Back in October, I co-presented Powerful Writing Techniques to Help You Persuade Judges and Win Clients with Hon. Gerald Lebovits. The ABA’s GP|Solo Division recorded the session, and will be offering it as part of a teleconference and live audio webcast on Wednesday, February 17 from noon-1:30 p.m. (Eastern). The program will start with a playback of the recorded session, followed by a live Q&A session with Judge Lebovits and me.

This program teaches lawyers to write more persuasively by using the same powerful techniques that copywriters have relied on for years. Topics covered in this course include:

• The greatest challenge your writing must overcome to persuade readers to take a desired action
• Basic concepts underlying all effective persuasive writing—ignore these and you’re sunk
• How to write a compelling brief that the judge just can’t put down
• The role of emotion in jurisprudence and how to trigger the reader’s emotions
• The things readers absolutely hate—and how to avoid them
• How to deal with objections to your position
• Closing the deal: conclusions and calls to action
• And more . . . .

CLE accreditation (for 1.5 hours in 50-minute states and 1.8 hours in 60-minute states) is pending.

You can register for the program at the ABA’s website.

Westlaw will be launching its new search engine, called WestlawNext, at Legal Tech New York next Monday. Yesterday, the folks responsible for WestlawNext gave a pre-launch presentation about the new platform to a group of bloggers and legal journalists who write for various audiences. Carolyn Elefant and I were there representing the small firm and solo practitioner perspective. Other participants included Greg Lambert of 3 Geeks and a Law Blog (large firm perspective), Donna Tuke of Legal Information Alert (a publication for law librarians) and Canadian practice management advisor David Bilinsky (among others). (Disclosure: West paid the participants’ expenses to travel to its Eagan, Minnesota headquarters for the meeting). Everyone at the Eagan meeting (as well as a few others who were not able to attend) had already had an opportunity to use the beta version of Westlaw Next and to provide feedback to the developers.

How Does WestlawNext Differ from Westlaw?

Although he couldn’t make it to Eagan, Bob Ambrogi (who was one of the bloggers who got a beta preview) hit most of the high points of the new search tool in a post published yesterday. Laura Bergus of Social Media Law Student and David Bilinsky have also posted product reviews.

A few additional points are worth mentioning. First, although the ABA Journal reported that, as of December, West was still considering whether or not would allow users to perform boolean (terms and connectors) searches, at yesterday’s meeting the West representatives clarified that boolean searching is not being eliminated.

Second, although both Ambrogi and the ABA Journal refer to the ability to do “natural language” searches in WestlawNext, the West representatives explained that the WestlawNext algorithm for non-boolean searches is much more sophisticated than the algorithm used for natural language searches on Westlaw.com. In particular, it leverages West’s human-created content—including the key number system and other proprietary analytical content (such as statutory annotations and treatises)—along with KeyCite results and customer usage information to return more relevant results earlier in the research process.

Third, I’m intrigued by the fact that you can search in a database that is outside your subscription plan, and review the results list, without incurring search charges. Instead of charging for the search, with WestlawNext, you’ll be charged only for accessing the documents that you view in full text.

Pricing: the Elephant in the Room

There’s no question that WestlawNext is superior to Westlaw. Unfortunately (as the ABA Journal noted on Monday), that performance comes at a price.

When we asked, point blank, what that price would be, the West representatives didn’t have a simple answer. Instead, they explained that the company’s sales reps will try to convince customers to add additional content to their subscriptions at the time of upgrade. When pressed as to whether the upgrade would be pegged at a certain percentage of the cost of a subscriber’s plan, West denied taking that approach.

West’s non-response essentially leaves its subscribers in the dark and on their own when it comes to upgrade negotiations. As I see it, the best way to counter West’s strategy is to crowdsource solutions, a la BidonTravel.com. Perhaps some enterprising legal tech expert will set up a site like BidonTravel.com in the not too distant future; in the meantime, I invite you to discuss your experiences in the comments below.

I’d like to upgrade, but I know I don’t want additional content within my subscription plan. How West will respond to this position remains to be seen; I’ll report back on my negotiations with my account rep.

Finally, some advice for West: although I don’t have any statistics at the moment, my sense is that, since it lowered its prices a number of years ago, West has captured a significant portion of the small firm lawyers and solo practitioners who previously used Lexis. If WestlawNext comes at too high a premium, West may lose the ground it’s gained.

In a recent post over on the TechnoLawyer Blog entitled SmallLaw: 2010 Legal Profession Predictions, legal tech commentator Mazyar Hedayat prognosticates about the forces that will shape the small firm world this year.

Among Hedayat’s six predictions is that “[o]utsourcing [will] give[] way to insourcing.” According to Hedayat,

[i]n a world where the Internet has flattened space and shortened our time to think about nearly everything, location has become nearly irrelevant. Research done in Texas or Hyderabad can be combined with drafts produced in Tennessee or Hong Kong to be presented by an attorney in New York.

Outsourcing is nothing new. However, as costs fall and people overcome their skepticism, this kind of scenario will become increasingly common in 2010. In addition, as communication and collaboration costs fall to zero clients will demand to benefit from the savings (translation: downward pressure on rates).

Every lawyer has heard about “outsourcing” to foreign destinations, but this year more of us will discover that work can be “insourced” to states with higher attorney unemployment. Does it sound like I’m celebrating the misfortune of others? Maybe a little, but at least this way we can keep the jobs from going overseas. Besides, I heard the lawyers in India are asking for competitive wages now. Where do they think they are? America?

I agree wholeheartedly with Hedayat’s basic premise here, which is that more small firms will be using the services of U.S.-based contract lawyers. However, I take issue with both his terminology and his explicit and implicit underlying assumptions.

The Semantics

As I explained in my analysis of Richard Susskind’s 2009 ABA Techshow keynote address (which was based on his book, The End of Lawyers?: Rethinking the Nature of Legal Services), outsourcing, is generally defined as “subcontracting a process . . . to a third-party company.” A process or task can be outsourced to either a foreign provider (offshoring) or a domestic one. Domestic outsourcing (a/k/a subcontracting, from whence we get the term “contract lawyer”)—particularly to the flyover states—is sometimes referred to as homeshoring (a/k/a homesourcing) (though, to make things even more confusing, that term can also be used to refer to the provision of services from an employee’s home).

Insourcing, by contrast, is most often defined as the delegation of operations or jobs from production within a business to an internal (but ’stand-alone’) entity that specializes in that operation. (Steve Matthews of Stem Legal tackles insourcing in the legal context over at the Vancouver Law Librarian Blog.)

On this blog, I generally stick with the broad (and common) “outsourcing,” and qualify whether I mean foreign legal outsourcing (a/k/a LPO or legal process outsourcing) or outsourcing to independent U.S.-based contract lawyers. (Yes, I know that’s a clunky phrase, but it also serves to distinguish solo contract lawyers from lawyers who work through temp agencies, primarily performing document review for large firms.)

The Substance

The basis for my disagreement with the substance of Hedayat’s prediction about outsourcing is his assertion that “[e]very lawyer has heard about ‘outsourcing’ to foreign destinations, but this year more of us will discover that work can be ‘insourced’ to states with higher attorney unemployment.”

First, although (as Hedayat notes) it doesn’t matter where a lawyer working on “inside” work (such as legal research and writing) is located, many solo and small firm lawyers nevertheless outsource to local contract lawyers. This makes sense from the perspective of both the contract lawyer and the hiring attorney. From the contract lawyer’s perspective, although all kinds of lawyers are getting more and more business via the web, in-person networking within the local legal community remains a valuable source of business. (Heck, although I have a fairly robust national presence, probably 50% of my clients are in New York, where I’m admitted.) And hiring attorneys may prefer to outsource to contract lawyers who are admitted in their state, because those contract lawyers are more familiar with the state’s procedural rules.

Second, Hedayat’s observation that “[e]very lawyer has heard about ‘outsourcing’ to foreign destinations” (emphasis supplied) is critical: I don’t know of a single solo or small firms that has outsourced legal work to a foreign country. Instead, those who’ve outsourced legal work have homeshored—they’ve hired independent U.S.-based contract lawyers. Have you (or any of your solo or small firm colleagues) used a foreign LPO provider? If you have, I’d like to hear about your experience; please share it in the comments below.

Fronterion, an international management consultancy that focuses exclusively on advising law firms and corporations on outsourced legal services, recently released a report called Ten for 2010: Top Ten Trends for Legal Outsourcing in 2010. While the report is aimed at convincing large American and UK firms and corporations to outsource to offshore LPO providers, it contains valuable nuggets for both independent, U.S.-based contract lawyers and the solos and small firms that hire them.

Two of the trends Fronterion identified are particularly significant for independent, U.S.-based contract lawyers. The first (which the ABA Journal focused on in an article last Friday), is the prediction that,

[a]s legal outsourcing vendors gain prominence in 2010, they will have much greater access to talent as more lawyers consider outsourcing as a genuine career path.

Client confidence in the outsourcing legal services market is translating into a rising talent pool, both on and offshore. Positions at outsourcing vendors will increasingly become an attractive alternative career path for entrepreneurial and global-minded legal professionals as pay, positions and prestige increase.

While Fronterion doesn’t specify exactly what types of onshore positions might be available with large outsourcing vendors, it’s likely that those positions would include (1) sales and marketing; (2) legal technology training and support; and (3) top-level supervision and quality control of foreign lawyers’ work. If you love being a lawyer, only the third type of position would be of interest to you.

But if you’re really an “entrepreneurial . . . legal professional,” chances are you won’t be happy working for someone else: instead, consider starting your own practice working exclusively (or primarily) as a contract lawyer. As an independent contract lawyer since 1996, I’ve always been more than satisfied with my income and the regard in which I’m held by my clients and colleagues. With the legal industry still reeling from the (supposedly now-over) recession, more and more lawyers are pursuing “alternative” careers such as contract lawyering.

The second Fronterion-identified trend that’s particularly important for independent, U.S.-based contract lawyers is the fact that,

[d]ue to the continued uncertain economic outlook in 2010, many firms may be hesitant to lock into long-term, multi-year contract agreements with legal outsourcing vendors. Instead, firms will consider flexible outsourcing agreement structures with third-party vendors which will allow for increased resources on-demand.

Just as the economy has made large firms are hesitant to lock into long-term, multi-year contract agreements with legal outsourcing vendors, it has made the small firms and solos that hire independent U.S.-based contract lawyers reluctant to hire associates, even as their workload increases. As I noted just over a year ago, a bad economy is good news for independent, U.S.-based contract lawyers.

One trend identified in the Fronterion report is of special interest to hiring attorneys. Fronterion predicts that

[l]egal organisations will take a more strategic approach to their outsourcing arrangements as opposed to an ad hoc, cost-focused approach.

* * *

. . . [S]trategic opportunities include better allocation of internal firm resources, increased access to scale, advanced restructuring opportunities and more effective variability management.

In the solo and small firm context, smart hiring attorneys will realize that they can reallocate the time that they (and their current associates) spend doing tasks that either

1. they don’t enjoy doing;
2. they’re not very good at;
3. don’t directly help grow the firm; or
4. some combination of (1)-(3)

by outsourcing those tasks. Hiring attorneys (and their associates) are then free to spend their time on tasks that

1. they enjoy;
2. they’re good at;
3. help grow the firm (such as in-person marketing and relationship-building); or
4. carry some or all of these benefits.

For example, a small firm might give an associate an opportunity to develop a new practice area (and thus diversify the firm’s offerings), while outsourcing some back-end tasks (such as legal research and writing) that would otherwise occupy an inordinate amount of associate time.

Fronterion’s conclusion is a rousing call to action for hiring attorneys:

Industry leaders will not only adapt to change but will also use change to their advantage. Successful law firms and corporate counsels will study the trends in 2010 and ask, “How can our firm not only adjust to change but thrive in the midst of it?” The answer to that question will most likely involve changes in the delivery of legal services.

Supporting—not supplanting— firm operations with an outside legal services vendor has emerged as a successful strategy and will gain momentum in 2010.

In a changing and dynamic legal industry, firms that understand these emerging trends will be able to leverage the full value of their outside legal and litigation support vendors.

Trends mean change. Responding to change means success.

As law practice experts such as Carolyn Elefant, Allison Shields and Susan Cartier Liebel have observed, solos can respond to changes in the legal industry much more quickly than large firms can; I would expand this to small firms as well. There’s no better time than now—at the threshhold of a new decade—to use this agility to incorporate outsourcing as an integral component of a 21st century business model.

Since Legal Research & Writing Pro launched in May 2008, monthly live teleseminars and tele-webinars (like a webinar, but with audio over the phone and no software to install on your computer) have been an integral part of our educational offerings. Attendance at the live programs and copies of the program recordings have been included in the Gold, Platinum and Platinum + memberships. We’ve had fantastic programs from both legal writing and practice management experts.

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You can find complete descriptions of all of our memberships on our products page; this handy-dandy chart compares the features of all of the memberships side-by-side.

Finally, all of the supplemental programs are still available individually for $97 each, and I still offer private consultations as well ($197 for one hour; $297 for two hours).

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I’ve taken a fair amount of heat for pointing out that ABA Formal Op. 08-451, which states (with some important caveats) that foreign legal outsourcing is ethical, is actually good news for independent US-based contract lawyers because the same principles that allow firms to send legal work overseas also allow law students and graduates awaiting admission to do actual legal work when they’re working at firms, and allow lawyers to work as contract attorneys in jurisdictions in which they are not admitted. However, I’ve never taken a position on whether foreign legal process outsourcing is a good idea for hiring lawyers—solos and small firms who need the assistance of a qualified contract lawyer. Until now.

Yesterday, I saw a post in a LinkedIn group to which I belong, called Legal Research & Writing. Here’s the post, by Jagriti Mishra, the head of business development at an Indian LPO company called Draft N Craft:

Bursting the 7 Myths behind Legal Process Outsourcing.

This article attempts to address 7 common myths associated with the LPO industry

1> Whether outsourcing is synonym to compromise in quality?
2> Outsourcing is a compromise with confidentiality
3> It is unethical to outsource
4> By outsourcing, the vendor takes away outsourcer country’s jobs.
5> Indian LPO vendors compete with foreign law firms.
6> LPO vendors need malpractice insurance
7> Legal outsourcing starts instant savings and has no obligations

Please refer the link below:-

http://lpowatch.blogspot.com/

Curious, I clicked through to the post, where I was immediately struck by Mishra’s discussion of the first “myth” behind legal process outsourcing:

Myth 1> LPO stands for PLPO (Para-Legal Process Outsourcing) and/or there is a compromise in quality.

The legal process outsourcing industry is at nascent state but is growing both monetarily and intellectually. Although it is true that High cost, more routine, lower risk legal works are easy to outsource, it in no way circumscribes the potentials of legal process outsourcing. The PLPO perception is a backlog, as the Legal outsourcing industry begun with routine work. Suffice it is to mention that various important player like (SDD and Lexadigm) have prepared Briefs and Motions to be filed in US courts. Our attorneys are trained for Multi jurisdictional research and assist:-

• US debt collection attorneys prepare Consumer Complaints, Briefs, and Motions for FDCPA, FCRA, FCBA and TILA violations.
• Social security attorneys in filing FIT, research on GRIDS, De novo appeal before ALJ.
• Bankruptcy attorney in intake form fill up and entering the information on Bankruptcy software.
• Foreclosure attorney in preparing complaints, motion and briefs to help the homeless.
• Contract review and management attorneys in contract Review including red lining and blue lining.
• Merger and Acquisition attorney for due diligence.
• For e-discovery solutions with cost advantage.

Quality is a term that takes new face with new situations. Clear guidelines, good teamwork and 100% quality check are the factors that coordinate in determining standards. It requires involvements from both the ends, keep a track of milestones and guidelines and the Outsourced service provider will ensure quality. We however, from our end add extra input to provide best quality deliverables. Had all vendors failed in providing quality this industry would have collapsed by now, the continuous growth reflects value.

Ironic, no?

Before other LPO companies get up in arms, I’ll concede that no doubt many of them have much better quality control than Draft N Craft (which I’d never heard of before reading Mr. Mishra’s post) appears to have. Nevertheless, the trainwreck of grammar and usage errors in Mr. Mishra’s post is a red flag. If the reading comprehension abilities of the foreign lawyers who work for a company like Draft N Craft is on par with the writing ability demonstrated in this post, any US lawyer who hires a company like this will have to do quite a bit of due diligence to ensure that the work product meets the standards set forth by the disciplinary authorities (to say nothing of the courts).

The other red flag in Mishra’s post is his claim that foreign LPO companies don’t have to carry malpractice insurance. Since at least 2003, experts have recommended that companies providing contract lawyering services carry malpractice (or errors and omissions) insurance. While it’s true that most malpractice policies should cover you for work performed on your behalf by a qualified contract lawyer, I’m unaware of any cases in which this has been challenged in the context of foreign legal outsourcing. I’d hate to be the test case.

Since I have never personally worked with a foreign LPO firm, I can’t comment on Mishra’s claims concerning security and confidentiality issues. And since I’m not an economist (heck, I didn’t even take Econ 101 in college), I won’t comment on Mishra’s analysis of the question of whether foreign outsourcing results in a net loss of jobs in the outsourcing country.

I agree with only two of Mishra’s arguments. An ethical foreign LPO company, like any ethical US-based contract lawyer, will not compete with you for your clients. The foreign LPO company (or a US-based contract lawyer who is not admitted in your jurisdiction) simply can’t represent your clients directly. And even a US-based contract lawyer who is providing services in a jurisdiction in which he or she is admitted to practice law won’t compete with you for your clients: simply put, we don’t want your clients—we want to work only for other lawyers.

I agree only to a point with Mishra’s analysis of the ethics decisions. Not a single bar association has determined that foreign legal outsourcing is per se unethical. However, Mishra gives short shrift to the caveats included in many of the opinions. You can find a more detailed discussion of the caveats in ABA Formal Op. 08-451 here.

The last thing that a busy solo or small firm lawyer wants to deal with when outsourcing substantive legal work is having to practically rewrite a brief to get it signature-ready. Sure, it costs more to outsource to a qualified, US-based independent contract lawyer than to send work overseas. But remember: you get what you pay for.

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The spate of fall-like weather we’ve been having lately here in the Northeast reminds me that October is just around the corner and, with it, three live CLEs that I’ll be co-presenting in New York City and Los Angeles.

On Thursday, October 8, social media and legal technology maven Nicole Black and I will be presenting The 6 Things You Need to Know About Social Media as part of two-part program on social media for lawyers. In this program, lawyers will learn about six important principles, applicable across social media platforms, that will help them use social media to promote and market their practices, showcase their areas of expertise, and network with other attorneys

The program starts at 8 a.m., and is followed by Twitter for Lawyers. The second session, on October 14, features programs on Social Media-The Vulnerabilities and Liabilities and Blogs, Facebook, Linkedin For Lawyers. Registration is available for one or both sessions, and a total of 6 CLE credits will be available (pending accreditation). The program is sponsored by and will take place at New York Law School, 57 Worth Street in Manhattan.

Nicole and I will be reprising our social media presentation at the ABA GP|Solo Division’s National Solo & Small Firm Conference at the Millenium Biltmore Hotel in Los Angeles on Friday, October 16, under the title Social Media for Lawyers: Six Important Principles for Effective Participation. It’ll be another early morning, with the program once again starting at 8 a.m.

On Saturday, October 17, I’ll be co-presenting Powerful Writing Techniques to Help You Persuade Judges and Win Clients with Hon. Gerald Lebovits. This program teaches lawyers to write more persuasively by using the same powerful techniques that copywriters have relied on for years. Topics covered in this course include:

• The greatest challenge your writing must overcome to persuade readers to take a desired action
• Basic concepts underlying all effective persuasive writing—ignore these and you’re sunk
• How to write a compelling brief that the judge just can’t put down
• The role of emotion in jurisprudence and how to trigger the reader’s emotions
• The things readers absolutely hate—and how to avoid them
• How to deal with objections to your position
• Closing the deal: conclusions and calls to action
• And more . . . .

This program runs from 1:15-2:15 p.m. (thank goodness!).

I look forward to seeing you at these exciting educational programs!

I eat, breathe and sleep legal research and writing. Although it’s a big part of my life, I realize that the general public doesn’t share my passion for the subject. That’s why I was more than a little surprised to learn that today’s Huffington Post—which, according to Wikipedia, is the most linked-to blog on the web and had 8.9 million unique visitors in February, 2009—features an article entitled The Reinvention of Legal Research: The Future is Now.

The article’s premise is that the application of technology to information has led to “the radical transformation of the legal publishing marketplace.”

According to the author, Peter Schwartz,

Data trumps documents. Legal, regulatory, and court documents – once intrinsically valuable – increasingly serve as mere information containers. New methods for tagging, extracting, organizing, and presenting information in documents create new possibilities for how quickly we can assemble, analyze, interpret, and disseminate this information.

Information is liquid. We now live in an ocean of information, and are swept along by its riptides and currents. The challenge is to manage our relationship to this information so it serves us our higher purposes. We need ways to filter real-time story-telling and reporting so we can identify narratives that have substance and reject those that are ephemeral, partial, distorted, or trivial.

So far, so good. I have no quarrel with these philosophical musings about the nature of information in the internet age.

But Schwartz’s conclusions are dead wrong.

According to Schwartz,

[c]ustomers will not pay for research. When online legal research platforms were proprietary, online publishers imposed per-minute and per-use pricing structures. This pricing model facilitated client cost-recovery and allowed publishers to use law firms as information wholesalers. Because information is now a commodity, law firm clients will no longer pay for online legal research. New flat-rate pricing models for online research products reflect this reality.

The large legal publishers are in trouble. If law firms can no longer pass through online research costs to clients, multi-billion dollar legal publishers such as West and Lexis can no longer support pricing models premised on law firm cost recovery. Because West and Lexis cost structures depend on this pricing model, they are beginning to experience painful margin squeezes, compounded by the entry into the legal research marketplace of both nimble, low-cost competitors and new rivals with deep pockets such as Bloomberg.

Let’s analyze this, shall we?

Customers will not pay for research. Who are the “customers”? The lawyers who conduct legal research so that they may advise (and frequently advocate for) their clients? Or the clients who hire the lawyers who conduct the research?

If it’s the former, then Schwartz’s company, Knowledge Mosaic, Inc., should find a new business model, pronto: they make their money by selling subscriptions to their Securities Mosaic Website and News Service for $1,250 per year.

If it’s the latter, I agree: as I’ve previously written, the ABA’s view notwithstanding, the cost of a firm’s online legal research subscription is a part of overhead that shouldn’t be passed on to clients.

Because information is now a commodity, law firm clients will no longer pay for online legal research. New flat-rate pricing models for online research products reflect this reality. The information itself has always been a commodity: it was just limited to hard-copy form in the past. Back then, lawyers understood that the cost of maintaining a library was no different from the cost of keeping the lights on: it was overhead, and the expense was considered when the lawyer set a fee for services provided. Conversely, as the ABA materials demonstrate, today, many lawyers (with the encouragement of West), are divvying up the cost of their legal research subscription plan amongst their clients.

The large legal publishers are in trouble. If law firms can no longer pass through online research costs to clients, multi-billion dollar legal publishers such as West and Lexis can no longer support pricing models premised on law firm cost recovery. This is refuted above. And, while I don’t keep up with the financial health of the two 500-lb legal research gorillas, I don’t see them going out of business any time soon.

Like it or not, Mr. Schwartz, Knowledge Mosaic isn’t the disruptive entrant into the legal research market that you try to paint it as. Following in the footsteps of West (and, to a lesser extent, Lexis), the company does many of the same things that these traditional legal publishers do:

• stored search capability (Westlaw’s Alert Center, anyone?)
• on-call customer support and research assistance “during regular business hours (typicially with no wait)” (Hello, 1-800-REF-ATTY, 24/7)
• search pages that allow you to target data buried in filings, including risk factors, exhibits, etc. (searching by field)

Based on the information on the Securities Mosaic website, the company has done a great job fulfilling the information needs of a niche market within the legal community. If it can do that better than Lexis and Westlaw, fantastic. But, despite its location in the trendy “industrial underbelly of Seattle—in modern facilities amidst train yards and commercial fishing docks,” it’s really not all that, just as Axiom is a dandified contract lawyer staffing firm, and not the “entirely new kind of firm” it bills itself as. But that’s another rant for another day.