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Dennis Kennedy

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Dennis Kennedy’s Seven Legal Technology Trends for 2007 – Widening the Digital Divide in Law Practice – Part 2

(Part 2 of a 5-part Series) (Explanation of series)
Seven Legal Technology Trends for 2007 – Widening the Digital Divide in Law Practice
Trends Number 1 and 2.
What specific trends must lawyers watch in 2007? I suggest that seven trends should be on your radar screen, and the agendas of your technology committee. Here are trends 1 and 2.
Trend #1. Reacting to Microsoft.
With the double whammy of a new Windows release and a new Office release, Microsoft will occupy a lot of legal mind space in 2007. My first trend simply notes how deciding how to react to Microsoft issues will be the 800 pound gorilla of legal technology in 2007. Note that I emphasize reacting to Microsoft, not necessarily moving to new versions.
Within this trend, I’ll note three sub-trends: (a) deciding whether and when to upgrade to new Microsoft versions, (b) investigating whether to move away from Microsoft environments, and (c) the growing role of free, Open Source and Web 2.0 services.
A. Upgrading to New Microsoft Versions.
Much time will be spent in 2007 making decisions about moving to Windows Vista and Office 2007 and when to make that move. While it is common advice to wait to install new versions of Microsoft programs after the release of the first service pack, I’ve been surprised by stories of large law firms that have made no efforts whatsoever to explore moving to these versions yet. Decisions on these products will not go away. It makes good sense to get started on thinking about these issues sooner rather than later.
The focus of Windows Vista is on security, for good reasons. Given the need for security at law firms, consideration of Windows Vista should move up toward the top of the agenda. It is clear that Vista, in most cases, will require new hardware purchases. Firms that have recently purchased hardware may not be in a position to move to Vista. Firms ready to purchase new hardware will need to think carefully about Vista. At a minimum, buying Vista-ready hardware will be a priority.
Firms still running Windows 2000 need to realize that they are now two operating systems behind, and that Windows 2000 support will be going away soon.
I’ve said that Office 2003 is the version of Office that works best for lawyers. It’s also four years old. Office 2007 has a radically new interface that I believe might work well for lawyers, a new document format, enhanced collaboration features and other new features. I expect to see a relatively slow adoption of Office 2007, but given the history of security issues in Office, moving to Office 2007 may be the prudent approach in 2007.
The decisions here will not be easy, but they won’t get any easier by ignoring them or deferring them indefinitely. With the expectation that the corporate world will go slow on moving to new versions, law firms have less pressure than usual on these upgrades, and that’s a large part of the reason I’ve described 2007 in terms of a “lull.” It will be easy not to make the upgrade, but will it be wise for you?
B. Macintosh and Linux.
One reaction to Microsoft that will become more common in 2007 is serious consideration and possible movement to non-Windows operating systems. That’s becoming a reasonable response to the complexities of living in the Windows world and the growing use of the Internet as a platform for the work we do.
The Intel-based Macintoshes, with the ability to run Windows and Windows programs in a virtual machine or to boot up directly in Windows, have changed the thinking of many lawyers about Macintoshes. The Macs have excellent reputations on usability and security, perhaps the two biggest issues for lawyers. As we do more work on the Internet, our capacity to work on the Internet, more so than our operating system, becomes the biggest factor in what our computing needs are. Lawyers who examine closely what their needs actually are beginning to make the move toward Macintosh, and the number of Macintosh resources for lawyers, including blogs, will surprise many lawyers.
Similarly, Linux or other Unix-based operating systems have excellent track records, especially for servers. In the right settings, they may become reasonable alternatives to Windows.
Frankly, the legal practice is a Microsoft world, and I don’t expect to see that change dramatically in 2007, but given the complexity and potential costs of moving to new Microsoft versions, we will see greater attention on non-windows options. By the end of 2007, I would expect to see a noticeable increase in the number of lawyers using Mac notebooks.
C. Open Source, Freeware/Shareware, and Web 2.0.
Expect lawyers and law firms to take a closer look than they have ever done to several other alternatives to Microsoft software. Traditionally, lawyers have shied away from these alternatives In large part, these products will gain attention because of their cost, or, more accurately, their lack of cost. It should longer be a surprise that outfitting a new computer with the software you want will cost more than the cost of the hardware. In 2007, Open Source, freeware/shareware, and Web 2.0 services will become part of every software discussion and begin to appear as part of the software equation in many firms. Small firms and solos will lead this trend.
Open Source software is a class of software licensed under one of the Open Source licenses. Open Source software has a number of distinguishing features, including the availability of source code, the right to modify the software, the authorship by a volunteer community of programmers, and other elements beyond the scope of this article. I suggest that you read my article “Best Legal Practices for Open Source Software” for background on the licenses. Linux and the Firefox browser are examples of Open Source software.
For our purposes, the most interesting aspect of Open Source software is that you can download and use it for free. Many Open Source programs have been around for a while and have become mature and competitive offerings. You might consider Open Office as an alternative to Microsoft Office or Gimp as an alternative to Photoshop, for example. There are also many Open Source utilities and specialty programs, such as timekeeping programs. As a result, lawyers looking at the costs of updating Microsoft programs may look to Open Source alternatives.
Similarly, in almost every category of software there are free or “try before you buy” low-cost programs available for download. These programs are commercial programs rather than Open Source programs. Usually priced below $30 or so, these programs might help lawyers accomplish specific tasks or fill specific needs. For example, if a lawyer only needed to create simple PDF files, he or she might find a free or low-cost program for that purpose rather than buy Adobe Acrobat.
In 2006, Web 2.0 services burst onto the scene. In simplest terms, Web 2.0 services are web-based applications, in nearly every case free, that allow you to work as if you are using a desktop application through your browser. These are lightweight applications that lack all of the bells and whistles of your desktop programs, but have all the features you need to get most of your work done. A classic example is Google Docs & Spreadsheets, which lets you create and work with documents and spreadsheets on the website, share them with others, and export them to Word and Excel.
Each of these categories offers you realistic options to Microsoft products, while leaving you with the question of how do you want to balance costs, features, compatibility and other issues. Small firms and solos have been blazing the trail in these directions, but expect discussion of these alternatives to become part of the Office upgrade question in 2007, and as part of other discussions as law firms consider expensive commercial software options.
2. Electronic Discovery – The 8,000 Pound Gorilla?
If Microsoft update questions lead the way for legal technology in 2007, then electronic discovery is a close second and may actually turn out to be a larger gorilla in the room. That said, I am going to be a bit of a contrarian by saying that we will see less happen in the area of electronic discovery than most people expect in 2007. The ability of lawyers and law firms to resist the move to incorporating electronic discovery as part of the day-to-day practice of law is legendary, and they still have a few tricks up their sleeves to slow down this process.
However, let me be clear that, as has been said before about the Internet, we overestimate the short-term impact of electronic discovery, but we greatly underestimate the long-term impact of electronic discovery. I’ve read recently complaints of attendees at the LegalTech New York show that 90% of the vendors called themselves e-discovery vendors, with the implication that EDD was being over-sold and over-hyped. There is a clear resistance from lawyers to electronic discovery and sometimes this attitude is manifested by referring to EDD as a fad or hype.
While, as I’ve said many times before, the concepts in electronic discovery are straight-forward and EDD should be seen as evolutionary rather than revolutionary, the details, the tools, the practical questions, and the application of law and rules to specific facts can be confusing, complicated and challenging. However, we are not going back to a world of paper-based discovery. The e-discovery ship has set sail, and the wishful thinking of resistant lawyers will not turn it back around.
Unfortunately, things will not get any easier for those trying to navigate the seas of e-discovery. The industry trends of dizzying consolidation and new entries will continue and will no doubt keep us all confused as to what choices are best.
Within this trend, I’ll highlight three sub-trends: (a) an emphasis on basic EDD tools for small cases, (b) the growing role of litigation support managers, and (c) the availability of “big iron” tools for e-discovery.
A. Emphasis on Basic EDD Tools for Everyday Cases.
There’s a running joke that, if you talk to a hundred EDD vendors, every single one of them had some involvement in the discovery for the Enron case. Let’s face it, in the vast majority of litigation matters lawyers handle do not involve terabytes of data and exotic issues. They involve a limited number of electronic documents, some email, and maybe a spreadsheet or two. The total dataset may range from a few hundred to a few thousand documents. That’s still a lot to handle, and that’s where we will see a lot of action in e-discovery in 2007.
In this area, I see growth in the litigation database management applications. This category used to be dominated by programs like Concordance and Summation, but we’ve seen the rise of programs that emphasize the litigation management aspects and de-emphasize the “database” look and feel of programs in this category. CaseLogistix is a great example of the lawyer-focused approach to the new generation of programs, with a lawyer-oriented interface and consideration of how lawyers actually work. Look for more programs (and software services) to take this approach, and for more focus on project management and work flow in these programs.
For standard cases, you can make the argument that a simple “all-in-one” basic EDD tool would be the way to go. I’m intrigued by the appliance approach here. What if you could buy a “box” loaded with the tools you need to do a reasonably good job with electronic discovery on regular types of cases? Cricket Technologies’ Cricket Box is one example of a company producing an EDD appliance, with the basic functionality many firms will need. A web-based “software as a service” approach might also be attractive for these purposes.
We’ll also see creative uses of tools that lawyers already use, often in combinations. Adobe Acrobat 8 has added a number of features (including redaction and Bates stamping) with lawyers in mind that make it an attractive tool for small e-discovery cases. If you combine CaseMap and Adobe Acrobat, you might well have a powerhouse set of tools for the majority of your standard EDD cases.
B. Litigation Support Managers – The Next Generation of EDD.
2006 was a watershed year for the litigation support manager at law firms. It became clear to leading law firms that they needed a skilled person placed at the intersection of litigation and technology. This person might be an experienced lawyer or paralegal with a good understanding of technology or an IT person with a good understanding of litigation matters. No matter what the approach, leading firms realized that ad hoc, unfocused and multiple-headed approaches to EDD would not work.
The growth and professionalization of the litigation support manager role will be the most important trend in EDD in 2007. In a short time, there will be a clear gap between firms with litigation support managers and those without. For any firm dealing with electronic discovery, the decision how to create and fill a litigation support manager position should be number one of the priority list. These people will be at the point in connection with clients, courts, vendors, consultants, IT and lawyers, and the importance of their role will only increase.
An interesting parallel trend that recognizes the role of skilled people in EDD is the provision of consulting services by EDD vendors.
C. “Big Iron” for Big E-Discovery.
While the majority of EDD cases do not involve massive amounts of electronic data and documents, the big cases definitely do, and the talk of terabytes of discovery data is all too true. Some of the most interesting long-term trends in electronic discovery – EDD becoming a subset of records management and compliance initiatives, and movement of big records and data vendors into EDD – will happen at the high end of EDD.
The trend I’ll be watching is what is happening with data repositories. Most law firms will eventually decide that it is not realistic for them to host huge amounts of data within the firm. Data repository vendors offer hosting services for gigantic amounts of data, with high levels of security, uptime, access control and other features, including search and project management tools. I’m intrigued by what’s happening in this area and the implications it might have for the future of litigations and the court system.
I recently got a demo of Catalyst Repository Systems‘ new offerings in this area. While I was pleased with the emphasis on speed of searches, I was truly impressed with the sub-second results on highly-complex search requests. Again, this appears to be an area where firms that move in this direction can create a significant competitive gap between themselves and firms sitting on the sidelines. This area may also be one where clients will drive what law firms will do.
(To be continued in Part 3)
I invite your comments and feedback on this article-in-progress.
[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]
Learn more about legal technology at Dennis Kennedy’s Legal Technology Central page.
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2 Responses to “Dennis Kennedy’s Seven Legal Technology Trends for 2007 – Widening the Digital Divide in Law Practice – Part 2”

  1. Another EDD appliance on the market today is ONSITE(3)’s DXR – Document Exchange and Review. ONSITE(3) is offering a free trial of it at: http://www.onsite3.com/dxrtrial

  2. Here’s the problem Dennis, It’s not that we won’t embrace EDD it’s just that we have little idea how it impacts us now.
    I can spend a week at the various EDD seminars that are offered to me each week but I may not see a case with an EDD issue for 2-3 more years minimum. I am trying to keep up with changes in Booker,SOX, the ADEPA, the Patriot act, and the change in the Rockerfeller drug laws, (and did I mention SOX) and do not have time to learn this stuff nor clients who want to pay for me to hire the LSM (assuming I knew enough to hire one to begin with.)
    The series is great, and I like the serialization concept, but frankly Kennedy, you scare me… you really scare me.
    Finally, though this is probably an article in and of itself, can you explain how Office 2007 and Vista work to protect our computers and data better, why it is considered so difficult to hack and what effect will running these programs have on other programs that haven’t updated yet like timeslips or prolaw etc?

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