Category Archives: Strategy

Guest Post – John Sadler: What Can You Learn About Teamwork By Playing in a Band?

John Sadler - Teamwork PNG

As a (former, recovering, retired) musician, I relate to this post by my friend, John Sadler:

Playing music in a band is a team activity that can be complicated by the ego issues and creative preferences of the band members, as well as role ambiguity. Over many years of playing music with other people, I’ve learned some behaviors that help a group work well together musically, and others that can make it fall apart. Many of those lessons port nicely to other team activities.

The biggest element of success in a band is to show respect for your bandmates. Other necessary conditions include:

Show up, on time – Clarinetist (among other vocations) Woody Allen has been quoted as saying that “Eighty percent of success is showing up”. It’s important to be dependable and do what you say you’re going to do. It’s equally important to pick bandmates who do the same.

Come prepared and in tune – don’t waste your bandmates’ time by playing your part poorly or wrong if you could have practiced it beforehand. Similarly, nobody wants to stand around while you set up and tune your instrument. If you have a complex kit, show up early and be ready to go when everyone else is.

Listen to the band – not just yourself. A great bandmate is a great listener, and will adapt his or her performance to make the band sound as good as possible. There is a lot to this. When you accompany, your job is to make the soloist sound great. What you don’t play is at least as important as what you do play. Leave space! (AKA silence). Get used to hearing yourself in the context of the band to get a feel for the right volume level. If you’re accompanying a soloist or a singer, make sure you’re not too loud – you may even lower your volume so the featured performer stands out in the mix. What sounds like the right volume when you practice may be way too loud in the context of a band. When you solo, you need to be a bit louder; more importantly, others need to back off. If in doubt. record the performance and listen carefully.

No drunks, no jerks – it’s hard enough to make great music without impairing your ability to think and perform. Give yourself every chance to have sound judgement and the best possible control over your actions. Check your ego at the door as much as possible – there needs to be honest give and take to make great music. You may think that you are a creative genius, but the odds are against it. Few team efforts are improved by verbal abuse, ego games, or infliction of emotional distress. A great band can rise above the limitations of its individual members if everyone is working well together.

Take mistakes in stride – the audience notices how you react to mistakesmuch more than the mistakes themselves. It’s OK to make a mistake. It’s not OK to call attention to it while performing. If someone makes a mistake (and everyone will) during practice, keep playing and have a critique at the end of the song. Remember that you will make mistakes as well – treat people kindly. They’re supposed to be your friends.

Everyone should have a chance to contribute ideas to improve the sound and performance. Everyone should be able to try ideas, especially during practice, that might result in a better sound. So mistakes have to be OK in order to perform at the highest possible level.

Expecting mistakes to happen and handling them with grace is a huge life skill. As bassist Victor Wooten points out in his excellent book The Music Lesson, a “good” note is never more than one fret away. Did you know that you can practice recovering from mistakes, the same as an astronaut practices dealing with emergencies?

Discuss and align your goals together – this one issue is responsible for the demise of many bands. You and your bandmates must agree on goals, whatever they may be, in order to form a cohesive team. If one person needs income or commercial success while the rest want to jam on the porch on a Sunday afternoon, you have a problem. You must decide what kinds of music you will play, what the roles of the members are – to name a few:

  • Who selects the material?
  • Who is the band leader?
  • How many soloists or lead singers are there?
  • Who are the song writers?
  • Who buys the beer? (Just kidding)

Finally, a couple of ideas for performance:

Play it the way you practiced it – Conversely, if you practice poorly, you will perform poorly. Good practice skills are highly underrated! Here’s one pointer that is easy to miss and hard to learn, but works exceptionally well: go slow to go fast. Practice only as fast as you can play smoothly and without mistakes. Speed up the tempo gradually. If you practice too fast, you will be teaching your muscle memory to make mistakes, and you will never play your part well. This general principle applies to almost any physical activity.

By the way, most great soloists practice their solos. Really. They don’t just step up and fake it unless they have to. Yes, there are exceptions, but I’ll bet they worked very hard to become exceptions.

Don’t stop until the song is over – Starting and stopping together are the second steps to sounding like a band (the first step is to play the same song together in the same key and tempo). You need to agree as a band on how you will know the song and tempo, how it will start, and how you will know when to end it. These things do not happen by magic. They happen by agreement, by knowing the material cold, and possibly by years of playing together.

Those are a few lessons I’ve learned the hard way by playing bands since I was a kid. I think many port nicely to the workplace. What do you think?

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About the Author

Reprinted by Permission.  Photo credit: Tomasz Budzyński.

Guest Post – Peter N. Brewer: LegalTech – Day Two

Peter Brewer Caricature

I think this is the first time I've ever done this on the blog, but immediately following LegalTech, I had to leave for a trip.  However, Peter Brewer, my trusty colleague from the Law Practice Management & Technology Section, was kind enough to write up a guest-post about his experience this year.

<<< I leave it to you to determine which image to my left is the real Peter Brewer:

"The ALM LegalTech West Coast event, historically always venued in the Los Angeles area, was held instead this year in San Francisco at the Hyatt Regency on July 13 and 14. As in the past, the event consisted of keynote sessions, seminars, and importantly, a large vendor exhibit area. The first day had five seminar tracks running consisting of; corporate legal operations, information governance, advanced IT, the cloud and mobile technology, and E discovery. The second day the tracks were four in number and consisted of; information governance, E discovery, information technology, and corporate counsel perspectives. 

I attended only the second day, which kicked off with an interesting discussion of the Ellen Pao versus Kleiner Perkins Caufield Byers case. On the panel were two reporters who covered the trial, and the defense attorney, Lynne C. Hermle, from Orrick Herrington and Sutcliffe. The plaintiff’s attorney, Alan B. Exelrod, of Rudy, Exelrod, Zieff & Lowe, had been scheduled to be on the panel but had to withdraw due to a scheduling conflict. This keynote proved to be a lively hour of informal discussion in which Lynne Hermle gave substantial credit to the jury for their thorough and diligent evaluation of the evidence. 

The keynote was followed by seminar sessions throughout the day, with ample breaks to visit the vendor exhibit hall.  I attended one of the seminar sessions on E discovery, “Every day E discovery: Bringing It In-House or Outsourcing It.” The panelists were knowledgeable; they consisted of an independent consultant, a claims manager, a partner from the major law firm, and a representative of Lexis-Nexis. The discussion was lively, but for my tastes it was a broad overview with much discussion of the concepts but very little grass-roots, take-home practical advice. I came away feeling that the discussion had been thoughtful, but with no better sense of, “where do I start,” or “what are my first steps when I get back to the office.” 

I also attended a session on cyber security. Again, the panelists were well qualified and knowledgeable. The discussion included such things as the availability of data breach insurance, engaging outside consultants to do cyber security audits of your business, and a general, high-level discussion of the topic of data security in the office. Toward the end of the session the moderator opened the discussion up to questions from the audience. I commented to the panel that, while I found the discussion interesting, I would like to have some specific action items that I could take back to my five-attorney law firm and implement, step-by-step. 

The advice that was given in response was to start with written policies and procedures. As in any endeavor, if you don’t know where you’re going, any road will take you there. A cautionary bit of advice that went with the suggestion of developing written policies and procedures was that then you are duty bound to follow them. Failing to observe your own procedures can increase rather than decrease your liability.

It was also suggested that I consider hiring a security consultant to do a risk assessment of my office. Apparently for a firm the size of mine (<10 total staff) this endeavor can run approximately $5,000 – $10,000. While this seems like a sizable chunk of discretionary spending, the cost of a data breach and one’s exposure to liability for it would no doubt be a multiple of many times that amount. 

Contrasting the 2015 event with LegalTech events in years past, one significant difference stood out to me.  In past years there were seminar sessions on a broader variety of topics. There have been sessions on such things as what financial reports a law firm owner should regularly produce and review, sessions on tech gadgets, useful mobile devices, helpful apps, practice management software, and so forth. This year by far the greatest emphasis was on data. Even the vendor exhibit hall, although it did have exhibitors of a variety of useful products, seemed to be heavy on the e discovery and data security vendors. While this information is no doubt useful to some, I found it not very applicable to my small firm’s real estate law practice, where we do not get cases involving discovery of tens of thousands, or more, documents. Circling back to the keynote discussion that kicked off that day, attorney Lynne Hermle said that in the Ellen Pao vs. Kleiner Perkins case Ellen Pao had produced something approaching a million documents. May I be blessed to reach the end of my career without ever having to tackle such a daunting task. 

All in all, the LegalTech event is an enjoyable break from the office, especially for those of us interested in tech.  Are you one of us?  Check your wrist.  If there’s an Apple watch on it, you are inescapably a techie.  It was nice to have this event in Northern California for a change, and the Hyatt Regency was a lovely and accommodating venue.  I hope to see the event back in San Francisco again next year."

Peter Brewer

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About the Author:   Peter N. Brewer has been a lawyer for over 35 years, and is also licensed by the California Bureau of Real Estate as a real estate broker.  Peter started his own firm in 1995.  The firm has grown to five attorneys, practicing real estate and lending law.  The firm serves the legal needs of homeowners, purchasers and sellers, real estate and mortgage brokers, agents, brokerages, title companies, investors, other real estate professionals and their clients. Peter and his firm also represent clients in debt collection, creditor representation in bankruptcy, breach of contract matters, and other litigation and transactional work.

Peter obtained his Juris Doctor degree from the University of Santa Clara Law School in 1979 and is also licensed to practice law in all State and Federal Courts in Idaho and certain Federal Courts in Michigan and Iowa (and probably in other states he no longer recalls).  He loves dogs, hates kids, and is generally considered to have an insufferable disposition.

Law Offices of Peter N. Brewer

2501 Park Blvd, 2nd Flr.

Palo Alto, CA 94306

(650) 327-2900 x 12

www.BrewerFirm.com

BayAreaRealEstateLawyers.com                 

Real Estate Law – From the Ground Up®

My Analysis of Calbar Formal Opinion 2015-193: eDiscovery & ESI? “Don’t Be Stupid”

The last three words from this short Beverly Hills Cop video clip sum up my analysis of the opinion:

I wrote public comments to COPRAC (The State Bar of California Committee on Professional Responsibility and Conduct) re their interim versions of the opinion and, in a rare step, I’m posting a verbatim excerpt because my assessment of this opinion remains unchanged.  One modification – I bolded a quote, because the Committee adopted my definition verbatim in their opinion (page three, footnote six):

“I’m seeing a very common thread in COPRAC’s reasoning that afflicts those who understand technology at a more surface-level; the tendency to think of it in physical, rather than ethereal terms.  In other words, the Committee has focused on the word evidence, instead of the word electronic.  Take water, for example.  Whether it exists in a lake, a bathtub, or a glass, it’s still water.  It’s the same with evidence.  Whether it exists as writing on a tombstone, a paper document, or in electronic form (e.g. sitting on a flash drive), it’s still evidence.  It’s the medium that should distinguish it for your purposes.  That’s the contrast missing here.

Whereas the Committee has done a better job of defining parameters such as clawbacks and laying out accurate mistakes by our hapless attorney, once again, it descends into conduct that isn’t eDiscovery-based; but competence-based.  This opinion relies too much on unrelated reasoning, such as “assumes”, “relying on that assumption” and “under the impression”.  That’s not an eDiscovery problem; that’s a general competence problem.  It’s also not what the audience needs.  If they’re attorneys licensed in California, they’ve presumably passed both a Professional Responsibility course and the MPRE exam and know – or should know – their duty of competence.  It’s not as if an attorney retains a med-mal case, then immediately “assumes” or is “under the impression” that s/he’s a doctor and can read an x-ray.  But I could intertwine those facts with this opinion and make it about medical experts.  What attorneys specifically need to know is how their actions, or lack thereof, in the procurement, assessment and handling of electronic evidence morph into a violation.  This is a highly specialized area unto itself.  See my previous example.  The x-ray is electronic evidence.  Proper acquisition is one matter; analysis, forensic or otherwise, is quite another.  That doesn’t just include the adversary’s evidence.  It also includes the Client’s evidence.  In this scenario, one is seeking to exculpate the Client through all available means – not just via the adversary.

Contradictions also exist in Footnote Six on page three that states, “This opinion does not directly address ethical obligations relating to litigation holds.”.  I respectfully submit that the opinion goes on to do exactly that.  Perhaps this is due to the criteria set forth in Footnote Six being inaccurate as defined.  In a legal setting, Attorney is charged to know what the Client does not, and this may involve issuing litigation hold instructions to their own Client; not just third parties or adversaries.  If attorney was interacting with the CIO or CTO (The “Information”/”Technology” chiefs, perhaps s/he could reasonably reply on their assessments.  But here, attorney is interacting with the CEO who likely has no intimate knowledge of what goes on in the IT department.  It should read, “A litigation hold is a directive issued to, by or on behalf of a Client.”  Otherwise, how does the competent Attorney protect a Client who, in good-faith, endeavors to do the right thing or protect themselves when a Client, in bad-faith, engages in intentional spoliation?  One of those scenarios exists on page two, when the eDiscovery expert, “tells Attorney potentially responsive ESI has been routinely deleted from the Client’s computers as part of Client’s normal document retention policy”.

Understanding these nuances and acting on them is the very definition of competence as applied to an eDiscovery attorney – or an attorney who engages the services of a third-party eDiscovery vendor.  In this arena, eDiscovery is like a game of falling dominos; once competence tips over, the rest (acts/omissions, failing to supervise, and confidentiality) will logically follow.  As they say, timing is everything.”

Conclusion:  The opinion does a good job of explaining fundamentals of the eDiscovery process, but in my opinion, doesn’t go nearly far enough.

Calbar CYLA Symposium – May 22, 2015 in L.A.

CYLA Skills 2015So…I'm a little out of order (not a great thing for a lawyer to say, is it?).  It means that I've already posted presentations in June but the CYLA Annual Practical Skills Training Symposium is held in the State Bar offices May 21st in San Francisco and May 22nd in Los Angeles.

Two important thing to know:  1) The programs are different each day, and 2) I'm presenting from 2 p.m. – 3 p.m. Friday, May 22nd on:

 

New Attorney Skills (Attorney Advertising) 

Ethical Attorney Advertisement and Marketing

"This course will discuss how to advertise your legal services on the Internet. Learn how to design and operate your website, correspond with clients or prospective clients online, and use social media to maximize your business objectives."

I'll also be sticking around from 5:30 p.m. – 6:30 p.m. for:

Networking Speed Mentoring

"Meet and greet seasoned legal practitioners."

I'm pretty sure "seasoned" is a euphemism for "old"…I'll pretend it means, "experienced".

I hope you can join us.

Calbar Solo Summit – June 18-20, 2015

Solo Summit 2015It’s that time again, folks.  The State Bar of California Solo and Small Firm Summit will be held at the Newport Beach Marriott from June 18-20, 2015.  I’m presenting program ten this year on Thursday, June 18:

 

Earth(quake), Wind, Fire & Flood: Disaster Planning for the Law Practitioner

Four things are certain in life: death, taxes and disasters. The fourth? The disaster won’t manifest itself in the way you expect nor when you expect it. This program broadens your perception of what a disaster is and – should one occur – guides you through preparing and planning for continuity in your law practice.

I’ve been a fan of this conference for years because it provides a more intimate experience between attendees and presenters.  I hope you join us this year!

LTWC 2015: From LA to SF!

 LTWC 2015
Have you heard?  Big changes are afoot for Legaltech West Coast 2015:

  1. The dates are July 13-14, 2015
  2. It's relocated to the Hyatt Regency
  3. That's the Hyatt Regency…in San Francisco!

How accommodating of them to move it to my new city.  I didn't realize I had that much pull.  Actually, it was great news when I found out about it a few weeks back because in 2014, I had to skip the conference for the first time in years – and it was looking the same way for 2015.

Registration is open.  Mark your calendars…and see you there!

The Exchange: Cyber Security

TGCIHot on the heels of Today's General Counsel and Institute's eDiscovery-based, "The Exchange" comes something new:  "The Exchange: Cyber Security.  This is not a 'tour'; it's only held in two locations.  Thankfully for me, one is – once again - at The Bar Association of San Francisco, April 27-28, 2015.

Any guesses where the second one will be held?  Hmmm….where is this kind of thing prevalent?

Washington, D.C., of course!  That conference isn't until November 2015 – you have time.

I attended most of day one of The Exchange yesterday and it's as robust as ever.  Still a great choice if you want to get the big-picture view from every corner of our profession. 

Registration is open, but be warned; it's almost completely full and the rules are different this time.  You may use the same free code to register if you're my corporate readers only:

TGCICOMP

Sorry law firms – you still have to pay.  Also, this is a vendor-sponsored event, so no outside vendors allowed.  

P.S.  I'd like to give a shout-out to my good friend from TGCI, Neil Signore, who has graciously provided complimentary admissions.

Calbar Solo Summit 2014: So Much for Cutting Back!

Solo Summit 2014

 

Hi All – hope things are going well with you.  I said I was planning to cut back on presentations, but somehow I was selected to do two programs at the upcoming State Bar of California Solo & Small Firm Summit in Newport Beach (note that's a change from the usual location, Long Beach).  So, without further adieu, here's my schedule:

 

Solo Summit 2014 - Friday

Friday Lunch Program:  11:30 a.m. to 1:00 p.m.

(Program 17, June 20th)

Junior Associate to Senior Partner: Confidentiality, Privacy and Technology Governance

Generally speaking, senior attorneys tend to be intimidated by technology. On the other hand, junior attorneys tend not to be intimidated enough!  This program strikes the balance and answers the burning question, “Am I doing enough to protect the privacy and confidentiality of both my practice and my client information?”

MCLE: 1.0 Hour Ethics

[I was awarded one of the coveted plenary sessions for the first time.  Normally, we break into three concurrent MCLE presentations, but the plenary sessions have all 250 attendees.  I'm going to have to be on my toes for this one…]

 

Solo Summit 2014 - Saturday

11:00 a.m. to 12 noon

(Program 32, June 21st)

Leveraging Technology to Beat the Big Guys in the Discovery Game

Panel presentation of the rules and new technologies pertaining to ESI (electronically stored information) that will level the playing field to allow a solo or small firm attorney to “go toe-to-toe” with a large law firm throughout the discovery process — even during the most complex and voluminous litigation. The speakers discuss cutting edge litigation technology advancements which translate to cost savings and more streamlined management of electronically stored information. New technology trends discussed include computer assisted review, analytics, the latest trends with computer forensics and automating litigation hold policies among others.

MCLE: 1.0 Hour Ethics

Hope to see you there!

Shameless Plug Alert: The California Guide to Growing & Managing A Law Office

Grolo2 Cover - Cropped
I heard rumors that people who preordered the book were starting to receive their copies and now it's official.  The book is out.  Obviously, you should buy several copies for members of the entire family as holiday gifts.  After all, what better time to share the knowledge than on, say, Memorial Day weekend?

But I'm not pushing…not…pushing…