I blame the lawyers

This is pretty amusing although more the Ars article than the fact that the patent for online document sharing was actually granted to Xerox:

There are probably hundreds of pieces of prior art that could be found for an essentially simple idea. The one highlighted in Ranieri’s article, and pictured above, is a library circulation card. That’s a pretty old system of, well, sharing physical documents within a network.

I blame the lawyers.

Read the full Ars Technica titled “What’s stupid this month: Xerox patents sharing documents online


If you want to see your lawyer cry …

Business and work Mindsets

Small is a state of mind, not a value judgment

Pizza Place in the Town of Leakey, Texas, near San Antonio 05/1973

When I left a large law firm to start my firm, Jacobson Attorneys, in 2005 I priced my services relatively low on the naive assumption that I would attract a greater volume of clients who would find my fees affordable. One of the first lessons I learned was that this thinking doesn’t work because, despite best intentions, clients frequently associate low fees with less value regardless of the quality of the services. This is especially the case when it comes to legal services where there is a general assumption that these services are costly.

Value perceptions are informed by a number of factors. One is your price. Other factors include your work space, how you dress, how you present your work, which car you drive and more. I don’t think there is a fixed list of factors which you can tweak to optimise your clients’ value perceptions but there seem to be a common set and if you want to create a perception of value in your services and you don’t, for example, wear a suit or work in a fancy corporate work space, you usually need to be fairly creative about establishing your value.

One business which has a pretty unique approach and is remarkably successful is Missing Link. If you find someone wearing a suit, it may be a client or a fancy dress thing. What is clear is that the Missing Link team does incredible work and their service is far beyond most businesses.

My business, Web•Tech•Law, is a small business. I’ve been thinking about what that means: “small business”. Well, to begin with it is small because my team comprises me, a lawyer and numerically small group of people I collaborate with for different projects. “Small” is a pretty loaded word when it is used to describe a business. Aside from the number of people who form part of that business, the word is sometimes used to describe the business’ clients (are they also “small businesses” or individuals or are they multinational corporations?); the type of work the business does or the business’ geographical or functional footprint.

The word “small” also creates expectations about how much that business will charge for its services and this is where the word “small” becomes deeply problematic from two perspectives. On the one hand, many clients approach a small business with an expectation that the business will charge low fees. If you are selling some sort of commodity, a small price tag is a good thing. It probably enhances the customer’s perception of value in that business.

When it comes to services, especially professional services, a low fee seems to imply poor quality and less value. In many cases this is actually true. When it comes to legal services it is pretty difficult to charge low fees and produce high quality outcomes (not impossible, some lawyers have found the perfect balance) partly because charging low fees means you have to service more clients to earn enough money overall to cover costs and live a decent life and that often means you can’t spend as much time doing great work as you would like to. On the other hand, charging higher fees gives you the productive space to do better quality work without the stress that if you don’t get to the next 20 files that day, you won’t cover your costs for the month. The challenge is that a common expectation is that your fees should be lower because you are a “small business” in one of more respects and, therefore, you shouldn’t need to charge so much.

This perception is based on an assumption, conscious or unconscious, that “small” means “less”. Non-lawyers are usually unable to determine when legal services are high quality services because much of what a lawyer does tends to be unintelligible to non-lawyers so competence is generally assumed. The emphasis shifts to other factors when you assess value in the services you receive. When you walk into a large law firm’s reception area and see the beautiful decor, the modern meeting rooms and well dressed lawyers, you believe that there is more value in the work those lawyers are going to do for you and you expect to pay a lot of money for that work. Similarly, when the large law firm lawyers present you with a substantial bill, you may tend to regard the services as having substantial value even if you’re not sure of the quality. In this sort of environment, charging higher fees serves an important purpose when it comes to value perceptions. Obviously, if you are going to charge high fees you have to deliver too but the high fees are a good starting point.

On a related note, this idea that because a lawyer works in a large firm, that lawyer is a better lawyer than the lawyer in the solo practice on the other side of the metaphorical tracks is a nonsense idea. When it comes down to it, your work is being done by individuals and although large firms tend to hire the top law students, they don’t necessarily always hire top notch lawyers. I have been fortunate to work with or encounter attorneys in small firms who are absolutely superb lawyers (one of those lawyers is a good friend). I frequently encounter lawyers in large firms or in corporate legal departments in huge companies who produce very average work. Again, the size of your office is not a reliable indication of whether you are any good at what you do. You might just be really good at filling a time sheet and meeting high fee budgets.

Frank Moss (LOC)

As tricky as pricing is from a client value perception perspective, it is even more problematic if you consider that where you price your services is also a reflection of the value you place in your own work. This is a tough lesson to learn because learning it requires you to break harmful and, at the same time, self-reinforcing patterns. When you charge fees that are lower than your work is worth (certainly less than your basic effort is worth), you are essentially saying that you don’t believe your services are worth much and you don’t deserve to be paid much for them, if anything at all. So you make less money, have to bring in more business to generate enough fees to cover your costs and the more business you have to generate (which, in itself, is challenging if you don’t believe your work is worth much), the less time you have to do good quality work. That, in turn, reinforces your perception that your work isn’t really worth much and so it goes on.

Breaking that perception requires you to take a hard look at what you do, what it is worth and, more importantly, what you are worth as a service provider (we’re all unique and beautiful but what are you contributing to your clients’ bottom line in monetary terms?). If you believe your services are worth less (or worthless), you can’t expect much more than an unending slog uphill in the rain and in the dark. On the other hand, if you are prepared to suspend disbelief long enough to let a little self-worth in, you may realise that you are actually pretty good at what you do and, given the mental space to do better work, you can become pretty great at your work and solve some pretty important problems your clients are experiencing. That merits not only payment but more money than you may have expected. In the process, you start to understand that you are a beautiful and unique snowflake who is entitled to a good living. That may lead to better quality work, more innovation and happier clients all while still only having a small team, in numerical terms, and modest offices.

Reaching that point is not that easy and it requires sacrifice. Higher fees means you won’t receive work from clients with more modest budgets but that isn’t always a bad thing. My humble experience has shown me that while some small clients are great clients to work with and who recognise the value in the services they receive, even if they just can’t afford higher fees, many more clients take the services for granted and don’t pay on time, a reasonable amount or at all. Those clients are probably better serviced by providers who are optimised for lower fees with acceptable trade-offs when it comes to work quality and service levels.

Being regarded as a “small business” is challenging. Some of this has to do with how your clients (or prospective clients) perceive you and your work but mostly the challenge is how you perceive yourself and your professional worth? When you think about your business as a “small business”, are you forming a value judgment about your business or are you just stating a numerical fact about the size of your otherwise high value team?

Legal Mindsets

Lawyers leading the indoctrinated public along a meaningless path

Something that has been bugging me lately is how everyone seems to think about risk in terms of specific legislation, the most popular one these days being #POPI (in other words, the Protection of Personal Information Act). It’s not that I’m irritated that non-lawyers know more about legal developments. On the contrary, it is terrific that non-lawyers know more about legal, compliance and other risk factors and can recognise them more readily.

The problem is that people focus on individual laws, for example the Protection of Personal Information Act, as if those individual laws somehow encapsulate the total approach to managing various risks. I pointed out that there is more to data protection and privacy than just the Protection of Personal Information Act recently. This fashionable focus on the latest or hottest legal thing leads non-lawyers down a delusional path where they both think they have a handle on the issues because they know the name of a law and because there is so much emphasis on that particular law that they begin to think there is nothing else.

For this, I blame the lawyers. Lawyers are so accustomed to focusing on individual legislation and legal developments that they often can’t see the proverbial wood for the trees. Something like POPI takes a step forward and lawyers make a lot of noise about its implications (I’ve done this often) and while more information about the law’s implications for people and businesses is a good thing, it is really easy to lose sight of a far more constructive and holistic approach.

If non-lawyers could choose, I believe they would not be particularly interested in individual laws and regulations aside from being able to identify them and understand, at a high level, what they govern. I think that what most non-lawyers would prefer is to be given far more holistic guidance which takes into account a broader range of laws, risk factors and considerations.

This compulsion to divide everything up in to neat little legislation boxes is really just lawyers habitually drawing the same distinctions because they think those distinctions are meaningful and immensely useful. All this does is confuse non-lawyers because these distinctions have little practical value outside a lawyer’s highly structured mind and then, with repetition, indoctrinate non-lawyers into believing these are meaningful distinctions after all.

If you open a blog post written by a lawyer about her services and all you see is a lengthy breakdown of a topic by legislation and regulation, perhaps find another lawyer’s blog to read, preferably someone who will focus on the core themes and issues first and the component laws and regulations a distinct fourth.


Lawyers can be terrible writers

Rian van der Merwe wrote an interesting post titled “Good writing and the death of plain language” recently which touches on something I think about each time I sit down to write an article or a contract.

Van der Merwe quoted William Zinsser’s “On Writing Well” and this one paragraph stood out for me:

Our national tendency is to inflate and thereby sound important. The airline pilot who announces that he is presently anticipating experiencing considerable precipitation wouldn’t think of saying it may rain. The sentence is too simple—there must be something wrong with it.

This is something that afflicts the legal profession. Lawyers have always been pretty difficult to understand and despite plain language imperatives they persist with only mildly more intelligible language. I occasionally find myself having a conversation with a lawyer who is dumbfounded by something I have written, not because it is complex (which it usually isn’t) but because I make a point of not writing like a typical lawyer using typical document formats.

It still surprises me that so many lawyers seem to link the complexity of the language they use in their documents with their sense of worth as lawyers. It’s as if writing in legalese is an inherent characteristic of a lawyer instead of our ability to understand complex transactions and describe them effectively and simply in the legal documents we write.

Events and Life Legal Mindsets

Advice for new lawyers about passion

I receive emails from young lawyers and law students asking me for advice on how best to enter the profession and focus on Internet/digital legal work, from time to time. I generally give the same answer and when I received an email from an aspiring lawyer recently, I thought I’d publish part of my response to her here too. The field I am in is attracting a number of new lawyers and this might help answer some questions they may have too.

One of the things I have learned about the law is that it is a pretty tough profession, both in the early years as well as later on in your career. In fact, I think the years after articles can be the hardest because you are well beyond the novelty of the work and if you are not doing work that inspires you, it can be a very difficult experience.

You’ll find that most lawyers hate their jobs and wish they could do something else. I was determined to change careers when I was leaving my last employer in 2005 but opted to start my own practice until I figured out the next thing. What changed for me was introducing “new media” into my legal practice in about 2007 or so (it could have been 2008) and developing that into my current speciality. I am passionate about digital and social and when I started working in that space as a lawyer I rediscovered some of the things about law and that I really enjoy too.

Doing work you are passionate about will keep you going in tough times and inspire you to innovate and do really interesting work. Following your passions doesn’t always mean only doing the fun stuff because there is still a lot of drudge work to do. The big difference for me was not having that Sunday Morning Dread (the gut wrenching realisation that you are a day away from going back to work). I experienced that feeling only once or twice since August 2005 and only when I found myself in a very difficult position in my businesses and lost touch with my passion.

Doing the work you are passionate about makes getting out of bed and going to work an adventure because each day is another opportunity to do more of what you love and to explore new ways to do your work even better.

So my advice is to find your passion and follow that. You might have a complete sense of what that is or may not have the flexibility to pursue it just yet (very possible when you are pretty junior and are required to do all sorts of work your employers require of you) so find ways to feed that growing passion by reading as much as you can, writing about what interests you or just following people who are talking about the stuff that engages you. At some point it all starts to come together and you find yourself creating the kind of work that will drive you for years to come.

Legal Mindsets

In defence of lawyers and their fees

The Oscar Pistorius case discussion has shifted, to a degree, to the lawyers involved and the profit they are bound to make from this high profile case. This is a common meme in any high profile case and when talking about lawyers generally. It is also a pretty harmful meme and not necessarily for the reason you may expect.

This sort of case requires some pretty substantial legal resources and quality legal resources don’t come cheaply. The lawyers are almost certainly going to make a lot of money on this case but the work that goes into high pressure litigation is tremendous (I don’t really know what goes into a criminal case, I don’t do that sort of work) and the work is almost all consuming.

I understand criticisms of lawyers who stand to profit from these sorts of cases (and legal work, generally) and there are certainly plenty lawyers who do shoddy work and charge absurd fees for little value in return but there are many lawyers who are smart, work really hard and are worth every Rand they charge and then some.

The law is complex and it becomes more and more complex each year due to new legislation (lately, increasingly poorly drafted legislation), new developments and trends and changing norms which require a lot of skill, experience and focus. We live in a society that is structured using a dizzying array of laws and regulations. Those laws may be unfair, unjust or even applied poorly but law informs the underlying structure of virtually everything you do. You are probably not aware of most of it but it is there nonetheless.

The problem with this notion that because lawyers charge a lot of money, they are evil manipulators who profit from human weakness and suffering is that, while true in some instances, it undermines the good work a great many lawyers do on a daily basis and that can often lead to lower quality work from well-meaning but increasingly pressurised lawyers. Constant criticism of legal fees frequently ignores the value in the work lawyers do. When you lose sight of the value in legal services, the focus shifts to cost and the pressure is always on reducing the cost as much as possible.

Reducing the cost can, in turn, pressure lawyers to compromise their work quality and that rarely goes well. Resisting the temptation to compromise on work quality despite the reduction of a fee for that work can be costly. It usually means spending more time on the work than the fee justifies (remember, much of the work lawyers do is time intensive and we still have bills to pay at the end of a month like you do) and that means billing less and less for work clients expect to be high quality.

Many lawyers do what they can to get by or even thrive by adjusting the quality of the work they do and the services they render to suit the fees they earn. To an extent, you can mitigate this by working smarter and more efficiently but that only takes you so far. Sometimes you just have to spend a couple hours properly analysing a document if you are going to be able to give good advice on it.

The end result can often be that clients receive less that satisfactory work (from both their and the lawyers’ perspective) for fees they still feel are high and don’t see the value they receive in exchange for those fees. This just perpetuates this perception of lawyers as leeches, sharks, vampires … you name it.

Thankfully there are great lawyers who either accept the additional stress of doing high quality work for low fees (and work ridiculous hours, sacrificing time with families, friends and even time to themselves to unwind) or who charge higher fees in return for having the mental and financial space to do great work. Both types of lawyers deserve tremendous respect because what they share is not wealth (not all lawyers are well off, more lawyers struggle with high debt and just get by than you may think) but integrity.

I don’t know Oscar Pistorius’ legal team but criticising them just because they will likely charge substantial fees to defend their client against murder charges and what those could mean for him disrespects the work they do and the work virtually all lawyers do. It also perpetuates the negative perceptions of lawyers and the cycle of more lawyers making poor decisions just to survive.