Time to start auditing outside counsel’s technology skills

Companies audit their third party service providers for many competencies, like security. Why not the competence to do their jobs efficiently?

That’s what D. Casey Flaherty did during his tenure as inside counsel for Kia Motors America. He wrote about his experience for the Jan. 24, 2013, issue of Law Technology News.

Read his opening salvo from Kia Motors Tests Outside Counsel Tech Skills: “I audit outside counsel’s competence with technology. The audit is driven by fear — fear of wasting company money on low value-added work. The audit tests my hypothesis that lawyers, as a group, are deficient in their use of technology and that a direct consequence of this incompetence is that clients, like my company, Kia Motors America, outlay outrageous sums for unnecessary busywork.

“Thus far, my audit has confirmed my hypothesis.”

If the article to that point hadn’t chilled the hearts of outside lawyers, his next statement certainly did: “Failing my audit has repercussions.”

His words don’t reflect his current attitude. “I don’t come from the ‘law departments good, law firms bad’ school of thought,” he said during a 2017 episode of the Building NewLaw podcast.

In this spirit, Connie Brenton set up technology certification opportunities for her in-house legal team at NetApp, Inc., where she serves as the legal department’s senior director of operations. “It made sense to understand how our partner law firms are being trained,” she said. “It’s another way for us to collaborate with outside counsel.”

While a prominent voice in that conversation, Flaherty and Brenton aren’t the only people talking. There’s a growing chorus of in-house counsel, outside counsel and vendors addressing this costly elephant in the room.

Types of technology competence

There are at least two categories of software in a lawyer’s work life. Industry-specific tools like case management and predictive coding software rarely appear outside the legal field. At the other end of the spectrum, most lawyers also use standard business software during every workday. Examples of the latter include Microsoft Office applications, Adobe Acrobat and, more subtly but no less importantly, the operating systems (e.g. Microsoft Windows, Apple macOS) that run work devices.

Standard business software to master

Dominic Jaar buys Flaherty’s arguments. “Lawyers should master the full Microsoft Office Suite,” he said flatly. “Word, PowerPoint and Excel are the equivalent of pen and paper back in the day.”

“I would add Microsoft Project,” continued the Canadian advisory leader, clients & markets for KPMG Canada. “Law firms ought to add a layer of project management to engagements to do all tasks in the most cost- and time-efficient ways.”

Upon further reflection, Jaar added PDF manipulation, from annotations and highlighting to comparing documents and other production features.

“This is the baseline 21st century toolkit for every lawyer,” Jaar said.

How to waste a client’s time

Jaar recalled instances when he sent Word documents to certain lawyers for review and received annoyance in return. Those lawyers would print said documents, manually annotate the printouts, scan the documents to digital format and return them — instead of using Track Changes. “Someone needs to manually retype all comments made,” he said. While perhaps less galling than overbilling, such practices foist inefficiency onto the client.

Microsoft Word woes

Flaherty has moved on to found Procertas in order to bring the benefits of his Legal Technology Assessment to other law firms. Flaherty can track not only what people excel in but where they struggle.

“Probably the most frustrating thing is how few people can use Word styles,” he said during the Building NewLaw podcast. “Styles are the foundation of any complex document, which is what lawyers put together and work in.”

“That leads to all kinds of other problems. Contracts (rarely) have automated cross-references. They were typed in, and they have errors in them all the time.”

Proper use of Excel

Flaherty also noted a lack of Microsoft Excel expertise among attorneys. This suggests “there’s a distance between how business is done and the lawyers.”

James Walker would like to see lawyers learn Excel’s strengths and weaknesses. Walker learned Excel during his consulting days. “It’s great for financial modelling, for doing a budget for a client,” said the partner at American law firm Richards, Kibbe & Orbe LLP.

On the flip side, “If you just gather data, particularly when you need to input lots of detail … Excel use can cause problems,” he explained. “It’s not great for some of the wordy things lawyers do.”

Walker also cautioned against the danger of overconfidence in Excel. “If you don’t understand some of the basic features of Excel — hiding columns, showing columns, splitting screens and understanding what happens when you manipulate data while not showing the full screen — you can run into difficulty.”

This is the first column of a three-part series. Part two will explore the balance between the need for technology competence and the proper focus of a lawyer’s work. Part three will discuss training and certification options to help lawyers master their work tools.

This article originally appeared on The Lawyer’s Daily website, published by LexisNexis Canada Inc.

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