Sunday, June 28, 2009

Digital Immigrants

I spent three days last week on a retreat of sorts from the law profession, attending a conference that one might think has nothing to do with law. I've always thought that it's important for leaders to step out of their own field from time to time to get fresh perspective. Attending functions focused only on the legal profession can lead to narrow, naval-gazing, insular analysis that misses the bigger picture. Different perspectives on the world and the changes occurring globally invigorate analysis of trends in any profession, and certainly also in the legal world. Those relied on to lead the legal profession would do well to look outward, rather than inward.

The National Leadership Roundtable for Church Management conference certainly met that goal for me. Although every speaker was noteworthy, from Prime Minister Tony Blair to Bishop Gerald Kicanas, from Lieutenant General (ret) James Dubik to Cesar Conde, Executive VP and chief strategy officer of Univision, and quite a few others, the one that is most interesting for this blog was Jeffrey Cole, Director of the USC Annenberg Center for the Digital Future.

Professor Cole (I'm allowed to use the title exactly once, according to his introduction) organized thoughts about Web 2.0 in a very useful way, and I paraphrase his excellent remarks here. Web 2.0 is moving the internet away from an information source and to a participatory medium; rich media is rapidly replacing text. In the past, recognized "authorities" in a field were the source of all truth; in Web 2.0 the community confirms information accuracy in Wikis. Social networking and social marketplaces are exploding as various communities of interest develop and exploit the marvelous capacities of Web 2.0 to connect those with common interests. And, as the 80 million or so bloggers will testify, anyone can be a publisher.

Jeff also identified a number trends, but the one I'm having the most fun with is the idea of "digital immigrants." Anyone over the age of 25, he remarked, is an immigrant to the digital world; young people are, by and large, digital natives. At the moment, every practicing lawyer is a digital immigrant, as are almost all clients. In the next few years, we'll be joined in the profession by young lawyers who have grown up with broadband. Similarly, the legal problems and challenges in the world will eventually come to us from digital natives.

Law firms and lawyers might do well to consider now how these changes will affect the legal profession. With such a massive sea change in the way that the world functions, there will surely be an effect on legal issues, how professional lawyers are found, used, and compensated, and even the need for certain types of lawyers. The work we do won't become obsolete, of course, but the world we advise will change (has changed?) in fundamental ways. For example, why would anyone with a question about copyright law consult an IP lawyer when a Tweetdeck search provides links to a community of users and up to the minute blog posts on the topic? Why would anyone planning to start a business consult a lawyer and pay hundreds of dollars when there are wiki posts on the topic? Who will use legal newsletters, guidebooks, or even legal treatises with lead times of months to years, when Web 2.0 information is reliably accurate for updates in the last 24 hours? Why would any law firm think that an online version of a print marketing brochure will be at all useful in the rich media environment of Web 2.0?

I have some views on the answers to each of those questions, and my answers might or might not be right or useful. What I do know is useful to you as a leader: you'll be a better leader if you are asking these and similar questions, rather than ignoring them.


Wednesday, June 24, 2009

The Drunkard's Walk

Are you as exhausted as I am by the stress of this recession? Since last fall, big city law firms seem to have been obsessed with the dramatic upset to our economic order, the "meltdown" in the business world, the sudden disappearance of the credit markets. We've watched the wheels of the economic machine grind to a halt, hoping that the next set of statistics will show that forward motion has begun again. Scores of writers have opined on the cause(s): greed, laziness, bad politics, villains, or conspiracies of one or more of the above. The best thinkers of our era are trying to make sense of the world, to predict what will happen tomorrow.

I picked up a copy of Leonard Mlodinow's The Drunkard's Walk, How Randomness Rules Our Lives, to read on the plane today. I was thinking that perhaps all this effort to make sense of the world and act accordingly isn't necessary. Is it really just fate that has brought about the current state of world affairs? Our current place in the world? If we could be convinced that the circumstances we find ourselves in is just a result of chance, then perhaps the stress of trying to control the outcome would go away.

The Drunkard's Walk turned out to be a bit more of a mathematical challenge than I'd appreciated when I started it, but it is truly a page turner. The chapters weave together a history of mathematics from the early Greeks and Romans through Einstein. I have to admit that although I tried—I really tried—to understand the pages devoted to the emergence of calculus and limits, it still doesn't make sense to me. And I'm a bit concerned that my old math class nightmare might return tonight (you know, that recurring dream where the semester is over, I know it's time for the math final, but I never bought the textbook or went to class and I'm going to fail the exam…)

Back to the topic of the book: instead of inducing feelings of hopelessness and helplessness in the face of randomness, the book actually made me more hopeful than I've been in some time. Against the important backdrop of mathematics and statistics and their application to social sciences as well as physics, Mlodinow illustrates that it is in our human nature to miss the effects of randomness in life, because when we assess the world, we tend to see what we expect to see. Confirmation bias leads us to take a few points of personal experience and our expectations and biases, and to look at the next event as confirming what we expected. Notwithstanding the compelling mathematical laws of probabilities to the contrary, (we know that "past performance is not a predictor of future success"), we nevertheless draw unfortunate and often wrong conclusions from very small samples of data. He writes:

"The cord that tethers ability to success is both loose and elastic. It is easy to see fine qualities in successful books or to see unpublished manuscripts, inexpensive vodkas, or people struggling in any field as somehow lacking. It is easy to believe that ideas that worked were good ideas, that plans that succeeded were well designed, and that ideas and plans that did not were ill conceived. And it is easy to make heroes out of the most successful and to glance with disdain at the least. But ability does not guarantee achievement, nor is achievement proportional to ability. And so it is important to always keep in mind the other term in the equation—the role of chance.

It is not tragedy to think of the most successful people in any field as superheroes. But it is a tragedy when a belief in the judgment of experts or the marketplace rather than a belief in ourselves causes us to give up…"

It's a great read. Particularly in these challenging times, the message that one shouldn't be discouraged by past failures is an important one. Just because the last ten rolls of the dice didn't fall in one's favor, that has nothing to do with the next roll. Although there are many things in life we lawyers don't control, despite our years of training and hard work, the one thing we do control is whether we give up. I, for one, plan to keep rolling the dice.


PS For those of you who opened this blog thinking that a lawyer's notes about drunks might touch on the problem of alcoholism in the legal profession, sorry to disappoint. But perhaps I'll write on that topic another time.

Thursday, June 18, 2009


Today's post was inspired by the Hoekstra meme which I found at New York Magazine's Daily Intel, brought to me by my twitter pal, J. I had so much fun all day thinking of descriptions of my day in hyperbole. I have many such descriptive terms and some day I'll share them all with you. I'm working on a top ten list that will be so good Letterman will want to use it.

Seriously, the amusement provided by yet another elected official also reminded me to remind my millions of readers about the true value of Twitter. Perhaps the most useful aspect of Twitter will be its ability to affect the evolution of the human race. You all know I am a devoted follower of Charles Darwin, and have profound respect for evolutionary forces. The beauty I see in Twitter today is its ability to cull idiots from the Twitter forest. The nature of Twitter brings out the true character of every tweep, eventually. Those that don't belong will be pushed out of the safety of the forest and out of the communication stream.

Yes J, I heard your comment. But, really, it is a good thing. Eventually only the pure of heart, and total idiots will continue to use it. Those who are self aware enough to know they have something to hide won't twitter a character at all; those who are pure, smart, circumspect, and confident they'll never say anything wrong will keep at it. So will the true idiots with limited social and communication skills, eventually hitting "send" on a message that will ruin them. The trick is to identify which group you're in before it's too late.

I'm kind of surprised Congressman Hoekstra hasn't deleted that unfortunate post. It's still there, and fortunately for all his constituents, apparently he hasn't had a thing to say since yesterday at 8:56 am.


PS, I woke up with a sore neck this morning so I couldn't go to work, and now I really know how Christopher Reeve felt after he fell off his horse.

Monday, June 15, 2009

Haiku # 6

Summer Vacation.
Parents ev'ry where, rejoice.
Kids: "Off to camp, go!"

Sunday, June 14, 2009

In a Family Way: Pink Elephants

Couple of threads converged this week—on motherhood and those politically incorrect difficult conversations among women. First, a tweet from Feminist Law Profs directed me to a thoughtful article about shifting the public conversation about working women. Ann Friedman writes for the American Prospect in "When Opting Out Isn't an Option" that perhaps it's time to end the popular debate about professional women with children, and focus instead on the challenges faced by working women who aren't privileged and don't have the choice of whether, and how much, to work.

For the past decade women lawyers at large and prosperous big city law firms have expressed a sort of entitlement to "balanced hours" and "flexible schedules," an attitude created and then fostered by a real shortage in legal talent and a push for diversity in law firms. Now that there exist an oversupply of lawyers for the available work, many working lawyer moms who would be happy to work as many hours as possible, and a large array of women lawyers who have already shown that working full time and raising a family can be done, the balanced hours rhetoric seems less and less persuasive. Especially to the working women lawyer moms who don't have a choice but to work as much as possible, and may be a wee bit tired of supporting those who have the privilege of working less than full time. If you are in that privileged class, good for you (really, I mean that), but be careful about flaunting it or demanding special privileges and support from those who aren't (whether lawyers or staff, men or women, parents or not).

On a related note, here's a difficult conversation often whispered among women lawyers—to congratulate, or not, a colleague who looks to be pregnant, and how best to respond if on the receiving end of an intended kind comment that is actually a reflection of 20 extra pounds. As to the first query, unless the woman with the bulging belly has herself told you she is expecting, comments about her work schedule, weight, shape and wardrobe are off-limits. Any number of my friends have experienced that awful, awkward moment when another attorney (or, worse, a well-intentioned client) asks the due date of the child that is yet to be (or will never be) conceived.

As for those who have a roundish tummy but aren't expecting, it's tough to come up with a rejoinder in real time when the comment is made. Been there, felt that! A sweet smile (always appropriate) and, if the speaker is politically important to your career, either "not quite yet" or "no, just the last pound of M & M's I ate" might work, if followed by a quick redirection: "How 'bout those Giants?" If you're okay with alienating the speaker, try "A baby, are you kidding? It's all I can do to get work done each day for this sweatshop" or "Nope, this is just the result of eating to excess so as to deal with stress, and the complete lack of free time to get some exercise."

Now, I'm off to church (to pray for my soul), then to ride (to work on those abs), then to a baby shower for a lovely colleague (to relax and enjoy the special camaraderie of women).


Thursday, June 11, 2009

Bloggers Beware!

Back in April I noticed an alarming article in the Wall Street Journal about the danger to modern society of blogger moms who fail to disclose that they are being paid to promote a product. The FTC apparently is in the midst of considering new guidelines for endorsements by bloggers, to regulate potentially deceptive advertising by those who promote a product without disclosing payments for their endorsement. At the time I read the WSJ article I thought the idea that anyone needed protection from this threat was a bit, well, overwrought. On further reflection, I think it is an important issue for all you leading lawyer bloggers out there, so, if you haven't thought about this issue before, you should now. You can find the proposed FTC Guides Concerning Use of Endorsements and Testimonials here. The proposals set forth the general principles that the Commission will use in evaluating endorsements and testimonials, together with examples illustrating the application of those principles. Section 255.5 contains some examples of how the Guide will apply to blogs. Basically, the idea is that:

When there exists a connection between the endorser and the seller of the advertised product that might materially affect the weight or credibility of the endorsement (i.e., the connection is not reasonably expected by the audience), such connection must be fully disclosed. For example, when the endorser is neither represented in the advertisement as an expert nor is known to a significant portion of the viewing public, then the advertiser should clearly and conspicuously disclose either the payment or promise of compensation prior to and in exchange for the endorsement or the fact that the endorser knew or had reasons to know or to believe that if the endorsement favors the advertised product some benefit, such as an appearance on TV, would be extended to the endorser.

Whether there is really a danger here to the public is debatable, but clearly there is a danger to advertisers and bloggers. A helpful summary on AdlawByRequest, published by Reed Smith, gives a nice overview. According to that site, the FTC is expected to act on the proposed Guides in later in the summer.

In the meantime, be careful out there.


Special thanks to Paul N. for the heads up on this issue, and, for the record, nobody pays me anything or gives me any goodies for what I write here. I wish someone would!

Sunday, June 7, 2009

What's that Chirping in the Forest?

Question of the week: If a husband speaks deep in the forest, and his wife isn’t there to hear him, is he still wrong?

It will come as no surprise to anyone that the New York Times has again published an article that states the obvious, albeit with some statistical data to support the premise. Apparently, since 2002, 133 million blogs were started, and of those only 7.4 million have been updated in the last 120 days. When Blogs Fall In An Empty Forest ponders the purposes of bloggers, and how relatively futile blogs are for increasing either the economic prospects of the blogger, or her emotional connection with the intended audience.

Are blogs so yesterday? Probably. As I sipped my morning gallon of coffee today, it occurred to me that blogging is evolving rapidly. The earliest bloggers posted in a much different environment than we do today. New bloggers who either already have a public personality or have truly unique, funny or insightful commentary might still be able to achieve a significant following, but it seems that most new bloggers will rapidly fade into oblivion. The pertinent questions are whether the chirping you hear in the blog forest is a bird, a competitor, or a client singing an important tune, and whether you should join in the chorus.

The forest is hard to penetrate at the moment. It is deep, dense, and rapidly growing. I suspect that the successful new bloggers will be those who develop a sophisticated use of social networking technologies to sort through the trees and make sense of the forest. With so much noise on the internet, newcomers will have to master the technologies of Twitter and related tools. Even though it's popular for lawyers to scoff at Twitter as a silly phenomenon that doesn't and can't make any money, if one looks at the energy and money that is trying to figure it out, and the way that users are developing communities, networks, and referral mechanisms, you'll see there is indeed something very valuable there.

If you want to be at the leading edge, take a look at how your clients and competitors are using Twitter. Even if you don't want to write 140 character microblogs on your coffee-drinking, news-media-reviewing, teenage-parenting, client-developing, practice-managing, gender-bias-ranting, and other favorite gripes, you should be following the conversation. It's a big forest, but you can't even begin to see the whole forest if you deny that there are any trees there. For those of you who don't believe a word of what I've written so far today, if you have client that tweets, you are a fool if you don't follow. You can bet that some other lawyer will.

True leaders, though, will be the ones who expand their boundaries and their reach by figuring out how to cut a path through the forest. There are already a lot of lawyers leading the way, and they've posted tons of useful commentary. Where to begin? Start by taking a look at popular tweeps David Barrett, Lance Godard (22Tweets), Eric Goldman, Carolyn Elefant, and Mashable, to name just a few. Check out WeFollow, Twibes, TwitterGroups. You will have to spend time learning about Twitter every day for a month or so just to make it a habit; it is not something one jumps into and masters in a couple of hours.

As for my initial question, re the husband who speaks deep in the forest: In great deference to my spouse of 27 years, the honest answer is "no;" he's probably right, but that's not the point.


Wednesday, June 3, 2009

The Status of Women in the Legal Profession

Here are some interesting articles based on recently released surveys of the legal profession. These have been posted on line for a while, so might be rather dated (on Twitter time), but I think they are compelling enough reading to note here.

The American Bar Foundation recently distributed its new results from "After the JD, Wave II: Seven Years into a Lawyer's Career." The report reveals preliminary information from surveys of a representative sample of over 4,000 lawyers in 2002 and 2007. These results don't reflect the economic downturn, but reveal some interesting statistics nonetheless. They note that regardless of firm setting, men were significantly more likely to become partners than women, and African Americans planned to leave their current employer at much higher rates than any other racial groups.

For those of you who don't regularly read The American Lawyer, you might find Stuck in the Middle interesting. AmLaw surveyed more than 200 law firms, and the data reflected the make up of firms before the mass layoffs of the last six months. Nevertheless, the results are striking. The most interesting information for me was the proportion of female lawyers who are partners. For every woman who has made partner in the aggregate sample, there were three women nonpartners. Among all lawyers, the ratio is half that. I wonder why, and I wonder what the results will look like a year from now, when the economic effects of the downturn can be seen.

Special thanks to Nate for help this week.