Does It Compute?

Email Policy / Facebook Policy?

I recently read an interesting article by Jonathan Goodgold in the New Jersey Law Journal on the employment law consequences of Web 2.0 applications such as Facebook or My Space. 

There are two central questions here: First, what, if any, rights or restrictions should be placed on what information employees can post on their personal web sites, Facebook accounts, etc.?  Second, what, if any, restrictions should there be on how potential employers can make use of information posted publicly?

Goodgold calls for clearly defined web policies:

    This then raises a host of questions -- what occurs when an employee is on his or her private time and not using the employer's technology? What occurs when the communications are not private e-mails, but public postings on Web 2.0? The lesson to be taken from Stengart is that employers should be working on Internet posting/communication policies for conduct when employees are off-work. Further, such policies must define what type of conduct is acceptable, such as blogging on politics, and what is not acceptable, such as posting disparaging comments about the employer or posting racy or otherwise inappropriate pictures that would be frowned upon by employers.

The essential difference between this and emails is that email policies generally define what an employee can do on company time and using company computers, whereas “policies” governing Facebook type applications try to define what an employee can do on their personal time using their own computers.  Furthermore restrictions on “inappropriate” content (which in many cases is little more than what you can see on a daily basis in Abercrombie & Fitch or Calvin Klein ads) opens the Pandora’s box of unbridled censorship.

The question of what a potential employer should be able to look at is a much different issue.  As Goodgold points out, “if an employee does not want an employer to learn about something they post, the answer is commonsensical, do not post it, do not blog it, do not tweet it and do not post a picture of it on the Internet. If an employee would not say something to their employer in person, do not do it on the Internet.” This is the equivalent of email messages: emails are like postcards. Do not email anybody anything that you do not want the world to see.

No doubt this issue will continue to agitate people and eventually be litigated out. However, an employer would do well to think twice before trying to censor employee’s behavior when not at work.

Every PR Department Needs a Supply

A “newscast” on The Onion television a couple of months ago announced a new drug called “Despondex,” intended for the “approximately 20 million Americans who are insufferably cheery.” Everybody knows people like this and certainly most PR and marketing departments could use a good supply. Check it out at The Onion.

Another Shakeup at Lexis Nexis

Once again, Lexis Nexis has undertaken a significant shakeup of its Practice Management division. The heads of Front Office and Back Office, Charlie Rodgers and Loretta Rupert, respectively, are out or sidelined (Loretta is reportedly in “social networking” whatever that is – besides spending your day on FaceBook). So whatever you thought of Charlie and Loretta, the last remaining “industry people” at a management level in the Time Matters structure are gone. Rob Metcalfe, who was brought in to “integrate” PCLaw is gone. The “Global” practice management group, headquartered in London, is dissolved and has been brought back to the US. The various Front Office/Back Office subdivisions have been fused and are now headed by Jacob Paransky (who knows nothing about the actual programs). Initial reactions to the new overall head of Practice Management, Phil Livingston, seem to be very positive. Livingston remade himself as a money man and CFO after being a third string tackle on the 1981 Oakland Raiders SuperBowl team who according to his bio “specialized in the practice squad” and is not even listed on the 1981 Oakland Raiders roster.

This is yet another sign that LexisNexis is absolutely clueless as to what to do with Time Matters (relatively speaking, PCLaw is in much better shape). Just about everybody at a managerial level with industry experience is gone, and the marketeers and bean counters seem to be in charge. So, a piece of advice: when you have a ship drifting in the middle of the ocean, rudderless, the way to fix it is NOT to bring in a bunch of (say) automobile engineers and bean counters who don’t even know what a rudder is (replacing the rudder will be expensive, after all). One of the smartest things the new managers and executives could do would be to schedule and take the 3-day Certified Independent Consultant class. It would teach them the product and also some of the issues involved in getting the most out of it.

The more serious issue, however, is whether Lexis has lost control of the Time Matters code, which seems increasingly likely. What does this mean?  In a large, complex program such as Time Matters, any particular line of code is linked to, refers to, and has an effect on, other parts of the code. These links are known as dependencies. So if you change one line of code to fix a bug, you have to look at all the dependencies to see what other effects that change may have. Losing control of the code means that you have no way of knowing when making one apparently small change to fix a particular problem will have much larger and unexpected effects elsewhere, essentially creating new bugs. (The “butterfly effect” applied to software.) This is manifestly what happened in the infamous 9.3 service release, where “fixes” wound up corrupting data.

If you believe that computer products, like people, have life cycles, the conclusion may well be that Time Matters has reached, or is nearing, the end of its natural life cycle.

PCLaw 10

I recently sat in on a Webinar/user’s group for PCLaw. The difference with the Time Matters user’s group was like night and day. First of all, the presenter stated clearly that while PCLaw has some resources for end users, at a certain point they would be better off hiring a consultant, and even went so far as to show attendees how to look up and find a Lexis-certified consultant on the web site. More generally, the presenter was obviously very knowledgeable about the product.

More importantly, as the user group reviewed the new features in the upcoming PCLaw 10, two facts stood out. First, that PCLaw 10 will be an incremental release. Given the recent layoffs of programmers and support people, this is probably a wise move. Trying to do too much could result in Time Matters-type disasters.

The second interesting fact is that although the new features are minor, they are in fact responsive to things that people have been asking for for years. So the response to the traditional mantra: “don’t bother upgrading unless there is a feature that you have been dying to have for a long time” may well be that there is indeed such a feature.

Some of the new features include:

The ability to change the screen fonts in the grid displays (i.e. in the Register). I have several clients who have been complaining about this for years.

An improved way to show courtesy discounts on bills. This has also been an annoyance for many people.

The ability to pay off previous balances from the Trust account – you didn’t use to be able to do this.

Native Plants and Evolution

My wife and I have recently been massively expanding our beach garden. The garden (and our house) sits on a small spit of land between the water and the swamp (now known as “wetlands”), little more than a solidified sand dune. We have been making an effort to put in native plants, in part because many of them are deer-resistant. We have also expended tremendous effort (and money) in trying to prevent the deer from getting the day lilies and tiger lilies. The deer love the lily buds and will bit them off as soon as they are fully formed (and way before they flower)

Why are “native” plants native? In thinking about the $#@*! deer, it seems clear that native plants have survived because they have evolved to be distasteful (literally) to native pests/predators such as rabbits and deer. Any plant that did NOT evolve to be deer resistant would have been gobbled up and the species would die out  over the course of several hundreds of years or more because it would not have been able systematically to seed and propagate itself. This is of course relative, since as a number of web sites listing “deer resistant” plants point out, “Deer will eat ANYTHING if they are hungry enough. Also, plants left untouched in one area may be a favorite in another.” Nevertheless, overall when you plant “native plants” you are in fact paying tribute to evolution.

Commoditization - Part I

Richard Susskind’s keynote address to the ABA Tech show this spring summarized his recent book, The End of Lawyers? (note the question mark), which has created a fair amount of controversy. His basic tenet is that, driven by demand for lower cost and more efficient services and the use of the Internet as a platform for services (so-called “Web 2.0”), that legal services have a logical progression. Starting from the traditional totally Customized (or “bespoke” to use his British terminology) services (billed hourly) through Standardized, Systematized, Packaged and finally to Commoditized, services will tend to move along that spectrum toward the right (toward Commoditized).

Bespoke –> Standardized –> Systematized –> Packaged –> Commoditized.

Furthermore, these changes, which are already underway, will be significantly accelerated by the demands of the current economy (do more for less), although they will be different for different types of law (and even different areas of the same firm or same engagement). In this connection, he identifies a series of “disruptive” technologies which are bound to change the way the law is practiced and legal services delivered, from Document Assembly to what he appropriately terms “Relentless Connectivity,” online legal communities (both closed and open in wiki-type configuration).

By and large, his scenarios are already starting to take shape. One of his more persuasive points is that when what he terms the “Net Generation”–everyone who cannot remember when the Internet was not the primary place you go to interact or look something up–makes up the majority of the population, it will demand the availability of legal services over the internet.  For example, if you routinely consult WebMD before seeing a doctor or as a way to cut through the medical gobbeldygook, why wouldn’t you consult “weblawyer” (an imaginary name) before going to see your lawyer?  Similarly, rather than an “initial consultation” why not just fill out a client intake form online and have the attorney get back to you? For basic everyday things there will be on line services available, you won’t even need a lawyer.

The second critical point is that the specific forms that exist today – LinkedIn, Facebook, MySpace, blogs, Twitter, etc. may not exist in the future in the same form, but the type of communication they represent will dominate in some fashion. Thus objections to these services as they exist today are not on point because while the form may change, the underlying process remains the same.

Many of the trends he identified just 2 years ago are already starting to come about, such as a rating service about lawyers (Avvo) which recently drew a lot of fire. Many more are sure to prevail in the next few years (although it is perhaps anybody’s guess and to which ones).

One of the fundamental tenets of the book is that these developments will be driven by, and can come about only through, the workings of IT, or more succinctly, advanced software. This is particularly the case of the advanced expert systems he discusses as a basis for document assembly.

In particular, he predicts that the traditional “billable hour” will largely (though not totally) be replaced by flat-fee billing. Larger engagements will be broken up into pieces, many of which will be out-sourced on a flat-fee basis, although some pieces may still be done by the hour. He points out, for example, that 75% of the work contracted out by Cisco’s legal department is already on a flat-fee basis. Given the pressure to reduce costs through greater efficiency and the fact that, as he says, “efficiency is the enemy of the law firm that charges on an hourly billing basis.” he regards this trend as inevitable. While he admits that “it is not easy to convince a group of millionaires [i.e., senior partners] within clear sight of retirement that their business model is wrong and then should change direction and embrace new technologies,” this resistance will die out over time.

Susskind speaks mainly of in-house counsel for large corporations and generally large-scale programs and expert systems. One central problem he does not adequately address, especially when his larger “expert systems” are scaled down to smaller clients/firms, is the issue of the quality available on a smaller scale.

Expert systems are what he terms “disruptive technologies,” that is, they fundamentally disrupt the traditional workflow of law firms. He admits that while these may currently be of a lower quality that what users demand, as they evolve, they may rapidly become competitive. One can see this in the current state of Web-based practice management programs such as Clio or Rocket Matter.

However, what will be the quality of some of the document assembly/expert systems?  He cites the example of Wikipedia, claiming that an independent study showed that the quality of some 70 or so of its articles on science was the equivalent to the Encyclopedia Britannica. That begs the question, however, since the issues at hand will be much more contentious than science articles (say, evolution or abortion – there is a reason may universities have banned using Wikipedia as a source in research papers). Another expert program he refers to positively is the software used to predict the risk factor of derivatives and swaps. As is now known, this software catastrophically failed to accurately assess mortgage risks because it’s assumptions were either wrong or incomplete, and thus played a non-trivial role in sparking the mortgage crisis and the current economic situation. You rely on such programs at your peril.

In terms of software when he speaks of “disruptive technologies” and “innovation” he is talking about something akin to what was more traditionally known as a “killer app,” that is, something that makes it possible to do things that could not have been done before, and makes previous methods of work dramatically inefficient. The first “killer app” was of course VisiCalc, the first spreadsheet program.

It is fairly easy to see how complex document assembly or other expert systems fit into Susskind’s scheme. You answer a series of questions and the computer assembles one or mor documents based on the answers. But what about other software, document management or practice management software? Stay tuned for the next installment.

Amicus Contradictions

Amicus now strongly recommends that you NOT associate all firm members to files and contacts because of the additional computing load. According to Amicus, failure to abide by this guideline will make “your workflow cumbersome, provides no benefits, and results in performance degradation.” To offset this you can now see “all Firm” files and contacts. Sounds good.

Another significant improvement in PE 2009 was the increased ease in viewing other calendars. So in a firm with 3 or 4 attorneys, the receptionist can simply have a group calendar open on her desk at all times and know what all the attorneys are doing, what clients they have appointments with, etc.

OOPS!  Wait a minute. It turns out that if you do not assign a user to a file, that user cannot see the content of an appointment for a matter to which they are not assigned. It comes up as if it were a private appointment and the details are not visible.

So if you follow the strong recommendation about not associating firm members to files, you disable one of the really convenient, time-saving, ease of use functions of the program.  Isn’t there something wrong with this picture?

According to Amicus, the fact that receptionists and paralegals cannot see the content of the appointment means that “you can see that someone is booked but not why. This privacy restriction reflects what the vast majority of our customers have asked for.” 

Now it may be that what the “vast majority” of Amicus customers ask for is the total opposite of what the virtual unanimity of my clients want, but somehow I don’t think so. Furthermore, since the program already has a setting to see “all Firm Files” in addition to the files to which a user is assigned, one might suppose it would not be too difficult to port this over to appointments, so that if you can see “firm files” then you can see “firm appointments.”

With a yearly release schedule, this is the sort of problem that is likely to get a response “will be fixed in the next version.” But this is just an excuse to get people on to the upgrade treadmill what is known in the financial industry as churning clients) rather than treating significant design issues as bugs (or if you will “Working as Poorly Designed”) and fixing them.

Time Matters -- Five Years Later

When LexisNexis first acquired Time Matters five years ago, in the spring of 2004, we heard the mantra from the Tme Matters people: “we know there are problems with x, y and z. But now we’re just a small unit in a big company, give us time we’re working on it.”  OK, that’s fair enough.  But now, five years later, the mantra hasn’t changed one iota despite massive changes in personnel, the consultant program and how the software is treated. It is worth recapping developments in the past five years.

Exactly two years after the acquisition, Bob Butler was unceremoniously dumped–as were the principals of almost all the other companies that LexisNexis acquired in the same buying spree (PCLaw, Juris, Concordance). So there was clearly a general corporate policy to dump the people who had been primarily responsible for making the software Lexis was acquiring a success.

There then followed a series of more or less ridiculous decisions which were subsequently reversed at least in part (for example, de-branding Time Matters and PCLaw as “Front Office” and “Back Office” – which led to being ridiculed as “the software formerly known as Time Matters”).

People who knew the product were dumped in favor of “managers” with no knowledge of the product or software industry but, mirabile dictu, an MBA!

In February 2007 I wrote “Acquire Merge Destroy,” an analysis of developments at LexisNexis. I sat on this article for a year in the hope that perhaps things might improve or change, and finally published it only in February 2008. This article is available on my web site.

In October 2008, Lexis released a “Service Pack” for Time Matters that corrupted data. It was pulled within a week, but the damage was done.

In February 2009, I did an update to the “AMD” piece.

Aside from information that is anecdotal and subordinate to more important trends (such as the fact that Lexis Nexis came in 21st on a list of “the worst 50 companies to work for”) perhaps the single most important trend in the last year or so has been the dismantling (aka “reorganization”) of support and development. 

This involved significant layoffs of senior tech support people (between 1/3 and 1/2) and the bureaucratization of the support process. It used to be that if you had a complex issue, it was escalated in a timely fashion to higher level support so that it could be dealt with efficiently. That is no longer the case (but.... “we know there’s a problem, we’re working on it”). So now, if you call tech support with what is essentially a training issue (“how do I do X?”) you will probably get a decent answer. If you have a more complex issue that actually needs tech support, you may be in trouble.

In addition, there has been substantial “brain drain” of developers and, more recently, significant layoffs. Some portion of development is or is planned to be outsourced to India (LN would do well to remember that after an similar experiment of outsourcing development to India, Timeslips brought things back to the US). This is the most serious problem faced by Time Matters. Developers with 5-10 years in the product (and for 7-8 years before the LN acquisition, the Time Matters development team had been stable, so that the institutional knowledge of the code base went very deep) know where the bodies are buried, where “kludges” were used in the past to get around problems.  The lack of this knowledge leads directly to the kind of disaster represented by release 9.3 for Time Matters. (The current version, 9.3B, is stable.)

At the same time, Lexis has been jacking up prices and pushing hard toward a “Software as a Service” subscription model with “bundled” services,” analogous to the process known as “churning” in the financial industry.

So customer satisfaction has been plummeting. To counter this trend, LexisNexis is organizing a series of “user groups” across the country. As a power user of Time Matters, I attended the one in New York.

Aside from the fact that the “we’re working on it but Lexis is a big company” mantra is alive and well (and was probably invoked a dozen times during a 90 minute presentation), three things emerged from this meeting.

First, aside from a few lip-service references, LexisNexis obviously does not consider the use of consultants as something that might be desirable or even necessary for a small firm to have the most effective implementation of Time Matters. After the presenter complained about how complex the program was (“1,400 settings and another 400 Privacy Settings”), the only response was “we’re trying to devise more ways to help you (the customer).” Several people asked what they can do to make better and more efficient use of TM. At no point was it suggested that using a consultant might be a good idea (not to mention a necessity) in order to accomplish this. This is particularly true in relation to small firms that resist having to use a consultant (and Amicus has a big lead in this area anyway). In fact, LexisNexis has just listed sales prices of Time Matters/PCLaw as including “getting started services.” This is so new that the sales person I spoke with initially did not have a clue as to what it was, then said “oh, yes, we just got an email on this.” Priced at $1,050 (with reductions if bought together with the software) this is yet another attempt to undercut small consulting firms by bringing consulting services in house.

Secondly, Time Matters will no longer be feature driven, but has come under the sway of “Ease of Use” experts (who have PhDs, so how could then possibly be wrong? – the fact that they don’t know jack about the software is obviously irrelevant). This is not just an issue with Lexis, but across the board in the software industry, led by Microsoft. My favorite recent example is that Outlook 2007 dropped the ability to generate routing slips in the name of “better usability” on the grounds that not many people used them. True enough, but how does eliminating a feature that can be critical for people who use it make a product easier to use?  For years it has seemed that every time I hear the term “usability studies show....” I am about to be deprived of one of my favorite features.

Commoditization

Most critically, LexisNexis obviously believes that Practice Management software is (or will be) in the process of being commoditized, like web browsers or email, word processing software, or legal research. LexisNexis is a research company and this is indeed a commodity. You can switch back and forth between Westlaw and Lexis every time your contract expires with little or no adverse effect. You make the decision based on features, availability and quality of certain information, price and how much you may detest your current vendor (the grass always being greener).

This is not the case with practice management or time and billing software. There is a tremendous investment in data which is extremely difficult to transfer from one program to another, as well as a tremendous investment in training, etc.  You cannot simply switch from one to another and then switch back. This is particularly true because the requirements of different practice areas can be dramatically different in terms of how they need the software to work (that’s why you need a consultant).

As a number of consultants have said since the original acquisition, Time Matters is now in the hands of book salesmen who don’t have a clue about the software industry.

“Dumbing down” a product will not necessarily gain market share, it will just make your clients unhappy. And since none of these programs can be implemented at anything even approaching half of their capabilities without using consultants, it will result in selling the “simplified” software to new people who are then guaranteed to be unhappy because it is not “easy to use” (and Time Matters is notorious for having a steep learning curve). Trying to commoditize the software will lead to the worst of both worlds – the software is still much too complex for attorneys’ to “do it themselves” and old-time users and larger firms will be unhappy because features are being taken away or covered over.

What Is To Be Done?

Sound pretty bleak?  What are your options? Has Time Matters reached a point of no return?

Right now, TM 9.3B is fairly stable and well-tested. There is no reason to let FUD (Fear, Uncertainty, Doubt) govern your actions. Stay with TM 9. If you are on an older, unsupported version, this would be a good time to upgrade in order to buy yourself some time. When version 10 comes out in September or so, do not upgrade right away until it becomes clear whether there are serious problems or not.

Practice Management software is in flux. In particular, new web-based programs such as Clio and Rocket Matter are growing rapidly but are still not (in my view) ready for prime time.  If you currently have Time Matters 9, you have about a three to four-year time span during which the program will be functional for you (assuming no other new products come out that TM9 will not support/integrate with). At the end of that time, it will be time to reassess and re-evalue and possibly switch.

Larry Bodine on Twitter

As my readers know, I am not a big fan of Twitter. About the only good use I’ve seen is to ask questions during a podcast – and that assumes that the only people worth having their questions answered on ones on Twitter.

So I naturally sympathized with Larry Bodine’s recent post on Twitter, especially his point that Twitter is useful to lawyers:

“only if they actively marketing face-to-face, have a website that generates leads, write a blog, send out e-newsletters, and have a brand in the marketplace. Once all that's in place, use your remaining time for Twitter.”

Summertime Blog

It's summer, and after two years of almost daily blogging, I've decided to "lighten up" for the summer and take some time off. Not that I'm going away entirely (would I ever?) but there will be fewer blogs for the next month or two while I recharge the batteries. Enjoy summer, as I plan to.