Last week I stubbed my thumb.  The injury led to an infection.  Over the course of a day a blister appeared and spread.  The green puss grew.  My knuckle started to ache.  And by the end of the day, my whole hand was sore.  I could not enjoy the new Wii Console we had bought for my sons.  I could not even type effectively.  In fact, I tried to relearn the way I used the keyboard to avoid using my thumb.  Try to train yourself not to use your left thumb for the Spacebar, Alt and Control keys.

We got the server back up ... but did not discover, until Ken Kennedy remoted into our server on Christmas Eve (well ... really the morning of Christmas Eve).  If you are reading this, Ken Kennedy, thank you.  Ken discovered we had forgotten to open the TCPIP port 1433 on our SQL Server when we reinstalled it, so that the other machine could see the server.  We also needed to run an orphan user script, not one for the faint of heart.  But this blog is not just a thank you to Ken Kennedy ... but rather a humorous look at life without Time Matters. 

Personally, I think these “coal appeals” are frivilous on two grounds.  First, there is no harm from the determination.  There is no claim on a contingent expectation of generous gifts, particularly where the determination is entirely discretionary; under the arbitration review standard, the one which is applied to coal appeals, no claim should survive (unless the judge has been bribed) on preliminary motions.  Second, it is frivolous, as the supplied coal is far more valuable than any gift that would be supplied by Santa.  With the current price of oil, any kid could take his lump of coal to the nearest savings and loan, and trade it in for cold hard cash.  Coal assets these days are far more value than real estate .... at least the price is appreciating.

So back to Santa’s workshop.  Everyone knows that even frivolous appeals do get litigated, and therefore the data needs to be managed.  And so, Santa and his elves would be better served by a Practice Management system or Case Management System.  My company has produced an Estate Planning Management System for estate attorneys (see link).  We could undertake the Workshop as a client.

We would start them on Time Matters Enterprise. SQL server would be required and some fairly powerful Quad Core Xeon processors. The complexity of the determination of naughty and nice would work with a stripped down basic contact form ... in essence a Client Record, since we really have only one Client (Santa). For each appeal, we would open a Matter to track the status and proceedings in the litigation. Each communication and note regarding the “Client kid” would be tracked in the system, whether a note, an email, or a phone call.  We would keep a history of determinations on the second tab, showing the determination for each age up to majority (common ... will ya ... After ya hit 18 Santa stops keeping tabs).

Then we need to redirect the elves to a proper assessment process.  Let’s have none of these off-the-cuff determinations!  With a Case management system, our process is discoverable.  And the more open the process, the more transparent the method of determination, the less likely appeals will be overturned ... hell even get into court.  And so, with the 2008 Santa’s Workshop Management System ("SWMS"), there will be a new regime.  The SWMS includes customized Contact Powerviews that let you review with one click.  Just after Thanksgiving, all notes, calls, events and tasks of each kid as recorded by the busy elves.

This report is printed out; reviewed separately by three elves to make an independent determination.  In the case of any dissenting votes, the report is passed up to a committee of 12 reindeer who decide by simple majority.  In the case of a tie, Santa is called in as the tie-breaker.  All proceedings are recorded in the SWMS.  Once a determination is final, the contact is flagged for the appropriate Santa’s list, and the gift determinations are also recorded and sent to the warehouse of Santa’s Workshop.  With just-in-time inventory processing, these warehouse order are then passed on to the production floor of Santa’s Workshop and then onto the fulfillment provision to get ready for shipment.

And yesterday, we officially launched a new product in conjunction with Interactive Legal Systems.  The Basha Systems “Estate Planning Management System” for the software formerly known as Time Matters® is a complete system for estate planners and soon for elder law attorneys that builds on the best features of Time Matters® and HotDocs®.  The original conception was to turn Time Matters into a data source to feed the client interview in WTP.  Based on discussions with numerous attorneys, the client and spouse contact form styles evolved into a complete estate planning management system built as a feature package on top of the software now known as LexisNexis Front Office powered by Time Matters. If this area is of interest to you (or your clients), please take a look at our new subdomain, and in particular (http://estateplanning.bashasys.com/timematters).

In determining the “value added” proposition of going to a lawyer, there are few clear guidelines for the client to use in determining the “ROI” or Return on Investment.  If you purchase an insurance policy, you have a fixed cost, a known return (up to the coverage limits), and a “risk of loss”.  These factors can be used to determine whether one insurance policy is better suited to your needs than another. 

Lawyers can and do play a major role in the business world, similar to that of an insurance policy.  A lawyer can charge his or her clients “higher legal fees” only by “quantifying the reduction in risk” that comes with hiring his or her firm, and demonstrating a clear (and more certain) return on the investment than that offered by the firm’s competitors.  By focusing on the “value proposition” and not the “fee schedule” the lawyer can have “happy clients” and “larger fees”.

Risk/Reward Ratio

This article does not hope to explain all the actuarial principles of assessing risk.  Like you the reader, I am legally trained (a recovered lawyer turned technologist), but I do have some clients who are actuaries.  Businessmen look at risk/reward ratios.  A potential million dollar loss with a 10% risk is worth $100,000.  A businessman may spend up to $50,000 to avoid that risk (or roll the dice).  Anything more is money poorly spent.  By contrast, take a potential $400,000 loss, with a 50% risk, and a businessman will gladly pay $100,000 to $200,000 to avoid that risk.  And if your legal advice and/or action can only reduce the risk of loss from 50% to 10%, you have still increased the value proposition of your services and can charge a fee commensurate with the value you gave to your client.

Reducing the Level of Risk

One of the key ways a lawyer can “reduce the risk” to his or her clients is to increase the quality and consistency of the firm’s work product.  The typical way to do this is to (1) spend more time on each transaction – increasing billable hours, or (2) hire more talented junior attorney, thereby increasing leverage.  A minority of law firms, with some success, have developed standard procedures, protocols, and forms for producing the actual work product.  The development and refinement of standard forms has the affect of increasing the “baseline” work product, and allowing more time for “crafting and counseling”.  It also allows for more junior attorneys and paralegals to do much of the work, increasing leverage. 

While forms and procedures can be effective, the protocols must be reviewed periodically and the forms must be regularly updated to reflect the current state of the law and best practices.  If you don’t, the value proposition of your legal work product will decline over time.  Such work is typically viewed as a “non-billable cost.” In reality, such work is a capital investment in your business, an investment of “time” rather than money, but one that has clear and quantifiable returns. 

Before I talk about the future, let me talk about the present. Let’s look at the pricing of document assembly software.  HotDocs Standard desktop costs $300 and HotDocs Professional costs $850 per license.  What that means is that for a small user base (1-10 users) your software investment is very small. As the user base increases beyond 50 users, the cost of software starts to become a factor. The reality is that most document assembly installations start out as departmental efforts (under 20 users) or occur where the firm purchases a form set (in which case the “player software” is free). By contrast, online software starts at $12,500 and goes up to $100,000 for the server software.  These fees do not include the server hardware, the consulting services configuring (and securing) the webserver, or the usage fees charged by a number of vendors. 

It is this GAP which forces many users to look at the “cheap” software and get locked in.  This benefits LexisNexis which offers both cheap HotDocs desktop software and a much more expensive HotDocs Server product.  The cost, however, is that the web-based developers (Business Integrity, iXio, Exari, Perfectus and others), have template development environments that offer alternative design philosophies some of which may be better suited to your firm or company.  But because the startup (or prototype) costs are so high, such software is only available to the AmLaw 100 law firms and large corporations.

It is for that reason that we have developed a universal approach to marking up documents and document automation interviews that can work with any document automation system.  This approach allows us to take templates in legacy document assembly systems: (1) identify and catalog all the conditional rules, (2) identify and fully describe all the variables (by function, type, prompt and defaults), (3) identify all the dialog objects and scripts, and (4) extract all the text objects, clauses and subdocuments.

From there we structure in Excel a prototype interview in HotDocs, GhostFill or DealBuilder) that mirrors the functionality of the legacy system.  In describing each new variable, object, script in the new platform, we maintain a reference to the comparable object in the legacy platform.  Once the interview and datastructure is completed in the new platform, we turn to the text objects, clauses and subdocuments.  Where possible, we have preserved the markup of the legacy platform in the text documents. 

We generally consolidate the text objects into master templates so that they are more easily edited as a whole.  Where text objects are used in multiple templates, we keep them separate and use INSERT or INCLUDE commands to bring in the text where appropriate.  As part of the process, we also strip the text of all formatting and then carefully apply a Word style sheet using outline schemes, paragraph styles and character styles to handle ALL text formatting, spacing, letting, kerning, outlining, numbering etc.  This allows use to use the stylesheet pro grammatically to change the document templates and the assembled documents.

There is a tendency to want to “throw out the baby with the bath water” when a firm decides to adopt a new document assembly system.  While the process described above TAKES time and planning, it does preserve the MOST valuable part of the automation process, the attorney time and workproduct.  If you have a system that WORKS, but is old and dated, it is best to use that as a base for the new system, rather than to scrap it entirely.  That gives you a result that will WORK when delivered.  And then, you can have fun, spend money, adding in the new features and enhancements that the new document automation platform offers.

The Holy Grail: A Document Assembly System That Reuses Negotiated Clauses
There’s a favorite question that people love to ask when they’re pondering whether document assembly will work for them. It usually goes something like this:

“That’s great, I answer all the questions, the system spits out a great first draft, I send it off to the other side, and their lawyers mess around with the fine print of clauses 11 and 23. Now, can I shove that document back into the document assembly system and change a few of my previous answers?”

http://exari.blogspot.com/2006/11/holy-grail-of-document-assembly-is.html

Looking into the Myth

This article inspired me to look into The Holy Grail and its application to the world of document assembly.  As a youth, I was entranced by the Grail myth.  I knew all the players: Percival, Gawain, Lancelot.  And so, when a document assembly vendor claimed to have achieved the grail, I thought I should take a look.

In the wikipedia encyclopedia, the Holy Grail was:

....  the dish, plate, or cup used by Jesus at the Last Supper, said to possess miraculous powers. The connection of Joseph of Arimathea with the Grail legend dates from Robert de Boron’s Joseph d’Arimathie (late 12th century) in which Joseph receives the Grail from an apparition of Jesus and sends it with his followers to Great Britain; building upon this theme, later writers recounted how Joseph used the Grail to catch Christ’s blood while interring him and that in Britain he founded a line of guardians to keep it safe. The quest for the Holy Grail makes up an important segment of the Arthurian cycle, appearing first in works by Chrétien de Troyes.

http://en.wikipedia.org/wiki/Holy_Grail

In the literature of Chrétien de Troyes, a book called The Arthurian Romances, and other literature, the Grail was a “physical object”.  It is not that the Grail was illusive (it was certainly) and well hidden behind the walls of a fortress (it was), or that riddles needed to be solved and quests achieved. All these were true.  However, the ultimate criteria for “achieving the Grail” was “purity”.  Sir Lancelot, perhaps the greatest knight of all Chistendom, could never achieve the Grail.  For despite his strength, despite his intelligence and ingenuity, and despite his great experience and wisdom, Sir Lancelot lacked a pure heart.  He was (of course) an adulterer, sleeping with the Queen.  And so while Sir Lancelot could come within the presence of The Grail, he could not actually see or achieve the Grail.

What the Grail means today
In some ways, what Exari claims to have achieved parallels the Grail myth.  They have claimed to have built a tool that will effectively import “negotiated changes” back into a template.  When I asked to see the Grail (oh… I was not worthy), I was told to come back in a few months when it went into beta—Not quite yet.  Was this an announcement of a technology like Microsoft, before it existed?  I had a client who was intrigued in building a web-based contract management system and wanted it now. I was on my quest.

But the more serious question is whether the eXari Grail will offer the miraculous curative powers of the real Holy Grail.  This made me ponder.  If you take a “bad form” and automate it, will the Grail of document assembly save you.  Or, will it more likely allow you to continue reusing a poorly automated template well beyond its natural life.  Will the “Grail” be used to prop up a corrupt Monarchy that should long ago have crumbled of its own weight.  Will the “lack of purity” ... or poor quality of the automated template mean that you will “not achieve” the bliss that comes from possessing the grail.

When lawyers fail to look at contract automation as an iterative process of regular updates and redesign of forms, such systems fail to meet their full potential.  In fact, it is the “lack of the Grail” that has been the biggest stimulus to effective authoring of templates.  By forcing the template designed to “anticipate” the negotiable issues and build rules, it creates better contracts, better systems, more power.  Yes, I am sure my clients would love to have their own “Grail”.  But in the end, I have a concern that it will diminish their impetus to put the proper resources into automation.  It will allow them to go back to the bad old days of word by word negotiation.

According to www.wiki.org, it is:

Wiki is a piece of server software that allows users to freely create and edit Web page content using any Web browser. Wiki supports hyperlinks and has a simple text syntax for creating new pages and crosslinks between internal pages on the fly.

Wiki is unusual among group communication mechanisms in that it allows the organization of contributions to be edited in addition to the content itself.

Our Experience

I have talking with many programmers who work with source code Wiki’s to store and organize snippets of code.  What distinguishes a good programmer from a so-so programmer is the ability to understand and “reuse code” efficiently in different environments.  By using a Wiki, code can be annotated and placed in an environment where it is made available to other coders in the organization. But this is where most “databases end” and the “wiki begins.

Because each article in a Wiki can be edited, each person who finds the code and uses it, can improve on the code ... revise it.  The wiki tracks prior version.  It also tracks discussion on the particular article.  In this way, a Wiki (used in open source development) can grow to become a vital resource of what works and doesn’t work in an organization.