The times they are a’changin’

It’s the end of the law as we know it…

Posted on April 8, 2009. Filed under: Social Media, The times they are a'changin', Uncategorized, Web 2.0 |

Many lawyers may be unwilling to face the music, but the legal profession is undergoing a dramatic transformation even as we speak.

I’ve believed this for a while and was thrilled to hear Richard Susskin’s brilliant keynote speech at the ABA’s TechShow last week in Chicago.  His speech was the highlight of the event for me.  His main points resonated with me and it was wonderful to hear someone speak (with a British accent, no less!) of many of the very issues I’ve been mulling over this past year.  And, even better–he gets it–he really gets it!

First off, let’s dispel some misunderstandings that have occurred as of late in the legal blogosphere regarding his speech.  My round up of comments at Legal Tweets was not intended to be all inclusive, nor was it intended to mislead.  Rather, it was simply a list of tweets that I found to be most interesting.  The round up certainly did not accurately summarize the main points raised during the keynote speech.

Secondly, let’s acknowledge outright that Susskind specifically noted in both his speech and his book, The End of Lawyers?, that litigation practices would be affected the least by technological changes due to the very nature of the practice.  Litigation matters, including criminal defense, are very fact specific.  Further, litigating attorneys must necessarily appear in court.  This requirement is unlikely to change any time soon, and, I would hazard to guess that most litigation attorneys are quite happy with that fact, thank you very much.

Now, let’s get to the meat of Susskind’s speech-his premise that the legal field is undergoing a fundamental change that will affect the vast majority of legal practice areas. The impetus behind the change is the technological advances occurring at an unprecedented rate.  The world has changed in ways we couldn’t have envisioned just 10 years ago-and the legal field is not immune from these changes, despite its repeated attempts to stick its collective heads deeply into the sands of time.

Lawyers relish the idea of looking backward, not forward.  Lawyers cling to precedent, “the way it’s always been done”, even as the rickety old lifeboat which has always kept them afloat falls apart and is replaced by better, more advanced flotation devices.

The legal field is changing–not will change–is changing.  Technology’s momentum cannot be stopped, nor can the end result of the momentum be accurately predicted.

As one of the smartest guys around, Gary Vaynerchuk, states in the following video, there’s no way to predict exactly where technology will take us, nor is there any reason to do so.  The intelligent among us will make it a point to stay on top of technological advances and will be at the forefront of change, as it occurs.

Those who make the change work for their law practices will profit and survive.  Those who ignore it, quite simply, will not and will fade away just as the dinosaurs did when they were unable to adapt to rapid change.

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Technology Strikes–Oblivious Attorneys Stunned

Posted on March 23, 2009. Filed under: Social Media, The times they are a'changin', Web 2.0 |


  1. This week’s Daily Record column is entitled “Technology Strikes–Oblivious Attorneys Stunned.”

A pdf of the article can be found here and my past Daily Record articles can be accessed here.


Technology Strikes–Oblivious Attorneys Stunned

The term “Internet” was first coined in 1974 and referred to a single global system of interconnected computer networks that shared data by packet switching using the standardized Internet Protocol Suite (TCP/IP).

The first TCP/IP network became operational in 1985. In the mid-1990s, the terms “Internet” and “World Wide Web” became commonplace, with Internet use increasing exponentially during the late 1990s. The Internet today has an estimated population of 1.5 billion users.

Of course, as I’ve detailed many times in the past, the legal profession has steadfastly refused to embrace, and in some cases, even acknowledge, technological advances and their effect on both the legal profession and the world at large.

So, it’s not surprising that lawyers and judges alike were seemingly taken aback last week upon learning that jurors, mere laypeople, were aware of this strange, newfound technology called the “Internet.”

Even more astounding to the legal profession was that jurors, in the midst of trials, disregarded judicial instructions to avoid obtaining information from outside sources and actually accessed the “Internet” for research using peculiar devices referred to as “smart phones” and “computers.”

In one case last week, an Arkansas court was asked to overturn a $12.6 million judgment based on allegations that, during the trial, a juror posted eight comments about the trial on Twitter, the microblogging service. In one, he proclaimed: “I just gave away TWELVE MILLION DOLLARS of somebody else’s money.”

Similarly, a federal corruption trial in Philadelphia was rudely interrupted by allegations of jurors posting comments to the Internet regarding the proceedings during the trial.

Defense counsel for former Pennsylvania Sen. Vincent J. Fumo moved to halt jury deliberations after information surfaced that a juror had posted comments about the trial to both Facebook and Twitter. The judge denied the motion after ques-
tioning the juror and Fumo ultimately was convicted of the charges against him.

In another case, during a federal drug trial in Florida, a juror admitted to Judge William J. Zloch that he had been conducting research on the Internet regarding the case, in spite of the judge’s specific instructions to the contrary. As if that wasn’t bad enough, after questioning the entire jury panel, the judge learned that eight other jurors had done the same thing.

A mistrial was declared immediately, ending a trial that was entering its eighth week. The defendant’s attorney, Peter Raban, expressed his disbelief regarding the unexpected turn of events: “We were stunned… It’s the first time modern technology struck us in that fashion, and it hit us right over the head.”

And thus it came to pass that “modern technology,” in the form of the newfangled Internet, fell rudely and unexpectedly from the sky, inexplicably landing on the heads of various lawyers, despite the fact that those very same heads were buried, willfully, deep in the sand.

Shortly thereafter, dazed, confused and utterly befuddled lawyers, suffering from concussions, technology-induced stupors and other massive head injuries, wandered around the desert of public opinion, expressing consternation in the face of the perplexing, yet wholly predictable reality that technology existed despite their
repeated attempts to ignore it.

To my sadly bewildered, dumbfounded and stunned colleagues, I have only this to offer: “I hate to say it, but I told you so.”

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Lawyers Networking Online

Posted on March 20, 2009. Filed under: Networking, Social Media, The times they are a'changin', Web 2.0 |

checkmark1The Daily Record published an interesting article yesterday that quoted a number of Rochester lawyers, including yours truly, who are using online networking to their advantage.  The article, “@Lawyers Networking Online” can be viewed in its entirety here.

Here’s the start of the article:

Kids do it. Jurors do it. Even members of the bar do it. Online social networking is more than a time-killer, say some Rochester attorneys, who also use it increasingly as a marketing tool.

Some larger law firms are resisting the trend, however. According to an informal survey reported in the March 2009 edition of Law Practice Magazine, 45 percent of law firms are now blocking access to some social Web sites. The survey, conducted in January 2009 by Doug Cornelius on, received 231 responses.

Eighty-five percent of respondents said their law firm blocks access to Facebook; 77 percent said they were blocked from MySpace. Another 55 percent are blocked from accessing YouTube, 26 percent from Twitter and 14 percent from LinkedIn.

Reasons cited by firms for blocking included loss of productivity, increased risk of viruses, confidentiality concerns and bandwidth consumption.

But those who use the sites argue the benefits of networking online far outweigh the risks. Rochester attorney Nicole Black, of counsel to Fiandach & Fiandach and an expert on Web 2.0 technology, said firms that block networking sites simply don’t understand the power of social media.

“It’s just a way to expand your influence and showcase your expertise,” said Black, who personally maintains four separate blogs in addition to Web sites and pages on sites including Twitter, Facebook and LinkedIn. “I think that the solo practitioners and the small firms are the ones that are going to be the first to use these [online sites] effectively.”
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Rethinking what it means to be a lawyer

Posted on March 17, 2009. Filed under: The times they are a'changin' |


This week’s Daily Record column is entitled “Rethinking what it means to be a lawyer.”

A pdf of the article can be found here and my past Daily Record articles can be accessed here.


Rethinking What It Means to be a Lawyer

Lawyer: A person learned in the law; as an attorney, counsel or solicitor; a person licensed to practice law. Any person who prosecutes or defends causes in courts of record or other judicial tribunals of the United States, or of any of the states, or whose business it is to give legal advice or assistance in relation to any cause
or matter whatever.


The last few months certainly have been memorable for the legal profession.
Massive layoffs at large firms and every other level of our profession are leaving unexpectedly unemployed, stunned lawyers in their wake.

Many attorneys are finding the subsequent job search difficult, and express frustration at the lack of positions available for them in the traditional legal setting.

Those lawyers would be well advised to think outside of the box, and to use their legal skills in atypical ways.

Technology and the recession are dramatically changing the legal landscape and the ways in which legal information is disseminated. Accordingly, the legal marketplace, now in an obvious state of flux, has been unable to absorb the glut of job seeking legal professionals who want to practice law in the traditional sense.

In order to maintain competitiveness and employability in the newly global and technologically advanced economy, lawyers must re-conceptualize their role within it.

The vast majority of lawyers define their skills too narrowly. That narrow definition of what it means to “practice law” was drummed into us while we were law students, and there continues to be a petty pecking order among lawyers.

Big Law attorneys sneer at small firm attorneys. Corporate attorneys look down their noses at litigators. Civil attorneys consider criminal attorneys to be the lowest of the low. Commercial litigators consider personal injury litigators to be bottom feeders. Criminal defense lawyers are convinced they serve a higher calling, and all others are selfish, greedy and incompetent.

Of course, all of the so-called “practicing” attorneys denigrate the non-traditional career choices made by their “non-practicing” colleagues.

For example, a law school classmate of mine, Megyn Kelly, co-hosts FOX News Channel’s program “America’s Newsroom,” working as both a lawyer and a journalist. She is described in her bio on FOX News Channel’s Web site
( as an attorney pursuing a career in journalism:

Prior to her career in journalism, Kelly, an attorney, practiced as a litigator with Jones Day in New York City, Chicago and Washington, D.C. before leaving to pursue journalism. She joined FOX News in 2004.

Similarly, at his own Web site (, Alan Dershowitz is described as a lawyer —among many other things:

Professor Alan M. Dershowitz … has been called ‘the best-known criminal lawyer in the world,’ …‘the top lawyer of last resort.’ … [He] joined the Harvard Law School faculty at age 25 after clerking for Judge David Bazelon and Justice Arthur Goldberg. … He has also published more than 100 articles in magazines and journals. … Professor Dershowitz is the author of 27 fiction and non-fiction works with a worldwide audience. … In addition to his numerous law review articles and books about criminal and constitutional law, he has written, taught and lectured about history, philosophy, psychology, literature, mathematics, theology, music, sports —and even delicatessens.

In the tradition of many others before them, Alan Dershowitz and Megyn Kelly are using their legal knowledge to forge new career paths. They are lawyers, journalists and more.

A “lawyer” can be many things. As the legal landscape adapts to changes in technology and the economy, the opportunities for lawyers to use their degrees in unexpected and exciting ways only will increase.

Those attorneys who see change as an opportunity to forge a new and unusual legal career path are innovative, forward-thinking lawyers, not “former” lawyers.

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Are Social and Professional Networking Mutually Exclusive?

Posted on February 10, 2009. Filed under: Networking, Social Media, The times they are a'changin', Web 2.0 |


This week’s Daily Record column is entitled “Are Social and Professional Networking Mutually Exclusive?”

A pdf of the article can be found here and my past Daily Record articles can be accessed here.


Are Social and Professional Networking Mutually Exclusive?

Last week I attended the LegalTech conference in New York City.

LegalTech New York is sponsored by Incisive Media and focuses on distributing information about technology and law practice management.

While at the event, I attended a number of seminars regarding Web 2.0 and its application and uses in legal practice-specifically in law firms. A prevailing theme that emerged from many panelists is that online social networking and online professional networking are two very different beasts.

In fact, one of the panelists carried two Blackberrys with him wherever he went —one for his professional network and the other for his social network. His expla- nation for his dual Blackberry methodology is that it helps him keep the two networks separate.

I wonder whether his attempts to keep the two separate is futile, at best, and pointless, at worst. And, even to the extent that online networking can be confined to the professional sphere, doing so is short sighted.

Networking can be loosely defined as “an extended group of people with similar interests or concerns who interact and remain in informal contact for mutual assistance or support.”

The online arena is a perfect place to network and for that very reason online networking has become mainstream. Facebook now has more than million 36 million members, Linked In has 8 millions users and Twitter has more than 3 million and is increasing exponentially in popularity.

The number of online legal networks is increasing as well. Many new forums and networking sites devoted to the legal field have been launched in the last year,  including include Lawlink (, Martindale-Hubbell’s Connected (martin- and the American Bar Association’s legal network, Legally Minded (

While it is encouraging to see established legal organizations attempt to participate in the Web 2.0 world, such forums are not, in my opinion, nearly as useful as the mainstream networking sites.

Certainly useful information can be gleaned from the sites; how- ever, busy lawyers have only  a limited amount of time to devote to networking, and their time would be better spent at mainstream online networking sites.

Furthermore, attempting to limit online participation to networks devoted to the legal field is counterintuitive, as is attempting to separate so-called social networking from professional networking.

Social and professional networking necessarily overlap. A person’s interests are not limited to their profession unless, of course, the person is an unbelievably one dimensional and boring human being. People are more than their careers.

Separating one’s professional and social online identities and interactions is a mistake. It is the overlap between the two that makes a lawyer more likeable, more approachable and more human.

People would rather hire a lawyer who is person to whom they can relate —someone with whom they can connect — and understand. If you limit your social networking to a circle of people you already know, you miss out on the chance to interact with potential clients on a more personal level.

Successful networking, therefore, doesn’t occur in such a delin- eated fashion and lawyers who believe that they can or should control and separate their online networks in such a way are missing the point. In the process, they’re also missing out on opportunities to connect with others, including potential referrers and clients.

The social and professional arenas are not mutually exclusive. They can and should overlap since it is the overlap that makes all the difference.

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Don’t Fear Technology-Change is Good.

Posted on January 23, 2009. Filed under: Practice Management, Productivity, Social Media, The times they are a'changin', Uncategorized, Web 2.0 |

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Technology (already) invades the courtroom

Posted on January 13, 2009. Filed under: criminal law, Social Media, The times they are a'changin', Web 2.0 |

This week’s Daily Record column is entitled “Technology (already) invades the courtroom.”

A pdf of the article can be found here and my past Daily Record articles can be accessed here.


Technology (already) invades the courtroom

I’ve said it before and I’ll say it again: The times they are a-Tech- nological advancements are affecting courtrooms across the country, much to the consternation of many in the legal profession who staunchly resist technological change.

Two recent events — a decision from Appellate Division, First Department and live reporting of a trial via Twitter — are further examples that technology is here, and it’s here to stay.

At the end of December, the First Department handed down its decision in People v. Wrotten, 2008 NY Slip Op 10226. At issue in Wrotten was whether the trial court erred in allowing the complainant to testify at trial via two-way, televised video.

The court held that the trial court improperly admitted the testimony since New York statutory law did not specifically provide for it, but also noted:

At the very least, even assuming that [the] defendant’s Sixth Amendment right of confrontation was not violated, she was denied a valuable component of that right. In our judgment, in the absence of express legislative authorization, depriving [the] defendant of a face-to-face meeting with her principal accuser — indeed, the person whose testimony was necessary for the prosecution to make out a prima facie case — tainted the fairness of the trial.

The majority and the dissent in Wrotten noted that for a variety of constitutional and procedural reasons, federal and state courts are split on the issue of allowing a witness’ court testimony via a live, two-way video feed.

While the law regarding live televised testimony remains unsettled, one thing is certain: It’s an issue that won’t go away.

Another technology trend that only will increase with the passage of time is live reporting of trials via micro-blogging services such as Twitter.

Twitter is a free, Web-based communications platform that allows users to share information with others with similar personal and pro- fessional interests. Users communicate using text-based posts (“tweets”) of up to 140 characters in length.

Twitter has more than 3.2 million accounts registered, and its user base is expanding quickly. Twitter can be used in a variety of unique ways, which are evolving constantly.

Courtrooms are not immune from the effects of the popular phenomenon, as reporters increasingly seek to use Twitter to report live in the midst of trials.

The most recent example occurred in a Colorado courtroom. Wichita Eagle reporter Ron Sylvester sought to post to his blog and Twitter throughout the trial. As he explained on his blog, What the Judge Ate for Breakfast, his intention to do so stemmed from historical tradition:

The notion of public courts predates our Constitution and even the Magna Carta. There are records of public trials following the Saxon invasion in England, where trials were held on the public square of villages. Our public squares now include Twitter.

Over the objections of both the prosecution and defense counsel, the trial judge allowed the use of cell phones and computers in the courtroom during the child abuse trial.

Last week, Sylvester chronicled the happenings of the trial. At one point, he posted on Twitter about an evidentiary issue:

-Getting ready for pretrial hearing of George Tiller, Day 2. 9:58 a.m. yesterday from txt

-Judge Owens has called the hearing to order. He is ruling on whether Kline has to turn over personal diary to Tiller’s attorneys. 10:28 a.m. yesterday from txt

-Kline gets to keep his diaries private. 10:32 a.m. yesterday from txt

-Owens ruled that ‘work product’ applies to prosecutors, such as notes on opinions and theories of a case. 10:32 a.m. yesterday from txt

Many found it fascinating to watch the trial unfold live, as it happened, rather than reading accounts of it after the fact. Technology made that possible.

Technology has invaded our lives, our homes, our offices, our courtrooms. Technological change has made a lot of things possible that once were unimaginable.

Technology is here to stay. There’s no looking back. Let’s accept that fact and move forward, shall we?

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2009-The Year of Change

Posted on January 2, 2009. Filed under: Social Media, The times they are a'changin', Uncategorized, Web 2.0 |

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The Future is Now

Posted on December 30, 2008. Filed under: Networking, Social Media, The times they are a'changin', Web 2.0 |


This week’s Daily Record column is entitled “The Future is Now.”

A pdf of the article can be found here and my past Daily Record articles can be accessed here.


The future is now

It’s time for the legal profession to pull its collective head out of the sand when it comes to technology, the Internet and Web 2.0.

Technology is here to stay and ignoring it no longer is an option.

Law firms and lawyers who turn a blind eye to technology do so to their own detriment, and their failure to acclimate to rapid technological change is going to catch up with them in 2009.

Like it or not, technology has infiltrated nearly every aspect of life. All kinds of information, including the very latest news, is available online. Phone numbers, addresses and contact information for of every type of business is readily accessible on the Internet. Shopping can be accomplished quickly and securely with the click of a button. Music can be downloaded from iTunes. Movies and television shows can be instantaneously streamed through Netflix or directly to a high-definition television via a laptop.

Likewise, technology has infiltrated the legal profession and leveled the playing field in ways never before seen. Small offices now can compete on even footing with large law firms.

Entire offices can be operated remotely using reasonably priced Web-based tools and applications. Documents can be stored securely on remote servers. Law offices can use Web-based practice management and time and billing applications such as Rocket Matter in lieu of the complicated and expensive software traditionally used by the legal profession.

Virtual law offices now are a reality and the value of online real estate has increased exponentially in recent years. With just a little effort, and minimal expense, solo practitioners can create a strong online presence that competes with that of larger firms.

A well-written law blog and polished profiles and content at JDSupra, Avvo, LinkedIn, and Facebook can do wonders for a lawyer’s search engine ranking. Online networking with lawyers and other professionals through Twitter and other online networks can lead to a steady stream of business.

By way of example, over the last six months I’ve received referrals from other lawyers across the country as a result of networking on Facebook and Twitter.

Potential clients from across New York State have contacted me through my blogs, Twitter and Avvo. I’ve also had former clients call me after locating me via Internet search engines.

I’ve been preaching about technological change for years now, as have many other cutting edge, influential lawyers from whom I’ve learned a great deal: Carolyn Elefant (, Susan Cartier Liebel (, Grant Griffiths ( and Kevin O’Keefe (, to name just a few.

It seems the legal field is finally starting to sit up and take notice. Facebook has become mainstream. Law blogs are all the rage.

When I began blogging in 2005, no one knew what a blog was. Now law firms, big and small, are launching blogs at an unprecedented rate.

The legal profession is just beginning to acknowledge the power of technology and the Internet. That’s a start, but reluctant acceptance simply is not good enough.

The legal profession must learn to embrace, not fear, the changing landscape. There is still a demand for legal services, and there always will be – technology has not changed that fact. Technology has altered the playing field and the rules of the game by changing the ways in which legal services are marketed, sold and purchased.

The change is not temporary, but permanent. Lawyers who accept and embrace that fact and position themselves for the future – rather than denying its reality – will prosper and profit in 2009 and beyond.

Will you be one of those lawyers?

-Nicole Black

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21st Century Practice?

Posted on December 12, 2008. Filed under: Practice Management, The times they are a'changin' |

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Referred to in this video: Build a Solo Practice LLC- When Pricing Your Legal Services, Understand Your Clients

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