Category Archives: Strategy

Constitution, Judges, Law, Strategy

The Law of Unintended Consequences

MP900422756 Today is one of those days where I get to blog on a subject that interests me; not quite an e-anything, but possibly something that might matter to us down the road – strategy.  A lot of people, lawyers included, fail to take into account the importance of strategy in a legal context.  Sure, I touched on early case assessment the other day – and that’s definitely an element – but I’m drilling a little deeper than that.  My thought process was piqued by an article in the New York Times regarding the life cycle of cases as they meander up the chain to the Supreme Court.

Let’s put it this way.  If you’re in the camp that stakes out a firm position, then pursues it at warp speed, this article will make you crazy.  But you know what?  It’s reality.  Not every case is appropriate for the SCOTUS, even if they’re willing to grant certiorari.  In fact, they may hear it with the idea of ruling against your position.

Where is the connection to our concerns?  Well, obviously we deal in evidence.  And, although sometimes I think I’m one of the few who believes so, criminal procedure is prominant.  And of course, how many times has the right to privacy been cited?  That’s just for starters.  It’s only a matter of time before one of these cases meanders its way to the top.

I’m thinking, maybe the one where that guy might get two years in prison…

Backup & Recovery Systems, Cost, Disaster Recovery, Implementation, Scope, Strategy

“IDK”


MP900448337

"Today, more
organizations have a policy than ever before, but only one-third have tested
their policies and nearly half do not know if their policies have been tested."

~ Kroll Fourth Annual ESI Trends Report

I hadn't even opened my copy of Kroll's new report yet; that little tidbit was in their preamble.  It's an excerpt from their section, "A Decade of Discovery".  [The report is free, but you're required to register]

What else disturbs me?  Only 53% of companies have a litigation hold tool in place. 47% either don't have – or don't know if they have – a litigation hold methodology in place.  62% either haven't – or don't know if they haven't – tested their ESI policies.  62%.  Unbelievable!

That's a lot of "I don't knows".  All I keep thinking is, did the survey-respondent ask anybody before they answered these questions?  If not, they're basically admitting they're part of the problem!  Where's the communication!?

The other buzzword you're going to be hearing a lot more of is "ECA", aka early case assessment.  A lot of my colleagues have blogged about it.  You'll see it visually represented as the "ECA Funnel".  The short description is a review of a particular case to determine whether it's worth prosecuting – or defending; usually based on cost analysis and/or drag on resources.

Do you hear that sound?  That's the creaky door of the e-Discovery Insights vault opening to two posts from November of 2008 about proper testing.  Part I covered identification & preservation. Part II covered collection.

This just goes along with my premise; eDiscovery issues are solved at
the beginning, not the end.

Q.E.D.

California Lawyer, eDiscovery California, Education, Law, Law Practice Management, Miscellaneous, Strategy, Technology

eDiscovery California: CA State Bar Ann’l Mtg

2010_83rd_Annl

Trial is over…verdict came in yesterday.  I got my life back – for about 3 minutes…

Next on the docket?  If you're attending the California State Bar Annual Meeting in Monterey at the end of the week, yours truly is on a panel presenting CLE (continuing legal education) program #54, entitled "e-Discovery Translating — Lawyers from Mars; Techies
from Venus: Beginning e-Discovery" from 10:30 a.m. – 12 noon Friday, September 24th.

You may recognize the title.  It comes from an article I featured this past May, written by my good friend and colleague on the LPMT Executive Committee, Robert Brownstone, for California Lawyer magazine, who will moderate the panel.  Another colleague from the Committee, Cynthia Mascio, is joining us as well.  It's going to be a lot of fun – and educational for you, we hope.

See you there!

Admissibility, Constitution, Criminal Liability, e-Evidence Insights, Education, Strategy

e-Evidence Insights: ABC’s Primetime Crime: Inside the Interrogation Room

MP900448352 Many people have absolutely no idea what would happen to them if they were arrested.  In fact, it would shock them if they knew what the police are allowed to do versus what they think the police are prohibited from doing.

Television has conditioned the average person to think like this:

  1. The police 'invite' me down to the station for a chat
  2. I speak to them without an attorney present
  3. I go home

Or, maybe something like this:

  1. They arrest me
  2. They read me my Miranda rights
  3. I ask for an attorney

If only it were that simple.  If you have any interest in seeing an example of how things really might work, watch this 41-minute video from ABC's Primetime Crime (or read the article if you prefer).  I found it to be an excellent – and accurate – portrayal of interrogation tactics.

Hey – I'm not asking you for a lot of heavy lifting at the start of the Labor Day weekend!  Besides, forewarned is forearmed.  Please be safe – and if you're traveling, don't put this post into practice by getting snagged for a DUI.

Implementation, Management, Strategy

The Completion Backward Principle

"An IT executive turned California
e-Discovery Attorney and Consultant shares his insights – with an
emphasis on facilitating the relationship between legal and technology
professionals."


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Remember that?  It's the mission statement of this blog, as I explained in my flagship post almost two years ago.  So, how's that workin' out for you?  This survey from Recommind says not so well.  According to their results, cooperation between IT and Legal has deteriorated across all platforms.

Yes, there's probably an economic component here – Recommind
notes this – but I agree with their assessment.  It doesn't explain the
extreme change over a single year.

As we all know, statistics may be interpreted several ways.  Here's my take.  If I were to wager, I'd bet that many of these entities tried in good faith to get legal and IT to work together; and what we're seeing in the 2010 report is that the groups didn't get along and have either given up or severely curtailed their joint activities.  Communication breaks down rapidly once bad will develops.

The Gartner Group predicts that companies will escalate the process of hiring what they refer to as "Legal and IT Hybrids" to "mediate" between the two departments.  Hello?  Haven't I been saying this all along?

Subtlety isn't working, so I'll be direct.  There's the phone.  Call me.  I can fix it.

Ok…you can call collect…

Cost, Implementation, Management, Media, Sanctions, Strategy, Technology, vDiscovery Insights

Bumper to Bumper, Part II: Steve Jobs is Wrong

Any guesses as to which guy is Steve Jobs and which guy is the customer?  Hint: Steve Jobs always wears black.

If you read Part I of this series, in closing, I asked whether the "bumper" solution was a good decision from a management standpoint.  My opinion?  Yes, but only if you look at it from a purely financial perspective.  From a customer service/relations standpoint, it's a disaster.

Let's review the progression of events, from initial customer complaints to Apple's eventual response:

  1. Denial – "There is no problem."
  2. Blame the Customer – "You're holding it wrong!"
  3. It's all in your Head – "Our s/w is erroneously telling you that you have a problem."
  4. Blame your Competitors – "Everyone else has the same problem."
  5. Denial II – "There is no problem, but we'll give you a free bumper."

What's the 1st thing that comes to mind?  This isn't indigenous to Apple.  I've heard this song before.  Where do think the joke, "That isn't a bug, it's a feature." comes from?  I just think that with Apple's dedicated user culture, they have a better chance than most to pull it off; but that doesn't make it right.

I've spoken to career Apple customers who are so incensed by what they term the arrogant attitude of the company (usually referring to Jobs, specifically) that they've finally had enough.  Apple can afford to lose them, but that's not really the point, is it?

So where's the eDiscovery tie-in?  Where do I start?  You might be in a corporate IT department.  You might be inside counsel.  You might be outside counsel.  You might be me – a consultant, positioned somewhere in-between all of them.  What are you going to do when management adopts the attitude:

  1. Denial – "We don't need to implement this."
  2. Blame the 'Customer' – "The client doesn't want it."
  3. It's all in your Head – "We don't need to comply with the rules."
  4. Blame your competitors – "Nobody else is implementing it."
  5. Denial II – "We'll take our chances.  If litigation arises, we'll look at it then."

The difference between Apple and you?  They have a public relations issue and face class-action lawsuits.  You – and/or your management are likely to face serious sanctions.  But don't worry; that's only if something goes wrong…

 

Cost, Implementation, Management, Media, Strategy, Technology

Bumper to Bumper, Part I: e-Lessons Learned from Antennagate

BumperCar_Front If you're a long-time reader of this blog, you know that I used to post frequently about relationships between techies and management and how successful interaction between them is critical to the success of an undertaking; internally and externally.  As you can see from the headline, I'm using Apple's response to the iPhone 4G 'debacle' as a teachable moment.  Some will take issue with my use of the word debacle, but I'm speaking in terms of the negative press this issue has generated.  Caveat: I own an iPod Touch (but you already knew that).

If your initial thought is to wonder how any of this applies to eDiscovery, read on…

PART I:  STEVE JOBS IS RIGHT

Make no mistake.  Steve Jobs knows his customers – and so do I.  My first real exposure was when I was tasked with managing the only MAC network at Hughes Space and Communications (this goes back to 1993-94).  I quickly learned about the culture of MAC users.  As often happens to me – and many of you, I suspect – once that item was on my resume, the MAC element became a regular part of many of my future projects.

Stevie and I had a convo and we agreed on several points: 1) There's a hardware issue (not that we'll admit it), 2) the problem affects a relatively small number of customers, 3) a plurality of dedicated customers will back us, no matter what we do, 4) if we're forced to issue a recall, it could cost billions, 5) we know that a bumper/case/duct tape will solve the problem (not that we'll admit there is one) for most customers, so 6) let's go that route and offer a free bumper/case/duct tape (sorry, couldn't resist that last one).

The cool thing about #6?  We know that a lot of customers who do have the problem won't act.  On the other hand, we also know that others who don't have the problem will; in the end, probably a wash.

If you've perused articles on the issue – and read the accompanying comments – you'll probably note that the scenario has played out the way Stevie and I thought it would.  Overall, reaction has been favorable, and every time someone posts an article or comment critical of the solution, they're usually swamped with 'the faithful' calling them whiners and defending Apple, usually making the effort to express how much they love their iPhones.

So, was it a good decision from a management standpoint?  And where's the eDiscovery tie-in?  I'll bring it all home for you in "Part II: Steve Jobs is Wrong"…

eMail, Strategy

The B-Team: A Primer on Keyword Search

MP900399277 From an unlikely source comes an excellent example of how one might formulate a plan to search for key words and phrases in documents.  This informal Bloomberg.com article about the Lehman Brothers bankruptcy gives an excellent view of the process; and it may surprise you.  I especially like this excerpt:

"The search terms came out of a session where 20 lawyers at
Valukas’s firm, Chicago-based Jenner & Block LLP, were “told to
sit down and be as imaginative as you can,” said Robert Byman,
a partner at the firm who helped with work on Lehman. The terms
were changed if searches produced too many hits, he said."

Good old-fashioned brainstorming at work…

Cost, Duties, Strategy, Technology

Why be Normal?

J0262342 CIO magazine poses a hypothetical about whether the new normal might ‘kill’ IT.  Damn…I haven’t gotten used to the ‘old’ normal, yet.  But it is of interest to me, considering I made my decision to go to law school in late 2001 based on my estimation of where I thought IT was headed at that time.  It’s great that CIO caught up with me; albeit nine years later.  Here’s what I ‘saw’ in 2001:

IT, in its purest form, was never expected to turn a profit.  I defined it at the time as, “Our job is to make sure that everybody else can do their job.”  Unfortunately, many in IT didn’t see it that way (i.e. Dilbert comics are funny because they’re true, not because they exaggerate).

Even then, cracks in the dike appeared.  Departments started poaching IT talent to be used in for-profit endeavors; not necessarily a bad thing if there were enough resources, but that was rarely the case.  Also, there was a lot of backlash after the dot-com debacle – and quite a bit of it was well-deserved.  Sorry, but take it from me; many of the 28-year-old CEOs at those companies really didn’t know what the hell they were talking about.  We can’t all be Bill Gates or Steve Jobs, after all (note how I shamelessly covered both PC and MAC so as to avoid hate mail – oh wait, I don’t get any mail…).  And no, I’m not a Bill Gates or Steve Jobs, either.  If I were I’d have a nicer car.

But the main thing I thought about was, if you’re in IT and you don’t add value, you’re going to be in trouble down the road because the powers that be made a terrific discovery; outsourcing.  Conversely, I thought, if you’re in law and you don’t add value, you’re going to be in trouble down the road because the powers that be made a terrific discovery; outsourcing, and failing that, the lowly-paid associate.

I think we’re seeing a lot of this play out right now as the severity of the recession caused firms to think about what they can do without.  Unfortunately, they can do without a lot.

It’s tough making yourself indispensable these days…

Implementation, Law Practice Management, Management, Strategy, Technology, Tips & Tricks

Tips & Tricks: The Office: Lexis Partners with Microsoft

0000000540_20060919015544_paper The partnership I'm referring to was recently revealed at LegalTech in New York, but the benefits won't be available until later this year.

Nevertheless, this is exciting news for anyone with licenses to both LexisNexis and Microsoft Office 2007.  Lexis will be integrated into the Office 2007 suite of products (which includes Outlook and SharePoint) and will be available for Office 2010, when it's released.  This means no more back & forth between the Web and Office when performing legal research.

The new product is aptly named, "Lexis for Microsoft Office".  One interesting item of note; many firms use WordPerfect because of its outstanding legal tools and have been understandably reluctant to migrate to MS Office.  It'll be interesting to see how this new partnership influences the future direction of law firms.

Let me give you my position.  I'm someone who, as a Consultant, is always attempting to travel the shortest distance between two points (which, as we know, is a straight line).  With that in mind, when I've gone into companies, if they have an established suite of products, unless there's a glaring need to change, I try to keep them within the same parameters.

This has absolutely nothing to do with which products I find superior; it's purely in an attempt to limit the number of vendors, and it has a practical purpose (you IT'ers out there know exactly what I mean).  To illustrate (and I'm not pointing fingers here…), how many of you have contacted vendor support for two products, say, Lotus Notes living on a Novell server and had support from both companies deflect from addressing your issue by saying "it's their problem"?

If you have Microsoft Office living on a Microsoft Server, that problem is eliminated because all they can do is point fingers at themselves.

In that context, if a firm is already heavily-invested in LexisNexis and Microsoft products, but still holding on to WordPerfect, perhaps someone in IT thinks this is the time to make a change.

Ever since I joined the executive committee of the State Bar of California's Law Practice Management & Technology Section, my thought processes have modified somewhat to thinking more about 'law practice management' along with the 'technology' aspects.