Category Archives: Strategy

Cost, Implementation, Management, Media, Strategy, Technology

It’s Fun, Until Someone Loses an i

MP900427743Heard any negative news coming from Apple, lately?

You've got this great, new O/S, iOS6 and you've got this great, new iPhone 5 causing excitement everywhere.  And, you just happen to be on the team that developed the new 'Maps' software – which is destined to knock Google Maps off of your devices.  Oh…one more detaiL…the thing is obviously not ready for prime time.

Imagine being in the rollout meetings.  What do you do?  Are you going to be the one to tell the boss that they should hold the release?  I wonder if anyone actually tried to do that (and kept their head).  Of course, you may also enter an alternative universe in which you:

  1. Convince yourself that, contrary to the information in front of you, your product is the "Best Maps app ever!"
  2. Convince yourself that only a few people rely on Maps and it won't be a big deal if it isn't 'perfect'
  3. Ignore the issues entirely and release it, anyway

Did Apple choose door #3?  Inertia is difficult to contravene; after all, a body in motion stays in motion.  I'm pretty sure, based on the fallout, if Apple had the opportunity for a do-over, they'd seriously consider another path.  Pretty sure…they do have a history of a, "Damn the torpedoes!" attitude; but, they're certainly not alone.

Lesson #1 – Never replace a superior product with an inferior one.  Even if your product is 'adequate', customers will already have been 'spoiled' by the previous experience and expect an equal – or greater – experience (otherwise, why switch?).  This will only serve to augment the replacement product's shortcomings, as if one trained a magnifying glass on them.

Hey, I'm not a billionaire…I'm sure Apple isn't particularly interested in my opinion.  However, I did notice how quickly the company gave out the name of the manager in charge of developing the app…

As the Beastie Boys suggest, Check Your Head.

California Lawyer, Cost, Duties, eDiscovery California, Education, Law Practice Management, Security, Strategy, Technology

eDiscovery California: Upcoming Presentations: CalBar 85th Annual Mtg

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Why have I been missing in action the past couple of weeks?  Because I over-committed, that's why!  Note to self: Don't propose two presentations for the CalBar 85th Annual Meeting, thinking that only one will be selected…WRONG!!!  So, to kick-off my re-appearance on this blawg, here are my two upcoming presentations in Monterey:

eDiscovery eVolution: Crawl, Walk, then Run Your Case!  (Program 25)

Thursday, October 11, 2012  4:15 p.m.-5:15 p.m.

Strategy matters, and litigation is a term of art and a
little showmanship. Learn how to strategize during a case to get the
most out of each other for the clients' benefit.

Presenters:  Perry L. Segal, Derick Roselli

CLE: 1.0 Hour General Credit

This is going to be a good one, because I'm taking the role of attorney (type-casting) and my LPMT colleague, Derick Roselli, takes the role of technology expert; which is his true specialty at HP/Autonomy.  We're going to do a walk-through of a case from the perspective of the attorney consulting with his expert on a case, from start to finish.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

The Cloud: Secure? Yes. Ethical? Not so FAST!  (Program 50)

Friday, October 12, 2012  10:30 a.m.-12 noon

It's essential to conduct due diligence regarding a
vendor's security practices to insure the confidentiality of client
data. Even if the data is believed to be secure, it may violate an
attorney's legal/ethical obligations. Learn the next step– assuring
client communications are secure and ethical.

Presenters, Perry L. Segal, Donna Seyle

CLE: 1.5 Hours of Which 1.0 Hour Applies to Legal Ethics

Donna Seyle is another of my LPMT colleagues, and we're going to do a practical examination of attorney ethics rules – both ABA and California – as they pertain to data and social media interaction in the cloud.  Our goal is to explain to attorneys how even a secure cloud may violate ethical obligations to the client if additional precautions are not followed.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

I 'officially' assume the Chairmanship of LPMT at noon, Sunday, October 14th.  Here we go!

California Lawyer, Constitution, Implementation, Law, Security, Strategy, Technology

California AG Establishes Privacy Enforcement & Protection Unit

MP900431800The announcement of this new Unit, which is to be a part of the eCrime Unit, has drawn a lot of skepticism around the 'net.

Here's the official statement from Attorney General Kamala D. Harris' Office.

I only have one question?  Why do people always feel the need to crap on everything before they give it a chance?  Would it be better if public officials didn't at least try to address existing privacy concerns?

I suppose this is why they say, success has many parents; but failure is an orphan…

California Lawyer, Duties, eDiscovery California, Education, Implementation, Law Practice Management, Media, Strategy, Technology

eDiscovery California: Formal Opinion Interim No. 10-0001 (Social Networking) Raises an ‘Adject’ Issue

MP900442339First, my disclaimer:  This is a State Bar of California Opinion – and I'm Vice-Chair of their Law Practice Management & Technology Section Executive Committee (LPMT).  I want to remind you, "This blog site is published by and reflects the personal views of Perry L. Segal, in his individual capacity.  Any views expressed herein have not been adopted by the State Bar of California's Board of Trustees or overall membership, nor are they to be construed as representing the position of the State Bar of California."

The last time I analyzed one of these, it pertained to VLOs.  I found that Opinion much more difficult to address.  Formal Opinion Interim No. 10-0001 (Social Networking) is easier in some respects, because its main purpose is to apply current California rules (specifically, Rules of Professional Conduct:  Rule 1-400 Advertising and Solicitation and sections of the Business and Professions Code) to what it refers to as, "social media websites".  That's where the trouble begins; with the adjective.  We'll get to that in a moment.

There's no reason for me to do a dissertation on 1-400.  California attorneys should already be familiar with this Rule (or they can look it up, above).  Suffice it to say, for our purposes, this can be like Jeopardy, because we need ask ourselves two questions:

  1. What is a communication?
  2. If a posting is determined to be a communication, is it an advertisement or solicitation?

The only major problem I have with the document is Footnote Two on Page One (link opens the 6-page PDF).  It attempts to describe Facebook "friending" as an example of what it considers a "controlled" group.  It doesn't seem to take into account that, like Twitter, et al, your control group can republish your post (e.g. Re-tweeting).  My view?  Continue to treat your posts as if they're visible to the entire world!

Page Five reminds us of Rule 1-400(F):  "…the Committee notes that a true and correct copy of any “communication” must be retained by Attorney for two years. Rule 1-400(F) expressly extends this requirement to communications made by “electronic media.” If Attorney discovers that a social media website does not archive postings automatically, then Attorney will need to employ a manual method of preservation, such as printing or saving a copy of the screen."  [italics added]

Gulp!  How many of you remembered that part of the Rule?

Concluding, the Opinion has an adject(ive) issue.  It refers to "social media websites", but it also refers (as it should, in my opinion) to general attorney websites.  If I were to make one glaring modification to this document, it would be to find the phrase, "social media website(s)" wherever it appears, and replace it with, simply, "websites".

The qualifier serves no purpose.

By the way, if you'd like to comment on the Opinion, the 90-day period is open through 5pm, July 2nd, 2012.

Cost, Disaster Recovery, Implementation, Scope, Strategy

A Titanic Failure of Disaster Planning

MP900407559As we mark the 100th anniversary of the sinking of the Titanic, questions that were raised then are being repeated now; how did this happen?  Obviously, I'm not going to cite all of the opinions, but as one can imagine, blame is assigned virtually everywhere.  Regulation (or lack, thereof) is to blame.  Management is to blame.  You know what I think?  They all miss the point, entirely. 

Why?  Because 1,500 people are dead, that's why.  Titanic was doomed before it ever left port.  One thing we can state with certainty; it was known that if the ship sank in an isolated area, then there wouldn't be enough lifeboats on-hand to save all of the lives on board.

Analysts point to a comedy of errors that, if they hadn't occurred in sequence, then Titanic wouldn't have sunk.  There's that word, if, again.  But this flies in the face of competent disaster planning.  We already know that if events occur as expected, then there won't be a disaster.

Let's enter the equation at the real-time departure of Titanic in its actual condition (meaning, not enough lifeboats).  Here are some of the assumptions that might have been made:

  • The ship will not sink
  • The number of lifeboats are an acceptable risk versus the unlikely possibility the ship might sink
  • Other disasters may occur (e.g. boiler explosion), but the ship won't sink and there are sufficient lifeboats
  • Even if the ship were to sink, it will sink very slowly – or close to land – allowing landed resources or other ships to respond in sufficient time
  • The experts on board – and in the surrounding area (such as the California, or wireless operators) – will act predictably (i.e. not make any mistakes), thereby avoiding errors
  • Icebergs will be exactly where we expect them to be

Here's a question I haven't seen (although I'm sure someone has probably raised it):  Even if the ship had sufficient lifeboats on board, would the crew have been able to launch all of them in the rapid time that titanic sunk (estimated at 2 hours, 40 minutes)?

A good risk management team understands the first rule of disaster planning – follow Murphy's Law:  If anything can go wrong, it will.  The second rule?  Follow-up with O'Toole's Commentary:  Murphy was an optimist.

  1. No plan will ever be correctly analyzed unless it begins with an honest assessment of the following question:  What can go wrong?
  2. The rest becomes a matter of probability.  What is the likelihood that anything (and everything in-between) on the list created by question one might go wrong.

Then, it's a matter of prioritizing between several factors, such as time needed to address & correct, manpower required, cost vs. budget, insurance, politics, etc.

I wish we could go with something more simplistic:  The chance of the bread landing with the buttered-side down is directly proportional to the cost of the carpet…

Books & eBooks, Education, Law Practice Management, Strategy, Technology

Sneak Peek! Growing and Maintaining Your Law Office

MP900444369I mentioned a few months ago that I’d hunkered down in the ‘bunker’ to write for the upcoming new State Bar of California publication, Growing and Maintaining Your Law Office (or as we like to call it, Grolo).  We’ve entered the pre-promotion stage, which means that a few of the sub-chapters have been authorized for limited publication.  In my old book-publishing days, we might have referred to them as galleys, but they’re not quite in their final form.

In any event, the Law Practice Management & Technology Section has just published one of my sub-chapters, “Using Technology to Coordinate Lawyer & Staff“.  Now, I can’t give you access to the complete excerpt, because our members pay to receive our publications, but if you’d like a little taste of what you’ll see in the book, here you go!

I’ll also be discussing more of my contributions at the 2012 California Solo and Small Firm Summit, scheduled for June 21 – 23 in Long Beach.  I’ll be presenting program 16, “They See You When You’re Sleeping: Attorney Privacy, Confidentiality & Security“, Friday, June 22nd from 9:45 a.m. – 10:45 a.m.

Hope to see you there!

Admissibility, Cases of Interest, Judges, Science, Strategy, Technology

Case Got Your Tongue? Court Cases Aren’t Horse Races

MH900228831I understand we live in a ‘first-to-press’ world, and I further understand that – most of the time – it’s important to get a story out as soon as possible.  But, that doesn’t mix too well with judicial decisions.  In my view, you should treat them like a fine meal.

Allow some time to digest them.

So, this is why I didn’t jump on the predictive coding decision by Judge Peck in Monique Da Silva Moore, et al., v. Publicis Groupe & MSL Group, Civ. No. 11-1279 (ALC)(AJP) (S.D.N.Y. February 24, 2012).  The odds were, it would be contested and it is being contested; in rather strong language, I might add.  A lot of that language is being directed at the alleged misconduct of Judge Peck, himself, among others.  I’ve seen Judge Peck speak.  Water off a duck’s back, I suspect.

As some of my colleagues would say, “That’s litigation.”

Duties, Scope, Security, Strategy, Technology

What, Exactly, is an e-Discovery Lawyer?

MP900448644Earlier this week, my interest was piqued when I read an article by a colleague, Dennis Kiker, titled, "I want an E-Discovery Lawyer for my E-Discovery Project".  He explains what his concept of a law firm e-discovery lawyer is; to him.

In the corporate world, I'm experiencing something quite different in the clear evolution of what many companies seem to want in an e-Discovery Lawyer these days; a combination of e-Discovery and Security in a single function.  Think about it.  It actually makes sense.  In theory, both jobs involve protection, but I bifurcate them between protection by technology and protection by individuals (notice, I didn't say 'of technology' and 'of individuals').

That's how I broke out the subject for the State Bar's upcoming book.  It's one thing for individuals to develop strategies to protect corporate assets via software, firewalls and other security protocols.  It's quite another for individuals to be aware of the security risks that surround them 24 hours a day.

Unfortunately, all that stealth goes out the window if those same individuals don't adhere to stringent personal privacy protocols.  Otherwise, the next thing you know, your company iPhone is sitting on a bar counter somewhere, next to your empty marguerita tumbler – and you're already on your way home.

e-Discovery Attorney as Project Manager?  Definitely.  e-Discovery Attorney as CyberSecurity Guru?  Well, let's just say, I'm glad I have 20+ years of world-wide LAN/WAN experience under my belt…

Who knew?

Duties, eDiscovery California, Education, eMail, Implementation, Law Practice Management, Privilege, Scope, Security, Strategy, Technology

e-Discovery California: Proposed Formal Opinion Interim No. 10-0003 (VLO) is the Right Answer to the Wrong Question

42.  (That's for those of you who picked up on the 'Hitchhiker's Guide to the Galaxy' reference).

I usually don't feel it necessary to refer you to my disclaimer but, because this is a State Bar of California opinion – and I'm Vice-Chair of their Law Practice Management & Technology Section Executive Committee (LPMT) – I want to remind you that:

MP900442177
"This blog site is published by and reflects the personal views of Perry L. Segal, in his individual capacity.  Any views expressed herein have not been adopted by the California State Bar's Board of Governors or overall membership, nor are they to be construed as representing the position of the State Bar of California."

The LPMT Executive Committee may publish its own, 'official' comments, to which I may also contribute.  That being said…

Technology is an extremely logic-based discipline, in its purest form; or it should be, at least.  Indeed, like the practice of law, success or failure is predicated upon compiling and understanding a particular set of facts, then realistically acting upon those facts.  Note my emphasis on the word, 'realistically'.  If I wish to suspend disbelief and begin with a set of unrealistic criteria, I may be equally able to formulate a reasonable solution, assuming it's possible to locate someone – or something – that fits the original, unrealistic premise.

This is my assessment of Formal Opinion Interim No. 10-0003 (Virtual Law Office).  It's actually a very well-crafted opinion, but it's based on a 'Statement of Facts' that, to me, are an unrealistic portrayal of how an attorney practices – or would practice – law.

First, there's no reason for me to re-invent the wheel.  For another excellent nuts & bolts assessment of the opinion, please see Stephanie Kimbro's post on her Virtual Law Practice blog.  She's an authority on the Virtual Law Office and is also cited as a resource on page one of the opinion itself.

From a pure cloud security standpoint, this is an excellent document and a perfect complement to opinion 2010-179 on wireless networks.  In fact, I would recommend that practitioners ignore the hypotheticals for a moment (especially if they're pressed for time) and proceed to the Discussion heading, Section 1 ("Duties"), which is what I'm doing for the purposes of this post.

Section 1 examines confidentiality issues of employing a cloud-based system with a 3rd-party vendor and provides a five-point list of due diligence factors that includes, but isn't necessarily limited to:

  1. The Credentials of the Vendor
  2. Data Security (Well, that's not very helpful, but it goes on to refer the reader to California, New York and ABA opinions for guidance)
  3. Vendor's Transmission of Client Info in the Cloud Across Jurisdictional Boundaries or Other 3rd-Party Servers (You've heard – or read, I suppose – me pontificate on that one; the "digital roach motel" and "know where your data is")
  4. Attorney's Ability to Supervise the Vendor (As I've reminded you often, you may hire competence, but not delegate this duty)
  5. Terms of Service of Contract with the Vendor (This is huge where the cloud is concerned.  For example, many provider contracts contain language to the effect that, "Once you transfer it to us, it becomes our property.", a major no-no for attorneys)

It also points out the security environment must be periodically reassessed, which is terrific advice.  I usually refer to it as "fire drills".  Finally, it points out that none of this may take place without proper disclosure to the client, who may, by the way, have no idea how any of this works.

Section 2 examines competence issues as follows:

  1. Proper management of attorney's intake system to determine one of the basics; "Who is the client?"
  2. Determining whether attorney may perform the requested services
  3. Determining that the client comprehends the services being performed (This document also refers to comprehension issues due to a language barrier)
  4. Keeping the client reasonably informed
  5. Determining that the client understands technology (When I read #3 above, it immediately triggered the thought that technology is another language both attorney and client must understand…)
  6. Determining when to decline to represent a client via a VLO, and whether representation may continue through traditional means

This section also re-raises the supervisory issue, but this time it's in terms of the attorney supervising other attorneys and/or non-attorneys.

Ok, so you know what I like, now let's get into what I don't like.  The hypothetical describes the VLO as a password-protected and encrypted portal that sits on a 3rd-party cloud.  So far, so good.  But then, it goes on to say that the attorney plans not to communicate with clients by phone, email or in person, but will limit communication solely to the portal.

Yeah, that covers a lot of us, doesn't it? 

I understand that it's possible for attorneys to communicate this way, but is it probable?  Does this opinion realistically apply to most attorneys; now and even into the future?  I'm not trying to be snarky here, but you can't blame me for being a tech guy.  Immediately, my mind wanders to what would likely happen in this scenario.  A technology or communication issue arises and the frustrated attorney – or client – resorts to email or a phone call.

And what about secrecy?  No, I'm not alluding to some nefarious purpose.  There are legitimate reasons why attorney and/or client might not want to document ideas or discussions – electronically or otherwise – in the short-term (what comes to mind is a nervous potential client who has invented a new product, but doesn't want to provide a lot of written detail to attorneys, while soliciting the representation of several of them, for fear that the inventor's intellectual property will be revealed).

The second thing that bothers me is the "Issue" statement that opens the opinion.  It states, verbatim:

"May an attorney maintain a virtual law office practice ("VLO") and still comply with her ethical obligations, if the communication with the client, and storage of and access to all information about the client's matter, are all conducted solely through the internet using the secure computer servers of a third-party vendor (i.e., "cloud computing")."  [Italics/bold added.  It's posed as a question, but in the text, the paragraph ends with a period – not sure if it's a typo that will be corrected in a later version].

What's the danger here?  Hello?  Facebook is the cloud!  Google is the cloud!  Email is the cloud!  A lot of communication is taking place – right now – through means not anticipated in this opinion.  What I'm saying is, if one removes the term, "VLO", from this document, it could just as easily apply to methods attorneys use to communicate with their clients on a daily basis, while at the same time, being completely unaware that many of these products are in the cloud.

It also fails to anticipate one other factor; what will happen the day these measures apply to all cloud-based technology (that day is coming, and in some cases, is already here).  As it stands today, if most attorneys attempted to comply with these security measures, law practice as we know it would grind to a halt.

Better start preparing now…

Education, Implementation, Law Practice Management, Scope, Strategy, Technology

Century City Executive Counsel Exchange – Summary

MP900382650Alec Baldwin’s Twitter rant?  So last year…(that’s why I created a ‘Twit List’).

BP accused of spoliation?  I’ve never heard that, before…

This week, I actually saw an article warning people to be careful what they post on social media, ‘because it might come back to haunt you, someday.’…

Folks, it’s almost 2012!  If any of the above headlines surprise you, you’re either new to this game or you’ve been hiding in a cave (or you haven’t been reading e-Discovery Insights the past three years…).  So, let me tell you about something more substantive – the annual Executive Counsel Exchange that was held this past Monday and Tuesday at the Hyatt in Century City, California.

I’m not aware of any other conference that operates the way this one does it.  It’s a roundtable, free-form discussion over a period of a day-and-a-half.  Two old pros were moderating this year, Robert Brownstone of Fenwick & West LLP and Browning Marean of DLA Piper (if you don’t recognize either of these names, we may have to have the ‘cave’ discussion again).  The moderators cover a series of relevant topics and the attendees are encouraged to participate.  Everything is memorialized and the attendees receive a copy.

Another thing I really appreciate is that, although it’s a sponsored conference, the vendors are highly respectful about not bombarding us with sales pitches during their contributions to the program.

If you want to know what’s happening right now, this is the place to be, because you’re hearing it exactly as it is, from people covering all parts of the spectrum who do this every day (vendors, technology, inside and outside counsel, executive, etc).  Over the next several months, The Exchange (as its called) will be in four more cities across the country.  Unfortunately, I was only able to attend Monday’s session this time, but I encourage you to check it out if you have the opportunity.