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 terribleCompetence-based assessments paired with synchronous, active learning offer a better path forward. Following these principles, Casey created the Legal Technology Assessment platform to reduce total training time, enhance training effectiveness, and deliver benchmarked results.
Connect with Casey on LinkedIn or follow him Twitter (@DCaseyF).

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 terribleCompetence-based assessments paired with synchronous, active learning offer a better path forward. Following these principles, Casey created the Legal Technology Assessment platform to reduce total training time, enhance training effectiveness, and deliver benchmarked results.
Connect with Casey on LinkedIn or follow him Twitter (@DCaseyF).
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 terribleCompetence-based assessments paired with synchronous, active learning offer a better path forward. Following these principles, Casey created the Legal Technology Assessment platform to reduce total training time, enhance training effectiveness, and deliver benchmarked results.
Connect with Casey on LinkedIn or follow him Twitter (@DCaseyF).

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 terribleCompetence-based assessments paired with synchronous, active learning offer a better path forward. Following these principles, Casey created the Legal Technology Assessment platform to reduce total training time, enhance training effectiveness, and deliver benchmarked results.
Connect with Casey on LinkedIn or follow him Twitter (@DCaseyF).

[Ed. Note: Please welcome Guest-Blogger, Matt Coatney as he gives us some insight on how to deal with the smart machines and AI technologies coming our way.]

Much has been said about how technology will disrupt the legal profession and spell the end of lawyers. From Richard Susskind’s End of Lawyers? to IBM Watson, the future does not look bright for those that practice law. Even experts originally optimistic about the technology boom are now more cautious based on new data. With all the doom and gloom, is there anything lawyers can do to at least postpone the inevitable?

A recent HBR article titled Beyond Automation argues that instead of bemoaning automation, we should focus on augmentation: people and smart machines working together. The authors lay out five strategies people can use to not only stay relevant but thrive in areas where advanced technology threatens to replace them. Here are the strategies and how they apply to lawyers.

1. Step Up

Stepping up in the context of smart machines means to stay ahead of them in terms of quality and sophistication. If technology will one day handle all of our mundane legal work – research, document drafting, and the like – then lawyers can focus more of their attention on business development, running their practice, and handling increasingly complex issues. In other words, lawyers should continue to push down work, but technology will handle more of the associate-level tasks.

What to do: Lawyers need to broaden their skills beyond a firm grasp of the law. They should pursue classes and continuing education in areas like business, marketing and technology. Law schools need to offer and require a more diverse program of classes, and law firms need to make this type of professional development a priority.

2. Step Aside

Smart machines are getting smarter, but for now they do not possess a nuanced understanding of human emotion and creativity (hold the lawyer jokes, please). Stepping aside means leveraging more of our creative, non-analytical thinking. Some areas will remain the purview of people for awhile at least. Take jury trials. Advanced technology will soon take over the role of jury selection by combining big data and predictive analytics. But lawyers will still be needed during the trial, as the complex interplay of judge, witnesses, and jurors requires someone who can relate with people, pick up subtle emotional cues, and control the situation.

What to do: Lawyers should focus on the human aspect of the law, where smart machines cannot compete. Lawyers, schools and firms need to focus education and growth in areas like emotional intelligence to stay competitive.

3. Step In

I have seen people accomplish amazing things working with smart machines. R&D chemists now find new drug leads in hours instead of months, and NGOs enact new policies based on big data findings, without the need for extensive field studies. Lawyers can do the same, and in some cases like legal research already have. Think of what lawyers can accomplish working with systems like the IBM Watson-powered Ross at their side.

Some lawyers, like tech-savvy IP attorneys, will have a leg up on those less familiar with new technology. Lawyers and firms can mitigate this by hiring, training, and leaning on a sophisticated administrative team of technologists and business analysts. But lawyers will need to treat these professionals as equal partners, not subordinates to handle their busy work.

What to do: Lawyers will need to hone their technology knowledge and skills on an ongoing basis. Law schools and firms need to make advanced technology a part of their curriculum and continuing education efforts.

4. Step Narrowly

Thanks to capitalism, there will remain nooks and crannies of the law where smart machines do not go. These niches are too specific for companies to make serious money on their technology investments, and they will move on to bigger opportunities. Lawyers, however, will still be able to carve out a healthy business, especially if they are solo or small firms with little overhead.

What to do: If you are already a lawyer in a high-value niche, congratulations! Stay there and defend your turf. For those in a more general practice, think about what specific areas you are most passionate about and begin to build expertise and a professional brand in that space.

5. Step Forward

As the saying goes, if you cannot beat them, join them. This strategy has lawyers stepping right into the thick of the smart machine revolution. They don’t just use the technology, they help build the next generation of tools. Whether working for a software company or remaining a practicing lawyer who partners with vendors, good work will be had for some time training these machines to be smarter and more human. Lawyers that are able to innovate and create new smart applications can also make significantly more money than the traditional billable hour.

What to do: Lawyers that are tech-savvy can explore opportunities with software companies and other corporations that need people with blended skill sets. Others can look to partner with tech-savvy colleagues or technology vendors. Law schools need to teach more courses on technology, innovation, and entrepreneurship. And law firms need to be open to new business models and ways of doing business.

Final Thoughts

Lawyers that embrace change and continually look for ways to add more value can stay ahead of the curve. Which strategy is best will depend on the relative strengths and interests of individual lawyers and the firm as a whole. Many of these strategies mix and match well and can be experimented with to see if they are a right fit for your personality and corporate culture.

One thing is certain though: it is a matter of when, not if, lawyers will be forced to compete for business against those using smart machines. Some say we are already at that point. If you watch what IBM, Google, Microsoft, Baidu and others have accomplished in the last few years, especially in the field of deep learning, you may start thinking the same.

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Matt Coatney is an AI expert, data scientist, software developer, technology executive, author, and speaker. His mission is to improve how we interact with smart machines by making software smarter and teaching people how to work (and cope) with advanced technology. Great things happen when smart people and smart machines work together toward a common goal.
Follow Matt on LinkedIn and on Twitter @mattdcoatney. Follow the conversation at #BridgingTheAIGap.

Image [cc] Clive Darra

I started a very robust conversation with some colleagues the other day, including Dan and Jane of this site, who I am certain you will hear from soon, about a decision my team made to opt out of business cards. 

The initial conversation came up because I often get asked for cards.  I don’t carry them.  I haven’t for years.  I prefer not to carry paper around.  See, I have kids, and kids get into handbags.  Consequently, I don’t want to carry anything that is not essential, especially things that can be taken and squirreled away as “treasure”, making me spend hours searching for them to the chorus of “I don’t know where it is,” or items that can be can be used as a Chinese Stars or Mini-Frisbees.

 I tried the chic card holder, the antique card clip, stuffing cards in my wallet or pocket–none of them worked for me (the card-in-pocket idea caused a lot of laundry issues BTW).  My team and I discussed adopting QR codes on the cards and apps that scan cards, among other things, and finally came to the conclusion; why not just use our business contact info on our smart phones?

Through my discussion with colleagues, I uncovered a dizzying amount of opinions and questions.  The Artists loved their cards and expressed that when you give a card, you symbolically give something of yourself to the recipient.  The Technologists used LinkedIn (I use this as well).  The Socially-Minded voiced concern that not everyone has a business phone, much less a smart phone—there was also a side conversation here about use of private phones for business purposes,  The Environmentalists expressed dismay about the waste surrounding business cards.  The Opportunists summed it up by questioning how they would get a free lunch if they didn’t have cards to put in the fishbowl.  All valid points and food for thought, readers.

Ultimately, our team decision is an optional one.  No one is required to use their contacts as a connection mechanism, But we are raising it as a consideration.  It saves money and trees and keeps my lint screen clean.  Every little bit counts.

I read Nick Milton’s Must you fail in order to learn? post on Friday with trepidation.  I have written of the importance of failure a few times (In praise of failureRyan’s rules for projects) and I talk about it all the time.  I often say my philosophy is ‘to fail quickly’ and after reading Milton’s post, I stand by that.

It’s not that I strongly disagree with anything he says, I don’t really.  He’s right about nearly everything. Personal failure is absolutely NOT necessary in order to learn, but he tacitly concedes that knowledge itself always comes from failure; either your’s or someone else’s.  

As Milton says:

Learn from the failures of others, not your own failures.

Now, I could be pedantic and argue that learning from the failure of others constitutes true opinion rather than knowledge. But that’s silly. There is a very good argument to be made that in everyday life, true opinion or belief is just as valuable as personal experiential knowledge.

Milton continues:

Learn, try, succeed (then learn again) is a far better approach than try, fail, learn (then try again).

Again, I generally agree, however this approach presupposes that others have failed before you in a similar task and have published or recorded their failure so that you may learn from it.  One should always begin a new task with research to determine if others have attempted what you are trying.  There is no sense reinventing the wheel if it’s already been done, and there is no sense in recreating other’s failures, unless you are looking to confirm their findings.

Milton closes:

Let’s sever this implied link between learning and failing. Let’s embrace “learning to avoid failure”. Let’s not punish failure if it is the result of informed risk taking, but lets not expect it either.

It’s the second sentence that bothers me most.  Embrace “learning to avoid failure”.  In my experience, most people already do this instinctively. They take the route they believe is least likely to fail and avoid the one with the highest potential reward. This is risk aversion causing sameness, stagnation, and a near total lack of innovation. Or, in other words, the legal industry for a long time now.  If you only build on the failure of others, then you will only go so far as they have already gone.  Worse yet, and more relevant to the legal industry, if you only attempt to replicate the success of others, you will undoubtedly fail. Situations are always unique and success is rarely replicable in different environments.

When I say my philosophy is ‘to fail quickly’ it doesn’t mean I am actively trying to fail so that I can learn something, it means I recognize that any project looking to do more than simply maintain the status quo, will have the odds stacked against it.  People will actively try to kill it, unknown unknowns will rear their ugly heads, and sometimes I’ll just screw it up. If that is going to happen, I would rather that happen as quickly as possible, so that I can learn from what went wrong, try to fix it, and go again. To that end, yes, I will try to stress my projects, push them harder than I should, break them if I can, because if I can’t break them, then the partner in the corner office won’t be able to either.

People who are concerned with avoiding failure, do not think this way.  They sweep inconsistencies under the proverbial rug.  They ignore new information that doesn’t fit their current hypothesis.  They rarely admit when they fail, let alone learn anything from it.

Let’s sever this implied link between failing and incompetence. Let’s embrace the ‘learning opportunities that failing can offer’.  Let’s not expect failure, but let’s not fear it either.

Let’s do our research, plan our path, and go confidently into the unknown to learn new things.

Or, 

We can “embrace ‘learning to avoid failure'”.

Image [cc] Rachel

As I was rolling around the Future Law conference via my Beam vehicle on Thursday, Twitter was lighting up with a series of tweets from the actual presentations (as well as about my robot form.) During his State of the Art of Legal Technology session, Professor Oliver Goodenough fielded a question that even he admitted was loaded. “What is the biggest obstacle to integrating technology in the legal field?” Everyone kind of chuckled when they heard the question because everyone saw the answer coming… “Lawyers.”

Now, to be fair to the audience and to Prof. Goodenough, the answer was a bit tongue and cheek, and the good professor did discuss the number of issues and situations that contribute to a lawyer’s inability to fully adapt new technologies, or to take advantage of certain advancements in technology. Not every advancement is practical for the lawyer to adopt. Not every lawyer has the ability, either personally or financially, to jump in and integrate new technologies that might streamline his or her practice. Now… that being said, let’s talk about low level advancements that are really no-brainers for practically every attorney to adapt, but which most are still struggling to adopt.

MS Word

Casey Flaherty’s tweet to Ron Friedmann and I nailed this one. Even if you threw out all the really cool technology advancements in the past ten years, you still have one that most lawyers adopted twenty years ago… Microsoft Word. Casey has sent ripples throughout the legal profession by simply asking lawyers to show they know their way around a few tasks in MS Word. Little tasks such as formatting a pleading or contract in MS Word are things that could save attorneys, and clients, time and money.

Adobe PDF

The legal industry is flush with PDF documents, and equally flush with people that don’t know how to do anything much more than open a document in Adobe Reader. PDF documents can be edited, Bates stamping is a common task, and a number of other features that would allow attorneys to efficiently produce documents and file these documents with the court. For many, however, getting beyond scanning existing paper documents and attempting to OCR these (for the really advanced) is the big obstacle.

MS Excel

Being semi-proficient at Excel should almost be an entry-requirement for lawyers, and almost any other employee that deals with budgets or other data driven information. Sorting, filtering, creating simple Pivot Tables, and even some basic function utilities are very easy to learn, and can open opportunities to better understand information in a few simple clicks. Not knowing some of these basic functionalities is a disservice to yourself and your clients.

MS Outlook

This is actually a tool that many attorneys use as an advanced time tracking and document storage device. Which is a great thing to know, but this is the wrong tool for those functions. Gigabytes of data being stored in your profile causes slowness for you and practically everyone else on your network. Learn how Outlook functions with your DMS, your CRM, and your time entry system. It is not a Swiss Army knife.

Document Assembly

I could go on and on about the basic tools that attorneys could use to make their lives easier, cut down on risk, and save their clients money, but I’ll end with something that may seem like a more advance technology tool, Document Assembly. Ron Friedmann jumped on this on twitter in response to Prof. Goodenough’s answer. The fact that attorneys are handling complicated drafting of contracts and other documents without using a document assembly resource is simply risky behavior. For a profession that is so adverse to risk, not using this type of resource is counter to everything we advise our own clients. If you work with contracts and agreements… become familiar with a good document assembly tool.

Where Do We Go From Here?

I’m sure many of you are thinking of other simple or common tools that are underutilized in the legal industry. If we can’t get a good understanding of these basic tools, it erodes the foundation on which we would like to develop and implement more advance tools. So where do we start? I’d suggest establishing an organizational wide strategy to develop training and development for those entering your organization. Clearly established methods of training along with measurable results that show who is understanding these basic tasks, and who needs help. It’s taken us twenty years of using this technology to be this bad at it… let’s set out a three to five year plan to get a little bit better at using these basic technologies.

The following is the final part of a 4 part post expanding on my short introduction to an ILTA session entitled, Do Robot Lawyers Dream of Billable Seconds? If you have not yet listened to the full session (and you have nothing better to do for the next 90 minutes), you should go listen to it now. If you would like to download and read the entire 4-part post you can get it here.



What does an Exponential Law Firm that can survive in this type of environment look like?

I would be lying if I said I knew for sure, but I think we can look to a number of trends and begin to get a fuzzy picture of the future.

More Legal Processing will be passed off to computers

We like to pretend that everything we do is custom tailored for every client, but it is simply not true. We are already past the point where we need to improve efficiency in order to provide a better price to our clients. In the near future, we will need to improve efficiency in order to make a profit. That means we will need an honest assessment of the work that can be automated, or performed by algorithm, and the work that will require custom analysis by specialized attorneys. Then we will begin pricing that work accordingly.

The rise of the Legal Processing Engines

This obviously goes hand in hand with the above, but one of the implications of this change is that the output of biological legal processing units (most attorneys) will shift from customized legal work, to engine building and maintenance. The focus of many firm attorneys will no longer be on individual clients, but on entire types of matters at once. Attorneys will no longer slave over a single contract, but over the engine that builds that type of contract.

Engines will manage as much work as they can and spit out any unique or unusual work to be reviewed by senior attorneys. That “unique” work will be analyzed and evaluated to determine whether it can or should be incorporated into the engine for future use. Over time the engines will do more and more complex work.

The rise of the Legal Engineer

Inherent in the rise of the Legal Engine is the role of Legal Engineer. We are already seeing this role pop up at many firms. These are people with legal training and technology “know how”. They are equally comfortable analyzing contracts and programming new applications. There are very few people who fit this role today in big law firms, but firms who want to survive post disruption will hire these people by the truckload. The engineers will be responsible for creating and maintaining the firm’s engines. As laws change, or interpretations change, the engineer will modify the engine appropriately.

Machine Readable Documents

Once we are using engines to process legal matters anyway, it will make sense to just go all the way and make all legal documents machine readable. Gone are the fuzzy shades in meaning between contains and includes, or the differences between shall and must, to be replaced by the definitive ⊇ and =.

Proactive Practice of Law

In this world, firms will stop being reactive. The idea of waiting for a client to approach the firm before working on a matter will be unthinkable. Legal engineers will build engines based on legislation and firm sales associates (or Partners) will pitch those engines to potential clients.

Is this Science Fiction?

Simply put: computers process information more consistently, accurately, and faster than people do. They are networkable, scalable, and manageable in large numbers by relatively few administrators. If I am right in my assessment that what we actually sell to clients is Legal Processing, then no, this is not science fiction. In order to compete in an exponentially changing industry, we will have to move the bulk of our processing from biological to digital processing units.

If Diamandis’ exponential framework is correct, then we are approaching a digital disruption that will fundamentally change our industry forever. The players will change. New firms will quickly morph from newcomers into industry leaders. Many of the old guard will fail to change and will subsequently fail entirely. And a few will probably stick around, doing things much as they always have for a very select, demanding, and equally slow to change clientele. At least until those clients also get disrupted.

Whether or not I am right about what we sell, or that the framework directly applies to the legal industry, is almost irrelevant. The 6 Ds Framework provides a useful model for imagining the kinds of changes that could take place in our industry, based on the kinds of technological changes that have already upended other industries.

The only thing of which I am absolutely positive is that both lawyers and IT personnel, as a general rule, do not think much beyond the next immediate hurdle. They approach the world linearly, solving problems as they arise, and planning for a steady progression of linear events. But if we are already on a path of exponential change, then our standard linear approach to managing firms will be our demise. A purely linear response to an exponential threat is the equivalent of no response at all.  

The following is the 3rd part of a 4 part post expanding on my short introduction to an ILTA session entitled, Do Robot Lawyers Dream of Billable Seconds? If you have not yet listened to the full session (and you have nothing better to do for the next 90 minutes), you should go listen to it now. If you would like to download and read the entire 4-part post you can get it here.


What does this mean for legal service delivery?

The examples above are not directly comparable to the
legal services we provide. I deliberately did that to illustrate the 6 Ds
concept before completely confusing the issue by describing how it applies to
our industry. As it is, I’m sure more than a few of you have read the examples
above screaming, “Yes, but that has nothing to do with us! What the hell are
you talking about?”

I am more than willing to concede that I may be wrong
about the legal industry passing a threshold of digitization in any way similar
to the entertainment industries or physical goods manufacturers. Or, that
Diamandis may be wrong about industries passing that threshold and then
necessarily conforming to his exponential framework. But for the sake of
argument, let’s say that Peter and I are not wrong. We are definitely passing a
threshold, an industry wide digital disruption will eventually take place, and
we will begin to conform to the exponential framework just as others have. That
begs the question, what does a dematerialized, demonetized, and democratized
legal services industry look like, and how could a law firm survive in it?

The Dematerialized Practice of Law

It’s likely that the first complaint against applying the
6 Ds framework to the practice of law will be that we are not a material
industry, and that we therefore have a distinct advantage over manufacturers or
sellers of things. We don’t produce material goods, unless you count mountains
of documents, and even if we become entirely paperless there will be no change
in our service.

That might be true, but let’s think about a service
provider who has already gone through this digital threshold: travel agents.
Travel agents still exist of course, although in nothing like the numbers they
did 20 years ago. They provided a service, with almost no material aspect and
yet they were one of the first industries to be decimated by the rise of the
internet. It turns out most people were happy to book travel themselves as long
as it was easy and inexpensive. How many people or companies would gladly
handle their own legal services if they had access to resources and knowledge,
for a low price, and they didn’t actually have to deal with a real live
attorney?  If such a thing were possible,
how many attorneys could the industry continue to support?

The Demonetized Practice of Law

We have seen downward pressure on legal prices since the
downturn of 2007.  That has mostly come
in the form of clients demanding discounts on hourly rates or fixed fee
arrangements. But suppose clients, even large corporate clients, had a new option:
they could pay a monthly fee for unlimited access to a firm sponsored set of
expertise engines that handled much of their routine legal needs. They could
pay month to month for this a la carte service, or they could sign a 2 year
contract which also entitled them to steeply discounted hourly rates for legal
services not covered by the engines. Setting aside for the moment, whether such
a thing is possible, or more to the point, whether the bar associations would
allow it, what would that do to legal service prices?

The Democratized Practice of Law

This is the good news, if the prices of legal services
decline precipitously and the delivery of legal services becomes much more
widely available, then the pool of potential clients will be significantly
larger than today’s client pool. Smaller companies and individuals who
currently choose to do without external legal counsel and instead turn to
LegalZoom or other form providers, could suddenly be approaching big firms to
handle their legal needs.

Some of you are thinking, “But that’s not the kind of law
we practice, we do big law for big corporations.” To which I will respond, look
around you. The era of the big corporation is ending. The average lifespan
of a company
on the S&P 500 has fallen from 60+ years in 1960 to just
over 15 years today. There will probably always be some big corporations, but I
don’t think they will be the norm.

Relatively small companies like AirBnb (600 employees) and
Uber (~1,000 employees) are taking on much larger and more traditional service
providers, and they are having success. AirBnb and Uber are valued at $10Bn and
$15Bn, respectively. These are new types of companies that grow quickly, by
connecting people who have services to offer to those who need them, and taking
a percentage. This is relevant to us on two fronts: 1) If given the choice of
monthly subscription fees for access to legal engines or more traditional legal
services, which do you think these startups would choose? AND, 2) How long
before the law firm equivalent of AirBnb or Uber start selling them these
services?

(Tomorrow: What does an Exponential Law Firm that can survive in this type of environment look like?)