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Armchair Theories on Testing Tech in Outside Counsel

By D. Casey Flaherty

As a practical matter, I am not sure that it is necessary to understand why avoidable inefficiencies persist in the legal services outside counsel provides to corporations. But I can’t help but indulge in some amateur sociology because my assumptions affect my approach in auditing the technology skills of outside counsel.

It is easy to tell a cynical story. Technological proficiency requires the investment of dollars and time. Yet, the resulting savings accrue to the clients, not the law firm. In other words, inefficiency equals profit.

There is, however, no need to rely on cynicism or theories of motivated reasoning to explain the status quo. In most situations, the primary measure of value delivered by a lawyer is how well she performs, not how quickly. Moreover, there is no technology that delivers the efficacy and efficiency gains attributable to expertise. The partner with 30 years of experience in a particular field may not know the quickest way to download the 10 most salient cases, but she doesn’t have to, because she can expound on each off the top of her head.

Clients are behaving rationally in choosing their lawyers based on legal, rather than technological skills. And law firms are responding rationally in not emphasizing technological skills. The complete absence of technology from retention considerations means that returns on law firms’ IT investments are usually minimal. To stay competitive, firms need only exceed the lowest of technological thresholds, such as being able to open the file your client sends you (as lawyers using Word 2003 have found when in receipt of client documents produced in Word 2007 and later). It is no great mystery as to why law firms remain so far behind the times. The legal market simply does not punish adherence to the status quo nor does it reward innovation. Without external pressure, inertia prevails.

Moreover, it is not as if law firms have simply refused to make major investments in information technology. Tens of thousands of valuable partner hours have been expended on product demonstrations. Partners have endured countless PowerPoints from vendors and their own IT staff about transformational technologies. They have then authorized millions of dollars in expenditures and survived endless rollouts to find that very little changes, and only sometimes for the better.

The legal professions’ monetary investment in technology belies our reputation as change-averse and technophobic. Rather I would submit that, as a profession, we suffer from an acute case of naïve technophilia. While it is a foundational conceit of science fiction that any sufficiently advanced technology is indistinguishable from magic, many of the products we actually use, especially in business, aren’t quite there yet. When you pair a feature that requires user input (keystrokes, mouse-clicks) with a user who expects the software to behave autonomously, the result is nothing. That is, you get a situation millions of dollars are expended on IT upgrades and almost no emphasis placed on training end users.

Interviews I do after the audit suggest that one major culprit is positive stereotyping of young lawyers. Senior lawyers seem to assume that their younger colleagues, by virtue of being younger, are technologically adept. That assumption should be challenged more often. Partners are better lawyers than associates because they have more experience being lawyers. In general, associates are better at Facebook than partners because they have more experience with Facebook. Facebook is not an innate talent; it is a learned skill; a learned skill that does little to enhance productivity. Such specific skills in specific programs do not always translate. Facility in texting has little carryover to Microsoft Word. The Angry Birds guru is not thereby a master of the spreadsheet. And while a general level of comfort with technology might make it easier to train the median Millennial, training is still required in most cases.

And, yet, senior lawyers are unfit to provide such training. There is much for experienced lawyers to teach their junior colleagues. The benefit to a young lawyer of good mentors is hard to overstate. But the traditional channel of transmitting skills from one generation to the next is unavailable when the skills at issue are of such a recent vintage. The profession is therefore facing a challenge for which its standard knowledge-transmission paradigm is ill suited. And law schools have done very little to bridge the gap.

CONCLUSION

The audit is an instrument for holding outside counsel accountable for their failure to satisfy their professional duty of competence as it extends to technology. The audit focuses only on behavior at the margins. The margins, however, are precisely where most productivity gains are to be found. Given the price of the marginal minute of attorney time, there is more than enough money to be saved at the margins to make the audit worthwhile.

The audit is after the low-hanging fruit: basic competency on basic software programs; minor investment in straightforward organizational upgrades. These are simple improvements. Simple, not easy. Client pressure is required. The audit represents a viable mechanism for clients to apply that pressure.

D. Casey Flaherty is corporate counsel for Kia Motors America. Flaherty’s opinions are his own, not those of Kia Motors. Email: CFlaherty@kiausa.com.

Reprinted with permission from the January 24 issue of Law Technology News © 2013 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved