With a consensus largely across the legal sector that Knowledge Management (KM) can now play a vital role in the success of a law firm, what are we able to do in relation to systems that help facilitate a knowledge-sharing culture?
It should be noted initially that when we talk about "KM systems" we are largely not speaking of an actual single system which provides access to a Comprehensive store of a firm's knowledge. Whether by knowledge (or know-how) we mean documents, matter information, billing information or anything else pertinent to a firm's success, it will be rare (though not impossible) to have an all-encompassing single system. Thus, the actual systems or sources of knowledge within a firm may be numerous, even if some sort of single search tool, index or portal is placed around the systems (in itself often referred to as a "KM System"). This may be a customised or a standard third party solution or some other application (I am largely thinking SharePoint).
Law firms of all sizes will now usually have at least some repository of knowledge, but as rich knowledge sources have grown exponentially, it is arguable whether access to knowledge has become easier or actually more difficult. Systems aimed at law firms are certainly plentiful and whilst many use a similar search solution or application, the architecture placed on an out of the box product may vary hugely (this in turn massively determines usefulness).
At the turn of the millennium, KM systems may have been limited to a file-share (or lever arch binder) containing a firm's core precedent documents – or the "crown jewels" as more than one Senior Partner would inform me over time (matter information could often be restricted to a spreadsheet of names and contact details). These were guarded enthusiastically, with a regime that would only allow new-joiners very limited access, mid-termers slightly greater access and only when you were fully committed to a firm for life were you allowed to see virtually all documents (there would always be the odd one or two that would get locked away in the safe). Thankfully, Practical Law came along and illustrated that such documents were not overly dissimilar after all and the need to secure these diminished somewhat. Security is much more prominent then it was back then and has moved on from simple yes/no access to flexible models able to incorporate ethical walls, sensitivities and personal preferences. Any KM system must allow such flexible security application.
The Mindful Lawyer and Legal Profession
Dr Linda Spedding
Life’s pressures, pace and resilience
The life of the legal professional has changed hugely in recent years: indeed, life has speeded up in many respects through manifold pressures. Resilience is vital in order to enjoy a happy, healthy experience through the life cycle of the individual career, whether one opts for private practice, in-house work, academia, the voluntary or non-profit area or the public sector. The pace has major impacts on one’s health and ability to fulfil all of the requirements and timelines that are continuously driving the practitioner. In addition, the level and extent of client demands, regulatory requirements and administrative overload are often overwhelming. In order to withstand these, inner peace and strength are needed as a priority. An individual structure that honours and includes time to be, to think, to relax, to restore and to thrive is of considerable assistance.
Creating a Client Advantage - The Practice of Knowledge Management in Law Firms
Legal knowledge management is the driving force within law firms across the globe. The recent International Bar Association (IBA) conference in Washington DC attracted over 6000 legal professionals from around the world and Knowledge Management (KM) was prominently featured at the conference. In an article by Ron Friedmann of Fireman & Company in Bloomberg Law he indicates that legal knowledge management is on the rise as law firms realize that KM increases a lawyer’s productivity (Friedmann, 2016). This increase in productivity leads to delivering better value to clients. Ron Friedmann also indicates that The 2016 Citi-Hildebrandt client advisory expects “to see more focus on knowledge management” and The 2015 Altman Weil law firm report finds that 68% of firms with 250+ lawyers have incorporated KM initiatives to improve the firm’s efficiency (Friedmann, 2016).
In a Forbes 2014 article Micah Solomon indicates that creating true client loyalty is one of the most powerful and reliable ways to build a strategic, sustainable advantage for the law practice and that truly loyal clients are less price sensitive, and are less likely to be enticed by competitive entreaties from the firm across the street or across the continent (Solomon, 2014). Knowledge Management plays a key role in ensuring a high level of client support. KM staff operate smoothly between lawyers and a range of operational functions; ideally situated to increase intra-firm collaboration, communication, and understanding. Some KM programs have worked on operations for some time, but business conditions are now ripe for more extensive applications of KM to firm operations; arguably critical to keeping operational teams relevant and law firms profitable (Solomon, 2014).
Client support specifically focuses on dramatically improving the client experience. It is the expectation of all clients that legal professionals and law firms will provide high quality legal services and it’s that promise and demonstration of high quality legal services that are the intangibles that will set the firm apart. Some of the benefits KM has for legal professionals as it pertains to servicing clients are:
Looking for a Better Carrot
Compensation is a traditional “carrot” in the “carrot and stick” approach that many law firms use to motivate their partners’ financial performance. Increasingly, law firms are discovering that an “eat what you kill” (EWYK) compensation plan, in which a partner’s remuneration is determined entirely or predominantly one’s own fee production, is no more motivating than a cup of espresso coffee. It creates a buzz that lasts a little while and then quickly wears off.
This is why traditional “carrot and stick” thinking about partner compensation seldom produces long-term results in law firms. Some partners are not especially attracted by the taste of the carrot, and most of them learned long ago not to fear the stick.
“Eat what you kill” is not all bad
Have you ever had to give difficult feedback to a talented team member you want to motivate and inspire? Most people encounter that situation from time to time in their working lives. There are two possible risks: you soft-pedal the feedback, so the recipient doesn't really hear or understand it; or you crush the confidence of someone who has real potential to succeed. There is a third way, so here are some tips for turning bad news into a conversation that leaves the recipient motivated to improve, and your working relationship even stronger. There are many ways for this conversation to go wrong, but the more of the following you put into practice, the better the outcome is likely to be:
1 Make sure the recipient feels valued as a person. Feedback from associates tells us that they appreciate it when partners and senior lawyers take the time to get to know them as individuals, and to listen to and respect their opinion. If you have created a relationship of mutual respect and interest, you have a good foundation for helping people perform at their best. As part of the feedback conversation, make sure you mention something you appreciate about them – make it sincere, specific and succinct. It can be as simple as 'I really appreciate how hard you have been working' or 'I've noticed how willing you are to offer your help to others on the team'.
2 Let them know that you have some feedback you believe will help them improve their skills or performance. Feedback given with positive intent is always more effective than criticism that comes from a place of annoyance or lack of respect. Notice your own feelings and manage them well. Introduce the feedback as being intended to help them succeed.
3 Make your feedback succinct and crystal clear. Work out in advance how you're going to give the feedback and stick to it. Give the recipient time to digest what you've said. Make sure the feedback is about the action or behaviour that you want them to change, not about them as a person.
The coming seismic shift in marketing and business development in law firms
As legal markets become even more competitive over the next ten years, commercial law firms everywhere will be forced to reconsider many of their long-held assumptions and practices about marketing and business development. Fast-changing client needs and perceptions of value, amplified by communications and knowledge technology, will make this a seismic shift. Some firms will anticipate and respond effectively. Others will not.
What type of law firm are you?
Understanding the distinctions between commercial law firms and retail law firms will be critical to selecting the best strategies and tactics for marketing and business development. Some marketing tools will become largely irrelevant to commercial law firms, but at the same time even more important for retail law firms.
A “commercial law firm” is one that offers sophisticated corporate and commercial legal services to corporations, government agencies, and high net-worth individuals. Most large law firms and many mid-sized ones can be characterised as commercial law firms, as well as boutique firms that specialise in offering similar services in limited practice areas or client sectors. By contrast, a “retail law firm” (also known as a “high street firm”) focuses more on relatively routine services to individual clients and small businesses.
These two categories actually are more like the ends of a spectrum than sharp definitions. Many law firms have a mixture of “commercial” and “retail” attributes; but even for these hybrid firms it is important to understand the overall orientation of the firm’s strategic and business objectives. Not knowing what type of clients and services drive the firm’s business, or an important part of it, can lead to wasted investments in the wrong type of marketing and business development efforts. In “full-service” law firms, the commercial-or-retail analysis often must be practice area by practice area.
Wearable technology is nothing new: an analogue watch is an early example. Advances in digital technology have seen the advent of the smart watch, but this was just the beginning; we're now seeing rings that measure UV levels, handbags with built-in chargers and lights, t-shirts that measure sporting performance, not to mention a host of wearable healthcare devices.
Creating these products requires inter-industry collaboration, with some firms straying outside their comfort zone. What follows here is an overview of the intellectual property (IP) rights you will need to consider to protect both the technical and aesthetic components of wearable tech, some top tips to bear in mind when negotiating a collaboration agreement, and a checklist of other issues you will want to keep at the front of your mind.
Using IP to protect the technology behind wearables
Patenting inventions Products that constitute inventions in their own right will be patentable if the invention is new, involves an inventive step and is capable of industrial application. For example, a group of researchers at Liverpool John Moores University has been granted a patent for electromagnetic wave sensors that can be woven into any garment as a way to continually monitor a patient's vital signs. But remember that a number of products are excluded from patent protection, including in particular aesthetic creations and computer programs.
Copyright in software In the United Kingdom, software is automatically protected by copyright as long as it is original and there is no requirement for registration. However, all that is protected by copyright is the code itself, not the functionality of the product.
Using IP to protect the aesthetics of wearables
Trademarks Any name or logo that can be represented graphically and that is capable of distinguishing the goods or services of one undertaking from those of another may be registered as a trademark. Designers of wearable technology can put their trademark on their goods to prevent others from making a copy, but trademark protection does not extend to the design of the product itself. Although it is possible to register 3D trademarks, they must be distinctive and in practice can be difficult to enforce.
Copyright Although copyright is the IP right most often associated with the creative industries, the protection that it offers to wearable technology is limited. To be protected by copyright in the UK, a work must fall within one of eight categories, the most relevant of which is works of artistic craftsmanship. However the threshold for showing that a work is one of artistic craftsmanship is high, meaning that the aesthetic component of wearables is not likely to be protected by copyright in the UK. Other countries, including the United States, France and Germany, do not have closed-list copyright systems; and so in these countries wearables may be protected as long as they fulfil the local test for originality.
The growth and diversification of life sciences
A combination of high research costs, complex regulatory requirements and dwindling opportunities for developing small-molecule targets: these are some of the factors blamed for the difficulties encountered by some branded pharmaceutical companies in recent years when trying to bolster the number of candidates entering and progressing through their product pipelines. At the other end of the pharmaceutical product lifecycle, many of the ‘blockbuster’ drugs that have dominated the market in the last decade now have generic competition Further difficulties have come from the worst economic downturn in living memory, with ensuing pressures on costs. As a result of these pressures, some companies are moving away from reliance on the traditional small-molecule pharmaceutical business model and attempting to broaden the nature of their product offerings to, among other things, branded generic products, biologicals and medical devices. There have been other developments: the acquisition of small research companies with promising drug candidates has become an attractive alternative to conducting early-stage development in-house. Interest has also turned to divestment of certain business operations and the efficiencies brought by cooperation and collaboration with third parties.
This diversification of the traditional small-molecules industry may have actually sustained it through the downturn. Indeed, this is the view of a major report prepared by Battelle and the Biotechnology Industry Organisation in 2012, which attributes the resilience of the US bioscience industry to its diversity. However, innovation in this field is not restricted to the United States or Europe. For example, although it has been known for many years as a centre of generic drug production, India is now seeing a number of novel drug research projects coming to fruition, with more anticipated to follow in the coming years. Also, new levels of deal making in the sector in 2014 are attributed to a desire for efficiency, productivity and the need to reshape businesses after retrenchment in the last few years.
With the time and money that is being invested in the sector and the potential commercial rewards at stake, how do those making that investment and others depending on the success of a life sciences business ensure that the innovations at the centre of their businesses provide a return for them? Furthermore, in such a competitive sector, what is to ensure that the technology being developed by one enterprise is not being appropriated by another? The answer is that where there is innovation - particularly when it has a prospect of commercial application - there is intellectual property and, in particular, patents.
If registered designs are seen as being difficult to enforce, unregistered designs prove even less popular. By their very nature they are hard to pin down, meaning that proving validity can be a hurdle for designers before they even come to enforcement.
Designers will therefore welcome the European Court of Justice’s (ECJ) recent decision in Case C-345/13, Karen Millen Fashions Ltd v Dunnes Stores (available here), which reminds us that unregistered designs can be an effective means of protecting new designs. In particular in the fast-paced world of fashion, where collections turn over at such a rate that there is often not time to register IP rights, the ECJ’s guidance on how to assess a design's ‘individual character’, and confirmation that those wishing to enforce unregistered Community design rights are not required to prove individual character, is good news for designers.
A reminder on designs
In a vintage year of sporting mega events, Paul Jordan, consulting editor to International Advertising Law, speaks to Globe Law and Business about the challenges of getting advertising right on a global scale and his experience advising brands making the most of the hype during the 2012 Olympic Games.
Africa is one of the most underexplored regions of the world (specially East Africa). However, significant interest is developing in new hydrocarbon provinces in East Africa. For example, the US Geological Survey has estimated that 253 trillion cubic feet may lie off the coasts of Kenya, Tanzania and Mozambique. Recent discoveries in the region have attracted a great amount of international attention (especially in the liquefied natural gas markets).
Given the existence of proven hydrocarbon reserves and the large areas to be explored, the appetite of investors in East Africa is likely to increase. However, the question that any host government should be asking is who is interested in their countries. While the qualification process in a bid round or direct negotiation might be fairly simple and straightforward under most hydrocarbons codes (in comparison with the fiscal regime and contractual framework), it is not well observed in quite a few Eastern African countries.
Some countries might have the luxury of implementing a lengthy, slow and complex qualification process; but not all countries can afford this type of process, as investments are required to explore their hydrocarbon potential. The urgency of raising investments might encourage some countries and governmental officials to speed up the process and award a contract to the first investor that knocks on their doors.
The main risk that a host government faces is the possibility that the investor is a broker rather than a serious investor. A broker will lack the technical and/or financial capability to develop the assets itself, but is rather seeking to acquire the asset from the host government and immediately flip them to a third party by acting as an intermediary.
With a number of pending cases before the European Court of Justice (ECJ), and its recent decision in Svensson and its decision in Meltwater hotly anticipated on June 5, we thought this would be a good time to round up the case law on linking and ask whether the ECJ has resolved this particular quirk of the application of copyright online.
We begin with Svensson, a case which was brought by a number of Swedish journalists against a media monitoring organisation, Retriever. Retriever provided links to websites hosting content which had been written by the journalists. The journalists argued that the provision of these links constituted a communication to the public, and thus infringed Article 3 of the EU Information Society Directive. The Swedish court referred four questions to the ECJ, which held as follows:
In short, provision of a link does not constitute a communication to the public, as long as the content subject to the link is already freely accessible online.
Contrast this with the position in ITV v TVCatchUp, where the ECJ held that by capturing television broadcasts (which were freely available to anyone with a television licence) and retransmitting the content over the Internet, TVCatchUp did communicate broadcast works to the public. The difference seems to be that the broadcasters had never intended their content to be viewed online, whereas the journalists in Svensson plainly always intended their articles to be viewed on the websites which they had authorised.
On February 19 2013 the representatives of 24 EU governments met in Brussels to sign the Unified Patent Court (UPC) Agreement, which creates a court in which future unitary patents and classic European patents can be litigated – effectively, a one-stop shop for participating EU member states. This historic date marks the start of implementation for a project that has kept European lawmakers busy for nearly 40 years. Here we examine the practical achievements of the last 14 months and highlight the challenges yet to be met before the court can open its doors.
The patent reform package
The UPC is part of a bigger package of patent reforms which consists of three linked elements:
Under the current system, the European Patent Convention provides for a centralised application procedure in which the European Patent Office grants bundles of national patents across Europe. Disputes about patents after grant (with the exception of patents opposed at the office within the first nine months) are adjudicated exclusively by national courts.