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May 2007

Blawg Review #109

Ma_3 Thank you to everyone over at Blawg Review for the opportunity to host this - the 109th Review, which is surely to be the Greatest Blawg Review. Special thanks also to those who submitted articles and making this review possible.

Here at the Greatest American Lawyer we are dedicated to two things - changing tradition and calling things as they are. In the name of both, this Review is going to break down, categorize, and assess posts from across the legal blogosphere focusing in all things "Greatest."

            Our Greatest Challenge as Lawyers

Anyone who reads this blog knows I have a huge problem with the current incarnation of hourly billing used by law firms.   The Greatest problem we face as a profession is the not personal injury and malpractice lawsuits.  Not by a long shot.  It is hourly billing.  Even in house attorneys and outside counsel think that the notion of padding hours is commonplace.  As noted by Tom Kane at the Legal Marketing Blog, padding hours is  no longer a dirty little secret .  Tom picks up on a post by Patrick Lamb (one of my favorite bloggers)  who has another post about hourly billing abuses here.

Of course, the problems is not hours per se, but the incentives which hourly billing creates.  Lawyers who wake up thinking about the fact that they have to bill 8 hours to a client are hardly thinking about the right things.  Ron Baker  at has a great post on value billing here.

The Greatest Laughs

Compared to the Great comedic works of Shakespeare and Jerry Seinfeld, Rod's post over at Law Vibe -Laughing Law Student Blog was a refreshing reminder of the fact that lawyers too can do stand-up. His article, titled The Stupidest Things Lawyers and Witnesses Say in a Court of Law reminds me of some of the Greatest blunders that I made back in my earlier days... But don't worry, those laughs are safely hidden in the archives of the court - unlike some of the blunders Rod found.

Luckily for the clients we serve and the judges who get to watch us, lawyers are both great comedians, and great singers as Stephanie West Allen pointed out over at Idealawg. However, the beloved Bar & Grill Singers should be Greatful to Ms. Allen as her post warns of another singing crew arising from the medical profession. Singing lawyers and now singing neurologists? I am waiting for a rival group of Judges and Bailiffs who do interpretive dance...

The Not-So-Greatest Laughs

Manwholaughs There is nothing funny about an anonymous blogger forced out of business, and thank you to The Mommy Blawger for making us all aware of the recent loss to the blogosphere as 2 Medical Blogs [were] Shut Down in the face of privacy concerns. While I disagree with the double-standard that Mommy Blawger suggests from Revolution Health regarding the rights and expectations of medical bloggers, I too mourn the loss of Flea and Fat Doctor who may very well go down among the Greatest of anonymous writers.

Laughs were also missing in a recent post by Ed Poll over at the LawBiz Blog. His post titled Receptionists Can Make or Break the Day is a sad reminder of the little recognition that some of the most important people in a firm receive. Too often lawyers walk past support staffers, ignoring the Great contributions that they make to the entire operation - contributions that are necessary for a firm to retain clients. The way in which a firm treats its support staff also reflects upon the way they treat their own clients - because if you can't treat your own staff with the respect they deserve, how can you expect to treat your clients?

The Greatest Defects

We all have seen our share of Trolls, but it is not those kind who carry such Great concern for bloggers like us and constitute an inherent difficulty with forums and listservs. I know this is a concern facing more than myself thanks to Jim Calloway at Law Practice Tips Blog who's post gives us some great tips about ways to deal with your resident troll. It may take a Great struggle to wrestle your forums and listservs from trolls like the ones he describes, but I have the Greatest faith in all of you.

There are always great controversies coming from sports across the globe, but it finally seems as if the Greatest Game may finally free itself from many of them if FIFA takes the advice of guest blogger William Birdthistle from the Volokh Conspiracy blog. What he sees as a Great defect of the game of football (soccer) is the huge impact that the referee can have upon the match, as a send off of an important player or a penalty kick can very well determine the outcome of the game. This often puts referees in a dangerous position in which they must decide between calling a foul or setting the result of the game. In order to eliminate this problem, Birdthistle suggests a method of weakening the power of the officials in order to lessen their rulings impact upon the game. I am Greatly anticipating his coming posts to see how he plans to do it.

At, recent reports of major flaws in the domain registrations system should have everyone worried. At their domain and cybersquatting blog, it is reported that Enom is actually stealing domain names from their own registrants.

The Greatest Clashes

The conflict between open-source and patent rights is one that I will be watching very intently. All jokesConflict aside, this is sure to be a great debate with consequences for both society and the market, regardless of which side wins. It was Deven Desai that put up a Great post regarding this very question from  As he writes in Microsoft Going After Open Source?, Microsoft has claimed that free and open-source software violates at least 235 of its patents, with Linux the Greatest violator with 107 patent infringements. The Great question is what impact the outcome of such a lawsuit will have upon the software development and programming market and even the Internet itself. As Desai asks, will a suit see the patents of Microsoft invalidated or an unprecedented amount of restrictions upon open-source material?

Along the same line, a post from Peter Lattmann from the Wall Street Journal highlighted an interview with Mike Dillon, GC for Sun Microsystems, a company that has embraced open-source software and may soon find itself face to face against the behemoth of Microsoft. He also has some interesting things to say about the future of programming, citing Microsoft's attempt to stop open-source programs on patent violations as an attempt to maintain the status quo of programming and halt development. What I found as Dillon's Greatest contribution was his interpretation of the practice of investors and lawyers to use patents as a way to make a quick buck off of a program. He asserts that this has perverted the patent system envisioned by our "Forefathers" as these practices have taken it from a system that protected the risk and investment of developers and inventors - a Great conclusion.

John Wallbillich from Wired GC also provides his own story on this Great conflict in Open Source, Open Season?  which covers the open-source issues facing software developers. While John doesn't go as far as Dillon by any means, he does offer a Great prediction - If Microsoft decides to pursue the patent infringement that it claims, Intellectual Property lawyers can expect a big boost in business.

The Greatest Decisions

Patrick Lamb's blog titled In Search of Perfect Client Service is a favorite of mine, and his recent postLaw titled Who Speaks for the Client? is a Great example of just why. In a world in which attorneys are often looked to for the voice of the client, we must all realize how totally unprepared we are to do just that. As Patrick writes: "I've come to the conclusion that we cannot rely on ourselves to speak our clients in a law firm environment." This is why it is so important to have systems so that the "client's interests, the client's voice, are spoken--loudly--internally as the firm conducts its business". What a Great decision.

Value billing is a key aspect of the Greatest Philosophy, a system which provides legal service at a price equated to the value provided to the client. However, as our system of billing is quite uncommon, clients are used to legal services that provide quality service only late in the process - an issue Scott Greenfield just posted about on his blog Simple Justice. The tardiness that is often witnessed by clients with regards to the legal services provided to them is why many clients often wait until late in the process to fully commit to their defense. It is no surprise that defendants only accept the serious nature of the case (and the associated high cost of the legal service) late in the process, because it is only late in that process when lawyers often take their case seriously and actually earn the amount they are charging. This is why lawyers too have a role in making sure that clients Get It Right the First Time and ensure people don't go to jail for simple stupidity. To make the switch to value billing so that you can be the attorney that provides a quality service from start to finish and watch as clients gain the appreciation for the case before them and the value provided by your firm; now thats a Great decision.

The Greatest Repeat

When someone cites the all familiar quote "history repeats itself" it is often with regards to an ill-fated invasion of Russia, but at Blawg-IT, written by Brett Trout, this maxim is not just for the Historians. His post titled Have You Trademarked Your Short Codes? explores the growing market for CSCs or Common Short Codes, which most will recognize as the number you text-messaged to vote for Blake on American Idol. What I found most interesting was his comparison of this growing market to the market for phone numbers that corresponded to popular or trademarked phrases. If history is any indication, we may very well be arbitrating a CSC dispute with WIPO or NAF - but Brett doesn't think so.

The Greatest Clarifications

Eye While my firm doesn't deal with criminal law, there are those of us who deal with defendents who find themselves confused in a process that has only recently gained personal relevance. Oftentimes, the only background a defendent has with a criminal charge is what they saw on Adam 12. This is why I appreciate the post from Jamie Spencer at the Austin Criminal Defense Lawyer Blog, titled How the "Statute of Limitations" Works, which is a Great description that defendants will surely appreciate because it utilizes basic examples and avoids the lingo that often breeds confusion.

So thats it - the Greatest Blawg Review. From football to open-source, from short codes to trolls, its takes it all to make the Greatest.

Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues.

The Star in the Address Bar

Domain names and trademarks are properties that share a common bond in a successfully marketed product. Once your marketing department, or whomever, selects a trademark to be registered, you should immediately move to grab onto the corresponding Domain Name. Availability of key phrases or words should even be a factor in selecting the trademark itself, because that mark is often the only thing that the consumer has when they log on to find your product.

But what happens when that trademark is unregistered, but the URL is already in use by a third party in good faith? Does it hold enough value to merit purchase? Is spending thousands of dollars for the rights to a few words in the address bar really worth it?

While your first instinct may suggest otherwise, it is important to realize the significance of the title that reads in your visitors' address bars when considering purchasing the registration. For your customers, the easiest way to find your product is with the internet, and unless it is easy to match a product with a website, you lose that advantage.

The truth is that everyday domain name titles often see higher traffic than unique or custom ones - and if you are hoping to take advantage of internet traffic, you should have a URL to help that happen. This is because it is easy for your customers to find and remember your site's familiar name in the mess that is the internet.

When it comes to making the decision to purchase the rights to a domain name, you can, in a way, consider it much like you would a decision to purchase a star endorsement. Yes, the endorsement will turn the heads of your customers, and it will make it easier to identify your product - but such attention will come at a cost. Star endorsements get very pricey - just like the price-tag of a popular domain name.

So what do Michael Jordan and have in common? It all comes down to their ability to be recognized and remembered. And if you want to tap into that advantage, oftentimes you will have to pay a price.

Portable Digital Dictation Changes Everything

My Philips 9350 portable digital recorder fundamentally changes the way I practice law. Many people can’t really contemplate carrying a portable digital recorder around all the time. Even I sometimes laugh thinking about the geek standing in the corner doing a "memo to self" in his portable dictation device. On The Sopranos last night, Junior’s cancer doctor went to instruct his secretary to call Junior, by dictating a memo in his digital recorder. Tony smacked the recorder out of his hand and, without saying anything more, let the doctor know he’d better call Junior himself.

I don’t spend a lot of time dictating in public, or in front of other people. But when I get up in the morning, there are at least three things bothering me about one or more of my cases. There are questions that are rumbling around in my head for which I don’t have answers. Those questions become tasks or messages in our client extranet because I immediately pick up my digital recorder and assign tasks which will get me answers. The chance that I would "move the ball" on those issues once I got into the office inundated with distraction is incredibly small.

I often say that I do the work of three attorneys. This is probably true. And while I work hard and put in a lot of miscellaneous hours when I’m not in my office, it also has personal benefits as well.

Let’s face it. We all get anxious when we know things need to happen in cases and those issues are not being handled. We only have so much time in day. We’re only in our office so many hours.

The ability to pick up a portable dictation device and solve a problem, pose a question or provide information is a huge relief. If I dictate three research tasks before getting into bed at night, I don’t have to lie there worrying about them. I know that dictation will be uploaded into the extranet in the morning and I will likely have answers shortly thereafter.

I’ve always said that the practice of law is simply about identifying important questions and obtaining answers. Sometimes I refer to this approach as putting the lawyer in the position of "coach and quarterback." Digital dictation in tandem with our extranet allows me to be the coach and quarterback for all the members of our team. This includes our internal workers and our remote virtual workers. It also includes the clients. So take those questions and thoughts rambling around between your ears and turn them into action items at a moments notice. You’ll feel better. And your client will receive the value they deserve.

Value Billing is not Discount Billing.

There is a mistaken belief that value billing is somehow discount billing. This discourages lawyers from experimenting with value billing.

Let me make this clear. Value billing is not discount billing. For clients that want the cheapest solution, our firm is not the answer. Quite the contrary. Because we are so focused on defining and providing value to the client, we tend to do more work on the front-end of every case. We figure the case out by assessing the client’s goals and defining outcomes. That takes time and effort.

More importantly, we are not limited to our hourly rate in billing the client. Let me give you an example.

We were working with a client that is enduring unfair practices by a direct competitor. The competitor is making serious misrepresentations concerning our client and its product in the market.

In assessing the matter, we determined that the loss of a single customer could result in a loss of $100,000 or more in revenue. The client needs to be compensated for prior unfair practices as well as be compensated for damages to date.

Many lawyers would simply agree to draft a threat letter and bill us on an hourly basis. That summary process might be something in the range of $3,000.

Our assessment determined that the client’s goals are best met by an extremely aggressive stance including a threat letter and filing of a complaint. We have defined the exact outcomes on the front-end. We wake up each day focused purely on achieving those outcomes.

The initial budget for the client $5,000 a month for three months in order to achieve the defined goals. Suffice it to say that the goals are ones which are achievable as long as we execute our plan and do so skillfully. The value of the outcomes to the client far exceed the $15,000 spend. The client doesn’t care how much time we spend on the matter. The client only cares on us obtaining the defined goals. The client fully understands the financial value (impact on gross revenue) by obtaining these goals.

Value billing is not discount billing in the above example. Instead of simply going through the motions of the "traditional" threat letter campaign, we devised a plan which provides far more value to the client because the odds of achieving the defined benchmarks are extremely high. Most threat letter campaigns simply provoke litigation. How does that provide value to the client?

As a firm, we have an opportunity to earn more than an hourly rate if we are smart and efficient.

Value billing means exactly that. We define value to the client. We bill for the value provided.

Hourly Billing Breeds Complacency

In most any case and on most any matter current live in your office, there are things that need to be done which aren’t being handled. You know it and I know it. One of the most difficult transitions when I started this firm was learning to be proactive at level that the hourly billing method simply did not encourage. Under the hourly billing model a lawyer is usually piled up with work so high that they spend almost all of their day putting out fires. In a value-billing model, the lawyer has more time to think strategically and figure out how to deliver the goods.

The most valuable thing you could ever provide to your client is good strategic thought. When was the last time you sat down and fully documented what the next steps were in your matter. If your client called today, could you tell them exactly how you are going to win their case or achieve the value you’ve defined for them on the front-end?

Using Mindjet Mind Manager Software as a Case Management Tool.

I’ve posted before about the Mindjet MindManager program. I’m beginning to use this software more aggressively for a variety of legal matters. I would recommend that everyone try a free trial. It is incredibly helpful in organizing and mapping projects.

Think of the mind-mapping program as an outline tool on steroids. The ability to move topics, subtopics and lower level topics easily around the graphical desktop really allows for easy organization. This software is perfect decision trees and for developing a plan of attack which could then be executed. We use the software to define projects in tremendous detail. We continue to update the mind map as the project moves forward, with everything driving towards the documented deliverables, which are set out on the front-end. The to-do items that arise, of course, get plugged directly into our extranet.

Value Billing Requires Attorneys to Define and Deliver Benchmarks.

Every time I sit down with a client, I tell them what we achieved since we last met, what we’re going to do next and I remind them exactly what we have promised to deliver in their matter. Yes, even in litigation, we define very specific benchmarks and then set out to achieve them. The vast majority of the time we deliver on our promises. In fact, our ability to get paid is at least, in part, dependent on delivering agreed upon benchmarks. Yes, we wake up in the morning thinking about how we will make good on the benchmarks we have identified for the client as deliverables.

So what is a benchmark? In a contract case, it may be negotiating a contract which includes the three key terms that your client must have in order for the deal to make sense. Your risk is that the other party won’t like the language you’ve proposed. Your job is to make sure that they do agree with your language.

Yes, this involves a lot more than marking up a documenting and emailing it to the other side. It requires the attorney to think outside the box. If you have to deliver a non-compete clause and exclusive dealings provision in favor of your client, you better figure how to make those terms acceptable to the other party.

If you didn’t get paid if the other party didn’t accept, how much time do you think you would spend in the morning strategizing about achieving that benchmark? You would not be merely marking up documents in "track changes" mode in Microsoft Word. You would be on the phone educating the other attorney about why the provision is important and fair. You would be imbedding audio comments in your PDF markups explaining how provisions work and why the deal made business sense for the other side.

If you had no idea whether the other side would be agreeable to a non-compete and exclusive dealings contract, the first phase of your project would be ensuring that those provisions would be generally acceptable to the other side. You wouldn’t spend one ounce of time drafting an arbitration clause until you knew that the three most important items which your client required were acceptable in principle before spending the time drafting.

I hear attorneys say that the value billing approach won’t work because there are too many variables beyond the attorney’s control. In many ways, this is an incredible cop-out. First of all, the value-billing project can be defined in a way which accounts for those variables. Second of all, I will guarantee you that if you take risk on those "unknown" variables, you will spend a lot more time in your client’s shoes sharing the risk and, as a result, focusing on achieving your benchmarks.

Lawyers Need to Ask “Why Not?”

Lawyers Need to Ask "Why Not?"

The cynicism of lawyers is well documented. Businessmen typically loathe attorneys because of that pervasive negativity lawyers are always getting in the way of deals. Lawyers are always telling business owners why things can’t be done a certain way.

There is really no reason for this. After all, business advice is more semantics than substance when it comes to providing business advice. A good lawyer already knows there will be challenges and hurdles when a business client approaches them about a particular issue or deal. A great lawyer identifies those challenges and finds a way around them. The next conversation with the client points out those challenges and then instructs the client about how the firm will help a client meet those challenges.

What Are Your Rights to the Domain?

Traverse Legal does a lot of work with domain name disputes. This is work that puts us in contact with clients from across the globe, and legal bodies that often reside even farther - through whom we arbitrate these disputes.

However, an interesting debate with regard to the work we do is of the exact nature of the domain name. Is the name that fills the browser address bar a form of intellectual property that can be owned and protected as such, or is it simply something rented from dedicated servers - only as permanent as the payments made to keep the URL?

As Ellen Pony, over at the Domain Name Handbook writes: "What are your long term plans for your domain name? Do you expect to convey the name and the goodwill associated with it to an interested buy or bequeath it to your heirs? Perhaps you intend to use the domain name to secure a loan for a business expansion or for your child's college tuition. You may be in for a surprise." 

As she goes on, Network Solutions a registry organization with whom my firm operates, is said to force any registrant to agree to 24 terms and conditions in the Service Agreement, which includes:

23. NON-ASSIGNMENT. Your rights under this Agreement are not assignable. Any attempt by you to assign your rights shall render this Agreement voidable at our option. Any attempt by your creditors to obtain an interest in your rights under this Agreement, whether by attachment, garnishment or otherwise, shall render this Agreement voidable at our option.

Now, her article is a little dated, and despite the fact that I could not find that exact point in the Service Agreement over at Network Solutions, this brings to light an issue that, if nothing else, should be fully understood before you start paying for your domain name: your long term rights to the name that will fill your clients' address bar.

Its so important to be aware of your options underneath any service agreement because of the fact that your website is one of the major aspects of your business, something that will hopefully be operating for a lot longer than your time in the office. So when it comes time to bequeath your firm to the next generation of high-tech attorneys, is it going to be within your power to hand over the domain name along with the keys to the door? Or, as Ellen Pony stated, what about selling your reputable URL to the highest bidder? Is that an option that is going to be in your hands, or, like in her example, void the contract that gives you the domain?