Featured Guest
Barron Henley

Barron Henley, Esq. is an attorney and one of the managing partners of Affinity Consulting Group’s Columbus Ohio office. Henley...

Your Hosts
Tish Vincent

Tish Vincent is the Program Administrator of the Lawyers & Judges Assistance Program at the State Bar of Michigan. ...

JoAnn Hathaway

JoAnn Hathaway is a practice management advisor for the State Bar of Michigan.  She previously worked as a legal...

Episode Notes

Michigan has now become the 37th state to adopt the ethical duty of technology competence, which will go into effect on January 1, 2020. What exactly does this mean for Michigan lawyers? Hosts Tish Vincent and JoAnn Hathaway welcome Barron Henley to the State Bar of Michigan’s On Balance podcast to explore the implications of these new rules and learn what core technologies and training firms need to ensure compliance.

Barron Henley is an attorney and a legal technologist with Affinity Consulting Group.

Transcript

State Bar of Michigan: On Balance Podcast

Tech Competency: Core Technologies For Your Law Firm

11/20/2019

 

[Music]

 

Intro: Welcome to State Bar of Michigan’s On Balance Podcast, where we talk about practice management and lawyer wellness for a thriving law practice with your hosts JoAnn Hathaway and Tish Vincent, here on Legal Talk Network.

 

Take it away, ladies.

 

[Music]

 

Tish Vincent: Hello and welcome to another edition of the State Bar of Michigan’s On Balance Podcast on Legal Talk Network. I am Tish Vincent.

 

JoAnn Hathaway: And I am JoAnn Hathaway. We are very pleased to have Barron Henley, attorney and legal technologist with Affinity Consulting, join us today as our podcast guest to talk about Tech Competency: Core Technologies For Your Law Firm.

 

We specifically picked the topic of tech competency for today’s podcast because Michigan has now become the 37th state to adopt the Ethical Duty of Technology Competence to be effective January 1 of 2020.

 

So Barron, would you share some information about yourself with our listeners.

 

Barron Henley: I am a legal technology geek and let’s see, for the last 22 years since I left private practice, I am a partner with Affinity Consulting, as you mentioned, and we just help law firms and legal departments maximize technology in a nutshell.

 

Tish Vincent: So Barron, could you share with our listeners how you define competency with core technology tools? What would that include?

 

Barron Henley: Well, understanding the tools necessary to do one’s job; for example, Word, Outlook, Excel, possibly PowerPoint, definitely any PDF program that the lawyer may use. That may also include operating systems like Windows and Mac OS would probably qualify.

 

And then procedural things like how to file a case electronically if one is required to do that? How to attach a file to an email?

 

Funny enough, I talked to a lawyer last week from Chicago that’s going out on his own and he is like, I don’t just need to know how to Word process, I don’t even know how to do things like attach a file to an email. So I mean that happens.

 

How to remove metadata from a PDF or a Word file before you email to somebody, how to redact, which is getting screwed up all the time, how to run a red line, how to base number, how to edit a complex document without wrecking it, how to do your own legal research or even how to look up information on your own internal systems.

 

And for whatever reason it’s fairly common for lawyers to have access to systems they elect not to use, because it’s easier to ask somebody else to tell them something that’s right in their face, and we hear that fairly often where — we interview support staff and they are like yeah, it’s like right on his computer but he keeps asking me for the same information and interrupting me.

 

JoAnn Hathaway: Typical, yes.

 

Barron Henley: It is unfortunately typical. We try to combat that by pointing out the fact that only 2% of humanity can multitask successfully without a degradation in performance and that when lawyers interrupt support staff with ridiculous questions they could have answered themselves in less time, they actually are forcing them to task switch and multitask and very likely it is wildly impairing their performance. And it’s actually a lose-lose proposition when people do that.

 

I don’t think people are really aware generally speaking that when you interrupt people, you are hurting them in most cases significantly and obviously the lawyers doing that are relying on the support staff people to help them get their job done and then they are doing things to torpedo that.

 

Tish Vincent: Interesting.

 

JoAnn Hathaway: So technology competency has become a hot topic in the legal world. What factors do you think are actually driving that?

 

Barron Henley: Well, the first one you already mentioned, which was that 37 — so in 2012 the American Bar Association promulgated rule changes to the Rules of Professional Conduct that dealt with technology, and that of course affected no one but states tend to adopt those rule changes, and where I am from, Ohio adopted those changes and now Michigan has and 37 states total.

 

And just to give you an idea of how rapidly this is changing. So as of today two states now require technology CLE, those being Florida and North Carolina, and I speak for the North Carolina Bar, and so in 2017 I taught a Microsoft Word Bootcamp for them and it was granted zero credit. You will have nothing like it, and I was like really, like it gets credit in all the other states. They are like no, no credit at all. So we held it anyway and a whole bunch of people signed up because they wanted to be there and it was great.

 

(00:04:50)

 

So I taught it again this year and not only did it get full credit, but it also satisfied the new technology CLE requirement that appeared just this year in North Carolina. So it went from absolutely, you don’t get anything to, oh yeah, you get credit and by the way, you needed that credit because it’s a special category we created just for technology.

 

So that’s really gotten people to think about the Rule, specifically 1.1 Comment 8, depending on your jurisdiction and then there is some changes to Rule 1.6, which kind of explains a duty to protect electronic client data that was really undefined previously.

 

And then the fact is people are making mistakes with this stuff. Like in January this year, a very popular case study was Paul Manafort’s lawyers, which were really three lawyers from three different law firms botched a redaction in the Mueller investigation and you could hold down your mouse and select the text behind the redaction and copy and paste it into Word and read it.

 

And then just in September of this year, Jones Day, which I would think would know better, had to apologize to a Virginia federal judge for exposing secret grand jury information in a court filing; again a botched redaction.

 

And then even something like in September of 2017, a big firm, Wilmer Cutler Pickering Hale & Dorr sent to a Wall Street Journal reporter privileged documents detailing PepsiCo whistleblower claims, obviously not using encrypted email.

 

I mean this kind of stuff is happening all the time and I think the folks in each state that are responsible for the Rules of Professional Conduct are hearing about it and going, hmm, maybe we should make that a requirement of some kind that people know how to use these things.

 

And then what I think really affects a generation of lawyers is like I passed the Bar in 1993 and there wasn’t email, the Internet didn’t exist in its current form, but the support staff tended to have DOS computers, in my firm anyway, they had WordPerfect DOS and they had just graduated from word processors to WordPerfect and we had little desktop PCs.

 

The lawyers however did not have PCs and I specifically remember the managing partner of the firm coming in and telling me, look Barron, don’t worry about the technology, let the support staff deal with that, you spend all your time doing stuff only a lawyer can do. And in 1993 I could do that. I could do things only a lawyer could do and not use technology.

 

But that of course changed. And so we were told to leave it alone, don’t worry about it, leave it alone, don’t worry about it, and then all of a sudden, oh wait, I do actually need to use this stuff in order to do my job and we were kind of behind the eight ball at that point.

 

And then the other complicating factor there was, when I passed the Bar, I got my own paralegal, like every lawyer in my firm had their own support staff and two of the partners had two support staff people who they kept busy full-time. I can’t even imagine that today. But that ratio of support staff to lawyers has steadily declined over the intervening years, and now if you have got something you need done by a support staff person, well, take a number, get in line, because you are not the only person that individual is supporting.

 

So that has also caused — like I talk to lawyers all the time who are stressed out about this. They are like, God, I have just got to figure out how to do this myself, because I just cannot rely on somebody being available for me, to help me, because I used to have my own legal assistant and now they support two other lawyers and they are always dumping on that person and I am never first in line, and that’s another reason that lawyers are saying, I have got to figure out how to do this myself.

 

And then a good example of this next point is, I was interviewing — I was doing a project for a firm in Northeast Ohio and I was interviewing lawyers and staff throughout the day and I kept hearing about this one paralegal who was just bad news. They are like man, we have got to get rid of her. I don’t know why she is still here. She is nothing but a problem. She doesn’t do her job well, all these complaints.

 

So I finally toward the end of the day I interviewed the lawyer for whom she worked and I said — I closed the door and I am like okay, so let’s talk about this individual, like everybody is telling me like why she is still here, what’s going on? And he said, you know — he was an estates and trust lawyer, he goes, when I started practicing law we didn’t use technology for all these things. Now we have programs to do the probate pleadings and programs to do tax returns and programs for this and programs for that, and I have got to file things electronically with the probate court and I don’t know how to do any of that stuff. I don’t even know the password for these programs. So if I let her go, who is going to train the next person? I don’t know how to use these tools anymore.

 

And it ended even worse, because a year later she eventually quit, and after she left they found out she had embezzled $55,000 from a —

 

Tish Vincent: What a nightmare. What a nightmare.

 

(00:09:58)

 

Barron Henley: Oh yeah, oh yeah. And the firm just had to pay that money back, so they just had to eat.

 

But that’s another thing, we hear that all the time, like if I had a nickel for every time somebody said, I am the only person who knows how to do this, I would be rich, and the problem is a lot of times that’s some tool that they are the only one who knows how to use And it’s never been written down.

 

So another thing that’s propelling this forward is nontechnical lawyers, they want to be able to do it themselves and once they learn how to do it, they are evangelists, like they proselytize about it, like if I can learn it, anybody can, and all it takes is one of those people in a firm and they are like going around saying, listen Bob, I know you have never used a computer before, but I know you can. And it can be peer pressure that pushes that along.

 

And then the other thing is just — so again, I am stereotyping, but there is a generation of younger lawyers, Millennials who grew up with the technology, but they have blind spots they tend to be unaware of, because they feel so comfortable with the technology.

 

Take Microsoft Word, I get asked to teach the Ohio State Advanced Legal Writing class, it’s not called that anymore, it’s some fancy new name, but when they have to do their first appellate brief they ask me to come and teach that class, and I don’t try to teach them how to build a table of contents, table of authorities and all that stuff from scratch, I give them a template and we spend the class time showing them how to use the template.

 

But in order to start that, I always come in and I go okay, how many people have been using Word since you were toddlers, and everybody raises their hand. How many people feel really comfortable with technology? Everybody raises their hand. How many people know how to do a table of contents automatically derived from the document in three clicks so that it’s always right and can be automatically updated? No hands. Anybody know how to do a table of authorities that you can automatically update that always gives you all the references and the correct page numbers? No hands. How many people know how to build a seven level deep auto paragraph numbered outline in Word that works perfectly no matter what? No hands.

 

How many people know how to do a cross-reference to another paragraph that automatically updates if you add or delete paragraphs in between? No hands. How many people know how to not number the title page, start the page numbering at the table of authorities on romanettes, on one, even though it’s page two, and then restart Arabic page one on page eight where the brief starts in the overall document? And of course there are no hands.

 

And they are like wow, I really don’t know how to do a bunch of stuff. But they wouldn’t have — like it always reminds me, when I was — my favorite teacher in high school was AP English and he always made us — we had to stand at our desks and he would say repeat after me, I am ignorant, and he would say that over and over until he was convinced that we believed it. So we would yell it at him.

 

So those people in that class realized, there is a bunch of stuff I don’t really understand, even though I feel super comfortable with technology, and that realization is taking hold, because the reality is a lot of the tech we have to use today, if you think, going back to Word again, it can do — one of the things we tell people in our classes all the time is, if it occurs to you, it would be cool if Word can do the thing you are thinking of, it does that, it does the thing, and they are like what, really? I am like yes.

 

So it’s really complicated. If it can do darn near anything you can think of, imagine, and they are like wow, yeah, I guess I am missing a lot. Yes, you are, because you are just clicking around. And if you click around you are missing way more than half of it.

 

Anyway that is becoming common knowledge today and for those reasons lawyers are saying, I have got to figure this stuff out. And of course if somebody screws it up, like go back to the Manafort example, Rule 5.1 and 5.3, I am quite certain that the three lawyers that signed that botched redaction pleading for Paul Manafort weren’t the ones probably who tried to do the redaction. It was probably a support staff person. And the problem is Rule 5.1, if it was a subordinate lawyer, 5.1 could make them responsible for it, and if it was a non-lawyer assistant or a paralegal or a legal assistant, then Rule 5.3 could make it their fault, and very likely it was.

 

Tish Vincent: And how are you going to hold your associates and staff accountable for knowing it if you don’t know it?

 

Barron Henley: That’s right. So like on that particular point, what we say is not everybody is going to be a tech genius, like not every lawyer, like let’s say I am Paul Manafort’s lawyer and I have never ever redacted a PDF in my entire life and I don’t intend to do so and by the way, I hire people to do that. Is that a defendable position? I think it depends.

 

(00:15:06)

 

Three things have to have occurred for that to be defendable. Number one, you confirmed that you had the right software that is capable of redaction, right, so Adobe Acrobat Pro will, Adobe Acrobat Standard will not. Nuance Power PDF Advanced will, Nuance Power PDF Standard will not. So that’s easy to solve that problem, do we have the right software.

 

And then were the steps for properly executing redaction written down, that’s number two.

 

And number three, did you as the managing partner sit down with the person you have hired to do this and make sure they are following the instructions and know how to do it.

 

And if you did those three things and they still screwed it up, then I think you have a defense. I think you are in a safe harbor there. You used reasonable precautions, you did everything you could reasonably do, the reality is sometimes mistakes occur, but if one or more of those steps weren’t taken; I suspect none of them were, then I don’t think you have any defense honestly.

 

Tish Vincent: Right.

 

JoAnn Hathaway: Don’t you find though when you go out and do your trainings and go into law firms often that sometimes support staff, while they might not be sure how to do something with the software application, they are reluctant to admit that to those they report to, because they don’t want to admit they don’t know what they don’t know or they know they don’t know it?

 

Barron Henley: Yeah, it’s a culture thing.

 

JoAnn Hathaway: Yes, and so they — and they don’t want their co-workers to know they don’t know, so they fumble through it and they want to keep their jobs.

 

Barron Henley: Yeah, and sometimes they just don’t even care. When we started doing this kind of work all these years ago, we thought we were a technology firm and it became pretty obvious that you can spend all the time and money you want on technology, if you don’t look at culture and people and processes along with the technology, you get nowhere.

 

And the people — it’s one of the things I am most uncomfortable with, but which I always have to address, and that is the — some people, even if it is safe to say, they still won’t say I don’t know how to do it, like they just won’t admit it, even if there is no repercussions from that. Even if they were encouraged to do that, they won’t.

 

So like on the redaction issue, we actually asked for redacted pleadings. If we are working with a litigation firm, I say I need you to send me a couple of pleadings that you have redacted, because I want to make sure the redaction was done properly. We just spot check it.

 

And unfortunately, it just happened last month, we did a firm and they were — they had two people doing redactions and one of them was doing it wrong, and all the pleadings they had submitted were wrong. You could defeat the redaction. And the lawyers didn’t even know how to test it, but those are things that you really have to — you have to take ownership of and you — if I am the managing — I mean those 5.1 and 5.3 are going to make it my fault, so I have got to confirm that things are being done correctly. That’s just the world we live in, and sometimes that means sitting down with people and even if they are uncomfortable talking about it saying, I just want to — let’s do this together and then the lawyer feels comfortable.

 

And then ultimately, if it’s written down and the person who normally does it isn’t there, then the lawyer can probably pull it off themselves, even though they have never done it before.

 

When I show people how to do that, they are like well, that was really easy. I am like I know, it’s so easy. It was like four clicks. There is a button in Adobe Acrobat called Redact. It’s not like you have to look for it, it’s called what it does. You mark your redaction, you apply the redaction, you click Save, bada bing. But if you don’t know what to click on, you don’t know where to go and not familiar with the process, don’t have the steps written down, it may as well be not even available as a feature.

 

Tish Vincent: Very interesting. Well, you talked a little bit about how an attorney can check on whether a program has been implemented properly even if they don’t really know how to use it, but let’s talk about — let’s say if that lawyer knows that they need to develop some tech competency and they don’t have it, what are the beginning steps you would recommend to them Barron?

 

Barron Henley: Well, the first thing I would do is I would start asking questions. Like let’s take something like ransomware. Ransomware is ineffectual if you have a good backup. People don’t talk about that. They are like, oh no, this firm got taken over by ransomware. Well, that wouldn’t have mattered if they could restore from backup. Every time somebody is actually held hostage by that, then it’s because they didn’t have a backup.

 

So some of it is like stop assuming that everything is fine and everything is working. There should be some way to confirm or deny, for example, that my backup worked, and my IT people should be able to explain that to me. Just as a lawyer can explain a complex process in lay terms to a person unfamiliar with it so that they can understand it, an IT person should be able to do the same thing. They should be able to explain how the system works, like a backup.

 

(00:20:05)

 

We ask our — when I’m working with law firms I say like I don’t care who your IT people are, but here’s what you need to ask them.

 

For example, do I have — how do I confirm or deny that it occurred? Somebody should be able to independently verify that.

 

The second thing is, do I have versions of things and they will go like, what do you mean by that? Okay. You’re like if you accidentally overwrite a file, can you get a prior version of it? If you’ve got — do you have an accounting system? Sure yeah, we got an accounting system. Okay, well what happens if that database gets corrupted? Database corruption doesn’t occur typically all at once, a lot of times it happens gradually over time.

 

Monday, people were having problems. Tuesday, I entered a time entry and it just disappeared and I had to restart the program, I am not sure what was up with that, and Wednesday, everybody was complaining about it. Thursday we came in and no one could get in and we called the tech support and I said, oh, you probably had a corrupted database, do you have a backup? Well, yeah. If you have a backup of this thing that got backed up last night and that’s it, you have a copy of the corrupted database no one can open. So it’s completely useless.

 

What I want is last Friday’s database, can I get that? That’s the question. And so we asked, I want my IT people to be explaining this to me. Could I get last Friday’s version of the database? And if I can’t that’s not okay, like I have to be able to recover. I would like at least seven rolling backups of everything and as it relates to my files, my individual files I’m using in WordPerfect or Word, I would like to have 30 days or 60 days or maybe unlimited versions of those things, because we’re constantly overwriting files and trading files and taking an old file and saving as a new file name for the next one that I need to create, and that creates a really big margin for error.

 

Having policies just and there’s lots — the one thing I remember of the American Bar Association for example they have tons of sample policies and things and most Bar associations like JoAnn’s office with the Practice Management Advisory, they have all kinds of resources for people on what policy should I have, like data security, password strength, file management, Internet usage, social media.

 

I was interviewing a lawyer about a month ago and we were talking about remote access for her firm and I’m like, how is it here, and she goes, it’s terrible, I hate it, and I like to work from home. This is a California firm and so everybody there had to drive like two hours a day to get to and from the office.

 

So they wanted to — a lot of them wanted to like stay at home until like 11:00 and come in then when the traffic was lighter and then go home at 8 p.m. They all had weird hours to try to avoid the nightmare traffic there.

 

And I said, well, how do you get because all of the lawyers there had desktop computers like how do you get files home? She was like I like to put it on my thumb drive and she pulls it out of her purse, and it’s a little unsecured thing that she probably — that’s her — that’s the one she’s had in the last two years, and she goes, I put on my thumb driver I just email it to myself. And I said, well, even if you use the thumb drive don’t you just — don’t you plug that into your home computer? I assume that’s what you’re doing. She goes, yeah.

 

I’m like, well, who — does your family have access to the computer? And she goes, hmm, yeah, my husband does and I have two daughters. I get — we all use the same computer. I’m like do you have a — do you have that walled off, was there a separate login so that they can’t get to those files? She goes, no, I guess they could get to the files. I said do you delete them after you’re done? No, they’re still there. I just email them back to myself when I’m done. She is like, she goes, okay, okay, I get your point, because I was like asking her questions and I was leading her down that path, but the problem was like that it didn’t occur to her that that was a risky thing, and the firm didn’t have any policies on it.

 

So, like no one said, it’s not okay to email files to your home computer to which other people have access, that’s not okay. And it’s not — it’s also, I mean, you could get on amazon.com and get an encrypted thumb drive or flash drive, there’s lots, almost all the makers offer that and that would be okay, but the problem is, people lose those things all the time and if there’s confidential data on them then that’s bad news, it’s just unawareness, but there needs to be a policy for that, like we argue that every lap — anything that holds client data or has access to client data, it needs to be encrypted.

 

So it’s hardly ever that I encounter even a laptop user lawyers are running around with hundreds of thousands of confidential files in their laptops and they are not encrypted at all, and I am like, dude, like what kind of computer you have? I got a Windows 10 computer. Is it is Windows 10 Pro? Yes. Okay, you have BitLocker, it’s included for free. Do you have a Mac? Yes. Oh yeah, FileVault, it’s concluded for free. You just need to turn it on.

 

I am like, well, does that make it harder to use? No, just the same, what if somebody steals your computer they are not going to be able to get to all the files and then if that happens, well, you should look up the breach notification laws in your State because those are going to kick in right now and you’re going to have to notify everybody, if you don’t there’s penalties associated with it, but I mean, I’ve read a whole bunch of these breach notification laws and almost all of them say that what constitutes a breach, the disclosure of unencrypted data, many of the states say that exact phrase unencrypted data.

 

(00:25:28)

 

So, in other words, if it’s encrypted then you didn’t disclose anything and I’m not subject to those breach notification laws. And it’s a simple thing and a lot of times that’s already on their computer. So that’s a really a passive thing once it’s set up for them. Now, I have my — most phones today are encrypted anyway by default, the tablets we always tell them if they’ve got an Android or an iPad, it comes with free encryption software but you have to turn it on, it’s not turned on by default and the same thing is true for your computers. You could turn it on, it’s probably already there and it won’t cost you anything and it doesn’t — I mean, yes, you have to use a password every time you use your device but that’s how it is, like security is annoying, the better your security, the more annoyed you are going to be and that’s unavoidable. It’s just the world we live in.

 

Another thing I would say on those — on the people that want to like step it up, document your processes. Write down — there I was like, oh, it sounds complicated, it’s not complicated, what’s the name of the step? Who usually does it? How long does it usually take? What tools do they use, and if there’s some decision to be made then what are the considerations to make the right call? That’s it, like you can do this in a Word processing document.

 

But, what’s interesting is, a lot of times in firms, the lawyer is unaware of all of the steps because they’re not responsible for all the steps. They do some of the steps and then other people do other of the steps and they don’t even know how that work gets done and when like we do that a lot, we help them document processes and it’s hardly ever the case where a lawyer doesn’t look at multiple of the steps, they go, what? What are you doing? Why are you doing like that? And invariably their defense will go, you are the one who told me to do it that way. I’ve been doing this way for 15 years and you’re the one who told me. And they’re like, well, I don’t remember that; well, they didn’t come up with it out of thin air, so somebody taught him to do it that way and if a bad process is the way they’ve always done it, then it’s the normal bad process, and they don’t recognize it as bad or inefficient or anything else.

 

So just writing those things down and knowing — it also makes it a lot harder to miss a step and it also makes it easier to see where technology could be fixed or improved or added to make that whole thing work better and it helps with fumbled handoffs and things like that.

 

And getting training on the tech tools that people use, more CLE providers are offering these kind of core technology based on how often I travel, a lot of them are doing this because I choose a lot of this classes, and so the phones are ringing because people are recognizing that I need, so you can get CLE credit for it. It’s a really inexpensive way, like if I’m going to be in a State and somebody calls me and says I’d like you to do Word training for me and my colleagues, and if I’m going to be in their State anyway I’m like, I can save you a lot of money, if you’ll just sign up for the CLE class because it’s kind of expensive to bring me in compared to what a CLE costs, a full-day CLE is not terribly bad. And they get the workbook and they get the credit, it’s all good.

 

And then the other part of it is the training, a lot of times you’re using the technology as a team, so you should get training as a team. And sometimes a lawyer will attend a CLE class like that and then go back to their office and try to convey all the stuff they heard and learned at the class to the other people who didn’t attend the class and that never works, like there’s too much information and there’s some of it is lost in translation. And in most jurisdictions it’s fine to bring a support staff person and a lot of times they get a big discount because they obviously don’t need the CLE credit. And we always encourage for these kinds of things if you work as a group then bring the group and then you can all talk about it and learn it together and then nobody will have to go back and re-explain it.

 

Then the other part of it is, we’ll go into an office, and Joe, I’m sure you see this all the time. They have a case management program that was installed let’s say six years ago and half the users love it and half of them hate it, and the point of division is usually when they started, like the half the people that like it were there for the original installation and the original training. And the people who hate it came in after that happened and nobody ever provided them with formal training, there was like just figure it out, click around, and like we talked about, that doesn’t work.

 

(00:29:53)

 

So, they think it’s stupid and it doesn’t do anything because they didn’t get the factory training. So my point here is just refresh training is really important and you think about, oh, we have this tool and we’re using it, but okay, how many of the users currently employed in your office went through that training? And if some percentage of them didn’t, then you should have refresh training on that same thing and it makes everybody better. It raises the bar across the Board because there’s things people forgot about, maybe they’re not using it correctly and a good trainer would spot that and then the other people are going to be brought along and then you don’t have this grumbling about the technology that they can’t stand because they don’t understand it.

 

And then like the document drafting, big source of errors, stop recycling old documents and instead create templates, create gold standards that you can always go back to that are correctly formatted, so that editing them isn’t horrible and it works the way it should, and you’re not just taking the last one, because if you keep recycling documents, it’s way too easy to leave something in you should have taken out, it’s way too easy to left something out you should have added, and in many practice areas that document was negotiated with opposing counsel depending what it is like if it’s a lease or a settlement agreement or something like that, unless you can remember all the little compromises that you had to make in order to get to a document everybody was willing to sign, intellectually it’s flawed but if it’s the best you got then it’s the best you got but that doesn’t make it a good starting point.

 

And some of these documents, like I got a document emailed to me from a family law firm in Minneapolis a couple of months ago, the metadata clearly revealed it as having been originally created in 2001, she is 18-years-old and she emailed it to me she goes, we use this for all of our divorce decrees, and man, it’s problematic. The formatting is really messed up and when you’re using it a lot of times your computer locks up, I am like, well, there’s a reason for that, it’s super-old and it was loaded with — I said you used WordPerfect didn’t you at one point because I can see all kinds of residue in here from this having previously been a WordPerfect doc, I’m like, oh yeah, we did, we had WordPerfect for years. I’m like, okay, so you had an improperly converted documents been recycled and recycled hundreds of thousands of times over the years, no wonder you’re having problems with it.

 

So, you know like — and what we would do is something like that is I’m not going to try to resuscitate that document because it can’t be saved. The only thing you can do is create a blank new document in Word, save it as a new file name, copy the text from the old one and paste it with no formatting into the new one then rebuild the formatting from scratch to match the original. That’s the only safe way to do it. You can’t fix that container, you can’t patch it. You got to get a new container and start over.

 

And law firms don’t do that. They just — they’re like what? You do what? I am like, yes, I know, but that’s the only safe way to do it and then now you’ve got a good starting point but you have to keep coming back to the same starting point and not just keep rolling forward to the last one you did, last one you did, last one you did, and build something with consistently identified changeable text, optional text identified and every paragraph that could possibly occur in that document in the order that it could occur annotated. And this cost you no money at all, it’s just a good Word document starting point. And that alone it eliminates the negotiated problem, it eliminates the — you forgot to put something in, it eliminates the — you forgot to take something out because it’s identified like this is an optional paragraph, you might not need it. It’s not — if there’s no annotations in front of or after it, it’s really easy to miss.

 

So, I mean, there’s a lot of things like that and then even talking to your clients about security, like because the comments to rule 1.6 both comments to rule 1.6 that deal with confidentiality of information, say the client can ask you to do more than required by the rules in terms of security. So there’s a conversation that should occur upfront because I don’t want to find out after we’ve gotten going on this that, oh, by the way my client is super-sensitive for this stuff and we’ve got a — they’re not happy with me emailing, for example, via regular email a document containing their personally identifiable information. So, anyway, I know — I’m sorry I’ve been like on a rant but —

 

Tish Vincent: Oh, it’s wonderful, but we could talk to you for three days.

 

JoAnn Hathaway: Yes, and Barron is going to be coming back with us for another podcast on tech competency to talk about some of those security issues. So we’re pleased to be welcoming him back in the very near future.

 

Well, Barron, it looks like we’ve come to the end of our show. We’d like to thank our guest today Barron Henley for a wonderful program.

 

Tish Vincent: Barron, if our guests would like to follow up with you how can they reach you?

 

Barron Henley: Email is the best way, [email protected] I will tell you to call me but I am just — I am not ever in the office so that’s — it doesn’t work. Email if I am awake, I am connected to email, I’m happy to answer any questions, and thanks for having me.

 

Tish Vincent: Oh, thank you, Barron. This has been another edition of the State Bar of Michigan On Balance podcast.

 

JoAnn Hathaway: I’m JoAnn Hathaway.

 

Tish Vincent: And I’m Tish Vincent. Until next time thank you for listening.

 

[Music]

 

Outro: Thank you for listening to the State Bar of Michigan On Balance Podcast, brought to you by the State Bar of Michigan and produced by the broadcast professionals at Legal Talk Network.

 

If you would like more information about today’s show, please visit legaltalknetwork.com, subscribe via Apple Podcasts and RSS. Find the State Bar of Michigan and Legal Talk Network on Twitter, Facebook, and LinkedIn or download Legal Talk Network’s free app in Google Play and iTunes.

 

The views expressed by the participants of this program are their own and do not represent the views of, nor are they endorsed by Legal Talk Network or the State Bar of Michigan or their respective officers, directors, employees, agents, representatives, shareholders, and subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.

 

[Music]

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Episode Details
Published: November 20, 2019
Podcast: State Bar of Michigan: On Balance Podcast
Category: Legal Technology
Podcast
State Bar of Michigan: On Balance Podcast
State Bar of Michigan: On Balance Podcast

The State Bar of Michigan podcast series focuses on the need for interplay between practice management and lawyer-wellness for a thriving law practice.

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