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The e-mail conundrum (Pt. 2 of 3)

Posted by Jack Bostelman on Aug 05, 2012 | 0 Comments

This is Part 2 of a three-part post. In Part 1, Keith Mayfield, chairman of an AmLaw 100 firm, pondered the risk and waste created by the lack of a comprehensive e‑mail filing practice at his firm. In today's part, Keith pursues solutions to that problem.

A new approach to solving the e‑mail filing problem

After speaking with other law firm leaders and some outside consultants, Keith decides that his first step should be to identify the various reasons behind his lawyers' non-compliance with the firm's e‑mail filing policy. This involves interviewing a sample of lawyers of different seniorities, offices and practice areas. It turns out there are many reasons, and therefore many solutions to be devised. No single solution applies even to one lawyer. The insights that come out of these discussions are:

  • Partner ignorance about filing methods. Partners are unaware that the firm's existing software can link a lawyer's client/matter Outlook folders to corresponding matter folders in the electronic filing system. After the link is set up, copies of the e‑mail will reside both in Outlook and in the electronic filing system. At the end of the matter, the lawyer can delete the Outlook folder to free up Outlook storage space. The e‑mail remains in the electronic filing system.

The solution for this problem is training and support for the partners, promoted by senior management in order for it to be taken more seriously and supplemented by roving trainers giving one-on-one instruction.

  • Associate privacy concerns. Many associates deliberately avoid linking their Outlook client/matter folders because they don't want others to be able to see all their e‑mail for a matter but do want all that e‑mail to be in a single place for ease of searching. Other associates don't care about having their e‑mail in a single location, but aren't willing to make an e‑mail-by-e‑mail decision whether to file when they consider moving an e‑mail to a client/matter folder.

Part of the solution for this problem is to use e‑mail filing software that allows individual e‑mail in an Outlook client/matter folder to be marked for linking to the e‑mail filing system, rather than all the e‑mail in the folder. That way all the e‑mail can remain in a single location (the Outlook client/matter folder) for ease of searching, yet some of it (hopefully, the portion that matters) will still be filed. The downside of this approach is that associates must make an extra click (and extra decision) regarding whether to file each e‑mail, in addition to moving the e‑mail to a client/matter folder. The firm could consider making the default be that the e‑mail will be filed unless the user clicks a “do not file” button.

The most important part of the solution, however, will be giving associates training and sending them a strong message from senior management about the importance of filing substantive e‑mail. This message should be reinforced by individual partners running each matter, which will require senior management to expend considerable effort bringing partners on board.

  • Difficulty filing e‑mail on send. Lawyers don't routinely file sent e‑mail because they don't want to be bothered (or forget) to select a client/matter each time they send. Many of these lawyers do file their received e‑mail using the folder linking method. Their non-compliance is based on inconvenience, not privacy.

This problem could be addressed with a technical solution. Some new software has predictive features that suggest the proper filing category based on where related e‑mail (such as those involving the same recipients) has been filed in the past. A suggestion box pops up for the lawyer to confirm or edit, making it impossible to forget and often more convenient to address than to dismiss. Furthermore, once the software has “learned” enough, the lawyer may become comfortable turning off the yes/no screening option and allowing sent e‑mail to be filed automatically.

  • Lawyer ignorance about .PST files. Lawyers don't realize that .PST files aren't backed up.

One way to address this problem is for Keith's IT Dept. to block the creation of .PST files, which some firms have done. Imposing that policy after the fact may require strong support from senior management to divest lawyers of their existing .PST files.

If .PST files cannot be banned, it would help to train lawyers about the lack of back-up for .PST files and instruct them to use traditional personal Outlook folders that are not linked to the electronic filing database. These wouldn't be available for viewing by other users, but they would be backed up. Also, the IT Dept. could gain access for discovery purposes. Those folders would remain subject to the user's overall storage limits, though, which could lead to user resistance and cause the firm to reconsider banning .PST files.

Further interviews with lawyers using .PST files will reveal the types of e‑mail being saved in .PSTs and the reasons for doing that. In some cases the e‑mail may be truly personal. In other cases, the lawyer's goal may simply be to remove e‑mail from the Outlook storage limits. The approaches describe above, such as linking Outlook client/matter folders and deleting them after the matter is concluded, can address those needs as well, while allowing the e‑mail to be filed. Training and a strong message from senior management will be the keys to making this work.

Changing the culture is important – and difficult

After consulting with other leaders and some consultants, Keith also realizes that getting lawyers to routinely file their e‑mail is at least as much cultural as technical. “That's why the problem's hard to solve,” he muses to himself. Changing culture requires visible involvement of senior lawyers – the ones the other lawyers respect. Those respected lawyers aren't always the best role models for subjects like this. They may not consider it important, or be unwilling to practice what they've been asked to preach.

Senior management will first need to reach out to practice group leaders, to get them on board. Part of that effort will involve explaining how their practices can benefit from better e‑mail filing practices. For example, all lawyers working on a matter would be able to search and view relevant e‑mail on the matter, enabling them to collaborate more effectively. With client/matter folders, each individual lawyer's e‑mail would be better organized as well. Part of the effort will involve training on use of the software – emphasizing how easy it is to use. If it's not easy to use, new software should be acquired. A special training effort should be made for partners, including roving trainers and one-on-one sessions offered on a regular basis.

For the culture change to take hold, it will be important for these practice group leaders to discuss and endorse the e‑mail filing policy in their practice group meetings. They also need to send the message to their fellow partners to emphasize the importance of e‑mail filing with associates as they manage matters.

From other initiatives, Keith knows that accountability is an essential element of any major change within a law firm. A key to success for the e‑mail project will be developing a monitoring system to identify non-filers – in other words, lawyers who file no e‑mail at all for a matter in which they record at least a certain number of hours. Other reports to identify under-filers may also be possible, especially if lawyers start to game the system by filing only a single e‑mail for each matter. Individual follow-up from a partner (not an administrator) should occur for non-filers. This subject should also be addressed in associate performance reviews. Word will spread, especially among associates, that e‑mail filing is to be taken seriously.

Partner accountability will be more difficult in this area, as it often is in other areas. In addition to describing the importance of the initiative at partner meetings, individual follow up with non-filers by practice group heads or senior partners may be necessary. Follow-up surveys to understand the reasons behind non-filing by partners may also be needed. In many cases, these will reveal a need for more training. Changing the practices of partners may be slower, but over time it will happen, especially as associates with the right habits become partners.

It's gotta work on mobile devices

Keith doesn't realize it, but one of his consultants points out that any e‑mail filing system that doesn't work on Blackberries, iPhones and other mobile e‑mail devices will fail. This is due to the substantial percentage of e‑mail activity conducted on those devices, especially by more senior lawyers. Most lawyers will not take the time when back at their offices to review their sent and received e‑mail for filing.

Fortunately, the folder linking system will generally work on all mobile devices, because this filing is handled by the e‑mail server in the office, not the mobile device itself. That approach, at least, will address received e‑mail. To the extent incoming e‑mail is a reply, folder linking will generally also file the original sent e‑mail, because it appears at the bottom of the incoming e‑mail. The filing of sent e‑mail that has no reply is probably a hole that must be accepted for now. It would be possible to have an automatic rule created that moves all unfiled e‑mail to a special folder, but the lawyer would still have to review that special folder when back at the office, which is unlikely to happen.

Over time, the vendors of e‑mail filing software may develop applications for some mobile devices that mimic their solutions for the desktop. In the mean time, the folder linking system can do a substantial part of the job.

Software aids are improving

Software aids for e‑mail filing continue to improve. Features and ease of use still vary significantly across vendors, though. The accuracy of so-called “predictive” filing is bound to improve, to the point in many cases where the lawyer need not intervene. The vendor currently used by a firm may add better features or improve ease of use to match that of another vendor.

The important point is that software has already reached the stage where software capability should not be the obstacle to getting lawyers to file their e‑mail.

In the next post

In Part 3, we will see how Keith tackles the problem of intrusive all‑lawyers e‑mails, by again breaking the issue into smaller, actionable problems.

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

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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KM/JD Consulting LLC renders impartial practice management advice to law firms on improving efficiency, increasing profits and reducing risk, emphasizing knowledge strategy.

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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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