Rebuttal: Lawyer as Word Processor

Second of a two-part series on the Suffolk/Flaherty Legal Tech Assessment. In this post, Casey Flaherty, creator of the Legal Tech Audit, argues for the importance of testing lawyers on technology competence, and word processing skills.

It is ever so convenient to address real problems via theoretical solutions. While my good friend Dan concedes that, in reality, “lawyers’ skills with Word, Excel, and Acrobat are abysmal,” he speculates this may not need to concern us because if “a firm or an attorney doesn’t have access to local word processors like at Perkins Coie, certainly there exists—or soon will exist—an outsourced or online resource that can do that work.” Certainly? It is as if Dan and I operate in alternative realities despite the fact that Dan works for a company that serves small firms and solo practitioners, and he knows better than anyone how hard it can be to persuade lawyers to work differently in a digital age.

The Legal Tech Assessment is one component of the much larger vendor management program I developed. My Service Delivery Review looks at ten different categories from document automation to knowledge management. The intent is to provide a basis for a structured dialogue about how process and technology are incorporated into the delivery of legal services. Training is one of the ten categories, with Basic Technology Benchmarking—how proficient lawyers and staff are with common desktop applications—being only one component of the training section. While lawyers being bad with common software got the headlines, it is a (completely understandable) mistake to believe that word processing skills are my sole focus.

Staffing is a distinct category of the Service Delivery Review, as is project management. Delegation is of critical importance to me. I don’t just want the right work done the right way, but I want it done by the right people at the right price. While Dan and I agree on this point, he makes an unfortunate logical leap: since things should be a certain way (normative), then either they are that way (empirical) or will be soon (speculative). In reality, we’re almost a decade into a trend of support staff being cut to the bone because in theory lawyers can use technology to do the work themselves (see e.g.,  here, here, here, here, here, and here).

Even without major cuts in support staff, hiring trends and the changing relationship between lawyers and their work is shifting the focus of computer-intensive work. As an example, one progressive firm decided to pull the usage data from their document management system. They found that over the course of the last decade, the share of Microsoft Word keystrokes attributable to their lawyers (compared to staff) had grown from 39% to 80%. Importantly, the share attributable of their top shareholders had not changed. It remained at 0%. But these were trial lawyers. They were persuaded by the evidence rather than their own narrow, lived experience or Dan Lear’s experience from over a decade ago—a decade during which much has changed.

I don’t want lawyers to become glorified word processors just as I don’t want them to become glorified typists. But, like it or not, drafting and manipulating digital documents for analysis, circulation, publication, or submission is a large part of what lawyers do. Unsurprising to me, a survey of recent law graduates ranked the use of basic office technology 6th out of the 30 most important skills for a new lawyer to acquire. It ranked ahead of legal reasoning (9th), issue spotting (14th), and a host of others.

Further, while delegation remains key, it is not always a realistic option. Even leaving aside the late nights and lost weekends of which so many young lawyers are perversely proud, rarely will a document need the substantial, serial corrections called for in the LTA. The LTA presents a concentrated dose of tasks that would be spread over the course of days. Most tested tasks can be completed in a matter of seconds if you know what you are doing, and require several minutes if you do not. Often, the untrained lawyer will just grind through the minutes rather than take the (billable) time to delegate and wait while the document sits in someone else’s queue. Because these are a mass of small decisions, the aggregate impact of the potential marginal gains from better training are easy to miss.

Further, why would we assume that staff are more proficient than lawyers? Dan Lear—self-proclaimed “techno-proficient”—would be “really embarrassed” if a paying client saw his LTA score. While I, like Dan, have encountered professional word processors with ludicrously good skills, my actual testing of support staff has revealed slightly higher median scores accompanied by a higher degree of variance than the lawyer population. Some support staff are amazing, but most are mediocre or much, much worse. Presuming that staff is automatically equipped to handle these tasks efficiently is like buying into the myth of the digital native. Most people, only some of whom are lawyers, struggle with problem solving in technology-rich environments.

Moreover, baseline knowledge is an important element of proper delegation. I received an excellent 2,000 word memo from an associate who, like Dan, was perturbed that the LTA did not simply validate his tech-savvy self-image. Rather than entertain the notion that he might learn something, he, too, wanted to dismiss as unimportant anything he did not already know. He complained that adding the PDF footers required by most federal and state e-filing protocols was something a lawyer would never do (staff would handle).

I responded that I was a lawyer, and I had performed that task many time because, if done properly, it takes a few seconds—far less billable time than the act of delegating. But, importantly, the task was not on the LTA because I, as an outside lawyer, had to do it. Rather, the task was on the LTA because I, as a client, had found outside lawyers delegating the task to their paralegals. The paralegals were then printing the documents, printing footer labels, affixing the labels, and scanning the documents. Why? Because they had always done it that way and neither the delegating lawyer nor the paralegals knew any better. Even if you don’t have instant recall of how to perform a specific function, delegating properly requires some baseline knowledge of the software’s capabilities. There is a reason that the ethical rule on competence works in tandem with ethical rules on delegating to subordinate attorneys and staff.

Dan asks a fair question about how much time lawyers must spend on acquiring these skills. Dan, however, misses the role competence-based assessments like the LTA can play in reducing the time lawyers and staff must spend in training. By giving people the opportunity to test out of training they do not need, training time can be limited to identified deficiencies, if any. Pairing competence-based assessments with synchronous, active learning, as the Trainers Edition of the LTA does, can materially reduce training time required to acquire new skills.

Lawyers should devote time to training on the digital tools of their trade, which include Word, Excel, and PDF software. How much depends on their pre-existing skills and the nature of their work. A fairly senior attorney might not need to learn how to accomplish specific tasks but, instead, spend a brief window gaining an appreciation for what the software can accomplish to inform future delegation and oversight. A couple hours out of the minimum CLE requirements should suffice. Younger lawyers and staff handling more labor-intensive aspects of the work, however, may need to spend longer on skill acquisition. The outer limit appears to be about 5 hours of targeted training. But that is for people starting from a low baseline. Reviewing Dan’s scores I estimate he would need between 30-60 minutes of additional, targeted training. Not exactly a life altering time commitment given what a large percentage of their day most legal professionals spend in front of a computer.

Ultimately, I would like to see these skills integrated into the core law school curriculum. Rather than displace any subject or require any separate credits, law students should work through skills modules related to their substantive classes. In modules outside of, but connected to, their Contracts class, they would learn how to format contracts in Word. In Civil Procedure classes, they would learn how to manipulate PDFs to prepare an e-filing. Legal employers can then use competence-based assessments as onboarding tools and allocate their training time to more advanced or organization-specific tools.

That lawyers should get training in an area so important to their day-to-day practice strikes me as uncontroversial, especially when, as Dan suggests, grasping the basics is a first step towards understanding how to better incorporate technology into the delivery of legal services.

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Brought to us by MyCase based on the 2021 Legal Technology Survey Report.