My Shingle

Unleash Your Inner Scholar: Why Solos Should Write A Law Review Article

Carolyn Elefant — Mon, 12 Dec 2011 21:21:12 +0000

Seems that ATL Editor David Lat is concealing a dirty little secret underneath his robes. As you know, by day, David toils as a mild-mannered blogger exposing the secrets of, and dishing out biting commentary on AmLaw 100 firms. But after hours, he busts out his secret inner scholar and transforms into a veritable Volokh, authoring real published scholarly articles like this one or this one that have more words than readers.

While I have no idea what compels David Lat to dabble in legal scholarship (perhaps it’s that same cleansing instinct that drives people to crave salad after a long junk food binge), writing law review articles makes sense for solos, particularly those who compete with large law firms or generate business from referrals from attorneys or judges. I fully recognize that the advice to write a law review article seems counter-intuitive at a time of declining journal circulation not to mention diminished attention spans. Even so, allow me to make my case for the law review article in the most un-scholarly way possible: the top ten (or in this case, the top eight) list.

1. An endless source of content : You’ve heard the saying that content is king; the only food source that will sate the ever ravenous search engines. At 12,000 words or more, packed with footnotes and case citations, law review articles offer an everlasting gobstopper of content for blogs, online publications and document archive platforms.

For starters, you can upload the article to your law firm website, as I did at my site with my recent law review article, The Power of Social Media: Legal Issues and Best Practices for Utilities Engaging Social Media. To further enhance your article’s online visibility, you can also post it at document archiving sites like Scribd, Docstoc, and tag your article with keywords that users might use in searching for information on the topic. If you’re more interested in putting your article in front of other lawyers and corporate counsel, post it on JD Supra, which will mention your article in one of its regular press releases, and also post it as part of theLegal Updates on LinkedIn.

But wait – there’s more! Because most law review articles are so ginormous, you can hack ‘em up into dozens of bite sized pieces that can be distributed around the internet. For articles of interest to corporate counsel, consider submitting a shortened version of your article to Lexology, a web-based service that delivers legal analysis to corporate law departments. Other article publication options include trade association newsletters (often published online), one of law.com’s many publications, Huffington Post or e-zine.

If you prefer to build content on your own site, you can re-purpose a law review article as a series of blog posts. And if your article concerns a topic that’s in flux – for example, an appellate decision pending Supreme Court review or an emerging area of law like online defamation or social media in employment law – you can produce a series of “pocket parts” (as I’ve done here) to continue to update readers about on-going developments.

2. An excuse to toot your own horn Lawyers will issue press releases on just about anything, from the importance of avoiding drinking and driving on New Year’s Eve to announcing availability to comment on a case (As an aside, search the term “lawyer” here for the sublime to the ridiculous in lawyer press releases). But publication of a law review article, particularly one on a current topic or in a prominent publication could potentially justify a Press Release. If a press release is too much, you can still announce your article on Twitter, Facebook, Linked In and other social media channels.

3. Repurpose work product : In some of your cases, you may have an opportunity to brief a current issue where the circuits are split or even make precedent on an important issue. Rather than let all of that good research go to waste, you can quickly recycle the material into a law review article – and hire a law clerk or contract lawyer (see point #5 , below) for supplementary research or citations. Bear in mind that if you decide to write about research that you previously performed for a client, you should avoid commenting on any confidential issues unique to your client’s case, writing about a case that’s still ongoing or taking a position adverse to the one that you publicly advocated for your client.

4. Collaborate with a potential referral source or client If you’re a new lawyer eager to impress an experienced colleague in the hopes of attracting referrals, or angling to lure corporate business, use a law review article as a way to collaborate. It’s a technique that worked for Mark Hermann while he as at a firm, and one that he recommends now that he’s in-house. Co-authoring an article provides a tangible benefit to your prospect and gives them an opportunity to have a first hand look at your work product.

If you choose the co-authorship approach, though, you’ll have to take the initiative and follow through on getting the article done. While some co-authors will happily shoulder their share of work and dutifully meet deadlines, others will expect a free ride. So be prepared to draft the bulk of the article, play taskmaster to ensure that your co-author provides timely feedback, and submit the article for publication. The co-authorship process can be aggravating, but when your co-authors will be beholden to you forever once they see their name in a byline.

5. Help out an unemployed law student, new grads or contract lawyer Even if you’ve already preliminarily fleshed out a topic, a law review article will still require research assistance in the form of literature searches, cite checking and footnoting. Many of these tasks are well suited for law students, new unemployed graduates or junior contract lawyers. For a few hundred dollars, you can finalize your research without losing work time and help out a law student or another lawyer with a little bit of cash, research experience and a print acknowledgment to add to their resume.

6. Impress those big law colleagues OK, I know that many of you solos don’t give a hoot about what big firm lawyers think of you. And if you don’t get any business from large firm lawyers, that’s fair enough. But for many lawyers, particularly those who either leave big law to strike out on their own or otherwise work along side large firms, big law attorneys can serve as a lucrative source of small case or conflicts referrals. But even if large firm lawyers know you via an introduction from another colleague or a bar event, they may not end cases your way without some assurance that you’re capable of handling them. In these cases, the law review article can help vouch for your competence.

7. Change and influence the law Granted, with blogs and social media offering a platform for exchange of and exposure to ideas, law review articles carry less weight than they did years ago when this article that I authored served as the basis for legislative change a few years later. Still, many judges still look to law review articles to support judicial opinions that set new precedent so if you feel strongly about an area of the law that should be changed, a law review article offers that possibility.

8. Escape that inferiority complex Instead of constantly comparing yourself to “law reviewers” – either by boasting about how you’re so great while they’re slaving away as drones at big law, or claiming that they’re a bunch of snot-nosed, self-entitled losers, just write a damn law review article and cure yourself of the green-eyed monster once and for all. You’ll see that writing an article is basically the same thing as writing a brief, something you do everyday and that getting it published is even easier since journals are so desperate for content that they’ll print anything with lots of footnotes (most law professors, it seems would rather blog).

So come on – you’ve already tried the pricey directories, the expensive marketing gurus and for-fee SEO. What do you have to lose by taking a walk on the wild side and letting your inner scholar hang out?

Amazing Free Legal Research Tool for Lawyers Who Lease

Carolyn Elefant — Wed, 07 Dec 2011 17:24:24 +0000

Solo lawyers who draft or review oil, gas or natural resources leases face a tough road. For starters, these types of leases are often much trickier than standard leases for office space or wedding halls – there are distinctions between surface and sub-surface rights, leases for easements and rights of way versus, full fee versus use rights and of course, the array of choices for payments – by square foot or royalty percentages and if the latter, how to calculate them. In short, natural resource, gas and oil leases pose enough traps for the unwary that it’s often advisable for a solo or small firm unschooled in these issues to call in an expert.

But now thanks to an unlikely source — the New York Times — solos who lack this expertise can start to develop it on their own. As part of a running series on oil and gas lease and Marcellas Shale , the formation that’s spawned a million new practice sub-groups (google the term along with lawyer and you’ll see what I mean), the New York Times collected more than 111,000 oil and gas leases and related documents from New York, Maryland, Ohio, Pennsylvania and West Virginia and has posted them online here. You can search the leases by topic or term and read about some common red flags here. This is probably one of the best research tools I’ve come across in a long, long time – so enjoy!

Editor’s Note: What’s your secret research tool? Share it with MyShingle and we publish it, you’ll win a $25.00 gift card.

Proposed ABA Ethics 20/20 Rules Will Require Lawyers to Oversee and Monitor the Accuracy of LEXIS, Westlaw and Other Computerized Legal Research Services

Carolyn Elefant — Thu, 17 Nov 2011 16:22:23 +0000

As lawyers, we’re bound to abide by applicable statutes and precedent — yet most lawyers refuse to heed the law of unintended consequences. That’s the error committed by the ABA Commission on Ethics 20/20 with its most recent changes lto ABA Model Rule 5.3, Responsibilities Regarding Non Lawyer Assistance. In its zeal to frustrate lawyers’ ability to use cloud computing by imposing the same supervisory obligations that apply to, say, a contract attorney, the Ethics Commission also imposes a substantial burden on lawyers who use computerized legal research services like LEXIS or Westlaw.

In a radical departure from the existing version the ABA Ethics 20/20 Commission proposes to expand the scope of Rule 5.3 to encompass not just non-legal services provided by actual people (e.g., contract lawyers, paralegals and document management companies) but also Internet-based, computerized services. Although proposed Rule 5.3 identifies cloud computing (i.e., an Internet-based service for storage of client information) as one example of computer-based services, by that same logic, computer-assisted legal research services like LEXIS, Westlaw, Fastcase, Casemaker and Google Scholar must necessarily be classified as “nonlawyer assistance” under the proposed rule as well. Like cloud computing, computerized legal research services are delivered by providers who operate outside of the law firm. Moreover, computerized legal research services “assist the lawyer in rendering legal services to the client” far more extensively than cloud services, since legal research represents a core function of lawyering.

In broadening the definition of “nonlawyer assistance,” proposed Model Rule 5.3 significantly expands lawyers’ supervisory responsibilities to cover a wider range of services provided outside of the law firm. Specifically, proposed Model Rule 5.3 states that:

When using [nonlawyer] services outside the firm, the lawyer must make reasonable efforts to ensure that the services are provided in a manner that is compatible with the lawyer’s professional obligations. The extent of this obligation will depend upon the circumstances, including the education, experience and reputation of the nonlawyer; the nature of the services involved; the terms of any arrangements concerning the protection of client information and the legal and ethical environments of the jurisdictions in which the services will be performed, particularly with regard to confidentiality. When retaining or directing a nonlawyer outside the firm, a lawyer should communicate directions appropriate under the circumstances to give reasonable assurance that the nonlawyer’s conduct is compatible with the professional obligations of the lawyer.

Because virtually every lawyer uses some form of computerized legal research service, the proposed changes to Model Rule 5.3 will have a far-reaching impact. Whereas previously, lawyers could simply rely on representations of accuracy offered computerized legal research services like LEXIS and Westlaw, under proposed Model Rule 5.3, all lawyers – from solos to senior partners at the nation’s largest firms – must take a more active role in monitoring and supervising the provision of these services to ensure that they comport with lawyers’ professional obligations. Among other things, proposed Model Rule 5.3 will require lawyers to inquire about the extent to which these computerized legal research providers rely on support and assistance from lawyers trained in foreign jurisdictions (who are treated as “nonlawyers” for purposes of ethics rules) and to review the extent of training afforded to computerized research company staff. If a lawyer determines that the training provided to nonlawyer personnel who write headnotes or develop search algorithms are insufficient, Model Rule 5.3 obligates the lawyer to “communicate directions [to the nonlawyer] appropriate under the circumstances.

In addition to overseeing the competence and training of nonlawyer research providers and their staff under proposed Model Rule 5.3, lawyers must continuously asses the accuracy of search results generated. To this end, lawyers would be required to obtain from computerized research providers information about their search algorithms, frequency of updates to databases and reported errors in search results.

Finally, lawyers must ensure that computerized research services protect the confidentiality of client data – which lawyers frequently divulge when they use computerized legal research tools. For example, let’s say that a firm is hired by a local politician to sue YouTube for defamation. Most likely, the lawyer assigned to the research will enter the politician’s name as the client matter, and will run searches both on topics like “defamation and YouTube and liability” and also on the particular politician. Or, a lawyer might use the research service to determine whether a pharmaceutical company meets the criteria for patenting a drug. Some computerized research providers like LEXIS own Accurint, a service that enables lawyers to check clients’ credit records and case history by inputting a client’s social security numbers.

In all of these examples – whether through search results or input of a social security numbers, lawyers are entrusting computerized research companies with confidential client information. Moreover, because computerized research providers retain these search results, they have many opportunities to rummage through client data – either by running computer scans on the data collected or even by asking analysts to review searches and try to cull those nuggets that can be monetized through an information arbitrage business model or simply sold to identity thieves. Because use of computerized legal research service potentially puts confidential client information at risk, under proposed Model Rule 5.3, lawyers must take “reasonable measures” to prevent disclosure. Such measures might include hiring an independent auditor to review computerized legal research services’ internal security measures or – if warranted, to cease using them entirely and rely only on hard copy digests available in the library to research sensitive matters.

Lawyers adopt computerized legal research services to save clients money and improve the quality and efficiency of legal research performed. Most lawyers would never tolerate the degree of intrusion that proposed Model Rule 5.3 will impose on their use of computerized legal research services. Yet, that is an unintended consequence of classifying cloud computing as “nonlawyer assistance” over which a lawyer has supervisory responsibilities under Model Rule 5.3. Because I simply don’t see any logical, principled way for Model Rule 5.3′s definition of “non-lawyer assistance” to encompass a commoditized, non-bespoke, out-of-the-box tool like cloud computing while excluding computerized legal research services.

Do you?

Get Jargon, Get Rid of Jargon

Carolyn Elefant — Wed, 25 Aug 2010 02:49:17 +0000

If you’re an aficionado of legal jargon (and come on, aren’t all of us lawyers, at least when we’ve had too much to drink?), why not indulge yourself with two free e-books of jargon on project finance and corporate finance, courtesy of Latham & Watkins, with an H/T to Three Geeks & A Law Blog.

On the other hand, if you want to purge your vocabulary and your blog of lame, pretentious terms like thought-leaders, game-changer, and value-proposition to name just a few, then check out this cool site, Unsuck-It for a better word choice. (H/T to Jim Calloway and Matt Homann).

Of course, part of the problem of jargon isn’t just the words we use, but also the way in which we present our words. Most legal jargon winds up seeming like mumbo-jumbo, because it’s either buried in fine print, while other words (clearly, obviously, blatantly) are often clothed in caps or italics. For a true cleansing, take the good legal writing pledge with Lisa Solomon (starts at 1:08):

Thank You, Justice Scalia for Remembering Who Pays (the Client!) for the Vanity Footnote

Carolyn Elefant — Sun, 14 Mar 2010 21:48:54 +0000

If you’re a solo or small firm lawyer who litigates against biglaw, you’re probably familiar with the vanity footnote — that smug, yet entirely superfluous annotation to legislative history, obscure law review article, treatise or string citation included in many large firm briefs. Though intended to corroborate a case cited in the text or flaunt just how smart the brief’s authors are, the vanity footnote gilds the lily, mucking up an elegantly persuasive argument with TMI. Even worse, vanity footnotes compel a response, and thus force lawyers to engage in additional and unnecessary research on the client’s dime.

But now, those of us who represent clients on tight budgets have an advocate on our side in the form of Justice Scalia. Concurring with the majority in Milavitz, Gallop & Milavetz v. US, Scalia took his colleagues to task for a vanity footnote of their own regarding the legislative history of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. From Scalia’s concurrence:

The Court acknowledges that nothing can be gained by this superfluous citation (it admits the footnote is “unnecessary in light of the statute’s unambiguous language,” ante, at 6, n. 3). But much can be lost. Our cases have said that legislative history is irrelevant when the statutory text is clear….The footnote advises conscientious attorneys that this is not true, and that they must spend time and their clients’ treasure combing the annals of legislative history in all cases: To buttress their case where the statutory text is unambiguously in their favor; and to attack an unambiguous text that is against them. If legislative history is relevant to confirm that a clear text means what it says, it is presumably relevant to show that an apparently clear text does not mean what it seems to say. Even for those who believe in the legal fiction that committee reports reflect congressional intent, footnote 3 is a bridge too far.

Though in this economy, many clients are struggling with legal fees, it’s solos’ and small firms’ consumer and budget oriented clients are are disproportionately burdened by the costs of responding to vanity footnotes. Premium services like WestlawNext are ideally suited for tracking down the kind of secondary information contained in vanity footnotes, but as I’ve noted along with my colleague Lisa Solomon, WestlawNext doesn’t come cheap for solo and small firms.

So from solos everywhere on behalf of our clients – thank you, Justice Scalia for remembering that when lawyers or judges make easy law hard, we make things harder for our clients.

Note: In response to the reader comment below, of course I read Millavitz and I’m familiar with the problems you cite. My point here wasn’t to get into the merits, but simply discuss a piece of dicta to highlight a problem when solos litigate against large firms in any practice area.

But since you raised a substantive point, here are my thoughts. The way I see it, the BAPCPA provisions that classify attorneys as debt relief agencies and impose restrictions on their ability to counsel clients (which was at the crux of this case) are clear and in the absence of ambiguity, reference to legislative history is not required. In fact, here, the reference to the legislative history simply amplified the point that Congress regarded bankruptcy attorneys as scoundrels and enacted BAPCPA in response. Do you really want that as part of Supreme Court precedent?

I agree, completely that BAPCPA makes life difficult for solo and small firm lawyers and their clients. But if that’s the case, Congress needs to change the law, not the Court. Given that the decision was unanimous, it seems that the Court agreed that the law was clear as well.

Fastcase Makes FREE CaseLaw on the Spot a Reality!

Carolyn Elefant — Sat, 30 Jan 2010 09:19:24 +0000

To live in an era of wish fulfillment is an amazing thing. That’s exactly how I felt yesterday when I downloaded Fastcase‘s just released and 100 percent FREE legal research app for the iphone. Yes, I can now search a full database of state and federal cases and statutes right on my phone for no cost.

Granted, the Fastcase free app isn’t WestlawNext. But when you’re a lawyer on a budget or working on the fly, sometimes good is even better than good enough, particularly when that good thing transforms possibility into practice.

Here’s what I mean. Back in 2001, I was using technology in my practice — or at least as best as I could. By then, I’d had email, a cell phone and website since the mid-1990s and MyShingle was under development. And yet, as much as I was able to do internally, I was frustrated because I couldn’t fully share the benefits of my tech savvy with all of my clients because they lacked access. And with easy mobility still a few years down the line (e.g., wireless), I felt limited in what I could do on the road. I wrote about my experience in the Washington Legal Times entited Bridging the Gap: Using Technology to Serve Clients Who Aren’t Up to Speed (full article is after the jump – wow was it dated!) and concluded with my wish for the future:

The ways I use Internet applications to serve my solo law practice’s small clients reminds me much of the way I use my microwave oven for preparing my family’s meals.

For starters, both Internet and microwave embellish form rather than substance: The microwave doesn’t make me a better cook, and sadly, the Internet has not transformed me into a smarter or shrewder lawyer. But just as the microwave allows me to operate as an at-home, short-order cook and quickly heat up and serve a variety of meals, the Internet affords a solo practitioner such as myself a means to respond to my clients’ diverse and unpredictable needs with the efficiency of a large firm at a fraction of the staff and cost….

As far as technology has taken my firm, I still eagerly anticipate the future when Internet technology will not just enable us to serve clients more quickly, but to reach out to clients who would otherwise not be served at all. And the day is not far off when a lawyer could take a laptop (or Palm Pilot), a dependable wireless connection, and a small printer to the streets and homeless shelters and dispense legal advice to clients in need on the spot, check the status of a client’s Social Security disability benefits, or print out forms for food stamps.

Every client would get an answer right away; there would be no lag time in following up; and attorneys would not lose track of clients because the clients have no telephone or address where they could be contacted, a problem I encountered time and time again in the days when I served as a volunteer lawyer at a homeless shelter. Granted, any responses provided would be rushed and basic. But just like a microwave supper, it certainly beats going without.

Now, I realize that I could accomplish much of what I wished with a laptop and a wireless card. But Google Legal and now Fastcase (which for the record, has a much more reliable database than GoogleLegal and as such, couldn’t be used for serious research) completes the equation with free legal research that’s fully mobile. In fact, I can now surreptitiously review cases while waiting for a case to be called in court.

I’m not suggesting that these new tools substitute for the hard core, disciplined legal research and analysis that lawyers do. Still, I can’t deny that the ability to respond quickly and in rudimentary manner to a legal question with a device that fits in my pocket is thrilling — especially when it carries with it the kernel of the possibility that just maybe I will witness the expansion of meaningful access to justice in my lifetime.

[Read below the jump for full text of Bridging the Gap]

Bridging the Gap

Carolyn Elefant/Legal Times

February 06, 2001

The ways I use Internet applications to serve my solo law practice’s small clients reminds me much of the way I use my microwave oven for preparing my family’s meals.

For starters, both Internet and microwave embellish form rather than substance: The microwave doesn’t make me a better cook, and sadly, the Internet has not transformed me into a smarter or shrewder lawyer. But just as the microwave allows me to operate as an at-home, short-order cook and quickly heat up and serve a variety of meals, the Internet affords a solo practitioner such as myself a means to respond to my clients’ diverse and unpredictable needs with the efficiency of a large firm at a fraction of the staff and cost.

And coming around the bend, I imagine that just as a microwave meal has spared me from ordering takeout or skipping supper, Internet technology will eventually make the difference between an indigent client receiving adequate legal assistance and going without.

USING THE WEB TO SERVE CLIENTS

As a solo attorney with both a highly specialized practice in energy regulatory and appellate matters, as well as more traditional generalized practice, my clients run the gamut on the technology spectrum.

Typically, my energy clients — comprising individual developers, trade associations, and small companies — tend to have at least basic Internet access, often through one of the service providers aimed at individuals, such as America Online or Erols. In some instances, these clients may also have a rudimentary ability to use the Internet for basic research, for example, finding a decision or filing at the Federal Energy Regulatory Commission’s Web site.

At the other end of the spectrum are those clients who do not use or own computers and, at most, might have the ability to covertly send or receive a fax at their place of employment.

However, as a general matter, my firm’s technological capabilities have always surpassed those of my clients: I’ve been at least six months to a year ahead on getting DSL, a Web site, e-mail, and even a cell phone. But fortunately, the quickly evolving “information highway” is not a two-way street where benefits inure only if both sides’ capabilities match. While I can maximize my use of the Internet when dealing with those clients who have gone online, there are still other Internet applications that have proven valuable even for my less technically sophisticated client base

Below, I refer to the three top Internet tools that I use to serve clients as

the three Es”: e-fax, e-mail, and the e-merging (ha!) e-filing. In addition, while my firm maintains a Web site (indeed, my firm was one of the first online with a Web site in 1995), at least for now, I regard the site as a means of marketing to prospective clients rather than a tool to serve existing clients.

ELECTRONIC FAX SERVICES

By far, the most useful Internet tool that I’ve found so far is the electronic fax, which combines the traditional fax with e-mail. To be sure, e-mail is also indispensable to my practice; in fact, it’s a necessary prerequisite to e-fax. But e-fax benefits my clients the most since virtually all have access to a fax machine.

The particular electronic fax service that I use is

eFax.com

, which randomly assigns me a fax number at no charge (another great benefit). My fax number has a Florida area code, but I could request a local area code for a small monthly fee. Clients can fax documents to me at that number, which eFax then routes directly into my e-mail box. For an additional fee, I could also e-mail documents to eFax for fax transmittal, a service I have not used since I either exchange documents directly by e-mail or hook my computer up to the phone line to send outgoing faxes directly from my machine.

The ability to receive faxes electronically has liberated me from the physical fax machine. If I am out of town, I no longer need to give clients the fax number at the hotel desk — or worse, hang out at a Kinko’s to await an incoming fax.

Instead, clients can always transmit a fax to my eFax number, and I can retrieve it remotely through e-mail. Even at my own office, eFax is less expensive and more convenient than my former stand-alone fax machine, for which I either paid the price of maintaining a dedicated phone line or inconvenienced clients by asking them to call ahead prior to faxing so that I could flip the phone line into fax mode. Finally, eFax ensures that I will never misplace or maim another fax again, as was common when I received faxes on the flimsy, slippery fax paper that was the norm when I started my firm seven years ago.

Since eFax automatically converts faxes into an electronic format, I can download and print faxes on plain paper while also retaining backup copies of the faxes on my computer hard drive.

ELECTRONIC MAIL

For those clients who have regular and dependable online access, e-mail serves as an indispensable tool for maintaining contact and exchanging information. For example, if I learn of a recent development in a client’s case and I’m pressed for time or haven’t had time to think through all of the implications, I prefer dropping an e-mail to update the client, with an invitation to e-mail me or call me afterward, rather than making what is invariably a more time-consuming phone call.

I find that e-mail gives the clients time to absorb new information so any follow-up calls are more focused. And of course, when the client is not available, it’s much easier to explain the reason for my contact in a written e-mail message than in a convoluted voice mail. Finally, in matters where multiple parties are involved, e-mail enables me to communicate the same information to all the parties at one time, instead of having to transmit multiple faxes.

The value of e-mail as a tool to transmit information is further enhanced for those clients who can open and send documents electronically in addition to receiving simple messages. For example, since the appellate courts and federal agencies where I practice issue decisions electronically, I can simply forward those decisions to clients via e-mail immediately after I’ve learned of their issuance.

Moreover, when I’m drafting a filing that requires client review and approval, I can e-mail the document to a client as an attachment. My client can then review the document, make any changes necessary, and e-mail the document back.

Of course, one obvious prerequisite to effective electronic exchange of documents is that clients must share my level of technological capability.

I’ve had a number of occasions where despite my advance inquiries regarding the appropriate format for sending a document (e.g., WordPerfect 5.1, Microsoft Word), clients were unable to open documents upon receipt because of format incompatibilities.

Similarly, I have had clients who inexplicably mangled or lost portions of documents I’ve sent for review. Then they’ve delayed sending revisions, figuring that the document was ready to go with their changes incorporated when, in reality, the problems they created in the document threw me into a last-minute, back-breaking frenzy of cutting and pasting and fiddling with WordPerfect code to finalize the changes.

As a result of those experiences, I always attempt to exchange documents electronically with clients at least once prior to crunch time. I also remind clients that notwithstanding their ability to transmit changes to me instantaneously, I still need time to incorporate the changes, and thus they must meet advance deadlines for sending any proposed revisions, even when the changes are made electronically.

Ironically, up until the past couple of years, when e-mail has become a normalized form of communication in the legal profession, the main criticism of electronic communication came not from clients but from my lawyer colleagues.

Many questioned whether ordinary e-mail provided sufficient privacy to ensure the degree of client confidentiality required by the Rules of Professional Responsibility. However, the D.C. Bar, like many other jurisdictions, has concluded in Ethics Opinion No. 281 that in most circumstances, transmission of confidential information by unencrypted electronic mail does not violate client confidentiality rules — although certain situations may require greater levels of security.

E-FILING

At present, my clients have not yet been substantially affected by electronic filing. Not because of any lack of technological capability on their part, but because in the courts and agencies where I practice, e-filing is only now emerging. However, based on recent e-filing experience at FERC, which just recently implemented an electronic filing system for certain categories of pleadings, I am excited about the prospects that e-filing holds for my clients.

Essentially, an electronic filing system allows for the filing of documents at a court or agency via e-mail, thereby enabling me to file documents within minutes of their completion without even leaving my desk. In theory, e-filing gives me more time to spend on a pleading (or more time to devote to other matters prior to getting to work on the pleading), because I do not have to allocate several hours of time in advance of filing to allow for photocopying and messengering of the document. But, more important, e-filing has the potential to save my clients money — savings that will increase as more jurisdictions permit e-filing and as more documents are converted to electronic format.

Although the FERC document I recently e-filed was only a few pages and thereby spared my client a grand total of about $45 for copying and messenger fees, the potential savings as we enter an electronic age are far greater

For example, in federal appellate matters, I must typically photocopy and bind 20 copies of what is generally a 50-page brief to satisfy the court’s 15-copy filing requirement and to serve the parties in the case. At 10 cents a page and $2 apiece for binding, that’s $140. Moreover, with the paper filing system, I would need to finish the brief at least a day in advance to allow sufficient time for photocopying, and two days in advance if the filing were being made out of the area.

Of course, one of the other large costs in preparing an appellate filing — the joint appendix — will decline substantially only as we progress further down the information highway. A joint appendix for an appeal contains many of the underlying court orders, transcript portions, and pleadings that constitute the record in the case; it is not unusual for a joint appendix to approach 500 pages. With 10 copies for the court and a few others for counsel, the cost of producing a joint appendix might total more than $700.

However, compiling a joint appendix electronically is also a daunting task. Many of the pleadings and court decisions might not come in compatible electronic formats, while some documents, such as transcripts or older pieces of evidence, may not even be available in electronic format. As a result, all of these materials would need to be scanned and compiled into a uniform electronic format and numbered and indexed, which could still be costly for a client.

But presumably, such costs will decline as more documents and transcripts become available in compatible electronic formats.

NET GAINS AND LOSSES

My firm’s Web site contains resources that tend to benefit prospective clients more than my existing clients. For example, a prospective client searching the Web for energy regulatory attorneys might come across my site and view some of my successful pleadings or examine my résumé to determine whether to contact me.

However, as a small practitioner, I lack the resources to provide and maintain a current stream of information to clients about energy matters; moreover, so many other Web sites full of energy information are already available that my resources are best spent elsewhere.

Similarly, I simply do not have the time or skill to develop a sort of extranet Web site where clients could obtain updates on their cases. Although I have the capability to design and post a basic site, an interactive site where clients could access their files would require expertise and attention to security well beyond my basic technical abilities. Moreover, even if I were to outsource development of an extranet, ultimately, my efforts would be wasted.

Quite frankly, when my clients call for information about their case, they don’t just want a basic status report; instead, they want reassurance about their prospects of prevailing or they want to vent about the injustice of our opponent or the system at large.

To date, I am unaware of any technology that can substitute for the personal counseling sessions that come as part of the package when a lawyer represents clients.

The Internet applications I use save clients money (or have the potential to do so) by enabling me to keep them informed about cases, and eventually file cases, without the assistance of additional staff, a cost that would ultimately be borne by clients in the form of higher billable rates. In addition, because the Internet enables me to transmit documents to many clients with such ease, clients have a chance to play a more active role in their matters, which can saves me time, thereby saving my clients money. For example, clients who have reviewed early drafts of a document have caught factual errors or have directly inserted factual information, thereby speeding up preparation of the document.

But the Internet’s speed-of-light mode of communication also bears a cost — not so much to clients but to their lawyers. Because I can speedily relay information like court decisions to clients through the Internet, many come to believe that I can also prepare documents instantaneously. Thus, clients may not give me sufficient time to complete projects, which can compromise quality. And although the Internet undoubtedly makes me more responsive to my clients’ needs by providing a mechanism by which they can contact me around the clock, that can also be a burden, for it makes escape from work difficult.

WISH LIST

Despite any problems, on balance the Internet has been a great blessing for my practice and my clients, giving me flexibility to meet client needs while giving my clients large-firm service at small-firm rates. And yet, as an attorney who has always taken our profession’s pro bono responsibility seriously, I often wonder why the Internet has not yet improved the ability of our profession to serve indigent clients in need of legal services.

As far as technology has taken my firm, I still eagerly anticipate the future when Internet technology will not just enable us to serve clients more quickly, but to reach out to clients who would otherwise not be served at all. And the day is not far off when a lawyer could take a laptop (or Palm Pilot), a dependable wireless connection, and a small printer to the streets and homeless shelters and dispense legal advice to clients in need on the spot, check the status of a client’s Social Security disability benefits, or print out forms for food stamps.

Every client would get an answer right away; there would be no lag time in following up; and attorneys would not lose track of clients because the clients have no telephone or address where they could be contacted, a problem I encountered time and time again in the days when I served as a volunteer lawyer at a homeless shelter. Granted, any responses provided would be rushed and basic. But just like a microwave supper, it certainly beats going without.

My Trip Out [to] West: A Preview of WestlawNext

Carolyn Elefant — Thu, 28 Jan 2010 14:51:15 +0000

Earlier this week, I traveled to Thomson Reuters/West’s headquarters in Eagan, Minnesota to preview, along with a group of other bloggers, a demonstration of the next generation of Westlaw, WestlawNext (go to the end of post for a round up of coverage). Though originally, I’d intended to comment on the product from the solo/small firm perspective, my friend and colleague Lisa Solomon covered that angle fairly well in her blog post, Product and Pricing. Instead, I’ll focus my attention on how WestlawNext works for lawyers with a highly specialized, regulatory based practice like mine. Honestly, it’s not all that great. I don’t fault West entirely for this deficiency because most likely, it had far less competitive intelligence to leverage for development of energy regulation searches than for case research generally. Still, West’s decision to make broad search the presumptive first choice for research in order to make its database more Google-friendly means that West gave short-shrift to another Web 2.0, technology trend: user-customization.

But before I get specific, let me (like WestlawNext search) start more generally: The WestlawNext product, and the sheer amount of work that’s gone into it wowed me. Learning about how West developed the product – from analyzing the way customers view a screen to how many times they print out a case – was simply fascinating. (Greg Lambert discusses it in detail at 3 Geeks and a Law Blog) I’d always assumed that developing computerized research products consists of nothing more than dumping a bunch of cases into a data base and programming a search tool. Now, I’m aware of the effort that goes into creating sophisticated search tools. As such, I’m somewhat more understanding of the comparatively high price tag that top line research tools carry even in an age of declining technological costs.

Likewise, WestlawNext’s comprehensiveness and intelligence was also impressive. Searching for municipality and civil rights liability puts Monell, the seminal casae, at the top of the charts as you might expect. But WestlawNext also captures cases with synonymous terms, like respondeat superior for liability and town or agency for municipality. Even further, WestlawNext casts a wide net, bringing up dozens of law review articles, treatise, jury verdicts and briefs. Who knew that relevant law could reside in so many places? It’s a lawyer’s dream.

But unfortunately, I don’t practice civil rights law or traditional "law school" law for that matter any kind of "law school" law (i.e., related to matters taught in law school). My bread and butter lies in energy regulatory matters, which require me, even at the appellate level, to comb through hundred page Federal Energy Regulatory Commission (FERC) orders (often an initial decision and then another equally dull and complex one one rehearing), federal statutes and regulations. Indeed, it’s my day job in the energy biz that keeps an otherwise renegade 21st century lawyer like myself with a penchant for "free" (see, e.g., here) wedded to costly commercial services: they’re the only game in town for researching regulatory law. In the regulatory domain, Google is worthless, as are the second-city search tools (which I adore for their commitment to low cost alternatives) like Fastcase, Casemaker and Versuslaw.

Yet, WestLawNext doesn’t stack up so well for regulatory research. When I research an energy issue, I need precision. I need to be able to search a FERC regulatory library and possibly federal appellate and district court cases, either simultaneously or individually. Sometimes, as for a recent massive report that I completed on feed-in tariffs, I need access to FERC and state regulatory libraries simultaneously. I also need statutes and regulations, sometimes SEC library, sometimes Department of Interior and sometimes even a smattering of international cases (but that’s a matter for another day). That is absolutely all I need 90 percent of the time for energy regulatory research – and WestLawNext doesn’t make it particularly easy for me to put customize that kind of search database (though to be fair, neither does LEXIS, even with a stand-alone "energy" library).

In addition, even if WestLawNext allowed me to cobble together this kind of specialized search (and maybe it does – it just isn’t readily apparent), I’m not so sure that I’d want to pay for all the add ons just to get access to a discrete set of particular services. I want to pay for what I eat, not for all I can eat. However, WestLawNext didn’t go into detail about pricing, so I’ll hold off on any further comment on that front until more information emerges.

As many of the other commenters have observed, WestLawNext’s design channels Google to some extent and indeed, that’s not a bad thing. There’s something to be said about a clean interface, starting search broad, then narrowing and using past results to inform subsequent searches. But much as I love Google (and I have to because my husband works there!), the ability to process massive amounts of information represents only one modern day technological advancement. The other advancement is user-customization, which lies at the core of most Web 2.0 technologies. Once I have access to the entire universe of legal research, I want to be able to cut it up, and pick and choose the pieces that I want and package it to suit my needs. I can do that with many Web 2.0 tools, but I can’t do it so easily with Google and it doesn’t appear that I can do it with WestLawNext.

Anyway, those are my comments – I look forward to your insights when the product launches on February 1. By the way, here’s a huge thank you to West for going to the time and expense of seeking feedback from a wide span of the blogosphere and putting on such an informative presentation.

For other commentary on the WestLawNext, see the following:

Adams Drafting (asking about the role of legal research in contract law).

Out of the Jungle (does WestLawNext dumb down legal research?)

Thoughful Legal Management (summarizing all of WestLawNet’s neat features)

Slaw.ca (usefulness of WestlawNext in Canada and pondering corporate counsel’s willingness to pay for premium service)

JasonEisman.com/blog (video conversation – note towards the end, Tom Boone’s question about whether WestlawNext widens the gap in legal research (presumably between those who can afford premium and those who can’t).

Free Legal Research by Google & What It Means

Carolyn Elefant — Tue, 17 Nov 2009 21:28:41 +0000

What do I think about Google’s recent launch of a free, online legal research tool as part of Google Scholar? (disclosure: my husband works for Google, but isn’t involved with the legal research project)

Funny you should ask, because I’ve been tracking, evaluating and most of all, patiently awaiting the arrival of a functional, robust online research tool for nearly a decade. Back in 2000, I wrote my first piece for the Washington Legal Times, entitled How I Researched A Legal Brief Online for Free (now only available behind fee wall, here) And when I started MyShingle in 2002, I set up a category for “Legal Research & Writing” to track various bar associations’ adoption of Casemaker, which at that time was one of few free resources for legal research. In short, I’ve been around the block long enough to put Google’s new tool in perspective — a welcome step worth celebrating, but far from the game changer that many are predicting. At least yet. Here are my quick thoughts:

1. Is Google’s free service functional? Google’s service isn’t the first time we’ve seen free legal research on the Internet. For years, Findlaw purported to be a source of free research and to its credit, it aggregated most publicly issued court releases. But Findlaw didn’t offer a search engine for locating the material nor did the cases include citations. Moreover, Findlaw didn’t include any federal district court law, thus severely limiting its functionality.

Google’s legal research tool is different. The coverage is broad, dating back at least 60 years and encompassing federal district court cases, bankruptcy and state and federal appellate decisions. Not surprisingly, the search engine is robust, speedy and offers several neat features, such as the ability to search by state and to see how a case has been cited previously. In addition, the cases include the appropriate Bluebook citation (e.g., 333 US 234 (1943)) and hyperlinks to other cited precedent.

One deficiency I noticed, however: I was unable to find unreported cases (or at least my one unreported case; most of mine are published). For example, a Section 1983 case of mine went up to the Fourth Circuit and was affirmed in an unreported case. Google lists the lower court decision, but the appellate decision isn’t available either through direct search or the cited previously feature. That’s potentially a problem (even though many circuits don’t permit cites to unreported cases, they can prove valuable) and I assume it will be corrected or the omission will be clarified.

Update – for more extensive functionality analysis, see Don Cruse’s Scotx Blog and Volokh (describing his vanity search).

2. So will Google replace Lexis?

Already, some bloggers like Social Media Law Student Rex Gradeless are suggesting that Google’s unique features will give LEXIS and Westlaw a run for their money. How I wish that were so, but it’s unlikely for some time. For starters, what many commenters overlook is that a research database for caselaw alone isn’t very useful for regulatory practice areas like energy, securities law, communications or tax where LEXIS and Westlaw aggregate reported agency decisions. That’s the value I get from LEXIS and what keeps me a captive customer.

Second, LEXIS and Westlaw are upping the ante with value adds like access to federal briefs (I don’t subscribe to these add-ons because I can’t justify the cost in my practice). In fact, several weeks back, I was blindsided in federal court when opposing counsel cited an unpublished federal district court decision issued a few months earlier that was not yet indexed on Westlaw or LEXIS. My guess is that my opponents’ searches lead them to one of the briefs in the unreported case which cited other related caselaw. Having found the brief, they could then enter the docket number on PACER to determine whether a decision issued (which it had in this case). This is the first time that this has ever happened to me; generally, I’m a sufficiently thorough researcher that I never miss a case.

My point here is that even as free services launch, the premium legal services still continue to improve. So the gap still remains between legal research haves and have-nots. And just when I think that the gap is closing and perhaps the WEXIS duopoly has been cracked, it turns out that the fee services have added some other bell or whistle to keep an edge.

3. Who’s really in danger here?

As I see it, Google’s free legal research services won’t put a dent in LEXIS or Westlaw, at least not for a long, long time, Instead, they pose a threat to what I’ve collectively termed the “second city” providers like Versuslaw, Casemaker, FastCase or Loislaw. Right now, most lawyers are able to access those services for free or cheap through deals with the bars – but will bars continue to support those subscriptions when there’s a robust free option available? My heart goes out to these companies because they served as an oasis for solos when no other options, save the law library and manual research, existed. Yet I don’t see all of them able to survive the Google onslaught.

4. Still, consider the possibility…

So even though I don’t see much changing anytime soon, I am excited about the possibility of free caselaw online via Google including:

–Comment Section: What if users had the ability to comment on the analysis in cases, just like commenting at a blog? The collected comments would help users better understand the case and perhaps view it in a new light.

–Private, customized databases: LEXIS and Westlaw claim copyright over cases with “value add” headnotes and links and further fortify against bulk downloads with clickwrap licenses. (In fact, it’s these protections that shut down a completely free service that was launched in 2000 (I can’t remember the name); the developers had purchased a LEXIS subscription and moved the cases wholesale into their free data base). No such prohibition exists for Google’s data base, so users can download cases related to certain areas of law (cases download easily as PDF; they look terrific), tag and categorize them and set up private libraries for themelves and clients.

–Sponsored caselaw: OK, I know that the anti-marketing cabal will let me have it for this suggestion (and maybe I deserve it), but the ability to sponsor cases seems like a neat idea. I’m not talking about tasteless, screaming ads, but maybe something along the lines of an adopt-a-highway sign or badge. Lawyers could sponsor their own caselaw as well as pivotal cases in their practice areas.

5. What’s next?

Yes, I’m ecstatic that the public who pays for the law can now have free access. But what about us lawyers? I’m governed by state ethics decisions, yet here in Maryland I can’t access them unless I fork over $200 a year to join a voluntary bar association. Hey Google – why not get the state ethics opinions online next? Legal Informatics has some other suggestions on other information that Google can add moving forward.

I’m eager to hear your impressions of Google’s free service. Please post them below.

Related posts: Rick Klau, Law on My Phone, Ernie the Attorney, Techno Esquire, Gene Lee at California Labor Law, Resource Shelf, Jim Calloway (also noting free online text search of journal articles launched by ABA). While I agree with Lawyer Market that free legal research will make going solo easier, I don’t think that free legal research is going push lawyers on the fence about solo practice over to the other side. Also, see Lex Disrputis for more interesting predictions.

LEXIS Responds To Earlier Post

Carolyn Elefant — Mon, 09 Nov 2009 14:29:48 +0000

A representative from LEXIS responded to my earlier post,LEXIS, You Could Have Had Us Solos At Hello Unfortunately, I have been experiencing some serious problems with the comments feature of my blog and as a result, have missed many comments. I would never, ever not post a comment to a site, even if it is critical; any delays are usually a result of problems with the comments feature or my busy schedule.

Because LEXIS sent a response two weeks ago, I am choosing to feature it in the body of this post below:

A very persuasive post with some very good points/criticism. I wanted to let you know that a number of us at LexisNexis are reading and even working on many of the issues you correctly cite.But I also wanted to respond to your post with some corrections and additional information.

First, I need to provide a couple of corrections because despite our effort there were a few factual errors in the Forbes.com article:
- the new TV campaign is actually the second campaign we have launched. We have been on TV (in a small way) for about a year now
- even though we are always trying to promote LexisNexis, the real aim of the TV commercial is to promote Lawyers.com as a lead-generation source for our subscribing attorneys
- Forbes unfortunately only quoted our SEM (pay per click) prices and not our subscription pricing. This made us seem unfairly expensive to a small law firm. In fact, our prices for subscription to Lawyers.com start as low as $50/month for a solo attorney and scale with the size of the law firm, the extent of advertising and whether we are also building the web site or delivering an SEO campaign but at the intro level, we believe our pricing is very reasonable.

At Lawyers.com, our primary job is to bring consumers and lawyers together and our purpose for being on TV is to reach consumers. Our message to attorneys is that with over 2 mil consumer visitors per month, we are delivering significant value and leads. The new TV ad with our objectives explained can be found at www.youtube.com/user/Lawyersdotcom

Your post, however, represents a very important (and widely held) opinion that we could and should do more for solo/small law firms. We understand and are working on addressing these needs.

Your comments were aimed mainly at the research side of our business and while I am in our marketing group, I know our research group will be bringing simple solo and small law packages to market later this year. These packages of research and marketing are aimed directly at the solo and small law firm – a group that we probably have not done enough to help.

Within our Lawyers.com group we have introduced small law packages and even pay for performance pricing for those firms that want to directly link marketing spend with real results.

You are raising very important and entrenched market attitudes. You may see us as late but I wanted you and your readers to know that we are listening, working hard to adapt to market needs and particularly to do a better job of assisting the solo/small law firm.

Your criticisms are on point and fair but I hope you will give us a chance to change your mind – even if in a small way.

thank you -
Dave Danielson
VP Small Law Marketing Solutions
Lawyers.com/LexisNexis

LEXIS, You Could Have Had Us Solos at Hello

Carolyn Elefant — Tue, 27 Oct 2009 11:52:02 +0000

On the surface, this article about Lawyers.com‘s upcoming television ad campaign, which is intended to attract more consumers to its site, seems like nothing more than business as usual in a down economy. But there’s far more to it than that. The Lawyers.com television strategy is both a reminder of lost opportunity by Reed-Elsevier (parent company to Lawyers.com and Lexis-Nexis) to gain footing in the solo and small firm as well as a lesson of how many companies seeking to serve solo and small law firms miss the mark with their offerings.

Ten years ago when Lexis and Westlaw were essentially the only online legal research tools in town, either company could have tapped into, and indeed dominated the solo and small firm market with reasonably priced research offerings. In fact, Lexis even took a stab at trying to lure solos with its free LexisOne service, which essentially slapped Lexis’ boolean search interface onto a Supreme Court, federal appeals and state appellate court data base, with caselaw dating back ten years. The LexisOne service doesn’t offer any cases that aren’t already readily available online for free, but the search engine made it easier to locate those cases. But LexisOne never took its service any farther than that.

Nor did Lexis or Westlaw attempt to develop research products with price points affordable to solos and small firms. When I started my practice in 1993, I couldn’t find an online research provider less expensive than $600/month – and that was for a limited number of searches. By 1996, when courts began releasing opinions online at no cost, Lexis and Westlaw reduced their prices to some extent, but still not to a point where they could serve as affordable options for solos. Moreover, though these companies paid thousands of dollars to support the ABA and state bars, never once did the companies or the bar associations ever think about using that cash to offer reduced rate services to solos and small firms. All of this left the door wide open for companies like Versuslaw, LoisLaw, Fastcase and CaseMaker to storm the solo and small firm market with affordable research products for solos. Unfortunately, none of these companies offer cite check or Shepards, but aside from that, they’re good enough for many solo and small firm needs.

And so now, ten years late and with the economy in the toilet, companies like Lexis, that once turned up their nose at solo and small firm business, are eying this market once again. And how does Reed Elsevier propose to capture it? Not by offering new reasonably priced services or allowing solo and small firms to purchase unbundled Shepards or cite-checking. That would be too easy.

Instead, as Forbes reports, Lawyers.com (also a Reed Elsiever holding) has concocted a television ad campaign designed to raise brand awareness and draw more consumers to the site to generate more business for lawyers. Lawyers.com is betting that its $15 million television campaign will help revive the lagging directory, which has fallen victim to competition from search engines and social media tools that allow clients to search for lawyers without a middleman site like Lawyers.com. But the company also has an ulterior motive: it hopes that by generating more business for law firms, attorneys will "return the favor" by subscribing to LexisNexis.

Simply put, Lawyers.com is going to charge solo and small firms between $160 and $60,000 per month (the rates cited in Forbes) so that solos can get more clients through Lawyers.com’s television ad campaign in which case they’ll be able to afford to purchase Lexis’ exorbitantly priced service. Sounds like a great deal, huh?

What’s sad is the a company like Lexis or Westlaw could have had us solo and small firm lawyers ten years ago. If they’d offered affordable services with basics like cite checking and Shepards at a reasonable price, solos and small firms would have come running. Instead, they squandered the opportunity to reach out, and now may have lost it completely. Ham-handed schemes aren’t going to draw solo and small firm lawyers to these companies that abandoned us for years. Sound, affordable and sensible products will. It’s really that simple.