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Dennis Kennedy

Technology Law and Legal Technology. Dennis Kennedy is one of the few technology lawyers who is also an expert on the underlying technologies. Dennis an award-winning leader in the application of technology and the Internet to the practice of law. DennisKennedy.com gives you access to a wide variety of Dennis Kennedy's resources on legal technology, his writings, his well-known blog, DennisKennedy.Blog, and information about how you can have Dennis speak to your organization or group.

Dennis Kennedy is one of the most knowledgeable legal technologists you will find. - Michael Arkfeld.

Dennis Kennedy, a lawyer and legal technology expert in St. Louis, Mo., has been a significant influence in the ever-evolving relationship between lawyers and the Web. - Robert Ambrogi

Archive for June, 2004

For the Next Few Days – “Scraps and Workshop”

Wednesday, June 30th, 2004

As my previous post indicated, the Dennis Kennedy Law Firm Annual Retreat has begun.
I?m not planning to post anything new in the sense of topical until next week, but I came up with an idea to maintain a blog presence.
One of the most fun albums of the 1970s was a double album from NRBQ called “Scraps / Workshop,” which was technically a reissue of two separate albums. I wanted to borrow the “scraps and workshop” concept and the NRBQ approach to “let’s have fun and put it out there.”
I noticed that I have a bunch of lists, starts on articles, unused blog post ideas, notes and the like that are just sitting around. Some are quite interesting and extensive, in my humble opinion, but are unfinished or unpolished.
I thought it might be fun to take the NRBQ spirit and post a few of them from time to time over the next few days to let them see the light of air and maybe generate a few ideas for you. Pull up an RC Cola and a Moon Pie and let’s have some fun.

The Dennis Kennedy Law Firm Annual Retreat

Wednesday, June 30th, 2004

It’s time for my first annual retreat and that’s what I’ll be doing for the next few days.
I would be the first to admit that the whole notion of a law firm retreat strikes fear in the heart of any law firm partner who has ever attended one, for good reason, but it strikes me that now is the right time for this kind of exercise and I am determined to try to do it right.
I have three things working in my favor. First, we were able to obtain world-class law firm retreat speaker Dennis Kennedy to speak at our retreat. I can’t wait to hear what he will have to say about effective use of technology in the practice of law, where the practice is headed and, in particular, the notion of client-driven technologies. Second, I have vowed to avoid at all costs the three worst features of most law firm retreats and partner meetings – interminable and aimless discussions of associate reviews, contentious debate over amendments to the partnership agreement that seem like they should be non-controversial but you cannot figure out exactly why people are so exercised over, and lengthy explanations of firm finances backed up by indecipherable spreadsheets displayed in fonts to small to read. All of these have been banned from our annual retreat. Third, we have an agenda that has real and substantive issues.
Here?s the current agenda:
1. Where the Heck are We Today? I started my solo practice a little over a year ago. If you subtract out the time it took for a longer-than-expected recovery from “minor” surgery, I’m really at a good one-year point and we are halfway through 2004. It?s a good point from which to step back and assess everything, including whether the use of the royal “we” for a solo practice is appropriate.
2. Eating My Own Dog Food. I know, this phrase all but belongs to Microsoft, but it makes a lot of sense for me today. Why do the shoemaker?s children never have new shoes? Several of my smartest and best advisors have recently asked me the question: “What advice would you give yourself if you came in as a consultant to yourself?” That strikes me as a very good question.
I have great advice and ideas that I give and would like to give to clients. How good am I at implementing that advice in my own business? What’s the holdup? Let’s tally things up and see where my practice stands based on my own principles and the practices I advocate and discuss in my articles and presentations. Among other things, portfolio management is a key item.
3. The “Blow Out” Epiphany. There’s a new reality show on Bravo called “Blow Out,” which follows the startup of a new shop for Jonathan Antin’s hairdressing business in Hollywood. I saw an episode last week and then caught another episode and a repeat this weekend. To my credit (even though my wife spotted it sooner), I realized halfway through the second show that I watched that I was watching myself in Jonathan, or at least what I was heading toward becoming. What were the clues? Oh, things like watching him install outlet boxes, physically switch phone lines, and generally try to do everything himself when he has a group of great people around him. The question: am I trying to do too many things myself? What do I do about it? To those of my friends who have been hinting to me about this – I think I’m finally starting to get your point, but you might want to be a little more direct next time – remember the 2 by 4 and mule metaphor.
4. Collaboration Opportunities and Necessities. By the way, I don’t have to think too hard to know what the answers are to the questions in point 3. The real issue is to decide what to do about it, especially since I increasingly realize that I am in regular contact with the largest group of bright, accomplished people who I admire and trust than I’ve ever been around in my life. It’s a virtual group rather than a local group, but I think that raises mainly logistical issues.
At least three topics on the table:
A. The “virtual” legal secretary or administrative assistant. I had a great conversation at ABA TECHSHOW with Sharon Quaintance at Law Docs Express about what they are doing in the area of “virtual” legal secretaries and how that might help me. It’s time to follow-up. [Note: Done! Email sent.]
B. Hiring the proverbial “bright college summer / part-time intern.” I have too many projects that are close to done that require work that I’m not finding time to do. It’s frustrating. I had a phone call last week where I was advocating the use of a college intern in another context and gradually realized that it also makes sense for me as well. Nailing down the idea, putting together the job description and ad are all on the agenda. If you are reading this and might be interested or know someone who might be interested, let me know.
C. Throwing Open the Doors on Potential Collaborative Projects and Relationships. This is the big one, but it makes so much sense. I’ve already started to do more co-written articles, so, psychologically, I’m more open to the concept than I have been in the past. However, I really want to throw the doors open and consider a wide variety of ideas, projects and other relationships, with the idea of making myself more “web-like” than “silo-like.” If you’ve ever wanted to work with me on something on float a collaborative idea by me, now is the time. For example, I’m thrilled with what?s happening as a result of joining the Advisory Board of LegalRA.com, a new entry into the legal research world that gets many, many things right and is creating a fantastic tool that includes several important features that I have wanted for a long time. Check it out and tell them I sent you. (I’ll write more about this in the future, but the “My Library” section of the service is what will blow people away.)
Let me restate the obvious. I’ve said this many times in many ways, but the current world of legal bloggers is tailor-made for jump-starting collaborative efforts.
5. The Product Line. I?m sitting on more content and intellectual property than many people dream about. It’s a matter of unlocking it and turning it into products. That’s a huge priority for me this summer and a big piece of the hiring an intern idea.
6. Services as Products and Packages. If the billable hour model is busted, then flat rates, service packages and products are clearly the way to go. It’s a matter of creating the packages and then marketing to the right people in a way that they can understand. That’s easier said than done.
Here are two illustrations:
A. Executive Review Express. I offer a reasonable flat rate service where I will review and give you comments and negotiating approaches on an IT agreement or software license within one day or three days, as you choose. Many people have been very curious about how successful this package has been, because they think it is a compelling package, especially since both other lawyers and my own clients could use the service. My conclusion is that the results to date have been disappointing. I believe that the problem is one of marketing rather than concept, but I’m not sure.
B. Put Dennis on Your Technology Committee. When I came up with this idea, I thought it was the best business idea I ever had. The concept: for a fixed price, you get Dennis to take an overview survey of your firm’s technology, participate by phone in your firm’s tech committee meetings, and take advantage of my expertise and industry contacts. Brilliant, right? I’ve found no interest whatsoever. Again, is the problem marketing, conceptual, or, as I now believe, institutional (an unwillingness to bring outsiders in to see, if you will, how the sausage is made)?
On the agenda – creating and marketing these types of approaches. Help me out on with some reactions to this idea. One of my uniquenesses is that I practice computer law at a high level and I’m also one of few attorneys who understand what software is out there, how it is and can be used, et al. Given that, why wouldn’t someone want a package where I “audit” your existing software licenses and help you set up license management practices? As a benefit, you also get my insights into software practices, program usage, purchasing methods that don’t make practical sense. Other idea fragments on packages – Your IT General Counsel, Total License Audit, Helpdesk for Your IT Contract Administrators.
6. The Latent Market for Business Legal Services. Richard Granat and others have spoken and written for years about the “latent” market for legal services. To drastically over-simplify, the idea is that there is a large middle class group of people who have definite needs for legal services, but who cannot afford, do not understand the benefit of, or otherwise do not use the services of lawyers. As a result, they “go it alone” or do nothing, often to their detriment.
I believe that the same idea applies in the business context. In the latent market for business legal services, you find a large number of businesses where owners, executives (often CFOs) and others make “seat of the pants” legal decisions on their own for many of the same reasons Granat and others discuss. Another portion of this market routinely “underlawyers” the problem – i.e., uses a general lawyer for issues that should be addressed by lawyers who practice in the specific area. An example would be a company that has its real estate lawyer looking over software licenses.
In either case, mistakes are likely to be made. When I describe my practice as “providing consumer protection for businesses entering into important technology contracts,” I have the picture of this latent market for business legal services in mind. These are the people I can and want to help. At the annual retreat, I want to take some time to think about this concept, its implications and approaches to target this latent market, especially in ways that take advantage of Internet delivery of services, products and collaborative efforts.
7. Channels, Sponsorships and Advertising. Earlier this year, I did a small experiment with sponsoring and advertising with respect to my web efforts, given that my website drew over a million hits last year. The pace is even higher this year and the percentage of hits going to my blog has reached 60%. As a result, you will find logo sponsorships from CaseSoft, Fios, Worldox and Tabs 3 on various pages on my website. I?ve all-but-decided to forego writing product reviews and turn my focus instead to using the Dennis Kennedy channel to create a limited number of sponsorships from vendors that I like and would recommend, are doing cool things, or make sense for my audience. The upcoming redesign of my website will reflect more of this ?channel? approach. In the legal space, it is still unclear if this approach will be approved (and in what form) and how best to do it. Unfortunately, there have been recent stirrings in ethics regulations that more restrictive advertising regulations of all kinds are ahead for lawyers, with a justification/focus of the “dignity of the profession” involved. Since a vocal group of lawyers have suggested that lawyers should not mention the fact that they like such “common” things as NASCAR on their blogs (I guess that the #48 decal of Jimmy Johnson I put on my laptop to help keep an eye on it during airport screenings would be problematic to them as well), the howls about advertising or sponsorships on law firm websites will probably be forthcoming. My reaction: get a life!
8. New Tech. No, not stuff I want. I want to look into technologies that make sense for me, my clients and the delivery of legal services. No mysteries here – I write regularly about these things in my articles and on my blog. The big one that I keep rolling around in my head is web services (the dot Net variety, e.g., MySmartChannels)). Personal KM, CaseMap 5, OneNote, Tablet PCs, RSS, and “generation 2″ document assembly are other good examples.
9. The Impending Health Insurance Crisis. There’s no question that I love my move out of the firm environment and my new approach. However, the fly in the ointment is health insurance – namely a COBRA election that will run out this fall. Although I hate the idea of hanging out a “will take employment for health insurance” sign, the fact remains that the health insurance system is a disaster area for small businesses, the fact that health insurance availability is so tied to traditional employment in a society that increasingly sees independent businesses is a train wreck waiting to happen, and I don’t see anything in the current election campaign that gives me a good feeling. If you have ideas, I want to hear them, but both pricing issues and availability issues can easily move any solo business (including mine) back to an employment model. That’s going to take some thought.
10. Other Ideas Rattling Around. I have a bunch of notes, ideas, lists, articles, books and the like that I need to take some time to pay attention to and think about. I have a lot of follow-up to do just on people I’ve met in the last few months. Lots of ideas for clients, friends, readers of this blog and others. There is the small matter of collecting and harvesting those, turning them into action items using the David Allen model, and then working with my “priorities advisor,” Wendy Werner, to develop a solid going-forward approach. I’m energized and I haven’t even started yet.
As always, I welcome input, suggestions, recommendations, questions, ideas for paying me money and the like. Email me at dmk@denniskennedy.com.

Do You Feel Safer Now? FBI Computer Network Delays

Tuesday, June 29th, 2004

Have you ever read Barbara Tuchman’s March of Folly? It’s a book that I want to put on my re-reading list as appropriate for this time, but the idea of revisiting those themes in the environment of today’s news is a little scary.
Did you see this one?
Report: FBI antiterror computer system delayed – Virtual Case File won’t be ready this year, article says
I have to admit that my mind drifted off to the Tuchman book after reading these two paragraphs:
“The newspaper quoted one FBI official who suggested the Virtual Case File program, designed to allow agents to share information easily, “might ultimately have to be abandoned.”
FBI Director Robert Mueller had lauded the system as one that would help agents make the types of connections that were missed before the attacks of September 11, 2001.”
Are you feeling safer now? Anyone? Anyone?
Maybe I’m an alarmist, but this story strikes me as being cause for major concern.
In this context, think about this story: “Someone’s Listening In – FBI pushes for ‘rewiring’ of broadband networks. And, if you have the stomach for further inquiry, consider the impact of the lack of adequate computer tools in the scenarios raised in “Intelligence is not static.”
I have the highest respect for the FBI agents I have met over the years, but how can they do the work without the adequate tools?
I’ll leave you with these sobering thoughts from the CNN article:
“A staff statement recently issued by the commission investigating the attacks of September 11 highlighted how antiquated technology had hampered the bureau’s ability to detect terrorist activity.
“The FBI’s primary information management system, designed using the 1980s technology already obsolete when installed in 1995, limited the bureau’s ability to share its information internally and externally,” the statement said in part. “The FBI did not have an effective system for storing, searching, or retrieving information of intelligence value contained in its investigative files.”
My question: as we march forward in the Global War on Terrorism, do we really think that the odds favor the slow of foot, or those marching down the paths Tuchman describes?
Anyone feel safer out there now?

Will Work for Referrals

Thursday, June 24th, 2004

I learned a long time ago that one of the best questions you can ask anyone in business is “how will I know when I have someone I can refer to you?” As a result, I’m always pairing up people I meet with service providers I already know.
Unfortunately, I keep forgetting to learn the flip side of referrals – making sure that people know when to refer someone they know to me. It’s kind of a major deficiency, if you think about it.
John Jantsch at Duct Tape Marketing shares a couple of getting referrals tips as part of his pre-announcement of the release of his new ebook and audio program, Referral Floods.
While you are there, don’t miss his post called “Educate Your Referrals.” Excellent advice. And “Referrals are a Matter of Motivation.”
Oh, what the heck, take a few minutes and read through the archive. I guarantee you’ll get some great ideas that you can really use.

How Do General Counsels Select Law Firms

Thursday, June 24th, 2004

There’s been a small flurry of great articles about the current state of the art among general counsels of corporations for the selection of outside counsel. All are worth reading by any lawyer who has or wants corporate clients.
First, Bridgette Herschensohn’s “How Do General Counsel Select Law Firms?” summarizes the key points from a recent seminar on this topic that featured a number of cororate general counsels. She highlights five key concerns for corporate counsel. They probably will not surprise you, but I want to highlight two observations. First, corporate counsel seem to use practices that guarantee that (1) they will all keep looking at the same set of large law firms and hoping that these firms will changes and (2) smaller, innovative firms amd lawyers will never get on the hiring radar. This practice is a big deterrent from lawyers looking to leave large firms and create technologically innovative firms. Second, point #4 refers to “the added-value factor.” Here’s the simple translation – alternative billing practices ideally implemented with technology and service enhancements.
Legl market guru Larry Bodine, in his usual incisive fashion, covered another similar seminar and posted about it in his blog at “Getting Into the Corporate Counsel Mind.” He sets out four practical lessons, some of which are in line with the points from Herschensohn’s article and some of which are diametrically opposite.
On Law.com. Nathan Koppel’s “Courting Shell” covers Shell’s recent “beauty contest” to both choose and limit the number of its law firms. Koppel highlights Shell’s primary criteria, such as quality, cost-effectiveness and professionalism, but he focuses on the critical fourth factor, one which some law firms, even in 2004, still find surprising, diversity. It’s an important article for all lawyers working in the corporate legal market. By the way, diversity could easily be one of my first questions in my proposed “2 by 4″ blog feature. I spent a good portion of the 1990s on the steering committee for the St. Louis Minority Clerkship Program and, over the years I’ve heard opinions from lawyers on diversity issues that still make me shake my head and wonder what planet they came from.
I recommend the best resource I’ve found on the interaction of corporate counsel and outside law firms. It’s Larry Smith’s Inside Outside: How Businesses Buy Legal Services. Trust me, you’ll thank me after you read it.
Finally, at Law Practice Today, we’re working on two theme issues for July and August. In July, we’ll focus on electronic discovery. The August issue will address the whole topic of corporate counsel / outside counsel relationships. Please contact me if you have an interest in contributing an article or want to learn about advertising or sponsorship opportunities for either or both issues.

Garfinkel on Computer Security – Keep It Simple

Thursday, June 24th, 2004

Simson Garfinkel’s “Keep It Simple” article on CSOOnline.com does a nice job of laying out one of the fundamental issues of computer security – how do you balance security against usability.
Garfinkel says:
“If you’re not thoughtful about your approach to balancing computer security with computer usability, you may end up with neither.”
Amen.
He also notes that a few new developments are helping out us users. “Today, features like file encryption and disk sanitization are built directly into applications and operating systems. The result is that using cryptography to protect a document is now much easier.”
Garfinkel advocates something he calls “secure usability”:
“A good user interface sitting atop a strong security substrate is a good start, but it’s still not enough to create applications where security and usability go hand-in-hand. That extra step?something I call “secure usability”?comes from a user interface that guides the user to secure practices by making other practices difficult or impossible.”
His conclusion is definitely worth spending some time to think about.
“I believe that we can ultimately resolve many of the apparent conflicts between security and usability in a way that addresses both concerns. In the case of passwords, the answer would be to use fairly short passwords but to constantly monitor users’ behavior to see if they do anything out of the ordinary. If a salesman, for instance, starts trying to download secret plans for an unannounced product, I would want that salesman stopped?even if he authenticated using a password, a smart card and an iris scanner. The balance between security and usability should be fluid, not fixed.”
We, the users, have already shown over and over again that we need to be protected against ourselves when it comes to security. I think that Garfinkel may be on to something that will actually work in most situations. As they say, however, the devil will be in th details.

KM in Law Firms – The Cultural Issues

Thursday, June 24th, 2004

David Maizenberg at Blogbook.org has posted “Knowledge Management and Law Firm Cultures,” which makes some good comments about Ron Friedmann and I’s “Strategies for Successful Knowledge Management in Large Law Firms.”
He also says:
“I wish they had gone into some of the cultural issues and challenges, because they are numerous and profound. How does one go about massaging the firm culture toward the kind of KM that we all know is becoming a requirement for efficient practice?”
Good point. Fortunately, I have an answer. Several years ago, I wrote an article called “Creating an Environment in Law Firms Where Artificial Intelligence and Knowledge Management Will Work” in which I tried to address some of the cultural issues. Although Several years have gone by and some of the technological examples might be a little dated, law firm cultures haven’t changed very much.
I like to tell people that if they really want to get a good measure of the level of trust and the general health of a law firm, just check on how willingly lawyers contribute “their knowledge” to KM efforts. For the acid test, though, look at their willingness to contribute their contacts to a Customer Relationship Management (CRM) system.

You Bought It, Now Audit It

Wednesday, June 23rd, 2004

Performing IT audits for law firms and corporate legal departments is one of the consulting services that I offer. You would think that this type of service would largely sell itself. However, lawyers are a hard-sell group. In many firms, even an initial assessment will likely help stop the bleeding of cash. I wrote about this topic in “Seven Easy Ways for Law Firms to Throw Away Money on Technology.”
But you don’t have to take my word for it. Bob Violino’s CFO.com article “You Bought It, Now Audit It” does an excellent job of making the case for IT audits, with some great practical examples and some tips for getting the most benefit from the process.
The money quote:
“IT audits frequently begin with a risk assessment, in which an organization obtains an overview of the major systems and applications used to support critical business processes. The intent is to identify existing or potential areas of risk that should be addressed in future IT audits, says Paul Rozek, director of technology services at Jefferson Wells International, a Brookfield, Wisconsin, consulting firm that has seen its IT-audit work increase by 40 percent between 2002 and 2003. Organizations can then prioritize the audits based on the level of risk. That initial assessment can also give executives a good sense of the systems the organization has in place, and whether the company has sufficient expertise and staff resources to conduct subsequent, more-focused audits.”
The article also notes that audits can cover a variety of specific areas, including the commonly-overlooked area of software license management. Not to belabor the obvious, but I believe that my combination of tech expertise and my law practice that concentrates on software licensing and IT contracts makes a dynamite combination in the IT audit area, especially when you consider that many organizations seem to prefer to cast a blind eye to these issues, at least until they receive a BSA software audit letter.

New Electronic Discovery Column – “There Must Be 50 Ways to Store Your Data

Wednesday, June 23rd, 2004

George Socha and I’s new “Electronic Discovers” column has just been published on the excellent DiscoveryResources.org website.
The column is called There Must Be Fifty Ways to Store Your Data and focuses on the many devices and media on which data can be stored and the many different considerations litigators need to keep in mind when pursuing electronic discovery.
A great comment from George:
“By focusing on the content rather than the medium, you may increase your changes of getting the data you really care about. This is, after all, what we do when we ask for information memorialized on paper. Rare is the request for all pieces of orange paper kept by a company, no matter what is on the orange paper.”

My New 2 by 4 Feature Will Compete with Matt Homann’s Five by Five

Wednesday, June 23rd, 2004

I was talking with Matt “the [non]billable hour” Homann on the phone this morning and congratulating him on the wildly successful “Five by Five” feature that he has developed. I highly recommend the entire collection – Matt has come up with a cool idea and it’s amazing how the simple offer of a “Five by Five” t-shirt has brought out some of the most articulate and thought-provoking ideas about the practice of law you are likely to see outside of Law Practice Today. Sorry, the LPT promos have become a reflex action for me lately. All kidding aside, there is much wisdom in the two Five by Five collections and lots of great ideas that people should implement rather than simply talk about.
By the way, for those playing the game at home, I found myself, like Ernie, wishing that I had written Denise Howell’s response this week and Yvonne Divita’s response in the first week. Unfortunately, I’m far too young to do that “who’s your favorite Beatle?” thing, but I would pick Edge as my favorite U2-er.
Perhaps I digress.
In any event, I suggested several new Five by Five topics to Matt until he caught on that all of my suggestions led inescapably to the conclusions that (1) I was the perfect guest and (2) the questions were so calculated that Matt would have to change the name to One by Five.
By the end of the call, I have to admit that the little jealousy monster had climbed up on my shoulder and was whispering things in my ear. Why indeed have I mentioned Matt’s blog posting more than my own lately? Fortunately, the green guy had a great suggestion that I can’t wait to implement.
See what you think of this one . . . .
“The Two By Four ™.” It’s based on the old mule training proverb that you need to whack a lawyer, er, mule with a two by four just to get the mule’s attention. It will be a weekly collection of of four items from two well-known experts of things that most businesses already know or are already doing that it will take a whack from a two by four to get lawyers and law firms to pay attention to.
Since we’re talking about lawyers, maybe I should call it Four by Four. Let me know.
Unfortunately, I have no ideas yet to match the comedic stylings of Evan “The Funniest Blawger” Schaffer (see, e.g., “Types of Lawyers #4: The Lawyer Who Carries Another Lawyer?s Briefcase“) and Anonymous “Another Pretty Darn Funny Blawger, If Like Me, You Like That Kind of Humor and Spent Most of Your Career in Large-ish Law Firms” Blogger. Anonymous served notice on Evan today that Evan might have a little competition in the comedy category via Anonymous’s “Diary of an Anonymous Lawyer” post. Anonymous also used this post to move way up on the charts in the “blawger most likely to get a book deal out of this blogging thing” list, even though my money is still on the “one of the law professors” betting option.
Note: No mules were injured in the writing of this post.