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freelancer A monthly e-zine for The National Association of Freelance Legal Professionals

What To Do If You Lose a Client

VOL. 01 NO. 01 March 2011



The Implications of Cloud Computing on eDiscovery

D emotional ”F acto M Can r: ar y D re ke ou up eat al tin liv s h Goodn , Hong e th and and T r 5 Si e e ip oug downcli m s s sf h pl s t r it? ent e S P -to om s te r o s’ ps s

25 Tips to Start & Grow Your Freelance Business

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Our mission To assist

and support our members by providing cuttingedge solutions and education specifically designed to increase your bottom line. 760-610-5462

The National Association of Freelance Legal Professionals exists to help our members — one of the cornerstones of the legal community — build client loyalty, rewarding careers and financial success. We create value for our members in five ways: Advocacy and Representation Giving voice to our members to influence legislature, build and sustain positive public opinion, increase visibility and acceptance in the legal community and develop codes of ethics for freelance legal professionals.

Networking and Support Services Providing networking opportunities to increase visibility and develop global alliances with legal professionals. Connecting members with support services to increase income and referral systems.

Education To provide quality higher educational opportunities utilizing cutting edge technologies, instructional materials, webinars, seminars, training and certification programs.

Social and Community Responsibility Providing timely and thought leadership to increase community involvement and impact.

Tools and Solutions Providing resources specifically designed to assist members to develop contacts, increase expertise, marketability, revenues and profitibility.

Join Today! How You Will Benefit Through Membership At NAFLP we strive to help every one • Over 100 FREE webinars for members of our members build client loyalty, find financial success and provide re- • Access to group health insurance warding careers in freelance/contract legal careers. • FREE one-year subscription to FASTCASE for premium membership Providing opportunities to connect (regular price $995) and learn from each other It’s not just what you know, it’s who • Bimonthly publication, Freelancer you know. • Monthly ezine At the NAFLP, it’s both ... Our membership forms a wellspring of high-level • Networking opportunities experience and knowledge, and the Association offers vehicles for • Monthly teleconferences for members tapping and building it. only As a member of NAFLP., you can con- • FREE listing in Member Directory open nect with professionals to general public just like you — asking the same questions, and • Discounts to online, interactive facing the same challenges. courses and seminars • FREE membership in the prestigious Organization of Legal Professionals

Who Joins? Attorneys Consultants Court Reporters Paralegals Expert Witnesses LitSupport Professionals Trial Presentation Professionals IT Professionals Vendors Interpreters Marketing Professionals Journalists Bloggers Educators Jury Consultants Forensics Experts HR Specialists Employers In-house Legal Departments Staffing Companies Recruiters Authors & Speakers Virtual Assistants Those Interested in the Field

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Contents 5

Letter from the Editor


Trust Issues and Skype By Lincoln Mead


Kissing Frogs: Terrorism and Electronic Discovery By Herb Roitblat, Ph.D. 8

Using Barter Can Help Legal Pros Save Cash & Gain Clients

10 Meet the New Executive Director of NAFLP Patricia Bilman 12 The Implications of Cloud Computing on E-Discovery What is all the fuss and why do you need to know about this technology?

By Liam Ferguson and John Cleaves

16 25 Tips for Starting and Growing Your Legal Freelance Business Freelancing in the legal field can be a tough business! Like a regular business, there are a few do’sand don’ts to keep in mind; some of these tips can make your adventure a smoother journey.

20 eDiscovery Institute Launching Technology Assisted Document Review Study 22 When You Lose A Client By Marilyn Astin Tarltin 23 Marketing Tips from Real, Honestto-Goodness Pros By Attorney at Work 24 The “D” Factor: Dealing with Death and Clients’ Emotional Ups and Downs By Tina Johnson

44-489 Town Center Way Ste. 436 Palm Desert, CA 92260 760-610-5462 3

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The only online, interactive, gold-standard seminars designed specifically for freelance legal professionals.

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Get more clients and assignments. Increase cash flow and live a better life. THREE NEW EDISCOVERY COURSES


1. eDiscovery 101A - The Fundamentals For those new to e-Discovery or those who may not have learned all of the integrated topics present in this new and exploding practice specialty.

1. Marketing for Freelancers For those who resist, dislike or just want easier, better and less costly marketing. Designed for those with busy schedules, limited budgets and a desire to move ahead with higher paying clients.

2. Advanced E-Discovery: The Next Level An advanced course for those who have at least 2-3 years experience or more.

2. Social Media Marketing Using Facebook, Twitter, LinkedIn and other social media sounds easy but takes an understanding of what works, what gets attention and what attracts and keeps clients.

3. E-Discovery for Techies A course specifically designed for technology professionals who are handling e-Discovery. Covers laws, procedures, technology, and more. Designed for those with little or no legal background.

3. How to Get PR That Works For You An expert PR consultant gives you inside information how to get noticed. Learn what news media, TV, Radio, bloggers and editors want in newsworthy articles and intervews.

FINANCIAL MANAGEMENT 1. Billing Practices to Increase Cash Flow and Revenue A Client Services Management expert from one of the top 50 law firms gives you valuable tips and techniques to get your billing out and dollars in without struggling to get paid. 2. Getting Paid, Avoiding Collections and Increasing Cash Flow Why wait months to get paid while your clients wait for settlements? Learn how to get paid in a timely fashion. And for those hard-to-collect accounts, learn collection techniques that gets your money but doesn’t cause you to lose your clients

SIGN-UP TODAY! Take online, interactive short courses right at your desk. Interact with instructors and students via webcam. Miss a class? Take the recorded session 24/7. Now’s the time. Not tomorrow. Today.

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Letter from the Editor Welcome to FREELANCER Magazine!

Chere Estrin Meet the CEO and


Editor-in-Chief of NAFLP

ive months ago, I met a wonderful person, Melody Kramer. a successful litigation and IP attorney in San Diego, California. Melody, it turns out, had co-founded an association called the National Association of Freelance Legal Professionals or NAFLP.

I was enthralled. An association for freelancers? Wow, I thought. This is a growing cottage industry finally accepted by law firms, solos, in-house legal departments and government agencies. While the field is attractive to many legal professionals, it is not primarily made up of temporary employees searching for full-time work. It’s about legal professionals serious about maintaining their independence and growing a business. Because of her busy practice, Melody was not able to devote as much time as it now takes to deal with the changes and demands of such a necessary association. She was looking for someone who could take it over. I jumped at the chance. Having started out some mmmm....uh....well, years ago as a freelancer, it seemed like I was returning to my roots. I couldn’t be happier than to accept the responsibility. According to the Bureau of Labor Statistics of the U.S. Department of Labor, approximately 10.3 million workers in the US (7.4% of the US workforce) are independent contractors. According to Wikipedia, in the past three years, companies have increased their outsourcing by 22% on the internet. The impact on the legal field as a result of the use of the internet has been significant. Suspicious law firms, leery of legal professionals who choose to work on a contract or temporary basis and (god forbid) even from their homes, is no longer a stignma. In fact, many of the same law firm attorneys and staff who once criticized the movement, now embrace it as a more than satisfactory work scenario for themselves and others. We’ve come a long way, baby. NAFLP now has a new look, a stronger mission and a new Executive Director, Patricia Bilman. We offer continuing legal education for freelancers, FREELANCER magazine, free membership in the prestigious Organization of Legal Professionals (providing continuing legal education and certification exams in e-Discovery and Litigation Support), over 100 webinars a year that are free for members and we’re working on much more. And it’s about time! Freelancers are here to stay. We’re offering members a host of terrific benefits. We also need your assistance. Tell others about us; volunteer to write articles, give webinars, seminars and virtual events. Teach a course or sign-up for just those classes that meet your busy freelance practice needs. Grow your business through NAFLP. Feel free to let me know what your hopes, wants, dreams and desires are. We want to be right there as you move your career ahead. We’ll stay on the cutting-edge and keep you apprised of the latest trends, technology, successes and more. This issue of FREELANCER has valuable information for you. We’ve hit eDiscovery a little harder as it’s one of the hottest arenas in the legal field today. We’ve given you 25 healthy tips to start and grow your freelance legal business. And, we have a very poignant yet practical article about working with clients’ emotional ups and downs in estate planning that applies to many different practice areas. Enjoy! Share this magazine with friends and colleagues. Reach out to those of us here at NAFLP and let us know what’s important to you. We’re here and we’re listening.

Chere Estrin is the CEO of Estrin Education, Inc., a national training company for lawyers and legal professionals; Chairperson of the Board of Directors and co-founder of the Organization of Legal Professionals (OLP), a non-profit providing higher continuing legal education and certification exams and CEO of National Association of Freelance Legal Professionals (NAFLP). She has been interviewed by Newsweek, The Los Angeles Times, The Chicago Tribune, Working Woman, Entrepreneur, Latina, Maxim, The Tennessean, Frontier, The Daily Journal, The New York Times, Legal Times, Atlanta’s Fulton County Daily Report and other prestigious publications. Ms. Estrin created and publishes two magazines: SUE for Women Litigators and KNOW, The Magazine for Paralegals. Ms. Estrin is winner of the Century City/Los Angeles Chamber of Commerce “Women of Achievement Award”; an Inc. magazine “Entrepreneur of the Year” final-

Here’s to outrageous success.

ist; a California Lawyer magazine

Chere B. Estrin

“LAMMIE” award winner. She brings a law firm background and executive in the corporate world

Chere B. Estrin CEO and Editor-in-Chief NAFLP

including a $5 billion corporation. She can be reached at:


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Trust Issues & skyPE Should you be using this upstart service?

By Lincoln Mead “A freelance legal professional is a person who provides services directly to law firms on a nonemployee/independent contractor basis. This includes attorneys, paralegals, interpreters, translators, court reporters, expert witnesses, and more. Other, less precise, terms that are sometimes used are contract attorneys, temporary lawyers,


epending who you ask, Skype is a socialist upstart, a Voice Over Internet Protocol service (VoIP), software that runs on everything or an opportunity for a lawyer to support client relationships—any relationship, really—at a distance. Actually, Skype is almost all of these with a few tricks added.

per diem counsel, legal

At Skype’s foundation is a communications platform that uses Internet services instead of traditional phone lines to connect people in a variety of ways. You can make voice calls with Skype, but it also provides video calls, desktop sharing, collaboration and instant messaging—all of which can be used interchangeably. You can also enhance Skype with extras that let you do things like record calls, integrate with Microsoft Outlook or send a fax.

interpreters and translators,

Cheap Long Distance

contract paralegals,

But one of Skype’s most enticing features is its price. If you make Skype-to-Skype calls the service is free. If you are calling (or texting) from Skype to a “non-Skyped” phone, you’ll see call rates ranging from .03 to .08 cents per minute, depending where in the world you call. (Texting rates vary more, ranging from.05 cents to .36 cents per text.) You have the options of on-demand payment using SkypeCredits or by purchasing a subscription. The U.S. plans can run $2.99 per month while world plans (encompassing the 40 or so participating countries) can set you back $19.99 per month. Video conferences of more than two people also require a modest fee or subscription.

appearance attorneys,

freelance paralegals, project attorneys, and much more. Freelance legal professionals provide a flexible staffing alternative for law firms and inhouse

How do you get started? Here’s all you need: • Your computer • • • •

Speakers Microphone (USB will improve the call quality) Working Internet connection A webcam—preferably with an integrated microphone—if you want to try video calls

Simply download the software, set up your free account and find someone to talk to. It’s free to try, and quick to start, so use a loose hour to explore it. You won’t regret it.

counsel nationwide.”

Lincoln Mead is IT Director of the Utah State Bar and an obsessive fan of Cubs baseball. As IT Director, he assists Utah attorneys with evaluation of practice management technology.


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and identifying the parts that are significant to the intelligence community is a formidable challenge. I don’t know what tools they use, but I am certain that they

he decision making process for searching for a terrorist at the

airport and searching for g for a terrorist at the airport and searching for e-discovery documents is the same process.

are not perfectly accurate. As a result, these tools will definitely miss some relevant snippets and flag some irrelevant snippets as important. Even if people judged each one, they would still make some mistakes. Airport security is intended to stop dangerous people and things from getting onto airplanes. About 2.1 million people fly on US carriers each day, plus another 270,000 who fly internationally. Each one of them needs to go through security. The tools available for the security check are necessarily less than perfect. In addition, lets say that there is one terrorist a year who would like to go through security and cause a problem (they may actually be more rare than that). That means that, on average, the probability of the next passenger in line being a terrorist would be about 1 in 865 million. From the point of view of making decisions about passengers, terrorists almost never happen. 99.9999999% of the passengers are not terrorists.

The problems of finding terrorists before they get on airplanes and the problem of finding responsive documents during eDiscovery differ from one another in a lot of important ways, but they also share some important underlying mechanisms. Focusing on these underlying mechanisms may help to improve both processes. In both situations, we are faced with high volumes of potential “targets” and have to winnow them down to the relatively few that are of interest. In counter-terrorism the task is to find the terrorists. In eDiscovery, the task is to find responsive documents. Many tools, measures, and methods are available to perform these tasks, but none of these tools is perfect, and therein lies the nature of the problem. At the time of writing this, there was ongoing concern about how a person was able to smuggle some explosives onto a flight from Amsterdam to Detroit. According to White House Counter Terrorism Advisor, John Brennan “a number of streams of information,” such as the suspect’s name, were known. The suspect’s father had raised concerns about his son’s radicalization to the CIA, and the NSA had collected snippets of information about a terrorist plot involving a Nigerian man ( Airport security did not detect the presence of the explosive material, which was apparently sewn into his underwear. Many opportunities were missed to stop this person before he got on the plane. In hindsight, it may be difficult to see how the systems designed to prevent a terrorist from boarding a plane could have missed, but as we know, hindsight is always better at identifying causation than foresight is at predicting consequences. (This phenomenon is called “hindsight-bias.” Once you know the answer, you tend to believe that you knew it all along; The NSA collects terabytes of data per day. Going through that volume

Terrorism and Electronic Discovery

Kissing Frogs

As a result, an overwhelming majority of the errors made in passenger screening are necessarily false alarms. Innocent travelers are called out as security risks or at least subjected to more invasive forms of screening. So far as I know, passenger screening has never caught a terrorist, but as the Christmas day incident and others show, they have missed now and then. Almost never is not the same as never. In electronic discovery, many documents need to be screened in order to find the ones that are relevant to the matter. In one matter, for example, 2.3 million documents were filtered at great expense to produce 176, 000. Clearly, the risk of being a relevant document (1 in 13) is a lot higher than the risk of the next passenger being a terrorist, but as in passenger screening, the tools available for distinguishing between target and non-target documents are of limited accuracy. No method or process is 100% accurate at distinguishing relevant or responsive documents from the rest, so there are both false positive errors or false alarms, classifying non-relevant documents as relevant and misses or false negatives classifying relevant documents as nonrelevant. The decision making processes of these tasks, though utilizing different tools, are all essentially the same. Is there enough evidence to decide that this item is a target? Is this passenger a terrorist? Is this document responsive? If the evidence is strong enough, we decide that a particular item, a passenger or a document, should be considered a target. So, they both involve the judgment of just how strong the evidence needs to be to act on it. If too many people are considered terrorists, the system bogs down, flights are delayed, and too many people are subjected to invasive search.

At one point, for example, Ted Kennedy, the late senator, was prevented from flying because his name came up on a watch list. There are other consequences as well. If too much evidence is needed, then terrorists could slip through and cause harm. For example, we could say that anyone named “Mohammed” or one of the spelling variations of that name should be kept off of any plane. That kind of lax decision rule would cause a large number of false alarms, preventing many innocent passengers from flying, and would hardly make any difference to excluding real terrorists. By the way, Mohammed, was the 17th most common baby name in the UK in 2007. In the US, it was ranked 685. In eDiscovery, requiring too little evidence results in a large number of documents being called responsive. Requiring too much evidence means that too many will be missed. You could include as responsive only those documents that are obvious, for example, those that mention explicitly one of the key issues in the matter. This kind of tight decision rule would end up missing a lot of documents that are less explicit. Whatever standard you adopt for your decision rule, if the process is less than perfect there will be errors. The evidence for targets (e.g., shapes seen in the carryon luggage X-ray, the presence of specific words or phrases in a document) overlaps with the evidence for non-targets. A given shape in the X-ray might represent a gun, or it might be an electric toothbrush. The word “steal” may refer to a crime or to a play in baseball. In any nontrivial system the evidence is somewhat ambiguous. There is then a tradeoff. Looser decision rules miss fewer targets, but produce more false alarms. Tighter decision rules produce fewer false alarms,

but miss more targets. Every decision rule has a price. False alarms are particularly problematic for these situations. In eDiscovery, false alarms mean that more documents have to be considered as potentially responsive. In airport security, false alarms mean that people spend more time in line, are more likely to be subjected to invasive searches, and are more likely to find ways to avoid such treatment. Slower lines make more people targets for would-be terrorists, who would not have to get on a plane to kill hundreds. Arguably, missing a potential terrorist is more important than the inconvenience, but, there are other costs to false alarm. The more often that a decision maker rejects an item, the harder it

is for that person to recognize a target when it does come along. The more nonresponsive documents a reviewer sees, the more likely that reviewer is to reject a truly responsive one. Saying “no” reduces attention. So false alarms actually make it harder to detect targets. In both of these decision situations, the decision maker has to kiss a lot of frogs in order to find the few that are actually interesting. The only way to improve the quality of decisions, rather than just shift them toward false alarms or toward more misses is to bring to bear more independent sources of information. This is a nontrivial problem in counter-terrorism and eDiscovery, but one that will pay off well in both situations.

Meet the Tech Doc Herb Roitblat, Ph.D.

Herbert L. Roitblat, Ph.D. is a Principal and co-founder of OrcaTec LLC, which provides consulting and software for electronic discovery, intelligence analysis, and knowledge management. Before starting OrcaTec, Dr. Roitblat was Chief Scientist and a cofounder of DolphinSearch. He is Chairman and co-founder of the Electronic Discovery Institute, a member of the Sedona working group on Electronic Document Retention and Production, and a member of the Advisory Panel for the Georgetown Advanced E-Discovery Institute. Dr. Roitblat has been long been a thought leader in electronic discovery, writing extensively about the problems of dealing with massive amounts of electronically stored information and the emerging standards for dealing with those problems, such as sampling and quality control. 7

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Using Barter Can Help Legal Pros Save Cash & Gain Clients by Don Mardak

12 Great Reasons to Join NAFLP 1.

Network with other

freelance legal professionals. 2.

Distinguish yourself

professionally. 3.

Get over 100 free webi-

nars per year on substantive issues, marketing your freelance business, financial management, PR, and more. 4.

Receive a free copy of

Freelancer Magazine every other month. 5.

Get a monthly e-zine

filled with valuable resources and information just for freelance legal professionals. 6.

Meet your competition.


Access to experts in the

field – speakers, other members, sponsors. 8.

Opportunity to show-

case your experience through peer to peer discussions or public speaking. 9.

Impressive bullet item

on your resume. 10. SWAG – discounts or free books, magazines, access to webinars, e-learning, certification exam vouchers. 11. Free membership in the prestigious Organization of Legal Professionals (OLP) 12. Learn what new oppor-


f you want to boost sales, In return, members pay a one-time joining acquire new customers, fee, plus small fees for each transaction. and reduce cash expenses, consider the world’s oldest How Barter Works form of doing business: barter. “In its oldest, simplest form, bartering involves an equal trade. One person or While bartering—or business swaps goods or services for trading—dates back to something in return. But these days, most caveman days, it remains a business owners don’t have the time powerful business tool today. or members, promoting the goods and It’s particularly helpful during services available for trade. tough times. And it works exceptionally well for legal freelancers to turn downtime into extra revenues. Take Patti Blair, president of Patti Blair Court Reporters in Chicago. For over twelve years, she’s belonged to International Monetary Systems, or IMS, the largest independent barter exchange. “Barter brings in sales from an entirely different network,” says Kubisiak, “One that we wouldn’t otherwise tap into.” “Consequently, we’ve landed different types of customers on a consistent basis.”

Selling Through Barter One reason Blair likes bartering is because it doesn’t compete directly with her cash business. “Most of the business we get through bartering is on top of what we already do, so it really feels like bonus business,” she notes. Bartering is particularly effective in the service industry because “it’s a way to utilize disappearing assets,” says small business expert Ray Silverstein, author of The Small Business Survival Guide: How to Survive and Thrive During Tough Times. “If you don’t have an assignment on a particular day, you’ve lost that opportunity to generate income,” Silverstein says. “Bartering helps fill the gaps.” “The big benefit,” says Blair, “is that it introduces our business to a group that may never have tried us, and then they’ll tell other people about us.” Buying Through Barter

What can you buy through barter? Just about anything. You can use it for everyday expenses like property maintenance, When a member purchases an item, it office supplies, exterminators, even does so in barter dollars or trade credits. advertising. In addition, barter allows So when Blair barters court reporting, you to provide employee incentives and she can then use the trade credits in her vacations you might not otherwise be account to purchase offerings by other inclined to purchase, while rewarding members. does so in barter dollars or trade yourself for all your hard work. Hotels and credits. airlines participate in barter exchanges, too. It is not unusual for actively bartering companies to generate 5 to 10 While bartering isn’t for everyone, percent of their income through barter. it’s particularly well suited to legal freelance (By the way, in the eyes of the IRS, barter professionals, especially in times when transactions are treated like cash, and all sales are down. transactions are reported accordingly.)

Blair then uses those earned barter dollars to buy needed services and supplies like hardwood floors, painting, limousine service, invitations and fine art. She even had her company brochure and website created on trade. “I like the fact that I can get things done with minimal cash outlay and I have been able to do things that I probably would have put off doing. Barter works for me,” she remarks.

Says Blair, “The biggest thing for us is getting our service in front of law firms, and barter is a great way to do it.”

Don Mardak is founder and CEO of International Monetary Systems, Ltd. (OTCBB:INLM), one of the country’s leading barter organizations.

Get ready to grow in your job and meet new client demands with OLP’s gold-standard online eDiscovery courses.

tunities and challenges are in the legal field. 8

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A Letter from the Executive Director

The economic

downturns of the last few years have created a climate in which the legal community is re-creating the way it does business. Efficiency and productivity, coupled with the need for increased profits are the driving factors in this new era. Many legal professionals have been dissatisfied with the imbalance of work and personal life, creating a desire to obtain more control, flexibility and freedom in their lives. These factors, among others, have motivated action by a broad spectrum of legal professionals toward the independent career path of the Freelance Legal Professional. Today, there are more virtual professionals than ever, thanks to emerging technologies that are becoming commonplace and affordable, the use of which, allow the freedom of working from almost any point on the planet. This movement toward freelancing is a win-win from whatever perspective it is viewed. Law firms and corporations win by reducing overhead expenses required for full time employees. The freelance professional wins by having the choice of a multitude of projects, greater income potential and the freedom to work flexible hours to balance professional and personal life. Einstein said, “Imagination is more important than knowledge.” I take the liberty of expanding the thought to say “Imagination stirs creativity which, coupled with knowledge, causes action resulting in profound change.” Melody A. Kramer and Amanda Mineer imagined a powerful community of freelance legal professionals, one that would give one voice to the growing numbers of freelance legal professionals and that would shape the future of the legal industry. These two visionaries took decisive action and created NAFLP which has grown well beyond their initial imaginings. We are committed to the vision of the founders of NAFLP; to create an association that becomes the internationally recognized authority and advocate for freelance legal professionals and leading provider of resources and member benefits. At the forefront of this movement is the mission of NAFLP: • To promote, enhance, and create standards of practice for freelance legal professionals as mainstream of the legal industry • To educate, inform and set standards for the legal industry on how best to utilize freelance legal professionals as a business model • To increase the quality and integrity of freelance legal services through education, ethics and business training programs • To create a powerful community of freelance legal professionals with one authoritative voice to optimize financial and personal success, work-life balance and to shape the future of the legal industry We set our minds to building the National Association of Freelance Legal Professionals to a force of the highest integrity and to building a powerful community of freelance legal professionals of unsurpassed quality and cooperation. I am honored to be of service to our members, alliances and the legal community and dedicate my skills to your service.

Patricia Bilman Executive Director NAFLP


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Meet the New Executive Director of NAFLP -Patricia Bilman

The NAFLP gets a new look, new membership benefits and a new NAFLP Executive Director, Patricia Bilman. A successful Paralegal,

Freelance Legal Professional and Author/Educator , Patricia has provided legal professional services to in-house corporate and general counsel, Wall Street, health care, boutique and solo law firms and The California Department of Corporations. She brings over 21 years successful experience to the table.

“We are very pleased that Patricia has joined us,” says Chere Estrin, CEO of NAFLP. “She brings a unique combination of skills including

the ability to interface with all levels of legal professionals, a strong organizational sense, high energy, and a deeply committed passion for the National Association of Freelance Professionals.”

Patricia formerly held the position as Administrator of Legal and Corporate Affairs for Managed Health Care Company working with

outside general counsel. She freelanced for several years building a strong business and well-respected reputation in the Los Angeles area. She is the author of Corporate Formation - A Primer for Legal Assistants and Supplements for Aspen Publishing.

“I am looking forward to meeting everyone involved with NAFLP and driving the membership efforts of this exciting and innovative

association,” says Bilman. “We can’t wait for our members to get involved with our programs, projects and courses.”

Patricia brings significant seminar experience to NAFLP and is currently involved in creating over 100 webinars for members and non-

members alike. She is also involved in creating short courses that legal freelancers will find of value: marketing, financial, substantive issues, e-Discovery and more.

Her pro-bono and volunteer activities include three years a a Board Member and Consultant for Break the Cycle, a California non-profit

corporation empowering youth to end domestic violence where she managed all aspects of start-up. She spent five years as a volunteer Counselor, Mediator & Facilitator for Sojourn, a domestic violence/battered women’s safe-house and hotline, empowering battered women and their children.

Patricia’s legal field professional association activities include five years as an active Board Member and one year as the President of the

UCLA Attorney Assistant Alumni Association and five years as a Board Member and officer of the Los Angeles Paralegal Association. In case you’re thinking when does she have free time? She does have an active personal life. As a Board Member, Social Director and Secretary of Marina Venice Yacht Club, she planned and coordinated social events, cruises and parties. For the past 12 years, Patricia has been an active Member of Santa Monica Windjammer’s Yacht Club in Marina del Rey, CA in varying capacities. Her current position is Corresponding Secretary, Publicity Chair and QuarterMaster (Ship’s Store) Chief Cook and Bottle Washer. She plans social events, participates in boater’s education, race management and pleasure cruises, and manages the ship’s store, club correspondence and publicity.

On her days off, you’ll find Patricia with her family. She is married to the ”Terrific Turk”, Besim Bilman, and they spend plenty of time with

seven blended family children who are all grown. With seven biological grandchildren and nine blended family grandchildren, she has her hands full, particularly with Skipper. the family cocker spaniel who seems to rule the roost.

You can reach Patricia at: 760-610-5462 or e-mail her at:



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The Implications on E-Disc

By Liam Ferguson an


he City of Los Angeles recently contracted with Google, the Internet giant, to host all Los Angeles city employee emails for the next five years.

As a result of this decision, the City of Los Angeles will have less pressure to modernize its information technology (IT) infrastructure and will need fewer IT staff to maintain the current system, as the infrastructure will be handled by Google. But don’t expect to see Google staff roaming the halls of power—the IT infrastructure is being handled remotely, via the “cloud.” David Sarno, “Los Angeles Adopts Google E-mail System for 30,000 City Employees,” L.A. Times, Oct. 27, 2009, available at http://latimesblogs.latimes .com/technology/2009/10/city-councilvotesto-adopt-google-email-system-for30000-city-employees.html.

What Is Cloud Computing? A definition of “cloud computing” is as nebulous as the infrastructure it is built on. The term “cloud computing” is derived from the underlying technology Internet Protocol (IP), the method or protocol by which data are sent from one computer to another on the Internet. This technology is usually depicted in network diagrams as a cloud, a ubiquitous

entity whose inner workings the end user does not need to know. We like to think of the cloud as having “DEPTH”© (i.e., Distributed External Processing/Storage by a Third Party). Cloud computing promises elasticity, modernity, and ease of implementation. In addition, the cloud is flexible both in use and price. The City of Los Angeles, for example, will be able to use as many servers as necessary to host its email traffic, without having to purchase and maintain them. Instead, Google will monitor usage and provide servers as needed. Pricing is also flexible with pay-by-use or on-demand payment models.

Understanding the Framework and Risks of Cloud Computing

delivered over the network and the scalability of those services. Sun Microsystems, Introduction to Cloud Computing Architecture White Paper (1st ed. June 2009). But this very benefit of cloud computing also poses the greatest challenge to the e-discovery industry. E-discovery requires either forensic images or physical custody of the hard drives of machines containing the electronic data to be preserved. However, the virtualization of the machine makes it much more difficult to identify the physical machines on which the data reside. Clouds are good at storing data but not necessarily good at indexing or permanently deleting data. Id.

Four Types of Clouds


In today’s society, most people think of public clouds when talking about cloud computing. Public cloud service providers make resources such as applications and storage available to the general public over the Internet. Public cloud services may be free or offered on a pay-per-use model, and are managed by a cloud provider such as Google or Amazon.

Perhaps the main benefit of cloud computing is the “virtualization” of the machine. Virtualization abstracts the hardware to the point where software can be deployed without being tied to a specific physical location. This virtualization is what enables the necessary features of cloud computing:

Community clouds function to benefit a group of organizations or companies with similar computing resources over a shared infrastructure. With the costs spread over fewer users than a public cloud has, this option is more expensive but may offer a higher level of privacy, security, policy compliance, or a

A major benefit of a cloud to the end user is that the cloud is easily accessible from any computer with an Internet connection. But, to identify the legal risks associated with cloud computing, we need to understand where the data reside.


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of Cloud Computing covery

nd John Cleaves combination of these. “Cloud Computing,” Wikipedia, Cloud_ computing. Google’s email hosting for the City of Los Angeles is one such example. A private cloud exists when an organization uses the underlying technology of virtualization but owns and manages all the computing hardware itself. Id. A private cloud offers the same level of security as non-cloud IT systems, and the data are controlled by the organization. Hybrid clouds are made of two separate clouds joined together (usually public and private) or a combination of virtualized cloud servers used together with real physical hardware. A hybrid cloud is usually typical of enterprises that already have an internal computing infrastructure but also use an external public cloud for specific computing services. Id.

Services Offered by Clouds There are three general cloud computing services: Software as a Service (SaaS), Platform as a Service (PaaS), and Infrastructure as a Service (IaaS).

Software as a Service SaaS is software deployed over the Internet and/or deployed to run behind a firewall on a company’s local area network or personal computers.

“Software as a Service, ” Wikipedia, http://en .wikipedia. org/wiki/Software_as_a_ Service. The potential legal risks associated with SaaS include the transfer of proprietary or confidential data (associated with the software application) outside the confines of the company’s network.

Platform as a Service PaaS makes it possible to deploy applications without the cost and complexity of buying and managing the underlying hardware and software. In addition, PaaS provides hosting capabilities whereby all of the facilities required to support the complete life cycle of building and delivering web applications and services are entirely available through the Internet. “Platform as a Service,” Wikipedia, http:// en.wikipedia .org/wiki/Platform_as_a_service. The potential legal risk of PaaS is greater than that of SaaS, because the proprietary or confidential data associated with the application are not only being transferred outside the confines of the company’s network but also reside at the provider’s facilities on its computers.

Infrastructure as a Service IaaS allows users to buy resources such as servers, software, data-center space, and network equipment at a much cheaper cost through the outsourced service rather than paying more to own this type of infrastructure. “Cloud Computing,” Wikipedia, http:// The potential legal risk is greatest with IaaS because all of the company’s proprietary and confidential data reside at the provider’s 13

Challenges to -discovery in a Cloud Computing Environment Challenges to e-discovery increase as an organization becomes more reliant on cloud computing, because the data are transmitted over the Internet and stored on third-party systems. This creates issues such as where to find necessary data; additionally, the question of whether the data have been modified becomes harder to answer. As always, technology is racing ahead of the law. Thus, there is actually very little case law and few definitive decisions regarding cloud omputing, and an abundance of questions surrounds it. A look at the statutory law on the federal level shows that more and more companies are raising issues with the Electronic Communications Privacy Act (ECPA), which has been in effect since 1986.

“This benefit of cloud computing poses the greatest challenge to the ediscovery industry.”

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Under the ECPA, documents that are in transit over the Internet have a much

In Bellar, Judge Sercombe stated:

lower level of privacy than those stored on a user’s personal computer. The Department of Justice and other overnment institutions have successfully applied this standard to gain access to a user’s emails stored in the cloud by using merely a subpoena rather than a court issued warrant. In response, corporations and individuals are encouraging the government to recognize that this aspect of the statute, drafted nearly 25 years ago, is out of date and needs to be modernized to match the expectation of privacy that users have in their data, even when stored in the cloud. The government is arguing against this change, citing issues of national security.

“Nor are a person’s privacy rights in electronically stored personal information lost because that data is retained in a medium owned by another. Again, in a practical sense, our social norms are evolving away from the storage of personal data on computer hard drives to retention of that information in the “cloud,” on servers owned by internet service providers. That information can then be generated and accessed by hand-carried personal computing devices. I suspect that most citizens would regard that data as no less confidential or private because it was stored on a server owned by someone else.”

Several recent U.S. cases have direct, substantive implications for cloud users dealing with personal jurisdiction, privacy rights, e-discovery, and copyright infringement. Fernando M. Pinguelo and Bradford W. Muller, “Avoid the Rainy Day: Survey of U.S. Cloud Computing Caselaw,” BC Law IPTF Blog, http://

Jurisdiction in the Cloud Sometimes data in the cloud are protected by statutes. For instance, emails and medical records have their own statutory protections provided by a jurisdiction. But what happens when the data reside outside a jurisdiction? In many cases, users of the cloud services do not know where their information is held. Furthermore, some companies provide their customers the option of having their data stored in different jurisdictions, which creates the issue of whether or not one’s data are compliant with the laws of the respective jurisdiction. Finally, the various laws regarding data in different jurisdictions can complicate the e-discovery process.

New ESI Associated with Cloud Computing The transfer of data is the fundamental premise and use of cloud computing. A new source of electronically stored information (ESI) is generated through this transfer and temporary storage of data on third-party servers, as the following cases demonstrate. In Columbia Pictures, Inc. v. Bunnell, 245 F.R.D. 443 (C.D. Cal. 2007), the court discussed a new source of ESI— random access memory (RAM). This case was a dispute between Columbia Pictures and Bunnell, an operator of a website called TorrentSpy, which facilitated the copying of illegal content. While TorrentSpy did not actually store the content, it was discovered that the users who copied the content could be tracked down based on their IP addresses, which were temporarily stored in the RAM.

‘‘Corporations and

individuals are encouraging the government to recognize that this aspect of the statute, drafted 25 years ago, is out of date.

The court broadly interpreted Rule 34(a)(1) and concluded that the IP addresses existing in the RAM of web servers were ESI that had to be collected and turned over to the studios. The court also decided the defendants had control over the data requested even though the IP addresses were in the RAM stored on the third-party server. The conclusion that the defendants had control of the data was based on the fact that they were able to “manipulate [the data] at will” and had control over whether the data were routed through their own server or the third-party server. Ultimately, this case proves it is increasingly difficult for parties to hide behind their third-party server providers when fielding e-discovery requests, as courts find those servers to be within the party’s “possession, custody or control.”


The New York trial court’s decision in Forward Foods LLC v. Next Proteins, Inc., 873 N.Y.S.2d 511, 2008 WL 4602345 (N.Y. Sup. 2008), illustrates the complexities introduced by data residing in the cloud. The case involved the use of a “virtual data room” where documents were uploaded by Next Proteins, Inc., for review by potential buyers, including Forward Foods LLC. Next Proteins was incorporated and headquartered in California; Forward Foods was based in New York; and the “virtual data room” was contracted out to a company based in Minnesota. Naturally, the issue of where to hold the trial became a complex issue.

In Bunnell v. Motion Picture Association of America [MPAA], Case No. 2:06-cv-03206-FMC-JCx (C.D. Cal. 2007), available at privacy/bunnell/, the MPAA was sued for violating the federal Wiretap Act by hacking the email server of Justin Bunnell of TorrentSpy. The MPAA allegedly paid $15,000 for information derived from private emails sent by TorrentSpy executives. The federal Wiretap Act bars the unauthorized interception of electronic communications. The act sets forth penalties for intercepting communications while messages are “in transit” but does not govern access to historic, archived data. The trial court held that the MPAA did not violate the Wiretap Act, reasoning that the emails were secretly swiped while they were in millisecondslong “storage” on TorrentSpy’s email server—not while they were “in transit.”

The court found that Next Proteins had sufficient minimum contact with buyers located in New York such that jurisdiction was established; however, the court of New York dismissed the case on the ground that California would be a much more appropriate forum based on the facts of the case. In this instance, the location of the relevant data and even the location of the individuals accessing the data were not as important as the location where most of the business transactions took place.

As these two cases demonstrate, the temporary storage of data associated with the transfer of data is considered a new source of ESI in the courts. The use of cloud computing by individuals and corporations inherently involves the transfer of data. Furthermore, stored data, whether permanently stored or in a temporary cache, are considered ESI that is deemed to be controlled by the individual or corporation using the cloud computing service.

Conclusion Imagine the “thundercloud” that is created in cases involving the cloud—as, frankly, in all cases—when a discovery, subpoena, or regulatory request is received. What will be the turnaround time required, and how will the data be delivered? How is the information stored, and is it fully indexed and searchable, thereby allowing only relevant information to be returned?

Privacy in the Cloud In Oregon v. Bellar, 217 P. 3d 1094 (Or. App. 2009), the charges against the defendant arose out of the discovery of illicit material on the defendant’s computer by a computer repair technician. Under Oregon law, it is a crime to knowingly use or access data stored within a computer without authorization. It was argued that under “social and legal norms of behavior,” the information stored within personal computers is regarded as confidential and private. The Oregon court of appeals extended this reasoning to information in the cloud and decided that this information is just as confidential and private as the information stored on a server owned by the custodian. The court further concluded that the privacy interest in the data does not change even if the data were copied, transferred, manipulated, or stored on a medium owned by another, so long as the information was not abandoned or exposed to the public.

Think of the implications to your records management department as well. Is the disposition of data handled according to your firm’s specific needs and legal and regulatory requirements? What type of audit process is in place to ensure compliance? How are information security and data integrity being addressed? The challenge we see in which a party was found to have negligently caused spoliation, especially in light of the recent decision by the Southern District of New York in Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, is that as cloud computing raises the level of abstraction to such a degree that all physical components are virtualized, the retention, preservation, and control of documents will be dramatically more complicated. When a dispute or an investigation arises, the ability to scope, acquire, and produce the relevant data in the cloud computing environment is paramount. It is critical to create an overall e-discovery plan suited for a cloud computing environment, such as undertaking document preservation across the cloud, identifying key records in the cloud as part of a litigation hold, and searching in the right places by identifying the relationship between data and the virtual machines that

“Think of implications to the records management department. Is disposition of data handled according to firm’s speific needs and legal requirements?” 14

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identifying the relationship between data and the virtual machines that processed the data. Further, consideration needs be given to the authentication of business records and data obtained from an outsourced application or process. Although business records are typically produced and testimony provided to confirm and authenticate the records as information created and preserved through the normal course of business, that is not necessarily the case where the cloud is involved.

If there is a dispute as to the accuracy of the data, it may be necessary to call the cloud service provider to testify not only as to the validity of the data but also as to the processes that it employs. This is one storm that is only just beginning to swirl, and we suggest you bring along your rain gear. Liam Ferguson is managing director in Mesirow Financial Consulting’s Technology Advisory Services Practice. John Cleaves is supervisor of practice support in the Los Angeles office of Latham & Watkins. He serves on the Advisory Councl for OLP.

The transfer of data is the fundamental premise and use of cloud computing.”

Reprinted with permission from the ABA Journal.


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25 Tips for Starting and Growing Your Freelance Legal Business

Time Management 1. Set goals that allow you to focus on moving away from working full time for someone else and towards putting more hours in to your freelance business.


Be results focused. Focus on results, not on being busy. You are, I’m sure, familiar with the Pareto Principle, also known as the 80/20 rule. The Pareto Principle says that 80% of unfocused effort generates only 20% of results and the remaining 80% of results are achieved with only 20% of effort. Focus on the results you are wanting to achieve and look for ways to work more efficiently.


Get Up Earlier. This one is a no-brainer. If you get up just one hour earlier each day, you effectively create another 365 hours a year. That’s more than two weeks! You could create a brand new website in two weeks. You could write the outline of a novel in two weeks. At least think about it.



Email Check your non-work (i.e. non-job) email only once or twice a day and deal with each item only once. That means reading it, responding to it, filing it for later review or trashing it. Don’t leave it sitting in your inbox once you’ve opened it or you’ll forget what it is and waste time rereading it probably several times over.



Make a list of everything you would like to accomplish today. This includes business, work and personal. Now prioritize those activities in order of necessity, importance and urgency. When thinking about priorities, make sure that if you run out of time today, what doesn’t get done is something that can wait until tomorrow.


Marketing Online 6. Develop an online presence as a

freelance legal professional. You can’t get

work as a freelancer if no one knows that you are available for projects. One of the best ways to let people know that you freelance is through your blog or portfolio site. If you don’t have a website already, it’s time to set one up. Ditto for LinkedIn, Facebook and Twitter, Flickr, Digg, Delicious, StumbleUpon and Plaxo. Create a schedule for yourself and post on a regular basis. Another benefit is that you can meet more people faster online then in person.


Build a professional profile on a bidding site. While bidding sites may not always offer

the best opportunities, if you understand how they work it is possible to land some good jobs there. Remember, many successful freelancers got their start by first finding work on a bidding site. When your profile is complete, don’t forget to bid on some projects.


Add freelancing availability to your social media profile. For many freelancers, one

of their best sources of clients is the people they already know. If you keep in touch with friends, family, former classmates, or colleagues through social media then you need to make sure that your social media profile includes the fact that you are willing to take on freelance work. Also, many law firms and organizations now use social media to recruit freelancers for projects.

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Freelancing in the legal field can be a tough business! Like a regular business, there are a few dos and don’ts to keep in mind; some of these tips can make your adventure a smoother journey, and some will just make your life easier in the long run. The following list suggestions for starting or improving your current business and making a more effective business endeavor.


Start a blog and build a following. Make yourself an expert in your practice specialty. Blogs have big followings now. Someone who subscribes to your blog will have your name and contact information in their face on a regular basis. When they are ready to use a freelance legal professional, the one they will call is the one topof-mind.

10. Give webinars and Podcasts.

One “old” adage: If you teach it, you must know it. Give webinars regularly and let clients and potential clients know you are speaking. Attorneys are much more apt to hire a freelancer who has a presence in the legal community and is thought of as a leader. Teaching helps establish you as one. Develop a complete marketing plan and follow it.

Taking Care of Business 11. Investigate the right business structure.

There are many reasons why you might incorporate such as lower taxes, less liability and more. Check with your attorney (you do have one, right?) or accountant. Some larger law firms do not work with individual freelancers. They want to hire from a staffing company for liability reasons. Staffing or contracting agencies tack on at least a 15% fee (paid by the client, not by you). It’s smarter to add that 15% to your rate!


Go through all the small business business. If you need to file a fictitious business name, get a license to work out of your home or office, set up professional phone lines in your home, get a Blackberry, do it now.

13. Get a good name.

Find yourself a name to work under as a freelancer, either being your own or a unique brand name, keep it simple and fresh. Remember less is more.

“It may sound crazy but ask your competitors.” 17

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“If you get up just one hour earlier each day, you effectively create another 365 hours a year. That’s more than two weeks. It’s a no-brainer.” 14. It’s not always necessary to get an

Similarly, you should continue to invest for your retirement. You may not be able to offer yourself a 401K plan, but you can take advantage of a Simplified Employee Pension (SEP) IRA. While your contributions will be limited to a little over 13%, versus the 15% limit on 401Ks, you can contribute up to $30,000 a year to your retirement fund -- all of it tax-deductible.

expensive accountant unless, of course, you can really

afford it. Always get good advice from experts. But don’t go out and pay for the most expensive one if you are just starting out.


Get your equipment and software. Make sure that you can perform your job as efficiently as possible. If you know that you will need an office copier, a fax machine and several pieces of software, get those items in the beginning. It will save time trying to scrounge for them when they are absolutely necessary. Learn the software most required by your specialty. Do you need to learn Summation, Concordance, Ringtail, CaseMap, Lexis/Nexis, WestLaw, or other software programs? Law firms want you to be an expert and not to learn on their dime. They don’t pay for training a freelancer.

21. Benchmark against the competition.

There are always two sources of good ideas—you and your competition. Yet far too many of us seem to work in a vacuum, without taking the competition into account. It’s harder to benchmark when you’re a freelancer—unlike big companies, there isn’t a lot of readily available information in the form of analyst reports and SEC filings. On the other hand, there’s more information available than you might think. Ask your clients, past, present, and potential how you stacked up against the competition. Even more important, ask the clients that you lose—one loss provides more information about your weaknesses than all your wins put together.

15. Do not spend big bucks on a logo design.

There are plenty of websites where you can create one free or for a minimal charge. There is also cheap software to help. Or, simply pick a good font and use your own name for a logo.

Finally, though it might sound crazy, ask your competitors. Try talking to indirect competitors or potential collaborators. Develop relationships with at least three competitors. If you decide to pass on a project, try to refer the business to a collaborator or competitor—both the client and the competitor end up owing you a favor.

17. Create a Contract: You’re in the legal field! You know that before you set pen to paper for a client, you need to have the parameters laid down in the form of a contract. The contract will spell out the services that you are willing to do and the number of hours that you are willing to work. This is one of the most important documents in freelancing. You want to get paid in a timely fashion!


Insure yourself.

Finding your own health insurance is also a necessity when owning your own business. Don’t go without health insurance! Additionally, general liability and errors and omissions is important and if you are an attorney, you may not always be covered under your client’s malpractice insurance. You need to do the research and find out for yourself.

Financial Management 18. Run the Numbers and Determine Your


How long does it take for you to complete certain assignments? Draft a motion? Prepare a will? Draft interrogatories? Know ahead of time so that there are no misunderstandings with the client. Do you know how much revenue you need to take in per day? Know your capabilities from your past experiences.

Taxes. Speaking of taxes, you’ll want to figure out a system to track expenses so that it will be easier to itemize things when you do your taxes. Keep a notebook in your car to track mileage. Create an Excel spreadsheet for purchases for my company like design software, business cards, stamps, and office supplies. Or, use a simple accounting software and enter regularly.




Pay Yourself. As freelancers, we’re often tempted to treat

If you are just starting out, you might choose to phase your freelancing into your work life. Clients don’t always sign right up, so it may be awhile until you get enough clients to meet and succeed your expectations. Be sure there are no conflicts of interest.

our time as free. It isn’t, and treating it as such can cause us to make uneconomical decisions. For example, if it takes you 25 hours of work to win a $5,000 worth of business and 25 hours of work to complete it, you’re making $100 per hour, not $200. If someone offers you a $125 per hour contract, you should take it. That contract may be below your nominal hourly rate of $200, but it’s above your real hourly rate (counting the time spent on business development) of $100.


You don’t actually have to write checks to yourself, just keep track of how your monthly earnings measure up to your monthly “salary.” If your earnings exceed your salary, congratulations! If you’re running a monthly deficit, you should either lower your salary expectations or consider finding another line of work.

25. Employees, other freelancers, partners,

in-house legal staff, staffing organizations, bar associations, paralegal associations, vendors, consultants all know what is going on at their firms and others. There’s only one way to find out what they know, and that is to network. And don’t forget: if you are not already a member of NAFLP, join now! Just getting Freelancer magazine can help!

20. Offer performance bonuses and

retirement savings

Incentives are incredibly powerful motivators. One wealthy father stipulated that his son would receive a bonus from his trust fund when he married. Naturally, the son got married 12 times! You can also tap into these incentives. Sure, you can’t actually pay yourself more, but you can reward yourself for accomplishing your goals. Your reward may be a vacation, a nice dinner out, or a new television. The point is to give yourself an extra kick in the pants to achieve your objectives.

Don’t Quit Your Day Job!


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The hottest, most requested practice area today for freelance attorneys, paralegals and litigation support professionals.

Do you want to jump-start your freelancing career? • You have a client who wants you to attend a Meet and Confer conference. • You have to prepare a litigation hold. • The scope of your assignment has increased. Build a solid foundation of e-Discovery knowledge in this hands-on workshop that covers the entire e-Discovery lifecycle. In this online, interactive seminar, you will learn and practice the latest tools and information necessary to conduct assignments in eDiscovery. In lectures, discussions and exercises, you’ll cover every aspect of Introduction to eDiscovery. HOW YOU WILL BENEFIT: • Ensure that you understand eDiscovery from the start • Learn the basics for effectively gathering and analyzing data • Understand important concepts such as EDRM, the Sedona Principles, ESI and ECA. • Increase your client base

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What is eDiscovery and where do you find it? Metadata Sanctions & Duty to Preserve Document Retention Policies Regulatory Compliance Post-Litigation Response The Changing Face of Litigation Governing Law Relevant Fed. R. Civ. P. Keeping Costs Down and much more.

A six week course offered 2 times per week for six weeks. If you miss a live class, recorded sessions are available. Taught by top experts in the legal field. 50% discount for NAFLP MEMBERS Regularly $995.00 NAFLP Members: $495.00 including books & materials

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eDiscovery Institute Launching Technology Assisted Document Review Study EDI calls for participation of automated review providers in new benchmarking study


atrick Oot, General Counsel and Co-Founder of the Electronic Discovery Institute (“EDI”) called today for providers to participate in a study to evaluate the effectiveness of solutions that automate or expedite manual review in litigation, using a document set provided by Oracle. According to Oot, “Oracle is enabling EDI to conduct the technology assisted document review study by providing a large set of its records that have already been reviewed manually in litigation.

Hogan Lovells, the firm that conducted the initial review and production, will assist. That assistance will be invaluable since they are already familiar with the documents.” Orrick, Herrington & Sutcliffe is also participating. Wendy Curtis, chair of Orrick’s ediscovery working group, asserts “counsel, courts and clients need a common understanding of what these tools can accomplish and how they support the requirements of FRCP 1.” Oot went on to say that, “A substantial portion of the ever-escalating amounts of money that companies spend on litigation is spent reviewing electronic records to select those that are responsive to discovery requests. When that is done with a manual, document-by-document review, the costs can be staggering. Technology assisted document review has the potential to dramatically lower the costs of selecting records for production and speeding the litigation process. This study provides independently reviewed metrics on the quality and costs of various technology assisted document review solutions compared to manual review. This could speed the acceptance of technology assisted review methodologies by courts and by corporations.” A previous EDI study on document categorization involved a set of Verizon documents that had been reviewed as part of a response to a government investigation. The same set of records was reviewed by two different document categorization systems and the results were compared with the original review decisions as well as with each other. A subset of documents was also manually examined by a second team of reviewers and those results were compared as well. The results showed that the automated approaches were generally as likely as the second team of manual reviewers to select the same set of records as the first manual review team, but at a substantially lower price and in far less time. Those results became the basis for a peer-reviewed article in the Journal of the American Society for Information Science and Technology as well an article in the Denver University Law Journal.


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EDI co-founder Anne Kershaw, who along with EDI co-founder Herb Roitblat, Ph.D., participated in the initial study and co-authored the articles stated that “Many practicing lawyers know that the old document-by-document linear review doesn’t work very well with the tremendous numbers of electronic files in today’s productions, but nobody wants to talk about it. Further, many companies are not willing to share their experiences with other companies. Oracle’s assistance in providing data for this study we hope will pave the way for more organizations to provide the data and information we need to benchmark, test and report on developing technologies that may reduce costs and improve processes.” Herb Roitblat indicated that EDI, Oracle, Hogan Lovells and Orrick Herrington will be documenting the test protocol and making a selection of vendors over the course of the next three to four weeks. Results will be posted in a report on the EDI website and made available at no cost. The Electronic Discovery Institute is a 501(c)(3) nonprofit research organization that attempts to identify and promote technologies and processes that can lower the cost or improve the quality of handling electronic discovery. The EDI website, has reports and articles available at no cost relating to its prior work in evaluating document categorization and conducting industry surveys on duplicate consolidation, email threading and predictive coding. Its most recent publication, the “Judges’ Guide to Cost-Effective E-Discovery,” has been distributed in print form to over 600 U.S. Magistrate Judges and is available in electronic form at no cost on the EDI website.

T e

“this could speed the acceptance of technology assisted review methodologies by courts and by corporations.” 21

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When You Lose a Client By Merrilyn Astin Tarlton


t happens to every lawyer from time to time. A good, longtime client—or so you thought—suddenly drops the relationship and seeks counsel elsewhere. Or, perhaps you compete for a new client and you’re not selected. It can happen for any number of reasons. Many of them are things over which you have control. Some of them are not. But regardless, what you do with that disappointment is the most important thing. While it’s tempting to heave a pathetic sigh and just turn the other cheek, your job isn’t really done here until you check off a few things.

1. Relocate your objectivity. No, this isn’t easy. You’re angry or hurt or feel betrayed. It’s natural. You may need to vent your feelings with a coworker, go for a punishing run or even wait for a couple of days to pass. 2. Find out why they left. This will take some courage, but it’s important for you to find out what went wrong. (And remember, the news may not necessarily be bad.) Collect your thoughts and then place a phone call. Probe as deeply as you can because their first responses will probably just be meant to deflect. They don’t want to have this conversation, either. Listen hard and resist every temptation to defend or argue. Thank them for their time and honesty. You’ll most likely have the option, at this point, of trying to win back their business if you choose. 3. Get an outside perspective. Discuss the situation with a colleague or friend. Be as honest as you can—this isn’t an opportunity to get sympathy—and ask for the bitter truth in return. Ask what they might have done in your shoes and what they recommend you do next. 4. Reflect on lessons learned. Think through what you have learned from the former client and the perspective you gained from the third party. Observe your own reactions and revisit the facts of the situation. Is there anything you could have done differently? Are there systems you could put into place to ensure this doesn’t happen again? Actions that need to be taken? 5. Take steps to prevent a recurrence. Whatever it is, make it happen now while you have the conviction. It could be something as simple as instituting a new proofreading rule or as difficult as changing some of your own behaviors. Whatever steps you decide to take, it will be far easier than either losing more clients or going through this list of painful steps again!

Merrilyn Astin Tarlton has been helping lawyers and law firms think differently about the business of practicing law since 1984. She is a Fellow of the College of Law Practice Management, among the first inductees to the Legal Marketing Association Hall of Fame and Adjunct at the University of Denver Sturm College of Law. Reprinted with permission from Attorney At Work. 22

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Marketing Tips from Real, Honest-to-Goodness Pros By the Editors of Attorney At Work


arketing isn’t rocket science. “More than anything, it demands ‘the little engine that could’ approach just putting up the mountainside, “ says Burkey Belser. To help crank up your business development engines for the coming year, Attorney at Work asked some widely known legal marketing pros for their favorite marketing tricks.

Check In with Old Friends At a loss for how to ignite your 2011 sales efforts? Go back 10 years (or however long you’ve been in practice if less than 10 years) and review your client list for each year. If there are people on those lists with whom you haven’t spoken in a while, add them to your list of calls to make during the first quarter of 2011. The new year presents a great opportunity for these calls. A simple opening statement like “It’s been a while since we’ve connected and I thought I’d call to say hello” will facilitate the conversation. And people really do appreciate that you are thinking of them. We’ve seen amazing results from this seemingly simple, obvious outreach effort. Your overall objective? To reopen and rebuild the relationships, one step at a time. Try to leave the call with an action step that’s in your court. — Silvia Coulter, Managing Director, Client Development Practice, Hildebrandt Baker Robbins Create an Annual “Touch” Plan That means: Identify how you are going to touch each one of your clients every month for the entire coming year. One month it might be an e-mail about an insight you had or a relevant subject you found in the news; the next month, a mailing with samples of your work or an update on your firm or yourself; the next month, a phone call that does what the e-mail and mailing did the previous months. Marketing isn’t rocket science. More than anything, it demands “the little engine that could” just puttputting up the mountainside. — Burkey Belser, President & Creative Director, Greenfield/Belser Ltd. Say It on Paper Pen and paper are so rare now that a handwritten snail-mailed “thank you” note is golden. — Gerry Riskin, Founding Partner, Edge International Use the Phone Call the next five people you would otherwise contact by e-mail. It will advance the relationship and almost certainly lead to new work. — Jim Durham, Chief Marketing and Business Development Officer, McGuireWoods LLP Don’t have the Wrong Conversation Here’s the scenario: The client telephones her lawyer and asks, “How’re you doing?” The lawyer responds, “Up to my eyeballs!” (proud of how hard he is working for his clients). ”Oh, really,” replies the client (making a mental note not to burden the lawyer with new business or referrals). How many times have you inadvertently conveyed that message to clients? — Ross Fishman, CEO, Fishman Marketing *Reprinted with permission from Attorney at Work. 23

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