[NOTE: I wrote the first version of this article in 2010. The article was one of the earliest practical articles on digital estate planning and, in its own way, was influential. It is also one of many of my articles that can no longer be found on the web because of publisher website issues. As part of my effort to combat that sad state of affairs, I’m trying to update and repost some of those articles on this blog. I call that effort #blogfirst. In this case, I recently updated it for use in CLE materials for my upcoming presentation on digital estate planning at the 59th Annual ICLE Probate & Estate Planning Institute in Michigan and decided to post in now. I’m quite fond of this article and many people have found it helpful. I hope you will too.]

Andy Olmsted was a rare individual, in no small part because he is one of the few who thought carefully about what would happen to his online presence when they die. A popular blogger, Olmsted wrote a post before he left for service in Iraq along with instructions for his survivors to post it to his blog in the event he was killed in action. Unfortunately, it had to be posted. I read the post on the day it appeared in 2008, and I re-read it when I prepared to write this article. It remains for me one of the most moving posts in the history of blogging (http://obsidianwings.blogs.com/obsidian_wings/2008/01/andy-olmsted.html).

The beautiful thing is that his family has kept that post available on the Internet to this day. The sad thing is that this permanence is becoming an all-to-rare exception.

We are gradually, and grudgingly, learning that our online presence can outlive our physical presence and possibly even take on a life of its own. As we begin to move more of our activities – financial, social, work, leisure, creative – onto the Internet, the questions about what happens to our online presence and how we best prepare to handle that have begun to grow in quantity and complexity.

As the Internet started to become popular, we realized that a person’s Internet presence could raise a few important issues in the event of death or incapacity. For, example, what would happen to an email account? Who could access emails? Were there online financial or other accounts?

In earlier days, our online presence was just a small part of our “digital estate.” We leave a wealth of information on our computers. Our “digital estates” have begun to raise a number of complex issues and have revealed new digital questions and new digital assets, such as cryptocurrencies.

At the root of many of these issues we find the question of passwords. In simplest terms, how can you get on to someone’s computer to do anything if you don’t have passwords?

Once you logged into computer, you might well confront a different set of passwords for email and other online accounts. In a relatively small number of cases a few years ago, someone might have a website or other Internet vehicles, like listservs or discussion groups. Issues might include deciding whether and how to notify audience and friends of a death, tracking down financial accounts, and determining how to shut down a website.

As difficult as those issues could be a few years ago, they can seem simple and trivial in comparison to the myriad of issues we see today, especially in the online world.

Examples include:

•  Multiple computers, flash drives, external hard drives, iPods, smartphones, tablet devices.

•  Facebook accounts, Twitter accounts, email accounts, online backup accounts, document sharing and collaboration accounts.

•  Photos on Flickr, documents in Google Docs, videos on YouTube, social media and blog posts, comments and other data.

•  Online bank and investment accounts, payment information, rewards accounts, airline, hotel and other accounts, online medical information, subscriptions of all kinds.

•  A myriad of online shopping accounts that might hold credit card information, rewards, benefits, subscriptions and memberships, and many “web 2.0” services.

•  Cryptocurrencies, blockchains, and new types of digital property.

It’s difficult to know where our survivors would start, other than that they would have the sense of being overwhelmed. Planning for digital assets is becoming part of good estate planning and succession planning.

Basic Planning Concepts.

Conceptually, the same principles apply to planning for our digital assets after our demise as do to our real-world assets. Yet, handling digital assets can quickly get quite complicated. Most of us keep important papers, necessary information, and valuable assets in safe places. These places are usually revealed to a few trusted people who we hope also survive us. On occasion, however, family members will be surprised to find unknown accounts, collections or even boxes or cash. However, it usually takes a simple conversation, a page or two of notes, and pointing loved ones to the file cabinet or box where the important stuff is kept to handle 90% of the issues. There are also a number of inexpensive notebooks available these days where you can collect, record, and preserve in one place all your account numbers, password

The same principles apply in the digital world as do in the real world, but making arrangements for digital assets can be an order of magnitude more difficult than making arrangements in the real world.

Take a moment to do a simple exercise. Can you quickly and easily find all the valuable documents and files on your computers? Or, as is likely, are they scattered among many folders, several computers, flash drives and backup CDs, DVDs, tapes, iTunes, and a number of online accounts and services? How easy will it be for someone to sit down at your computer and find everything they need, especially if it’s now a struggle for you (the only one who will actually understand your system of organization) to do that?

Add to that the simple fact that establishing a succession plan works against every recommendation for good security practices. Security experts want to you create strong passwords, use different ones for different accounts, and to change them frequently. How many times have you heard or read that you should never ever write down passwords and keep them in a place that a burglar or other bad actor can find easily?

Think about it. If you do a great job on security, you all but guarantee no one can get easy and timely access to your digital world when the time comes.

Here’s another thought experiment: what if you use a thumbprint scanner or other biometric device for access to your computer? What happens when you die? Enhanced security techniques like multi-factor authentication (you need a password and a security key fob or smartphone) will make access even harder than it is now. Also, many experts recommend using a password management program that generates random, strong, lengthy passwords automatically.

In addition, it is not a great idea for security reasons to create directories, folders or documents on your computer that are named “Passwords,” “Important Financial Stuff,” or “Account Information” in case someone breaks into your computer system or steals your computer.

Although you will occasionally read articles suggesting that you cover your digital assets explicitly in your will or trust or even create a unique document to cover your digital assets, the fact is that most of us do not get around to doing that. Our digital world and our digital assets change on a regular basis. Almost by definition, any document that we create will be out of date when the time comes to use it.

A Simple Five-step Plan to Manage Your Digital Estate.

While I doubt that any of us will be able to put together a foolproof and perfect plan for our digital assets and affairs, the fact is that most of leave our real-world assets and affairs in less than perfect order. However, we at least try to make things easier for our survivors who have to handle our real-world estate. The best we can do is to put things in order as well as we can, pick the right people to handle them, and leave reasonably clear instructions. I suggest that we want to try to do the same things for our digital estates.

Toward that end, I want to recommend a very simple five-step plan that you can start on today and then revisit from time to time. In most cases, these steps have real world analogies and I encourage you to think in those terms. Build on what you know.

Step 1. Inventory Your Digital Assets. I spent a large part of my early legal career as an estate planning lawyer. In the case of either death or incapacity, the first important step is to track down and identify all of the assets, liabilities and other concerns that must be addressed. Once an inventory is created, you can move forward with marshaling and collecting assets, identifying outstanding liabilities and paying them in a timely fashion, and dealing with outstanding issues, such as turning off utilities, canceling credit cards, arranging for storage or disposal, and the like.

In the real world, your family and your designated successors (personal representative of your estate, trustee of your trust, or attorney-in-fact under a durable power of attorney) will be aided immensely by any list of assets and liabilities that you can prepare for them and leave in a place that is easy for them to obtain.

In your digital world, you also want to help your successors by creating an inventory. The more detailed and accurate the better, of course, but even a small start can be of help.

Here are some of the things I’d suggest that you inventory:

1. Hardware. Inventorying your hardware and the data contained in each item seems like an easier project that it actually will be. I suggest that you create a list of your hardware with a summary overview of what data is on it. Creating the inventory is likely to be an eye-opener for you. You are likely to find that you have important information not only on the computer system you use every day, but also on many other computers. Many of us have at least one laptop and one or more desktop computers, as well as smartphones and tablet devices, perhaps all syncing to “cloud” storage on the Internet. Many people keep copies of vital information on their work computers. Where do you back up information? You might have many USB flash drives, USB hard drives, backup CDs or DVDs. There might be important pictures still on digital cameras and even information on iPods, smartphones, tablets and other devices.

2. Software. Do you use Quicken or another financial program? What income tax preparation programs do you use? Do you create spreadsheets or Word documents with important financial information? If you blog or use social media, are there authoring programs that someone would need to use to post news to your blog, Twitter or other social media accounts?

3. File Structures. Your inventory should sketch out the main folders and places where you keep personal, financial and client files and documents. For someone like me, I also have audio and video of presentations and podcasts that I’d want someone to be able to locate and deal with. You might have important collections of family photos or videos or work in progress.

4. Online Presence. Create a list of your website(s), blog(s), Facebook and other social media accounts, online backup sites, online sites where you store documents, photos or other files, and listservs, groups or other sites you belong to. The use of social media has exploded in the past few years. Facebook alone has more than a billion users.

5. Online Accounts. Amazon and other shopping sites make it easy for you to create accounts and include credit card information. You might also have online access to bank and investment accounts. In fact, in many cases, you might no longer be receiving paper statements for accounts. If you don’t identify these accounts, it will be difficult for your successors to even know that they exist because there simply will be no paper trail. Also, make a list of all the email accounts you have and use. Most of us have several email accounts these days.

6. Work Information. Lawyers might have access to client sites, collaboration sites, online document repositories or other information that no one else knows about. Similarly, they might have access to software, online tools or online databases that someone taking over their work will need to have. In some firms, a lawyer might have important network passwords, backup media or other digital assets the existence or value of which is not realized until they are gone.

At this point, you really want to gather and collect as much information as you can for your inventory. You can work on organizing and prioritizing it later.

Step 2. Identify Appropriate Help. In our estate plans, we typically name a surviving spouse or adult child, especially one with financial savvy, as a personal representative or trustee. That person, however, might well be the worst possible choice for dealing with our digital assets, especially if they are not computer savvy. We also recommend appropriate lawyers, accountants and financial planners to assist our survivors with our financial affairs after our deaths.

You will want to give serious thought to who should be looking into your digital assets on your demise and give thought to naming them in an official capacity in some cases or clearly identifying as “go to” people in other cases. Are there ways you can make things easier for your survivors?

Here’s a simple exercise to help you. Imagine that you have died or are incapacitated. Who do you want to turn on your computer to find out and deal with what’s there? Let them know that and let others know that. If the IT person in your office could assist your surviving spouse, then make it clear that she should be engaged to help. A child you might not want making financial decisions might be just the one you want going through your digital world.

I also suggest talking to your estate planning lawyer to see if dealing with your computers and digital assets is something he or she has expertise with.

Step 3. Provide for Access. While we are all cautioned never to write down passwords and PIN numbers, the simple fact is that, if we do not do that and keep them in a safe place where they can be found at an appropriate time, no one will be able to access our computers and accounts. This not only can cause delay, frustration and inconvenience, but it can mean today that our best friends scattered around the country and world might well find out about our demise weeks after a funeral that they would have undoubtedly wanted to attend.

Unfortunately, as I mentioned above, good security means that your passwords are a moving target because you should be changing them on a regular basis. I still think it’s useful to keep a list of passwords in a safe deposit box or other safe place that someone knows about. My old law firm routinely keeps important personal documents of its clients in a vault. Keeping a document with your passwords and other online account information with the other important documents will help your survivors. Another approach might be to tell your lawyer where the password list is kept and let them tell your survivors at the appropriate time so that it can be located. If you use password management software (and everyone should), you will want to let people know and make sure that the password for that program (which is necessary to get the passwords for other accounts) can be located.

Do not underestimate the difficulties that can arise from passwords. It is possible that some of us now have hundreds of passworded accounts. In most cases, you should be able to eventually get access to accounts with a death certificate and appropriate documentation, but you cannot assume that will be the case. Many online accounts have initiated their own procedures and you will need to check the terms of use for each service, some of which might surprise you or pose some difficulties. That should provide an alternative to the morbid or grisly ideas you might have had when I mentioned the thumbprint scanner issue earlier in this article.

Keep in mind that security continues to evolve. Many people use thumb prints or facial recognition instead a password, especially on smartphones. The current state-of-the-art in security – multi-factor authentication – often requires that you have both a password and a device (two factors), such as a smartphone to which a code can be sent for use. In other cases, you might need to know answers to personal security questions. Biometric methods raise their own sets of issues.

Step 4. Leave Instructions. I started with the story of Andy Olmsted because it is a perfect example of someone who knew what he wanted to happen and gave instructions for that to happen. Most of us will not reach a point where we will sit down and provide detailed instructions unless we face what I used to call when I did estate planning a “focusing event” – both spouses flying on the same plane, going into combat, terminal illness or the like.

There are a number of areas where your survivors would appreciate instructions:

•  Notifications. Many of us now have Facebook “friends,” LinkedIn “connections,” Twitter “followers,” and others we communicate with on a regular basis. If we have a blog or website, we might have people who read our words or visit our sites on a regular basis. If we want those people notified, we need not only to make our wishes clear, but to provide access to the tools and give instructions so that can happen. Think about Andy Olmsted’s example. He wrote the post, but he had to let someone know that it existed, how to access his blog, how to post it to his blog, and how someone should respond to the comments the post would receive. There are instances now of survivors who continue to update Facebook accounts and provide other information online after someone dies.

•  Continuing or Closing Sites. In my case, I have a website that’s been around for almost twenty years and a blog with more than ten years of posts. I’m not sure that I really want that to disappear. It would still be a valuable resource if I were gone. If you want a site to continue, you will want to give instructions as to how that might occur (e.g., preserve what’s there or perhaps have someone take it over and continue it). Even for sites or accounts that you want closed, you might want to be sure that a copy is made and kept, and that pictures, audio or video are saved. Many people have several active social media accounts that could be used to notify friends and provide funeral and other information.

•  Realizing Value. Let’s face it, none of us are likely to realize the post-death financial revenues of Graceland and the Elvis Presley estate. However, simply shutting down sites might cut off potential revenue streams from e-books or other revenue-producing items. In the case of popular blogs, photography sites or online videos, your estate might be able to realize income from licensing, creating a book or taking other steps to “monetize” content. In some cases, you might have already started some of those projects.

•  “Do Not Delete” Items. People now routinely digitize all kinds of important document, photos and video. For example, you might have scanned historical family pictures or family videos, or have a folder with the novel or screenplay you’ve been working on. If you intend that they be passed on, make sure that they are identified and not lost when a hard drive is deleted.

•  “Bequeathed” Information. As mentioned above, you might be keeping family, business or other information that should be made available to specific people or even donated to a university or other archive. Documents containing instructions about collections, disposing of property, articles or stories to be published, and even personal guidance to family members need to be maintained in a way they can be located and made available to others. Consider again Andy Olmsted’s approach.

Step 5. Give Appropriate Authority. For some of us, and this might become more the case as time goes on, it makes sense to designate specific knowledgeable people and provide them with the appropriate authority to manage our digital assets. It might make sense to designate co-attorneys-in-fact, so-executors, or co-Trustees where one is specifically tasked with taking the responsibility for our digital assets and affairs. Finding estate planning lawyers who are experienced and knowledgeable in “digital estates” will be essential in certain cases. In addition, you might look into ways that your online accounts might permit you to designate others to act on your behalf or get added to your accounts. Especially in the cases of people who are not married or in a state where domestic partnerships would help, finding ways to give exactly the people you want to manage your digital affairs will be very important. I expect to see this area continuing to evolve, with many areas of uncertainty. Note that in many states, the Uniform Fiduciary Access to Digital Assets Act has been implemented in some form to help deal with digital access issues.

Tips for Providing Assistance after the Death of Another.

It’s also possible that either as a survivor or as a lawyer, you might find yourself in a position where you need to handle someone’s digital affairs. I have a few tips.

•  Find knowledgeable technical and legal help.

•  In the case of a death, try to get to contact lists, email accounts and social media accounts to notify friends who the deceased would want to be notified.

•  Change all passwords as soon as possible. Cybersecurity might be even more important after someone has died than while they are alive.

•  Try to understand the totality of the person’s online presence and identify some of the people that interact with most for assistance, especially in the social media platforms.

•  Do not start closing accounts, shutting down hosting and email or taking other drastic steps until you have a good sense of what is out there and what you are ultimately going to do with it. Keeping a website up for a year or more will not be expensive. Shutting it down too early and losing valuable data could be quite expensive.

•  Be slow to delete, but when you delete or dispose of computers and drives, delete them in accordance with forensic standards so data cannot be retrieved from them by others.

•  Spend $100 on an external USB hard drive and make a copy of all hard drives, flash drives and other data and keep them in one safe place. Once you start to go through the data, you can keep another drive with the “good stuff.”

•  Make copies of websites and other online accounts.

•  Locate all the financial information and client records as soon as possible and aggregate and isolate them.

•  Remove credit card information from shopping accounts.

•  Determine whether there is ownership of cryptocurrency, where it is kept (in some cases, could be on a USB drive on a keychain – seriously, I’ve met people who do that), and whether there is a way to access it and transfer it.

•  Err on the side of keeping email, documents and photographs for family members.

Start Thinking About Your Digital Estate Plan Today.

The issues of what death means in the digital world has been with us for many years. It really started to come to public attention with the Iraq war, especially in terms of access/ownership of email accounts and getting to online banking and other accounts by survivors of soldiers killed in action. Today, our lifetime digital presence has grown exponentially and the issues involved in handling our digital assets and affairs have also grown dramatically. If you take time to work on the five-step plan suggest by this article, ideally in connection with updating your estate plan, you’ll help make things easier for your survivors and improve that the chance that your wishes are followed. Read Olmsted’s blog post, dry your eyes, and start on your plan today.

#digitalestateplanning #estate planning #digitalassets

Photo by rawpixel.com from Pexels

An earlier edited version of this article appeared in the March 2010 issue of the Law Practice Today as “Estate Planning for Your Digital Assets.”  It is been significantly updated in this version, but most of the basic principles have not changed during that time.


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

DennisKennedy.Blog is now part of the LexBlog network.

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The second edition of The Lawyer’s Guide to Collaboration Tools and Technologies: Smart Ways to Work Together, by Dennis Kennedy and Tom Mighell.

[Note: I wrote this article about a “big idea” in 2014. Due to issues with the publisher’s website and search, the article has become all but impossible to find.I felt like I was back on the web in the days before search engines, but I found it by hand. I’m reposting my original version here for two reasons: (1) I want it to be easily accessible on my site and (2) I want to see if there might be interest in me writing a thorough update. It’s interesting to me to see what parts of my thinking have changed and stayed the same in the last five years. You can also see a replay of my recent FoundationLab webcast on this topic if you have further interest.]

A Big Idea: The “Productization” of Legal Services: Finding New Revenue Sources from Outside Business Models

Lawyers tend to be unwilling to look to other professions or industries to find ways to improve their practices and work. We might call this approach “law practice exceptionalism,” the belief that nearly every aspect of the practice of law is unique and must be considered in isolation from what we see elsewhere. We all have heard or said “But law is different. Really.”

As a result, there has been a reluctance to adopt approaches that have proven successful elsewhere – project management techniques, business process strategies and much more. However, it goes much further than that. Many lawyers refuse to even consider anything that comes from outside the profession. The common question is too often “How many other law firms do X?” rather than “How successful has X been elsewhere?”

Even though I am tempted to say that my Big Idea is simply for lawyers to look at and consider approaches that have been successful in other professions and industries, I instead want to focus on one example – turning services into products or, if you will, the “productization of services.”

Consider these examples:

  • Ernst & Young creates and publishes a popular (as I write this, in the top 100 among tax and accounting books on Amazon) and affordable (list price: $24.95) annual tax guide for the public.
  • Attorney Larry Katzenstein creates and sells a widely-used software program called Tiger Tables that computes actuarial factors for tax calculations and planning.
  • A prominent technology company sought out a law firm to create a document assembly application for standard agreements that the company would license on an annual subscription basis.
  • A law firm produces for sale to the public training videos on legal topics.
  • A law firm packages research information updated on an annual basis as a subscription offering.

At the heart of each example is taking a service or set of services traditionally done by time-based billing for a single or limited number of clients into an “information product” that can be licensed or sold to a much larger audience than the client base. The result is a new revenue stream that can be added on to the traditional services model. In other professions, this approach is often referred to as “making money while you sleep.”

There has been much discussion of the billable hour and its impact on the legal professional in recent years. I do not want to recap that discussion, but I do want to focus on one impact of a billable hour approach and how it can function as a “cap” on revenue. In simplest terms, a billable hour approach means that income equals rate charged times hours worked (and collectible). Do the math. For income to increase, either the rate has to increase or the hours have to increase.

In 2014, it’s fair to say that the profession has probably hit the maximum of hours we can expect people to work. Even if not, it’s difficult for most lawyers to add significantly to the number of hours worked and collectible. The pressure on keeping lawyer rates the same or decreasing them is well-documented.

Conceptually, at least, the billable hours approach sets a kind of cap on what lawyers who only bill by the hour can earn, where the variables at play (rates and time) do not seem to have much room to move upward. Even the traditional leverage system has come under strain as corporate clients demand that junior associates not work on their matters and that meetings between firm lawyers not be billed on the basis of each lawyer attending. Since many firms have already done a lot of cost-cutting, lawyers are feeling a sense of being squeezed.

The situation is ripe for considering other approaches to income production. If we look outside the legal profession to other information-oriented professions and businesses, we find income techniques based on royalty, subscription and other income streams.

Like others, the legal profession creates much information value. Lawyers, however, tend to lock up the value of the information they create. Many lawyers create information that could be repurposed and sold in different ways, if it were approached in a different fashion. In the examples above, information commonly held for internal use was repurposed and turned into a product that could be sold or licensed.

In addition, these types of products (think of an employment discrimination training video that is sold to the public) might even work as marketing efforts for traditional legal services, resulting in the odd scenario where potential clients are actually paying for you to market to them.

By this point, you have either put on your “law practice exceptionalism” glasses and are ready to move to the next article or you might be willing consider some possibilities. Let’s talk about getting started with “productization of services.”

Here is a nine-step process I suggest:

  1. Survey the Landscape. There is a ton of information out there – articles, books, blog posts, podcasts and more – about creating and selling information products in other professions. You can even find some information on other product efforts lawyers are making. The point of this step is to make yourself aware of the wide variety of approaches and the relative success of different products. While you might note certain ideas that appeal to you, you do not want to limit yourself at this point.
  2. Inventory Information Assets. Next, inventory what you have already created or might plan to create. Not everyone wants to or is able to write a book, but you might have CLE presentations that could be turned into videos, checklists that could be turned into mobile apps or other information you deliver on a regular basis to clients or internally that might be adapted to products. In the examples I listed above, I see the product categories of books and publishing, software and apps, training, subscriptions, and information packages. These are good starting points, but you might find others.
  3. Identify Potential Products. I suggest starting to narrow your ideas only after completing the first two steps. If you start immediately with one idea from the outset (“let’s sell a book”), it could get knocked down with all kinds of criticism (“need client approval,” “costs too much to print,” “too many / not enough pages”) when another approach (“let’s experiment with producing and selling one training video”) might be a much better idea. I’m not necessarily an advocate of holding brainstorming sessions, but I do think putting together a generous list of ideas is the best way to go.
  4. Research the Market. Products are sold in different ways and to different audiences from services. It might be that your product idea would make the most sense if sold to other lawyers when you originally thought that you would sell it to the public. There are many methods to do market research – in fact, some market researchers have created products out of their services to help you with that. At a minimum, talk to some people you trust in the target audience about your ideas and also talk to people in the production business for the type of product you are considering and others who have tried to sell similar products.
  5. Determine Who and How. There are many issues to consider in moving from idea to product and then from product to sold good. In the billable hours context, it’s obvious that time spent on creating products takes away from time billable to a client. There will be questions of staffing, distribution and customer support. What happens if the product is really successful? What would have to change? What happens if the product flops?
  6. Take a Portfolio Approach. A maxim I often heard when I was growing up was “don’t put all your eggs in one basket.” That’s the essence of diversification and a portfolio approach to risk. I intentionally use the unwieldy term “productization” in this article to emphasize creating a process of product development rather than thinking in terms of only creating a single product. I suggest trying a number of different ideas, testing products in different areas and with different target markets, and diversifying your offerings to spread your risk across a range of offerings. This portfolio approach works in investing generally and applies to this area as well. You might also vary launch dates and experiments with different suppliers and producers.
  7. Prepare Your Pricing. Lawyers tend to want to put a high price on products, which is in part a legacy of hourly billing rates and time involved. Give some thought to audience and sales and consider carefully the impact on sales of the $24.95 cost of Ernst & Young’s tax guide. It’s easy to imagine a large number of people buying that guide at that price year after year. Compare similar types of offerings from other professions or industries. Pricing, of course, might reflect on your firm’s brand and that will also have to be taken into account, but I don’t think the price of the Ernst & Young book negatively impacts its brand.
  8. Launch. You will only be able to judge how well these experiments work by seeing what happens after you launch them. You will learn about sales, production, distribution, staffing, support and much more only when you get out into the real world. By putting a number of products into the pipeline, you can start to get better at launching each new one.
  9. Iterate. Think process. From time to time, but on a regular basis, start this nine-step process over, incorporating your learnings from previous efforts and new ideas being tried by others.

Big ideas, of course, generate lots of small implementation issues and other questions that cannot be ignored. These issues and questions might halt the process, but, in most cases, thinking through them can help improve your offerings and address small questions before they later become thorny problems.

Here are a few questions for you to keep in mind:

  • Ethical Issues. The question of the propriety of repurposing content created for and paid for by one client is an obvious one. Some products might raise unauthorized practice of law or even advertising issues. Obtaining outside investment from non-lawyers might raise other types of questions. Some firms might explore whether to create a separate business entity for products.
  • Compensation and Revenue Sharing. How will lawyers who create products be compensated? How will product revenue flow into partner distributions? There are many questions and many possible answers. Address them early in the process.
  • Intellectual Property. Who owns IP rights in products? In the case of partners, does your partnership agreement cover IP ownership?
  • Exit. Exits from firms can raise huge issues. What happens with a product and the revenue when the creator of the product leaves a firm? Who will be allowed to continue the product? Should there be a formula for compensation in place in advance? What happens if a product becomes wildly successful after the creator leaves a firm? There is no question that it’s best to address all of these issues in advance.

Productization is a major trend in professions other than law. Is law so unique that the same approaches will not apply? My big idea is that the same kinds of ideas will apply in the legal profession and that there are already many opportunities to try. The prudent approach will not be squeezing more profit out of a time-based services business model but from creating new revenue streams to supplement and even enhance traditional services. Consider carefully the examples at the beginning of this article.


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

DennisKennedy.Blog is now part of the LexBlog network.

View Dennis Kennedy's profile on LinkedIn

Follow my microblog on Twitter – @dkennedyblog. Follow me – @denniskennedy

Now available:

The second edition of The Lawyer’s Guide to Collaboration Tools and Technologies: Smart Ways to Work Together, by Dennis Kennedy and Tom Mighell.

Someone recently asked me if there were many videos of me speaking or being interviewed. I said, “Yes. They are scattered all over the Internet.”

I got the gentle suggestion that maybe it would be a good idea for me to collect links to those in one place. I couldn’t disagree.

This post begins my project to collect and curate videos of me scattered across the Internet.


I’ll keep working on tracking down videos and add them to this post. If you know videos I’ve left off this list, please let me know via email or leave a comment on this post.


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

DennisKennedy.Blog is now part of the LexBlog network.

View Dennis Kennedy's profile on LinkedIn

Follow my microblog on Twitter – @dkennedyblog. Follow me – @denniskennedy

Now available:

The second edition of The Lawyer’s Guide to Collaboration Tools and Technologies: Smart Ways to Work Together, by Dennis Kennedy and Tom Mighell.

Podcasting portraitI’m heading to Chicago for what I believe will officially be my “umpteenth” visit to the ABA TECHSHOW. It’s definitely the legal tech conference where I have the most fun.

In big news, after more than 230 podcast episodes of The Kennedy-Mighell Report, Tom Mighell and I will record our first podcast while actually in the same physical space while at TECHSHOW. That should be both fun and a little different for us. I’m so used to sensing Tom roll his eyes at something I’ve said that it will be weird to see him roll his eyes in person. Our topic will be a meta-topic, the future of legal tech conferences, because . . . well, why not?

I’m looking forward to a great TECHSHOW experience and attending some of the related events around the show.

I’ll start with the new Women of Legal Tech Summit and also get to the Chicago Legal Tech Meetup and the Beer for Bloggers event on Friday evening.

I’m not speaking this year, so I’m looking to wander around the show (focusing primarily on the Academic Track this year), see the exhibit hall, and talk with as many people as I can. That’s how I maximize my learning.

As is my tradition, I’ve signed up to staff the Conference Concierge desk on Saturday morning and that’s a great way to meet me.

I’m also looking forward to helping Carla Reyes and a group of Michigan State LegalRnD students navigate TECHSHOW, learn about legal tech and network at the show.I’ll also help the Legal Talk Network with some interview podcasts. Let us know if you have an idea for an interview show.

And, of course, Tom and I will be happy to sign copies of the new edition of our collaborations tools and technologies book.

Hope to see you there. It looks like you can ping me if you want to try to meet, but I try to be approachable, so just walk up and say hello.

I’ll also be tweeting at @denniskennedy and the conference hashtag is #ABATECHSHOW (not yelling – it’s a naming/branding thing).


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

DennisKennedy.Blog is now part of the LexBlog network.

View Dennis Kennedy's profile on LinkedIn

Follow my microblog on Twitter – @dkennedyblog. Follow me – @denniskennedy

Now available:

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Webinar registration information
I’m excited to announce that I’ll be presenting a webinar on one of my favorite topics – productizing legal services – on Thursday, March 7. It’s free and the registration details are here.

It’s the first of what I expect to be many collaborations with FoundationLab, a legal design studio doing cool things. You’ll be hearing more about that in the near future.

From the webinar description:

In this fast-paced and wide-ranging session, you will learn:

  • How products can be created from services
  • The benefits of productization, including diversification of revenue streams
  • Getting started with your productization efforts – an action plan
  • Keeping a client-centric focus
  • Jump starting productization ideas or supercharging existing efforts with design sprints

Mike Cappucci from FoundationLab will be joining me to talk a bit about what FoundationLab is doing in legal product design and implementation and ways to use design sprints to accelerate productization efforts.

Sadly, a comprehensive article I wrote on productization of legal services in 2014 has disappeared from the Internet, although it still ranks really, really high in Google search results. I’m working on ways to get that available, probably by republishing my archived draft as a new blog post. Don’t get me started on the topic of link rot and how embarrassing it can be for authors.

However, a condensed version of that article I wrote as one of my technology columns for the ABA Journal in 2014 is still available. It’s called “Making Legal Services a Subscription Product Can Make Sense.” Tom Mighell and I also devoted a podcast episode to this subject in 2014. It’s called “Turning Legal Services into Products.

I’m very happy to get to focus on this topic again in the upcoming webinar, especially since I’m working on a couple of my own services into products efforts. I hope you can join us on March 7.


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

DennisKennedy.Blog is now part of the LexBlog network.

View Dennis Kennedy's profile on LinkedIn

Follow my microblog on Twitter – @dkennedyblog. Follow me – @denniskennedy

Now available:

The second edition of The Lawyer’s Guide to Collaboration Tools and Technologies: Smart Ways to Work Together, by Dennis Kennedy and Tom Mighell.

On February 15, 2003, I started this blog with a line from Babylon 5:


And so it begins . . .
I realized the other day that I had first written about blogs well over a year ago. In fact, the rise of blogs was one of my 2002 predictions for legal technology in my annual legal tech predictions article. As I was working on updating my web site (https://www.denniskennedy.com), I finally decided that I had to have my own blog. Thanks to people like Jerry Lawson, Sabrina Pacifici, the Support Forum at MovableType.org, it’s finally here.

For trivia buffs, I started the blog not so much to be a blogger, but because it was the easiest way to generate an RSS feed, which is what I cared the most about. I probably became a “blogger” very shortly after I started. It was a great world to be part of in those early days. Sixteen years later, my blog is still rolling along, thanks to so many generous readers.

It can be a little difficult being the parent of a teenage blog. The sixteenth was a little tricky. Not unexpectedly, my blog felt that a new car (not a used one) was the appropriate present. I think I was able to finesse this request by saying that if my blog found a car insurance company that would issue an auto policy for a blog, we’d consider it. So far, so good.

Because I don’t make a fuss about my own birthday (this blog was an early birthday present to me in 2003), I do make a fuss over the blog’s birthday. In fairness, the blog pushes me to do that. And there’s a blogiversary or blawgiversary post for each year. And I usually have offered a small gift to my readers. If you will patiently read to the bottom of this post, you will find a small token of appreciation.

TKMR LogoTom Mighell and I have a running joke that every year for the last few years, we say on our “new year’s tech resolutions” podcast episode each of us would list “reinvigorating my blog.” And we would really mean it this time.

I didn’t do that this year, but I was already starting to feel a positive change in my thinking and my approach to blogging. It’s so much easier to tweet and use other social media than it is to blog regularly. It’s math – much fewer words needed. At the same time, much of what I might have otherwise blogged about was going into our podcast, which, in many ways has become my favorite medium.

It became unclear to me what the blog would be an outlet for. The paradox is that I named this blog DennisKennedy.Blog because everything would be “on topic.”

It’s starting to come back. I’m seeing a path. My panel convergence post on February 13 is one example.

Some of the things that I mentioned in the post yesterday – the shocking disappearance of so many of my published articles due to linkrot and other factors not the least of them – have helped me see where the blog fits into what I want to be writing and what I’m doing.

So, let’s see what happens in 2019 at DennisKennedy.Blog. Thanks for reading over the years and thanks to new readers. Thanks especially to those who found this blog inspiration to start their own blogs. And thanks to all the bloggers who inspired me to get started and to keep it going.


If you use the code TECHTOOL19 on or before March 31, 2019 on the ABA Store, you will receive a 20% discount on the new edition of The Lawyer’s Guide to Collaboration Tools and Technologies: Smart Ways to Work Together, by Dennis Kennedy and Tom Mighell. Enjoy!

All the best to you all. And don’t tip my blog off about the car insurance thing.


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

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Now available:

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I’ve been rethinking my approach to publishing articles in publications. To my horror, I’ve seen links to hundreds of my old articles take people to “file not found” or other 404 pages. Other articles are now behind subscription or pay walls, or can be read only as you navigate through ad mazes.

Large audienceThat was never what I wanted. I don’t think any author would ever want that. I want as many readers as possible.

At best, in most cases I at least have my last draft that I submitted for publication still in my archive. The good news is that most of my articles don’t need much editing. The bad news is that these drafts are all I have to send people, including a recent potential client, as a copy of an article they can’t find instead of the working link I (and they) expected. I’m the one who looks like I don’t know what I’m doing when I send people to a dead link to my own article.

I dealt with this issue many years ago by posting drafts of missing articles as blog posts. I considered that possibility and, for now, have rejected it in favor of looking to the future.

typewriter typing "blog"I’ve also become frustrated by a publishing model that creates a big delay between when an article is finished and when it becomes available to an audience. I recently realized that an article I agreed to do with an end-of-February deadline will not appear until July. I’m now rethinking my approach to that article and keeping out ideas I want to get out into the world before July. The photo to the right made me think of how some publishers still think about blog content.

The long post/article I posed yesterday, “Outside Law Firm Panel Convergence – Innovation Driver or Innovation Destroyer?” is the first example of my new approach, which is actually a throwback to an old approach where I published to my blog first and publications requested the rights to reprint as an article in print or online.

For new articles that I write not done as a favor for an editor or under contract, I will publish first as a blog post. I call this #blogfirst. The post will be licensed under the Creative Commons Attribution-NonCommercial 4.0 International (CC BY-NC 4.0). People can use the post as they wish, only with attribution and only for non-commercial purposes as defined under the license. If someone wants to publish the post or a portion of it in their publication, they can contact me to discuss and we can reach mutually-agreeable terms.

Generally, after I post to my blog, I plan to post a somewhat-edited version (hoping my audience lets me know about typos, oversights, revisions, etc.) as an article on LinkedIn. For example, here is the LinkedIn version of the panel convergence article. Again, if someone wants to publish the post or a portion of it in their publication, they can contact me to discuss and we can reach mutually-agreeable terms.

This approach will keep the responsibility for the continuing presence on me (and sort of on Kevin O’Keefe at LexBlog, who hosts my site and in whom I have every confidence).

I believe this will be a very workable system for publishers who have wanted to use my articles in the past. If it adds extra steps or difficulties, the blame for that lies solely on your publisher colleagues, who seem to have forgotten that it is authors that provide the content that brings the audience that brings the dollars, and that authors deserve better treatment of their published articles than I’m currently seeing and experiencing.


Photos from Pexels.com

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

DennisKennedy.Blog is part of the LexBlog network.

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Now available:

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Stories abound these days about general counsels wanting their outside law firms to help them with innovation and technology efforts. My own conversations indicate that the real wish goes a step further. General counsel want their outside firms to bring them measurable value with innovation and technology initiatives that align with their legal and, more importantly, business goals. Even a quick scan of a recent survey results from Thompson Hine will have you agreeing with their assessment that there is an “Innovation Gap.” Only 29% of participants said that their outside firms have brought them “significant” innovation.

Is it possible that an increasingly common practice in corporate law departments is a solution to achieving these innovation and technology goals?

Panel convergence (or, as I sometimes call it, panel consolidation) is now a popular approach in corporate law departments under pressure from CEOs and CFOs to gain control of legal spend. In some cases, making legal spend predictable and more certain can be more important than cost reduction, although fee discounting is commonly associated with panel convergence. The concept is a simple. A legal department puts out a request for proposals (“RFP”) for firms to pitch for a place on what will be a small and select list of approved outside law firms on the panel. Firms complete what tends to be a very long and complex questionnaire, firms are selected to present in person as part of a “beauty contest,” and finalists are selected.

Only the firms on the new panel list are eligible to receive work from the law department. Not making the panel will have drastic consequences for outside law firms. In most, if not all, cases, the convergence results in a dramatic reduction in the number of outside firms used by the law department.

I like to trace the notion of convergence back to quality pioneer W. Edwards Deming, who believed that by reducing the number of outside suppliers (he went so far as to suggest getting it down to one) and working with them to get aligned on business goals, you could achieve excellent business results. In the legal profession, the Dupont Legal Model and Jeff Carr’s ACES model are examples of this approach.

Some of the overarching goals of a panel convergence effort are:

  • “Rationalizing” and “right-sourcing” legal service providers (reducing number of firms and directing lawyers to the law firms (or, increasingly, alternative legal services providers) best suited for types of work).
  • Reducing or controlling costs, including discounts, flat fees, staffing changes, and alternative billing arrangements.
  • Creating long-term relationships with outside firms so they can understand the business and its goals and strategies.
  • Aligning outside firms with legal and business goals, objectives, strategies, and risk tolerance.
  • Maintaining consistent legal approaches.
  • Incentivizing outside firms to bring new ideas, innovation, and value to the client.
  • Addressing diversity and inclusion objectives.
  • Generating measurable value.

You can probably think of other goals as well.

The results of these efforts are mixed. Reducing the number of outside firms and achieving some kind of price discounting or cost control are probably the most common “wins.” However, my friends in the legal pricing world often say that the discounts tend to be smallish and law firms increase hourly rates to adjust for the discounting. Convergence efforts are difficult, time-consuming, and can raise all kinds of difficult issues, especially when longstanding outside firm relationships are put in jeopardy. The work on the finalization of the panel can be so difficult that the ongoing follow-up work of pursuing all the benefits of convergence is neglected. I talked to an in-house counsel who said that her law department hadn’t updated the firms on the approved panel in fifteen years.

Other common benefits that seem to take effect are enforcement of entering into specific engagement letters, staffing directives, timing of invoicing, e-billing, and participating in outside counsel management systems.

However, the goals of business alignment, value generation, and innovation often get lost in the process, in spite of the fact that many outside panel RFPs specifically address these issues. Just like firms often answer that they do literally every type of legal work, law departments often let firms get away with saying that they are “great on innovation too.”

I want to look at how panel convergence can, perhaps paradoxically, act as an innovation destroyer if not properly tended, how panel convergence should, if you follow good, often commonsense practices, act as an innovation driver, and suggest some practical action steps for you to consider.

Innovation Destroyer?

First, an observation, perhaps controversial. Panel convergence efforts do not achieve as much as they could because corporate legal departments do not appreciate the power that they have in what is now a buyers’ market. In simplest terms, outside firms under competitive pressure to stay on a panel or gain access to a panel are more willing to negotiate than you might expect. It is a huge benefit for a firm to get on a panel. If a firm is not on a panel, it is often extraordinarily difficult to get the firm added at a later point. If #BigLaw firms will not move enough for corporate law departments, many perfectly capable mid-market regional firms will do so. This buyers’ market observation applies especially to innovation.

There are three points where panel convergence efforts can damage or destroy innovation goals:

  1. RFP creation and solicitation of proposals;
  2. RFP and innovation pitch evaluation; and
  3. Maintenance and review of convergence effort.


In too many cases, panel convergence RFPs for outside firms run into the hundreds of pages. Even the section on innovation or technology can be lengthy, not on point, and cobbled together from multiple sources. In the worst case, a law department might abdicate responsibility for the RFP language to the procurement or sourcing department. I’m not sure that inhouse counsel needs to know much more at the RFP response stage than (1) what are examples of what a firm actually has done and are currently working on, (2) what would the firm plan to do specifically for the law department, (3) what people and infrastructure does the firm have for delivering innovation projects, and (4) what data demonstrates the firm’s level of commitment to innovation? If I have answers to those questions, I can probably make a decision about whether a firm passes the initial screen.

When you have lots of detailed RFP questions, you drastically reduce the chance that evaluators, especially lawyers, will read all of them. It’s a simple case of mathematics, especially when lawyers are “voluntold” that they are on the panel convergence project. You also increase the chance that the questions will be too vague, confusing, and even inapplicable. In other words, they might make things cloudier rather than clearer than a simple and direct approach. If you don’t feel comfortable with your RFP questions on innovation or whether they are working for you, you might want to get an outside second opinion. Similarly, a firm competing for a panel spot might consider the innovative approach of providing the answers to the four questions in the preceding paragraph as an executive summary or infographic.

A second factor in the RFP process is sending the RFP to the right firms and obtaining a large enough sample, especially when the lawyers involved in the process will be advocating for few proposals to evaluate. If innovation is a goal, you should start with Dan Linna’s Law Firm Innovation Index. Look to firms presenting at innovation conferences, firms that have Chief Innovation Officers, or other indicators of commitment to legal innovation.

RFP and Pitch Evaluations

I see RFP evaluation as a screening process to determine who gets to make a pitch, much like resume evaluation determines who gets an interview. The actual pitch is what gives you the information you need to make a decision.

The process can go very wrong in both places.

The biggest danger at both points is simply taking outside firms at their word. I have no doubt that every single law firm will tell you not only that they are great at innovation, but their future plans on innovation are amazing. Your task is to cut through the fog and obtain data and evidence that you can evaluate and use to make good decisions, or, at the very least, “good enough for now” decisions.

Another danger is trying to make a final decision on the basis of the response to the RFP. RFP responses should only be used to screen for firms you want to make a pitch, which means, firms you want to hear more details from. That is the job you are doing at the RFP evaluation stage.

In RFP evaluations, you might want to get an outside opinion to help you make the screen on innovation. The odds of any evaluator reading the innovation section in each of 50 several-hundred-page RFP responses are not good. That’s not a criticism – it’s a recognition of reality.

If innovation is a goal of your panel convergence effort, you will want not just examples, but you will want to meet the innovation team. It is reasonable and prudent to request that the firm’s Chief Innovation Officer or head of innovation take 10 – 15 minutes of a pitch presentation. Again, depending on your comfort level, this might be a place where you want to get an outside second opinion. You will ultimately make the final decision, but sometimes it’s good to have someone interpret and validate what you are hearing.

And, lest you forget, you will only get the innovation and technology proposals you ask for.

Follow-up and Maintenance

The panel is announced with great fanfare. Committee members are congratulated and get awards and bonuses – maybe. Victory is declared and the convergence team disbands.

Wrong. This is when the real work to make the effort a success begins.

There are many best practices you can find: single points of contact, initial meeting of panel firms, annual summits, introduction of outside counsel management systems, standardizing, and streamlining processes, engagement letters, discounts or flat fee implementation, and the like.

What about in the area of innovation?

Not so much, at this point. And that’s why the panel convergence approach can damage or destroy innovation. It’s the follow-up and maintenance that matter.

Let me use a bit of a gardening analogy to describe my approach to implementing successful convergence efforts. First, we need the gardeners – people who are responsible on an ongoing basis for the work and the results. We need to prepare the soil to give the project the best start and continuing growth. We need to plant enough seeds – more than we think – to improve the chances of harvest. Watering and nourishing, of course. Eliminating weeds and pests. Pruning to focus and enhance our results. Knowing what to harvest and what to throw away. And preparing for the next season. You get the idea. I’m confident that you don’t need me to explain the metaphors.

It’s hard work that requires constant attention. It’s easy to see how these programs can actually destroy innovation.

Too often, the innovation piece of convergence is vague or afterthought. Innovation can get orphaned, with no person or group tasked with supervising the efforts. Once firms are locked into panels, an “incumbency inertia” can take hold, especially if there is an attitude of being “too busy” with “real legal work.” By the way, it’s vital to screen that attitude out in the selection process if you can. If there is a standard, it becomes what the other panel firms are doing, which can be a reverse incentive. It’s easy for all kinds of incentives to get reversed and misaligned. As time goes on, diversity of ideas and innovation are decreased, because there is a limited universe of firms.

No one would be surprised to find that innovation efforts drop off the cliff after the first year the panel is selected. Concrete and specific plans, follow-up, and roadmaps must be put into place or you will see “drift.” Far too often, no evaluations, measures, metrics, key performance indicators, goals, or objectives are put into place. There might even be confusion at the basic level of what the firm charges for innovation work or whether it should be charged for at all. Are there systems for tracking efforts and results or giving feedback? Should you be using a formal counsel evaluation tool like Qualmet? Is there even an intake or workflow tool for innovation projects? Annual meetings with demos and showcases should be required.

There are two final big problems I want to mention. And they are very big.

The first happens when a law department doesn’t ask for the innovation efforts or tech recommendations to be made, even if they were part of the winning pitch. The flip of that, of course, is that the firm doesn’t pursue these efforts or take the initiative. And we are back to the gardener analogy and a single point of contact approach.

Second, and most important, there are no consequences for failure to provide the innovation work. Think back, for a moment, to the earlier story about a firm that had not changed a panel in fifteen years. What possible incentive could there be for those panel firms to change or take initiatives? In my legal career, the biggest surprise has been the unwillingness for corporate clients to fire outside firms that are not producing as promised. In this area, I’d be tempted to give the outside firms, as a first innovation project, designing a project workflow system with metrics, standards, and agreed-upon consequences built into it. And then I would challenge you to hold them to it.

Simply put, if you cannot weed out firms that aren’t delivering, you really don’t have much of a chance of overall success. Your panel convergence process will become a place where innovation goes to die. It’s a buyers’ market out there and there are alternatives, including alternative legal service providers.


I like to focus on what is possible and what can be done. Here’s my radical, but probably not surprising, proposition: properly done, panel convergence can drive your innovation efforts forward, align business goals, enhance collaboration, and achieve innovation wins and meaningful “return on innovation” with measurable value.

There’s a technique in design thinking referred to as “reversal” or “inversion.” What happens if we flip over our assumptions, change the end user, look through the opposite end of the telescope, and, well, you get the idea.

In simplest terms, if you reverse any of the points in the previous section, you start to move down the path to drive innovation efforts forward. Try it out as a thought experiment. I’ll still be here when you get back.

Oh, wait. I do have an even more radical idea. Outside firms should consider providing innovation services for free and part of their offering to be on the panel.

Here are twelve ways that you might consider using your panel convergence project to drive innovation from your panel firms.

  1. Use the panel to make it easy for outside firms learning the company’s business, business goals, and how the law department fits into the business. Encourage them to get an understanding of key problems, constraints, budgets, and objectives. The best innovation will be customer-centered innovation. Everything starts here. How will you make that happen?
  2. Make outside counsel put some skin in the game. Jeff Carr’s ACES approach of putting part of agreed-upon fees at risk if business results and value are not achieved is one example, but how might you incentivize the behaviors you want? It might be as simple as putting firms into red, yellow, or green status on innovation, with penalties for lack of effort or staying in the red or yellow category.
  3. Share how outside firms made their own technology decisions, their experiences, and their recommendations. General counsel want to move to new technologies, but typically don’t have the resources to investigate and make those decisions. There are benefits to having firms and clients on the same platforms, especially on collaboration tools. This “want” is often expressed on the in-house side, but rarely acted on by outside counsel.
  4. Start with staffing and workflow innovations, with an eye on cost savings, efficiencies, and “right sourcing” (getting the work into the hands of the right person at the right skill level and price). Legal departments are concerned about paying huge hourly rates for “commodity” work. Would using a litigation support project platform like ClariLegal generate cost savings and free up lawyer time?
  5. Track and monitor projects. Helping address those problem areas will achieve real-world benefits and open doors to future innovation projects. Build on small, measurable successes.
  6. Prune the panel list. You cannot freeze the panel for fifteen years. There should be an easy process for adding and dropping panel firms to reflect goals (e.g. diversity), movement (e.g., key lawyer or group moves to new firm), change (law firm mergers), business strategy (move into new markets or product lines), and the like. It is not a great place for an in-house counsel to be when they have to use old-line panel firms to handle blockchain or other new technology issues. A regular in-depth review should also be scheduled with promises tracked and consequences exacted. There is a huge benefit to firms to stay on a panel list and many firms, especially mid-market firms, would be happy to make better offers.
  7. Create measurements and metrics. Innovation is not some airy, vague set of new ideas. Innovation should produce practical results. With a panel, you can collaborate with firms to agree on appropriate metrics and how to track them.
  8. Share goals and objectives. Aligning the law department’s goals and objectives to innovation efforts is a powerful to set direction and strategy. If the law department knows the business problems its business owners want to solve, and the outside law firms are aligned to solving those problems, the results can be very good for everyone. Innovation should be focused like a laser on the client’s problems. Innovation is fundamentally a client-centered exercise. If the word “value” is not at the top of your discussion list with outside firms, you should be asking yourself why it isn’t.
  9. Connect the people. I like the idea of having “single points or contact” for innovation efforts, with each firm. Consider at least monthly calls, quarterly design thinking or brainstorming events, and annual “summits” where all of the innovation contacts meet and share ideas and goals.
  10. Thoughtfully implement standard innovation practices that fit your culture. Proof of concept and other experiments. Design sprints and minimum viable product approaches. A portfolio of approaches. Collecting stories to share. Identifying the right talent. Building on successes. In certain cases, does a firm or law department want to start its own innovation lab or outsource the use of an innovation lab or design group? What outside help do you need and what work should stay as part of your core competence?
  11. Put into place a system of communication, collaboration, and incentives. What happens if we turn a great idea into a product? How do we make this organic and self-sustaining? How do we measure early-stage benefits?
  12. Focus on the “Why?” first. A common principle in innovation is answer the “Why?” first, then move to “What?” and, only then move to the “How?” I don’t mention technology much in this article, because it will be part of the “how.” Your focus should be on first things first.

Isn’t all of this way more exciting than getting a 15% discount on standard hourly rates?


I want to end with a bunch of practical action steps. Here are some for you to consider:

  • Make a firm decision that you want to want to use panel convergence to drive innovation in legal services. Start with the “Why?” If you get that question answered, your path becomes so much easier to see.
  • Take a breath and take a bit of time to reflect on whether your panel convergence process is matching your most important goals and objectives and whether it is addressing your problem areas.
  • Review your panel convergence RFP, especially on innovation and technology, and simplify, simplify, simplify. What do you want to know that matters? Ask only that.
  • Require an outside firm’s Chief Innovation Officer or innovation team to present as part of the pitch presentation. That is who you will be working with on actual projects.
  • Develop a framework and approach to evaluating RFP responses and pitches. Get data and evidence.
  • Request (or volunteer) to participate in design sprints, innovation labs, or productization efforts with panel firms. Offer your problems and issues as experiments for the firm to work on. There’s no harm in asking if participation comes with no charge. Firms need plenty of client feedback on their own efforts.
  • Find ways to get outside firms to put skin in the game. Be creative and see what else is happening in the industry, and in other professions.
  • Measure activity and create a simple set of metrics and key performance indicators to track. Then act upon them and track your results.
  • Be constantly on the lookout for internal resources who would be happy to participate in innovation efforts. Results will be mixed, at best, if you assign unwilling lawyers to participate.
  • See innovation as a process of experimentation – some things will work and some will not – and learning.
  • When in doubt, give people logoed T-shirts. We are all humans, after all.

For outside firms, or those who want to be on panels, use the reversal or inversion method on the practical action steps above and you’ll see your own list.


I’ve become intrigued how an often clunky existing process with mixed results – panel convergence – can, if properly handled, be turned into an engine to drive innovation. Having vision is important, as is being willing to make hard decisions and do experiments. Panel incumbency should not mean entitlement and tenure. There are many firms, with mid-market firms being especially interesting because of motivation and nimbleness, who are able and willing to step up on innovation efforts to provide measurable value for key clients. Lack of action has consequences. The legal market says that it is ready to innovate. Let’s see firms and law departments prove it.

– Dennis Kennedy


I look forward to discussions this post might start. I’m making it available to share under the Creative Commons Attribution-NonCommercial 4.0 International Public License. If you want to publish this post or a portion of it as an article, I’m happy to talk about it and reach mutually-acceptable terms.

Photo from Pexels


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

DennisKennedy.Blog is now part of the LexBlog network.

View Dennis Kennedy's profile on LinkedIn

Follow my microblog on Twitter – @dkennedyblog. Follow me – @denniskennedy

Now available:

The second edition of The Lawyer’s Guide to Collaboration Tools and Technologies: Smart Ways to Work Together, by Dennis Kennedy and Tom Mighell.

From time to time, I’m involved in discussions or see discussions about how to teach technology, practice management, and innovation as part of the law school curriculum. I’m now teaching a class called “Delivering Legal Services” as part of the LegalRnD program at Michigan State University College of Law. Last fall, I taught a class called “Entrepreneurial Lawyering” last fall.

I’ve always wanted to share the syllabi for the classes I teach. I hadn’t been able to come up with a good way to do that.

Fortunately, John Mayer had a great idea and he has executed on it. He is gathering and posting syllabi for these kinds of subjects on a great resource called “The Syllabi Commons.”

The syllabi for both of my classes are now posted on the Syllabi Commons.

Whether you are looking for a good way to learn on your own, or you are teaching a course of this kind, The Syllabi Commons is the best place to start.

I’ve had more people than I ever expected tell me that I should turn my classes (or, realistically, a much shorter version) into online courses. I want to get some feedback on that and have created a survey here. Would online courses of this type interest you and be of enough value that you would consider paying a reasonable price for the course? Here’s the survey.

Thank you for your feedback.


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

DennisKennedy.Blog is now part of the LexBlog network.

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Now available:

The second edition of The Lawyer’s Guide to Collaboration Tools and Technologies: Smart Ways to Work Together, by Dennis Kennedy and Tom Mighell.

People regularly ask me what “legal technology” or “legal tech” means when I use the terms and tell them it is something I’ve focused on for many years. In my class in Entrepreneurial Lawyering last fall in Michigan State’s LegalRnD program, I realized that “legal technology” was a term I took for granted and it was, in fact, something I needed to define and explain to my students.

Based on some ideas I picked up from Chrissie Lightfoot, a few ideas of my own, a little creativity, a little commonsense, and an infatuation with quadrant charts, I came up with the following chart for my students:

Image of Quadrant Chart

I’m now ready to unleash it on an unsuspecting and unprepared world for feedback and, I hope, improvement. I think it works as a pedagogical tool. I don’t think it quite works yet as a classic quadrant chart – I’ve never quite figured out what the Y-axis should be and I’m not sure plotting points for tools within the chart would actually work.

To me, that means the chart is ready for feedback and the wisdom of the crowd.

I’ve decided to post the chart here. Please comment or email me if you have thoughts, questions or suggestions. I’ll put it out under a Creative Commons CC BY license to make it super easy for people to use.

Tom Mighell and I have also recorded an episode on The Kennedy-Mighell Report podcast in which we talk about the chart and definitions of “legal technology” or “legal tech” or “law tech”in some detail. That episode should be posted on Friday, January 18, 2019. I’ll add a a link when it’s available. It might be helpful to listen to the show and the explanations there before making suggestions. Or not.

I’m curious to see if people find this helpful or useful. If you think there’s already something better, I’d love to know that and maybe switch to that.

Also, this version is really a first and rough draft. I know that from font choices to other design and spacing, there is work to be done before I would consider it “final.” If you have strong feelings about design and are good at it and want to take a stab at an improved design, let me know and we’ll see how we might work on that.


Until March 31, 2019, I have a special discount code (20% off) for any readers who want to purchase the new edition of The Lawyers Guide to Collaboration Tools and Technologies. I have it on good authority that it makes a fabulous Valentine’s Day gift. Simply go to the ordering page for the book at
https://www.americanbar.org/products/inv/book/312056356/ and use the code TECHTOOL19 at checkout.


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

DennisKennedy.Blog is now part of the LexBlog network.

View Dennis Kennedy's profile on LinkedIn

Follow my microblog on Twitter – @dkennedyblog. Follow me – @denniskennedy

Now available:

The second edition of The Lawyer’s Guide to Collaboration Tools and Technologies: Smart Ways to Work Together, by Dennis Kennedy and Tom Mighell.