Introduction to the New(ish) Technology Competence

Technology competence is not new, but in the age of generative artificial intelligence (GenAI), it applies in new, more complex ways. Under ABA Model Rule 1.1 and its Comment 8, competent representation includes understanding the benefits and risks associated with relevant technology. When it issued ABA Formal Opinion 512, the ABA reaffirmed that the duty of technology competence applies to GenAI, along with all other ethical duties, including:

Legal writing challenged me. I was already a good writer: I obtained my bachelor's degree in English literature, and I had written more academic papers than the average college student. I thought I’d earned my right to proclaim mastery. However, legal writing was radically the opposite of everything I learned in my B.A. program—so much so, that it leveled the playing field and catapulted me to the starting line again with everyone else. The literary world is all about creative freedom and self-expression through liberal use of writing devices like metaphors, allegory, etc. In contrast, legal writing is technical or business writing where clarity of thought and economy of words is key. To master legal writing, I had to unlearn deeply instilled and contrary habits.

If your organization cuts cost but doesn’t increase value, then you’re doing transformation wrong. This is a sign you’re adding complexity and processes that clients don’t want to pay for and your lawyers hate. But don’t give up. It is possible to ease burdens, elevate work, and satisfy clients simultaneously. The key is implementing improvements that increase value from the client’s perspective. To do so, it's time to move our focus from process to value. Take a holistic approach to workflow improvement by using the value stream framework.

“The biggest misconception is that paralegals are clerical staff. And, although a paralegal may perform clerical duties—and make no mistake, clerical staff are important to a law firm—a paralegal’s function can go far beyond clerical duties.

A properly trained paralegal will have a handle on several substantive areas of the law and can assist in functions such as drafting documents, investigating claims, engaging with clients, preparing witnesses, and planning trial strategy.”

— Keith Shannon, paralegal educator

When we start out as lawyers, we’re so afraid of being caught unprepared that we try to memorize every fact, every detail, and every statute. It seems like the smart thing to do. After all, doesn’t every job posting require “attention to detail”? The problem is that details become our security blanket. When a partner, a judge, or a potential client asks a question, we regurgitate the facts we memorized the night before and rattle off code sections—surely, our knowledge will impress our audience.

Addressing your reader and potential client’s problems entails lending a listening ear and showing genuine empathy. Every problem you encounter has a human and emotional aspect that requires a proper and sensitive approach. Whether it’s a contract dispute over the interpretation of a cessation of business clause, an excused performance under a force majeure clause, or responsibility for undelivered goods, each case is a legal question to you—but never forget that it’s an emotional issue for your client. These situations call for empathy. And that means you must connect with your clients on a more personal level to address their pain points.

For most lawyers and law firms, their business strategy is three words long: “Do good work.” The assumption is that individual effort and intelligence are all that it takes to succeed. If it were ever true, it isn’t anymore. Today there’s a breakdown in trust and an uptick in blame that’s getting in the way of “good work.”

Innovation is now becoming an annoying buzzword. Even for people inclined to embrace legal innovation, the word is now eliciting groans. And for people afraid of change, innovation is such a loaded word that even thinking about it is overwhelming.

There’s only one certainty: The legal industry is continuing to change. Everything else is uncertain. The question is whether lawyers will adjust enough to remain a valuable and well-compensated part of it.

The legal industry is overrun with counterintuitive and counterproductive expectations about innovation. The demands for radical innovation seem to grow louder every day. The more frustrated we are with the lack of progress, the more extreme we are with our demands. But here’s a simple question: is the purpose of innovation to show our CEOs and clients that we are exploring the latest fashionable technology? Or is the purpose of innovation to increase revenue, value, and client satisfaction?

What does it take to thrive in today’s knowledge economy? If you read commentary from the legal industry, the answer is clear: innovation. This buzzword is alluring because it’s amorphous, ambiguous, ill-defined, and unmeasured. We can reward ourselves for “doing something,” while doing nothing at all.  If we can’t agree on a definition or direction, we can continue talking without taking any action.

It may feel good to encourage spontaneity and creativity, but random acts of innovation don’t work on a large scale. To be successful, innovation must be strategically executed and aligned to business strategies.  However, most companies fail to unite innovation and strategic initiatives.  PwC surveyed 1,200 executives about managing innovation and found that 54% struggled to connect innovation and business strategy.

When it comes to efforts to improve legal service delivery, we tend to look outward. We consider how we should re-engineer processes; how we can better staff projects; and what technology we should use. We rarely stop to think about how we should improve ourselves.

Lawyers are struggling to embrace change and this is impeding innovation. Even for those who want to change, most efforts fail to deliver.  How can we put in so much effort for so little gain?  Maybe it’s because we’re not identifying the right problems to solve.

Our approach to technology and process improvement initiatives is often fueled by hope, driven by shame, and made urgent by fearful hype.

Despite the calls to innovate and excitement stemming from conferences, hack-a-thons, think-pieces, and podcasts, law firms aren’t actually innovating. As lawyers, we know that we need to change, but figuring out how and where to start is daunting. Frankly, we’re stuck. And we’re not helped by the hype and assertions that one single idea or one single piece of technology will be the panacea for our problems. The truth is that no one change or decision will be the right fit for every law firm or law department. Instead, what we need is a framework to determine the best direction for our individual circumstances. Workflow analysis can help.

Too many lawyers with great ideas that could improve legal practice are discouraged from even trying to innovate. As lawyers, we assume that innovation must mean invention, technology, and programming. By accepting that assumption, we are accepting the belief that innovation is something that other people do. But that’s not true. Innovation can be any new process or new way of thinking — and that can be game changing. Innovating is for lawyers, and lawyers already have the skills to be innovators. No coding necessary.

Technologists seem mystified that lawyers don’t embrace efficiency-enhancing innovations. Despite our reluctance to face it, as lawyers, we need look no further than our rewards structure to see why. Billable hours reward inefficiency. And that rewards structure has remained in place with the help of ethical fading. We think that we’re simply using the existing business model for our benefit. We use our history and familiarity with the billable hour framework to ignore that our goals and our clients’ goals are at cross-purposes.

One mistake, possibly more than any other, is the reason behind so many failed legal technology purchases. And law firm management and software vendors are equally to blame: they both treat the purchasing decision as the end goal. The result is a landscape littered with failed technology and innovation initiatives that is bad for management and vendors alike.

It’s been nearly fifteen years since the financial crisis of 2008, yet the legal industry is still reeling from it. Lawyers felt the shift from seller’s market to buyer’s market, but we weren’t sure that it would be permanent and didn’t know how to respond. For technology enthusiasts, the answer seemed obvious: use more legal technology. That may be part of the solution (and I genuinely believe it is). However, the way technologists promote their tools is self-defeating. Early adopters encourage them, and together they create an echo chamber that is unattractive and unappealing to the vast majority of our profession.