Beachlandguy: Law and Technology (and Life too)

Thoughts and questions by a lake dweller

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Suddenly, we are popular

Interesting. Over the past two days, this blog has caught fire. Is it the content? The visuals? No, I think it is hackers. Russians? The Obama administration? Hmmmm. My guess would be less exciting. So, for both of you who read this blog (I flatter myself), govern yourselves accordingly.

Spring May Come and the Eeros

Today is the first day that it feels like the days are getting longer. I know that this has been going on for three weeks, but today it feels noticeable. It is 5:10 and the last vestiges of the sunset are still visible.

On the technology front, I have been enjoying the Eero routers that I got for Christmas. It feels like the wifi coverage is better in the house. I love the interface. With all of the IoT that we run in the house, doorbell, smoke alarms, thermostats, locks, Amazon products, Sonos products, lights, I am amazed that we have not overloaded the bandwidth. So far so good.

Customer Service and a tip.

We had three examples of customer service this past week, and thinking about them gave me an insight.

My wife ordered some t-shirts for the 4th of July from Cafe Press. She was concerned about them getting here on time and she ordered in plenty of time. She also paid for expedited shipping. On Thursday, June 30, she checked and sure enough, Cafe Press had sent the shirts to the wrong address, on the other side of the country. She called. She explained the timing. The customer service rep was helpful, and assured her that they would reship, so that the shirts would arrive Saturday. They would also refund the expedited shipping.

On Saturday at 4pm. My wife called again. The customer service rep was again very pleasant and explained the mistake on the first shipment (something about FedX rerouting numbers) and the since the expedited shipping had been refunded, the Cafe Press shipping department had sent this batch of shirts by regular shipping. Needless to say, neither of us will buy anything from Cafe Press again, and we will, if asked, tell this story as a warning.

We got the obligatory follow up survey yesterday. Cafe Press refunded the whole order. The shirts arrived Tuesday and then again Thursday. (the first errant shipment).

On Tuesday, I made a reservation on Hilton’s website. It was a special deal for gold passport members. I knew that. I knew that it said that it was not cancellable and that it was not refundable or changeable. And when I hit the button to finish the transaction, I realized that I had entered the wrong date.

I called and spoke to a customer service representative and told her what I had done. She was not in the US. She told me that she could not change the reservation. I asked: So I am stuck? She then said that we could cancel this reservation and rebook for the right day. There was no fuss. There was no “I need to talk to my manager.” She just got the job done. She was polite but not fawning.

I was at the athletic club, trying to log in with their fingerprint reader. It spit back something odd. The receptionist told me to hold on a second. She kept looking at the computer. I was going to change into my bike clothes that were in a locker and ride home. I was in a hurry. At some point, the receptionist got frustrated with the computer and just looked up and smiled and said: You’re fine.

Here is the point. Everyone was polite. The Cafe Press folks were trained to speak politely and even be a little obsequious.


But you must solve the customer’s problem. You have to get it right. Somehow this gets lost in the current scheme of customer service training. Nice is good, but listening is better. The win is solving the problem. To understand the problem, you have to listen to the customer.

The GM Mess From The View Of A Process Guy

The GM Ignition Switch: Good Processes Would Have Prevented This Mess.



The “Ignition Switch” trials are all over the legal news. The choices of the first plaintiffs seem curious. Maybe someone who can tell a consistent story would be a good choice. However, I believe that many of our clients are fretting over how to prevent this type of high profile litigation from engulfing them.


How did a once proud company get it so wrong? What does the backlash against GM’s decision-making (or lack of decision-making) mean to other manufacturers?

I have been stewing about this for some months and I wanted to share my thoughts.



How Did This Mess Happen?


Each of these large, volatile product failures seems to revolve around a theme. The theme that seems to be repeated in the GM ignition switch saga involves the complete lack of communication. There are two sub themes: penny pinching and failure of process. In the end, however, open lines of communication, or a process that enabled communication would have prevented this problem.



We Have Come a Long Way


Over the past 25 years, a whole paradigm has developed for understanding and dealing with risk of injury and the seriousness of hazards. Through the use of formalized FMEAs, FMECAs, FTAs, and similar tools, engineers and designers now spend time formally evaluating hazards, risks, guards, warnings and instructions. I believe that these approaches have resulted in much better design processes and much safer products.


The processes are also far more formalized, which means that they are written down in some fashion for reference and to explain the decisions to later designers and engineers. 25 years ago, engineers and designers were loath to write anything down for fear of being asked about it later. This mindset changed as we got better processes, and grew more confident that the processes and systems yielded better results.


At the same time, I think manufacturers have become far more sophisticated about evaluating and dealing with product issues and failures that do occur. There is a whole industry dedicated to Field Service Bulletins, Letter Campaigns, and Recalls. The way these tools have developed, the urge to “ignore the problem” has given way to a better, more forward looking mindset. Occasionally a manufacturer has turned fixing a problem into a marketing campaign.


Again, I think the current approach has increased safety.


I worry that talk about sending engineers, designers and others to jail will result in a return to the “stone age” of design, where nothing is kept on paper, and design improvements were seen as admitting to a defect.  I think that is a logical temptation, but one we must resist.


How Do We Prepare


So what is the best way to minimize risk for the manufacturer?


I have three thoughts:


  1. Continue to do the things that result in better and safer products;
  2. Continue to document your processes so they tell the real story of making better and safer products, and;
  3. Continue to execute your document retention policy to avoid the false narrative.


The reality is that we need to encourage more of what we have been doing. Good processes, properly implemented, yield good results. The better we document how we assessed the safety of a product or a system in 2015, the more easily we can understand and defend the choices we made if we are called to account in 2025.


As far as I can tell, GM did not follow good processes, or it did not let the processes drive decision-making. It is fairly clear that GM engineers knew that there were problems with the switch. Frankly any car buff knows that a heavy key ring will wear out an ignition switch over time.


It is not entirely clear when GM engineers tumbled to the fact that the ignition switch problems would result in airbag shut downs, but they knew it by 2005.


So what happened? I am not sure that we will know the “why.”


How does this change how we should do business? I think it should not change what engineers and designers do, except to reinforce the processes in place and maybe drive us toward better ones.


Good Design Processes Drive Safety


What would have avoided this problem for GM would have been a decision to act based on what the accident data and their own testing told them. Instead, they chose to do nothing for cost reasons.


We should also continue to document our decision-making, because when we do it right, it tells the story of building the safest product. Good documentation is nothing to be afraid of if the design review process is good. If the worst should happen and something does go wrong, we want to be able to say: “we looked at that and we calculated that there was zero risk of that happening.”


Even if we were wrong, a clear, logical documented process results in what I call the “good company defense.” It is much better than:

  1. “We didn’t think about it”
  2. “We may have thought about it, but there are no documents”
  3. We thought about it and maybe it was a risk, but fixing it was too much money.”


Review Accidents and Incidents


And when there is an accident, we go through the process again and let it drive our decision-making. Every accident, incident and product failure gives us new information. We need to use it. It impacts the original calculations on risk and hazard. We simply cannot go through the process and pretend that nothing will change the risk/benefit analysis.


Document Retention Policies: How to Save What You Need


Document retention policies get a lot of scrutiny. The law allows for them, but they are characterized as a “sinister” attempt to hide the truth. I would suggest that the opposite is true. Who hasn’t seen some note or memo in a design, engineering or warranty file that is either misleading or flat out wrong. They range from the memo from the overzealous young engineer who doesn’t really understand the product, to the post it notes scribbled on in the warranty department. These documents are not well thought out and they do not represent the considered opinion of the manufacturer. First, for every memo that proposes an untenable design alternative, there should be a memo explaining why the proposal is a poor choice.


In the end, however, each of these documents should be discarded. Nothing should be kept that does not tell the true story of the design and it’s testing.


In contrast, the outcome of a formal FMEA, FTA or other design review should be kept, as should everything that tells us about the actual design and the reasons behind that design. We want to trumpet what was considered and why some things were rejected. We want to emphasize what safety aspects were studied and what risks were considered.




So, the climate may be a little more hostile to manufacturers. I think ultimately, the hostility will be to manufacturers who appear to ignore problems that in hindsight are obvious. The real question will be: “Were you careful?” And I think we will be required to prove that we were, that we considered the ways the product could be used and the way it would likely be misused.

There will be a push against the “one and done” type of engineering. We will need to reevaluate periodically after an event (a major change of one system or part, an accident, a significant warranty claim). Again, the question will be, “Given what happened, were you careful?”


The best way to defend yourself in the modern climate is the same way it was in the previous climate: Have a truthful narrative that demonstrates that you care about the product and the safety of its users. Your design documents can frame and support that narrative. It is a good idea to examine those processes and recommit to following them rigorously

Stop Me If You’ve Heard This One: Six Lawyers Get On A Bus…

Stop Me If You’ve Heard This One: Six Lawyers Get On A Bus…

The client calls: “We got a Complaint served on us and we need someone to handle it.”
The lawyer’s mind begins to spin: “I am sure we can help – tell me about it.”
“Well, it was filed Calabash County and it is about a deal we made a couple of years ago to build a large FNC machine. There were some problems, none of them our fault….”

The lawyer is in full sales mode: “We know that county well and of course we know about FNC machines. How about if we set up a meeting to talk about what happened?” This is not really a lie, at least not more than a white lie.

“I don’t have time now. Let’s just get an Answer filed and go from there. I will have the Complaint faxed over.” At most, there will be an initial meeting, usually over the phone, to get the basic facts of the case and to find out what documents there are. Maybe there will be a witness identified who knows the history. Usually there is a discussion of fees – what are the rates, how much are you willing to discount them? And the rest gets put off “until we have more time” or “until we figure out what this is all about.”

And it is as if six lawyers climbed onto a bus, headed over to the client’s office, grabbed a file, and then commenced driving. Six months later (if this story has a happy ending), someone near the back of the bus yells: “Hey, where are we going anyway?”

After 30 years of practice, I see this scenario time and time again. There is an initial flurry of activity to get the Complaint, file an Answer, maybe draft some discovery, and then the case takes on a life of its own. The other side is making demands, the Court is scheduling hearings, and beating the other side becomes the goal. The lawyer wants to win every motion, every argument, everything. That is what victory looks like. Right?

Well, maybe in a vacuum.
What both client and lawyer really need to stop and think about is:

1) Who are the stakeholders?
2) What is the goal, or better, what does success look like? 3) What are the timeline constraints?
4) What are the monetary constraints?
5) What relationships do we need to treat with special care?

When we don’t ask these five questions, when we don’t set the goals in the beginning, the lawyers on the bus don’t have a destination and they don’t have a timetable. The client doesn’t know what the stops are. Nobody knows what the fare will be, or when the bus will “arrive” at it’s destination.

Why does this happen? I would suggest that both lawyer and client are guilty, because neither is thinking long term.

The lawyer doesn’t want to rock the boat; he or she is just glad to have the case. However, the lawyer is ignoring what will inevitably be an angry client if the case, and the fees, drag on. The client is busy and wants this bit of overhead off his or her desk. The client is ignoring the eventual frustration of a case, and fees, that drag on, and drain resources. Think about the cases you have been involved in where the resolution of the case was not something that anybody felt good about. Everyone is glad it is over, but sort of angry about what it cost.

Nobody really wants to have this initial planning meeting. The meeting will take too long. It will be expensive. It will not be fruitful. It will only lead to other meetings.

But it doesn’t have to be that way. First, we lawyers need to tell our clients that we want to know what success is – right up front. Tell the client before the meeting that the most important question will be: “What does success look like to you?” Give the client a couple of days to think about this. Everyone has a boss or someone to report to. What will success look like to the boss, to the board, to the investors?

Second, come in with tools that can help plot the budget. Think about what the case might involve. Think about where the big spend will come. I have a little piece of software that helps with this. Someday when I have time, it will become an iPad app. If someone reading this builds that app first, I will happily buy 50 copies and distribute them to my partners. The point of the app is to input what you think is a proper number of lawyers and their rates and then plot what you foresee them doing over a timeline that approximates the timeline of the case. This is strictly “rough justice,” but it can tell you a great deal about when you will be spending money. The app has two key features that distinguish it from a traditional budget: the ability to vary the numbers and very quickly see how that changes the spend, and the timeline. It is good to know what you will spend, but it is better to know when you will be spending it. It is best to see the spend over time so you can pick when you want to settle the case, if you do.

The spend and the goals are key components that the lawyer and the stakeholders need to understand. At the same time, this planning meeting can also illuminate what kind of fact and expert resources are needed and where they are.

Once we know the costs and the goals, you can design a fee that provides proper incentives to get the goals accomplished efficiently.

I don’t know about you, but when I get on a bus, I like to know where it is going, what the stops will be, when I am going to get there, and how much the ride is going to cost. Sure, the bus may get lost or break down, but that should not be the norm.

Waiting for my Apple Watch

Yup, I fell back to sleep and didn’t order my watch until 4:15. So my ship date is next week at the earliest. My wife has hers and I am glad for her, but a little jealous.

I wonder at some point when this mind set will stop: when I get this one thing, it will have such a huge impact on my productivity that …. that what? That I will just think something and it will be done? Unlikely. That I will work less? Well, since for the most part, we get paid by the hour, that is not a real starter either. That I will be happy for ever and ever? Seems a little immature. The fact is that this will be like everything else, cool for a while and then assimilated into the daily routine. I will probably be more and less productive because of it. It will make me more happy briefly because it will have all sorts of cool possibilities to eliminate small annoyances. But, in the end, it is a thing.

So, speaking of happiness and unhappiness, we are seeing a lot of that in inner cities lately, based mostly on who has been killed by cops and what the justice system is doing about it. What a complicated problem. Here in Cleveland, we have two events – the Tamir Rice shooting and the Michael Brelo trial. Each could be a flash point. And by flash point, I mean a chance for irresponsible people to whip ignorant people into an emotional frenzy that accomplishes nothing but burned buildings and theft. Burning the neighborhood does not train the police better; it does not make police hiring better, and it does nothing to sift police defending themselves from police shooting boys playing with toy guns.

Protest is good. Protest makes voices heard. Protest wakes up the rest of us. Protest should be loud, sometimes raucous, and inconvenient. Shutting down streets and highways is to be expected. After Tamir Rice’s shooting, we had protests. They were all of those things. No liquor stores were looted and no drug or convenience stores were burned.

I can only conclude that this is about leadership of the protesters. It is about leadership in an aggrieved, frustrated community with little to lose. It is about some leadership that is looking for fame and glory for itself.

If you turn the protests over to those who only inflame and do not lead, you are bound for trouble. There is a large base of poor and uneducated people who have little to do and no tools to decide on an effective path to share their sense of frustration. And they are frustrated. Lousy streets, lousy stores, no opportunities, lousy schools, no safety, little to satisfy them. The reasons for this state and the solutions are large and complicated.
Are any of these folks in Baltimore better off today than a week ago? Has the rioting done anything except convince a prosecutor to charge 6 cops with crimes. And what if no cops are convicted, what then? I have not seen any “Michael Brelo” moments. Maybe there are some.

We need to do better. Cops need to be trained better. Hiring needs to be done properly. Opportunity needs to mean something more than a government check. None of that happens because the CVS is on fire. It is like going on a bender after a big disappointment. You wake up in the same place, but you just feel worse. Leadership points that out and provides a constructive path. Leadership is the head that guides the heart.

Politics, Again

I must confess that I have lost almost all interest in politics. There are several reasons. First, the candidates are not inspiring, or at least not inspiring to me. I have been on too many disappointing rides at this amusement park. I want to see a leader with some bonafide experience running something. I want someone to promise to leave me alone. I want to have some confidence that this person is a reasonably competent administrator who has a view on what the government should do for citizens and a clear view on what America’s mission is in the world. The leader needs to understand these issues and be able to articulate them. There must be a theme.

Most importantly, stop spending my money like a drunken sailor. Stop adding programs and laws on top of laws. Do we need a “safety net,” sure. Can we afford a safety net? Sure. But what is it? It is not an entitlement. It is a means. It is what kind and compassionate people do, more or less voluntarily for members of their society. So how do we help people? It certainly isn’t by paying them to live in semi dangerous places with neither hope or incentive to get out.

Do we exist in a world? Well of course, but to exist in it, doesn’t mean to dictate to it. We will protect our own. We will help fledgling democracy where it is. We will stand for freedom. We will have trade agreements that make sense. We cannot be isolationist, but we are not the cops of the world. Communism doesn’t work but it is the old fear. Radical Islam is the new bogeyman. We need to deal with those who kill or injure Americans by design harshly and without regret. when states sponsor radical islam, they need to be dealt with harshly and without regret or shame.


Does everyone deserve respect? In America yes. That means your rights are protected. But your rights are fairly bare bones. They are spelled out in a document as modified by some court decisions. Your expectations on the other hand need to be managed, by you. We cannot abide the minority subjugation that comes from multiculturalism and political correctness. It you don’t agree with me, learn to debate. Publish your own drivel. Don’t send me death threats.

But does any of the current crop of candidates seem competent? Clinton? Not really honest and has shown no real competence at anything. Bush? Competent at what? He was a two term governor who was okay. But does anyone want to see that carnage of a Clinton or a Bush running again?

And the rest of the bunch looks pretty callow. Haven’t we seen enough of callow recently?

I may need a Sherpa

Why does hotel wifi so often suck? I am very glad to have a Verizon “MIFI” card. I hate paying for it, but even the hotel wifi that they charge for is pretty bad. The speeds are slow and the bandwidth is not good. Given the number of people that actually pay for it, why can’t this be a selling point? Advertise what you mean by “high speed” and I let me compare.

As I travel, I keep trying to lighten my load without sacrificing a lot of capability. The MIFI card is probably a necessary evil because there are so many places without decent wifi, but I would like to lighten my load.

I have an iPad 2, with lots of storage and both WI-Fi and 3G. I have it to consume: books, email, the web, movies and music. But as much as I would like to, I still don’t use it to create. I have had a couple of keyboards and those don’t help much; mostly because I don’t want to take my fingers off the keyboard to tap the screen. The keyboards are limited, so there are a lot of things that I would do with a mouse. I guess that I have not found the right angle at which to type, either. I just don’t like the whole experience.

I have had a couple of stylii and those too do not help much. They are thick tipped and my handwriting is “challenging.” So, I don’t think it is the fact that we do not have enough accessories or even the right accessories. I think it is that that we don’t have the right interface yet. It may be that speaking will be the interface, I have not fooled with my wife’s “new iPad” enough to understand the interface, but if we could use the headset microphone that comes with the .

I am posting this using my 11” Macbook Air. I always tell people that since it took me a long time to learn to type, I want use that skill.

It is more than that. When I type, or dictate, I work harder at being clear. I don’t mind typing or saying the extra sentence if it helps me communicate better. On the iPad, my replies are short and often terse. I don’t like it as an input device and so I minimize my time inputting on it. The device is limiting what I am doing.

Don’t get me wrong, I would like to seem almost all emails shortened. Most are too long. However, they should be short because they are well thought out and well edited, not because I am trying to stop using the input method as fast as I can.

I also like my iPad better for consumption. I like the battery life. I like the touch screen for turning pages.

So, I carry both an iPad and a Macbook Air, and the their power cords, and the wifi and its power cord. It seems that I still carry too much stuff.

Lake Erie in the morning.

After falling asleep ridiculously early, I of course woke up ridiculously early. So I decided to sit out on the new deck and watch the lake. It is a little cooler out here and there is a breeze. The morning feels gentle. after four shots of espresso, I still feel like I could go back to bed. (4 shots of espresso and a Pepsi).

Most of my interest was in playing with Lion. From where I sit, the new operating system is stable and has some nice features. It is faster due to the 64 bit architecture. I am pretty pleased.

Process improvement

I have been tasked over the last eight months to study the potential for process improvement in our law firm. I have done a lot of reading, going so far as to read a Lean/6 Sigma novel; I give the author credit for a valiant effort.

Much of what I read is not novel, it just isn’t done. I think that is a function of time and the pressure to bill time and be busy and “productive.” One of the things I hope to change  is the amount of time our lawyers spend on figuring out what work will need to be done, who is going to do it and when. If that work is done in the beginning, we can plan better. This will result in a lower overall bill.

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