Since 2012, lawyers and technologists have written much about the duty of technology competence. However, the promulgation and nationwide adoption of revised Model Rule 1.1 was not the end goal—the purpose was to encourage lawyers to actually become technologically competent. To date, authors have focused on describing the duty. This article aims to go beyond that to examining what it takes to become competent.
Competence does not come easy; it is achieved through well-planned, incentivized, and supported technology training. So what policies and procedures are necessary to meet the goals of creating technologically competent lawyers?
Duty to Train and Supervise
Between Model Rules 1.1 and 5.1, the burden of establishing competence falls on both individuals and their firms. Model Rule 5.1 obligates partners, supervising lawyers, and firm management to create policies, provide training, and otherwise take steps to ensure that all lawyers in the firm comply with all ethical duties (including the duty of technology competence).
Unfortunately, there is conflict between firm rewards systems based on high billable hours and the productivity goals of technology training. One rewards efficiency—the other penalizes it. On top of that, in current firm culture, any non-billable activity is seen as a waste of time by firm management, and therefore by subordinate lawyers, too. While these attitudes about training may have been acceptable prior to revised Model Rule 1.1, this position is now untenable. Firm leadership must resolve the disconnect between legal work and technology training.
Management must carve out time for training and treat that time with respect. When lawyers and staff feel penalized for investing non-billable time in training, management undermines the training program’s purpose and fails to meet its duties.
Now imagine a different firm culture. A culture where training was considered a necessary part of professional development, and time spent learning new skills, including technology skills, was rewarded rather than discouraged. In such an environment, lawyers might gladly participate in technology training and firms would have more valuable, productive, and profitable lawyers.
Clearly aligned policies help to create a receptive learning environment and facilitate successful training outcomes. For management, strategic alignment can create positive attitudes regarding the value of training and drive the development of policies that encourage and reward training.
Training as a System
Training is best seen as a system of events, each designed to facilitate long term skills development. By viewing training as a system, we avoid falling into the common trap of inconsistent, undirected, one-off training that sours the idea of training and causes people to fail to implement (and eventually forget) what they’ve learned.
In a comprehensive training system, training events begin before classroom training occurs. A well-planned system includes positioning, pre-training, assessment, training and directed practice, and follow-up.
Positioning efforts are akin to marketing or change management for training. They are designed to help management and employees become receptive to training efforts. Studies have shown that attitudes toward training greatly affect whether training will be effective. Positioning can include promoting strategic and personal benefits to training, dispelling myths about who can learn and what is learnable, and demonstrating the importance of the skills to be built. Showing the strategic value of training before it occurs positions training programs for success and provides the foundations for lasting improvement.
Pre-training helps with long-term retention of skills. By introducing a training topic in advance and creating a relationship with it, the lawyer is more likely to learn and retain essential information. This is because information is easier to recall when it’s built upon things you already know. Each time training is reinforced, the rate of memory decline reduces.
The usefulness of training efforts will be enhanced by assessment. Assessment serves as a reality check and provides a roadmap for future learning. It also helps to differentiate mere exposure from proficiency, which is necessary because superficial knowledge and years of exposure to programs make it easy for us to overestimate our skills. The Legal Technology Assessment created by Casey Flaherty and administered by Procertas assesses how well timekeepers and staff use basic law practice technology, such as MS Office.
Training programs must be focused on building knowledge and skills, and include directed practice and opportunities to work through errors. Passive learning through lectures merely presents information but does not build knowledge because there is no engagement. To learn, you must discover how to apply knowledge, and making mistakes is a key component of the learning. Error-based learning can reveal insights, build coping mechanisms, and solidify learning.
For the effort to be effective, there must be a plan to use the training before memory of it irretrievably degrades. According German psychologist Hermann Ebbinghaus, who studied the forgetting curve, if you do not use the information that you’ve learned, then within one hour about 50% of information learned is lost, within 24 hours about 70% of information learned is lost, and within one week about 90% of information learned is lost.
If technology training is linked to practice-specific substantive core competencies, then, ideally, lawyers could go back to their desks after training and immediately use what they’ve learned. This would help to improve retention of skills, the likelihood of future use, and ultimately the successful transfer of training to work habit.
An Example Everyone (Thinks They) Know
Think about MS Word. It is a key part of every lawyer’s workflow. Lawyers use it every day, but the majority lack competence in it. We don’t truly understand how it works or how to get the most out of it. So, what would a comprehensive training program designed to teach core competencies and create a baseline level of technology competence in MS Word look like? And what would that require to achieve proficiency and lasting change in how we work?
Training would need to distinguish between “need to know” content versus “need to access” content. Lawyers would learn to perform tasks that they encounter while drafting and to understand, assess, and delegate tasks that are better performed by staff. Lawyers would learn how to evaluate and incorporate MS Word add-ins where they could improve processes. And training would have a clear, practical link to each lawyer’s practice, which provides the necessary context for receptivity to training and retention of learned material.
Training that Works
An ideal place to demonstrate policy alignment and training design would be tying technological skills training to professional development plans, benchmarking initiatives, and development of core competencies. For example:
- A litigator might learn to quickly organize and format briefs, and create tables of authorities; create, sort, and review Excel tables, and teach document review programs to understand relevant or privileged materials. This training would be most useful when the core competency to be developed is: taking the lead on drafting a brief, analyzing transfers, and skip tracing analysis before participating in a fraud case, or managing a team of associates performing document review.
- A transactional lawyer might learn to insert and update cross-references within and across documents for major transactions with many moving parts, to use and customize consistency-checkers for deal terms, and use document review tools for due diligence.
Each of these experiences can be a professional development turning point and there’s a technology element to each one. Uniting professional development and technological skills development will improve training transfer, demonstrate value to the lawyer and to management, and create long term value for the lawyer, the firm, and their clients.
A well-trained workforce is necessary to remain competitive in the legal market. Since training requires both time and money, it’s important that training is designed for long-term effectiveness. To do so, firms must determine what skills lawyers need to be successful and design a training program that helps them to develop those substantive and technical skills. The most successful firms will be those that create a culture of continuous improvement, and empower individual lawyers and staff to explore, adopt, and fully learn technology.