Law Technology Today From the ABA Legal Technology Resource Center
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The problem comes when organizations look only at the cost of the people, and not at the value of the knowledge resources they hold. —Nick Milton, When Downsizing becomes Dumbsizing
Several years ago, even before the economic downturn, there was a lot of discussion about the changing role of legal secretaries, which morphed into aggressive efforts by firms to increase their attorney-to-secretary ratios. What used to be 2:1 ratios became 3:1 and then 4:1, if not more. The downturn only pushed firms to cut staff even further.
What is the problem?
As someone who worked as a legal secretary early in my career, I knew I had been considered an integral part of the attorney’s team and these figures were shocking. I kept clients informed, files, calendars, and attorneys organized. My handling of all of the administrative tasks allowed the attorneys to focus on billable legal work. The nature of this type of work may have changed, but it certainly hasn’t gone away.
In September, I read Dan Lear’s “Lawyer As Word Processor” post published by Law Technology Today. Lear argued in favor of attorneys utilizing staff to do document-based work in Word, Excel, and Acrobat, instead of attorneys. He stated that, “Expert manipulation of these technologies seems like exactly the kind of thing that lawyers should be happy to pass off or otherwise outsource in order to focus on ‘higher level’ activities that make better use of their costly training.”
Casey Flaherty offered a rebuttal, exhorting attorneys to up their technical skills, but also to get “the right work done the right way… by the right people at the right price.” He pointed out Lear’s mistaken assumption that there would be staff available to do those tasks, which the figures I cited previously bear out. “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,” said Flaherty.
I heartily agree with Flaherty and think anyone working in law firms in the past ten years or so would agree that the way attorneys work has changed dramatically. It is more common and necessary for attorneys to utilize technology such as Word, Excel, and Acrobat, as well as a host of other applications. Even for someone very technically adept, it would be difficult to master that many applications without a lot of focused time and effort. Having managed training and provided support in law firms for many years, I know how much time and effort it takes. It’s significant.
As Lear argues though, lawyers have taken on numerous lower value tasks that used to be the purview of their legal secretaries. To be clear, by lower value, I mean only the financial value, certainly not the overall value to the firm or the attorney. For the last ten years, if not more, I have observed attorneys doing more and more of their own work. Certainly technology improvements have facilitated some of this, but we have clearly gone too far. For example, there are applications that allow attorneys to easily do their own time-keeping. If attorneys can spend roughly the same amount of time they formerly spent writing down their tasks for billing, then that is a good value proposition for the firm.
However, when an attorney is spending time running document comparisons, tracking down versions, and making needed edits to a document versus delegating those tasks to a legal secretary, then I would argue that is a bad value proposition for the firm and the client as well. A basic rule of business economics dictates that tasks be handled by the lowest cost resource, not the costliest.
How did we get here?
Over my three decades working in law firms, attorneys have transitioned from not having computers in their offices to having grown up with technology readily available. These young associates were never taught how to utilize a legal secretary to relieve themselves of the burden of lower value tasks. They were low on the totem pole and found it difficult to get assistance from their secretaries. Delegation and management of a legal team are skills that must be learned and honed over time. Their comfort with technology did these attorneys a disservice by supporting the transition of their work habits to lower value tasks.
Secretaries were too busy taking care of partners who came of age when typing and word processing was done by secretaries. Associate work was snuck in between partner assignments. Younger attorneys became more self-reliant, so by the time they were partners, they only occasionally asked their secretaries for assistance. Law firms interpreted this as an indication that their attorneys no longer needed legal secretaries to the extent they had previously. Unfortunately, there are several issues with this interpretation.
Why is it a problem?
There has been an incorrect assumption that because tasks are now electronic versus paper-based, the workflows obviate the need for legal secretaries. Sure, we are no longer printing, copying, and filing paper documents, time intensive tasks traditionally handled by secretaries, but I would argue that the documents and workflows have gotten more complex. Previously, if you could make a document look good on paper that was enough. Now, we have pleadings and agreements being PDF’d for e-filing with courts or inclusion in electronic closing binders. The same workflows are still there, but they have become more complex electronic ones.
In the National Conference of Bar Examiners 2012 survey, A Study of the Newly Licensed Lawyer, young lawyers licensed three years or less ranked “Using office technologies (e.g. email and word processing” as sixth out of thirty-six items in the skills and abilities category. “Synthesizing facts and law” and “Legal reasoning,” ranked eighth and ninth, respectively. Am I the only one who finds that disconcerting? While the ABA’s model rules have emphasized the importance of technology, I suspect they would agree that legal reasoning should still rank higher.
While it may not be an issue for a first year associate to do her own word processing as she becomes familiar with the purpose and structure of those documents, it becomes a very big financial issue when she is a partner editing her own documents and not able to bill for that time. To Flaherty’s point, it becomes an even greater issue when she has not taken the time to learn to do these lower value tasks efficiently.
The American Lawyer Legal Intelligence “Law Firm Support Staff: How Many are Enough?” survey earlier this year revealed that 97% of lawyers screen their own calls. While this may be attributed to attorneys using their mobile phones, clearly it is lower value work that could be done by secretaries. In firms where secretaries are asked to answer calls, many are not even aware when their attorneys are in the office, which is an additional communication breakdown.
How do we fix it?
With the majority of communication happening in email, attorneys struggle with information governance requirements to keep their emails organized and properly filed. Recently I asked my brother, a very efficient litigator who has had the same secretary for many years, whether she assists him with email organization. I was shocked when he told me he had never thought to have her help with that. When I assisted attorneys, I generally handled this task for them. This also provided additional oversight to make sure nothing was missed when my attorneys were extraordinarily busy.
This required a lot of trust by my attorneys, but relieved them of numerous daily interruptions. There have been many studies on interruptions, their effect on the brain, and the time it takes to refocus. Some shocking statistics were shown in a University of Minnesota study:
Results show that when peripheral tasks interrupt the execution of primary tasks, users require from 3% to 27% more time to complete the tasks, commit twice the number of errors across tasks, experience from 31% to 106% more annoyance, and experience twice the increase in anxiety than when those same peripheral tasks are presented at the boundary between primary tasks.
The results reported in B.P. Bailey, J.A. Konstan, Computers in Human Behavior 22 (2006) p. 685, showed that the harder the task, the harder it was to get back on track. Most of the complex items attorneys handle would undoubtedly rank as “harder.”
As a trainer, I’ve studied cognitive load and the concept of “flow.” Both are also negatively impacted by distractions and interruptions. The makers of the app RescueTime, which helps people understand their daily habits in order to focus and be more productive, report that the average office employee checks email approximately fifty times per day. How often do you check email? Keep a count for a few days. You will probably be surprised. If you check every five minutes, that equates to an astounding total of ninety-six interruptions in an eight hour workday! No wonder the eight hour workday is now a rarity. Pair that with the statistics on task switching and refocus time, and then multiply that by the average hourly billing rate of attorneys, and you begin to see just how monumental this “little problem” is.
Let’s fix it!
When firms eliminated legal secretaries, they simply did not realize what a valuable resource they were losing. With things hitting critical mass for busy lawyers, who are under intense pressure to service their clients in more efficient ways, it would seem prudent to look at the specific tasks being performed by attorneys and determine which ones should be shifted back to legal secretaries.
Some things to ponder: How much were those legal secretaries costing you? How many things could you delegate, if you had a competent legal secretary? How much more productive could you be with someone else looking out for you and handling some of those interruptions? How much happier would your clients be if they were able to speak to a human when they called (even if he or she is virtual)? What if they were able to get an immediate update on the status of those filings being made today versus waiting for your return call? How would it feel if you were able to focus on more valuable (and dare I say, fulfilling) work and bill more of your work hours, which would allow you to enjoy more time outside the office?
In this time of intense financial scrutiny, I think these are questions every attorney and law firm should be asking before those of us who can help right the ship reach retirement age.
Undoubtedly, it will be a very big challenge should firms choose to address it, but likely also one of great value to both the firms and attorneys.
