Seems that big law just can’t catch a break. Criticized for everything from arrogant billing practices to an unhealthy obsession with profits per partner to an unsustainable pyramid-scheme business model, now corporate counsel Casey Flaherty is beating up on big firms for their lack of techno–aptitude, reports Monica Bay at American Lawyer. But are Flaherty’s criticisms of big law’s tech failings fair? No — and here’s why.
First, a little background. Flaherty, corporate counsel at Kia Motors America has been making headlines lately with an audit he’s developed to test tech skills of outside counsel. As an attorney in big law, Flaherty was frustrated by his peers inefficiencies that slowed work flow and added unnecessary costs to client bills. When he went in house, Flaherty realized that as a GC, he was “in a position to do more than just complain” about inefficiencies, but could take steps to eliminate them.
Thus was born the Flaherty’s Outside Counsel Technology Audit. Though I’ve not seen the audit in its entirety, from what I could glean from Monica Bay’s report, the audit tests lawyers on technology skills such as PDF generation and bate-stamping, Excel spreadsheets and creation of Word templates and use of Word style tools (presumably, the audit tests other skills as well – but I couldn’t find any more information). Apparently, all nine of Kia’s outside counsel flunked Flaherty’s audit.
Before I launch into a critique, let me emphasize that Flaherty’s intentions, if not his implementation, are admirable. As a nimble micro-lawyer bound to tight budgets, I chafe at court rules that require filing of multiple hardcopies of hundred page briefs and thousand page appendices at the courts, notwithstanding the advent of e-filing. Until the agencies where I practice required parties to file searchable copies of documents, I fumed as I read through non-OCR’d scanned copies. Brother, I feel your pain.
But – and this is where I take issue with Flaherty, is it really, truly more efficient for lawyers to handle their own admin? Moreover, is it really cost efficient in today’s fluid technology environment for lawyers to wed themselves to a single suite of technologies? And (to follow up on a conversation with @ronfriedmann,) what – if any – are the core technology skills that today’s lawyers should have? Discussion follows.
Should lawyers handle their own admin?
Like many who commented on the ABA piece on Flaherty’s audit, I question whether it’s actually more efficient or cost-effective for lawyers to create excel spreadsheets or batestamp PDF files or format documents. While I can ably perform all of these tasks, because I don’t use these tools as frequently as my assistant, I’m not going to execute them as quickly. Moreover, another point overlooked by Flaherty is that some tasks – such as entering data in a spread sheet or downloading files one by one from some of the agency websites that I use (not PACER) are inherently time consuming even for a highly skilled lawyer. If an administrative task is going to add more than five or ten minutes, then it makes more sense for an assistant to handle it rather than a lawyer.
What’s particularly ironic is that Flaherty’s belief that lawyers should do their own tech directly contravenes the corporate counsel’s propensity for outsourcing and offshoring. For example, most GCs (or law firms, at the behest of corporate clients) outsource document review to contract attorneys and non-U.S. barred lawyers overseas to keep costs down. If corporate counsel are willing to accept outsourcing for a core legal function like discovery and privilege review, then why does Flaherty insist on his lawyers handling technology tasks when it’s more efficient to delegate or outsource them?
Finally, it also bears mention that most solo and small firms are more technologically advanced than large ones — partly out of necessity (many small firms can’t afford to outsource) and partly because the declining cost of technology enables solos to access powerful tech tools on par with those used by the big boys. Even so, as several commenters at the ABA site point out, Kia doesn’t hire solos or smalls — so maybe tech skills don’t really matter as much as Flaherty claims.
Flaherty’s Audit Tests for 20th Century Tech Skills
Though Flaherty aims to position himself as a bottom-line, “new normal” kind of lawyer, the tech skills that he prizes in his audit are, in my view, rather pedestrian and almost embarrassingly old school. For starters, many more tech savvy lawyers use Macs rather than PCs – and may not be as skilled with Word since it wasn’t until recently that a truly robust version of Word became available for Mac. Likewise, many lawyers are learning how to incorporate tablets into their practice for productivity on the go – but I didn’t see anything about that in Flaherty’s tech audit.
As for the Excel spreadsheets that Flaherty regards as mission critical — frankly, it’s been ages since I actually entered data into a spreadsheet by hand. If I have to create an extensive spreadsheet, I’ll toss together a Google Form and let Google compile it into a spreadsheet for me (which I can save as an excel file).
And speaking of Excel, I sure hope that the sample invoice in Flaherty’s power point isn’t an excel spreadsheet. I’ve been using Freshbooks for my invoicing for five years now – and most solos and smalls I know use some kind of cloud-based tools or practice management platform to generate and email client invoices.
For that matter, in fact, I didn’t see much about cloud-based platforms in Flaherty’s audit – or the many other low cost tools that solos and smalls use to level the playing field with their big law peers. Likewise, not much about social media tools like blogs or Twitter which are invaluable as a cheap source of content for practice areas like mine (energy regulation) with frequent new developments. If Flaherty’s going to beat up on big law for lack of tech savvy, shouldn’t he be testing them on cutting edge applications rather than yesterday’s news?
Technology Is Fluid and Skills Are Hard To Capture
Which brings me to my next point: technology is dynamic, not static — and today, we live in an age where technology moves at the speed of light. Just as Heisenberg recognized that forces of an ever-changing universe eluded simultaneous accurate measurement of the position and momentum of an atom, so too, with the rapid changes in technology, I’m not sure that we can ever accurately measure competence because the tools that we use are always shifting underfoot. As a result, when we try to freeze technology in time as Flaherty does by auditing for competency with a specific suite of tools, we may wind up wedding ourselves to technology tools that may soon become obsolete. That’s not efficient either.
Core Technology Skills
So is there any bare minimum set of technology tools that lawyers ought to know? Yes – and no. Again, in today’s dynamic technology world, it’s more important for lawyers to understand the broad capabilities of what technology can do rather than the details. Just as (in my view), it’s more important for law schools to breed lawyers who can analyze and write rather than draft a complaint that complies with court rules. Nuts and bolts – whether for law practice or technology – are easy; it’s the ability to see the overarching framework and context for the details that is a challenge.
On the other hand, there is a bare minimum of technology that lawyers must master. Specifically, we need to learn how to use all of the technology that’s necessary to serving our clients — or alternatively, hire capable staff who can handle it for us under our supervision. Technology is a vacuum is worthless. So what if I can set up a fancy state-of the art client portal? Doesn’t do me any good if my clients ignore it in favor of an email list. I may enjoy chatting with colleagues on Skype, but if my clients prefer the telephone, then that’s the tech that I need to know. And in spite of my criticism of Flaherty’s approach, if Kia retained me, you can be sure that I’d get myself up to speed on Bate-stamping and word macros pronto because that’s what the client demands.