Cataphora…Yummy! Part I

I’m in love with H5 and not just because of their killer website and name that has more cowbell than I can handle, but I also am having special moments with Cataphora.

In the run up to the Sedona Conference, I’m taking another look at legal tech from the perspective of what lawyers really need and I’m pretty sure that the teeny weeny email application I’m writing (prototype due out at the end of the summer) is on the right track.

That being said, Cataphora really does have the right approach and are FIXING IT! “It” being the way search and retrieval of meaningful content is and ought to be done.

So, understand their mission, if you choose to accept it (and you should):

Defining principle

Cataphora’s success and very existence are based upon one defining principle. This arose from a conceptual breakthrough that was simply stated, yet proved to be radical in its practical effects. This idea was that, in order to truly understand a document, you have to know about the circumstances in which it arose. In other words, you have to understand its context.

The negative

Ok, they’re a bit … oh, I don’t know whiny and snarky,

Trustworthiness is a core value in the legal marketplace and at Cataphora. We strongly recommend examining all vendor claims carefully. One way to do that is by looking at how their website used to look. The Wayback Machine makes that easy – just go here and enter the URL for the vendor in which you are interested.

I mean, really! Who CARES what a website looked like in the Wayback Machine?! Is this really part of the E-DISCOVERY dog/pony show to which unsuspecting clients are subjected? Didn’t think so.

If that’s the standard, then most legal tech projects would be doomed, because when some of us were using computers in litigation, some others of us were still in high school counting spots. And, of course, some others of us were practicing law and making googobs of money (ahem!). Besides, an appearance on the Brewster Kahle show is not really an indicator of algorithmic quality. It just means you’re lucky, really smart or have your own private Tardis.

OK, so I don’t think Cataphora folks are lucky. I think they’re really, really smart. Buuuut, it’s not exactly rocket science. Maybe it was 10 years ago, but not any more. Ever looked at Digg Labs?

Two Patents? Hmmm. Gotta think about that one.

I’ve read both, but now I’d better look at the pictures, because this is one area where I’m pretty sure there’s so much out there now that these patents may not hold much water. Not a huge fan of business method patents anyway, but when they involve stuff that seems to be open-sourced to the hilt, it gives me pause.

I could be so incredibly wrong, so I’ll take another look, but at first blush, what they write about on the site seems right out of Collective Intelligence, a book I keep next to the bedside, cuz I’m that much of a dork.

Back to the Positive

But, Elizabeth Charnock, the founder of Cataphora is a much bigger dork, said with all sorts of love, so I think worship might still be in order.

Plus, she’s a girl, and that makes her AWESOME! And, a little scary.

I love Cataphora because….

they “get” the wisdom of letting computers do what they do best. And, computers don’t really care whether you have 1 or 2 terabytes. Which means that you can leave your data unculled, and the computer will keep chugging along.

Not only that, but once the data has been marked as “non-responsive,” it can still be used for all sorts of things. Like weighting. And, making your useful dataset searching smarter. Wanna know how? I bet you do!

Call me! No, really: call me.

So, let’s get real: [ bold statement ] there’s absolutely NO real reason to cull ESI ! [ /bold statement ]

I found this really HYSTERICAL presentation the other day entitled The Real Cost of Privilege Review ( and here) and all it did was make me think of lollipops. Read it and weep.

I want to know who out there is wasting soooo much money…so I can sign them up as clients, because this sort of process is so yesterday, even your 10-yr old could probably re-engineer it to get better and more cost-effective results. I mean, hasn’t anyone ever played pick up sticks???

So, why am I adamant that people stop culling? Because it’s like trying to speak French without any understanding of grammar.

To be more precise, I’m advocating that lawyers stop culling at the first tier, as if their lives depended upon a massive reduction in terabytes. I’m suggesting that culling ought to be done by the computer, and that valuable metadata (in a really, really board sense) ought to be retained until the end of the project. I’m intimating that the document corpus is a body and it’s integrity depends upon the entirety of its members.

In other words, in Cataphora-lingo:

Cataphora is the first and only provider to develop deep analytics (not mere data statistics or simple email widgets) that give insight into the facts expressed by the ESI dataset. True analytics can (among many other things) detect individual and organizational “heartbeats” and de facto organizational substructures, evaluate typical versus anomalous behavior, assess consistency and variation in an organization’s processes, and detect patterns of data deletion.

If you’ve got lawyers doing the culling and searching, here’s yer sign: you’re going about it the wrong way. It’s like taking a hachet to an old growth forest of oak with no appreciation for the vital role played by acorns.

I say, hire yourself a legally-trained person who knows about taxonomies and understands the difference between DATA, INFORMATION and ARGUMENT.

Lawyers, do not. Not unless they’ve taken “Data 101.” They usually work bass ackwards and try to squeeze everything into theory, instead of first trying to understand what they’ve got.

This is where Cataphora’s mission is key: understand the forest before you start cutting trees.

Thus, sayeth the Mighty Snarker, thereby ending-eth the lesson!

Checklist Mentality

Pilots think using checklists and mechanics don’t. Pilots need perfection, mechanics solve problems creatively.
This marks a fundamental difference in the way they process information and a reason why intercession is often necessary to make sure that the plane gets into the air and stays there until the time it’s supposed to land. And then, of course, it needs to land safely.

Following the theme of different thinking about the law, I wonder if we can also learn from a movement to get doctors to do the same thing:

A new study has found that hospitals could cut surgery complications by about 30 percent and resulting deaths by 40 percent if doctors and nurses follow a checklist of safety rules before, during and after performing surgery.

The checklist, issued by the World Health Organization last year in response to soaring reports of hospital errors, lists 19 steps that surgical teams should follow, starting with making sure that the right patient is on the operating table, the site of incision has been located, and that the proper procedure is about to be performed. “In this era of highly intense and sophisticated technology, sometimes a very simple technology, which only takes a few minutes, can have a very positive impact,” says Richard Reznick, head of surgery at the University of Toronto in Canada and co-author of the study published today in the New England Journal of Medicine.

It’s not going to work to simply give doctors a list of things after which they yell “check!” I would suggest that the doctor calls out the item and the techs around him or her get to answer “check!” This would instill some quality control over doctors who are notoriously imperious in the operating route.

Either that, –or force hospitals to send doctors to semi-annual trainings to ensure that they comply with the established operating procedures…

Oxo as a Model for Law 3.0

I was thinking today about the prospect for a program that refits the homes of the elderly (while they’re off visiting the grands or something) so that they can be self-sufficient longer.

A very good reason to move to Florida.
But, then I started thinking about Oxo products (which I use and love). Since I think they had a great, simple idea, I decided to look at their mission statement, as a way to take a working-break from devising the mission statements for my own projects. This is what I learned:

OXO is based on the concept of Universal Design. But what is Universal Design and how does it benefit users? In simplest terms, Universal Design means the design of products usable by as many people as possible. In the case of OXO, it means designing products for young and old, male and female, left- and right- handed and many with special needs.

“Universal Design“? Cool. This phrase deftly encapsulates my dreams of master-minding a revolution from the perspective of legal technological innovation. Wish I had thought of it myself. Here’s one articulation of the Principles of universal design:

PRINCIPLE ONE: Equitable Use

PRINCIPLE TWO: Flexibility in Use

PRINCIPLE THREE: Simple and Intuitive Use

PRINCIPLE FOUR: Perceptible Information

PRINCIPLE FIVE: Tolerance for Error

PRINCIPLE SIX: Low Physical Effort

PRINCIPLE SEVEN: Size and Space for Approach and Use

BWAAAHHHAHHHAAA~!

Here’s what one path looks like:

Step One: learn something about the law. Check!
Step Two: impatience with the inanity of legal practice becomes intolerable. Check!
Step Three: understand that my highest use is NOT chasing clients. Check!
Step Four: Battle with middle-class demons for 15 years. Check!
Step Five: Say, what the hell! I gotta be meeeeee! Check.

So, when Ron Gruner asks, as he did in his White paper, “What’s Holding You back?” I can sum up the answer in 4 words: A Team To Execute

That’s all and that’s it.

Now, in solving that problem there is a major dependency, called “money.” But, money is not the first consideration when it comes to “getting stuff done.” The Amish don’t need money to build barns, they need people.

The dirty little secret of capitalism is that there are a LOT of people who are not money-motivated. Most of them work long hours for other people. They’re not motivated by money,–they’re motivated by the things money can buy, their own limitations and their fears.

People aho are not money motivated are usually people with experience having lots of it. They know money doesn’t buy happiness and having “enough” money is relative to one’s perceived needs. That’s one of the lessons that allows our veterans to survive on the street,–the military taught them that survival isn’t about money, it’s about resourcefulness.

One thing I know is that there is a deep pool of people who have passion and who would gladly trade a Lamborghini and 100-hour work weeks for a satisfying 60-hour work week (let’s be realistic). Those are the people I need to find.

I find them, then I find someone with money to pay them to execute the visions.

That’s it and that’s all.

E-Discovery and the Great Booze-Up

Occasionally, I stick my head up and actually read the articles that discuss the role of technology in the litigation process.

Having thought about this stuff on the small scale for a LONG time,  it’s always kinda fun to see people state the BLEEDING OBVIOUS…so very cogently and thoughtfully. I am SO no one to be commenting on the proclamations of  “legal technology experts,” but what the hell. Here goes.

So, today, I read this great article by Ralph Losey that fails because it continues to put the responsibility for the morass of e-discovery where it doesn’t belong : with lawyers. I am a well-trained lawyer, but I solidly disagree that lawyers are equipped to be “in control” of the technical tools of their trade to the extent that one should suggest they ought to be.

In my view, the best practice is to learn how to delegate, and to know how to run a project properly. Do it “Serenity” style (the Firefly version, not the prayer) and allow people to do what they do best.

The objective should be to free the lawyer to be a lawyer, — not to saddle the lawyer with things about which they know very little.

Anyway, Losey begins with the problem:

…Runaway e-discovery costs are making it too expensive and uncertain to try cases. Litigants, especially large companies, are driven to ADR or forced to settle at inflated prices just to avoid e-discovery.

[ <snark> What he doesn't say is that lawyers don't like ADR because 1) it works and 2)  they're not willing to give up the gladiator mentality that characterizes lawyers from the first day of law school to the day one leaves the profession well-fatted or depleted...to follow your bliss growing exotic mushrooms in the wilds of Montana (disclaimer; if this is you, well, own it if the shoe fits. I don't know you, I just made this up for the extreme example). [taking a breath]

And, sooooorry, but it annoys me when people say things like “driven to ADR” as if it wasn’t there first. Stop hiring the problem as your neutral and you’ll get better results.</snark> ]

Ok, so what’s my source of disagreement? Surely, Losey is right about many things,and most importantly, the firms are gonna listen to him, so it’s important to support the voice of reason.

But, the new e-discovery rules are not  the problem.  Neither is the explosion of legal tech around compliance with e-discovery requirements. A computer really doesn’t care whether you have terabytes or petabytes of data, once you help it along by create batching and running several processors in tandem. You don’t even have to go to India to get economies of scale. The software issue is that people false expectations about what a computer can do when it is not given the right data.

I could talk about lots of points of contention in legal technology, but the main problem that this article rasies for me is the highly rebuttal presumption that lawyers are the ones who ought to control legal technology. Love the emperor metaphor, but, to me, the question isn’t the Emperor’s nudity, but whether that will be replaced with a Bob Mackie dress:

Losey doesn’t really admit that lawyers like to feel they know everything. He doesn’t really seem to take issue with law firms trying to write software and call it “best practice.” Which is probably why people will listen to this advice.

It doesn’t take a rocket scientist to know that even the best lawyers DON’T know everything. Ok, they know law. Or, maybe they specialize in breaking law for their client’s benefit. Either case is fine by me, –because that’s what the profession is trained to do.

But, what they DON’T know is how to build taxonomies or do true concept search. They DON’T know how to write good software and they DON’T know how to turn digital data into useful information (design).

Anyway, this is how he puts it:

To put it bluntly, most of us trial lawyers are not fully competent to practice law in today’s digital age of terabytes of potential evidence.

“Bluntly”? What this assessment doesn’t do is take on the mistaken notion that “practicing law” includes mastering technology. I challenge the aggrandizement of the legal profession and the refusal to parse problems into legal and non-legal issues so the best solution can be devised for the client. Most lawyers approach problems with a pocketful of hammers. <resumption of snark>Which is why they can’t handle ADR properly done and revert to ADR-as-litigation, increasing client consternation instead of allaying their concerns.</resumption of snark>

What I would like to see instead is the active development of the legal tech community to support lawyers, with the assurance that they are equal partners in the search for client justice. The non-profit world provides a great example with the ProBono.net project. Having worked with small start-ups such as Pika Software, I know that open source tools not only work, can be rapidly developed and deployed with a minimal amount of support.

Sedona is a great conference with great publications,–but so far, it remains the preserve of the white shoe firms. I’d love to go without having to be a member of the legal elite. [Maybe I can get in as a diversity attendee... substitute "geek" for "gay" and I think I've got all the minority bases covered! Hee hee! ] At any rate, open this puppy up and let’s get some diversity in the realm of what makes for good legal technology by integrating the views of geeks, as well as gurus.

“Protodigital” ? This is really kinda silly:

This failure of many litigation decision-makers to think beyond the protodigital is having catastrophic consequences for the ability of our civil justice system to deliver the just, speedy, and inexpensive determination of ANY action. (bold font retained)

It’s really just another way of saying certain people really oughta retire and let the new generation come on through and do things differently. People don’t like change, because it reduces their ability to command. When lawyers give up the obsessive need to control, then the profession will be better off. Did Obama micromanage his tech team,–the results show clearly that he did not.

So, while I definitely agree that the inquisitorial system, for all its merits, won’t work here, that doesn’t mean lawyers still need to run the entire show.

Unfortunately, the vast majority of lawyers and paralegals involved with e-discovery today, typically those involved only occasionally or on a part-time basis, do not have the skills and deep knowledge required for economical e-discovery.

Yup. That’s because document review is NOT legal representation. But, doc reviewers are hired as if it is.

Further, (and I feel a bit of the snark coming back here),  I just took a Project Management course with this amazing instructor, who within the space of about 5 minutes made it clear that project management is a critical skill for the next century. She also, without naming law in particular, demonstrated why most litigation projects fail: lawyers are NOT good project managers. Because good project management is a skill nt taught in law school:

Project Management is the discipline of planning, organizing and managing resources to bring about the successful completion of specific project goals and objectives.

In fact, the skills that make a good lawyer are antithetical to leadership, and team leadership in particular. Those skills that make some of us worth $150,000 to start also make us TERRIBLE at communicating a well-considered litigation plan, although clients who use project management skills every day are starting to  demand that lawyers get with it.

Ok, so maybe this is somewhat Oedipal: my Dad was a project manager and it took me __ years to figure out not only that anything worth doing was worth doing well but that anything worth doing wel required planning as a “project.” “Fail to plan, plan to fail.” Which is why I pulled my sites and am re-engineering (yet again) the software projects I create from the ground up. For the last time … until I hand it off to someone else! The benefit of coding things myself is that I know what I don’t know. But, it also means that when I delegate, the vendors chosen won’t being able to waste my money.

What I say is: give the client flippin’ critical path analysis! Give the client a Gantt chart and show them that a ridiculous position is going to cost them money. This should be standard ops, –not the preserve of the firms that charge $500 an hour. It’s not about metrics on the backend, but proper planning on the front end. I think that’s where Web 2.0’s obsession with “metrics” came at the expense of proper planning. But, you can’t DO Web 3.0 without it, so there’s a fair bit of a correction going on.

So, to keep this from turning into…well, a sermon…go read Losey’s Sermon of Protodigital Transcendence …and see whether it resonates. In my book, so long as lawyers are in control of things they have no business trying to run (on conflict of interest principles), these suggestions aren’t going to do any good.

Here are four things I think make sense (some of which are stated in the Losey article):

1) Form a relationship with a legal technology consultant with project management training independent of your firm. You need someone to call out the weedy pigeons and turnips.

2) Designate an attorney in your firm to be the point person for a legal tech team. Don’t get silly and try to write your own software. Rather, work with vendors so that they can make software that makes sense, instead of stitching together disparate applications to make the sale.

3) Work the ABA and local bar associations to open source the tools of the trade to technical mashups: legal opinions, court briefs, discovery orders. Transparency in the profession will create better opportunities for quality lawyering.

4) require project management training for all  attorneys as  CLE.

New convention for links

Just a quick note. I’m on a roll to try to find new ways of creating useful information. I just found one which is, I think, truly on the way to “massive.” It’s so simple as to make one feel really stupid:

[link: hobidas.com|via ohgizmo.com & boingboing.net]

I found it on information aesthetics and will try to implement the idea whenever possible, because very often I do find the best stuff by following blog links.

Although I can’t use CSS without paying WordPress on this blog [although I COULD link to a stylesheet hosted somewhere else...AHEM!], something like:

[
hobidas.com
ohgizmo.com
boingboing.net
]

where L would pretty-up the primary link, L1 would define all intermediate links and L2 would define the final link in a series (no “&”).

Might be able to show you, if only WordPress stopped chewing up my entry. Grrrr.

Don’t send that confession to a lawyer you don’t know!

Check out the recent ABA Ethics Newsletter.

There is a highly informative article about the responsibilities of lawyers when it comes to “unsolicited” information received from potential clients.

On the web, lawyers are sent information everyday that could lead to a conflict of interest. The most common case would be the one in which both parties to an accident shotgun an email to all lawyers on-line giving detailed information about the same accident.

In the past, a lot of men’s support groups told their members to interview a lot of lawyers with the sole objective of preventing the wife from later retaining that lawyer. I’m sure it still goes on, but the better lawyer will interview people FIRST for conflict, then for details.

The woman who inadvertently revealed her extramarital affair to her husband’s divorce lawyer used an electronic form on the firm’s Web site to submit information about the case, noted the California State Bar’s ethics committee. In order to proceed, she was required to consent electronically to certain terms, including an agreement that no “attorney-client relationship” or “confidential relationship” was formed.

It’s not so easy on the web, because people seem to lose all sense of self-protection when e-mailing lawyers on the web. I’m sure it’s because they simply don’t know and it would never occur to them that someone else got there first.

So, what is a lawyer to do, when the wife of a client sends an e-mail admitting that she’s a compulsive gambler, and asks for his help in getting a quickie divorce so she can marry the guy she met in Vegas the week before?

Well, the ABA has given some guidance, and it’s not always what you might expect.

Client Intake Software Suggestions

Some points of notice to people designing advanced web tools for lawyers that involve incoming clients:

1) Build in a system of electronic intake triage.

Don’t just warn the potential client using boilerplate legalese. Make it interactive by asking the person to identify all other parties and then have that display FIRST, before the e-mail content appears. Do this in all e-mail forms exposed to the public. Heck, do it on the intranet too! You never know when a disgruntled, but not-quite-clued-in employee will write asking about how he can get out of a non-compete agreement.

But the committee decided that those disclaimers were inadequate, and that the lawyer could not represent the husband. The committee said they were “not in sufficiently plain terms to defeat the visitor’s reasonable belief that the lawyer is consulting confidentially with the visitor.”

The committee noted that a disclaimer stating, “I un­der­stand and agree that law firm will have no duty to keep confidential the information I am now transmitting to law firm,” would have eliminated any reasonable expectation of confidentiality, allowing the lawyer to represent the husband in spite of the wife’s admissions of adultery.

This is SUCH A SIMPLE SOLUTION!

What you want is documentation of the information and of the fact that it was NOT viewed by counsel. This is a way to help lawyers keep their current clients and prevent mandatory withdrawal. No lawyer wants to withdraw prematurely from a juicy case.

I think this is also the main reason paralegals get a first crack at information. If the paralegal hears it, it’s not as big a taint on the lawyer.

2) Inform the client from the second s/he walks in the electronic door NOT to divulge incriminating information UNTIL they have a written representation agreement.

Prudent lawyers will build in a back door for clients they find they don’t want (I call it the “yeah, I punched my boss” or “it’s just a white lie, –no one will know” client). Further, most bars require a written services agreement in order to secure the right to payment anyway.

There are many services out there (one I’m building included) that will help triage cases for lawyers. Details later.

3) Always ask clients to identify immediately whether they have received or filed court papers of any kind.

Give up the legalese, simply ask: did you get any court papers or anything that LOOKS like a government paper about this??

Then ask again.

Then politely inquire the crumpled paper sticking out of the back pocket, that has the words “SUMM…” written on it, but partially obscured by ketchup.

There are ways to do this electronically. Not that hard to think about.

Does your software package do any of this? Let me know! Leave a comment!

Law 2.0 and The Trebuchet Ascendancy

Must Law 2.0 sites join the Trebuchet ascendancy?

Here’s the thing.

There seems to be a design mafia out there that dictated that all Web 2.0/Ajax-powered sites use the Trebuchet font. Everything from 43Things to Zillow seem addicted to Trebuchet or one of it’s close relatives. Everyones digging …ahem…on Trebuchet!

But why?

One reason is that Trebuchet is incredibly easy on the eyes. It has a slightly “I-may-dumb-but-I’m-your-best-friend” quality that makes it uniquely suited to the laid back and breezy Web 2.0 look/feel favored by the 20-something set. Trebuchet is non-threatening. It says, “Hey dude! I’m just as open source and networked as the last site you saw with this font. “

The cynic might add that it’s also a highly successful branding technique that also strongly implies VC funding and a foundation built upon the ubiquitous “algorithm.” Whatever.

One would expect Law 2.0 aspirants to adopt the unofficial Web 2.0 font as their standard. Some early adopters seem to have piggy-backed on the goodwill the font has engendered in the last 2 years. Still, the question is “should they?”

After all, Law 2.0 is not really about the great unwashed developer masses sharing kumbayah code moments. It’s about leveraging public information and internal databases. It’s about massaging information until it bleeds multiple streams of income. It’s about grabbing eyeballs AND pocketing the eight ball…while providing a valuable service.

My prediction is that after the hoopla, Law 2.0 sites are going to have a hard time distancing themselves from the pin-stripes. It’s going to rough going to encourage users to think of the site as communicative and user-friendly, with or without pastels, when the end product remains the same. So, a super-cynic might argue that a Law 2.0 uses the Trebuchet font at it’s peril.The problems that Web 2.0 sites have largely solved are not exactly applied to the process we call “law.” Current web tech has pretty much ripped data-in-data-out issues (on the back of complex programming tools that make it all look easy), but they haven’t dealt well with delivering stuff people really need.

The networking sites don’t report on member ROI, even as they created new scopes of interest and scampered off with massive amounts of long tail time. But when it comes to actual innovation in solving real issues, we don’t see it. Innovation is there, no doubt about it, because even lawyers hate a terrible interfaces, but query whether user interface issues are at the heart of the problem.

How lawyers communicate and work with clients IS directly at issue. Let’s go beyond the banal, and talk about real innovation in the delivery of legal services. “On the web” is old hat. Let’s talk about client empowerment, freedom from paperwork (not just shifting it off to the server) and returns on investment to both the client and the attorney. For a few seconds, anyway.

After all, how will change occur unless and until developers start hanging out with lawyers. How about making sure that they also work with real people with real problems,–sit in court for a few days and see how things work when people are under stress. Actually walk through drama with the average person who will use the web services and see how the connection is made.

How can we improve a profession that thrives on and exists because of client alienation. They won’t know what to look for or how to solve the problem if they don’t work cheek-to-jowl with lawyers. The ick factor is pretty high on both sides, no doubt, so who is gonna bridge this divide so that the result works?!

Most honest lawyers will admit that law is NOT rocket science. Never was. But, law as a profession requires a certain distance from the customer, a sense of mystique and drama that may not be suited to a Trebuchet State of Mind.

The challenge of Law 2.0, therefore, is not just a matter of being seen on the web and combining cool Ajax interfaces with MySQL/XML and open-source code. It’s not a matter of a Facebook or MySpace entry (politicians take heed!).

Law 2.0 as a process should be to increase legal agility and, thereby, reduce production time. It’s about leveraging data in new and interesting ways, nto just revamping old processes and changing the interface.

My hope is that Law 2.0 will be fundamentally about open-source and collaborative processes, such as mediation and (to some extent) arbitration. It’s about taking the mystery out of the lawyer-client relationship and building complex objects on the back end so that the lawyer-client part of the process operates seamlessly and without the element of fear.

CTRL+C out the hype and let’s start to form developer-lawyer dyads which will enable developers to apply their logic and user-facing design experience to the entirety of the legal system. Lawyers will still be in control (as we must be), but the elegance of what they control will come to truly benefit the clients they serve on more than the basic level.

When a designer combines quirky pastels with Trebuchet, you know a smile is not far behind. Lawyers aren’t big on pastels, but if the goal is to provide better client service, maybe we need to take a closer look at the Trebuchet revolution and apply it globally to our profession.