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. 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, 2005

A Phishing Primer from Dave Pollard

Wednesday, December 21st, 2005

You can never learn too much about the real dangers of the Internet. I mean, of course, things other than reading too many blogs or too few blogs.
Dave Pollard has posted an excellent primer called “The Phishing Menace” on one of those dangers – phishing. Phishing uses a combination of technology and social engineering to try to get you to give up personal and financial information that can and will be used in ways that you will not like. Pollard’s post will educate you on the basic safety principles and point you to some useful resources.
The money quote:

Phishing, by contrast, is not annoying, it’s dangerous. It’s not overzealous promotion, it’s crime: fraud and theft. It is also, currently, harder to filter, and becoming more sophisticated.

Highly recommended.
[Originally posted on DennisKennedy.Blog (]
This post brought to you by Dennis Kennedy’s legal technology consulting services, featuring RSS and blogging consulting, technology audit, strategic planning and technology committee coaching packages especially for medium-sized law firms (15 – 100 lawyers) and corporate legal departments. More information on the “Second Pair of Eyes” packages for legal technology audits and strategic planning may be found here (PDF).

Why Lawyers Don’t Choose (or Use) Case Management Software – Article

Tuesday, December 20th, 2005

[NOTE: This is another in the series of repostings of my previously-published articles. This article was written in 2000. Because I think that there are many experts on case management software, I've rarely written on the topic of case management. This article is one of those occasions. It takes a high-level view of the topic and does not delve into specific programs, because, as I said, other people can do that much better than I can. Today, I'm interested in ASP (application service provider) approaches to case management and the integration of project and workflow management into case management tools.]
Why Lawyers Don’t Choose (or Use) Case Management Software
Take a minute and try this exercise: add up the time you spend looking for files, looking for misfiled information, designing filing and calendaring systems and digging through the rubble on your desk in the average day. (As a starting point, the average person spends sixteen minutes a day just looking for lost items.) Multiply that by the number of days you work in a year. Multiply that times your hourly billing rate. Ponder that amount.
Lawyers spend an inordinate amount of time looking for information and attending to administrative details. And, if true is money, lawyers should be adopting ways to decrease the amount of unproductive time they spend.
If there were a way to keep your files constantly accessible to you and your staff, to organize your client information, to reduce paper and clutter, to streamline intake and retrieval of information, to generate reports that give you meaningful information about your practice and to keep information at your fingertips, you would probably stand in line to sign up for it. Case management software offers all these potential benefits, and more.
Yet, after many years, many seminars and many consultants, many lawyers and law firms have not adopted these programs.
Let’s consider the reasons that lawyers give for not using case management software.
1. “I Don’t Know What It Is.” I’ve been surprised by the number of lawyers who have told me that “Someone told me that I need case management software, but I really don’t know what it is.” Part of the reason for this is that the term “case management” has a litigation feel to it and non-litigators struggle a bit with the concept. Think of it as “practice management” or, better, “matter management.”
Every lawyer has some find of system for dealing with ongoing matters and dormant or closed matters. Typically, that system involves file folders, filing cabinets and papers stacked in piles on their desks and in their offices. Information retrieval typically involves memory, knowledge of an individual filing system, a byzantine numbering system, and lots of scrambling around to find items.
Case management software automates that administrative process. It makes information available to people who do not physically control the file, makes it possible to update and modify information easily, and, most important, makes it easier to find information quickly when you need it. In the more sophisticated programs, you can also integrate timekeeping, billing, accounting and even document management into a single package.
As a result, accessing the case management program when a client or opposing counsel calls can immediately bring to your computer screen the information you need to address the issue at hand.
2. “It Costs Too Much.” I’ve heard this comment from lawyers about programs costing $295 as well as about programs costing thousands of dollars. I’m sympathetic to it because I’ve noticed that most firms have had at least one horrendous, money-wasting experience with technology in the last ten years and are, for good reason, gun shy.
Focusing solely on the costs of the program, however, is the wrong approach when considering case management software.
Instead, you will want to analyze this software requires on a “return on investment” basis. If you bill on an hourly basis, your income is limited by the number of hours you can bill. If you use value billing, the more efficiently you can work, the more profit you’ll make on each transaction. In either model, recovering lost or unproductive hours will bring you a meaningful return.
On a conservative basis, cutting in half the time you spend simply looking for lost documents alone probably recovers $5,000 of time per year for the average lawyer. Case management software also offers other efficiencies and the costs and benefits can be quantified. You can make a meaningful decision based on how long it will take for the software to “pay for itself.” In firms of 50, 100 or more lawyers, these economics will involve large, meaningful numbers.
Not surprisingly, lawyers starting a firm clearly see the benefits of a case management solution. If a solo can use case management software to help run a practice and avoid hiring a secretary (or can hire a paralegal who is billable rather than a secretary), those savings alone may make for an easy decision. In larger firms, simply reducing or holding the line of staff hiring may economically justify a move to a case management system.
3. “It’s Too Complicated.” I recently watched a demonstration of two case management programs for small firms in which the ability to enter information in six different ways was touted as a great feature. Wrong! Giving lawyers too many choices results in a training nightmare. Lawyers want to be able to use a program easily, to access the information they want simply and not be confronted with a computer screen that looks like the controls of an F-18 fighter jet.
Consultants and sales reps are too often guilty of describing an overwhelming vision of case management – all documents scanned, no paper, no filing cabinets, client files appearing on your screen as you pick up the phone. This overemphasis on the “gee-whiz” simply overwhelms many lawyers who see instead a future in which they are constantly trying to learn how to drive the software and never practicing law.
Each lawyer, however, if he or she thinks about it, can identify one to three administrative issues that, if they could be made available or eliminated, would dramatically improve his or her practice. Some examples: having accounting and timekeeping information immediately available when an opposing counsel calls with a settlement offer, having a list of all cases involving the same opposing counsel, judge or arbitrator, having a chronology of all contacts with a client readily available, or having the ability to do a mailing to all clients whose wills are older than two years.
Many case management products produce exactly this result and often give you the ability to enter data about a client or individual once and have it appear in a firm address book, in time, billing and accounting and in case and matter management. You do not need to make changes in 3 or 4 separate programs.
That simple feature really sold me and has sold many others. The point to remember: focus on your needs, not on the bells and whistles. In many cases, less is more and simpler is better. If the program can do the one or two things that you think are most important in a simple enough fashion, you probably won’t find the program very complex after all.
4. “It Doesn’t Match My Needs.” Last year at the ABA’s TECHSHOW (2000), I counted 25 vendors who offered some form of case management software. Some were general packages. Some were designed for small firms and some for large firms. Some were designed for specific practice areas or types of firms, such as plaintiff’s personal injury firms.
Unless you work in a specific practice area that may be covered by a particular product or two, it is difficult to evaluate choices meaningfully. As I’ve mentioned the term “case management” lends itself to the work of trial lawyers and you may notice that some programs take that approach. If, for example, you do estate planning, “matters” really won’t mean much because every client has the same matter. A demonstration of the software that focuses on the features of the software rather than its benefit to your practice will leave you with the feeling that the software is not for you.
Some case management software allows for a degree of customization. In addition to reading reviews and talking to others who use the product who have a similar practice, the ability to do some customization should be an important factor. If you also do a good job of identifying what the program can do to help you in your practice and insist on finding a program that will do that, I think you’ll find programs that do meet your needs.
5. “I’m Too Busy.” Time is money, after all. And why are you so busy? If the reason is because you are looking for documents or practicing in an inefficient matter, you may want to make some time to consider case management. For example, do you routinely work ten and twelve hour days that result in six to eight billable hours?
If you are too busy because of workflow, then case management software can really help you in handling that inflow of new work. Because case management information can be accessed remotely or even transferred to a Palm computing device, some lawyers have found that the software can help them avoid going to the office on weekends.
Again, the issue is one of identifying the barriers that keep you from working well and seeing if case management software can help you on those specific issues. Sometimes the simper changes can bring the biggest benefits.
6. “The Software Will Govern My Life.” You may have even experienced this at home with Quicken. This reaction is a reasonable one. After all, for better or worse, you have developed a system of organization that’s gotten you to where you are today. You want to practice law, not organization.
Sometimes I’ve found that this reason masks another reason. Lawyers can be embarrassed by their lack of technological savvy, the mayhem that passes for a “system” of organization in their offices or their utter dependence on a secretary who knows the system. In fact, it’s interesting to see how the possible loss of a long-time secretary motivates lawyers to consider case management software. You will get your best results if you analyze your current methods as part of introducing case management software.
Another legitimate concern is the amount of time it may take to convert existing systems and transfer data into new case management software. Won’t you be running a paper system and a computer system in parallel, at least for a while? Consider these issues in your return on investment analysis.
Finally, the closer a case management software program can mimic or adapt to your existing methods, the better a candidate it is for you. Again, customization may be an important consideration and worth additional expense. Your software should help you practice law better, not make you an expert on using the software.
7. “I’ll Lose Money If I’m More Efficient.” The villain here is hourly billing practices. What if I become 20 to 40% more efficient? Won’t that simply mean that I’ll make 20 to 40% less per year? Why would I want to do that?
Clients have not yet started to make lawyers pay for inefficiency. That tide is turning. As we see the rise of non-traditional competition and competition from law firms leveraging technology, there will be increasing downward pressure on the fees charged for standard legal services.
Case management software offers ways to deal with a higher volume, lower margin practice. It also can help you use information you have to strengthen personal relationships with clients (e.g., your software automatically reminds you of a client’s birthday or gives you a list of clients you haven’t talked with for over 6 months) or to track and identify sources of new clients (e.g., what clients reported that they came to you because of an ad you placed). A decision to use case management software will force you to look at your billing practices and what the alternatives are.
More important, this objection is based on the assumption that the time savings you find will eliminate billable hours. In fact, it’s likely to eliminate non-productive time that probably was not being billed anyway. How often do clients get a statement with an entry like: “tore apart office looking for piece of paper that had notes regarding bank accounts; finally found it buried in papers on desk after third try: 3.5 hours”?
Conclusion: There is a grain of truth in most of the common objections to case management software. On closer examination, however, the objections tend to dissolve. If you can focus on your most important needs and the simplest steps that will bring you the most benefits, case management software will bring you meaningful and measurable business results and financial benefits. That’s the whole point for bringing technology into your practice. Take a look at the programs out there today and what there capabilities and strengths are. Identify what your needs are. Then look at case management software. Your life may get a little easier.
[Originally posted on DennisKennedy.Blog (]
This post brought to you by Dennis Kennedy’s legal technology consulting services, featuring RSS and blogging consulting, technology audit, strategic planning and technology committee coaching packages especially for medium-sized law firms (15 – 100 lawyers) and corporate legal departments. More information on the “Second Pair of Eyes” packages for legal technology audits and strategic planning may be found here (PDF).

My 2006 Legal Technology Predictions Article Published on

Monday, December 19th, 2005

In what’s become a tradition with me, I’ve written my annual legal technology predictions article. This year, the article is titled “Dennis Kennedy’s Legal Technology Predictions for 2006: Small Steps for Most Firms, Giant Leaps for a Few Firms” and it was published today as part of another excellent issue of
For a number of reasons, I think that this will be a wait-and-see year for many law firms, and that approach will not be unreasonable. At the same time, there are many opportunities for innovative firms to separate themselves from the pack, especially if they discuss these opportunities with their clients. For the details, I encourage you to read the article.
As I’ve mentioned on many occasions, is an excellent resource that everyone should know about and it’s my favorite place to publish my new articles (that is, the ones I don’t write on commission). I recommend that you add to your favorites and/or subscribe to its RSS feed.
[Originally posted on DennisKennedy.Blog (]
This post brought to you by Dennis Kennedy’s legal technology consulting services, featuring RSS and blogging consulting, technology audit, strategic planning and technology committee coaching packages especially for medium-sized law firms (15 – 100 lawyers) and corporate legal departments. More information on the “Second Pair of Eyes” packages for legal technology audits and strategic planning may be found here (PDF).
legal technology

Outside Counsel / Inside Counsel Partnering Through Technology – Article

Monday, December 19th, 2005

[NOTE: This is another in the series of repostings of my previously-published articles. This article was written in 2002 in connection with a presentation I did on "client-driven technologies." I became quite intrigued with the DuPont Legal Model and other efforts that I thought would change the nature of the practice of law. This article was written from the perspective of law firms. Today, I'd be more likely to take the point of view of the corporate legal department. Most of the same principles still apply today, although perhaps with a bit more urgency.]
Outside Counsel / Inside Counsel Partnering Through Technology Toward the Virtual Law Firm
Fifty-five percent of corporate legal departments considered firing one or more law firms in 2002, down slightly from 62% in 2001. The leading reason, by a significant margin, was “lack of responsiveness.” Add Enron, pressures to cut legal costs on the part of clients, increased rates and demand for billable hours on the part of law firms, and increasing movement of lawyers and law firm mergers to this mix and you get a volatile situation.
Both law firms and corporate legal departments desire stable relationships where work can be done at a high level, responsively and in a way where law firms can be profitable while a corporate legal department can control costs.
There have been a number of significant efforts at “partnering” between corporate legal departments and their core law firms to create these types of stable relationships. The classic example is the famous “DuPont Legal Model” developed by DuPont and its outside law firms beginning in 1992. The DuPont Legal Model grew out DuPont’s attempt to reduce the number of law firms it used (then over 300) to manageable number (currently 35) and, in the process, take advantage of a variety of techniques to improve the delivery of legal services.
The core elements of the DuPont Legal Model are (1) a business focus on DuPont’s legal issues, (2) an ongoing work process reengineering, (3) a commitment to cutting-edge technology, and (4) a shared culture of efficiency and cost control.
All lawyers who have corporate clients would be well advised to meditate upon these four elements.
Among other things, the DuPont Legal Model has resulted in the creation of the DuPont Primary Law Firm Network, an early form of a “virtual law firm,” a collaborative team of law firms and service providers who are willing to and do work together. DuPont believes that the next step beyond simple “partnering” is the collaborative work team and that turning partnering relationships into collaborative work teams offer great value.
Consider this description of a “virtual law firm” ( [Note: link no longer works – unable to find new link to white paper):

The virtual law firm connects lawyers electronically and culturally. Through the use of applied technology, such as extranets, integrated case management software, computerized databases, electronic invoicing software, document imaging, cell phones, personal digital assistants, and trial presentation software, team members in different geographical locations can perform legal work efficiently and cost-effectively in a shared environment. But this technology still depends on the human element and on the willingness of committed participants to implement and use it constructively in furtherance of an articulated vision and clear goals. In a virtual law firm, participants must share a common culture.

This description raises many issues and is an excellent basis for your discussion of this topic. I also want to emphasize this comment from DuPont's white paper:

"Without the benefit of sophisticated technology, neither the concept of the virtual law firm nor the DuPont Legal Model could exist."

This article will focus on the technology side of moving to partnering then to collaboration and to virtual law firms and perhaps beyond. There are also very difficult issues raised by taking these steps, competitively, economically, culturally and otherwise that also deserve very serious deliberation. I want to sketch out some key questions for you, some areas worth exploring more and some practical tips for getting started or moving forward.
1. Ask Your Clients. A recent survey indicated that over 90% of corporate general counsel would respond to surveys from their law firms. A tiny fraction of law firms use client surveys. Are there clients with whom you can extend existing relationships by means of technology or current technology cooperation into greater partnerships? Are they aware of initiatives like the DuPont Legal Model? Might they be considering such initiatives without including you in the discussion?
2. Listen to Your Clients. I have heard many stories of companies all but begging their law firms to cooperate on technology. Note that the number one reason law firms get fired is lack of responsiveness. If you survey clients, you must follow up. Find out where they want to go, what their priorities are and what they want to accomplish with their legal services. Of course, you will want to get a clear idea of where you fit into that picture. A very important lesson from the DuPont Legal Model is that clients are not necessarily adversarial with their law firms. Cost cutting may not be the primary concern and companies are willing to explore creative fee arrangements that may be more lucrative for law firms while maintaining a more stable relationship. Don't assume; ask.
3. Learn The Playing Field. You cannot move very far toward implementing client-driven technologies if you do not know what technologies and capabilities your firm has or can obtain. It is rare to find a firm that is using or is even aware of all the capabilities of its software and systems, let alone to find lawyers and firms who have a good understanding of all the new developments in legal technology. In addition, it is vital to understand what software and technologies your clients use for their own work and how they would prefer to interact with you. You might use surveys, meetings with the client or meetings between IS people to compare notes on what software and systems are used.
4. Find Ways to Cut Costs and Improve Profits. How much good will it do you to have your client telling peers and colleagues that his or her lawyer actually came to him or her with a way to cut legal costs? Likely areas of potential include identification of lower level work that can be commoditized or value billed, improved communications, hosting databases or eliminating the need for duplicate systems. Consider the issue of electronic billing. Corporate clients are bemused by law firms' reluctance to move to electronic billing. They see electronic billing as a way to streamline procedures and cut their own costs while at the same time improving the cash flow of their law firms by speeding up the payment cycle. Isn't this win-win? It is certainly worth taking the time to consider fully.
5. Get IS Departments Talking. Exchanging ideas and creating good relationships between your high-level IS people and the comparable client IS people will ultimately be a key to any successful efforts in this area. Do they know each other now? Do they meet with each other? Can you facilitate that in constructive ways? This effort will help resolve existing problems, result in shared knowledge and set the stage for more extensive efforts.
6. The Extranet Family. A key concept in collaboration has been the use of private, shared web sites commonly known as extranets. Extranets can take many forms – information portals, access to files and communication, case monitoring, document libraries and virtual deal rooms. It is important to realize that clients do not need the same features or even a full-blown extranet. A virtual deal room that simply gives access to documents in a case or transaction may be a perfect introduction to the use of technology for both a firm and a client. The time and cost savings of not Fedexing documents can be a measurable means of showing return on investment. Another idea gaining some momentum is the "project portal," an extranet dedicated to the work and resources in connection with a particular project.
7. Apply the 80/20 Rule. The 80/20 rule definitely applies in this area. The idea is that, as a general matter, 20% of your efforts will get you 80% of your results. You want to identify and act on that 20%. Which ideas make the most sense in your current context? From your point of view, which initiatives will best address the common reasons law firms are fired (improving communications to avoid "lack of responsiveness" issues) and hired (how can you show your expertise and understanding of the client's business?)? Do these initiatives cut costs or enable creative billing approaches? Do these approaches connect the client to you and make it harder for the client to leave? Are these approaches useful to other clients? Finally, are they responsive to your client's own list of priorities?
8. Make a Plan. Obviously, these kinds of initiatives cannot be done on a "back of the envelope" basis. Written plans are appropriate. In this case, educating your client is a form of marketing. Implementing the systems may an element of firm survival with a client in addition to solid marketing. The more you show your knowledge of the options, your familiarity with what others have done and the benefits for your client in the form of a well-conceived plan, the better shape you will be in. Part of any plan should be a method of measuring results.
9. Make it Reusable - Think Different. Some of the initiatives you take can be reused. Some aspects might even be licensed as moneymakers for your firm or even sold as products, either by your firm or jointly with a client. Be alert to intellectual property issues and opportunities, as well as reusable methods to implement similar projects for other clients. Databases of knowledge and expertise may also serve you well in the event of departures from your firm.
10. Make it Sticky. Stickiness is a term that is sometimes used in connection with web sites. It refers to a site's ability to keep a visitor on the site for a significant time and to visit multiple pages. By using technology to address key concerns for clients and to make it easy for them to work with you, you can also create a "stickiness" in working with your firms and your systems. As a result, you increase the costs and effort for a firm that wishes to take a client form you.
Conclusion. The DuPont Legal Model began in 1992. More than 10 years later, DuPont and its primary law firms are still working out the model for a virtual law firm. It is not realistic for you to expect that you can jump immediately into a virtual law firm model. For one thing, the cultural and economic issues alone are too complex. But you can definitely take advantage of opportunities to collaborate with clients to put down the technological underpinnings that can lead to such a model and, in the interim, provide significant benefits for both law firms and clients, including, in some cases, allowing your firm to survive and do work for its biggest clients. If you do not address these issues, your clients may dictate the answers for you, and, lately, that may mean that they think about firing you.
Ten Practical Tips for Technology Partnering Initiatives.
1. Educate yourself. My web page at is a good starting point. But it takes a lot of work to get up to speed on technology alternatives. Hiring appropriate expertise may be desirable in many cases.
2. Thoroughly understand the DuPont Legal Model. Your clients may approach you about the DuPont Legal Model before you approach them. They are reading about it and hearing about it in seminars. A great resource is
3. Send a survey. Statistics indicate that the vast majority of clients are willing to respond.
4. Listen to what your clients are already saying to you about technology. Lack of responsiveness is the major reason law firms get fired.
5. Give your clients new ideas to think about. Clients cannot know everything that is available. Give them some great suggestions. Clients appreciate creative solutions. Be the first to mention the ideas.
6. Get the right people involved. Are you the right person for this initiative? Who is? What role will your IS department play in the initial phases? I suggest that a high-level IS person be involved at the earliest opportunity.
7. Facilitate relationships between your IS people and the client's IS people. Here is a simple test. Ask the head of your IS department how many of the heads of clients' IS departments are in his or her contacts list. I bet it is too small a number. Are there ways you can get IS people to get together on a regular basis. Presentations by your IS group to client IS groups may make sense.
8. Find creative ways to control costs. Clients like law firms that are creative. They are also under pressure to control legal costs. Technology may allow you to show you are good at both. Controlling client costs is different from cutting your fees and profits.
9. Use technology initiatives in a way to increase the costs for a competitor to steal your client away.
10. Lead, follow (closely) or get out of the way.
[Originally posted on DennisKennedy.Blog (]
This post brought to you by Dennis Kennedy’s legal technology consulting services, featuring RSS and blogging consulting, technology audit, strategic planning and technology committee coaching packages especially for medium-sized law firms (15 – 100 lawyers) and corporate legal departments. More information on the “Second Pair of Eyes” packages for legal technology audits and strategic planning may be found here (PDF).
Client-driven technology

Just a Reminder about Getting Permission Before Reproducing My Posts on Your Blog

Saturday, December 17th, 2005

I noticed this week that my recent posts were regularly appearing on a site at the domain name. I’m talking about my full posts, not just excerpts. In at least one case, another blogger linked to a post on that domain, thinking they were linking to my post.
Let me make it crystal clear that I have nothing to do with the site.
Just to make the obvious even more clear, you will need to get my permission, which I usually grant, to reproduce and reuse my posts in a manner that goes beyond fair use.
I’ll also note that there has been a growing growing amount of comment and concern about instances of blogs “repurposing” content of other blogs to take advantage of ad programs. At an extreme end of the spectrum is a phenomenon known as “splogs.” Steve Rubel has some posts on the topic of splogs and related matters here, here and here. I definitely recommend that you read these posts (and the comments) and think carefully how you use posts from other blogs, whether they explicitly have a Creative Commons or other license, or whether they are silent on the issue of licenses and permissions. It’s a good idea to familiarize yourself with the basic concepts and recent developments in fair use on a regular basis. As a reminder, I have specifically chosen not to use a Creative Commons license on this blog even though we use one on the Between Lawyers blog.
Interestingly, Frederik Hermann has, with more than a bit of irony, suggested that maybe blogs that mirror or echo your posts might be a backup source in case you have a problem with your blog.
One of the reasons I place the “originally posted on DennisKennedy.Blog” note at the bottom of each of my posts is to try to be sure that some kind of attribution stays with my posts if they are harvested and repurposed.
It will certainly be interesting to see where, if anywhere, this post gets automatically reposted. That also will have more than a bit of irony, to say the least.
[Originally posted on DennisKennedy.Blog (]
Like what you are reading? Check out the other blogs where I post – Between Lawyers (feed) and the LexThink Blog (feed).

What Did I Really License? – Article

Thursday, December 15th, 2005

[NOTE: This is another in the series of repostings of my previously-published articles. This article was written in 2003 for Practical Technology Contract Review News email newsletter I used to publish. It was part of a series of articles explaining the various sections of IT agreements and how to think about them. This article is a companion piece to the "5 Ws of License Grants" article I reposted today.]
What Did I Really License?
I want to take a closer look at the fundamental issue of what you are licensing. I’ll give you some tips for analyzing whether the contract language you have is adequate, especially as it relates to software. I am constantly surprised at how often the definition and description of software being licensed varies from what both parties intend.
Software companies have a tendency to use old software license forms long after they have outlived their usefulness. These agreements often leave many issues unaddressed and invite problems in the future.
Your mission in negotiating these agreements is to document what you are actually paying for. Many times, that may take more work than you might expect. Here are five items to put on your checklist.
1. Accurate Definitions. What does the definition of “Software” actually say? Is it what you expect? Often, program names turn up in contracts that are different from the program names you expect. Do not assume that the name you see in the contract is correct. An agreement for another program could have been reused for your agreement and may indeed have the wrong programs listed. Are all necessary components or modules listed? Expensive results may occur if key components are left out.
Are there necessary utilities, installers or other programs that should be included? Are you getting the current version, the Windows version or whatever other version you need? Don’t be afraid to ask for specific details.
2. Number of Copies. Does the license include the right to make the copies you need. Many licenses are quite specific that you can only make one backup copy of the program. In today’s world, that makes no sense. Multiple copies of the software will probably reside on backup tapes. Most organizations today prefer to use installation disks for workstation installations, create disk images and have multiple backup and even disaster recovery operations. I like to specify these normal uses and “copies incidental to the operation of the computer,” since the program will be copied into RAM, a browser creates history and temporary Internet files and no one knows how many copies Windows makes of everything and where it stores them.
What about copies for notebook computers and home computers? Does your remote access system “create” another “copy” of the software for the remote user? Perhaps these may seem to be minor issues in the big picture, but the “copies in RAM” issue has been litigated with a finding that the copy in RAM was a reproduction for copyright infringement purposes. Also, why start out under an agreement of which you are in technical violation from the date of installation?
3. Versions, Upgrades, Updates and Similar Creatures. The world of software has a bewildering number of terms, all with slightly different meanings, for modifications to software. There are fixes, patches, updates, modifications, upgrades, point versions (e.g., 3.1, 3.2), versions, and even more. In your agreement, you care about which you have to pay for and which you do not. Try to avoid being silent on this issue. You will not like to be forced to pay for an upgrade that seems to you like an update or a full version that seems like a point version.
Ask the specific questions and memorialize the deal accurately. Deals can fall through on these issues. Also, be sure to know what happens if key features of the software are moved into another package (especially important in the case of a change in ownership) or if the company no longer supports or develops the software. Not complicated enough? What about required upgrades that force you to move to a new version of Windows, for example? Spending a little more time addressing the drafting issues upfront will avoid expensive business issues latter.
4. Source Code and Object Code.The object code of a program is the form of code readable only by machine. The source code is what the programmers write and is, at least in theory, understandable to some humans. Almost all software is licensed in object code. However, if your deal contemplates any modifications or development by you, you must have a license to use and modify the source code. If you are dealing with someone on the other side does not understand this, you must find someone else who does.
Licensing source code raises a number of thorny issues, include whether to have a source code escrow agreement. In your review, you will want to see assurances that the source code is the actual source code, that it is written and documented in a way that programmers can reasonably understand, that it also includes all code and tools to enable the program to operate, and that you continue to get source code for any modifications.
5. Documentation. Don’t assume that because you license the software you’ll be getting copies of the manuals for all your users. Some license agreements fail to mention documentation. Some license agreements fail to describe it adequately. Some license agreements limit you to a single copy of the manual and documentation. Check the language and then ask that it be changed to reflect what you want.
If you are going to sign a software license, it only makes good sense to make sure that it actually describes what you are getting. Start asking the right questions.
[Originally posted on DennisKennedy.Blog (]

This post brought to you by Dennis Kennedy’s legal technology consulting services, featuring RSS and blogging consulting, technology audit, strategic planning and technology committee coaching packages especially for medium-sized law firms (15 – 100 lawyers) and corporate legal departments. More information on the “Second Pair of Eyes” packages for legal technology audits and strategic planning may be found here (PDF).

The 5 Ws of License Grants – Article

Thursday, December 15th, 2005

[NOTE: This is another in the series of repostings of my previously-published articles. This article was written in 2003 for Practical Technology Contract Review News email newsletter I used to publish. It was part of a series of articles explaining the various sections of IT agreements and how to think about them. It really doesn't get any more basic that getting the license language to match what you want in your deal, but you'd be surprised how often that is not done well, especially in the first drafts of contracts.]
The 5 Ws of License Grants
Nearly every technology contract today contains at least one license grant provision. Most commonly, there will be a software licensing clause, but trademark, copyright and even patent licenses have become common in everyday technology contracts.
I have often been surprised when I review a contract prepare by a vendor to find that the license grant is not even close to what is anticipated by the deal, let alone what either the licensor or licensee actually wants. License grants are not “one size fits all” clauses. Because the license is a key to the deal, a license grant provision should never be treated as a stock or off-the-shelf clause. It’s one clause that you want to get exactly right because if you don’t get the rights you need now, you will probably run into problems later.
Getting a license grant right takes some effort, but simply focusing on the simple five Ws – who, what, when, where and why – that we were taught in school will put you ahead of 95% of people reviewing license grants. These may seem like basic questions, but, believe me, there are no stupid questions when it comes to reviewing license grants. You want to make sure that you understand the language and that it covers what it is supposed to cover.
1. Who? Don’t take this question for granted. Who is licensed? Your company and employees? Yes, but is the correct company licensed? What about affiliates and subsidiaries? Employees of affiliates and subsidiaries? Do you use part-time employees or other independent contractors who are technically not “employees”? How about third party consultants who install, maintain or work with the software? Customers? Potential customers you want to allow to demo the software? Other users? I’ve seen questions come up in each of these categories.
2. What? What exactly is being licensed? Is it just object code of software? Do you want source code as well? How about documentation? Trademarks? Copyrights? Compare what you think you are getting to the license grant language to make sure that you are getting everything you expect.
3. When? Many license grant provisions do not spell out a duration of the license grant, leaving at least three interpretations – the grant is perpetual, the grant is equivalent to the term of the license agreement or the grant is for a “reasonable” period. Nail this question down and save yourself from any later trouble. As a general matter, setting the duration of the license grant equal to the term of the agreement (including renewals) is the most logical approach.
4. Where? I once reviewed a license for a mobile software application that was going to be used by technicians in their cars. Incredibly, the first version of the license grant provision from the vendor included language that the software could only be used at a specific address! Obviously, someone had simply used an old license agreement as a model with no awareness of the consequences. Sadly, I am sure that some licensees simply signed this “standard contract.”
Site licenses or machine or location specific licenses were common in the mainframe era and that type of language occasional slips into today’s license agreements. In the case of software especially, you want to determine where the software will be used and be sure that the license grant authorizes use in those locations. Will employees be running the program at home or on a laptop? Will they be accessing the program remotely? PDAs and wireless devices also may require modifications to standard license grant language. Be wary whenever you see any type of site license language.
Another “where” issue arises in the case of license grants for particular territories. Check the definition of territory carefully and consider how it may affect e-commerce or web marketing.
5. Why? Why are you obtaining the license? Is it exclusive or non-exclusive? You’ll want to proceed with caution any time an exclusive license is involved. Also, it has become fairly common to grant licensees the right to “use” software or other intellectual property rights. Unfortunately, “use” is not one of the exclusive rights granted under the copyright statutes (reproduce, make derivative works and publicly display are a few examples) and it is only one of the rights patent holders have (make, sell and offer to sell are others). It is, therefore, important to spell out exactly what rights you want to license using the precise terms, especially if you want to make derivative works or to grant sublicenses rather than to rely on a court later interpreting the word “use” to include these rights.
The license grant may well be the single most important section of any technology agreement. If you aren’t specifically granted the rights, you probably don’t have the rights. Why take chances?
By using the simple 5 Ws approach, you can go a long way toward quickly getting a license grant provision in shape. You will not only have better and more accurate language, but you can then use your attorney more effectively to work on more important issues than simply making sure that the language at least covers the deal. As a result, you’ll shoot to the top of the class in being able to review license grants.
[Originally posted on DennisKennedy.Blog (]
This post brought to you by Dennis Kennedy’s legal technology consulting services, featuring RSS and blogging consulting, technology audit, strategic planning and technology committee coaching packages especially for medium-sized law firms (15 – 100 lawyers) and corporate legal departments. More information on the “Second Pair of Eyes” packages for legal technology audits and strategic planning may be found here (PDF).

“By Request Day” – What Are Those Funny Symbols in Some of Your Posts?

Wednesday, December 14th, 2005

Here’s what I’d like to say: Writing on the Internet requires that you consider a different type of reader and that you accommodate a reader who likes to scan. Although some recommend avoiding long posts, like I have been known to write, if you write long (or short) posts, you want to break things up into short paragraphs, use headings, bullet points, bold and italics, and make the posts easier to read and visually interesting.
The funny little symbols and characters, I’d like to say, are a clever device to create visual interest and give my readers something break up the parade of words on a page.
That’s what I’d like to say.
Unfortunately, the real story is this:
I sometimes write posts in Word. In the case of my reposted articles, I create the posts from Word documents. I might also copy portions of Word documents into my posts when I write them.
Unfortunately, in some Word documents I had turned on the “smart quotes” or “curly quotes.” For reasons I don’t understand, my version of Movable Type does not handle those curly quotes as regular quotes. Even worse, I cannot see that there is a problem when I “preview” he post before I published it. Even worse than that, I don’t see the problem in my newsreader when I view the RSS feed for my blog. That’s important because I don’t often look at my blog in my browser, but I do look at the feed in my newsreader.
What I’ve learned is that the “smart quotes” and the “smart apostrophes” turn up as odd symbols and characters on my blog rather than as regular quote marks and apostrophes. I then have to edit the original post, change the quote marks and apostrophes (which are visible at that point in Movable Type) and republish the post. It’s a pain and it’s not a task that ranks high on the priority list.
I’ve now found a few tricks that usually catch the problem before it happens, but the problems occurs every now and then, especially in the reposted articles. I’ll eventually find a more or less fool-proof method, but that’s the explanation. If you can visualize a quote mark or apostrophe when you see those funny symbols, you’ll know what I meant – but you were probably already doing that.
[Originally posted on DennisKennedy.Blog (]
This post brought to you by Dennis Kennedy’s legal technology consulting services, featuring RSS and blogging consulting, technology audit, strategic planning and technology committee coaching packages especially for medium-sized law firms (15 – 100 lawyers) and corporate legal departments. More information on the “Second Pair of Eyes” packages for legal technology audits and strategic planning may be found here (PDF).

“By Request Day” – Read Any Good Books Lately?

Wednesday, December 14th, 2005

I’m always interested in what books people are reading and what they like. I always try to read books that people recommend to me. Lately, my brother and I have been recommending spy novels and thrillers back and forth. A few years ago, I gave him a Robert Ludlum book and he stayed up all night reading it. That started us on passing books back and forth.
There are two books that I’ve read recently that I highly recommend for the audience of this blog.
The first is Gerry Riskin’s The Successful Lawyer – a great collection of practical wisdom on a variety of subjects involved in the practice of law or any other profession. It’s also available with a companion audio CD through the ABA Law Practice Management book store.
Earlier in my career, I had the chance to participate in the Edge Group’s rainmaker education program at my law firm. I’d rank it among the very best training I ever received as a lawyer. I mention this because this book includes the core principles from that rainmaking course. They’re solid, practical and well-supported by my experience.
The book has 49 short chapters, each of which is packed with a punch and great practical tips. In fact, each chapter is like the conversation you would have liked to have with a mentor or experienced colleague during your career. It’s a book that you can read quickly, if you want, but also one that you will want to return to again and again and work through the ideas and exercises in it. Add me to the long list of fans of this book. It’d be a great gift for yourself or for a lawyer you know.
The other book I want to recommend is Bob Burg’s Endless Referrals, just out in a third edition. Ironically, I met Bob recently via email when I committed one of the cardinal sins of emailing people you don’t know – accidentally using the wrong name in the salutation to the email. Even worse, I didn’t realize who Bob was until he sent me a polite reply and we exchanged a few emails and got to know each other a bit.
Finally, I realized that Bob was the author of Endless Referrals, a book that I had found quite valuable when I began my solo career. Bob told me that a new edition of the book was out and asked me if I wanted to get an early review copy. Of course, I would.
Bob sent me a copy and I devoured it in one setting. I think that this is a gem of a book that is required reading for anyone who has customers or clients or works with other people. That, I believe, would be everyone. The book is about principles of business networking, but it goes far beyond that.
The money quote:
All things being equal, people will do business with, and refer business to, those people they know, like and trust.
Think about blogging in that context.
Like Riskind’s book, this book is full of practical information that you can really use, including suggested language for certain conversations. I dog-eared a lot of pages in this book. I was also surprised to see how much of Burg’s advice from the earlier editions I had internalized and made part of what I do. Even if you have read the earlier editions, the third edition is still a must-read.
As an aside: I’ve been sounding out a few people about using Skype chat to create a book group to discuss books like these on a regular basis. Let me know if you might be interested.
[Originally posted on DennisKennedy.Blog (]
This post brought to you by LexThink!(TM) – The Conference, Re-imagined. LexThink! – Think big thoughts, do cool things, change the world. Ask us about private LexThink retreats and conferences for your firm, business or organization.

Seven Dangers in Using “Standard” Forms for Law Firm Technology Use Policies – Article

Wednesday, December 14th, 2005

[NOTE: This is another in the series of repostings of my previously-published articles. This article was written in 2004 in connection with a presentation I did on technology use policies for law firms. Although it focuses on the issues that face law firms, the same principles apply in many different contexts. Forms can be quite helpful as long as you know how to use them]
Seven Dangers in Using “Standard” Forms for Law Firm Technology Use Policies
“We need a technology use policy. Why don’t you hop on the Internet and grab one that we can use?”
This conversation is all too common. The question asked is meant to be a rhetorical one. You will be better off if you treat it as a real question and think carefully about the answers to that question.
There is almost no limit to the dangers you can run into when you “grab a form” off the Internet. This article talks about seven of the most worrisome dangers.
Danger #1. Forms May Be Used As Something Other than Checklists of Issues. When I was co-teaching a law school course on drafting technology agreements, we started the course with a discussion of the use of forms. Our key point was that you have to consider forms as checklists for issues to consider, provisions to include and points to clarify. They should not be seen a complete in any sense or as covering all possible issues. They definitely should not be seen as something to grab and use. Take a form and think through the application of each section to your situation. Does it apply? Does it reflect the approach you would take? Does it raise other issues? Use a form as a checklist, first and foremost.
Danger #2. Forms May Be Outdated and Wrong. How comfortable would you be using a technology use policy from 1995? If you grab a form on the Internet, how do you know that you are not doing exactly that? Be aware that policies you find might be outdated and not cover issues that now affect you. Even worse, they may reflect an approach based on a misunderstanding of applicable law, a failure to consider applicable law or a misguided approach to relevant issues. Be very careful about assumptions that you are making.
Danger #3. Forms May Not Even Address Your Issues. Law firms have some unique issues because of confidentiality obligations to clients, ethical rules and other issues that affect the legal profession. A standard form that you find on the Internet or in a form book might not even address these issues, let alone address them correctly. The form you find might not cover home computers, blogging, instant messaging or other issues that are important to you. It is too easy to treat a form as being “complete” and, as a result, fail to cover key issues.
Danger #4. Forms May Make Decisions For You without Appropriate Consideration. There is not a single, perfect approach to technology use policies. Each policy reflects a consideration of unique issues and a large number of decisions. Similarly, any form will embody a large number of decisions on issues. Some forms take a middle of the road approach. Some forms, unknown to those who use them, take more radical approaches. Your only guarantee is that it is all but impossible to expect that any form you find will reflect all of the decisions that you would make on each of the underlying issues. Every sentence in any form could be written differently depending on the underlying policy. When an issue later arises, it will not be comforting to keep saying, “But, it was in the form.”
Danger #5. Forms May Let You File and Forget. The use of a standard form makes it very easy to file and forget your technology use policy. The whole approach trivializes the importance of the policy. Rather than posting it, publicizing it and training people to follow it, you will likely file it and forget about it. That will come back and haunt you.
Danger #6. Forms May Relate to a Different Regulatory Scheme.b Surprise! The legal profession has its own ethical rules and regulatory issues. Other industries have their own rules and regulations. If you grab a form, you may inadvertently use a form from a company with different requirements while missing rules and regulations that apply to you. Neither result is a good one.
Danger #7. Forms May Allow You to Avoid the Real Work You Must Do. When you grab a form off the Internet, change a few words and announce your new policy, you neglect very important aspects of creating a technology use policy. You do not do the research necessary to understand how people use technology in your firm and what unique issues your firm may have. You ignore the value of putting together a team to put a policy together. You also treat the policy as fundamentally unimportant. You guarantee an unhappy experience in the future.
The best approach to creating a technology use policy is to do the hard work, make the hard decisions and move to drafting the policy at the point that you are ready to document and memorialize your decisions. A form that you find can serve as a model or as a checklist, but should not be anything more than that. Your policy should be your policy – your policy should not be dictated by someone else’s forms.
[Originally posted on DennisKennedy.Blog (]
This post brought to you by Dennis Kennedy’s legal technology consulting services, featuring RSS and blogging consulting, technology audit, strategic planning and technology committee coaching packages especially for medium-sized law firms (15 – 100 lawyers) and corporate legal departments. More information on the “Second Pair of Eyes” packages for legal technology audits and strategic planning may be found here (PDF).