Standing Committee on
Legal Technology
April 2003 VOL. 10, NO. 4
Statements or expressions of opinion or comments appearing herein are those of the editors or contributors, and not necessarily those of the association or section.
Contents
| * | Shackled to Microsoft: What it means to the legal profession |
| * | TechnoLawyer.com: Seeing is (not always) believing |
* It's the little things that count: Software utilities to make your system hum
Shackled to Microsoft: What it means to the legal profession
By Sharon D. Nelson, Esq. and John W. Simek
© 2003 Sensei Enterprises, Inc.
Question: Why does Netscape still exist?
Answer: So that Time Warner/AOL will have standing to sue Microsoft.
Hating Microsoft is easy. Almost everyone does. There may now be as many Microsoft and Bill Gates jokes as there are lawyer jokes.
These days, the invectives hurled toward Redmond are coming more and more often from the conference rooms of law firms, where partners groan audibly at Microsoft's ever-escalating costs and bemoan the absence of viable alternatives.
The courts can exonerate Microsoft, slap it on the wrist, or hang it from a tree. No one needs any court to articulate what everyone already knows. Microsoft's monopoly has become so pervasive that very few law firms feel they have any choice but to play on Microsoft's terms because its products have become essential to the practice of law. What follows are reflections on the current relationship of law firms and Microsoft, possible alternatives, and some assistance in living with the current status quo.
Word v. WordPerfect: Has the fat lady sung?
Remember the good old days when there were at least two real word processing choices and "Word vs. WordPerfect" was an ongoing Biblical war? WordPerfect adherents swore eternal fealty to Corel, and no doubt meant their oaths when spoken. But (sigh) clients gave us Word documents that WordPerfect couldn't seem to convert properly. And when we gave our clients WordPerfect documents, they in turn couldn't convert them accurately in Word. Client demand was the biggest factor driving lawyers from WordPerfect to Word, and so law firms began to abandon Corel in record numbers, albeit bemoaning the absence of their beloved "Reveal Codes" every step of the way.
It is also clear that Corel did not assist itself very much. In its mistaken belief that it "owned" the legal market, its failure to make inroads with the business market generally helped erode its market share. Nor did it seem able to make Word documents convert properly, even over a long stretch of time. Lawyers became increasingly frustrated with trying to make a sensible WordPerfect document from a Word original. The more complicated the formatting, the worse the conversion was. As all legal technologists know, lawyers do not react well when their technology frustrates them. They want it to work instantly and well and they will take any "fix" that provides them with the ability to do their jobs without technical impediments. The shift to Word was gradual at first, but became a stampede in short order.
Over the last several years, it has been commonplace for commentators to predict Corel's demise. Recently, however, Microsoft's soaring costs have helped to breathe new life into Corel as companies seek lower-cost alternatives. Hewlett-Packard has decided to load Corel software rather than Microsoft Office on its Pavilion computers. Sony, now the fastest growing PC manufacturer, features WordPerfect on many of its computers--swapping WordPerfect for Word adds a hefty $470 to the price. Dell has also inked a deal with Corel to include its WordPerfect Productivity Pack on some of its computers. The Dell and HP deals are expected to cover roughly five million machines, tripling the number of instances in which WP comes bundled on new computers.
Corel disappointed much of the legal market in 2001 when it abandoned its legal suite, which had a very loyal following. Amicus, HotDocs and Deal Proof links disappeared with the legal suite. Though some legal-specific features were retained in WordPerfect 2002, the legal suite enjoyed great popularity and its demise undermined Corel's standing with lawyers, especially solos and small firms, which liked the bundled third-party legal software.
In a curious twist, Microsoft invested $135 million in Corel in 2000, giving it a 24.6 percent nonvoting interest in Corel. While much was made of the "nonvoting" status of the shares, cynics pointed out that Microsoft had a kind of vote after all--it was perfectly capable of threatening to dump its 24 million shares of Corel at any moment if it really wanted to get its own way. As one commentator noted wryly, Microsoft cooperates with Corel in the same manner that an anaconda cooperates with a rodent. Microsoft seems supremely unconcerned by Corel's recent deals, which is perhaps the true barometer of their overall significance.
Currently, Microsoft Office has more than 90 percent of the productivity suite market. Will the recent new deals have any serious impact on WordPerfect's market share? The jury is still out, but commentators expect modest gains at best.
In Microsoft's defense
Bashing Microsoft is not particularly fun because Microsoft and Gates make it so easy. Let us take the alternate route and note ruefully that which Microsoft does well. No matter how much it hurts to admit, Microsoft has been an innovative software developer par excellence. For all its many flaws, the products coming out of Redmond have historically been good, even great products, albeit released too soon and somewhat buggy.
Because it owned so many beachheads and so early on, it was not particularly Microsoft's fault that it found itself in such a favored position in the marketplace. However, just like a young man who is born to a 6'6" frame and lots of muscles, there came a decision point-- what to do with all that power. Be a gentle giant (apparently not) or be an 800-pound gorilla with an ugly disposition (apparently so).
Lawyers lost (along with everyone else) when Microsoft began to muscle competitors out of business and deliberately designed its software to play very well with other Microsoft software, but not so well with third-party software. Like a schoolyard bully, the sheer meanness of spirit became appallingly clear but what passed for school administration--our government--took the faint-hearted view that at least there was order on the playground. In a good economy, Microsoft's conduct was tolerated until it pushed the envelope and caused such consternation among competitors and consumers that the government finally acted to quell anticompetitive behavior that had become egregious.
As the world became dominated by Microsoft operating systems, it was only logical that software developers would develop for Microsoft first and worry about other operating systems later, if at all. This is particularly true of legal software, which is a niche market to begin with. Many developers will say they simply don't see the point of developing software for any other OS when Microsoft's position in the marketplace is so dominant. It is expensive to undertake such development, and the return simply isn't there.
What about technical support for Microsoft's products? There is good news and bad news. The majority of lawyers remain frustrated by a system in which humans have largely been cut out of the picture. Microsoft has a considerable vault of online help, but lawyers are not especially astute at locating the precise information they need, nor is the online knowledge database especially intuitive for someone who is not technically minded. Here it is worth mentioning one good, if pricey, element of Microsoft support. For $240, you may open a trouble ticket with Microsoft--a lot of money for small practitioners, but the price can seem terribly reasonable given the fact that it buys as much help as it takes to resolve the problem--and you get to talk to human beings, most of whom speak passable English and seem reasonably competent. Try getting that from many other software companies! Trying to decipher impenetrable foreign accents only to find that the speakers know their products about as well as they know English is a constant source of water cooler complaints. The truth is, if you are willing to pay good money, Microsoft is willing to provide you with some of the best technical help available.
The wildly unpopular new licensingstructure
Enough kind words. For those who would like to believe that Bill Gates is the Prince of Darkness, his recent shift in licensing strategies reinforces the image. Law firms are dumbfounded and horror-struck when they realize that staying with Microsoft will cost them dearly. Microsoft has totally confused legal purchasing decisions with their new licensing programs. What we hear most often from law firms is that they don't understand the licensing options. When we explain them, they are incensed.
Wasn't it nice to upgrade when YOU wanted to and pay a discounted upgrade price to boot? You used to be able to do just that. Microsoft no longer offers software upgrades in the traditional manner. Now you have to buy Software Assurance (SA), which means you must pay in advance for the privilege of receiving any upgrades over a two- or three-year term. Following expiration of the SA term, you have the option of renewing for additional money or letting the agreement expire. Software Assurance requires companies to pay 29 percent annually of the full price of the software for the contract term without any guarantee that Microsoft will deliver a new product during the term. Microsoft has a poor record of meeting announced ship dates--what happens if your Software Assurance expires after the announced ship date but before the product actually ships? If customers are unhappy now, imagine their fury if that scenario transpires. If upgrades are released following the SA expiration, you will have to start all over and purchase software as if you never owned a copy in the first place.
Upgrade pricing is available for individual Office Programs for the retail packaged product, but it is really nothing more than a rebate program. If you already own a qualifying product and purchase a retail version (not open license) office XP, Microsoft will give you a $30 rebate coupon. The message here is that your current version office is only worth $30. Sorry, but we haven't seen Office 97 or Office 2000 available for sale for anything less than $70-$200. Apparently, the marketplace values Microsoft Office more than Microsoft itself. Loyalty to the product obviously isn't something Microsoft is interested in rewarding.
Volume licensing programs require the purchase of at least five licenses. After the five-license level, points are assigned to all the qualifying products. The more points...the greater the per-unit discount. You have the option of just purchasing the licenses or adding the SA component. Recent quotes for the SA "luxury" will add approximately 50 percent to your software expenditure. You might want to stay away from the SA program since it is very expensive and provides little value unless you are in the habit of doing software upgrades on a fairly regular basis.
Licensing for the Microsoft operating systems are handled a little differently than the productivity packages. All operating systems acquired through volume licensing require that a licensed desktop operating system already exist and was installed by the original equipment manufacturer (OEM) that built the PC. In other words, you can't use your operating system volume license on any computer that doesn't already have an operating system installed, which makes the operating system licenses an OS upgrade instead of a new base install.
Microsoft's CEO Steve Ballmer, noting customer resistance to the new licensing structure, said disingenuously that customers' failure to understand the licensing "makes the perceived pain actually higher than perhaps the real pain." Sure Steve. It is abundantly clear that customers understood enough about the new licensing costs to start exploring alternatives. With Microsoft treading a bit more gingerly than usual in deference to its antitrust problems, it may be unable to stave off customer defections in its historically heavy-handed manner. Sunbelt Software, a Windows consulting company, conducted a survey of corporate IT management and found that 38 percent are considering moving to non-Microsoft products. The legal market is undoubtedly looking around in roughly the same numbers.
In contrast, Corel has kept the traditional model offering product upgrades, retail box and open license options. Upgrade costs are less expensive than new purchases, the open license becomes cost effective for multiple instances and the retail box is the most expensive. Corel's CTL (Corel Traditional Licensing) is available for as little as one license. As more copies are licensed, volume discounts are applied. The CTL allows for usage on a laptop and/or home computer as long as the office and "remote" machine will not be using the software at the same time. Corel's CCL (Corel Contractual Licensing) is intended for medium to large organizations, requires a minimum purchase and signing a one-year agreement.
In spite of Microsoft's onerous new licensing, most analysts believe there is no way for Microsoft to lose unless there is a massive move to other products. In the absence of that tidal wave, customers will pay $440 for Office XP under volume licensing or $700 at full price. If the customer base remains stable, it is more a question of when the money will roll in rather than if the money will come in at all.
Operating systems--Any viable alternative?
Now that you're totally confused about the Microsoft license program and options, is there any alternative for your law office? Unfortunately, not really. If you are brave enough or disgusted enough at dealing with the 800-pound Microsoft gorilla, you could always go the Linux or Macintosh route. The issue is not so much the underlying operating system as it is with the application software that you would wish to use. There are word processors made to run on the Linux platform, but are there case management, billing, tickler systems, etc. for Linux that will meet your needs? You will probably have better luck with the Macintosh. Again, make sure that there are versions of your application software that will run on OS X or whatever Mac OS you have installed. The truth is, most attorneys shake their heads sadly and remain unhappy with Microsoft rather than confront the misery of converting to a new OS and finding appropriate software.
Microsoft's security: More holes thanSwiss cheese
Think for a moment of things that keep lawyers awake at night. Did someone say malpractice? Keeping clients' confidences and their proprietary data absolutely safe has been critical to the practice of law since its inception. Into the legal world, where safeguarding data is so critical, comes Microsoft, the reigning emperor of security vulnerabilities. It makes sense, of course. Rule the world, and challengers to the throne will attack you more than your competition. What hacker does not want to best Redmond? If it is global damage you wish to do, if you want your worm, virus, or Trojan horse to spread like wildfire, Microsoft is the alluring target of choice. Experts estimate that Microsoft is the target of attack more than 90 percent of the time. And remember that earlier comment about bringing software out too soon? This only complicates the problem, because vulnerabilities are rife in these premature releases, as we have witnessed with the unveiling of every new Microsoft product. Hence the service packs, which much of the world fails to apply, and the consequent epidemics.
How have hackers broken into the federal courts? Through Microsoft products of course, aided by the fact that court IT staff failed to follow the instructions of the Administrative Office of the U.S. Courts and patch their systems. As security debacle followed security debacle, Microsoft has worn egg on its face countless times--the embarrassment became so profound this year that Bill Gates has made a new corporate commitment that security henceforth will come first and be the overriding concern as new software is developed. Will things really change? Forgive our cynicism, but we'll reserve judgment.
Living peaceably with an 800-pound gorilla
If Microsoft is going to be omnipresent in the practice of law, how can lawyers live most amiably with it? First, be mindful of the security flaws and keep up with patches, service packs, etc. Be mindful of metadata problems as well as problems with WP legacy files and macros (more on that below). Understand the licensing options, as miserable as they are--perhaps have a consultant assist you in selecting the most cost-effective way of licensing/purchasing Microsoft products. If using the programs themselves is the source of your headaches, don't forget the built-in help that Windows and Office offer--both are fairly good resources, but many lawyers just don't use them. Get some professional training for Word/Office, if the budget will allow it, especially for your staff. This will help lessen their level of frustration because the Office Suite really is very powerful if you know how to use it. If looking at a book is your cup of tea, there are many excellent reference guides to the Microsoft line of products. Make Microsoft "the devil you know" and perhaps it will bedevil you less.
Metadata: A trap for the unwary
So what exactly is metadata? The simple answer is that metadata is data about data. In the word processing world, metadata is associated with an individual document and contains information such as author name, number of words, revision information, title, subject, key words and a multitude of additional information. The metadata does not display with the document, but travels with the file in an electronic form. The data can be used to determine the originator of the document and/or the last person to edit or save the document. Why is this important to your law practice?
Metadata horror stories abound. One of our favorites is a case in which a law firm partner assured a client that he personally would draft a document for the client. He promptly passed the assignment off to an associate. As the author of the document, the associate's name appeared when the client looked at the Summary tab for the document after he received it via e-mail. To compound the mess, the partner billed the client at partner rates as if he had drafted the document. The client was just a tad incensed. Sometimes justice is inadvertently done.
Probably more damning is the inclusion of revision tracking. We recently spoke with a judge who received a filing from an attorney that contained meta revision information. Displaying the version information showed the various modifications made throughout the document generation and comments from attorneys within the firm that worked on the document. The judge was not happy, especially with the candid and unprofessional comments embedded as part of the collaboration process.
Mind you, this is not simply a Word issue. Metadata exists in WordPerfect as well. But because Microsoft has the lion's share of the market, the stories on the transom tend to be about Word, and it is Microsoft that is generally tarred and feathered as a consequence. Concerned about metadata? The simplest way to remove the metadata (assuming you don't want it to travel with the document) is to copy the final version into a brand new document. Do this via "cut and paste" and not with a file import command. In addition, there are methods to reduce the amount of metadata, which can be viewed at the following URLs. Another alternative is to use third-party software specifically designed to strip and reduce the metadata in a document.
Full instructions for scrubbing metadata from
* Word: <http://support.microsoft.com/default.aspx?scid=kb;en-us;Q223396>
* WordPerfect: <http://www.corel.com/servlet/Satellite?pagename=Corel/Home>
Historical headaches: Legacy WordPerfect files and macros
If you make the move to Word, what do you do with all your old WP files and macros? Many firms have chosen to archive WP files, converting them to Word on an "as needed" basis. Because many law firms still use WordPerfect, law firms often have both programs on their computers, even though Word is the day-to-day word processing program. As lawyers have learned to their chagrin, one conversion is plenty. With luck, the formatting won't be too fouled up and can be tidied up easily. Converting back and forth tends to irretrievably corrupt the document.
If you are upgrading to a newer version of Corel, the old WP files will usually translate well into the newer Corel versions. Ditto for upgrades within the Microsoft line. What about macros? If you are upgrading within the Corel product line, test the legacy macros on the newer version. Still have those legacy WP macros and converting to Word? Sorry, but you'll have to recreate the macros in Word.
Where lawyers would like Microsoft to go today
Possible comic rejoinders aside, lawyers would be happier if Microsoft paid the sort of attention to the legal market that it once enjoyed with Corel. In fairness to Microsoft, it has recently made an effort to pay more attention to the legal market than ever before. In its development office XP, Microsoft worked closely with the Microsoft Legal Advisory Council, which pointed out that lawyers were looking for application and document stability, better integration with document management systems, a "reveal codes" feature and improvements to numbering and styles functions. All of these features were addressed in one manner or another in Office XP, though not always adequately (Microsoft's version of "Reveal Formatting" has a long way to go to win over the hearts of veteran WordPerfect users). Smart tags, document recovery enhancements, speech recognition, and handwriting recognition were all popular additions to Office XP, winning justified acclaim from lawyers.
Nonetheless, the dislike of Microsoft is visceral at many firms. The loudest complaints come from secretaries frustrated by what they perceive as Word's determination to do what it wants rather than what the secretaries want. Formatting issues tend to figure high on their list of grievances. From the attorneys' point of view, they regard Microsoft as a latter-day highwayman, unscrupulous and devious, with impenetrable licensing language in the 76-page open license document that even lawyers can't figure out. They feel gouged by a company they see as ruthlessly wielding a monopoly.