How law firms can innovate by providing third-party services to other law firms

The Economist wrote in 2011 about the end of the legal industry’s lofty heights, saying of one large but ill-fated American firm:

Howrey’s boss, Robert Ruyak, blamed two new trends for his firm’s demise. Howrey had begun acceding to clients’ demands for flat, deferred or contingent fees, causing income to become clumpy and unpredictable. And the rise of specialised e-discovery vendors hollowed out another source of revenue.

Legal services continue to unbundle as traditionally firm-based work like document review is outsourced and electronic discovery becomes more complex. Chicago-based law firm Winston and Strawn is bucking both trends, performing e-discovery for not only itself but other firms and forgoing staffing agencies to directly hire and provide benefits to its document review attorneys.

The firm’s e-discovery division brings in little revenue compared to the firm’s other practice areas. But it has seen three years of growth amid increasing demand for a la carte e-discovery services from other law firms and non-clients. This is a classic example of a business disrupting itself before outsiders irreparably damage it. Ben Thompson wrote an exhaustive case study of Apple’s own self-disruption that perfectly illustrates the strategy.

Many firms are still trying to cope with the boom in third-party legal services providers and complaints about the cost of good legal representation. Formerly bullet-proof business models no longer guarantee the luxurious profits to which so many law firms were once accustomed. And law firm leadership, like publishing and music executives before them, must find innovative ways to provide new value to clients and industry peers.

That’s why law firms like Winston and Strawn are doing more ancillary legal work in-house. I wonder whether more firms will pitch those services to their competitors. It sounds counterintuitive to provide valuable services to competitors, but I think there’s a case to be made for it as a way to revitalize the legal industry.

Many law firms could use guidance on business process improvement, e-discovery, technology, management consulting and more. No one is more qualified to provide those service to law firms than other law firms. Two factors should minimize the fear of deliberate sabotage by a firm you have hired in a non-legal consulting role. The first is a reputational consideration and the second is an ethical one.

Law firms providing their own third-party services to clients and non-clients, including other law firms, have the opportunity every business has when it is among the first to market with an innovative high-value product or service. That opportunity is the chance to become the gold standard, to set the bar high and be the first name that comes up when someone seeks out that product or service. It makes good business sense to treat that first-mover reputational advantage as you would any valuable asset, with great care and cultivation.

Law firms, via the attorneys who helm and staff them, are subject to myriad ethical requirements. The same processes currently in place at most large law firms to manage conflicts of interest, particularly with regard to walling off potentially conflicted attorneys from a given client or matter, could be easily applied to the firms consulting clients. In fact, the team within a firm which provides third-party consulting services to other firms could be completely walled off from the firms legal work, insulating the consulting services from concerns about endangering relationships with and the interests of current, former and prospective clients.

Larry Lessig fighting for campaign finance reform with Mayday PAC

Lawrence Lessig’s Mayday PAC is using the very system it decries to attempt to bring that system down. In other words, Lessig et al are hijacking the virus (the influence of big donors on American politics via election contributions) to deliver the vaccine (funding for politicians committed to proposals which would limit big political contributions).

If you support the cause, be heartened: Lessig likes to fight, and is good at it.

If you don’t support the cause, it’s probably time to start taking Mayday seriously. Your candidate’s job may depend on it.

Podcast of the Week: This Week in Law

When it comes to my own website, editorial calendars always give way to real life. I’m back with the latest in a series that would be more accurately called the “Podcast of the Month.” I really need to step it up with these, as I still have about 70 of them to which I listen with some regularity.

I’m featuring This Week In Law, a podcast covering technology, privacy, intellectual property and other areas of the law relevant to the internet and its users, for a couple of reasons. The first is that the most recent episode (embedded below), entitled Monkeys, Ducks and Unicorns, discusses the Aereo case as well as a recent Fourth Amendment case about cell phones, both decided by the Supreme Court in June.

The second reason I’m featuring This Week in Law is because I have probably listened to more hours of this podcast than any other. It got me through law school by education, entertaining and inspiring me, even while I was studying far less interesting areas of the law. The voices of Denise Howell and Evan Brown, in a way that only happens on the internet, more familiar to me than some of my longest friends’ voices.

Subscribe to This Week In Law in iTunes, Pocket Casts or RSS.

Houston, We Have A Public Domain Problem

Parker Higgins of the Electronic Frontier Foundation, lamenting the recent removal of a public domain NASA clip he posted on the audio sharing site SoundCloud:

The real goofy bit is that before I started at EFF, I worked at SoundCloud. I actually uploaded this Apollo 13 clip, along with sounds from Apollo 11 and others, as part of a project to attract more historic and archival audio and really celebrate the public domain as a rich source of sounds.

Copyright law has been trending in favor of rights holders for a long time. That’s precisely why unlawful claims of copyright over public domain works are so despicable.

Gino Barrica on self-hating lawyers

Gino Barrica, responding to yet another article1 cautioning against the pursuit of a law degree:

See, I’m not a self-hating lawyer. I’m not one of those who hang my head in shame when people ask what I do and I’m not someone who tells people to run for the hills when they tell me they’re considering law school. Yes, I’m up to my ears in debt. But, I’m also full of pride.

Gino is a friend and classmate of mine from Temple Law and someone who, I happen to know, is more intelligent than most people. While I plan on eventually giving my own experience with the bar exam the long-form treatment it deserves, I would like to, as lawyers like to say, incorporate by reference all of Gino’s thoughts on the value of a law degree to lawyers and non-lawyers alike.

  1. No, I didn’t include a link to the article to which Gino’s post responds. That is partially because Gino links to it and I want you to read his post and partially because I don’t want to give it any SEO help. The further down in the search results such “Abandon all hope…” articles are, the better. 

Condoleezza Rice backs out of Rutgers commencement

The Associated Press reports:

The school’s board of governors had voted to pay $35,000 to the former secretary of state under President George W. Bush and national security adviser for her appearance at the May 18 ceremony.

Any question involving money, and therefore just about any question at all, boils down at some point to supply and demand. I understand schools want to attract high-profile commencement speakers. But the fact that Rutgers would offer, and Rice would accept, $35,000, to speak for less than an hour, is shameful.

Schools should not be willing to supply so much money, and speakers, often wealthy, should not demand it. For a more thorough treatment of this topic, read the excellent 2011 essay “Commencement Cash Cow” by Pablo Eisenberg at InsideHigherEd.

Podcast of the Week: Radiolab - 60 Words

From the description of the latest episode of Radiolab, this week’s featured podcast from among the 75 to which I subscribe (recently whittled down from about 85…):

In the hours after the attacks of Sept. 11, 2001, a lawyer sat down in front of a computer and started writing a legal justification for taking action against those responsible. The language that he drafted and that President George W. Bush signed into law - called the Authorization for Use of Military Force (AUMF) - has at its heart one single sentence, 60 words long. Over the last decade, those 60 words have become the legal foundation for the “war on terror.”

BuzzFeed’s Gregory Johnsen helped Radiolab adapt his longform article on the subject for the podcast. It’s a fascinating episode, whether you’re an international law geek or not. Follow the link or use the player below to listen to the episode.

Subscribe to Radiolab in iTunes or via RSS.

Thanks for the visit. If you enjoy this post, have a look at some of the other links I’ve shared or follow me on Twitter.

Plagiarism in Legal Briefs

Gerard Magliocca, writing at Concurring Opinions:

If I cited [someone else’s] brief in an attempt to fairly attribute the source when I made the same point, then I’d look like an uncreative doofus. If I did not cite the brief, though, then that would (or could) be plagiarism.

It would be an interesting bit of research to determine how many sentences are copied without attribution from the briefs of other attorneys. I suspect it happens often.

I don’t think it’s uncreative to cite another lawyer’s brief. Legal writing is a game of cites. If anything, an uncited thought may raise questions rather than project creativity.

The real creativity in legal advocacy, as far as I have learned in law school, working as a litigation paralegal and reading far too much legal writing for “pleasure,” is in the optimal juxtaposition, creatively, of the cited facts and the thoughts of your forbears.

No one wants to see a newly minted physics professor work out the proof for E = MC2. The formula is there as a shortcut so others can build, creatively, upon the concepts for which it provides a shorthand.

After all, what judge prefers your lengthy version of an angle you could just as easily refer to with a short quote and a cite to a previous brief?

Whatever you think of this, a quick search turned up a bit of further reading on the issue and I’ve included a few links below. The question certainly isn’t settled, so I’m as interested as Mr. Magliocca in hearing other opinions.

Further Reading

Government agency NTIS charges for docs you can get online for free, loses money doing it

Good thing a bipartisan bill aims to end that embarrassing situation.

The things the National Technology Information Service does which don’t involve charging hundreds of dollars for free stuff and bleeding money doing it will be absorbed by the Commerce Department under the proposed bill.

But why does Obama want to add $19M to the failed agency’s budget in 2015? I don’t mean to sound like a melodramatic RNC ad, but it seems like a bad idea.

The DATA Act and legislative definitions

Andrea Peterson reports1 at The Washington Post the Senate has passed a bill, the DATA Act, which would require federal financial data be published in a common format. It sounds like a great idea and something those nerdy data journalists are going to love. The bill is likely to pass in the House as well, and the President is expected to autograph it.

However, a part of the bill Peterson pointed out makes me nervous.

The version passed by the Senate doesn’t set a specific format for the data standard but does require it to be “a widely-accepted, nonproprietary, searchable, platform-independent computer readable format”

Now, to be clear, it’s probably better not to name a specific file format because those may come and go. But I’m hoping the final version of the law defines every word in that quoted bit, excepting “a” and “format” because if it doesn’t, implementation is going to be even slower than usual and enabling high-volume computerized public scrutiny of federal spending is really a the-sooner-the-better sort of topic.

  1. The WaPo headline reads “The DATA Act just passed the Senate” but it doesn’t look right to me. The Senate is the legislative body, which voted to pass the legislation. Not the other way around. Editorial picking of nits? Yes. But that doesn’t mean it’s not an improvement. 

NPEs planning patent litigation may be safer as private companies

Note: I’m not your lawyer, you’re not my client, and nothing in this article is, or should be construed as, legal advice.

Companies that don’t sell anything and exist only to enforce patent rights, sometimes purchased from the original patent holder solely for the value of enforcement, are known as non-practicing entities (NPEs) or, pejoratively by defendant companies and their attorneys, “patent trolls.”1

The NPE will sue claiming infringement of one or more patents, and may not actually have any intent to litigate. Many companies and inventors of all sizes regard NPEs scornfully, but are often forced to play ball because settlement is almost always cheaper than litigation. For smaller startups, the cost of litigation may even pose an existential threat.

Read more

The 11-inch footlong sub suit

Sometimes, the law is a noble pursuit with which bold attorneys can defend and uplift the rights and voices of laypersons subjected to injustice of the grossest extreme.

And sometimes, Subway’s “footlong” sandwich measures up to only 11 inches long, and someone just has to sue.

What amazes me about this case isn’t that it happened. After all, this is America. Nor is it that the judge didn’t reach the question whether this case is proper for class action certification.

No, what amazes me about this case is that the parties had exchanged “about a thousand pages” in discovery through February, one of the plaintiff’s lawyers told Jacob Gershman at The Wall Street Journal Law Blog.

Popcorn Time streams movie torrents, but maybe it’s more than that

The image above is the first screen you see when you open Popcorn Time. The app, available on Mac, Windows and Linux, streams movies from the peer-to-peer file sharing protocol BitTorrent. The technology is similar to what old school music swapping service Napster used from about 1999 to 2001, before being shut down.1

Read more

Disgraced Scientist Granted U.S. Patent for Work Found to be Fraudulent

It’s hard to believe this patent should ever have been approved by a patent examiner acting in good faith, especially considering the criminal convictions standing in stark contradiction of the purported “inventor’s” affidavit of lies, but let’s assume the USPTO did, as they claim, handle this one by the book.

Even the appearance of such ridiculous impropriety as granting a patent for fake research is enough to signal the extent to which the system is flawed.