By way of introduction, my name is Casey Flaherty (@DCaseyFlaherty). I am corporate counsel at Kia Motors America. The opinions I express, however, are my own and not those of Kia Motors America. I was in Seattle for AALL and had a wonderful time presenting with the Queen of Tech, Monica Bay (may her reign be eternal!). Because of the great turnout and superb discussion, our gracious moderator, Steven Lastres, invited us to follow up with blog posts to speak to those who couldn’t make it.
The topic was future trends in law. My completely original conclusion is that many of today’s law school graduates have no future in law and that I may, in part, end up deserving some of the blame. These unfortunate souls are losing the race against the machine, part of which involves the substitution of technology for people in repetitive work—one the four horseman of the new normal. To accelerate this trend, I have developed a technology competence audit (read here, here, here, here, and here; or watch my LegalTech West keynote free here).
My declaration of a general technology deficit among lawyers was not exactly news to the 150+ in attendance. I was simply restating what librarians had been shouting from the rooftops well before any law school made the mistake of admitting me. Beyond my intermittent ability to grasp the obvious, my contribution is a mechanism for holding lawyers’ accountable for this particular category of inefficiency. My hope is to change the incentives just enough so that lawyers start taking advantage of the training that has long been available to them. Basic technology competence is low hanging fruit.
In the audit, I use mock assignments, based on my own stint in BigLaw, to test associates on the basics of standard software—Word, Excel, Acrobat, etc. It has not gone well; they’re 0 for 10. Failure has consequences. I’ve even cut rates 5% across the board unless and until the firms pass a subsequent audit. Distasteful though it may be, punishment is a better motivator than reward, and far superior to cold logic in the face of countervailing incentives. Oh, and since sharing is caring, I’m now collaborating with Suffolk Law’s Institute on Law Practice Technology and Innovation to automate my audit and offer it free to other in-house counsel so they, too, can pressure their law firms to abandon a brute force philosophy.
In short, I am the reckoning. Well, not really, they are the reckoning, I am just a minion. But, as I told the audience, when darkness falls, heroes must rise. Librarians, trainers, CIOs, legal technologists, KM managers, legal project managers, etc. are positioned to be those heroes. You have been working for decades to drag lawyers to a more sustainable place on the Rogers’ Adoption Curve. If they had listened to you, the audit would not need to exist. Now, if you can hold back a gleeful I told you so, you are the ones who will enable your colleagues, your students, your firms, and your schools to weather this minor incursion. The object of the audit is its own obsolescence in the near term. You are the ones who will render it obsolete.
In the meantime, I warn you, that, Steven willing, I will return to these pages to request that you help me before you vanquish me. Behind my collaboration with Suffolk is an admission that getting a J.D. did not make me omniscient or omnipotent (yeah, I’m surprised too; can’t fully wrap my head around that one). Somehow, I failed to gain a monopoly on insight or good ideas. So, very soon, Suffolk and I will be launching a crowdsourcing site where members of the legal community, especially those who have been making this case better than me for longer than me, can contribute to making the audit more robust and comprehensive:
• share your lawyer/technology disaster stories (anonymously);
• identify skills that should be tested;
• offer ideas for how to best test those skills;
• submit declassified legal documents that can be used in the testing;
• suggest other areas that are amenable to an audit approach (e.g., legal research);
• describe the best methods for teaching the skills tested.
The audit, as it currently exists, is far from perfect. The point is that it exists. Done is better than perfect. And the perfect should not be the enemy of the good. The first automated version of the audit will be better but still imperfect. Notice, however, I said “first.” I envision multiple versions and maybe even multiple audits—e.g., specific to types of practice (litigation, transactional, etc.), or different levels (basic, intermediate, advanced), or different topics (legal research, e-discovery). Regardless, the audit concept is unlikely to ever reach its full potential (diminishing returns will kick in). But it still has the opportunity to set off a cascade of change. Clients will make demands of law firms. Law firms will pressure law schools. Law schools will ensure that our children is learning. And we will all live happily ever after in a world of gumdrops and rainbows (ok, maybe not). Towards that end, our intent is to systematically release open source versions of the audit, as well as provide composite data about performance and model training/curricula. These products, however, will only be as good as you make them. The audit succeeds when I stop talking about me and start speaking in terms of we. As I said, Steven willing, I’ll be back to make a plea for your assistance.
Before I leave you to your regularly scheduled program, I did want to provide a delayed reaction to one audience comment that caught me off guard. Though I am paraphrasing, the upshot was that partners will cut a librarian’s time from bills because clients, like me, don’t want to see a librarian’s time on a bill. Candidly, that had never occurred to me. I’ve not been party to such a conversation.
My initial reaction was to think how truly silly that is. In this, I must admit a narrow perspective and a very strong bias. I only worked at one firm, Holland & Knight, before coming in house. I only worked with one librarian, the redoubtable Drea Douglas, who I adored both personally and professionally. She was, by far, the most competent (and hilarious) resource made available to me. There were any number of research-intensive tasks where she could accomplish in five minutes what I, or my associate brethren, would take fifteen hours to complete because she provided a mass-produced wheel while I reinvented it. So it struck me as crazy that anyone would demand I bill time when Drea was patently the proper tool for a job. It would be like me, instead of developing the audit, demanding that outside lawyers continue to treat their computers like a typewriter with a glowing screen.
I do not doubt that such conversations are common (the knowing nods of the audience was all the anecdata I needed). But I do try to be careful about reaching conclusions that rest on the stupidity of my colleagues. I’ve now reflected on it and can empathize. Understandably, clients hate it when overhead shows up on their bills. I require that my lawyers be able to use common software properly. But I do not expect to be billed directly for the software or the training. This audience has probably had similar experiences with clients refusing to pay for Westlaw, LexisNexus, or their competitors. There is a real conversation to be had about what is appropriate to bill directly to clients.
An implicit assumption on one side of the divide is that overhead is already built-in to the exorbitant hourly billing rates. Thus, when overhead shows up, the client feels like they are being double billed. I empathize. I don’t, however, agree. This perspective seems to also assume that lawyers will use their resources wisely. That is, the lawyer is going to enlist the librarian because the librarian is the appropriate resource, regardless of whether the librarian can bill time to the client. As the existence of my audit suggests, this is not an assumption I share. If the librarians are treated like a public good in an eat-what-you-kill environment where public goods are seen only as costs, they will suffer the tragedy of the commons and end up overworked, underutilized, or both. This does not mean that librarian time must all be billed directly to the client. But the value of that time has to be properly recognized, as Latham appears to be doing with KM. Just as, I believe, that lawyers are only going to learn to properly use technology when clients demand it, I also believe that clients would be wise take a keen interest in how and when their lawyers utilize librarians with a presumption towards more often, even if that means librarian time shows up on our bills.
That’s more than enough for now. This post was about to very quickly devolve into incoherent ramblings on alternative fee arrangements, KM, document automation, legal project management, Lean Six Sigma, budget analytics, and host of other important, fascinating, but not so germane topics. I thank you for your time. My gratitude to all who stayed to speak with me, Steven, and Monica in Seattle. I’ll be back to beg for your assistance. For now, keep up the good fight and keep helping us lawyers succeed despite ourselves.