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• The Effective Act of Listening
  

  By Jennifer Papantonio

  What keeps you up at night?” remains a critical question to ask clients, and was among those addressed in a recent paper issued by FTI Consulting and Relativity titled, “The General Counsel Report 2021”, released in January. In this robust analysis of research conducted by Ari Kaplan Advisors in late 2020, General Counsel describe their developing and ever-expanding roles, with particular attention paid to new responsibilities focused on business strategy, policy, diversity & inclusion, and technology. The list goes on, to be sure.

  With GCs and other business leaders facing such incredible challenges, how do lawyers continue to manage clients’ transactional, litigation, compliance and regulatory needs, among others, while simultaneously providing professional, and even personal, support? This level of attention and client dedication, while time consuming, is both appropriate and necessary — and it must be intentional, tailored to each relationship and circumstances.

  Not-So-Fun Factoids (And a Good One)

  A March 2020 Corporate Counsel article highlighted the COVID information fatigue that in-house counsel were already facing — in March — a relatively early phase of this long and tortured global event. (See, “In-House Lawyers to Law Firms: Enough Already With the Coronavirus Webinars.”) In this brief, yet highly relevant piece, one source was quoted to say, “only two law firm partners have called”. She went on to note that she had received numerous updates on force majeure (and likely other topics), which were most assuredly sent from well-meaning, client-focused firms. [Note that providing such resources is vital and — they are an important part of good, if not great, client service. In fact, many Requests for Proposal (RFPs) for legal services ask firms to include a summary concerning their “Value-Added Services,” which anticipates such informative resources, as they should].

  Without knowing the substance of the discussion between the source and the partners who called, we are left with the sense that those calls mattered. It led those in our discussion group who read this piece to conclude that it must be quite rare, or at least infrequent, for business leaders and in-house lawyers to receive such a call. One partner in leadership queried on this subject had a more positive, and strikingly different experience in this context. In asking clients for a few minutes of their time “just to catch up” during the initial peak of the pandemic in the Northeast, not one declined. Nobody. These incredibly busy general counsel and C-Suite leaders, many working from home with barking dogs, spouses/partners handling work and other responsibilities, and children attending virtual classes, all under the same roof, made the time. Why?

  In an article from Harvard Business Review (HBR.com), “Listening to People,” a survey of executives from a manufacturing plant in Chicago were quoted as saying:

  • “Frankly, I had never thought of listening as an important subject by itself. But now that I am aware of it, I think that perhaps 80% of my work depends on my listening to someone, or on someone else listening to me.”
  • “I’ve been thinking back about things that have gone wrong over the past couple of years, and I suddenly realized that many of the troubles have resulted from someone not hearing something, or getting it in a distorted way.”
  • “It’s interesting to me that we have considered so many facets of communication in the company, but have inadvertently overlooked listening. I’ve about decided that it’s the most important link in the company’s communications, and it’s obviously also the weakest one.”

  The date of this groundbreaking piece? September 1957. While not focused on legal services delivery, the quotes resonate today — and it does not appear that much has changed. But maybe we’re trying. A casual online search shows that there are likely more courses, books and podcasts on “listening” than ever before. More than 20 pages of results revealed tactics and solutions for individual professionals, corporations, and anyone inclined to develop the “skill”. [Side note: Peter Drucker, the famed management consultant, may have gotten closer to the mark when he said, “Listening is not a skill, it is a discipline.” Perhaps listening is a combination of both skill and discipline. The discipline of listening, and components of this skill set, embarks on a far longer discussion.]

  So what do we do? UK-based professional services advisors Openside published results of its discussions with buyers of professional services. In Openside’s Points of View column, “What buyers of professional services are really looking for,” they comment, “[Professional Services] Firms should ask questions, listen to the answers and frame a solution within which the client is the hero, not the professional services firm.” (emphasis added). This does not date to 1957, but again, not much has changed. Putting the focus on clients, and inclining an ear to truly hear from them, enables lawyers to help clients succeed in their goals, and then everyone wins — most importantly, the client.

  Two of the Most Successful People I Know

  Returning to the law firm leader who effectively engaged clients in discussions during this tumultuous period — he not only found these busy professionals willing, but eager to talk. Surely there are profound challenges affecting nearly every element of life right now. But to the earlier point of “why” the clients were willing to eke out some of their very valuable time, consider the nature of client/lawyer engagement. Lawyers are involved — some might say critically so — in some of the most significant, meaningful, and at times, difficult business issues faced by clients. And while the pandemic has surely given us much to digest, discuss and yes, disseminate content about, we know that listening is essential to good business relationships, pandemic or not. In The Practice: Brutal Truths About Lawyers and Lawyering, author Brian L. Tannebaum exhorts: “While clients understand you are the person hired to try and resolve their legal issues, the non-so-subtle secret of a successful practice is a slew of clients who believe their lawyer actually [cares] about how their legal issues are affecting their … life.” Tannebaum, who has a consumer-facing practice and has been frequently vocal on the legal industry, makes his point well. As the aforementioned story of the law firm leader suggests, there really is no difference at all. Clients, and all of us, just want to be heard.

  Success Stories

  Two brief tales of client discussions follow. The first involved a most pleasant surprise during a casual business gathering, when a client volunteered a valuable reflection of her relationship with outside counsel. No invitation to chat required.

  One

  In-House Counsel: “You should know, [lawyer] at your firm will always be my attorney. We were facing an issue that your firm was not ideally equipped to handle. You simply didn’t have an attorney with the necessary expertise. Rather than taking on the engagement and ‘figuring it out,’ [lawyer] listened to us, understood our need, and referred us outside the firm to a very capable attorney. With that level of concern for our business, you’ve earned my complete loyalty.”

  Listening and putting the client’s needs first were key to maintaining — and growing — the client relationship.

  Two

  In-House Team: “We have a few concerns, one of which involves the manner in which you select CLE topics to present to [our global company].” Clearly the tip of the iceberg, the client went on to say that the firm’s lawyers also delivered the content in a manner that was frequently perceived as arrogant and off-putting by the in-house team, a highly qualified group of attorneys themselves.

  Solution: The firm’s representatives thanked the clients for confiding in them. More importantly, the firm worked with its client to develop a well-defined continuing legal education program that was focused on the needs of the institution and its lawyers, and helped the firm’s lawyers to better understand the impact that their cavalier attitude toward in-house attorneys had on the relationship.

  The firm listened and put into action a responsive plan of action to address their client’s concerns. The result? The firm nearly doubled its revenues with that client in the year that followed.

  Conclusion

  Someone once said that marriage is “one long conversation” and I agree. In life and in business, communication is essential. The famous presidential advisor, business leader and philanthropist, Bernard Baruch, said “most of the successful people I’ve known are the ones who do more listening than talking.”

  *****

  Jennifer Papantonio serves as Peckar & Abramson’s Chief Client Service Officer. With nearly two decades of experience in client relations, business development and marketing, Jennifer provides strategic direction and support in connection with the firm’s key client satisfaction initiatives and myriad business development and marketing efforts. She can be reached at jpapantonio@pecklaw.com or on LinkedIn @jennifer-papantonio.

  Source: Law Journal Newsletters, February 2021 (https://www.lawjournalnewsletters.com/2021/02/01/the-effective-act-of-listening/)

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• 10 Tips For Your Next Virtual Court Appearance
  

  By Justin Heminger

  As the pandemic drags on, most federal courts have shifted from in-person to virtual hearings and arguments. Even when litigation returns to a more normal footing, many federal and state courts will embrace virtual arguments as a more ideal option than telephonic proceedings.

  As with any new technology, virtual arguments present a learning curve. This article identifies best practices for those arguments, offered as 10 practical tips in three categories: technical, visual and audio.[1]

  Technical best practices come first because the most critical step in a virtual argument is to make sure that the technology works so that you can participate. Visual best practices come next because the visual element involves more variables and requires more planning and practice. The final critical component of a virtual argument is audio, and making sure that the judges can hear you.

  1. Technical Tip: Get comfortable with virtual platforms.

  In what qualifies as a supermajority, 10 of the 13 federal courts of appeals are using Zoom for virtual arguments. Many federal district courts have followed suit.

  Zoom is one of the easiest to learn and most widely used videoconferencing platforms. If you have never used Zoom, download the application to your smartphone or other personal device and practice with a friend before your first virtual argument. Even better, volunteer to participate in a virtual moot for a colleague.

  Many federal courts have adopted similar protocols for virtual arguments. Common elements include the following: (1) The court emails specific instructions to the arguing attorney with a personalized Zoom meeting link for their use on argument day; (2) the court offers the arguing attorney a chance to test out their Zoom connection with court staff; and (3) the court maintains a separate Zoom video window for the argument timer so that attorneys can track their time during the argument.

  Although Zoom is the most popular platform, some courts use other platforms. For example, the U.S. Courts of Appeals for the First and Eighth Circuits have fashioned a thin circuit split by using Microsoft Teams. And the U.S. Court of Appeals for the Federal Circuit is holding arguments telephonically.

  2. Technical Tip: Simulate argument conditions for your moot.

  One goal of a moot is to practice your argument under realistic conditions. This should include simulating the virtual environment that you will use on your argument day. This allows you to practice using the technology and to solicit feedback from the moot participants about the visual and audio elements that are unique to virtual arguments.

  3. Technical Tip: Avoid VTC if you can.

  Video teleconferencing, or VTC, equipment is a hardware technology system not designed for virtual arguments, when attorneys and judges each participate individually from separate locations, and when most will use a desktop, laptop or personal device.

  To illustrate, staff for one federal circuit court reported that some VTC cameras track the speaker’s movements, creating a dizzying motion for the judges.

  That said, VTC may still be the best option for some attorneys. If you do use a VTC setup, make sure your technical staff provides support before and during your argument.

  For most attorneys, a simple setup using your typical work device will do the trick. Zoom and Teams should work seamlessly with your home or office internet connection.

  You can even use a personal device — an iPad, for instance. For example, the clerk’s office at the U.S. Court of Appeals for the Ninth Circuit has confirmed that you do not need specialized equipment to participate in a virtual argument and that judges have participated in arguments from home on their tablets.

  4. Technical Tip: Work closely with the court’s technical staff.

  Each court is handling virtual arguments differently, but a few common themes appear.

  First, courts allow attorneys to test out their virtual setup, often by hosting a virtual session during a designated window each week. You should take advantage of this opportunity, no matter if this is your first or 10th virtual argument. Technical settings may have changed since your last argument, either on your end or the court’s.

  Second, the court may provide specific directions about its technical setup and preferences. Follow these instructions closely. And always review the court’s most recent guidance because it may change from one argument session to another.

  Third, companies like Zoom frequently update their software. Check for and install any software updates shortly before your argument.

  5. Visual Tip: Sit, don’t stand.

  Visual best practices come before audio because the visual element involves more variables and requires more planning and practice.

  Although attorneys are trained to stand behind a podium to deliver an in-person argument, it is more effective to sit to deliver a virtual argument.

  Consider this simple proposition: A high percentage of communication is nonverbal, and one of the toughest challenges of virtual arguments is effectively employing nonverbal communication.

  If you stand during a virtual argument, the camera is likely to be trained on you from a distance, perhaps partially obscured behind a podium. Even if you are physically located a thousand miles from the judges, you are just a few feet or less away from them on their screens. What the judges see on their screens is a set of small squares for the arguing attorneys and other judges.

  If the camera captures you from a distance, the judges cannot see your face clearly and cannot read your facial expressions. This is distracting and can even diminish your credibility. The best way to appear credible and engaging is to sit with the camera trained directly on your head and shoulders.

  Cameras also magnify physical movement, even small gestures. You need to remain relatively still during a virtual argument — no swaying, shifting or large hand gestures. Sitting will help you minimize unnecessary movement.

  Anecdotally, most attorneys are sitting for virtual arguments. One colleague reports that staff at a federal circuit court informed her that the court preferred attorneys to sit, not stand, during argument, and that 90% to 95% of attorneys did so. Or as another colleague wisely recommends to arguing attorneys, be like the TV news anchor, not the weather person.

  6. Visual Tip: Get your lighting and camera angles right.

  The ideal setup is to face a window that illuminates your face with natural light. In other words, sit facing the window and then place your device directly in front of you.

  Avoid backlighting — where the primary source of light in the room is behind you — at all costs. Stage lighting, for example, pointing a lamp directly at your face, is also less than ideal because it creates a headlight effect. If you cannot face a window, the next best option is to increase the overall amount of light in the room.

  Make sure that your camera is at eye level so that you can comfortably look directly ahead; the camera should capture your head and shoulders.

  Finally, remember that you are on camera. To make eye contact with the judges, you need to look directly into the camera, not at your device’s screen. Be sure that you know where the camera is and look directly into it when speaking.

  7. Visual Tip: Use a neutral background.

  This tip has a subjective element to it, and many attorneys working from home today face practical constraints with their remote workspaces. Ideally, your background is professional, but what is crucial is that it not be distracting. Bland is good.

  8. Visual Tip: Dress for court.

  Stating the obvious, you should dress as you would when appearing in court. Most colors look fine on virtual platforms, but darker colors are generally better. Avoid patterns, lighter colors and bright green, as some virtual platforms have green-screen settings.

  9. Audio Tip: Adjust your audio settings.

  Some attorneys use headsets to improve audio quality. But the built-in microphone in your device is probably of high enough quality to work fine for virtual arguments.

  Whichever microphone option you use, make sure your audio settings are correct. Zoom offers two audio settings: (1) letting Zoom automatically adjust microphone volume, or (2) setting the "input level" at a fixed volume. Either option can work, but make sure that you test your audio level during your moot and your practice session with court staff.

  Make sure that your speakers are loud enough so that you can hear the court, but no louder. The sound from your speakers can affect the quality of the audio that the judges hear.

  10. Audio Tip: Plan to mute and unmute yourself.

  During an argument session, court staff may remotely turn the attorney’s camera on at the appropriate time, but it is usually the arguing attorney’s responsibility to unmute and mute their microphone. If you want to look like you know what you are doing, remember to unmute yourself before you begin speaking and to mute yourself again when you finish.

  Finally, in a virtual setting, it can be easy to forget pleasantries and formalities. Greeting the court with a simple "Good morning, your honors" will always be in style. That also allows you to confirm that: (1) you successfully unmuted yourself (tip 10); (2) the court can hear you (tip 9); and (3) the judges have identified which of the tiny faces on their screen is now speaking to them (tip 5).

  Conclusion

  Thankfully, federal and state courts have responded to the pandemic by finding innovative ways to fulfill their indispensable role in our society, including through virtual arguments. These 10 tips should help you prepare for your next virtual appearance. Now, sit down and argue — virtually — for your client.

  Justin D. Heminger is a senior litigation counsel in the Environment and Natural Resources Division at the U.S. Department of Justice. He was previously an associate at Wiley Rein LLP.

  The opinions expressed are those of the author and do not necessarily reflect the official position or policies of the Environment and Natural Resources Division, the Department of Justice, or the United States, or the views of Portfolio Media Inc. or any of its respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

  [1] Several federal circuit courts have posted helpful guidance online. For example, the Fourth Circuit has posted Videoconferencing Tips for Counsel on its website. Likewise, the Tenth Circuit has prepared a Guide for Participating in Remote Video Oral Arguments via Zoom for Government, available on its website. The Fifth Circuit shares a useful guide directly with arguing attorneys.

  Source: Law 360, January 26, 2021 (https://www.law360.com/legalindustry/articles/1348890/10-tips-for-your-next-virtual-court-appearance )

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• Do You Know What Makes Your Judge Tick?
  

  By Marcel Strigberger

  “A good lawyer knows the law; a great lawyer knows the judge.” I guess this is a good a time as any to discuss judicial bias.

  I actually tried to track down the origin of this quote—Google lists more than 200 million results—but no luck. The best I found was “author unknown.” It would be gracious of Google to perhaps just once admit it does not have an answer. It could say something like, “Sorry, we don’t know. Try Siri.”

  I can say, however, in my 40-plus years of litigation practice, that I learned that expression’s lesson very well, sometimes painfully.

  When I refer to judicial bias, I don’t mean judges who know a party or a witness, etc. I am talking more about their personal preferences, aversions and idiosyncrasies that color their objective lenses.

  For example, I once had a nonjury trial in relation to a dog bite. In my opening statement, I said, “My client was in the course of delivering a pizza, when suddenly the defendant’s dog, a Rhodesian ridgeback, lunged and bit him on the shoulder, causing serious injury. Rhodesian ridgebacks were actually bred in Africa to fight lions. They are highly dangerous …”

  At that point, the judge interjected, saying, “Ahem. No, they’re not. My daughter has a Rhodesian ridgeback, and he’s as gentle as a lamb.”

  I cannot say my confidence in the case did a 180-degree turn. But I will say as much as I dislike them, I wish I had opted for a trial by jury. At least there would have been a chance one or two jurors might have at one point worked for Domino’s.

  We lost this case, His Honor finding that there was no evidence of the dog’s predisposition to maul unsuspecting guests. I guess my pitch about the lions did not strike a note, perhaps because this event happened in downtown Toronto. Judicial bias? Perish the thought.

  From large dogs to smaller ones: A colleague of mine, Henry, had a case where a shih tzu bolted loose and ran up, growling and barking, to his client’s leg. The client slightly kicked the pooch. (I say slightly kicked because this is how Henry described it to me. I have no clue why the police were called and why his client was charged with committing a misdemeanor offense under some cruelty-against-animals law).

  The court date arrived, and Henry, wanting to give his articling student some court experience, sent Alvin to enter a guilty plea and speak to sentence, expecting a small fine.

  Alvin returned to the office, tail between his legs (proverbially speaking). He was beside himself when he reported that the judge hammered the client with seven days in the slammer. After a case postmortem, Henry discovered that the judge was a former director of the Society for the Prevention of Cruelty to Animals.

  Can you fault the judge? After all, judges are human, too. At least the student got that court experience.

  These illustrations are situations in which a potential bias may not have been obvious. But in many instances, the judges’ backgrounds are more known. And the lawyers have an idea as to what makes them tick.

  “There used to be a local judge I’ll call ID (no relation to the Freudian ID). Here, ID stands for impaired driving. I believe in the U.S. it is called DUI. He was a curmudgeon well-known for his aversion to drunk drivers. The rumor was that he himself had been injured years back in an auto accident caused by an intoxicated motorist.

  Although judges routinely issued a fine for a first-offense sentence, ID would generally hit the inebriated driver with a jail sentence. No informed lawyer would enter a guilty plea before Judge ID. Shakespeare’s iconic plea, “The quality of mercy is not strained,” would have no meaning for him. Tweety had a better chance of getting a break from Sylvester.

  We had another judge who, while going for a walk, was assaulted by two thugs who also stole his wallet and prized Omega watch. Did this incident affect his objectivity? I don’t know. I once witnessed a sentencing in his court in a mugging case. The Crown Attorney (i.e., prosecutor) read a synopsis of the facts. I don’t know the outcome of that case because I had to scoot off to another courtroom, but the last part I heard was the judge saying, “Rolex? That’s even more valuable than an Omega.” Whatever happened, I’ll bet the defendants’ lawyer learned a valuable lesson.

  The flip side of knowing idiosyncrasies about your judge that can torpedo your case is knowing those that can help, including those predating the judge’s appointment to the bench.

  There was an elderly judge who before moving to Canada from England served as an admiral in the Royal Navy. Rumor had it that he, (Judge O, for ocean) had a soft spot for sailors, doling out justice to them with extra magnanimity. Wise lawyers would be sure to bring out any of their clients’ maritime connections they could muster, however remote.

  Unfortunately, whenever I appeared before Judge O, none of my clients had had any sailor experiences. I was tempted to take advantage and import something seaworthy, but I never had the guts to open my argument with, “Your Honor; ahoy!”

  On one occasion, my client originated from Saskatchewan in the prairies. He had never seen an ocean, the Pacific being about 1,200 miles west. I felt marooned. The best I could think of in addressing sentencing would have been, “George does hail from Saskatchewan, but he always wished he had been born in Vancouver.”

  Which brings us to what do we do if we come across a judge where we sense some inherent bias?

  The standard test for bias is whether a reasonable and informed person, with knowledge of all the relevant circumstances, viewing the matter realistically and practically, would conclude that the judge’s conduct gives rise to a reasonable apprehension of bias.

  First, we have those situations where you have no clue of any of the judge’s inherent biases.

  Taking my dog-bite case, I was completely in the dark. It would have been great to be able to question a judge like you do a prospective juror:

  “Your Honor, before we begin, does your daughter own a Rhodesian ridgeback?”

  “Yes, counsel. How do you know?”

  “Wild guess, judge. I request you recuse yourself.”

  No such luck.

  And even when you do know the judge’s negative biases, it can still leave you with few options. You can, of course, seek an adjournment. If this is denied, however, you’re stuck. I doubt it will help much if you tell that judge who got mugged, in speaking to sentence of a robber client, “At least he didn’t take the victim’s watch.”

  You can certainly use positive background information to your advantage. Learn and use what you can to appeal to their interests. Mark Twain worded it differently, saying, “A good lawyer knows the law; a clever one takes the judge to lunch.”

  I would not go that far. However, I actually ran across Judge O, the admiral, at a bar association reception. I did not hesitate to navigate the chat to his naval career. I commended him for his service, adding, “I believe more young people today should join the navy.” Judge O agreed proudly, adding as we clinked glasses of sherry, “It turns boys into men.”

  I would like to believe he remembered our chat weeks later when I appeared before him with that client from Saskatchewan, who pleaded guilty to his third theft offense and was facing a likely custodial sentence.

  Judge O rolled his eyes when I mentioned that forsaken landlocked province, and eyeballing the client asserted sternly, “ Sir, I should send you to jail, but I am moved by your unfortunate surrounding circumstances and your fine lawyer’s cogent comments. There will be a fine of $250.”

  As I stood up relieved, I wondered which comments he was referring to.

  Marcel Strigberger, after 40-plus years of practicing civil litigation, closed his law office and decided to continue to pursue his humor writing and speaking passions. Read more of Strigberger’s work at marcelshumour.com.

  Source: ABA Journal, December 17, 2020 (https://www.abajournal.com/columns/article/do-you-know-what-makes-your-judge-tick)

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• Legal Analytics and the Evolving Practice of Law
  

  While we may use analytics differently in our respective companies, one thing is certain: Legal analytics is the future and it’s time to jump on board.

  ByJosh Beckner

  Way back in February — before COVID-19 and social distancing put a stop to in-person events and conferences — many of us gathered for Legalweek New York 2020 to catch up with colleagues and discuss matters important to our business.

  One of the hot topics was legal analytics and the evolving practice of law. What’s fascinating is that practices (remote lawyering, for example) that still seemed like revolutionary concepts just three months ago have suddenly been thrust into the spotlight and become required for both law firms and GCs.

  For example, results from the 2020 Legal Analytics Study by ALM Intelligence and LexisNexis showed 70% of law departments and law firms had access to legal analytics, up from only 38% in 2017. Looking deeper into those results, I noted two main — and I should note, external — drivers that accelerated the adoption rate: competitive pressures and client expectations.

  I fully expect that our health and economic crisis will push that percentage even further and we will see companies and firms making substantial changes to their structures and business decisions. In fact, I’ve already heard of two firms who are creating plans to make remote work a permanent option. Others are focused on the need to know what clauses are in contracts or strategies to win new business in a recession.

  And I’m not alone in this thinking. Our Lex Machina team has had many discussions with colleagues about the future of the industry as it relates to analytics and the future of law. One recent roundtable conversation included both corporate general counsel and large law firm partners and centered around the drive toward legal analytics, the current challenges of using analytics, and future trends.

  From listening to these lawyers, I learned that while we may use analytics differently in our respective companies, one thing is certain: Legal analytics is the future and it’s time to jump on board.

  Analytics Provide Credibility

  While the rest of the business world has been making data-driven decisions for years, the legal industry remained hesitant to introduce technology into a very traditional, human-driven process.

  However, the business of law is changing and it’s increasingly important when making a recommendation — be that to a client or C-Suite — about a strategic decision, litigation or going after new business, that you have the credibility and confidence to back up your decisions. Data and analytics provide that credibility.

  For example, Lex Machina helps clients make data-driven decisions about litigation. Through machine learning and natural language processing, lawyers can find out how a judge is likely to behave in a certain scenario or the experience of opposing counsel. This data-driven insight puts the lawyer on a path to success s/he might not otherwise have had.

  During the roundtable, Peter Geovanes, who leads data strategy, analytics and artificial intelligence for Winston & Strawn, provided an example he calls augmented analytics. His law firm collects data for every lawsuit filed in the United States and uses several analytics tools for its clients to analyze that data. As he explained: “It looks for outliers or trends across industries. Knowing that information can change the whole dynamic of a law firm-GC relationship, where you can be proactive as a law firm and tell your GC how to get in front of an issue.” Winston & Strawn’s process of automating the whole process of spotting potential leads has helped both the business and practice sides of law.

  From the GC-perspective, I was pleased to hear how a large corporation such as DHL wants its outside counsel to use analytics. Mark Smolik, general counsel at DHL, said he expects his law firms to be data-savvy because he must justify his decisions and spends to his CEO. He wants his law firms to be proactive, innovative, and use analytics to identify trends and risks and advise on what steps can be taken to mitigate those risks and reduce costs.

  Eric Falkenberry, a partner at DLA Piper who manages litigation risk through data mining, litigation analytics and predictive modeling, said his goal is to provide clients an analytically-created knowledge base. He explained this could create a new revenue stream for a law firm by selling clients a tool, so the client doesn’t have to pay the law firm for low-level work.

  Falkenberry also mentioned that there’s no evidence that dragging a case on results in a better outcome, yet that’s often what happens when companies think they can get more money. Instead, analytics can provide credible historical evidence about judges’ decisions or settlement dollars and a firm can use data to show that certain cases which took three years had the same result as a case that only took one year. Therefore, the efficiencies that law firms were very afraid of for a long time because of the billable hour, they are now embracing due to efficiency and cost savings.

  Analytics also can play a major role in business development and recruitment. As we head into some potentially tough economic times on a global level, analytics can play a role in landing new clients or hiring new employees. Showcasing your company’s analytic capabilities in an RFP demonstrates commitment to data-driven decisions and sets you apart from the competition. Similarly, when recruiting law students, many of them have been exposed to legal analytics tools in law school and they expect their employers to utilize these same tools.

  Current Challenges

  But even as the legal industry embraces analytics, we must remain cognizant of and acknowledge that there are still challenges related to retrieving and applying the data. Just because a law firm has collected data, doesn’t mean that data is usable.

  One of the biggest issues is “noise” in data, which can be inaccurate, incomplete or input incorrectly. In essence, a dataset is only as good as what can be mined from it. That’s where machine learning and natural language processing come into play — these tools can filter out the noise to provide functional insights that lead to strategic decisions.

  Another challenge is creating trust. As Falkenberry pointed out during the discussion, lawyers inherently want to see the sausage being made, to know where the data came from, how it’s being used, and what its limits are. Being upfront and showing the documents that the data was generated from actually generates usage in the tools because lawyers understand the reach and capabilities up front.

  Geovanes agreed with this assessment and said Winston & Strawn uses various statistical techniques, such as neural networks or decision trees, that can help decipher the thought process and show the data from source to end point.

  And there is still the (I think unfounded) concern about machines taking over human jobs. These tools are generating more data to analyze and it’s ultimately the lawyer that has to interpret the data and recommend a strategy. These tools help lawyers test their gut and make “data-driven decisions.” In fact, analytics tools are going to create additional jobs, as well as allow lawyers — both internal and external — to focus on being lawyers and give strategic guidance to their clients.

  The Evolving Practice of Law

  I think my biggest takeaway from this conversation was that in the future, no legal decision or strategic recommendation will be made without data — especially in our current environment. With contracts under scrutiny like never before, law firms forced to transition to remote work, and many non-essential businesses still closed or operating in reduced capacity, it’s critical that firms and corporations understand the drivers and consequences of their actions.

  In fact, I think our present circumstances are going to speed up what I would consider the Holy Grail of legal analytics: taking the data that analytics providers have and combining it with anonymized internal data that firms and companies have into one centralized searchable repository.

  This would include bringing together all the different sources of data. For example, companies have myriad information on the litigations they have been involved in that also spans multiple law firms. Law firms not only have information on their own firm, but also information that spans multiple companies. Providers like Lex Machina have broad litigation records.

  We still might be a long way from there, but I predict we’re going to see the legal industry have a mindset shift and begin to embrace legal analytics and technology with open arms.

  I’m sure that would make my colleagues happy, as they too feel that the business of law needs to change sooner rather than later. Here are their projections as shared during the roundtable:

  • Smolik says general counsels needs to be more of a business leader than a lawyer: “We all hear about running your law department like a business, and these aren’t small spends that we are managing. We need to leverage the data in a way to educate the business about how to identify and mitigate risk.”
  • Geovanes wants the role of a chief data or analytic officer to become well entrenched within large law firms: “The role of the law firm is changing — it’s not just spotting issues, it’s providing solutions. Data and analytics are a big part of those solutions.”
  • Falkenberry predicts that data scientists and domain experts will work more closely together to not only produce tailored solutions, but better solutions: “You can’t have a data scientist work in isolation and create a good legal product. The only question is, are enough experienced lawyers going to take the time to actually get into long discussions about how they work and the manner in which they produce results, so that the data scientists can understand and therefore produce the tool that is desired?”

  Whatever the future really does hold, we know legal analytics will play a role. How quickly remains to be seen, but those of us in the development side are ready to embrace the opportunities that await.

  *****

  Josh Becker is LexisNexis Head of Legal Analytics and Chairman, Lex Machina. He is a long-time recognized thought leader on leveraging technology to improve the practice of law. Previously, Josh served as Lex Machina CEO for seven years leading strategy and operations. During his tenure, Lex Machina was acquired by LexisNexis.

  Source: Law Journal Newsletters, June 6, 2020 (https://www.lawjournalnewsletters.com/2020/06/01/legal-analytics-and-the-evolving-practice-of-law/)

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• Four Tips for Tapping Data and Tech to Make the Case for Legal Budgets in 2021
  

  In-house lawyers have been busier than ever, but some are struggling to articulate the change in legal activities to the CFO. These suggestions will help shore up the resources legal needs to navigate the risks of 2021.

  By Nicholas d’Adhemar, Apperio

  It’s budget season, and many GCs recognize next year’s legal budget may not be the same. A survey of law departments recently found about three-quarters of respondents expect budgets to remain flat or decline for 2021.

  That notion has also been reflected in the conversations I’ve had with legal leaders around the world. Revenues have fallen and profits are being squeezed even as organizations strived to adjust during this tumultuous year.

  For example, one GC who works for a global technology manufacturer told me there just hasn’t been the usual level of legal work this year. On paper, it looks like the in-house legal team hasn’t had the same volume of work as in prior years—so a budget reduction is justified.

  Despite such appearances, their legal team has been busier than ever. However, the problems addressed in the last six months have been different, and therefore not part of the generally fixed legal activities that drove legal budgets in prior years.

  More Work Not Less (And It’s Different)

  Such analogies show up in industry surveys as well. A separate survey, this time of GCs, found legal leaders are being commissioned with new responsibilities. Some “84% of general counsel said they have been given the title of chief health officer during the pandemic.”

  To place this in context, the GC for the manufacturing company noted he’s been overwhelmed with law work that typically isn’t on his department’s docket. The usual legal work the team does around factory openings and growth has been replaced with closures, furloughs and workforce reductions.

  This has compressed his team into new areas of responsibility including health, safety, unions and labor relations. Indeed, next year, he could well need to hire either a new in-house lawyer or a law firm that specializes in these areas of law. The key to making the case for legal budgets is showing the law department’s contribution to their organization’s crisis management.

  Turning to Data and Technology for Budget Help

  More than ever, legal leaders need to make the case for their budget in the language of business. That means tapping into technology and data to quantify what the legal department is doing—and the value of that activity to every extent possible.

  In my discussions with legal leaders about data and technology, several ideas making the case for budget tend to come up repeatedly. Below are some of those ideas.

  1. Audit new legal department activities.

  One of the challenges we hear GCs are having in budget talks this year is that things have changed so dramatically, they can’t articulate what their teams are doing. The typical basis for justifying the budget this year has been flipped on its head.

  Some are tackling this by spending more time with their team to audit and document their activities. This is a useful way to get into detail with their people, understand the challenges and expand their knowledge of the new legal tasks the organization needs.

  Legal departments would be served well by getting accustomed to such leader-led audits, perhaps on an annual basis, according to a lawyer who has served as both GC and chief operating officer (COO) for technology and cybersecurity. He points out that crises tend to have cascading legal effects.

  “COVID has been at the front of the wave of the current crisis, but that shifted the legal focus to people working from home, which in turn was parlayed into a security risk for the company,” he says. “It’s not just a matter of managing a crisis with respect to our business – it’s become ‘how do we manage our whole business.’”

  2. Focus on data collection.

  A “gut feeling” isn’t going to cut it this year in the words of one GC with whom I spoke. So, you’ve got to have a process in place for collecting data. That GC turned to the most fundamental of all legal data: time tracking. He required his team to track their hours associated with standardized activities and used the data to make the case to the CFO for headcount.

  Another chief legal officer suggests identifying the success factors showing the value of the in-house legal team in the grand scheme. He points to contract negotiations, particularly around high-value customer contracts or corporate transactions like mergers and acquisitions (M&A) as an example. He recommends keeping contracts in one place and favors technology tools that both enable cross-functional collaboration and make a record of it for showing the legal effort that goes into these.

  3. Get a handle on outside counsel spend.

  Law departments used to rely on law firms to provide data, charts and graphics when budget time came around, according technology GC and COO. Today, he says most legal departments are either building or procuring tools to do it. Moreover, these efforts are surfacing more granular details about outside counsel work too.

  Instead of just looking at the overall law firm performance, they want to see the individual contributions to measure the “true value of the interactions” with a law firm. Such tools have helped him identify one of his pet peeves—“accidental double billing” as outside lawyers assisted his company with a flurry of activity around acquisition deals.

  4. Ask for the support of colleagues.

  If the law department is a truly valued business partner, the other departments will support the team, and GC’s shouldn’t shy from asking for help. If the law department isn’t at the stage of maturity where it has someone dedicated to legal operations, a good finance team will help to build a fair budget.

  Sales and human resources are also likely allies, he says. These departments rely on legal to meet their goals, so if the law department is short on resources next year, the sales team could face a bottleneck for contracts which slows revenue.

  Open Minds Grow Awareness of Available Tech

  One of the admissions I hear from GCs is that they don’t know what they don’t know. It’s challenging for them to think through how data and technology can help them with budgeting or any other task because they don’t have an awareness of what’s available in the market.

  It may seem counterintuitive, but some of the most tech-savvy legal leaders I’ve spoken with make it a point to seek out vendors for education. They’ll schedule time every month listening to the capabilities, observing demonstrations, and understanding the problems vendors are trying to help GCs solve.

  This doubles as an exercise in both business process improvement and professional development. One GC told me that even if a current business isn’t receptive to procuring legal technology today—tomorrow you could find yourself in a new position with a culture that’s both willing and ready.

  Nicholas d’Adhemar is the founder and CEO of Apperio, a legal spend analytics and matter tracking platform for in-house counsel.

  Source: Law.com, December 10, 2020 (https://www.law.com/legaltechnews/2020/12/10/four-tips-for-tapping-data-and-tech-to-make-the-case-for-legal-budgets-in-2021/)

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• Five Steps to Law Firm Marketing Planning in 2021
  

  By Meghan Frank

  In a year when most marketing plans had to completely change, it can be daunting to think about planning your 2021 marketing. COVID-19 altered the landscape for most industries, including the legal industry in 2020, and it’s not clear how long those effects will last. Is it even possible to come up with a good marketing plan at this point? How can we ensure marketing strategies are going to be successful if we aren’t even sure what our economic situation is going to be in six months?

  Actually, it is possible to develop a quality marketing plan that prepares your firm’s marketing strategy to deliver results and weather the storm of economic upheavals. Not only is it possible, but it’s also important to have a marketing plan to guide and track your business development efforts.

  To support law firms’ marketing planning for the year ahead, the LexisNexis® InterAction® team released a law firm marketing guide, A 5-Step Guide for Law Firm Marketing Planning in 2021. With reliable information and peer interviews based on research conducted in October 2020, you’ll want to use this guide as a blueprint throughout 2021.

  Before we reveal the five steps, there are a few key considerations to keep in mind as you head into next year…

  Remember, marketing plans and data are important every year

  The importance of marketing at law firms is becoming more and more recognized, with eight out of 10 firms creating marketing plans. Having a marketing plan supported by business development initiatives is important when things are going well. But, firms should realize that plans are just as important, if not more so, when things are uncertain in the economy.

  At the same time, we’ve also realized how important it is for data to support and measure marketing plans. During normal times, data reveals which business development efforts we should continue or change based on goals and objectives. When things are uncertain, having current and reliable data can be crucial for adjusting plans quickly if needed and as the market changes.

  Firms want to increase leads with fewer resources

  Next year, there will be an even bigger push to bring new leads for business, and every dollar spent doing so will be scrutinized to justify the ROI. Though efforts will increase, it’s still likely that firms will operate with fewer staff and decreased budgets due to cutbacks intended to minimize the economic impact of the pandemic. And networking will continue to happen virtually, as will a lot of legal work and billable hours. Because of this, there will be a heightened interest in data integrity for tracking and automated processes, which will make it possible to work through just about any condition.

  Traditional planning is out. Agile planning and data tracking is in.

  For successful planning each year, marketing teams must align their goals with the firm’s overall business objectives, prioritize department initiatives for the year ahead, allocate resources in an efficient way, and define the metrics used to assess progress.

  But in 2021, marketing teams will not only have to achieve what’s listed above, they’ll also have to be prepared to adjust each one of those steps along the way based on immediate or changing trends in the legal landscape. Therefore, teams will have to set goals that are agile while collecting and interpreting data to determine new directions for business development if necessary. It may seem like more work than usual, but this InterAction report makes it easier and guides you through a process that’s simpler to follow with just five steps.

  The 5 steps to creating your agile 2021 marketing plan

  The law firm marketing guide by InterAction, A 5-Step Guide for Law Firm Marketing Planning in 2021, is your key to creating agile marketing strategies with the data necessary to achieve successful results and build your business next year. We’ve included a quick overview of the five steps, but you can read the full report here.

  Step One: Plan Your Objectives

  Start out by aligning the marketing department’s goals with the firm’s overall business development objectives. Law firm marketing experts also warn that a common mistake they see is to jump straight from strategy to tactics, without investing the time to first determine what will constitute success at the end of the year.

  Step Two: Manage the Initiatives

  Looking ahead to 2021, legal marketers advise that this is the time to be more targeted in the development of tactical initiatives, moving away from the “spray and pray” approach that many firms have favored in the past. Establish the specific tactics you want to take to drive the pursuit of your strategic objectives.

  Step Three: Track Your Opportunities

  In today’s uncertain times, things change rapidly. Be prepared to monitor the progress of each initiative and adapt on the fly. Measure the specific data points that will allow you to track the right numbers.

  Step Four: Understand the Results

  Law firm marketing teams in 2021 need to be engaging with data analysis experts to create and produce progress reports that are informed by sophisticated data science. Present findings using clear and concise reports, produced in user-friendly formats.

  Step Five: Discover Insights

  Learn what is working and what isn’t by uncovering key insights from the results you are able to surface from your data. Embrace agile marketing planning by identifying areas for opportunistic marketing initiatives and modifying the tactics in your original plan.

  For more detailed information on the five-step guide, download the full version of the InterAction blueprint, A 5-Step Guide for Law Firm Marketing Planning in 2021.

  To find out more about leveraging today’s technology and using it to build your business development activities, contact your account manager or visit us online. For Europe, Middle East, Africa, and Asia Pacific, please visit www.lexisnexisinteraction.co.uk. For the Americas, please visit www.interaction.com.

  Source: Business of Law Blog, December 16, 2020 (https://businessoflawblog.com/2020/12/five-steps-to-law-firm-marketing-planning-in-2021/)

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