A Checklist for Balance in Your Personal and Professional Life By John Starzynski For all of us, practicing law requires us to balance our time among family, relationships, the law practice and personal interests. Sometimes we do not deal well with these demands.
Adobe Acrobat vs. The Clones By Stephen Bird Given the impossible task of looking at these many programs, this article will instead focus on comparing Adobe Acrobat with a few products discussed in earlier articles as well as a couple of products (pdf995 and pdfDocs) mentioned in two LawTech mailing lists, as well as one that has received a few reviews, Nitro PDF Professional.
Preparing to Say Goodbye to the Baby Boomers By Ellen Freedman I didn't want to scare anyone with a title which read "Baby Boomers Dropping Like Flies" because that has more serious connotations. But the reality is that the Boomer generation is slowly beginning to depart law firms; either through death, disability, early retirement, or beginning the process of scaling back.
Notes from the Middleground By Peter Hrastovec I am cleaning my office. No, not dusting. I don't dust and I am lousy at windows. Take my word for it.
Outsourcing By Aïda Van Wees Some innovations, like the Internet, will stand the test of time. Outsourcing promises to be one of those innovations.
Effective and Profitable Outsourcing: 10 Tips from 10 Years of Experience By Stephen L. Taran Lawyers are outsourcing court appearances, discoveries, drafting, and research to contract lawyers on a flexible, task-by-task basis. If you are considering using legal outsourcing services, there are several factors to consider before doing so.
Employee Work Ethic — A Different Business Model By Cindy Wahler Long gone are the days of cradle to grave work ethos. The employee/employer contract has been broken. Employees on average change employers at the 3-5 year mark.
To Store or Not to Store: Records Storage Cost-cutting Tips By Barbara A. Schwartz As the volume of client and administrative records stored in warehouses and on firm computer systems increases exponentially each year, so do the costs of storing and retrieving those records. What can you do to control these costs and improve your firm's bottom line?
Law Firm Profitability By James Murphy In order to be successful in business, law firms must decide what are the right things to do. This involves some navigation. Even rough planning has a better chance of getting you where you want to go than none at all.
Ontario Bar Association | Association du Barreau de l'Ontario The Ontario branch of the Canadian Bar Association | La division ontarienne de l'Association du Barreau canadien
Sole, Small Firm and General Practice is published by the Sole, Small Firm and General Practice Section of the Ontario Bar Association. Members are encouraged to submit articles or suggest story ideas.
The articles that appear in this publication represent the opinions of the authors. They do not represent or embody any official position of, or statement by, the OBA except where this may be specifically indicated; nor do they attempt to set forth definitive practice standards or to provide legal advice. Precedents and other material contained herein are intended to be used thoughtfully, as nothing in the work relieves readers of their responsibility to consider it in the light of their own professional skill and judgment.
Greetings from the Chair Bonnie Patrick*
We are almost through February, and then it will be March when Spring arrives; at least that is what Wiarton Willie told us on February 2. I hope everyone is staying warm and enjoying the winter.
Our Section has made it through another Institute. This year, we presented two breakfasts, both of which were well-received and well-attended. Simon Chester, from Heenan Blaikie LLP assisted our Newsletter Editor, Dan Pinnington to present Practical Pointers for Powerful and Persuasive Presentations - With and without PowerPoint. Our Vice-Chair, Joe McCallum presented Documents We Prepare for Our Clients That Are Required for Our Own Offices. The accompanying papers for this presentation are available on the website and can be accessed through this link (http://www.oba.org/en/gen/gen_en/genins.aspx). I was privileged to be able to attend both these presentations and would like to thank all the presenters for a wonderful job; believe me, it was worth getting up early both mornings.
On 28 February 2007, Ian Kirby and Justice Kendra Coats will be presenting a teleseminar entitled “The Self-Represented Litigant”. You can register for this teleseminar through this link (http://www.oba.org/en/gen/gen_en/Program.aspx). On 27 March 2007, Carol Kiley will be presenting a teleseminar entitled "Residential Tenancies Act". These timely topics are being presented to you via this medium, at a reasonable cost, and if you have not taken advantage of any of the teleseminars in the past, I encourage you to try one or both of these and to stay tuned for more in the future.
Other Sections are also using teleseminars to provide timely continuing legal education. Upcoming is "The Working Lunch" presented by the Law Practice Management Section.
If you have not done so already, I suggest you read the latest “Sections in Review” (http://www.oba.org/en/pd/sectionreview_en/default.aspx). Many Sections have provided timely case comments that I am sure you will find useful to assist your clients.
People are beginning to use the listserv and I encourage those who have not yet signed up for this service to do so through this link (http://www.oba.org/en/main/listserv_en/). There is a lot of experience and knowledge among our Section members and I suggest that you take advantage of the listserv to access this experience and knowledge.
And, I remind the regional members that if you and/or your local law association would like to present a “live” continuing legal education program in your own region, the OBA is there to help you. Contact Tannia Belvedere (tbelvedere@oba.org) and she will assist you.
Finally, Dan Pinnington from LAWPRO, (he is very busy; see above), is Chair of the American Bar Association’s ABA TECHSHOW 2007. This is one of the best legal technology conferences in the world. Over 2 ½ days in March, 2007, it will serve up almost 60 CLE sessions presented by the world’s best legal technology speakers and a vendor expo with more than 100 exhibitors. ABA TECHSHOW stands alone among major legal technology conferences, as it is independent of vendor influence and provides attendees educational content in presentations and materials that are untainted by sales pitches. The keynote speaker is the Honourable Judge Shira A. Scheindlin, of the United States District Court for the Southern District of New York, as the ABA TECHSHOW 2007 Keynoter. Judge Scheindlin is renowned for a series of landmark decisions on electronic discovery in Zubulake v. UBS Warburg. To find out more information about ABA TECHSHOW 2007 and to register see www.techshow.com.
I am hoping that the next time I write “greetings” the snow-blowers will have been put away and we will be complaining about some other aspect of the weather besides cold temperatures and snow.
A Checklist for Balance in Your Personal and Professional Life John Starzynski*
For all of us, practicing law requires us to balance our time among family, relationships, the law practice and personal interests. Sometimes, we do not deal well with these demands. The results can be: burnout to breakdown; emotional reactions leading to mental collapse; distress steering to despair, depression or, to the extreme, suicidal ideation or completion; substance abuse leading to addiction; and stress and anxiety causing physical and emotional disease.
So here is a checklist of some of the ways for you to take care of yourself to keep you practicing at your optimum level:
1. Physically– take three deep breaths and then exhale when under stress before speaking, eat three balanced meals a day, get eight hours of sleep a night, exercise at least three times per week for at least one-half hour at a time, cut out or back on smoking and the consumption of alcohol; drink lots of water; and, laugh as often as possible.
2. Emotionally – have a good, trusted friend to talk to, confide in and laugh plenty with, get a pet; read non-law fluff out of office hours, spend time with your family; learn to say “No!” to demands that are too much; know what too much is; get a hobby and do things you are passionate about; and, do something nice for someone daily without them knowing about it and with no expectation of reward.
3. Spiritually – laugh lots; read great works of literature with noble ideas; pray to whomever or whatever is your higher power; read daily affirmations or meditations; kiss your spouse or partner; hug those close to you; and, say “I love you” daily to those you cherish.
The Ontario Bar Assistance Program provides professional help and confidential contact with other lawyers who are facing challenges - physically, emotionally and spiritually. An OBAP volunteer offers support, encouragement, suggestions and perspective.
* John Starzynski is the Volunteer Executive Director of the Ontario Bar Assistance Program which assists lawyers, judges and law students with issues of stress, burnout, addictions and mental wellness challenges. John can be reached at 1-877-584-6227.
Adobe Acrobat vs. The Clones Stephen Bird*
Readers of The Lawyer’s PC will recall earlier reviews of Adobe Acrobat 71 as well as some third-party Acrobat plug-ins (Redax and StampPDF2), clones (CutePDF, PDF995, and PDF Converter3) utilities (PentaPDF4) and word processors5 which have been designed to produce PDF-formatted documents. These few programs seem to be just the tip of the PDFing iceberg. According to Rick Borstein: “In fact, there are at least 200 products that classify themselves as primarily PDF-oriented.”6
There are surprising few reviews of these clones.7 Given the impossible task of looking at these many programs, this article will instead focus on comparing Adobe Acrobat with a few products discussed in earlier articles as well as a couple of products (pdf995 and pdfDocs) mentioned in two LawTech mailing lists, as well as one that has received a few reviews, Nitro PDF Professional.
A PDF clone should be able to do two things well: first, create; second, edit PDF-files. Of course, having a few extra features such as security would be a bonus.
The first part of the process seems relatively straight-forward, although clones tend to trip over the more complicated aspects of a document where columns, charts, and graphs are present. We talked a bit about this in our review of WordPerfect X3.
If the clone can produce an accurate PDF-file but has trouble with editing, then it seems fairly simple to change the original document and then re-save it in PDF-format. A good example of this is PentaPDF, which can create but can’t open/edit, PDF-files. Are users worse-off for this limitation? Maybe... but not necessarily.
So, lets have a look at some PDF clones and how they measure up to the original, Adobe Acrobat.
CutePDF Pro
CutePDF Writer was the PDF-clone of choice for The Lawyer’s PC editor Dan Harmon. He said: “By and large, third-party PDF creation utilities function as printer drivers inside your application program. ... At the moment, CutePDF Writer (www.cutepdf.com) and Pdf995 (www.pdf995.com) are included in my printer list, along with my workhorse laser and other printers. … CutePDF Writer has proved to be amply powerful for my document transfer requirements so far. I haven’t encountered anything about it I don’t like.” Dan offers some good suggestions to test whether CutePDF Writer, or any other PDF-clone, will meet your needs. Revisiting Dan’s article (July 15, 2005) is recommended.
However, as noted earlier, PDF-production is only one part of the comparison. Can the PDF-clone do other things, such as editing, equally well? Or are freeware programs like CutePDF limited to producing a good PDF-formatted copy of the original? WordPerfect can do this now and Microsoft is reported to be considering a similar feature in the next version of Word. Of course, if your software plans don’t include an upgrade of Word or WordPerfect, then a freeware program like CutePDF Writer makes good sense.
CutePDF Pro, which is more powerful and not free, is available in a trial version; if you like it, then the introductory price is $49.95 (all figures are in US dollars). The interface looks friendly enough and Bates numbering is offered (although I haven’t tested it). However, any editing ability was not apparent. Security and some other Acrobat features seem to be available.
Rick Borstein’s Dozen Reasons for Using Adobe Acrobat
“I get a lot of calls from Legal IT folks who need to be able to tell their boss why they are paying over $200 a seat for Acrobat instead of a cheap clone. Here's some ammunition if you are one of those folks:
Adobe offers free deployment tools that allow large law firms to customize their deployment using industry-standard tools.
Adobe makes the best, most compact, most accepted PDF files. Clones often don't do everything necessary in all cases to meet court standards.
Adobe PDF is structured (tagged) allowing your firm to meet government Section 508 accessibility requirements. As far as I know, the only way to get tagged PDF is using Adobe tools. Tagging is also critical for review workflows, accessibility, re-use, etc.
Adobe offers OCR, creation, review, etc. all in one package, not spread across several packages or requiring additional products.
Adobe offers volume licensing for Acrobat and all of our products.
Adobe owns the PDF spec . . . we are always ahead of the rest of the market.
Adobe offers a variety of server products that tie PDF and Acrobat to business critical workflows.
Adobe offers the most comprehensive security from simple usage restrictions to self-certifying documents which instantly alert you if a document has been changed.
Adobe offers Reader enablement, so that you can send files to free Adobe Reader users for Review.
Adobe offers the best QA'd, most reliable software. Our product has won numerous awards and is used by millions of users around the world.
Adobe is a Fortune 500 company. Most clones vendors are 3-15 people running on a shoestring without a long term commitment to you or the product. Some of the claims on clone websites are digital snake oil! Beware of comparison charts . . . they only tell you what the vendor wants you to know.
Adobe drives PDF adoption in government bodies worldwide who demand quality, predictable documents that meet court standards. New standards around PDF will always appear in Adobe products first. One recent example: PDF/A.”
Jaws PDF
Jaws PDF is another program that is well-regarded, although the version numbers and functions can get confusing. Jaws PDF Creator 4 seems to function like other PDF clones – it is seen as a “print to PDF” function in many applications while Jaws PDF Editor 3 lets users view, navigate, search, annotate, fill forms, merge, save and print PDF files. Neither Jaws has a particularly pleasant user interface.
Although one Jaws PDF Creator 3 reviewer8 had problems with installation, this wasn’t my experience with the current version.9 However, I found the Editor difficult to use – I never did learn how to use it to change text in a document I’d produced and converted to PDF. So, while it is easy to create PDF-files with Jaws Creator, and while editing may be in the Jaws Editor toolbox, I expected editing to be easier to use. A Bates numbering feature would have been nice, but I couldn’t find this, either.
Nitro PDF Pro
Nitro PDF Professional is another program that is easy to install and use. It created accurate PDF-files from within MS Word, even when the original contained formatting for court documents. It was also easy to edit these PDF documents. Help is a 300-page PDF document which one “searches” with the Nitro search tool (in the toolbar, it resembles binoculars) or reviews via Bookmarks.
NitroPDF is one of the few clone programs which has been reviewed. Donna Baker,10 writing in WindoWatch, says: “The NitroPDF Professional program is designed to be a highly-functional PDF creation, management, collaboration, and distribution tool. It has a reasonable price point ($99 US), and compares very favorably against Acrobat 7 Standard...”11 Others say “NitroPDF shows promise in its first version”, “BinaryThing.com ... offers a nice PDF creation and editing application called Nitro PDF Professional.” and “... Nitro PDF Pro is an inexpensive and light (only 24.7MB) PDF maker, editor, and workflow manager that may be all most of us need.”12
Donna Baker provides a good overview of the capabilities of Nitro PDF in creating PDF files, editing file content, evaluating properties, manipulating contents, building forms, and securing and distributing files. She also offers some specific examples (“Check it out”) of what Nitro PDF can do. A number of reviewers note that Nitro is particularly suited to general office use and lawyers will be pleased to see the Bates numbering function.
pdf995
pdf995 takes its name from the cost of this (no advertising / no-nag) PDF-clone, just $9.95, otherwise it is freeware. Dan Harmon, editor of The Lawyer’s PC, looked at pdf995 in the July 15, 2005 newsletter. He said: “Pdf995 ... is part of an interesting set of utilities, few of which I’ve had occasion to try. Software995 PDF-related programs offer linking, text and image manipulation, page numbering, automatic attachment of PDFs to e-mail, digital signature and other security features, batch automated PDF printing, and much more.”13
Although pdf995 likes an open Internet connection, so the sponsored ads can appear in the freeware version, it will work without a live connection and, much like other clones, the conversion is good.
However, a companion program, pdfEdit995, isn’t so friendly because it works on the last pdf995 file opened, but only when the file is closed! In other words, users don’t see current editing but only after-the-fact. Strange….
PentaPDF
PentaPDF is part of the PentaWare suite of utilities which has been reviewed in The Lawyer’s PC.14 While it does a good job converting Word and WordPerfect documents to PDF-format, users cannot edit the resulting file; instead, changes would be made in the original file and re-saved by PentaPDF. One nice feature is the program’s ability to do batch conversions of Word-to-PDF format.
A chart of the PentaPDF features can be found at http://tinyurl.com/l8s5c. More information and a 30-day demo are available at http://tinyurl.com/lf7q5. PentaPDF, as part of PentaSuite Business Pro, costs $85.
PDF Converter Pro 3
PDF Converter Pro 315 is another clone which editor Dan Harmon looked at in The Lawyer’s PC (March 15, 2006). Dan did a good test-drive of this program from Nuance (formerly ScanSoft) and my experience is similar to his. It was easy to install and use, and the PDF-documents it produced were good. While I was pleased to see a Touch-Up Text tool for editing, I was disappointed not to see Bates numbering or redaction.16
Although PDF Converter Pro 3 doesn’t have the most interesting user interface it is functional.17 Overall the product seems to do what it promises. In my tests comparing Adobe Acrobat 7 Pro with PDF Converter Pro 3, I found the latter easier to use and it did a much better job saving a variety of sample PDF-documents to MS Word (*.doc) format.18 Given the other well-regarded products with the ScanSoft heritage (Dragon NaturallySpeaking and OmniPage), this product deserves serious consideration.
Users may want to review the Bookmarks and explore the contents of the 90-page PDF Online Help Guide.
WordPerfect
If you recall my discussion of WordPerfect X3's PDF capability (see the April 1, 2006 newsletter), then you will know I’ve been generally pleased with the quality of PDF-format documents produced by Corel Presentations, Quattro Pro, and WordPerfect, although import and editing has been inconsistent. Complex documents were imported with some distortion while more conventional law office PDF documents (contracts, agreements, memos) were imported with generally good results.19
Final Thoughts
There are many PDF conversion programs beyond the ones mentioned here. For more options search Google: pdf+converters.
Nitro PDF Pro costs $89 and a 30-day trial download is available. More information, including a product overview and a price/feature comparison with Adobe Acrobat 7 Standard and FinePrint pdfFactory Pro, can be found at http://www.nitropdf.com. PDF Converter Pro 3 is $99.99 online and a list of Features and Benefits can be seen at http://www.nuance.com. Nuance doesn’t offer a trial download although a refund may be available.
A package/promotional price of $84 for JawsPDF Creator 4 + Editor 3 can be found at: http://tinyurl.com/oqejn. PdfDocs is another option20 but I had trouble finding instructions and then using the editor to change text that had just been converted from Word to a PDF file. While the interface is better than Jaws, it lacks user-friendliness.21
Only you, as user, can determine whether a clone is the best PDF product for your law office. Rick Borstein, a Acrobat Adobe manager, offers some good advice: “Adobe still makes the best PDF and the best tools for working with PDF. Still other tools may work for certain tasks, but make sure you thoroughly test them against Acrobat Standard or Professional. Take a test drive, compare file sizes and how the files look on-screen. Try printing the files and timing print time. Above all, does the product meet all your needs? Does it allow you to fill in and save data in a court form? Does it allow you to efficiently combine PDFs to create eBriefs or Deal Books. Does it offer the ability to use robust commenting tools? Acrobat isn't inexpensive, but that doesn't mean it isn't an excellent value and the right choice for your firm.”
Overall, among the work-alikes, Nitro and PDF Converter have the most to offer. PDF Converter offers slightly better conversion while Nitro Pro has Bates numbering. Neither program offers a redaction feature while pdfDocs, which offers redaction but not Bates numbering, is difficult to use.
Neither CutePDF Pro nor Jaws PDF would be on my short list, although CutePDF Writer and pdf995 seem to be good at creating PDF documents. PentaPDF and WordPerfect are other options worth considering.
* Stephen Bird is a Perth, Ontario lawyer and a Contributing Editor of The Lawyer’s PC newsletter. He can be reached via e-mail atStephenBird@lawyer.com. A version of this article was originally published in The Lawyer’s PC (West, a Thomson business) on June 1, 2006.
1 Acrobat 7 Professional, The Lawyer’s PC, January 15, 2005. 2 See The Lawyer’s PC, January 1, 2003. These law firm useful plug-ins come from Appligent. 3 Dan Harmon in The Lawyer’s PC, July 15, 2005 and March 15, 2006. 4The Lawyer’s PC, February 1, 2003 and September 1, 2004 as well as January 15, 2005 endnote 1. 5 WordPerfect Office X3, April 1, 2006. Publish in PDF-format is also available in OpenOffice (http://www.openoffice.org) but not yet in Microsoft Office. According to Peter Deegan in Office Watch (3 Oct 2005) MS Office 12 will include PDF-support. “Specifically Word, Excel, PowerPoint, Access, Publisher, OneNote, Visio and InfoPath will have options to save a document or report as a PDF file. ... I suspect that while Office 12 may eliminate the need for basic PDF conversion tools, there will still be a market for third-party converters to support features that Microsoft doesn't cover.” 6 Rick Borstein has an interesting blog posting on the pros and cons of Adobe Acrobat vs. PDF-clones http://tinyurl.com/fpnvk. Rick is an Adobe business development manager specializing in the Legal Market. His postings are used with permission. 7 See InternetWeek, July 1, 2005 (http://tinyurl.com/) “Attack of the PDF Clones” which looks at Nitro PDF Desktop 1.77 and ScanSoft (now Nuance) PDF Converter Professional 3. Nitro PDF is also the subject of a review at http://tinyurl.com/zhtvj. PDFzone talks about “An Embarrassment of Riches: How To Choose a PDF Creation Tool” at http://tinyurl.com/kw4su and compares “choices” by using car analogies: Acrobat = Cadillac, while Jaws, Nitro, and PDF Converter = Ford. An older 2003 PCMagazine review, with Editor’s Choice selections of FinePrint pdfFactory Pro (http://tinyurl.com/qnqs3) and Jaws PDF Creator 3, can be found at http://tinyurl.com/psvux. 8 Jack Passarella in a 2003 WindoWatch article at: http://tinyurl.com/g2v9o. A 2003 PCMagazine review can be found at: http://tinyurl.com/n2ew3. 9 Jaws PDF Editor 3.0 was released April 19, 2006 with new forms capabilities (http://tinyurl.com/qajzy). 10 Donna Baker (http://www.donnabaker.ca) is an Adobe Certified Expert who has written books on Acrobat 5, 6, and 7. 11 Donna’s excellent article can be found at: http://tinyurl.com/ksghy. Although her review refers to Part 1, there is no Part 2 since WindoWatch has unfortunately stopped publishing. 12http://www.anova.org/blog/ (go to the May 12, 2005 posting), http://tinyurl.com/m97ko (WebProNews, November 29, 2005) and http://tinyurl.com/mk5nc (LapTop Magazine, February 6, 2006). 13 An ABA LawTech correspondent asked: "I want to be able to convert MS Office and other documents to pdf format. I don't need to create pdf documents, or other Acrobat functions, though it would be nice to be able to combine multiple documents into a single pdf. On google, www.pdf995.com appears to be the best approach. I don't want ads, sponsor pages etc., so I'm willing to pay the $9.95 for the ad-free program." From a follow-up Q&A came: “Stephen, I've been using pdf995 for quite a while now and I'm very happy with it for my simple purposes. At $9.95, you can't beat it.” 14 See, for example, the February 1 and December 1, 2004 issues of The Lawyer’s PC. 15 A TechnoLawyer member said: “I use – and have had good results with – PDF Converter Pro 3.0 by Nuance (f/k/a ScanSoft). It will take PDFs and convert them to Word, or vice versa. It's certainly much less expensive than the full Adobe Acrobat package.” 16 A discussion of the importance of redaction can be found at: http://tinyurl.com/lxsmj. 17 A mouse “snap to” function in the exit dialogue (yes/no/cancel) box would be a welcome addition to both Nitro and PDF Converter. 18 Nitro fell between PDF Converter and Adobe Acrobat in quality of converting a PDF-document to Word format. Surprising, all three products had trouble with a PDF Invoice form with Acrobat 6 and 7 completely unable to deal with a Product information sheet that was handled by both Nitro and PDF Converter. 19 WordPerfect Universe (www.wpuniverse.com) tells us: “However, WordPerfect will not open all PDF files because it does not support every feature of the Adobe specification. Corel’s design goal for this capability is to capture PDF documents that were originally produced by another word processing application. In general, the more graphically complex the PDF source, the greater the challenge to WP’s capability to represent document structures such as tables, lists, footnotes and graphics boxes so that they can be converted to the corresponding WP features.” Some Tips for Editing Imported PDF Documents can be found at http://tinyurl.com/fnq2u. 20 A well-regarded ABA LawTech correspondent had this to say: “... pdfDocs offered some value-adds such as DMS integration and redaction, which Acrobat lacks by itself. We compared pdfDocs to Adobe 7 Standard and Professional and found many overlapping functions between them. However, each has some features the other doesn't, or different approaches on the overlapping functions. So you truly need to develop your required feature/function list beforehand to do a proper analysis. We found Acrobat's feature set to best align with our specific needs.” The need to know what you want in PDF functionality was addressed in Dan Harmon's article in The Lawyer's PC last July 15, 2005 “PDF Creation Options”. 21 A DocsCorp Australia spokesman says that OCR is an extra that can be added. US prices range from $50–130 per user for the license, depending on volume. Annual maintenance of 20% is on top of this. For more information visit http://www.docscorp.com.au. One TechnoLawyer member likes the “Find and Hide” tool found in pdfDocs for redaction. Adobe Acrobat redaction is available via a third-part utility, Redax, from Appligent – see The Lawyer’s PC, January 1, 2003 “Acrobat Plug-ins”. Another redaction technique, using Adobe Acrobat and great caution, comes from a two-part blog entry from Rick Borstein at http://tinyurl.com/f8pj7 and http://tinyurl.com/hormg. This alternative method “may” work with PDF-clones which provide an editing function.
Preparing to Say Goodbye to the Baby Boomers Ellen Freedman*
I didn’t want to scare anyone with a title which read “Baby Boomers Dropping Like Flies” because that has more serious connotations. But the reality is that the Boomer generation is slowly beginning to depart law firms; either through death, disability, early retirement, or beginning the process of scaling back. And the trend just beginning will accelerate sharply in the coming years.
Many firms, regardless of size, have not prepared for this transition. Many have not even thought about it. Placing ones head in the sand works great for ostriches, but not so well for lawyers. The impact will be huge. And the impact will be felt at firms of all sizes; from large to small and solo. If you’re one of the Boomers, you’ll feel the impact, too. That is, assuming that your “short answer” isn’t just to wake up one day and decide to close up shop and walk away from your sweat equity. What are the issues you must resolve? What should your firm be doing to prepare?
The issues will differ in some significant ways for solo and small firm practitioners, as will the solutions. The solutions now come easier at larger firms, because most have sufficiently institutionalized themselves to carry forward with a new generation of eager young partners. Those which had unfunded retirement obligations discovered long ago that the burden on the firm’s continued viability was unacceptable. In fact, some firms imploded from the financial squeeze. Ironically, many firms which did not have retirement arrangements imploded as well because there were unrealistic expectations on the part of some senior partners. It was a sufficient wake-up call to cause many large-sized firms to rethink the whole retirement and transitioning process. And to subsequently rewrite partnership agreements.
Leadership & Strategic Planning
Large firms have actually gotten a lot better at this, and many well-managed mid-size firms have followed suit. Not necessarily because they have had better leaders at the helm. But mostly because they’ve had to do so just to survive. By and large Darwin’s evolutionary survival of the fittest has taken care of those large firms which were unable to effectively build this into the culture of the firm.
A firm has to have a “next generation” of leadership to carry on. So there must be a purposeful process to seek out those willing and desiring to do so, and then a process developed to actively train —groom— them in the leadership and business skills they will require. I know, I know, you’re already thinking, “I didn’t have any training, and I did just fine.” I hear that all the time. But you know darned well that law firms today are not the same as law firms used to be. It’s a highly competitive marketplace, a global economy, a buyer’s market, lacking in employee or client loyalties, lacking in “face time” between partners, technologically sophisticated, with Rules and pitfalls in abundance.
Let’s take just one important aspect of firm leadership and planning: managing partner compensation. This includes not only the methodology of divvying up the revenues, but also, for example, the manner in which the communications are handled. Any consultant will tell you that during periods of success and expansion, even the worst compensation scheme will look good and work well. But during lean times even the best compensation scheme will look bad and cause partner dissatisfaction. In the “old days” partners grumbled. Today, they’re gone like a shot, taking clients and staff with them.
For these reasons and hundreds more, firm leaders need skills in an area not taught in law school: business and people management. There are a number of places to acquire these skills, and those interested should contact me for guidance in locating them. As far as finding a visionary— a true natural leader—well, there are consultants to assist the firm in developing a collective vision, if the firm has no visionary at the helm.
The smaller the firm, the harder it is to find that next generation, and hold onto them. If you read my last article entitled “I Had a Dream” you know the vulnerability you have, and the many challenges you face in this regard. I was shocked at how many firms contacted me quietly to ask, “Is it my firm you’re referring to?” So don’t go into this with the attitude “He/she is lucky to have this opportunity,” but rather with an attitude that shows you’re lucky to have someone you can groom for this responsibility, and you’re going to do everything possible to ensure his/her success.
Revenue Generation
Do some financial projections which map out the rainmaking growth of your young generation of partners, and the growth on the expense side. As the Boomers scale back and retire, will the firm remain a viable financial entity? Do younger partners understand the dollars and cents and know the extent to which they must step up to the plate? Are they prepared to do so? Are you helping them prepare to do so? Again, this is a different world, and just because you were able to build a book of business in different times doesn’t mean you’d be able to do it starting from scratch today. I frequently hear that from partners, admitting that they’re so fortunate to have been building their practice during those expanding market years when clients were plentiful and competition limited.
Some lawyers—and consultants, I might add—believe that marketing is an inherent skill that one either has or doesn’t have, and cannot be taught. I very strongly disagree with that line of thought. As long as a desire exists to learn, marketing skills can indeed be taught. That doesn’t immediately translate into making everyone a rainmaker, but it does mean that combined efforts can accomplish the task.
What is your firm doing now about making marketing part of the culture of the firm? About making it a criteria which weighs in compensation? In doing so, you can help spark the desire to learn. Are you teaching your attorneys how to create realistic individual marketing plans that conform to the firm’s vision, and then holding them accountable to follow them? Are you providing opportunities to learn and progress? By that I mean that when you teach a baby lawyer on the professional side, you first start with assignments which help them hone their skills. Research. Drafting. Review and summarization. Repetitive “cookie cutter” work. Then move them as quickly as you can to more challenging assignments. The same should apply to marketing skill development.
If you don’t know yourself what the proper transitional steps are to help young lawyers develop and hone these skills, you have merely to ask. Call or write, read a book, engage a marketing consultant, attend a high quality educational event geared to marketing legal services. Be prepared. If it’s high quality the chances are there may not be CLE credits involved, at least not here in PA.
Transitioning & Servicing Clients
An attorney recently discussed with me a law firm environment where associates and even junior partners were not permitted to call another attorney’s client, even if doing all the work on a matter. This is an extreme example of a protectionist policy taken to its most paranoid nth degree. Yes, there is always a risk that if one permits a client to develop relationships with other attorneys at the firm, that attorney might defect and take the client, or even stay and take the client. After all, it’s the client’s decision to decide who will do their work.
On the other hand, the desire to maintain total control over the client relationship can backfire. With no one else at the firm to transition to, if the client and originating attorney have a falling out, the client will definitely be lost. If the originating attorney dies, becomes impaired or otherwise disabled, the client will likely be lost. And when the originating attorney decides to retire or significantly scale back . . .you got it, the client will likely be lost. That is, unless the originating attorney has made sufficient effort to purposely involve other attorneys at the firm in servicing the client, and in developing supportive relationships with the client.
I recommend that all attorneys approaching retirement be required to spend at least a year beforehand helping other partners at the firm develop servicing relationships with clients. In truth, more time is really required to discover whether those new relationships are beginning to gel properly. Sometimes it takes a while to find out when they do not. In that case, there has to be time for the originating partner to take the client “back” and slowly introduce an alternative servicing partner.
Retirement Funding
How are the Boomers going to pay for retirement? Has your firm offered a retirement strategy in the form of a defined contribution, money purchase, 401(k) or other retirement vehicle? Will you phase them out in an “of counsel” position where they can continue to enjoy some fruits of their many years of rainmaking? Are everyone’s expectations realistic and shared? Have they even been discussed in detail? Are they spelled out in the partnership agreement?
Is there a continuing role that the Boomer can play for the firm as a senior statesman? Or is it better for the firm to make a clean break so that the next generation can take the ball and run with it? Sometimes those who have really retired but still hang around delight in playing “Monday Night Quarterback.” The criticism and comparison to predecessors can make even the staunchest flinch.
File Retention
Who will have responsibility to maintain the hundreds or thousands of files you have accumulated over the years? Who will make sure clients know where to go to get them if need be? Who will make sure they are destroyed after a sufficient time has tolled, without destroying documents that must be returned to the client, or for which the client must otherwise consent to being destroyed no matter how much time has elapsed?
For many, this remains one of the biggest challenges. For many firms no language has been built into the firm’s engagement agreement to establish realistic expectations regarding file retention. No purging was done at the time files were closed. There is no written records retention policy. Some clients cannot even be located.
Staffing
Don’t forget that many of those Boomers preparing to retire are your staff members. Unfortunately for you, there is not a sufficient supply of up-and-comers available to be hired. For those of you who will be left to practice law once the Boomers depart, you should be thinking now about how you’re going to work leaner, staff-wise, than you ever have before. Not because of the economic sensibilities, but because it will become increasingly difficult to find and retain high quality staff.
Answers will have to be found in more effective use of technology by lawyers, not just for lawyers. Improved systems of knowledge management will be necessary. More progressive human resource policies will come into play. Dipping deeper into the candidate pool, and making up the difference in more extensive training, will be required.
Solos and Small Firms
What if you’re at a very small firm, or are a solo? You have challenges ahead, my friend. Mid to large-size firms can more easily deal with these issues. So you need to think about them now. You can’t wait until the eve of the date you want to retire to make these decisions. Trust me; I get those calls all the time. You need to plan ahead.
In all likelihood, as a solo or small firm practitioner, you will either need to become of counsel to a larger firm, which can carry on your work and pay you for some of your equity as you transition clients, or you will need to sell your practice. These are the two methods to salvage your sweat equity. This doesn’t happen overnight. Creating the right strategic alliance takes time. Finding a buyer for your practice takes time. And you certainly don’t want to wait until your practice has seriously declined.
One of the errors entrepreneurial owners often make, be it in law or some other industry, is to wait too long to sell. Usually one of two reasons prevails. First, a belief that the business is worth far more, or will ultimately be worth far more than it can be sold for at present. Second, an emotional attachment to ones business. It’s like a child. Hard to sell for sure. As a consequence, most owners wait far too long to sell. By the time they are ready to do so, a good deal of the value has been lost.
I am frequently contacted by young attorneys who are seeking to purchase a practice, or become affiliated with a senior attorney who is approaching retirement. The problem is, they just can’t figure out how to be put in contact with the right match. How will you effectively let these attorneys know you are “out there” and interested when the time comes to start looking? Can your local or state bar association help?
As usual, I feel that I’ve weighed in more heavily on the side of asking questions and identifying issues than in providing solutions. To attempt to offer solutions given the myriad of facts and circumstances any particular attorney or firm may face, would be impossible in the space of a short article. Fortunately, individualized help is readily available. I encourage you to start with a call or email to your state bar’s Practice Management Advisor. If you don’t have one, turn to the American Bar Association Law Practice Management Section for assistance.
A version of this article originally appeared in the 5/1/06 issue of the Pennsylvania Bar News. Reprinted with permission of the author.
* Ellen Freedman, CLM, Law Practice Management Coordinator, Pennsylvania Bar Association, (800) 932-0311 x2228, lawpractice@pabar.org.
I am cleaning my office. No, not dusting. I don’t dust and I am lousy at windows. Take my word for it. You don’t have to ask my wife but some of you will invariably do so for sport. Windows are not my forte.
I am moving to the other side of our building. Call it a paradigm shift. I hate moving. But out of necessity, I do so and, as a result, it gives me a chance to do a thorough cleaning. Call it a purging, a disgorging of sorts. In any event, it was necessary and so I set about the task.
I am throwing out copies of O.R.’s (admittedly some unread), financial statements from three years ago, docketing reports that are somewhat older, magazines, brochures and sundry examples of junk mail that I have accumulated in the last year. I have enough paper to start a moderately well equipped air force of paper planes.
Why do I collect this stuff? I would like to say that I want to get to it and perhaps read it later. So I shuffle it off to the side of the desk where it grows legs and makes its way to the back of the wall unit and hides at the bottom of a mountain of other pieces of paper patiently awaiting my attention. How late is ‘later’ anyway?
Or is it because I am just too lazy to make an immediate decision on keeping it? To paraphrase seminal punk performers, The Clash, “should it stay or should it go?” In other columns, I tackled this perennial problem by saying that there is just too much material to read. But I keep chipping at it thinking that someday I will be caught up. A fool’s paradise right here at my fingertips.
I am now throwing in the towel. I am defeated, overwhelmed by all of the media geared to lawyers. And it is no longer just the print stuff. We now have internet capabilities that were not there ten years ago—case summaries, e-blogs, various opinion pieces and case sites that presumably help us with the changing face of the law. There are more people today with more opinions—both good and bad—than any time in the history of civilization. This may have some benefit to society. I just can’t read them all.
I am being asked to speak in Toronto in the next few months on the law of damages. My biggest fear is not the audience (“once a ham, etc”). My concern is more basic: ‘What if I miss an important case?’ Stuff comes out so fast that I may miss it. I am bound to miss it. How do you stay on top of the issues and the cases so that you don’t miss a leading case?
The answer is you don’t because you can’t. You can read as much as there is out there but there is so much out there that you won’t be able to read it all. There is just not enough time in a day, let alone a week. There is just too much information for you to stay in sync with everything. In fact, by reading this piece I am distracting you from reading something more engaging and beneficial to you. Please note as well that at this point, you are already behind in your reading.
I hope that I will hit most of the cases. And if some significant decision should be released the day before my speech, so be it. If I pick it up, ‘Hooray’ for me. If I miss it, I will presume most of my audience will as well. I may have to ‘rely on the kindness of strangers’ and hope that someone brings it to my attention. After all, if nothing else, law is collegial.
The basket next to my desk is already filled with paper. Most of the stuff I throw out I recycle. It goes to the shredder. I read the label on the shredding receptacle that says that I will save half a tree by filling up the box. Good for me. A pat on the back. I have become a conservationist without trying all that hard. Saving trees. Creating oxygen. Supporting Kyoto without trying.
The empty boxes in my office fill up with files, photographs, pens, paper, old Rotary pins, paperclips, tapes I no longer use (I went digital in the past year), stuff which really has nothing to do with practicing law and things for which I have little or no memory or recollection. I have CDs (both for computer and music), books, binders, case briefs, toothbrushes, mouthwash, eye glass cleaner, mouse pads (four of them!), a laptop bag but no laptop, envelopes, speaker wire, wall pictures that no longer fit and an old tooth belonging to my youngest child, carefully wrapped in Kleenex and placed in my desk at a time when I must have been moonlighting as the tooth fairy.
The boxes fill my room to the point of claustrophobia. And then I recall moving my father first from his house to a retirement home and then finally to a nursing home when he required more care. He went from a larger space to a smaller space and finally to his single room. Though nicely furnished and neatly appointed it was embarrassingly small. He turned to me with the twinkle in his eye that I knew so well and which I miss so deeply and he said, “I will be fine here. Look how little is the space I truly need”.
If used wisely, it may be the one technology based tool that actually decreases stress, enhances profits and leads to greater career satisfaction.
Some innovations, like the Internet, will stand the test of time. Outsourcing promises to be one of those innovations. The term ‘outsourcing’ originated around 19801 and it means simply: to purchase (goods) or subcontract (services) from an outside company or individual, rather than hire internally. Work can be outsourced ‘offshore’, ‘near shore’ or ‘home shore’/ ‘on shore’.2 In the Canadian legal context, these terms have taken on the following meanings:
Offshore refers to legally trained individuals who are located overseas, like India;
Near shore refers to service providers who are in different countries but are relatively close in proximity, have similar cultures and speak English without a strong accent. For example, Canadians would refer to American mid-west lawyers as being ‘near shore’; and
Home shore/onshore are interchangeable terms that mean, essentially, practicing lawyers located3 in Canada.
Simply put: outsourcing work – offshore, near shore or onshore -- is a way to enhance firm resources and better manage deadlines and tasks.4 With proper technology, lawyers “can work on a matter anywhere, anytime and access any document they need…”5 It is not a fad6 and, according to some, “Combined intelligently, core competencies and extensive outsourcing strategies can improve returns on capital, cut risk, provide greater flexibility and make companies more responsive to the needs of the customers – all at lower cost.”7 Creative new firms, sole practitioners, lawyers practicing in association with other lawyers, or at small and midsize firms may be in a better position compared to larger firms to capitalize on the advantages that onshore outsourcing has to offer since they are more likely to be able to adapt.8
Of late, offshore outsourcing seems to have caught the attention and imagination of the media. Pundits suggest two primary reasons to outsource legal work offshore are that: first, work can be turned around literally overnight; and second, hourly rates can be substantially lower. Criticisms include:
outsourcing appears to threaten the livelihood of the domestic workforce;
a lawyer could be aiding the unauthorized practice of law if the lawyer outsourced legal support services overseas to a “non-lawyer” and did not adequately supervise the work;10
when billing for services of non-lawyers, in some jurisdictions, absent a specific agreement with the client to the contrary, the lawyer should charge the client no more than the direct cost associated with outsourcing, plus a reasonable allocation of overhead expenses directly associated with providing that service.11 Therefore, the exercise of outsourcing offshore may generate revenue but not profit.
The majority of these criticisms are mitigated by strategic outsourcing onshore (to Canadian lawyers), who are subject to the same code of conduct and ethical considerations to which you are subject. An additional advantage to outsourcing onshore is that it can combine having the right people, in the right place, at the right time to best serve your client’s unique needs. For example, lawyers can now efficiently contract lawyers to attend at court or discoveries without incurring travel costs and, more importantly, time lost in transit.12
To capture the essence of the concept of outsourcing professional legal work to a qualified Canadian lawyer, Taran Virtual Associates coined the phrase “virtual associates” to refer to their contract lawyers.13 “Virtual associates” are practicing lawyers who work off site and online, using their own equipment and software, creating work product to your specifications and tailored to your practice, on an assignment by assignment basis. The work product is supervised by a practicing lawyer called a project manager. As an independent contractor, the virtual associate is neither an employee nor a subordinate. The virtual associate and project managers are professionals who recognize that every project could be their last if the lawyer or firm they are assisting, and the ultimate client, are not satisfied with their work product. It is a collaborative relationship – the virtual associates specify the type of work they are interested in doing and they are not required to do anything unless they have committed to do it. The lawyer client, on the other hand, can outsource with confidence, knowing that the virtual associate has been pre-qualified and has the skill and expertise to deliver quality work.
Virtual associates are an outsourcing strategy that can provide lawyers with all of the best solutions for help. Lawyers get a professional team member and are relieved of the cost (and potential liability) that hiring a full time associate can present. Best of all, busy lawyers can delegate without frustration the work that they prefer not to do, and free up time to do the work that they enjoy, do best or that generates financial stability. All of which ultimately enhances career satisfaction.14
Anyone who has ever managed even one person understands how important it is to be able to delegate. When delegating work internally, one of the primary goals (because often a task may be performed better and faster by the lawyer delegating it) is to create an opportunity for the person to whom you are delegating to learn or develop a new skill. Experts say that you likely will not delegate effectively if you: believe you can do the task better/faster yourself; or worry that the lawyer to whom you are delegating might not do the task properly and, because you are ultimately accountable, your professional reputation may be at risk.15 Like delegating, outsourcing involves getting the job done through others. They both involve entrusting another with responsibility or authority. An important distinction between delegating and outsourcing is that delegating allows people to learn by doing whereas when you outsource the goal is to send the work to someone who is familiar with the practice area and already has the skills or abilities needed to complete the work. Therefore, outsourcing eliminates much of the frustration and time loss typically associated with delegating. When outsourcing, ensure that the firm has a policy that lawyers have appropriate experience and are not ‘learning on your client’s dime.’ If you have confidence in the person to whom you have assigned the project, it is a way of increasing your time, allows you the freedom to focus on what you should be accomplishing and to better see the big picture.
As you become more senior, consider only doing tasks that nobody else can do. Review your file list regularly, prioritize your work,16 and determine what makes sense for you to delegate internally and what you will outsource. Experts like Kathleen Brady and Edward Poll agree that the likelihood a project will be successful may depend on how well it is planned. It is critical to have defined and approved goals, a committed team and a viable plan of action that can accommodate change. By investing time at the beginning of the file and thinking it through, you can clearly define the goals and objectives, assign the tasks, and assess the progress to ensure you get the end result you want, which will ultimately save time. At the beginning of the assignment, consider:
What is the goal or desired end result?
How many people do I need to accomplish the goal? What type of skills do they need to possess?
Can some of the tasks be carried out in parallel, perhaps by different teams?
Will delegating critical tasks to someone else free me up to troubleshoot as problems arise?
Are there competing projects that are going to take up key resources?
Any tasks that you cannot complete efficiently, that you do not have time to complete, or that could be performed when you are not there or unavailable, are tasks for delegation or outsourcing. Never keep work because you have not organized the file or have fallen behind. Developing the discipline required to delegate or outsource certain tasks to others, on a timely basis, by reviewing the file in advance, is a way of developing good organization and practice skills and is an effective way to address a substantial cause of malpractice claims. According to Daniel Pinnington:
Most lawyers are surprised to learn a failure to know or apply substantive law is not the most common error that lawyers make. It is only the fourth most common error at firms of all sizes. The biggest claims risks, and the biggest opportunity to reduce claims exposure, lie in the basic lawyer/client communications, and in time and deadline management…
Missed deadlines and time management and related errors are the second biggest cause of LawPRO claims in all sizes of firms… Lawyers at firms of all sizes seem to have a dusty file or two that sits on the corner of their desks for far too long, and makes procrastination-related errors the third most common time-related error. (p. 25)
The eight most common malpractice errors represent more than 90 percent of the errors for all sizes of firms. In terms of risk management and claims prevention, taking some proactive steps to address these claims is your best opportunity to reduce claims exposure…(p. 27).17
“Lawyers need to delegate more often, if only to respond to clients who are demanding that work be delegated when and where appropriate to keep costs as low as possible. Clients don’t want to pay for inefficiency.”18
To increase profit, you must decrease costs, increase revenue or plan to achieve a combination of both.19 Outsourcing is a practice whereby lawyers can cut down on fixed costs. Typically, virtual associates are available at hourly rates that are below the market rates charged in metropolitan centers. This is possible because virtual associates are often located in areas where billing rates are lower but quality is just as high. Also, virtual associates do not have the overhead that firms often carry in larger centers and therefore can be profitable at substantially lower rates. In 1997 the Law Society of Upper Canada said that “It is our opinion that the [outsourcing] agencies are performing a very useful service to the members of the legal profession and those clients they serve.” Furthermore, it is in order that the lawyer or law firm gross-up the fee so long as “it is revealed to the client and the client consented”.20 Therefore, not only is onshore outsourcing a source of revenue, it is potentially profitable. Take a hard look at the numbers and calculate the cost and benefits of adapting to include outsourcing as compared to hiring a full time employee, remembering that outsourcing work smartly can free you up, as well as your full time associates and partners to do higher level work. Carefully consider and calculate what makes sense for you to do, and not to do. It has often been said that law firms are made up of ‘finders’ (those who develop client opportunities), ‘minders’ (those who maintain client relationships once they become clients) and ‘grinders’ (those who do the work and often prefer to avoid client contact, if they can). Firms may make the mistake of focusing on training associates to be ‘grinders’, when it is in the firm’s long-term best interest to develop the skill sets of ‘finders’ and ‘minders’. It may make sense to outsource repetitive or low level work. Firms may also need to find alternative ways to get work done to keep talent.21
To enhance profitability through outsourcing, consider:
Outsourcing the work for which you cannot bill your full hourly rate, and devote your valuable time to more profitable work;22
Capitalizing on ready access to up-to-date technology (without necessarily incurring the fixed cost for it) and research skills of lawyers who are efficient;
Managing peak periods without adding overhead that may not be justified;
Increasing your client base by accepting clients that you might otherwise have declined given your overall workload;
Increasing time for client development;
Reducing cost of traveling; and
Offering a greater array of services utilizing the skills of virtual associates.
Allison Shields suggests that lawyers consider preparing a “don’t do” list to help them to manage time and reduce stress. To prepare this list, Shields suggests that you think about your strengths and weaknesses and try to be brutally honest. Are you a great speaker, but a poor writer? Perhaps writing articles, and drafting motions or briefs should go on your “don’t do” list. You are far better off to work with your strengths and let others work with theirs to help you. You must learn to prioritize what you will do and what it makes sense for others to do. If you are like most lawyers, you believe that you must do everything … or at least, appear to be capable of doing everything. Perhaps that is why so many lawyers are unhappy.23
Outsourcing may also be an essential practice tool that will help you to provide exceptional customer service. According to Karen MacKay:
In the perfect client service firm everything would be designed around the client… The perfect firm of any size would leverage technology in very powerful ways that would enable lawyers and clients to collaborate, use knowledge and anticipate client needs. Leveraging technology enables small firms to have a much stronger “punch” than their size would normally permit.24
Your goal should be to have customers who would advocate this product or service to family and friends, and more importantly, to colleagues. And if you rely on word of mouth referrals, in other words, clients who refer other clients, perhaps you need to think about the bigger picture: What will make them come back – doing the research yourself or having it done efficiently by a lower cost lawyer? What will make them refer others – doing the work yourself or getting it done quickly and efficiently? If you or your firm were subjected to a customer service survey, would you find yourself listed as one of the top providers of legal services of your type in the community?
Keep in mind, the more you explain in that initial meeting how things will transpire, the more comfortable the client will be. This is your best opportunity to manage the client’s expectations. Be proactive and explain to clients that you use outsourcing to handle a client’s matters on a cost effective basis. Explain the benefits of having a junior lawyer or a lawyer who has developed some expertise in the practice area handle the task. It is important that you have the client’s consent to outsource or delegate work.25 Managing client expectations and communicating with them is an enormous part of your job, and your skill in this area may significantly impact the likelihood that your client will be a satisfied client, and that you will be spending less time addressing complaints. The five most common malpractice errors all involve client communication and basic practice management issues, all of which are “easily preventable”.26 Ultimately it is about effective time management. Keeping your client apprised of progress eases client stress and tells them that you are on top of things. As you become busier, client management takes up more time. It is often putting out fires that keep lawyers busy on a day-to-day basis. As well, there are few things that are more frustrating than unreturned phone calls. Two or three successive phone calls without a response are likely to create the impression that you are too busy to do the job well, or that you don't care. Through outsourcing you can free up time for this all important client contact.
To outsource onshore effectively:
Start with a small project and build from there.
Outsource aspects of the file if it does not make sense to hire and train lawyers for the specific task. For example, outsourcing subjective codification of documents in jumbo litigation files is both time and cost efficient. Web-enabled hosted review systems are very popular, which facilitate access to databases for multiple reviewers to have access from different locations. Document review in discovery is becoming more complex and time consuming in this age of new technology. The question is: How do we do it, efficiently? Especially for big firms, outsourcing may be the answer. As well, more firms are using software to capture precedents, yet few firms have dedicated the resources required to turn what is becoming a mountain of data into something usable. It may not be cost efficient to hire a full time lawyer to manage resources, but again outsourcing the project may be.
Work with someone who really understands the unique aspects of a law firm because their owners and consultants are or were practicing lawyers.
Check for an informative, well constructed website. Keep in mind that outsourcing is growing because of technological sophistication and innovation and you should gain confidence in the firm’s ability to deliver based on its web presentation.
Conduct a personal consultation, ask for references and check them.
Consider the length of time in business. Some experts suggest you should look for a firm that has been successfully in business, full time, for at least 3 years.27
Review retainer agreements to ensure that you can outsource and the work can be marked up to earn a profit. Ask for samples of retainer agreements.
Confirm that your word processing system is compatible and that the virtual associate has ready access to compatible email, document handling and database capabilities.
Make sure the outsourcing firm you use understands the importance of and complies with the federal Personal Information Protection and Electronic Documents Act (PIPEDA) and that, at minimum, it’s policies regarding managing security and privacy comply with the Lawyers’ Professional Indemnity Company’s risk management initiatives.28
Understand the firm’s docketing policy and insist that they docket in detail. Make sure they bill you at regular intervals, preferably monthly rather than just at project completion, so that you can monitor progress and bill the ultimate client on a periodic basis.
The bottom line is that using outsourcing strategically could enhance your profitability, the quality of your practice and your career satisfaction. It is one technology-based tool that should, if used properly, reduce stress and enhance career satisfaction.
* Aïda Van Wees, LL.B., MBA, LL.M., is a consultant for Taran Virtual Associates, and can be reached at 1-877-262-7762 or by e-mail at avanwees@virtualassociates.ca.
Effective and Profitable Outsourcing: 10 Tips from 10 Years of Experience Stephen L. Taran*
Taran Virtual Associates - The Legal Outsourcing Network has been providing legal outsourcing services to lawyers throughout Canada for the past 10 years. TVA’s clients are busy lawyers who are finding that legal outsourcing allows them to maximize their profitability and increase career satisfaction. Lawyers are outsourcing court appearances, discoveries, drafting, and research to contract lawyers on a flexible, task-by-task basis. If you are considering using legal outsourcing services, there are several factors to consider before doing so. What follows is a checklist of issues to consider, questions to ask, and steps to take within your own office to maximize the effectiveness of legal outsourcing and ensure that it works for you.
Do not procrastinate. Like with any delegation of work, the more time you can give to the service provider, the more likely they find the ideal contract lawyer to assist you (ideal meaning a contract lawyer with the appropriate level of experience and time to complete the project). Review a list of all of your files regularly to identify projects and contact your service provider immediately if you are considering outsourcing the project. (Note: Even if you have not left much time for project completion, call anyway – your service provider is there to help and, while assigning last minute work is not ideal, there is a possibility they can assist).
Get your client’s consent. Review your retainer or letter of engagement with your client to ensure that the client has consented to work being delegated or outsourced.
Use on-shore professionals. The use of properly accredited and insured Canadian lawyers will avoid many of the criticisms that have been leveled against outsourcing legal services off-shore.
Ask for references. It is a good idea to speak to colleagues who have taken advantage of outsourcing, and to confirm how long the service provider has been in business.
Review the qualifications. Ask about the depth of your service provider’s pool of talent to ensure that their lawyers are ‘not learning on your client’s dime’ and that they have experience and practice in the relevant area. This is the primary difference between delegating internally and outsourcing. Ask whether your service provider is willing to provide details with respect to their contract lawyers, including: the process they use to select and screen; resumes, transcripts or other background information; years of call; and areas of practice.
Confirm quality control. Ask whether the service provider manages the deadlines and reviews the work product. For example, confirm that as a matter of course the service provider has a lawyer review the work product of the contract lawyers to ensure quality before it is delivered to you.
Protect the lawyer-client relationship. Ensure that appropriate protection is in place to preserve your client relationship.
Avoid conflicts and protect confidentiality. Ensure that your service provider has an appropriate conflicts check system in place, as well as appropriate policies to protect confidential information.
Ensure instructions and budget are confirmed in writing. To properly clarify the parameters of the project, ensure that the following instructions are confirmed in writing: the relevant facts, scope of the project, expected deliverables (e.g. memorandum of law or just the cases), financial budget, and deadline. If you prefer to provide verbal instructions, ensure that your service provider confirms these instructions back to you in writing.
Communication is key. Obtain the service provider’s commitment to communicate with you during the project, particularly if there are unforeseen complications that may impact on the ability to deliver on time or on budget. Get contact information to enable you to communicate with the service provider or contract lawyer in an emergency, outside of typical office hours.
In summary, when used correctly and in concert with the right service provider, legal outsourcing can increase your profits, control your costs, assist with managing the growth of your practice, increase your career satisfaction, and enhance client service.
* Stephen L. Taran is the President and founder of Taran Virtual Associates, 1-877-262-7762, www.virtualassociates.ca.
Employee Work Ethic — A Different Business Model Cindy Wahler*
Long gone are the days of cradle to grave work ethos. The employee/employer contract has been broken. Employees on average change employers at the 3-5 year mark. At the 3-year point employees begin to ask, “What’s next?” Both recruiters and employers regard the “lifer” as less marketable. One should be continuing to push the learning curve engaging in ever-increasing challenges and embracing new mandates.
The constant refrain from senior executives of most industry sectors is the “lack of work ethic” of today’s workforce. Employers believe that their staff, although working hard, do not possess the same level of investment, commitment and engagement as previous generations. Although there is sweat equity, it is not at the same temperature and pace as when the old guard was forging ahead with their careers.
I beg to differ. Without a doubt a shift has occurred. Today’s workforce has changed due to a combination of factors, downsizing in the late 80s and mid 90s, consolidation of industry sectors, the bottom falling out of the tech sector and a tremendous access to a plethora of instant means of gratification and lifestyle comforts allowing for employees to be driven to play hard as well.
Our workforce has been labeled as a society of “dilettantes” who are indulged in, self-possessed with less motivation and regard as to how they may become long-term stakeholders of their organizations.
As executives lament about the “liabilities” of the workforce they must heed this as a critical wake-up call.
A shift in the business model has taken place by employees. Although employers seem to be fighting tooth and nail to hold on to vestiges of an old regime, we are no longer working with the same paradigm. Employees have determined that the value of hard work although rewarding, is no longer something to which they are willing to donate their blood nor sell their soul. The employee population continues to work extremely hard still clocking in excessive hours. A willingness though to give up a lifestyle for a future far off date is no longer negotiable. Employees of today are putting boundaries around 24/7 expectations.
As it is a competitive landscape the war on talent has created a seller’s market. Not only are employees asking “What have you done for me lately?” but “What will you continue to do for me on an ongoing basis?”, “How are you investing in my future development?”
As well, today’s workforce from a sociodemographic perspective has been indulged in by the accumulation of material goods that is tantamount to instant gratification. Children should be seen and not heard is an archival notion. Parents are constantly celebrating the achievements of their children. In previous generations these achievements were considered part of expected roles in the household and contributions to society. Not only does Susie or Johnny get praise for doing well at school but they are heroes for making their beds, shoveling the driveway and setting the table. In response our children expect some kind of compensation, a new DVD or tickets to a Leafs game. Have we indulged our children? Perhaps the attitude of our workforce reflects a degree of self-possession. “Don’t forget to remember me.” “If you want greatness I will give it to you but you must acknowledge me completely.” Employees no longer will remain forever loyal and dedicate years for that gold watch. They already have a gold watch amongst other feel-good items they have acquired all by themselves. The net result is that employees are requesting more and more attention and recognition. It is no longer assumed that hard work is a given. Employees not only expect that financial compensation reflects market value, but now add recognition into the mix. Recognition and affirmation now loom larger. Employees want to be told that they are valued through verbal feedback and ongoing praise which they view as a marker as to how valuable they are to their organization.
In order to sustain motivation and enhance investment in our workforce and ultimately increase stakeholder values, as 60s as this sounds, employees are demanding that employers incorporate as their mantra “Have we hugged our employees today?” Mission statements that of course reflect “Customers as First” and “Leaders in the Marketplace” now appear not inclusive enough with employees demanding they too are consumers and need much attention, stroking and love.
So what is an employer to do? A reluctant but necessary acceptance of the need to change today’s business model must be heralded. As well although organizations are not daycare centres, nor sheltered workshops, employers must realize that “employee of the month” is considered paltry whether they like it or not. Employers must possess an attitude reflective of embracing their workforce. “Employee of the hour” is of course extreme but it is today’s reality.
* Cindy Wahler is an organizational psychologist and executive coach with expertise in leadership development. She can be reached atcwahler@sympatico.ca.
To Store or Not to Store: Records Storage Cost-cutting Tips Barbara A. Schwartz*
As the volume of client and administrative records stored in warehouses and on firm computer systems increases exponentially each year, so do the costs of storing and retrieving those records. What can you do to control these costs and improve your firm’s bottom line? The answer is to establish and implement a policy that prescribes what to store and for how long. These elements are specified in a records retention schedule. It identifies what records you have, how long you need to keep them to meet operational and regulatory requirements, which department or group needs to keep them and why.
Where to Begin At first glance, the notion of a records retention schedule may seem so overwhelming that it is to be avoided at all costs. Indeed, schedule development can be a complex, time-consuming and controversial process. Before you decide whether to start down that road, however, let me point out that you can realize substantial savings by deciding what your firm will not store.
Ground Rules Although paper records are the focus of this discussion, for illustrative purposes, the issues discussed here apply to electronic records and any other formats you may have. Keep in mind that the retention policy your firm develops should be applied to all records, regardless of format.
What’s in Those Boxes? Before you can decide what will not be stored at firm expense, you need to assess what you are currently storing. The easiest place to begin is your commercial records centre, because you can review paper records more easily than your electronic records. Take a look at your current inventory – you may be surprised.
Firm Business? In addition to old client and administrative files, you will undoubtedly find an array of some or all of the following items:
books, journals and other printed publications;
office furniture, equipment and supplies;
desk accessories such as coffee mugs; and
unused forms.
These items can account for a significant portion of your firm’s off-site inventory, but they do not contain information related to firm business. From a records management point of view, these items should not be stored at firm expense. Determining what is and what is not related to firm business, then, is a reasonable first step in setting your policy.
Are All Client Files Storage-worthy? Back at the commercial records centre among the boxes that contain client files, you will likely find a significant volume of material that should not have been sent there in the first place. Although all client files obviously relate to firm business, two additional criteria should dictate which matter-related records are retained and stored after a matter is closed:
ownership of the item; and
whether the record is an official record or a reference copy. (In records management terms, an official record is the original or official copy that provides information or evidence of the organization’s transactions, decisions, procedures or policies. In contrast, a reference copy is a duplicate that is maintained for ease of reference.)
Who owns each document belonging to a client file – the client or the firm – is a complex issue that is discussed in detail in the Law Society’s “File Retention” article that is referenced in the “Practice Management Guidelines” on their website (http://mrc.lsuc.on.ca/jsp/pmg/fileManagement.jsp) and will not be covered here. However, your firm’s policy needs to specify which records are the firm’s and which are to be delivered to the client when a matter is closed. Records belonging to a client should never be sent to storage at this time. Clients must retain control over their own records, to apply their internal business rules for retention and destruction.
Because only official records should be sent to storage when a matter is closed, your retention policy needs to specify what constitutes an official record. The “File Retention” article cited above states the following: “Lawyers should retain copies of documents that evidence the client’s instructions, change in instructions, solicitor-client communications and work performed on behalf of the client”. That statement is followed by a list of documents that a lawyer should consider retaining from the client file. This list is an excellent starting place for deciding what components of a client file are official records.
Listed below are some of the document types your firm may wish to consider when defining non-records (that is, records that should be destroyed when a matter is closed):
Legal research. Printouts of LexisNexis searches and copies of cases, regulations, periodical articles and the like can be very bulky. Because the search itself as well as the source material can be reconstructed, these items can be considered non-records. A compromise is to retain only the list of cases and other references.
Drafts. Although the above-referenced Law Society article states: “Copies of drafts of agreements or other documents to evidence or support changed instructions” should be retained, nothing is said about other types of drafts. The decision regarding retention of drafts may vary among practice groups.
Extra copies of documents. An extra copy is an exact duplicate. Therefore, a marked-up document is not a duplicate of a clean copy, but only one copy of any marked-up version needs to be retained.
Working files (also called Holding Files). By definition, these files contain duplicates of records and documents that are maintained for ease of reference by various lawyers working on a matter.
Chronological files (aka Letter Books). These are copies of all of a lawyer's correspondence, regardless of matter, filed in date order and/or handwritten notes initially recorded in a notebook in date order, regardless of matter. The material in these files should be considered reference copies. The official correspondence and/or notes are contained in the client files.
Handwritten notes. Although the retention of “lawyer’s personal notes” is suggested by the Law Society, keep in mind that notes can be easily misconstrued or taken out of context. For this reason, many firms prescribe that only notes transcribed into a memorandum to file are official records.
What About Administrative Records? Administrative records are those that pertain to the firm’s business operations. Included in this category are records that are maintained by staff in administrative departments and the non-client-related records maintained by the legal staff.
Although the ownership issue does not apply to administrative records, the official record vs. non-record distinction does. The following types of records held by staff in administrative departments should be considered for possible non-record status:
Drafts;
Extra copies of documents;
Superseded promotional materials produced by the firm. (Note: One copy of every promotional piece should be retained as part of the firm’s archives.)
The following types of non-client records maintained by legal staff should be considered when defining non-records:
Paper copies of time/billing and expense records. The data entered in the time/billing system is the official record.
Outdated/unused precedent files. If precedent files maintained by individual lawyers are sent to storage, those files are not being used. Outdated material has no value and should not be sent to storage.
Firm committee records. Only the records of the committee chairperson should be considered official records. Duplicate copies held by committee members are non-records.
Conclusion Development and implementation of a records retention schedule is the best way to control the growth of firm records and reduce costs associated with records storage and retrieval. If your firm cannot undertake this complex process right now, you can still save money by deciding what will not be stored at firm expense. Once this decision has been made, document and communicate the policy to all firm members. Be prepared to enforce the policy across all levels of the firm. The effect on your firm’s bottom line could be significant.
* Barbara A. Schwartz is the president of Barbara A. Schwartz & Associates Ltd. A former law firm records manager, she has worked with Toronto law firms on developing retention policies, managing conflicts of interest and other records management initiatives since 1994. Barbara can be contacted atbarbara@barbaraschwartz.comor (416) 690-7766.
This famous quote comes from Hall of Fame basketball coach John Wooden. His success in winning ten national college championships, including seven in a row, was based on “doing the right things and doing them right”.
Similarly, in order to be successful in business, law firms must decide what are the right things to do. This involves some navigation. Even rough planning has a better chance of getting you where you want to go than none at all.
Financial planning is a subset of an overall strategic plan which encompasses what the firm wants to do on several fronts. Budgeting lays out a set of expectations for the coming year. In order to be effective, financial planning and budgeting must be accompanied by programs which measure progress and hold people accountable.
In our experience, two things that are most lacking in small and medium sized law firms are financial plans and effective systems to make them happen. The most common pretext for this deficiency is either a lack of time or skepticism about the benefits.
A 2005 Juris Law Firm Economic Survey showed that partners in firms which do plan and budget earn two to seven times more than those which do not. The survey results were drawn from 274 small and medium sized law firms in 42 cities across 40 states in the U.S. Survey participants represented all sizes of firms from 5 to 100 lawyers, and all manner of practice types.
The top performing firms excelled in all key law firm economic performance indicators. These firms understood the key factors and set goals to measure performance and hold people accountable for their targets. Partners in the top quartile of firms earned twice as much as the next twenty-five percent, and seven times that of law firm owners in the bottom quartile.
We all know from the time of grade school that measurement alone improves performance. But combine measurement with goals and plans to achieve those goals, and the whole culture changes to one of more effective management and teamwork.
Successful planning in law firms is caused by an emphasis on the process from the top. This kind of leadership could come from a managing partner or committee. In the absence of a formal management structure, a highly respected partner based on seniority or a book of business could lead the way. Eventually all players must buy-in with targets that are individual and acceptable to the firm as whole.
The legal professionals within the firm are its revenue producing resources. But every fee earner is an individual – each with a different balance to be struck in their professional and personal lives. Work on billable matters is only one part of the equation. Business development, professional development, management or administrative activities are other factors to consider in an individual’s plan.
However, in order to be a viable business there has to be a minimum expectation at the firm level concerning billable hours worked and/or revenue generated by each fee earner. In this regard, individual plans should also include effective billing rates and realization (the rate at which work is converted to cash). Individual lawyers should also specify what resources they need to meet established targets.
Measurement is critical to any financial plan. Lawyers should regularly receive statistics which are focused on the targets to be achieved. Having someone who knows how to extract relevant summary information from a large back office database is important to the process.
Remember also that cash is king. Business generation, hours worked, and fee billings in and of themselves do not translate into realization of profits. Work-in-process and accounts receivable are an important element of financial planning in law firms. Responsible lawyers should establish periodic measurement against targets for these pools of assets as well.
While managing expenses is important, cost cutting campaigns will not move a law firm to significantly higher levels of profitability. Measures which cut amenities, degrade facilities, or reduce personnel below accepted benchmarks usually cause more harm than good.
In fact, one of the key findings in the Juris Economic Survey was that the most profitable firms did not have the lowest unit cost measured on a per lawyer basis. However, their operating margins were higher as their expenses relative to revenues were lower.
Firms should concentrate on the revenue side in financial plans, where there is much more elasticity for incremental improvements. In addition to business development, firms should pursue opportunities to increase productivity, increase the firm’s effective rate and improve realization. Targets should be established accordingly and reflected in individual timekeeper plans.
While best practices for financial management correctly identify measurement and accountability as essential elements of planning, facilitation is often overlooked. This is especially true in smaller law firms where executive level analysis and control is lacking on the financial side.
Young lawyers typically enter the practice of law as a profession, with little emphasis on the business side. This is not to say that their vision is misguided. But, as their practices grow over time, some lawyers may never understand how their practice management habits impact on the firm’s financial success.
Many partners in law firms do not understand the economics of their own practice. More income is not always about ratcheting up the hours. As a result, they also may not appreciate the importance of decisions that must be made regarding the practice itself.
This is where proper coaching and guidance factor into the planning and implementation process. Each partner/lawyer should understand the key economic drivers of their practice, and how they are interrelated with firm-wide goals and objectives.
Many partners and associate lawyers also face time and practice constraints in carrying out their plans. They begin properly with the end in mind, but wait until the end of the planning period to identify gaps and take corrective measures. In many cases, the corrective action is not apparent, or not possible, due to other barriers within the firm which were not identified at the front end.
For these reasons it is important that reports be timely, accurate and compared to target. Measurement should be shared with, or reported to, someone who has the knowledge, savvy and authority to facilitate any practice changes required to stay on target. Such measures could range anywhere from improved timekeeping habits to the removal of restrictive controls within the firm which impede progress.
Facilitation is one more element of the planning process which sets those law firms and their performance completely apart from other firms which are not similarly engaged.
* James Murphy is a partner with Cosgrove Associates Inc. (www.cosgrove-associates.com) which specializes in strategic and profitability improvement planning and implementation to small and medium sized law firms.
Volume 4, No. 2 - February/Février 2007 