8/24/15

Everybody Else is an Idiot


I’ve written multiple posts in praise of allied professionals, specialists, and experts who are increasingly vital to the delivery of competent legal services. But just as lawyers are not alone in the legal supply chain, lawyers are not alone in bearing responsibility for its deficits. As we head into ILTACON, I want to restore some balance to The Force by pointing out that we are all (author included) predisposed to myopia and stay-off-my-lawn syndrome.

Three extreme anecdotes:
  • A CIO I know feels like he serves in the clandestine services: our failures are known, our successes are not. He is so fed up with criticism from his lawyers that he reflexively dismisses any complaint as rooted in a toxic mix of technophobia, change aversion, and ignorance. He has developed a bad habit of publicly complaining that his lawyers are endangering sensitive client information by copying it to their unencrypted personal devices. Yet, if you relax the man with a few libations, he will admit that the frontline lawyers have a point. For years, he has been unable to get the budget he needs to upgrade the firm to a mobile but secure digital work environment. Lawyers who need to take work home or on the road often have to choose between security and actually getting the work done. Unsurprisingly, they choose the work. But the CIO does not totally understand why. Since security is part of his mandate, it trumps all else in his mind.
  • A lawyer I know was handling a sizable matter involving a high volume of PDFs. Among other things, she needed to be able to redact information and compare two versions of the same document. She determined that her best option was to upgrade to her PDF software to the Pro version. But when she approached the office manager, she was told that such an upgrade was impractical because the partners in her practice group had no use for the additional features. The firm had a policy that partners are the first to get upgraded hardware or software. Information technology was treated as a perk rather than a tool--as if the soldier should never be armed with a higher caliber weapon than the general or the professional video editor must limit herself to the hardware and software the company CEO needs to send email.
  • A knowledge manager I know was disheartened that her new KM system was being ignored by the lawyers. She understood why they were not yet using it for research. First, it had to be populated with tagged documents. But she could not fathom why the lawyers were not taking the time to tag documents and populate the system. After all, the system was purchased for their benefit. And, if used properly, the system would make their lives easier. She did not recognize the incentives that ran counter to her program. She did not comprehend the tradeoffs between billable and nonbillable time. She did not see the free-rider problem of expecting a lawyer to take the time to update a searchable database with information that the particular lawyer would never need the database to find. Instead of trying to overcome some fairly common (though still challenging) collective action problems, she spent her time wondering how lawyers could be so smart in some areas and so very dumb in others.
Specialization is one of the hallmarks of sophistication. Specialization drives economies of scale. But specialization can also lead to diseconomies of scale as work becomes siloed and communications overhead explodes. It is not easy to collaborate for real. Lawyers do themselves and their clients a disservice if they fail to recognize the value that can be provided by allied professionals in technology, project management, pricing, marketing, knowledge management, research, professional development (including training), etc. But allied professionals do themselves and their clients a disservice by not understanding what the lawyers actually do and why.

There are lawyers who recognize the potential contribution from allied professionals. And there are allied professionals who genuinely comprehend the lawyers’ perspective. But, in general, there is a failure to communicate that both sides are responsible for remedying. All of us are susceptible to making the fundamental attribution error:
We disagree because we explain our own conclusions via detailed context (e.g., arguments, analysis, and evidence), and others' conclusions via coarse stable traits (e.g., demographics, interests, biases [, job title, credentials]). While we know abstractly that we also have stable relevant traits, and they have detailed context, we simply assume we have taken that into account, when we have in fact done no such thing. (Overcoming Bias)
Just as I recommend structured dialogue between law firms and their clients that includes nontraditional stakeholders, I am also in favor of internal dialogue between lawyers and allied professionals. Given how law firms and departments are typically structured, the responsibility is ultimately on the lawyers to be willing to work differently. There are already too many mandates for allied professionals to change everything while making sure that the lawyers don’t have to change anything. But, when the opportunity presents itself, allied professionals need to be able to comprehend the lawyers’ perspective, understand the tradeoffs the lawyers face, communicate with the lawyers in terms the lawyers understand, and offer viable solutions that minimize the disruption to client work. Neither side should assume that the other is petty, parochial, or obtuse. And both sides need to work at not appearing petty, parochial, or obtuse.

I plead guilty to every crime outlined above. Even recognizing my own shortcomings, I can’t say that I’ve found a great message. But I am evolving. As someone who genuinely wants legal professionals to work differently, I was seduced by stark statements like, “if you dislike change, you’re going to dislike irrelevance even more.” I was attracted to the self-certain rectitude and the sense of inevitability. And, in the long run, I do believe that the only thing that we can say for certain about the future is that it will be different. But the long run can be a quite long. In the mean time, there are minds to be change and real gains to make. I have therefore concerned myself with being able to articulate positive cases for near-term change like deepening relationships, return on investment, profit, and quality of life. The core message remains the same. But finding a framing that resonates with my intended audience has improved its salability.

While I enjoy going to ILTACON to figure out what’s coming in the next decade, I have to say the most valuable sessions and conversations for me are those in which people explain how they got their organization to embrace the advances of the last decade. I can’t think of any such story that is primarily one of shoving an innovation down everyone’s throat. There are always holdouts. But they are holdouts from a new consensus that only exists because of buy-in and effective change management. The hard work of collaboration is really hard. But it is also necessary.



Some people are idiots. But not many. Mostly, we are hard-working, well-meaning people who all bear some responsibility for our failures to communicate.


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Casey Flaherty is the founder of Procertas. He is a lawyer, consultant, writer, and speaker focused on achieving the right legal outcomes with the right people doing the right work the right way at the right price. Casey created the Service Delivery Review (f.k.a., the Legal Tech Audit), a strategic-sourcing tool that facilitates deeper supplier relationships by facilitating structured dialogue between law firms and clients. Given the current market realities, there is plenty of room for clients to get higher quality work at lower cost while law firms increase profits via improved realizations.

The premise of the Service Delivery Review is that with people and pricing in place, rigorous collaboration on process offers the real levers to drive continuous improvement. Proper collaboration means involving nontraditional stakeholders. A prime example is addressing the need for more training on existing technology. The problem is that traditional technology training methods are terribleCompetence-based assessments paired with synchronous, active learning offer a better path forward. Following these principles, Casey created the Legal Technology Assessment platform to reduce total training time, enhance training effectiveness, and deliver benchmarked results.

Connect with Casey on LinkedIn or follow him Twitter (@DCaseyF).

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8/23/15

Pre-ILTACON: Interesting Times

Lawyers who entered the profession when the standard means of production were a dictaphone and a dedicated secretary will, without any sense of irony, EMAIL me to tell me that technology has no impact on the way they practice law. One of the most underappreciated characteristics of technology is how quickly it can be assimilated into the ‘natural’ order of our lives.

A decade ago, we didn’t have iPhones. Google Maps, Dropbox, Kindle, YouTube, Instagram, Skype, Twitter, and Facebook didn’t exist or were new and unfamiliar. A decade ago, a lawyer would actually attempt (but fail) to successfully argue that missing a court deadline because he did not regularly check his email constituted “excusable neglect.” Now, our greatest legal curmudgeon—the lawyer who literally wrote the (stellar) Curmudgeon’s Guide to Practicing Law—is a (phenomenal) blogger. Less pleasingly, email goofs land lawyers on the front page of The New York Times. Lawyer Excel errors put clients on the hook for millions. Courts take lawyers to task for not using Google (see here and here). And clients openly wonder whether law firms are the weak link in their cybersecurity efforts.

Being able to operate the iPhone is one thing. Overseeing the logistics, technical challenges, and security nightmare of providing iPhones to dozens or hundreds or thousands of legal professionals is quite another. As is extracting potential legal evidence from the iPhone in a forensically defensible manner. Evolving technology and increasing scale combine to make specialization more and more important. Despite what my state of residence may think, nontraditional stakeholders are only growing in importance in the delivery of legal services.

We’re a week from ILTACON. I’m looking forward to what is consistently the best large conference I attend each year. ILTACON is an excellent opportunity to catch up with old friends and make new ones, most of whom are not lawyers. While many lawyers attend, ILTACON seems to bring together the most diverse group of allied legal professionals. This gathering has me ruminating about how the practice of law has changed and how lawyers increasingly rely on the contribution other professionals, specialists, and experts.

We live in interesting times. Readers of this blog are surely familiar with the California ethics opinion on ediscovery and the Second Circuit appellate ruling on document review. But I’m not sure I’ve read anyone (which is not to suggest I’ve read everyone) who has pointed out what a strange pair they make.

On June 30, 2015, the State Bar of California finalized a formal opinion holding that insufficient understanding of electronic discovery can violate the rules of professional conduct. Interestingly, California is not among the 14 states that has followed the ABA in adding “technology” to the ethical rules on competence. The lack of verbiage did not, however, stop the Standing Committee from finding a direct nexus between technology and a lawyer’s ethical duty of competence: “Legal rules and procedures, when placed alongside ever-changing technology, produce professional challenges that attorneys must meet to remain competent.”

Even with respect to ediscovery itself, the implications of the opinion were broadened by the observation that “Not every litigated case involves e-discovery. Yet, in today’s technological world, almost every litigation matter potentially does.” The lawyer has three options when taking on a litigation that may involve e-discovery (i.e., all litigation): (1) consult with an expert, (2) acquire sufficient learning and skill, or (3) decline representation. On cue, a California court cited the Standing Committee in an August 7 order that generated what seems to be a regularly occurring headline: Blockbuster Sanctions Order Spotlights the Importance of eDiscovery Competence.

Where the Standing Committee determined that understanding data storage and digital search is now fundamental to the practice of law and the California District Court reinforced the necessity of the lawyer supervising the search and review process, the Second Circuit Court of Appeals found that actually reviewing the collecting electronic evidence and deciding whether it was relevant to a pending litigation is no longer necessarily the practice of law. The Second Circuit revived a case by a document reviewer claiming that his work did not require legal judgment (bearing on employment classification and issues like overtime pay). The court held, “an individual who, in the course of reviewing discovery documents, undertakes tasks that could otherwise be performed entirely by a machine cannot be said to engage in the practice of law.”

Lawyers, it seems, have an ethical obligation to understand the machines that are replacing them. Less apocalyptically, to practice law in the modern world, lawyers have to behave as if they belong to the modern world. More realistically, lawyers should recognize that practicing law increasingly involves more than just knowing ‘the law’ and that allied professionals with varying specialties can add significant value to client representation. Even in the sanctions opinion, the lawyers’ prescribed role was to supervise, not conduct, the search and collection process. Proper supervision requires that lawyers themselves get more training. But the call to supervision also recognizes that lawyers are not the only ones responsible for delivering competent legal services.


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Casey Flaherty is the founder of Procertas. He is a lawyer, consultant, writer, and speaker focused on achieving the right legal outcomes with the right people doing the right work the right way at the right price. Casey created the Service Delivery Review (f.k.a., the Legal Tech Audit), a strategic-sourcing tool that facilitates deeper supplier relationships by facilitating structured dialogue between law firms and clients. Given the current market realities, there is plenty of room for clients to get higher quality work at lower cost while law firms increase profits via improved realizations.

The premise of the Service Delivery Review is that with people and pricing in place, rigorous collaboration on process offers the real levers to drive continuous improvement. Proper collaboration means involving nontraditional stakeholders. A prime example is addressing the need for more training on existing technology. The problem is that traditional technology training methods are terribleCompetence-based assessments paired with synchronous, active learning offer a better path forward. Following these principles, Casey created the Legal Technology Assessment platform to reduce total training time, enhance training effectiveness, and deliver benchmarked results.

Connect with Casey on LinkedIn or follow him Twitter (@DCaseyF).

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8/21/15

Law Firm Librarians: An Under-Utilized Resource

There has been a lot of discussion in the blogosphere and twitter this week about the Bloomberg Law article “Law Firm Librarians Feel Underused and Underpaid” and the accompanying survey. First off, I want to thank Bloomberg BNA for conducting this survey, sharing the results with the law librarian community and David Perla, President, Bloomberg BNA Legal Division and Bloomberg Law, for discussing these results with me.

I think this title was a bit misleading. Librarians were expressing their frustration that firms weren’t fully utilizing their talents. I think that leaner staffing and more recognition of Librarians as an excellent low cost resource have kept them extremely busy and useful. As David said, “Research is in its lowest cost place today. Research is being pushed down to the lowest cost research, the library.”

My discussion with him about this survey was interesting. Their motivation for conducting this research was as a vendor of Business Development (BD) tools, they wanted to get a sense of the scope of the involvement of law librarians in BD. The overwhelming response of librarians answering “yes” to the question of could they be better utilized took them by surprise (95% of the respondents to Question #6). This is something I’ve been talking about for years (Here’s an example) and I’m pleased to see that this is becoming a universal point of view.

He also noted that law firm librarians see themselves as a resource for the acquisition of work for the firm. This is borne out by the following survey responses:
Q1: 81% cite pushing relevant information on client intel directly to individual stakeholders as demonstration of their value
Q2: 72% see BD and CI as areas currently handled has part of their job
Q3: 66% see BD and CI as logical areas for someone with a law firm librarian skillset to add value
The numbers clearly demonstrate a recognition by the law librarian community of the fact that this is a major contribution they can make to the success of the firm. However, only 18% say their law firm is currently using them in this capacity (Question 5). When taken into account with the previously discussed results, it appears that librarians are not being acknowledged for the BD and CI contributions they are making now. The reasons for this could be that these contributions are funneled through other departments, not recognized as BD or CI, or simply done on an ad hoc basis.

One possible cause for this was identified by David in our discussion. He noted that firm BD initiatives lack consistency from one firm to the next. As result, the quality of the underlying research and analysis is not consistent. Using librarians in this capacity is an easy way for firms to utilize an existing resource to create a consistent high quality basis for strategic business decisions.

The most interesting post for me was from fellow Geek Zena Applebaum. Zena used the survey to point out a path to address the concerns that were expressed by the respondents. David agreed with Zena’s assessment that Librarians are natural sleuths and are good at figuring out the client’s needs early and identifying strategic areas for the firm to target. Let’s face it, the days of “they know what I can do and they know where to find me if they need me to do it” are long gone.   Her post should inspire each of us to take charge of our destiny. Pick up that phone and ask your Marketing counterpart to lunch. Meet with your practice group leaders and show them how you help them achieve their strategic goals. Now is the time for action!
 

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8/20/15

A Better Way To Train: Synchronous, Active Learning

Technology training is important. Competence-based assessments are a great technology training tool. At the outset, assessments permit trainees to test out of training they do not need. By identifying competencies and deficiencies, assessments serve as the basis for tailored training plans. Assessments then validate that training has been effective.

As formulated above, training occurs separate from the competence-based assessments. It need not be this way. Competence-based assessments can be paired with synchronous, active learning to deliver an immediate, individualized training curriculum.

Synchronous learning is premised on immediate feedback. A standard assessment runs the trainee through a series of tasks and returns a score at the conclusion of the assessment. The scoresheet identifies what was missed and serves as a guide to remedial training. By contrast, a training assessment informs the trainee after each individual task whether or not they performed the task correctly. If the trainee performs the task correctly, they move on. If the trainee performs a task incorrectly, the trainee can hit a Back button and then a Help button to get immediate training (e.g., a video walkthrough). Once the training is complete, the trainee can try the task again. A synchronous training loop is created: try->feedback->train->try->succeed.

The “try” links in the loop are the active component of the learning. Rather than passively taking in a demonstration, active learning permits the trainee to practice the target skill. How much practice is needed varies by trainee. The advantages of active learning for skill acquisition and retention has considerable support in the pedagogical literature.

To provide a concrete example, imagine training on a simple Word function like Turn Off Track Changes. Traditionally, a trainer or video would demonstrate the steps. Depending on how in-depth they wanted to get, the demonstration might take between 1 and 3 minutes. A trainee utilizing a competence-based assessment and already familiar with the function would perform the task in about 10 seconds. They could move directly to the next task instead of sitting through unnecessary training.

A trainee unfamiliar with the function would still be prompted to try to figure it out. That is, the live environment encourages them to explore and engage. If they are unable to come to the right conclusion through their own efforts, they are, upon hitting the Submit button, informed that they did not perform the task correctly. They can then hit the Back and Help buttons to go through the training. The trainee then re-attempts the task and, if necessary, reviews the training, until they complete the task correctly. If they prove unable to get it on their own, the trainee and the task demand the personal attention of a professional trainer.

In the above scenario, every trainee eventually demonstrates the ability to use the function. In traditional training, all we know is they sat through a demonstration. Likewise, in traditional training, ever trainee sits through every demonstration regardless of their pre-existing knowledge. With competence-based assessments paired with synchronous, learning, total training time is drastically reduced because no one has to re-learn that which they demonstrably know.

Importantly, competence-based assessments paired with synchronous, active learning do not replace professional trainers. The machine is an augmentation that ensures that the trainer’s time is properly leveraged.  First, we are in the nascent stages of computer-mediated training. There are very few tools for which competence-based assessment and synchronous, active learning are currently available. Second, even when the machine can deliver training content synchronously, the content being delivered is still the product of professional trainers. Third, computer-mediated training is an intermediary step that identifies who requires live training. The assessment convinces the user of the need and provides the trainer with a list of identified deficiencies that the user has been unable to address through self-directed learning.

I want to make training more efficient and effective because I am so convinced of its importance. “Legal rules and procedures, when placed alongside ever-changing technology, produce professional challenges that attorneys must meet to remain competent.” Training is essential to meeting these challenges.


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Casey Flaherty is the founder of Procertas. He is a lawyer, consultant, writer, and speaker focused on achieving the right legal outcomes with the right people doing the right work the right way at the right price. Casey created the Service Delivery Review (f.k.a., the Legal Tech Audit), a strategic-sourcing tool that facilitates deeper supplier relationships by facilitating structured dialogue between law firms and clients. Given the current market realities, there is plenty of room for clients to get higher quality work at lower cost while law firms increase profits via improved realizations.

The premise of the Service Delivery Review is that with people and pricing in place, rigorous collaboration on process offers the real levers to drive continuous improvement. Proper collaboration means involving nontraditional stakeholders. A prime example is addressing the need for more training on existing technology. The problem is that traditional technology training methods are terrible. Competence-based assessments paired with synchronous, active learning offer a better path forward. Following these principles, Casey created the Legal Technology Assessment platform to reduce total training time, enhance training effectiveness, and deliver benchmarked results.

Connect with Casey on LinkedIn or follow him Twitter (@DCaseyF).


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8/19/15

Legal Technology Training: Time is a Poor Proxy for Learning

I, like most legal professionals, cringe at memories of sitting in a large room and having someone demonstrate the use of a technology tool. Despite my confirmed case of technophilia, I hated re-learning the basics and had a hard time absorbing anything new. Sitting through videos was even worse. The medium trumped the message.

These memories should have stopped me from adopting the simple-minded attitude that it was sufficient for me to bully lawyers into training. But we all have blind spots. Training is important. Training is available. Therefore, lawyers should go to training. I failed to recognize that appreciating the need for training can legitimately coexist with a distaste for how training is traditionally delivered.

I still believe that lawyers need training and that professional trainers should deliver it. But the traditional approach to training is a bit daft. Gather everyone in a room and talk at them for a prescribed period of time. It is a recipe for a disengagement. Some trainees will decide they have better things to do, whether it is email, Twitter, or Candy Crush. Yet, even the trainees intent on learning something are likely to find themselves bored by content that is already familiar or at a loss to grasp content that is too advanced. Monolithic training to a diverse audience with a high variance of skill levels ends up wasting everyone’s time. Time is a poor proxy for learning. The more tailored option of waiting for users to approach the trainer, or login into training resources, with specific questions is just as unappealing. One of the hallmarks of the untrained is that they don’t know what they don’t know. Those who labor under delusions of adequacy are unlikely to ask the right questions, if they ask any questions at all.

My original shortsightedness meant that when I first developed a competence-based assessment on using common desktop software, I only appreciated its role as a validation mechanism. The competence-based assessment's function was to determine whether or not an individual had the requisite training. This verification remains of critical importance. But the earlier in the process we assess skill level, the better the process serves everyone involved.

Utilizing a competence-based assessment at the front end of training allows trainees to test out of training they do not need. Maybe they test out entirely. Fantastic. They can fly through a 12-minute test rather than endure 4 hours of unnecessary training. Even if they don’t test out of everything, they can still test out of that which they already know. By identifying specific deficiencies, the trainee and trainer can allocate their efforts to the areas where training is actually needed. A competence-based assessment on the backend will verify the new skill acquisition and demonstrate progress against the already-established training deadline. 

Competence-based assessments are more than just testing tools. Competence-based assessment can be powerful training tools, especially when paired with synchronous, active learning. More on that in my next post.

[Again, I use the term “traditional” to refer to training methods that are familiar, not necessarily ubiquitous. Sit In Room/Be Talked At is my impressionistic sense of what most lawyers think of when I recommend technology training, which I often do. There are superior methods long employed by many trainers in many different settings. But a large contingent of lawyers wouldn’t know because they refuse to go.

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Casey Flaherty is the founder of Procertas. He is a lawyer, consultant, writer, and speaker focused on achieving the right legal outcomes with the right people doing the right work the right way at the right price. Casey created the Service Delivery Review (f.k.a., the Legal Tech Audit), a strategic-sourcing tool that facilitates deeper supplier relationships by facilitating structured dialogue between law firms and clients. Given the current market realities, there is plenty of room for clients to get higher quality work at lower cost while law firms increase profits via improved realizations.

The premise of the Service Delivery Review is that with people and pricing in place, rigorous collaboration on process offers the real levers to drive continuous improvement. Proper collaboration means involving nontraditional stakeholders. A prime example is addressing the need for more training on existing technology. The problem is that traditional technology training methods are terribleCompetence-based assessments paired with synchronous, active learning offer a better path forward. Following these principles, Casey created the Legal Technology Assessment platform to reduce total training time, enhance training effectiveness, and deliver benchmarked results.

Connect with Casey on LinkedIn or follow him Twitter (@DCaseyF).

Bookmark and Share
 

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