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Overcoming Lawyers’ Aversion to Technology

Countless blogs, articles, webinars, and conference presentations focus on lawyers and technology. So why another blog about it? Well, probably because everyone approaches challenges, and learns how to approach challenges, differently. What helps one person may not help another. So here goes another advice column on incorporating technology into how you manage and approach discovery documents in your cases.

Here is the TL/DR (for those of you unfamiliar with that acronym, read the bullet points for that one):

  • The unknown: Become comfortable with assessing the risk—at least the worst-case scenario—regarding the ROI on time and expense involved.

  • The expectation: Stop expecting the easy button that reaches into the one box, and pulls out  the one  document, from among 25 boxes holding 2,500 pages each (I know, I know, I’ve gone old school with “boxes of documents,” but we need a visual for a moment), that defines the entire case. But at the same time, do not let the perfect be the enemy of the good. If time and money spent saves a greater amount of time and money, isn’t it worth trying?

  • Change habits: Accept that to some degree you need to change the way you are handling documents in the case to incorporate the technology. Change is hard. It is daunting and it is about changing our habits. That is usually about as pleasant as weeding the flower beds on a Saturday morning, but it is what you must go through to get the yard looking the way you want it.

  • Baby steps with toddler enthusiasm: It is okay to look for—and start with—what is simple and less complicated. And do not try to completely overhaul every process you have for handling a case all at once. Baby steps are fine, but to the degree you try out some new tech, do what is required to allow it to work and provide its benefit. For example, if you accept a single, large, PDF as a discovery response, review tools will be substantially limited in what they can do for you—learn how to ask for documents that allow the tool to work. If you handle discovery in the manner that optimizes the benefits technology offers, you will get better ROI, while handling documents in a sub-optimal fashion will limit ROI. Or start out by trying a tool that summarizes transcripts. Whatever you explore, do it with the enthusiasm of a four year old in a Batman shirt.

  • Ignorance is okay: Ask for help. If you do not understand a phrase (TL/DR means “too long, didn’t read”) or a concept, ask what it means. Otherwise, yes, you are wasting your time and money and inviting aggravation that is not worth enduring.

One of the biggest reasons I see lawyers avoid technology is the proverbial fear of the unknown, but also the inability to (1) appreciate the risk presented in terms of ROI, and (2) guide the incorporation of the technology and effectively incorporate it. Lawyers are not necessarily risk averse. The practice of law, and the management of a law firm, presents risks. If we were truly risk averse, we would not practice law. No, the challenge is being able to measure and manage the risk.

To me, the best example of this is plaintiff-side work on a contingency basis. That certainly involves risk. Time and money spent may not be recovered (much less accomplish a recovery for your client). But lawyers, rightly or wrongly, feel like they can measure and manage that risk (whether they are doing so accurately is a different discussion that we will avoid today). Notice I said “feel like” they can measure and manage it, not whether they actually can—just like the risk in a contingent fee case. Similarly, we stake our reputations on the work we perform and the service we provide—has that stopped you from accepting a case that is different from anything you have handled before? Maybe on occasion, but probably not always. No, the impediment is not the risk of adopting a technology, it is whether lawyers feel like they can measure and manage it.

So, step one is finding a way to feel comfortable with taking on the risk. Well, one of the first factors here is whether the lawyer is going to get an acceptable ROI in terms of time. Many lawyers are lost here, partly because they cannot see anything concrete affirming the notion that if I spent X hours shopping for and vetting a technology solution, Y hours learning how to use it, before I even make headway in the case, multiplied by Z level of frustration during that process and the added stress of feeling like you’re not accomplishing anything—what do I get for all that? How much time and money will I save?

The easy answer is you really don’t know for sure due to numerous factors. Part of the answer relates to how well the lawyer incorporates the technology into the way he/she manages the file. But you can at least put some bumpers, or a threshold, on whether adopting something new is worthwhile. For example, suppose you receive 100,000 documents in discovery. How many can you really evaluate per hour? Maybe 60? 100? Some you can fly through—as soon as it renders on your computer screen, you know immediately it is not relevant. You are in a personal injury case, and this is a spam email from an airline that just happened to hit on a keyword in the collection process. You can probably fly through a few hundred like that per hour. But when you start getting into documents that have enough potential to be relevant that you have to pay attention to them, you may only review about 60-80/hour. So, do the math. If you can cut the number of documents you need a lawyer to look at in half—25,000 instead of 50,000—how many hours will that save? A lot. So, would that save money (or, in the contingent fee context, allow more time to be more productive than the hard cost)?

Aside from the dollar calculations for initial document review, how are you going to go back and find a particular one you saw three days before with your “old” system of managing discovery documents? (Okay, be realistic—how much of your paralegal’s time are you going to take up by tasking your paralegal with finding it based on your vague recollection and description of it?)

You can spend quite a bit of time lining up and using some new tool to help here. It will not feel like you are saving time, but most likely, you will in the long run. Again, if you have only 10,000 documents, how long does it take you or your paralegal, looking through PDFs, to find all the emails John Doe sent as you get ready for John Doe’s deposition? Or all emails sent on a particular day? Or notice a two-day gap in the emails produced to you? A review platform allows you to do that in minutes, but try doing those in a single PDF document production. Separate from the cost analysis is the ability to provide better representation for your clients. Do not stop your decision-making process with the total due at the bottom of the vendor’s estimate.

I am going to stop here to dispel a notion regarding technology. There. Is. No. Easy. Button. No software tool can take 250,000 documents and minutes later provide you with the ten documents that are going to be your closing argument. Stop expecting that. But on the flipside, do not let the perfect be the enemy of the good. If spending money on a review platform, or a tool that analyzes transcripts, or summarizes documents, saves you at least that much time, it is probably worth spending. Does some fantastic—and frankly impressive—technology exist that can narrow the search for needles in the haystack? Absolutely. Does every case need the newest technology? Technology that may be the best, but likely will be the most expensive? No. Even a case with only 25,000 emails can be handled much more efficiently, and more effectively, with a simple, relatively low-cost review tool. And shhhh….here’s a secret: many vendors will discount their first case to entice you to use it, further decreasing the risk and offsetting the hard expense.

Start with a simple, easy to use tool. I look for lawyer-proof. Yes, to some, any dashboard on your screen for reviewing, tagging, and producing documents can be daunting. But there is nothing wrong with leaning toward an easy, simple, clean, and intuitive screen that you are going to work with your first time out—after some training and a short learning period.

Yes, I know it’s hard to make such changes. But I will use an example from a former partner. He would give it “the old college try” whenever the firm adopted a new software tool. He would go to the training. He would work at it. He would go back to his office and try to work with it. But between the challenge of changing habits—and pretty much any first step into technology is about changing habits in how you work—and knowledge decay, which is a real problem in learning to use software proficiently, he’d get frustrated and quit. Then he got an iPad for Christmas. Within a couple hours or so, he was using it like a pro, and over the following weeks/months, learned how to depend on it. Then it became indispensable to him. Why the difference? The iPad was easy, intuitive, and not intimidating. It is okay to make that one of your criteria, at least at first.

And yes, I have bad news, but you will be changing the way you handle cases if you want to maximize ROI. If you continue accepting discovery responses as PDFs, technology can only help you so much. For example, if you obtain native format emails (which begins by asking for them), the tool can pull the metadata for the date sent when you want to view all emails from a particular date. If you accept PDFs, then you may be limited to using the date as a keyword search, which is far less effective. Learn how to request (and obtain) documents in a format that helps you. This may mean revising “Directions” or “Instructions” in your discovery requests that you probably have not looked at in years. Also, do you specify form of production, or know what you need? I promise, if you start to change how you work cases from the beginning, it will pay off. But learn yoga, meditation, or a good mindless exercise to help with the initial frustration.

Finally, the last challenge I see is the intimidation factor. There’s so much of what we do not understand (and maybe feel like we should by now); there’s an entire language that is foreign (e.g., vendors talk about “use cases,” databases, file types you have never heard of, “indexing,” and other words that lawyers don’t use). Discussions regarding software tools can sound like English and a foreign language at the same time. Additionally, how these platforms work is voodoo for many lawyers. And lawyers are about as likely to ask for help understanding something as my dad was to stop and ask for directions when I was a kid. Overcome this. Accept that you need the remedial class if that is the case, because you cannot vet software when you cannot understand the vendor, and the training will be a waste of time if you cannot understand any of it. We are used to asking our clients to teach us their businesses when they are sued and it is the first time we have worked on a case in that industry, but we won’t ask a sales representative or project manager—who wants to earn our business—"what does that phrase mean?” Ask. Understand it, or do not bother. When we are comfortable asking our clients to explain lingo, colloquialisms, slang, technical terms, and entire processes to us so we can represent them, why won’t we do that with the vendor offering a software solution?

As you get more educated, more practiced, and more experienced, you can scrutinize the shiny new objects more effectively. You can work with a more complex tool that has more capabilities. But keep the training wheels on to start with.  Pick one case. Pick one tool that is relatively easy to use. Roll up your sleeves. Find your mantra to relax. And become a better lawyer.

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