Written by Lisa Solomon on June 17th, 2013 · 1 Comment
Although rules in all state and federal appellate courts; many federal district courts; and some state trial-level courts require that every brief submitted contain a table of authorities (TOA), many solo and small firm lawyers don’t know how to create a TOA using Microsoft Word’s native “Table of Authorities” feature. Best Authority is a Microsoft Word add-in that, according to its creators, helps lawyers create TOAs four to eight times faster than “any other method they’ve used.” It is compatible with Word 2003, 2007, and 2010. (Best Authority Light and Word 2010 were used for this review.)
How Best Authority Works
Creating a TOA with Best Authority is a five-step process:
- What it is: during this step, you set preferences for how Best Authority will process your document.
- How it works: the most important part of this step is determining the formatting and organization of the TOA. To help you, Best Authority offers a number of preset “schemes” (option sets); there is also an “Advanced” option that allows you to modify the schemes to satisfy your court’s requirements. Although I am usually comfortable setting advanced options in Word and other programs, I found the “Advanced” dialog—which requires you to choose options based on how they appear in different schemes instead of simply listing the choices for each option in a drop-down menu—to be extremely confusing.
- Comparison to native TOA creation: TOA preferences are set by choosing “Insert Table of Authorities” on the References tab. You can choose from four preset formats (which cover font, spacing, etc.) or modify Word’s preset TOA style to suit your needs. You can also choose which categories of authorities to include and create additional categories.
- What it is: in this step, Best Authority scans your document for citations. The software recognizes Bluebook, California Style Manual, and all other citation formats.
- How it works: after scanning a document, Best Authority displays a summary of how many groups (cases, statutes, etc.); authorities; and citations (i.e., including full and short citations for each authority) it found.
- Comparison to native TOA creation: the first full citation to a source must be marked manually. If you also create a short citation and use the “mark all” function, Word will search for and mark all occurrences of that authority that precisely match the short citation you have created. However, Word will not recognize or mark any short forms that do not precisely match the short citation you have created (such as “id.”).
- What it is: in this step, you review the citations that Best Authority found in its scan of your document.
- How it works: in Review mode, Best Authority displays a review pane on the left side of the screen. Citations are organized by the category in which they will appear in the TOC (cases, statutes, etc.). In the document, citations are highlighted with different colors for long citations; short citations; unmarked or suppressed citations (citations that will not be included in the TOA for a variety of reasons [e.g., a citation that appears in a quotation]); suspects (items that appear to be citations, but Best Authority wasn’t sure); and references (citations to factual materials, such as transcripts, that are excluded from the TOA). When you select a citation in the review pane, a green outline appears around the corresponding citation in the document; conversely, when you click on a citation in your document, a green outline appears and the corresponding citation is selected in the review pane.
This step is where you will fix some incorrect citations. If a citation is incorrect in a manner that has prevented Best Authority from marking and categorizing it, you can correct the citation in your document at this time. After completing the Review step, you must repeat the “Scan” step for the corrections to be incorporated in the TOA.
However, in Best Authority Light, many types of citation errors cannot be corrected at this step. Instead, the only way to correct these errors is to note them (the product training video shows the errors being noted on a printout of the draft TOA), then manually make the corrections on the final TOA in the “Edit” step. Examples of errors that must be manually corrected in the “Edit” step include: (1) text incorrectly marked as a citation (must be manually deleted in the “Edit” step); and (2) a section number in isolation (e.g., “§739(d)” instead of “Cal. Code Civ. Pro. §739(d)”; in the “Edit” step, “§739(d)” must be manually pasted into the “Statutes” category, and “Cal. Code Civ. Pro.” must be typed in before the section number). According to Levit & James, Inc. (the program’s creator), the Best Authority Premium Edition eliminates the cumbersome process of noting changes and then making them later during the “Edit” step.
- Comparison to native TOA creation: most changes to how and where you want a TOA entry to appear should be made when you initially mark a citation for inclusion in the TOA. At any time, you can edit or format a TOA entry; add or change a citation category for a TOA; or delete a TOA entry by following these instructions on the Microsoft Office website.
- What it is: in this step, Best Authority builds the “finished” TOA. However, the TOA is not actually finished because, as explained above, you may still have to make some TOA edits manually in Step 5.
- How it works: This step does not require any user input.
- Comparison to native TOA creation: you can insert a TOA at any time by following the steps to insert a TOA (as described above). To update the TOA at any time, place the cursor anywhere in the TOA (the TOA background will turn grey to indicate that it has been selected) and choose “Update Table.”
- What it is: in this step, you can manually make any changes to the TOA that weren’t made during the Review step.
- How it works: if you make changes to your brief after you have manually edited the TOA that Best Authority has created, and those changes require you to repeat the “Build” step, the manual edits will be lost when you rebuild the TOA.
- Comparison to native TOA creation: most changes to how and where you want a TOA entry to appear should be made when you initially mark a citation for inclusion in the TOA. Any changes you make manually to the TOA will be lost if you subsequently use the “Update Table” option.
Pricing and Support
There are two versions of Best Authority. The Light Edition, at $225 “per litigator,” is targeted at small firms or firms with infrequent, short, or simple TOA needs. It does not include the network administration features of the Premium Edition (which starts at $360 per litigator, with volume discounts available) or, as noted above, the ability to make permanent edits to the TOA at the “Build” step (which Levit & James considers an advanced feature). The license allows each litigator to install Best Authority on an unlimited number of computers, which is helpful if you have a desktop computer at the office and a laptop for travel and home use. You can get a free trial by using the “Request an Evaluation” link on the Best Authority website; you can also get a comprehensive overview of how the software works by viewing the 45-minute Light Edition training video.
In addition to in-program help, a Best Authority user guide and quick reference card are available at the Best Authority website. If you want more help, the $45 annual per litigator “software subscription service,” (SSS) will get you unlimited US-based email and phone support weekdays 9 a.m.–6 p.m. EST; a “courtesy level” of phone support is available if you have an expired SSS.
The Bottom Line
Best Authority’s primary benefit is that it automatically finds, marks, and categorizes citations. Another significant benefit is its ability to identify “suspects,” thus drawing your attention to citations that in some instances are incorrect in your document. Some options in the “Startup” step can help you avoid errors in your TOA (for example, you can set the program to omit pin cites from TOA entries, even though they appear in the text of your document).
However, during the Review stage, it’s still up to you to ensure that all citations have been marked; are in correct form; and are correctly categorized. Best Authority does not tell you how to fix a citation that is so “broken” that Best Authority could not classify it for TOA purposes. Moreover, the fact that a Best Authority Light user can’t fix all types of individual citation errors during the Review stage, but must note changes that must be made and later make them manually, is a significant drawback because any changes made manually during the “Edit” stage will be lost if you have to rebuild the TOA after you have edited it. By contrast, with Word’s native TOA feature, any adjustments to a long form citation that you make in the “mark citation” dialog are retained even if you update the TOA. Additionally (and this is more of a personal preference), when I know a citation will differ from a TOA entry, I would rather make the necessary adjustments early in the TOA-creation process than at the end.
Finally, don’t expect Best Authority to ensure that all your citations comply with the Bluebook (or any other citation manual): that’s simply not its job (so, for example, it won’t tell you that “Apex Insurance Company” in a citation should be “Apex Ins. Co.”). Moreover, if you want a TOA entry to vary from the brief text (for example, if “Apex Insurance Company” is properly spelled out in full in your brief because it appears in a textual sentence, but you want it to appear as “Apex Ins. Co.” in the TOA), you must manually make that change in the “Edit” step.
Written by Lisa Solomon on May 1st, 2013 · No Comments
I’m a fan of WestlawNext’s Related Documents plan. When you’re searching within a database covered by your WestlawNext subscription, the Related Documents plan allows you to click on any of the documents you see listed on the right side of your search results screen without incurring an out-of-plan charge (without Related Documents, you’d get an out-of-plan warning screen). Only the “first click” is free: while you can browse through the table of contents of any analytical source you’ve linked to at no cost, if you view any other section of the source from the table of contents, it will be considered out-of-plan (you’ll get a warning screen and can then choose to cancel or continue).
Unfortunately, as I recently discovered, Related Documents is not accessible from within the highly-touted WestlawNext iOS app. (To the best of my knowledge, it’s not accessible from within the Android, Windows Phone or Blackberry apps, either.) However, there is a work-around: simply access the full WestlawNext website (http://next.westlaw.com) within your mobile browser. While the full WestlawNext site is likely hard to use on cell phone screens, it’s perfectly usable on a tablet.
There is one caveat. One reason I like Related Documents so much is that it also allows you to use ResultsPlus on “Classic” Westlaw. ResultsPlus is similar to Related Documents, but includes only 300 secondary sources, as compared to 5,000+ sources in Recommended Documents. I still use Results Plus because the Related Documents display is limited to (what the WestlawNext algorithm considers to be) the three most relevant secondary source documents, along with the three most relevant briefs and three most relevant trial court documents (a category that includes pleadings, motions, memoranda & affidavits; transcripts; filings; depositions and discovery; verdicts & settlements; proposed orders, agreements and settlements; jury instructions; and expert materials), while ResultsPlus returns many more secondary source links. However, I was not able to access Classic Westlaw on my iPad in either Chrome for iOS or Safari. Therefore, ResultsPlus remains inaccessible for the mobile user.
Written by Lisa Solomon on January 21st, 2013 · 6 Comments
At a briefing held at its Eagan, Minnesota headquarters last week, Thomson Reuters announced (among other things) the launch of Firm Central, its new cloud-based practice management tool targeted at 1–10 lawyer firms. The company will officially launch Firm Central at LegalTech New York later this month, and the product will be available to customers in February.
Thomson Reuters is playing catch-up with Firm Central
West Publishing (which Thomson bought in 1996) began indexing American law via the Key Number system in the late nineteenth century. Studies show that West headnotes (organized in the Key Number system) provide lawyers with more value than the editorial enhancements added by LexisNexis (West’s/Westlaw’s/WestlawNext’s only real competitor). Thomson Reuters wisely leveraged the value of its indexing system when it developed the WestlawNext search algorithm. As a result of Thomson Reuters’ strategic use of its unique content, WestlawNext is the benchmark against which other legal research products—premium (LexisNexis and Bloomberg Law), low-cost (Fastcase, among others) and free (Google Scholar)—are measured.
With Firm Central, Thomson Reuters is in a vastly different position. The much younger, more nimble Clio and RocketMatter launched in 2008, and MyCase launched in 2010. Even fellow behemoth LexisNexis got the jump on Thomson Reuters, taking its Firm Manager out of public beta in early 2011.
Firm Central features
At launch, Firm Central will contain three primary practice management components: (1) a matter manager that allows users to associate documents, e-mails and contacts with matters; (2) a time and billing module; and (3) calendaring functionality.
The matter manager
When a user sets up a new matter in Firm Central, the application automatically creates folders for that matter within Windows Explorer (within the Firm Central folder), Outlook and WestlawNext. To load an email or document into Firm Central, simply drag and drop it into the Firm Central matter folder.
Once a document or e-mail has been added into Firm Central, it can be viewed within the application’s document viewer. For all Firm Central users, citations within documents and e-mails accessed in the viewer are linked to the cited material in WestlawNext and, if there is negative history, flagged with the applicable KeyCite flag. Firm Central users who also subscribe to WestlawNext will be able to click the citation link to view the cited material and the KeyCite flag to view the to the full KeyCite result (Thomson Reuters has not yet decided what access will be provided to Westlaw Classic subscribers and to users who do not subscribe to either WestlawNext or Westlaw Classic). Users can also initiate WestlawNext research sessions from within Firm Central (i.e., without having to login separately to WestlawNext). Documents saved to a matter folder within WestlawNext are automatically associated with the matter in Firm Central.
Documents and e-mails cannot be modified in the Firm Central document viewer. However, the original documents and e-mails can be opened, viewed and modified in their native applications.
It is important to understand that Firm Central is a completely hosted solution that does not automatically create locally-stored versions of documents and e-mails that are saved within the user’s Firm Central folder. This presents a problem if internet connectivity is lost. However, the problem can be solved by using an automatic backup program such as Second Copy to save local copies of all Firm Central documents.
Time and billing
Firm Central’s time and billing module is fairly standard. Features include:
- a built-in timer
- preloaded ABA billing codes
- hourly, flat-rate, and retainer billing options
- billing by client, matter, activity, and firm member
- one-click invoicing in Legal Data Exchange (LEDES) format
- history that speeds up client-conflict checks
- trust account management
- payment processing
- a desktop widget that enables time entry even when the user is offline
- an Outlook plugin (compatible with Outlook 2007 and 2010 for Windows only) that allows users to create new time entries as appointments in the Outlook calendar and convert emails or appointments to time entries
Thomson Reuters didn’t develop Firm Central’s time and billing module. Instead, Firm Central uses a third-party application developed by eBillity. Although users can subscribe to Firm Central without subscribing to the time and billing module, in my view timekeeping and billing functions are critical to enable the user to benefit from the efficiencies that practice management systems are designed to provide.
Users will have the option of handling calendaring through Firm Central’s integration with Outlook or using Firm Central’s native calendar. However, the time capture methods described above in connection with the Outlook plugin will not work with the native calendar. Additionally, no other calendar integrations (such as integration with Google Calendar) are currently planned.
The Firm Central home page
Click on image to view larger
The three-column layout of Firm Central’s home page will be familiar to WestlawNext users. At the top of the left-hand column are notifications concerning all recent Firm Central activity by firm members. Underneath the notifications is a News & Insight feed that contains brief summaries of litigation-related news.
The top of the center column displays the user’s recent Firm Central activity. Underneath the Firm Central activity is a WestlawNext search box (along with the option to change jurisdictions), and underneath that is a list of the user’s most recent WestlawNext activity.
At the top of the right-hand column is a simple user-specific task list. The task list does not include due dates (unless the due date is included in the name of the task). This means that tasks can’t be searched by due date. Underneath the task list is a link to the time and billing module, which is discussed in more detail above. The bottom of the right-hand column displays the user’s recent activity in Westlaw Form Builder, an existing Thomson Reuters document automation product to which users must subscribe separately. (Prices for Form Builder plans vary by state and practice area, and start at $69/month.)
Finally, in the top right-hand corner of the page is a search box. Users can search the content of all documents and e-mails within Firm Central using natural language or Boolean search, and search results can be filtered by type (contact, e-mail, document, etc.).
How Firm Central stacks up against the competition
Firm Central’s feature set at launch is weak compared to the features offered by its main competitors:
This chart is intended to highlight the major differences between Firm Central and its major competitors; it does not address all features of all products.
|Client portal||yes||coming Q1/Q2 2013||yes||planned
|Document storage||unlimited||unlimited||unlimited||10 GB per firm + 2 GB per user (option to purchase additional storage)
|Document automation||included||included||included||via Form Builder, starting at $69 per month
|Tasks||shared, matter-level task list|
link tasks to matters
assign tasks to other users
|link tasks to matters|
assign tasks to other users
tag tasks to assemble a Getting Things Done System
|link tasks to matters|
assign tasks to other users
|individual task list
tasks cannot be linked to matters or assigned to other users
|E-mail integration||user forwards incoming, and copies outgoing, e-mails from any e-mail program to Clio's matter-specific and/or global maildrops||via IMAP (details)||user forwards incoming, and copies outgoing, e-mails from any e-mail program to MyCase; e-mails must then be manually associated with matters ||Outlook
|Other integrations||Outlook contacts, calendar and tasks|
Google Calendar and Google Contacts sync
|Google Calendar sync (Google Contacts sync under development)|
Outlook contacts and calendar
|CaseLogistix (e-discovery platform for search, review and document coding) (planned)
Case Notebook (case analysis software to organize, analyze, and collaborate) (planned)
|Search||global search||global intelligent search (autocomplete)|
Boolean search available
search results can be filtered by type
|Online bill payment||credit card processing via PayPal,* LawPay or LawCharge ||coming Q1/Q2 2013 (details pending)||credit card processing via PayPros, Inc., Authorize.net or PayPal Pro*||credit card processing via PayPal*
|Support hours||8 am - 8 pm ET, M-F||9 am - 8 pm ET, M-F||Hours not listed on website||24/7/365
*Because PayPal does not provide an option to have client funds deposited into a trust account while transaction fees are debited from an operating account, this may create ethics issues when accepting credit card payments for unearned fees.
Although Thomson Reuters did not announce a price for Firm Central, the company says pricing (including the cost of the optional time and billing module) will be competitive with other cloud-based practice management products, which generally cost $30–$50 a month per user. To encourage Firm Central users to subscribe to WestlawNext (and vice versa), Thomson Reuters will offer package discounts. Additionally, each Thomson Reuters customer will have a single assigned sales representative for both WestlawNext and Firm Central.
UPDATE 1/28/13 11:30 a.m.: According to the newly-launched Firm Central website, Firm Central will cost $35/month per user, and the time and billing module (which I consider to be critical to any practice management system) will cost $25/month per user.
Analysis: the limited benefits provided by Firm Central’s integration with other Thomson Reuters products don’t outweigh its shortcomings
At the Eagan briefing, Thomson Reuters explained that its goal is to “evolv[e] from a content business to a true solutions organization [by] integrating [its] core legal information with software and solutions in a way that has a positive, and productive, effect on [its] customers’ workflow.” However, in my view, integrating WestlawNext into a practice management system provides limited benefits. I concede that there is some value in the KeyCite flags that Firm Central automatically applies to citations that appear in documents viewed in the application’s own document viewer (the value is particularly great for Firm Central users who don’t otherwise have access to a reliable citator because they don’t subscribe to WestlawNext, Westlaw Classic or LexisNexis). However, I don’t find it time-consuming log on to WestlawNext to retrieve and/or KeyCite a source cited in a document (even if I have to retype a citation that appears in a pdf document). Similarly, it’s not onerous to open a browser tab and log on to WestlawNext to search or to view my recent search history. Moreover, because citations are flagged and linked within the Firm Central document viewer, but documents can’t be edited within the viewer, displaying documents in the viewer actually adds a step to the user’s workflow, rather than streamlining it.
Firm Central’s integration with Form Builder will be helpful only to those lawyers who subscribe to it. The primary benefits of Form Builder over other document automation programs are: (1) Form Builder contains forms from well-known, highly respected sources and authors (such as McKinney’s New York Forms); and (2) Form Builder users get free access within WestlawNext to any authority (including statutes, codes, and relevant analytical material) cited in a Form Builder document or its commentary. As indicated in the chart above, although Clio, Rocketmatter and MyCase don’t offer integration with form books, all offer automated document assembly using the user’s own templates. The absence of that kind of document assembly tool is a significant drawback for Firm Central.
While the WestlawNext and Form Builder integrations arguably have some value to some Firm Central users, the News & Insight integration will provide little, if any, value to most users. The News & Insight feed (which cannot be hidden) is not customizable by practice area or jurisdiction. In my view, including a News & Insight feed (which is, after all, freely available online to anyone who wants to subscribe to it in an RSS reader) takes Thomson Reuters’ goal of integrating its various products too far: a practice management system should focus on management of the firm’s matters, not serve as a vehicle to distract users with information that is most likely not relevant to their practices. [UPDATE 12/22/14: it appears that the News & Insight feed is no longer freely available online.]
Like its main competitors, Firm Central offers global search. Although the ability to apply Boolean search to documents within Firm Central theoretically brings the same benefits that Boolean search brings to legal research, in practice that benefit should be negligible because: (1) a firm’s own documents are a much more limited haystack in which to search than primary law materials are; and (2) a firm’s documents that are identified by search are more likely to be familiar to the searcher than the results of a primary law search, making it easier to choose relevant documents from a broader results set. Additionally, while search results within Firm Central can be filtered by type of document, that’s not a significant competitive benefit because Clio, RocketMatter and MyCase separate search results by document type.
The two most significant drawbacks of Firm Central are its task list and e-mail integration. While the Firm Central team stressed its goal of making the product easy to use, the simple, user-specific task list is woefully inadequate for any professional. With respect to e-mail, while Thomson Reuters found that 70—80% of Firm Central’s target market uses Outlook for e-mail, for the significant minority of small firms that don’t use Outlook, Firm Central isn’t even an option.
The unavailability of online bill payment via a merchant processor that can debit fees from an operating account means that Firm Central is simply not an option for yet another group of firms—those that want to accept credit card payments for unearned fees.
A client portal that enables clients to access their records or check case status at any time offers the benefit of convenience and saves costs by eliminating the need for staff to respond to client requests for information. Client portals also offer a secure way to share documents with clients (and vice versa). Because Thomson Reuters plans to add a client portal to Firm Central (although it’s unclear when that will happen), the absence of a client portal at launch isn’t a dealbreaker.
The one area in which Firm Central should have a clear advantage over the competition is the availability of live support: while Clio and RocketMatter offer live support during what can be termed “extended business hours,” Firm Central support will be available 24/7/365. On the other hand, one reason to use a practice management system is to become more efficient, which should presumably reduce the need to work outside of extended business hours.
The bottom line: although Firm Central’s pricing is competitive, the product itself isn’t.
This review is based on information Thomson Reuters provided at the Eagan briefing; a more detailed demo provided by Ben Vickers, Director of Product Marketing for Firm Central; Laura Zastrow, Firm Central’s Senior Product Developer; Brian Mismash, Director of Product Strategy for Firm Central; and Cecile Schauer, VP of Small Law Product Marketing; and additional clarification by Vickers and Zastro.
Thomson Reuters paid travel expenses for many of the journalists and bloggers who attended the Eagan briefing, including me. I am also featured in customer testimonials for WestlawNext. My previous posts about WestlawNext are here. For more on Firm Central (and the other products Thomson Reuters announced last week), visit Law Technology News (another article here), Robert Ambrogi’s LawSites, 3 Geeks and a Law Blog, jasnwilsn.com, the ABA’s GPSolo eReport and Dewey B. Strategic.
Written by Lisa Solomon on October 15th, 2012 · 1 Comment
In an article in In Brief entitled Contract Lawyers: Independent Contractors or Employees?, authors Lisa C. Brown and Jim W. Vogele give some excellent advice about steps a firm can take to ensure that a lawyer it hires as a freelance attorney is, in fact, an independent contractor, rather than an employee. However, a firm following Brown and Vogele’s instruction that “[t]he firm must bill for the work of the contractor as a vendor, not as an employee” may find itself in ethical hot water.
No Oregon ethics opinion directly addresses the numerous ethical issues that arise when a firm hires a freelance lawyer. However, Oregon’s Rules of Professional Conduct are similar to the ABA’s Model Rules of Professional Conduct. As I’ve previously explained, in Formal Ops. 00-420 and 08-451, the ABA’s Standing Committee on Ethics and Professional Responsibility concluded that: (1) a law firm that engages a freelance lawyer may add a surcharge to the fee it pays to the freelance lawyer, provided the total charge represents a reasonable fee for the services provided to the client; and (2) the hiring firm is not obligated to inform the client how much the firm is paying the freelance lawyer. However, no markup is permitted if the firm decides to pass the cost of hiring a contract lawyer through to the client as a disbursement: a markup is permitted only if the freelance lawyer’s services are billed as a legal fee.
Returning to Brown and Vogele’s advice, in my experience, law firm bills generally classify billing entries as either fees or disbursements. Further, charges from vendors are reflected on the bill as disbursements, not as fees. Thus, a firm that bills for the work of a freelance lawyer as a vendor (as Brown and Vogele advise) is likely to bill for the freelance lawyer’s work in the “disbursements” portion of the bill. Under those circumstances, the firm may not mark up the freelance lawyer’s fee.
Furthermore, as Brown and Vogele note, the various state and federal agencies that audit working relationships to determine whether a worker is an independent contractor or an employee use different tests, most of which look to multiple factors. Brief analysis shows that none of the tests Brown and Vogele reference look to the manner in which a worker’s services are billed to clients. See Employer’s Supplemental Tax Guide (IRS); State Agency Criteria for Independent Contractors (chart).
Thus, because: (1) a firm that bills for a freelance lawyer’s work in the same manner it bills for work performed by other vendors (i.e., as a disbursement) may not mark up the freelance lawyer’s fee; and (2) the manner in which a worker’s services are billed to clients is irrelevant to whether a freelance lawyer is properly classified as an employer or independent contractor, Oregon lawyers should not follow Brown and Vogele’s advice to bill for a freelance lawyer’s work in the same manner it bills for work performed by other vendors.
Written by Lisa Solomon on August 6th, 2012 · 4 Comments
As the ABA Journal reports, today, the ABA’s House of Delegates adopted Resolution 105C, which amends the comments to ABA Model Rules 1.1, 5.3 and 5.5 to clarify lawyers’ obligations when outsourcing work, whether domestically or internationally.
The resolution’s adoption caps a process that began in November 2010, when the ABA’s Commission on Ethics 20/20 issued a discussion draft of proposed changes to the Model Rules of Professional Conduct (or, more accurately, the comments to the Model Rules) as they relate to domestic and international outsourcing. As I explained in my analysis of the discussion draft, the proposed changes didn’t introduce anything new or surprising; rather, they primarily elevate many of the points made in ABA Formal Op. 08-451 to the level of Model Rule comments.
Selected Highlights of the New Model Rules Comments Concerning Outsourcing
The House of Delegates adopted the following new comment to Model Rule 1.1 (competence):
 Before a lawyer retains or contracts with other lawyers outside the lawyer’s own firm to provide or assist in the provision of legal services to a client, the lawyer should ordinarily obtain informed consent from the client and must reasonably believe that the other lawyers’ services will contribute to the competent and ethical representation of the client. See also Rules 1.2 (allocation of authority), 1.4 (communication with client), 1.5(e) (fee sharing), 1.6 (confidentiality), and 5.5(a) (unauthorized practice of law). The reasonableness of the decision to retain or contract with other lawyers outside the lawyer’s own firm will depend upon the circumstances, including: the education, experience and reputation of the nonfirm lawyers; the nature of the services assigned to the nonfirm lawyers; and the legal protections, professional conduct rules, and ethical environments of the jurisdictions in which the services will be performed, particularly relating to confidential information.
wwwDisclosure and Client Consent
In its report to the House of Delegates, the Commission explained that “consent will typically be required, and will almost always be advisable” when outsourcing, although it “may not be necessary when a nonfirm lawyer is hired to perform a discrete and limited task, especially if the task does not require the disclosure of confidential information.” The requirement to obtain the client’s informed consent to outsourcing in most cases is stronger than that imposed by ABA Formal Op. 08-451, which required disclosure of the use of a freelance lawyer only if the freelance lawyer was to perform independent work for the outsourcing lawyer without the “close supervision” of the outsourcing lawyer or another lawyer associated with the outsourcing lawyer’s firm.
wwwSupervision of nonfirm lawyers and nonlawyers outside the firm
The most recent draft resolution concerning outsourcing (issued in February 2012) contained the following sentence at the end of comment : “When using the services of nonfirm lawyers in providing legal services to a client, a lawyer also should also reasonably believe that such services meet the standard of competence under this Rule.” This sentence was omitted from the version submitted to, and adopted by, the House of Delegates, no doubt in response to a few comments the Commission received in response to the February 2012 draft resolution objecting to it.1
The omission of the last sentence from comment  is significant because the Commission previously explained that the last sentence required outsourcing lawyers to “conclude that the services that the nonlawyer [sic; should read “nonfirm lawyer”] actually performed after being retained were performed competently.” Although the new comment  to Rule 5.3 now explicitly requires a lawyer who uses nonlawyers outside a firm to assist the lawyer in rendering legal services to “make reasonable effort to ensure that the services are provided in a manner that is compatible with the lawyer’s professional obligations” (which, of course, include the duty to provide competent representation), that comment does not impose on the outsourcing lawyer an obligation to conclude that a nonfirm lawyer’s work meets the standard of competence required under Rule 1.1.
To put this distinction into context with a real-life example, I am admitted in New York, EDNY, SDNY, the Second Circuit and the U.S. Supreme Court. When a New York lawyer retains me to provide legal research and/or writing services, under comment  to Rule 1.1 (as adopted), the lawyer does not have a continuing obligation to conclude that any services I actually perform after being retained are performed competently. This means that, if (for the sake of argument only) I ever perform services for a New York lawyer in an incompetent manner, any failure of the hiring attorney to discover that my work does not meet the standard of competence under Rule 1.1 will not constitute an ethics violation.
The result is different when an outsourcing lawyer hires a freelance lawyer who is not admitted in the same jurisdiction as the outsourcing lawyer. For example, a Utah lawyer recently retained me to conduct research for, and draft, a brief to the Utah Supreme Court. Because I am not admitted in Utah, I am considered a “nonlawyer” in that state. Under the new comment  to Rule 5.3, if (again, for the sake of argument only) I do not perform the work competently, any failure by the outsourcing lawyer to make reasonable efforts to ensure that I have performed in a manner consistent with the lawyer’s obligation to provide competent representation may constitute an ethics violation.
None of this should discourage lawyers from outsourcing to out-of-state freelance lawyers. Remember, adequate supervision over a non-lawyer is judged on a reasonableness standard. As the new comment  to Rule 5.3 explains, the extent of supervision required “depend[s] on the circumstances, including the education, experience and reputation of the nonlawyer [and] the nature of the services involved….” This means an out-of-state junior lawyer with little or no experience in the substantive practice area and no track record to speak of will require more supervision than a seasoned attorney with extensive substantive experience in the relevant practice area and an extensive track record. It also means that, while—as comment  to Rule 1.1 makes clear—a hiring attorney should do diligence when hiring any freelance lawyer, sufficient due diligence is particularly important when hiring an out-of-state freelance lawyer.
The Commission’s Report to the House of Delegates Supports Domestic Outsourcing
As I noted in my analysis of the discussion draft, although, in the introduction to its Draft Report, the Commission disclaimed any intent to either endorse or reject the practice of outsourcing by solos and small firms, the Draft Report went on to discuss the benefits of outsourcing. The Commission maintained that position throughout the revision process. In the report it submitted to the House of Delegates, the Commission observed:
Lawyers have found that the same technology-driven efficiencies that have led to an increase in outsourcing throughout the global economy are also making outsourcing an appealing option within the legal profession for certain work. In particular, lawyers have found that, if they exercise proper care in the selection of a provider, work can be completed with greater speed and lower costs without sacrificing quality. These efficiencies offer opportunities for solo practitioners and small and medium-sized U.S. law firms, allowing them to better compete for large matters without fear that they will lack adequate resources to perform the legal work involved. Also, by reducing the cost of legal services, outsourcing can improve access to justice by making legal services more affordable
….The Commission’s research indicates that lawyers still tend to outsource legal and law-related work domestically more often than they outsource work internationally. In fact, information reviewed by the Commission indicates that, more recently, the outsourcing industry is responding to client demand for greater availability of on-shore operations.
Although the additional comments to the Model Rules aren’t, in and of themselves, revolutionary, by amending the Model Rules comments to discuss lawyers’ obligations when outsourcing, side-by-side with their obligations when working with lawyers and other personnel inside a firm, the ABA has acknowledged the importance of outsourcing to the practice of law, both today and in the future. That is revolutionary.
1Not surprisingly, the Attorneys’ Liability Assurance Society objected on the ground that, in its view, the sentence effectively requires lawyers to guarantee the quality of outsourced work.
The objection of Prof. Andrew Perlman, the Ethics 20/20 Reporter, focused on the sentence’s impact on lawyers or firms that “refer” work to non-firm lawyers for a variety of reasons, including to obtain an opinion from local or specialized counsel on a matter in which the “referring” lawyer lacks expertise. The objection’s use of the word “referring” demonstrates Perlman’s fundamental misunderstanding of the term “outsourcing,” the hallmark of which is the hiring lawyer’s ability to competently supervise the work performed by the nonfirm lawyer. Where a matter requires specialized or local expertise, it would be more appropriate to enter into a co-counsel relationship (with each firm having a direct attorney/client relationship with, and ethical obligations to, the client) than an outsourcing relationship.
Written by Lisa Solomon on June 13th, 2012 · 1 Comment
The Federal Judicial Center is the research and education agency of the federal judicial system. By statute, the FJC is charged with:
- conducting and promoting orientation and continuing education and training for federal judges, court employees, and others;
- developing recommendations about the operation and study of the federal courts; and
- conducting and promoting research on federal judicial procedures, court operations, and history
To further its mission, the FJC publishes studies, reports and even treatises on substantive areas of the law, and also maintains a YouTube channel. All of the written materials can be downloaded for free from the FJC’s website. While many publications (such as the 32 items about caseloads and case weights) are primarily of interest to judges and other court personnel, two items are of particular interest to appellate lawyers:
A Primer on the Jurisdiction of the U.S. Courts of Appeals (2d ed. 2009): This 102-page manual provides an introduction to the complexity and nuance in the subject-matter jurisdiction of the U.S. Courts of Appeals. The monograph examines procedural issues related to the exercise of appellate jurisdiction in appeals from final judgments and interlocutory appeals. Coverage includes civil and criminal appeals, extraordinary writs, and federal administrative agency reviews. This edition contains new sections on the future of the Courts of Appeals, judicial rulemaking, non-party appeals in criminal matters, and an updated bibliography.
Case Management Procedures in the Federal Courts of Appeals (2d ed. 2011): This 227-page report details the varying appellate practices and procedures of the U.S. courts of appeals within the generally uniform appellate scheme imposed by the Federal Rules of Appellate Procedure. Part I of the report highlights key variations from court to court; Part II describes in detail the case management procedures of each court.
Just about every litigator (not just appellate practitioners) should find the Reference Manual on Scientific Evidence (3d ed. 2011)—which weighs in at a whopping 1034 pages—and Managing Discovery of Electronic Information: A Pocket Guide for Judges (2d ed. 2012) to be helpful. Finally, depending on the focus of your practice, you might also be interested in Major Issues in the Federal Law of Employment Discrimination (5th ed. 2012) and Section 1983 Litigation (2d ed. 2008).
Written by Lisa Solomon on May 11th, 2012 · 1 Comment
An ostrich (and a lawyer), both with their heads in the sand. Bob Marley. A man wearing full safety clothing. A lion eating a giant meat-cake.
What do these four images have in common? If you answered: “they’re all the subjects of photos that Seventh Circuit Judge Richard Posner has gratuitously included in opinions,” you’d be right.
In a November 2011 opinion, Judge Posner—using both words and pictures—harshly criticized the lawyer for one of the parties for failing to cite controlling precedent in both his opening and reply brief:
In a January 2012 opinion addressing whether prison officials may allow Rastafarians, but not members of other religions, to wear their hair in dreadlocks, Judge Posner used a photo of Bob Marley to underscore his statement that “dreadlocks can attain a formidable length and density”:
Bob Marley image © David Corio
In an opinion released earlier this week, the primary issue was whether the Fair Labor Standards Act requires that the plaintiff steelworkers be compensated for the time spent changing into protective clothing. After describing the clothing in detail (“…flame-retardant pants and jacket, work gloves, metatarsal boots [work boots containing steel or other strong material to protect the toes and instep) a hard hat, safety glasses, ear plugs, and a ‘snood’ [a hood that covers the top of the head, the chin and the neck”]), Judge Posner, asserting that “a picture is worth a thousand words,” inserted into the opinion “a photograph of a man modeling the clothes”:
I suggest in Pixel Persuasion: Legal Writing for the 21st Century that, under certain circumstances, including a picture in a brief can make the brief more persuasive. Similarly, when appropriately used, photographs can help make opinions more accessible, both to lawyers and to the general public.
Unfortunately, Judge Posner’s use of pictures in opinions isn’t particularly effective, because it’s gratuitous. In the November 2011 opinion, Judge Posner included the picture merely to illustrate a worn-out cliché. There was no rhetorical reason to include a photo of Bob Marley with dreadlocks flying in the January 2012 opinion because the fact that “dreadlocks can attain a formidable length and density” was not disputed. Similarly, because the appearance of the clothing whose donning and doffing were at issue in this week’s opinion wasn’t in dispute, there was no rhetorical reason to include a photo of a model wearing it, especially after describing it in detail.
As Reuters reported, in 2007, Judge Posner “cut and pasted a photo of Kwanzaa, a lion at a Texas zoo, celebrating its birthday with a cake made from 10 pounds of horsemeat topped with whipped cream and a carrot. That image was included [in] a lawsuit over the slaughtering of horses for human consumption, and was meant to underscore the fact that zoos feed their animals a considerable amount of horsemeat.” In that case, as in the three more recent ones, the picture was mere surplussage.
Using Persuasive Pictures Properly
By contrast to judge Posner’s hamhanded efforts, the lawyer for the Dallas Mavericks effectively used an image in a summary judgment opposition brief. In Hillwood Investment Properties, III, Ltd. v. Radical Mavericks Management, a 5% owner of the Dallas Mavericks claimed that the team had been mismanaged, and sought the appointment of a receiver. The Mavericks’ three-page summary judgment brief prominently featured a photo to underscore the team’s argument that the evidence demonstrates that, as a matter of law, the team had not been mismanaged:
Don’t make the same mistake Judge Posner keeps making: if you include a photo in a brief, make sure that it packs a real rhetorical punch, or that (like a signature sample in a fraud action) it’s crucial to the case.
Written by Lisa Solomon on February 22nd, 2012 · 4 Comments
For the past year and a half, the ABA’s Ethics 20/20 Commission has been considering changes to the Model Rules of Professional Conduct as they relate to domestic and international outsourcing. Yesterday, the Commission issued its Revised Draft Resolution on the subject for comment. The Revised Draft Resolution is the fourth version of proposed changes to the ABA Model Rules (and the comments to those rules) since the Commission first took up this issue; previous drafts were issued in September 2011, May 2011 and November 2010.
As the Commission explains in its cover memo,
The only substantive change to the Commission’s outsourcing proposals appears in Comment  to Rule 1.1 (Competence). That Comment addresses a lawyer’s ethical duties when a portion of a client’s legal work is outsourced to a lawyer in another firm. The last sentence of the prior draft said that, “[w]hen using the services of nonfirm lawyers in providing legal services to a client, a lawyer also must reasonably believe that such services meet the standard of competence under this Rule.” The Commission heard concerns that the sentence as written might be read to impose on lawyers an unnecessary ethical obligation to ensure that the work of a lawyer in another firm was performed competently. The Commission agrees that, in many circumstances, it will be reasonable to rely on the work performed by nonfirm lawyers without independently confirming that that [sic] work was performed competently. The Commission does not believe that the prior draft should be read to impose such a duty, but the Commission nevertheless decided to soften the language by replacing the word “must” with the word “should.”
In the context of the Model Rules comments, I don’t see any practical distinction between the duty imposed on an outsourcing lawyer by merely replacing “must” with “should.” Since the Commission doesn’t intend that Comment  be construed to impose a duty to independently confirm that outsourced work was performed competently, it should have included that clarification in the comment itself, rather than relegating it to the cover memo.
All of this goes back to the hiring lawyer’s duty to appropriately supervise work performed by a nonfirm lawyer. As I explained in my analysis of ABA Formal Op. 08-451, under the current Model Rules, an outsourcing lawyer’s duty to make reasonable efforts to ensure that a nonfirm lawyer conforms to the Rules of Professional Conduct (which impose a duty of competence) is no different from the responsibility of a lawyer supervising the work of another attorney who is employed by the lawyer’s firm. However, the statements in the Commission’s cover memo are inconsistent with Op. 08-451, since they can be read as imposing a lesser duty on a lawyer supervising a non-firm lawyer than on a lawyer supervising another lawyer in the same firm. To ensure competent representation, the extent of a supervising lawyer’s obligation to ensure that all supervised work has been performed competently must not depend on whether an associate or a freelance lawyer has performed that work.
This shouldn’t discourage anyone from outsourcing. Remember, adequate supervision—whether over an associate or a nonfirm lawyer—is judged on a reasonableness standard. The level of supervision required depends on factors such as the background of the supervised lawyer (a junior lawyer with no experience in the substantive practice area will require more supervision than a seasoned attorney with extensive substantive experience in the relevant practice area) and the length of the relationship between the supervising and supervised lawyers (a new relationship calls for greater supervision than an established one). Thus, to comply with ethics rules without losing the efficiency benefit of outsourcing, a solo or small firm lawyer should develop a relationship with an experienced freelance attorney.
The Commission seeks further comments in response to the Revised Draft Rsolution. Comments should be submitted by April 2, 2012 to Senior Research Paralegal Natalia Vera at email@example.com.
Written by Lisa Solomon on February 15th, 2012 · 2 Comments
If you’ve read any of my other posts about WestlawNext, you may think you’ve landed on the wrong blog. While it’s true that I can be highly critical, I also believe in giving credit where credit is due. With the introduction of the Related Documents for Small Law Firms WestlawNext plan, Thomson Reuters deserves some kudos.
A Bit of Background
As I’ve previously noted, I’m a big fan of the Results Plus plan available in “classic” Westlaw. When you’re searching within a database covered by your Westlaw subscription, the Results Plus plan allows you to click on any of the documents you see listed on the right side of your search results screen without incurring an out-of-plan charge (without Results Plus, you’d get an out-of-plan warning screen). Only the “first click” is free: while you can browse through the table of contents of the analytical source you’ve linked to at no cost, if you view any other section of the source from the table of contents, it will be considered out-of-plan (you’ll get a warning screen and can then choose to cancel or continue).
Shortly after Thomson Reuters launched WestlawNext at LegalTech 2010, I began negotiating with my local Westlaw rep about upgrading to the new product. Because I’m such a fan of Results Plus, I was interested in a similar plan on WestlawNext. Unfortunately, a similar plan wasn’t available at the time, and the other plans offered were not adequate substitutes. For that reason—and because my representative ultimately quoted me a total plan price that was 68% higher than what I was then paying for my Westlaw subscription—I decided to stick with Westlaw.
I recently decided to revisit the possibility of switching to WestlawNext, for two reasons. First, my three-year Westlaw contract expired at the end of 2011. Second, a number of colleagues have recently told me that they found very little price differential between Westlaw and WestlawNext. My timing was auspicious, as Thomson Reuters recently launched a plan add-on called Related Documents.
What is Related Documents?
Related Documents is similar—but not identical—to Results Plus. On the positive side, while 300 secondary sources are included in Results Plus, more than 5,000 secondary sources (including all of the sources included in Results Plus) are included in Related Documents. On the negative side, the Related Documents display is limited to (what the WestlawNext algorithm considers to be) the three most relevant secondary source documents, along with the three most relevant briefs and three most relevant trial court documents (a category that includes pleadings, motions, memoranda & affidavits; transcripts; filings; depositions and discovery; verdicts & settlements; proposed orders, agreements and settlements; jury instructions; and expert materials). This is a negative because, in my view, briefs and trial court documents have little value as legal research resources—especially when compared to the significant value provided by secondary sources. Results Plus returns a greater number of relevant secondary sources to explore.
The good news is that, when you subscribe to the Related Documents plan, you’ll also be able to access Results Plus within classic Westlaw (back in early 2010, I was told that switching from Westlaw to WestlawNext was an all-or-nothing proposition). Therefore, if you’re not satisfied with the secondary sources displayed within Related Documents, you can re-run your search in good ol’ Westlaw. (Of course, you can also modify your WestlawNext search slightly in an effort to get different secondary documents to display.)
Here’s the official product description:
WestlawNext Related Documents
Show me the Money, Jerry
The “rack rate” for Related Documents is $165/month for solos (I don’t know what the “rack rate” is for firms of 2-29 lawyers). You should use that number as a starting point and negotiate down with your rep. In your negotiations, remember that:
- the longer the contract you’re willing to sign, the less you should be paying per month for your WestlawNext subscription
- your rep is a salesperson who will be particularly motivated to meet sales goals at the end of each calendar quarter and at the end of the year
Finally, don’t purchase any multi-year WestlawNext plan through the online Westlaw Store, which doesn’t offer multi-year discounts.
Written by Lisa Solomon on January 4th, 2012 · 3 Comments
The new year is a perfect time to implement new plans. Whether you want to get started as a freelance lawyer or expand your freelance law practice this year, LRWP’s new Freelance Lawyering Success Packages can help you achieve your goal.
The core of the Freelance Lawyering Success Packages is the Freelance Freedom recording. In this 2.5-hr. video, I answer these important questions:
- What is the most powerful way to market your services as a freelance lawyer?
- How much should you charge, and how can you make sure you get paid?
- What ethical issues arise in the freelance lawyering relationship, and how are those resolved?
- Should you obtain your own malpractice insurance?
- If you want to concentrate on legal research and writing, do you need your own Lexis or Westlaw/WestlawNext subscription? How can you get the best deal from these companies? What alternatives are available?
- How can you compete with foreign LPOs?
- What impact will the ABA Ethics 20/20 Commission’s revised initial proposal concerning changes to the Model Rules of Professional Conduct have on freelance attorneys and the lawyers who hire them?
- Why is a shaky economy good news for freelance lawyers?
This recording is chock-full of information for all types of contract lawyers—whether you want to handle depositions for other lawyers, assist with discovery or trial prep, cover court appearances, or offer legal research and writing services.
All of the Success Packages also include the Freelance Freedom Companion Guide. This unique e-book contains a comprehensive collection of ethics opinions from across the country that are relevant to freelance lawyers and the attorneys who hire them. As a bonus, you also get a sample services agreement (in MS Word format)—the same agreement I use in my own successful practice as a freelance lawyer.
Visit the LRWP products page for more information about the Silver, Gold, Platinum and Platinum Plus Freelance Lawyering Success Packages.