Ernie The Attorney

LSBA Solo & Small Firm Conference - Speaking today in New Orleans

I'm speaking today at the Louisiana State Bar Association's Solo and Small Firm Conference at the Hilton Riverside in New Orleans. I'll be on 4 panels, starting at 12:45 pm.  Topics include: Mac-use in law firms, Social Networking issues, Acrobat for Lawyers, and 60 Tips in 60 Minutes.

For folks attending the Mac session, here is my comprehensive paper on all the Mac hardware and software I use (PDF download, with bookmarks).

The other sessions have written materials but I wasn't primarily responsible for preparing them and so I don't have them handy to upload.

If you're at the sessions stop and say hello, or grab me in the hallway.  If you're not attending the sessions for whatever reason, then I'll look forward to hopefully seeing you next time.

ABA TechShow - First thoughts

Here's my main takeaway from this year's TechShow: if you're a lawyer who appreciates learning about new technology tips and tricks from a professional standpoint (as well as a personal one), then you owe it to yourself to attend a TechShow.  It's always held in Chicago at the end of March. So start planning for next year!

Why should you attend?

Well let's start with the fact that the speakers at TechShow are all first-class presenters.  With deference to the usual CLE speakers that we all encounter, this conference is in a whole other class.  People only get invited to speak at TechShow if they're really good at presenting (which makes me wonder how I snuck past the QC controls). And the presenters know their topics in depth.

The programs are probably all fantastic, but I obviously didn't attend them all.  I attended only the sessions in the "Paperless track" and the "Mac user track." I did this so that I could concentrate on learning a lot in a few areas. There are lots of areas to choose from.  If you want to learn about electronic discovery there are several sessions, and same with mobile computing.  In short, you can learn so much in 2 and half days that, if you're not careful, your head might explode.

Besides the sessions, the hallway encounters wind up being incredibly valuable as well.  The people you meet at TechShow will wind up being folks that you'll stay in touch with and bounce ideas off of in the future. Seriously, if you care about technology at all (and you know who you are) then you must go to TechShow.  If you go, you'll kick yourself for not figuring this out sooner.

I'll try to write up some of the key tips I came away with, but I'm still digesting a lot of it. For now, here's one thing I learned in a hallway meeting: a lot of folks are using Doodle.com as their go-to site for scheduling meetings where there are lots of people. TechShow is great for finding out which, among a variety of similar services or products, is the one that most knowledgeable techies prefer.

So, there's your first tip: Doodle.com.  Check it out.

The Young Turks of Information Processing

Last Saturday I taught a two hour skills course to 30 or so Loyola Law Students about Digital Lawyering. Almost every one of them had a laptop in front of them, which was good. I was hooked to the Internet and demonstrated how to find things using Internet services like Google Reader, Delicious and so forth. As I referred to these services I sensed that the students were going to those sites and reading along for themselves. As I said, I think this is a good thing.

I realize that most people in my generation would be taken aback, believing it to be disrespectful for students to be doing something else while I was talking. So, let me explain why it doesn't bother me. First, I'm happy to share whatever thoughts I have with whomever wants to listen. If, in addressing 30 students only 3 of them are actually listening, that's totally fine. I'm there for those 3 students and I appreciate the opportunity to help them. If the other ones don't care about me, then I'm not concerned about them either.

The reality, however, is that most of the students were listening. But the thing is: they weren't only listening. They were also connecting dots by doing their own online research as I talked to them. This is how students today behave. I know this mostly because I have a teenage daughter (as well as two slightly older kids) and I see how she gathers information using her computer or iPhone. It's fascinating to see how adept she is at finding information. So, my first reason for not being concerned about students using their laptops is that I understand that they're actively gathering information, as opposed to passively receiving it.

The other reason that I'm not bothered, and actually happy to see students using their computers as I talk is this. My generation is pretty lame when it comes to gathering information in the digital world. In law this manifests itself most starkly in the world of e-discovery. Discovery, in law, is all about getting the low-down on what really happened in a lawsuit. You can get the low-down by interviewing witnesses or deposing them, but that takes time, costs money and is inherently unreliable. What people say happened is not usually exactly what happened.

To really get a handle on what occurred in a case with serious factual disputes (which is most cases), you have to look at documents. And today when I say 'documents' I mostly mean 'electronic documents.' Sure, there's still a lot of paper to sift through (but you should digitize it anyway). Increasingly the bulk of written communications is in email. People who email tend to make the kind of casual comments that litigators like me really appreciate. So, these days, email is what you want to look at first and foremost.

Most lawyers have trouble with email (and digital information in general) because they don't understand how to navigate that world. Lawyers who don't search for things on Internet are the worst. They lack a fundamental skill that's needed to efficiently attack digital information. Naturally they're inept when it comes to handling electronic discovery. Some of them are committing serious malpractice. But, of course, they have no idea.

The next generation of lawyers will not have this problem, or at least it won't be a prevalent problem like it is today. The young turks coming out of law school today don't have a passive relationship to information. They attack digital information the way sharks attack wounded seals.

An example of this mindset was presented to me after my lecture to the Loyola law students. Two fellows who happened to be brothers came up to the podium to chat.  We started talking to me about iPhone applications, and wound up talking about 'Words with Friends,' which is basically a word game like Scrabble. I told them that I was playing with my daughter and that I was sure that she was cheating because she always won (and I knew that she didn't have as large a vocabulary as me). I mentioned that I was going to have to resort to using one of the online word-finder tools to keep up with what she was doing.

One of the brothers said that they don't allow cheating like that when they play Words With Friends. I said, "what do you mean don't allow cheating? How can you know if the other person is cheating?" He said that if someone he is playing against uses a word he suspects is not in their vocabulary he checks online to see what if that word was the top suggestion in an online word-finder. If it is then he knows the person is probably cheating and calls them on it. His matter-of-fact response caught me totally off-guard.

So, think about this for a second and see if you grasp the power of this statement. And by 'this' I don't mean as applied to scrabble or word games. Think about the mindset. Law students today use the web like detectives. They know how to gather information (fine), but they instinctively know how to trace back the steps that other people use to find information. This mindset and the online research skills that come with it are dangerous. At least to some people.

For starters, these students will have a huge advantage when it comes to doing electronic discovery. They haven't even started practicing law and already they're leagues ahead of lawyers who've been in the business for years.  They know how to gather digital information, and they have no resistance to adopting new ways of gathering it if that provides an instant advantage (e.g. no one is going to have to convince them of the value of concept searching). These lawyers will know how to zero in on key information quickly and inexpensively. So if I were a traditional lawyer (e.g. one with poor Internet skills or someone who has trouble with digital information), I'd be afraid of the next generation of lawyers.

The next generation will not graduate from law school and immediately surpass veteran lawyers.  But they have a skill that's already in high demand, but short supply.  Veteran lawyers can't quickly learn how to gather and process digital information. Most young lawyers will learn how to practice law fairly quickly, or at least much faster than the veteran lawyers will learn what they should be learning.

The value of being a law review editor (oh, the irony!)

 During law school I did pretty well. In my last year I was selected to be on the law review editorial board, which I thought was the most important achievement of my law school career. I became a "managing editor," which meant being primarily responsible for obsessing about Bluebook citation form. This position is highly prized, mostly because law review editors can't do much beyond applying style rules and checking basic legal propositions. Neither I, nor my fellow editors, had any idea of what constituted 'proper legal scholarship,' or scholarship in general for that matter. But that didn't stop us from lording over submitting authors as though we were Emperors at the Roman Coliseum.

Upon graduation I went to work for a federal trial judge. He was whip smart and well-respected. He had been the Editor-in-Chief of the same law review when he was in law school.  I assumed, therefore, that he held law review service in high esteem. During the job interview he scanned my resume and then quickly observed that nothing I learned while on the law review would be of any practical use to me as a lawyer.  

I was stunned. But I was relieved to find out that I would nevertheless be offered a two year clerkship.

During my clerkship I came to learn that he'd once submitted an article to his alma mater, as a favor to someone I believe, but the law review board edited it without his permission. And then published it. They changed key words, and altered the carefully crafted meaning. As a result, one of his key points was totally distorted. He complained ferociously to the Dean about the lack of 'adult supervision,' but was told: 'this is the way that all law reviews are run.' It completely baffled him that mere students would be given editorial power over lawyers with vastly more experience.

Pretty much everything about legal academia baffled him.

When he passed away, I wrote a blog post about what it was like to serve in his chambers. The final passage ended with me describing how he used to come down the hallway and bellow my last name, which he used to mispronounce as 'Swenson.' The point was that he had a profound influence on me, even though he never learned how to pronounce my last name. No one who read the article could fail to miss the bittersweetness of this point, as it captured a small --but important-- part of his personality. Someone came up with the idea of doing at tribute issue in the law review. Many people wrote essays about the Judge and his many accomplishments. I was asked permission to have my blog post republished. I agreed, and emailed the editors the text file. My words didn't need any editing, or fact checking. They didn't contain citations, and there were no Bluebook issues. Nevertheless, they couldn't just publish the article as written (that would belie the fact that that being a law review editor served little purpose). So, they naturally set about editing my words. 

And guess what got changed?  

Yep, they changed the final passage. And, just as they had with the judge many years before, they never gave me the chance to correct their mistake. What was their mistake? They changed the passage so that my name was spelled correctly, which completely eliminated bittersweet charm and pretty much ruined the ending. But, I'm sure whoever made the change felt a small moment of pride at having "caught" my mistake, saving me from the embarrassment of having misspelled my own last name.

Oh, the irony!!!

All they had to do was copy and paste what I sent them. But the right thing, the easiest thing, was simply not within their skill set. My judge was right: law review experience is worthless.  

In many cases, it might actually be dangerous.

Wanna be a lawyer? Well, get thee to a courtroom!

The quickest way to learn the ropes of any business is to go where the rubber meets the road.  So I'll let you in on a little secret that no one knows about.  If you want to learn how to be a lawyer you need to learn how behave in court, and how to read a judge.  If you can figure out, on the fly, how to banter with a judge in open court then you can be an effective lawyer. If not, then don't fret. Clients don't usually know if you're effective (until it's too late).

So, how do you become effective as a lawyer? 

Before you attend your first law school class (and this is important, because once you start going to class you'll get lulled into thinking you're actually learning how to be a lawyer), go to court.  How do you learn how to be a lawyer?  Obvious answer: by watching lawyers do their thing.  Later you will have some sense of how to do it yourself.

So, go to court.  Park your butt in a seat and watch the lawyers come in and argue their cases.  Actually, before you watch lawyers, go watch ordinary people. You'll learn a lot by watching them too.  So, go to traffic court.  If your traffic court is anything like the one we have here in New Orleans you will not only learn, but also be entertained.

The other day I happened to be in traffic court, and I feel like I learned a lot (or maybe I was just very entertained).  Most of the cases in traffic court are handled by the assistant city attorney working out of a back office.  The CA might negotiate a lesser charge (especially if an attorney shows up, which is not the norm), but unless you have one of those kinds of cases you wouldn't know what goes on back in the 'secret room.'  Fortunately some cases get handled in open court by the judge. And this is where the entertainment comes in.

It's fascinating to watch ordinary people come into court and try to convince the judge to let them off the hook.  I watched about 10 people in a row, who had previously failed to appear in court and therefore had arrest warrants issued, try to explain their plight to the judge.  Most of them were dressed like drug dealers or prostitutes. (Tip #1: first impressions count).  None of them had thought through their 'explanations' and simply get trying to get the judge to accept that they 'just forgot' or 'didn't get the notice.'  (Tip #2: spend some time preparing a credible argument).  Even though the judge made it clear that he was not going to accept these kinds of excuses people kept stepping up with a carbon copy of the losing argument. (Tip #3: be prepared to abandon an argument that is not being well received by the judge).

Another thing that amazed me was how many people brought in cellphones and then allowed them to ring out loud.  The courtroom was festooned with signs warning about having cellphones go off.  When a cellphone would sound the judge would instruct the guard to confiscate it.  So, can you imagine?  People were going into try to get out of a $100 contempt fine, and losing both the fine AND their cellphone. (Tip #4: don't go to court if you can't follow the local rules).

You might be laughing, thinking that YOU would never do anything so stupid.  Perhaps you wouldn't.  That doesn't mean you'll be an effective lawyer.  You still have to learn how to read the judge and figure out how to craft an argument that is appealing to him or her.  And you have to do it quickly, based on all the factors that you pick up while you're in court. So, after you spend a few hours at traffic court head over to the next level state court and check out the proceedings there.  Keep working your way up the jurisdictional food chain, and take notes.  You will see some great lawyers and you will see some pathetic ones (mostly the latter).  You'll see some great judges and some mediocre ones.

Watch how the good lawyers are quick to adapt.  Notice how the mediocre ones are over-confident and inflexible.  Watch how the good lawyers deal with bad judges, especially ones that are harsh and rude. That's when you'll see something that will actually help you as a lawyer. 

Sure you have to go to law school and pay tuition.  Going to court will cost you nothing but time.  But you'll learn more by going to court and watching real proceedings than you will ever learn in law school. Even if you spend all your time in traffic court. 

I'm totally serious.

LADB Seminar – Using Technology to Improve Cross-Examination

Dane Ciolino and I will be doing a one hour presentation entitled Using Technology to Improve Cross-Examination this Friday (August 21st) for the Louisiana Association of Defense Counsel's all day seminar at the Windsor Court hotel. Registration information (for LADB members only) is available by downloading this PDF file. The seminar will run from 8:00 am – 5:45 pm, and our presentation will be the last one of the day (4:45 – 5:45 pm).

Judge calls paper trials 'the old fashioned way.'

When courts spend money to allow evidence to be introduced electronically you can assume that they'll expect lawyers to use the new system. What new system?  Oh, well the one that New Orleans courts are adopting. The new system will end the practice of attorneys handing copies of evidence to each juror, "a method that U.S. District Judge Ginger Berrigan described to a jury in her court last week as 'the old-fashioned way.'" 

So doesn't it seem that the lawyers who are most familiar with digital information will be the ones most comfortable in the new setting?  I wonder what the trial lawyers who eschew technology will do now?

Great book about technology and law

I just finished reading Free the Market, a fascinating book by Gary Reback, the lawyer who was probably most instrumental in the government's antitrust lawsuit against Microsoft.  Turns out he's had a ring-side seat for most of the important antitrust litigation involving technology companies for the past 20+ years.  If you are a lawyer you'll really enjoy this book because he provides wonderful behind the scenes explanations of the formulation of strategy in the cases he was involved with.  Case such as the Oracle lawsuit involving the acquisition of Peoplesoft, and of course the Microsoft case.  

But, even if you're not a lawyer, you should read this book.  At least if you care about technology issues.  The legal system has a profound effect on emerging technology, especially in the area of antitrust law.  Okay, I know.  Many of you are rolling your eyes and saying "antitrust law is too complicated  and boring."  Well, you're wrong about that.  Antitrust law is about preserving competition, which means it's about economics more than anything.  (Don't roll your eyes again -- it's about practical economics). 

The key question posed by the book is this: do we need better government regulation of the tech sector?  Also: is the current state of technology development such that we need to re-examine how we use antitrust law to regulate it?  These are important questions, and Reback does a great job of laying the groundwork for understanding these questions.  Theory is great, but eventually it has to be put to test in the real world.  The lawsuits that Reback was involved in were acid tests of our antitrust policy. And --just as our financial regulation turned out to be deficient-- it appears that our policy needs to be re-examined.  But that won't happen if people don't take note.

If you have even a passing interest in current affairs you should read this book.  It's engaging and lively, and most of all: important.  I picked it up thinking I'd just read a few chapters, and found that I literally could not put it down. I'm glad I didn't because I now finally understand how antitrust law has shaped the development of technology in the past 20 years.  I hope that we do a better job going forward.

Here is the link to Amazon if you want to order a copy of the book (click here for the Kindle version).

Martindale Hubbell lawyer ratings: now for only $59 (operators are standing by)

When I graduated from law school, the Martindale Hubbell ratings were considered by many attorneys to be some sort of gold standard.  The Martindale Hubbell books were in almost every law firm library, and in every federal judge's library.  Whenever the judge I clerked for didn't know a lawyer in one of his cases, we'd consult those books to see where he or she graduated from law school.  The ratings were interesting, but not very helpful (as I explained once before).

Most attorneys paid to be listed in the Martindale Hubbell.  It was a good way to make yourself known to attorneys in other jurisdictions who were looking to hire counsel outside their state.  

But then one day someone invented the World Wide Web, and soon websites started sprouting up like weeds. These days almost every attorney has a website; it costs almost nothing to put one up.  If I want to know what law school an attorney went to I can look that up on their website.  Odds are I'm more interested in what kind of law they practice. But, again, that's going to be on their website.

Martindale Hubbell has a website too.  And if you pay the exorbitant fee to be listed in their books you get added to the website for free.  Some attorneys are pleased when they get an AV rating from Martindale Hubbell, and so they list that rating on their website.  This used to be prohibited under the terms of Martindale's service. The only place it could be displayed was on Martindale's website, but that website was not indexed by Google so you'd have to go there and do a special search.  So basically your online Martindale rating had an only slightly better chance of being found than a message in a bottle at sea.

Today I got a letter in the mail from Martindale Hubbell telling me that if I want to display my rating on my website I can now do it.  Yes, ladies and gentlemen, "Martindale-Hubbell, in collaboration with American Registry, LLC has created a handsome selection of Peer Review Rating Acknowledgements that allows [me] to showcase [my] Peer Review Rating while providing essential support for tomorrow's legal professionals."

Sounds too good to be true, right?  So I can now display my 'Peer Review Rating' on my website?  

Yes, but only if I pay them a $59 fee (or $199 if I want to use the specially designed icon).  That's because I don't subscribe to their service.  If I did then the "Peer Ratings Display Fee" would be included in my (very costly) subscription.

On the one hand, I'm kind of tempted to pay the fee. It'd be for only one year, but I'd get to display my MH rating on my web page.  What's $59 in the grand scheme of things?  On the other hand, I don't like supporting a dying business model.

I realize that it takes a lot of work for Martindale Hubbell to collect the lawyer ratings.  But, over the years I've seen that most lawyers get an AV or a BV rating, so there's not much distinction in getting a top rating.  Obviously, no one is going to pay to display a poor rating.  And if most lawyer had poor ratings then they'd be disinclined to pay Martindale money.  In short, as hard as Martindale works to gather and compile the ratings, the fact remains: the ratings are kind of useless.  

Sure, there are a lot of lawyers who rely on them.  A lot of lawyers follow the herd, and are reluctant to exercise critical thought or search the internet to find information. So should I pay $59 for the right to tout my Martindale Hubbell rating (which I can't reveal to you unless I pay)?  

No, I think not.

If you want to know if I'm a good lawyer, here's what I suggest you do. Research me thoroughly online. Check my website, obviously.  But then Google my name and see what I've written, and what others have written about me. Find out what kind of law I practice.  Check my LinkedIn page and see what people who have used my services say about me.  If you are really serious you can get a PACER account and look up all the cases that I've been involved in and then write down the names and phone numbers of my opposing counsel.  Call them and see if they'll tell you bad things about me (some of them might, but most probably won't).

Look, hiring a lawyer is an important decision.  If you want to hire a lawyer because he or she got a typically good rating (from a service that charges lawyers to display the rating), then go ahead.  If I were in that position, though, I'd want to get a lot more information.  Most of the information you'd need is available for free on the Internet.  

You have heard of the Internet, haven't you?

Louisiana lawyers take note!

My friends Al Robert and Tad Barlett have conspired to create a new web venture that looks very promising.  If you are a Louisiana lawyer then you need to check out the Task Launch website, and take the survey.  This site seeks to provide practitioners with up-to-date, easy-to-find, practical information about legal decisions and laws, as well as court procedures.

One problem I see with using court websites to find information is that each one is arranged differently.  The same type of information is found in different places on each site.  Having one site that has all of that information arranged in an easily navigable place would be really nice.  And having that same site also provide timely information about breaking legal news in Louisiana would be even better.

Al Robert (pronounced 'row-bear') and Tad Bartlett are just the guys to make this happen.  When Al was in law school he created (in his spare time?) a site called Naked Ownership, which is still the best way to navigate the state's official online statutes and codes.  Tad has been pumping out daily digests of Louisiana court decisions for about a year now, and his work just keeps getting better.

If you are a Louisiana practitioner you need to bookmark this site and pay attention to its evolution. And if you are still subscribing to the Maraist newsletter you might want to reset your attention to this site instead. That's not a put down of the Maraist newsletter, but let's face the facts: it's based in paper and can't provide the same scope of information, and definitely can't match the speed of delivery.

The Task Launch website will officially launch this summer.  So go take the survey and give them your input into what you'd like to see in the ideal Louisiana legal website.  And if you go to the LSBA Solo & Small Firm conference today and tomorrow (at the Sheraton hotel) check out their booth in the exhibitor area.