Dennis Kennedy

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May 27, 2004

Seminar of Note: Reducing Risk, Restoring Trust: A Leadership Role for IT

I want to recommend what looks to be an excellent seminar on June 10 in New York City. It's called Reducing Risk, Restoring Trust: A Leadership Role for IT and produced by the Robert Frances Group, an IT consulting firm with whom I've started to do some work in connection with IT issues for corporate legal departments and related issues.

Although I'll be speaking at another conference that day and be unable to attend, I highly recommend this conference because of the top-flight faculty and the importance of the issues that will be covered. Take a look:

The program will address the following:

Assess the extent of IT risk and how to best mitigate the risk
Establish a formula to analyze and quantify IT risks
Prioritize risk
Fiduciary responsibility of IT
Manage your IT Risk portfolio
Make the trade-offs work as positive advantage
IT departments as risk advisors of business
How to build a cross-functional "Trust" team
Determine the most important risk areas to spend IT budget
Define an acceptable level of risk
Build a responsible roadmap to success
Enhance IT trust on an enterprise level
Understand the extent of accountability
Create the right assessment criteria
Learn where the critical gaps exist
Implement a governance process
Determine risk associated with specific gaps
Address compliance and federal regulations

As many of you know, these items are front-and-center priorities today and this seminar should be a good way to help you put all the pieces together.

From privacy policies to HIPAA to Sarbanes Oxley, leading companies have realized that the "team" approach (executive, IT, financial, sales and marketing, legal) is the only realistic approach to take on these complex areas. Here is a great way to learn why and how.

Posted by dmk at 11:07 AM

May 26, 2004

The Current State of KM in Law Firms

Cindy Chick has written an important article called "West KM/Lexis TotalSearch or Enterprise Search Engine?"

The short article does an excellent job of spelling out the differences between the West and Lexis approaches (tend to be more useful for litigation practice) and enterprise search engines. such as Recommind. Her article largely confirms my observations, except that I would say that the enterprise search engines really rock. There are a number of companies doing some very cool things in that area. I've offered myself to several of them to be the first beta tester if they develop a personal version of their tools.

There's a very important point hidden in this article that I want to bring out into the open. While, as I have mentioned, there are some very talented people working on KM initiatives at large law firms, it has become very clear that KM, at least in the early stages, means using an enterprise search engine (or the Lexis or West alternatives) as a better way to find documents. There are a number of reasons for this happening that largely involve lawyer behavior.

Here's the key point - probably the main selling point for the "big iron" document management systems large law firms have purchased is simply the ability to find the documents you need. Unfortunately, in my own experience with a high-end DMS, I had no confidence that I could find the documents I wanted or could be sure that nothing else existed. Apparently, my experience was not unique.

What does it mean when law firms are adding enterprise search tools primarily to search for documents? I was recently in a room of law firm CIOs and grew increasingly puzzled by the discussion of how KM is being implemented. I finally asked if anyone would disagree with my conclusion that they were saying that document management systems in large law firms were desperately broken? I didn't get any takers.

What does that mean, given the money spent on DMS by law firms? What does that mean for clients of law firms when those clients have Sarbanes Oxley or other recordkeeping obligations? What are the implications of a system where fundamental doubts about security, authenticity and validity of documents managed by law firms are subject to question? I think that these are all BIG questions.

Posted by dmk at 10:29 PM

Rick Klau (and others) on De-Captivating Markets

I enjoyed Rick Klau's post today on IT innovation in the next decade is worth a careful read and tracing back to the linked sources. Rick covers a lot of important territory, as does Doc Searls, whose De-Captivating Markets inspired Rick's post.

At the root of both posts is Clayton Christensen's Innovator's Dilemma, as laid out in his books, The Innovator's Dilemma and The Innovator's Solution. Christensen focuses on the power of "disruptive technologies." To quote from one of the editorial reviews on Amazon, "At the heart of The Innovator's Dilemma is how a successful company with established products keeps from being pushed aside by newer, cheaper products that will, over time, get better and become a serious threat." Searls does a nice job of sketching out the theory in his post.

As compelling as the "disruptive technologies" argument is, the difficulty has always been that the well-chosen examples suggest that disruptive technologies are something that we can determine only in retrospect and that predicting them is very difficult indeed. In fact, we can analyze many technologies as "disruptive technologies" and never be certain that we are right until events shake out. Searls looks at Open Source, as have others, as a disruptive technology, but I suggest that we do not know whether it is or not at this point.

It is more reasonable to point to digital cameras today as a disruptive technology and point to Kodak and Polaroid as victims. It's unclear to me, however, where the "tipping point" came. There are still many different standards (how many kinds of storage memory), battery life and other usability issues, and I believe that it is still cheaper to develop film than print out digital images, in terms of consumables. I think that you can look at digital cameras and fit them into the innovator's dilemma framework now, but I don't know how you could have done that (other than on faith) in advance.

For what it's worth, although I'm as intrigued as anyone by the potential of Open Source, I'm not sure it will become a disruptive technology, especially if the measure is whether it puts Microsoft in the kind of position Kodak now finds itself in.

My vote for the disruptive technology of the day, by the way, is the availability of cheap fast hard drives with massive amounts of storage capacity. However, I'm not sure what the implications are.

I also have a vote for the disruptive technology for the legal industry - distributed document assembly applications embedded with routine legal knowledge. If this happens, I can see that the implications are enormous.

For a great article exploring the implications of the Innovator's Dilemma for law firms, I highly recommend Darryl Mountain's Could New Technologies Cause Great Law Firms to Fail? I saw Darryl Give the original presentation on which this article was based and it struck me that he was a few years ahead of the curve. It still does in terms of what law firms are doing, but not in terms of what technologies are available.

Doc describes two states in an industry: "One is a cluster of vendor-limited silos, with high level of dependencies, from the bottom to the top, on goods and services only the vendor can provide. The other is an open and free marketplace ? a commons ? where both vendors and customers are free to make and buy what they like." How does your industry fit into that model?

The Internet has generally moved us from high level dependencies to increased independence, while also emphasizing a different set of dependencies. If the term "silo" applies to what you are doing, you should be setting aside some time to think strategically. My recent experience at the Legal Technology Summit led me to the conclusion that the term "silo" is one that many clients can reasonably apply to their law firms. Should that worry traditional law firms? You're damn right it should.

To return to Rick's original post, let's look at the role of social networking and social technologies. I agree with Rick's thinking. As I like to ask, what happens when the best lawyer for you to recommend to your client, or for you to work with, is no longer your partner down the hall? Or, what happens when your client puts together a project team of lawyers that excludes your law firm partners and you realize that the project team works extremely well?

Trust me, take a look at Rick's post and Doc's post and do a little reading about the innovator's dilemma. You'll thank me later.

Posted by dmk at 10:01 PM

May 25, 2004

OneNote and Lawyers

Several people have pointed to Mark Voorhees's article Worth Noting, which highlights the potential that some, including me, see in the use of Microsoft OneNote by lawyers. OK, he even quotes me.

As I've mentioned to many people, the light first came on for me (and I still think that this is the best way to think about OneNote) when I heard a Microsoft rep, Allison Gay, describe OneNote as a simpler tool for writing meant to fill the gap created as Word became so feature-laden that many saw it as overkill for writing simple documents. If you have begun to see Word as a tool for "processing" words, or even as a desktop publisher, you'll appreciate this description and distinction. For example, for several years I've had a tendency to write quick first drafts in WordPad and then move in Word to clean-up and format the documents.

Last week, I was in a couple of conference sessions with only a tablet of paper. I took a bunch of notes and saw that a page of my notes could have easily been a screenshot from a OneNote ad - diagrams, boxes, drawings, boxes of text placed on different parts of the page. One look at that page would prove to you what I mean when I say that I am not an "outliner."

Mark, as usual, writes a great article - one I thoroughly recommend.

The money quote:

"Microsoft may have finally written a program for lawyers, although it isn't aimed specifically at the legal market. Microsoft OneNote helps people take notes on their computer. Note taking is not rocket science, but it occupies a fair chunk of billable hours by lawyers."

Memo to Microsoft: It's time to come back to the legal market and show lawyers what they are missing when they stay away from current Office programs.

Posted by dmk at 10:46 PM

May 24, 2004

Legal Technology Summit Retrospection

I spoke at and attended the recent Marcus Evans Legal Technology Summit and had a great time. The format of LTS is different than most conferences - limited number of attendees, lots of interaction among attendees, speakers and vendors, and a first-class approach across the board. What's cool is that you end up feeling like you've been able to have extended conversations with almost everyone one there.

As a result, I met quite a few CIOs of the leading US law firms and some of the best and most innovative thinkers in legal tech I've ever had the pleasure of being around for an extended period of time. I also continued my ongoing string of presentating with a terrific co-speaker - in this case, Toby Brown of the Utah State Bar.

On the flight back, I could not believe the flow of new ideas that I had. You'll gradually here about some of those here, some will go to my clients, some may appear in articles of mine, and some I'll be working on myself.

A few observations:

Some of the premier US law firms have bright and innovative IT directors who they are not using as effectively as they could.

The tension between where law firms are at and where there clients want them to be is growing greater and breaking points might be coming faster than many lawyers expect. Ron Friedmann's A New Approach to Control Outside Counsel Costs is a must-read in this context, but I don't think it goes nearly far enough and the push that will soon be coming from corporate legal departments will be far stronger than people imagine. You'll have to trust me on that, because my insights and advice on this issue are going only to my clients.

As lawyers continue to be unable to adapt rules based on paper documents to the rapidly changing world of electronic documents and networked environments, there are fundamental questions about the continuing relevancy of today's legal system and the current mode of practice of law. If lawyers do not become involved in issues like security, validation, authenticity and the like, they risk being marginalized. One place to watch on these practical issues is Phil Windley's blog.

If you are looking for a very high value conference to attend in 2005, keep an eye open for next year's Legal Technology Summit.

Posted by dmk at 10:31 PM

Articles on CAN-SPAM Continue to Outpace Prosecutions

LawMeme points to GigaLaw's growing collection of over 30 articles on the legal aspects of the CAN-SPAM Act.

The GigaLaw collection is very useful for those of us conscientiously trying to follow the law for e-mailings that no one could reasonably believe were spam and wondering why our inboxes are filling with spam that does not comply with the law every day.

For further evidence of the sorry results from "well-intentioned" technology laws, take a look at Declan McCullagh's FBI plans spammer smackdown, which notes that there have been zero criminal prosecutions under CAN-SPAM. I'm also concerned that FBI resources that could be devoted to homeland security are seemingly being directed at spammers. Spam is a nuisance, but do we have the right priorities here?

Posted by dmk at 10:02 PM

May 20, 2004

CNET Makes My Father's Day Gift List for Me

Father's Day shopping may be a little easier this year, thanks to CNET's Dad's Gift Guide 2004. It's a helpful list of good tech purchases in a number of categories. You can even choose by the type of Dad you are. I wanted to be a Hipster Dad, but I think I'm more of a Mr. Frugal, especially since I was about to order one of the items recommended for Mr. Frugal.

Posted by dmk at 06:33 PM

May Issue of Law Practice Today

As many of you know, one of my outside projects is the American Bar Association's Law Practice Today webzine. The May issue is now out and is chock-full of great articles.

Here are a few highlights:

A set of three articles, including What Clients Want: Learn How to Listen to Clients When They Talk (Foonberg's Rules of Listening), from Jay Foonberg whose legendary book How to Start & Build a Law Practice, which launched many law practices, will soon appear in a new fifth edition.

Ed Poll's Six Things That Drive Clients Crazy (And What You Can Do to Avoid Them). Ed's new book, Collecting Your Fee: Getting Paid from Intake to Invoice, is drawing a lot of high praise and is on my reading list.

My good friend Wendy Werner has an excellent article that deserves a wide audience called Where Have the Women Attorneys Gone?

This issue has seven feature articles and six columns and will help cement Law Practice Today as a must-read for anyone seriously interested in the business of the practice of law.

I've chipped in with my monthly links column, Putting PDF and Adobe Acrobat into Your Tech Toolbox.

You can subscribe to a monthly e-mail "reminder" version of Law Practice Today, whether or not you are a member of the ABA Law Practice Management Section, at http://www.abanet.org/lpm/lpt/subscribe.html.

We are also ready to talk to potential sponsors and advertisers for placement in both the email version and on the web edition as well. If interested, get in touch with me and I'll get you to the right people.

I also want to note the great work Fred Faulkner at ABA does in producing and handling the technical end of LPT. Check out Fred's blog.

Posted by dmk at 06:20 PM

May 13, 2004

My DigiLearn Online CLE Courses

Some of my seminar materials are now being offered as online Continuing Legal Education courses through Digilearn and will qualify for MCLE credit in certain jurisdictions. I will have more courses there in the near future.

My current courses include:

Client-Driven Technologies

Creating a Law Firm Technology Strategy in 2004

E-commerce: Key Legal Concerns

E-mail Management for Lawyers: Taming the E-mail Tiger

Law Firm Technology: Planning and Strategy to Make it Pay

Software License Compliance: "Whatcha Gonna Do When They Come for You?"

As I've mentioned before, an increasing amount of my articles and materials will no longer be freely available on my website.

I'm now offering two compilations of my articles and other writings on CDs as PDF files. Ordering information is here.

Posted by dmk at 11:19 PM

Security holes uncovered in Symantec, Norton products

An important security warning not from Microsoft (via Computerworld):

"MAY 13, 2004 (TECHWORLD.COM) - Almost the entire range of Symantec Corp. security software, from Norton Internet Security through to the Symantec Firewall, requires urgent updates, the company has warned, after four critical vulnerabilities were found by security company eEye Digital Security Inc.

One of the holes remains open even with all ports filtered and intrusion rules set thanks to a separate design flaw, eEye has warned. This makes it an almost certain target for worm writers, one of which -- if history is any indication -- may be put out on the Internet within 24 hours. "

If you haven't already installed the Windows patch released on Tuesday, you might as well take care of both patches in one sitting.

Doesn't it seem like we do a lot of patching these days?

Posted by dmk at 05:48 PM

May 12, 2004

Good Use of Lawyers in IT Projects

John Gliedman has an article in the May issue of Darwin Magazine called "First, Use All the Lawyers," that offers a good checklist of ways to use lawyers effectively in IT transactions.

His conclusion, which I heartily agree with, is:

"If you include your lawyer as an advisor to the business team early on, you can make sure that your deal starts off on a sound footing and that you are comfortable with the process that lies ahead."

Bringing in your lawyer late in the deal almost always results in higher legal costs.

Gliedman sets out four key areas in which lawyers can help th deal process:

1. The well-utilized lawyer can ask you strategic questions and help you achieve your goals.

2. The well-utilized business lawyer can give you process-related advice to help you get from Point A to Point B.

3. The well-utilized business lawyer works as part of the negotiating team.

4. The well-utilized business lawyer can document your intentions clearly.

The article is the latest in a series of excellent columns that run under the heading of "Legally Speaking" on Darwin.com.

Posted by dmk at 07:14 PM

Bill Clinton in Vanity Fair

When Bill Clinton was leaving office, I argued to forget about the rumors of a Bill Clinton talk show because the most compelling reality show ever would be one in which we followed Clinton around 24 hours a day. After reading the new article on Clinton's current life in Vanity Fair (the one that says "Brad Pitt Naked" on the front), I'm even more convinced that such a show would be a huge hit.

I'm no Clinton fan (don't get me started on where his "health care reform" has left us), but it's impossible not to be fascinated by the actions of this larger-than-life character as he struggles with his various demons and keeps up his frenetic pace. There is the ever-present sense with Clinton of wasted or squandered opportunities. We see it and so does he.

The article, which I guarantee you will read from beginning to end in one sitting, shows his titanic struggle to write his book (in the TV show, we'd follow Clinton going to a dozen events, hanging out with tons of people and telling everyone how hard he is working on the book, with a cut back to a legal pad on his desk filled with doodles) while working on his legacy (AIDS, for which he's done some real good, but battles with his inability to keep his focus on it) and trying to engineer the Democratic nomination process (littered with the failed candidacies of the people he "helped," yet clearly Kerry would be halped by Clinton's political insights).

Through all of this, however, the article shows Clinton's aura and star power, his impact on people and his ability, when focused, to get things done, and the fascination we have and will continue to have with him and his "legacy."

One question: Clinton or Bremer in charge of Iraq? Clinton is looking for a legacy and bringing in Iraq for a safe landing would give that to him. Just a thought.

By the end of the article, however, you are left with a sense of sadness - that sense of wasted opportunity that always follows Clinton around. And, there's a strong sense of the Ancient Mariner in some of the stories, the guest who overstays his welcome, talking endlessly about himself, while people try to ease him toward the door. Read the article and see if you pick up that same feeling.

Posted by dmk at 02:10 PM

IRS invites Denial of Service Attack?

From Paul Caron's TaxProf Blog:

IRS To Seek Input on "Systemic Tax Issues"

"The IRS today invited Tax Profs, tax lawyers, and taxpayers to bring "systemic tax issues" to the attention of the IRS's Taxpayer Advocate Service via the Internet. Advocacy projects will be initiated on those items that affect multiple taxpayers and relate to IRS systems, policies, and procedures. The advocacy projects developed from these issues are designed to accomplish four fundamental goals:

? Protecting taxpayer rights
? Easing or preventing taxpayer burden
? Ensuring equitable treatment of taxpayers
? Providing essential services to taxpayers

To submit suggestions for advocacy projects, go here and click on ?What is Systemic Advocacy.?

So soon after April 15?

Maybe it's because I used to be a tax lawyer, but I've consistently found the TaxProf Blog to be an excellent resource with lots of useful posts and continuing coverage of the dancing going on over the release of Teresa Heinz Kerry's tax returns. The most recent items notes that the first two pages might be released after October 15 and that releasing those two pages "strikes a balance between my family's privacy and the media's request for more financial information." Senator Kerry also went on to say, "Well, first of all, if I had been president, we wouldn't have had any need to seek input on systemic tax issues." Just kidding.

Check out the TaxProf Blog.

Posted by dmk at 01:43 PM

Firmwide Software Projects - What's In It For Me?

I got the chance to read through Roger Bonine's IT Manager.Net blog, subtitled "Making the practice of law a little geekier." In addition to starting to put together a list of .Net questions for Roger, I found quite a few great posts.

"What's in it for Me?" is a great summary of the areas of "friction" you will find when trying to implement a major software project at a law firm. It is especially interesting because it takes into account the IT department's point of view on these issues.

He says:

"[Attorneys] aren't, however, so excited about the new system that they're anxious to sacrifice their billable time to help design it. We will be expected to do the best that we can with minimal attorney input. Then, after rollout, the (mostly) negative feedback that we receive will help shape the system to the attorneys' individual needs. This isn't the most efficient methodology from the IT manager's point of view, and it isn't always the best thing for IT morale. But it's an almost Darwinian method of continuous improvement that gets the job done."

The money quote:

"(Our job is to make the tools available, not to enforce usage.)"

If lawyers and IT departments spent some time deconstructing that comment and its implications, you'd see more successful projects. Roger, by the way, makes this comment wistfully and obviously appreciates the difficulties of environments where this comment is so often accurate.

From tips on finding the meaning of Microsoft error message numbers to discussion of lawyers' fears about moving to Lexis or WestLaw web interfaces, there's a lot of useful information from an experienced IT person who lives in the legal industry.

Posted by dmk at 01:21 PM

May 11, 2004

The True Competition for Estate Planning Lawyers???

From the excellent DealNews.com, which gives you a daily email option and a choice of RSS feeds to bring you all kinds of Internet bargains:

**WillWriter 2002 for $1.99** - 10:16 am

software-blowouts.com offers Broderbund's WillWriter 2002 for $1.99, the lowest price we've seen. Shipping is $5.95.

http://dealnews.com/newsdaily.html?article,65888

I'm having a hard time (and I used to do only estate planning) coming up with an argument as to why not to use this for my own will, for a set of standard forms, or, in cases where there are no estate tax concerns or other special circumstances, to recommend this software to a reasonably savvy person to prepare a draft and then hire a lawyer only to review the documents and supervise their proper execution. In the last option, a client would pay only a small fraction of the going rate for estate plans while still getting the services that are the most important for a lawyer to provide. A case could be made that an estate planning lawyer should scoop up a bunch of these at $1.99 and offer them free to new clients, outsource the preparation of documents to clients, and charge them only for review and execution services and a "maintenance" plan.

The real practice of law question that I am trying to come to terms with these days: Should the cost of standard "form" document preparation drop to zero and document preparation simply be a standard feature of a "legal services package"?

Posted by dmk at 11:23 AM

Raising Your Return on Innovation Investment

I'm fascinated by innovation and read everything I can get my hands on about innovation and innovation strategy. A new article in Strategy+Business called "Raising Your Return on Innovation Investment" by Alexander Kandybin and Martin Kihn of Booz Allen Hamilton, has definitely gotten my attention.

In the article, the authors put together a very useful analytical approach that identifies four steps of innovation (and innovation investment) complete with the expected matrices and charts, which are quite helpful. Of special value is the author's approach to the "innovation value chain," which consists of "four pillars" - ideation, project selection, development and commercialization.

The authors go on to discuss whether each of the four pillars needs to be done within the organization or whether it can be done outside the organization. I highly recommend this discussion to you as a way to think about innovation and new projects.

The money quote (one of many possibles):

"The first link in the chain, idea generation, is clearly ripe for outsourcing; a company should cast as wide a net as possible for ideas. By contrast, the second link, project selection, cannot be outsourced. This critical step speaks to the heart of a firm?s strategy and its vision for its business ? its corporate soul, if you will. There are few conceivable means by which a company can outsource its selection of investment opportunities and still remain an entity in any but the vaguest sense of the word. "

This analysis seems exactly right to me. I can bring you ideas, information, methods and even analytical or evaluative tools as an outsider, but there comes a point where the decision has to be made by no one but you. It's like the old saying, you can bring a lawyer to [name any technology here], but you can't make the lawyer use it.

Speaking of innovation and return on innovation investment, I've just received the beta version of CaseMap 5 , about which I'll be writing an article. There is a major new feature that I think will make this great program even more essential for litigators and, more importantly, for clients who are involved in litigation.

Posted by dmk at 11:03 AM

Upcoming DK Presentation: Legal Technology Summit

Marcus Evan's Legal Technology Summit will be on May 16 - 18. It is described as a unique forum where "CIOs, CTOs, CKOs and other top-level technology decision makers from major Law Firms will join senior executives from leading Solution Provider companies to explore strategies for maximizing the effective use of technology in today's Legal industry."

I like the emphasis of this conference on facilitating the sharing of real world experiences and lessons among the top-notch audience. I played a minor role in helping set the program's agenda and am struck, looking at the agenda again today, of what a thourough job the program does of hitting so many big issues.

I'm delighted to have the opportunity to speak/lead a discussion with Toby Brown on "The Pros & Cons of Expanding Outsourcing Beyond Litigation Support," a favorite topic of mine. I'm excited to get to meet the stellar group of speakers and the probably even more stellar group of attendees. I'm going to learn a lot.

I believe that there is still time to register for this summit. If you will be there, please let me know and we can get meet in person and chat.

Posted by dmk at 10:31 AM

Law Firm Managing Partners Lack Leadership Training

Altman Weil's email newsletter is a great monthly resource on the business of the practice of law. The one I received today is no exception.

Perhaps the most interesting article in this issue is Marci Krufka's "Managing Partners Lack Leadership Training (PDF)" which definitely deserves a wide distribution. Krufka notes:

"According to Altman Weil, Inc.?s 2004 Managing Partner and Executive Director Survey, approximately forty-two percent (42%) of managing partners have not participated in any management skill-building seminars or training courses in the last three years. In what other market would you find Chief Executive Officers with little or no formal business education and no continuing professional education on the topic? [emphasis added by DK]"

And the money quote:

"Compare lawyer-managers to their counterparts in large accounting and consulting firms. In these other professional services firms, most professionals have had at least 300 hours in leadership and managing training before beginning even their first management position (let alone management of the firm). [emphasis added by DK]"

It should be obvious that this training deficit has consequences in many contexts, not the least of which is IT planning and implementation. I would expect to find that stats on training for IT decision-making to be even bleaker. How, then, will law firms consider, make and implement initiatives in areas like client-driven technologies amd Sarbanes-Oxley compliance, let alone keep up with basic software, hardware and security issues?

While I do consulting and executive coaching in precisely these areas and want to do quite a bit more, there seems to be a need for coaching and training at any number of levels, based on the numbers shown in this article. I'm curious if others who consult and coach in these areas are seeing more demand, or is there still an ostrich-with-head-in-sand approach at 42% or more of law firms.

Posted by dmk at 10:13 AM

Using IT to Comply with Sarbanes-Oxley

While Sarbanes-Oxley compliance is at or near the top of the list of corporate IT concerns, there has been little detailed discussion of the implications of Sarbanes-Oxley for how law firms handle their clients' information or for law firms themselves. Now, part of the reason for that may be that legal profession, fresh off a victory in a ruling that Graham-Leech-Bliley does not apply to lawyers (we'll leave the negative PR implications of that "victory" aside for now), remains confident that Sarbanes-Oxley will not apply to law firms.

However, I'm not sure that corporations spending millions of dollars on Sarbanes-Oxley compliance want to be so cavalier about the legal profession's notoriously less-than-air-tight approach to information security.

I collect good, practical articles on Sarbanes-Oxley compliance and have found a gem of a short overview called "Using IT to Comply with Sarbanes-Oxley by Elvia Novak. It's not a detailed article, but it strikes me an excellent high-altitude view of what's important.

The article can be found on the excellent SmartPros Accounting website. It's not often that you can say that a publication with articles for accountants is a must-read, but I've found the SmartPros e-mail newsletter a consistently great source of useful information and a regular part of my Monday morning reading routine.

Posted by dmk at 09:28 AM

May 07, 2004

Muddling Through the Metadata Morass

"Muddling Through the Metadata Morass" is the title of the newest electronic discovery column George Socha and I have written for the DiscoveryResources.org website.

Many lawyers have difficulty in understanding what metadata is. George offers a simple method for seeing a good example of metadata:

" For a quick look at basic metadata associated with a file, open any Microsoft Office application, such as Word or Excel. If you are in Word, select " File" from the menu bar. From the drop-down menu, choose "Properties" (if you do not see "Properties" then select the two downward-pointing arrows to see the full slate of choices). This should bring up a separate box on your screen with five tabs: "General," "Summary," "Statistics," "Contents" and "Custom." Each of these tabs shows metadata associated with the file."

As I say:

"There are many open questions. Given the lack of awareness of many lawyers, simply turning off the "track changes" on Word documents, which does not remove the metadata, does in fact make it invisible to unsophisticated readers. How would a court treat that approach? Is it possible to educate a judge about metadata and obtain a protective order that effectively permits the scrubbing of metadata? Should discovery requests routinely refer to production of documents in a format where metadata has not been scrubbed or altered?"

George ends with a useful question that any lawyer involved in electronic discovery should keep in mind - "What would I do with paper?"

Posted by dmk at 10:43 AM

Jim Calloway - Technology and Stress: Grant Me Serenity

One of the many people I know who should be blogging is Jim Calloway. Among other things, I have the pleasure of serving on the TechShow 2005 Board this year when Jim chairs the Board.

Law Practice magazine has published a terrific article from Jim called "Technology and Stress: Grant Me Serenity." The title largely speaks for itself, but, and I mean this as a huge compliment, this article is one that I wish I could have and would have written. However, I know that I could not have done it as well as Jim has. What I enjoy most about this article is how Jim's genuine good-heartedness shows throughout the article.

Note that the Law Practice version of the article may eventually become unavailable to non-members, but another version of the article is here.

Posted by dmk at 09:08 AM

May 06, 2004

Rumsfeld Resignation Ruckus

Since I've confessed to liking Clippy, I might as well admit that Donald Rumsfeld is my favorite political television character. Unfortunately, I keep finding that my favorite TV shows get shifted to all kinds of odd times or get cancelled.

As many bloggers know, Rumsfeld is responsible for the legendary Rumsfeld Rules, the nearest equivalent we'll see to a modern day Sun Tzu's Art of War. You can dive in at any point and find a gem, For example, "Reduce the number of lawyers. They are like beavers -- they get in the middle of the stream and dam it up." There's great stuff in there.

As we gird for the coming political battle and learn whether it will be Rumsfeld who become the sacrifice to Washington politics (rather than, say, George "It will take at least 5 more years to get our intelligence to the level it needs to be" Tenet?), I highly recommend reading James Mann's Rise of the Vulcans: The History of Bush's War Cabinet to get some sense of the history and background of the players and the underlying issues.

Posted by dmk at 10:07 PM

Clippy and User Experience

I always enjoyed the shocked reactions I get when I tell people that I find Clippy, the Office Assistant, very helpful and can't imagine why anyone would turn Clippy off. In fact, I just wrote the following tip for a seminar handout:

"Ask Clippy. Clippy, the animated paperclip that appears in Microsoft Office programs, gives you helpful hints and answers your question. Clippy also drives many people crazy and one of the easiest tips to find on the Internet is how to turn Clippy off. Dennis has long been one of the six people outside of Microsoft who likes Clippy. He wants to convince you to give Clippy a chance. Clippy is both an example of a simple artificial intelligence application and an advanced form of contextual help. When you run into a problem or forget how to do something, you simply click on Clippy and type in your question. The results are nearly always exactly on point and offer step-by-step directions to do what you want to do."

I've always assumed that I was one of about a half dozen people outside of Microsoft who like Clippy, but I greatly over-estimated the negative response to Clippy. In fact, people have a 50-50 love-hate response to Clippy. In his fascinating history and analysis of Clippy and User Experiences, , Chris Pratley, Group Program Manager at Microsoft with responsibility for the very cool OneNote program, "But only 50% is not good enough when a significant chunk of the other 50% felt strongly negative toward the Assistant. So eventually (Office XP), the Assistant was turned off by default and the issues that made it come back sometimes were finally exorcised."

Chris's blog has been a fascinating attempt to make the process of developing OneNote more transparent and it's clear that he's someone who listens to comments and thinks about them. He ends his essay with:

"So, was the Assistant a success, failure or something in between? If so, why? If you think the Assistant idea was bad, why exactly? It is interesting to learn from these experiences to try to move the state of the art forward. I have heard that the researchers who originally supported the idea claimed that the idea was sound, but the implementation in Office was inadequate and flawed. Many in Office would say that the idea would not have worked acceptably well even with an ideal implementation. Still others would say it did pretty well, and with a little more work could have been made useful for those who would use it, and not annoying for others."

If you want to see a very cool new functionality for OneNote that fills a crying need that I have, check out Rss2OneNote. Pretty cool idea, huh?

Posted by dmk at 09:49 PM

J. D. Lasica's Great Overview of RSS Tools

J. D. Lasica has a new article "Surf's Down as More Netizens Turn to RSS for Browsing" that gives a great overview of a good number of useful RSS tools. Lasica is well-known for his blog, New Media Musings, and his classic 5-word description of RSS feeds - "news that comes to you."

The article and accompanying list of tools will give you quite a few things to explore.

Posted by dmk at 09:07 PM

May 05, 2004

Real and Imaginary Lunches with Blawgers

Scheherazade has a great post today about having imaginary lunches with legal bloggers.

On the other hand, I got to have a real lunch today with Matt "the [non]billable hour" Homann.

Matt's a great guy with tons of cool ideas that mesh with many of my own. I learned a bunch of new things and was especially interested in Matt's fascination with an online project management tool called BaseCamp. I'm impressed with Matt's ideas on how he can use it in his practice.

It was a beautiful day in St. Louis today and we decided to sit at an outdoor table. It turned into a 4-hour lunch, but, in fairness, we did put together solutions to most of the problems with the legal profession and many other issues as well.

I've now gotten to spend a fair amount of time with a good number of the legal bloggers. Here's my conclusion: damn, what a bunch of bright, interesting and good-hearted people, any one or more of them who seems capable of dramatically changing the way things get done.

And I'll forgive Scheherazade for overlooking me on her lunch list in exchange for an invitation to her first blawger sailing party.

Posted by dmk at 09:26 PM

How Companies Use (and Abuse) Law for Competitive Gains

Wharton's Strategic Management has published "How Companies Use (and Abuse) Law for Competitive Gains," an extended excerpt from a new book by Wharton legal studies professor G. Richard Shell, called Make the Rules or Your Rivals Will. I expect that the book will create a lot of interest and controversy.

From the story:

"Shell?s thesis centers on what he calls ?competitive legal strategy? ? the use of contracts, courts, regulation, and lobbying to secure competitive advantage in business. He shows how Sumner Redstone, Rupert Murdoch, Andy Grove, and Bill Gates, among others, have forced rivals to the bargaining table with litigation, defined the boundaries of their markets with regulations and used politics to fight competitive battles. Nor, Shell notes, is this a recent development. Long before SCO Group tried to gain control over the Linux market with copyright lawsuits, the first manufacturers of sewing machines, automobiles, radios, and even airplanes perfected litigation strategies to control their respective industries. Shell uses examples from business history to illustrate his thesis."

A concluding point that is worth taking some time to think about:

"Law is perhaps the most hidden of all competitive strategy tools. Many in business fear getting tangled up with lawyers, lobbyists, and bureaucrats, so they keep their distance from legal matters. But it is just this aversion that makes legal knowledge such a rich source of competitive advantage for those who take the time to understand how legal systems really work."

What comes first - legal strategy classes in business schools or business strategy classes in law schools?

Posted by dmk at 09:07 PM

What are Webfeeds (RSS) and Why Should You Care?

Amy Gahran has posted an excellent and thorough tutorial on webfeeds (RSS) that will now become the first reference resource I send people to when they ask me about RSS feeds, news feeds and webfeeds (the new term clamoring for attention and adoption, which Amy explains in part 11 of her tutorial).

Excerpt:

"A WEBFEED PLAYS TWO ROLES

First, it's a publishing channel for delivering announcements of what's new on site, or other kinds of messages or content, to an online audience.

Second, it's a syndication channel that makes it easy for other sites to find or even republish a site's content. Played well, these roles can vastly extend the audience for a site's content."

Posted by dmk at 10:02 AM

May 04, 2004

Sasser Worm/Virus Hurts Amex in Multiple Ways

From NetworkWorldFusion:

Sasser infections hit Amex, others

"American Express joined a number of U.S. universities in reporting infections from the Sasser worm on Monday and the SANS Institute's Internet Storm Center (ISC) maintained a yellow warning Tuesday despite expectations earlier in the day that the Sasser outbreak would wind down Monday, according to interviews."

But here's the money quote:

"Sasser exploits a recently disclosed hole in a component of Microsoft's Windows operating system called the Local Security Authority Subsystem Service, or LSASS. Microsoft released a software patch, MS04-011, on April 13."

A few observations:

1. How much patience should we have with organizations that put the rest of Internet users at risk and inconvenience because of their inattention to widely-publicized and preventable security and virus problems? And, although I hate to be a lawyer on this point, but at what point does legal liability attach for inattention to this kinds of preventable risks?

2. Don't the large organizations mentioned in these articles have someone designated to deal with Windows critical updates?

3. I received an e-mail from Amex this morning with an attractive new feature for my account with a hyperlink for me to click on. Would you be willing to click on that link? I wouldn't because now I have no confidence that the e-mail came from Amex. In fact, I have serious doubts now about the safety of my personal information held by Amex. I found the time to install the Windows update and I am an IT department of one.

4. If you are working with anyone, including law firms, that continue to be ravaged by these types of preventable problems, don't you think you need to start questioning why you continue to do so?

5. I now hope I don't get bitten in the ass by Sasser as an ironic way to prove my point. :-)

Posted by dmk at 11:20 AM

New Issue of IP Memes Newsletter Released

I'm a contributing editor of TechnoLawyer's IP Memes newsletter (free subscription after registration). Yesterday, the new issue that I was responsible for was released.

The title of the new issue is "IP Memes: Spyware, The New Sport of Kings, Driver's Ed Movies ? and Other Hot IP Issues."

Here are a few of the items I cover in the newsletter:

PATENT LITIGATION: THE SPORT OF KINGS

This article is a must-read for the title alone. From the article: "Patent litigation is a growth industry. According to the American Intellectual Property Law Association, in cases where between $1 million and $25 million is at risk, a patent owner should expect to spend more than $2 million to litigate a patent through trial and appeal. Where more than $25 million is at risk, costs climb above $4 million. All this, to litigate a patent that an attorney likely wrote in a week or two, and that the U.S. Patent and Trademark Office probably spent less than 20 hours examining." [Note: A free registration might be required, but it's worth the effort.] Technology Review Article

THE NEW SURVEILLANCE

Sonia Katyal's winning entry for the 2004 Yale Law School Cybercrime and Digital Law Enforcement Conference writing competition addresses the intersection of anti-piracy efforts and privacy concerns. From the abstract: "In the past, legislators and scholars have focused their attention on other, more visible methods of surveillance relating to employment, marketing, and national security. Piracy surveillance, however, represents an overlooked fourth area that is completely distinct from these other types, yet incompletely theorized, technologically unbounded, and, potentially, legally unrestrained. The goals of this Article are threefold: first, to trace the origins of piracy surveillance through recent jurisprudence involving copyright; second, to provide an analysis of the tradeoffs between public and private enforcement of copyright; and third, to suggest some ways that the law can restore a balance between the protection of copyright and civil liberties in cyberspace." Social Science Research Network Electronic Library Article

LEGAL PROTECTION OF CULTURAL PROPERTY

A useful outline of resources relating to the protection of important cultural treasures, international trade in cultural property, and illegal traffic in art and antiquities. A cultural legacy is an important thing not to lose. LLRX.com Article

TECHNOLOGY TO WATCH - ON DEMAND COMPUTING

Those with sharp eyes will notice quite a bit of the "application service provider" model in the new buzzword "on demand computing" that is a primary technology initiative of IBM. The concept, however, has made inroads wel outside the IBM marketing world because of the attractiveness of cost-cutting opportunities. Watch for a big push and greater visibility for the notion of on demand computing. It is an important concept with lots of implications for software licenses, IT agreements and intellectual property rights of all kinds. The term is also expanding to take in the notions of "grid computing," "utility computing," and "virtualization," with applications in e-commerce, bioinformatics and other hot areas. ZapThink Article & IBM Article

FILE-SHARING PROHIBITIONS AND UNINTENDED CONSEQUENCES

Edward Felten has posted a short but fascinating discussion on the Freedom to Tinker blog about file-sharing, stopgap measures and the negative effects stopgap measures have on security. The article will get you thinking in some new ways. Freedom to Tinker Article

AT LEAST WE HAVEN'T GONE QUITE THIS FAR ON INFRINGEMENT EDUCATION -YET

John Farmer of the Leading-Edge Law Group PLC suggests the use of intellectual property videos similar to the old high school driving movies, i.e., showing the death, carnage and mayhem that results from poor patent, copyright and trademark planning. It's an attention-getting device (especially for those of us who have seen those movies) for a good discussion on the benefits of intellectual property management and planning. PHOSITA Article

Posted by dmk at 11:00 AM

Participate in E-Discovery Survey

I want to pass along the following information from electronic discovery expert George Socha about an important electronic discovery survey he is doing. Among other things, George co-authors with me "The Electronic Discoverers," a new monthly column on electronic discovery at DiscoveryResources.org.

Here's the info I want to share:

George is conducting the 2004 Socha-Gelbmann Electronic Discovery Survey and encourages you to participate in the online portion of that survey.

He says:

"After nearly two months of gathering information, we are drawing near to the of this phase of the survey. We have been pleased with the results but we always are looking for more input and hope that you will take the time to complete the on-line survey.

You can log on to the survey by going to http://www.vencio.com/survey04. Depending on your responses, you can expect the on-line survey to take 15 to 30 minutes. Please note, however, that you can complete the survey over multiple sessions and revise your answers before they are final. Whether you complete the survey in one session or over multiple sessions, once you start the survey you will have until the latter part of May to complete it.

Also, please note that you are not required to answer all the questions. If there are questions you would rather not answer, skip them and move on.

Confidentiality of the information you provide is important to us. Please know that we will not disclose personal information about you to any third party without your consent or unless we are required to do so by law.

For those of you who choose to participate in the on-line survey, we thank you. As a token of our appreciation for taking the time to complete the survey we will send you a complementary abridged version of the report made available to subscribers. To see last year's publicly released report, go to http://www.sochaconsulting.com/Publications/DDEE%2005.03.pdf.

For more detailed information about the 2004 Socha-Gelbmann Electronic Discovery Survey, go to
http://www.sochaconsulting.com/2004survey.htm. To log on to the survey, go to http://www.vencio.com/survey04."

+++++

This survey should produce some very useful information for lawyers, the court system and, perhaps nost important, clients of lawyers.

Posted by dmk at 10:29 AM