Cyberweek Fall 2006 September 25-29

Introductory Comments

I'm Edward Rholl, President of Transformative Law seminars, an online educational provider and I'm pleased to address you today. I will share a few comments about lawyers, technology and the general malaise our profession seems to have fallen into in recent years as so many factors have brought change to the way we work.

I'm also pleased to Chair the E-lawyering portion of the 2006 Cyber Week activities and I'd like to spend a few minutes discussing some of the great material we have for lawyers interested in how technology has and continues to shape our business.

Nationally known attorneys Richard Granat, CEO, Epoq, US, Inc. and Co-Chair, E-Lawyering Task Force, American Bar Association and Professor Richard Susskind, OBE, have produced a video podcast about principles and practices related to e-lawyering that everybody should view. Podcasts are growing rapidly in popularity as a way to communicate, educate and inform-and widely distribute messages across the Web in a truly viral manner. As you view the podcast, begin to explore how you can use this simply, relatively inexpensive technology to grow your practice, communicate with clients and share ideas with peers.

Larry Bodine, President of Law Marketing.com and one of the most in-demand legal marketing specialists will join me in a podcast conversation delivered live from a law, technology and marketing conference Larry is attending this week. Larry will be discussing some of the latest trends in technology-based marketing that law firms are beginning to employ.

Also, Catherine Sanders-Reach, Director of ABA Legal Technology Research Center of the American Bar Association will present details from the latest research findings conducted in the area of law firm usage of technology. Among the findings Ms. Sanders-Reach will discuss is that many lawyers and firms have purchased a large amount of the latest technology products, but few use these tools consistently or to the extent possible. These findings provide a terrific lead-in to what I'd like to discuss today.

The Paradox of Technology & Unhappiness in the Legal Profession

Modern Internet, office automation and communication technology promised to make our lives easier, even happier. In some ways it has done exactly that. Yet paradoxically, exactly the opposite is also true. Let's take a closer look at this.

• Today, lawyers work longer hours than ever before, partly because we can do so much more in a day so we've taken on heavier and heavier workloads.
• Client's expectations about the timing of work product continue to rise because they, too, know that more can be done in less time now.
• The number of communications per day that lawyers must read and respond to has dramatically increased, because there are so many more ways to get messages through to lawyers.
• Client expectations and oversight of bills now requires that many lawyers spend hours weekly simply itemizing in detail everything they have done for the client, minute by minute. Technology enables detailed, organized billing, but detailed, organized billing makes it more difficult to hide, fudge or estimate time spent. Therefore it requires more of us, not less: a higher level of integrity, especially in the face of the demands of our employers who want to see maximum use of every hour of every day.
• Calendars are jam packed. Answering machines are constantly indicating that unread messages are waiting to be heard. Cell phones have become a required tool that keeps lawyers potentially connected to clients and peers all the time.

In the face of all of this many lawyers report a deep dissatisfaction with the ubiquity of technology systems and even a sense of despair over the way technology appears to dominate their lives. This is certainly an important element in the pervasive and well-documented unhappiness among lawyers. Are we unhappy because of technology and the changes it has wrought, or we unhappy in spite of technology and the positive things it has brought? The answer seems to be both.

Consider this excerpt from "How Lawyers Lose Their Way," by Jean Stefancic and Richard Delgado:

General surveys reveal a grim picture of an unhappy profession, with a high rate of burnout, job dissatisfaction, divorce, depression, suicide, and drug and alcohol addiction. Job stress runs high, with unrealistic demands for billable hours, narrow specialization, inadequate opportunities for creativity, and intense competition for jobs, clients and partnerships among the top laments. Many lawyers regret having entered law at all and contemplate leaving for another field. Every year about forty thousand actually do. an entire new industry counsels lawyers who are unhappy with their work. Counselors report that miserable lawyers come to them in droves with almost identical complaints: I feel like a hamster in a cage. I am dejected and depressed. Life is not worth living.

A grim picture indeed! Certainly, technology has played a role in this. Technology has fostered the rise of modern law firms where more legal work has become rote, formalized and specialized. It has fostered increased demands for longer hours, perfection in work product and the transformation of the profession into a business industry. At the same time it has vastly increased the capabilities of individual lawyers to perform, work together, communicate and expand their marketing reach.

Given all of this it can be said that since technology fosters both discontent and opportunity it isn't the technology itself that is making lawyers unhappy: it is our relationship to it-the way we use it and the way it has come to use us. In his highly critical assessment of the profession in "The Destruction of Young Lawyers," professor Douglas Litowitz gives us a stunning example of the negative relationship to technology, in this example a fax machine that many lawyers share:

I became a lawyer to have independence and control over my work, but I've become a slave to the fax machine. It ruins my life. I send something out to a client, go to the bathroom, and by the time I get back, the document has returned with changes. I send out a redlined version and it comes back again-the document is never finished. I might as well be chained to the fax machine. I have degrees from Princeton and Harvard so I could work in a civilized profession, not to be enslaved to a machine like a factory worker. I'd love to smash it to bits.

There is nothing inherently evil about fax machines. It is our relationship to these devices that causes us to feel like slaves. It is no wonder that lawyers resist technology. As we will explore later, lawyers share the characteristic of a desire for autonomy in far greater numbers than does the general public. Technology can enslave us if we allow it to do so. In the name of billing more hours, producing more product and producing it faster, many lawyers have indeed lost their autonomy, their sense of self-direction and their desire to continue in the profession.

We must come to our senses about the role of technology in our professional lives so we can understand the problem in its proper context. Technology is not the problem. Resisting it is not a solution, or really even an option any longer. But that does not mean we must become slaves to it. Instead, we must learn to use it more wisely.

A year ago I undertook an extensive customer survey for a law office software maker. Our goal was to gain clarity about what factors caused law firms to make purchasing decisions. The result of our research showed without question that most firms purchased Abacus software due to an actual or potential crisis such as a missed filing deadline or a fee dispute. Absent a crisis, law firms preferred to cling to old, inefficient practices for billing, calendaring and scheduling and communication. Even firms that do purchase law office automation technology rarely use it to its fullest extent.

Beyond the personal dissatisfaction that lawyers tend to blame in part on technology, why else do we resist it? One factor is surely the fear of lost productivity due to changing the way things are done on a daily basis. When we adopt new systems there is a lag time until we master them and become comfortable with them. Lawyers report that it is simply easier to stick with what they currently use-though staffers almost unanimously wish to have the latest systems. Lawyers tend to think that it is simply never a good time to make the change.

Another factor in the resistance to implementing new technology in law firms relates back to the fear of increased demands that modern technology seems to have created. Lawyers feel they are already stressed to the limit with deadlines, work product demands and incessant requests for information from clients. Many view new technology-specifically enhanced communication and productivity technology-as simply a means to further increase the gap between growing client and other demands upon their time and their ability to do their jobs. In short, many lawyers view technology as a barrier to professionalism, not as a bridge to success.

It is this mindset, more than any other factor, which keeps law firms generally lagging behind other businesses in their adoption and use of modern technology. However, this mindset-that technology is an impingement, a hassle, a productivity killer-reflects only the surface of a deeper issue. Lawyer's complaints about technology cover something else-namely that technology connects people to one another more quickly and closely and this fact is at the heart of why lawyers as a group resist technology: most want more, not less distance from clients, peer and coworkers; most want more space from other people's demands, not more ways to be connected to others.

So it turns out that the reasons lawyers give for resisting technology have little to do with their real fear of it. This is not to say that there is no validity to the notion that our technology-based world has increased expectations about work product, provided the means and grounds for clients to examine and criticize billing practices, or provided people with myriad ways to force communications through to lawyers. It has wrought all of these things. The point is that technology has wrought this upon every person, profession and business. So why do lawyers lag? It turns out that we are put together differently, as a group, than the rest of the population.

Technology & the Lawyer Personality

Dr. Larry Richard, a Director of Hildebrand International conducted an in-depth research study comparing eighteen key personality traits in the general public and in lawyers. Dr. Richard found that lawyer's personalities differ from those in the general public in six key areas. Interestingly-but not surprisingly-three of these key traits directly correlate to my contention about why lawyers resist technology.

First, 89% of lawyers have a high degree of the trait of autonomy compared with only 50% of the general population. Lawyers like to be left alone to do their work, don't like a lot of input or interference unless it is specifically asked for, and certainly don't want to be told how to do their work. Lawyers want the information, the facts and whatever resources they'll need for a job and then want to go and do it. Technology provides "interferers" with many new ways to get in the door. E-mail, pagers, voice mail, cell phones all provide access points. Technology can make autonomy-oriented people feel trapped and constantly impinged upon. Thus, lawyers may well resist having, using or at least disclosing some or all of these communication doorways to all or certain clients and peers.

Second, 71% of lawyers have the trait of urgency as compared to 50% of the general public. This translates into the poor "bedside manner" many lawyers are noted for. Out of a desire to get closure, clarity and uncluttered information, lawyers are often perceived as cold, calculating and uncaring in their communication. Lawyers may feel this way of being is paramount to getting results. However, people can be left feeling unimportant or even offended. In a recent article in Wisconsin Lawyer, outgoing Bar President reminded lawyers that people will remember you for how you treated them far longer than they will remember the result you got. If results-oriented urgency is a lawyer's dominant personality trait technology can make it even worse. Lawyers may inherently understand this and it may be a big reason that many resist using it, especially for communications.

Third, only 7% of lawyers have the trait of sociability compared to 50% of the general public. Sociability has two facets. First, it is that part of most people-but few lawyers-that is genuinely interested in people as people. It is caring about people simply because we are willing to share their pain. Second, it is the desire to be among people, to be involved in their inner lives and to be willing to share our own pain-in short, it is compassion. Again, lawyers typically eschew compassion in favor of objective facts and strategy for resolving problems. There is a time for resolution and lawyers are expert at it. But there is a time for commiseration and compassion and it is missing in many lawyers.

This research tells us all we need to know about why lawyers-as a group-resist technology. Our personalities tend toward autonomy and urgency and away from sociability. Technology tends to decrease our sense of autonomy and increase urgency and social interaction. Add to these personality traits the experiential impact of technology on lawyers: increased demands for work product completed in shorter time frames and for lower fees, increased ability for clients to send communications to us and increased scrutiny of how we bill every minute of the day and the situation is only exacerbated.

Solutions

So, if we want to champion the role of technology as a means to create better lives, happier lawyers, increased justice and global social interaction, how do we do so in the face of this resistance?

First, we have to engage more and more lawyers whose resistance to technology is lower or even non-existent. This includes younger lawyers who have grown up ensconced in a technology-centric world. It also includes lawyers whose personality traits are more moderate and more closely aligned to the general public. And it includes those lawyers who feel their own resistance but sense a greater mission or purpose in moving past old blocks and into a new paradigm. This is at the heart of the Internet Bar mission.

Second, we must retrain lawyers-large numbers of lawyers-about how to properly use technology. Proper use in this context cannot be separated from teaching new communication skills. Lawyers will simply have to get comfortable and then expert at using new communication channels and methods that the rest of the world is quickly adopting as standard. To do this, many lawyers will have to experience a period of cognitive dissonance as they move through internal, personality/identity based characteristics that get in the way. This is no small task and, essentially, it means transformation at an individual level, prior to change at the institutional level. It requires a desire to change or a fear of not changing. Either way, this desire or fear must be stronger than the urge to continue to embrace the status quo.

Third, the profession itself must begin to find a new mission in the world that is greater than simply business growth. 150 years ago Abraham Lincoln urged lawyers to be healers of conflict because not only would this serve to create communities that are more fulfilling to live within, but would also generate long-term good will that would lead to more business. If we as a profession want continued economic growth-and there is nothing at all wrong with this very human desire-then we have to remain widely relevant to societal goals. At this time, only the truly deaf or blind are unaware of the pervasive changes sweeping the planet. Nearly everyone is made aware daily of the cost of conflict, be it personal or global. If lawyers continue to be seen as agents of creating and extending conflict, we will become less and less relevant to the local, national and global economies. People will find other ways to get the results they want and need in a host of areas in which lawyers traditionally played key roles. This is not some future prognosis-it is already happening all over the place.

Fourth, we must seriously reconsider how we treat one another within the profession. This need is most acute in two areas. First, employers must find ways to use the machinery of technological advances without relating to their employees as just another cog in the machinery. Lawyers (and staffers) are human beings not machines. If we only use technology to constantly increase the demands we make on our human resources we will find that an entire generation of lawyers-truly the future of the profession-simply gone. Second, we must avoid the temptation to use technology advances to cajole, trick, overburden or intentionally ruin our peers all in the name of victory. We will remain miserable to the extent that we cause misery. Technology can help us do just that, but we don't have to take the bait.

We Must Transform of Become Irrelevant & Marginalized

There is and will probably always be a need for skilled litigators. Conflict is in and of itself not an evil to be eradicated. However, to the extent that lawyers needlessly create and expand conflict among people and businesses they simply push the envelope further towards an eventual-and perhaps not so far off-societal reckoning. To the extent that much litigation is seen by average people as well as corporate CEOs merely as a big business for lawyers, the profession as a whole will increasingly be out of touch with what its clients really want. To the extent lawyers add to personal and societal misery on a daily basis, they will individually feel the impact on their own lives in the form of stress, depression, alcoholism, drug addiction, burnout and failed relationships.

Among the changes technology has already wrought on our profession are myriad alternatives for getting and using legal information as well as resolving conflict. Most lawyers are already aware of the vast array of legal information available online or in books, videos and DVDs that purports to help people handle their own legal matters without counsel. Some lawyers may be aware of the successes in non-lawyer-mediated dispute resolution on websites such as eBay. As stated previously, technology has the effect of bringing people into closer communication-at least bringing people closer to information they want and need. Lawyers are no different from other mediators like stock brokers, fundraisers and lenders. Each of these groups is experiencing a reduction in influence and revenues due to technological breakthroughs that allow people to get information and use it without any-or at least as much-assistance from so-called middlemen.

So the challenge for lawyers deepens. Not only do we as a profession tend to avoid implementing and using much of the new technology the rest of the world is fast adopting, but people-our clients-are finding more and more that perhaps they don't need us after all. To this, add the relatively new, but growing, trend toward non-lawyer-mediated conflict resolution and the trend toward mediation and arbitration clauses in business agreements. Finally, add the lousy public perception of lawyers and the unprecedented amount of legal information available to people. Together, these factors point to a lessening of the influence and power of our profession along traditional lines. Again, there will always be times in a person's life in which skilled legal counsel will be sought and needed. But due to all of the factors mentioned-and probably many not mentioned here-the number and scope of those necessary interventions is decreasing and being replaced with other options.

Technology can truly help us embrace the future, remain relevant to our clients and to the world and enjoy higher levels of productivity in our work and life. Technology really can bring us closer to others, foster client relationships that would not have been possible before and complete tasks more quickly and efficiently than before. If we relate to technology in this way and if we have the courage to move beyond our current mindset about technology itself and the closeness and higher interactivity with people that it brings, we can retain our central position in society. If we continue to resist both the technology itself and the changes it is bringing we will fail. If we continue to use technology improperly, as a means to foist unworkable burdens on others, we will lose the young lawyers who are our future. If we fail to transform our relationship to the technology-driven world that has already come upon us, we will increasingly become marginalized, dinosaurs of a past age in which we held the keys to the kingdom of information that we no longer hold.

Concluding Comments

Welcome to Cyber Week. I urge you to visit the program site often and delve into the many programs and discussions we have created. I'd like to hear your comments and feelings about some of the issues raised in this address. Please visit the online discussion forums and the blog associated with the E-lawyering segment of Cyber Week. I look forward to reading your views and opinions, experiences and anecdotes about the practice of law in this period of change.

Edward Rholl, J.D., LL.M.
September 25, 2006