Much has been written about the ethical duties of a lawyer regarding technology, a duty found in Rule 1.1 (competence), Rule 1.6 (confidentiality), Rule 1.5 (ethical billing) and Rules 5.1 and 5.3 (supervisory responsibilities). These rules and their nuances should in and of themselves be enough for lawyers to be as inquisitive and knowledgeable about tech as they are the substantive law.
But forgetting these for a moment and that technology can generally make us more efficient, there are also some 6 very sound practical reasons lawyers should be familiar with and welcome technology and, as expressed in Comment 8, know of its benefits and risks.
But forgetting these for a moment and that technology can generally make us more efficient, there are also some 6 very sound practical reasons lawyers should be familiar with and welcome technology
What is Technological Competence?
But before getting to these, it might be worth talking about what technological competence means. Like many, lawyers get uneasy when we use technology and competence in the same sentence. Some think this means knowing, for example, how to code. Some think this means knowing about anything and everything about all technology. Both are wrong.
What competence really means is being knowledgeable about that technology which is or could relate to what you do for a living. So for lawyers, it means knowing what technology is out there that could help our clients and help us be better at our chosen profession. It means knowing what this technology can and can’t do. It means being aware how technology has changed how we see things, how we learn and what we do. It means being open minded and inquisitive.
So, if we define competence in terms of awareness, what are 6 practical reasons to be technologically aware?
Everyone Uses Technology
First, no matter the nature of your practice or the size of your firm, your clients, your adversaries, judges and juries are constantly using technology every day in many ways. They demand and expect it.
Judges and juries are constantly using technology every day in many ways. They demand and expect it.
According to the Kleiner Perkins 2017 Internet Trends Study, the time spent online and with digitize media has been steadily increasing; in less than 10 years it has increased from 2.7 hours per day to 5.6 hours PER DAY. We are all communicating, interacting and learning online and with digital media. We all expect instant access and immediate results. And we all expect to see technological bells and whistles in connection with almost anything presented to us.
Clients are expecting and demanding that we us available technology to do more for less. To be efficient . To use data and data analytics to better predict what the fee Nd even outcome will likely be. The only way to keep up with these demands is to be knowledgeable and aware of what technology is available to do these of things and what this predictive technology will and will not do.
And if you try cases-you better become familiar with state of the art trial presentation technology. Otherwise you will be at a tremendous disadvantage to those that know how to leverage technology in the courtroom or even in the discovery process. Plus the fact that the expectations of those on juries and those who you communicate with and are trying to persuade use the internet and social media and technology to learn and be persuaded.
Think about the judiciary you practice in front of who may be reading your briefs and pleadings electronically. How we read and understand on screens is different. Understanding this difference in how documents look on screens and how people navigate and read them is crucial if you want to persuade and impress.
So, if you’re not aware of this change in how we digest information and how it has changed communication and learning, you risk being left behind and at a disadvantage. And where so many are comfortable with and are using technology in their daily life’s, bragging about being a Luddite and not using technology, may not be the best strategy.
The second practical reason you should know something about technology is security. Your security. More law firms are themselves targets of hacks and data breaches. The Panama Papers scandal.The cyber attack on DLA Piper that almost shut the firm entirely down. The Cravath attack that led to serious insider trading problems.
According to the 2016 ABA TechReport, the primary targets seem to be the mid-size and large firms although no firm is immune. But despite these statistics, some 21% overall of the firms surveyed in the 2016 ABA Tech Survey reported they had no security and 7% of the survey respondents simply didn’t know.
And clients are demanding that we keep their digital information more and more secure
And clients are demanding that we keep their digital information more and more secure. 31% of all lawyers in responding to the 2016 ABA Tech Survey said their clients have imposed security requirements on them. And when you look at larger firms the percent goes up to about 63%. These numbers will only grow: our clients expect us to know about how to protect their secrets. What does this mean? It means we better have some basic understanding and awareness of how to keep things secure and the risks .
Think about and understand firewalls and firm wide protection. Know why and insure you and the people you work with need to be knowledgeable about scams and risks. Train everyone how to recognize and avoid phishing and spear phishing attacks that can lead to ransom ware. Know how to protect yourself with such things as encryption, strong Passwords and password managers and 2 factor authentications.Know about and understand the concept of full drive encryption. Understand why these things are important.
And blithely assuming someone else will take care of this for you is a recipe for disaster. Do you really want to call your client someday and say we have been hacked and your records were stolen? Or that you had client documents on a laptop whose unencrypted hard drive was stolen? Or, as was the case recently with Wilmer Hale, that the auto fill feature typed in a Wall Street Journal reporter address by mistake, resulting in client secrets not only being revealed but published in the newspaper.
Leveling the Playing Field
Number 3: technology can level the playing field between large firms and small firms and solos. Tech tools can enable you to do things it used to take an army of associates and paralegals to do.
Being at least somewhat familiar with and aware of technology also prevents you from being at mercy of vendors who often are all too happy to mumble some jargon you don’t understand and then charge you an arm and a leg.
While tech vendors may know how to make a fancy power point, they don’t necessarily know how to tell a persuasive story.
And for us trial lawyers, remember that while tech vendors may know how to make a fancy power point, they don’t necessarily know how to tell a persuasive story. That’s our job; we have to be able to use technology tools to help us do that. And as we all know, things can change in the courtroom with less than a moments notice. Knowing something about the technology may save you from embarrassment and could be the difference between winning and losing.
Death by a Thousand Cuts
The fourth reason to be technological aware is to help prevent death by a thousand cuts in an area near and dear to many of us, profitability.
Many of us use the billable hour as our business model. Yet there is often a big difference between what we bill and what we collect. For small firm practitioners, you probably know this problem all too well. You work 8 or more hours a day. But you can’t bill 8 hours a day.
According to a 2016 Clio Legal Trends Report, what you actually bill is roughly 81% of what you can bill. But then you must consider the collection rate, which according to the survey is about 86% of what you bill. When you put all this together you have collected on average only 1.6 hours for your 8 plus hours of work. For a business, whose model is based on billing and collecting time, that’s not to good.
Firm and billing technology can help with this by reducing the non- billable time and increasing utilization, realization and collections rates. Without awareness of these tools, you risk losing money.
On a broader front for all of us, solo, small and big firms and all in between, using technology can help us get back to practicing law, doing what we were trained to do. We didn’t become lawyers to spend hours in dusty warehouses going thru millions of pages of documents. or reading email after email. We didn’t become lawyers to proofread over and over the same document looking for typos. Technology helps us practice law.
Lack of A2J Threatens Us All
Reason number 5: we frankly have an embarrassing access to justice problem and while we can continue to ignore it, we have some responsibility to our profession and to the public, who has extended to us as lawyers special self-regulating protections.
We frankly have an embarrassing access to justice problem and while we can continue to ignore it, we have some responsibility to our profession and to the public, who has extended to us as lawyers special self-regulating protections
80% below the poverty line and more than ½ of those in the middle class—the people who need legal help the most cannot get access to even modest legal advice on serious issues like custody, divorce and criminal questions. Small businesses and startups often ignore lawyers altogether and do things online without a lawyer.
The sad fact is to many people, lawyers are just plain irrelevant. That’s not good for them or our profession. And just to reiterate how irrelevant we have become to so many, of the reasons for not consulting a lawyer in a civil justice matter, almost half said there was no need. Almost a quarter said it would make no difference. Sandefur, Rebacca, Accessing Justice in the Contemporary USA, University of Illinois at Urbana-Champaign: American Bar Foundation, August 8, 2014.
Technology can help overcome this gap by making the practice of law more efficient and access more affordable. That’s part of our responsibility as lawyers. And to think selfishly: given the statistics, do we really think the public will continue to tolerate our self regulating protections?
The Winds of Change
The winds of change, primarily driven by technology, are blowing over the profession stronger than ever. Alternative service providers like RocketLawyer and LegalZoom doing things that lawyers once did like preparing documents and wills. Last year its estimated these providers were a $8.4 billion industry. More and more you find people using web sites not just to get documents like wills, contracts and articles of incorporation done but to also find and evaluate lawyers. To compete and continues to thrive, we must know of these providers and how they are using technology.
Artificial intelligence technology is also threatening to alter the legal landscape particularly for young lawyers. You have chatbots taking over functions we used to perform. You have clients and insurers using technology in new ways to evaluate us and what we are doing. Even how good we are. The days of non-transparency are dead.
These things present new and different threats. Yet if we pretend they don’t exist, ignore them and remain unfamiliar with them and their impact, we risk becoming more and more irrelevant.
There You Have It
So, there you have it. Don’t be a Luddite. Don’t brag about being technologically incompetent. Make a new year’s resolution to at least become more aware of technology and how it can help (or harm) you and your clients.