States increasingly require technology competence as an ethical matter, but lawyers famously resist technology. Why, and how can we rethink things? Curiosity is not among the first traits associated with lawyers. Blame it on stare decisis but the traveled road is seen as the safer road. That posture is even more pronounced in respect of technology where most lawyers qualify as “laggards” on the Technology Diffusion Curve; that is, dead last to adopt new technologies.
Ethical authorities have been on a quest to change all that. Last week, California became the 39th state to adopt the ABA Model Rule approach to mandating technology competence as an ethical matter. It makes sense. There are the more traditional concerns where we know technology competence matters such as confidentiality of communication and secure data management, and in the realm of actual case preparation, defense or prosecution there is eDiscovery.
But how much further might the technology and the ethical duty go? No one knows and it depends, as a lawyer might say. Still, deliberate reflection on the possibilities is probably within the purview of ethical mandates even where adoption in any one matter might not be. So let’s take a closer look.
1. Efficiency, Ego & Bias
One category of technology competence, or necessary awareness, intersects with another ethical mandate: efficient, cost-effective delivery of legal services. Automation and Artificial Intelligence (AI) come immediately to mind. Manual document drafting is notoriously laborious. But an automated workflow, increasingly powered by AI, changes all that for basic contracts to complex M&A transactions and beyond. That means lower cost for clients.
But is the work product as good? Lawyers ask that question all the time and they should, both as a competing ethical matter and because a good result is good (repeat) business. The problem is lawyers have strong psychological reasons to declare ‘nah, can’t be’ for reasons that have nothing to do with quality. Asked and not answered, if you will.
First, ego is at play and we lawyers have a ton of that — smarter than everyone and most certainly smarter than some dang computer contraption. The second reason takes us back to where we started — most lawyers are technology laggards. To summarily dismiss an individual tool therefore fits within our world view, it’s comfortable and above all else it’s safe. Finally, we’re just Way Too Busy! to figure it all out. That’s right, too busy to figure out something that will save us time. Smarter than everyone else, eh? We really need to check these impulses.
The truth is reputable providers of technology are innovating with tools that are not only as good but even better than a human-only touch. This is not surprising. Humans make mistakes all the time, especially less experienced lawyers, good technology is less prone. Another advantage — technology can substantively widen the view: e.g., “see” more contract clauses, more deal documents than even the most experienced lawyer ever could across time, geography, industry and so forth. A wider view means more options to advantage your client.
2. Transformational Impact
A second category of technology exploration is less about efficiency and more about leveraging technology to win at whatever the cost where the stakes are high. Virtual reality (VR) is probably the most extreme, exciting example with tons of potential.
Trial lawyers are always painting a picture. The work is mostly an exercise in story-telling. Visuals therefore matter and especially so in jury trials.
No PowerPoint, pie chart, picture or video can explain, conjure up a feeling, or put the jury “at the scene” quite like VR might. Murder scenes may be recreated, and accident scenes have been recreated to demonstrate the dangers of the driving terrain, to prove assumption of risk. These are just a few examples.
Sure court rules on this technology vary, the rules of evidence can be a hurdle, authentication is complex and it’s all crazy costly. But transformation impact is often worth the effort and it should at least be given deliberate consideration in the right case.
This is nowhere near a survey of all or even one-eighteenth of the possibilities for technology and the business of law: I’m Way Too Busy! for all that. But it is a call to reconsider our worst impulses as lawyers, as technology continues to get reframed as an ethical matter by our governing bodies.
It also calls on us to consider technology from our clients’ point of view, something we should always strive to do. We hate technology. We are risk-averse. We are too smart for it. And We certainly are Way Too Busy! to figure any of it out. Clients? They want to save a buck and win, that’s it, and that’s precisely what legal technology is designed to do. So we had better embrace it, unbuckle and take the road less traveled now and then, check our ego, and for God’s sake shut up about how busy we are.
