Dennis Kennedy

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March 29, 2007

The Vital Role of Depositions in Electronic Discovery

Check out the new Thinking E-Discovery column, "Incorporating EDD into Your Depositions - the 5Ws of EDD Depositions" from Evan Schaeffer, Tom Mighell and me, on the great DiscoveryResources.org site (a sponsor of this blog).

It's partly a little celebration of the publication of Evan's book, Deposition Strategies & Checklists, but it's primarily a unique, simple and practical exploration of the idea of how to use non-electronic techniques - deposition questions - to be successful in electronic discovery. I mainly ask the questions and Tom and Evan offer up a ton of useful advice and tips. Good stuff.

The more that you can treat EDD as evolution rather the revolution, the better off you will be. For now.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Learn more about electronic discovery at Dennis Kennedy's Electronic Discovery Resources page.

Technorati tags: legal technology electronic discovery deposition thinking e-discovery

Posted by dmk at 09:39 PM | Comments (0)

March 28, 2007

Robust Decision-making

A fun aspect of blogging for me is that occasionally authors send me copies of their books because they like a post of mine on the topic of their book. Recently, I've enjoyed reading and recommend Ross Dawson's Developing Knowledge-Based Client Relationships (Second Edition) and Rajesh Setty's Beyond Code which the authors sent to me.

The book that I want highlight and recommend to you is David Ullman's Making Robust Decisions. I've done some research into decision-making over the years. I've even had some general discussions about the potential for decision-making software in the legal context.

Making Robust Decisions takes a deep dive into decision-making, especially for teams, and is one of those rare books that I immediately put on my "to re-read" list.

Highlights:

1. As thorough an analysis of the science of decision-making as I've seen in a popular text. There's even mathematics. Fascinating stuff.

2. Thoughtful discussion of the human dynamics at play in group decision-making.

3. Excellent description and analysis of a variety of tools and techniques, with templates and practical illustrations.

4. Most important, a focus on how to turn process into ACTION. Very worthwhile. I seem to be making a lot of tough decisions lately and this book has been very valuable. This emphasis on action will change the way you look at decision-making.

There's also a lot of coverage of topics that have captured my attention over the past few years, including John Boyd's OODA Loop and a good critique of the over-worked notion of consensus decision-making, quoting Margaret Thatcher, "To me, consensus seems to be the process of abandoning all beliefs, principles, values and policies. So it is something in which no one believes and to which no one objects."

Ullman's combination of "robustness" in decision-making and practical action is a powerful approach.

Highly recommended and a big public thank you to David Ullman for sending me a copy and realizing that it would fit so well with my thinking and perspective.

Making Robust Decisions

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Learn more about electronic discovery at Dennis Kennedy's Electronic Discovery Resources page.

Technorati tags: legal technology decision-making ooda making robust decisions

Robust decision-making

Posted by dmk at 08:39 PM | Comments (0)

March 22, 2007

No Malpractice Insurance for Law Firm Blogs?

As I often say, if telephones were introduced today, there's no way that the use of telephones by lawyers would be approved under today's ethical and regulatory environment for lawyers. Just think of all the horrible things that can happen when lawyers use telephones.

Like faxes, emails, and websites before them, the "new technology" of blogging has seemed to flummox bar regulators who are unfamiliar with what blogs actually are.

The (over)reaction to blogs continues to surprise me. Let me say this as simply as I can. Blogs are simply one kind of website. The rules on lawyers' use of websites have actually reasonably clear and well-settled since about 1997. At least until the publicity blogs have received in the last two years. Since then, as I have said before, it has really become impossible to determine how blogs will be treated or to predict how regulators will deal with blogs, as the recent New York rules illustrate.

That said, there's been a modest movement toward more reasonable thinking about blog regulation since the New York regulators listened to comments to their proposed rules and made a few changes, even though there's no consensus how even those changes apply to blogs.

Last night, I saw Carolyn Elefant's post about a New Jersey law firm dropped its plans to start a blog because its malpractice carrier, the Chubb Corp., indicated that it might not insure the blogging activity.

I must admit that this came as a surprise to me. I almost posted about the story last night.

This morning, I got a call from Heather Havenstein, from ComputerWorld, asking me for some comments on the story. Her story, "Insurance company refuses to cover law firm's blog," has appeared already on the online edition of MacWorld.

The quote she used from captures the heart of my perspective on this story:

However, [Kennedy] said these types of attempts to impose new types of restrictions on blogs likely occur 'when people aren’t that familiar with the technology and think it is somehow completely new and different. Really blogs are just a form of Web pages. What you’re doing is not different than if you are speaking in public or writing an op-ed piece.'

Or using a website as lawyers have done for at least the last 12 years. Or talking to someone on a telephone.

While I am convinced that blogs can be a vehicle to greatly enhance communications with clients and the public, I am not convinced that, at root, blogs present any new issues that require different treatment under ethical and regulatory rules than any other prior communication technology.

I also suspect that a 5 or 10 minute conversation with a malpractice insurance carrier would alleviate any reticence or concern about covering blogs. It might, however, raise some concerns about whether malpractice carriers want to cover the use of telephones by lawyers. Heh.

My rule of thumb on these issues is to simply substitute the word "telephone" for "blog" and then see if there is any new issue raised by blogs that aren't raised by telephones. I haven't found any yet - in twelve years off thinking about these issues since I first started my website.

Kevin O'Keefe also has his usual great perspective and analysis on this issue here. Careful readers might guess that Kevin and I have had conversations about this issue over the years where we've both used the telephone analogy.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Like what you are reading? Check out the other blogs where I post - Between Lawyers (feed) and the LexThink Blog (feed).

Technorati tags: legal technology ethics malpractice insurance blogs telephones

Posted by dmk at 10:20 PM | Comments (1)

March 21, 2007

Impromptu Consultation and the Post-Email Era

Dave Pollard's post called "Re-learning the Art of Impromptu Consultation" struck me as being an important one as we move into the post-email world and consider how collaboration tools should work.

How do we duplicate the best aspects of face-to-face communication (and here Pollard's emphasis on consultation seems especially important) when we increasingly work, collaborate and communicate electronically?

There's much to chew on in Pollard's post. The money quote:

What we could do is to add to IM an ability to:

a. virtually 'knock', just-in-time, with an indication of how many minutes of the consultee's time we need,
b. simply conference others into the conversation, and
c. simply add voice, video and desktop-sharing capability to the IM conversation.

Then IM, instead of having to carry the conversation, would be used mostly to set up the conversation, in a way analogous to the 'knock on the door' that is used to set up a face-to-face just-in-time conversation ("do you have 5 minutes to resolve a problem we're having with…?"). Once the IM 'knock' was accepted, the participants would then 'one-click' into a VoIP conversation with video and desktop-sharing 'attached' to the resizeable IM pop-up window. . . . The advantages over e-mail are increased effectiveness (because the conversation is real-time interactive and spoken, not written and asynchronous), and improved context (because of the addition of aural, visual and body-language 'clues').

His conclusion is something that we all should spend some time thinking about:

Ubiquitous e-mail and Internet access in organizations have created more problems than they've solved, and it's time to rein them in to situations where their use is appropriate and effective. To do so, we'll have to relearn some old tricks, like how to consult, converse, communicate and research, professionally. It can't happen soon enough.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Learn more about legal technology at Dennis Kennedy's Legal Technology Central page.

Technorati tags: legal technology collaboration email

Posted by dmk at 10:12 PM | Comments (0)

March 20, 2007

TECHSHOW 2007

I decided to take a break from ABA TECHSHOW this year. However, it starts Thursday and, as I knew I would, I'm having pangs of regret. On the other hand, I've got so many things going on here that I know I made the best decision.

TECHSHOW has long been the best lawyer-focused, education-oriented legal technology show of the year - at least in my opinionated opinion, and given my bias of having spent a couple of years on the TECHSHOW Board.

This year, my good friend and honorary cousin, Dan Pinnington, is chairing the show and I'll miss being with him to see how much he enjoys having his vision of TECHSHOW come to life. I know the people on this year's board well, and know that they'll put on a stellar show. I really like to see how they enjoy pulling the whole show together and the big smiles on their faces during and after the show.

There's still some time to make plans to attend the show, and, if you are in Chicago, there's no excuse for not snagging a free exhibit hall pass and spending a few hours or a day hanging around the exhibit hall and learning about what's happening in legal technology. There are also a number of dinners and informal events where you can get the chance to meet and chat with some of the notables in legal technology and a big, friendly group of lawyers interested in technology.

My best TECHSHOW tip: grab a chair in the lobby of the Sheraton and join in the spontaneous conversations that arise. Some of my favorite times at TECHSHOW have been sitting in the lobby until the wee hours talking with Jerry Lawson, Alan Pearlman, Ernest "Ernie the Attorney" Svenson, Dan Pinnington, Jim Calloway, Jeff Beard, Adriana Linares, the Rethink IP guys, and many, many others, but especially my longtime pals from CaseSoft, Bob Wiss and Greg Krehel - I'll definitely miss our annual get-togethers this year. By the way, it was largely my experience in these conversations in the Sheraton lobby that shaped my understanding of "unconferences" and led to LexThink.

I looked over the program schedule and, as usual, there are great sessions and speakers. Especially if you are in Chicago, it's worth taking advantage of this opportunity. You won't find a more open, generous and helpful group of people.

Yes, I'll definitely enjoy the break from speaking at TECHSHOW this year (it's nice not to be preparing two new presentations at this time of year), but I'll definitely miss the camaraderie and fun. No doubt.

I've been brainstorming with Tom Mighell tonight to see if there's a way to use Twitter to let me hang out with the people at TECHSHOW vicariously. It'll be interesting to see what will happen on that.

Which reminds me. . . I had a great time at Matt Homann's latest idea market last night. I met some great new people and got to catch up with a few friends. And I got the chance to talk about blogging, including a conversation with two other St. Louis bloggers who have been blogging for more than four years. We shared notes, and quite similar observations, about the clear "generations" of bloggers. I might revisit that topic in a future post.

Matt previewed some of his TECHSHOW presentation on Web 2.0, and, if you are at TECHSHOW, I can tell you that that presentation will be very, very good. When you see Matt, be sure to ask him about the next LexThink event.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Like what you are reading? Check out the other blogs where I post - Between Lawyers (feed) and the LexThink Blog (feed).

Technorati tags: legal technology techshow LexThink! unconference web 2.0 idea market

Posted by dmk at 08:17 PM | Comments (1)

March 19, 2007

Collaboration Tools for Lawyers: The Book

Dennis Kennedy and Tom Mighell are pleased to announce that they will be writing a book on collaboration tools that will be published in early 2008 by the American Bar Association. The book is tentatively titled: "Collaboration Tools for Lawyers: Essential Ways to Work Together with Colleagues, Clients and Even Opposing Counsel."

Nearly every lawyer finds that colleagues, co-counsel, clients and even opposing counsel use the Internet and technology to collaborate and work together on documents, projects and cases. In the simplest scenario, lawyers and clients use the "track changes" feature in Microsoft Word to work together on a document. Technology today lets lawyers take collaboration to the next level. Many legal technology tools now include collaborative elements.

At the same time, lawyers increasingly use the Internet in many ways to work together. From document sharing to videoconferencing, there are more tools than most lawyers can imagine for working together, online.

Two key trends are at play here. First, for years lawyers have understood the clear benefits of collaboration and working together as a routine matter. Second, the availability of simple, inexpensive (even free) collaboration technology has created an environment where working together makes sense to nearly every lawyer in nearly every firm. The push forward on both trends is likely to continue.

Two other important factors also come into play. First, business clients are routinely using technology to collaborate and will expect their lawyers to follow. Therefore, collaboration tools illustrate a classic example of a client-driven technology. Second, events in the world from increased travel costs to possible pandemics make it even more likely that these tools will be adopted by necessity.

To the extent lawyers have experimented with these tools, they may have the nagging feeling that they are simply touching the tip of the iceberg of what might be available to them and how they might use these tools to their benefit. We believe that they are right to feel that way, because it is undoubtedly true.

The book will provide intensely practical advice for lawyers and law firms wanting to take better advantage of these tools and the benefits they bring. It will take a look at how to use these tools wells, focus on both categories of tools and specific individual tools, and provide concrete action steps and techniques so that even the least tech-savvy lawyer can catch up with the early adopters and successful innovators.

Collaboration Tools for Lawyers: Essential New Ways to Work Together with Colleagues, Clients and Even Opposing Counsel, by Dennis Kennedy and Tom Mighell (expected publication date: early 2008)

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Learn more about legal technology at Dennis Kennedy's Legal Technology Central page.

Technorati tags: legal technology collaboration book collaboration tools lawyers Law2.0

Posted by dmk at 11:12 PM | Comments (1)

March 15, 2007

Idea Market: Meet Me in St. Louis to Talk About Blogging

I don't get to speak about blogging nearly as much as I'd like to these days, but Matt Homann has given me the chance to lead a discussion about blogging at his Idea Market event on Monday evening, March 19. Matt wants you to reserve a spot (it's free) by joining this site. The Idea Market starts at 6:00 pm at the Lucas School House in the Soulard area of St. Louis. Keep an eye on Matt's blog for more details.

I understand that some of the other longtime St. Louis bloggers (like Randy Holloway) will also be there, so we might turn this into a St. Louis blogger meet-up.After all, St. Louis is Blawg City USA.

If you are a St. Louis blogger, a blogger who can get to St. Louis, or a blogger-to-be (i.e., some who is not already blogging), then it'd be great to meet you on Monday night and participate in what I'm sure will be an informative and knowledge-sharing conversation about many aspects of blogging. If you want to send me questions or topics that you want me to cover, that'd be cool.

And, as usual, there will be other fun stuff happening at the Idea Market too. Record "24" and get out the house on a Monday evening for a change.

See you there.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

This post brought to you by LexThink!(R) - The Legal Unconference. Ask us about private LexThink retreats and conferences for your firm, business or organization. Coming soon - LexThink Litigation 2.0.

Technorati tags: blogging saint louis LexThink! idea market

Posted by dmk at 09:44 PM | Comments (1)

March 14, 2007

The Electronic Discovery Continuum - Accelerating Complexity

I've been thinking about electronic discovery lately, in large part because we've been working on the LexThink "Litigation 2.0" event. Expect more details soon and please contact me or Matt Homann and we'll get you on the mailing list.

I've also just finished a new "Thinking E-Discovery" column with Evan Schaeffer and Tom Mighell that will appear on the excellent DiscoveryResources.org website (I'm so pleased that DiscoveryResources.org is a sponsor of this blog, because I am a big fan of the site and appreciate the high quality of information collected there). The column will interest many lawyers - I haven't yet seen an article that covers the topic we've chosen. That's called a teaser. That word might also apply to the previous paragraph.

But here are two things that caught my attention today that illustrate two points I make in my EDD presentations.

1. The concepts are easy, but the details can get complicated very quickly. Yes, we all know that digital information today can be stored in a variety of places, and that you need to extend your net to capture that information. However, it will often surprise people to find where that data is stored, often right under our noses, and how something once invisible becomes so obviously an issue once someone points it out to us.

Today's example is copiers and the tip comes from David Ma's techblawg in a post called "from the 'another security headache' department" that highlights a Wired article on the storage capabilities of copiers.

The basic point: many digital copiers contain hard drives. That shouldn't be a surprise, but who really gives it much thought. Ma and Wired point out the security (and privacy) issues, but it's apparent that copiers should be added to the list of data sources to be considered and explored in electronic discovery.

2. There are so many tools and vendors in EDD that even if you make it your business to keep up with the industry, it is extremely difficult and I wonder how EDD newbies even know where to start.

Today's example comes from my favorite EDD blog, Rob Robinson's Information Governance Engagement Area, in a post called "13 Tools for eDiscovery."

Here's a simple test to help you see where you fall on the EDD continuum. Read the list of 13 tools. See if you can determine the differences between each of the tools and when you might use one rather than another. Consider how you would determine what other tools compete with each of these and how you might evaluate how to choose one tool over another. Now decide if the phrase in my title, accelerating complexity, is apt. My guess is that it is.

It's the practical implications of issues and questions such as these that I'd like to delve into at LexThink Litigation 2.0 with others who really want to understand where we are going and how best to get there. Let us know if you are interested in joining us and tell us about the topics that you are losing sleep over so we can be sure that they are on the agenda and the people you'd most like to hear speak about these topics

And on a related note, as a final thought for this post, check out JP Rangaswami of the Confused of Calcutta blog's "more musings on the opensourcing of process" - the most thought-provoking post I've seen lately, with very interesting implications for the legal, litigation,and e-discovery processes.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Learn more about electronic discovery at Dennis Kennedy's Electronic Discovery Resources page.

Technorati tags: legal technology litigation 2.0 LexThink! electronic discovery unconference Law2.0 e-discovery EDD

Posted by dmk at 08:50 PM | Comments (0)

March 13, 2007

Keeping Track of Track Changes

Redlining and use of Microsoft Word's Track Changes feature have become necessary tools in a lawyer's technology toolbox today. Yet, all of us could use a little more knowledge and improvement in our skills in handling these tools.

In the latest "Strongest Links" column that Tom Mighell and I write for the ABA's Law Practice Today webzine, "Staying on Track with Track Changes," we pull together a great list of useful places on the Internet where you can learn more about these essential tools. I can assure that, given the amount of time it took us to find these resources, this article will save you time and give you a running start on learning about "track changes" and redlining.

The money quote:

Track Changes has its own unique set of frustrations, but its usage is now so common that lawyers, especially those with transactional practices, should be familiar with using the feature as part of their everyday document creation routine. . . . We can't promise that this article will eliminate all of your frustrations and difficulties with Track Changes, but it should definitely make your life with the feature a little bit easier.

As always, there are many other great articles in this month's issue of Law Practice Today.

Keep your eyes open for the next few days for an announcement about a major new writing project that Tom and I will be announcing. Comments are open for your best guesses.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Like what you are reading? Check out the other blogs where I post - Between Lawyers (feed) and the LexThink Blog (feed).

Technorati tags: legal technology track changes redlining

Posted by dmk at 09:36 PM | Comments (0)

March 12, 2007

Dennis Kennedy's Legal Technology Trends 2007 - the Download

I posted the long version of my 2007 legal technology trends article as a series of blog posts. I've also cleaned it up a bit and turned it into a PDF file that you can download for free here. Enjoy. As I've mentioned before, a presentation based on this topic will be one of the seminars I'm available to deliver this year.

My friend Neil Squillante recently posted some thought-provoking comments on the TechnoLawyer Blog about the state of legal tech in 2007. While my trends article is largely my answer, I liked this comment Neil made:

[S]ometimes it seems like the same legal technology predictions make an appearance every year, but nothing really changes. In fact, you could probably whip out a predictions article from 2004, change the date to 2007, and republish it. Ha!

That reminded me that I did something similar in 2005, when I pulled out my predictions article for 2000 without updating and invited people to compare to see how much and how little had changed, in both the industry and my own perspective. It's be instructive to read the 2000 article alongside the 2007 article and see if Neil's riposte is on target. It'll be fun, in any event.

As always, I invite your comments and questions about the 2007 article. I'd like it to be a discussion-starter.

Download PDF version of article.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Learn more about legal technology at Dennis Kennedy's Legal Technology Central page.

Technorati tags: legal technology predictions trends electronic discovery

Posted by dmk at 09:52 PM | Comments (0)

March 08, 2007

More Than Ten Productivity Extensions for Firefox

The coolest thing about the Firefox browser is the way you can add all kinds of "extensions" to the browser to customize it in endless ways to suit your needs. In a way, Firefox becomes a software platform. You can also get a little carried away doing this by adding all kinds of extensions to complicate your workspace. New versions of Firefox also have the annoying feature of breaking some of your extensions.

That said, a moderate use of well-chosen Firefox extensions is a very good thing. How do you get started?

I suggested that you start with Lifehack's "Top 10 Firefox Extensions to Improve Your Productivity." You'll find ten great ideas, and many more in the comments. If you haven't experimented with extensions, you'll have some good ones to start with. If you use extensions, I suspect you'll find some great new ones. Here's the one I'm adding to my Firefox installation: URLfixer. It should solve one of my most common annoyances - the slightly mistyped URL. The browser really should know what I meant to type, and now it will.

New to Firefox? Check it out and download it here. It's good to be browser ambidextrous these days. Get even more extensions (and not just productivity extensions) at the Firefox extensions page.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Learn more about legal technology at Dennis Kennedy's Legal Technology Central page.

Technorati tags: legal technology firefox extensions

Posted by dmk at 09:13 PM | Comments (0)

March 07, 2007

The Day the Internet Music Died

I urge you to read Mark Cuban's post "Say Goodbye to Webcasting."

Does our focus on intellectual property ownership rights have dire implications for the sharing of culture, our cultural legacy, and the sharing of arts among humans? As I once said, "I can't dance to a copy of your copyright registration form."

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Like what you are reading? Check out the other blogs where I post - Between Lawyers (feed) and the LexThink Blog (feed).

Technorati tags: webcasting copyright creativity culture sharing

Posted by dmk at 09:51 PM | Comments (0)

March 06, 2007

Get Well Soon, Tom Collins

One of my favorite legal bloggers and one of my favorite people I've met through blogging, Tom Collins, is having some surgery. I wish him the best and hope all goes well. Please keep him in your thoughts. There's an important message for all of us in his post.

Posted by dmk at 07:06 AM | Comments (0)

March 04, 2007

Previously on Document Assembly

My last two posts have been on document assembly, so I thought it might be a good idea to follow the rule of threes and post again on document assembly.

So, I went back into the archives and pulled out the second article I ever wrote on legal technology. It appeared in Lawyers Weekly USA in November, 1996. The subject was document assembly, and I now blush at my level of enthusiasm and how stunningly wrong my predictions and sense of urgency about document assembly were, in retrospect. I actually burst out laughing today when I reread the last two sentences of the article.

OK, so I'm a true believer in document assembly. I admit it. I also believe that you might enjoy this article as a primer to my way of thinking about document assembly. I have not edited or updated it. I would, however, enjoy reminiscing with any other ShortWork users who might read this post.

The money quote:

Document assembly can greatly increase your productivity and efficiency in document preparation while also allowing you to incorporate lessons that you have learned and custom language for individual clients into your standard forms.

PLEASE REMEMBER THAT THE FOLLOWING ARTICLE WAS ORIGINALLY WRITTEN IN 1996.

Document Assembly Saves Clients Money

A document assembly program is a software program that "automates" the preparation of legal documents. In simplest terms, a document assembly program allows a user to answer a series of questions which appear on the user's computer screen and then uses those answers in a transparent fashion to create a completed draft of a document in the user's word processing program.

Document assembly programs can be seen as a third stage in the evolution of document drafting, coming after the development of the typewriter and word processing programs. These programs run the range from Capsoft's $99 Hotdocs program to $500,000 custom software.

My experience with document assembly began five years ago with a program called ShortWork which I used to create a set of estate planning applications which I use on a daily basis. I am now beginning an upgrade of those applications which will involve a conversion to another document assembly program, Caps Personal.

I have noticed three significant changes over the last five years in document assembly programs. First, the development of and focus on Windows-based programs. Second, better and more seamless integration with standard word processing programs. Third, much greater emphasis on ease of use and improved user interfaces.

Document assembly can greatly increase your productivity and efficiency in document preparation while also allowing you to incorporate lessons that you have learned and custom language for individual clients into your standard forms. Instead of trying to remember the name of the client whose trust contained your language on S Corporation stock, you can now answer the question "does the client own S Corporation stock?" on your computer screen and all the relevant language will be added to the appropriate places in your first draft.

The prospect of drafting finished documents in a matter of minutes is a realistic one. A year ago I demonstrated the Caps program at a firm meeting with the goal of producing a completed draft of a simple standard lease in less than a minute. I was successful.

I work in the area of estate planning. Estate planners have been among the pioneers in the use of document assembly packages. Estate planning documents such as wills, trusts and powers of attorney lend themselves well to document assembly in that they are standardized but also customized depending on the choices a client makes.

You should not, however, conclude that the value of document assembly is limited to this category of practice. Applications can be designed in many areas of practice: leases, bankruptcy applications, interrogatories, preparation of standard petitions, and real estate closing documents. The software developers will be happy to show you many examples.

There are two basic approaches to document assembly programs: (1) a program which allows you to automate your existing forms, and (2) a program that includes its own forms, but allows you to modify its forms so that they can be more like your own. There are pluses and minuses of each approach. Based on my experience, a wholesale conversion of your forms will take significantly more time than simply using or making adjustments to supplied forms.

That brings us to the real questions about document assembly, which is not which package to use, because there are a number of good choices. Who will implement the package? Who will maintain the document assembly forms? Who will be the person or persons using the package? Since I have five years experience, let me share a few of the lessons that I've learned.

The key to document assembly is advance planning. All of the time that you spend on thinking about which forms you want to convert, how you use and maintain your existing forms, how you see the document assembly package being used, what efficiencies you hope to maintain and similar questions is going to be time that is very well spent. Your planning process will help you choose a program that is well suited to what you want to accomplish and will help you focus on how you will implement the process.

My advice is to start small and build off of your successes. I started with a durable power of attorney which is a relatively simple document to automate. In that way, I could learn programming functions in a simple and straight-forward way. I used that knowledge to move on to a simple will. From the simple will, the next step was to move to more complicated wills with trusts and a variety of other options.

Another important piece of advice is to be sure to block out a period of time where you can work on implementing the document assembly package uninterrupted. While it doesn't take a lot of time, perhaps 10 to 20 hours, to become comfortable with basic document assembly techniques, the process is highly logical and involves many steps. It is easy to get lost if you get distracted. If you work in a series of starts and stops, you will get easily frustrated. Remember: start small.

Document assembly is an excellent illustration of the "80/20" rule. The first 20% of the time you spend working on the project will get you 80% of the way to completion. Finishing the final 20% will take 80% of your total time. On the other hand, the 80/20 rule helps you think about how far you want to go in designing your application.

The goal of document assembly is to produce a draft of a document. Your goal should not be to produce a final version of each document for each client on the first attempt. If you can use document assembly to produce a good draft of a document in five minutes or less and then do a minor amount of clean up, you will be better off than you were without document assembly. Based on my observations, after implementing a document assembly package, I have seen decreases in total drafting time of about two-thirds over our previous method.

How do you pick a system? Decide on the level of sophistication you want in the package. Decide whether you want the package that comes with its own forms. Read reviews and articles, although be sure to note that a number of articles on document assembly are written by people involved with document assembly software companies. Talk to others who are using document assembly programs. Finally, the ABA's Law Practice Management Section is an excellent resource.

Document assembly raises some important cost recovery and billing issues. If you are going to spend several weeks, a month or more on implementing a document assembly package, how will you recover that lost income? Second, if you are billing on an hourly basis for time spent preparing documents, how will you now bill for a document that takes you only one-third of the time that it used to take?

Three approaches to recover start up costs are (1) develop your system as you work on documents for clients and bill those clients; (2) surcharge your clients for a period to recover the start up costs; or (3) make no effort to recover the start up cost, instead assume that the system will pay for itself over time during increased productivity and the opportunity to do higher volume or higher-level work.

On the second question, use of document assembly requires that you consider moving to a value billing system. In other words, it may become more appropriate to charge a fixed price for documents rather bill on the basis of time actually spent on the production of those documents. There is no single answer. The answer for you will depend on your client base and your practice, and the implementation of document assembly may give you a good opportunity to examine your existing billing practices and make appropriate changes.

The document assembly software companies have found that lawyers prepare documents in a wide variety of ways. There is no standard approach to document preparation and software companies have begun to concentrate on the user: flexibility, user interface and ease of programming. This is one benefit of waiting until now to look at document assembly.

I would not, however, wait much longer to consider document assembly. Document assembly offers real productivity gains that cannot be ignored. The environment for lawyers and law firms has become increasingly competitive. Competition has, in many cases, become based on price, and document assembly offers you a way to cut your costs.

My best practical tips? Devote substantial time to planning. Think about the $99 HotDocs program as an easy way to get your feet wet. Think hard about the packages that include forms. Give serious thought to how you will update forms once the system is in place. And, if you are not the right person to do this project, or there is no one at your firm who can or will do it, consider hiring a second year law student to take on the job. There is no time like the present to get started on document assembly. Your competitors have.

A version of this article first appeared in the November 4, 1996 issue of Lawyers Weekly USA.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Learn more about legal technology at Dennis Kennedy's Legal Technology Central page.

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Posted by dmk at 09:00 PM | Comments (0)

March 01, 2007

Further Thoughts on Document Assembly

I was thrilled to see that contract drafting guru Ken Adams picked up on my post yesterday about document assembly and refers to the inexorable rise document assembly. I've learned a lot from Ken's books, articles and blog, so it's a nice treat for me to see that he reads my blog.

However, it's another post by Ken today called "If They’ve Been Promoted, Why Should They Still Be Writing Contracts?” that really got me thinking about document assembly.

The post discusses the old question of whether partners should be drafting contracts (at partner hourly rates) rather than associates drafting contracts (at associate hourly rates).

Of course, this raises all of the issues about hourly billing versus value billing, and whether lawyers communicate the value they bring to the process or whether they are seen as mere scriveners.

Adams cuts to the heart of the matter with his money quote:

The solution isn’t to have partners more involved. Instead, associates should be less involved: drafting should be commoditized.

For me, the very essence of the role of document assembly is encapsulated in this comment, the implied questions it asks, and the answers to those questions that we might generate. Read Ken's entire post in that context and see if you agree with me.

By the way, I'm also reminded by the oft-heard comment that lawyers should learn to type faster and that a slow-typing lawyer costs a client more money because you have to pay for extra typing time (as if thinking is not part of the drafting process). Document assembly, properly employed, offers a quantum leap over increased typing speed and lets you apply the knowledge and expertise that you've developed over the years. That is the flip-side of commoditizing drafting and a very interesting place to be.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Learn more about legal technology at Dennis Kennedy's Legal Technology Central page.

Technorati tags: legal technology Law2.0 document assembly

Posted by dmk at 10:49 PM | Comments (2)