This is the second talk from the the ILTA Session – Legal Technology Innovation – Bolstering and Destroying the Legal Profession. This is from Joshua Lenon, Lawyer in Residence at Clio.

Technology is No Threat to Lawyers

A while back, NPR’s Planet Money show issued a nifty interactive tool indicating whether or not certain employees would be replaced by technology in the future.  If you looked up lawyers, you’d see the following result:

(Image from NPR.org)

The calculations that determined this statistic included such issues as:

• Do you need to come up with clever solutions?
• Are you required to personally help others?
• Does your job require negotiation?
• Does your job require you to squeeze into small spaces?

It turns out that lawyers rank high in each of these categories in favor of not being replaced by robots.

This result was pretty shocking, as most online discussion list the chances of a robot replaces lawyers as somewhere between “I, Robot” and “The Terminator.” Both movies have robots taking over, but one follows the Steve Jobs’ school of design.

Research the matter further, I delved into the U.S. Bureau of Labor Statistic’s (BLS) historical data on employment for providers of legal services.  Did the history of technology development result in a decrease in jobs for lawyers?

When plotted from 1997 to the latest data in 2014, both paralegal and lawyers showed substantial growth in employment over that period.  Lawyer employment grew 42% and paralegal employment great 111%! This represents an expansion of 320,000 jobs.  Even if you only look back to 2006, the last great year of legal hiring by Big Law, you still see 10% growth in lawyer jobs since then.

Why is this growth during this time period important? It’s because it happened during one of the great expansions in human productivity in the workplace.  The Bureau of Labor provides the following chart that shows the years 2000-2007 to be the second highest increase in productivity in the work place every recorded.

While the BLS did not publish productivity gains specifically for the legal service industry, other industries tracked alongside legal in the professional services category, like bookkeeping and accountants, saw productivity improvement from 2.1 to 5.0 percentage change.  That’s huge, with the only greater period being the post-WWII boom that industrialized most of North America.

If lawyers and paralegals can still grow their employment levels during huge rises in productivity, that means that technology is not replacing these employees, but instead is supplementing them.

How do we know that technology is supplementing lawyers, rather than replacing them?  Because the same BLS tracking data shows that other employees in the legal sector are being replaced.

Legal secretary employment has fallen from 277,000 jobs in 1997 to 212,000 in 2014. This is a 23% change, and not for the better. Legal Support Workers, Other is currently growing, but only after losing 30,000 jobs from their high in 2005.

Technology is not replacing lawyers, but is replacing the employees that support lawyers. This is akin to the change in the Industrial Revolution when plow horses were replaced with tractors. Farmers continued to exist, just now with tractors doing a lot of the hard labor for them. Lawyers continue to exist, but they are not using the tools of the past.

This change is creating large changes in the way law firms hire as well. In ALM’s  2015 report, “Law Firm Support Staff: How Many are Enough?”, 62% of law firms surveyed have decreased legal support staff levels.  At the same time, 47% of firms increased their spending on staff. One conclusion is that these firms are hiring more highly trained and specialist staff.

Much like the industrial revolution decreased jobs for farriers and increased jobs for tractor engine repair specialists, law firms are now looking for support specialists in legal technology. Law firms are ditching employees that no longer fit into the new economy operating around law firms.

That’s why I think lawyers will work with robots, but will not be replaced by them.

Two weeks ago I spoke on a panel at ILTA in a session entitled, Legal Technology Innovation – Bolstering AND Destroying the Legal Profession.  Interestingly, the original title was Bolstering and Destroying Legal Work, which didn’t seem nearly as wimpy when we submitted it, as it did after the revised title was published.  We kept the new title.

The panel was a reunion of the Do Robot Lawyers Dream of Billable Seconds? panel I spoke with last year that included Joshua Lenon from Clio, Noah Waisberg from Kira Systems, Stuart Barr from HighQ, and Michael Mills from Neota Logic.

Rather than post the recording of the session as I did last year, I’ve asked my fellow panelists to submit their short talks in blog post format.  I’ve received a few of them and they will be published in turn over the next few weeks.

Today, I’ll start with a synopsis of my own talk:

The Napsterization of Legal Services.

The record labels used to sell plastic discs with data on them.

Today they sell nearly that same data over the internet, without the plastic discs.

On it’s face that seems like a relatively straight-forward, if not easy transition to make.  It’s the kind of transition from one media type to another that you would expect a mature business or industry to be able to navigate with minimal disruption.  But as we know, that transition was anything but straight-forward.  In fact it wreaked havoc on the recording industry for more than a decade and they are just now beginning to get back on track.

Why was this such a difficult transition?

I suspect there are many reasons that the record labels found it difficult to move from plastic discs to no plastic discs, but I think one primary reason is that in the late 90s, they were in the business of selling plastic in pretty packaging, more than they were in the business of selling the content on that plastic.  They could charge premium prices for discs and packaging and they had to to cover the manufacturing and distribution costs of discs and packaging. They were certainly aware of the internet, and probably knew that digital distribution was the future, but they had no urgency to change a model that was still largely working.

And then Napster exploded on the scene. 

Napster wasn’t a rival record label, or an upstart looking to upend the industry, in fact it wasn’t even a company originally.  Napster was a kid in his dorm room using technology that was widely available at the time to do something that kids had been doing for decades: sharing their favorite music with their friends. In my day we used cassette tapes.  Napster was the ultimate mix tape, and in a very short time, that mix tape was available all over the world.

This highlighted a clear discrepancy between what the record labels were selling (discs and packaging) and what their customers actually wanted and cared about (the music). Whenever such a discrepancy exists, technology will step into that gap.

What this has to do with legal services?

I think law firms, in particular, are in much the same position today that the record labels were in the late 90s.  We even have our own version of the ‘discs and packaging’ problem.

We sell our lawyers time – and that is true whether we’re talking about billable hours or fixed fees. We sell the time it takes our lawyers to manually perform various tasks, and produce outcomes for our clients.  When what the client actually cares about is the outcome, not the hours.

Historically, this discrepancy wasn’t a problem because the best way to deliver those outcomes was to have our lawyers manually perform the work and then bill for their time.  But today that is not necessarily true.  With machine learning algorithms, reasoning tools, and automation software, we can begin to replicate the work that our lawyers have always done manually with technology.  We can deliver a better, faster, AND cheaper solution to our clients.

Our lawyers are still compensated, and our firms are still structured, around ‘selling plastic discs and packaging’ (lawyers hours).  And yet the technology to give our clients the outcomes they want, with minimal manual labor is becoming widespread.  We are ripe for our own version of Napster.

We have an ever-shrinking window of opportunity from today until the Legal Services Napster Event takes place, when we can begin to manage the transition from one media type to another.  If we actively and intelligently manage that change, then it will be a bumpy ride, but we’ll come through it.  The alternative is to do nothing, keep selling our discs and packaging, and hope that nothing ever changes.

And thanks to the record labels, we have a good idea of how that will turn out.

Batman should spend more time and money securing Gotham’s prisons. As my soon-to-be five year old gets increasingly enthralled by super heroes (and Legos and Star Wars), I find myself watching many animated series where the chain of events commonly commences with a super villain’s prison break. Gotham’s lax security protocols are the source of considerable mischief. It would seem to me that some portion of the billions Batman spends on crime-fighting contraptions and the trillions the city spends rebuilding after every villainous rampage would be better directed towards keeping evil geniuses behind bars. But that, of course, would make for uninteresting TV and would mean far less of Batman being Batman.
(xkcd)
This tangent was inspired by the announcement that one of my legal super heroes, Jeff Carr, is heading to ValoremNext. In the legal nerd version of the Justice League or The Avengers, he will be joining forces with fellow superhuman crusader, Pat Lamb. As described in their press release, ValoremNext is “a platform designed to diminish the need for legal services by preventing problems before they occur.” Jeff is quoted, “as businesses expand their geographic base, the demands on law departments to do more with less becomes acute, and the savings available from doing the same things better are not sustainable. The only sustainable savings can come from a program that prevents the demand for legal services in the first place.”

Two more analogies.

Firefighting is a heroic activity. But fire codes and fire prevention engineers have done far more to preserve life and property. In most urban environments, firefighters now spend very little of their time actually fighting fires. Likewise, few people recognize that plumbing is more important to public health than doctors. Neither of these facts, while true, has eliminated the need for firefighters or doctors, nor do they diminish the nobility of those vocations. But systemic prevention initiatives are critical for allocating finite response resources to their highest and best use.

A profile I wrote several months back on VMware is a superb example of combining process and technology to #DoLessLaw. VMware’s legal operations team lead by Aine Lyons worked in conjunction with legal department stakeholders and their LPO provider to redesign the contracting workflow. Post redesign, the number of deals escalated to the legal department declined by 74 percent. The annual savings was in the millions. Quality also improved. And, importantly, finite lawyer time was directed towards higher-value activities.

It is worth focusing on the fact that VMware initiative relied on the legal ops team. As I’ve mentioned in previous posts and will detail more in the future, I see the rise of nontraditional stakeholders as key to increasing our sophistication as the suppliers and consumers of legal services. It’s not that traditional lawyers are intellectually incapable of leading these projects. They are, however, very busy lawyering. Lyons herself is a trained lawyer who now primarily focuses her efforts on systemic issues rather than individual matters.

Capacity constraints should be understood and respected. Empowering specialists to focus on areas within their domain expertise is an excellent first step towards success. But that presupposes such specialists exist. I was therefore excited to learn that Jeff Carr is taking his expertise in preventative law beyond the confines of a single in-house department. The legal market will be a richer, more interesting (and hilarious) place.

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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).  

“No offense, but….”

I can’t help but perk up when a sentence starts that way.

“No offense, but how did a mid-level lawyer at mid-tier company get so much pub for saying something that everyone already knows?”

I’m paraphrasing. But someone recently asked me that question. I couldn’t be offended. I have often wondered the same thing. I’m best known for saying that lawyers aren’t all that proficient with the technology they already have and it would be good if they got better. That’s not exactly Nobel worthy. Yet, I received all sorts of awards and publicity. It is kind of bizarre. And I have a few different theories.

First, it is not true that everyone knows the same things to the same degree. The most ignorant are the most likely to labor under delusions of adequacy. This problem of meta-ignorance—we don’t know what we don’t know—affects the way that legal professionals evaluate themselves. They really have no idea how much effort they are wasting because of bad process and technology utilization. This obliviousness also affects their perception of their colleagues, especially the ones that know slightly more than them. I’ll return to the myth of the digital native in a subsequent post.

Second, it was not so much the saying as the doing. I might have been saying that which everyone already knew, but I was the first in-house counsel (as far as I know) to be so public in my efforts to systematically seek to do something about it. Everyone may complain about inefficient behavior in vague terms, but actually defining, measuring, and improving upon inefficient behavior is rare.

Third, everyone knowing something does not make it common knowledge. Common knowledge has a key element beyond everyone knowing something: everyone has to know that everyone else knows it. To quote Wikipedia:

Common knowledge is a special kind of knowledge for a group of agents. There is common knowledge of p in a group of agents G when all the agents in G know p, they all know that they know p, they all know that they all know that they know p, and so on ad infinitum.

As a recent, excellent piece on the special properties of common knowledge observed:

The moral is that the mere act of saying something publicly can change the world—even if everything you said was already obvious to every last one of your listeners. For it’s possible that, until your announcement, not everyone knew that everyone knew the thing, or knew everyone knew everyone knew it, etc., and that could have prevented them from acting.

I have to remind myself of this in my darker moments. Being on the speaking circuit, you see the same people, in the same places, delivering the same messages year after year. It can be easy to succumb to cynicism. It’s all kabuki theater. After all, one of the best ways to maintain the status quo is to talk about change constantly while doing nothing. Then again:

Don’t Stop Believin’. The great Dan Katz and I speak at many of the same conferences. We’re not quite at the point of Einstein’s chauffer (who, in the apocryphal story has heard Einstein’s speech so many times that Einstein lets him give it), but I have heard his insights often enough that I am in danger of starting to think they are my own. Commenting on the repetitive nature of these speaking engagements, Dan likes to compare the experience to being in the epic band Journey, which is always expected to play its greatest hits. Get up there and sing the song everyone came to hear! But, like Dan, I realize that repetition is one of the four levers of persuasive certainty and can give the illusion of truth even when an argument is weak, which his is not.

Further, ours is the speaker’s perspective. The speakers and their messages have limited turnover. But the audience usually consists of first timers. For example, while it may be something they’ve spoken on for years, I left ILTACON finally ready to tackle Agile because of chat with John Grant, as well as thinking deep thoughts about what the Baby Boomers have done to the practice of law because of talk by Joshua Lenon. It would have been a shame for me if either of them had declined to spread their message just because they had shared it before.

Collective conversations like ILTACON and 3 Geeks have many positive effects. The focus is education—creating awareness of new information. But the pursuit of real education—the audience internalizing the message—often compels us to repeat and reinforce information that is already out there. And translating real education into action often turns on that information becoming common knowledge. This first one can make us feel noble. The second can make us feel redundant. The last one can make us feel silly. Re-stating the obvious does not seem like it has much merit. Again:

The moral is that the mere act of saying something publicly can change the world—even if everything you said was already obvious to every last one of your listeners. For it’s possible that, until your announcement, not everyone knew that everyone knew the thing, or knew everyone knew everyone knew it, etc., and that could have prevented them from acting.

In a similar vein, the amazing Seth Godin has some valuable advice for those of us (essentially, all of us) who let embarrassment result in self-censorship:

Embarrassed

It’s a tool or a curse, and it comes down to the sentence, “I’d be embarrassed to do that.”

If you’re using it to mean, “I would feel the emotion of embarrassment,” you’re recognizing one of the most powerful forces of our culture, a basic human emotion, the fear of which allows groups to control outliers, and those in power to shame those that aren’t.

The stress that comes from merely anticipating the feeling of embarrassment is enough to cause many people to hold back, to sit quietly, to go along.

And this anticipation rarely leads to much of anything positive.

On the other hand, if you’re saying, “doing that will cause other people to be embarrassed for me, it will change the way they treat me in the future,” then indeed, your cultural awareness is paying off. There’s a reason we don’t wear a clown suit to a funeral–and it’s not precisely because of how it would make us feel to do that. It’s because insensitive, unaware, selfish acts change our ability to work with people in the future.

Most of the time, then, “I would be embarrassed to do that,” doesn’t mean you would actually be embarrassed, it means you would feel embarrassed.

In most settings, the embarrassment people fear isn’t in the actions of others. It’s in our internal narrative. Culture has amplified the lizard brain, and used it to, in too many cases, create a lifetime of negative thinking and self-censorship.

So, yes, by all means, don’t make us feel humiliated for you, don’t push us to avert our eyes. But when you feel the unmistakable feeling of possible embarrassment, get straight about what your amygdala is telling you.

-Seth Godin

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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 yielded to an unproductive urge.
(xkcd)

It is not so much that I think ATL’s Keith Lee is wrong in The Difference and Inch Makes as I think that he succumbs to strange compulsion towards #SlatePitch pseudo-contrarianism. 
Lee beats the crap out of an ILTACON straw man. He warns readers against the “[b]reathless enthusiasm and over-the-top bombast about how legal tech companies are going to re-shape the practice of law.” Lee’s ILTACON is a place where there “is lots of talk about algorithm this or automatic that” premised on the illusion that technology “is the panacea that cures all ills.” ILTACON, it seems, is the hotbed for discussion of how robots will replace lawyers.

That’s odd. I just got back from ILTACON (it was fantastic). So did Lee’s ATL colleague Jeff Bennion. Bennion and I definitely attended the same conference. Rather than replace lawyers, Bennion accurately (in my opinion) conveys the conference’s focus in his headline: Solutions That Are Being Discussed At ILTACON To Make Law Firms Better.

“Make better” is a drastically different theme than “replace.” Instead of a “panacea”, Bennion and I attended a conference where there was much discussion about the “communication problems,” “accountability problems,” “costly mistakes,” and “security” issues associated with properly integrating technology into the practice of law. It’s almost as if technology implementation is challenging and demands user training. 

Pragmatism, competence, and a systematic approach to problem solving were far more prevalent than “[b]reathless enthusiasm and over-the-top bombast.” I almost get the sense that Lee did not attend the conference about which he formed such a strong opinion that he felt compelled to share on one of the most important sources of information in the legal industry. Then again, speaking from a place of ignorance is a better look for him than actually having attended and coming away with such an asinine impression.

Maybe we just went to different sessions (there was something like 400+). I have little doubt someone somewhere was being bombastic. Or, maybe, Lee was in attendance but spent all of his time on the exhibit floor. That’s kind of like watching TV only for the commercials and complaining that the programming is crap. The exhibit floor is great fun. But everyone recognizes it for the advertising it is. The point of the floor is not to close sales but to generate awareness, which it does extremely well. Awareness is followed by discussions, demos, proofs of concepts, and contract negotiations that get past happy talk in very short order.

With respect to the exhibitors, Lee offers this hot take: “My prediction? 90% of the companies at ILTAcon this year won’t be around three years from now.” This silliness is further evidence that Lee has no understanding of what ILTACON is or who attends. Most exhibitors are mature companies that have been around for years. Anything is possible, but it would take some sort of economic cataclysm to cause 9 of these 10 to close shop in the next 3 years:

  • Thomson Reuters (1799) 
  • LexisNexis (1818)
  • HP (1905)
  • Ricoh (1936)
  • Canon U.S.A. (1955)
  • Microsoft (1976)
  • Aderant (1978)
  • Nuance (1994)
  • Intapp (2000)
  • kCura (2001)
No company is bullet proof. But even the newest kid on the block—kCura, which makes the ediscovery program Relativity—has been around for 14 years, has grown 1600% since 2008, and just raised a $125M round in February.

Maybe Lee was trying to suggest that 90% of the startup companies at ILTACON won’t be around 3 years from now. Even this is suspect. Very few true startups can afford a presence at ILTACON. Or, maybe, Lee was just using ILTACON as a metonym for the universe of legal tech startups and saying that 90% of legal tech startups will fail. If so, this is not so much a bold prediction as a banal recitation of the often-repeated statistic that 90% of all startups fail.

My guess is that Lee didn’t go to ILTACON, knows little about ILTACON, and was really just using his misconceptions about ILTACON to take a swing at the “spin” and “hype” about the promise of legal technology. There is nothing wrong with pushing back against techno-utopianism. My introductory column as the technology columnist for the ACC Docket is a warning against magical thinking.

But, even giving Lee the benefit of the doubt about his true target, his piece remains about as successful as his home repair (Lee starts the piece with an anecdote about a failed door replacement). The only legal technology that Lee actually mentions is LegalZoom, which does not exhibit at ILTACON. He seems to be suggesting that clients always need to go to a lawyer and should never use LegalZoom.  

Almost every time a client walks into a lawyer’s office, there is going to be some crinkle in the situation. For example, a client says, they just need a will, they don’t have much, it’s not complicated. They’ll assure the lawyer it’s a standard situation. They almost used LegalZoom, but decided they wanted to check with a lawyer, “just in case.” Tech cheerleaders would say, “Yes! Automate this! Low level work! Perfect for tech!”

But the more the lawyer talks with the client, the more will come out. The client starts to talk about the farm they live on. Inherited from generation-to-generation. They’ll talk about abutting lands and a private road from another farm. A power line easement that is set to renew in 15 years. Their children from three separate marriages and a girlfriend they just left their wife for. Before they know it, the lawyer is knee-deep in a Whiteacre/Blackacre hornbook problem.

This is self-serving bullocks. As a lawyer, it would be nice to believe that Lee is right. But the commoditization of certain types of legal work has been a trend for decades and, on net, has been a major boon to clients. Most wills are in fact routine. Sometimes, using a form turns out badly. Just as, sometimes, people follow their GPS into a lake. Or just as, sometimes, trained lawyers make mistakes. Overall, clients are getting quality services at radically lower cost. This includes many clients who are not able to afford a lawyer.

Again, maybe, Lee himself is engaging in a bit of bombast. Maybe he is simply warning against overreliance on technology-based, commoditized solutions like LegalZoom. Sure, it works in some cases, but not all cases. Sometimes, you need a trained lawyer. I could then again agree with him while again observing that he is attacking a position that no existing, credible person holds.

There is no group of people more adamant about the fact that LegalZoom forms are not appropriate for every legal situation than the people who run LegalZoom. For five years, LegalZoom has been building out a nationwide network of attorneys to service clients who need assistance filling out LegalZoom forms or for whom the forms are ill suited. LegalZoom has built a complementary business around their recognition of the fact that unguided use of their forms is not always in a client’s best interest. Lee cites a “DUI stop” and a “immigration problem” as exemplar situations where “anomalies arise” without any understanding that in those circumstances, instead of providing forms, LegalZoom offers consultation with licensed attorneys—you know, the very thing that Lee is advocating.

Lee makes some reasonable points about tools just being tools and still depending on the user. But those points are couched as a bizarre attack on entities and opinions that seem to be figments of his imagination. If Lee wants to attend CodeX in order to have Dan Katz hand him his rear end about “algorithm this or automatic that,” I welcome the entertainment. But he does the legal industry a disservice when he attacks ILTACON on a platform so widely read by lawyers. Our profession would improve if more lawyers attended ILTACON rather than viscerally dismissed it because of their fear that technology will make them obsolete. ILTACON is about improvement, not replacement.

ADDENDUM: I am not sure if it heresy to use my perch here at 3 Geeks to declare my affinity for another blog, but I adore Above the Law (especially Mark Herrmann, everyone should read Mark Herrmann, always). I’ve checked the site almost daily for over a decade. Moreover, I know that it is silly to ascribe to the site the opinions of just one of its many authors (its not like Lee is Lat or Elie). I certainly hope that no one imputes my sophomoric ramblings here to heroes like Greg and Toby. And the ill-conceived article that prompted this post was one small part of ATL’s otherwise stellar ILTACON coverage. But I have such a high regard for both ATL and ILTACON, I couldn’t help my strong negative reaction when someone used the former to take shots at a straw-man version of the latter. 

As a funny (to me) aside, I even made ATL part of my Legal Technology Assessment. The site is referenced in the primary Word test document and is at the center of a task that combines training on hyperlinks with a warning about cheating (ATL’s role as a watchdog is often underrated):

++++++++++++++++++++++++++++++++++++
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).
Image [cc] highways england

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.

    ++++++++++++++++++++++++++++++++++++

    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.

    ++++++++++++++++++++++++++++++++++++

    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.

    ++++++++++++++++++++++++++++

    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!