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  • Mike McCubbin: Tips for a paperless office

    by Nathaniel Russell | Nov 16, 2012

    When I tell people that I’m a lawyer and I run a paperless office, I often get one of two responses:

    1. From people who have been in a law office: “Good…lawyers have far too much paper to begin with”.
    2. From other lawyers: “How?”

    This blog entry is aimed at the latter. Paper will never vanish, but its use will become less important in our lifetime. I have come across many lawyers who are confused because they regard paper as an essential element of their law practice, in particular emphasizing the importance of original copies. In my view, this is a formality that becomes less relevant when we consider that anyone can go down to Future Shop and buy the equipment necessary to forge almost anything. In the end, we rely on the honesty of people authenticating documents as being what they purport to be.

    Most of the challenges associated with avoiding paper have very simple solutions. While the electronic creation and storage of records increases the quantity and breadth of documents relevant to litigation, remember that the only reason this increases the amount of paper is that we choose to produce that paper for presentation purposes. Just about every advantage of paper has a cheaper and better equivalent when preserved or stored in electronic format. The trouble is, most lawyers view their computer as a word processing and internet browsing machine and not a tool for sorting, organizing, and presenting information.

    A discussion of each of these advantages is well beyond scope of a single blog entry. Here, I intend to look at some of the legal issues around avoiding paper.

    Most importantly, your paperless office will survive a Law Society audit. BC’s first virtual office has done it and so have others (my practice has yet to undergo the pleasure of an audit). [The Law Society of BC has posted a Compliance Audit FAQ - Eds] So long as you are as disciplined in maintaining electronic records (whether initially created in electronic format originally or turned into electronic format by scanner), in the same manner as your paper records you will be fine.

    In large part, that is because there is an express statute allowing matters within provincial jurisdiction to maintain electronic records: the Electronic Transactions Act, S.B.C. 2001, c. 10.

    Of course, there are a few important exceptions set out in s. 2 of the Act. Broadly put, those exceptions are for:

    1. wills, including trusts created by wills;
    2. powers of attorney;
    3. documents that create or transfer an interest in land and that require registration to be effective against third parties; and
    4. anything prescribed by the regulations (there are presently no regulations).

    Section 5 of the Act provides that any legal requirement to keep a record in writing is satisfied if the record is in electronic form and accessible in a “manner usable for subsequent reference”.

    Section 9 provides that any legal requirement to provide or retain an original record is satisfied by the provision of the record in electronic form if there is a “reliable assurance” as to the integrity of the record in electronic form and the electronic record can be maintained

    Section 11 dispenses with the requirement of an ink signature if an electronic signature is ascribed to the document.

    This is significant, not because it does away with having to print, sign and scan a document, but because it dramatically improves document security; a frequent concern for lawyers whether documents are in paper or electronic format.

    A proper electronic signature is more than an image stuck on a PDF.

    Anybody could forge my ink and even I would not know any better. However, my electronic signature is protected with a very strong password.

    Furthermore, an electronic signature contains information that helps me and the reader. It tells me when I signed it, the organization on whose behalf I was signing it, and my basic contact info.

    Most importantly, once I electronically sign a document, that document cannot be altered if I choose to lock the document. Even if I do not, then I can find out exactly what changes have been made since I signed it.

    Of course, not all this does away with the practical challenges of dealing with people who are unfamiliar or uncomfortable with electronic records’ production, storage, and use. A good lot of the time, it is easier to just provide a paper record than it is to squabble over the legal right to provide documents in electronic form.

    The manner in which I approach this matter varies. For very small matters, such as a one-page letter or form filed in person in court (e.g. the Counsel Designation Notice I filed in Provincial Criminal Court this morning), I typically just print it and provide it.

    For larger matters, I politely insist at the outset that documents be exchanged in PDF format and that we each bear our own costs of production. Some opposing counsel have suggested a 20 cent/page scanning fee. However, when I tell them that I will not charge a similar fee, they typically back off. For my practice, most opposing counsel have well-resourced clients and have staff who can easily deal with electronic documents or even prefer to do so.

    A good recent example is document disclosure I provided to defendant’s counsel last week. 800 pages of disclosure cost nothing to produce and deliver (other than a couple hours of staff time to create an index and PDF binder, which I wanted to have anyway). It also takes up no physical space (unless they print it) and does not deteriorate over time.

    The above is a very basic overview of why, from general and legal standpoints, you do not need paper to practice law. The how is the next step.



  • Euan Sinclair: the age of disruption

    by Nathaniel Russell | Jan 06, 2012

    With companies like Legal Zoom and Rocket Lawyer now entering the legal market, some say that the market for legal services is set for a disruption. Can this be right? Is it possible to deliver legal services over the internet, in the same way as purchasing recorded music? If so, what are the implications for law firms?

    That businesses—however well-established or profitable—are not immune from the vagaries of market forces is demonstrated by the sorry decline of HMV, which is in the process of closing down its flagship store in Vancouver. It represents the end of an era where customers would go to a record store to purchase music albums, very often as much a social occasion as a shopping one. It is retailing tradition that goes back to 1921 when HMV opened its first store in London (Sir Edward Elgar participated in the opening ceremony). And it formed a rite of passage for many teenagers, the writer included. What can have happened to bring this venerable company so low, so quickly? The answer is that its core market was disrupted and, by the time HMV faced up to that fact, it had no idea how to respond.

    Most recorded music is now delivered over the internet. By offering individual tracks for sale at 99 cents each, Apple's iTunes radically altered the way that people buy music. Before iTunes the choice had been to purchase a whole album on CD in a shop like HMV (or increasingly order it online) or to download pirated MP3 versions from the internet.

    iTunes is a disruptive innovation. The phrase “disruptive innovation” was coined by Professor Clayton Christensen in his book The Innovator's Dilemma to describe the simplified product or service offered to the bottom of the market. The simplified service appeals to customers, gains market share and then moves upmarket to displace established providers. The established providers cling hopelessly to the “sustaining innovation” of the originally successful business model, while the disruptive innovators eviscerate their market share.

    We live in an age of disruption. Over the last twenty years in most industries from journalism to retailing to travel, it is possible to see that it is the internet that is the great disruptive force. A second, digital economy is now being created where whole swathes of manual processes involving human activity are being steamlined and automated. Almost every area of the economy is undergoing a quiet revolution, possibly as significant as the Industrial Revolution. So it is perhaps inevitable that the delivery of legal services will be affected.

    It is, of course, eminently possible to deliver standard form documentation to clients to draw up a will, set up a corporation or any number of simplified routine drafting tasks. This is known as commoditized legal work. Professor Richard Susskind points out in his book The End of Lawyers? that law firms should steer clear of commoditized work because once multiple firms compete on an undifferentiated basis for this work, a race to the bottom for fees will inevitably result—to the point where fees reach near zero. This marginal work has largely been eschewed by law firms because it is only worthwhile in high volume, hence the advent of the new internet providers, such as those mentioned above, to fill the gap. Be in no doubt, however, this kind of convenient and yet low cost service is the beginning of disruption in our market.

    But can disruption itself be disrupted? Should disruptive innovation take hold in the foothills of the legal market, the Christensen model dictates that online delivery will soon spread upmarket, causing the relationship between lawyer and client to change. But there is nothing inevitable about the surrender of large portions of the legal market to disruptive upstarts. Even if lawyers are slow out of the traps, all is not yet lost. If the process is managed properly, law firms can build on years and years of accumulated knowledge and know-how to offer services to clients in new and exciting ways and to adapt to changing expectations of service delivery by offering value added services and efficiency tools.

    The firms that will succeed in a disrupted legal landscape are those that have carefully captured and nurtured their knowledge and are able to use their knowledge management systems to deliver legal services in flexible ways, maybe in innovative ways we haven’t yet thought of. By contrast, firms who have been haphazard and careless with their knowledge and retain manual, labour intensive processes will really struggle to deliver the value expected by clients and adapt business models accordingly.

    So if you think it won't happen to the legal market or are prone to procrasinate, consider the lesson from the music industry: when disruption does come, it will be unexpected and swift. The consequences of dogged reliance on an existing business model may be severe. Most of HMV's accumulated value from the twentieth century was eroded within the first ten years of the twenty-first. 

    ---

    Euan Sinclair is Director, Knowledge Management at Lawson Lundell LLP. All views expressed are his own, however.

  • David Paul: 15 file management tips for small-firm lawyers

    by Nathaniel Russell | Dec 19, 2011

    Back in late October, I presented to a lively group of Kamloops lawyers, mostly senior calls in fact, on the topic of file management. It was a companion presentation, delivered at the Courthouse Library in Kamloops, to a piece I wrote for Canadian Lawyer Magazine’s website, titled “15 file management tips for small-firm lawyers”. Interestingly, although perhaps not surprisingly, most of the lawyers in attendance didn’t have a true file management system in place. More interesting still, some lawyers in bigger firms possessed law office management software, but were unfamiliar with it to a degree that they did not really have the benefit of the expensive software. For my part, and I’ll say it again and again, having a proper system, even a free one as described below, benefits my practice. I’ve developed a system that works well and is free to implement and use. Here is a re-post of my earlier article from October 17, 2011, and if you have any comments or alternate tips to improve on what you see, please leave a comment or contact me to let me know. As with most matters of legal practice, it’s an evolving process.

    15 file management tips for small-firm lawyers

    While most of us now use computers to generate our documents, not everyone uses document management software or has a system in place for organizing the files on their computers. For those who do not, much time (lawyer and staff) is often wasted searching for data and files that are sitting on the very computer or network we are using. The primary purpose of a file management system is to ensure you can quickly find what you are looking for when you need it, whether it be a case on point, a letter, a pleading, or a document painstakingly prepared on another file but required now on a new matter.

    In this article, I will share with you some of the tricks and strategies I have employed, without the use of document management software, for organizing and managing my firm’s files (in a PC, not Mac, environment).

    Tip 1
    If you operate off a network, organize your files in one central place — on the server — where they can be easily accessed by everyone using the files. This makes it a lot easier to find files and run backups. If you have remote access to your server, it also makes it easy to access files from off-site when you are away from your office.

    Tip 2
    Be consistent in how you map your firm’s computers to the network. If your files are being stored on the “C” drive of your server, identify that drive in the same way on each of your other computers. For instance, if the “S” drive on your computer is mapped to the “C” drive on the server, name the “C” drive in the same way as each of the other computers. This will make it much easier for you or someone else working off the network to explain to someone else working on the same network where a particular file or precedent can be found.

    Tip 3
    Store the files in their own dedicated directory. Do not store them in a directory with program files. Doing so increases the risk of accidentally deleting the files when you install, upgrade, or delete programs being operating on your computer.

    Tip 4
    Organize your files by type. For instance, create one file for “precedents” and another for “file documents.”

    Tip 5
    Create the file as you start working on it. Doing this helps prevent you from saving over a precedent you may be working from.

    Tip 6
    Ensure everyone accessing the server employs and sticks with a consistent file-naming convention. For instance, if you avoid spaces or use all lowercase letters when naming a document on a particular file, follow this same practice for other files. Maintaining consistency will make it much easier to find a file in future searches.

    Tip 7
    Try to use short names that are precise and to the point when naming files. Long file names are difficult to remember and more difficult to find.

    Tip 8
    Use dates when naming certain files. For instance, when naming letters to your client, incorporate the date into the name as follows: Client.Feb17.2010. Alternatively, if you want to sort the correspondence to your client by date, use the yyyymmdd format. For example, the model cited above would be named as 20100217.client

    Tip 9
    For precedent files or other files that you do not want changed, consider protecting the files against accidental change. In Word, this can be done by making the file read-only. To do this, follow these steps:
    Save the file or Save As if you have previously saved the document.
    1.    Click Tools.
    2.    Click General Options.
    3.    Click the Read-only recommended check box.
    4.    Click OK.
    5.    Save the document. You might need to save it as another file name if you have already named the document.
    Another method for protecting a file against change in Word is to restrict editing and formatting. To do this, follow these steps:
    1.    On the Review tab, in the Protect group, click Protect Document.
    2.    Under Restrict Reviewing Options, click Restrict Formatting and Editing.
    3.    In the Restrict Formatting and Editing task pane, under Formatting restrictions, Editing restrictions, and Start enforcement, make the selections that meet your formatting and editing needs.
    If a file is going to be changed, or if you wish to create more than one version of the same document, consider using version numbers to distinguish between different versions of the same document. For example, if you have two different versions of closing letters, you could call one “closingletter.v1” and the other “closingletter.v2”.

    Tip 10
    Create folders within folders so every file has a file or subfile within it which it can be saved. For instance, if you are a family law lawyer, the directories and sub-directories within your precedent folders might be organized as follows:
    Precedents-Family
    -Pleadings
    --Provincial Court
    --Supreme Court
    -Retainer Agreements
    -Form Letters

    Your file folders, on the other hand, might be organized as follows:
    File #15243
    -CASE LAW
    --Child Support
    --Spousal Support
    --Property Division
    -CORRESPONDENCE
    --Client
    --Opposing Counsel
    --Others
    -PLEADINGS
    --writ.nov1.2010
    --statementofClaim.nov.1.2010
    --financialstatement.nov.1.2010
    --noticeofmotion.Jan6.2011
    --affidavit.client.Jan6.2011
    --affidavit.johndoe.Jan6.2011
    -ACCOUNTING
    --retaineragreement
    --account.dec15.2010
    --account.dec27.2011

    Tip 11
    When working with client files, consider creating a separate directory for “open” and “closed” files. Separating open and closed files will help keep your open files from becoming too unwieldy. It also makes it easier for others accessing the open file directory to find a particular file if necessary.

    Tip 12
    Order your files for convenience. If you use a particular precedent regularly, consider renaming it by putting an exclamation point or two a’s in front. For instance, if you have a precedent for a retainer agreement, consider renaming it from “retaineragreement” to “!!retaineragreement” or “aaretaineragreement.” Renaming the files in this way forces them to rise to the top of your alphabetized list of files so that you do not have to scroll down the list to find them.

    Tip 13
    Create a shortcut to your files on your desktop. This can really speed up how long it takes to find a particular file. For instance, if your precedents are being stored on the C drive of your server, which is identified as the S drive on your desktop, instead of going to My Computer and then scrolling down to the appropriate directory on your server, you can go directly there by clicking on the shortcut you created on your desktop. Creating the shortcut is easy. Simply go to the directory you wish to create the shortcut to and right-click on it. After doing that, choose “Send to” and then “Desktop (create shortcut).” The shortcut will now appear on your desktop.

    Tip 14
    Install a desktop search engine program. This will index your files allowing you to easily and quickly search through your files, precedents, e-mails, and other files on your system. One program to consider is Copernic. It can be found at www.copernic.com.

    Tip 15
    Regularly back up your files. Again, if they are all being stored in one directory, the backup will be relatively straightforward. Be sure to backup on a storage device other than the server itself.

    Conclusion
    In conclusion, establishing a system that is tailored to your firm can be a relatively simple process and the time and effort employed in creating the system will pay off. Having an effective file management system increases your efficiency as well as your firm’s productivity. Once the system has been created, the key to its success is ensuring that it is consistently followed by everyone using the system.

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