Dennis Kennedy

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April 29, 2004

The Trademark Blogger at INTA

Marty Schwimmer is the author of the excellent The Trademark Blog, a premier example of the focused-topic legal blog. Marty is also a super-nice person. I was trying to convince Marty the other day that he is in fact a blogging celebrity and that the response he gets when he attends the INTA (International Trademark Association) meeting in Atlanta will demonstrate that to him.

Unfortunately, his ID badge will say MARTY SCHWIMMER, not THE TRADEMARK BLOGGER (an important consideration for those of you currently in the process of naming your blogs). I suggested that he changed his badge to MARTY "The Trademark Blog" SCHWIMMER.

Marty posted today about the INTA meeting and invited all his readers to introduce themselves and say hello.

I won't be at the INTA meeting, but I will say that Marty is definitely someone that you should try to meet if you are there, especially if you have any interest at all in blogging. Please help make him feel like the celebrity he should be.

Posted by dmk at 11:01 AM

Mix it Up - Two Turntables and a Microphone

Denise Howell points to Apple letting people place their iMix creations on the iTunes Music Service. David Bowie is offering prizes for remixes of his songs. London Booted is a set of remixes of the classic Clash album, London Calling.

Beck: "I got two turntables and a microphone -
Where it's at!" - from Odelay

Big Audio Dynamite: "C`mon every beatbox let`s party right now . . . that`s were I dance, where do you dance?" from Planet BAD - Greatest Hits

Dennis Kennedy: "What's this got to do with blogging? Everything!"

Where do you jam?

Posted by dmk at 10:39 AM

Outlook Junk Mail Filter Automatically Screened Ballmer Newsletter

Here's an interesting spam-filtering result. I signed up for a subscription to the Microsoft Executive Emails. Today, Steve Ballmer sent me an email on "Managing IT for Business Value," a topic that, as many of you know, is one of my major interests.

However, I only found it when I took a look at the messages the Outlook 2003 automatic junk mail filter routed into the "Junk Mail" folder. An oops or a commentary?

To me, yet another example of how spam solutions may become as big a problem as spam itself. How do I know that I'm seeing all the email that is being sent to me that I want to see? The simple answer: I don't.

Posted by dmk at 10:09 AM

Internet Delivery of Legal Services - QuickRecords.com

I've found a number of things lately that show some of the coming directions of Internet delivery of legal services. I want to begin highlighting them on a regular basis. I spent a few moments at a meeting of the e-Lawyering Task Force at the recent ABA Law Practice Management meeting in New Orleans and heard the term "client-facing" approaches. I like this term a lot.

Here's a superb example of a "client-facing" approach to legal services.

I've spoken several times lately with Vince Guinta and Bruce Grogg, who offer services through MyCompanyRecords.com and QuickRecordsPro.com. It's both a solution to a real problem and opportunity for lawyers to make money by adding a truly valuable service for clients.

The common problem for anyone who has a corporation is that the task of basic corporate recordkeeping (minutes, resolutions, etc.) never quite gets done. Poor recordkeeping is an invitation for a court to look past the corporate entity and find peronal liability - the result of a doctrine known as "piercing the cororate veil." The owner of a corporation is usually ill-equipped to handle the recordkeeping, accountants do not usually handle this, and, if you are lucky, a paralegal at your lawyer's office will handle these matters, although often without your knowledge and participation. The problem is clear and well-defined.

With QuickRecordsPro, a lawyer who creates corporate entities can take care of and manage all of the aspects of keeping excellent corporate records and, at the same time, opening an important channel of regular communications. This service also allows a lawyer to create a value stream for a problem-solving service which many clients will be more than happy to pay (and a service many clients would expect that the lawyer would be providing). You can see the economic benefits of this service for a lawyer in, oh, about two seconds.

Some people don't like the term "win-win," but, to me, the term fits this approach like a glove.

I don't do routine corporate work, but, if I did, QuickrecordsPro would be at the top of the list of items for my 2004 business plan. My reaction to hearing about the service from Bruce and Vince was to say, "do you have an affiliate marketing program?" I'm not ordinarily an easy sale, but this service just makes so much sense to me.

If you are a lawyer or a client who wants to get a solid example of what "e-lawyering" might look like, QuickRecordsPro.com is a great place to start. If you do corporate formation and maintenance as part of your practice, you must take a look at what they are doing at QuickRecordsPro. If you are a frustrated client who wonders if and how your attorney is handling your corporate maintenance and recordkeeping, tell your attorney about QuickRecordsPro, or "eliminate the middleman" and take a look at MyCorporateRecords.com.

And tell Bruce or Vince that I sent you.

Posted by dmk at 09:51 AM

April 28, 2004

That's Not What I Meant

Dave Pollard's How to Save the World blog is is a constant source of excellent, thought-provoking material. Todays post, "That's Not What I Meant," is just one more example of the quality material you will find on this blog.

Pollard discusses the difficulty of presenting material in ways that your audience actually "gets" your points, drawing on actual findings. He then questions whether we can actually get points across in conversations, again based on studies that have been done. It will make you think.

I've been struggling lately with coming up with better ways to connect with audiences when talking about technology, given the wide range of experience and expertise in the typical audience. It seems like a project that's well worth the effort.

Posted by dmk at 09:35 PM

Do Lawyers Make Good CEOs?

The BusinessPundit raises the interesting question, "Do lawyers make good CEOs?"

It's a good topic for debate, but it's also a question for which I have some rooting interest. I worked with Andy Puzder, the CEO of CKE Restaurants, Inc. and Hardee's Food Systems, Inc., on quite a few projects when we were both at The Stolar Partnership in the late 1980s and early 1990s.

I'll also remember when Andy told me that the work I was doing on a particular high-profile project was the type of opportunity that would make me a partner in short order. He was right and I enjoyed working with him. As a lawyer, he had both a great attention to detail and an ability to see the bigger business issues. I also suspect that his cross-examination skills have been put to good use in getting answers to tough questions.

I see a little bit of Andy in Hardee's commercials and the Six Dollar Burger especially. I even got a little chuckle when I saw a commercial featuring Andy - "hey, I know that guy!"

Now, I definitely do not think that most lawyers will make good CEOs, but I've worked with and met a good number of lawyers who certainly would.

Posted by dmk at 09:18 PM

The Three Fallacies

Just one of several excellent postings recently from BrandAutopsy focuses on what Paul Williams refers to as the Three Fallacies. They are Complacency, Conservatism, and Conceit.

Read the post and then consider how they might apply to your firm or organization. Your feeling of discomfort will be proportional to your need to take action.

By the way, Paul laments his inability to make it through Tom Peters' Re-Imagine!

Re-Imagine! definitely rewards the patient reader. The key is to relax, stop fighting to impose your stylistic standards and let Tom drive the car while you ride. It's a trip well worth taking. Failing that, the audio CD might be a better way to go for some people.

Posted by dmk at 08:58 PM

The 46 Best Free Utility Programs

TechSupportAlert.com provides a great list of the 46 best free utility programs.

Let's face it, nobody likes to pay for software when no-cost alternatives are available. I can second the recommendations for several of these programs and have added a good number of programs from this list to my "must try" list.

Posted by dmk at 08:25 PM

April 21, 2004

New Issue of Law Practice Today Available

Be sure to check out the new issue of Law Practice Today. The highlight is the transcript of the WestLaw / Lexis joint keynote presentation from TECHSHOW. I've chipped in with my 2004 trends article and my newest column on legal technology blogs.

Posted by dmk at 10:14 AM

April 20, 2004

Building Your "Kitchen Cabinet"

I've always been intrigued by the notion of putting together an informal but formal group of advisors. To a certain extent, as you move through life you assemble a group of friends, mentors, professionals and others who meet some of those needs, but the idea of having a formal group to give advice and whack you upside the head with a two-by-four when needed has always seemed cool to me.

Lisa Yoon writes a great article on CFO.com called Building Your "Kitchen Cabinet", which delves into the practical issues involved in putting together such an arrangement and also tantalizes with hints of the benefits of these arrangements.

Heck, I know I can use all the help I can get. One big reason I like blogs is because they make available the insights of many smart and accomplished people. I'm interested in exploring the notion of a "kitchen cabinet." I'd enjoy hearing about your experiences with the idea, your insights and even discussing ways to make the experiment go live. Let me know.

Posted by dmk at 12:15 AM

Will Coming "Super Exploits" Cause Users to Update Windows?

I doubt it. Why take precautions when you can learn the hard way, right?

Mary Jo Foley's must-read Microsoft Watch posted an alert called "Will Forthcoming Exploits Target New Windows Holes?"

The alert points to a warning from the Internet Storm Center at The SANS Institute suggesting that combination attacks on the critical Windows vulnerabilities announced last week may already be starting to occur.

If so, the lag time between availability of security patches and first exploits has dropped to less than seven days. This is scary business.

As I've pointed out before, law firms have been ravaged by well-known exploits of known Windows vulnerabilities for which patches were available. Warnings about "super exploits" suggest that a high degree of concern is justified. Failing to install updates puts both yourself and the entire Internet community at unnecessary risk.

Hey, let's be careful out there, for once.

Posted by dmk at 12:01 AM

April 19, 2004

Matt Homan Walks the Walk

What will the 21st century legal practice look like? Consider this example.

Matt Homan is a bright young lawyer with many cool ideas. Even better, he doesn't just talk a good game - he puts himself out on the line and follows his own advice. That's something that I really admire. I like people who make you challenge your own assumptions and force you to get off your ass.

Matt just announced the opening of his new era of law practice - The Silver Lake Group, complete with a Citizen Kane-esque statement of principles. That's cool and something you don't see very often.

I had the idea a while back to start a newsletter called "Practice Transformation." I might still do that, but Matt makes me think that it's better to try to transform your practice than to write about how it might be done.

Keep rocking, Matt. No more excuses, though - we've got to get together next week for lunch, breakfast, whatever.

Posted by dmk at 11:43 PM

April 16, 2004

Ernie Explains RSS

I finally got to meet Ernie the Attorney in person at TECHSHOW. He's as cool and smart as he seems from his blog and our conversation lasted into the wee hours of the morning.

Ernie has written the definitive how-to primer for anyone who wants to experiment with newsreaders to subscribe to RSS feeds for lawyer blogs. I enthusiastically second his approach. I also use FeedDemon as my newsreader (get well soon, Nick Bradbury!). If you are new to the idea of RSS feeds, follow Ernie's steps. Take a week to see how it works for you, but be attentive and use the newsreader on a daily basis.

When you "get" newsreaders and RSS feeds, you'll be blown away, trust me. If it doesn't do anything for you, it probably means that there are better ways for you to get your information - but you'll need to work on finding them, because the newsreader people have a real advantage these days, an advantage that will continue to grow.

Posted by dmk at 10:31 AM

New Patti Smith CD and Website: We Hold These Truths . . . .

"This is gonna be our century and it'll be whatever we make it."

It was great news for me to learn that Patti Smith has a new album coming out this month and a brand new website. She has described her music as "Three chord rock merged with the power of the word."

The new album is callled "Trampin':

"It is march, a good word, and a good time
to share the making of trampin'.
our terrain stretches from the american
heartland to the streets of baghdad.
our boots are well worn and the sack we toss over
our shoulder is filled with tears and grain.
we unbutton our coats, for spring
is upon us and the air is thick with promise.
let us shake the gold upon the fields
for it is march, a good time for trampin'"

I'm reminded that so much of my rock 'n' roll esthetic, and even my overall artisitic esthetic, grows out of Patti Smith's first three albums - Horses, Radio Ethiopia, Easter - and early live bootlegs (if you've ever heard her live version of Lou Reed's "Pale Blue Eyes" or "My Generation" (now a bonus track on Horses) from the mid-70s, you'll know what I mean) - and, to a surprising extent, her continuing works over the years.

In 1979, I had one of my ultimate musical evenings when we saw Patti Smith live in Indianapolis doing one of her shows touring after the Easter album (I still get chills thinking about that one) and then driving across town to see the Ramones live in a bar. Patti Smith also showed up at the Ramones concert. It was one of the high points of the 70s punk rock scene in Indiana (other than when my friend Emmett and I broadcast the first punk rock radio show in Indiana - a classic tale that included us almost getting kicked off the air).

The new website reminded me of that influence. The opening splash page has a William Blake etching. The site appears to change regularly, but on my first visit there was an image of a great Jackson Pollock painting, giving me a sense of familiarity and recognition.

Some of the artists I like best, Blake, Brancusi, Pollock, grew out of those early albums, as did my movement to U2 and John Coltrane in music.

On my first visit to the site, and unfortunately I couldn't find the same page today (I believe it was replaced by a great meditation on Lincoln and Easter called the empty chair, was an image of the Declaration of Independence and a short excerpt from the beginning of the D of I. In the context, the words of the declaration are electrifying. Reading it with new eyes is something I definitely recommend.

From a 1998 concert review:

"Left knee twitching out the beat, cheeks flushed, voice agrowl, Patti Smith put on her glasses and put the juice back into words most of us take for granted--``We hold these truths to be self-evident. . .''

It was, quite possibly, the first time the Declaration of Independence had been recited accompanied by guitar feedback.

By the end of it, the audience sounded ready to follow Smith into the streets and straight to Capitol Hill. ``This is gonna be our century and it'll be whatever we make it,'' Smith declared, her arms raised, and she had the music, the charisma and the rock 'n' roll attitude to back it up."

I think that one of the more interesting things I've ever written was a college paper on William Blake's poem "America." It can be found as part of the longer work here. As with all of these things, the paper is probably more about Dennis in 1980 than about the text of the poem, but it always struck me that I touched on something important in that essay.

In introducing the essay, I said, "Blake sees historical events as mythological events that are accompanied by a progressive transformation of imagination and human society." Blake said, ""I must Create a System or be enslaved by another Man's."

Doesn't it come down to this:

"This is gonna be our century and it'll be whatever we make it."

Posted by dmk at 10:18 AM

Lawyer's Role on Information Design Teams

Tom Collins' blog Knowledge Aforethought consistently has great content on knowledge management, especially on personal KM, one of my favorite topics. His post today, Lawyer's Role on Information Design Teams is a good example of the insights I've found on his blog.

Tom points out the growing use of digital presentation tools by lawyers and the very common "hands-off" approach of turning the creation of visuals and contents to the "experts."

In some firms, the "experts" may well be IT staff, marketing people or paralegals, many of whom are quite talented.

HOWEVER, as Tom points out, there are problems with this approach, both conceptual and practical. The classic approach to content design and presentation uses a four-person team: a multimedia person, a designer, a content subject expert, and producer.

When, for example, I prepare a PowerPoint presentation myself, I take on all four roles, even though I'm strongest as a content subject expert and anywhere from "pretty good" to "probably adequate" on the other three roles (ahem, depending on whom you ask). My results usually work out OK because of my involvement in the content subject expert role.

When a lawyer turfs the presentation over to the graphics experts, there is no content subject expert. The odds of having an effective presentation drop dramatically, even if the presentation looks great.

Tom has several points. First, that it is essential for lawyers to participate as part of the team. Second, given that many lawyers cannot afford a four member team, lawyers must get, maintain and improve the other technical skills and expertise other members of such a team would have provided. Third, modern presentation skills have become as important a requirement for lawyers as writing and speaking skills.

Tom's post is short, but very important. I highly recommend it.

There's an article to be written, perhaps by me, about the flip side of this article that can be written with the same title. That is, there are roles that lawyers can play as part of creative teams with respect to intellectual property and licensing issues, privacy, confidentiality and other legal issues, and exercise of the professional judgment that all good lawyers have.

Posted by dmk at 09:11 AM

April 14, 2004

Panera: New Home of the Technorati

The Gearbits blog has a post covering the WiFi in restaurants trend called Panera: New Home of the Technorati. For this technoratus, Panera is the old comfy WiFi hangout.

Panera's restaurants are still called St. Louis Bread Company in Panera's hometown of St. Louis. My restaurant is about a mile from my house and usually have lunch (1/2 Sierra Turkey sandwich and cream of chicken and wild rice soup (although the new Vegetarian Parisian Mushroom Bisque is pretty darn good)), download and install Windows security updates, and work on Internet tasks.

The Gearbits Panera seems a little more upscale than mine, but mine has a great neighborhood feel and I usually run into someone I know on about every visit. It's funny how even when I go just to work on the Internet, it seems like I end up talking with someone.

What I've noticed over time is that I consistently see a few businesspeople taking advantage of the WiFi on every visit, but there are always some kids (whose school schedule defies my logic, but I sure wish I could have spent that much time off-site while I was in high school) using those cool little cheap iBook Mac laptops.

There's a book called The Great Good Place that attempts to describe the phenomenon of social gathering places. Keep on eye how WiFi, of all things, might help create those kinds of places. A lot of companies are experiment with WiFi, but Panera, especially because free WiFi caters to their customer profile so well (its customer spend a lot of time per visit and many visit multiple times during the day), has gotten it right.

Will WiFi work at McDonald's? If they target and cater to the seniors who hang out and drink coffee all morning, it will. If they think it will pull us out of the drive-through line getting Happy Meals for our kids on the way home from school, they'll be quite disappointed.

Posted by dmk at 10:25 PM

The IRS in 2004

As a former tax lawyer, it's been difficult for me to give up the experience of preparing my own tax returns, even though it generally leaves me in a bad mood. It takes so darn long and, by the end of the process, I end up thinking that the old Simplified Tax Return gag makes more and more sense.

This year, however, after hearing the author on a few radio shows, I read Rick Yancey's wonderful book, Confessions of a Tax Collector, which turns the day-to-day work of an IRS tax collector into a fascinating, funny and insightful series of character studies. The fact that Yancey makes you feel sympathetic to the plight of tax collectors shows his great skill. And, for anyone who has ever spent some time working for the government, there are some details that are so dead-on for certain character types that you'll think Yancey might have spent a few days at your office. You start to really pull for this wacky group of existential cowboys who serve as the last line, determined to make sure that the beast gets fed.

There's a great four step mantra that Yancey keeps referring to: "We know where they are. We know what they do. We know what they have. We will execute what they fear." It's a lonely life, but Yancey catches you off-guard and succeeds in writing the ulitmate revenue agent fairy tale: the revenooer gets the girl.

So, I finished the book with my own wacky desire to "pay my fair share," an effect that the hundreds of pages of 1040 instructions has never accomplished so effectively.

However, I have to admit that a few recent items have conspired to try to diminish the warm fuzzy feelings about paying taxes I have this year.

1. David Callhan's The Cheating Culture , which uses today's large law firm billable hour culture as a major example of his thesis, notes that at least $250 BILLION of taxes are simply not paid each year.

2. The story of the current state and possible fate of the IRS Master File and the continuing saga of the never-finished IT upgrade at the IRS almost defies description.

3. If you might be wondering why you need to use a private vendor to e-file, the stats in this chart might give you an idea why.

Ironically, IT may lead to a simplication of our tax system, but not in the way anyone envisioned - if the current situation takes the nose dive some fear, the national sales tax approach might be the only workable option to fund the government.

Posted by dmk at 09:51 PM

PDF for Lawyers: OCR Tutorial for Acrobat 6

Forget Barry Bonds. PDF for Lawyers returns to action with a towering home run: OCR Tutorial for Acrobat 6. Great practical article that opens up the possibilities for effective use of Acrobat 6. I'll go so far as to say that this article makes the case for fence-sitters to move to Acrobat 6.

Posted by dmk at 08:54 PM

The Top 20 Web Mistakes Small Businesses Make

Karl Groves has written an excellent article called "The Top 20 Web Mistakes Small Businesses Make" that sets out some excellent tips for evaluating your website.

I always emphasize avoiding his problem #6 "Not making it easy for people to contact you from your site (and not following up when they do)." In fact, one of my favorite of The Internet Roundtable columns on law firm web pages (see archive on LLRX.com) is the one called "How Do I Make Sure That Visitors Who Come to My Site Can Contact Me?"

There are many ways to create great websites, but one of the easiest ways is to avoid the problems on Karl's list.

Posted by dmk at 12:26 PM

April 08, 2004

I Hear That Train A-Comin'

One of my new buddies from TechShow is Matt Homan of the [non]billable hour. We're on the same wavelength on a good number of things. He's "across the river" in Illinois, as we like to say in St. Louis and we were planning to have lunch today until a client crisis postponed our plans.

One of Matt's friends, I learned, is Evan Schaeffer, who maintains several excellent blogs, including The Illinois Trial Practice Blog and Notes from the (Legal) Underground. Notes from the (Legal) Underground has the kind of inspired wackiness and irony that you don't often see in lawyer blogs. Since, by definition, lawyer bloggers have more of a sense of humor than other lawyers, I leave you to draw your own conclusions about why there are so few standup comics who were once lawyers.

Anyway, Evan has a great post today about his experience waiting for a long train and how it made him think about what other lawyer bloggers would do in that situation. It's inside humor, but it's also a handy list of many of the well-known bloggers.

About me, he says, "Does Dennis Kennedy calculate the rate of passing cars so he can figure out their speed?" Ouch, that hits a little close to home, but it was some of my buddies in high school who did things like that with their Texas Instruments calculators. Howard, Eric, Mike, am I right? These days, I mainly admire the spray paint art as the cars roll by and try to figure out what "no humping" means when painted on a box car.

I grew up in town originally founded by the B & O railroad. The school teams had the nickname of Garrett Railroaders. The train tracks were about 3 blocks from our house and waiting for trains was a regular occurrence for all of us. In fact, blaming a train would almost work as an excuse for getting home too late. Twenty-five years later, they finally put in an underpass that makes a world of difference.

Incredibly, when I went to college, I ended up living in a frat house that was roughly 30 feet away from a set of railroad tracks that we had to cross to get to classes. Some who lacked experience living around trains cracked under the pressure - you'd occasionally see dinner plates sailing out of windows at trains. Or, so I heard.

What I notice now is that far too many drivers have little understanding or respect for trains and, to my horror, will "cheat" across the tracks after the warning gates are down. A classmate of mine who works as a train engineer has told me how long it takes to stop a train and how an engineer is powerless at a certain point to do anything to avoid hitting a car on the tracks.

I figure that it's better to relax, enjoy the art work and reminisce about how the trains and logos were a lot cooler in the "old days." It's also interesting to think about how my grandfather worked on the railroad for many years and told stories about riding in the caboose. Now trains don't even have cabooses.

Posted by dmk at 07:30 PM

New IP Memes

One of my writing outlets is the TechnoLawyer.com's IP Memes newsletter (free registration required). I'm one of five rotating contributing editors and my latest issue came out this week. It was called "Pirates, Fools, Settlements, The Noise Society — and Other Hot IP Issues." Please note that the reference to "Fools" applied to April Fool's Day and a note on that topic, and was not a comment on any of the items below.

Here are a couple of items in the issue to give you a little flavor for what we do in IP Memes:

THE PIRATE BILL — DIDN'T CONGRESS LEARN ANYTHING FROM CAN-SPAM?
They're at it again. The useful Copyfight Blog provides details and analysis of the proposed Protecting Intellectual Rights Against Theft and Expropriation Act (PIRATE Act) introduced recently by Senators Hatch and Leahy, with some tiny indications that the recording industry is pushing the effort. The PIRATE Act, if passed as now drafted, would, among other things, allow federal prosecutors to bring civil copyright infringements suits in cases like music file sharing over peer-to-peer networks. In light of the overwhelming failure of CAN-SPAM on email spam to date, Congress might be advised to spend more time thinking through the implications and unintended consequences of election-year legislation and less time coming up with clever names for bills.
Wired News Article; Corante Article; Senator Leahy Press Release

PRIVACY IN A NOISE SOCIETY
Nicklas Lundblad's short paper "Privacy in a Noise Society" takes a fascinating approach to privacy and IP and uses an attractive metaphor ("noise society") that might well make this paper very influential over time. From the abstract: "In this paper, an economic study of different levels of expected privacy, both individual and collective, is used to demonstrate that we live neither in a dystopian control society nor in a utopian privacy enhanced society, but rather in a noise society characterized by high collective expectations of privacy and low individual expectations of privacy. This has profound consequences for the design of privacy law, privacy enhancing technologies and the sociology of privacy." He concludes: "How do we balance freedom of speech, copyright and privacy in a noise society?"
Nicklas Lundblad Paper

THE 10 RULES OF TECHNOLOGY TRANSFER
Universities, governments and businesses are increasingly focusing on ways to improve local economies through the commercial development of university research. The buzzword is "technology transfer." Many intellectual property law firms see tech transfer as a growth area. One of the biggest issues is to find ways to get the interested constituencies to speak the same language. This article from R & D Magazine is a big help in getting everyone on the same page. From the article, "Tech transfer is growing in industry to accelerate product development, in academia to support research efforts, and in government to commercialize developed technologies. In all of these areas, the technology purchaser often needs to heed to the warning — 'buyer beware.'" Two rules of particular interest to lawyers are #8 "Don't trivialize the legal aspects" and #9 "Understand the system." The article also contains a list of resources.
R&D Article; Technology Transfer Resources

YOU'RE FIRED™?
Will celebrity legal news be moving from criminal cases to high profile IP cases? If the attention paid to Donald Trump's efforts to trademark the phrase "You're fired!" is any indicator, we may well be following the IP adventures of prominent celebrities. In an article on FindLaw, Irving Kramer makes the first of what will probably be many analyses of the Trump trademark issues.
FindLaw Article

Posted by dmk at 06:15 PM

Proposed Study: Associate Departures from Connecticut Law Firms

David Giacalone in a post called Associate Disciplined for Remaining Silent covers a new Connecticut Supreme Court decision that upheld a reprimand for a junior attorney who remained silent in the presence of falsehoods by his senior lawyer, where the silence deceived a judge. As you might expect, the case had some unique facts, which are discussed in the comment to David's original post. The most salient fact might well be that the senior lawyer told the judge what the junior lawyer had told the senior lawyer, creating a situation where the junior lawyer would definitely know there was a misstatement. It wasn't a case where the junior lawyer heard a senior lawyer say, "There's a new case that I didn't have the time to get yet that addresses this exact issue and rules in my favor."

I have to admit that the following quote from a news reporter got a chuckle from me because of purely theoretical approach it takes:

"Even if it enrages the senior partner or undermines the argument, a lawyer is duty-bound to speak up and prevent a judge from getting the wrong impression."

David says: "I can already hear the wailing of bleeding hearts and enablers, who say such a rule is "unfair" to the poor, powerless associate." He's right that there comes a time where you have to take a stand and that once you bend on small things it becomes easier to justify bending on bigger things, but it's a tough spot to find yourself in early in your career when you are with a senior lawyer in front of a judge. Given the idealized and theoretical notions of Law that you learn in law school, you might well be more speechless than misleadingly silent.

Since most lawyers who read this story will probably think that "yeah, he speaks up and he gets fired," I want to move from the topic of the rule to the topic of the atmosphere for associates today.

It's not the rule that's unfair to associates, it's the fact that it adds another worry for associates who are currently living in a system where they walk on eggshells out of fear of being fired, are caught in the crossfire of crushing billable hours minimums and demands to "keep your hours on this project as low as you can," refuse even to ask permission to attend and be reimbursed for continuing legal education, bar and other volunteer activities, and question what they've gotten themselves into. What's worse is that (1) clients hate to pay for the time attorneys spend talking to each other and (2) minimum billable requirements on partners have cut into the time a partner will spend training and preparing associates for cases. As a result, litigation associates complain that they rarely are given the big picture view of a case and there work is strictly limited to the one issue in front of them. They might be with a partner who made a blatant misstatement and have no idea whatsoever that anything was wrong, but in hindsight, they'd look pretty bad.

I've said many times that the current methods big law firms use with associates are grinding up some of the brightest and most capable young lawyers I've seen. There have to be better ways.

So, for anyone who is looking for an interesting survey/study to do, tracking the rate of departures of litigation associates from Connecticut law firms in 2004 might be a good choice of topic.

Posted by dmk at 05:58 PM

April 07, 2004

Please Consider Supporting This MS Walk

I got an email the other day from one of my classmates in the legendary Garrett High School Class of 1976, Neal Esselburn. Neal and I have been friends from at least the first grade. Some of the most fun I had in high school involved running track and cross country with Neal (we used to run early every morning and I still remember the feel of running on the dewy grass of a golf course as the sun was coming up) and driving around and around many nights in his blue Corvair stuffed with friends. Someday, I want to write about or make a movie about the summer of 1975 at Feick Park in Garrett. Dazed and Confused is close, but it's not quite right. In some ways, Melissa Etheridge's Shriner's Park comes close to capturing that feeling, although having heard Melissa's introduction to the song at a concert, the context of her song is quite different. But, I digress.

It was a surprise when we heard that Neal had multiple sclerosis 20 years ago. I'll always associate Neal with the neon green Adidas running shoes we wore as high school seniors far more than the motorized cart and cane he used when we had lunch this past summer.

Neal's note was to let our email group of classmates know about an upcoming MS Walk he's involved with. It's a compelling cause and I got Neal's permission to reproduce his note and ask readers of this blog, if you are so inclined, to consider making a contribution to this effort.

Neal wrote:

"Hello everyone. For those of you who don't know, I was diagnosed with Multiple Sclerosis in December 1984. It wasn't the best news that I've ever had but it could've been much, much worse. I'm a volunteer for our MS walk committee and I'm asking each of you for your support.

Our walk is on Saturday May 15th. This also happens to be my birthday. I'm sending this note to you asking for any help you can give to end the devastating effects of Multiple Sclerosis.

I went on permanent disability in 1998. It was shortly after that, I began to volunteer a lot of my time to the National MS Society. I've been helping with the MS walk for 5 years. I'm a facilitator of MS support groups at the Lutheran Rehabilitation Hospital in Ft. Wayne and at DeKalb Memorial Hospital in Auburn.

I hope by sending this request via email that it doesn't upset anyone. If you're going to be in the area on May 15th, it would be great if you would come to the MS walk and wish me a happy birhday. I hope you can help. If you have any questions please don't hesitate to contact me. Here is the information you'll need to help with donations.

1) via internet:
> login to www.msindiana.org
> on the left side of the screen you should see
" MS WALK 2004-Register now! "
> You'll see an area for donations too.

2) You can also call (800) 762-1209. Explain that you're
calling to help with the Northeast Indiana MS Walk
and they should be able to direct you to the corect
area.

Thanks again for any help you can give us!!!

Neal A Esselburn"

And, thank you for any help you can give.

Posted by dmk at 10:33 PM

David Maizenberg and the Power of Networks for Lawyers

David Maizenberg, among other things, operates the Airblogger blog and . The other day I got an email from David (I promise to respond soon, David) at almost the same time as I found his new article "A Lawyer's Guide to Reed's Law and the Power of Networks" on FindLaw's Modern Practice webzine. I've always associated the idea of the power of networking that David refers to as Reed's Law with Metcalfe's Law, but there are apparently are some differences.

In any event, I'm more intrigued by the power of network effects than any attempt to capture the concept in a mathematical formula. David's article does a nice job of applying the concept to the legal profession and giving us some good examples, although, significantly, none are from the legal profession.

David's last two paragraphs raise some important issues that I have had substantial discussions about recently with some of the most well-known of the legal bloggers, including a phone conversation this afternoon. Let me quote David's conclusions here:

"Why does all this matter to lawyers? Well, with all the various forums and groups everywhere beckoning for attention, some lawyers might be asking themselves: Is it a worthwhile use of my time to participate in volunteer, uncompensated knowledge sharing? Reed's Law suggests that the answer is yes. Of course, one still needs to be selective. Network peer groups with no real purpose, or groups with weak participation, or groups that simply become too large, may not necessarily return maximum value. Nevertheless, here's a good rule of thumb: don't be stingy. If a peer group or forum is interesting and useful enough for you to follow on a regular basis, then for the health of the group, as well as your own standing within it, you should probably contribute as well.

Which brings up one other issue: freeloaders. What stops people from reaping the work of others but contributing nothing in return? The Internet is beginning to address the freeloader issue through reputation systems. For example, the reputation system on Ebay operates in a very simple way, but still serves to notify potential buyers of the likelihood that the antique tea service they bought really will arrive in the mail as promised. These sorts of systems, already well known in product markets, will eventually exist in knowledge markets as well. If present trends continue, we will eventually see a full "reputation economy" arise; that is to say, a system assigning value to the veracity, usefulness and reliability of some speakers over others, and the setting of compensation accordingly. So for lawyers and other knowledge workers, the time to begin establishing usefulness in this new networked world is now."

While I agree, for the most part, with David's conclusions, especially about resolving close decisions in favor of being more giving, these issues are quite complex. (For example, I think about the notion of enabling comments on this blog on a regular basis, and decide against it - thank you comment spammers for making the decision easier - but I'd use them if I created another type of blog.) These issues will rapidly come into focus as we begin to see law firms treat blawgs as an economic tactic and we move, as we did with web pages, into a second era of blogging. As I've indicated before, both the early law firm web page pioneers and the early blawgers have been extraordinarily helpful and generous. I'm not so sure that the early blawgers should be as willing as the early web page creators to be generous to people looking only for economic benefit while being unwilling to return the favor in any tangible or meaningful way.

However, I do not want to overemphasize the economic issues. There are also issues of common courtesy and just the responsibilities you have when you join in any network. The term "freeloading" often comes up in each of these contexts.

In a certain sense, we all look to move into better and better networks. "Better" means different things at different times to different people. For me, I think in terms of energy. I want to be in networks that energize me and where I want to be an active participant, especially when I can learn new things and work together with cool people to expand ideas and create new things. I want to get out networks where I feel that my participation is becoming a one-way street and that the network seems to drain away my energy.

Based on my experience, I don't really buy into the "reputation economy" in this context. A "reputation" system inevitably lags what is happening and I'm not sure any numerical or "stars" method can capture the richness of the notion of reputation. They also depend on the system having some longevity and stability.

My observation is that people move on when the energy falls into the negative territory and find new networks. As for the networks that last, they become friendships. In my friendships, terms like "freeloading" and "reputation economy" and "Reed's Law" never seem to enter into the conversation.

However, until that happens, those terms do make sense and, sadly, we are approaching a time when they will start to make more sense to bloggers than they have so far.

The good news, though, is that blogging is one way that technology brings home the point that it is your content and genuineness that matter and that we don't need to be so concerned about we look like or where we came from or any of those things - unless, of course, we make the mistake of revealing our choice of presidential candidates.

Posted by dmk at 10:06 PM

Recommending Adam Smith, Esq.

Bruce MacEwen's blog, Adam Smith, Esq., covers the economics of law firms and is off to as strong a start as any law-related blog I've seen in a while. He discusses some important ideas and trends, perhaps none more important than the implications of Sarbanes Oxley for law firm document management systems. My friend and legal tech guru Michael Kraft also made some excellent points on this topic at TECHSHOW.

Posted by dmk at 08:42 PM

April 05, 2004

Sixteen Simple Rules for Negotiating IT Contracts

My Practical Technology Contract Review News is now a subscription-only newsletter. I sent out the latest issue this evening and it contains a long article based in large part on a recent experience I had where an attorney broke all of these "rules" in a single conference call.

The article discusses each of these rules in detail and also sets out my approach to contract negotiations. I thought I'd share the list of my simple rules and the conclusion of the article. Subscription information is available through the above link.

Sixteen Simple Rules for Negotiating IT Contracts

1. Know the Purpose of the Meeting.
2. Discuss Your Role in the Meeting with Your Client Ahead of Time.
3. Agree on Your Signals.
4. Do Not Confess Your Lack of Preparation.
5. Do Not Bluff on Your Knowledge or Your Experience.
6. Know When to Move On.
7. Understand Standard Negotiation Practices.
8. Avoid High Pressure Sales Techniques.
9. Avoid Explaining Basic Law School Concepts and Turning Everything into Legal Jargon.
10. Remember Business People Are Not As Fascinated by Legal Issues As Lawyers Are.
11. Don’t Be a Know-it-all
12. Don’t Be Condescending.
13. Don’t Cut Off or Undercut Your Client.
14. Don’t Interrupt or Talk Over the Other Party.
15. Don’t Imply That You Don’t Trust the Other Side For No Reason.
16. Remember That It’s About the Deal, Not About You

Conclusion. It is no easy chore to try to follow each of these rules, but they give lawyers a good target to shoot at and clients a good checklist to use in preparing and evaluating their lawyers. Notice that all these rules can be followed no matter how easy-going or aggressive a lawyer might be. Those tactics can and do vary from one deal to the next and you can be extremely aggressive and still follow every one of these rules. These rules create a solid foundation from which you can advance a deal, protect clients and treat everyone in a way that will lead to good ongoing relationships. The contract is important, but ultimately the resulting business relationship matters most.

Posted by dmk at 09:43 PM

April 01, 2004

Need a Few Quotes for an Article on Lawyers Leasing Technology

I'm finishing up an article on the subject of lawyers leasing, rather than buying, technology. I'd like to include some quotes. If you can help me out, I'd be grateful and give you some publicity by including you in the article.

Ideally, I'd get some quotes and info from you by tomorrow morning.

I'm looking for examples of actual experiences, good examples, bad examples, tips, cautions and other practical info. I'm interested in comments from lawyers, administrators and vendors (lessors), but in the case of vendors, your comments must relate specifically to the legal profession. I'm especially interested in discussion of "bundling" hardware, software and services into one "lease" payment.

To participate, simply email me with comments that can be used as quotes (i.e., reasonably short and pithy, or a compelling short story) and a few-word description of how you would like to be referred to in the article (e.g., "Dennis Kennedy, a solo practitioner in St. Louis who focuses on computer law transactions and licensing, says . . .").

Thanks for your help.

Posted by dmk at 03:35 PM