What the Computer May Have Missed

In 2002, reporters asked Secretary of Defense Donal Rumsfeld a question at a U.S. Department of Defense news briefing. In answering, he set up a taxonomy that has become popular to catalogue our state of knowledge. In the Rumsfeld Taxonomy, there are things we know, things we don’t know, and things we don’t know we don’t know. In the Secretary’s words, “There are known knowns. These are things we know that we know. There are known unknowns. That is to say, there are things that we know we don’t know. But there are also unknown unknowns.” The last category, as Secretary Rumsfeld noted, is the most intriguing.

Scientists Discover Tacit Knowledge

Michael Polyani was a Hungarian physical chemist. He studied in Budapest and Karlsruhe, Germany, but WW I interrupted his studies. He served as a medical officer during the war and, during a sick-leave, managed to write his PhD thesis (encouraged by Albert Einstein). He received his PhD from the University of Budapest after the war.

After teaching for years in Hungary, he emigrated to Germany and then found his way to the University of Manchester. With the turmoil in Europe, his interests had shifted from chemistry to economics. The University accommodated the shift by creating a chair for him in Social Science which he held until he retired from his distinguished career in 1958.

Years before he retired, Polanyi gave the Gifford Lectures at the University of Aberdeen. He published a revised version of his Lectures in 1958 as the book, Personal Knowledge. In the Lectures and book, Polanyi argues that all knowledge relies on personal judgments. That is, he argued, one cannot reduce knowledge to a set of rules. Polanyi’s views countered those of his friend Alan Turing and were the basis for some early critiques of work in artificial intelligence.

Polanyi extended this idea of personal judgments to a concept he called “tacit knowledge.” According to Polanyi, we experience the world both through sensory data and through other knowledge—tacit knowledge. Tacit knowledge includes things we aren’t aware we know, but which play an essential role in our lives and work.

Polanyi’s ideas have been the subject of much research. That research helped explain a problem that has bedeviled scientists for many years. As any high school student who has taken a science class knows, one of the bedrocks of science is the idea of the repeatable experiment. Scientist A conducts an experiment which yields results that meet a basic significance test. She publishes her results in a journal. Scientist B wants to extend Scientist A’s work. To get started, Scientist B tries to replicate Scientist A’s results. B runs the experiment as described in the Journal article, but gets results different from A. Were A’s results a fluke? Were B’s results a fluke? After many attempts, B and scientists C, D, and E are unable to repeat A’s results. Now what?

At first you might think such an outcome uncommon. Scientists publish in peer-reviewed journals. We assume that by the time an article makes it into print, the results it reports aren’t a fluke. Scientist A may have repeated her experiment several times before publishing to make sure her first results were not a fluke. The peer reviewers would catch any flaws in what she did. The data is public. So, absent fraud, we think A’s results are reliable. In fact, scientists still struggle with unrepeatable results. Why can’t anyone repeat them?

This is where Polanyi’s theory comes into play. Under the tacit knowledge theory, the steps in the journal article are not sufficient for other scientists to replicate the experiment. The missing element is tacit knowledge. In the case of A’s research, she has some tacit knowledge necessary to make the experiment work. Tacit knowledge goes beyond failure to create detailed instructions. It includes knowledge the person can’t articulate.

Science and the Unknown Unknowns

It is the time of the Cold War. Russian researchers led by Vladimir Braginsky at Moscow State University are working on ways to detect and measure gravitational waves. Measuring these waves is a big deal—you may recall seeing articles in 2016 describing how scientists had, for the first time, detected gravitational waves. Albert Einstein had predicted such waves 100 years ago.

The Russian researchers’ instruments used sapphire mirrors. Every little thing mattered in the search for gravitational waves, including the quality (“Q”) of the sapphire used in the mirrors.[1] The Russian researchers claimed to have measured a new, high quality level for their mirrors, something of great interest to those searching for gravitational waves. But, despite their best efforts, researchers at major universities including Caltech, Stanford, Perth, and Glasgow could not match the Russian’s results.

Since it was the Cold War, many were skeptical that the Russians had achieved what they said. As the years passed and no one could repeat the results, the skepticism grew. By 1998, the Cold War was over. Scientists from Glasgow University visited Moscow State University to learn how the Russians had managed to measure the impressively high Q.

After a week, the Glasgow scientists trusted the Russian scientists. With distrust out of the way, the Glasgow scientists focused on what the Russians were doing. It turned out, there was a lot to know beyond what the Journal article said.

Remember, the equipment is very sensitive. Construction and technique play critical roles in the measurement process. This was where the Russians had tacit knowledge. The Glasgow scientists learned how to suspend the sapphire, what to use (a certain silk thread from China worked best), the best length for the suspension thread, the most efficient way to create a vacuum for the test, and many other factors. They also learned patience. The Russian scientist doing the experiments would re-run the same experiment over many days making minute adjustments, before he would accept the results.

Some changes had explanations. But for many, the answer was akin to the famous dictum from Supreme Court Justice Potter Stewart when writing about pornography, “I know it when I see it.”[2] The Russian scientist could not articulate what he need to do, he just knew when he had to adjust the apparatus or run the experiment another time.

AI, Law, and The Tacit Knowledge Risk

As we see the earliest incremental steps of artificial intelligence creeping into law, we should ask whether tacit knowledge plays a role in the legal universe. It is easy to be dismissive and argue no (though I suspect lawyers will try to answer yes). Law is not an “exact” science like physics. The steps that physicists outside of Russia missed when trying to replicate the Q experiments were in many cases matters of omission. Had the Russians given long and detailed explanations of everything they did, the other scientists may have replicated the experiment.

If we push a bit further, the “yes” answer gains currency. Harry Collins has written extensively on tacit knowledge. In Tacit and Explicit Knowledge, the third book of his non-fiction trilogy studying knowledge “top to bottom,” he developed a “Three Phase Model” for tacit knowledge: relational, somatic, and collective. Relational addresses the “contingencies of social life,” somatic the “nature of the human body and brain,” and collective “the nature of human society.” Without delving into the Model, we can see that tacit knowledge includes more than what our senses tell us, it includes much going on around us.

In law, we moved from formalism to realism in the beginning of the 20th century (pragmatism never caught on). What lawyers and judges did involved something beyond formalism. Looking at the facts, reading cases and statutes, and applying the latter to the former was necessary, but not sufficient. The process needed an additional something, and it came from experience, both life and current. Reading the cases or statutes applicable to a set of facts did not give you all you needed to “apply the law.”

The tacit knowledge concept puts a name to what many lawyers try to articulate when they say we need lawyers. Sending a computer to law school, where it learns the theory and rules of law, is not sufficient to give us a practicing lawyer. Even having the computer read all the decisions of all the courts, study the hornbooks, and peruse law review articles falls short. The computer may learn what is in print, but it will not learn the “unknown, unknowns.” It will not learn what the lawyer or judge omitted from the papers. As important, it won’t know what it doesn’t know.

Tacit knowledge plays a role in shaping the biases and heuristics that Daniel Kahneman brought to our attention in behavioral economics. A judge deciding a case employs those biases and heuristics as she applies law to facts. To claim otherwise attempts to argue that judges are not human. But where does this knowledge take us?

Consider tacit knowledge along with artificial intelligence. AI uses machine learning. Imagine we gave AI software all of the cases ever decided involving securities law. We gave the same computer all the law review articles written, all the books published, and any other written thing we could find. The AI used machine learning to scour the materials for patterns. It found things we knew and some “patterns” we didn’t know. But are the new patterns correct? And, what about everything that wasn’t written down?

AI software stumbles when it comes to certain challenges. Law can magnify those challenges. Writing quality varies widely among judges. On a good day, judges may omit essential information from their opinions. On a bad day, they also omit logic. AI will have difficulty inferring what is missing. If 1,000 cases lack the same information, AI may find the pattern. But if only one case lacks the information, AI can’t find a pattern. Another challenge involves deciding what weight to assign each fact. The judge may list 10 facts, but not the importance of each fact to the outcome. Facts change by case, so finding a pattern is difficult.

Think of a decision involving a criminal sentence. Case law requires that Judges list the factors that played a role in sentencing. Most do, but some omit some or all of the factors they considered. The software may see a factor in the case and incorrectly think the judge considered it. The judge may have used her experience to weight recidivism risk factors when deciding what support services the defendant would get, but not listed her experience. Tacit knowledge plays a role in judicial decisions.

When we introduce AI into law, we need to ask what happens to tacit knowledge. If we think of AI as just doing a better job finding things, then we can argue it has little to no impact. AI finds cases faster than a person, but the person still reads and interprets the cases. But how does the AI know which cases to select versus the human? Would a person have selected a case, even though ambiguous, because it gave hints about new directions to pursue?

I am not pretending to answer the tacit knowledge question in this article. But I think we must ask the question as we expand our use of proto-AI and AI technologies. The question may not be what we found, but what we missed.

[1] The quality or Q factor for a material measures the rate at which its resonances decay. Think of a bell. You ring the bell and it takes time for the ringing to subside. The longer it takes, the higher the Q. The scientists wanted “high Q” sapphire and the Russians had measured a Q of 4 x 10 to the 8th.

[2] Jacobellis v. Ohio, 378 U.S. 185 (1964).

Another Reason to Re-Think Legal Education

Lawyers have suggested many reasons for changing legal education. I have another one to add to the list. I think legal education teaches inefficiency. From day one in law school, law students are taught to be inefficient in the practice of law. By the time they hit the world outside academia and start practicing, they have three years of intensive inefficiency training. In a world that has moved towards reducing waste, at least in corporations, having someone join the workforce who has been taught inefficiency adds some complications. At a minimum, it means we will spend years re-training them, at the same time they are learning to practice. More realistically, we will end up with many lawyers who are never re-trained.

Legal Inefficiency Training

Think about your first year of law school. Were you ever taught how to analyze a contracting situation, a tort, or a criminal law situation as a process as well as a substantive law issue? Probably not. You were taught a way to analyze contract issues. Yet, in real life the situations lawyers handle are built largely on process, not just substance. Indeed, in many situations the law is relatively straightforward. Having a strong command of the process can mean the difference between doing well or just doing.

When I was a general counsel, I helped negotiate a complex arrangement with a licensor. The basic license agreement was straightforward. We had the license form worked out and most of the substantive terms were not changing. The real key to this license was the exhibits. We had a complicated, large set of exhibits. A lot of the work in getting the license done related to these exhibits, which meant a lot of process control. The license was worth a lot of money to our company so getting the process right (or messing it up) had significant consequences – as in, something that might require disclosure in our securities compliance documents. We also had time pressures to get the license done, putting further pressure on the process. At the end of the day, everything worked out, we met the deadline, and my client was satisfied with the result. Getting there, however, was 80% process and 20% substance.

The same teaching issue I talked about above carries through all substantive classes. Evidence is taught as concepts of law, and yet much of evidence revolves around process. Securities law is covered with process challenges, and the same is true for intellectual property, estates and trusts, and so on, but all of those classes are taught from a substance perspective with the hope, I guess, that practicing lawyers will retrain the students when they hit the real world.

Obviously, the substance of law is important. But, teaching substance as if it exists in a sterile world separated from process results in a very distorted view of law. It builds in the habit of thinking that substance and process are distinct, separate parts of law and not part of an integrated whole. Imagine if doctors were trained solely from books and without any laboratory or clinical component (and I’m not arguing medical school is the model, just pointing out a couple of obvious differences). Using clinical training as part of teaching lawyers, as Michael Dillon suggests, would help, but I don’t think it is the entire solution to the inefficiency problem.

Re-thinking how law is taught will be difficult for most law school professors. They have relatively little exposure to the practice of law, even less to the practice of law today (versus many years ago when they graduated), and virtually all of them have no exposure to lean thinking in combination with the practice of law. It would be interesting to see what percentage of law school faculty have gone through any training on modern legal services delivery, including project management, process improvement, and technology.

Legal Efficiency Training

The good news is that this one issue could be fixed at little or no cost. The first step is teaching law school faculty about the modern practice of law. Seminars, workshops, and other training tools can accomplish that goal. The second step is to have law school faculty start modifying existing courses to reflect these modern practices and incorporate them as part of the core learning experience. My son is taking accounting, yet they don’t have him using accounting ledger paper from the 1930s to learn double-entry bookkeeping. If he can learn the basics of accounting with Excel, I’m not sure why law students can’t learn the basics of contract law in combination with Word and contract automation. Third, law schools should start thinking about law in the context of problems presented by clients. This isn’t a novel suggestion, but it still is a good one. Some classes should be integrated classes where students confront problems that require cross-functional thinking. Three years of training students to think one-dimensionally creates habits that are difficult to break. Problems don’t come neatly sliced into property law, tax, or other substantive areas.

The last point involves a personal pet-peeve, so I’ll share a story about it. As a corporate general counsel, I spent a fair amount of time on tax issues. The companies where I worked had global businesses, so we had plenty of international tax “opportunities.” On more than one occasion, partners from whichever of the Big Four accounting firms my company used would come to us with a tax proposal. They would have spent a fair amount of time working on the proposal and consulting with our tax team. They would invite the corporate lawyers to an overview presentation. We would identify several fatal flaws in the plan almost immediately. Those flaws were missed because the tax practitioners knew nothing about and didn’t take the time to ask about, the corporate law aspects of what they proposed. We would suggest many ways to work around the problem, and usually, after much additional work by the tax practitioners, we would land on a solution. I would always ask why the tax practitioners didn’t come to us right at the start, knowing that the key to the entire plan depended on corporate work, so that we could develop an integrated solution that worked. They always responded, “we were taught to look at the tax issues and let someone else think about the rest.” Not very efficient.

A Different Type of Training

The type of training I’m advocating does overlap with what some others (e.g. Michael Dillon) have suggested. But, it is more. If you teach inefficiently and teach how to do things inefficiently, students pick up on that and model that behavior. Combining teaching with practical experience helps (assuming the practitioners are efficient). Nevertheless, teaching itself needs to change.

We all know the oft-repeated quote attributed to Albert Einstein, “Insanity: doing the same thing over again and expecting different results.” If we continue teaching law the same way (based on inefficient service delivery models), and yet expect different results, we shouldn’t be surprised when they don’t materialize. We should start teaching law as an efficient professional service, which will build change from the bottom up.

Employer Sanctions Law Spawns Thriving False Document Business

On May 26, 2011, the United States Supreme Court ruled 5 to 3 upholding Arizona’s employer Sanctions Law.

This is a victory for Governor Jan Brewer who posted on her Facebook page, ” A victory today for the State of Arizona in our battle against illegal immigration! The US Supreme Court upheld Arizona’s employer sanctions law that penalizes employers who hire illegal immigrants. Again, a great victory in our ongoing battle!”

DHS Secretary Janet Napolitano signed this law into effect while she was governor of Arizona in 2007. The Chamber of Commerce along with various other organizations disagreed with the law and filed suit.

Yet the Federal Government already has an Employer Sanction Program

In 1986 the Immigration Control and Reform Act of 1986(IRCA ’86) was passed into law by Congress. This federal law required ALL employers to verify the identity and right to work of all employees. There were employer sanctions put into effect that allowed fines to be levied against employers who used illegal aliens in their businesses.

IRCA ’86 Causes illegal entries to plunge

I was with the United States Border Patrol stationed in Uvalde, Texas when IRCA ’86 was enacted. After this law went into effect, apprehensions of illegal aliens plummeted. Most of the Border Patrol Agents I worked with then believed this law would eventually make our duties obsolete and our agency would become overlooked and underfunded. Boy was I wrong.

Employer Sanctions slowly faded away with more regulations being brought against the investigating agencies. Fines became more difficult to obtain and ways around it were quickly discovered.

IRCA ’86 is still in effect. An employer has to fill out an I-9 for every new employee and verify the employees’ identity and employment eligibility. IRCA ’86 has the potential to virtually solve the illegal immigration problem yet twenty-five years later, the law is virtually ignored by both employers and illegal aliens.

Fraudulent Green Cards and Social Security Cards Readily Available

In 1997, I transferred to the Pasco Station of the United States Border Patrol. This was an interior station set in the heart of a large labor-intensive agricultural area. I quickly found that almost every illegal alien I encountered had a fake Resident Alien Card and a fake Social Security Card. Lawfully Admitted Resident Alien Cards are commonly referred to as Green Cards.

Employers discovered that when their employees filled out I-9s, verifying identity and employment eligibility, the employer only had to make a “good faith effort” to confirm the documentation presented was valid. They were not considered to have the expertise to distinguish a valid card from a fake one. Therefore employers can legitimately accept a fake green card and fake social security card and not be violating the law.

At the Pasco Border Patrol Station I found that any alien who arrived in the area could obtain a false green card and a false social security card within a day or two of arrival. Numerous individuals and entities were supplying these fake documents. One of the most ingenious suppliers was a large Taco Truck. A subject would enter the front door, have his photo taken and by the time he left the rear of the truck, he would have a fake green card and social security card with his name and birth date on it. Ingenuity at work.

I seized hundreds of such fake documents over the six years I was stationed at the Pasco office while my partner there had a large box jammed full of these documents.

E-Verify Could Make Law Effective

The government has created programs such as E-Verify for employers to use to validate documents presented but it is voluntary for employers to use the system. This program would severely curb the use of illegal aliens if it were mandatory.

Arizona wouldn’t need an employer sanctions law if the United States would enforce their own law that has been on the book since 1986.

IRCA 1986,www.uscis.gov
Chamber of Commerce of the United States v. whiting www.supremecourt.gov


Lawyers Must Overcome Their Fear of Tech

Imagine a conference attended by many legal industry leaders. This conference includes chairman of the largest firms, CEOs of the biggest non-law firm businesses, appellate court judges, deans from major law schools, and other notable figures in the legal industry firmament. Now, imagine that this august group has assembled to talk about technology and its future, near-term and long-term, for the legal industry.

If you are having some trouble imaging what I described, I’m not surprised. That type of gathering just doesn’t happen in the legal industry. But, it happens all the time for clients. The CEOs attending these conferences are not just the CEOs of tech companies (though some are), they are CEOs of Fortune 500 corporations in businesses that are not primarily tech related. The schedule of a Fortune 500 CEO is packed, day and night, so if CEOs choose to attend these conferences it tells you tech is a big thing. As I write this, some of the legal industry players are attending Bloomberg BNA’s Big Law Business Summit 2015. While a start, this summit doesn’t get us where we need to go.

The professional service firms, other than law firms, that advise the Fortune 500 CEOs spend a lot of time thinking about and studying technology. They hold conferences about it and write serious papers studying the potential impact of it. In particular, they develop ways for clients to leverage technology. These firms don’t do this work out of the kindness of their hearts; they do it because they see commercial value in doing so. If it is important to their clients, it is important to them.

Technology is an Opportunity, Not a Threat

Within the legal industry, however, tech is something most lawyers avoid. Very few of the individuals I listed who would be the candidates for an industry tech conference know much about tech. They know it is a large budget item for law firms and less so for law departments, but they rarely know enough about tech to understand the real benefits and risks to the firm. Gather the industry leaders together, and the conference may reveal more about what lawyers don’t know than facilitate industry growth.

This gap between the legal industry and clients raises many issues. If clients put tech as one of the top five issues they worry about, and most CEOs place tech there, and yet lawyers place tech low on the list (if it even makes the list), isn’t there a disconnect between lawyers and clients? It isn’t as if tech raises few issues (cybersecurity and privacy, to name just two). Tech has the potential to disrupt every business out there. How do you act as a trusted advisor to a client, when you have almost no understanding of what worries your client?

Let’s consider one piece of tech: blockchains. Because the people who read this blog tend to be more knowledgeable about tech, I’ll guess that two or maybe three out of every 10 readers could describe blockchain technology, at least in a non-technical sense. According to Wikipedia, a blockchain is a:

distributed data store that maintains a continuously growing list of data records that are hardened against tampering and revision, even by operators of the data store’s nodes.

If that sounds too techy, then try this definition:

The blockchain is a simple digital platform for recording and verifying transactions so that other people can’t erase them later — and anyone can see them. “You can think of the blockchain [as] an ‘append-only’ ledger. You can only write to it, you can’t delete it,” Peter van Valkenburg, the director of research at Coin Center, told Gizmodo… Bookkeeping tools generally require a bookkeeper, but with the blockchain, there is no head honcho bookie. It’s a decentralized, crowd-powered spreadsheet, relying on cryptography instead of a central authority.

Still confused about blockchains and wondering why they would interest you? Consider this. One of the Big 4 audit firms has been studying the business opportunities of block chains for about 18 months. Recently, it confirmed that it is “trialling blockchain technology to automate client auditing and crowdsource its consulting efforts.” Of course, this professional services firm isn’t alone in looking at blockchain business opportunities. In the financial community, companies have been looking at blockchain technology for quite some time. That makes sense, since blockchains use cryptocurrencies (think Bitcoin).

What about other clients, such as retailers? They are looking at blockchain technology for things like loyalty card programs. Auditing firms look at it as a way to reduce auditing costs. Consulting firms consider it a way to connect services requests with service providers. Where databases are used, blockchain technology may provide advantages over existing technologies. For lawyers, blockchains present substantive opportunities and legal service delivery opportunities. So if the CEOs of major financial institutions, Fortune 500 corporations, and non-law professional service firms (and I use non-law loosely here) are spending time on this tech, don’t you think it may be worth the time of the legal industry?

Embrace the Future

Blockchains are not all that is happening in technology, but they serve as one example of the growing chasm between lawyers and their clients. Clients need lawyers who are curious, who are passionate about learning what is happening in the world and then finding ways to use it to help clients solve problems with legal dimensions. Clients are becoming increasingly resistant to using lawyers who can do no more than present old ideas warmed over in new packages. Lawyers who do no more than deliver warmed over ideas add little value.

Lawyers who want to be viewed as leaders in their substantive areas should be thinking more broadly. What will be the impact of emerging technologies, such as blockchains? How could those technologies impact clients’ legal interests in those substantive areas? How could the technologies be used to mitigate legal concerns or add greater protection to clients’ interests? Law firms can assemble cross-substantive area teams focused on the legal implications of technologies – blockchains – for clients in particular industries. For example, a firm could form a Retail Industry Blockchain Working Group. The Group would focus on the implications of blockhains on legal industry legal issues and develop preferred courses of action. Or, the firm could expand the Group to include retail clients and work on industry approaches. Lead that Group and watch who retailers call when they have a blockchain issue.

Blockchains aren’t the problem; they are one symptom of a much bigger issue. Lawyers are content to ride out the past. Whether in firms or law departments, lawyers spend their time debating bills and other mundane aspects of practicing law. Money is important, but when did money become the central focus of legal services? Lawyers who deliver real value, who enable their clients to reduce risk and achieve their strategic objectives, don’t worry about money. When the value is there, clients appreciate it and will pay a reasonable amount to get it. When the value isn’t there, the only thing left to argue about is money.

Technology isn’t a threat to lawyers; it is a threat to legal service delivery practices that have outlived their usefulness. Technology is an opportunity for lawyers who know how to embrace it, help their clients navigate it, and who use it to augment their judgment to provide clients more value than either technology or lawyers alone can provide. Technology should be a call to action among legal industry leaders – embrace technology and lead clients into the future.

Communication Law

The study of Communication law has been nation specific for many years. However, freedom of speech, press, and censorship are different in different nations around the world, therefore creating different rules and laws in each nation. These different policies are carried out through the International Telecommunications Union, which looks at the rules relating to broadcasting around the world. Each country/nation has different policies, but the law has to differentiate how to pass the boundaries from country to country.

One example of these issues deals with freedom of expression. According to Rodney Smolla, freedom of expression in a nation relates to open culture and how the particular country will defend human expression and conscience, which protects freedom of speech, press, religion, association, and human endeavor. If one were to look at the United States and the policies within its borders, one would realize that this is how the United States deals with citizens and their rights. However, if one looks at the international level of freedom of expression, it varies from nation to nation.

Democracies in different parts of the world are not set up the same way as the United States. In the USA, expression can only be punished if injuries to people or property occur, libel or slander, fraud of advertising, copyright, and trademark take place. As Huffman and Trauth state, this laissez-faire attitude in America can be contrasted with Great Britain, Canada, India, Nigeria, and Germany. For example, in Germany there are very strict laws on extremist political speeches, which includes writing or broadcasting racial hatred and inhumane acts of violence. Other nations have also set up parameters on such expressions just as Germany has done. However, in the United States, it is still impossible for American citizens to conceive this occurring within their borders.

Another area of the law that affects the world deals with moral-religious censorship. The United States finds obscenity of language to be offensive and certain policies affect what citizens can say or do in public situations. If one looks at Germany, obscenity is not as central as it is in America. Sweden and Holland have hardly any laws that restrict obscenity and both have growing pornography industries. The same applies for Denmark, where adult pornography is not looked down on. In Italy, a general libel position presides for pornography. In most of these nations the obscenity laws are quite vague if there are any at all.

Some of the organizations and boards that affect international law include the World Intellectual Property Organization, World Trade Organization (WTO), INTELSAT, and the International Telecommunication Union. These organizations help to guide laws and policies over the world. In order to make sure that information is passed from nation to nation correctly, the International Telecommunication Union needs to be able to pre-screen the information and transfer the material around the world. The WTO sets the tariffs and trade laws for each nation and allows for proper trade from nation to nation. INTELSAT works with 143 nations and is a wholesaler for satellite communications and has the ability to link the world’s communication networks together. Without organizations like these, the world wouldn’t have as much information about the world and wouldn’t be able to be as informed as they are today.


Top 10 Health Foods for 2020

/2020 brings a new decade and an opportunity to enhance lessons learned from the past. These foods are heavy in the vegetable/fruit category. Feel free to add in your favorite game bird, or four footed creature. Thanks to research by the National Center for Complementary Alternative Medicine at the National Institute of Health.

This tropical fruit in the past has suffered a bad reputation. Transdermally, coconut absorption can be as effective medicinally as when eaten. Thai food recipes for Tom Kha soup use coconut in ways that comfort and soothe. Fresh young coconut when available has potassium for active exercisers. Coconut oil makes luscious popcorn.

The best of Brazilian superfoods, here comes, Acai, with it’s varied phonetic transmutations. The anti-oxidant power captured in a tonic that fights and prevents cancer growth. Consume as much as you like of this berry. It’s filling quality makes no assumptions about your past indulgences with processed fast food sandwiches.

Often touted as a cure for vomiting, ginger cools an inflamed being. Too much emotional baggage from a decade of political and social unrest? Pacify those “seeing red” moments with a cup of ginger tea, or try using ginger in your juicer for a quick bite in the sweetness of a fruity cocktail.


Eat your greens! Seriously, this plant is so prolific you cannot wonder about all its uses. Kale pesto, kale cheese dip, kale bread stuffing; these are only the tip of iceberg that supports eating more of the green stuff. The diversity of species for kale makes finding one to grow in your climate a relatively easy endeavor.

Sushi continues to be a favorite dining past time in cosmopolitan meccas worldwide. Fish oil has been given new consideration for heart health, and those sad days of no sunshine. Try all colors and flavors of this spicy fish egg and choose your new favorite this year.

In the age of food allergy assumptions and questionable sources, a pasta safety net is the quinoa grain. When soy, wheat, dairy or nut allergies drive you away from accessing enough carbohydrates, try the baking friendly quinoa. Spicy salad mixes make quick side dishes for lunches, although the theme for this decade is more humble and less frenetic in the land of healthy living.

Again, with the greenery! Raw foods and spinach have become terrific friends. Low iron in your blood and folate deficiency is easily boosted with spinach. Spinach grows hardy and harvests soon for mass production. Popeye that sailorman knew a trick or two after all.

This delicate tangy fruit is prized as a woman’s essential. The glory of this fruit is its chemistry. They contribute to a more alkaline PH in your body’s ecosystem. This inhibits growth of bacteria or infections keeping your immune system healthy. It can’t be all that bad for males either.

Back to black. We’ve argued and harangued (enough already) over the value of coffee. It’s a go on taking this nectar of the gods into the new decade. Robust flavors and fair-trade roasters support economic growth to small villages, both here and abroad.

Maple Syrup
A sweetener described as something old, something new by way of our native history. The good old standby for sugar is a northern tradition, which in so many ways is perfect and beyond refinement. The expense will repay itself in this clever tree medicine that clearly enhances any plain, dry breads or whole grains. Forget pancakes, syrup is essential in sauces, salad dressings, and yes, even chicken barbecue.

What’s Old is New Again: Gardening for Health, Wealth and Food Security

In hard economic times, people look for ways to supplement their food costs and increase security by raising their own food. This has taken on a whole new experience as gardening becomes a high tech low-work experience.

Some basic definitions and links:

Permaculture is the permanent growing of fruit, nuts and vegetables in a landscape. Low growing grasses are planted for paths and double as animal grazing areas.

Urban farming (see: http://www.youtube.com/user/dervaes?ob=1) in which a family grows nearly 80% of all their food from a lot less than .25 acre and sells the rest.

Square foot gardening is maximizing garden space. See: http://www.squarefootgardening.com/

Areo-gardening is growing plants in air. Nutrient based water is sprayed on the root system using an aerator, something many aquarium hobbyists are familiar with. Light is usually added to extend growing. (See LED lights for low power consumption.)

What you can grow in air – any small plant like cherry tomatoes, lettuces, cabbage, cauliflower, strawberries ( we recommend ever-bearing), herbs, some beans and wheat grass for juicing. Large plants require support and light has a hard time accessing the bottom of the plant so tomatoes, root crops and corn are not ideal.

Hydro-ponics is when the plant is floated in nutrient based water. Sometimes fish are kept in the water (tilapia, crayfish, shrimp and catfish). As you can see on Stealth Hydro – most of the parts are simple plastic tubs or pipe with holes for plants, a pump, a light and sometimes it is all placed in a reflective cabinet. Again, space & lighting are the limiting factors as to what you can grow.

Sprouting is the easiest since all you need are seeds, a jar with a screen top and water. Picking your favorite seeds for sprouting and growing the plants to maturity to collect the seed yourself can give you an endless supply of the healthiest food on the planet.

Potted plants are also good for space-saving food production and recommended for larger plants. Growing citrus fruit trees, bananas and even green beans are possible when either light is provided or placed in a sunny window. Vine plants like passion fruit, kiwis and teas are also ideal potted plants. See Video – SurvivingLA for a self-watering potted plant and EarthBox

Mushrooms can be grown with little light needs, not much space and usually just need water.

Chickens? If you have ever wandered through antique stores and seen the old kitchen hutches with chicken wire then you have seen how the old farm wives kept chickens inside their kitchens to grab an egg when they needed. In turn the chickens got food scraps. Hens are sweet and can be kept in bird cages or the old style hutch. They will sing when being fed and are a delightful pet as well as provider! They only require a nice bed of straw on the bottom of their cage – which can be turned into the potting soil as frequently as needed or fed to the worms. We estimate 2 – 3 hens per person in a household.

Worms! If you don’t keep chickens to feed food scraps to – try a kitchen worm bed.

Here’s one: Worm Composter

And here’s more info – Make it Yourself

Whether you live in a city apartment or do large scale farming – food production is in your hands when all these technologies come together to make food production easy, fun and rewarding.

Living in the Wild West of Law

I recently helped moderate part of a webinar hosted by Viewabill during which we discussed a broad range of issues related to using metrics. The panelists were a combination of in-house and law firm lawyers, with some legal operations folks added to the mix to ground us in the real world. The discussions were interesting, and highlighted our evolving views that the practice of law is, and should be, more metric driven.

At one point, we wandered into a discussion about what metrics and standards each participant is using as key performance indicators. It quickly became clear that the answers were all over the map. Each participant had his or her favorite metric, but we had few overlaps. I described the world of legal metrics as the “wild west” right now. We work in an environment where we really don’t have a set of core metrics we can look to and use to compare performance on an absolute (us versus us) or relative (us versus others) basis.

Lawyers have practiced for a long time without a core set of metrics. At first blush, you may think the lack of a core set is not a big deal. But, lawyers also did not focus on efficiency for a long time. In the modern legal world, we are focusing on efficiency and metrics have become not just important, but essential.

To be clear, I don’t think everyone needs to use the same metrics across the board. Each firm and each company will have things important to them and will want to use metrics to measure those things. But, it would help companies and firms alike if there were some core metrics everyone could use both to measure period over period change and to measure how each is doing compared to others.

What are those metrics? That is the open question right now. I have some ideas as do others, but let’s not focus on the specifics. There are some efforts under way to build a core set of metrics and I think we will get there as long as we keep in mind the benefits to all from having the set. The point of establishing core metrics is that we all start using a common language for measuring what is happening in legal service delivery and, more importantly, how we are improving it. Right now, without that common language, discussions about improvement are a confusing mish mash of incompatible tongues.

It really isn’t strange to want industry-wide common metrics. Certainly for corporations, law departments are probably the only department that doesn’t operate in an industry with common metrics. Some lawyers may prefer the lack of accountability, but most clients recognize those fun days are over.

As the legal industry evolves it also needs to mature. For law, that includes developing and using a cores set of metrics that helps all of us keep improving.

UK Innovative Lawyers Show US the Ways Big Law Fights Back

The FT Innovative Lawyers honors for 2014 have been released, so it’s time to peer across the pond and see what our friends in the UK have been doing. This look becomes more interesting each year as competition heats up with the UK’s adoption through the Legal Services Act of 2007 of the Alternative Business Structures (ABS) model.

As I flipped through the honorees in different categories, and looked at the contenders for and ultimate winner of the Legal Innovator of the Year award, several things stood out. I should note that the award goes to an individual, not a firm. But, I talk about the firms below and not the individuals, in part because I believe the environment must be somewhat open to innovation for the individual to succeed.

I’ve listed below the things that stood out to me with my comments. The list is not ordered, which partly reflects my drafting and partly reflects the eclectic nature of what is happening in the legal industry.

  • Of the ten firms with contenders for Legal Innovator of the Year, four (Jones Day, Latham & Watkins, Orrick, Sidley & Austin) were US-based law firms. FT’s recognition of US legal innovation will come out in December. It will be interesting to see how many, if any, of the same US firms appear on that list. It is too soon to tell whether any of these firms are becoming global innovators, or if innovation is still the domain of isolated partners.
  • One firm with a contender (Mishcon de Reya) has applied to be an ABS. Mishcon is one of the first if not the first major law firm to apply for ABS status.
  • None of the firms with contenders are in the Magic Circle group of firms (Allen & Overy, Clifford Chance, Freshfields Bruckhaus Deringer, Linklaters, Slaughter and May). There are many other awards more specific to practice areas and some Magic Circle firms do appear on those lists.
  • Two of the ten individuals contending were women (Joanne Wheeler, Susana Almeida Lopes), and one of these women (Joanne Wheeler) won the Legal Innovator of the Year Award.
  • One of the ten firms with contenders (Eversheds) had a service delivery model that brought it to the judges’ attention. Eversheds has been known for its single-supplier deal with Tyco. That deal, which includes metrics and project management, has expanded and Eversheds has struck more such deals. This structure goes well beyond convergence. We now see a model under which one firm handles or manages the legal services for a company, just as IBM might manage the IT services for a company.
  • The innovations that put the individuals in contention were diverse. The winner (from Bird & Bird) has built a space law practice. Several others were in contention for law firm or talent management initiatives.
  • Practicing law and being a good place to work can work together. One firm (Mishcon) was listed in the Sunday Times 100 Best Companies to Work For – for the past five years.

I believe competition is having an impact on the UK legal market, and is, at least in part, driving some of the innovative activity now appearing in descriptions of the contenders.

Lawyers are professional skeptics, so I’m sure many reading this post and the FT Innovators list will say there is nothing new here. I respectfully disagree. Although the list may represent the tip of the spear, change is moving lawyers and law firms forward to do things different and in some cases ahead of the market. When the December awards for US firms come out, we can compare how far and fast things are moving in the two markets. Anyone want to make bets about which country will be in the lead?

Design and the Legal Industry

Stop and think about design in the legal industry for a moment. As with most things in the legal industry, design has not changed for a very long time. Prior to 1961, most typewriters used a Courier font. In 1961, IBM introduced the Selectric typewriter with its replaceable typeball. Typists could change the ball, switching between Courier and Times New Roman typefaces (with the Selectric II, they also could change between 10 and 12 characters per inch). Lawyers moved to Times New Roman and never looked back.

This is what Matthew Butterick, a lawyer, Fastcase 50 winner, author of the book Typography for Lawyers, and founder of the website typographyforlawyers.com says about the Times New Roman font:

When Times New Roman appears in a book, document, or advertisement, it connotes apathy. It says, “I submitted to the font of least resistance.” Times New Roman is not a font choice so much as the absence of a font choice, like the blackness of deep space is not a color. To look at Times New Roman is to gaze into the void.

Today, lawyers live in two worlds. One world, mostly the judicial world, often requires that we use Times New Roman font. Specifying the font restricts the creativity of lawyers who sometimes try and wedge more words into the space allotted for legal briefs. Outside the judicial world, however, lawyers generally may do what they want, and yet lawyers typically “connote apathy” and stick with Times New Roman. Beyond typefaces, legal document lack color, graphics, and even a hint of design.

Good Design leads to Delightedness

Design is important. Outside the legal industry, design carries great weight since it can make the difference between successful and unsuccessful products. Designers focus on what separates the good from the bad. At a recent Fortune Brainstorm Tech conference, executives from leading software companies talked about how empathy and delight define good from bad.  Without empathy, the user doesn’t engage with the product. Frustrating experiences defeat user delight.

Using good design in legal documents can help accomplish many of our goals. Good design helps clarity. We want clients and opposing parties to understand our documents. Clients need to use contracts, and clear and engaging documents will help them do so.

Good design helps with readability. In an age when adult literacy is declining, it is ever more challenging for lawyers to create documents clients are willing to read. We compete with smartphones, YouTube, Netflix and a host of other content sources. The less distance we put between our content and the competition’s content, the easier it will be to draw our clients into engaging with what we do. We don’t have to create 30 minute sitcom contracts, but a contract that looks more like it came from a magazine than a 1960’s Selectric typewriter will take us a long way towards clients believing we want to delight them.

Change is Easy

Using the same font, even one that causes us to “gaze into the void,” is not the biggest challenge in the legal industry. But, it does speak to our creativity. Even though we have no design restraint on most of what we do, we refuse to deviate from a typeface used for over 50 years that connotes apathy. In this modern era where it is incredibly difficult to engage audiences, we choose to use the path of least interest.

Fortunately for all of us, updating our legal designs does not take much effort. Changing fonts is easy to do, and through the Internet and advisors such as Mr. Butterick, we have a wealth of advice on what to do. Modern software permits us to add colors to titles, callout boxes to emphasize certain points, use formulas rather than text for precision, and add many other design elements to our documents. We have extensive experience putting legal terms in documents that contain other elements (advertisements, instructions) so we know how to point the user to what is helpful and what is binding. Now is a great time to transform legal documentation from apathetic to delightful.