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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 December, 2004

Spam Volume Reaches the “You Can’t Be Serious” Level

Friday, December 17th, 2004

From Wagner’s Weblog via Security Pipeline:
“Recent statistics about the volume of junk e-mail are so astounding as to leave any reasonable person gobsmacked.
A couple of years ago, it seemed astonishing when anti-spam vendors predicted that spam might exceed half of all e-mail. This week, e-mail security vendor FrontBridge said spam tops 93 percent of all e-mail by volume. The spam is driven, in large part, by so-called zombies, or PCs that have been taken over by hackers and turned into spam cannons.”

Why I Don’t Enable Comments on This Blog

Friday, December 17th, 2004

I occasionally get questions about my policy of not enabling the comments feature on this blog, although most are bit more polite than the question I’ll discuss below.
One of the difficulties new bloggers have is the sheer number of bloggers who make pronouncements about the “One True Way” to blog. Of course, most of these pronouncements are at wide variance with each other. I enjoy these pronouncements because, if you can look past the self-righteous and condescending tone of some of them, you can get some good suggestions for ways to improve your blog.
In other cases, well, I don’t know quite how to respond. Take this recent example, please:
Dana Blankenhorn’s recent post called “Blogiquette” is so grumpy and judgmental that I wonder if the title is meant to be ironic. In the post, he lists some of his pet blogging peeves, which seem to be considered cardinal violations of blogging etiquette.
One is “ads in feeds,” a topic I’ll address in some detail in the next few days. He’s opposed to ads in feeds and thinks no one should use them. This might surprise those who see the 120 x 600 pixel (!) sponsor ad on his blog. However, I salute anyone with a blog that’s good enough to command sponsor ads.
Here’s the violation of blog etiquette that really got my attention:
No comments. Who are you, God?”
Holy cow, I don’t enable comments. I don’t think I take that approach for Godlike reasons. In fact, I think my approach to blogging is pretty humble.
I guess that “blogiquette” permits this type of blanket criticisms of bloggers who commit this pet peeve. My sense of etiquette is somewhat different.
I’ve never enabled comments on this blog and that was a decision I made before I launched the blog almost two years ago. I’ve explained at various times why I don’t enable commenting on this blog. I’ve also said that I can see doing other blogs where enabling comments might make sense.
That said, let me try to answer the well-mannered question, “Who are you, God?”
Reasons I Don’t Enable Comments on My Blog
1. I know many bloggers who have turned off comments because of comment spam. I don’t even want to fight that battle. I love blogging and I have no desire to give spammers an easy avenue to ruin my enjoyment. I turned off trackbacks recently until I see how the trackback spam issue gets resolved.
2. I’ve always wanted to use this blog as a way to experiment with my writing, to take my writing in some new directions and let it find its own audience. In my case (and maybe only in my case, for all I know), allowing a bunch of comments doesn’t fit with what I want to do with this blog.
3. I’ve never really made comments on anyone else’s blog, except when I couldn’t find the author’s email address. I’ll either send a blogger an email and have a private conversation or, as in this post, use someone’s post as a basis for post that may or may not have much to do with the original post. For example, I can’t see how this post would be appropriate as a comment on Dana Blankenhorn’s blog. It’d put him in a position where he’d need to decide whether to leave this up on his blog. I’m not comfortable with that.
4. People who want to make private comments to me email me. People who want to make public comments make them on their blogs. In each case, they “sign” their comments and take ownership of those comments. Unless I set up registration mechanisms, anonymous comments are possible. I don’t see why I need to provide a stage for someone’s anonymous theatrical performances.
5. I live in an increasingly newsreader-centric world. I rarely visit blogs, so most of the time comments on a blog don’t even reach my radar screen. I’m using a newsreader, after all, to eliminate the need to visit each blog individually. Increasingly, I’m writing my posts with the idea that they will be viewed in a newsreader rather than in a browser by someone visiting a blog.
6. I have a hard enough time following the lines of conversation in the comments to a blog post when I visit a blog, but the feeds for comments I’ve subscribed to from time to time are indecipherable to me. I can’t figure out who’s talking. In my opinion, comments are not a good medium for conversations. But that’s just me.
7. I subscribed to your feed because I wanted to hear what you have to say. I assume that’s why you subscribed to my feed or visit my blog.
8. Finally, the last thing I need is one more silo that holds another set of demands for my responses. I have a hard enough time keeping up with email. A comments area on my blog would be like handling my email in public, only worse because there’s no way I would be able to keep up with it and people would probably criticize me for not doing a good job of managing comments. I admire the people who manage comments well, but that’s not one of my strengths and it’s not what I want to be doing with this blog.
Bottom line: It’s a personal thing.
I don’t suggest that my approach is the way to go or that you should follow my lead. Some people are obviously very critical of my approach and quick to throw insults. However, I think blogging is cool because every blogger does his or her blog in his or her own way. I like that. I try to understand the reasons for and the benefits of the different approaches bloggers take, and don’t presume to think that I have found the one true path of blogging.
Now you have my reasons for the approach I take to comments. I don’t mind whatever you take on your blog. It should be whatever approach works best for you. I just don’t think blogging should be a “one size fits all” thing.

Looking at Law Firm Diversity Statistics and the Stories They Tell

Thursday, December 16th, 2004

During the 1990s, I spent quite a few years on my firm’s hiring committee. For most of those years, I was on the Steering Committee of the St. Louis Minority Clerkship Program, an effort made to increase diversity in St. Louis law firms by placing minority law students in summer jobs at St. Louis law firms and corporations.
Wendy Werner, then Assistant Dean for Placement at St. Louis University Law School, and Chip Misko, now at Stinson Morrison Hecker in St. Louis, were co-chairs of the committee in a number of those years. At one time, this program was the second-largest program of its kind in the US.
Wendy and I were talking a while back about that program. There were some great young lawyers who went through that program. Some have gone on to do quite well, although almost in every case not with the firm they spent the summer with.
However, when I look at the numbers today, I struggle to see that the effort had any impact on increasing the numbers of minorities in St. Louis law firms. It’s frustrating if you look at the goal of increasing representation in larger St. Louis law firms, but, as I said, many “graduates” of the internship program have gone on to do extremely well.
I grew to believe that retention was the biggest issue, and the answers to the questions about retention do not seem to be easy ones for most firms.
I told Wendy that I’d like to see current statistics just to get a sense of where we were after 10 – 12 years.
Wendy sent me today a link to an article called “Women and Attorneys of Color Continue to Make Only Small Gains at Large Law Firms.”
The article sets out some thought-provoking statistice about diversity issues in law firms. It’s worth remembering in this context that I believe that Georgetown University Law Center either reached or came very close to reaching a 50/50 male/female ratio for law students while I was there in 1980 – 83.
From the article:
“Recent research from NALP reveals that attorneys of color account for 4.32% of the partners in the nation’s major law firms and that women account for 17.06% of the partners in these firms.”
Compare 1993, when “attorneys of color accounted for 2.55% of partners and women accounted for 12.27% of partners.”
As the article notes, “the presence of women comes nowhere near to matching their presence among law school graduates, which has ranged from 40% to almost half since the late 80′s. Similarly, the percentage of minority graduates has doubled, from 10% to 20% during the same time period.”
What struck me about the article is the way the statistics illustrate the retention issue.
“Women attorneys hold 43.36% of associate or staff/senior attorney positions and attorneys of color hold 15.06% of these positions.”
Let me emphasize those numbers:
Women
Associates/staff attorneys 43.36%
Partners 17.06%
Attorneys of Color
Associates/staff attorneys 15.06%
Partners 4.32%
Of course, there are stories, reasons, variations by geography, and special circumstance behind these numbers, but the numbers, at minimum, suggest that something is not working the way it should be. I don’t mean to assess any blame, but I don’t think anyone will think that these numbers are good. We certainly can do better, probably much better.
The current pressures and environments in law firms, especially large law firms, make it unlikely that we will see movement of these numbers in a positive direction soon. Law firms are grinding up male associates and young partners at an alarming rate, too.
However, I hate to throw in the towel. There should be some new and creative ways to deal with these issues. I have a few ideas that I haven’t tried out yet. I know that Wendy has others. Others of you certainly have better ideas than I do. It’s worth making the effort.
If you’ve ever heard me speak on the future of legal technology and the Internet, you know that I like to end with some comments on the role that technology, especially the Internet, can play in both improving diversity and in helping people understand the important role diversity will play in the success of any organization or venture as we move into the 21st century. This topic has moved back on my radar screen for 2005.
How about yours?

Legal Affairs Magazine Offhandedly Insults Practicing Lawyers

Wednesday, December 15th, 2004

I thought that Evan Schaeffer would have picked up on this story by now.
Legal Affairs, apparently an important magazine covering legal issues, is conducting a poll to name the Top 20 Legal Thinkers in America. The list of candidates includes Academics, Judges and Writer/Commentators.
Uh, what about practicing lawyers? I guess my lawyer friends and I don’t count as “thinkers” in the rarefied air found in the halls of Legal Affairs.
Despite my apparent deficiencies as a “thinker,” I have a few thoughts about Legal Affairs magazine and the attitude it embodies. I doubt, however, that Legal Affairs will find them in the top 20 thoughts directed its way in 2004.
It’s great that blogs are going to make publications like Legal Affairs totally irrelevant.

Seconding Tom’s Comments on Copernic Desktop Search 2

Monday, December 13th, 2004

Tom “Inter-Alia.Net” Mighell has made positive comments about Copenic Desktop Search, noting especially that the new version 1.2 will index Firefox bookmarks.
I’ve been using both Copernic Desktop Search and Lookout as local hard drive search tools. I’ve slightly preferred Lookout because of its blazing speed, but its indexing does not appear to be as “deep” as Copernic Desktop Search, especially with PDF files.
Version 1.2 of CDS, after limited use, seems to tip the scales in favor of CDS as a local search engine. Lookout’s integration into the Outlook toolbar still makes it my preferred search tool for email messages. Outlook is completely different with Lookout – you will see that your frustration with the “find” tool in Outlook was quite justified.
Microsoft bought Lookout a while back, but I believe you can still download a free copy here.
One warning about Copernic Desktop Search: the indexing can take several hours. While the results are worth the wait, I suggest that you think carefully about indexing for search only the folders where you keep data you want to search for rather than simply indexing your entire hard drive.
I’ll leave the work of experimenting with the Google Desktop to others. That program makes me nervous and, given Google’s track record so far, I’m content to leave the beta testing of privacy and security issues to those who own stock in the company – they are much more comfortable with risk than I am, and they can afford to take more risk.

Biden’s Pre-Announcement as 2008 Presidential Candidacy Buoys Hopes of Copyfighters

Friday, December 10th, 2004

The recent stories of Joe Biden’s pre-announcement of his candidacy for president in 2008 have raised the hopes of opponents of the entertainment industry’s bulldozer drive through the world of copyright and its recent attempts to beef up copyright laws in its favor. Biden, perhaps the leading pioneer in the world of political speech sampling, can be expected to take an expansive view of fair use, sampling and other creative uses of copyrighted materials by artists.

Rolling Stone’s Top 500 Songs List – A Quasi-scientific Study

Friday, December 10th, 2004

Rolling Stone magazine set off a flurry of discussion with its recent list of the top 500 rock songs of all time, as determined by an impartial group of voters. The top two songs on the list were:
1. Like a Rolling Stone – Bob Dylan
2. Satisfaction – The Rolling Stones
Many people were surprised by the top choices and the list inspired a great number of other efforts to create versions of the same list from other points of view. For example, I was surprised that a classic song from my youth, “Cover of the Rolling Stone,” by Dr. Hook and the Medicine Show, didn’t rank much, much higher on Rolling Stone’s list.
When I started to put together my own list, however, I quickly saw how difficult it was to reach a final ranking because there are so many great songs. In my case, the top two choices were easy, but then the job got too difficult. Here are Dennis Kennedy’s top two songs for a top 500 list:
1. Denis, Denis – Blondie
2. Captain Kennedy – Neil Young
I then decided to try to find some of the other Top 500 songs lists and see if I could find any consistent winners or other patterns. Here’s my decidedly unscientific list of findings of the top two songs on the lists I found:
Time Magazine
1. Time is on My Side – The Rolling Stones
2. This Time It’s for Real – Southside Johnny and the Asbury Jukes
New York Times
1. Times They Are A-changin’ – Bob Dylan
2. Groovy Times – The Clash
Washington Post
1. Whipping Post – Allman Brothers
2. The Poster – Monkees
Saturday Night Live
1. Saturday Night’s All Right – Elton John
2. S-A-T-U-R-D-A-Y Night – Bay City Rollers
High Times
1. Eight Miles High – The Byrds
2. The Tide is High – Blondie
Life Magazine
1. It’s My Life – The Animals
2. Life in the Fast Lane – Joe Walsh
Spin Magazine
1. Spin the Black Circle – Pearl Jam
2. Could it Be I’m Falling in Love – The Spinners
Money Magazine
1. Money – Pink Floyd
2. Money for Nothing – Dire Straits
Wall Street Journal
1. Another Brick in the Wall – Pink Floyd
2. Wall – Living Colour
TV Guide
1. The Sun Always Shines on TV – A-Ha
2. Tune In – Psychic TV

Popular Mechanics

1. Female Mechanic Now on Duty – Sonic Youth
2. All I Need is a Miracle – Mike & the Mechanics
Obviously, this is not a complete list and probably is not a large enough sample to see any patterns or draw any conclusions, at least not with any certainty.
For what it’s worth, I consider Dave Marsh’s The Heart of Rock & Soul: The 1001 Greatest Singles Ever Made the best place to begin if you want to start compiling your own top 500 list.

A Manual of Style for Contract Drafting

Thursday, December 9th, 2004

I get a surprising number of requests from people wanting to know good resources to learn about how to review and draft contracts.
I’ve found a great new book that I will consistently be recommending. It’s by Kenneth A. Adams and it’s called “A Manual of Style for Contract Drafting.”
From the back cover:
“The focus of this manual is not what provisions to include in a given contract, but instead how to express those provisions in prose that is free of the problems that often afflict contracts. This manual highlights common sources of inefficiency, dispute, and misunderstanding and recommends how to avoid them. It offers a level of practical detail not found elsewhere in the literature on drafting.”
That sums it up nicely. For example, there is a whole chapter on “vagueness,” that covers the common problems and shows great ways to clear up the problems and make contracts easy to understand.
I must confess that I ended up reading it from cover to cover in one sitting and got a lot of great ideas. In my defense, however, I did have the book on my “to read” shelf for a while before I worked up the nerve to get started on it. Even if you have to put it in a plain brown wrapper to hide from your friends, you will want to read this book if you play any role, as a lawyer or not, in drafting and reviewing contracts.
If enough people read this book and follow its principles and examples, we’ll all have an easier time dealing with contracts.
I’ll give you three choices for learning more about the book and purchasing it.
First, you can go to Ken’s website to learn more about Ken and the book.
Second, you can go directly to the ABA Web Store to purchase the book. The current special holiday sale price is $35.95 (a bargain, especially considering the prices of most books for lawyers) and this link should take you directly to the book’s order page.
Third, you can buy the book through Amazon through my affiliate link and currently find a $29.97 price and earn me a small commission. The downside of this approach is there appears to be a 3 to 5 week delay in shipping the book from Amazon. The upside is that you can, at the same time, buy Ken’s other highly-regarded book, Legal Usage in Drafting Corporate Agreements.
I’ll let you decide the approach you want to take, but the decision to buy the book is an easy one.
While you’re at the ABA Web Store, be sure to take a close look at the following:
1. For a great set of forms for IT, e-commerce and related agreements (with usable forms on CD – highly recommended), consider The E-Business Legal Arsenal with Forms.
2. David Masters – The Lawyer’s Guide to Adobe Acrobat.
3. Tom Grella and Michael Hudkins – The Lawyer’s Guide to Strategic Planning: Defining, Setting, and Achieving Your Firm’s Goals.
Note that a 10% discount is available for books 2 and 3 if you are a member of the ABA’s Law Practice Management Section. If you aren’t a member, well, darn it, you should be and this discount might be just the motivator you need.

Wired’s TEST Guide: You Didn’t Feel Like Working Today Anyway, Right?

Thursday, December 9th, 2004

From Kevin Kelly’s consistently excellent Cool Tools blog comes a link to Wired’s TEST “Ultimate Buyer’s Guide” to tech products. It’s a 117 page, 8 megabyte-plus PDF file that covers about everything tech tool and gadget that you might be interested in. It will definitely disrupt your day. I’m linking you to the Cool Tools post to get the URL for the PDF because I want you to take a look at the Cool Tools site – it’s one of my favorite RSS feeds and blogs.
WARNING: Between the Cool Tools blog and the Wired TEST PDF, you will have a highly increased risk of wasting a big chunk of your working day.

Holy Cow! Big Law Firm Hourly Rates Rocket Skyward

Thursday, December 9th, 2004

Leigh Jones’s article on Law.com today called "Law Firms’ Billing Rates Climb Ever Higher" will confirm what the clients of many clients of law firms already suspected was happening.
This article will give you a lot to think about. Is demand for legal services ever impacted by price? Are 10% (or greater) rate increases appropriate? How high is too high? What possible justifications do law firms have for introducing efficiencies or technology innovation into the process when clients tolerate 10% or better rate increases? Is it time to look to smaller firms, regional firms, spinoffs from large law firms or individual lawyers with focused practices and big firm backgrounds? At what point to clients need to get into the driver’s seat and drive technology, alternative fee arrangements and the like? What increased level of service do you get at the increased rate? Aren’t those rates in the Midwest (say, for example, St. Louis) starting to look good these days?
Make sure that you notice the associate rate increases mentioned in the article.
There is good news in this article, even beyond the invitation it gives you to shop around your work that doesn’t need to be done at the highest-priced firms. Here’s the quote from Joel Henning of Hildebrandt International you will want to ponder carefully:
“Lawyers tend to be terrified of losing clients because of increased rates.”
This is so true. Clients will want to ask for special treatments and discounted hourly rates as a matter of course. The odds are great that you will get them. You can thank me for this tip when you see how easy it is to save some money on rates. That still leaves the issue of the number of hours spent, but we can save that topic for another day.
Reed Smith reported the highest partner hourly rate – $875 per hour – although you will notice that the firm uses an interesting “it depends on what the meaning of dollars is” argument about this rate. Although blogging fans may think that blawg (and Blawg Channel) favorite and all-around great person, Denise Howell of Reed Smith, deserves to be the firm’s highest compensated lawyer, it appears that the $875 does not reflect her hourly rate, so hourly rate bargains for top lawyers are still available even in this market.
[Required humor warning and disclaimer for lawyers: the previous paragraph is intended to be both a joke and a compliment to Denise, not any type of commentary about the policies of Reed Smith, which certainly has the reputation of being one of the best firms in the US - after all, they were smart enough to hire Denise. I still cannot believe how accomplished she is for someone as young as she appears in the picture on the front page of her blog.]
For what it’s worth, I’m not raising my hourly rate for 2005 and my approach has been to make any rate increases apply only to new clients. I’ll keep my clients on an hourly rate at the same rate that they started with me until they decide that they want to raise them. I’ve always thought it makes sense to do something special for your existing clients, as does Matt Homann.
The bottom line, as I have told many people this year, lawyers won’t move to new technology, KM, alternative billing or much of anything else until clients make them pay a price for continuing to play “business as usual.”