Bridging The Tech Chasm

Some things never cease to amaze me. Like the fact that lawyers, who want to be the best at everything they do, don’t seem to care if they are incompetent at technology. Sound extreme? I don’t think so.

If they cared, they would actually be upset, or at least concerned, about the fact that they and their staffs don’t know how to get the most out of the technology they own, including such basic programs as Microsoft Outlook and Microsoft Word.

This reality was brought into focus recently in a series of articles by D. Casey Flaherty (Kia Motors Tests Outside Counsel Tech Skills, Law Technology News, January 24, 2013, and January 25, 2013), in which he reported the result of his audits of the car manufacturer’s outside counsel’s competency with technology. I commented on these findings in my June 11, 2013 column in Pennsylvania Law Weekly.

While the results were probably shocking to many lawyers – every associate at each of the nine firms tested failed the test, which required them to complete mock assignments using Word, Microsoft Excel, and Adobe Acrobat – they didn’t shock me. To the contrary, Flaherty’s conclusion, that “all of the associates approached the assignments in ways that would have required five to 15 times longer than necessary,” was downright predictable. And Flaherty’s conclusion that, “At $200 to $400 per associate hour, such inefficiency suggests … that, indeed, waste is a righteous concern.”

As noted in my column, I have spoken with managing partners who boast that until their clients require them to become more tech savvy, they are happy, and thriving, doing things the old way. I guess they don’t represent, or don’t want to represent, Kia Motors.  Even more tech-savvy firms don’t seem to care how rudimentary their attorneys and their staff’s tech skills are – if they can bang out an email, that’s sufficient.

In 2008, I wrote in The Legal Intelligencer (Philadelphia’s daily legal newspaper) that “Attorneys often recommend that their clients make business decisions that may cost significant amounts of money, yet those same attorneys are often reluctant to make the decision to invest even small amounts in the technology necessary to improve their practices. On the other hand, attorneys tell numerous stories about how they informed clients that if they had come in for a consultation, they would have avoided a far more expensive lawsuit. By ignoring technology, or trying to do it for ‘free,’ lawyers do the same thing with technology.” In other words, rather than hire competent staff or consultants to help select, install and train their staffs in technology, attorneys often do without, or try to do it themselves.

Nothing seems to have changed since 2008. If Casey Flaherty could not find one law firm, or apparently even one attorney, who had the basic skills needed to use the software so essential to their jobs. In 2012, the ABA amended Model Rule of Professional Conduct 1.1 (“Competence”) to include the comment that “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology…” Is that enough? I am not optimistic. After all, lawyers ignore the advertising rules, so why would they care about a comment to a Rule?

First, the Model Rule addresses the interplay of technology and ethics, i.e., issues such as e-discovery, metadata, cloud computing, and the like. These are important, and lawyers need to know about them and their implications on their practices. Second, the Model Rule doesn’t mention core competencies, like knowing how to perform legal research or how to interpret the Rules of Civil Procedure. Consequently, the Model Rule focuses on substantive competency, not the basic competencies necessary for lawyers to be able to use their computers efficiently.

Why does this matter? In this day and age, fewer law firms employ one secretary per lawyer. Similarly, the days of merely dictating a letter, or a brief, are long gone. Instead, lawyers often type their own letters, and many prepare their own briefs, contracts and other documents. Yet law school doesn’t even introduce them to the basic programs needed to function, and neither do their law firms. As a result, the Casey Flahertys of the world, who expect their attorneys to have minimum levels of proficiency, become frustrated at how much time attorneys are wasting, and how much that time-suck costs his company.

Flaherty’s conclusions are instructive. He concedes that he employs partners whom he relies upon “for sage advice on esoteric topics [and] would continue to turn to these lawyers even if [he] discovered that they were disembodied heads locked in a closet, and incapable of turning on a computer.” But Flaherty’s conclusion that he doesn’t choose between law firms merely based on the results of his audits “unless performance on the audit is the only item that separates two firms vying for a project,” is the key. Many firms are -qualified to handle most legal tasks, and most would provide comparable results. In those cases, technologic efficiency would be the difference.

So, how can law firms bridge this technological chasm and become the first firm to pass the Kia audit?

Here is my five-step plan, as outlined in my column:

  1. Don’t cut corners;
  2. Reduce your reliance on paper;
  3. Focus on legal-specific programs;
  4. Train yourself and your entire staff on legal and other software; and,
  5. Engage your staff in every step of the process.

According to Consumer Reports, Kia is the 10th most reliable brand of new cars. Wouldn’t it be nice for your firm to crack the Kia Top 10 Law Firm rankings so that when all things are equal, you can represent Kia Motors, rather than watch as they climb up the rankings and grow with another firm handling their legal matters?

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