In Part 1, I introduced the idea that we are all professional cyborgs. I used my personal experience with a diabetic toddler whose life literally depends on computers attached to his body to ruminate on how technology is so deeply intertwined with our professional lives that we often don’t even notice it. I rejected the notion that the use of technology can somehow be considered as distinct from ‘real’ lawyering.

In Part 2, I compared a decade of reading that an artificial pancreas is right around the corner to the even more drawn out asymptotic dawn of artificial lawyers. I used the professional progression of a composite successful lawyer who graduated law school in 1977–the mean and modal graduation year of the chairs of the AmLaw 10–as a touchstone for comparing the various AI hype cycles to more mundane progress that actually had an impact (desktop computing, the internet, mobile). I, however, concluded with the idea that the failure of technology to live up to the hype was a good reason to be skeptical of hype but a terrible reason to be skeptical of technology.

In this Part 3, I will talk about what happens when technology does live up to the hype (we stop thinking about it) and why our technology always appears to lag behind (because it does).

Expectation Calibration and Self-Driving Technology

We pay attention to that which demands our attention. The only reason I ever think about my own pancreas working is because my son’s doesn’t. Likewise, I don’t think about my pulmonary, respiratory, or digestive systems unless something is wrong (like we only notice the miracle that is breathing when we’re congested). If my son were ever to acquire the long-promised artificial pancreas, I would stop thinking about it. Just as when he switched over to an insulin pump I stopped thinking about giving him insulin shots.

We are predisposed to focus on what the technology doesn’t do well yet. As the comedian Louis C.K. discusses in this clip–which I pilfered from this great Daniel Pollick presentation at Lexpo–our expectations ratchet up almost instantaneously:

[For those of you who didn’t watch it, Louis recounts being on one of the first planes to test in-flight wifi. It works for a while. Then the wifi goes down. The gentleman in the next seat remarks, “This is bull&^!#.” Louis jokes about the guy being mad at something not working when five minutes before he hadn’t known it existed. The guy had recalibrated his expectations that quickly. This leads to a longer reflection by Louis on how we all complain about the hassle of air travel instead of constantly marvelling at the fact that we beat gravity. We are human beings flying through the air at hundreds of miles an hour thousands of feet above the Earth, and we’re pissed off about it.]

The partner who grew up on a Dictaphone and banker boxes is not going to proceed in a state of perpetual amazement that she can access all the world’s knowledge and all of her firm’s files from a $600 computer that weighs 5 oz., fits in her pocket, and performs 120,000,000x faster than the $23,000,000 computer that weighed 600 lbs. and guided Apollo 11 to the moon. She is going to complain that the connection is slow, the battery runs down too fast, and something mission critical isn’t quite working right. Alternatively, she is not going to learn to operate the device anywhere near its capability and, on the basis of her own ignorance, conclude that the device is not all that useful. Most commonly, a little of both.

We want self-driving technology. When we get it, we stop thinking about it and recalibrate our expectations. When we get partially self-driving technology, we focus on all the driving we still have to do. We are not built to be satisfied.

We’re Running The Red Queen’s Race And We’re Always Losing

“Now, here, you see, it takes all the running you can do, to keep in the same place. If you want to get somewhere else, you must run at least twice as fast as that!”

From Carroll’s Through the Looking Glass, those who run the Red Queen’s race go as fast as they can in order to stay put. When I was growing up, grandparents expected you would send them a school picture every year. Today, grandparents complain if you don’t post daily kid photos to Facebook. It is not just that expectations reset at warp speed. They also tend to ratchet in ways that outpace our ability to deliver.

Enterprise IT, for example, faces all manner of expectations problems due to the consumerization of technology. In the beginning of the digital era, businesses always had the best technology. People had to go into the office so they could use this or that machine. For your standard knowledge worker, the dynamic has flipped. Now most people complain that what they have at home is better than what they have at the office.

Their personal phone is newer. Not bogged down by security protocols, their personal computer is faster. Google embarasses their enterprise search capabilities. Amazon is light years ahead on filtering functionality. Dropbox seems better for document management. The result is incessant complaining and dangerous forays into shadow and stealth IT. People want something that works, now. They don’t care to hear about systems integration or that Apple took years to offer its consumer-targeted iPhone with enterprise-level security controls. IT can’t win, they can only try to keep up.

Arguably, legal has it even worse. Our technology is often reactive. We didn’t know we needed virtual deal rooms or electronic discovery until enterprise data volumes had already exploded. We were ‘late’ on information governance, social media, cybersecurity, privacy, BYOD, etc. because there was no role for us to play until there was role for us to play, at which point we and the technology we use were in perennial catch-up mode.

Relative to any time in the past, our tech is greatly improved. Relative to our actual reference classes–(i) what is available on the consumer market and (ii) the scale of the task at hand–the tech we notice is almost invariably deficient.

Real Lawyers Didn’t Need Tech To Be Successful

This is not where I launch into a diatribe about older people not getting tech. I consider such thinking to be lazy, essentialist nonsense. Older people invented tech. Being an impostor, I know many people, some of them lawyers, who are older than me and wipe the frakin floor with me on tech acumen. Oh, and the digital native is a load of malarkey.

Yet that older people are entirely capable of getting tech does not mean that they do. Some do. Many don’t. And many who don’t are wildly successful. You can be a successful lawyer without tech having much of a felt impact on your career, let alone contributing in any discernible way to your success.

The lawyer who graduated in 1977 probably made partner in 1985, a year Bruce MacEwen recently recalled:

Second, the staff:lawyer ratios today would be unrecognizable to a time traveler from, say, 1985. They might be tempted to protest, “how can we afford to pay lawyers to type?” Don’t scoff; an early and terminally benighted boss of mine uttered those unforgettable words to me in about that very year, when I offered to bring in my own very primitive DOS-based, green-screen IBM PC clone on which I’d taught myself WordPerfect.

Things have changed since 1985. But they have changed far more at the bottom than at the top of the pyramid where our successful lawyer now resides. In many respects, our successful lawyer may be like Bruce’s hypothetical time traveler. They sometimes visit the tech-centric inner workings of their firm, but they find it alien and have no need to live there.

I promise to someday explore some of the ramifications of this social distance. But today is not that day.

_______________________________________
D. Casey Flaherty is a consultant who worked as both outside and inside counsel. Find more of his writing here. Connect with Casey on Twitter and LinkedIn. Or email casey@procertas.com.

Continuing with my two-year-old son, Pickle. As I laid out last post, Pickle is a cyborg. A Type 1 diabetic, his life literally depends on computers that are attached to his body. Because of him, I find myself contemplating the fact that we are almost all professional cyborgs. Technology is now an inescapable element of delivering legal services. The objection that using technology somehow differs from ‘real’ lawyering is misguided. If it affects the outcome or the bill, it is real enough.

Still, just because technology is essential does not mean it is all that good. With respect to my diabetic Pickle, I have one question: where the @#%& is his artificial pancreas?

My wife is also an insulin-deficient cyborg, I have therefore been reading the same damn story about the same pending breakthrough for over a decade (e.g., 2006, 2011, 2016). We are eternally on the cusp of the machine finally replacing humans in the labor-intensive process that is monitoring blood sugar levels and delivering insulin when necessary.

Pickle has a continuous glucose monitor. But it needs to be calibrated multiple times a day. And it is not accurate enough to be relied on for dosing insulin. So the monitor does not obviate the need to regularly prick his fingers and draw blood to check sugar levels. Indeed, the best commercially available glucose monitor is actually a trained dog— the repurposing of 26,000-year-old technology and more evidence against functional fixedness. But a dog, like the monitor he actually has, cannot communicate with his insulin pump, which still needs to be run manually (i.e., we still have to direct the pump to dose insulin).

In from three to eight years we will have a machine with the general intelligence of an average human being. I mean a machine that will be able to read Shakespeare, grease a car, play office politics, tell a joke, have a fight. At that point the machine will be able to educate itself with fantastic speed. In a few months it will be at genius level and a few months after that its powers will be incalculable.

In 1997, the machines finally won…at chess. IBM’s Deep Blue topped Gary Kasparov under tournament conditions. The press went nuts:

When Gary Kasparov beat IBM’s chess computer in 1989 he arrogantly told the programmers to “teach it to resign earlier”. Yesterday, though, the world champion found himself humbled by a 1.4-ton heap of silicone in a victory for IBM’s Deep Blue that marks a milestone in the progress of artificial intelligence. It is a depressing day for humankind in general. (here)

In brisk and brutal fashion, the I.B.M. computer Deep Blue unseated humanity (here)

Elsewhere in 1997, our successful lawyer had been a partner for more than a decade and practicing for two decades. The home computer market had not yet broken 40%. The still nascent home internet market had not yet cracked 20% penetration. In developments that would actually make an impact, the domain and famous spelling error www.google.com would be registered, almost a year before the company would be incorporated.

In 2007, our successful lawyer had been a partner for more than 20 years and practicing for 30 years. They could read increasingly more about the coming singularity and contemporary regurgitations of the Life article from 1970:

Social security will have to be expanded, introduced at lower and lower ages, till essentially everyone lives on social security. The taxes will be paid by fully-automated businesses run by robots. And human beings have to deal with the problem of excess leisure…I am afraid that the long term future we are building will have no space left for human beings…a world where we have these robots and better and better artificial intelligence, where systematically those systems replace humans, human services, human work…Is it a good or bad thing if robots become our natural successors and we fade into extinction?

But evidence of true machine intelligence outside of very narrow domains like chess remained illusory. As a practical matter, the tangible breakthroughs were mostly about being able to take the office with you everywhere. In 2007, Blackberries were a thing, and Apple announced the iPhone.

We are closing in on 2017 when our successful lawyer will celebrate 40 years in practice with more than 30 of those years as a partner. Much closer to the end of their career than the beginning, they can still read the same damn story about their imminent obsolescence. Or they can read the counterprogramming. We should forgive them for being a bit skeptical.

Yet there is something disingenuous about my account. It is accurate, as far as it goes. But it is also needlessly reductive in a way that I think is best captured by the incomparable xkcd:

Returning to my understandable focus on the perpetual promise of the artificial pancreas. In fixating on a closed system that eliminates the human factor post installation, I  miss the genuine progress being made. What used to be a death sentence is now an inconvenience. And that inconvenience has gotten considerably easier to manage now that we can do things like monitor my son’s blood sugar remotely on a watch–continuous glucose monitor links to his iPhone; his iPhone transmits to my wife’s iPhone; her iPhone transmits to her Apple Watch. None of those devices were commercially available when my wife was diagnosed a decade ago. That is amazing even if it is not the technological nirvana we were promised.

One way to react to hype cycles is to laugh at the peaks in hindsight. Another is to pay attention to the progress that follows:

Because the story I told above focused on the more sensational claims of machines making humans obsolete, it treated the PC, the internet, and mobile as inconsequential asides that only served to demonstrate the hyperbolic nature of the press coverage. But like a good lawyer, I could use the same facts to tell a very different story in which technology crept into every aspect of our professional lives. There will be real similarities between the immediate lived experience of a lawyer who graduated in 1977 and the one who graduates in 2017. But there will also be real differences that would have seemed like bad science fiction to someone entering an analogue professional environment four decades ago.

I think there will be an artificial pancreas soon. Machines will be able to do that one sequence of things well enough. Likewise, I suspect that machines will continue to progress at doing other things well, including some things traditionally done by lawyers. But I am doubtful* that we are nearing artificial general intelligence. Focus should therefore remain directed towards the automation of tasks rather than the complete elimination of jobs. As Robin Hanson has observed, while technology gains are exponential, the impact may be linear because job power levels are distributed lognormally:

I often meet people who think that because computer tech is improving exponentially, its social impact must also be exponential. So as soon as we see any substantial social impact, watch out, because a tsunami is about to hit. But it is quite plausible to have exponential tech gains translate into only linear social impact. All we need is a lognormal distribution, as in this diagram:

Imagine that each kind of jobs that humans do requires a particular level of computing power in order for computers to replace humans on that job. And imagine that these job power levels are distributed lognormally.

In this case an exponential growth in computing power will translate into a linear rate at which computers displace humans on jobs. Of course jobs may clump along this log-computing-power axis, giving rise to bursts and lulls in the rate at which computers displace jobs. But over the long run we could see a relatively steady rate of job displacement even with exponential tech gains. Which I’d say is roughly what we do see.

For our successful lawyer, however, the felt impact of technology progress on their professional accomplishments may be less than linear, it may be negligible. This has consequences for how lawyers in position of power react to those of who emphasize that we are all cyborgs now. More on that in Part 3.

_______________________________________
D. Casey Flaherty is a consultant who worked as both outside and inside counsel. Find more of his writing here. Connect with Casey on Twitter and LinkedIn. Or email casey@procertas.com.

*I’m way too dumb to have a smart take on the timing of general artificial intelligence. But the implications are so profound that it almost makes them not worth talking about. It would be similar to debating how the legal profession might change if the Earth were again struck by a meteor like the one that wiped out the dinosaurs. Everything changes, and almost no one is going to care what effect it has on profits per partner. Until then, I am in Ryan’s camp. It is only AI/magic until we start to use it, then it is software. It is only a human-displacing robot until we start to rely on it, then it is a dishwasher.

My two-year old just got his first iPhone. Now, Pickle (yes, Pickle!) is never without it. The iPhone goes everywhere with him the way other kids might drag along a stuffed bear. We are even thinking about getting Pickle a haute couture fanny pack to ensure his iPhone is on him at all times.

I’ll give some of you moment to catch your breath…. Scrambling to ascend that high horse so quickly probably took a lot out of you. Yes, I am familiar with the research on screen time and brain development. I don’t care. I don’t care because we didn’t get Pickle an iPhone so we could subject him to the perverse moral dystopia of Thomas the Train.

We got him an iPhone because he was recently diagnosed as a Type 1 diabetic. The iPhone links to his continuous glucose monitor and transmits the readings to his mother and me. It alarms if Pickle’s blood sugar gets too high (so we can dose him with insulin) or too low (so we can pump him full of sugar). If you don’t think that is a good enough reason to get a two-year old an iPhone (an older model donated to us), you can take it up with my wife. Let me know how that works out for you.

Of course that means that my kid is a cyborg. How sweet is that?

Pickle’s life literally depends upon computers—a glucose monitor and an insulin pump—that are attached to him. He is a being with both organic and biomechatronic body parts. He is an organism that has restored function due to the integration of some artificial component or technology that relies on feedback. My Pickle is a cyborg.

Using the term a little more loosely, however, aren’t most of us professional cyborgs at this point? I know that I feel my ability to conduct business draining away anytime the battery life on my iPhone or laptop approaches critical level. How exactly does a modern lawyer operate without relying on modern technology?

How do you not Google? How do you exchange documents your clients without email? How do you file anything according to local court rules and efiling protocols without an entire array of hardware and software? How do you conduct a litigation of any appreciable size without some understanding of ediscovery? How do you handle divorces without knowing about Facebook? How do you complete an M&A transaction without considering IT and information assets?

You can actually be ignorant of all those things and still be an obscenely successful lawyer. The trick is to already be successful. I was in the audience a few years ago when the great Ted Olson gave the opening remarks at Legaltech. His talk was not well received because he made it clear at the outset that he considered the audience a bunch of nerds (which, to be fair, we are). After all, a yellow pad was all the legal tech he needed to be Ted freakin Olson. And that’s fine, for Ted Olson. Ted Olson is so ridiculously good at the things that Ted Olson is hired to do that no one should care that Ted Olson doesn’t use tech. If Ted Olson decided to incorporate augury into his preparation for oral argument, most clients would happily pay for the birds.

But you know who is probably using tech pretty heavily? Some of the people on Ted Olson’s team. I believe Ted Olson when he claims that he operates without any device that requires electricity. I doubt the same can be said for his team, let alone his firm. As a client, you want Ted Olson as your lawyer (if it is the kind of matter that demands Ted Olson) but you would not necessarily want Ted Olson chairing the firm’s technology committee.

Ted Olson telling a room full of legal tech folks that the only tech he needed was a legal pad would be like him telling a room full of legal marketing professionals that the only marketing he ever had to do was establish himself as one of the most prominent and successful appellate lawyers in history. True enough. But not exactly replicable at scale.

I am reflecting on this because I often get lured into pointless philosophical debates about what constitutes ‘real’ lawyering. Frankly, I am ill equipped to discuss such lofty Platonic ideals. If it affects the outcome or the bill, it is real enough for me. Delegation to associates or nonlawyers does not make it any less real or obviate the duty of oversight. (As always, I hate the term “nonlawyer” and prefer allied professional, but the ABA did not put me on the drafting committee for the model rule).

If I am feeling generous, I try to reframe what the person is saying. Usually, they are not actually arguing that tech is unnecessary. Rather, they are often expressing a belief that the tech-related work is not where lawyers add the most value. On this we almost completely agree. Which is why I find it so tragic that lawyers (and staff) waste so much time on tech-dependent activities because they have never trained to properly use the core technology tools at their disposal. We often find a place of consensus where we would both prefer a world where lawyers spent more of their finite time devoted to applying their learned judgment to solving client problems.

Sometimes, however, I discover that we are having a different discussion. It is not the one about whether lawyers should use tech. It is the complaint that while lawyers have to use tech, the tech has not lived up to the hype. Here I have even more sympathy. I’ll express it in Part 2.

Part 2 (originally a separate post because I’m trying to get more into the whole brevity thing)

Continuing with my two-year-old son, Pickle. As I laid out last post, Pickle is a cyborg. A Type 1 diabetic, his life literally depends on computers that are attached to his body. Because of him, I find myself contemplating the fact that we are almost all professional cyborgs. Technology is now an inescapable element of delivering legal services. The objection that using technology somehow differs from ‘real’ lawyering is misguided. If it affects the outcome or the bill, it is real enough.

Still, just because technology is essential does not mean it is all that good. With respect to my diabetic Pickle, I have one question: where the @#%& is his artificial pancreas?

My wife is also an insulin-deficient cyborg, I have therefore been reading the same damn story about the same pending breakthrough in closed-loop insulin delivery for over a decade (e.g., 2006, 2011, 2016). We are eternally on the cusp of the machine finally replacing humans in the labor-intensive process that is monitoring a diabetic’s blood sugar levels and delivering insulin when necessary.

Pickle has a continuous glucose monitor. But it needs to be calibrated multiple times a day. And it is not accurate enough to be relied on for dosing insulin. So the monitor does not obviate the need to regularly prick his fingers and draw blood to check sugar levels. Indeed, the best commercially available glucose monitor is actually a trained dog—the repurposing of 26,000-year-old technology and more evidence against functional fixedness. But a dog, like the monitor he actually has, cannot communicate with his insulin pump, which still needs to be run manually (i.e., we still have to direct the pump to dose insulin).

In from three to eight years we will have a machine with the general intelligence of an average human being. I mean a machine that will be able to read Shakespeare, grease a car, play office politics, tell a joke, have a fight. At that point the machine will be able to educate itself with fantastic speed. In a few months it will be at genius level and a few months after that its powers will be incalculable.

When Gary Kasparov beat IBM’s chess computer in 1989 he arrogantly told the programmers to “teach it to resign earlier”. Yesterday, though, the world champion found himself humbled by a 1.4-ton heap of silicone in a victory for IBM’s Deep Blue that marks a milestone in the progress of artificial intelligence. It is a depressing day for humankind in general. (here)

In brisk and brutal fashion, the I.B.M. computer Deep Blue unseated humanity (here)

Elsewhere in 1997, our successful lawyer had been a partner for more than a decade and practicing for two. The home computer market had not yet broken 40%. The still nascent home internet market had not yet cracked 20% penetration. In developments that would actually make an impact, the domain and famous spelling error www.google.com was registered, almost a year before the company would be incorporated.

In 2007, our successful lawyer had been a partner for more than 20 years and practicing for 30 years. They could read increasingly more about the coming singularity and contemporary regurgitations of the Life article from 1970:

Social security will have to be expanded, introduced at lower and lower ages, till essentially everyone lives on social security. The taxes will be paid by fully-automated businesses run by robots. And human beings have to deal with the problem of excess leisure…I am afraid that the long term future we are building will have no space left for human beings…a world where we have these robots and better and better artificial intelligence, where systematically those systems replace humans, human services, human work…Is it a good or bad thing if robots become our natural successors and we fade into extinction?

But evidence of true machine intelligence outside of very narrow domains like chess remained illusory. As a practical matter, the tangible breakthroughs were mostly about being able to take the office with you everywhere. In 2007, Blackberries were a thing, and Apple announced the iPhone.

We are closing in on 2017 when our successful lawyer will celebrate 40 years in practice with more than 30 of those years as a partner. Much closer to the end of their career than the beginning, they can still read the same damn story about their imminent obsolescence. Or they can read the counterprogramming. We should forgive them for being a bit skeptical.

Yet there is something disingenuous about my account. It is accurate, as far as it goes. But it is also needlessly reductive in a way that I think is best captured by the incomparable xkcd:

Returning to my understandable focus on the perpetual promise of the artificial pancreas. In fixating on a closed system that eliminates the human factor post installation, I miss the genuine progress being made. What used to be a death sentence is now an inconvenience. And that inconvenience has gotten considerably easier to manage now that we can do things like monitor my son’s blood sugar remotely on a watch—continuous glucose monitor links to his iPhone; his iPhone transmits to my wife’s iPhone; her iPhone transmits to her Apple Watch. None of those devices were commercially available when my wife was diagnosed a decade ago. That is amazing even if it is not the technological nirvana we were promised.

One way to react to hype cycles is to laugh at the peaks in hindsight. Another is to pay attention to the progress that follows:

Because the story I told above focused on the more sensational claims of machines making humans obsolete, it treated the PC, the internet, and mobile as inconsequential asides that only served to demonstrate the hyperbolic nature of the press coverage. But like a good lawyer, I could use the same facts to tell a very different story in which technology crept into every aspect of our professional lives. There will be real similarities between the immediate lived experience of a lawyer who graduated in 1977 and the one who graduates in 2017. But there will also be real differences that would have seemed like bad science fiction to someone entering an analogue professional environment four decades ago.

I think there will be an artificial pancreas soon. Machines will be able to do that one sequence of things well enough. Likewise, I suspect that machines will continue to progress at doing other things well, including some traditionally done by lawyers. But I am doubtful* that we are nearing artificial general intelligence. Focus should therefore remain directed towards the automation of tasks rather than the complete elimination of jobs. As Robin Hanson has observed, while technology gains are exponential, the impact may be linear because job power levels are distributed lognormally:

I often meet people who think that because computer tech is improving exponentially, its social impact must also be exponential. So as soon as we see any substantial social impact, watch out, because a tsunami is about to hit. But it is quite plausible to have exponential tech gains translate into only linear social impact. All we need is a lognormal distribution, as in this diagram:

Imagine that each kind of jobs that humans do requires a particular level of computing power in order for computers to replace humans on that job. And imagine that these job power levels are distributed lognormally.

In this case an exponential growth in computing power will translate into a linear rate at which computers displace humans on jobs. Of course jobs may clump along this log-computing-power axis, giving rise to bursts and lulls in the rate at which computers displace jobs. But over the long run we could see a relatively steady rate of job displacement even with exponential tech gains. Which I’d say is roughly what we do see.

For our successful lawyer, however, the felt impact of technology progress on their professional accomplishments may be less than linear, it may be negligible. This has consequences for how lawyers in position of power react to those of who emphasize that we are all cyborgs now. More on that in Part 3.

*I’m way too dumb to have a smart take on the timing of general artificial intelligence. But the implications are so profound that it almost makes them not worth talking about. It would be similar to debating how the legal profession might change if the Earth were again struck by a meteor like the one that wiped out the dinosaurs. Everything changes, and almost no one is going to care what effect it has on profits per partner. Until then, I am in Ryan’s camp. It is only AI/magic until we start to use it, then it is software. It is only a human-displacing robot until we start to rely on it, then it is a dishwasher.

In Part 1, I introduced the idea that we are all professional cyborgs. I used my personal experience with a diabetic toddler whose life literally depends on computers attached to his body to ruminate on how technology is so deeply intertwined with our professional lives that we often don’t even notice it. I rejected the notion that the use of technology can somehow be considered distinct from ‘real’ lawyering.

In Part 2, I compared a decade of reading that an artificial pancreas is right around the corner to the even more drawn out asymptotic dawn of artificial lawyers. I used the professional progression of a composite successful lawyer who graduated law school in 1977—the mean and modal graduation year of the chairs of the AmLaw 10—as a touchstone for comparing the various AI hype cycles to more quotidian progress that had real impact (desktop computing, the internet, mobile). I, however, concluded with the idea that the failure of technology to live up to the hype was a good reason to be skeptical of hype but a terrible reason to be skeptical of technology.

In this Part 3, I will talk about what happens when technology does live up to the hype (we stop thinking about it) and why legal technology always appears to lag behind (because it does).

Expectation Calibration and Self-Driving Technology

We pay attention to that which demands our attention. The only reason I ever think about my own pancreas working is because my son’s doesn’t. Likewise, I don’t think about my pulmonary, respiratory, or digestive systems unless something is wrong (like we only notice the miracle that is breathing when we’re congested). If my son were ever to acquire the long-promised artificial pancreas, I would stop thinking about it. Just as when he switched over to an insulin pump I stopped thinking about giving him insulin shots.

We are predisposed to focus on what the technology doesn’t do well yet. As the comedian Louis C.K. discusses in this clip—which I pilfered from this great Daniel Pollick presentation at Lexpo—our expectations ratchet up almost instantaneously:

[For those of you who didn’t watch it, Louis recounts being on one of the first planes to test in-flight wifi. It works for a while. Then the wifi goes down. The gentleman in the next seat remarks, “This is bull&^!#.” Louis jokes about the guy being mad about something not working when five minutes before he hadn’t known it existed. The guy had recalibrated his expectations that quickly. This leads to a longer reflection by Louis on how we all complain about the hassle of air travel instead of constantly marvelling at the fact that we beat gravity. We are human beings flying through the air at hundreds of miles an hour thousands of feet above the Earth, and we’re pissed off about it.]

The partner who grew up on a Dictaphone and banker boxes is not going to proceed in a state of perpetual amazement that she can access all the world’s knowledge and all of her firm’s files from a $600 computer that weighs 5 oz., fits in her pocket, and performs 120,000,000x faster than the $23,000,000 computer that weighed 600 lbs. and guided Apollo 11 to the moon. She is going to complain that the connection is slow, the battery runs down too fast, and something mission critical isn’t quite working right. Alternatively, she is not going to learn to operate the device anywhere near its capability and, on the basis of her own ignorance, conclude that the device is not all that useful. Most commonly, a little of both.

We want self-driving technology. When we get it, we stop thinking about it and recalibrate our expectations. When we get partially self-driving technology, we focus on all the driving we still have to do. We are not built to be satisfied.

We’re Running The Red Queen’s Race And We’re Always Losing

“Now, here, you see, it takes all the running you can do, to keep in the same place. If you want to get somewhere else, you must run at least twice as fast as that!”

From Carroll’s Through the Looking Glass, those who run the Red Queen’s race go as fast as they can in order to stay put. When I was growing up, grandparents expected you to send them a school picture once a year. Today, grandparents complain if you don’t post daily kid photos to Facebook. It is not just that expectations reset at warp speed. They also tend to ratchet in ways that outpace our ability to deliver.

Enterprise IT, for example, faces all manner of expectations problems due to the consumerization of technology. In the beginning of the digital era, businesses always had the best technology. People had to go into the office so they could use this or that machine. For your standard knowledge worker, the dynamic has flipped. Now most people complain that what they have at home is better than what they have at the office.

Their personal phone is newer. Not bogged down by security protocols, their personal computer is faster. Google embarrasses their enterprise search capabilities. Amazon is light years ahead on filtering functionality. Dropbox seems better for document management. The result is incessant complaining and dangerous forays into shadow and stealth IT. People want something that works, now. They don’t care to hear about systems integration or that Apple took years to offer its consumer-targeted iPhone with enterprise-level security controls. IT can’t win, they can only try to keep up.

Arguably, legal has it even worse. Our technology is often reactive. We didn’t know we needed virtual deal rooms or electronic discovery until enterprise data volumes had already exploded. We were ‘late’ on information governance, social media, cybersecurity, privacy, BYOD, etc. because there was no role for us to play until there was role for us to play, at which point we were in perennial catch-up mode.

Relative to any time in the past, our tech is greatly improved. Relative to our actual reference classes—(i) what is available on the consumer market and (ii) the scale of the task at hand—the tech we notice is almost invariably deficient.

Real Lawyers Didn’t Need Tech To Be Successful

This is not where I launch into a diatribe about older people not getting tech. I consider such thinking to be lazy, essentialist nonsense. Older people invented tech. Being an impostor, I know many people, some of them lawyers, who are older and considerably more tech savvy than me. Oh, and the digital native is a load of malarkey.

Yet that older people are entirely capable of getting tech does not mean that they do. Some do. Many don’t. And many who don’t are wildly successful. You can be a successful lawyer without tech having much of a felt impact on your career, let alone contributing in any discernible way to your success.

The lawyer who graduated in 1977 probably made partner in 1985, a year Bruce MacEwen recently recalled:

Second, the staff:lawyer ratios today would be unrecognizable to a time traveler from, say, 1985. They might be tempted to protest, “how can we afford to pay lawyers to type?” Don’t scoff; an early and terminally benighted boss of mine uttered those unforgettable words to me in about that very year, when I offered to bring in my own very primitive DOS-based, green-screen IBM PC clone on which I’d taught myself WordPerfect.

Things have changed since 1985. But they have changed far more at the bottom than at the top of the pyramid where our successful lawyer now resides. In many respects, our successful lawyer may be like Bruce’s hypothetical time traveler. They sometimes visit the tech-centric inner workings of their firm, but they find it alien and have no need to live there.

I promise to someday explore some of the ramifications of this social distance. But today is not that day.

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D. Casey Flaherty is a legal operations consultant who worked as both outside and inside counsel. Find more of his writing here. Connect with Casey on Twitter and LinkedIn. Or email casey@procertas.com.

The CLOC Institute last week was phenomenal. I barely tweeted because I was so engaged by the content and conversation. I did, however, transcribe one quote that got some attention from the legal commentariat:

I gravitated to the quote because it was consistent with my pre-existing notions of the role clients and structured dialogue play in driving improvements in legal service delivery. But because the statement only reinforced my extant beliefs, it did not inspire any sort of reflection. Another speaker from the same Big Thinkers panel, however, added another dimension to my musings on collective conversations.

Firoz Dattu used to teach economics at Harvard. Among many other cogent points, he talked about getting past the failings of individual firms and thinking more about how we can correct market failures. In particular, he emphasized the lack of perfect information. As someone who has long labeled law a credence good subject to Baumol’s cost disease, this observation resonated with me.

As an associate I worked for a client whose guidelines forbade time entries that suggested any form of communication between lawyers–meetings, conversations, conferences, correspondence. So, too, any form of research and many other essential elements of producing work that were impossible to avoid within the delivery framework within which we were operating.

The client’s guidelines did not change the underlying behavior. The SOP remained:

1. Get assignment from the partner (which necessitated communication)
2. Do whatever research needs to be done
3. Draft
4. Iterate – ask questions of or receive feedback from partner (more communication)
5. Do additional research
6. Repeat ##3-5 until product satisfies partner

Because lawyers are pretty good at playing games with language, this would all be captured under “write motion” or some other acceptable description. While the guidelines saved the client no money, they did waste considerable time. Because the client had an extensive external review process, the firm had an intensive internal review process to make sure the billing language satisfied the client’s guidelines. Internally, entries were constantly being sent back for rewrite but not writedown.

Few associates mastered the word games because we actively avoided working on the account. Beyond the painful time-entry protocol, the client had negotiated steep discounts. That’s fine in and of itself, except the firm was then experimenting with making associate bonuses and promotion (instead of partner compensation) dependent on revenue and realizations, rather than just hours. Associates chafed at being forced to do work that generated little revenue and reduced their realizations with each hour recorded–accountability without authority is aggravating. The result was that the client did not benefit from the accumulation of intellectual capital within the firm.

From where I sat, the relationship screamed out for a fixed fee or other AFA. I still believe that. But leaving pricing aside, I understand the client’s urge to play a role in shaping the way legal services were being delivered. What I object to is the counterproductive combination of micromanagement and blunt instrument.

For all the effort that both put sides into satisfying and enforcing the guidelines, they would have been much better served to engage in a structured dialogue about continuously improving project management (communication) and knowledge management (research), as well as other aspects of service delivery such as templates, automation, analytics, and staffing. With respect to staffing, the client should have been interested in maintaining a stable team that was familiar with their work. Which, of course, means that I just suggested a new guideline as part of a screed against guidelines. I’m a bit of a hypocrite.

While I disdain billing guidelines, I consider them a necessary evil. Clients need to communicate how and when invoices are to be submitted. Clients should have policies on traditional pass-through costs like ediscovery, court reporting, and expert witnesses. We can debate the merits of particular policies and prohibitions, but I have yet to meet anyone who advocates for a total abolition of billing guidelines. After all, “send invoices to” is a billing guideline.

And, yet, there’s a problem: we don’t really have a forum to debate particular policies and prohibitions. Outside counsel guidelines are presented as a fait accompli. Pushing back on them in the context of the relationship is hard. Simon Chester, the former GC of the former Heinan Blake, has detailed many of the problems in billing guidelines and believes that firms “have to be prepared to walk away” from the engagement. But how many firms can afford to walk away in a world of flattening demand, lateral hypermobility, and inherently fragile firm structures?

Content is not the only challenge. Outside counsel guidelines are sometimes quite long–they are, after all, written by lawyers. And they tend to be all over the map, not just in requirements but in language and structure. Billing guidelines are frequently not read, let alone followed, by outside counsel or even the inside counsel who were not part of the drafting team. Guidelines are often treated as formalities, trivialities, and inconveniences more honored in the breach.

Compounding the problem is that firms often provide, and clients frequently sign, engagement letters that contradict the guidelines. These, too, often go unread. In not being read, guidelines and engagement letters are like 99.9% of the executed contracts in existence. As litigators know well, most people only read the contract when something goes wrong, which, frankly, is not too often in percentage terms but is common enough in raw numbers to keep us employed.

Ironically, the law department/firm relationship is among the worst papered commercial relationships a corporation will enter into because their lawyers are otherwise so vigilant when it comes to the business units’ commitments and obligations. Most of the time it’s fine. Except when it isn’t. And then it is bad. I didn’t realize how bad until I had a recent chat with someone who audits legal bills for a living. We’re talking five to seven figures and immense stress on relationships. He explained to me that violations of the billing guidelines were, by far, the lowest hanging fruit.

Both law departments and law firms have a contract management problem.

Even recognizing all this, what is to be done? If you are a client and want to write new, improved guidelines, where do you start? For the firm, while a few clients may actually have really good guidelines (some do), the good ones still won’t align with the disparate guidelines from all your other clients. Both clients and firms may, understandably, be inclined to turn to technology. But technology vendors have to deal with the same problems of lack of standardization and the attendant need for deep customization, especially on the firm side.

I don’t have a solution. But, if there is a solution, it will probably not be unilateral. I once wrote a piece on a billing guidelines project that did not get off the ground. Here was my take:

Conformity gets a bum rap. Absent the crowd, there is nothing to stand out from. Common standards bring clarity, provide bases of comparison, and establish frames of reference. Total separation from the herd is isolation, not freedom. Indeed, the entire idea of coming together as [organization] is to bring collective resources to bear on common challenges. In many areas, clients are probably not conformist enough.

Thus, the newly formed [sub-group] invites you to submit your outside counsel guidelines (or legal procurement policies or master outside counsel relationship document or matter engagement agreements or….) to [email address]. The billing guidelines committee, under the leadership of [awesome person from awesome company] is expanding on a project begun by [other awesome person]—also on the committee—to collect and synthesize member guidelines. The tactical objectives are to create a set of model guidelines and an automated template assembly tool that will permit any member to craft custom guidelines by selecting from a series of dynamic menus. The strategic goals are far more profound.

The immediate value of the collected billing guidelines are the similarities. By pulling out common language on, for example, photocopying charges, the committee can craft model clauses for each of the standard approaches (e.g., price limits, requirement that jobs above a certain size go to a pre-selected vendor). Offering these model clauses within an automated tool will make it much easier for members to update their guidelines, for law firms to understand their obligations, and for technology vendors to embed automated rules in the products used by both inside and outside counsel.

The intermediate value of the shared resource is gaining statistical insight about variation. The existing guidelines submitted and the guidelines produced through the document-assembly tool will reveal consensus or the lack thereof. Where there is consensus, the data will provide communal reinforcement and establish member expectations for our firms and vendors. The baseline consensus will relieve members of the burden of discussing standard industry practices and instead focus their supplier outreach efforts on their unique requirements. Likewise, by exposing areas where consensus is absent—e.g., whether law firms should be required to pay a fee to the client’s ebilling vendor—the [organization] will be able to identify topics that warrant further constructive debate. The most interesting panels are usually those where the panelists disagree.

The long-term value of the project will most likely to be found in the outliers. That is, not the areas where most member companies agree or have reached divergent conclusions, but in those areas where only a few members have even thought to create policies. The outliers are where the innovations happen. By establishing a communal resource, the committee hopes to create a new mechanism to introduce those innovations into the collective consciousness. Precedent is a powerful force in the legal marketplace. Our community is well served to collect and learn from our own precedents, especially those that have yet to become part of our paradigm. New ideas always feel a little foreign, and we need a means to shift the Overton Window.

The Overton Window is an idea that for a new policy to gain traction it must, at the very least, be within a window of acceptable alternatives.

The sweet spot is in the middle. Too much distance on either side of center means a concept is not ready for prime time. The initial step is to establish the Window. The next step is to identify those policies that fit within the Window. The final step, however, is to shift the Window so that once radical ideas can be deemed acceptable, sensible, and popular on their way to becoming policy. The [sub-group’s] billing guidelines project has the potential to accomplish all three (establish the Overton Window, identify the policies that fit within it, and shift the Window over time).

The project has considerable potential. But realizing that potential depends on you. This is a collective effort. It begins with members submitting their outside counsel guidelines to [email address]. This is an ongoing duty. New or updated guidelines should also be submitted. The guideline-assembly tool will make that easier. Finally, it is incumbent on us all to innovate, introduce those innovations to our fellow members, and participate in the on-going discussion of what innovations are worth spreading. Conformity gets a bum rap because it is too often another way to refer to unthinking complacency. Neither descriptor—“unthinking” or “complacent”—attaches to the members of [organization].

So that didn’t happen. But I am reflecting on what could have been because something that has the potential to be better has filled the vacuum. The members of the Corporate Legal Operation Consortium (CLOC) recently published some mercifully short model Industry Billing Guidelines. In addition, CLOC made the decision to invite everyone–law firms, alternative providers, law schools, vendors–to participate in their CLOC Institute (starts tomorrow).

The first part, common billing guidelines, is good. The second part, an ecosystem approach to addressing communal problems, is intriguing. You’ll notice that the proposal I wrote about only contemplated input from corporate counsel. While I take a client-centric view of the legal market, I think it is folly to treat clients as the sole stakeholders or as somehow having a monopoly on insight.

As our environment becomes more complex, the need for collective conversations grows. We do not need unanimity on every detail, but consensus frameworks around billing guidelines, task codes, cybersecurity standards, etc. would go a long way towards making everyone’s life easier. Clients would not need to reinvent the wheel. Law firms would benefit from clarity of obligations and settled expectations. Vendors would have the critical mass necessary to embed rules in their systems.

Per usual, I am note sure if I am skeptical optimist or an optimistic skeptic. I do not expect magic. I do not expect the industry to change overnight. But I do see the existence and orientation of the CLOC Institute as another sign that incremental improvement continues and may be speeding up. We may not be anywhere close to perfect (a world that has no need of outside counsel guidelines), but we do seem on track for better.