Technology adoption in the legal industry has certainly grown, but there are still barriers to total adoption. To understand those barriers we must ask and answer 3 questions about technological changes and adoption: Why do industries change, how do they chance, and most importantly how do they feel about that change?
First let’s start by why industries adopt new technology in the first place. There are 4 main drivers: to lower the costs of doing business, to drive revenue, to reduce the risks inherent in their business, and to transform a business or industry in order to compete. If we layer those drivers into the legal industry we will quickly see why adoption has been slow.
Lowering Costs: To a law firm technology is a cost, and in fact within some current pricing models it is not something that is easily recouped without explanation and effort (read administrative and nonbillable time). On the corporate legal side, the entire department is a cost, let alone the technology they use, and so the goal is to keep spend down, especially on the added costs beyond human capital.
Driving Revenue: At most law firms revenue equals the billable hour, which means that something that makes work more efficient cuts directly into profit. The same is true of systems and processes that take administrative and nonbillable time to manage and present to clients. On the in-house side you cannot drive revenue at all so no spend you make will ever be recouped by anything but savings during litigation or other legal issues.
Reducing Risk: When we think about mitigating risk, first we must identify what risk is. In manufacturing it is worker injury or product malfunction while in financial services it is tied to strength of your financial advice or behavior that puts an institution out of compliance. In legal it is giving bad advice or breaking privilege. So that means that legal risks are related to not knowing something or leaking something, making our general inclination is to gain more knowledge and control more of the data and not to hand it off to a black box.
Transforming the Industry: Transformation has been a fundamental challenge for any advanced industry that runs off human expertise and that may be because they have less of a need to change in order to compete. In fact, I would argue that transformation only starts when the human providing the service needs a way to do their job better and not through customer demand. I like this phenomenon to the changes in medicine.
The early adoption of technology enabled medical professionals to provide better and quicker diagnoses so that they could see more patients and lose less lives; they were not to provide cost savings to patients as the first goal. The same is true of the beginning of legal research technology. It was meant to provide the lawyer with more information, but they still billed time to do the research. The goal was to gain more information so as not to quote the wrong precedent in court, not to pass a cost savings to the client. Without true pressure and market competition there is no reason to change legal. The activities of legal service providers and the foray of the big 4 into legal is certainly pushing that in the right direction but we will need more pressure from them to see universal change.
Now that we understand why we adopt new technology we must think about how we adopt technology. In manufacturing if General Motors makes a more efficient assembly line and you were out of a job – so be it. If General Mills introduced a new machine to its process, then you had to learn it. In both scenarios the worker must adapt to the change or lose their job. The other part of the coin is that change was easier, and new technology or processes could be learned in a few days.
This means that industries that had great success leveraging technology also had a workforce that simply had to adopt to it or find new work – and they could adopt to it. That is simply not the case anymore. Upskilling workers takes much more time and effort than ever before and comes with other challenges that will only get harder.
A recent IBM survey related to upskilling asserts that “Over 120 million workers throughout the world (11.5 million in the U.S.) will need to be retrained in the next three years because of the changes that artificial intelligence will bring to the workplace. “Upskilling” these workers will be a big challenge as workers today require more training than ever to learn new skills — 36 days versus three days in 2014, per IBM. And often skills most valued by employers (“soft skills” like communication and ethics) require years of experience to develop.”
Relating these findings back to legal show there are a few glaring reasons that lawyers and law firms are slow to adopt in a world of upskilling. It takes time and focus, and that cuts into revenue for the firm and hours for the attorney. Furthermore, law firms and in-house legal departments are not traditionally places that you have to adopt to the new assembly line machine or find a new job. The profession also have a fear of lost or hidden information – that the technology introduces more risk than it reduces. We need more information, more data, more research – and systems that reduce that hinder our ability to lawyer properly. These things combined make change very difficult and shelter those resistant to it.
We wouldn’t have a full analysis unless we also considered how we feel about change. This last item to explore is more cultural than anything else. In legal, the use of technology has historically fallen to those not rendering legal advice and there is a stigma that comes with that.
The earliest form of technology in legal was the secretary. A person, a woman, who scribed every brilliant thing a lawyer, a man, had to say. Those notes were collated and presented back to the brilliant lawyer so he could then share the information with his clients. The typewriter and word processor were advancements but did not change that dynamic at all, it just made the process faster and easier for the lawyer while he did not have to actually learn to type. You know who learned to do that? It was the secretary who had to adapt or find a new job, or the solo practitioner who could not afford a secretary so had to adapt or lose his practice.
Fast forward to today and there are still partners at firms that have their emails printed while living in this insulated world where just the value of their mind means they do not have to behave like normal people. If that is the example set to new lawyers, we are all doomed. Much of the roadblock to technology adoption has nothing to do with the technology and much more to do with the way we think and feel about “technology” and the work we do with it.
If we are to surmount the barrier to technology adoption and become better lawyers in the process we have to understand that we are in service to our clients and the law and that inherent in that comes the demand that we be savvy in all things that affect our ability to render legal advice. More than that though we must be willing to take off our lawyer glasses and see the world as it is. If we do not do this we will never see that our secretary is better suited for the changing world than we are and so we will never change ourselves.
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.