Solo/Small

On Tech Competence (Expert Roundup)

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Being a lawyer in an increasingly complex world is becoming increasingly complex. Legislation and regulation reach into more complicated and global human interactions. Lawyers are just trying to keep up.

Many of my solo friends respond to this shift by generalizing, acting as a sort of primary care physician with passing familiarity with many issues; others deal with the complexity by digging deep in one legal area, connecting with others who also focus on their own narrow specialty.

However we respond, we’re all trying to define what it means to be a lawyer in this modern context. What skills and knowledge areas should law schools train on and states require for licensure? What does it mean to be a modern lawyer?

The Experts Talk Tech Competence

Many states have expanded the definition beyond the traditional by requiring competency in basic technologies. According to Bob Ambrogi’s tally, 36 states have now adopted some kind of duty of technological competence.

But how is that requirement playing out? Are states’ new rules substantively impacting lawyers’ tech know-how, or is it all just window dressing? Assuming tech competence really is fundamental to a modern definition of lawyering, what changes can be made to how we regulate and educate lawyers in this vital area?

To get an update on the state of the technology competence requirement, I reached out to several friends in the legal tech space. Each shared important ideas about how we’re doing and what we should tackle next.

Here are their thoughts…

Nick Rishwain

VP of Business Development at Experts.com, co-creator of LegalTechLIVE.com.and CMO of TextALawyer

How do firms keep up with tech competence without distracting from their work? Surprisingly, I recommend starting with social media. You’ll get informal networking, marketing, and basic tech training all in one place. Since most legal tech tools copy the user experience of more mature platforms, engaging on social media will make your legal tech tools easier to use. Marketing is already part of your business practice so start there.

Michael Edelman

Founder at Fabulas.io

I think there is value in setting a regulatory floor, if only to catch the infrequent but egregious cases that arise at the fringes. Given the intense speed of technology changes and the glacial speed of amendments to rules of professional conduct, regulators shouldn’t be too specific in defining what it means to be “tech competent.” A “reasonable attorney” standard offers the right amount of flexibility per pound of protection. Rather than wasting time and money hemming and hawing about the specifics of a given rule, we would all be better off if regulators invested their resources in bringing themselves and the community up to speed regarding how technology and practices relate. That way, when a case arises that requires intervention, we will all be in a good place from which to recognize it.

Nicole Bradick

CEO at Theory and Principle

Part of tech competency is being aware of the tools that are on the market that can help increase your own efficiency, improve the client experience, and improve outcomes for your client. I recently saw a really interesting talk on whether using things like predictive analytics tools to help clients decide whether to settle or go to trial fit within this competency requirement. I don’t quite think we’re there yet.

Sam Harden

Project Manager at Measures for Justice, Development Team Leader at the Florida Justice Technology Center

Let me play devil’s advocate – does any of this increase the numbers of people able to effectively access justice? Aside from the gasp-inducing one-off stories about lawyers still using fax machines and falling prey to email phishing and ransomware hacks (things which aren’t unique to lawyers), I haven’t seen anything showing a large percentage of lawyers can’t do things like operate a computer or browse the world wide web. I have yet to meet a lawyer within 20 years of age of myself who doesn’t know how to send an email. In truth, there are two main concerns behind instituting the duty of tech competence: lawyers wasting client time (i.e. overbilling) through inefficient use of technology, and lawyers exposing sensitive client information through technological incompetence. The first is solved by clients taking their business elsewhere; the second is harder and won’t be solved by 3 hours of canned CLE. Perhaps clients would benefit from some kind of sanctioned certification program, similar to the Black Duck program.

Mark Unger

Consultant and Founder of the Unger Law Firm

In this iteration of ‘new law,’ I believe that if we don’t adapt, we die. The tech competence trend, while vague, will become more specific in the same way that law does: with interpretation, either in case law or writings and presentations in CLE. While there has been a marked slowdown of legal tech CLE, there has not yet been an uptick in enforcement of those that might ignore this. We don’t like change. Because of this, and because there has not been either a huge payoff (legal spending is up) or a hammer (judges have not come down on attorneys for not chasing tech or efficiency), the only way it will change is from a combination of slow national trends trickling down along with another crash that results in forced efficiencies. When the rain stops or slows, those that are efficient in their core business space will be more successful.  

Dan Lear

Founder at Right Brain Law

From its very inception, the technology competence requirement was criticized as having no teeth. Sure, keeping abreast is important but it’s pretty hard to know if a lawyer has done that (or worse, hasn’t). Similarly, while it’s great to require lawyers learn about technology, a technology MCLE requirement makes the same mistake that most CLE does: it confuses time for competence. It’s hard to measure professional legal competence in many areas. Much of legal practice is situation-specific, requiring knowing the right thing to do in the midst of a great deal of competing or inconsistent information. But not only can technology competence be taughtit can be measured. So, sure, the fact that we have a loose attempt at a duty is a meaningful step. But lawyers don’t really pay attention to something until it affects their ability to make a living. If we really want to see progress, let’s introduce a data-driven minimum standard of technology competence in the legal profession and let’s test to the standard.

Jess Birken

Consultant at Hack Your Practice and Founder of Birken Law

I’m part of the contingency that believes that Tech competency has always been required. Rule 1.1 of the model rules includes a lawyer’s duty to stay abreast of changes to the law and the practice of law – and that includes technology. As an industry we tend to take the most conservative approach to avoid malpractice, but any strength taken too far becomes a weakness. Lawyers’ desire to be careful and conservative has become the thing holding the industry back. We’re actually creating malpractice opportunities now by not adapting. Lawyers are smart. We can do this. Small changes make a big difference and they add up over time. Anybody that has the time to figure out how Netflix works or use their iPad with their kid can make time to learn a new technology. It’s no different than any other aspect of life. You just have to make a little time for it.

Chase Hertel

Deputy Director and Counsel at the ABA Center for Innovation (who was careful to remind me that his views are his own, not the ABA’s)

I encounter this question when I talk to bar leaders, most of whom are small and solo practitioners. They always say, “How can we improve when it comes to technology?” My response is usually something like this: “Be a master of the tools you’re already paying for and using every day.” This usually catches them completely off guard because they thought I was going to say something like blockchain, AI, or the like. I don’t know a law office that doesn’t use Microsoft Word, but I know of very few that have truly mastered it and fully take advantage of everything it can do. Mastering the tech tools lawyers use requires an investment of time, and you can’t do it in a one day CLE. It’s simply not possible. But dedicate twenty minutes a day to mastering a tool you already use to serve clients and you’ll have increased your tech competency in a meaningful way.

The Take Home Message

I see in each of these responses a call for lawyers to not wait for a technology requirement. The regulatory bodies that dictate what it means to be a lawyer are slow and often disconnected from client expectations. To do well as a modern lawyer, start with what your clients expect from you.

At Casetext, we believe that legal consumers expect genuine expertise when the situation calls for it. Satisfying that expectation requires focusing on the craft of lawyering, and certain technologies can really help you do that.

What technology can you add that will help you generate more informed insights for your clients? Are you a litigator whose arguments succeed when a judge prefers the precedents you cited, or are you an advisor who needs quick context to help clients see possible red flags in the trends of recent cases? If so, we’d like to show you the power of our modern, AI-enabled tools.

However you implement technology, this Expert Roundup ultimately advises you to focus on the tools that make you best at keeping your promises to your clients, and that you then do the work of learning to use them well.

Pick the tool that helps you deliver, then master it. That’s the safest kind of tech competence.

Mike Whelan, Jr. is Managing Editor at Casetext. He spends most of his day advocating for and training solo and small firm attorneys in topics as varied as writing, marketing, design, and collaboration. He was a solo attorney himself for several years after graduating from the University of Texas School of Law. He lives in the Kansas City area with his lovely wife and four rambunctious children.