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

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

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

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

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

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

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

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

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

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Casey Flaherty is the founder of Procertas. He is a lawyer, consultant, writer, and speaker focused on achieving the right legal outcomes with the right people doing the right work the right way at the right price. Casey created the Service Delivery Review (f.k.a., the Legal Tech Audit), a strategic-sourcing tool that 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.] 
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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).
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.] 
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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).


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.

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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).

Good enough.

Two words that are anathema to law firms.  After all, we produce perfect legal product. (cough, cough) We strive to eliminate risk for our clients, and especially for our firm, and as such, ‘good enough’ Is. Never. Good. Enough.  
I can’t and would never comment on whether a contract or agreement should be considered ‘good enough’. I would assume that no firm would ever accept, “Meh, it’s good enough”, when it comes to their legal product. But traditional legal products like contracts and agreements are, by their very nature, finished products.  They are essentially static and unchanged until they expire or are actively and deliberately supplanted by new contracts or new agreements.  That means that there is tremendous risk to the client and to the firm in not getting it ‘perfect’ at the time of delivery.
The problem comes when legal products leave the world of static documents behind and enter the world of software.  No software company in the history of the world has ever delivered a perfect product out of the gate.  They plan for bug fixes and schedule for upgrades.  Those of us in Legal IT are very familiar with Patch Tuesday. If you use an iProduct, you know that little red circle with a 1 above the settings icon that has been blinking at you for three months…? Yeah that one… that means you need to update your device ASAP. This is a way of life in the software world, users may be annoyed by it, but they expect it and most understand that these updates are meant to improve the user experience, or security, or give them additional functionality.  In fact a ‘perfect’ software that never updated would be highly suspect and most people would assume that it was derelict and no longer supported.
So how do we reconcile the traditional ‘strive for perfection up front’ approach to legal products with the reality of the software world?  We must embrace the beta.
Beta is the designation given to software which is still in development, but already deployed to at least a small community of end users.  Generally beta software is considered not yet ready for prime time, but still usable.  Google, one of the most innovative companies in the world, has taken the beta concept to new heights. Gmail was in beta for five years from 2004 to 2009.  By 2009, everyone’s grandmother had a beta Gmail account.  
Google isn’t charging for most of their products, so it’s easy for them to get away with the prolonged beta.  I’m not suggesting that we do the same, but I do think we need to learn to deliver admittedly imperfect software products, and systematically upgrade and improve those products over time.
Now, to be clear, I am not talking about compromising on the quality of legal output.  If you create a tool that outputs a standard contract for a client with your firm’s logo on top, it had better be a solid contract.  There is no compromise on that.  However, in most cases, the actual legal part of these types of tools is relatively minor and it’s the extraneous crap that holds up deployment.
If we can deliver a product with somewhat complicated navigation features next week, and it’s going to take 2 months to put a better navigation function in place, deliver the complicated navigation next week.  Explain to the client that this is a work in progress.  Show them screen shots of what is coming in the near future and give them a rough timeline.  Most importantly express how much you value their feedback, and appreciate their support during this beta development period.  And let them know that they are getting a deal on the pricing by participating in the beta.  Other clients coming later will pay the full price.
This is not rocket science.  This is software sales 101.  
With traditional legal documents, we do the legal work and hand them off to trained document specialists to format to the firms standard.  Unfortunately, we don’t have that luxury when it comes to legal software.  When you’ve contracted development, or cobbled together multiple SaaS tools to create a new product, there is no specialist to hand it off to to make it conform to a firm standard.  There may not even be a firm standard to cover every new mechanism you’ve created, which means someone needs to make up the standard as you go.  
By embracing the beta, we can deliver functionality to clients as quickly as possible, and focus on continually upgrading and improving their experience over time.  I don’t know for sure, but if I was a client of a law firm, that’s what I would want.  And if the product provided the functionality that made my working life a little bit easier, I’d probably be willing to jump through a few hoops or look past the occasional formatting snafu, to get the product on my desk more quickly.  
That’s what software companies do by necessity.  And like it or not, law firms are, or soon will be, software companies.

I’ve been discussing structured dialogue between law departments and law firms focused on continuous improvement in the use of process and technology to deliver legal services. A point I have yet to make, however, is the importance of nontraditional stakeholders to the success of such initiatives.

By nontraditional stakeholders, I mean anyone other than the law department’s managing counsel and the law firm’s relationship partner. Typically, those two roles are filled by subject-matter experts. This is as it should be. But their focused expertise and elevated positions often remove them from the more routine, laborious efforts that are most amenable to process improvement and innovation. There is no reason to automatically assume that they are multi-talented (though many are) and their expertise extends beyond their domain. Allied professionals are vital to proper client representation.

Who should talk to whom depends on the situation. Because of my personal background, my instinctive response includes the head of law department operations talking to the law firm CIO, and the head of legal sourcing talking to the law firm pricing director. Additional pairings might include frontline lawyers, paralegals, paratechnicals, project managers, or IT staff from the respective parties. For example, in the exemplar findings I posted, I recommend that the project managers from the client and law firm discuss ways to harmonize the respective workflows and better share KPI’s.

But it is important to get beyond the notion that the law firm and law department should mirror each other and dialogue must occur between direct peers. BigLaw may service lean law departments, and mammoth law departments may rely on boutique law firms. The fundamental question are, “What are the objectives?” and “Who are the subject-matter experts with respect to the objectives?”

For example, an in-house counsel may be concerned with the high percentage of a firm’s bills allocated to research costs. While the in-house counsel recognizes that the case types the firm handles demand some research (simply prohibiting research costs is not a viable option), her impressionistic sense is that the associates spend far too much time reinventing the wheel. Tired of cutting information-poor invoices by arbitrary amounts, she initiates a Service Delivery Review.

The SDR demonstrates to her that (a) the bespoke research her cases require is more substantial than she believed, but, still, (b) the practice group handling her work does not take advantage of the firm’s knowledge management offerings, and (c) the associates staffed on her matters do not rely on the firm’s research services because her predecessor refused to pay for them. The in-house counsel will reverse the policy on paying for research services and look at research-related time entries with a less jaundiced eye if the firm demonstrates progress on reducing research costs. Besides the relationship partner and her associates, nontraditional stakeholders from the law firm who may participate in the conversation include:

  • Library & Research Services to discuss how research specialist can be integrated into the workflow.
  • Knowledge Management to discuss the tools and methodologies available to reduce repeat investigations of the same issue.
  • Project Management to discuss how the initiative to reduce research costs can be tracked and measured.
  • Pricing to discuss alternative ways to budget for research and share the risks of wheel reinvention and goldplating.
  • Workflow to discuss how to ensure that the right people are doing the right work.
  • Client Development to understand what the client is asking of the firm, to act as the client’s internal advocate, and to ensure the initiative is proceeding according to the client’s expectations.

The ultimate objective in the above scenario is to improve client satisfaction by generating higher quality research in less time and at lower cost. The firm would be rewarded with higher realizations/profit and goodwill, which means a better working relationship and, possibly, additional work in the future.

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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 keep using the term “structured dialogue” to describe an important piece of my Service Delivery Review. I want to dig into what I mean.

I believe law departments, law firms, and individual legal professionals have an ethical obligation to do things Better, Faster, Cheaper wherever possible regardless of the economic incentives. But the trouble with incentives is that they work.

As businesses, law firms really do need to concern themselves with the return on investments in process improvement, training, or technology. If we do X, will we get more business? Will our profits increase? While it is relatively easy to make the case as to how a particular innovation might improve quality or reduce labor, it is less straight forward to demonstrate that clients will actually care. And clients are a rather important piece of the economic equation.

Clients are right to frequently give their firms low marks on cost-consciousness and innovation (see chart above from George Beaton). I am among those in-house counsel who have exhorted law firms to be more cost-effective, efficient, tech savvy, etc. But where I depart from many, but not all, of my former colleagues is that I recognize that adjectives like “innovative” and “efficient” are vague. Nebulous mandates to ‘do better’ fail to offer much in the way of concrete guidance.

If a law firm were suddenly to get 10% more efficient, would their clients notice? Would their clients reward them with more business? Or would their clients continue to demand the same discounts and cut invoices by the same amount? I don’t have the answers. But the problem is that no one else does either. This inability to project ROI is an obstacle to making the business case for investments in process and technology.

The presumptions against law firm efficiency are so ingrained that it surely not enough for law firms to simply say they are efficient (which all of them already do). And it probably isn’t even enough to be efficient (few are). It is likely necessary for them to prove they are getting more efficient. But how?

Law departments and their core law firms should engage in structured dialogue about what the efficient delivery of legal services looks like. This starts with an honest mapping of the value stream. Identification of areas needing improvement should be followed by prioritization and collective decisions about deliverables, timelines, and measurement. This should be a true dialogue in which both sides are accountable for achieving shared goals. Just as law firms can do better at delivering legal services, law departments can do better at sharing information and integrating their law firms into the client’s legal supply chain. System efficiency, rather than individual efficiency, should be the overarching objective.

Structured dialogue should be an iterative process focused on continuous improvement, not a discrete project. Previous initiatives serve as the baseline for subsequent discussions. Where have we improved? What difference did it make? What lessons did we learn and how can those lessons be applied in selecting new priorities and establishing new targets?< Law firms should be more than just participants, they should stand to gain from demonstrably improving their value proposition and fulfilling their commitments to better serve their clients. This may mean more work. This may mean higher rates. This may mean less pushback on invoices resulting in higher realizations and profits. Law firms must invest real resources to improve service delivery. As businesses, they should see a return on those investments. To be more concrete, below is some output from my Service Delivery Review. These are exemplar findings that seek to mesh what the firm is doing with the client’s priorities. (Click to enlarge)
Importantly, these findings are intended to be a starting point for dialogue. Once the dialogue is concluded, commitments, timelines, measurement, and deliverables will all be memorialized. Clear expectations follow informed, structured dialogue.

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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 received a press release from Lexis this morning with this eye-catching headline: “Recent LexisNexis Survey Uncovers Gap in New Attorney Readiness for Real World Practice.”   The first thing the whitepaper mentions is that 95% of hiring partners and associates believe that recently graduated law students lack key practical skills.  The deficient skills include “advanced legal research, writing and drafting skills, practical application and an understanding of how litigation or transaction occurs in real life.” 

Duh. 

Any law firm librarian who works with summer associates and recent law school graduates can tell you how ill-prepared they are for the “real world” in a firm.  And, as fellow Geek Casey Flaherty will tell you, clients don’t want to pay for this group to learn to these skills.  Nor should they have to. 

Part of the problem is the law school system itself.  Looking at just these examples you can see why:

Litigation:  The focus is primarily on Federal Litigation.  The problem is that only a small percentage of graduates are fortunate enough to practice in this arena.  When the graduate gets into practice, they are likely to end up dealing with a myriad of state and local court systems that have very little in common with what they learned in school.  Even if they were fortunate enough to spend time in a legal clinic, that experience will not help much if they leave that jurisdiction. 

Legal Research:
This is the Google Generation.  For this group, Google is the first place they turn for legal research (Regular readers of 3 Geeks know how I feel about that).  They are comfortable with Google and are freaked out by the idea of incurring charges on the paid services.  I’m not aware of a required course of study that adequately covers the professional responsibility dangers of inadequate (and inaccurate) legal research.

I don’t fault our law school brethren.  They are genuinely concerned about this problem.  Each AALL meeting for the past 4 years has featured conversations between law school and law firm librarians about how to address these issues.  The conclusion that I have reached is the best way to address these issues is to make a “prepare to practice” curriculum a requirement for graduation.  This curriculum would address variances between jurisdictions in style and practice as well as the business of law.  The latter should include coursework designed to emphasize the importance of good, efficient legal research in a professional responsibility context.

Thank you Lexis for quantifying what law firm librarians have known for years.  I hope this serves as a wake-up call to the legal industry to fundamentally re-examine the legal education system.  Of course, change is hard.  I think it will happen only when the Clients and the Malpractice Insurers demand that their lawyers know what they’re doing when they enter the marketplace.

Who knows, there may be an opportunity out there for a CLE provider to offer this training to law firms.  Hmm…maybe Bigweld was right when he said “See a need, fill a need.”

Now…back to your normally scheduled programming.

Clients are not the only ones who act as if outside lawyers are inefficient. Individual outside lawyers censor themselves for inefficiency. Their firms then cut their time for perceived inefficiency before sending it to the client. The clients cut their time even further. Everyone seems to agree there is considerable waste that must be excised from the bill.

The existing economics of law are such that it is easy to reconcile improved quality and lower costs for clients with better realizations and higher profits for law firms. Five years ago, I did not know this. I thought we were playing a zero sum game. Nor would I have cared if anyone had told me. As detailed in previous posts, I’ve evolved in my thinking about coprosperity. This change in perspective means I have to work at trying to understand what makes for a prosperous law firm. In helping me appreciate how realizations and profit differ from raw revenue, I have to thank Toby and our mutual friend Vince Cordo of Shell. Please do not blame them, however, for the simple-minded drivel that follows.

Understandably, we lack hard data on time that lawyers decide not to record (let alone how this practice may have changed over time). But my anecdata (frequently, a lawyer who performed poorly in Basic Technology Benchmarking would inform me that I need not worry because they cut their own time) lines up with the few bits of empirical speculation I can find. These surveys suggest that 33% of worked time is not billed. The primary culprit is identified as administrative tasks but another factor is individual lawyers deciding “to purposely ‘discount’ the actual number of hours worked in order to keep clients happy.” Similarly, back when firms reported such things to NALP, the average associate at DLA Piper, for example, worked 2,462 hours to bill 1,831 hours (74% of worked time was billed). To use round numbers then, let’s assume for discussion that an exemplar lawyer works 2,500 hours and bills 75% of it (1875 hours). Let’s further assume (I’ve got no statistics on this) that a minority—say 20%—of the unbilled hours are due to self-censorship.

Lawyer Janes works 2,500 hours of which 2,000 are eligible to be billed. She bills 1875 hours.

The 1875 hours is what the firm sees. But 1875 hours is not what the firm sends to its clients. We have good data that billed realizations—the percentage of the 1875 hours billed to clients—have dropped from 93.5% to 86.7% in the last decade. But the data does not tell us how much of the recorded-hours-not-billed-to-clients are due to writedowns versus pre-negotiated discounts. The concept of standard rate, on which realization figures are based, is a maddeningly vague, used differently in different reports, and often reliant on self-reporting (Toby will have to explain). Because I can find it with Google, I will just accept previous findings that pre-negotiated discounts account for about half of the spread (this, admittedly, remains a crude exercise) between time recorded and time billed. Thus:

In 2004, Lawyer Janes works 2,500 hours of which 2,000 are eligible to be billed. She bills 1875 hours. The firm has already negotiated discounts that bring her total down to 1813 standard hours. In addition, the firm writes down her time to 1753 hours actually billed to clients.

In 2014, Lawyer Janes works 2,500 hours of which 2,000 are eligible to be billed. She bills 1875 hours. The firm has already negotiated discounts that bring her total down to 1746 standard hours. In addition, the firm writes down her time to 1625 hours actually billed to clients.

That is not the end of the story. Clients have grown much more aggressive in cutting legal invoices since the Great Recession. Or so the story goes. The story is true. Comparing collected realization pre- and post-Recession, clients increased the average amount they cut from bills by 500%. That’s a big jump. But this framing obscures the low baseline. In 2004, the average client was paying 99.1% of their billed invoices. In 2014, the average client is still paying 95.7% of their billed invoices. So:  

In 2004, Lawyer Janes works 2,500 hours of which 2,000 are eligible to be billed. She bills 1875 hours. The firm had already negotiated discounts that bring her total down to 1813 standard hours. In addition, the firm writes down her time to 1753 hours actually billed to clients. The firm collects 1738 hours.

In 2014, Lawyer Janes works 2,500 hours of which 2,000 are eligible to be billed. She bills 1875 hours. The firm had already negotiated discounts that bring her total down to 1746 standard hours. In addition, the firm writes down her time to 1625 hours actually billed to clients. The firm collects 1555 hours.

I’ll go Excel on the 2014 numbers and add a $400/hr billable rate with some additional crude data on the cost of an associate. And we’ll spread the billed work evenly among 4 clients.


Now, let us imagine an alternative scenario where some initiative (e.g., a Service Delivery Review) leads both to (i) actual improved integration of process and technology into the workflow producing modest BFC (Better, Faster, Cheaper) results and (ii) a structured dialogue between the client and law firm that convinces both sides there is less waste in the delivery of legal services. In this hypothetical, the law firm lawyers, who are closest to the improvements, are more convinced of the gains than their clients. Because of the increased efficiency, the law firm can serve more clients in fewer hours. 
 
These are modest gains. Yet, the client is spending 15% less, and the law firm is profiting 16% more, while the individual lawyer spends 50 less hours in the office (an hour per week or a real vacation). The foregoing exercise also drives home one of Toby’s favorite points: discounts and writedowns come entirely at the expense of profits. What may only be a small percentage of raw revenue can be a substantial percentage of total profit. The margins are where the magic happens.

The above assumes that the law firm has picked up a new client. It is nice to believe that improvements in quality paired with reductions in cost would result in additional work and new clients. But even if the total work is finite, the law firms can still increase profits without charging their clients more. This, however, means fewer lawyers. While subsisting with fewer lawyers may sound like a post-apocalyptic hellscape straight out of Mad Max (water, gas, bullets, and lawyers all in scare supply), it is the world in which we have lived for the last half-dozen years. Using the preceding scenarios, compare how many lawyers are required to collect on 200,000 hours of time and the attendant impact on profits:

The gains can still be shared. The finite client base can spend appreciably less (i.e., save money) on legal services while the law firm profits more:

The foregoing is an admittedly crude explanation of why we are not necessarily playing a zero-sum game, even in an environment still dominated by the billable hour. Client cost reductions need not come out of law firm profits. Increased law firm profits need not come at the expense of clients. Structured dialogue between the two can result in Better, Faster, Cheaper benefiting both parties. 

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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).