Please never underestimate the complexity of Legal Tech.
All of you know how to do a mark-up in MS-Word and how to use track changes. This is a functionality that is used by lawyers on a daily basis. But what if you receive a heavily edited document without the track changes and you have to compare it against the original? Did you know that MS-Word has a handy built in function for that? If you do, you are part of the 68% of lawyers that know how to use the MS-Word ‘legal blackline’ option. The other 32% reverts to tedious manual labor for comparing the two documents. As it comes to more ‘complicated’ features such as inserting a table, making an index or working with ‘styles’ the percentage of lawyers that is aware of the functionality and knows how to use it, drops dramatically. Most of us have been working with MS-Word for all our working life and yet we hardly know how to use it (apart from the most basic functions).
It is like buying a F-22 fighter jet and using it as a Cessna, doing 200 km/h instead of 2,25 Mach
Despite their limited knowledge, all lawyers are happy to use MS-Word. Things get trickier as it comes to PowerPoint, being something we would rather leave to our secretary (who probably also does not know, but is afraid to admit). Excel will definitely be a no-go area for most of us working at a law firm.
The issue with software is that it takes a lot of time and practice before you reach a good level of proficiency. This is time most people, lawyers no exception, do not want to spend. On top of that lawyers are extremely busy working on client matters. Left with the choice whether to work on a client matter that needs urgent attention or spend time learning software skills that might help to work faster and more efficient in the future, most lawyers will choose the former. Lawyers don’t like learning software and they couldn’t be bothered to spend the non-billable time.
We at TGO Consulting did some research back in 2018 and it turned out that the vast majority of law firms has a document management system (DMS), yet only a small minority actually uses the system as intended. In a document management system, you are supposed to save only one copy of a document in which every lawyer can work. In reality many lawyers prefer to save their own version of a document under a different name. This practice totally misses the point of having a DMS in the first place.
I recently had a conversation with the managing partner of a sizable global law firm. A firm that invests a lot in the latest technology in order to help the lawyers be more efficient. He told me that analysis has brought to light that on average only 43% of all lawyers was using the new software tools. Best case would be 72% and worst case being only 24%. This shows that buying and implementing the software is only half the story. Having lawyers actually use it is the challenge. Not to mention understanding and using all the features.
Inadvertently exposing data due to a serious lack of knowledge.
In 2017 when a lawyer representing a former Wells Fargo employee, subpoenaed the bank as part of a defamation lawsuit, he and his client expected to receive a selection of emails and documents related to the case. The 1.4 gigabytes of files that Wells Fargo’s lawyer sent included copious spreadsheets with 50.000 high-net-worth investors’ names and Social Security numbers, paired with financial details like the size of their investment portfolios and the fees the bank charged them. The files were handed over with no protective orders and no written confidentiality agreement in place.
The documents were sent by Angela T. a partner with a New York law firm hired by Wells Fargo, which was not a party to the suit. Based on the fairly narrow subpoena that the lawyer submitted — it sought communications about his client’s employment and compensation — there was no reason for the bank to turn over such information, especially without any redactions. Only after the story had been reported by the New York Times, Angela T send an email to the lawyer admitting the mistake: “We went through a long process of a very large email review with an outside vendor with instructions on exclusion which was spot checked. Clearly there was some type of vendor error — which I am confirming now.” In more simple terms: they had used e-discovery technology but had not quite understood how that works in terms of what was included in the search results and what was not. A serious mistake. This again underlines that understanding the software is crucial. Yet Angela T had not spent the time learning. Something she will probably forever regret.
Legal technology as a ‘deus-ex-machina’ solution
In chapter 8 of my first book, ‘Death of a Law Firm’, I describe how lawyers as it comes to the management and strategy of their firm are often looking for ‘deus-ex-machina’ solutions. A force from the outside, that as by magic will fix a perceived problem and make it go away without the lawyers’ active involvement. Legal Technology typically falls in this category. Investments in legal tech are not only done without a proper business case [read the article], but also without regard to the substantial amount of time that needs to be invested in order to master and properly use the new technology.
We strongly believe that eventually for all law firms it will become indispensable to use new and existing technology to become more efficient in doing research and producing documents. Technology augmenting lawyers, not replacing them. Whether this is already an issue for your firm today, will depend on the type of matters and the type of clients you are working for. Most of TGO Consulting’s clients are the elite law firms and for them already today focusing on increasing efficiency in production is a core consideration. We advise our clients on navigating the Legal Tech landscape, setting priorities and creating business cases that will yield a return on the investment in Legal Tech. The time that needs to be spend on software training by lawyers who already have a huge workload, is always part of the equation. It needs to be.