Technology-Lawyer

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 March, 2005

By Request Tuesday – What Are You Speaking About at TECHSHOW and When Are Your Sessions?

Tuesday, March 22nd, 2005

Thanks for asking.
I’ll be speaking at three sessions, all on Friday, April 1, each with a co-presenter with whom I’m really looking forward to presenting.
1. “The Sky is Falling: Disaster Recovery Planning” – John Simek and I will cover the scary and never-quite-comfortable-that we-have-it-covered subject of disaster recovery planning. We’ll give you some ways to try to tackle this beast. 8:30 – 9:30
2. “RSS and News Aggregation Roundtable” – I can’t wait for my first chance to do a presentation with Tom Mighell on one of our favorite topics. This session is designed to be an informal roundtable discussion with lots of Q & A and audience interaction. We’ll do some demos, share some of our favorite feeds and open up the hoods on our newsreader engines. 10:30 – 11:45
3. “The Annotated Technology Use Policy” – Blair Janis and I will take an in-depth look at the hot topic of technology use policies, including a few words on blogging policies. We’ll also take some actual technology use policy provisions apart and show you ways to improve the approach that you take. You do have a policy, don’t you? 2:15 – 3:15
In addition, I’ll be moderating a session on “Where are We Going? Lawyers as Technology Leaders” on Saturday morning that features a stellar panel of Toby Brown, Ron Friedmann and Marc Lauritsen. I’ll probably be talking so many notes that I might forget to do the moderating.
I’ve gotten a “preview” of the presentations for my sessions and I’m impressed – you will learn a lot in these sessions.
[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

BlawgConnect 2005 Update

Monday, March 21st, 2005

The legal blogger dinner in Chicago on March 30 is proceeding on course.
BlawgConnect 2005, sponsored by CaseSoft, Thomson West. LexThink and Mirra, will be the largest assembly of legal bloggers to-date and occurs on the evening before ABA TECHSHOW 2005.
BlawgConnect 2005 promises to be an evening of fun and a great chance to meet other legal bloggers (and some of Chicago’s well-known bloggers) in person.
We are close to filling up the guest list and are looking for one more sponsor. Email me at denniskennedyblog @ gmail.com for info on either account.
Hope to see you there.
[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

The Reverse Perfect Introduction

Thursday, March 17th, 2005

We hear and read a lot about perfecting our “30 second elevator pitches” so we can best explain to people we meet what it is that we actually do. You can take that idea a step further by getting people specific information about what types of businesses you would like them to refer to you.
John Jantsch at the Duct Tape Marketing blog calls that second technique the “perfect introduction” and then flips that idea on its head – a very useful technique I find myself using more often these days – and talks about the “reverse perfect introduction.”
He says:
“To really get the most from this tool, send it out to a list of potential network resources (people who serve the same target market) and ask them to complete something just like it for themselves and send it back to you so you will be better prepared to refer them.”
Isn’t easier to make referrals to someone who is making referrals to you? How often do you miss the opportunity to send business to good referral sources because you simply don’t know what business they are looking for?
[Originally post on Dennis Kennedy.Blog (http://www.denniskennedy.com/blog/)]

Ernie the Attorney on Better Lawyer Pictures for Your Website and Publicity Purposes

Thursday, March 17th, 2005

I hadn’t planned to spend the last few days posting about law firm website practices, but here I am.
Legal blogging pioneer Ernest “Ernie the Attorney” Svenson has written about another practice of law firms on their websites that has a pervasively negative impact on both their marketing efforts and the Internet itself.
I am speaking, of course, about the all-to-frequent practice of posting shockingly bad photographs of lawyers on websites.
There are an almost limitless number of ways firms make mistakes with photographs. Ernie’s comments are right on target.
Suffice it to say, if your portrait on your firm’s website looks like it came out of a surveillance camera as you were startled on a windy day, you might want to think about the message you are sending.
I can tell you from personal appearance that some firms have the guy who photographs accident scenes for their litigators drop by and snap a few headshots and then use those pictures for publicity and marketing purposes.
Ernie suggests a photographer to consider. Let me add a strong recommendation that you consider another excellent photographer who, by coincidence, happens to be married to my wife’s sister. We call him Uncle Dan, but you can call him Dan Donovan. At Dan’s website, you’ll find a nice sampling of his photos, that showcase Dan’s obvious skill, talent and, as someone who has seen tons of Dan’s family pictures, artistry.
Several years ago, I had an article published in a magazine and they sent a photographer over to take some pictures of me for the article. I was disappointed with the picture they chose, but, hey, I had gotten an article published with my picture on it. I showed the article and picture to Dan and I could tell he was underwhelmed.
He called me the next day. He said that the picture had bothered him so much that he wanted to shot a set of pictures of me that I could use in the future and that he would use in his portfolio as he moved toward doing more corporate portraits.
I was so pleased with those pictures and with what Dan was able to create. My blog picture comes from a more recent session we did for another magazine spot.
You will not find anyone more professional to work with than Dan and by the end of the session, you’ll have the feeling that you are working with an artist. That feeling will be confirmed when you see his pictures.
I’ve recently been to an awards event and seen a “one hundred faces of . . .” magazine cover where I was shocked by the pictures that people allowed to be used in these places.
Having a publicity picture that you like and you get compliments on is great thing that almost cannot be appreciated until you experience it.
Here’s your assignment for today:
Take a look at your photo on your website and your standard publicity photo.
Take a look at the pictures Ernie points you to and at Dan Donovan’s portfolio shots (by the way, it is OK for lawyers to have color pictures, so don’t just look at Dan’s black-and-white portfolios).
Take another look at your current photo.
If you are a managing partner or a marketing director of a firm, repeat the process for the rest of the pictures on your website.
Let your feelings percolate.
You’ll know what you need to do. Now you have a couple of choices about what to do. If you contact Dan, tell him I sent you.
[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

In Case You Didn’t Appreciate How Difficult Ethical Rules (and the Would-be Interpretations of Them) Make it for Lawyers to Use the Internet Like Normal Human Beings

Wednesday, March 16th, 2005

Legal Internet guru Jerry Lawson points to an article called Thwarting Ethical Violations With Web Site Disclaimers by law professor Walter Effross.
I had a bit of a sense of deja vu because, although Jerry doesn’t mention this, he, Brenda Howard and I wrote an article that covered some of the same territory a few years ago. Interestingly, and this is a rare occurrence, I still have the same disagreements with Jerry on a few points that I had in that article.
So, I find myself in the unusual situation where I will be quoting the same language from Professor Effross’s article as Jerry does, but drawing a quite different conclusion.
The topic is email, in particular the practice of law firms of actually allowing visitors to their websites to send email to lawyers from the website. Just to be clear, we are talking about the use of email links on websites, a practice used by roughly 100% of websites that expect any kind of interaction with customers.
Here’s the money quote and the text for our lesson today:
In this context, it might be an ethically questionable practice to allow visitors to e-mail the firm’s attorneys directly through an e-mail link featured on the site (for instance, on an attorney’s individual page) without interposing a click-wrap box that contains such warnings as those above, and requiring the visitor to click “I agree” before actually composing and sending the e-mail. The box could also specify the jurisdictions in which the attorney in question is licensed to practice, and could state that visitors from other jurisdictions should not contact that attorney for representation. One firm states in such a click-wrap box, “Our policy is not to return e-mail regarding a specific legal matter from anyone who has not already engaged the firm.”
Even if such click-wrap boxes appear when a visitor attempts to send e-mail to an attorney through the site, the site should not display the attorney’s e-mail address, since a visitor could merely write it down or cut and paste it into the address line of an e-mail form generated by the visitor’s own e-mail program, and thereby avoid the warnings entirely.

I’ll note that these paragraphs are written without any sense of irony and without any suggestion that making phone numbers available in phone books MIGHT BE EVEN MORE DANGEROUS, especially since we cannot yet interpose a clickwrap agreement on phone calls. Giving out a mailing address would, of course, raise the same concerns about regular mail, especially since a firm could not paste disclaimers on all mail boxes.
I point out these paragraphs not to be critical of Professor Effross, even though I disagree with him on these particular points, but to illustrate the types of things a lawyer who wants to use the Internet in any kind of normal way routinely faces because of interpretations and commentary on the current ethical rules and the lack of guidance out there.
The concern about these kinds of emails is grounded in legitimate concerns about whether an attorney-client relationship can be initiated through the sending of an unsolicitated email, confidentiality and related issues, and Professor Effross does a great job of summarizing those issues in a way that those who are not lawyers can understand and appreciate.
However, there is a difference between reasonable approaches to dealing with these concerns and the point of view out there that seems to require that lawyers place walls, moats and barriers between themselves and the public or else risk violating ethical rules.
But that’s not really my point in this post. With a few exceptions, at least in my opinion, Professor Effross’s article is an excellent summary and analysis of the mind-numbing number of issues lawyers who have websites have to deal with and address, almost all of which run contrary to any normal notion of usability of a website in the eyes of normal humans.
I encourage everyone, lawyer or not, to read the article and see the restrictions and recommendations. Count up the number of disclaimers that may be required and what all a lawyer might be expected to disclaim. Look at at the hurdles a lawyer might well be expected to jump over. Substitute phone calls or even meeting someone on the street for email and consider what the implications would be if the same rules applied in those situations (arguably they do) and the fiction that “email is different” no longer is accepted as a basic assumption.
Here’s my favorite passage that illustrates the lengths some law firms go, and some commentators seriously expect lawyers to go, with respect to the simple act of placing articles on a website:
In addition, a number of terms-and-conditions pages indicate that the material on the corresponding sites is provided “as is,” and is not necessarily accurate, complete, or updated. Firms have also disclaimed both express and implied warranties for the information provided, including the implied warranties of merchantability, fitness for a particular purpose, and noninfringement. (One firm even extends this disclaimer to the biographical and bar admittance information about its lawyers.)
It would certainly be more effective not to confine such warnings to the terms-and-conditions pages, but instead to repeat them on each page of the site that links to such articles, or to install a click-wrap screen that pops up when the visitor clicks on such links. The disclaimers could also be embedded conspicuously in the pages containing the articles themselves, since these pages might be cut and pasted into a computer file, saved in their entirety as computer files, printed out, or bookmarked on the visitor’s Internet browser. The visitor might also e-mail to a colleague the web address of that particular page, allowing the colleague to reach the page directly without passing through a click-wrap screen.
In addition, a firm could add to each web page containing an article or flyer the date when the document first appeared, as well as an indication of whether and when the version on this site has been updated. Warnings that this information is not offered as legal advice and that it may not reflect the current state of the law could also appear on each of these pages.
If a site indicates a date on which it was last updated, care should be taken to warn visitors that not every page in the site was updated at that time. Perhaps separate update notices could be put on each time-sensitive page.
Firms might also consider adding to each of these pages, instead of relegating to the terms-and-conditions page, the statement that views, perspectives, or conclusions espoused in articles, speeches, or client alerts featured on the site do not necessarily reflect the views of the firm or of any of its lawyers or clients.

Well, who else’s views might they reflect?
I’d love to see Jakob Nielsen analyze the usability of websites that adopt all of the practices set out in this article.
I’ve had a website for nearly ten years and I swear to you that the guidelines and rules for lawyers with websites are less clear now than they were even ten years ago when all of this was new.
As I have long said, if I ever leave the practice of law, I’ll point to issues like these as a big part of what drove me out.
By the way, I have not yet heard whether the proposed legal marketing rule changes in Missouri, which arguably prevent lawyers from using email in any meaningful way to communicate with non-clients, have been enacted or not.
[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

The Winning Entry in the Blog Dinner Naming Contest is . . .

Wednesday, March 16th, 2005

We got a surprisingly large number of entries in the naming contest for the March 30 Chicago blogger dinner event thing. Many people submitted the same ideas.
We determined that some names, like BlawgFest and Blawgapalooza, although good names, had the connotation of day-long events. Other names were quite clever, but too long. A few names ran the risk of confirming what many people feel is the inverse relationship between lawyers and creativity.
Interestingly, our winner has chosen to honor the roundly-criticized practices of law firms who have decided to scrub any traces of contact information or biographies of their associates from their websites. Our winner has decided to remain anonymous, perhaps out of fear that he or she was spending time in something other than the pursuit of billable hours.
Oh, yeah, almost forgot. The official winning entry in the naming contest is:
BlawgConnect 2005.
Mark your calendars accordingly. Let me remind that the rules expressly prevent any complaining about the decision of the judges.
[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

By Request Tuesday – My Favorite Question of the Week that I’m Not Answering

Wednesday, March 16th, 2005

“Who are you and why are you spamming me?”
Perhaps email is no longer a method that you will want to use to send announcements to people who don’t know, or don’t remember, who you are?
By the way, using this line in a reply to an email probably will kill any chance of getting referrals of business in the future from the person who sent you the email.
[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

By Request Tuesday – Will Evan Schaefer Ever Be Able to Work at a Big Law Firm Again?

Tuesday, March 15th, 2005

Many people do not know that Evan “Notes from the (Legal) Underground” Schaeffer and I both live in St. Louis and once worked, although at different times, for big law firms.
The difference between us is that, after Evan’s post on the practice of some big law firms of “scrubbing” their websites of the biographies and contact information of associates, I at least have some chance of being able to work at a big law firm again, while Evan might have blown his last chance. Not that Evan really cares about that.
You see, Evan returned home fresh from a vacation in Prague and was hit with the disturbing story of the “associate scrubbing” practices that gained so much attention lately. His take on the topic, which illustrates why I’ve long said that Evan is the legal blogger most likely to end up writing for television or movies in the near future, is an instant classic, even though some might think that he “pushes the envelope” in his tale of the future of these types of practices.
I, for one, think that his description of law firms continuing to make dead associates meet a 2,400 minimum billable hours requirement is way over the top and quite unfair. At most, law firms would only make a deceased associate’s estate pay the fines for not turning in time sheets in a timely fashion.
I’d also like to thank Evan for again leading the way in showing that lawyers can use the “f-word” in their blogs. I can’t remember if Evan was the first (there have been several instances over the years), but I’m grateful to Evan and the others that have shown that it can be done.
I’m still too uptight to go in that direction (or maybe I haven’t found the right opportunity yet). Heck, the farthest I’m willing to go is to link to Mark Pilgrims’s classic quote on the difference between personal and corporate blogs.
[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

By Request Tuesday – Is it Really True that You Are Considering Turning on the Comments on Your Blog?

Tuesday, March 15th, 2005

Now, where did you hear that? It’s like someone inside my own head asked that question.
I actually am reconsidering my position on comments. Of course, reading another story about someone getting 1,000 comment spam in one day did have a negative impact.
I recently had someone suggest that DennisKennedy.Blog might not really be a blog (despite my apparently unschooled belief to the contrary) because I have chosen not to enable comments. I also recently saw a scoresheet for determining if a blog was really a Blog and began to wonder whether, even though I call this a blog, act like it’s a blog and, after all, generate it by means of “blogging software,” I really have a blog after all.
I believe that Dante had walled off a special section in Hell for people who create complex definitions and run around looking for ways to enforce them and cry foul on others. So, to the definitionists I say, you win, I don’t really care whether I meet your definition of blog or not, I’ll just do my own thing and you can ignore me and keep me off your lists. I can live with that.
Anyway, that suggestion had nothing to do with me thinking of enabling comments.
As I’ve done the “By Request Tuesdays,” I’ve started to wonder if I might do a companion feature like “Here’s My Question Thursdays” where I would throw out some of the questions I have (e.g., will someone ever figure out a solution to the non-opening of javascript windows on certain web pages in both IE and Firefox? why do cable channels show the same movies every weekend? what in the hell was going on in the heads of the MI5 producers when they eliminated the three main characters this season and turned the show into a nearly incomprehensible mess, or am I just missing something?). I wondered whether turning on comments for those posts might be a good addition to the email option.
Also, in the recent blogger dinner naming contest, I began to wonder whether letting people submit names as comments might have produced better names as people saw the other submissions and reacted to them.
So, I have begun to toy with the idea of enabling comments for certain posts. However, according to the blogger definitionists, I might have some other priorities to address first if I want to continue to think that I am actually blogging, so the comment enabling experiment might not happen for a while.
[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

By Request Tuesday – Have You Considered This Approach to Monetizing Your Blog?

Tuesday, March 15th, 2005

Here’s the question in, more or less, its entirety:
“What if you agreed to do product, service, or publication reviews on which you were contractually guaranteed payment regardless of what you wrote, and guaranteed the right to write whatever you thought? You could link your reviews to an explanation of this arrangement (e.g., “click here for my policy on reviews and product endorsements”).
Alternatively, where you have already independently made positive mention of a product (like I believe you said FeedDemon is your preferred newreader), what’s the harm in an unobtrusive paid linked endorsement on your blog (“I use FeedDemon to monitor 523 different blogs and news sources every day!”)
People know to take “celebrity” endorsements in other media with a grain of salt; why not the same with bloggers, particularly if not placed in the body of the blog like an infomercial?
And your deal could include speaking engagements on [a general, but related, subject] in which you use [the endorsed product] for demo screenshots, mentioning that you use it personally and receive some compensation from them, but there are other good choices, perhaps even including a handout with urls for competitors.”
ANSWER:
I like it, I like it.
A few months ago, I was moving strongly toward an “ads in feed” model. However, I had a few conversations that have made me pull back and rethink that approach.
My gut feeling is that an advertising or sponsorship model is not the best model for bloggers (but, by default, it might become the only model, like it or not). Lately, I’ve been thinking of something more along the lines of the sports/entertainment model, perhaps a blend of endorsement, relationship, appearances, speaking, preparing white papers and the like that results in the possibility of a substantial payment to the blogger and visibility and marketing value to both blogger and the company involved in the deal.
Obviously, disclosure of this type of relationship is vital, but disclosure on a relationship of this type is easy to do and pretty straightforward. It’s not a subtle issue where people might disagree about whether disclosure is required (company X gives you a free copy of its $19.95 software, company Y gives you a gift of a DVD of North by Northwest, you own 100 shares of company Z in your retirement account, a political party pays you to promote a candidate in your blog). If you don’t disclose and people find out (any you are dreaming if yu think that they won’t), your credibility will take a serious hit.
I think that there is some promise in the types of arrangements described in this thoughtful question (which wasn’t even written by me). I’m curious about what others think about this approach. By the way, if you are a company interested in pursuing this type of arrangement, I’m all ears.
[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]