Category Archives: Management

Public Comment Requested: CalBar Board Committee of Member Oversight Asks, “What is an MCLE?”

Dragon-weathervane-1As stated in the headline, The State Bar of California Board Committee on Member Oversight seeks to amend the definition of what qualifies for proper MCLE credit in the state of California.  Apparently, some confusion has arisen regarding whether CLE programs may only contain substantive law versus whether they may encompass other ares of law practice and/or law practice management.  Here's the issue in Calbar's language:

"The proposed rule amendment clarifies and eliminates ambiguity as to what constitutes permissible and credit-worthy MCLE. Additionally, the change also expands the scope of acceptable MCLE to programs and activities that relate directly to the management and operation of a member’s law office and to mediation training."

Concurrently, CalBar's Task Force on Admissions is in the process of evaluating the implementation of a pre-admission practical skills training program.

Folks, these issues are near & dear to my heart. Obviously, as the incoming Chair of CalBar's LPMT Section, I have a few opinions on this subject.  Considering that most law schools don't spend much time focusing on what successful candidates should do once they arrive in the real world of law practice, I feel that limiting continuing legal education offerings to substantive law-only would be a huge detriment to newbie attorneys as well as veterans.  At least, that's what we see from the attendance at our CLE programs.

Therefore, I ask that you examine the proposed amendment, then make your voices heard.  Public comment remains open through September 8th, 2012.

Some Solo Summit Summaries

MP900439267As I mentioned yesterday, I'd intended to write this post earlier in the week.  The Solo Summit ended this past Saturday and I wouldn't want the information to become stale; but this isn't that kind of post.  Yes, I'll tell you all about the Summit, but your takeaway should be that, if you're a solo or true small firm in California, you really should consider attending next year's Summit.  Since it began in 2009, its been growing every year – and for good reason.

Here's a sample of the education you had to choose from:  Marketing your practice, balancing your personal/professional life, avoiding discipline, mediation, setting up a litigation war room, health care, the iPad in law practice, human resources and risk management, fee arbitration, free legal resources for lawyers, emerging practice areas, client trust accounts, employment, privacy, confidentiality & security (my presentation), elimination of bias, estate planning, bankruptcy, avoiding malpractice, eDiscovery, tax, appellate practice, family law, expedited jury trials, time management and IP.

There was CLE credit available in all specialty areas.  That's a lot of bang for the buck!  Naturally, as the incoming Chair of LPMT, I was curious what attendees thought of the programs.  I have to say that virtually all of the feedback was positive.

And my program?  The room was completely full (I estimated about 75 people) and again, feedback was extremely positive (as usual, I didn't finish).  In fact, I can't recall a presentation I've done that resulted in as much follow-up by attendees as this one.  I'm not sure if it was due to the material or the type of conference.  But, I did receive many questions about cloud security and was pleased to inform those people that I – along with my LPMT colleague, Donna Seyle – will be presenting on that very subject at the State Bar's Annual Meeting in October; and it'll be 90 minutes.  Maybe we'll actually get through our entire program!

So, why do I highly recommend the Solo Summit?  We estimated attendance at about 285, and a prime benefit was the relative intimacy of the conference that allowed people to mingle and meet at breakfast & lunch (which were provided), during breaks and of course, in the evenings.  As much as I enjoy the annual meeting, it's much larger and those types of impromptu conversations are much more difficult to achieve because you're always on your way…somewhere.

What would I do differently?  Move the coffee bar next to the stage.  That way, people would never leave…

The Bench: #California Judicial Council Kills ‘Tower of Babel’

Home-alone

Project:  California Court Case Management System

Number of Years in the Making – Ten

Number of Computer Systems Utilized State-Wide – 70

Initial Cost Estimate – $260 million

Amount Spent to Date – $560 million

Amount Still to be Spent – $8.6 million

Estimated Cost to Complete – $2 billion

Number of Counties Upgraded – Six out of 58

Cancellation Date – Tuesday, March 27, 2012

Effect on the California Court System – PRICELESS!

I Need Jobs

MP900439292 I want to do something different.  The problem is, I'm not having much luck being hired.  I'm temperamental, moody, stubborn, and definitely march to the beat of my own drum.

I'm also euphemistic…

When I know I'm right, I stick to my guns – even at the risk of being wrong – which, I'm not embarrassed to say, I have been.  I wish people would just do what I say and stop questioning me so much!

I've pissed off so many people at work that – I like to joke – H.R. has a chair with my name embroidered on it!  It's gotten me fired, too.

People don't understand how my mind works – they just know that somehow, it works.  My spectacular failures are only bested by my even-more-spectacular successes.

My education's a little thin.  My mind was too restless to sit in a classroom, so I didn't finish college.  But I'm telling you, I've got some killer ideas and I can make them into reality; whoever I work with will make a lot of money.

I'm going to interview at this really cool tech company.  I think I can do great things for them.  It's on my calendar for Monday.  I'm just wondering one thing…

Do you think Apple Inc. will hire me?

Cascades: Good for Mountains, Bad for News Orgs

MP900438949 First things first.  My beloved Cubs rewarded my visit with a 13-3 loss to the Marlins, marking this as the most lopsided score over the 15+ years I’ve been making this journey.  Now, firmly ensconced in San Francisco – and with my state bar duties dispensed with for the week – we can return to more pressing matters…

How many of the execs swallowed up in the News of the World Scandal thought they’d ever be arrested in their lifetimes?  None.  In fact, a high percentage of the general public would agree with them.  But people-who-you-normally-wouldn’t-expect-to-be-arrested are arrested.  And some of them eventually go to jail.

While you watch the slow and painful erosion of the Murdoch empire – and the collateral damage causally connected to it – I hope you consider one ingredient to add to your schadenfreude; you’re watching a large-scale version of how your criminal or civil matter will unfold if you don’t deal with it when it’s manageable.

Of course, yours won’t likely be this big or this public – or this expensive – but this is how it’ll start; a molehill that, over time, grows into a mountain.  Or, in this case, a mountain range.  eDiscovery rules & regulations, litigation readiness programs and early case assessment are all designed to staunch the bleeding and, if instituted early enough, prevent the wound altogether.

You have to be willing to take the pain.  Like they always say, the first cut is the deepest.

Glossary of Excuses

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Risk.  What is it, exactly?  Here are a few good definitions:

"The possibility of suffering harm or loss; danger."

"Product of the impact of the severity (consequence) and impact of the likelihood (probability) of a hazardous event or phenomenon."

"The quantifiable likelihood of loss or less-than-expected returns."

"The amount of statistical gamble that someone (usually management) is willing to take against a loss. That loss can for example be either in profits, reputation, market share, or franchise."

Ok…so, knowing that all of this is on the line, why do I keep hearing words like, "Underestimated", "Miscalculated", "Unexpected" and "Unanticipated" every time something goes wrong?

I'm unimpressed.

The latest is the crack (or should I say, sun roof) that appeared in the fuselage of a Boeing 737.  As either lawyers or techies, our miscalculations are bad enough, but when these people miscalculate (as in our previous study of Japan's nuclear mishap), other people die!

As a human being, I have to at least give Boeing credit for stepping up to the plate and publicly acknowledging their mistakes.  As an attorney?  Well…that's another matter, entirely.

A company I worked with many years ago hadn't implemented any disaster-planning.  When their catastrophic event occurred (prior to my arrival), they were essentially out of business for close to three weeks before the systems could be rebuilt.  In another incident, one of my direct reports was fooling around with an Exchange server and ended up accidentally deleting one of the accounts.  Too bad it happened to belong to the CEO…

Yep, disregarding risk may result in a death…but in our disciplines, it's more likely to be one of us!

Japan Epilogue: (Un)Safe Harbor: 10% x 50 Years = Prison?

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We started with a premise:  A disaster has occurred.  What now

We segued into a limited examination:  Were we properly prepared?  Why or why not

Now, comes the all-too-familiar Watergate-esque finale:  What did we know; and when did we know it?

According to this comprehensive report, officials were warned that there was a 10% risk within a 50-year span of a tsunami swamping the protective barriers of the Fukushima Dai-ichi nuclear power plant – and disregarded it.  What result?

  • Human toll: incalculable
  • Environmental damage due to radiation contamination: incalculable
  • Damage to 'hard assets' (plant, equipment, etc): incalculable
  • Near-term cost to replace loss of % of daily supply of electricity to Japanese citizens: incalculable
  • Evacuation and relocation costs: incalculable
  • Current financial losses to shareholders of TEPCO: $30 billion dollars of market value
  • Errors and Omissions losses to insurance carriers: incalculable

I could go on, but you get the idea.  Now for the bad news.  That's not the worst of it.  How about:

  • Liability of executives, government officials, etc. for negligence.  I'm referring to all liabilities (i.e., not just financial issues), since some parties may enjoy sovereign immunity; but that doesn't address their political liabilities.
  • Liability of executives, government officials, etc. for criminal negligence.  Think that it isn't a distinct possibility?
  • Liability of corporate executives to their shareholders for massive losses due to lack of reasonable prudence.

You know what?  I have to stop now.  This feels ghoulish.

The point I'm making is, certainly, this is about as bad as a disaster gets, but we can all learn from it because there's only one item we need to change – scale.  Plus, the most important thing relevant to us in the real-life case study we're now seeing is what happens when we're wrong.

Worried eDiscovery clients always ask me how they're ever going to do everything right.  I tell them, there is no such thing.  It's impossible to anticipate everything, but as a rule of thumb, the fallback position is the basic negligence standard:

Knew, or should have known.

If they acted in good faith based on what they knew or should have reasonably anticipated at a given point in time – and present a defensible position as to why they acted – they'll likely preserve safe harbor.  Naturally, one can never completely account for the odd rogue judge.  The day all judges rule alike is the day I give a specific answer.  In the meantime, you do the best you can.

The key is in making sure you have the appropriate harbor pilot.

True Disaster-Recovery: What Japan Teaches Us

What if?  Those two words form the initial basis of a disaster-recovery conversation.  Like you, I've seen the heartbreaking pictures from Japan and what gets me is, a country that is known for having the best earthquake-disaster-preparedness in the world has suffered tremendous losses in spite of that fact.

The best laid plans…

Japan's nuclear facilities prepared for a monstrous earthquake, but not an 8.9.  Is there any way to plan for an 8.9?  And if so, at what cost?  Obviously, when contrasted with the devastation we've seen – and may yet see – I wouldn't blame you if you said money is no object.  But in reality, we're rarely given a blank check.  We're required to work within parameters; sometimes very constrictive ones.

Lessons learned:  No matter how thoroughly you plan, it's impossible to prepare for absolutely every contingency that may befall you.  In the future – when memory of this disaster has faded and the passage of time blunts the impact – when envisioning a worst-case-scenario for your disaster-recovery program, if those around you are prone to cut corners, remember Japan.

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…