Outsourcing Redux

A law firm that decides to outsource some of its work is making a decision that is in step with the times. Although outsourcing is not right for every firm, there are factors that weigh heavily in favor of a considered approach. At least that's what Ron Friedman argues in this recent LLRX post - Law Firms Now Outsourcers? Friedman's short article draws together a number of sources that review the state of outsourcing today. Friedman makes two points to ponder:

1. Using outsourcing can certainly save your clients money. Obviously, it costs less for legal talent from Cleveland than the same talent from New York.
2. Ethical issues still abound. Friedman quotes Professor Stephen Gillers - "There is no problem with offshoring because even though the lawyer in India is not authorized by an American state to practice law, the review by American lawyers sanitizes the process." The answer may not be that simple. A more complete analysis is set out in Mark Ross' article on LLRX - Ethics of Legal Outsourcing White Paper.

This is a complicated issue. The fact that firms are seriously entertaining the idea of outsourcing - whether offshore or domestic - is a sign of the difficult economic times and maybe a harbinger of the change in the shifting paradigm of what it means to practice law.

Best Jucicial Decisions of 2009?

Since 2005, The Green Bag has published the annual Green Bag Almanac & Reader. Find it here in our collection. This is a compendium of "good legal writing from the past year, selected by the luminaries and sages on our board of advisers." This year, those "luminaries" chose the following lead opinions as the best judicial decisions of 2009:

Frank H. Easterbrook - Buchmeier v. United States, 581 F. 3d 561 (7th Cir. 2009) Found via Google Scholar.

Ruth Bader Ginsburg - United States v. Hayes, 129 S. Ct. 1079 (2009) From the USSC official website.

Jed S. Rakoff - SEC v. Bank of America Corp., 2009 WL 2916822 (S.D.N.Y. 2009) From the Southern District of New York website.

Which one is best? You be the judge. So to speak.

Coming soon - the best concurrences and dissents.

You Know the Recession is Bad When...

You know that the recession has really hit the legal profession hard when the latest article about the legal job market - No Longer Their Golden Ticket - is in the Styles section of the NYTimes. There have been many articles in such law-related publications as Above the Law with its weekly (what else) feature This Week in Layoffs. But when the fortunes of recent law school graduates begin to share space with the Wedding Page you've got to know that this downturn has really reached the mainstream. The Styles article even mentions LawShucks with its famous (or infamous) Layoff Tracker.

What's the alternative? Take a look at this short video that accompanies the online version of the article in Styles. It seems that some new lawyers are doing what many law students originally had in mind when they applied for law school - provide services for the poor.

They're Singing Scalia's Song

And what is it? Well. After a night at the opera, reported here in the NYTimes, Scalia, once reluctant to give any interviews, gave one to WQXR, the NYC classical music station. As reported by the Law.com on Friday, Scalia, in a far-ranging discussion with Gilbert Kaplan, told all - his favorite rock and roll song is Sh-Boom, a 1954 classic from the Chords. His comment about Sh-Boom? Another classic. Apparently, it was the last pop piece, "that I really remember liking before rock descended into noise and ugliness." See for yourself...here's an acapella version from a 1980 show.

Waiting for the Other Shoe to Drop - Westlaw on the Ropes?

Is it possible that Westlaw has come to the realization that it must change its business model? The last few years have not been kind to the legal research division of Thomson-Reuters. Let's begin to connect the dots. Here are the first four...

1. In early December, Westlaw laid off 240 legal division workers in North America - 120 in the West bastion city of St. Paul alone.

2. Follow this link to Richard Leiter's analysis of Thomson-Reuters stock price back in March and his further analysis later that month. Some may say that this is only a function of the recent recession. In fact, Thomson-Reuters stock appears to have begun its slide in mid-2007, before this recession was a recession. The stock price has recovered since March but not on par with the rest of the market. See for yourself - on the NYSE the Thomson-Reuters symbol is TRI.

3. Competitors have started coming out of the woodwork. Changes in research behavior at the lawfirm level may move the low cost research providers to the forefront. Readers may recall this post from September in which LOISlaw, the newly revitalized Kluwer-Wolters research system, figured prominently. You may recall from this January 1st post, the threat from the upstart Google Scholar LOJ as a first-choice free legal research research system cannot be ignored.

4. And, how long can West continue its current business model when major academic libraries like Stanford are reviewing their subscriptions of West print resources? When Stanford starts to cut subscriptions it won't be long before others follow.

New competitors, economizing customers, layoffs ... are these symptoms of the need for a minor mid-course correction or the beginning of a long term decline? Regardless, it seems clear that Westlaw needs to begin a serious review of its business model.

Google Scholar LOJ - Tectonic Shift in Legal Research?

Many practitioners (and students) are still unaware of the new Google Scholar Legal Opinions and Journal (LOJ) search features. As we transition into the new year it is worth taking a moment to remind ourselves that this new legal research tool could become as popular as Google itself, i.e., a ubiquitous free "first search" tool for the legal community. If it does, it will certainly fulfill its promise of being a legal research game changer.

Researchers still need to become more familiar with LOJ. There have been several blog posts by law librarians about LOJ functionality and searching issues. For a quick refresher about how the new LOJ search works you should probably read this fine summary by David Tsai and Courtney Minick on LLRX.

Not unlike Google itself, the actual functionality of Google Schoolar LOJ will remain a secret but, with a little use, it has not been too difficult to figure out the broad strokes. The main problem will always be the same: as attorneys we are tasked with the difficult job of being accurate and thorough. Using Google Scholar LOJ does not change that obligation. We must still exercise care in using any search engine and Google Scholar LOJ is no exception. You might be able to find an answer by using LOJ; but, is it the right answer? You can certainly start with LOJ but you must be prepared to use traditional research methods to make sure you are being thorough.

Tracking the Congressional Response to Iqbal

Last week's Senate hearings regarding the impact of Iqbal and Twombly (see posts here and here) were in aid of the Notice Pleading Restoration Act of 2009, S. 1504. The pending bill is reproduced here on the GPO website in PDF. The bill is mentioned in Senator Feingold's opening statement.

There are several new ways to track pending bills in Congress. You might be interested in using GovTrack.us or OpenCongress.org. Both allow for the free tracking of individual bills. You can see previous posts about these Web 2.0 tools here on LLRX, and here and here. Unfortunately, Thomas, while providing a feed for a daily digest and for Senate and House floor action, is not yet providing feeds for individual bills.

Senate Considers Iqbal Impact

Hearings before the Senate Judiciary Committee began last week to determine if legislative action would be appropriate to overturn the USSC rulings in Ashcroft v. Iqbal and its predecessor, Bell Atlantic Corp. v. Twombly. You can find the relevant Judiciary Committee page here. Look to the right hand column to see links to PDFs of the recently posted prepared testimony before the Committee.

Look here for a post that contains excerpts from the hearings regarding the overall impact of Iqbal and Twombly. One witness went to far as to say that the decisions were "an assault on our democratic principles" (from the prepared testimony of John Payton, NAACP Legal Defense and Educational Fund).

Interestingly, the testimony of Gregory Garre, former Solicitor General, addresses the actual impact of Iqbal on cases pending in federal court. That impact was also discussed here in a previous post.

Garre makes reference to and provides a link to the preliminary report prepared by its Rules Law Clerk for the Civil Rules Committee and the Standing Rules Committee Concerning the “Application of Pleading Standards Post-Ashcroft v. Iqbal.” Unfortunately, the link that Garre give to the report is broken (http://www.uscourts.gov/rules/Memo%20re%20pleading%20standards%20 Nov30.pdf.). Garre, in his testimony, maintains that it is too early to judge the effect of Iqbal.

Iqbal is apparently of sufficient interest and potential impact, however, that a Committee was established to study its effects...

Iqbal Impact Update

Now, a little more than six months after the USSC issued its opinion in Ashcroft v. Iqbal, the impact of the decision is still being felt. Readers of this blog may recall a previous post indicating that Iqbal was arguably the most important case decided last term. That statement was based on the fact that Iqbal promised to have a systemic effect. To date Iqbal has not disappointed. It has been cited frequently by federal courts. A quick check using KeyCite shows -

1. A total of 7032 documents (cases, briefs, treatises, articles, etc.) have cited Iqbal.

2. Headnote 12, the headnote that deals with the new threshold test - to survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face - i.e., the new "plausibility" test, has been cited by 2789 federal courts apparently for the purpose of examining plaintiff's case for possible dismissal.

3. Headnote 12 has also been cited by four state courts and one tribal court for the same proposition. States that have rules of civil procedure based on the FRCP may be moving to adoption of Iqbal or at least some consideration of the the viability of the Iqbal plausibility requirement to state procedural analysis.

Of course, Iqbal is a complex case that deals with many issues not the least of which is governmental liability. We can't tell without a close examination of all 2789 federal cases that apply Iqbal if it is being used solely as a means to dismiss cases. More likely, it is being used even-handedly to weed out factually weak cases. Regardless, it seems clear that every future Memorandum in support of a 12(b)(6) motion will have to cite it.

Lexis Apps On Your iPhone

That's right. After Westlaw made Black's Dictionary into an iPhone app, Lexis has decided to do the same with Get a Document and Shepardize. Mixed reviews but it seems to be another step forward.

BTW, the iPhone app for Black's costs $49.99. The iPhone app for Shepard's is FREE as long as you have a valid Lexis ID and password.