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This is one of those posts where I start writing down my thoughts, not really sure where I’m going to end. However, that never stopped me before, so why let it stop me now?

When I was at a Westlaw lunch today discussing the AALL conference in Philadelphia, I had a germ of an idea that started burrowing its way into my brain. We were discussing things like Project Management, KM, lateral hires, and new client/matter opening processes. That’s when it hit me that it seems like there is some role for the library and knowledge services groups to play in delivering some value added information into the opening process. Then I just kept thinking, “but what is that?”

When a new client is brought into the firm, there are certain administrative functions that kick in, primarily in the Conflicts group, and Records. Specifically, these groups investigate any potential issues that may cause the firm not to be able to represent the client due to some previous work, or other problems that legally or ethically prevent the firm from handling the work. Obviously, that’s Conflicts. The other is more of a logistical process of creating a working folder system, assigned to a specific client number, and matter number, for the attorneys to manage the communications and electronic work flow of the client’s specific legal matter. Typically, this is through a Records process assisted by the IT department.

There are other administrative functions that kick in as well. Accounting uses the client/matter number to create a billing process that assigns billing rates, and possibly a matter management process for those firms that use project management on the matter level. Marketing may ask for updates to the client relationship management tool, and if there are deals or significant news worthy issues, help draft a press release announcing the firm is handling the legal matter.

But what processes automatically kick in when a new client, or a new matter is opened within the library? I’ve been pondering that for a few hours now, and really haven’t come up with anything specific that we do. Now, that doesn’t necessarily mean that we are doing anything wrong, but I’m wondering if we’re missing an opportunity by not having something kick in, at a minimum when a new client is brought into the firm.

So let me bounce a few ideas off of you on what we could do through automated processes that bring value to the attorneys representing the new client:

  • Prior legal history
  • A report that shows what legal matters the client had, what jurisdictions, judges, law firm representation. 
  • Most likely this could be easily created using resources like Monitor Suite, atVantage, CourtLink, Bloomberg, etc.
  • Company Report
    • Overview of the company, key players, any existing client/firm relationships, and key competitors
    • These can be compiled through the firm’s CRM, and external products like Capital IQ, Hoovers, etc.
  • Current Awareness Reports
    • News reports or industry trade information
    • Lexis news, or news aggregators like Manzama, InfoNgen, Ozmosys, or legal industry news providers like Law360.
  • Prior Deals (M&A, IP, Real Estate)
    • A report that shows prior M&A or other deals.
    • Deal Monitor, MergerMarket, CapIQ, Lex Machina
    I’ll stop there, but you get the idea. What is it that we could bring, automatically, or at least with very little human input, that would push information out to the attorney representing a new client? Is there value in producing this information in a proactive manner, rather than waiting to be asked by the Partner representing the client? Can it be pushed into a client portal, or into the client folders in iManage, or some other place where the attorneys can see it?
    I heard the saying lately that “it’s better to give the attorney something to edit, than to ask them to create something.” Applying this concept to what we could do whenever a new client is brought in, then it would be better to present the attorneys with the information, and let them decide what is valuable or not valuable to them after seeing it. Listen to what the attorneys have to say about the information, and adapt to their needs. 
    There’s definitely an opportunity for each time we have a new client. Let’s be proactive. Push something out and give the attorneys something to edit.
    This article I wrote on Bank of America’s diversity program brings together so many themes discussed in previous posts.

    Target: The Bank has a commitment to diversity. I share this commitment. But for purposes of this post, it could be any general, abstract goal.

    Measure: The Bank actually measures diversity internally and externally. The Bank is not alone in this. But I have been shocked at how many law departments that make public commitments to diversity take the next logical step of measuring it. Instead, they setup committees, join task forces, sponsor events, etc. These are all commendable except they have proven insufficient by themselves to actually move the diversity statistics. 

    [Can you imagine the sea change if every large, corporate client meaningfully measured dollars out the door to diverse timekeepers in terms of billed services and originations? Add to that some differentiation by level (e.g., paralegal, partner) and spend with MWBE firms. Wow]

    Baseline/Benchmark: Meaningful measurement normally needs baselines and target values. This is where we are at. This is where we want to be. The target values may, in many instances, need to be arbitrary. But that does not mean they have to be random. It helps to have a reference class of peers to measure against each other. Even if your goal is to raise the baseline, you get a sense of practical parameters.

    Discuss: It is amazing what results can be achieved when a law department asks its law firms to make verifiable progress against an empirically-established baseline. This structured dialogue begins with the one-way measurement, but it does not end there.

    Key to this self-evaluation is a question that recognizes the dual responsibility of the law firm and the client: “What could Bank of America do better to enhance your Firm’s diversity performance/metrics for the coming year?”

    Align: As the Bank of America profile demonstrates, the discussion can go beyond the numbers to the challenges faced and the other ways in which the law firm is striving to serve the commonly held goal. The discussions are key for reinforcing the goal, as well as deepening the law department/firm relationship by creating dialogue, a sense of shared purpose, and alignment in perspectives on the problem being addressed.

    Improve: None of the foregoing matters unless it actually results in improvement. But it does. What we choose to measure is a form of incentive in its own right. And client goodwill is of key importance in a highly competitive environment that is so dependent on relationships.

    Understanding they are falling behind their peer firms has a substantial motivational impact on legal overachievers. ‘Law firms are competitive by nature. So any constructive comment on areas for improvement is usually enough to motivate change within the firm,’ remarks Quarmby.

    Reward: Firms that perform well should be rewarded. In addition to high marks on their performance reviews and the attendant goodwill, Bank of America actually hosts an awards dinner for its top performing firms. The winner even gets their award directly from the Bank’s GC.

    Repeat: There is no finish line. There is a sustained commitment to continuous improvement.

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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 drives deeper supplier relationships by facilitating structured dialogue between law firms and clients. There is more than enough slack in the legal market 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. One obstacle 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).
    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 receive 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 depts/firms 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 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 drives deeper supplier relationships by facilitating structured dialogue between law firms and clients. There is more than enough slack in the legal market 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. One obstacle 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).

    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, 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 drives deeper supplier relationships by facilitating structured dialogue between law firms and clients. There is more than enough slack in the legal market 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. One obstacle 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).

    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!
     

    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.

    ++++++++++++++++++++++++++++
    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 drives deeper supplier relationships by facilitating structured dialogue between law firms and clients. There is more than enough slack in the legal market 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. One obstacle 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).

    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.] 
    +++++++++++++++++++++++++++
    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 drives deeper supplier relationships by facilitating structured dialogue between law firms and clients. There is more than enough slack in the legal market 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. One obstacle 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).
    Technology training is important. For a long time, I simply thought it was my job to push lawyers into technology training. And, for just as long, I thought anyone who resisted the idea of technology training for lawyers was being myopic. Again, the comic I repeatedly use to make this point:

    I had my simplistic worldview punctured by a friend who, I hate to admit, has a stellar track record of pointing out deficiencies in my thinking. He observed that we already mandate training for lawyers. It is called Minimum Continuing Legal Education (MCLE), and it has a well-deserved reputation for, too often, being an annoying timesuck. CLE audiences are notoriously checked out as they wait for the clock to tick down. Presenters deliver the 101 version of their message because they have no way to gauge their audiences’ pre-existing knowledge and, even if they did, would still have to choose between catering to the least or most informed constituencies. It’s awful, and I hate it as both as a lecturee and lecturer.

    When you are dealing with individuals who have a high degree of variance in their pre-existing knowledge base, traditional training methods are terrible. Gather everyone in the room and talk at them for a prescribed period of time is a recipe for disengagement. Even if the audience seems engaged, you have no way of knowing whether they are absorbing the content. Because it’s easy to measure, we have developed a very unfortunate habit of using time as a proxy for learning. The deficiencies of traditional training methods are even more evident when you are trying to teach skills. But I will address that in my next post.

    Let’s start with a simple knowledge-centric example. With the State Bar of California finalizing its formal opinion that insufficient understanding of electronic discovery can violate the rules of professional conduct, there is a strong impetus for California litigators to enroll in ediscovery CLE. They will sit in rooms or watch videos in which bona fide experts tell them what they need to know and provide a compendium of useful reference material. But what evidence do we have that the audience listened, let alone learned anything? How do we know they weren’t responding to client emails or playing Angry Birds?

    What if we gave them access to the same experts and compendium of reference materials but no credit for the time spent with either? What if, instead, they got the credit for successfully completing a competence-based assessment of their ediscovery knowledge? Every assessment would be computer generated from a large corpus of pertinent questions so that gaming the assessment would be far harder than, say, tuning out while the video plays in the background.

    Our fear might be that they would simply look up the answers to the questions. Fair enough, and we could probably address this fear by putting a time limit on each question. But even if we didn’t, think about what they are doing in looking up the answers. They are analyzing a question, researching an answer, and coming to a correct conclusion. In short, they are engaging with the subject material in the precise manner expected of a competent lawyer. And while our confidence in their knowledge is far from complete, it is a marked improvement over the status quo.

    To the extent we are primarily concerned with time, the new approach is a problem. Some lawyers will already possess the requisite knowledge and get through the assessment in short order on the first attempt. Other lawyers will struggle with the material, requiring considerable study and multiple attempts to pass the assessment. Both types of lawyers, and those in between, will earn the same credits. For me, this is a feature, not a bug. The singular focus on time is misguided. The point of CLE is to ensure that lawyers are keeping current. Lawyers that keep current as part of their regular practice should benefit from this fact and not be forced to sit through remedial lectures just because those lectures may help some of their peers.

    We should not use time as a surrogate for knowledge or skill when we can measure knowledge and skill directly. Validation that training has been successful is only one of the advantages of competence-based assessments. My next post will provide more details on why and how competence-based assessments should augment our traditional approaches to technology skills training.

    [Before the trainer community excoriates me for knocking down a straw man, let me concede that 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.] 
    ++++++++++++++++++++++++++++
    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 drives deeper supplier relationships by facilitating structured dialogue between law firms and clients. There is more than enough slack in the legal market 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. One obstacle 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).


    Last week the Twitterverse and other content spaces were abuzz (or atweet?), with commentary on the story from Bloomberg Law on how Law Firm Librarians Feel Underused and Underpaid.  Many in the sector agreed or felt that it was a wake up call of some kind.  The article was based on a survey compiled by Bloomberg Law for the annual conference of the American Association of Law Libraries (AALL), the librarians who took part in the survey were polled in person, and others later, over email. Most interestingly to me, was a quote from Bloomberg Law President David Perla “Librarians are saying, ‘We can help a firm anticipate what a client is going to need. We can be ahead of the client.” It reminded me specifically of another Bloomberg Law article from earlier in the summer on Why Law Firms Need to Change their Marketing Priorities. In that article it’s the marketing departments at law firms that are over burdened and understaffed.  One legal marketer who was interviewed suggested “[legal marketers] often don’t have enough time to focus on the most fundamental tasks in business development, such as helping lawyers to increase satisfaction for current clients, plan sales advances or follow up consistently.”  If librarians should be proactive to get noticed, and the business development people need help increasing satisfaction for current clients, isn’t a blended Library/BD person or department the perfect client service marriage?  A one plus one equals two kind of equation?

    We have heard again and again in client satisfaction surveys within the legal community that the number one driver for outside counsel selection is a firm who knows and understands a client’s business. I blogged about that here some months ago; the evolution of CI is from Competitor to Client Intelligence.  There is also an assumption among clients that we “all know, what we each know” within a firm. That is to say, that law firms provide knowledgeable, efficient and most of all, anticipatory client service, as Perla suggests.  There is no doubt that Bloomberg Law has a pulse on the legal market – they are in the business of knowing what firms need, and filling that resource void. But they can’t do it alone.

    Librarians feel underused and Marketing/BD professionals in firms are drowning in the volume of work and expectations from their lawyer clients.  From my perspective, there is a broader issue of collaboration by law firm management groups at play here.  Each department has their mandate, and each is tentative about stepping outside of their world either for fear of repercussion or lack-of- getting-credit-angst.  I’ve worked with and reported into several different administrative groups in my time at law firms.  And I can tell you that almost all non-lawyers in firms feel underused, it is not just a Librarian thing.  The fact that we are described by the negative “non” prefix is the case in point.   A commentary that several others in the industry have waxed poetic about before and I don’t need to rehash those discussions. Instead, I offer a solution – a rallying point for the non lawyers who are reading this blog.

    Let’s work together, truly collaborate and check the egos and credit ratings at the door.  Ultimately, we all want to succeed in our professions and in our roles within firms. For the marketing people amongst us, that means looking outside of our departments and realizing that there are other smart savvy people within our firms who can help to manage the work load by implementing technology tools, researching in anticipation of client needs or increasing the current awareness portfolio. For Librarians it means thinking about information in a commercial way, for example, how can a legislative change impact clients or increase firm revenue and it is about getting out of the library to chat people up and find out what is keeping them up at night and then matching those anxieties with resources.  For all non lawyers, it necessitates a brushing up on soft skills, especially communication, leadership and negotiation skills.  David Maiser, in Strategy and the Fat Smoker, says “We often (or even usually) know what we should be doing in both personal and professional life. We also know why we should be doing it and (often) how to do it.  Figuring it out is not too difficult.  What is very hard is actually doing what you know to be good for you in the long-run, in spite of short-run temptations.”  Collaboration at the highest level – integrated technology platforms, cross departmental response and readiness teams, mutual respect and assistance, is not easy, but we know it’s an imperative, the two Bloomberg Law articles alone demonstrate the ease of the equation.  True collaboration will make firms coordinated, efficient, balanced and competitive and you’d be hard pressed to find a client who is not willing the pay full rates for a firm like that.

    Among the nontraditional stakeholders who bring so much to the delivery of legal services, technology trainers hold a special place in my little lawyer heart.

    the fundamental task of management remains the same: to make people capable of joint performance through common goals, common values, the right structure, and the training and development they need to perform and to respond to change.

    Peter Drucker. The Essential Drucker.

    Training is, quite simply, one of the highest-leverage activities a [legal organization] can perform. Consider for a moment the possibility of your putting on a series of four lectures for members of your [organization]. Let’s count on three hours preparation for each hour of course time—twelve hours of work in total. Say that you have ten students in your class. Next year they will work a total of about twenty thousand hours for your organization. If your training efforts result in a 1 percent improvement in [the trainees’] performance, your [organization] will gain the equivalent of two hundred hours of work as the result of the expenditure of twelve hours.

    Andy Grove. “Chapter 16: Why Training Is The Boss’s Job.” High Output Management

    As an educator, I fear world-class [law schools] and high-performance [legal organizations] overinvest in “education” and dramatically underinvest in “training.” Human capital champions in higher education and industry typically prize knowledge over skills. Crassly put, leaders and managers get knowledge and education while training and skills go to those who do the work. That business bias is both dangerous and counterproductive.

    Michael Schrage. “How the Navy SEALs Train for Leadership Excellence.” Harvard Business Review.

    Technology is now as important a skill as are reading, writing, and mathematics. Everyone [including lawyers] needs to be able to use computers, search for information on the Internet, use word processors and spreadsheets, and download apps. These skills are now common and useful in every profession [including law].

    Vivek Wadha. “Love of Learning Is the Key to Success in the Jobless Future.” Washington Post.

    This imbalance in technological growth will have some surprising implications. For instance, workers more and more will come to be classified into two categories. The key questions will be: Are you good at working with intelligent machines or not? Are your skills a complement to the skills of the computer, or is the computer doing better without you? Worst of all, are you competing against the computer?

    Tyler Cowen. Average Is Over: Powering America Beyond the Age of the Great Stagnation.


    The Productivity Case for Technology Training

    Turning Andy Grove’s point above into something more visual, here is a chart that translates productivity gains into full-time equivalents (FTE) at scale:

    At a certain point, productivity gains add more to output than new headcount. Technology, training, and training on technology can be important sources of productivity gains. This remains true even when accounting for time invested in implementation and training. The following chart is entitled “Is It Worth The Time” and comes from my favorite webcomic, xkcd:

    The math is simple. But the implications are profound. Sometimes, we have a hard time thinking at scale. Often, we are so focused on our immediate responsibilities that we fail to appreciate the benefits of investing in a better way of doing things. The comic I repeatedly use to illustrate this point:

    The Case for Training, Not Just Technology

    The common trap is make the purchase, flip the switch, and, BAM!, reap the productivity gains. After all, “any sufficiently advanced technology is indistinguishable from magic.” But sobering studies out of MIT find that for every dollar spent on new technology, enterprises must invest an additional ten dollars in organizational capital—training and process redesign—to capture the technology’s full benefits. Again, for every $1 spent on technology, you need to invest $10 in training and process.

    Because people need to be trained and workflows need to be redesigned, related studies find that it typically requires five to seven years for an enterprise to properly integrate new technology. Without the complementary investment of time and resources, the technology only partially fulfills its promise, if at all. As a result, we have plenty of existing technology not being used anywhere close to full potential. As Greg and I have observed, much of that latent technology capacity has been sitting on lawyers’ desktops for over two decades. Training on already-purchased technology can, in many instances, be more cost effective than purchasing new technology (though not always, sometimes the already-purchased technology is terrible, or the new technology is awesome).

    The Ethical Case for Technology Training

    Even states that have not yet followed the ABA in changing their rules of professional conduct to expressly reference “technology” are recognizing the necessity of technology for the practice of law: “Legal rules and procedures, when placed alongside ever-changing technology, produce professional challenges that attorneys must meet to remain competent.”

    There is, of course, the cost component. Lawyers should not be charging their clients for two hours of labor when proper use of an available machine could reduce that labor to two minutes. Not knowing that technology could substitute for labor and, as a result, overcharging the client is a violation of a lawyer’s evolving ethical duty of competence.

    But proper use of technology is about so much more than speed and cost. As I show in this rather simple video, not only does the failure to use simple features like automated numbering and cross-references add hours of unnecessary labor, but it also multiplies the opportunities for error by several orders of magnitude. Machines are better suited for the mind-numbing, drudgerous, laborious, and the tedious. They don’t get bored, tired, distracted, or bitter. Our work product should get better, not just cheaper, when we use technology properly. But incorporating technology requires training.

    The Happiness Case for Technology Training and the Myth of the Digital Native

    Lawyers will, of course, do the monotonous, banal, tiresome, and mundane whenever necessary. The idea of the “law factory” where younger lawyers “grind out standardized legal advice, documents, and services” is older and more prestigious than most practitioners recognize. But the extent to which lawyers are grinding has grown to the point where Vault is compelled to rate legal employers on whether they actually give their young attorneys substantive work. It should be unsurprising to anyone who has ever been a young lawyers, or around them, that associate attorney is, by far, the unhappiest job in America:

    Notice how the young woman in the picture is staring at a computer (12-22 hours per day), rather than yelling at Jack Nicholson that “I want the truth” during her very first trial or beginning a closing argument to a jury with “I’m here to apologize. I am young, and I am inexperienced.” I imagine that she is actually thinking something along the lines of:

    The reality is that computers are not magic. Computers do what we tell them to do. But we have to know what and how to tell them. While great strides have been made for limited-purpose, consumer-level applications (e.g., Instagram), the user interfaces of most professional applications remain far from intuitive.

    Navigating unintuitive software is a bundle of learned skills, not an innate talent. The digital native is a myth. Acquiring a Twitter account in utero does not bestow an innate ability to commune with the machines. While 83% of them sleep with their smart phone, 58% of Millennials struggle to solve basic problems using technology. Most of what passes for the technological sophistication of our youth comes in the form of passive consumption (e.g., YouTube) or, at best, rudimentary communication (e.g., texts, Facebook). They are not trained, and therefore do not know, how to use the technology they encounter in a professional environment. They also don’t know what they don’t know and labor under delusions of adequacy. These delusions and the attendant time wasted on low value activities is one source of lawyers’ misery.

    The Business Case for Technology Training

    In a law department or AFA environment, the appeal of higher quality work in less time is self-evident. But even reducing the number of billable hours spent on low-value work can prove profitable. Too much time on drudgery is precisely what lawyers, law firms, and clients are cutting. From a profit perspective, uncompensated time is pure waste that piles opportunity costs on top of actual costs. As I’ve written previously, the legal market that exists today has plenty of room to simultaneously lower costs for clients while increasing profits for law firms.

    Technology trainers have the potential to make major contributions to the legal value stream. I believe strongly that they are among the most undervalued contributors to the success of a properly run legal organization. Too bad many lawyers are right to think that traditional approaches to technology training are terrible, as I will detail in my next post.

    ++++++++++++++++++++++++++++++++++++
    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 drives deeper supplier relationships by facilitating structured dialogue between law firms and clients. There is more than enough slack in the legal market 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. One obstacle 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).