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The e-mail conundrum (Pt. 1 of 3)

Posted by Jack Bostelman on Jul 22, 2012 | 0 Comments

This is Part 1 of a three-part post. In this part, Keith Mayfield, chairman of an AmLaw 100 firm, ponders the risk and waste created by the lack of a comprehensive e‑mail filing practice at his firm. In Part 2, Keith pursues solutions to that problem. In Part 3, he addresses a different e‑mail problem – how to reduce the flood of e‑mail sent to all lawyers and other broad groups.

A frustrated law firm leader

Keith Mayfield, chairman of an AmLaw 100 firm, is sick to death of e-mail. It's not that there's too much (which, of course, there is). It's the risk and the waste.

    Frustrated leader canstockphoto26238721 300x245
  • Lost client advice. Every hour his lawyers send dozens of e-mails containing valuable client advice and don't save them anywhere central, depriving the firm of needed records and denying their fellow lawyers access to useful work product for their research.
  • Lost research. The same thing happens with internal research.
  • Annoying all-lawyers e‑mails. Intrusive All-lawyers e-mails are sent within the firm many times a day asking who knows the answer to a particular legal question, looking for an outside expert or asking about local or foreign counsel. What's worse, the answers and any follow-up questions aren't seen by the lawyers who are interested or kept anywhere central.
  • Incomplete client files. The e-mail traffic generated during a client matter isn't systematically reviewed, with the important ones organized and saved as a record of the deal, the way paper used to be.

What's worse, Keith has spent lots of money and his IT Dept. has expended much effort installing special software designed to solve these very problems. Nobody is using it, though. The lawyers can't be pried away from Outlook to use the filing software. They won't even use the new filing features his IT Dept. has added within Outlook itself. Most of the software doesn't work on Blackberries or iPhones either.

Keith can't believe there isn't a way to deal with this. “Other firms have the same problems, so why isn't there an answer?” he wonders.

Risk

Keith worries most about the risk. The firm can't readily find a record of the advice its lawyers have given on a matter. If the advice is questioned later, searching the individual e‑mail folders of the lawyers who worked on the matter may not be practical. Moreover, the e‑mail may well have been deleted by the lawyer because of Outlook's file size limitations.

Keith doesn't know it, but he has an even worse problem. Many of his lawyers archive their e‑mail to a type of personal folder in Outlook called a .PST file, because .PST files are not subject to the storage limits of Outlook's mailboxes. The problem is, in his firm these files are stored locally on the lawyers' PCs. Because these files are not stored on the network, they aren't backed up. They also aren't searchable by other lawyers or even accessible by the IT Dept. for discovery purposes except through a physical visit to each PC.

Break down the problem

Keith isn't making headway because his team is thinking of e-mail as one big problem rather than many relatively unrelated problems. Furthermore, they aren't focusing enough on lawyer personality and the way lawyers work on a minute-by-minute basis. They're also probably relying too much on the old paper model in defining their desired process.

It's a different world now

For example, let's break down the steps relating to sending substantive advice to clients. In the old days at Keith's firm a formal paper memo would be prepared and sent to the client (via hard copy, fax or as an e-mail attachment), and a paper copy would be sent to the client file. Even if the sending lawyer failed to send an electronic copy of the memo to the firm's central knowledge database (if it had one), the memo remained in the document management system, where it had a chance of being found in a search.

Today the process happens much faster. The advice, in response to an e-mail or phone call, is quickly composed and sent within the message body of an e-mail, not as an attachment. Chances are, the advice is shorter and more informal, too. Follow-up questions from the client are also most likely answered through similar informal e-mails. Not being created as Word documents, none of these e‑mails is retained in the firm's document management system for future search-based retrieval. None is retained in any physical or electronic client file either.

The lawyer providing the advice is juggling a zillion things. He has no time or interest in taking special steps to “file” the e‑mail, even if those steps require only a few extra clicks. His assistant's not involved, so the firm's process can't rely on her help for filing. The lawyer receives and replies to hundreds of e‑mails a day. He has his own organization system for the thousands of e-mail's he saves.

How lawyers organize their e-mail today

Some lawyers at Keith's firm will allow all their e-mail to pile up in their In and Sent boxes, relying on Outlook's quick search feature to locate an old e‑mail. Others create folders within their Outlook In‑Box for each client/matter and move at least their received e‑mail into those folders, both the substantive ones and the administrative ones.

Keith's firm, like many, has installed software allowing a lawyer to link his client/matter e‑mail folders (viewable only by him) to corresponding client/matter folders in a central electronic database, avoiding the need for the lawyer to take any extra steps to achieve filing. Even with this aid available, though, most lawyers at Keith's firm don't link their folders. We will learn why in a moment.

Other issues also get in the way

Cultural issues are also a factor. Before e‑mail, everyone in Keith's firm was used to sending paper to a client file. They were trained to do it from their first day in the office. All the partners and senior associates did it. Associates would get yelled at if someone couldn't find an important document in the client file. Good software for e‑mail filing has become available only recently. The culture of filing e‑mail hasn't yet been established at Keith's firm. In fact, to the extent there is the start of a culture, it's among the more junior lawyers, who are more comfortable with the technology, rather than the more senior lawyers, who would be in the best position to influence lawyer behavior.

Finally, training is an issue. Training in this area is like painting a bridge – it needs to be a relatively continuous process. Keith's IT Dept. at first treated e‑mail filing as a one-time training event when new software was rolled out. Later, when they realized periodic re-training was needed on e‑mail filing and other technical tasks, they ran into the problem that lawyers wouldn't attend, especially for something that wasn't billed as new.

In the next post

In Part 2, we will learn how Keith approaches the solution to his e‑mail filing problem, by breaking the issue into specific problems on which action can be taken.

[Photo credit: © Can Stock Photo Inc. / wacker]

About the Author

Jack Bostelman

Jack Bostelman is the president and principal consultant of KM/JD Consulting LLC. Before founding KM/JD Consulting, Jack practiced law in New York for 30 years as a partner of pre-eminent AmLaw 20 firm Sullivan & Cromwell.

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Before founding KM/JD Consulting LLC, Jack practiced law in New York for 30 years as a partner of pre-eminent AmLaw 20 firm Sullivan & Cromwell.

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