Author: jlawson

The ABA e-Lawyering Project: Lessons Learned

eLawyering is having a moment–at least another moment. Several factors, including the success of Jack Newton’s book The Client-Centered Law Firm, are drawing new attention to the idea of using the Internet to create and service new pools of clients for lawyers. In a recent Twitter thread Caitlin Moon and Dennis Kennedy expressed disappointment with the results of the American Bar Association’s e-Lawyering task force:

Note to Cat Moon: I was a rebel and I was allowed to be on the committee. It didn’t work out too well.

I was a member of the ABA’s e-lawyering Task Force from around 2000 to about 2003. My experience may have some relevance. Sometimes you have to know what happened, good or bad, to steer a better course in the future.

ABA President Bill Paul created the Task Force in order to develop ways of using the Internet to provide better and cheaper legal services. This move was largely inspired by the ideas of Richard Susskind, who developed the idea of “the latent legal market,” i.e., those with some type of problem who could benefit from a lawyer’s help but are who are not presently receiving help from a lawyer.

The eLawyering Task Force mission was widely misunderstood. It was not a charitable, pro bono-type project. The goal was to help lawyers make money by better serving middle class Americans, people who could afford to pay something for legal services.

The two-fer concept of helping the middle class while creating new profit centers for lawyers had great appeal, but I liked it more than most. I believed that if the project were successful, there would eventually be trickle-down benefits to the decidedly non-middle class people I grew up with. I was all in on eLawyering.

Richard Granat, the group’s first chair, thought ideas in my first book, The Complete Internet Handbook for Lawyers, might possibly help advance the project’s objectives. At ABA Techshow 1999, before the group was formally operational, he invited me to join the Task Force.

One of my first steps was to create a private email mailing list to facilitate the group’s work. We had conference calls and occasional meetings during ABA events, but I thought we needed better internal communications. We did not have the same sophisticated collaboration tools available today so mailing lists were state of the art.

Since the ABA’s official website had little or no information about the eLawyering project I created a website at my own expense to increase public awareness of the initiative.

From the first I was a consistent but naive advocate for aggressive action. Probably too aggressive.

I was not familiar with the ABA’s culture. Richard spent lots of time patiently explaining why my suggestions were impractical working within the ABA framework. Every explanation made sense but the overall picture was frustrating.

Sometimes rebels can be more trouble than they are worth. Eventually a fellow Task Force member suggested that I should be satisfied even if the group could only make incremental progress working within the ABA. With some regret, I decided to leave the group.

In the end my combination of ambition and naïveté about working within the ABA structure accomplished little. That doesn’t mean nothing was accomplished.

eLawyering Task Force Accomplishments

The more active members of the group promoted its goals though articles and presentations. Some traces of these efforts can be found here and there through searches on Google, Bing, etc. The ABA’s Online Legal Services section provides random links to traces of a few such efforts, but there is no central repository of the group’s activities, for reasons explained below.

The 2003 ABA House of Delegates approved the group’s set of best practice guidelines for legal information web sites.

Dennis Kennedy has suggested the group’s biggest success was creating a place where innovators could get to know each other and share ideas. Some people might take this remark as snarky, damning by faint praise, but from working with him over the years I know Dennis was serious and he has a point. Networking matters, and the residue of this is probably still providing at least some benefits today.

After a few years the ABA sunsetted the eLawyering project. Some of the project’s accomplishments have not survived the sunsetting:

  • The ABA eventually followed up an official website to support the venture and I abandoned the unofficial site I had created to support the project. The official ABA site has vanished. Searches on the URLs of the former official ABA websites (eLawyering.org and eLawyering.com) bring up error messages. An Internet Archive search shows the site’s last recorded update was in 2017.
  • The group initiated a public email mailing list at one point, but if it’s still operational it’s hard to find. After a little time spent at the ABA’s mailing list portal I can find no trace of it.

Why Not More?

With these accomplishments understood, it’s fair to ask whether the eLawyering Task Force could have accomplished even more.

I don’t believe the group’s leadership was to blame:

  • Bill Paul was a real leader in my book. Sure, he cribbed the basic idea from a British academic, but isn’t finding the best ideas and promoting them exactly what we would hope a leader would do?
  • I can’t think of anyone better qualified to lead the Task Force than Richard Granat. He had worked in related areas for years and had a record of creativity, determination and accomplishment.
  • The late Jim Keane, one of the country’s top legal tech experts (and the inspiration for the ABA’s James I Keane Award for Excellence in eLawyering) was a co-chair of the group.
  • The eminently well qualified Marc Lauritsen became co-chair about the time I left the group.

If the people were not the problem, then why didn’t the Task Force accomplish even more?

The ABA’s culture and organization were a handicap. The ABA is fundamentally a trade association. While it sometimes undertakes activities intended to create public benefits (like supporting pro bono projects and vetting judicial nominees) its primary reason for existence is advancing the interests of its members. Given this context, the fact that some perceived eLawyering as a sort of do-gooder program was probably a drawback.

Rocking the boat is seldom popular, especially when some perceive the project’s purpose as being something other than making life better for lawyers.

The fact that ABA presidents are limited to a single one year term was another handicap. I understand the desire to bring in new blood and fresh ideas but the lack of continuity makes long range initiatives difficult. When a president leaves his pet projects slide off the priority list.

Bottom Line

Did the eLawyering Task Force achieve what I and others hoped it would achieve? No.

Did the project achieve everything it could achieve working within the ABA structure? Probably.

I think the eLawyering project’s biggest benefit was just putting the ideas of eLawyering into play. Seeds were planted. The ground was too dry for them to fully blossom then, but attitudes and receptiveness evolve over time. Would Jack Duncan’s book be provoking so much discussion if not for the Task Force’s groundbreaking work?

While the ABA eLawyering project’s contributions should not be underestimated, I agree with Cat Moon and Dennis Kennedy that it’s time to consider alternatives to the institutional approach.

The objectives of the eLawyering project still matter. I’m just as much a rebel today as I was 20 years ago. The only difference is that today I have a better idea of how real innovation is possible.

I will be sharing my thoughts here and at a new website I am developing: eLawyeringinnovation.org.

Jerry Lawson

E-mail Disclaimers

It’s smart to include disclaimers in all your e-mail messages, right? A friend of mine summarized her advice at a CLE conference a few years ago as “Disclaim, Disclaim, Disclaim.”

Is it really that easy? Disclaimers have their place, but don’t expect too much from them.

A Lawyerist article entitled This Post is Privileged and Confidential has some good observations on the nearly ubiquitous disclaimers in e-mail messages:

There are several problems with these disclaimers, aside from cluttering up email threads. For one, attorney-client privilege and confidentiality are not the same thing.  Without digressing too much, suffice it to say that while all attorney-client privileged communications are confidential, only a small portion of the client information lawyers are required to treat as confidential is also privileged. Another incongruity is that an email intentionally sent from a lawyer to almost anyone except a client will not be confidential or privileged at all (setting aside agents or experts the lawyer may be contacting on the client’s behalf or negotiations subject to a confidentiality agreement or rule).  So for the vast majority of emails that lawyers send — to colleagues, to witnesses, to vendors, to friends, to listservs, etc. — the disclaimer is meaningless.

Undermining Disclaimers Through Overuse

Which brings us to the real problem with these disclaimers:

By overusing them, lawyers may be undermining the effectiveness of disclaimers in protecting the confidential or privileged nature of the information in the email in the (hopefully) rare event that an email is misdirected (or inadvertently produced in discovery).

In Scott v. Beth Israel Medical Center Inc., 847 N.Y.S.2d 436, 444 (2007), the court refused to find that a series of emails were privileged just because they contained a disclaimer that was found in every email sent by the plaintiff. Moreover, by overusing disclaimers and privilege warnings, lawyers are training the world to ignore them — which is precisely what we don’t want people to do.

Want to keep your communications confidential? Encrypt them.

Internet for Lawyers: Books and CLE

Good book. Will have a detailed review later:

Cybersleuth’s Guide to the Internet: Conducting Effective Free Investigative & Legal Research on the Web ( 14th edition Revised 2019) and several other books.

Authors Carol Levitt and Mark Rosch have operated the Internet for Lawyers website since 1999 and offer a variety of CLE programs. Their blog is available.

Presentation Tip 11: The Humor Paradox

One of my professional friends had a major problem: A major cases of humor-impairment. Though bright and articulate he absolutely could not deliver a joke in front of an audience. 

This created a problem for him. He had to teach a class on fraud. I dug up a seventies-era photo of one of the subjects the most famous fraudsters of the 1960s–Texas wheeler-dealer Billie Sol Estes.  My friend accompanied this slide with a mildly sarcastic reference to the subject’s “leisure suit.”  It was a remarkably garish garment, even by the standards of the 70s.  Though this joke wasn’t exactly the peak of wit, my friend never failed to get a laugh using this photo as a prop.  Even better, knowing that his joke was a pretty much a guaranteed winner increased his confidence, making him more effective with the rest of the presentation. 

Why is effective humor a key to successful presentations? We’ll start with a question:

Which of these statements is correct?

  • Presenters should never tell a joke just to be telling a joke.
  • Nearly every presentation can be improved by using humor.

Though these statements may appear inconsistent at first glance, they are both correct. Humor is a great way of connecting with an audience—but it is usually a mistake to include a joke just so you will have a joke.

The difference is critical: If you tell a “joke,” and no one laughs, you look like a dummy, and worse, a dummy who just wasted everyone’s time.  By contrast, if your would-be “humorous” material advances the substantive point you want to make, it doesn’t matter if the joke falls flat.  You haven’t wasted anyone’s time.  You’ve still advanced the ball.

Distinguishing between “canned” humor and “organic” humor is a key to resolving the apparent inconsistency.  Canned humor is something artificial grafted onto your substantive ideas.  Organic humor flows from your substantive ideas and helps advance them.

Of course, getting a laugh is even better, and one of the little-understood truths is that organic humor does not have to be very funny to get a laugh.  Look for chances to introduce humor that naturally arises from your substantive material.  It the humor advances the substantive point you are trying to make, so much the better.

Graphics are an easy way for even the humor-impaired to add humor to a presentation.  Show the audience a picture that relates to your topic.  Sometimes the picture itself will be the “punch line.”  More often, you will deliver the punch line orally.

A beauty of the organic humor approach is that even if no one had laughed, it would not be a problem.  The speaker had not gone “off topic” in a time-wasting unsuccessful attempt to get a laugh.

Want to know more about the use of humor in presentations? “Humor Consultant” Harold Kushner’s book Successful Presentations for Dummies remains the best reference I know on this topic.

Presentation Tip 10: Cuomo & Powerpoint

Andrew Cuomo is having a moment. The New York governor is attracting tremendous attention for his COVID-19 briefings, which are typically telecast live by national networks. 

Cuomo’s approach contrasts favorably with President Trump’s typical briefing approach. Cuomo has many strengths as a presenter, including his understanding of MS Powerpoint.

The text and links in a recent Fast Company article demonstrate why Cuomo’s presentations have touched a nerve.

“We can’t be stupid” was the blunt message to a key demographic that was not complying with quarantine recommendations from the deck that ran alongside New York a recent Cuomo briefing:

Effective use of PowerPoint will be a key theme of this Presentation Tips series. The potential benefits of slide shows like those created in MS Powerpoint are consistently underrated. We will be using Cuomo as an example in a number of posts, but for the time being will only quote a section of a Business Insider article that explains some of the Cuomo-style slide show benefits:

Cuomo’s PowerPoints read like an iPhone notes app list of everything he woke up worrying about in the middle of the night. It’s the text a dad sends with his assorted list of worries. They convey a sense of authenticity, of someone who is sharing his thought process (often bluntly and in ALL CAPS) in real time. Much like how a comedy PowerPoint gives you a peek into the thought process of a comedian, Cuomo’s PowerPoints seem like his a projection of his id: They’re from a loud, bullet-pointed heart.

Much more on this topic later, but the key point for now is:

Slide Shows can have enormous benefits–for those who know how to use them.

Why I Loved the eLawyering Project

I was proud to be a member of the ABA’s eLawyering Task Force from around 1999 until 2003. The project’s goal was using the Internet to help provide middle class Americans with better access to legal services. That was a worthwhile goal, but I had a different reason for supporting it so strongly:

I believed that if it was successful, there would be spillover benefits to people like those I grew up with.

I grew up in McDowell County, West Virginia. At the time it was probably the poorest county in the poorest state. The poverty in McDowell County is so deep and so persistent that in 2014 the New York Times used the county in an article portraying it as the poster child of poverty in America.

To me eLawyering was not just another pro bono project. It was personal.

Trump’s Attacks on Inspectors General

Donald Trump’s efforts to undermine the independent Offices of Inspector General (IGs) have provoked significant public controversy.

Since I was a lawyer for IGs in three different agencies between 1993 and my retirement in 2018 I feel qualified to comment on this issue. In these jobs I assisted teams of criminal investigators and auditors in their efforts to reduce waste, fraud and abuse of government funds. Since I am retired, I am freer to express my view of this matter.

In the course of my IG jobs I frequently worked with members of Congress on both sides of the aisle and their staffs. Everyone in Congress that I worked with, including the most liberal Democrats and the most conservative Republicans, liked the IGs because they provided reliable, objective information about government problems.

Trump’s efforts to undermine IGs deserve more national attention. The relative lack of attention is probably a result of the national health crisis. While thousands of people are dying it’s tempting to downplay what may appear to many citizens as an insignificant reshuffling of organization charts.

This relative lack of attention is a large mistake. Trump’s actions are a significant attack on an institution that is one of the most effective independent oversight bodies. It’s part of a pattern that threatens our democracy. A bipartisan response is needed. There are some signs that this is beginning to coalesce, but given the tremendous level of political polarization, success in these efforts should not be taken for granted. The bizarre reaction of Attorney General Bill Barr reduces optimism that this scandal will be appropriately addressed.

Glenn Fine

One more point: I know Glenn Fine, one of the IGs Trump has undermined. He was and is absolutely one of the most respected IGs. That’s why a panel of his peers selected him to lead the oversight of the trillions of dollars Congress is giving Trump to spend. Fine was not fired, merely demoted, but the demotion removes him from any real decision making oversight role.

I have no personal acquaintance with Michael Atkinson, the Intelligence Community Inspector General who Trump recently fired. He assumed office only a few months before I retired, but as a result of my work in the IG community I do know that this job is considered one of the most sensitive and difficult IG positions. Only the most capable people are considered for the DNI IG position.

Finally, a personal note:

Once I became an IG lawyer, I never wanted to do any other type of work. I loved it because we were independent. We went after Democrats or Republicans with equal fervor. We really didn’t give a damn.

This is the Inspector General ethos. This is why Trump fears IGs. It is why, when so many Americans are dying, sick or distracted in the midst of a great national public emergency, Trump is taking advantage of this to undermine their efforts to reduce waste, fraud and abuse.

Jerry Lawson

Nicole Black Tips on Collaboration

Very timely! LLRX is hosting Nicole Black‘s article “Securely Collaborate and Communicate Remotely: A How-To for Lawyers.” Nicole likes portals.

Glad to see her emphasize a recent change in the ABA Ethics Committee’s recent change in its approach to unencrypted emails:

[I]n the mid-1990s, bar association ethics committees across the country began to approve the use of unencrypted email when communicating with clients and for nearly two decades lawyers used email to communicate with clients since no other more secure methods were available. But most ethics opinions acknowledged that the standard established was an elastic one that could conceivably change as technology advanced and more secure options became available.

Since then, technology has improved significantly, and more secure electronic communication methods have emerged, rendering unencrypted email insufficient for certain types of client communication, as the ABA acknowledged in Formal Opinion 477 last year. In this opinion, the Ethics Committee concluded that unencrypted email may not always be sufficient for client communication.

Specifically, the Committee advised that lawyers must assess the sensitivity of information on a case-by-case basis and then choose the most appropriate and sufficiently secure method of communicating and collaborating with clients. Options offered in the opinion included encrypted email and “the use of a Virtual Private Network, or another secure internet portal.”

Facebook Quizzes and The Folly of “Secret Questions”

Lots of discussion lately about risks of filling in quizzes on Facebook. This is merely a new example of an old problem:

Many websites, including banks, have gone to the practice of allowing users who have lost passwords to obtain access to their accounts through the use of “secret questions.” For years the classic secret question was “Mother’s Maiden Name.” Though there is now more variety in secret questions, they still represent a giant security flaw. Security guru Bruce Schneier has written many times about this issue, including this concise essay.

Serious attackers will often be able to figure out the answers by researching the subject–especially subjects who are indiscreet users of social media.  This is even more risky today, with the popularity of quizzes on Facebook. Close friends or relatives inclined to access your accounts may not even have to do all that much research. They may already know the brand of your first car, or the name of your favorite elementary school teacher.  At a minimum, protect yourself by never giving a real answer when you set up a “secret question.”

Why do banks and other online entities like to use such insecure techniques? From their point of view, it’s better than having to deal with an angry customer who has lost his password. Any losses the practice may cause are an “externality,” a cost not born by the bank.