Lawyers across all practices, but especially solo and small practices, must acceept the new economic realities.   They must learn to work smart and bill smart to deliver high quality legal services at reasonable fees using the full panoply of technological tools available for case and practice management.  Trial lawyers who adapt will uniquely benefit from the new technologies for case management, because the Galley Slave Ship model fails practically as well as financially for effective litgation.

It is the duty of all lawyers to restore the public’s trust by returning to the ideals we started with, and that are justly expected of us today: honesty, fair-dealing and the ability to solve our clients’ legal problems cost-efficiently.  Lawyers who meet these new challenges will survive.  The others will  be marched off to the legal profession’s La Brea Tar Pits.  In the immortal words of Bartleby, “I would prefer not to.”

Stephen M. Winnick, Esq. is the founder and senior partner of Winnick & Sullivan LLP (www.winnlaw.com); and the developer of Summary Judgment™, a comprehensive case and practice management software tool built on Eastgate Systems’s Tinderbox data platform (www.summjudg.com; www.eastgate.com/Tinderbox).  Additional information about Summary Judgment’s features and operation is available in his prior blog series entitled Winvictus’s Summary Judgment – the Romero Case (http:/www.winvictus.wordpress.com).

Copyright © 2011 Stephen M. Winnick, Esq.  All rights reserved.

“…[E]conomies like ecosystems are dynamic, and a threat to one species does not mean a threat to all.  In fact it can often mean opportunity…” Daniel Silva, The Rembrandt affair (New York: GP Putnam Sons 2010) at 370.

A joke serves as a useful parable for this part of the discussion.  Two hikers, Henry and Joe, are suddenly confronted by a grizzly bear which appeared out of nowhere from behind some trees.  The giant bear is up on its hind legs, roaring wildly, and ready to pounce.  White with terror Henry says, “Joe, we’ll never be able to outrun him.”  Joe, as he begins to sprint quickly away looks back and says, “I don’t have to outrun the bear, Henry, just you.”

In this new era of lawyering, the quick will survive and the devil will take the hindmost.  This will be especially true of solo and small practices, and trial lawyers in particular.  Those that can be agile infantrymen and reduce the disadvantages of small firm and trial practice through the sophisticated use of computerized case and practice management tools that are widely available today at modest cost, will comprise a species that not only will survive, but will find opportunites to prosper.   The rest will likely meet Henry’s fate. See John Markoff, Armies of Expensive Lawyers, Replaced by Cheaper Software (NY Times, Science Section, March 4, 2011).

Stephen M. Winnick, Esq. is the founder and senior partner of Winnick & Sullivan LLP (www.winnlaw.com); and the developer of Summary Judgment™(www.summjudg.com), a comprehensive case and practice management software tool built on Eastgate Systems’s Tinderbox data platform (www.eastgate.com/Tinderbox).  Additional information about Summary Judgment’s features and operation is available in his prior blog series entitledWinvictus’s Summary Judgment – the Romero Case(www.winvictus.wordpress.com).

The implications are stark and unavoidable: the hourly fee as the lodestar of what legal services are worth to the client is a thing of the past.  Hourly time keeping will remain important, even more essential, not as a measure of the true worth of the services to the client, but for lawyers to know exactly how long it takes to efficiently accomplish the underlying tasks, and to gear their fee arrangements to be paid a competitive fee for the true time it takes to accomplish them.  The Galley Slave Model of having numerous junior associates, paralegals and other minions serving as cash cows under senior attorneys profiting from their profligacy  is also a thing of the past. A new model is already replacing it with lawyers at all levels having to work smart and bill smart through greater personal efficiencies in delivering their legal services.    Lawyers across all practices, but especially in solo and small practices, must be lean and mean to survive in this new environment.

Technology is the Key to Smart Work and Smart Billing

It is of course, an indispensable part of a scrivener’s business to verify the accuracy of his copy, word by word.  Where there are two or more scriveners in an office, they assist each other in this examination, one reading from the copy, the other holding the original.  It is a very dull, wearisome, and lethargic affair.  I can readily imagine that, to some sanguine temperaments, it would be altogether intolerable. For example, I cannot credit that the mettlesome poet, Byron, would have contentedly sat down with Bartleby to examine a law document of, say five hundred pages, closely written in a crimpy hand.”

Bartleby, supra at 10.

Survival in the new economic environment requires that lawyers embrace, and not merely tolerate, or worse yet suffer, the new technologies that allow for automation of those facets of practice which can best be accomplished or streamlined by computerization and modern means of communication (e.g., email in place of phone calls or correspondence; teleconferences instead of in-person meetings or court appearaces; document scanning instead of hardcopy storage; computerized pleadings and other document generation and management – storage, sorting, searching, retrieval and presentation; time keeping and billing functions; online filing and service of documents;) freeing lawyers to concentrate on what is intrinisic to our intelligence, education and training — legal problem solving and troubleshooting.

This evolution will be especially powerful for trial lawyers, because the Galley Slave Ship model is uniquely unsuited for cost- effective litigation. “Patently, a six-pack system of handling litigation through the efforts of multiple lawyers each dealing with a relatively small segment of the project, produces added costs.  Yet excessive cost is not the only drawback of a multiple-lawyer system.  The lawyer who tries the case in court may often not know it as well as he should and may not present it to best advantage because he relied too much on the work and impressions of others. He may not be wholly familiar with the issues and pleadings, he may not have met important witnesses until the day of trial, or he may not be fully prepared to adjust to the vagaries and unexpected developments of a trial. M. Fleming, supra at 18-19.  “In trial work, the days of the medieval knight in full panoply, astride his armored war-horse, supported by squire, grooms, armorers, personal attendants called out to battle on all but the most trifling disputes, will vanish or be limited to a few set engagements.  The bulk of legal controversies will be handled by more agile infantrymen, operating singly or in pairs, lightly armed with personal computer, software programming and communications equipment providing immediate access to legal and factual data banks at home base, all at a greatly reduced cost to the client.”  M. Fleming, supra at 86 (emphasis supplied).

Stephen M. Winnick, Esq. is the founder and senior partner of Winnick & Sullivan LLP (www.winnlaw.com); and the developer of Summary Judgment™(www.summjudg.com), a comprehensive case and practice management software tool built on Eastgate Systems’s Tinderbox data platform (www.eastgate.com/Tinderbox).  Additional information about Summary Judgment’s features and operation is available in his prior blog series entitledWinvictus’s Summary Judgment – the Romero Case(www.winvictus.wordpress.com).

Copyright © 2011 Stephen M. Winnick, Esq.  All rights reserved.

I recall an anecdote about Clark Clifford in a book written in the 1970′s, apocryphal perhaps, but telling nonetheless about that bygone time.   Among his many accomplishments Clifford was White House Counsel to President Truman, an advisor to Presidents Kennedy and Johnson, and Secretary of Defense under Johnson.   In this period he was considered by many the most powerful lawyer in America.  In the anecdote a major corporate client was very concerned about proposed tax legislation that might negatively impact his business, and wrote to Clifford asking what he should do.  Clifford wrote him, “Do nothing,” and  included a bill  for $5,000.  The client was enraged and wrote back to Clifford, saying that for $5,000 he deserved more of an explanation than that. Clifford wrote him again and replied, “Because I said so”, and included another bill for $5,000.

That story, and the zeitgeist it represented for our profession in the 1970′s, is as irrelevant to our future now as the buggy whip in the age of the automobile.    Hourly fees as the “lodestar” of reasonable billing are being assigned to the scrap heap of history, not by lawyers naturally, who benefit disproportionately from this inefficient work and pricing model; but by the consumers of our services who will no longer tolerate legal work and fees divorced from the true productive value of  achieving their desired results.  It is being replaced with client demands for alternative fee arrangements (e.g., fixed fees; capped fees; contingent fees based on specific results) where the client has some assurance that the sky is not the limit. “Regardless of billing structure, one certainty is the movement of risk toward lawyers.” R.  Zahorsky, supra at 1.

Small Crafts Advisories

“One morning Jem and I found a load of stovewood in the back yard…  ’Why does he pay you like that?’ I asked. Because that’s the only way he can pay me.  He has no money.  ’Are we poor Atticus?’ Atticus nodded. ‘We are indeed’.”

Harper Lee, To Kill a Mockingbird (Harper Perennial Modern Classics 2002) at 23.

The hyperbaric pressures of the current economic recession, combined with greater scrutiny by clients themselves concerning productivity and cost-effectiveness of legal services, will continue to exert downward pressure on legal fees and costs that can be passed on to the clients across all practices, large and small.  However, these trends will impact solo and small practices most heavily because of the diseconomies of scale in smaller practices, which preclude cutting into the marrow of  essential overhead expenses while still being able to function; and the greater competing demands for a solo or small firm lawyer’s daily time (e.g., office administration, rainmaking, etc.) in managing a legal practice with few hands on deck.  But large firms will no longer be immune from these economic realities either, as evidenced by the massive layoffs taking place and cut backs in hiring.  See David Segal, Is Law School a Losing Game? (NY Times January 8, 2011) (“If you are a law student hoping to land a job at a large law firm, good luck to you.  About 53% of firms reduced or discontinued hiring first years in 2009 and 38% plan to do so in 2010…. This will exacerbate the problem of new graduates being able to find positions in law firms.” …”Overall the need for inexperienced assoicates has decreased and may never rebound.” David Lat, Law Firm Survey Confirms All the Depressing Stuff You Alread Knew About the Business of Biglaw (June 25, 2010) at 1;  R. Zahorsky at 1 (“You just don’t need the bodies and man hours to get answers anymore”… E-Discovery tools have eliminated he need to have junior associates review boxes of documents, which is why you are seeing thousands of junior associates being laid off.”); Lisa Van Der Pool, Job Market for lawyers in 2011 is favorable but don’t expect a hiring ‘frenzy’ (Boston Business Journal, January 10, 2011). The exclusion and exodus from large firms will force ever greater numbers, out of necessity, into small firm practice, swelling still the ranks of solos and small firms, and creating greater competition for an ever-shrinking piece of the professional pie.

Stephen M. Winnick, Esq. is the founder and senior partner of Winnick & Sullivan LLP (www.winnlaw.com); and the developer of Summary Judgment™(www.summjudg.com), a comprehensive case and practice management software tool built on Eastgate Systems’s Tinderbox data platform (www.eastgate.com/Tinderbox).  Additional information about Summary Judgment’s features and operation is available in his prior blog series entitledWinvictus’s Summary Judgment – the Romero Case(www.winvictus.wordpress.com).

Copyright © 2011 Stephen M. Winnick, Esq.  All rights reserved.

However,  as the Galley Slave Ship model has led to inflated hourly rates and billings across all practices while ignoring productivity and cost-effectiveness, that premise is now being widely challenged by the corporate and other wealthy clients which large law firms cater to, especially in the wake of the current deep econonic recession.  Corporations and wealthy individuals who have seen their own business revenues and personal income slashed by the effects of the deep recession, and have been forced themselves to make painful cuts in staffing and overhead and personal lifestyle,  no longer are willing to simply pay the legal bills that are submitted to them without question; or to agree to pay them in the first place without searching discussion.  They are questioning the why, what, how and by whom their legal work is being performed; the billing rates being charged; and, most importantly,  whether all of it is rationally tied to achieving their desired end result in the most cost-efficient manner. They are also demanding alternative fee arrangments such as flat fees or capped fees, or contingent fees based on specific results, which will guarantee that they get real value for their money, or at least limit their risk.  M. Fleming, supra at  31-39. “They are asking for the specific reasons someone is charging $150 per hour and why another is charging $495.  ‘Because that’s what the market will bear is no longer a viable response’.” Jessica Ferm, The Billable Hour Zombie: Why You Need to Act now to Avoid an Attack on Your Business (ABA Law Practice Today, July 2010) at 1 [hereinafter cited as J. Ferm].

Moreover, lawyers across all practices must cater to  independent-minded younger generations of clients raised with instant access to the limitless information which the Internet provides, and who believe they are capable of  making better decisions than their  lawyers once the underlying material facts and applicable legal principles are explained to them.  These Gen X and Gen Y clients as they are sometimes called, tend to be purely result-oriented.  They are focused solely on the bottom line, unclouded by sentimental notions of professional relationship or loyalty.   Consequently,  ”[s]ending a message about paying for your ‘time’ rather than ‘the result’ will not resonate (with them), and you may find yourself with a slowly dissipating pipeline.”  J. Ferm, supra at 1-2.

The corrollary effects of the Galley Slave Ship model on lawyer morale are equally troubling. “General surveys reveal a grim picture of an unhappy profession, with a high rate of burnout, job dissatisfaction, divorce, depression, suicide, and drug and alcohol addiction.  Job stress runs high, with unrealistic demands for billable hours, narrow specialization, inadequate opportunities for creativity, and intense competition for jobs, clients, and partnerships among the top laments.  Many lawyers regret having entered law at all and contemplate leaving for another field.  Every year, about forty thousand actually do.”  Jean Stefancic  & Richard Delgado, supra at 51.

Stephen M. Winnick, Esq. is the founder and senior partner of Winnick & Sullivan LLP (www.winnlaw.com); and the developer of Summary Judgment™(www.summjudg.com), a comprehensive case and practice management software tool built on Eastgate Systems’s Tinderbox data platform (www.eastgate.com/Tinderbox).  Additional information about Summary Judgment’s features and operation is available in his prior blog series entitledWinvictus’s Summary Judgment – the Romero Case(www.winvictus.wordpress.com).

Copyright © 2011 Stephen M. Winnick, Esq.  All rights reserved.

But more than any other factor for the benighted image of our profession, is an entrenched model for the delivery of legal services, particularly at the largest law firms, that rewards and perpetuates hourly fees and billings with disregard for productivity and cost-efficiency in achieving clients’ reasonable goals and expectations.   This model is intentionally designed to maximize or “leverage” such billings in a giant pyramid scheme, at the expense of true value to the client of the legal services being provided.  I call this the Galley Slave Ship model. It is characterized  by senior equity partners at the helm of a galley slave ship, serving as task masters over multiple junior attorneys and support staff, all yoked to the ship’s oars.  The senior partner is motivated by his economic self-interest and that of the firm as a whole, to beat out a rhythm of work designed for comfort and not speed (i.e., to ensure maximum leveraging of billable hours by all subordinate members whose own advancement from junior associate to equity partner is directly tied to high billable hours).  The galley slaves serve as cash cows for the generation of high fees inuring to the benefit of the senior partner and, collectively, the firm’s bottom line.

In its least objectionable form the Galley Slave Ship model encourages wasteful, dilatory legal work masquerading as “zealous advocacy” (e.g., needless depositions and other voluminous discovery disproportionate to the money or other matters at stake, or the information reasonably necessary to handle the case).  Because of the subjective, intangible nature of what lawyers may need to perform to achieve a proper outcome,  in all but the most routine transactions honest lawyers can fairly differ on what should be done to represent the client’s best interests. But it is self-evident that a system which will pay the most money for the most work done on every case regardless of its size or significance; or of the utility of the tasks performed in achieving the end result; will foster maximum churning of the case file instead of cost-effectiveness.

Worst yet, the wastefulness which the Galley Slave Ship model fosters is sometimes accompanied by outright meretricious billing practices (e.g., billing out senior attorneys at top rates for routine or perfunctory tasks; putting more junior associates or paralegal staff on a matter than reasonably required; marking up for court appearances perfunctory matters which could easily be handled by a phone call or correspondence or negotiation; exaggerating hours or otherwise fraudulently overcharging for work actually performed). M. Fleming, supra at 31-39.

In solo and small practices, apart from ethical considerations the meager size of the typical client’s wallet acts as a natural governor on any sharp billing practices. You cannot get blood out of a stone, and many clients will have shot their wad in coming up with the initial retainer.  So sending out exorbitant follow-up bills will not increase the likelihood of seeing further payment; it is likely to have the opposite effect.  Therefore, as a practical necessity solo and small firm lawyers routinely do not bill for all of their actual time, and often must cut their bills further with courtesy discounts to get them paid.

But in large law firms with highly specialized departments catering to large corporations and wealthy individuals (e.g., corporate, tax, patent and trademark, labor law, mergers and acquisitions, and trusts and estates) clients have traditionally believed they were paying “premium fees” for the highest caliber representation which could not be obtained under one roof, or possibly at all, in a small practice. Therefore they were content or resigned to do so without quarrel.  M. Fleming, supra at 4-6.

Stephen M. Winnick, Esq. is the founder and senior partner of Winnick & Sullivan LLP (www.winnlaw.com); and the developer of Summary Judgment™ (www.summjudg.com), a comprehensive case and practice management software tool built on Eastgate Systems’s Tinderbox data platform (www.eastgate.com/Tinderbox).  Additional information about Summary Judgment’s features and operation is available in his prior blog series entitled Winvictus’s Summary Judgment – the Romero Case (www.winvictus.wordpress.com).

Copyright © 2011 Stephen M. Winnick, Esq.  All rights reserved.

In an earlier era closer to when I started, sadly now seemingly quaint, the iconic images of a lawyer included Abraham Lincoln, and Atticus Finch, the hero of Harper Lee’s To Kill a Mockingbird– trusted legal advisors working tirelessly for  underdog clients, with little regard for how or when they would be paid.  Honest, fair-dealing and beyond reproach, this mythic lawyer was justifiably respected by his entire community, and by the lawyers with whom he worked, even the opposing lawyers with whom he crossed professional swords.  It was this image of a lawyer which led me, and I believe most members of our profession, to go to law school and become lawyers.

Sadly, this shining image of lawyers, and the profession at large, is now firmly replaced in the public’s mind with that of land sharks, gouging their clients with exorbitant fees, chewing off their own tails in feeding frenzies of greed and rapaciousness.    ”Surveys show that the public feels about lawyers about as fondly as they do towards automobile repossessors or bill collectors, considering them ambulance chasers who feed off the misfortunes of others and are more interested in money than justice.” Jean Stefancic  & Richard Delgado, How Lawyers Lose Their Way (Duke University Press 2005) at 51 [hereinafter cited as J. Stefancic & R. Delgado].  In a 2006 Gallop poll survey of  Americans’ opinions about the levels of honesty and ethical standards in twenty-three professions, only 18 percent of respondents gave lawyers a ‘very high’ or  ’high’ ethics rating. Lawyers ranked far below nurses, doctors and policemen, and only just ahead of members of Congress, insurance and car salesmen. Nancy Levit & Douglas Linder, The Happy Lawyer.  Making a Good Life in the Law (Oxford Univ. Press 2010) at 64.

The Bates Motel

Much blame for the degradation of  lawyers in society’s eyes is attributed to the landmark Supreme Court decision in Bates v. State Bar of Arizona, 433 U.S. 350 (1977).  Bates held that lawyers are entitled generally to the same First Amendment rights of commercial speeech to advertise their services as any other commercial business.  The holding in Bates overturned centuries of tradition which maintained that lawyer advertising demeans the profession as a whole and must be prohibited. Bates let the genie out of the bottle, and stripped the bar of its ability to effectively regulate lawyer advertising.  It has opened the floodgates to the sleazy advertising and shameless pandering for legal business seen and heard everywhere the public turns — on billboards, television, radio and the Internet — causing all lawyers to be lumped in the same ethical class as used car salesmen.

Stephen M. Winnick, Esq. is the founder and senior partner of Winnick & Sullivan LLP (www.winnlaw.com); and the developer of Summary Judgment™ (www.summjudg.com), a comprehensive case and practice management software tool built on Eastgate Systems’s Tinderbox data platform (www.eastgate.com/Tinderbox).  Additional information about Summary Judgment’s features and operation is available in his prior blog series entitledWinvictus’s Summary Judgment – the Romero Case (www.winvictus.wordpress.com).

Copyright © 2011 Stephen M. Winnick, Esq.  All rights reserved.

“It was on the third day, I think, of his being with me….being much hurried to complete a small affair I had in hand, I abruptly called to Bartleby.  … I called to him rapidly stating what it was I wanted him to do- namely to examine a small paper with me.  Imagine my surprise, nay, my consternation, when, without moving from his privacy, Bartleby, in a singularly mild, firm voice, replied, ‘I would prefer not to.’”

Herman Melville, Bartleby (the Scrivener) (Penguin Books 1995) at 11 [hereinafter cited as Bartleby].

Countless books and articles on modern law practice chronicle the  massive sea changes that have occurred in the past 35 years, profoundly disturbing changes that are transforming the future of our profession.  See e.g.,  Macklin Fleming, Lawyers, Money, and Success. The Consequences of Dollar Obsession (Quorum Books 1997) [hereinafter cited as M. Fleming]; Rachel Zahorsky, Majority Say Law Practice is Undergoing a Sweeping Evolution, Survey Says (ABA Journal, March 26, 2010) [hereinafter cited as R. Zahorsky]. I have been a practicing trial lawyer for 35 years, since I passed the bar in 1975 and hung out my own shingle.   I can testify.

Stephen M. Winnick, Esq. is the founder and senior partner of Winnick & Sullivan LLP (www.winnlaw.com); and the developer of Summary Judgment™(www.summjudg.com), a comprehensive case and practice management software tool built on Eastgate Systems’s Tinderbox data platform (www.eastgate.com/Tinderbox).  Additional information about Summary Judgment’s features and operation is available in his prior blog series entitledWinvictus’s Summary Judgment – the Romero Case (www.winvictus.wordpress.com).

Copyright © 2011 Stephen M. Winnick, Esq.  All rights reserved.

In the prior post – Through The Looking Glass – Part Two - we considered the advice given to Alice in Wonderland: “If you don’t know where you are going, any road will take you there.” This advice is indisputably true. But of course it is not helpful, indeed it is dangerous, if reaching a specific destination – e.g., winning your case; saving a client from certain ruin – is important to you.

In this last post to my Romero blog series, we are going to take a different tack, the one offered up at the top  by Jimmy Dean, actor and sausagemaker.  This aphorism is also true and at the core of effective case management. The facts of a given case may be immutable, like the wind.  But by having a firm grasp of your ultimate destination, and the effects of the wind in reaching it, you can adjust your sails to always reach your destination.

Let’s see how Dan Hosmer uses Summary Judgment to do just that, in preparing for Carson Romero’s criminal trial for possession and sale of drugs within a school zone.  In the process we’ll review many of the key features of Summary Judgment, and explain how to use them in preparing for trial.

Before putting cursor to screen to draft his witness examinations, make exhibit lists, and complete the rest of his trial prep, Dan makes an updated Tinderbox Map showing the key actors and events, their relationships to one another, and the case for trial as a whole.  He follows these simple steps:

1. He creates “Agents” to retrieve all of the relevant Case File Notes concerning each actor (e.g., Carson Romero; Julie Chandler; Officer Woodson); and the important events (i.e., the house party located in a school zone where Carson is alleged to have been selling drugs); the first accident outside the house party where Carson is accused of ramming Julie’s car; the second car crash, a single car collision involving Julie , in whose possession the drugs attributed to Carson were found,  and which later tested positive at a crime lab).

2. He uses Tinderbox’s powerful “Find” feature, which can search and retrieve any text string (e.g., a word or even a few letters strung together) to search for a few key Notes that he will want to keep separated in his Map for easy reference.  In this case Dan has used the Find feature to locate and retrieve a Note called “Drug Testing Lab Report” into which he had “dropped” a PDF copy of the state police crime lab report of the drugs attributed to Carson.  He put that special Note in its own Adornment entitled “Forensic Evidence.”   See No.3 below.   He also uses the Find feature to locate  a Note called “Timeline” – which is a chronology and timeline of the case facts which he had prepared as the case unfolded; and also “Poss. w/Intent to Distribute”, which is a Note in which he has stored his legal research concerning the specific offense (e.g., the relevant statute and case law).  He puts those special Notes which he may want to refer to repeatedly, near the bottom of his Map where they are handy and can be easily popped open to see their contents.

3. Next he creates “Adornments”  (background boxes) to visually distinguish the important elements of his Map, and he gives each Adornment its own title and distinctive color.

4. Then he moves the Agents  inside of their applicable Adornments (e.g., House Party; Carson Romero; Julie Chandler, etc.).   Because each Agent contains an “Alias” copy of each Note it has retrieved, if while analyzing the case  for trial using his Map  Dan decides to make changes to any of the Aliases stored inside an Agent, then the original Note in his SJ outline will likewise be changed simultaneously.

5. Finally, when he has all of the Notes inside their Adornments logically structured, he creates visual Links between them, which will help him in developing a coherent trial strategy and effective tactics.

This is what Dan’s Trial Map looks like:

Having thought through the issues and obstacles in trying his case, Dan next opens up the Trial Preparation section of the SJ Outline and gets down to business.  In it he finds everything he needs to get the case quickly organized and himself prepared for trial, including subfiles for Witnesses  and Witness Exam forms for drafting direct and cross examinations of each witness;  and Evidence broken down by subcategories (e.g. Contracts/Agreements; Medical Records; Medical Bills; Business &/or Financial Records; Tangible Evidence; Chalks/Charts, etc.).   He can easily create and tailor additional subfiles to fit the case proof, and/or remove those that are not relevant.  Witness and Exhibit List forms are provided into which the well-organized witness testimony, and evidence, can be easily inserted (e.g., by cutting and pasting).

With the Trial Preparation section completed Dan can focus on the Trial itself.  He opens the Trial section of SJ which includes the “Order of Battle” – a handy outline of the anticipated trial elements from pretrial housekeeping matters through verdict/finding; and subfiles covering Impanelment; Opening Statement; Witness Examinations; Motions for Directed Verdict/Finding; Jury Instructions; Closing; and Verdict.

Given the outstanding quality of his trial preparation, there is little likelihood that Dan will lose his case.  But if worst comes to worst and the outcome is disappointing, Dan will be able to challenge it effectively in the Post Judgment and Appeal sections of SJ which cover everything required to preserve the record and successfully appeal an adverse judgment.

Last, but certainly not least, as this week the rent  is due on Dan’s apartment, and it’s a payroll week at the office, in the Time & Billing section of Summary Judgment Dan makes a time slip for the hours he spent in preparing for trial.

And he prepares an Invoice to send out to Joe Romero, Carson’s father, using SJ’s simple Invoicing subsection, which allows rapid collection of all of the relevant time and billing data which Dan has entered himself as the work progressed (e.g., time slips, expense slips, payments and credits, prior balance owed, etc.), makes the necessary financial calculations, and produces an invoice which his client will be more likely to pay because of its simplicity and clarity.

[N.B. I  recommend to my readers that they follow the parallel Romero case blog of Mark Bernstein (Eastgate Systems, Inc.), the developer of Tinderbox. The focus of Mark's blog is on the mapping features and uses of Tinderbox (which are  incorporated in Summary Judgment™) for analyzing complex fact patterns that are unfolding over time.]

Copyright © 2009 Stephen M. Winnick, Esq. All rights reserved.

I’ve saved to this point in the Romero series my concepts of how to use Tinderbox’s™ and Summary Judgment’s™ mapping features.  That is because the mapping features are perhaps the most powerful, but also the most esoteric and technically challenging to employ effectively; and, it has taken me a number of months to understand them myself.

For lawyers, the Summary Judgment outline is designed to ensure that the tasks required to arrive at your destination, are performed automatically and effectively as the case progresses. SJ accomplishes this by digitally tracking the gathering, filing, retrieval, analysis and presentation of information a lawyer must logically follow to manage a case from inception to successful conclusion.

For Tinderbox users generally, for whom there is not a ready-made roadmap leading to your destination, I recommend that serious thought be given at the outset of your problem or project to defining key elements for which notes and text are going to be gathered, organized, analyzed and eventually presented.

For example, for a research and writing project  — as in writing a novel, a play, an academic paper, a documentary work – to define preliminarily the key people; events; transactions; issues, etc. – that will form the skeleton of the research and writing.  As alluded to in my prior Getting a Grip post, Tinderbox is extremely flexible in allowing revision and customization of these outline elements down the road, as the problem or project becomes better understood.  But in my view, having a clear destination in conjunction with an initial structure for the note-taking itself,  is indispensable to getting on the right road from the start.

Once these fundamental elements are preliminarily defined the following steps in organizing a Tinderbox outline will lend themselves naturally, as Summary Judgment does for lawyers, to performance of the underlying tasks necessary for successful completion of the project:

1.    Create a separate “container” or subfile for each key element by opening a TB “Note” for each. Click on the Note menu at the top of the TB screen.  Choose “Create Note”.  In the Create Note dialog box that appears, give the container/subfile an appropriate title (e.g., “People”).

2.    Consider giving the container/subfile (and all notes that are to be filed within it) an identifiable color by using the pull down menu of colors in the Create Note dialog box.

3.    Consider adding other distinguishing features from the Note menu such as a distinct “Shape”, “Border”, “Pattern” or adding a “Badge” (i.e., visual symbol/icon, e.g., a “red flag”).

4.     In the Create Note dialog box there is a section called “On/Add Action.”  This section will allow you to create a “Prototype” form for the container, on which all other notes of the same type will be modeled (e.g., all notes relating to “People” will have the same characteristics such as shape, color, badge, etc.). As a result all notes filed in the  container will have the same recognizable characteristics.  In the “On/Add Action section of the container type: Prototype=”[Name of Prototype – e.g., “People Prototype”]“.

5.    Next create the Prototype form itself (e.g., “People Prototype”) as follows:

a.    Open another TB Note using the Note menu at the top of the TB screen;

b.    In the Create Note dialog box give the Prototype the same name as the container designation for the Prototype (e..g. “People Prototype”).

c.     Importantly, check off the box marked “Can be a Prototype”.

d.    Create “key attributes” for the Prototype (i.e., elements that you will want to fill in and have appear at the top of each note created from that Prototype, which can later be used for sorting and retrieving notes based on the Prototype).  For example, for the People Prototype, key attributes might include the Name of the person; the Date of the note entered concerning that person; the Source of the text concerning that person; the Citation (e.g., to the book, research work, etc. from which it is drawn).

e.    Then add the same visual elements for the Prototype as you used for the container itself (e.g., color, shape, border, pattern, badge).

f.      Move the Prototype inside of its container by pressing the tab key so the Prototype becomes a subnote within its designated container.

6.    Using the Prototype.

a.    Open the container by clicking on the arrow alongside the left side of it to expose the Prototype stored or “nested” inside of the container.

b.    Click on the Prototype to highlight it.

c.     Hit return.

d.    A new form of the Prototype will open and permit you to edit it by filling in the key attribute elements at the top and then inserting the text of the new note in the body of the note form.

e.    As discussed above, the new note will have the same characteristics as the Prototype itself (e.g., shape, color, badge, etc.), and be properly stored where it logically belongs as a subnote inside of the container.

7. By following the same procedures for creation and use of Prototypes for the other key elements of your project, all of your project notes will be logically stored where they belong, easily distinguishable by topic, able to be searched and retrieved quickly, and in a form which lends itself to effective use of TB’s powerful mind-mapping features for analysis and understanding.

The effectiveness of this approach to Tinderbox note-taking is demonstrated by the mind map shown below for “A Christmas Carol” by Dickens.   Distinctive prototypes for notes relating to the People and Locales were created at the outset, allowing an effective mind map to be made using a Tinderbox map view.  The mind map utilizes colored “Adornments” (boxes) to group text notes by category (i.e., for People and Locales).  Because the notes are modeled after distinctive “People” and “Locales” prototypes, they are readily distinguishable by, for example, color and shape.  Visual links created between the key persons and locales exposes their logical relationships to one another and the overall story.

[N.B. I  recommend to my readers that they follow the parallel Romero case blog of Mark Bernstein (Eastgate Systems, Inc.), the developer of Tinderbox. The focus of Mark's blog is on the mapping features and uses of Tinderbox (which are  incorporated in Summary Judgment™) for analyzing complex fact patterns that are unfolding over time.]

Copyright © 2009 Stephen M. Winnick, Esq. All rights reserved.