Lawyers and the Challenges of the Electronic Age

Recently I was reading a commentary by a young lawyer that was on working conditions. The commentary was not on technology, but it raised a really important point that is often missed, and indeed that relates directly to work environment.  As this blog tracks changes on an historical basis, and this is a pretty big one, it's well worth looking at.  That is, how has computerization and the Internet, both of which we've explored here at great length in the terms of the law, impacted work expectations vs. reality.  It's a bit disturbing in some ways.

 Lawyer, in this case an African American lawyer, the way it was.  Now this scene would be very rare, in a suit and tie, he's going through the books, the way that thousands of lawyers once did.  Now it'd be rare to find a lawyer dressed like this, and in a law library.

First of all, let's look back a bit.  Unfortunately, in doing this, I have to jump around a bit, so bear with me.

Law firms have been around as long as lawyers, that's no surprise. But the nature and position of lawyers within firms is quite a bit different now as compared to earlier eras.  If we go far enough back, let's say into the late 1700s, we'd find that most lawyers worked as general solos or in firms of just a few men.  There was no "Big Law", that category of firm so beloved by the ABA and whose fates sends the ABA into fits of angst.  A lot of other things were different too, and one of them was, by and large, that young would be lawyers basically apprenticed with firms "reading the law".  There were some professors who taught law but the big law schools, or for that matter, the small law schools, didn't exist.

This type of firm basically evolved along into the 20th Century, with there of course being modifications and changes depending upon where a person was, and the big firms, those darling beloveds of the ABA, did start to appear.  But much was different about the practice at the time.

Now, all lawyers kept libraries depending upon their ability to do so. And indeed, the law library remains the stock visual element in film in depicting lawyers, in their firms, at work.  And for a real reason.  The first thing any lawyer did in his own office was to resort to his own library.  If answers couldn't be found there, he might resort to the county law library or, if there was a Federal court, the Federal Court law library.  Beyond that, and perhaps surprising in context, the value of libraries was so appreciated by lawyers that it was very common for lawyers to use the libraries of other firms.  All this was true when I was first practicing.

 Typical court law library, this one in a Federal Courthouse in Seattle.

Now, leaping back to law firms for a second, up until after World War Two, while there were very large firms in big cities, by and large most law was quite local, and this remained the case well into the 1990s.  What wasn't the case, however, was the predominance of the "billable hour" and the business model of the modern firm.  

Billable hours have actually always existed to some degree. There's a reason that Lincoln said "a lawyers time is his stock and trade".  But following World War Two, and really more into the 1960s, there were other models as well.  Most of those simply died off, and in spite of the fact that some lawyers propose other models from time to time, the billable hour is firmly entrenched and it isn't going anywhere.  Lawyers, charge by the hour.

 

 Private lawyers' club library, New York.  This club apparently had quite the reputation at one time, but I'm not sure if it is still around.  If somebody knows of The Lawyers Club in NYC, let us know.

Now, getting back to the libraries, when we consider big projects or big litigation prior to the real dominance of the Internet, what that meant is that young lawyers assigned to research projects, or for that matter more established ones who were doing the same, spent hours and hours in law libraries reading, and then reducing their research to writing.  To give a typical example, a senior lawyer on a case would assign a project or a brief to a young lawyer, who would then spend several days, perhaps even a week of eight to ten hour days researching it, and then he'd reduced that to a written product by dictating (not typing or writing) his work, based upon the copies of cases he'd made and his hand written notes.

Common office scene up until the 1990s.  Secretary (in this case blind) typing while transcribing.  You can still find a few lawyers using Dictaphones, but for the most part this process is one of the past and a lawyer's first product is rendered in print from a computer.  Quite a few lawyers my age and younger, and I'm not young (age 52) generate nearly all of their finished written product themselves.  Voice has returned and is returning, however, in the form of dictating into the computer itself.

It took a long time.

Inside of firms, this was the norm for decades. Firms became highly acclimated to it, and so did the lawyers that grew up in that environment.

And what that meant is that a young lawyer assigned to very few cases actually, simply by default, engaged in a lot of work and thereby rendered quite a return. It wasn't some sort of conspiracy, it just was.  So, to put out one substantial summary brief a single lawyer might have 60 to 80 hours of time.

Now, that's all changed.

With the computer and Internet, the law library is a thing of the past to some degree.  Most more substantial firms still  have one, but quite a few solo practitioners do not.  And they don't need them.  If they have a Westlaw or Lexus account, they have the equivalent of a massive case law, law library, at their fingertips. They also have access, if they are willing to pay more, to the treatises that used to be one of the real pluses of a bigger law library.  But case law is a big deal.

Frankly, I think the product isn't as good as it was before the computer, but the speed at which it is produced is massively increased. Given our prior example, that 60 to 80 hour work product is now reduced to 20 or so hours.  That is, the average good young lawyer can probably do in 20 hours which once took 60, in terms of research and writing.

So one good lawyer is much more efficient than ever.

But, as the business model never contemplated this, and as most of the bigger firms are dominated by lawyers who came up in another era, and as overhead has not gone down, the work hour expectation has not been reduced.

This was the point of the complaining young lawyer.  Wherever he was, he was complaining that where he worked the older lawyers had expectations based on what things were like when their careers started, and things were now different. I'd never considered that, but that's really quite true.

Added to that, however, the younger lawyer probably hasn't considered that while libraries were always expensive, a time has gone on, overhead for firms has increased in every way. So, the business model is not only based on an earlier era, to some extent (and definitely not in all firms) but it may be necessary.

Indeed, the only area this isn't true is for solo practitioners, for whom costs should be way down. With a Westlaw account their libraries are as good as most big firms, and now that there's no real need for scriveners or secretaries, the one having yielding to another, and both to some degree to the computer, in a solo's office, they ought to be more competitive than ever.

All of which makes the ongoing super sized white shoe firms a real oddity.  They do keep on keeping on, but mostly it would seem due to reputation and history.  Mid sized regional firms ought to be a lot more competitive in terms of product than the big firms the ABA has on its perpetual worry list.  True, the internet lets these firms penetrate everywhere, which is something they do use to their advantage.  But the extent to which the advantage is perceived, as opposed to real, is another factor.

Anyhow, by way of that young Internet lawyer's example, he probably has to be working on a lot more things at one time to keep up his requirements than his fellows of 30 or 40 years ago.  And that may explain why so many of the "Millennial" generation lawyers don't stay in firms long. It wouldn't be the only reason, but part of one, I suspect.

On a totally different topic, another interesting is problem has become that young staff members becoming so totally acclimated to the electronic age that they operate in the assumption that the law, in terms of materials and evidence, is in that age.  It isn't.  I've really been noticing that recently.

Many documents are produced only in the electronic form now. A disk comes in the mail, or a thumb drive, or maybe somebody just dropboxes records to another lawyer. That's all well and good, but at the broken bottle end of the law, depositions and court, paper rules.  You can't turn to an witness and say "See!  See Mr. Witness, here in an electronic form within this piece of plastic is that letter that you wrote that says. . . .".

Nope, that's happening with paper.

But that is, interestingly enough not obvious to the totally electronically acclimated.  Recently I've noticed that I have to say "print out" rather than "give me" when getting ready for a deposition, or somebody will think that giving me a thumb drive is adequate.

Indeed, I'm not  the only one, I suspect, that's experienced this, as I've been in more than one deposition recently where a lawyer will say "look at this photo on my computer".  That's a totally worthless line of questioning in a deposition.

While on the topic of electronic acclimation, I've now noticed that the cell phone checking addiction that is common with teenagers has spread to lawyers. I've been in more than one deposition recently where lawyers are continually checking texts on their cell phone or looking at it.  I'm convinced that cell phones are a truly hideous invention and won't be good for us long term, and aren't good for us now.

Finally,  I note that a debate has broken out about a recent study which concluded that if legal services were fully automated the population of lawyers were correspondingly drop 13%.

Not so say some, including the New York Times.

Perhaps the missed story is that this has already happened, and impacted the lawyer population, and lawyers incomes, already.  I've addressed this above, basically, but automation is hitting big time and exactly at that time during which there is a surplus of lawyers.  If one lawyer can do the work in 1/5th of the time, this has to have an impact.  It hasn't reduced the population of lawyers yet, but like gasoline, lawyers are a surplus product that we continue to oddly generate irrespective of a lack of demand. We could do some things about that.  We could make the bar exam tougher, but instead we're making it travel, like the UBE, arguably making the situation worse.  Or we could reduce the number of students going through the system, indeed we could probably reduce that by half and not suffer.  Or we could make a legal education tougher.  There seems to be an idea it's really tough, but that's not really true.  Given recent opinions by the US. Supreme Court, making law school tougher and inserting some serious courses on the philosophy and history of law might be a good idea.