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Dennis Kennedy (dmk@denniskennedy.com) is a computer lawyer and legal technology consultant based in St. Louis, Missouri. He speaks and writes frequently on legal, technology and Internet topics and was named the 2001 TechnoLawyer of the Year by TechnoLawyer.com. His highly regarded web site at www.denniskennedy.com collects many of his articles and is the home of his blog.

Ron Friedmann (ron@prismlegal.com) is the president of Prism Legal Consulting, which helps law firms with the strategic use of technology and legal market software companies with marketing and strategy. He is a lawyer by training and has held senior management positions at two large law firms and two legal software companies. His articles and blog are at http://www.prismlegal.com.

Dennis Kennedy (DK): I recently participated in a discussion with some CIOs of large law firms about current knowledge management (“KM”) developments. I was surprised to learn that many KM projects seemed to have as their goals the results that have been associated for many years with document management (“DM”) systems—full-text search of documents, descriptive fields, taxonomies, and the like. I played devil’s advocate and asked, “Is large firm document management broken?” I was not satisfied with the answer so I’ve been asking the question of other experts. Ron Friedmann is one of the leading legal technology experts in the business. In the following conversation, we discuss the lessons we’ve learned from document management and the implications for KM projects.

Ron Friedmann (RF): I don’t think DM is broken, though it is true that full-text retrieval has not worked so well (a problem the vendors are fixing). Rather, the problem is with the premise of what the “results” of DM are supposed to be. In the early 1990s, many of us thought that DM would solve an early KM problem – work product retrieval. DM did not, even when full-text worked, for several reasons: too many duplicates (even when only searching on the last version of any document), meaningless titles, no enforcement of correct selection of document type, lack of contextual descriptions, among others. These were, and are, problems of process and use, not technology. One interesting aside re full-text: larger firms are shifting from just searching DM to “federated” searches across multiple data sources.

DK: I see all of this from the individual lawyer’s point of view. Any system breaks down whenever a lawyer feels that he or she has to fight with the system just to do simple things. In my case, it drives me crazy when I have to input information many times in many places. The goal of good computing is “enter once, use many times.” Use every available way to reuse information you already have entered at least once (such as client/matter numbers and other information) to automatically put metadata on documents using simple business rules. I can’t emphasize this enough: making lawyers enter information multiple times is a recipe for failure.

RF: Agreed. We have to make KM as easy as possible for lawyers. An emerging trend along these lines is that work product "inherits" descriptive information (“metadata”) from the matter – an element of the hot “matter centric” trend. This means, of course, that you need to have the discipline to create good data about the matter. But many lawyers lack this discipline.

DK: I think that lawyers (or, realistically, their secretaries) will adjust to providing more data in the client intake process, if that information is used to populate DM, KM, or CRM (customer relationship) fields. The key is eliminating duplicate data entry. Just as important is limiting the number of documents lawyers have to review to create the system. I believe in taking a simple approach by reducing the dataspace by excluding documents older than a certain date as irrelevant unless specifically placed into the system. It’s somewhat arbitrary, but it’s a reasonable way to reduce "noise" and project scope—sort of like the 80/20 rule. It helps get things done.
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RF: Absolutely. While the “half-life” of any given document is unknown, ignoring older documents is a reasonable cut to make, especially if you are just getting started. And, as you say, you can always include an "old" document known to be valuable still. But you have to instill a discipline for new matters and documents to capture some additional information.

DK: Right. The sooner you get a usable system, the sooner lawyers will see its value and “remember” older documents that might be good additions. In most cases, though, it will turn out that there are few, if any, old documents that “need” to be included. I also learned an important lesson from Dan Felean at Pensera, a KM company: consider having secretaries gathering what “KM” info they can as part of "closing" files. Accept whatever you can get through this process and do not keep badgering the lawyers. The info you get will almost always be better than what you get by having lawyers fill out forms. Similarly, I’ve had the idea of using college interns to interview, by audio and video, lawyers as a way to capture information, especially the institutional stories and wisdom of older attorneys. It’s also a good way to gather biographical and practice information. I'm sure that you know how hard it is to find out anything useful about someone in your firm who is in another office.

RF: I agree that secretaries can and should be part of the process. My client, ii3 has software, AdvanceKnowledge, that incorporates secretaries in the KM workflow. Canada's largest law firm, McCarthy Tetrault, uses AdvanceKnowledge and secretaries play an important role there. I also agree that conducting matter post-mortems is a great practice (and some firms do it); I disagree, however, about using interns. Interviews need to be conducted by someone knowledgeable, which typically means non-practicing lawyers, experienced legal assistants, or librarians.

DK: My next point may well be heretical, but I’m coming from the lawyer’s point of view. Lose the categories and taxonomies. As William Blake might have said about this, “I must create my own categories or be enslav’d by those of another.” I'm about to completely change my subject matter folders in my email, bookmarks, and newsreader for the umpteenth time. It's too difficult to determine categories and assess relevance early in the process. The relevance, importance and categories may come much later. There’s a notion of “fluid” or “liquid” categories that I’ve seen lately that makes more sense to me. If you must use taxonomies, keep them simple, base them on something that is familiar, and make it easy to assign content categories. I’d rather see an auto-assignment of categories with the ability to add or override rather than be forced to find a place among nested lists of categories.

RF: Original DM did not support taxonomies, so that concept is relatively new. I think we need to keep taxonomies. First, many firms are adopting them, so the market is saying they have value. Second, all my legal tech experience, which started with developing work product databases and hypertext research systems in 1989, suggests that a combination of browsing via categories and search is the best way to find material. Third, tying this back to entering data only once, a taxonomy facilitates automatically assigning meta-data to documents. Fourth, the jury is still out on the accuracy and value of software auto-classification (though I am optimistic about this approach long-term). And fifth, the problem of re-categorizing can be managed, though it can be a bit tricky; you may need special taxonomy management software and you have to make sure changes are properly propagated throughout all systems. All that said, I personally lean toward relatively simple taxonomies, though that is a point of contention among KM professionals.

DK: My point would be that you can do away with the reliance on elaborate taxonomies and categories, if you have something to replace them that works better. My suggestion is that modern search tools may be that better tool. It’s certainly better than a coercive or punitive system that tries to force lawyers to comply.

RF: I’ll go back again to old experience because I think it’s still relevant, in spite of technology advances. In 1989, I used what was arguably then the best full-text engine (PLS) that offered relevancy ranking and statistical algorithms to find related documents (even those not including search words). I have not seen evidence that the current crop of full-text and semantic software engines fix the problem of under and over inclusive search. Also, I am not persuaded auto-categorization works yet; for example, Vivisimo, a web-based categorization search tool, is a great start but I find it’s categorization weak. And finally, you still face the "garbage in, garbage out" problem. Don’t get me wrong, I do think full-text is very valuable. But you also need categories. If you are trying to find, say research on statute of limitations or a model asset purchase agreement, you will just find way too many hits with full text or auto-categorization.

DK: Let me suggest an even more radical approach. Why not blow it all away and consider throwing everything that you have into a big database and focus on developing custom reports and saved searches using regular database reporting tools, such as Crystal Reports. KM for lawyers does not need to be rocket science—a few slices of the information, as long as they are the right ones, will give lawyers most of the information they need.

RF: An interesting idea. If the database were to include descriptive and contextual information, I would be all for it. But I agree with you that lawyers will not enter that extra data. Without the fielded information, I doubt the reporting would work. With the dramatic growth in electronic discovery and a new crop of full-text vendors it is spawning, perhaps we will see some dramatic new software. For now, however, all my experience says that magic bullets fail—the solution requires real work, at least some of it by lawyers.

DK: You’re right, of course. I’m not sure that even I would go as far as I suggest. However, I do think about it and wonder if we are missing the boat by looking for “perfect” solutions when the “good-enough” might be all we really need.

RF: Certainly the current high interest in full-text searching (especially federated searches) speaks to the “good enough” approach. It certainly makes sense to have full-text in comparison to nothing. I think that explains the current interest in products such as Westkm, LexisNexis Total Search, Recommind, or Autonomy. The question is whether it makes sense to go further. That usually requires some amount of human effort, typically from “practice support lawyers” or “knowledge managers.” Many firms have such staff, but it’s an expensive proposition and quantifying the return is hard. In my view, firms should at least experiment with more systematic ways to identify documents and capture context. Take some small steps and see if they pay off. And compare that pay-off to other non-billable activities (such as writing articles or sending clients newsletters) to assess it fairly.

DK: And we’re now looking at the tip of the coming data iceberg. What happens when IM, RSS feeds, audio and videoconferences, collaborative workspaces, Webex, and other things all become part of the documentspace? Some firms are simply banning instant messaging. That’s not a good idea if your business clients routinely use IM.

RF: Good question. Perhaps by the time that happens, we will have a better handle on existing document types. Especially with respect to videoconferences and Webinars, however, use of a taxonomy would help as it avoids need to generate text transcripts. Answers may also emerge from what’s happening in e-discovery.

DK: Lawyers have proven that they will not change the way that they work. For better or worse, finding ways to work around them or taking them as you find them have more likelihood of success than anything does that involves a behavior change. In a new firm, though, there might not be the same story.

RF: That may be true but it's bad. Would you go to a doctor who refuses to change how she works? How about if, relative to a now questionable diagnostic or therapeutic regime, your doctor said "Well, this is what I learned in my residency and it's always worked fine for me. Why should I care what other doctors do—I'm a professional and I know what I'm doing." Isn't that the moral equivalent of what lawyers are doing? U.S. business has spent the last 20 years re-structuring and developing new and more efficient and effective processes. Why do lawyers think they are different and why does the market insulate lawyers from these pressures?

DK: Those questions, and some similar ones, are the $64 billion dollar questions for the legal profession. It comes down to this, “Is the legal profession different?” What makes us so sure that we are immune to the changes that technologies and the Internet have brought to every other type of business? For me, I don’t see how we can conclude that we are immune. It is only prudent to make plans based on the changes we see elsewhere. What Ron and I have discussed are some practical ways to take advantage of some of the lessons we’ve learned from document management experience to enhance the likelihood of success in KM projects. We’ve learned a lot and we need to apply it. If you can start with the goal of making the system work with lawyers rather than against them, you increase your chances of getting great results.