Access and Aptitude

You can lead a horse to water, but you can’t make him drink.  Lawyers are neck deep in information and technology, maybe deeper.  Nearly all lawyers would appear to be using a computer in practice and yet their understanding of the tools set before them has yawning gaps.  Access isn’t an issue, despite relitigating the luddite lawyer banality.  Aptitude is where there is opportunity, but is it necessary?

This is perhaps best illustrated by looking at foundational software:  the operating system.  Typically, when you turn on a computer, you see some sort of whirligig identifying it as Windows, Mac, or Ubuntu.  The ABA 2015 legal technology survey indicates over 99% adoption of a PC (Volume II, Q 14).  That works out to about 7 respondents that indicated other.  Of those PC users, over 50 respondents had no idea what operating system was on their PC. (Q15)

I don’t understand how a PC user can not know this. Knowing what your operating system can impact whether you know your system is at risk, is compatible with other software, and so on. As an elderly English relative of mine once said:

Is it a matter of can't think, or won't

Librarians deal with this issue all the time.  It’s usually couched in terms of literacy, a term I don’t personally care forTL;DR, it means having a facility to use something, like a search engine, but not understanding how to use it well.  Some law librarians have adopted a position, which I also disagree with, that a law school graduate is somehow incapable of performing legal research.

At heart, the question is the same for legal technology and information:  is a lawyer with access to a tool – book, search engine, email application, smart phone, document assembler – assumed to be proficient enough through regular use to reach that good enough plateau or do they need to actually show some aptitude?

I posed a question to some law students recently about their own aptitude.  Every one of them was using Microsoft Office, as you’d expect in a legal environment. None of them felt that they were expert, though. There’s no reason they would be, even though a couple of hours of training or time spent with or Youtube wouldn’t hurt.

When I helped to rewrite the ABA’s legal technology survey back in the early Aughts, we debated whether to ask what lawyers use or was it enough to understand what was available to them.  There is a lot of technology in a law firm that a lawyer might never use herself, even if it is used to assist clients or support business operations.  That may be a mistake: it may be worth knowing what the lawyer uses and how well they can use it, even though aptitude is hard to pinpoint.

An inability to use the tools of law practice may indicate a need to educate on what they are and train on them.  This might occur in a law school, although I’m not sure that doing it without context makes sense.  It might occur in continuing education, but CLEs are notoriously hands-off – sometimes minds-off – and practice management and technology topics can be difficult to impart otherwise.

Law schools are struggling with turning out the practice ready lawyer – and whether they should and what form it takes.  Even where law schools are focused on experiential work, there doesn’t seem to be a focus on the tools used.  It’s almost as if – before and after passing the bar – there is an implicit assumption we’re all still using pencils and paper and so the underlying tools are somehow irrelevant.

As a law graudate, I know how to craft a contract as far as the document’s component parts, but I may not know how to actually create the document in a word processor efficiently, or reuse it properly.  I understand that time management and communication are critical both to business success and client success, but, despite evergreen legal tech articles, I am not sure which tool to use or how best to use it.  It’s not just law grads:  the 2016 Clio report finding that solos using it’s software were billing less than 2 hours a day raises some questions.

That cloud-adopting lawyers are still able to translate so little work time into revenue suggests that it’s not the adoption part that is crucial.  Perhaps the paper-and-pencil lawyers are doing a better job of converting sense into dollars.  But that’s backward to how we think about the benefits to increased information and technology.  We have access but not aptitude.  We value adoption and innovation but not training and expertise.  As a profession, lawyers don’t seem to have a good answer for how to bridge that gap.  Nor do I.


David Whelan

I improve information access and lead information teams. My books on finding information and managing it and practicing law using cloud computing reflect my interest in information management, technology, law practice, and legal research. I've been a library director in Canada and the US, as well as directing the American Bar Association's Legal Technology Resource Center. I speak and write frequently on information, technology, law library, and law practice issues.