iWitness: Lawyers Can No Longer Stick Their Heads in the Sand

Second question: Do you read transcripts on paper or do you review them electronically on your computer?

That’s what I thought—most of you still read paper transcripts.

For those who read paper transcripts, do you still make handwritten notes on the pages, create outlines, and put sticky notes all over the place?

Most of you do.

How about when you need to review a transcript for trial or another event in the case—can you read your own handwriting? More important, can anyone else figure out what you wrote?

I see heads shaking. That’s OK. Look around—it’s most of you.

Now for one of the big questions—how many of you have ever received training on how to use Microsoft Word, Outlook, or the other software your firm has? I don’t mean a 10-minute orientation; I mean full-fledged, multi-hour training.

It’s OK. Most of you haven’t.

How many of you have e-discovery issues in your cases? And do you feel comfortable with trial and courtroom software?

A few more heads are nodding.

Finally, how many of you are scared of technology because your computer never does what you want?

I see lots of heads nodding. Lots.

We’ve all heard colleagues lamenting “I went to law school to practice law, not to . . .”? The “not to” might refer to technology or any number of other things lawyers would rather avoid. But technology is an essential, inescapable part of practicing law now. Used properly, it helps you do a better job and get better results for your clients. Just as important, you may be ethically bound to know about some technological innovations and how to use them.

In 2012, the American Bar Association amended Model Rule of Professional Conduct 1.1 (Competence) to include the comment (comment [8]) that “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology. . . .” Some states have adopted this amendment, while others are considering it. Regardless, lawyers should take the amendment to heart and focus more on how to use technology more efficiently. After all, if you went to a doctor who refused to order an MRI because MRIs didn’t exist when he went to medical school, you would find another doctor. Why shouldn’t your clients do the same if you refuse to use relevant technology in your practice?

A trial lawyer who goes to trial without using any software may well be failing to practice using the requisite standard of care. Similarly, an attorney who does not consider whether a document provided by opposing counsel has relevant metadata may have failed to represent his or her client fully. An attorney who does not warn his or her client about social media and the effect it could have on the matter is almost certainly providing inadequate representation.

In addition, with the advent of cloud computing (off-site data storage through a vendor or service such as Dropbox), lawyers must ensure that their data are secure. That is why the drafters of the Model Rules noted in a comment to proposed Model Rule 1.6 (Confidentiality of Information) that “technology is changing too rapidly to offer [more specific] guidance” and that “the particular measures lawyers should use will necessarily change as technology evolves and as new risks emerge and new security procedures become available.”

This reality was brought into focus in a series of articles by D. Casey Flaherty in which he reported the result of his audits of a car manufacturer’s outside counsel’s competency with technology. See D. Casey Flaherty, Kia Motors Tests Outside Counsel Tech Skills, Law Tech. News, Jan. 24–25, 2013. The results were shocking to many lawyers. The test required associates to complete mock assignments using Microsoft Word, Microsoft Excel, and Adobe Acrobat—and every one of them at each of the nine firms involved flunked. Flaherty concluded that “all of the associates approached the assignments in ways that would have required five to 15 times longer than necessary. At $200 to $400 per associate hour, such inefficiency suggests . . . that, indeed, waste is a righteous concern.”

So how can law firms bridge this technological chasm? Here is my five-step plan:

1. Don’t cut corners. Maximizing your use of technology helps make you more profitable. If you bill at $150 per hour but save six minutes a day using a computerized case management system, a $1,500 investment pays for itself in fewer than five months. Consider hiring a technology support person rather than letting everyone do it themselves. If a full-time support professional costs the firm $75,000 per year, that’s only $36 an hour, a far lower cost than the time your lawyers will waste trying to do things themselves and less than the cost of outsourcing. If your firm doesn’t have that large a budget, consider contracting with a support company to perform the role on a fixed hourly or other basis, and let your staff do what it does best: practice law.
2. Reduce your reliance on paper. It is estimated that every lost piece of paper costs a law firm $120, that 15 percent of all paper handled in businesses is lost, and that 30 percent of all employees’ time is spent trying to find lost documents. That’s why going paperless is so crucial. With scanning, file naming, and file storage systems, you reduce clutter, improve efficiency, and cut costs, while reducing long-term file storage costs that often choke firms.
3. Focus on legal-specific programs. Find out what kinds of software exist to help your firm be more efficient. Software may help with case or matter management, document control assembly, or transcript review so that you never have to review a transcript more than once. These products improve work flow and provide better results for your clients, while allowing you to take on more matters without hiring more staff. Remember, technology is your invisible staff.
4. Train yourself and your entire staff on legal and other software. There is no substitute for training you and your staff. We weren’t born knowing how to use Outlook, and we don’t graduate from law school with a degree in Microsoft Word. In fact, most lawyers and a large percentage of their staffs have never had any formal training in how to use the software designed to improve their efficiency. Yes, it takes some time, and a commitment, to train everyone in the firm, but the results will be tangible. A good trainer will generate lots of “I didn’t know I could do that” moments, revelations that will compel improved efficiency. Just as you would train a new lawyer in his or her assigned area of law and procedure, you should do the same with the technology the new lawyer will use.
5. Engage your staff in every step of the process. The most ambitious plans will fail if the people implementing them refuse to cooperate. Your staff, at all levels, needs to know what you are doing and why. Inform them, ask for input, and let them know you are investing in them.

Technology can be a game changer. It can be the difference between winning or losing, and it can help reduce costs and improve efficiency. It may not be why you went to law school, but it demands your attention all the same.