Now in Legal Rebels:
Posted Dec 25, 2006 07:58 am CST
Among the top 10 rules of technology, No. 1 is probably this: You’ll hear a lot of talk before you see what all the talk is about. And maybe that’s why many of you have been holding off on new tech purchases in the last year.
Oh, it’s not like lawyers have been riding the bench in the digital technology game. According to the 2006 ABA Legal Technology Survey Report, attorneys are increasingly using laptops, personal digital assistants and remote access technology to work while out of the office. But overall, the survey also revealed, lawyers have been relatively conservative in their technology buying in the past year, with technology budgets staying flat.
It seems that, since over the past few years so much money has been invested in new legal technology, now is a time of retrenchment and figuring out how to make all the new stuff work for a firm.
But newer stuff is on the way. Microsoft’s long-hyped, extensively delayed operating system Vista is finally due in January. And, getting back to talk, Dragon NaturallySpeaking 9 is speech recognition software that’s garnering gossip akin to discovery of the ideal spouse: It both listens and does what you tell it. Or does it? So here’s this year’s list of the top 10 issues, trends, programs or devices that may serve, soup up or save your practice in 2007.
A lot of people use the term Web 2.0 even though there’s no agreement about what it means. It could be one of those buzzwords that come and go, but the phenomenon behind it is real the proliferation of free or inexpensive publishing tools that allow anyone and everyone to have a Web presence. With blogs, podcasts, social networking sites like MySpace and video Web sites like YouTube, anyone can be a digital star.
Robert Ambrogi from Rockport, Mass., and J. Craig Williams from Newport Beach, Calif., have become nationally known legal experts through their Web logs and Coast to Coast, a free podcast (an audio program the attorneys post on the Internet). And Beverly Hills lawyer Allison Margolin made a three-and-a-half-minute video for YouTube about her practice and her position on issues such as marijuana laws, getting her noticed by commentators all over the Internet.
“The new generation, Generation Y, lives in that world,” says Dan Pinnington of Toronto, a practice management adviser and member of the ABA Techshow board. “They’re not going to go grab a phone book to hire a lawyer. The first thing they do is a Google search.
“A lawyer needs to know how people network,” Pinnington says.
And the democratization of the Web is being embraced by large law firms. In the past, solo lawyers like Howard Bashman, Denise Howell and Ernest “Ernie the Attorney” Svenson became well-known and respected legal authorities with their smart commentary and savvy online networking via blogs. But large law firms have now begun to invade the blogosphere.
Among the big firms publishing Web logs for their different practice groups with hopes of advertising their expertise are 400-lawyer Sutherland Asbill & Brennan, based in Washington, D.C., and 480-lawyer Sheppard, Mullin, Richter & Hampton, based in Los Angeles.
But lawyers should not limit themselves to taking advantage of free self-publishing online. As the general population lives more of its life through Web sites like MySpace, lawyers need to know how to use these sites as a resource before accepting a case. “I don’t think attorneys should take a divorce case or an employment law case without first checking to see if their potential client posted something online slamming their spouse or former employer,” says Jim Calloway, director of the management assistance program for the Oklahoma Bar Association. “A whole lot of people put their lives on the Web, and you never know what somebody might have posted on YouTube or any other public Web site.”
if there are any errors in the next paragraph, don’t blame the copy editor. It was written with Dragon NaturallySpeaking 9 voice recognition software.
Speech recognition software has been a novelty for most of its life. Every few years, a new version of IBM’s ViaVoice or Dragon’s NaturallySpeaking comes out, promising you can now speak to your computer and it will type where you say. For the most part, he works amazingly well, but not well enough to actually used for work. With the release of Dragon software is NaturallySpeaking 9, the Company claims to have software that’s accurate enough for daily work.
To perform the above test, we got a copy of NaturallySpeaking 9 Legal, which retails for around $1,000. (Though the Dragon name has stuck, the software is now sold by Nuance Communications.) It offers bells and whistles like the ability to transcribe from a digital voice recorder and to understand legal terminology. Like the legal version, the standard ($100) and the preferred ($200) versions come with headsets, but they offer less functionality with the same level of accuracy. There are versions for French, Italian, German, Spanish, Dutch, Japanese and various English dialects.
Right out of the box, it was clear the software has gotten easier to use. After it is installed, you can train the software to your voice by reading a few short passages into the microphone. It took less than 15 minutes to train the computer, something that used to take up to an hour.
You will have to play with the software for a while to figure out how to make it work best for you. It also helps to have a list of the formatting commands handy. It may take a little time to get used to Dragon’s formatting, punctuation and other commands. You can also let the software add punctuation on its own or (the more accurate option) add punctuation by saying “comma” and “period” aloud.
We also read a court filing to the computer and then typed the same document. The legal version of the software does a good job of recognizing terms of the trade. When reading a case citation, the software at first mistyped the court involved, but then correctly inferred we meant “S.D.N.Y.” and corrected it.
But formatting something as complicated as a court filing is an incredible pain. There are some recurring frustrations, like the many times it spelled “backspace” or “delete that” instead of doing what it was told. To test for accuracy, we also read a page from Michael Pollan’s book The Omnivore’s Dilemma to see how the computer does without tricky formatting. In a page of 327 words, the software made about 25 errors in several passes at the same page, about the same number of mistakes we made typing it.
Though the software does seem to learn from its mistakes over time, the number of mistakes is much higher than what you should get with the 99 percent accuracy promised on the box. And with speech recognition, you have to wait for the computer to catch up to you if you know you made a mistake and want to fix it. In addition, the kinds of mistakes Dragon makes are very different from the mistakes a typist typically makes. For example, here’s a paragraph that is supposed to match one appearing earlier in this item:
A you speech recognition software to reed a court filing to the computer and then type to the same document. The software does a good job of recognizing legal terms. When reading a case citation, the software at first mistype the court involved, the been correctly inferred we meant S. M.D. And. Why. And corrected it.
Back to English: If you’re the type of lawyer who really likes dictating and likes the idea of speech recognition software (and you can talk to your computer without annoying your co-workers) Dragon NaturallySpeaking 9 can work. But that’s only if you have to type long documents with little formatting. And dictating is easier than typing only if you’re willing to clean up a lot of mistakes.
A story that probably slipped past most people’s attention was that the International Organization for Standardization published its standard for software asset management last year.
That’s OK—lawyers normally don’t need to pay attention to whether something like the ISO/IEC 19770-1 standard is formalized. But if you run a law firm or have any business that involves keeping track of intellectual property, asset management could save money. The standard allows companies to verify that their software is legitimate, keeping industry watchdogs such as the Business Software Alliance and the Federation Against Software Theft and companies like Microsoft satisfied that you are using no unauthorized software. Before this standard was completed, businesses had no way to demonstrate their systems were clean.
Violating software copyrights can lead to $150,000 fines for each infringing copy, so it is in a law firm’s interest to know that its employees are using legal copies. Microsoft offers software asset management tools for free.
Perhaps someday there will be a top 10 list without an e-discovery item on it. It certainly won’t be this year.
Two developments are driving the e-document issue:
• The Federal Rules of Civil Procedure that went into effect this month, codifying discovery rules for digital evidence. No litigant can claim ignorance of e-discovery now that formerly vague and contradictory court rulings have given way to black letter law.
• Courts have already levied billion-dollar judgments against companies whose lawyers and consultants failed to produce all the discoverable electronic documents requested. Under the new Rule 16(b), lawyers involved in litigation have to meet with opposing counsel for a scheduling conference to consider e-discovery plans within 120 days of the start of a lawsuit. And, at least 21 days before this scheduling conference, parties must meet and try to agree upon electronic discovery procedures for the case, set out in Rule 26(f).
Lawyers need to be thinking about the forms in which documents should be produced and ways to preserve discoverable information. To do that, lawyers have to work out a plan with information technology departments for their corporate clients. They have to know how to find backup and other copies of documents, stop routine destruction, locate privileged documents and determine how to protect them. And they have to do all that in a way that won’t disrupt the normal course of business.
“It’s a balancing act between the needs of the legal department and the rest of the business,” says Darren Lee, president and CEO of NextPage in Draper, Utah, which sells document tracking software. “You can’t be more concerned about the next lawsuit that may or may not hit you than about selling products to customers.”
Law firms also need a detailed inventory and map of their clients’ communications systems. Then, when confronted with demands to see every potentially relevant communication within an organization, the legal team can craft a response that is both realistic and likely to disrupt business as little as possible.
No one expects a company to be able to keep track of every scrap of paper or to know what every employee is doing with his or her computer, nor would anyone really want to. The task is to be able to show to a judge or opposing counsel where relevant communications might be stored and that your organization is making a good faith effort to track, find and produce those documents.
Elliot Portnoy of Washington, D.C., the new chairman of Chicago-based Sonnenschein Nath & Rosenthal, wants his law firm to become one of the 25 largest in the nation. That means increasing revenue 40 percent and adding hundreds of new attorneys. Part of that will come from lateral hires, but growth will also have to come from old-fashioned salesmanship. Sonnenschein has decided it needs to sell itself more like a business and less like a law firm.
And to help make that happen, the firm is using customer relationship management software. CRM is something that 45 percent of firms now use, up from 33 percent in last year’s ABA technology survey. The software links a firm’s Microsoft Outlook contacts, Elite financial software and PeopleSoft human resources software into a searchable database. The idea is to make it possible for a lawyer in the firm to find out who else in the firm works with any potential clients or has contacts with those clients, all in order to coordinate sales efforts.
“Every law firm has a story about three lawyers who fly out to meet a potential client only to find out someone else from the firm was already there,” says Alex Diaz, Sonnenschein’s director of consulting services and client advocacy in Chicago. “We’re telling the attorneys, here’s a way to do smart marketing that won’t be a burden on them.” But CRM has died an ignoble death in many law firms due to the time demands of entering contact information. “In the legal field it can take a long time to deploy applications and consolidate information,” says John McDonnell, vice president and general manager for InterAction, a CRM package owned by LexisNexis. “Traditionally a lot of firms have had to enter information manually.”
InterAction, which Sonnenschein uses, hopes to make the process easier by automatically pulling information from Outlook contact folders and, on a subscription basis, from client and company profiles in LexisNexis’ databases.
But the firm will have to compile other information—including lists of its attorneys’ expertise—on its own. For example, the firm is hoping to keep track of referrals made by staff attorneys. “If you can track how much money went to a referral, you can go back and take advantage of the good will you’ve generated to win some business for yourself,” Diaz says.
As more law firms put more pressure on attorneys to bring in additional business, CRM will increasingly be used to find clients more efficiently. “We’re trying to make cross-selling more efficient without affecting the way the attorneys do their work,” Diaz says.
As attorney David Isom of Denver researched legal technology issues for presentations he gives around the country, he started to worry that law firms didn’t take security seriously.
“But someday a law firm is going to be the victim of a serious break-in,” says Isom, co-chair of Greenberg Traurig’s e-discovery practice. “A lot of people look at their own systems and wonder how anyone could crack it, but any system is vulnerable.” We’ve included security in previous top 10 lists, but the threat keeps evolving. Big this year is business travel, which used to be a way to give a client some personal attention. Now, as more client information goes out the door with mobile lawyers, business travel can be an invitation to disaster.
A survey from the Ponemon Institute, an information security research group in Elk Rapids, Mich., found 81 percent of companies and governmental entities reported they lost one or more laptops containing confidential business information last year. In addition, law firms are increasingly allowing out-of-office workers to access wireless networks to get online. But Wi-Fi and other technologies used at coffee shops and airports are inherently unsecured. Isom says his business clients are ahead of law firms in using technologies like encryption to protect their online communications and computers, and some clients insist he use it for all sensitive communications. Experts now recommend law firms consider using encryption software on all laptops holding sensitive data.
According to the ABA’s technology survey, 64 percent of law firms reported virus attacks, and 14 percent were hit by a computer hacker. Despite these threats, 10 percent of law firms still don’t have a firewall to protect against attacks. At a minimum, law firms should have firewalls and virus-scanning software. In addition, it pays to do a security audit with an outside consultant to probe a system for weaknesses that may have been missed by the firm’s own security team.
Microsoft is hoping that by building new security features into its Vista operating system, folks will buy in. However, third-party security software companies have charged Microsoft has been making it hard for them to get information about Vista and gear their new products to the system. Moving to Vista may depend on how well Microsoft shares this information or, if Microsoft fails to share, whether companies are willing to make Microsoft their primary security as well as software provider.
Most law firms have security software, but software alone can’t close all holes. Some firms have begun background checks on hires and focus on locking down their office space to prevent their client data and intellectual property from walking out the door with a disgruntled employee. Firms are also locking down computers and using tracking software to prevent data from being downloaded.
However, security issues can collide with cultural issues within the firm. Security regimes need to be balanced with the needs of employees to work in a comfortable environment. “Firms reserve the right to monitor their employees’ activity,” Isom notes, “but you have to ask what’s going to happen to the firm’s culture if you do monitor everything. You have to think about how far to take it.”
Trials increasingly turn on evidence such as e-mails, computer records and computer animations. But according to the legal technology survey, only 26 percent of lawyers even bring a laptop into court for presentations. (About 24 percent use laptops at courthouses for litigation support, and only 11 percent for online research there.) But there are increasingly more reasons to show and tell digitally. First is e-discovery, which demands the presentation of evidence that doesn’t lend itself to traditional presentation techniques. Printing an electronic document takes it out of its proper context. But more important, with digital presentation software, attorneys can put complicated and difficult-to-understand evidence like e-mails and spreadsheets into chronological order, explain difficult technical evidence with computer models, and show how different evidence fits together.
And computer presentations are increasingly important for another reason: the move toward e-filing in many more jurisdictions. Most attorneys warn that judges are annoyed if they have to read too many digital documents in a court filing, but if you know a judge is computer-literate, it might make sense to include hyperlinks and graphic presentations in a digital file. Adobe Acrobat now supports video and graphical presentations, which means lawyers can include such presentations right in a court filing.
Law firms have spent millions in the past few years building document management systems, extranets and online collaboration tools to allow lawyers to coordinate efforts to create documents. But according to the ABA survey, 79 percent of lawyers still use e-mail attachments to collaborate and share documents.
That means multiple versions of many documents are sitting in different peoples’ inboxes, and no one may know which is the current version.
As lawyers work with attorneys in far-flung offices and clients who may be traveling anywhere around the globe, collaboration tools are becoming more common. As a first step toward collaborating more efficiently, law firms are beginning to tie their document management systems to software such as Microsoft SharePoint Services, which is becoming a standard tool for collaboration.
Some firms are dabbling with wikis—Web pages that work like an online whiteboard where lawyers can review, edit and post comments on a project. Users can track changes and have e-mail alerts sent to them when others have made changes. And, unlike most collaborative software, wikis do not require users to all log on at the same time; each lawyer can visit the Web page when he or she chooses.
Most important, lawyers can now videoconference with clients for next to nothing. Cameras for PCs are inexpensive and come free with many Apple computers. Free tools like Google Spreadsheets and Writely let lawyers create, store and share documents and spreadsheets on the Web. And other tools, including the popular CaseMap litigation software, have added brainstorming tools to help attorneys put together document drafts. Collaboration software has the potential to change the practice of law more dramatically than any other recent innovation. Corporations have been looking to outsource legal tasks, and they’re using extranets, the Internet and collaboration software to make that happen. While that puts a squeeze on some lawyers, others can realize new opportunities. Cisco’s legal department is trying to use the Web to allow it to work with more law firms outside of its San Francisco Bay-area home base. The company hopes the Web will allow law firms that otherwise wouldn’t consider Cisco as a potential client to be able to bid for work.
We’ve written about phones that make calls over the Internet, but mainly to explain how they affect large law firms. But in 2007, lawyers will find the technology has become accessible at an affordable price to everybody, which means solo and small-firm lawyers can take advantage of voice-over- Internet protocol.
The ABA technology survey found about 9 percent of lawyers use VOIP phones. For medium and large law firms, rolling out VOIP is a way to save money. That’s because it is becoming cheaper to build phone systems on top of a computer network than to roll out a new traditional phone system. Conference calling is practically free since every phone can create its own conference bridge. And it is relatively easy to write new applications that can be rolled out across the whole system and tie into everything from time and billing to document management software.
The cost for VOIP systems has come down so low that, for several hundred dollars, even solos and small firms can have the technology. Lawyers can get free long distance calls or integrate their phone and time-and-billing systems the way large firms can. Even more, companies like Skype let anyone use any computer network as a telephone system in a matter of minutes. All an attorney needs to do is download the software from the Skype Web site and set up a screen name. With a headset or a microphone and set of speakers plugged into the computer, Skype users can talk for free. Web-savvy attorneys have been using the application to let potential clients contact them this way.
In years past, lawyers have eagerly looked forward to specific new handhelds or gadgets. For months, tech-obsessed lawyers would wait on the release of new versions of the BlackBerry, Palm Treo or iPod.
But while some are looking forward to Microsoft’s release of its Origami Project mini-tablet PCs, most of the interest in 2007 is in accessories and new capabilities for old standbys.
Lawyers who need to be entertained by their phones can get a model like the Nokia 5300 XpressMusic, with the capacity to store and play 1,500 songs and take 1.3-megapixel photos. The Nokia N95 can do all that plus record and play what the company calls “DVD-like quality” video with its built-in camera and color screen. Meanwhile, Apple and Cingular are reportedly working on an iPod phone.
For those who need to justify their showy new phone as a business expense, the Pantech IM-S130 not only has a 3.3-megapixel camera, but it can also display PDFs and Microsoft Office files right in the phone without any additional software. Meanwhile, Wi-Fi phones like the Netgear phone that runs wireless provider Skype’s Internet phone service offer free in-network calls.
In 2007, wireless Internet providers, including Sprint and Cingular, will be not only boosting the capabilities of their 4G wireless networks, but most will also be introducing WIMAX service in large cities. WIMAX (short for worldwide interoperability for microwave access) will allow users to log on to the wireless Web anywhere in a city, allowing people to get away from Wi-Fi coffee-shop service.
But the most interesting developments are in peripherals, especially Bluetooth-enabled add-ons. Vendors have been busily rolling out new Bluetooth headsets and keyboards for their smartphones.
Next year, look for more niche-marketed Bluetooth accessories, including Motorola’s Bluetooth snowboarding headset hat that lets boarders and skiers keep chatting with clients while plunging downhill.
Then again, for video gamers, there is the very-long delayed new Sony game system, the PlayStation 3.
But beware: Reports are that PS3 is so cool, you won’t want to make time for snowboarding headsets, software that listens, new operating systems or even a career.
Jason Krause is a legal affairs writer for the ABA Journal.
Jason Krause is a legal affairs writer for the ABA Journal.