A Law Office Technology Perspective

This is the 8th year that I have participated in the kickoff session of a law office technology seminar at the Duke law school.  Ken Hirsh and Wayne Miller started the course and Wayne and Jennifer Behrens continue to teach it now (Ken’s moved to Cincinnati where he is the law library director and teaches a similar course).  For better or worse, it’s an introductory encapsulation of “how we got here” and tries to package in as concise a way as possible the world of law practice technology.

I tend to prepare loosely but in the past two years have written out my thoughts and notes more completely.  Here’s what I put together for this year’s session, delivered via Skype, with a couple of my 6 slides included for context.  It’s not verbatim.

What is Law Office Technology?

It’s the technology required to run your law business and to do lawyer work.  Those are two separate things when it comes to technology and it can help to understand those differences.

We have talked about the economics of law practice for a long time.  That was side-swiped by the PC era in the 1980s and 1990s and there was a huge interest in automation and technology.  In many cases, the technology became the focus of law practice management and distracted from the practice side.

Lawyers Mostly Use Business Technology

Law office technology is primarily business technology.  The legal-specific or legal vertical software has been and will probably remain a relatively small portion of the type of software lawyers use.  A good example is practice management.  While there are excellent, specially designed practice management programs available to lawyers, ABA data over the years has shown that most lawyers use a personal information manager like Microsoft Outlook for their practice management.  In this way, lawyers are like many other solo proprietors and small business owners using off-the-shelf business software to meet their particular business needs.

When you think about the technology you use in your own life, you probably can make a similar split.  There are the things that you need to do for law school and the other things.  This complicates looking at law office technology because most of what lawyers use is not, strictly speaking, designed for lawyers.

Sometimes lawyers use general business software is peculiar to law practice but it may still just be part of the basic feature set.  A good example of that is the Table of Authorities in Microsoft Word.  No-one but a lawyer would normally use that, but we seldom use the citation tools in Word that are commonly used by other disciplines that really on MLA or APA styles.

It means that the technology world is split in two for lawyers.  The legal vertical market includes the type of technology, nearly entirely software, that is sold primarily to lawyers.  A recurring them in the legal vertical are products that are described as being “created by a lawyer for a lawyer”.  This can be part of the problem.

If a product doesn’t help you to do your work better – often, in law practice management, the focus is on saving time, earning more, or doing things more efficiently – then it’s not worth adopting.  If it’s designed for someone else’s processes, then it may not work with how you run your own practice.  As a profession, lawyers are frequently noted for not adopting technology that other businesses seem to find compelling.

Lawyers Use Technology That Has Value

This has led to a “lawyers are luddites” cliché.  For what it’s worth, I don’t believe it and I don’t think the substantial data surrounding lawyer use of technology supports it.  Great data sources on who is using what are available from the American Bar Association’s annual legal technology survey and the International Legal Technology Association’s annual technology survey of its mid-size to large firm members.

Lawyering is an individual sport.  Nearly half the profession is a solo.  Even in law firms that have standardized on technology, you’ll find lawyers using BYOD or practice groups doing their own thing.

This individuality plays out in choice of systems as well.  Macs struggled for a long time despite being popular as individual consumer purchases.  The cloud has eliminated most of the reasons not to use a Mac in a law practice, although there may still be some legal vertical software that won’t run on a Mac.  Interestingly, iOS devices tend to get legal apps before or instead of Android devices.

Social media is one of the best examples of a tool that has not taken off in law firms.

First, you have to figure out what the tool is.  Then you have to figure out how to connect with the people you want to connect with.  If it’s a client marketing tool, how do you measure the activity that you (or your hired Tweeter) is putting in, against the conversions of followers to paying clients?  How many platforms do you use?  What are your professional obligations?

Here’s another example.  Who’s ever been to a courthouse?  Can you describe your experience taking a device?

First, you have to get past security.  If your device isn’t taken, you can take it to the courtroom.  You may or may not be able to use it there depending on the explicit rules of the court and those of the particular judge you’re in front of.  If you rely on the Internet, you may or may not have access.  Some rural areas have spotty wireless coverage if that is your fallback.

So that’s the technology side.  Now there’s the lawyer side:  what if an iPad isn’t an easy way to get your client, sitting next to you, to give you comments during a trial?  What if your Keynote presentation slides cause your opening statement delivery to become choppy, or the screen and projector fail?

What if the technology gets in the way of you doing your lawyerly things?

Most Lawyers Aren’t in Enterprises

You can see there are a variety of challenges that lawyers need to surmount to use technology.  There are also market pressures.

Large law firms are getting larger.  The NLJ used to just capture the top 250 firms but now it’s the top 350 firms.  Notice that the bottom of the pack is pretty much the same as ever.  The growth is happening above.

The National Law Journal tracks the largest law firms and went from tracking the top 250 to now looking at the top 350.  The group is getting more numerous, but the mid-size firms (50-100) aren't.

The National Law Journal tracks the largest law firms and went from tracking the top 250 to now looking at the top 350. The group is getting more numerous, but the mid-size firms (50-100) aren’t.

The growth is coming at the expense of so-called “mid-size” firms.  It’s worth noting that legal vertical companies often use the term “small firm” to mean THEIR small firm market, which may mean firms of 40 or 50 or more lawyers.  Most lawyers work in really small firms, of one to 10 lawyers.  Those firms are too small for many software companies to sell to.

A compilation of data available from the American Bar Association's Web site on private practice law firms over the years.  My take is that the firm size splits the types of technology used.

A compilation of data available from the American Bar Association’s Web site on private practice law firms over the years. My take is that the firm size splits the types of technology used.

Here’s the next split that lawyers deal with.  The money is in the big firms.  The majority of large law firms responding to an ILTA survey indicate they’re spending somewhere between $8,000 and $17,000 per lawyer on their technology, although over 15% are spending up to $26,000 per lawyer.  Contrast that with the NALP average starting salaries for small firm lawyers of between $50,000 to $70,000.  It is easier to sell one, large, expensive product to a large law firm than to sell lots of inexpensive ones to a lot of small law firms.

Enterprise software will be found in the large law firms.  There is lots of business enterprise software but also a significant amount of the legal vertical software is focused on that same market.  Solos and small law firms will rely more heavily on consumer software and cloud services.

Cloud is Just the Next Client / Server Alternative

In particular, this raises the issue of so-called freemium cloud services.  These have two tiers – a free one and a paid or premium one.  Typically, you get fewer features with the free version but lawyers use them anyway.  There seems to be a trend away from offering freemium products, which is positive.  In light of concerns about lawyers using the cloud, relying on free sites may also mean relying on sites that aren’t using the necessary resources to secure information against unauthorized access as well as ensuring business continuity.

Speaking of the cloud, let’s talk about where this is.  It’s been bubbling for awhile – in fact, when I wrote my book on it in 2012, I thought it was mostly “over”.  Then came Edward Snowden.  Lawyers outside the US are really struggling with whether or not to use the cloud because most providers are still based in the US and data placed on those servers becomes accessible by the US government.

That’s getting a bit ahead, though.  Let’s talk about the fundamentals because I think the cloud is really just the same old systems we’ve been using for decades.  Every modern networked device has an address known as an IP address.  It’s a number that identifies it and distinguishes it on the network.  Some numbers are re-usable – those are common on home networks – and some are unique.  Some devices we give names to – duke.edu – and some we don’t.

But the basics are the same.  One device with an address contacts another one.  For the last 25 years or so, we’ve used TCP/IP because it works not only on the Internet but on private, internal networks.  It’s built into all major operating systems and you have to use it on the Internet no matter what.  The one making the request is the client, the one answering is the server.  Pretty simple.

The cloud is a new representation of what law firms have been doing for decades.  The shift to using technology outside the law firm is also shifting - and exposing - responsibilities for protecting, supporting, and paying for it.

The cloud is a new representation of what law firms have been doing for decades. The shift to using technology outside the law firm is also shifting – and exposing – responsibilities for protecting, supporting, and paying for it.

Examples:

  • Your client Web browser asks for a Web page from a Web server
  • Your Word program on your PC asks your printer to print a document
  • Your Web browser sends a submit request to Facebook’s server to add a like to someone’s post.

The layers are the same.  There’s a computer called a server and it has electricity.  That’s essentially the cloud layer known as “infrastructure as a service”.  You can add an operating system to that server and you move up to “platform as a service”.  The software applications on top are “software as a service”.  If you use cloud practice management, for example, you may actually be using Amazon’s Web Services for the platform and infrastructure parts even though you’re not paying Amazon any money.  Your practice management software may use AWS in the US but there are data centers all over the world and knowing that may impact your selection process.

The legal profession is in the process of shifting from being almost wholly on the left side of this slide – where we run everything in our offices and hire tech staff to manage it for us – to where we’re in a far more blended environment.  The smaller the firm, the more likely they will be found on the right side of the slide, using cloud.  As you add lawyers to a firm, you’re more likely to find them somewhere in the middle.  They’re purchasing services and expertise and having other people host the software for them, but not where anyone who doesn’t belong to the firm can access it.

This shift is important because many lawyers do not know enough to protect their own network if their firm is connected to the Internet.  If they aren’t, and we see an increase in the expectation that they know how to manage their systems, they may face competence issues down the line.  We’re likely to see the trend continue towards the right with large law firms eventually moving more to public and private clouds.

We are also going to see more discussion about whether lawyers should be using foreign-based cloud centers.  The discussion going on about whether a US court can demand production of a Microsoft customer’s e-mail account from its Irish server is hot right now.  Canadian lawyers may prefer to use Microsoft Office 365 in Microsoft’s Irish data center to protect their information from US intrusion.  US firms may feel the same, or choose Open Text’s Australian cloud data center to manage their documents under a different set of laws.  The maturity and global nature of the cloud is providing new options all the time.

What’s on the horizon?

From a legal technology stand point, whether business or legal vertical market focus, not much is going to happen in the near term.  There is a lot of talk about automation of documents and artificial intelligence but this has been out there for a long while.  Big data caught people’s attention but most law firms don’t deal with huge amounts of data; they deal in huge numbers of documents.  Hot technology topics like 3D printing and wearables and such like will have little or no impact on how lawyers, as a group, practice.  Experiments with fitness and health wearables by personal injury lawyers on their plaintiffs to substantiate claims are an example of where they might work for a particular practice area.

The idea of specifically mentioning lawyer technology competence is now in the commentary of the ABA’s model rules.  Its implicit in some rules but it will be interesting to see if this is used in discipline cases in the future, if it is adopted by states or copied by other regulators.

Lawyers will be targets for Internet-based attacks and have been called “the soft underbelly” of corporate security.  They hold confidential information, trade secrets, negotiation positions, patents under development, and untold amounts of personally identifiable information for identity thieves.  They also appear to have a poor understanding of strong password management, they avoid using encryption, and they are primarily solo or small business people who may or may not be investing adequately in protecting their technology and training their staff.

We’re seeing more attacks now – or lawyers bringing it on themselves by clicking a link and downloading malware, or answering a phishing e-mail – and it’s likely to increase.  In particular, the large law firms who have made a substantial investment in their systems may not be any better off than small firms as bugs like Heartbleed, Poodle, and Shellshock appear.

Last, but not least, the Internet of Things will complicate lawyers lives.  It may happen in the office but I think the biggest threat will be from the home.  Your coffee machine, your refrigerator, your door alarm, your lighting may all be on the Internet.  If it’s accessible to you, it may be accessible to others.  That may be disturbing enough but we’ve seen cases already where an intruder has jumped from a home baby monitor to the lawyer’s PC, and then remote connected securely into the lawyer’s office systems.  Unfortunately, few of these devices look like they’ll have any profound impact on creating a smarter, more connected practice.

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