Year’s Best in Law Office Management and Technology
By Jim Calloway, Director, OBA Management Assistance Program

I know that all of you have traditions. Some traditions are handed down from our parents. Others we do regularly even though we may not be sure how we started the tradition in the first place. Obviously, the year-end holiday season has lots of traditions.

One of my annual traditions is to moderate day two of the December Recent Developments OBA CLE seminar and present Recent Developments in Law Office Management and Technology there. I know how I got into this one, though. OBA CLE Director Donita Douglas talked me into it several years ago. The reason why I consider this a tradition is that I now see a lot of the same OBA members at this seminar year after year.

So each year I do a “year in review” of law office management and technology for my presentation. Some years there are many developments; other years there are not so many. This year I decided to give Oklahoma Bar Journal readers a little sample of the topics that I am covering with this presentation. The CLE paper is about 18 pages long, and OBA members who are interested in the full version of these materials will be able to download them from the OBA-NET, free of charge, starting in January 2008.

So what were the big developments in 2007?

Well, for OBA members, three member benefits were unveiled during 2007, all of which related to law office management and technology: Fastcase, CoreVault and the OBA Law Firm Merchant Account™.

Effective on the first day of 2007, OBA members could utilize the Fastcase free legal research service as a member benefit. If you haven’t tried Fastcase yet, you can get more information at www.okbar.org/news/fastcasefaq.htm and download the Fastcase user manual at www.okbar.org/news/FastcaseUserGuide2007.pdf.

CoreVault was endorsed by the OBA as its official backup and data recovery service. For those of you who are not sure you’re doing a good job of data backup, it may make sense to abandon the “do-it-yourself” approach and sign up with CoreVault. More information is available at www.corevault.net/oba.

The problem of how to accept retainers on a credit card without difficult accounting or ethical issues related to the service charges was resolved by the adoption of the OBA Law Firm Merchant Account™. Funds received via credit card can be directed to either the office operating account or the trust account under this program, but all service charges or charge backs come only from the law firm operating account and never the trust account. You can learn more about this program at www.affiniscape.com/ oklahomabar.

(It’s really no wonder that the OBA Member Services committee, which vets all of these proposals, won the Golden Gavel Award at the recent OBA Annual Meeting.)

Vista

Vista was released on an unsuspecting world in early 2007. To say it has had mixed reviews would be overly kind by tenfold. Without a doubt the most difficult question I received repeatedly from our members this entire year is, “I’m buying a new computer. Should I get it with Vista installed?”

The answer at the end of a long year is, “I don’t really know for sure.”

The answer depends on way too many factors. But the most significant factor is how many older software packages or older pieces of hardware are you using that won’t work with Vista.

This is probably appropriate for those at the extreme ends of the technology spectrum. Early adopters of technology who like tinkering with their computer systems will find plenty to play with after they “upgrade” to this. At the other end of the spectrum, those who only use their computers for Web browsing and word processing can probably safely purchase a new computer with the Vista operating system with little risk.

Many of you who want to purchase a computer right now will decide that you are likely better off to get it with Windows XP installed and worry about the issue again in a few years.

I had viewed upgrading to Vista as inevitable. But recently, noted technology columnist John C. Dvorak suggested that perhaps Vista is not inevitable in his column in PC Magazine. With a headline of “The Vista Death Watch,” he says, “We have to begin to ask ourselves if we are really looking at Windows Me/2007, destined to be a disdained flop. By all estimates the number of Vista installations hovers around the number of Macs in use.” Read the rest of his column at http://tinyurl.com/2sby78.

Electronic Data Discovery

With the adoption of changes to the Federal Rules in December 2006 relating to electronic discovery, electronic data discovery (EDD) became an even more significant topic for litigators.

At a fall meeting of the Hudson-Hall-Wheaton chapter meeting of the American Inns of Court in Tulsa, Honorable Sam A. Joyner, magistrate judge of the U.S. District Court for the Northern District of Oklahoma, made me aware of an EDD resource that I had not seen before -- the Guidelines for Discovery of Electronically Stored Information from the U.S. District Court for the District of Kansas. This three-page PDF file is a truly great summary of counsel’s obligations with regard to EDD. Since it is only three pages, I suggest it is worth everyone’s time to download and read, even if you are still trying to convince yourself that you can avoid EDD and ESI for the remainder of your career. You’ll find it at www.ksd.uscourts.gov/guidelines/electronicdiscoveryguidelines.pdf.

My Podcast — The Digital Edge: Lawyers and Technology

The ABA E-zine Law Technology Today launched a new feature in 2007 near and dear to my heart, my podcast, The Digital Edge: Lawyers and Technology . My teammate is Sharon Nelson, Sensei Enterprises Inc. president and ABA TECHSHOW 2006 chair (the year after me). So far, we have had a lot of fun with this podcast covering in our first six editions everything from technology-related legal ethics to our favorite utilities to technology toys that might make good holiday purchases. You can find the archives of the podcasts at www.abanet.org/lpm/ltt/archives/podcasts.shtml. You do not need to have an iPod or MP3 player to listen to the podcast. You can listen to them online via your computer.

WordPerfect X3 is Now Dirt Cheap for OBA Members

It’s just $99 for the complete WordPerfect X3 suite! You can only find this price at the following web address - www.corel.com/barassociation.

ABA TECHSHOW 2008 Date Set

Mark your calendars now for ABA TECHSHOW 2008. March 13-15, 2008, is the date at its new hotel, the Chicago Hilton. More information is online at www.techshow.com.

The early bird deadline for cheaper registration is before Feb. 1, 2008.

Since the Oklahoma Bar is a program promoter, you can use the OBA program promoter discount code PP814 when you register online to get an additional discount.

Billable Hour Re-Re-Re-Examined

An important topic that is not exactly recent received a lot of coverage in magazines and blogs this year.

The August 2007 ABA Journal cover story was “The Billable Hour Must Die” by famed lawyer-novelist Scott Turow. Read it at www.abajournal.com/magazine/the_billable_hour_must_die or http://tinyurl.com/e5hu.

No one who has read any of Mr. Turow’s books would be surprised that it is a well written and persuasive piece. He repeats a phrase that I find very significant: “dollars times hours.”

Turow writes, “Dollars times hours sounds like a formula for fairness. What could be more equitable than basing a fee on how long and hard a litigator worked to resolve a matter? But as a system, it’s a prison. When you are selling your time, there are only three ways to make more money — higher rates, longer hours and more leverage. As the years have gone on, the push has continued on all three fronts.”

This may sound like it applies to large firm lawyers, but the math applies equally to lawyers in every size of practice who bill only by the hour. This issue may represent one of the greatest future challenges to our profession. But, of course, I’ve thought that for a few years now. Mark Robertson and I published “Winning Alternatives to the Billable Hour: Strategies That Work,” Second Edition through the ABA in 2002.

If I were to quibble with Mr. Turow’s piece, it would be that he, like so many, mixes together what I view as two distinct aspects of the billable hour crisis.

The first is the dollar times hours aspect. Is a mechanical formula really the best and most fair method to determine a legal fee? Is it the best for the law firm? Is it the best for the client? The case against hourly billing is pretty easy to make; it can reward inefficiency and the total cost is unknown to the client until a matter is concluded. While I would not state the ethical challenges as strongly as Turow, there is the inescapable fact that, for the most part, the one who makes the decision as to whether those eight depositions are needed is the same person who makes more money from those eight depositions.

But the ethical challenges would not disappear by changing to all flat or alternative fee arrangements. If an hourly payment arrangement presents an ethical challenge to do too much, then surely a flat fee for an entire matter presents the opposite challenge to do too little. Public perceptions notwithstanding, all but a very few lawyers take their ethical responsibilities very, very seriously in all circumstances.

The second aspect of “the problem” can be said to be even more critical than the first, however. For it involves people’s lives rather than just dollars. The billable hour discussion is also a code phrase for the fact that too many lawyers are working themselves to death, both physically and spiritually. This lawyer may be the new associate at a major law firm struggling to ethically bill 2,200 hours a year or the small town well-established solo who finds himself having to step up his work schedule when he should be enjoying the rewards of a fine career. Maybe this is caused by greater family needs, such as a child going off to college, or maybe it is caused by more time devoted to business that cannot be billed such as marketing or untangling the mysteries of e-discovery.

As Turow says in the essay, “Worst of all, however, is that when somebody is working 2,200 hours a year, he or she has less chance to pursue the professional experiences that nourish a lawyer’s soul.”

I completely agree that a large part of the problem with the largest law firms is the fact that they publish earnings per partner and deem themselves winners and losers on that basis. But considering what these large firm lawyers are earning, is that extra several thousand dollars worth adding the 10 p.m. to midnight shift an average of three days a week? Perhaps the more enlightened view someday will be factoring in average billable hours per partner and quality of life issues.

We are living in a time of great change. We see the successful businesses. We know that they embrace the efficiencies of technology, they adapt to changing consumer needs and demands, they provide good customer service and they continue to improve and evolve. The question Turow brings us face to face with is how lawyers can plan for their future success in an environment where productivity improvements amount to an income reduction and a personal success story is getting a full night’s sleep or just one time seeing all of the child’s little league games that week.

If it were easy, all the smart lawyers would have already done it. But there are smart lawyers and smart clients who are using alternative billing methods. How do you start? Let me suggest modest steps. You recall the old saying “How do you eat an elephant? Answer: One bite at a time.” So litigators, are there some routine tasks that should be billed on a task completed basis rather than an hourly basis? What about filing documents with government clerks? Hourly or fixed? Consider this and revise your policies accordingly. Read Scott Turow’s essay. Think about improving your future and serving your clients better at the same time.

Originally published in the Oklahoma Bar Journal December 8, 2007 - Vol. 78; No.34.