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Thursday, March 6th, 2014 technology  research  practice

A Practice Tip

  • Practice

♫  Doin it right, doin it right
Doin it right, doin it right
The blues bands cookin and the drummers burnin down
Doin it right on the wrong side of town!!!  

Lyrics, music and recorded by the Powder Blues.

fail

Law firms like to think that they do things rather well.  Exceptionally well, as a matter of fact. Particularly the biggest ones.

Only problem is, not everyone agrees with that perception.  Take Casey Flaherty for example.  Casey just happens to be the General Counsel at Kia Motors America.  In his words (and this is an exact quote) “Lawyers see themselves as Tom Cruise but most of their work is drudgery.. and they suck at using computers.”

His proof?  He gave a mock assignment to lawyers that he knew should take no longer than 30 minutes to complete.

He has devised a technology audit that he gives to firms before he engages them to test their technology competence.  We are not talking sophisticated legal tools here. Casey is testing knowledge and use of basic Microsoft Office applications such as Word, Excel and Adobe Acrobat.

From the ABA Journal article by Casey Flaherty himself, he stated:

Sample tasks include:

(a) formatting a motion in Word,

(b) preparing motion exhibits in PDF, and

(c) creating an arbitration exhibit index in Excel.

The specific tasks, however, are of little importance as they are designed to test general skills. The foregoing examples could just as easily be:

(a) formatting a contract in Word,

(b) Bates stamping a document production of PDFs, or

(c) isolating pertinent performance data in Excel—or, really, any of the other myriad, routine, low-value-added tasks that lawyers regularly complete on their computers (or should).

He has given the audit 10 times.  All firms failed…some spectacularly.  Both the median and mean was 5 hours.

What does he have to say about the audit results?

My claims are much broader: a lot (of waste exists in the legal system) and enough (of that waste is attributable to technological incompetence to make this a problem worth addressing)

The real issue is that law firms (and particularly the largest ones) have absolutely no incentive to have their lawyers increase their technological knowledge.  So long as they bill by the billable hour –  meaning there are no competitive pressures forcing them to acquire greater skills, this situation will exist.  The greater hours put into a file translate to a bigger bottom line.

There is something very very fundamentally wrong here. No other business or profession has been allowed to languish on the borders of technological incompetence and still be in business.  Most if not all other business would have been driven out of business by failing to meet mounting competitive pressures.

Is there a correlation here with Access to Justice?  The middle class have been claiming that lawyers are far too expensive and out of reach for their typical legal problems for some time now.

I wonder just how long the public will stand by before they start to call for fundamental changes to the legal system in order to bring about the changes that they desire.  My co-author for this column, Garry Wise of Toronto, in reviewing this article stated that:

But in fairness to Canadian lawyers, in part, without paperless courts and automated systems for court and other filings, there is even less incentive for us to master the skills that would be necessary to put electronic documents together.  Our system simply doesn’t require that we prepare or know how to complete effective “non-papyrus” documents.

I agree with Gary ..the solution is not piece-meal.  We have to address the entire workflow of how we produce, serve, file, share, store, search, and archive legal documents. I was presenting at a CBA Immigration conference in Vancouver last week and my co-presenter Laura Best a lawyer at Embarkation Law Group asked the attendees how many people in attendance filed electronically in federal court.  Only a handful of hands went up indicating that even where e-filing is possible, lawyers are not getting on the bandwagon (Laura happens to be one of the biggest users of e-filing here in BC, I understand).

This is a knowledge management issue, it is a management issue, it is an issue where all the players in the room have to come to the table to brainstorm on how to change not only behaviours but the system itself to encourage lawyers to bring about the necessary change.

The call to arms here for lawyers, law firms and regulators is to prod, push, cajole and otherwise mandate greater change before this change is thrust upon us.  We have to become students of change and move with the technological times. Management of firms should not stand by and simply be satisfied with the status quo.  They should be bringing in IT training (complete with tests and assignments) to ensure that their lawyers are up to speed on at least basic technological tasks.  There are no lack of trainers and programs, both in house and available thru consultants for this to occur. Furthermore, court administration, judges and tribunals should be right on-side and equally looking at how their systems can be improved to increase efficiencies and effectiveness.

Perhaps another message for general counsel like Casey Flaherty is to look for smaller firms that could do it right…even if they come from the wrong side of town….

-David J. Bilinsky, Vancouver, BC.

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