Test, teach lawyers tech skills, speakers at Techshow say
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Corrected: When it comes to fulfilling their ethical obligation to keep abreast of developments in technology, lawyers are increasingly fighting a two-front war. On the one hand, they have to learn about new, cutting edge tools and methods and how they can affect their legal practice. On the other, they have to make sure their own basic technological skills are good enough to operate routine office software.
In Saturday’s plenary session at ABA Techshow in the Hilton Chicago, Suffolk University Law School professor Andrew Perlman and consultant D. Casey Flaherty of Cost Control called for changes in how lawyers are educated and trained to use legal technology.
According to Perlman, who served as chief reporter for the ABA Commission on Ethics 20/20, the big game-changer was when the commission modified the Model Rules of Professional Conduct, adding a requirement that lawyers be competent in using legal technology. (The provision came in the form of a comment to Model Rule 1.1 and was approved by the ABA in August 2012 and enacted in February 2013.)
“For the first time, the model rules included a magical word: ‘technology,’” Perlman said. “It was the first time that there was any acknowledgement that a lawyer’s ethical responsibilities may, in some way, relate to technology.”
Since then, legal technology has progressed to the point where computers and software can perform many tasks once considered the exclusive purview of attorneys. Perlman pointed out that a lot of legal work is becoming standardized, systematized, packaged or commoditized, and the available work for humans is shrinking.
Even dispute resolution, the epitome of mano-a-mano adversarial legal work, is becoming co-opted by machines, at least in part. To illustrate his point, Perlman spoke of a recent dispute he got into with another user on eBay and how the auction site resolved the entire matter with an automated portal that did not require any human intervention. While Perlman noted that there will always be a role for the “gladiator trial lawyer,” he also opined that “an increasing number of disputes will be resolved [via automation].”
However, not all technological struggles for lawyers will be waged with the machines of the future. Flaherty, a former in-house counsel at Kia Motors, flatly stated that many lawyers lack even the basic skills when it comes to technology.
“This comes down to the myth of the digital native,” said Flaherty. “Just because someone gets a Twitter account in utero doesn’t mean that they’re suddenly an expert on all things tech. Technology is a learned skill.”
Flaherty and Perlman came up with the Legal Tech Audit, which tests lawyers’ expertise with basic office software programs Microsoft Word, Microsoft Excel and Adobe Acrobat. Flaherty was inspired to create the audit during his tenure at Kia.
“We were on the billable hour model, but that’s not a price, that’s an input, a multiplier,” said Flaherty. “What’s it multiplied by? To me, how efficiently they used technology is a huge part in how quickly and well they delivered legal services.”
Flaherty put his outside law firms through the audit and then worked with them to improve their workflow and efficiency. “In one year, I reduced my bills by 17 percent,” said Flaherty, who revealed that he offered to cut another firm’s bills by five percent until they passed the audit but was rebuffed.
To help solve the technology gap, Perlman and Flaherty both advocated for changes to the way lawyers are trained and taught. Perlman, who chairs the Institute on Law Practice Technology and Innovation at Suffolk, pointed out that forcing lawyers to look to the future of legal service runs counter to how they’ve been trained to think. In law schools, the pedagogy hasn’t changed in over a century.
“Law students are still trained to look at precedent,” said Perlman. “They’re looking backwards, rather than forward to the future of legal services.”
In that vein, Perlman pointed to Suffolk Law’s new Accelerator-to-Practice program which creates a fee-generating law firm inside the school and provides students with training in traditional legal skills, as well as technology, business development and marketing from their very first day of law school. “We decided to flip the incubator model on its head,” said Perlman. “Why should students have to go through three years of law school and then learn how to practice law? Why not do it from the very beginning of law school?”
Flaherty, who encouraged law firms and students to take the audit, suggested that law schools shouldn’t just teach technology but embed it in the existing curriculum. Flaherty suggested that students can take a traditional contracts class, and then learn how to use Word to format or modify an actual contract.
Flaherty also pushed for changes to CLE rules making it easier for lawyers to get credit for demonstrating basic technological competence.
“Ultimately it’s up to clients, they’re the ones who wield the hammer,” said Flaherty. “Lawyers don’t always have time to work smarter. It’s up to clients to tell them that they have to.”
Story last updated at 6 p.m. Monday to note that Flaherty is a former in-house counsel at Kia, not general counsel. The Journal regrets the error.
