Category: Law Office Management

Law Firm Business Development Must Mature in an Increasingly Competitive Market

Featured Business of Law Blogger this week at the National Law Review is Angela Spall of Williams Mullen.  Angela provides some great specific points about business development for law firms during these trying economic times. 

The legal profession continues to find itself in increasingly competitive markets.  The focus on business development has by necessity sharpened.  The key to a successful business development program in a law firm is to provide lawyers with the best possible competitive advantage in a highly competitive marketplace.

Vital components in building a successful business development program encompass the following:

Business development professionals, in a fully supported marketing department, must be as focused as the lawyers they serve and experts on the practice areas and industries they are assigned.  Credibility will be a key factor in working successfully with lawyers. The following are the recommended requirements for an effective business development professional:

  • Assigned to practice areas and industries where they must become experts.
  • Conduct comprehensive research to identify challenges and opportunities within a client entity, an industry or a target prospect.
  • Support and coach their lawyers in business development techniques.
  • Understand the sales process and most likely have had a background in sales or sales support.
  • Regularly engage in client feedback or end-of-matter interviews.
  • Regularly present proactive ideas to practice and industry groups.
  • They must be in an integral strategic role in all business development activities working alongside the lawyers they support.

Teamwork is vital in successful business development in law firms.  Business development professionals and lawyers must work together in client and industry teams for successful results. Teamwork must be rewarded and compensation systems must take into account the whole team that brought the business in or expanded a client relationship.  Encouraging teamwork ensures all levels of expertise and skills are used effectively and rewarded accordingly.

Keep your targets organized. Targets, whether they are prospects or clients, must be worked across the board. Use technology to access and store information on targets and clients and their industries so that it is readily available 24/7.  Opportunities can happen at any time.  In business development, making your own luck by being prepared and ready to act quickly without too many prior meetings or discussions, is imperative.  A window of opportunity can be jumped through by a competitor and can close quickly.

Clients will always be THE top priority.  Clients want all the things that clients or customers in any industry want: value for their dollar.  Providing value is more about results than it is about cost; it is more about knowledge, expertise, and trusting relationships.  Clients are the number one business development source and law firms must be competitive in how services are offered and delivered to their clients.  Expanding client relationships is still an under-utilized business development action.  Client feedback and end-of-matter interviews are a necessity.

It has been said that many law firms succeed despite themselves.  But, after a deep recession and the economy experiencing a slow recovery, it is time for law firms to invest in key areas to be competitive.  You will need technology to help streamline the business development process.  You will need to invest in qualified and experienced individuals, attorneys and non-attorneys alike to be successful. These areas of investment include:

  • Installing technologies such as Contact Relationship Management (CRM) and Email Relationship Management (ERM) and the newer add on tools that assist lawyers and business development professionals in providing ways to organize and utilize client and target contact information.
  • Research software that can quickly access business information of all kinds to pull together business and industry information.
  • Motivate lawyers and practice and industry teams by investing in appropriate reward systems through innovative approaches to compensation programs.
  • Ongoing training for lawyers and staff in business development, client service, technologies, the business of law, etc. Effective business development techniques can be learned.  While innate skills are highly valued, training lawyers in business development at an early point in their careers will benefit the firm in the long term.
  • Invest in people by hiring the best qualified and providing them the tools to be effective in their responsibilities.

And finally, and this has been said and written time after time by so many other marketing professionals, business development professionals must encourage their lawyers to accept and embrace business development as an essential part of their professional lives. No other time in the last 20 years has it been so critical to take care of your clients, participate in activities that get you in front of clients and prospects, take care of reputation management, and becoming known in your communities through building practice expertise and volunteering time in community organizations.  These activities will pay off.

Originally published in the Fall 2010 issue of LMA Practice Marketing Newsletter Copyright 2010 Legal Marketing Association –The Virginias Chapter

©2010 LMA Virginias. All rights reserved.

eDiscovery & Social Media

The National Law Review’s featured guest blogger last week was Meredith L. Williams of  Baker Donelson provides some great insight on discovery issues related to social media sites: 

Social media is not going anywhere, so we must learn to live with it and use it to our advantage and within the confines of the newly articulated and always changing rules.  If ever a doubt, one can look to the Nielson Report (“What Americans Do Online: Social Media and Games Dominate Activity,” Aug. 2, 2010) that states two-thirds of the internet population utilize social media sites.  Internet users now spend more than 10% of their online time on social media sites, and usage is constantly increasing.  With this rise in social media usage, the issues surrounding ediscovery in the realm of social media data is an important consideration of litigation.

The definition of legal discovery is locating all documents that are relevant to support the litigation.  But how does ediscovery work when the content is not owned or controlled by the business? How does a business preserve data that is outside of its firewall? Finally, how does one seek relevant information held on social media sites?

Social media sites are not like email or word processing documents when it comes to preservation. These sites are operated outside of a business’s firewall by a third party. Data is normally scattered on many sites and connected by many people or custodians.  Finally, the retention policy or schedule of a business does not affect data located on social media sites.   When a business maintains social media pages, it has a duty to preserve the data that may be relevant in anticipated or actual litigation.

Seeking information from social media sites can be difficult at best.  Many times discovery of this data must be gained through consent or authorization of a third party, which only causes an extra, and often expensive, burden.  Each third party is different in how it maintains the data, and each has the right to delete any content for violation of its terms of use policy, at any time. That deleted information could be relevant to litigation.

Unfortunately for businesses, the courts are only beginning to outline the duty of preservation and the right to discover the information from social media sites.  The best line of defense for many businesses is to develop internal policies and training programs to educate all employees of the risks of using social media.  In addition, new software now exists that can aid in preserving data.

Duty to Preserve

The 2006 Federal Rules of Civil Procedure amendments changed the discovery rules to allow a party to request “electronically stored information” within the “possession, custody, or control” of the responding party.  A duty to preserve potentially relevant evidence exists when litigation is “reasonably anticipated.”  In addition, parties who fail to preserve electronically stored information (ESI) are subject to penalties. Social media data fits the definition of ESI; thus, businesses must deal with the issue of preserving and possibly producing social media data that falls under their data retention policy.

Due to the fact that social media sites are owned and controlled by third parties, vendors are beginning to develop technology to capture dynamic web pages for preservation.  The first few companies in this market include Iterasi, Smarsh, Arkovi and LiveOffice.  Additionally, Adobe may be used to capture web images in static format.  These are but a few examples of new technologies that businesses are considering to meet their duty to preserve and produce ESI.

Recent Case Law

Additional issues remain – whether the information on social media sites is considered private, whether it is discoverable and whether it is admissible as evidence.  Recent case law has addressed these as yet unanswered issues.

In Guest v. Leis, 255 F.3d 325 (6th Cir. 2001), the court held that there is a lack of expectation of privacy regarding public postings on social media sites.  The user has the right to select privacy preferences on his social media sites.  Certain settings allow the public to see limited information and authorized, connected individuals to have greater access. In addition, many social media site privacy policies specifically state that certain postings are subject to a weakened privacy expectation.  Courts have generally held that when a user makes information available publically via their privacy settings, there is a lower expectation of privacy and, therefore, the information is discoverable.

Jumping ahead to the current year, we find EEOC v. Simply Storage Mgmt., LLC, No. 1:09-cv-1223-WTL-DML (S.D. Ind. May 11, 2010).  In this case, the court compelled production of relevant content from social media sites.  The court discussed discovery of social media site data as simply “requir[ing] the application of basic discovery principles in a novel context.”  The facts of Simply Storage Mgmt, involved the defendant seeking production of social media site profiles and communications from Facebook and MySpace.  The court ordered the plaintiff to produce the content that was relevant to the case.  The plaintiff argued that requiring such production would infringe on his privacy.  However, the court held that the expectation of privacy is not a basis for shielding discovery.  In addition, the court found that any privacy concern therein was lessened due to the fact the information had already been shared.

Earlier this year, Crispin v. Audigier (C.D. Cal.) (May 26, 2010), brought us a new ruling regarding social media and the Stored Communications Act (SCA).  In this case, the court was reluctant to allow discovery of private social media email communications.   The case involved a copyright infringement claim.  Audigier subpoenas the private social media messages of Crispin.  A magistrate judge disagreed with Crispin’s arguments that these communications fell under the SCA, preventing the provider of the messaging service from releasing private communications, because the social media sites messaging services are used solely for public display.  However, the district court reversed the ruling, holding that Facebook and MySpace allow private message or e-mail services which are separate from the general public posting.  This case held that the SCA protects Facebook and MySpace messages that aren’t publicly available.  Therefore, these messages cannot be subpoenaed in civil litigation.  In addition, the court left the door open for further clarification, noting that “Facebook wall postings and the MySpace comments are not strictly ‘public,’ but are accessible only to those users plaintiff selects.”

On the other side of the country, we find a slightly different ruling with Romano v. Steelcase Inc., 2010 WL 3703242 (N.Y. Sup. Ct. Sept. 21, 2010).  TheRomanocourt allowed discovery of an entire social media site with all current and deleted postings.  The court ordered the plaintiff to provide the defendant with access to private postings from two social media sites. The court reasoned that information contradicting the plaintiff’s claims was included on the public sections of the plaintiff’s social media site and, therefore, it was reasonable to believe that the private sections might contain additional relevant information. The court even cited Facebook and MySpace policies, which warn users they should have “no expectation of privacy.”

Even if one is able to surmount the difficult hurtle of obtaining data from a social media site, an equally daunting challenge remains – getting the data admitted.  The main issue with admissibility is authenticity; spam, viruses, hackers and the like make social media sites susceptible to manipulation or fraud.   For this reason, courts have consistently been cautious when admitting social media data. In some cases, judges have become online “friends” with a party in order to authenticate postings, photos, captions and comments. (Barnes v. CUS Nashville, LLC).  Other courts have allowed printed copies with time date stamps to corroborate facts. (Treat v. Tom Kelley Buick Pontiac GMC, Inc.). Finally, some courts have used circumstantial evidence associated with the creation of the data (i.e. metadata and hash tags) to authenticate social media content.  (Lorraine v. Markel Am. Insur. Co.).  Admissability remains  an area of concern as the use of social media data in discovery becomes the norm.

Discovery of Social Media Data

A lawyer must decide early on whether relevant information exists on social media sites.  Within that evaluation, the costs to preserve, collect, review and produce the social media information should be considered.

Start discovery of social media by conducting large sweeping web searches for public social media sites of adverse parties or adverse witnesses.  Many individuals do not lock profiles or use privacy settings; therefore,  all postings, messages, comments, etc. are open to the public.  Preserve the sites with date stamps.

If an individual’s social media sites are set to private, and, therefore, not open to the public, what can a lawyer do?  Many boards of ethics do not allow lawyers to “friend” anyone to gain access to private profiles of information (NY State Bar Association Ethics Opinion 843 (Sept. 10, 2010)). So, instead of friending an individual, use discovery requests.  Start with a document request asking for all postings and messages that are related to and relevant in the litigation.  One can also consider requesting an access wavier to social media sites that allow for complete access to the site.  LinkedIn has a standard wavier located on its site. Finally, ask for all social media identifications used by the adverse party in an interrogatory.  Regardless of what direction taken, social media should be a part of the ediscovery process.

Conclusion

In conclusion, a business should take inventory of what social media sites are being used within the organization.  Then, set policies to help educate all employees of the risks regarding social media usage.  Finally, decide if backup software is needed to help with preservation and production of the business’s own social media data.  Regardless of retention schedule taken with social media, plan to always show the court that you’ve done your best, which is all that is expected.

For lawyers, be prepared to incorporate social media into an edisovery plan.  Start early within the litigation.  Draft standard document requests, waiver forms or interogatories around social media production.  Finally, be aware of the changing legal landscape on privacy, discoverability and admissibility, as these areas will continue to change, more and more rapidly in the future.

©2010 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC. All Rights Reserved.

Legal and Risk Management Implications of Cloud Computing

We’ve been seeing a whole bunch of things at the National Law Review about the legal risks and risk management issues related to cloud computing.  Accordingly, we’d like to share some of the better articles we’ve come across on the NLR and on Twitter…

For an Overview of What Cloud Computing or SaaS is and the Advantages and Disadvantages for Businesses, Especially Law Firms…..

Are You Ready For the Cloud? from Baker Donelson

Lawyers Should Not Be Wary of SaaS and Cloud Computing by Niki Black of Lawyerist.com

What Cloud Computing Really Means from InfoWorld.com

What Lies Ahead? Business and Legal Issues in the Coming Decade from Much Shelist

For Risk Management and Legal Considerations Related to Cloud Computing or SaaS…..

The Cloud and Your Data from Risk Management

The Legal Issues Around Cloud Computing by Amit Agarwal of Digital Inspiration

Privacy and Information Security for Emerging Businesses by Poyner Spruill

For Specific Things to Consider When Choosing a Cloud Computing Provider….

Putting Cloud Data Storage Providers to the Test by Risk Management

7 Questions For Any Cloud Based Service from the Legal Typist, Inc.

How to Evaluate Cloud Computing Providers by Jason Baker – Data Center Knowledge

Copyright ©2010 National Law Forum, LLC

You've Got Mail (and a Lawsuit): Mobile Communication Devices and the Wage and Hour Pitfalls they Present

From the National Law Review’s guest bloggers at Steptoe & Johnson PLLC – Thomas S. Kleeh provides more details on both the opportunities and the headaches for employers that smartphones provide: 

These days, it’s hard to imagine life without some form of mobile communication device attached to our ear, hip, or thumbs.  Blackberries, iPhones, Droids and the like are as much a required fashion accessory as a productivity tool nowadays.  As such, employees have long since abandoned the traditional complaints about being issued employer-required “cell phones.”  The texts, social networking, games and other apps — not to mention the distraction a properly loaded smartphone can provide for a fussy child in the backseat — make the “constant contact” with the office bearable.

However, that “constant contact” can lead to headaches for employers.  A variety of potential liability sources lurk around the corner after employees are issued mobile communication devices.  An easy example is the personal injury lawsuit that often follows when an employee negligently texts or talks on a phone while driving.  Another often overlooked concern, however, can be found in the wage and hour venue.

One of the best aspects of this era of Blackberries and iPhones is the instant communication it provides, allowing simple questions and responses to be dispatched with a few clicks of the thumbs.  But what if the person on the other end of that email, instant message, or text is a non-exempt employee entitled to overtime compensation for any and all hours worked beyond 40, or an exempt employee who otherwise performed no work during the workweek?  In those cases, each short email or text might eventually be costly.

Non-exempt employees who are required to carry a mobile communication device as part of their job duties and who use the device for job-related matters during non-work hours are arguably entitled to compensation for that time.  A City of Chicago police officer recently filed a purported class action lawsuit making that very claim.  Similarly, exempt employees who perform no work during a workweek generally are not entitled to receive pay for that workweek; but if an exempt employee is required to check e-mail during the workweek, that electronic activity might constitute working time, thus entitling the employee to receive his or her salary for the entire week.  Resolving litigation involving wage and hour claims (voluntarily through settlement or involuntarily at the hands of a jury) can be very expensive with liquidated damages and attorney’s fees at stake in addition to any unpaid wages.  Plus, the “paper” trail created through the email or text traffic can make a litigious employee’s claims easy to prove.

What can employers do?  One option includes establishing a policy prohibiting employees from using mobile communication devices for work purposes while off-duty.  (Of course, if an employee violates that policy, the time spent working must be compensated, but the offending employee can be disciplined for violating the policy).  Another (dreaded) option is to recall all those employer-issued fashion accessories – no matter how fussy employees’ children might get.  Regardless, employees’ use of their smartphones for work purposes needs to be on Human Resources’ and Risk Management’s radar.

© 2010 Steptoe & Johnson PLLC All Rights Reserved

Law Firms Guarantee your ROI When Hiring an Interpreter

The National Law Review’s Business of Law Guest Blogger is Maria Cristina de la Vega who provides some great insight for legal professionals  on what to look for when hiring an interpreter. 

Interpreting/translating is a relatively young industry in the U.S. and it is currently unregulated.  Interpreters are not legally required to have an accreditation unless they are hired directly by the court system and are being paid with taxpayer dollars. Because it is relatively easy for a bilingual individual to hang out his shingle, the consumer, especially attorneys, need to know what to look for in a language professional to ensure that interpreted testimony faithfully follows the source language. Most cases rely heavily on testimony to decipher the facts at issue and to form an understanding of a witness’s credibility and motivation.  A misinterpretation or a nuance that is not conveyed properly can impact the outcome of a case.  To avoid this from happening, ask your language provider for his/her credentials.

Whereas an interpreter is bilingual, a bilingual individual is not necessarily an interpreter.  It is one thing to speak two or more languages, but quite another to be able to professionally interpret from and into those languages.  This fact may not be apparent in casual conversation and may not become evident unless the attorneys and/or parties involved speak both languages, know the specific terms used in the case and are able to recognize them.  In some situations, those listening may not speak one of the languages well enough to judge the quality of the interpretation.  Attorneys and clients in general are not set up to screen language providers to verify their proficiency, nor should they have to.  The best way to do this is to retain the services of an established agency or Language Services Provider (LSP).  The best ones to partner with are those that have experience in the industry, that source their interpreters from existing professionals and from reputable university-level language programs, that require accreditation from the interpreters they employ even if it is not yet mandatory, and that regularly strive to develop their personnel through continuing education.    These firms make sure that the interpreters they send you have the training and credentials to carry out your assignments at a specialized level. Available 24 hours a day 7 days a week to schedule interpreters for you anywhere in the U.S. as well as abroad, they can also provide you with written translations as well as certified linguists to render expert witness testimony on language issues.

What credentials should an interpreter have?

When an attorney needs an interpreter for a legal proceeding, he should first verify whether the interpreter holds an accredited certification, assuming there is one for the needed language combination. In the United States, there are several certification programs. The most common is the standardized interpreting examination offered by the Consortium for Language Access in the Courts at the National Center for State Courts.  There is also the Federal Court Interpreter Certification Exam which is currently being offered only in Spanish.  The National Association of Judiciary Interpreters and Translators (NAJIT) offers another certification, as does the State Department.

If the candidate in question has the required proficiency as indicated by a recognized certification, some of the main skills he should possess and which are acquired from experience are: sight translation, a trained memory supported by note-taking skills to render testimony faithfully, a knowledge of specialized terminology, colloquialisms and slang in order to interpret in the correct register, and how to control the speed at which the attorney and the witnesses speak, if necessary, in order to have the opportunity to accurately interpret everything that is being said. It is difficult to interrupt witnesses giving testimony laden with emotions so it is critically important to have a professional interpreter that can render long statements, doing the interpretation.

Another useful indicator of the interpreter’s professionalism is membership in an industry association such as NAJIT or ATA  (American Translators Association) that have Codes of Ethics governing the profession that members must adhere to.  In addition, these organizations keep members abreast of developments in the field.

How to work with an interpreter

It is equally important for attorneys to know how to work properly with an interpreter. Unfortunately, interpreters are sometimes considered a necessary evil that must be borne and many attorneys subscribe to the myth that, because you are an “interpreter,” you are a walking dictionary who is able to communicate any terminology, notwithstanding the level of complexity, into another language.  Interpreters regularly work in diverse settings for widely differing industries and yet we are not specialists in these industries to the degree that our clients are. Hence, it is important when dealing with complex and/or technically challenging cases, that the interpreter be given an opportunity and sufficient time to acquaint himself, at a minimum, with the pleadings in the case and with any pertinent documents or prior testimony that will be discussed at the proceeding for which he is being scheduled. This is so that we may prepare a bilingual glossary of specialized terms to study, which will result in a more polished, professional interpretation.  In addition to our responsibility as officers of the court not to discuss the cases we work on, we also stand ready to sign confidentiality agreements to assuage any fears regarding sharing of information. To avoid unforeseen difficulties, the scheduling coordinators of established LSPs regularly ask how long proceedings are expected to take and what sort of testimony will be presented to ascertain who the best interpreter is for the assignment, based on experience, and whether he will have to study, for example, dedicated medical terminology or engineering language, among many possible specialties. Whenever possible, book services well ahead of time as good interpreters are in high demand. Check the reputation of the LSP in language-dedicated sites such as Proz.com or ask your colleagues in the legal community about their dealings with the firm being considered.

Guidelines to Working with an Interpreter

  • Ascertain the interpreter’s credentials
  • When relevant, give the interpreter case documents to prepare
  • Verify whether team interpreting is required
  • Address witnesses with direct speech as if the interpreter were not present.

Other useful tips to keep in mind are to use direct speech when using the services of an interpreter.  Address the witness in the first person, as if there were no interpreter present, to safeguard the integrity of the transcript.  Avoid using proverbs i.e. “Where there’s smoke there’s fire” because although it may translate, there may be no direct translation, or worse yet, there may be another cultural equivalent to the sense behind the saying and the witness could end up giving an answer that is framed in very different terms from what you asked.  Furthermore, you would be adding unnecessary stress to the interpreter’s job by asking him to do mental gymnastics  in a matter of seconds to come up with a viable interpretation of an artistic/literary term  When working with consecutive interpretation (speech followed by a pause to allow for interpretation), attorneys and witnesses should pause when a complete thought or phrase has been rendered.  The speech should not be so short that the sense is unintelligible nor so long that the interpreter cannot possibly remember it to give an accurate interpretation.  An experienced interpreter will quickly establish the required rhythm among the parties involved in the taking of testimony so that the process will be smooth.  It is important that only one person speak at a time for the same reason that a court reporter requires it, so that both the full question as well as all testimony is interpreted and taken down.

The length of time involved in an interpreted proceeding brings up another key point that is often overlooked, which is interpreter fatigue.  According to a NAJIT position paper on the topic,http://www.najit.org/documents/Team_Interpreting.pdf,team interpreting “should be used for lengthy proceedings as a quality control mechanism to preserve the accuracy of the interpretation.”  The way this works is that two interpreters substitute one another approximately every half hour.  It has been found in scientific studies, among which is one at the University of Geneva in 1998, that after a certain amount of time working, an interpreter reaches a saturation point as mental circuits become overloaded and this condition leads to errors.[1]

If the interpreter is going to be interpreting a proceeding simultaneously to the witnesses rather than interpreting from the witness stand, it is important that the interpreter be located in a position to properly hear and have visual contact with the parties speaking.  Sound equipment (earphones, a microphone and a transmitter) should preferably be used to interpret the event, transmitting to receivers worn by the parties requiring the interpretation. That way, the interpreter can avoid the additional stress, inconvenience and disruption caused by having to stand close to one or more individuals to whisper an interpretation of what is going on. Many courts have this equipment installed in their courtrooms; otherwise, the LSP can be asked to have the interpreter bring a portable system.  LSPs always have units available for their interpreters to use.

If the language at issue is not one for which there are interpreters readily available in your area or there are many dialects of the language, it is advisable that the interpreter selected speak with the witness in advance to ensure that they can understand one another well.  Lastly, explain to the witnesses the role of the interpreter.  That the interpreter is a neutral party and an officer of the court.  That witnesses cannot have private conversations with him while they are testifying, That they should expect that the interpreter will render everything said to him on the stand into the language of the Court (English) but in turn, the interpreter will keep any information gained in the course of his work outside of court, confidential. Parties/witnesses should also know that the interpreter is bound to report any ethical breaches to the appropriate authorities.

Awareness and adherence to these simple guidelines will go a long way towards making sure that you have a positive, productive experience every time you retain the services of an LSP. NAJIT has formed a working group entitled the Bench and Bar Committee to disseminate this information among the judiciary and practicing attorneys. Our objective as interpreters is to be an asset to attorneys in assisting you to present testimony in a seamless, professional manner that you can depend on.

[1] Moser-Mercer, B., Kunzli, B., and Korac, M., 1998  “Prolonged turns in interpreting: Effects on quality, physiological and psychological stress.” University of Geneva, École de Traduction et d’ Interprétation. Interpreting,Vol. 3 (1), p. 47-64. John Benjamin Publishing Co.

 

© 2010 ProTranslating, Inc. All Rights Reserved.

About the Author:

Maria Cristina de la Vega holds an M.B.A. and has more than 35 years of experience in court interpreting.  She is a federally certified Spanish interpreter and is also certified by the State of Florida in that capacity. She is a regular contributor to publications that deal with language issues and she is a member of the Bench & Bar Committee of the National Association of Judiciary Interpreters and Translators (NAJIT).  Ms. De la Vega  has done work for prominent law firms including Greenberg Traurig and Holland and Knight.  ProTranslating provides interpreting, translation services and linguistic solutions to individuals, law firms, and corporations worldwide. It offers a team of more than 100 qualified in-house linguists and a worldwide network of another 3,000 freelancers working in more than 100 languages. 888-532-7887 /www.protranslating.com

Are You Ready For the Cloud?

Meredith L. Williams of Baker Donelson is the National Law Review’s Business of Law Featured blogger.  Meredith discusses the pros and cons of cloud computing for law office operations. 

Introduction

Is cloud computing a shift or is it the next natural step in strategic business development?  Is the cloud  the right answer for your law firm or company?  Is the cloud the right answer for all applications and infrastructure or is it just a piece of the puzzle?  These are a just few of the many questions law firms and companies are asking themselves as they consider a move to the cloud.  There are many reasons why cloud computing is a very seductive solution to the cost cutting environment we find ourselves dealing with today.  However, there are many issues, legal and organizational, that must be considered to determine the validity of the cloud for each environment.

The “cloud” means different things to different people.  For most of us, we have been using cloud computing technology for years without defining the term.  Example cloud environments are extranets, legal research websites, online file storage and much more.  By definition, the cloud is a metaphor  referring to internet based computing in which applications, data, software or network functions are stored on remote servers.  There are presently three types of cloud environments:

  1. Infrastructure as a service or hardware cloud which serves as a data center,
  2. Software as a service or the software cloud, and
  3. Desktop applications operated within a hardware cloud.

Although we have been using the cloud in the past, the difference at this time is the potential of using the cloud for core business applications.

Why the Cloud?

For strategic business leaders, the cloud offers a way to minimize cost, increase mobility, prepare for disaster recovery, offer device flexibility, collaborate on demand and reduce downtime. Let us take a look at the different sections of a law firm and see how the cloud can affect the overall business functions.

In the information management world collaboration is key.  The more a firm can offer needed collaboration tools with a client, the more the client becomes entrenched in that firm culture.  The cloud provides law firms with a unique opportunity to offer clients a collaborative environment in an on-demand system.  The client can truly be connected with the law firm from anywhere with any device in the world.

Fewer applications or errors and easier upgrades are phrases application and support specialists love to hear.  The cloud environment can make them a reality.  The cloud offers software functionality to users regardless of locality or device.  Therefore, fewer setups, downloads and support hours are spent dealing with application changes and upgrades.  This new environment aids a law firm in flexibility allowing the firm to change applications as rapidly as the needs of the users change.

The main concern of most in the applications world is support.  How do current structured IT staffs support an environment when the applications are not local?  What will be the skill set of an applications and desktop support staff individual with applications in the cloud? These are areas IT departments must address before making the move to the cloud.

The cloud offers business and cost savings in a very unique way.  The upfront costs of moving to the cloud are large.  However, over time the cost savings from increased efficiency and reduced hardware, software, support and downtime help to offset the upfront costs.  The biggest hurdle for cloud computing may not be cost but instead data security.  It is easy to argue that a law firm or company can protect its data when it lives in a server room on site with a locked door but how do IT departments protect their data when it sits thousands of miles away on servers not owned by the company?  Law firms will need to determine if this is a deal breaker or is this an area of contract negotiation with the cloud provider.

What are the contractual issues?

Now that we see the potential of cost savings, flexibility, mobility and more,  we will address the contractual issues and concerns each law firm will need to consider.  The first step in any contractual negotiation is due diligence of both parties.  Law firms must evaluate news, law suits, current events, financial stability, customer references, provider longevity and any other possible information that could affect the contractual obligation fulfillment.  Only then can the contract negations begin.

The largest areas of concern in the cloud are data security and privacy. A demonstration of these concerns is seen in the 2009 complaint filed with the Federal Trade Commission (FTC) by the Electronic Privacy Information Center (EPIC) regarding cloud services of Google.  In the complaint, EPIC alleges Google did not adequately safeguard the confidential information obtained from clients.  This complaint raises serious questions for the vendor to address and draft into the contract.  Questions to ask include where the data is stored, what are the physical security measures to protect the data, is a shared resource used in storage, what is the security during transmission, what are the disaster recovery measures and what are security incident response times. In addition, questions around data migration and transition should be addressed.

Another issue to consider is legal compliance.  Highly regulated industries such as health care facilities falling under HIPAA must think twice about moving information to the cloud.  Vendors are expected to maintain the data at the same standard required of the company.  This can become a contractual deal breaker if the vendor will not agree to the higher standards.   The regulated industries affect law firms that maintain work product and client information for clients working in these regulated industries.  Law firms must now consider the standards guaranteed to their clients when moving to the cloud and verify the vendor will agree to that level of maintenance.

A point that is only just beginning to emerge in the cloud discussion is the level of control and ownership of the servers and data existing on the servers.  Questions to consider are data termination and vendor claims and rights to the data.  The control influences discovery, liability and litigation hold processes.  Negotiation can help prevent future claims of spoliation.

Performance, reliability and service features shape the day to day experience of users in the cloud.  Therefore, inquiring about disaster recovery set up, scalability of applications, process for upgrades and feature releases, suspension of services, offline capabilities, base subscription services and add-on services of applications can affect the contract obligations of the vendor, expectations of the client and most importantly cost of the contract.

Global performance and legal compliance of data across international borders are concerns for many large law firms.  Is the vendor only offering a cloud solution that is U.S. based?  This is a discussion point for the contract and can possibly be a deal breaker when adhering to EU standards of compliance.

All of the above contract negotiation points lead to the largest decision, cost.  What is included in the cost of the cloud services?  What is not included?  And the final and most important question to ask, whether the move to the cloud is a benefit if the law firm already owns the software licenses and hardware to maintain the status quo.

What will the courts be deciding?

The courts are well aware of the cloud computing movement.  In Oregon v. Bellar, 217 P. 3d 1094 (Or. App. 2009), the court took note that 69% of U.S. residents that are online utilize at least one cloud site. Due to the unique custodial issues involved with cloud computing, the cloud can present challenges to e-discovery and jurisdictional questions. Decisions concerning these issues are just starting to appear but with conflicting rulings.  The question of what the courts will decided has yet to be seen.

What will the future bring?

As we stated earlier, many of us have been using the cloud for years without calling it the cloud.  The difference surrounds the movement of core business functions such as email and document management to the cloud.  In the past, these features have been kept at a local level.  But as you see above, this is changing.  As more and more cloud providers make their way to the forefront, this movement will only increase.  The question is whether the cloud is the right solution for your law firm?

©2010 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC. All Rights Reserved.

About the Author:

Meredith L. Williams is Baker Donelson’s Director of Knowledge Management.  Although trained as a lawyer, she is not actively engaged in the practice of law.  Instead, she oversees BakerNet, the Firm’s industry-leading intranet, and coordinates strategic growth on behalf of the Firm in knowledge management, competitive intelligence and technology.  Ms. Williams is widely recognized as a leading authority in knowledge management issues for the legal field, and is a frequent presenter and author on knowledge management and competitive intelligence. 901-577-2353 / www.BakerDonelson.com

 

 

Law Firms Should Syndicate Social Media for Maximum Results

From the National Law Review’s  Business of Law Featured blogger Margaret Grisdela of Legal Expert Connections  provides some nice specific things to do for attorneys getting started in social media: 

Attorneys who want to make time for social media among the competing demands of court deadlines, client meetings, and practice management can increase their online visibility with a few simple publishing techniques.

This article shows you how to create and implement a social media syndication plan that will increase your law firm’s Internet marketing visibility. Learn how you can develop and leverage your firm’s customized content to populate a broad range of social media outlets.

Common social media applications for lawyers include LinkedIn, Facebook, Twitter, and blogs. Broadly speaking, social media refers to any type of Internet and mobile-based tool for online networking, collaboration, and information sharing among web-based communities.

Getting Started With Social Media

Launching a social media campaign is actually quite simple. Signing up for LinkedIn, Twitter, and even a blog can be done in a few minutes. Momentum may quickly wane, however, when a busy attorney faces the on-going challenge of creating fresh content.

Start strategically by creating a 6-12 month editorial calendar. Let’s say you have an intellectual property law firm, encompassing several types of services. Pick one topic for each month.

Topics for three months of a calendar quarter could be: 1) copyright law; 2) patent protection; and 3) trademarks. Next, break each monthly topic down into four weekly supporting articles. For example, copyright law topics could be: a) fair use guidelines; b) protecting a copyright; c) international copyright issues; and d) negotiating licensing agreements.

Now that you have your calendar, you can start to write your articles in advance. Of course, the schedule can be interrupted or supplemented as needed to reflect breaking news.  Each blog post should be at least 250-300 words, including strategic use of keywords to attract visitors through search engine marketing. Writing for the web actually means writing for both Google and your actual site visitors.

Leverage your Social Media News Feed

Select one primary point of publication for your social media news feed. A blog works well for this purpose through the use of the “RSS” feed.  RSS is an acronym for “really simple syndication,” which means that your blog acts as a real-time news feed that can be used to distribute your content to other social media applications. Interested readers can also automatically subscribe to your blog using the RSS feed.

As a starting base, make sure all your social media accounts are properly set up and populated with a description of your law firm.

Plan to publish one main article from your editorial calendar to your blog at least once a week (more is better). It is fairly easy to use free services like HootSuite orNetVibes to then automatically transmit your blog posts to your Twitter, Facebook, and LinkedIn accounts. Alternatively, many social media services make it easy for you to automatically import blog posts by simply specifying the RSS feed within your profile.

You can easily extend your reach to multiple social media outlets without the need for additional time or effort when you leverage your original blog articles using these techniques.

Appoint a Social Media Manager

An essential ingredient in social media success is to put someone in charge of your campaign. Lawyers should be practicing law, so even the best laid plans for an attorney to manage a blog or other Internet marketing campaign will quickly fall to the wayside in the face of court and client demands. Look for a seasoned legal marketer with Internet marketing skills who understands the importance of complying with attorney advertising and other ethical guidelines to help manage your social media campaigns.

Business development through thought leadership marketing is a leading reason many attorneys are attracted to a blog and other social media services. The right legal marketing partner will understand strategic planning issues, the importance of keyword placement in blog posts, and the type of audience you wish to reach. They may even help you draft preliminary blog posts for your editing and publication.

Monitor Social Media Feedback

Social media is interactive, meaning that prospects and followers will comment on your posts and otherwise interact with your material. Prompt responses will make a favorable impression on your audience.  In addition to publishing fresh content regularly, you will want to watch for direct comments, republication (like “retweets”), and independent commentary. 

© Legal Expert Connections, Inc.

About the Author:

Margaret Grisdela is President of Legal Expert Connections, a national legal marketing agency serving law firms and litigation experts in the U.S. and internationally. She is the author of the legal marketing book “Courting Your Clients,” which presents a proprietary methodology for business development. An accompanying guide, the “Courting Your Clients Legal Marketing Playbook,” will be available to clients in November. Ms. Grisdela brings over 30 years of experience in marketing, publishing, and information technology to each engagement. She helps clients launch or expand successful practices in the legal field through integrated marketing programs including article placement, speaking, search engine optimized websites, publicity, and direct mail. A leader in professional organizations, she served as 2008 Co-Chair of the Legal Marketing Association South Florida City Group, and 2005 President of the Florida Direct Marketing Association. She holds a B.A. from Wayne State University and an MBA in Finance from The George Washington University. www.legalexpertconnections.com / 561-266-1030

Fast Track Mastership of Legal Social Media- One Day Seminar / Webinar Oct. 21st Washington DC

The National Law Review would like to make you aware of a one day seminar / webinar presented by MyLegal.com designed to help lawyers gain a fast track mastership of legal social media. 

“I don’t think it’s too late to embrace social networking, it just rather disappoints me that other professions use these technologies, and lawyers for some reason are always rather late to the party. I have little doubt that within five years, social media, social networking systems, will play a central role in the daily lives of lawyers.”  Richard Susskind, September 2010.

The conference will be held on Thursday, October 21, 2010, at the Georgetown University Hotel and Conference Center in Washington, D.C. The conference will sell out at 300 on-site participants, so we will be introducing to the legal community a new technology called SMASH.  This technology aggregates the video stream of the sessions, along with the tweets, blogs and photos related to the conference, in one convenient landing page, allowing off-site attendees to experience the conference in a unique and interactive way.

By following the conference Twitter conversation directly from the SMASH page, off-site attendees can join in the live conversation while simultaneously seeing the speaker and checking out the live conference photos.  These are interactions and connections that might not otherwise have been made. 

After the conference, registered users will have access to the video of the sessions, along with the speaker presentations.  The sessions will also be available via iTunes, allowing registered users to listen and learn while on the way to work, running errands or housework (ugh)!  Multi-tasking is King!  After listening to the sessions, users can continue the conversation and commentary online.

Conference speakers / topics scheduled to be included are:

Matthew Asbell, Esq., Certified Legal Social Media Strategist will speak on the use and protection of trademarks in social media marketing.

Nicole Black, Esq., founder of lawtechTalk.com and co-author of “Social Media for Lawyers: The Next Frontier” will speak on social media for lawyers.

Larry Bodine, Esq., legal marketing expert and author of the Lawmarketing Blog will speak on business development with LinkedIn.

Steve Crandall, J.D., expert in digital media and business applications of social networks will speak on social media and the law.

Adrian Dayton, Esq., author of “Social Media for Lawyers: Twitter Edition” and the “Legal Marketing: Social Media Edition” blog will speak on starting to bringing in business with social media

Carolyn Elefant, Esq., creator of MyShingle.com, the longest running blog on solo and small firm practice, and co-author of “Social Media for Lawyers: The Next Frontier” will speak on social media for lawyers.

Sharon Nelson, Esq., author of the electronic evidence blog “Ride the Lightning” and co-host of the ABA podcast series “The Digital Edge:  Lawyers and Technology” will speak on on social media: ethical, compliance, E-discovery and liability implications.

Conrad Saam, runs marketing for Avvo, where he oversees the firm’s SEM, SEO, social media, online marketing, email and web analytics initiatives will speak on getting the most out of Avvo.

John Simek, co-author of “The Electronic Evidence and Discovery Handbook: Forms, Checklists and Guidelines” and “Information Security for Lawyers and Law Firms” will speak on on social media: ethical, compliance, E-discovery and liability implications.

For more information, conference schedules and registration forms, please visit:  http://mylegalmedia.com or call 253-405-7910.

Powerful Prospecting Starts with a Plan

The Business of Law Featured Guest Blogger this week at the National Law Review is Margaret Grisdela of Legal Expert Connections.  Margaret provides some great, concrete ‘things to do’  for effective legal business development.  Read On:  

Social media is all the rage these days, and it is indeed an effective way to maintain high visibility in the legal marketplace. Social media is only one piece in the business development puzzle, however.

Rainmaking success works best with an integrated marketing plan. There are many communications channels available to build your prospect list, and finding the mix for your law practice will reward you with new business opportunities.

Here are the top seven proven lead generation techniques for legal marketing:

1.  Speak.

Addressing an audience of prospective clients is one of the best possible ways to demonstrate your legal knowledge. While most of your preparation will focus on the presentation itself, lead generation is accelerated when you make the time to promote the event in advance and then quickly follow up on all your leads after the event. Make a point to get a list of all audience members, even if you have to give something away in exchange for a business card.

2.  Publish.

Getting your name in print as an author essentially provides an independent third party endorsement of your legal expertise. A well written article in a highly regarded legal or trade publication will contribute to your business development efforts for years to come.

3.  Prioritize your referral network.

Most attorneys maintain an informal list of referral sources. Take this a step further by writing down your best 5-10 referral sources, and assigning a priority to each contact person. Schedule a meeting with your “A” sources every 30-45 days, your “B” sources every 60-90 days, and stay in touch with your “C” sources with less time-consuming methods like email or a phone call. Constantly work to refine your list to maximize performance, and remember to reciprocate with qualified leads for your referral partners.

4.  Market to current and past clients.

Your best source of new revenue in the short run is hidden in your client list. Stay in touch with clients at least 4-6 times per year through newsletters, client alerts, or events to increase retention rates, up-sell, and cross-sell.

5.  Maintain a prospect list.

Refine your “ideal client” profile to the point that you can compile a list of at least 25 key prospects, identified by firm name and contact person. Work this list diligently in a continual effort to move to the “next step” of gaining the client. Start by identifying a mutual acquaintance who might provide an introduction, or an organization where your prospect is active. Move from getting acquainted to building trust, assessing needs, suggesting solutions, demonstrating your value equation, and closing the deal. The entire process may take months or even years, so be patient but politely persistent.

6. Leverage organizational memberships.

Whether it’s a bar association or an industry organization, turn your memberships into new business through speaking opportunities, newsletter articles, webinars, or by serving on a committee that gives you access to decision makers.

7.  Internet marketing.

Your website bio page is a good starting point. Make sure it is current and provides a recent headshot. Next evaluate your website to confirm that it is easy to navigate, frequently refreshed, and structured for search engine visibility. Online legal directories abound. LinkedIn is an easy first step into the social media scene, followed by blogs. There are so many Internet marketing options that space simply does not permit full coverage.

A strategic attorney marketing plan can serve to tie all of your business development efforts together around a focused practice.

While all these marketing activities can seem like a juggling act, there are a few techniques that will streamline the process.

Create a marketing calendar that includes your desired frequency for each campaign. For example, you should try to speak at least 2-4 times per year. You may want to get published twice a year. By putting these goals on your calendar, they are easier to manage and achieve.

Take a few minutes to identify 3-5 newsworthy topics within your area of expertise. You can then incorporate these topics into all your marketing efforts, such as speaking, publishing, newsletters, blogs, social media, etc.

A database can be your best friend in recording and tracking your prospects, outreach efforts, and follow up dates. This can be a simple Excel file, Microsoft Outlook, or a more complex customer relationship management system.

© Legal Expert Connections, Inc.

About the Author:

Margaret Grisdela is President of Legal Expert Connections, a national legal marketing agency serving law firms and litigation experts in the U.S. and internationally. She is the author of the legal marketing book “Courting Your Clients,” which presents a proprietary methodology for business development. An accompanying guide, the “Courting Your Clients Legal Marketing Playbook,” will be available to clients in November. Ms. Grisdela brings over 30 years of experience in marketing, publishing, and information technology to each engagement. She helps clients launch or expand successful practices in the legal field through integrated marketing programs including article placement, speaking, search engine optimized websites, publicity, and direct mail. A leader in professional organizations, she served as 2008 Co-Chair of the Legal Marketing Association South Florida City Group, and 2005 President of the Florida Direct Marketing Association. She holds a B.A. from Wayne State University and an MBA in Finance from The George Washington University.  561-266-1030 / www.legalexpertconnections.com

 

 

Are Alternative Fee Arrangements (AFAs) the New Standard for Law Firms?

From the National Law Review’s Business of Law guest blogger, Meredith L. Williams of Baker Donelson Bearman Caldwell & Berkowitz, PC discusses the current legal marketing ‘it’ topic – alternative fee arrangements or AFAs.  Meredith provides a great historical perspective on this topic and goes into nice detail on how law firms should address this new hot issue.  Read on: 

The Supreme Court of the United States answered this question when they released the opinion for Perdue v. Kenny A. In this case, the Supreme Court rejected the statement “departures from the hourly billing are becoming more common.” In addition, the court noted “if hourly billing becomes unusual, an alternative to the lodestar method [hours worked times billing rate] may have to be found. However, neither the respondents nor their amici contend that that day has arrived.”

Are AFAs new?

Although the U.S. Supreme Court stated hourly billing is the usual practice, alternative fee arrangements remain a growing trend in law firms. From 2008-2010 law firms have seen an increase in AFAs from 4-16% (Source: CounselLink). However, the question remains are AFAs new or are they a natural evolution?

Alternative fee arrangements have existed for decades in many law firms. Examples include blended rates, contingency fees, fixed fees, capped fees, collared arrangements, etc. Although the concept of AFAs is not new, the push to offer more alternative arrangements has never been more prevalent in law firms as it is today. Key drivers of this shift are the economy, the ACC Value Challenge and the clients demand of more risk sharing and consistent, transparent, value-based project pricing.

The ACC’s Value Challenge is based on the concept that law firms can improve the value of delivering legal services without increasing the cost. For law firms, this concept alters and increases the focus on efficiency in the delivery of those legal services. This new focus on efficiency creates a demand to price legal services, manage the legal work process, manage the right talent and form a strategic alliance with clients to improve the service delivery. Clients are now looking for transparency and true cost control. AFAs are the new way of delivering on these demands.

Ultimately, alternative fee arrangements are about risk sharing. With the economic and global shift, clients and companies are now in the driver’s seat. They are attempting to shift more risk of legal service delivery to law firms. However, law firms are only agreeing to this risk transfer as long as the arrangements are still profitable.

What do law firms do now?

As AFAs become more common, how can a law firm compete in this area? Law firms must understand the different sides to alternative fees – estimation and management – and align their firm strategies to these areas.

First, firms need to learn to estimate the cost of legal services. Estimates and budgets must now be based on cost rather than billable rates. Firms are beginning down this path of price estimation with many different budget and estimation tools that are new to the market. A standard starting point is data mining previous matters of similar nature of suit. This process provides an accurate view of prior costs for a type of service. However, using historical data can also show the inefficiencies in those former processes. Finally, the data mining of former data can be incredibly difficult if law firms have not previously used phase and task billing codes in their time entry system.

Next, firms must learn to manage the alternative fee arrangements effectively in order to remain profitable. Budgeting tools, case management tools/ strategies and process analysis are key pieces to this phase. As stated above, there are many new budgeting tools to the market that now help law firms manage budgets and control expenses. However, most tools rely on the use of phase and task billing. In addition, law firms are now considering strategies to aid their attorneys and staff in the understanding of legal project management. This is a difficult task to accomplish because lawyers are not project managers by nature and the norm is not to look at legal work in phases or tasks. Finally, firms are looking at any and all tools that exist within their firm our outside their firm that can aid in efficiency. Things such a document assembly, form production, expertise databases, case/deal management software and extranet collaboration with clients are just a few tools that firms are considering. When an alternative fee arrangement is used, without management of the budget, deal/case and processes, the risk of profitability loss now falls to the law firm instead of the client.

What will change?

The largest change seen by law firms is that billable rates are no longer the driver of profitability. Firms have previously been raising rates at a 6-8% increase with each passing year. With the economy, the practice of raising rates had to change. We now live in a buyers-market for legal services. Clients no longer stand for the standard rate increases but instead now look for a strategic partner. Additionally, the entire law firm model on compensation and partner track are called into question with the change from billable hour and rates. Firms that move to alternative fee arrangements need to look to alternative metrics and measures for compensation, partner track, staffing and bonuses. Some firms are turning to metrics such as overall performance, expense management, practice management, client development, and leadership skills instead of the maximum billable hours.

Conclusion

In conclusion, alternative fee arrangements are not the new standard for law firms in 2010. Currently, AFAs only make up 10-16% of business. However, just as we saw this percentage increase from 2008 to 2010, we expect a further increase over the coming years. In order to stay competitive, law firms must determine their stance and strategy with AFAs and learn to remain profitable in this changing time.

©2010 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC. All Rights Reserved.

About the Author:

Meredith L. Williams is Baker Donelson’s Director of Knowledge Management.  Although trained as a lawyer, she is not actively engaged in the practice of law.  Instead, she oversees BakerNet, the Firm’s industry-leading intranet, and coordinates strategic growth on behalf of the Firm in knowledge management, competitive intelligence and technology.  Ms. Williams is widely recognized as a leading authority in knowledge management issues for the legal field, and is a frequent presenter and author on knowledge management and competitive intelligence. 901-577-2353 /www.BakerDonelson.com