for documents they may have invested weeks in drafting. In large firms, lawyers have knowledge professionals ready and willing to help them select, vet, normalize and code documents as exemplars for future use. Lawyers still don't "get" the dramatic impact that  even small amounts of curation effort can have on improving access to "their best material." So why is it that stand up comics appear to have a penchant for knowledge management that evades many lawyers?









 

Tuesday, September 2, 2014

In-house Counsel, Outside Counsel, Legal Rebel: Insights from Bloomberg BNA Legal's New President David Perla


David Perla at the BBNA "Wall of Firsts" c.BBNA
On July 14th, Bloomberg announced the appointment of David Perla as the new President  of Bloomberg BNA Legal. Perla was a fascinating choice given his path from corporate lawyer (Katten Muchin) to in-house counsel (Monster) to outsourcing pioneer  (Founder and co-CEO of Pangea3) to CEO (Matterhorn Transactions). ABA Magazine named Perla one of the year’s “Legal Rebels” in 2011 and American Lawyer named him one of the top 50 legal innovators of the past 50 years.  He has sat on many “sides of the table” … in the chair as the  provider, the consumer and the disruptor  of legal services. This will give him a unique perspective on how Bloomberg BNA can pursue its' intent to rewrite the rules  of engagement between law firms and legal information providers. I might as well brag that I got the first post-hire interview with Perla and a shot of him standing at the "Bloomberg BNA Wall of Firsts" at their headquarters in Crystal City, Virginia.



Bloomberg Disrupted Financial Reporting - Perla Disrupted Legal Practice

I examined the evolution of the Bloomberg empire  in an earlier post.  Bloomberg was created when Michael Bloomberg looked at the dominant financial data service Dow Jones Telerate and wondered why it couldn’t do more than spit out stock and bond prices. From  the simple insight of adding math functions to the  data reporting,  Bloomberg has built an unparalleled media empire and Telerate has been swept into the dustbin of forgotten products. Perla likewise looked at the legal marketplace and recognized that in-house counsel didn’t like to pay “Wall Street” rates for repetitive legal processes and set out to prove that certain  functions could be done both reliably and more cheaply by lawyers in India.

He developed one of the most successful legal process outsourcing companies, Pangea3, which was ironically sold to Thomson Reuters, one of Bloomberg BNA’s main competitors.

Both men were inspired by insights into business process improvement. Legal process improvement is on the radar of managing partners if not yet fully impacting the practice of law. Law firm leaders are hungry for new solutions. Can Perla and Bloomberg BNA deliver? Should Thomson Reuters, LexisNexis and Wolters Kluwer be worried at this high voltage disruptive pairing?

I met with Perla in one of the signature Bloomberg BNA glass conference rooms. Bloomberg has a famously “open plan” work environment which has transformed the BNA offices following their acquisition.  Perla explained that his first priority was getting to know the Bloomberg BNA teams. He recognizes that Bloomberg BNA is a unique organization which was born of two distinctive cultures and  legacies of professional excellence. Bloomberg brought strength in technology and business analytics and BNA staff brings premier legal analysis.   He is confident that the combination of these two legacies will enable Bloomberg BNA to solve  emerging challenges facing the legal profession better than their competitors.

The Interview

JOG: Having been in the role of both inside and outside counsel, is there a difference in their information needs? 

Perla: Outside counsel are expected by their clients to be masters of their areas of expertise.  This is the traditional role of outside counsel. But today, outside counsel need to be able to obtain, understand and analyze strategic business information, both because their clients want this and because the lawyers need this mastery in order to both remain competitive and/or differentiate themselves.  So mastery of a particular legal area is no longer enough – understanding of, and some mastery of, business information is now critical.

JOG: .What is your  vision for BLaw? 

Perla : My vision is for Bloomberg Law, along with the full suite of Bloomberg BNA Legal offerings, to be the go-to information solutions provider for the legal industry, and to be the first source lawyers turn to in looking for solutions to information driven problems.”  Bloomberg BNA and Bloomberg are widely regarded as experts in matching technology, information and products with the needs of their clients.  So Bloomberg Law will leverage that expertise in matching technology, information and products to solve the various pain points of its legal industry clients.  

JOG: Do you think that Bloomberg BNA has a unique opportunity for growth as the result of the changes brought on by “The Great Recession?” 

Perla: Law firms today understand that they are practicing in a new environment, and that the practice of law and business of law has changed.  Bloomberg BNA and Bloomberg Law, in serving those law firms, provides tools for both precedent retrieval and analysis AND market data precedent analysis.  As a result of this combined expertise, we are uniquely positioned to address law firms’ legal and market data needs and demands. 

JOG:  Based on your experience in-house, do you plan to expand marketing of BLAW to in-house counsel? 

Perla: This is an ongoing initiative, with a continued and growing emphasis.  I spent nearly five years at a Big Law and another five-plus years in-house, and have spent the last decade serving in-house counsel and the law firms that represent them.  So in-house counsel is a unique area of expertise for me.  In-house counsel have specific legal needs, but also have extensive market information needs that are different than the needs of their outside counsel.  Because of the depth of business information that Bloomberg BNA and Bloomberg Law are able to offer our clients, we as a company are uniquely situated to solve and address those market information problems and needs. 

JOG: How much will your experience/insights  at Pangea3  impact your vision for BLAW Products and services?  

Perla:  As I mentioned, I spent a decade between Big Law and in-house, and then another decade serving those groups.  As a result, I bring a unique insight into how both sets of clients operate, and into their needs and goals.  That insight influences both my vision for our products and solutions, and the way in which we offer those products and solutions to our clients. 

Perla’s First 

Since I met Perla in front of the Bloomberg BNA ”wall of firsts” I began wondering what Perla’s “first” contribution might be.  In preparing for the interview it became obvious that Perla comes to Bloomberg BNA with a  significant social media footprint. Here is my “first” observation about Perla.  He  is the first major legal publishing executive  who is a “social media native.”  His hefty digital  “footprint”  is proof that he is  "engaged with" rather than an "observer of" new media. This is an important and distinctive asset in a chief executive. This is likely to inform his vision of Bloomberg BNA’s place in the evolving digital world.  In one of his previous video interviews he talked about the importance of “clear intention” in leading Pangea3.  He is fond of repeating a wonderful adage that one should “never confuse a clear vision with a straight line.” So I think it is fair to expect that both Perla as a leader, and Bloomberg BNA as a company  are likely to explore some uncharted territory at the frontiers of legal innovation.


Related Posts:

Welcome to Bloomberg Law, No Deals, No Discounts, No Apology.
Bloomberg Law Takes on the Titans.

Friday, August 29, 2014

Pacer Disrupting Big Data One Byte at aTime

Big Data Hits a Wall c. J O'Grady
The disruption of access to court dockets through Pacer has implications beyond the retrieval of dockets and documents.

The  Administrative Office of the US Courts announced on August 11th that archival dockets from 5 federal courts would no longer be available through Pacer. I contacted the Office of the US Courts and they explained that the problem was in fact the courts themselves. The courts including the Second Circuit had failed to upgrade their platforms and the older data was residing on a platform that was no longer compatible with Pacer.  The data which was no longer available from Pacer could be obtained directly from the courts.

The Big Data  Hits A Wall. The most shocking thing to me was the fact that a significant archive of federal court data was suddenly less available to the public for historical "big data" trend analysis.  Lexis, Westlaw and Blaw all have tools for litigation analysis and trending which can be used to create charts and analytics showing litigation trends by jurisdiction, judge, cause of action, law firm. Big data is an increasingly valuable commodity. In law firms it is a valuable source of competitive intelligence. The federal government has recently recognized the value of "big data" in public administration. In this case the Pacer data should be useful for the analysis and judicial administration and workload. Why are the courts failing to recognize the importance of maintaining robust archives of litigation data?

 Pacer has just handed legal publishers  a marketing strategy.  Commercial online services will have the complete archive which Pacer can no longer offer. In other words - you get what you pay for.  I contacted representatives from Lexis, Westlaw and BloombergBNA. Each  vendor had previously created their own archives of Pacer data so they will be able to continue to make all the data available in one place. The one exception they cited was older cases which  are currently active-- but this appears to be a small number of cases.
 
The more law firms focus more on efficiency, the less attractive the cobbling together research results from “free resources” becomes. Yes free research resources have a place in legal research but premium resources deliver robust and reliable access.The removal of Pacer data is a powerful illustration of the value of commercial publishers in maintaining access to data when public authorities fail to do so. Not only will the major vendors be able to provide access to the dockets and the documents, but they will have complete data archives for analysis of litigation trends. These comprehensive archives allow custom reports combining  data elements extracted from dockets: including judges rulings, company litigation, law firm representation, causes of action and jurisdiction.