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Pictures in Posner’s Opinions: Pointless

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.

Posner’s Pictures

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:


ostrich with its head in the sand

lawyer with his head in the sand

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 Markey image in brief

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”:


Posner steelworker photo

Posner’s Problem

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:


Mavericks summary judgment brief

Postscript

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.

Report Accompanying ABA Ethics 20/20 Commission’s New Outsourcing Resolution Suggests Supervision Standard Less Client-Protective than Existing Law

Written by Lisa Solomon on February 22nd, 2012 · 1 Comment


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 [6] 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 [6] 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 natalia.vera@americanbar.org.

New Fixed-Rate WestlawNext Plan is a Good Value for Solos and Small Firms

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.

New Freelance Lawyering Success Packages to Help You Achieve Your Goals in 2012

Written by Lisa Solomon on January 4th, 2012 · 3 Comments


Freelance Freedom recordingThe 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.

Freelance Freedom Companion GuideAll 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.

Freelance Freedom: How to Get Started as an Independent Contract Lawyer Coming to NYCLA on November 10

Written by Lisa Solomon on October 18th, 2011 · 1 Comment


Since I launched Legal Research & Writing Pro in 2008, the recording of my popular teleseminar, Freelance Freedom: How to Get Started as a Contract Lawyer has helped many lawyers begin successful careers as freelance attorneys. During that time, bar associations have increasingly recognized the importance of educating their members about the opportunities presented by “alternative” legal careers such as freelance lawyering.

The New York County Lawyers Association is one of those forward-thinking bar associations. On Thursday, November 10, NYCLA will be hosting my live presentation of an updated Freelance Freedom: How to Get Started as an Independent Contract Lawyer at its headquarters in downtown Manhattan.

Here’s the complete program description:

Outsourcing is the wave of the future. But it’s not just for big firms and the staffing agencies that serve those firms. Freelance attorneys are a growing cadre of solo practitioners who, enabled by technology, work on a project-by-project basis for other lawyers. More and more lawyers—from newly-admitted attorneys who are tired of sitting on the sidelines of the legal job market to experienced attorneys who want an intellectually fulfilling legal career and work/life balance—are entering this practice area.

This program will address these important questions:

  • What is the most powerful way to market your services as a contract 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 proposed 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 2.5-credit CLE program will be held on Thursday, November 10 from 6:25 to 8:30 p.m, following a brief networking reception that starts at 6:00. To register, click here.

Dahn’s response to WestlawNext pricing critique ignores solo and small firm concerns

Written by Lisa Solomon on October 16th, 2011 · 1 Comment


A couple of weeks ago, Jason Wilson’s rethinc.k blog featured a two-part series of posts entitled On WestlawNext, WestSearch, and Haters: A Brief Interview with Mike Dahn of Thomson Reuters. Although Wilson’s interview focused on questions concerning the WestlawNext search algorithm, Dahn made a few comments that touched on pricing, prompting me to write a responsive post addressing: (1) the cost of retrieving secondary source materials by citation on WestlawNext; and (2) the non-availability of subscripton pricing for many of those secondary sources (particularly the ones included as part of the ResultsPlus plan on Westlaw).

Dahn has “responded” to the first issue raised in my post in a follow-up post at rethinc.k:

To understand actual pricing differences, it’s necessary to examine the totality of transactions rather than individual transactions, and the cost of out-of-contract charges will be especially important . . . . Lisa says that it’s much more expensive to retrieve an ALR article in WestlawNext than in Westlaw Classic, but it depends how you retrieve it. When we look at our server logs, it is extremely rare for researchers to type in a citation to retrieve an ALR—much more likely that they’ll search for one. If ALR is outside of your subscription plan and you’re paying retail, the cost of an ALR citation retrieval for something specific, like an ALR on sex-plus discrimination claims, will be almost twice in WestlawNext what it costs in Westlaw Classic—however, the more common scenario of searching for an ALR on sex-plus discrimination would cost a firm three times more in Westlaw Classic than it would in WestlawNext.

With that example, am I claiming that WestlawNext is three times less expensive than Westlaw Classic? No, of course not. It’s not very useful to look at individual transactions in isolation. I could easily list a dozen research scenarios where the retail pricing is dramatically less in WestlawNext and another dozen where the retail pricing is dramatically more. For customers who care about retail pricing differences at all (only matters when going outside your subscription plan or when using our retail pricing structure as a basis for determining costs for client charges—in other words, not relevant to most Westlaw users most of the time), I’d encourage them to look at the totality of hourly and/or transactional charges within and across research sessions.

We’ve recently had the managing partner of an Am Law 200 firm tell us that, since subscribing to WestlawNext, they’re now turning research projects around in one tenth the time. Undoubtedly, if you were to take selected pieces of that firm’s WestlawNext research sessions and compare them with selected pieces of their prior research sessions in Westlaw Classic, you could find instances where the retail charges were higher in WestlawNext, but it’s the totality of the transactions that matter more. We now have 52% of Am Law 100 firms subscribing to WestlawNext, and the way they have tended to analyze these issues prior to subscribing is by running a trial with a subset of attorneys and then asking two questions: (1) are our out-of-contract costs up or down significantly when comparing this group’s usage to previous projects or control groups? And (2) are the in-contract price allocations for client cost recovery up or down significantly when comparing this group’s usage to previous projects or control groups using historical discount rates?

The first question is the more important one. . . .using a trial group of attorneys and looking at the totality of costs and charges over many research sessions is the right way to approach this, as opposed to homing in on specific transaction cost differences and then guessing how it will play out.

Dahn’s response falls short in a number of respects.

First, Dahn simply ignored the fact that the content that is part of the ResultsPlus Westlaw plan subscription is simply unavailable in a comparable plan on WestlawNext.

Second, I did not say that it’s more expensive to “retrieve an ALR article in WestlawNext than in Westlaw Classic.” This makes it sound like my criticism applies only to a specific type of secondary source. In fact, I noted that it costs 75% more to retrieve any “Premium State and Speciality” secondary source document, and 91% more to retrieve any “Premium National” secondary source document, by citation on WestlawNext than on Westlaw.

Third, Dahn’s response actually contradicts the position he espoused in the original rethinc.k interviews. There, Dahn said:

Since WestlawNext aggregates multiple content sets under a single low search price, researchers should be more likely to browse content beyond cases and statutes—which is exactly what we see in our usage logs. In WestlawNext, secondary source usage as a percentage of total usage is up 50% over the ratios we see in Westlaw Classic. We think that’s a very good thing for researchers.

As a librarian, I always encouraged both students and associates to leverage secondary sources in their research—the right secondary source can literally save hours of time, and that time savings is a cost savings to clients. When I first came to West, I tried to promote the use of secondary sources within Westlaw, and our first project to accomplish that in a big way was ResultsPlus. With it, we saw a significant boost in secondary source usage, but WestlawNext takes it to a whole new level, making sure that relevant secondary sources are not just suggested on the side, but made an integral part of the main search result.

Now, however, Dahn contends that “[w]hen we look at our server logs, it is extremely rare for researchers to type in a citation to retrieve an ALR—much more likely that they’ll search for one.” Notice that Dahn did not say that it’s rare for a researcher to retrieve a secondary source by linking to it from the WestlawNext search results. Indeed, we can assume that it’s common to retrieve a secondary source by linking to it from the WestlawNext search results because secondary source usage is much higher in WestlawNext than in Westlaw.

If a secondary source is not within a user’s subscription plan, when the user retrieves a section from that source by linking to it from a WestlawNext search result, the user is charged a per-document fee, which (as noted above) is significantly higher for many of the secondary sources that are most valuable to practitioners. As I noted in my last post, while it makes sense for Thomson Reuters to achieve its goal of recouping its R&D costs to develop WestSearch (the WestlawNext search algorithm) by increasing the cost of subscription plans, it makes no sense to increase the cost of retrieving a document by citation.

Solos and small firm lawyers are 70% of all lawyers in the US (as of 2000)Dahn’s response to that point shows where Thomson Reuters’ real sympathies lie. He says: “For customers who care about retail pricing differences at all (only matters when going outside your subscription plan. . . .—in other words, not relevant to most Westlaw users most of the time).” He also references the fact that 52% of Am Law 100 firms now subscribe to WestlawNext. Of course, it makes sense that large firms—the only customers who really matter to Thomson Reuters—would generally have broad subscription plans that include many secondary sources. But for solos and small firms—in other words, the vast majority of lawyers in this country*—who (I strongly suspect) generally have much more limited subscription plans, retail pricing does matter. ResultsPlus (in which the first click on any materials outside a user’s subscription plan that display to the right of the regular search results is “free”) helped even the playing field for Westlaw subscribers, but it’s not available in WestlawNext. WestlawNext’s pricing structure for document retrieval by citation is as regressive a burden on those firms as Herman Cain’s 9-9-9 tax plan is on the poor.

*As of 2000 (the most recent year for which the ABA has published statistics), 70% of private practitioners were either in solo practice or employed in firms of 10 attorneys or fewer.

My response to rethinc.k series on WestlawNext, WestSearch, and Haters

Written by Lisa Solomon on October 5th, 2011 · 3 Comments


This week, Jason Wilson’s excellent rethinc.k blog features a two-part series of posts entitled On WestlawNext, WestSearch, and Haters: A Brief Interview with Mike Dahn of Thomson Reuters. Wilson’s interview focused on questions concerning the WestlawNext search algorithm.

I’ve always conceded that, for the most part, WestlawNext is superior to Westlaw. However, I’ve been outspoken in my criticism of WestlawNext’s pricing (does that make me a “hater”?). One of Dahn’s comments in this new interview has led me to revisit this issue.

Dahn says:

As a librarian, I always encouraged both students and associates to leverage secondary sources in their research – the right secondary source can literally save hours of time, and that time savings is a cost savings to clients. When I first came to West, I tried to promote the use of secondary sources within Westlaw, and our first project to accomplish that in a big way was ResultsPlus. With it, we saw a significant boost in secondary source usage, but WestlawNext takes it to a whole new level, making sure that relevant secondary sources are not just suggested on the side, but made an integral part of the main search result.

In addition, if you want to browse content like ALR or jury verdicts in Westlaw Classic, and they’re not included in your subscription plan, you must pay an out-of-plan cost to search them before you can browse anything—and you’ll have to try this with database after database. In WestlawNext, ALL searching is included within subscription plans (even if the underlying content is not), and we show more of a document preview in WestlawNext than we do in Westlaw Classic, so customers can browse previews of content outside their subscription plan all day long without incurring extra charges. This not only encourages browsing, but it tends to reduce out-of-plan costs . . . . [W]ith WestlawNext you can search repeatedly and browse content previews all you want, and you only pay for the out-of-plan document you click on. This will almost always cost much less than what it would have cost to search and browse in Westlaw Classic. And in WestlawNext, any search that turns up nothing costs you nothing (in terms of incremental charges), but in Westlaw Classic, if your search results in no relevant documents, you still pay an out-of-contract cost for the search.

These comments fail to address two critical aspects of the Westlaw Classic v. WestlawNext analysis: (1) the true cost of using out-of-plan secondary sources on WestlawNext; and (2) pricing for the valuable content that is included in ResultsPlus.

The true cost of accessing out-of-plan secondary sources on WestlawNext

To be fair, I omitted from the above quote Dahn’s statement that “I heard from a large law firm librarian the other day who said her out-of-plan costs were down 67% in WestlawNext compared with Westlaw Classic.” However, a comment from one large-firm librarian is not an accurate reflection of the true costs of accessing out-of-plan resources (including secondary sources) on WestlawNext. Because, after all, while it’s great to be able to browse document previews, we all know that—just as you would never cite a case after reading a headnote instead of the case itself—the important thing is the document, not the document preview. In this regard,

[o]f course, WN search results may alert legal researchers to issues they would otherwise overlook. But they need not start with a WN search to remedy this deficiency. Secondary sources in a law library appear more likely than WN searches to save legal researchers time, and their clients unnecessary search costs, as long as researchers have ready access to a law library, and know how to effectively use the sources or receive instruction. At “retail,” transactional rates, a WN search costs $60, and then $42 to view a section of a “premium state [or] speciality title.” (TR Legal, WestlawNext Pricing Guide for Commercial Plans (Feb. 2010)) WN search results may include a larger collection of relevant secondary sources. But you may incur unnecessary cost to run even one search on WN, and view several documents, at least if you can gain the needed context from a treatise or legal encyclopedia in your institution’s law library. Moreover, it will cost almost twice as much in WN than in WC to view “speciality title” sections. (TR Legal, Westlaw Pricing Guide For Private Price Plans (Apr. 2010)).

* * *

Suppose you are a California attorney. Anticipating criminal law as the likely context, you could start with Witkin & Epstein, Cal. Criminal Law (3d ed. 2000). Using WN or WC, you could browse the table of contents to find the relevant discussion:

Chapter XIV. Criminal Trial – X. RIGHT TO AND SELECTION OF JURY – A. Right to Jury Trial – 4. Waiver of Right. – h. [§ 459] Effect of Waiver on Retrial.

WN users can still access the table of contents of Cal. Criminal Law and other secondary sources. But it will cost them more to do so. Under a private plan’s “retail,” transactional rate, it costs $24 to retrieve Cal. Criminal Law § 459 from WC; however, it costs $42, or almost twice as much, to retrieve this section from WN. This difference in cost has significant consequences for charges to clients and cost recovery, because the difference will have iterations every time WN users rely on WN’s print-based features. Thus Cal. Criminal Law § 459 cites to People v Solis, 66 Cal.App.4th 62, 77 Cal.Rptr.2d 570 (1998). The case would lead you to another helpful secondary source:

Although there are no published opinions in California specifically addressing whether a jury trial waiver remains in effect for a subsequent retrial of the same case, the contention has been considered and rejected in many other state and federal courts. (United States v. Groth (6th Cir.1982) 682 F.2d 578; United States v. Lee, supra, 539 F.2d 606, 610; People v. Mixon (1994) 271, 111. App.3d 999, 208 Ill.Dec. 385, 387, 649 N.E.2d 441, 443; People v. Hamm (1980) 100 Mich. App. 429, 298 N.W.2d 896, 898; State v. Di Frisco (1990) 118 N.J. 253, 571 A.2d 914, 930; see also Annot., Waiver of Right to Trial by Jury as Affecting Right to Trial by Jury on 573-573 Subsequent Trial of Same Case in Federal Court (1984) 66 A.L.R.Fed 859, 869, § 7 and cases cited.)” (77 Cal.Rptr.2d 570, 572-73).

(Links omitted)

It costs $24 to retrieve the ALR document from WC, but $46 to retrieve it from WN. And if the ALR led to other secondary sources, the cost difference repeats itself.

The WestSearch Straitjacket For Legal Research—Thinking Beyond The Keyword: Part I. Although Dahn criticizes the fact that the author of this post is anonymous, the facts contained in the paragraphs quoted above are undeniable.

While I continue to believe that Thomson Reuters should have absorbed the cost of developing WestSearch (the WestlawNext algorithm) as part of its R&D budget, since the company is as intent on cost-recovery as it urges its customers to be, it makes sense to reflect those costs in increased rates for subscription plans (which encourage searching within one’s plan). However, WestSearch has no impact on what it takes to retrieve a document by citation. Why, then, does it cost 75% more to retrieve a “Premium State and Speciality” secondary source document, and 91% more to retrieve a “Premium National” secondary source document, by citation on WestlawNext than on Westlaw?

There is also plenty of anecdotal information to counter Dahn’s single positive anecdote about out-of-plan savings with WestlawNext. For example, from WestlawNext: Pros and Cons and General Comments from Law Librarians (summary of comments posted to the American Association of Law Librarians listserv):

  • Way too expensive.
     
    * * *

  • When we research an issue, it isn’t unusual for an attorney to scan 40 or 50 cases at a time to get the total picture – the WLN pricing structure penalizes this kind of exhaustive research by charging for each result viewed, while the WL Classic model supports it.
     
    * * *

  • Dislike. It is very expensive and our ability to bill back suffered as an overall percentage of recovery because with two systems, usage stayed the same but the bill got bigger.

From How widespread is WestlawNext? (summarizing comments about WestlawNext posted on Northern California Association of Law Libraries (NOCALL) listserv):

Though honestly we haven’t embraced it completely and probably won’t until West tells us they are pulling the plug on classic. I think it is a good product. I like the $60.00 search and the left-hand screen that guides you to your hits. The biggest issue is the pricing per document. Those clicks just add up.

The Non-Availability of Subscripton Pricing for ResultsPlus Content

Since I find ResultsPlus to be an important part of my Westlaw subscription, my previous posts about WestlawNext included painstaking analysis of the availability of a comparable plan on WestlawNext. To cut to the chase, there isn’t one that even comes close. (Rather than re-post my earlier analyses, I refer you to My WestlawNext Upgrade Negotiations: Proof that West Isn’t Interested in the Solo Market and Westlaw Reps Don’t Know their A$$es From their Elbows When it Comes to WestlawNext Packages and Pricing.)

Combining my analysis with Dahn’s recent comments reveals is that, while WestlawNext may have achieved the (laudatory) goal of increasing the use of secondary sources, it is also achieving the (laudatory only from the perspective of TR and its shareholders) goal of increasing out-of-plan charges for the use of those sources.

One final point: Mike notes that there has been a lot of “positive Twitter commentary” about WestlawNext. I suspect that the vast majority of that commentary is from law students—in other words, people who (1) have little or no real-world research experience with Westlaw or WestlawNext; and (2) do not pay to use WestlawNext, and therefore have no idea of the charges they would incur for their research in the real world.

ABA’s Ethics 20/20 Commission Issues Revised Outsourcing Proposal

Written by Lisa Solomon on September 20th, 2011 · 1 Comment


For the past year or so, 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. The revision process has included soliciting input from stakeholders—including lawyers, law firms, clients and providers of outsourced services—and issuing both a November 2010 discussion draft and a May 2011 initial draft of proposed changes.

Yesterday, the Commission released its revised initial proposal concerning changes to the Model Rules of Professional Conduct as they relate to domestic and international outsourcing. The revised initial proposal is substantially similar to the initial proposal the Commission issued in May. In turn, the language of the initial proposal was substantially identical to the language of the discussion draft the Commission issued in November. Finally, the discussion draft didn’t introduce anything new or surprising; rather, it merely elevated many of the points made in ABA Formal Op. 08-451 to the level of Model Rule comments.

I’ve previously highlighted the handful of significant differences between the discussion draft and the initial draft. Below, I highlight the few significant differences between the initial draft and the revised initial draft. (Insertions are in red; deletions are struck through.)

The Commission’s report explains a comment to Model Rule 1.1 that was added in the initial draft

The Commission added Comment 6 in the discussion draft, and revised it in the initial draft. The revised initial draft contains additional minor changes:

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 conclude 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. When using the services of nonfirm lawyers in providing legal services to a client, a lawyer also must also reasonably conclude believe that such services meet the standard of competence under this Rule.

More importantly, the report accompanying the revised initial draft now explains:

The third sentence provides guidance regarding the lawyer’s assessment of the work that the nonfirm lawyer performs. In particular, the lawyer must ensure that the nonfirm lawyer’s work is performed in a manner that is consistent with the lawyer’s own duty of competence. This sentence differs from the first sentence in the Comment in that the first sentence requires the lawyer to conclude that, before retaining the nonlawyer, the nonlawyer will contribute to the competent representation of the client. The last sentence suggests that the lawyer should conclude that the services that the nonlawyer actually performed after being retained were performed competently.

This is significant because the Commission has clarified that, even when the hiring attorney has retained a qualified nonfirm attorney, the hiring attorney cannot abdicate responsibility to evaluate the nonfirm attorney’s work product during the course of the representation. The Commission may have added this explanation in response to J-M Manufacturing v. McDermott Will & Emery, in which the plaintiff alleged that the defendant law firm’s failure to thoroughly review the work of contract attorneys at e-discovery vendor Stratify Inc. resulted in the production of 3,900 privileged documents in an underlying action.

Further revisions to the comments to Model Rule 1.1 address the allocation of responsibility for monitoring and supervising nonfirm lawyers

Model Rule 1.1 provides that “[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” The hiring attorney’s ethical duty to appropriately supervise the work of a nonfirm lawyer is a hallmark of an outsourcing relationship, and is one factor that distinguishes that type of relationship from other relationships between attorneys in different firms (such as co-counsel relationships). Accordingly, in the discussion draft, the Commission proposed adding a comment to Model Rule 1.1 that directly addresses the retention of outside lawyers to provide, or assist in the provision of, legal services to a client. In the initial draft, the Commission tweaked that comment.

The revised initial draft adds the following:

[7] Where the client has chosen or suggested lawyers from other law firms to assist in the provision of legal services to the client on a particular matter, the law firms who will be assisting the client on that matter should consult with each other and the client about the allocation or scope of representation and responsibility, including the allocation of responsibility for monitoring and supervision of any nonfirm nonlawyers who will be working on the client’s matter. See Rules 1.2 and 5.3. When making allocations of responsibility in a matter pending before a tribunal, lawyers and parties may have additional obligations that are a matter of law beyond the scope of these Rules.

The report accompanying the revised initial draft now explains:

Proposed Comment [7] is intended to describe a lawyer’s obligations when a client requests multiple firms to perform discrete legal tasks concerning the same legal matter. In such situations, the law firms that will be assisting the client on that matter should consult with each other and the client about the allocation or scope of representation and responsibility, including the allocation of responsibility for monitoring and supervision of any nonfirm lawyers who will be working on the client’s matter. (The word “monitoring” is drawn from new proposed language in Rule 5.3 and is described in Part V of this Report.) When making any allocations of responsibility, the proposed Comment reminds lawyers that they (and their clients) might have additional obligations that are a matter of law beyond the scope of these Rules, particularly in the context of discovery.

Because only relatively sophisticated businesses (often with their own in-house counsel) are in a position to choose, or suggest that their lawyers hire, particular outsourcing providers, this new comment will have little impact on solos and small firms that hire freelance attorneys to assist in matters involving individuals and most small businesses.

The revised initial draft recognizes the contributions made by freelance paralegals

The final significant addition to the revised initial draft is the addition of a reference to freelance paralegals in Comment 3 to Model Rule 5.3: “A Llawyers often may use nonlawyers outside the firm to assist the lawyer in rendering legal services to the client. Examples include the retention of an investigative or paraprofessional service….” The Commission also added a reference to “freelancing paralegals outside the firm” to its report. These additions give freelance paralegals long-overdue recognition for the valuable services they provide.

The Commission’s report continues to support outsourcing

As I observed in May, in the introduction to its November 2010 draft report, the Commission disclaimed any intent to either endorse or reject the practice of outsourcing, but it discussed the benefits of outsourcing. The report accompanying the initial draft proposal added even more laudatory language. This language remains in the revised draft report, reflecting the Commission’s view that outsourcing can benefit both clients and lawyers (especially solos and small- and mid-sized firms).

The Commission notes that, because the revised initial proposal and report have not been approved by the ABA’s House of Delegates or Board of Governors, they should not be construed as representing ABA policy. Since I’m not involved in ABA governance, I don’t know whether those entities are likely to accept the Commission’s recommendations without major changes. If you have any insight into this issue, please share it in the comments.

The Commission seeks further comments in response to the initial draft proposal. Comments should be submitted by November 30, 2011, to Senior Research Paralegal Natalia Vera at natalia.vera@americanbar.org.

Former chief CT ethics regulator is gravely misinformed about legal outsourcing – UPDATED

Written by Lisa Solomon on June 25th, 2011 · No Comments


In an article in the July 27 Connecticut Law Tribune, Mark Dubois, Connecticut’s former chief disciplinary counsel, reveals a troubling misunderstanding of the national consensus concerning the ethics of legal outsourcing. Dubois—who, according to his firm’s website, “is recognized as an authority on lawyer discipline matters and the unauthorized practice of law”—was Connecticut’s chief disciplinary counsel until some time this spring. (This article describes him as the chief disciplinary counsel; this one describes him as the former chief; and his firm’s website doesn’t specify exactly when he joined the firm.)

If the title of Dubois’ article (Outsourcing Trend Gains Momentum, Raises Questions) wasn’t enough of a tip-off, the very first sentence—in which Dubois describes outsourcing and offshoring as “nefarious processes”—reveals Dubois’ deep-seated animosity towards outsourcing. If this animus was presented as personal opinion, I would have no problem with it. Unfortunately, it’s communicated in a more insidious manner: through misinformation disguised as fact.

Dubois inaccurately claims that the issue of whether hiring attorneys can make a profit on work performed by freelance attorneys or LPO companies is unsettled

Most egregious is Dubois’ claim that he has “seen informal opinions both ways from [his] former colleagues in bar regulation as to whether outsourced work can be ‘upcharged’ or must be passed along on a dollar-for-dollar basis.” Unless Mr. Dubois is privvy to a trove of unreleased ethics opinions, this is simply inaccurate.

As I’ve previously explained, in ABA Op. 08-451, Lawyer’s Obligations When Outsourcing Legal and Nonlegal Support Services, the ABA’s Standing Committee on Ethics and Professional Responsibility explained that

. . . the fees charged by the outsourcing lawyer must be reasonable and otherwise comply with the requirements of Rule 1.5. In Formal Opinion No. 00-420, we concluded that a law firm that engaged a contract lawyer could add a surcharge to the cost paid by the billing lawyer provided the total charge represented a reasonable fee for the services provided to the client. This is not substantively different from the manner in which a conventional firm bills for the services of its lawyers. The firm pays a lawyer a salary, provides him with employment benefits, incurs office space and other overhead costs to support him, and also earns a profit from his services; the client generally is not informed of the details of the financial relationship between the law firm and the lawyer. Likewise, the lawyer is not obligated to inform the client how much the firm is paying a contract lawyer; the restraint is the overarching requirement that the fee charged for the services not be unreasonable.

In its November 2010 Draft Report on outsourcing, the ABA 20/20 Commission did not recommend any changes to either the Model Rules or their comments with respect to the issue of billing for outsourced services. Indeed, the Draft Report explicitly stated that the “extensive commentary” accompanying “Model Rule 1.5 (“Fees”) and the wealth of ethics opinions available treating myriad specific questions relating to the reasonableness of fees for both legal and non-legal services” “reveals that no special language needs to be added to [Model Rule 1.5] to remind lawyers . . . that [the Rule is] applicable to outsourcing practices.” Thus, the discussion of fees in Op. 08-451 remains applicable.

Additionally, my extensive research reveals that Op. 08-451 is consistent on this issue with all other ethics opinions that have addressed the question, save Texas.* Thus, contrary to Mr. Dubois’ contention, it is well-settled that it’s perfectly ethical for outsourcing attorneys to earn a profit on services provided by freelance lawyers or LPO companies.

Dubois inaccurately contends that other issues implicated by outsourcing remain unsettled

Dubois’ contention that “[t]he ABA Ethics 2020 Committee is wrestling with” issues such as protecting client confidences, avoiding conflicts of interest and disclosing the use of outsourcing to clients is also (albeit slightly) inaccurate. Last month, after more than a year of work, the Ethics 20/20 Commission released its initial proposal concerning 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. Although the Commission seeks comments in response to its initial proposal before submitting a final version of its proposal to the House of Delegates in May 2012, it’s noteworthy that the initial proposal differed very little from the “draft proposal” that the Commission released in November 2010. Moreover, both proposals are consistent with ABA Op. 08-451.

Of further note, Dubois’ prose veritably drips with disdain. He refers to Pangea3, a leader in overseas outsourcing that Thomson Reuters purchased late last year for $35-$40 million as “something called Pangea3,” and describes it as “a domestic portal where U.S. firms can manage legal process outsourcing to India,” despite the widely-reported opening of a Pangea3 office in Dallas that (among other things) handles work that cannot be sent abroad. His assertion that “[a]nywhere that you can find English-speaking folks with access to electricity, you can set up a back office and practice law” paints countries like India as barely-civilized backwaters.

I’ve written to Mr. Dubois and invited him to share with me any ethics opinions that support his position that the issue of whether hiring attorneys can make a profit on work performed by freelance attorneys or LPO companies is unsettled. I also provided him with a complete list of the ethics opinions I uncovered in the research mentioned above. I’ll post an update if he provides me with any additional information.

I’m not surprised to see this coming out of Connecticut: after all, it’s the same state in which, earlier this year, a state legislator introduced a bill designed to prevent companies from offshoring the drafting, reviewing or analyzing of legal documents to unlicensed workers overseas.

*You can find a complete compilation of all ethics opinions from around the country that are relevant to working with contract (freelance) lawyers in my e-book, Contract Lawyering Success. The e-book is available exclusively through LRWP.

UPDATE

Here is Mr. Dubois’ response to my inquiry concerning the basis for his position that the issue of whether hiring attorneys can make a profit on work performed by freelance attorneys or LPO companies is unsettled:

This was from an exchange on the National Organization of Bar Counsel list serv some time ago wherein opinions both ways were offered.

I followed up, asking:

Can you share that exchange with me (or with the public in general)? If not, as compared to the many opinions I’ve listed, the exchange is far from precedential.

His response:

I have left my prosecurtorial job so I do not have access to the threads archived on the list serv. As to whether the informal opinions of my former colleagues are “precedential”, nothing you sent me is precedent. At best, it is persuasive, but certainly not binding unless adopted by a court.

I’m troubled by Dubois’ response, for two reasons. First, it reveals that the statements in his article are based, not on publicly-available ethics opinions, but on an informal exchange between bar regulators. Second, he doesn’t specify when the exchange occurred, other than to describe it as “some time ago.” Hardly a reasonable basis for an article intended to provide ethics guidance to Connecticut attorneys.

I’ve brought the inaccuracy of Mr. Dubois’ article to the Connecticut Law Tribune’s attention. We’ll see whether they have the cajones to contradict Mr. Dubois in print and correct the record for the benefit of Connecticut lawyers.

Ethics 20/20 Commission’s Draft Proposal Supports Outsourcing, Clarifies Hiring Attorneys’ Obligations

Written by Lisa Solomon on May 2nd, 2011 · 4 Comments


Yesterday, the ABA’s Ethics 20/20 Commission released its initial proposal concerning 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. The “initial draft proposal” shouldn’t be confused with the “discussion draft” of proposed changes, which was released last November.

The language of the initial draft is substantially identical to the language of the discussion draft. In turn, as I explained in November, the discussion draft didn’t introduce anything new or surprising; rather, it merely elevated many of the points made in ABA Formal Op. 08-451 to the level of Model Rule comments. I’ve highlighted below the handful of significant differences between the discussion draft and the initial draft.

The revised comment to Model Rule 1.1 stresses the importance of obtaining the client’s informed consent to outsourcing

Model Rule 1.1 states that “[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Here’s a redlined version of the proposed new Comment 6 to Model Rule 1.1 (insertions are in red; deletions are struck through):

Retention ofetaining or Contracting With Other Lawyers

[76] ABefore a lawyer may retainretains or contracts with other lawyers outside the lawyer’s own firm to provide or assist in the provision of legal services to a client provided, the lawyer should ordinarily obtain informed consent from the client and must reasonably concludes 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 conclusiondecision 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 environmentenvironments of the jurisdictions in which the services will be performed. When retaining lawyers and others outside the lawyer’s own firm, the requirements of Rule 5.5(a) must be observed, particularly relating to confidential information. When using the workservices of nonfirm lawyers in providing legal services to a client, a lawyer also must also reasonably conclude that such workservices meets the standard of competence under this Rule. If information protected by Rule 1.6 will be disclosed to the nonfirm lawyers, informed client consent to such disclosure may be required. For example, if the rules, laws or practices of a foreign jurisdiction provide substantially less protection for confidential client information than that provided in this jurisdiction, the lawyer should obtain the client’s informed consent to such disclosure.

Thus, the initial draft contains a presumption that the hiring attorney is required to obtain the client’s informed consent to outsourcing; by contrast, the discussion draft said only that informed consent may be required. Additionally, the issue of informed consent has been moved from the end of the comment to the beginning, better reflecting the requirement’s significance. Finally, in the initial draft, informed consent is couched as a fundamental requirement (in most circumstances), whereas the discussion draft treated the possibility that informed consent might be required as a byproduct of the sharing of confidential information.

The revised comments to Model Rule 5.3 make explicit the rule’s applicability to freelance (contract) lawyers and place more responsibility on the hiring attorney to provide non-lawyers with adequate guidance

Model Rule 5.3 governs a lawyer’s responsibilities regarding non-lawyer assistants. The discussion draft didn’t suggest any changes to the already-existing Comments [1] and [2]. The initial draft revises Comment [2] (and renumbers it as comment [1]) to explicitly expand the rule’s coverage to nonlawyers outside a firm (in addition to nonlawyers employed by a firm).

Additionally, the discussion draft included an entirely new comment [3] to Rule 5.3. The hiring attorney’s obligations under this rule are further refined in the initial draft:

[3] The responsibilities stated in this Rule also apply when a lawyer or law firm utilizes nonlawyer service providers

Nonlawyers Outside the Firm

[3] Lawyers often use nonlawyers outside the lawyer’s or law firm’s officefirm to assist in rendering legal services to clients. The lawyer or law firm clients. Examples include the retention of an investigative service, hiring a document management company to create and maintain a database for complex litigation, sending client documents to a third party for printing or scanning, and using an Internet-based service to store client information. When using such services outside the firm, a lawyer must make reasonable efforts to ensure that the activities of any nonlawyer service providers areservices are provided in a manner that is compatible with the lawyer’s professional obligations. The extent of this obligation will depend upon the circumstances, including: the education, experience and reputation of the nonlawyer service providers; the nature of the services involved; the requirementterms of any arrangements concerning to protectthe protection of client information; and the legal and ethical environments of the jurisdictions in which the services will be performed., particularly with regard to confidentiality. See also Rules 1.1 (competence), 1.2 (allocation of authority), 1.4 (communication with client), 1.6 (confidentiality), 5.4(a) (professional independence of the lawyer), and 5.5(a) (unauthorized practice of law). When retaining or directing a nonlawyer outside the firm, a lawyer should communicate directions appropriate under the circumstances to give reasonable assurance that the nonlawyer’s conduct is compatible with the professional obligations of the lawyer.

* * *

In the discussion draft, Comment [3] vaguely directed the hiring attorney to “make reasonable efforts” to ensure that nonlawyers act in a manner compatible with the hiring attorney’s professional obligations. The initial draft clarifies that those “reasonable efforts” include the communication of appropriate directions to the nonlawyer, thus arguably requiring the hiring attorney to take a more active role in assuring an acceptable level of performance by an outside-the-firm nonlawyer.

The Commission’s report continues to support outsourcing while disclaiming an intent to do so

In the introduction to its November 2010 draft report, the Commission disclaimed any intent to either endorse or reject the practice of outsourcing, but, like Op. 08-451, it discussed the benefits of outsourcing. The report accompanying the initial draft proposal adds even more laudatory language, noting that “[b]y reducing the cost of legal services, outsourcing can improve access to justice by making legal services more affordable. Additionally, the report (like the draft report) recognizes that the ability of solo practitioners and small- and mid-sized firms to retain outside high-quality outside providers, who can complete work at greater speed and lower cost than firm employees allows those firms to better compete for large matters without fear that they will lack adequate resources to perform the legal work involved.

The Commission Seeks Further Comment

The Commission seeks further comments in response to the initial draft proposal. Comments should be submitted by July 15, 2011, to Senior Research Paralegal Natalia Vera at natalia.vera@americanbar.org or by fax at 312-988-5280. [Ed. note: By fax? Anyone who's still using fax over e-mail is highly unlikely to be interested in outsourcing....]. The Commission will submit to the ABA House of Delegates final versions of its proposals in May 2012 for House deliberation at the August 2012 ABA Annual Meeting.

Check back here in a few days for my summary and analysis of the comments the Commission received in response to the discussion draft.