The Bottom Line
March 2001 Vol. 22, No. 2
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
* Speech recognition software: try it--but don't fire your secretary yet
* Employer size--it really does matter; counseling the small business client
Editor's note: The article by Mr. Bernstein was originally submitted for publication earlier in 2000 but the thoughts expressed in it are as timely now as then.
By Paul Bernstein, Esq.
Earliest days of law office technology
I started to practice law in 1959. Since the earliest days of lawyers until the 1960s, lawyers and law offices worked with non-electric typewriters and carbon paper. Multiple-copies were, as now, the order of the day, and very accurate typists were needed in the law office because of the use of carbon paper--an error meant erasing multiple copies of the error and typing over it.
Early "miracles" were "white-out" and the IBM Electric "Selectric" typewriter. The first photocopy machine I remember (before Xerox) was the Minnesota Mining and Manufacturing (3-M Corporation, as it was known) "Thermofax" machine ... you made photocopies one at a time on glossy paper (like earlier fax paper) that was just about guaranteed to dry up and crumple into bits in a few years time. But progress was being made, and lawyers were sending out bills with the notation "for services rendered" and, indeed, charging clients for our proof-reading talents--for when errors were made and pages had to be retyped, we had to re-read them.
In the 1960s, we had the IBM mag-tape and mag-card machines ... $15,000 machines that would automatically type out pages of text that lawyers could use over and over again, stopping at places so that client-related variables could be inserted. These machines found their way into some, but not too many smaller law offices ... just too expensive for the tastes of most, including my employers in the early 1960s.
The 1970s and word processing machines
The 1970s brought on the word processing machines and that was, in my view, the beginning of the revolution in law office automation and technology.Whereas the overly expensive mag-card and mag-tape machines gave us a vision of what might be done to automate routine, document preparation efforts, would processors gave us 81/2 inch floppy disks to record information on and some of us "saw the light." I forced my law firm to purchase two word processing machines in the mid-1970s and for us, "value billing" (we did a fair amount of transactional work in those days) became the norm, although we did not call it that.
The 1980s brings substantial change
The 1980s brought huge changes to the legal profession. Times were already changing. Watergate put lawyers in a bad light. Major corporations started their campaign to malign lawyers who represent consumers. More and more of us went to law school, because deep down, Americans love lawyers for many of us do represent consumers. The IBM Personal Computer ("PC") credentialized the personal computer and started Bill Gates on the way to becoming the richest man in the world due to his huge ownership of Microsoft common stock. But, the "profession" of law was now adding a significant element of "the business of law" ... the quality of staff was changing ... women wanted to be lawyers and not secretaries, the public wanted itemized bills and was getting them, advertising had been approved by our courts, minimum fee schedules were held to violate the anti-trust rules and the need for lawyers to be business-people as well as professionals was coming on fast.
Given this trip down memory lane, when I first started to write about law office automation and technology in 1983, we wrote a great deal about "basics" of computing. This was true in the fall of 1988 as well when I wrote my first column on Law Office Technology for ATLA's TRIAL Magazine. In those days of the early 1980s and through the mid-1990s, "basics" often meant discussing: various word processing programs (from vendors like Wang, Lanier, CPT, Micom, IBM and Vydec); computer operating systems (such as MS-DOS, CPM, Windows, the Macintosh and Unix), and applications programs (such as word processing, time and billing, outlining and basic communications software.)
We were all being forced to step-back from our professional efforts as lawyers and started to think a focus a bit about: the automation of our law firms; the computers necessary to do just that; the desirability of wiring all those computers together into a "network"; the applications programs we wanted to run and why (we added spreadsheets, databases, communications software, presentations software, desktop publishing, litigation support and case management software to our lists of matters to consider); the need for the initial and ongoing training of our staff; and horrors, the need for us to learn about computers, software, available alternatives, and, yes, how to use these products. Learning the "basics" of this brave-new-world was new to us and to our staff, but "progress" was taking place quickly now, and we had to adapt.
The 1990's "Business@TheSpeed of Thought"
Bill Gates said it best, I think, in his book published in 1999 called "Business@The Speed of Thought." Computers were falling in price in the 1990s while they became more and more powerful. Software options proliferated and soon choosing a case management software product required the hiring of a consultant. Networking computers became much more difficult and technical in nature. The features of software products now available to lawyers was so significant and varied, that none of us could really use these product without training. But, computers were what we all needed and had to have on our desktops.
At about the same time during the last five-years of the 1990s, the Internet went from being a word that meant nothing to use to a universal, all-consuming resource that we and our children knew all about. Indeed, the personal computer, networks, the Internet and publishing and communications via the Internet transformed society in the blink of an eye! And, it also transformed the legal profession in two blinks of our eye, but most of us missed it.
Economics of law practice changes
In addition, before our eyes there were other changes taking place, most of which escaped our notice.
To be sure, tort "deform" did not escape our notice. But other changes did. We more or less overlooked NoloPress and Parson's Technology, both of those companies emphasizing the alleged ability of non-attorneys to perform legal services on their own, without a lawyer. Not only do these companies publish materials on many such topics, but also publish software (for wills and incorporations for example) and some do document assembly on the Internet. We have just started to notice the American Bar Association's views about Multi-Disciplinary Practice ("MDP") and the ABA's apparent view that CPA firms can employ lawyers, have them practice law and then let the CPA firm bill and collect fees for legal services rendered! Between tort deform, the "low-end" of the market being affected by the do-it-yourselfers and the "high-end" of the market for legal services being more and more affected by the ABA's quest to have MDP become the "order of the day," lawyers are facing a brave new world.
That world involves are going back to "BASICS" and "BACK TO BASICS" is what this paper is all about.
Practice in the 21st Century
I've already heard too many lawyers tell us that MDP is a reality and that we must reinvent ourselves ... but to them, reinventing means "going along to get along" ... and my impression is that many in our profession think that changes in our ethics will need to come about. Undivided loyalty, 100% commitment to our clients, the adversarial system, jury trials, consumers' rights, absolutely not even the appearance of a conflict of interest ... perhaps these are the elements of the legal profession that will need to change ... they say! Go along to get along. Perhaps we are obsolete!
I have a must different view on where we are and where we can and will go. I agree that we must reinvent ourselves, but I differ substantially in what "reinventing" means and how we will accomplish the reinventing of the legal profession.
Here's what I believe we will be doing and why.
Re-invention--the economics of law practice
As a CPA since 1958 and always being the "accountant" for my law firm's bookkeeping needs and also as a long-time, small-office practice attorney and more recently, in the 1999-2000 year of my chairmanship of the Illinois State Bar Association Law Office Management and Economics (Standing Committe on) Council, I have had opportunities, at length, to dwell upon and think about these changes and how we lawyers are going to reinvent ourselves. And, that re-invention will not mean a retreat from what we historically know lawyers do and why.
Basic concept 1: we are professionals
In the first instance, we are professionals ... we are lawyers! We know our jobs ... we know our responsibilities ... we will not retreat from them.
Basic concept 2: we are also business people
But, with the absence of minimum fee schedules, advertising the "relaxing" (if not elimination) of competing for business, and alternatives that exist for consumers today, we must also be business people. The Internet has brought us an over-night revolution in communications and publishing at a cost that anyone can afford. Just as you have a telephone and fax machine, you must have access to the Internet, and you must use e-mail and document attachments. Either your clients, fellow lawyers, referral sources, expert witnesses and others demand it.
And, it must be you, the boss, who also uses the technologies. I suspect many of us dial our own outbound telephone numbers, are learning to use cell phones, can use the photocopy and fax machines if we need to and the like. Business people take responsibility and show leadership, and learning to use these technologies is part of those basic business requirements we all must be a part of.
Basic concept 3: we must run our law office as a business
Computers provide "hidden" assets ... such as your ability via the computer on your desk and a well chosen and well implemented case management program, to know the status of cases that have not been filed that are bumping up against a statute of limitations problem. Or to know what cases are getting attention and which are not. Or, when the contact your clients to just let them know you are there and aware of their matters and to tell them how matters are progressing. And, I see over and over gain how lack of internal controls and failing to keep one's finger on the pulse of your law firm allows employees and lawyers to embezzle money from your law firm! Running your law firm like a business is not all bad.
Basic concept 4: learning about computer options
Now, I'm a big Mac booster, but Apple Computer has done the legal profession an injustice time and time again. I am not telling you Mac users out there to switch to Windows or some other operating system, but I am telling you what you already know and that is that today, it's a "Windows world." Windows is a very complex operating system and is not easy to learn, but those parts of Windows that you and I need to know we can master quite quickly if we put our minds to it.
The goal here is to set a standard in our law offices ... WE become the standard ... we show the leadership ... we show that staff can use the new Corel Suite and move up to WordPerfect 2000 ... we show the staff that we can all become Internet efficient and productive. We learn about hardware options and the basics of RAM, hard disk size, chip speed, connectors to printers, what a "browser" is and the like. All pretty basic stuff.
Basic concept 5: learning about software options
One of the hardest parts of "basic" is learning what software products to buy and then, learning how to use them. Collaboration via the Internet is the best way for lawyers to network and to learn about these choices and what factors should and will guide your selection process.
Some options are easy today ... we have really only two word processing programs ... Microsoft WORD and Corel's WordPerfect ... and perhaps another ... Sun's "StarOffice" ... so at the worst, we have three options to choose from.
When it comes to litigation support, most lawyers choose Summation, and PowerPoint for in-court presentations. The real tough area in software selection today is "Case Management Software" ... perhaps the trickiest and most complex software application choice for any lawyer or law firm to make today ... but that is another topic for another day. The point is that via the Internet, you can and will learn about your options and be able to make informed decisions.
Basic concept 6: learning how to use Internet browsers
Remember that when it comes to using a computer, nothing is simple. A "mouse" has one, two or sometimes three buttons. Laptops have these "stupid" little pointers that test our hand-eye coordination and patience much more than we would like. Word processing programs will indent an entire paragraph for us, when all we want to do is indent the first line.
Internet Web "browsers" are among the easiest of software products to learn to use, but a learning curve is there, nevertheless. Installation is even more of a challenge as is setting up preferences and getting actually hooked up to the Internet--something your local "techy" should do; however, you must learn to use an Internet browser now, and well, if you have not already done so.
This is key to the rest of the "Back-to-Basic" approach to reinventing your law firm so you can be the professional you went to law school to be.
Part of what you quickly learn when using the Internet is the value of and how to use electronic mail. You then learn, very quickly, about attaching documents to your e-mail messages, and if you are working with a committee or group of any kind, how neat and great it is to send that message and attachment to a group of persons ... all from your computer and with no hard copy documents or envelopes or postage and none of the fuss and trouble it takes to handle those papers and envelopes, affix postage and get them in the mail in a timely fashion.
The nice part of all this is one skill builds on another and so, when you begin to see the limitations of electronic mail and ListServ technology from your own personal experiences, you are open and receptive to superior (and very reasonably priced) software that is much, MUCH better than ListServ technology. Expertise builds on expertise.
Basic concept 7: collaboration as essential
There is just too much information of any and all kinds out there. And, no matter how smart you think you are and I think I am, we all can't know it all. As is the history of the legal profession, good lawyers, secure lawyers, able lawyers, lawyers who really understand what being a lawyer is all about, are the best at sharing and collaborating. Collaboration is essential so that you know what case management programs other lawyers are using and why, what databases on the Internet are the best for various needs, what scanner and printer to purchase and where to get the best information and where to go for training.
Basic concept 8: Internet-based collaboration
As the Internet has created a miracle in publishing and communications, it has also created a miracle in collaborative opportunities.
ATLA/Net is marvelous collaboration resource, and there are many groups that are on ATLA Net and "talk" and "discuss" matters of common interest on a regular basis.
http://www.altanet.org
There are any number of locations on the Internet where you can establish collaborative efforts and most of them are at no cost. Some examples are:
http://www.delphi.com
http://www.prairielaw.com
http://www.bigstep.com
Basic concept 9: training, training, training
When you first tried to ride a two-wheel bicycle, did anyone help you? How about when you first got behind the wheel of an automobile? What about when you first learned to ski or play golf or tennis? And what about when you charged that first photocopy to a client with your cost-recovery system? Did you have someone teach you how to get started or how to do it?
I should think so. The same is true for learning about computers and how to use them and the Internet as well. Training is essential. And, as they say about the three most important things when it comes to real estate ... "location, location, location" ... the three most important things in getting bang for your buck when you automate your law firm is "training, training, training" and that's not just for "everyone else"! It is essential for the partners in the firm and the solo, if you are a solo.
Basic concept 10: teams and chains
When litigating a case, another old saying is still true ... "A chain is as strong as its weakest link." So, your entire office must work as a team, and efforts must be made by the "boss" to see that the necessary tools are in place so that teamwork can and will take place. That means a good computer system and network, access by everyone to the Internet, good and standard procedures for naming documents, the intense training of all personnel to use the selected case management program, remote access via direct-dial-up or via the Internet to the office computer systems, and the use of electronic mail and electronic forums and conferences to accumulate and store wisdom and to handle cases in the office.
Basic concept 11: efficiency in law offices
Accordingly, instead of retreating from what always has made a lawyer a lawyer ... vigorous advocate, champion for the poor and injured and those in society unable to help themselves, we do what every other business is doing, and that is using computer and Internet technology to the maximum extent ... being "lean and mean" efficient and productive! These are the names of the game today and in the future.This is "getting back to BASICS."
Basic concept 12: changing public perceptions
But, how do we get the public back on our side? Don't refer this question to some committee to study for a few months or years, for the answer is simple and obvious. Do some of your pro-bono work by getting involved with online networks that put members of the public together with lawyers via the Internet. I've written more than once about "prairielaw.com." Take a look at http://www. Prairielaw.com and get involved ... put in an hour a week in this arena ... and you will be surprised how important such "grass-roots" efforts are in reestablishing our contacts with the public.
Basic concept 13: virtual law offices
A virtual law office is a law office that exists somewhere out there in space ... on some huge companies' file serves. There are huge companies in the business of providing file storage and computer programs for law offices like yours and mine. Now, there are some concerns one might have about a virtual law office, particularly where you are relying on that remote server to provide all of your files and all of your data. A few of those concerns might be the following, security; inability to get on the Internet; the huge company going out of business; the huge company being served with a subpoena for your records. All of these concerns, I submit can be overcome in various ways and therefore the concept of a virtual law office NOW, is very realistic.
Basic concept 14: virtual law office "personnel"
Hand in hand with the virtual office is the concept of virtual personnel. Why must all your employees report to the same office in the same building on the same street in the same city each and every day. Why can't more of your employees be "telecommuters"? Mark Choate, a very active ATLA member and trial attorney, lives in Maui, has offices in San Diego and Alaska, works with a paralegal in Dallas and collaborates with experts and other lawyers all over the country. When Mark and I did a seminar a couple of years ago for the New York State Trial Lawyers Association, Mark held up his very light laptop computer and told everyone that "This is my office!" He then hooked up his laptop computer to the Internet and with the aid of projection equipment, showed our audience just how he ran and managed his law practice from the seminar in New York or his home in Maui, just as if he were in the office in San Diego.