Legal technology is often an afterthought for many lawyers in the practice of law and that is a mistake. In the coming years legal tech literacy (or lack thereof) will produce a sea change in the fortunes and careers of lawyers and firms. Firms that can couple legal services with efficient process, workflow and legal tech skills will win the business while those who don’t will wither. Lawyers and law firm’s legal technical abilities are being benchmarked, evaluated and quantified by corporate legal departments in order to manage legal spend and so they can select the most efficient and effective lawyer for legal services (Figure 1 below) .
Figure 1 – Sample law firm performance evaluation survey by CLOC (CLOC Working Group, n.d.)
You don’t want to lose your client because your because your legal technical skills are lacking, or your outside vendor costs more than your competitions do. Within companies (potential clients), an entire field has risen within the last 10 years called “legal operations[1]” that is part legal, part bean counter and part process improvement (their process for obtaining legal services – not fixing yours). When you are attempting to “win the business” from a corporation you are now just as likely to talk to a legal pricing analyst as you are to the general counsel. Look below to what an organization like CLOC “Corporate Legal Operations Consortium” considers “foundational[2]” abilities for law firms in the slide below (Figure 2). Companies like Google, Facebook, Oracle, Fidelity Investments, Microsoft, Adobe and the GAP all fill leadership positions on the CLOC board and are devoted to cost control in legal services via increased use of technology.
Figure 2 – Foundational Core Competencies in legal operations for Companies as described by www.cloc.org (CLOC Working Group, 2018)
It is not unusual to have firms run a gauntlet of legal pricing and process specialists on everything from billable rates to electronic file processing expertise or even tests regarding their lawyers eDiscovery and technical prowess (Bay, 2012). Current lawyers are marketing their services based on what worked many years ago – not the needs of today. A law firms metrics on how efficient they are might be the push necessary to get lawyers to take their technological obligations seriously because if they can’t compete – they can’t win. Well, it will either be metrics or complete and utterly soul crushing defeat due to a tech issue that causes the change all firms must embrace in order to compete and win.
Current and future lawyers must adapt to the changes in how the legal market is evolving with technology, innovation and pricing or they will become tomorrow’s dinosaurs. The rise of legal operations means that for law firms, lawyers and law students to be successful they should understand basic legal technology concepts and software so they can be prepared to effectively represent their client, discuss potential issues or know when they need to engage a subject matter expert[3]. The change is very discomforting to lawyers because they may need to reach out to subject matter experts or develop skills they have previously ignored. Its even more discomforting for lawyers to think that victory or a loss can be chalked up to technical, rather than legal, know how.
When attorneys ignore their technical responsibilities it never turns out well and they may be violating the rules of professional conduct[4]. Basic legal tech issues make the news – so respect what goes in and out of the tools you use[5]. For example, redactions not being properly applied to documents correctly became newsworthy with Jones Day[6], Paul Manafort’s lawyers[7] and the DOJ[8]. Lawyers should beware of the consequences of willful ignorance whether you are a new or experienced attorney. Someone will eat your lunch one day and you won’t know what happened.
Workarounds might seem easier at first but at some point, the bailing wire and duct tape falls apart – and so can your case. Spoliation and sanctions are often due to someone taking a shortcut or applying the wrong technological method to case data. One can print out a transcript and use a highlighter to issue code it or read a PDF version of one but how does your team gain the benefit of your analysis or make the information useful in subsequent work product or trial[9]? A yellow legal pad is wonderful, but what tools will allow one to master all the facts, people and issues of your case so that you have every detail at your fingertips and can report and search work product (for example at a deposition or trial)[10]? How can your work product be leveraged to educate other members of the team so they don’t duplicate effort? Moreover, what workflow, knowledge and technical skills are necessary to avoid risk of screwing up a collection, document review, production or trial (i.e. – your case)?
What is often missing from an attorney’s legal arsenal are basic legal tech skills or knowledge of how the various technologies work together to create efficient workflow or client value. Being able to select the right tool for the job (people, software, vendor, inhouse, team) is often a good starting point to develop your legal technical skills. However, understanding when you are in over your head might be the most important skill of all. Below are a few basic legal technology related skills that attorneys should have familiarity with if they want to be regarded as being up to date, relevant and having the basic skills necessary to perform legal work that involves eDiscovery or efficient work processes.
- Familiarity with the “litigation lifecycle” or Electronic Discovery Reference Model (Figure 3)
- Basic legal technology application skills (Collection, Deposition, Legal Database, Fact Analysis, Trial Presentation)
- How to apply redactions
- Project management skills
- Selecting the right tool for the job for a given task
- The basics of eDiscovery pricing[11]
- Knowing when to engage a vendor – i.e.- understanding when you are in over your head
Figure 3 – The “EDRM” or Electronic Discovery Reference Model (EDRM Working Group, 2019)
For example, at trial the level of incompetence by legal teams inability to present electronic evidence is staggering. The technology is a clear afterthought after months of preparation that frankly presents an incredibly bad image to decision makers like Judge and Jury. Repeated technical issues and inability to communicate the correct exhibit number[12] or understand how to connect their laptop to the courtroom presentation system or absolutely no QC of their exhibits leads to embarrassing situations to say the least. Lawyers running presentations have been thrown out of court or asked to shut down their computers due to numerous technical issues at trial – its frustrating to watch teams bumble and stumble through their witness examinations and presentations. It has become so bad that some courts have posted evidence presentation obligations that speak to the minimum qualifications necessary to present electronic evidence in the courtroom[13]. Spoliation of evidence[14] occurs when improper collection, culling or production occurs often due to technical incompetence. These issues often arise because the task at hand was oversimplified and the attorney quickly got in over their head.
In a study by the Honorable Amy St. Eve and Gretchen Scavo contained in the Cornell Law Review article (Scavo, 2018) “What Juries Really Think: Practical Guidance for Trial Lawyers” of 500 jurors from 2011 to 2017 in Chicago Federal Court and their attitudes on what they thought of the lawyers they saw at trial they found that bottom line:
“jurors expect attorneys to incorporate technology into their trial presentations, they also expect them to know how to use that technology effectively and efficiently. This relates back to preparation and organization – jurors do not want to sit through technological snafus”. (Scavo, 2018)
The study went on to state that, “How attorneys elicit testimony and present other evidence, and the order in which they introduce it, matters to jurors. Jurors prefer when attorneys use technology during trial to organize and present evidence.” (Scavo, 2018). Unsurprisingly, jurors in the study liked the most when attorneys were organized, prepared and efficient and their delivery style mattered (Figure 4).
Figure 4 – From “What Juries Really Think: Practical Guidance for Trial Lawyers” by Judge Amy St. Eve and Gretchen Scavo
When asked in the study what attorneys could do differently or better at trial it echoed the same themes as what they liked. Namely, they wanted attorneys who were organized, prepared and efficient, did a better job at presenting evidence and to improve their presentation style. (Figure 5)
Figure 5 – From “What Juries Really Think: Practical Guidance for Trial Lawyers” by Judge Amy St. Eve and Gretchen Scavo
The most successful legal technology implementations at firms come when there is Partner buy in and leadership. Part of the problem with new lawyers is Partner emulation. New lawyers often don’t see partners using legal technology incorporated into their day to day work, so they think that it is an unnecessary skill to learn. It used to be commonplace for lawyers to laugh off their technical inadequacies and problems in court and new attorneys followed along in the laughter – that doesn’t happy very much anymore because of the risk of angering Judge and Juror. Partners must incorporate technology into their own practices so that newer lawyers feel free to leapfrog them with their technical prowess. Unfortunately, by not developing new attorneys’ technical fluency into legal tech fluency firms are giving up a potentially tremendous competitive advantage in delivering efficient legal services.
Last, The American Bar Association Model Rules of Professional Conduct Rule 1.1[8] state “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” Given a change in law, most lawyers would spend hours learning the ins and outs of what they needed to do to competently represent their client – technology use is no different and attorneys need to commit the time and resources to learning it to remain relevant and maintain competency. Learn the basics, seek guidance or get help when completing legal technical tasks so that they are done right. You’ll find in doing so you’ll be a better lawyer – prepared for the future.
[1] For more information on “legal operations” check out www.cloc.org or www.acc.com.
[2] This is considered the “Foundational” or most basic level. There are higher categories such as “Advanced” and “Mature” with higher expectations of technical sophistication.
[3] Typically, a professional staff member or outside consultant. Each phase of the EDRM has its own specializations from collection to presentation.
[4] See American Bar Association Model Rules of Professional Conduct Rule 1.1[8]
[5] New attorneys are famous (infamous) for being the sacrificial lamb that runs the technology at trial with little to no training.
[6] See “Jones Day Apologizes for Botched Filing That Revealed Grand Jury Info” https://www.law.com/nationallawjournal/2019/09/13/jones-day-apologizes-for-botched-filing-that-revealed-grand-jury-info/
[7] See “Manafort Lawyers Botch Redactions, Revealing Details on Alleged Trump Contacts“ https://www.law.com/nationallawjournal/2019/01/08/manafort-lawyers-botch-redactions-revealing-details-on-alleged-trump-contacts/
[8] See “EXCLUSIVE: DOJ Redaction Flub May Undermine Libor Case” https://www.law360.com/articles/959454/exclusive-doj-redaction-flub-may-undermine-libor-case
[9] See deposition software like Case Notebook https://legal.thomsonreuters.com/en/products/case-notebook or TextMap http://casemap.com/textmap/whatsnewxm7.asp
[10] See Fact Analysis tools like Casemap https://www.lexisnexis.com/en-us/products/casemap.page or Everchron https://everchron.com/ or Relativity Case Dynamics https://www.relativity.com/ediscovery-software/case-dynamics/
[11] Typically eDiscovery pricing is paid per GigaByte but there are multiple pricing models and vendor pricing can vary greatly.
[12] Many lawyers never update their trial outlines to reflect exhibit number in them. Often using old bates or production numbers. Making their examinations and opening ripe for objections, miscommunications and technical issues.
[13] See “Evidence Presentation Obligations” http://www.caed.uscourts.gov/caednew/index.cfm/attorney-info/electronic-evidence-presentation/
[14] See “Spoliation of Evidence: The Surest Road to Sanctions” https://www.americanbar.org/groups/litigation/committees/commercial-business/practice/2018/spoliation-of-evidence/
Works Cited
Bay, M. (2012, October 19). Tecnhology Test Helps Kia Motors Choose Outside Counsel. Retrieved from Law.com: https://www.law.com/legaltechnews/almID/1202575674647/Technology-Test-Helps-Kia-Motors-Choose-Outside-Counsel/
CLOC Working Group. (2018, December). A Primer on Legal Operations. Retrieved from Corporate Legal Operations Consortium: https://cloc.org/wp-content/uploads/2019/01/CLOC-Legal-Ops-Primer-posting-draft-v1_01Jan2019.pdf
CLOC Working Group. (n.d.). CLOC sample survey on law performance evaluation. Retrieved from www.cloc.org: http://cloc.ldcsurveys.com/s3/Law-Firm-Performance
EDRM Duke Law. (2019, May). https://www.edrm.net/wp-content/uploads/2019/05/EDRM_Poster_36x24_May-2019.jpg. Retrieved from EDRM Duke Law: www.edrm.net
EDRM Working Group. (2019, May). www.edrm.net. Retrieved from Electronic Data Reference Model: www.edrm.net
Scavo, H. A. (2018). What Juries Really Think: Practical Guidance for Trial Lawyers. Cornell Law Review Online Vol. 103, 149-174.
This piece was contributed as part of the 2019 Harvard Legal Technology Symposium organized by the Harvard Law & Technology Society. The Symposium was the largest student organized legal technology event in the world. It brought together an interdisciplinary and international community to think deeply about how technology can improve and shape the law.