Lawyers and Technology: Whose job is it, anyway?
The internal combustion engine is ubiquitous today. It powers everything from leaf blowers, to cars, to massive sea going vessels. Could any of us build one ourselves? Could any of us explain in precise terms the physics and engineering behind it? Or are we content to understand the generalities of turning fuel into exhaust and harnessing a bit of convenience in our daily lives? How deep in the weeds do we need to go to understand the complexities of the technology and gizmos around us?
Lawyers now face that question as something of an ethical imperative. But the more I read about artificial intelligence, machine learning, and other technology-assisted processes, the more I feel that lawyers are being unnecessarily inundated with what they “MUST” know about legal tech. Frankly, attempts to understand and keep up with a complex array of technologies that may affect their matters is probably a waste of their time, and it’s causing a couple of common reactions. On the one hand, there are the attorneys that feel they must be able to all but build the engine on which they rely before they suggest it, a partner would rely on it, or a court would approve it. On the other hand, there are those that don’t go near technology because everything they hear or read makes it seem scarier than the horse and buggy they rode in on. Both are reasonable reactions to a dynamic and sometimes overwhelming technology environment, but neither likely results in the optimal outcome.
I don’t mean to discourage anyone’s curiosity. It’s cool to know how technology works. For those attorneys that do, bravo!
But flip the script. How much credence do you give to your non-lawyer friend’s musings on a recent court decision? Their feverish consumption of all things written about a case doesn’t give them the credentials or expertise to advise you or take on clients. The legal community has ethics rules to prevent those with a convincing enough legal vocabulary from doing damage with bravado rather than knowledge.
Indeed, there are ethical requirements for lawyers related to the use of legal technology. Lawyers must have a tacit understanding of the benefits and risks of relevant technology related to their matters (See comments to ABA Model Rule 1.1). But lawyers should no more be required to explain in detail why one machine learning algorithm is better than another for document review than they should to build a gasoline engine that will get them to and from the courthouse. This is the domain of technical, not lawyer-ly, expertise. The ethical requirements surrounding discovery are there to remind attorneys to do the same due diligence they have been doing forever—ask appropriate questions of the right people—not to force them to go back to university for new degrees.
The legal tech industry isn’t exactly helping. In attempts to one-up each other, vendors often focus on product details attorneys simply don’t need to do their due diligence, leading to perceived complexities and misunderstandings that can negatively influence wider adoption. Why else would it be that some corporate legal departments have bought the equivalent of a leaf blower and then complained that it can’t drive them cross country? Or conversely, bought fancy ocean liners and wondered why it takes 2 miles at sea to slow it down and change direction. They’re considering the wrong features in relation to their own situation. Unfortunately for them both, neither blowing leaves around the yard in perpetuity or moving a million gross tons the cheapest way possible are likely to get their productions delivered on time.
To make matters worse, those same organizations often decide early on that they must “own” both the technology and the process because outsourcing isn’t part of their culture. But the economics of failed decision-making don’t disappear once a mismatch happens – they grow. So while one legal department might task litigation support with strapping their leaf blower onto a skateboard to at least move the case forward, another law firm fills their ocean liner with the same document reviewers they were hoping to replace, just to make it appear useful.
The practicing lawyer should not be burdened with getting a degree in technology in order to pursue their matters, nor should they be conferred the authority to make vital decisions because they have the bravado to talk tech. It’s not technical expertise the lawyer needs – it’s the ability to match the technology’s work product with the needs of the case team. In other words, lawyers should act like lawyers when selecting tech solutions! To begin formulating a decision-making process with perceived (and often misguided) technical aptitude is already putting the wrong foot forward.
So, I salute those lawyers that know their job is not to be a technologist, but to ask the diligent lawyer questions of the experts without letting the science confound them. That’s what the experts are for. Let them do their jobs so you can skip the science lesson and do yours: “This is what I need and I need it yesterday. Can you get me there?”
Jaron Luttich is a Director, Practice Development at H5, where he develops new business with corporate law departments and their outside counsel. For nearly 10 years, Mr. Luttich has been consulting on a wide range of legal services, including eDiscovery, staff augmentation, and managed document review solutions. You can contact him at firstname.lastname@example.org.
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