I've long struggled with the appeal of Seth Godin. He's a successful guy, having built and sold several companies and written several books, but I've found his writing (what little I've read of it) to be lacking practical value. There never really seems to be anything actionable there that will move your life or business forward. But maybe this is just me. I'm not a marketer by trade, or the sharpest marketing knife in the cabinet, and maybe this has something to do with it. He's a crack-shot marketer so maybe only other marketers truly understand him? I'm also not a huge reader of self help books, including those that can be categorized as professional self help. (For my money, Neil Strauss's "The Game" provides excellent insight into this issue, but that's a subject for another post.) Much of Seth's writing seems to fall into this category. Feel-good, but difficult to act on. But many people I like and respect from several different walks of life seem to like him and must find his advice useful. So I figured there must be something wrong with me. Some block I have that prevents me from grasping his gems of wisdom and putting them to use.

The few times I've read his stuff (while scratching my head) he's usually talking about marketing, or business organizations, or personal inspiration, so it's fairly tough for me to really assess if it's just me or his writing. These aren't topics in which I claim much expertise, so it's hard to say. Then he finally wrote about a subject I actually know about and have some personal experience with: the law ("Hard work vs. long work"). Finally, a topic where I could probably relate to his writing, if it was ever possible. I excitedly clicked over to see if I could digest (and hopefully put to use) his latest nuggets of wisdom and to see if they could unlock a whole new universe for me:

Long work is what the lawyer who bills 14 hours a day filling in forms [docs].

Hard work is what the insightful litigator does when she synthesizes four disparate ideas and comes up with an argument that wins the case--in less than five minutes.

Long work has a storied history. Farmers, hunters, factory workers... Always there was long work required to succeed. For generations, there was a huge benefit that came to those with the stamina and fortitude to do long work.

Hard work is frightening. We shy away from hard work because inherent in hard work is risk. Hard work is hard because you might fail. You can't fail at long work, you merely show up. You fail at hard work when you don't make an emotional connection, or when you don't solve the problem or when you hesitate.

Unfortunately, I fared no better with this than with the bits of his writing I had previously read.

I looked to the members of my peer group to see what they were saying about Seth's latest. They all passed it around. The law firm consultants surmised (not surprisingly): "Seth really nailed the legal profession with his latest." The mentors at large excitedly directed their mentees to immediately soak up Seth's wisdom and put it to use. I'm sure the legal marketers gave it the virtual thumbs up ("oh yeah...that's what I'm talkin' about!"). Pretty much everyone was nodding along as if they understood exactly what Seth was talking about. Except for me. I had no clue. It's almost as if Seth's post was written in an ancient forgotten language and everyone else had access to the translator but I didn't.

So...can someone please help me out and explain exactly what Seth was talking about here. Is it some variation of the "work smarter, not harder" rule that your Spicoli-esque co-worker at the pizza place or movie theater probably told you back in the day? Is this just the (similarly wonderful sounding but always elusive in application) so-called 80/20 rule, revisited? Or is there something more there? I understand his concept that in law, there is grunt work and there is more strategic work. That's stating the obvious. Everyone tries to avoid the grunt work as they gain experience and move up the food chain. Once you come to this (glaringly obvious) realization, what is Seth telling you that's putting you on that path? The "long work" will always need to get done. It will not magically disappear. You may be able to chip away at some of it and eliminate some parts of it, but nothing in Godin's post even comes close to helping you in this regard. Either way, there's still plenty of "long work" left to go around.

Maybe I'm missing something? I'm probably just not "thinking outside the box."

I'm not a fan of what "[___] can learn from [___] posts," both because anyone can learn something from anything, and because this type of a post has been stretched to the limit by blogs. But this article ("How Your Journalism Sausage Gets Made") by Susannah Breslin caught my eye, and I think lawyers can learn something from it. Breslin writes a blog called "Pink Slipped" for Forbes, and she decided she was going to chronicle an article from conception to printing (or posting).

Journalism is similar to lawyering in many ways. Of late, journalists are struggling with a professional malaise which bears an uncanny resemblance to one that seems to have afflicted lawyers. Both professions are under attack from all sides. Gone are the days when you aspire to have a comfortable and stable byline in a town (or city) newspaper or a partnership in a law firm (or established practice on your own). We both live in danger of being replaced by machines, algorithms, or content farms (LegalZoom . . . Huffington Post), or so goes the conventional wisdom. An enormous premium is placed on personal branding, and marketing one's self, in a way that almost eclipses the question of someone's actual work product. Twitter and social media are all the rage. Professional consultants, camps, and conferences dominate the advice landscape.  Against this backdrop, it was refreshing to see Breslin's piece about how to be a journalist. It included none of this.

First and foremost, she dismissed (as "obvious and, frankly, rather dull") the conventional wisdom, which included advice to "intern, join a group, Twitter." That got my attention right there.

The second thing which caught my attention was that her vision was not clouded by technology. When she talked about what gear she packed she did mention an iPhone, but she mentioned something else:

• Several pens. If you’re a writer, and you don’t have a pen, you look stupid.
• Notebooks. I use 9.75 in x 7.5 in Composition books and 5 in x 3 in notepads.

Wow, a proponent of paper. Interesting. While most journalists (and lawyers) who dole out advice include mastery of social media (and of course, the iPad) near the top or at the top of the tools in a journalist's (or lawyer's) toolbox, it didn't make the list for her. She didn't say - "check with your Twitter stream to see what they think is interesting . . . find your story there."

Her overall advice was to get out of your comfort zone - it was focused on actually "doing stuff":

The real reason I like journalism is because I feel like it shows whether or not you are a coward. A couple of years ago, I wrote a big story about how the recession had effected the adult movie industry. Before I decided to go, I was very conflicted. I wanted to go, and yet I didn’t want to go. I couldn’t decide what to do. Finally, one day, I was cooking something, and I looked at the cupboard in front of me, and it occurred to me that the only question worth asking was: What kind of person do you want to be?
...

I hope you will go out and do good stories, the hard stories, the weird stories. Not because they need to be told, even though they do, but because they are fun, because they are the places in which you will find yourself, because they are the times that will crystallize your understanding of who you really are. That’s the thing about journalism I always forget until I’m back in it, until days like today. That packing up your gear and heading into the unknown of a story unfolding is really what journalism is all about, not jobs, not your peers, not the words. It’s just you and the story and whatever is about to happen.

I'm not a big proponent of self help materials, but the article is excellent, and young lawyers (particularly) would benefit from reading it from a professional development perspective.

Related: Her "what kind of person do you want to be" question reminded me of a post at Rebecca Tushnet's 43 (B)log about a lawyer who was on the tail end of a tongue-lashing from a court in a foreclosure case. The post (and entire transcript) are both worth a read as well.

Also related: Brian Tannebaum: "Where Have All the Lawyers Gone?"

First in court (in Delaware) and then on the internet. (h/t Brenda Speer)

Ouch!:

I'm not sure what exactly the "iPad for lawyers" crowd is smoking, but whatever it is, it's potent.

A quick bit of personal disclosure on my own work experiences with the iPad. I tend to be pretty free in my purchases of gadgets and tech. tools. I don't have any sort of committee I have to ask when I buy something, and as a small business owner, I have the relative freedom to buy and experiment. (Some would say that I freely indulge.) I own an iPad and use it frequently (daily). However, I find it fairly difficult to use the iPad for anything more than "light work" without jumping through a lot of hoops. I may read a document here and there, send a few emails, but beyond that I rely on my iPad for one thing: surfing the web. (And for this, it's wonderful, unless you like to frequent flash sites.) My first jarring realization that the iPad could not function as a workhorse came when I decided to take the iPad instead of my computer on a trip. I was sitting in an airport lounge trying to crank out a blog post, and it was easily one of the clunkiest experiences of my entire life. I decided to scrap the post and move on to more mundane tasks such as paying my bills. This was easily as clunky. Let's just say that if you have to log on to a site in order to accomplish something, the iPad does not make this easy. Well, that's not entirely true, it can be easy, if you have the right app or add-on! The same goes with producing any sort of written material. If you want to crank out a short letter on the iPad, you have to hen-peck your way through the iPad's keyboard. I guess this can be made easy as well, if you have the auxiliary keyboard that you can use with the iPad. As I contemplated my increasingly poor-looking choice of deciding to use the iPad instead of a laptop (or netbook/Macbook air) an email popped up in my in-box. Someone had suggested redlines to a document I had written. I opened the email and the document. No redlines. Another task which would have been dead simple on a laptop seemed Herculean on an iPad. Again, it is accomplishable, if only you had the right app. (I think.) The fact that you could not even see the redlines on a document someone emailed you without purchasing something additional was a pretty clear indicator to me that the iPad was not going to be a substitute for my laptop any time soon. (On a loosely related note, Seattle lawyer and app mogul Michael Schneider released a track changes app for the iPhone. Check it out here.)

With this in mind, I'm constantly surprised by the refrain from many lawyers and consultants about their wonderful time and energy saving-experiences using the iPad. You almost get the sense that the iPad has transformed their practice (and their lives). Exhibit A: "A day in the Life of an iPad Lawyer." In this post, Josh Barrett provides an example of how he incorporates his iPad into his daily professional life, and uses the iPad in his lawyering. He wakes up, surfs a bit on his iPad. He listens to a podcast on his way to work on the iPad. Next he's at a client meeting and he takes notes on the iPad. Later in the day, a client asks for a current version of the agreement, and he accesses the document using GoodReader, annotates it and sends it off to the client. The post contains many similar examples, but they all have one thing in common. For every task, he calls on an app (e.g., Goodreader, DropBox, Elements, PlainText). (See "The iPad for Lawyers: All About Apps.") After reading this post, I'm left with a big question - "why?" What's the benefit of using the iPad and jumping through all these hoops to complete tasks which would be otherwise simple on the laptop? Does the one extra minute it takes you to boot up your laptop totally undermine your work experience? Does the profile of the laptop (which interposes a screen between you and the person you are meeting with) really detract so much from a client meeting? Does the extra 0.7 pounds that the MacBook Air require you to lug around really weigh you down that much? To each his or her own, but the choice to jump through a bunch of hoops to incorporate the iPad into your practice seems forced. We all know people who try a bit too hard telling you (and in the process themselves) that everything is going great. This is the iPad lawyer, when it comes to the iPad and productivity.

There's another question that's lurking in the background, and that is, does the modern lawyer really need to work so much "on the go?" Do we really need to be listening to podcasts in the car, and reviewing documents while at Starbucks? (I understand if you actually work from Starbucks full time, but that's a separate issue.) Even if you take the view (which I do) that the old style view of the work/life balance could use some shifting, it seems like a stretch to think that lawyers need to work on the go in order to maintain a liveable work/life balance. It's one thing to work remotely, work from home, etc., and have some flexibility in terms of where you work from. But do we need to really work from 4 or 5 different locations in a given day? Do we really need to work from mobile devices? And how does this affect the quality of our work? I don't know about everyone else, but I find it harder and harder to focus these days (thanks internet!) and my work product while I'm on the go (e.g., from an airport lounge) just lacks. There's no two ways about it.

The real question isn't the mobile work issue. If people want to work from the road, that's fine, but what about the time spent that is spent figuring out how to use your iPad in your legal practice. This is what gets me. There are entire sites devoted to "how to be an iPad lawyer." In this day and age, if you need to read stuff to figure out how to use a tool in your professional life (and the tool is not accomplishing something you otherwise could not do) it's probably a waste of time to incorporate this tool into your professional life. There's a reason why you don't see masses of blog posts devoted to "how to be a laptop lawyer," or "how to be a mobile phone lawyer." No one would read these posts. They state the obvious. At the end of the day, the iPad for lawyer guidance just seems overwrought. It would be one thing if people were telling you how to be more efficient, but they're just telling you how to get what you can get easily and effortlessly done on a laptop on an iPad. (In their defense, there is a coolness factor when you are working on the iPad. You may or may not be cranking out the work, but hey, at least you look cool. Seriously, if you are pressed for time, trying to juggle the various aspects of your life, wouldn't ramping up to use the iPad be the last thing you want to do? As a young lawyer who is trying to soak up as much experience and knowledge as possible, do you want to spend your precious time trying to figure out how to incorporate the iPad into your budding legal practice?)

Crazily, someone actually wrote a book for lawyers about how to incorporate the iPad into your legal practice (actually, it may be an app, not a book): "iPad in One Hour for Lawyers." I don't run any bar organizations, but if I did, I would consider automatically revoking the bar card of anyone who buys this book.

See also: "Bye Bye iPad" (William Carleton)

Added: if you go down the "iPad for Lawyers" route, check out this column by Niki Black "iPad Apps for Lawyers." I'm sure it's useful.  (See also "The iPad as an Indispensable Lawyering Tool" from the Lawyerist.)

Also, a funny tweet from ABA's TechShow:

An article in the Globe and Mail ("The judge who writes like a paperback novelist") raises a good point about embellishments in judicial opinions. I cringe when I see overly indulgent prose in judicial opinions. The same goes for pop culture references.

The judge referenced in the Globe and Mail article changed his writing style to be "more accessible." Here's an example:

And in a murder case last year, R v Simon, Judge Watt commenced: "Handguns and drug deals are frequent companions, but not good friends. Rip-offs happen. Shootings do too. Caveat emptor. Caveat venditor. People get hurt. People get killed. Sometimes, the buyer. Other times, the seller. That happened here."

The article includes a few other examples as well.

There is no requirement that judicial opinions be dry. In fact, there are many judges whose opinions are a pleasure to read because the are the opposite of dry (e.g., Judge Kozinski). (These judges would probably all make good bloggers as well I'm guessing.) Good writing also helps the author make his or her point and judges are no different. However, at a certain point, prose can be overly indulgent, and if the judge is merely writing to demonstrate how clever he or she is, this is a disservice to the litigants and the public. There's also the point (made by Prof. Tanovich, a law clerk for former Supreme Court of Canada Chief Justice Antonio Lamer) that an opinion that is sarcastic or glib can "sensationalize and desensitize" tragic events that are the subject of opinions.

The article does not mention pop culture references but these are particularly problematic. These are the worst form of indulgences in court opinions. The judge is obviously citing the reference to show that he or she is "hip" or "with it." Pop culture references mean different things to different people, and are surely lost on people who aren't tuned in to pop culture. (Last year someone cited in a blog post to a Texas Supreme Court opinion which referenced Star Trek II: The Wrath of Khan. It was cute, and received attention in certain circles, but what if the litigants were not treekkies?) An opinion containing pop culture reference will also not stand the test of time. Justin Bieber may be popular now, but he may turn out to be unknown hundred years from now, and if you drop a reference to him in your opinion, people who are reading a hundred years from now may have no clue as to what you are talking about. (OK, this particular example isn't a great one, but . . .) 

How about references to the quotations of historical figures which have withstood the test of time (in this case Sun Tzu)?

I swore off (and cut short my brief foray into) blogging about the future of the legal practice, but this deserves a comment. Apparently someone conducted a survey about where people look for legal services and a very low percentage of people use online sources to find a lawyer. Shockingly, most people - rather than searching online - ask a trusted source for a referral. People "consult" websites - 20% consult Facebook, 15% blogs, and 9% Twitter (??). The survey had a bunch of other facts and figures and if you're curious, you can access the survey here [pdf]: "Perspectives on Finding Personal Legal Services."

The kicker? The survey was conducted by polling people over land lines:

The survey of more than 1,000 adults was conducted through land line telephones. The results could be different if cellphone users were surveyed, the standing committee report cautions.

What forward thinking organization would conduct a survey by interrupting good people on their home phones when they are eating dinner to ask about where and how they shop for legal services? That would be the American Bar Association!

I'm surprised that there is even a debate over the merits of paper.li.  (I'm equally surprised that I'm wasting a blog post on this topic, but that's neither here nor there.)

Scott Greenfield complained about paper.li's use of content without attribution or the addition of anything meaningful. ("Rocket Doesn't Matter.")  In response, Rocket Matter (whose daily prompted Scott's post) quickly commented, posted, and killed Rocket Matter's paper.li daily. ("Boy Did I Step into a Hornet's Nest with Paper.li.")  Brian Inkster canvasses this activity, adds his own thoughts, and asks: "Should lawyers have their own Paper.li" (via Charon QC, who sums up my sentiments: "The *Seriously Sh*t Daily.Li* is OUT! – gawd help us…"). 

It's somewhat distressing that we even need to have this debate. I agree with Scott and Charon, and I'm surprised Brian even treats this one as a close question.  (Read the comments to his post by the way.)

There are a few things that are wrong with paper.li:

1. faux curation: First, paper.li is billed as a "curator." Even if - unlike me - you don't think curators should be restricted to museums, or that curation is just an annoying buzzword du jour, paper.li is a terrible curator. Among other reasons, paper.li does not distinguish between positive and negative feedback. If someone in your stream mentions an article, it doesn't matter whether it's mentioned in a positive or negative light, it's signaled for inclusion into your "daily." As others have noted, this inclusion is attributed to you, and no commentary is added. I guess people can click through to the original tweet, but the daily itself omits any positive or negative feedback. Curation may or may not be on your list of top one million ideas for the new millenium, but paper.li is a terrible curator. (Not that algorithms make good curators to begin with, but that's a separate story. See "Rise of the Curators." If you're looking for a collection of tweets and stories from people in your stream that's presented in a nice, readable format, check out flipboard. I still prefer the serendipity of the twitter stream itself, but flipboard is a fun app.)

2. paper.li is spammy: Not only is paper.li a bad curator, paper.li is spammy. It may not fit within the conventional definition of spam, but this does not mean that it's not spammy. Its default settings are set to send out daily tweets with your "daily" - these tweets also mention the top "mentions," which are the people who get prominent billing in your daily. The sole currency of paper.li is people retweeting dailies because they are mentioned.  (The bulk of traffic to paper.li dailies are from people who check to see whether their tweets are mentioned in the dailies.)  I'm sure the traffic patterns to the dailies will verify this in a heartbeat.  The fact that paper.li "publishers" send out daily tweets with links to their dailies - rather send out their dailies via email subscriptions or rss feeds - is telling. This is partially explained by paper.li's poor opt-in/default features, but the telling fact is that no one ever subscribes to a paper.li. You'd be hard pressed to find a paper.li with over 10 subscribers. A paper.li has a home on the web, but it does its dirty work on Twitter. "Publishers" send out tweets which reference people who are "mentioned" in the daily.  And people who are mentioned blindly retweet these links. Brain Tannebaum captures everything that's wrong with this practice here. (As a side note, continuously letting people know via @twitter that you've mentioned them in a blog post or article is just bad form. Anyone with a pulse can figure it out for themselves, without you having to point it out. It's a growing pet peeve out there to see someone write an article and then follow it up with a series of -- "@johndoe, you've been mentioned in my blog post" - tweets.)

3. paper.li crosses the streams: A wise old social media guru once gave me four words of priceless social media wisdom: "don't cross the streams." Social media accounts should be kept largely separate. There's nothing wrong with cross-posting once in a while (or promoting your blog posts via Twitter or Facebook), but setting your accounts from one service to automatically post to another is a cardinal sin. Paper.li and its publishers violate this basic rule.

4. paper.li is an insult to newspapers: The newspaper industry is obviously going through cataclysmic shifts and has been over the past five to ten years, but it's a disrespect to newspapers everywhere to equate what paper.li puts out with even the smallest, dying, most irrelevant newspaper in the most obscure newspaper town. I'd take the Timbuktu Tribune over anyone's paper.li daily any day of the week. (Shockingly, the Guardian puts out the "Guardian Law" daily, which has a paltry 29 subscribers. Any newspaper publisher worth his or her salt would have killed this one a long time ago.)

__

So, if you fancy yourself a "publisher," and want to put out content that you have no control over and that's spammy, go for it. Set yourself up with a paper.li "daily."

Hotmail released a new feature I guess - temporary email addresses that you can use for things like "spam, lukewarm dates or evil deeds." Meanwhile, a British rapper (Dan Bull) released this Hotmail dis video that's pretty funny [via TNW; Seattle PI; Boing Boing]:



Google also has some fun at Microsoft's expense: http://www.hiybbprqag.com. [Marshall Kirkpatrick; John Paczkowski]

On a more useful note: "TigerText Service Allows for Temporary Text Messages That Delete Themselves." Also, there's a Farmville for Dummies coming out.

I've drafted and deleted several posts about Seth Godin. People I like and respect swear by him .. emphatically. I've had trouble digesting anything of his. It just never seemed that useful practically to me. He is a good marketer and businessman, and great at coming up with short posts that get you enthusiastic about doing stuff, but none of his writing ever resonated with me. But I think one of Godin's ideas is actually harmful: the so-called concept of the "tribe." I don't know if he came up with it, but he certainly popularized it (or is seen as having popularized it). (See, e.g., "Tribe Management.") As I understand this concept of the "tribe," companies and individuals are not supposed to market to their customers and prospective customers - instead they should connect with them personally, and build a circle of friends that they eventually will sell to. You're not really selling anything at this point, just recommending products or services (some of which happen to be your own) to your fellow tribesmen (or women). People have embraced this concept over the years and have built online tribes for themselves. Some helpful, and many (in my opinion) harmful. From what I see, the entire dynamic is harmful.

How do most people build tribes these days? In the old days, I imagine tribes were built or formed by necessity - your tribe is something that is marked out by nature that encompasses a group of people who endeavor to survive against the forces of nature. I wasn't around in the old days, but tribal life likely involved a fair amount of violence and force. In contrast to the tribes of old, the modern (online) tribe is not something that is characterized by violence. The modern tribe is built around positivity and enthusiasm, fueled by social media. You go out there and promote something you like - the chieftain of the tribe recognizes your promotion (and value to him or her) and voila, over time, you become a member of his or her tribe. (In the old days, people were battling for their limited piece of the survival pie - these days, we're battling for our piece of the attention pie.) What's the result of all this? A psychophantic cycle of online promotion. Another way of describing it would be a pyramid scheme built around attention marketing. (You promote my content or brand and I promote yours.) Geoff Livingston highlights this in a blog post that aptly captures the dynamic: "The Age of the Sycophant." It's tough to quantify something like this, but the emergence of actual business built around measuring influence (e.g., Klout) is to me a sure sign that there's probably a lot of this going on out there.

I've railed on the overabundance and excessiveness of online positivity here before. I am an avid user of Twitter, but one of my complaints about it is that it skews to thoughts and sentiments that are positive, and this may have negative consequences in the long run. (People are more positive than they are otherwise and positive about things they may not be off-line.) This positivity is a core ingredient in the online tribe's dynamic. What's the anecdote? Mike Cernovich has a very interesting post where he urges people to "Go Start a Fight." Mike flags the exact same dynamic that I'm seeing as the toxic ingredient in the mix:

People wake up wondering what nice things others have said about them. People actually Google their names on a daily basis! Mornings are made when someone has given us a virtual blow job.

Yet as a nation of druggie, we understand the unstated deal. The dealers dole out the good stuff to those who praise them. If you criticize others, you will not get the soma.

I am probably too peace-loving to take Cernovich's medicine, but he makes a great point and offers an intriguing solution to the problem. Either way, I'm convinced there's a problem, and that's the first step (as they say).

More on this topic from Scott Greenfield: "Because We're Not Really Friends."

CAN-SPAM decisions over the years have been fairly unfriendly to plaintiffs, but one open question was the extent to which CAN-SPAM preempted state spam statutes. Lower courts, particularly in California, have been across the board on this. The California Court of Appeal recently issued a blockbuster of a decision in Hypertouch v. Valueclick.

The court held that CAN-SPAM does not preempt California's spam statute, even though the state's spam statute does not require plaintiffs to prove the elements of fraud. This means that plaintiffs can sue for emails that contain misleading subject lines, incorrect header information, or which are sent through domain names without the registrant's permission, all regardless of whether they can prove reliance and damages. Second, and even more important, the court held that companies whose products or services are advertised through non-compliant emails can be held liable, even if they didn't know or had no reason to know of the underlying violation - i.e., the statute imposes strict liability. This means that if a company contracts with someone else to market the company's product, even if the parties have an agreement in place that the marketing will comply with state and federal spam statutes (and even if the company spot checks the marketers work) the company can still be held liable for emails that are found to violate California's spam statute.

This is a pretty significant decision, which I'm sure will be appealed. We'll see what the State Supreme Court does with it if it decides to hear the case. I blogged in a bit more detail on the case at Professor Goldman's Technology & Marketing Law Blog (with comments from him as well): "CA Appeals Court: Claims Under State Spam Statute Not Preempted by CAN-SPAM."

Given the significance of this case, I can see companies or trade groups weighing in as amici on this case. They should certainly think about doing so.