How lawyers can harness technology

From the use of social media to specialized software, technology continues to have an impact on the way legal services are provided. Lawyers who fail to harness it risk being left behind

Martin Kratz was troubled when he saw the final regulations for Canada’s anti-spam law. He was worried people would have trouble decoding what he saw as “ridiculously overcomplicated” new measures. Anything short of full compliance would potentially result in harsh penalties of up to $10 million.

What happened next speaks volumes about technology and the way it is becoming a disruptor of the 20th-century law firm revenue paradigm.

Kratz, who leads the intellectual property practice at Bennett Jones LLP, convinced the firm to build a fully interactive microsite dedicated to explaining the new law.

It did, and the reaction was stunning.

“There was a period last year we were told it was trending as the top Canadian legal site for US lawyers,” he says from Calgary. “It was really well accepted and used by many industry associations and clients as an internal resource, some actually asked for permission to put it on their own sites.”

What made the microsite so popular is that large corporations, small and medium-sized companies, foreign entities and even registered charities each had content tailored to how they should prepare for compliance. Consent requirements, exemptions, non-spam prohibitions, liability and possible rights of action were all spelled out in detail.

In any other era this would have been legal advice. Billable legal advice. Using Kratz’s solution, Bennett Jones was giving it away for free.

“You could say it’s a negative from a revenue perspective because we could have sold more of that service,” Kratz concedes when asked. “But I think it was positive because it allows the clients to get up the learning curve faster with no cost to them — and some clients will think better of a firm that isn’t trying to nickel and dime them for basic information.

“I’m sure lots of people struggling with a compliance issue went to the site and never called us. They may have talked to other lawyers, because we saw lots of other lawyers and law firms using the site. But that type of activity can help the brand as well.”

Will Bennett Jones be doing more of these interactive customized microsites? Most definitely, says Barb Sheperd, the firm’s Chief Marketing Officer. Kratz, who is often ahead of the curve on emerging technology, sees it as a real trend “because lawyers are so expensive now.”

It isn’t the only area where technology is promising to prune legal bills, he’s quick to add. In the same way people turn to the Internet to find out whether their back pain is a sprain or a slipped disc before going to the doctor, clients are also turning to the Internet to research their issue before they pick up the phone to call their external counsel, trimming the time they need.

“I personally think that’s a good phenomenon,” Kratz points out. “The more informed the client is, the more value the service I can provide is. I don’t add as much value telling a client something they could have found themselves.”

 

Osler, Hoskin & Harcourt LLP is helping companies manage privacy-related compliance through an online platform. The business model is a bit different than Kratz’ approach, since Access Privacy is available on a subscription basis.

Like Kratz, Mara Nickerson, Osler’s Chief Knowledge Officer, thinks a lot about technology. At any given time, she’s involved in four or five programs testing new software. Most, if they prove themselves, will reduce the number of hours the firm bills its clients.

One example is Kira Inc., which searches contracts to identify relevant clauses. Nickerson says it can be “taught” what types of provisions to look for, then used to review all the contracts in a due diligence.

“One of the main things you’re often looking for is change-of-control provisions — does this contract restrict the target’s ability, will the contract be terminated or in breach if it’s transferred?” she says. “This software has been taught what a change-of-control provision might look like, it’s been fed every possible variation. So it scans the contracts, pulls up the clauses and says: ‘I think this is change of control.’

“And it does that for a whole host of different types of clauses that we are often looking for. It’s doing a lot for due diligence — similar to what search engines did for e-discovery.”

Nickerson says another area rapidly being automated is the process of assembling closing documents. Osler is working with firms like Closing Folders Inc. on programs that will leave it to software to put together the required packages.

“At the moment, the way we put together signature packages and how we organize the documents for a closing is a pretty manual process,” Nickerson points out. “These technologies are looking at ways of connecting with our document-management system to call up the documents and put those packages together.

“Largely, they are still in development. But they’re coming. And I think they could have a significant impact.”

For more than a century, reviewing documents to collect data, apply reasoning and reach conclusions was work – billable work – performed by associates and students. Perhaps not for much longer.

If you believe nothing else, believe this: These types of programs that use artificial intelligence, once they shake off their growing pains, will wipe out thousands or even tens of thousands of billable hours a year at a large national firm. You have to ask yourself whether firms will continue to maintain small legions of students and associates if the work for them to do just isn’t there.

 

Emerging software is not the only agent of change. Communications technology that is so ubiquitous people rarely consider it anymore – email, texting and videoconferencing – have subtly been cutting into billable time.

A decade ago, when a client had a legal question, they’d generally ask for an in-person meeting with their lawyers. Take two lawyers, a half hour of research time by the junior, and 15 minutes of travel time each way, and the firm could easily bill two-and-a-half to three hours for an hour-long face-to-face session.

Today, that same query will often land in an email inbox. With that same half hour of research by an associate, using email to deliver the analysis and even answer a couple of follow-up questions it may end up generating between an hour and 90 minutes of billable time.

Asked whether she thinks about the impact of technology on firm revenue, Nickerson pauses before answering.

“Yes, of course we think about it. I’m not sure I have an easy answer but the reality of the practice of law today is our primary imperative is to work as efficiently as possible. The clients are facing such push on their budgets. They need to control their budgets. They need predictability and reduced costs. So that is our business imperative now.”

 

As the practice of law moves from meeting in person to conference calls and video conferencing, from opinion and reporting letters to emails and texts, it is altering the way lawyers and clients interact.

Loyalty cemented in personal interaction was once viewed as the glue that bound client to law firm. But technology is not just scraping away at billable time, it’s also flaking away some layers of the lawyer-client relationship.

Meetings are not just more costly; Internet interfaces that allow lawyers and clients to look at the same documents at the same time – not just from different offices but different cities or even countries – have made them increasingly unnecessary, says John Boscariol, head of the International Trade & Investment Law Group in the Toronto office of McCarthy Tétrault LLP.

“That traditional format is pretty much gone,” says Boscariol. “There are still instances where you want to have a face-to-face meeting, especially in the initial part of the relationship, but the frequency has definitely declined. Electronic communications have changed the relationship entirely.

“It’s like night and day compared with even five years ago. Whether we think it’s good or not, whether we like it or not, is a different issue. It’s just the reality.”

The speed of today’s technology is even altering something fundamental about the nature of advice being given, says Pablo Guzman, a partner in the Montréal office of Davis LLP.

When an existing client sees a possible issue, they’ll usually ask for a conference call that same day, he says. “They will have identified the issue and often provide the facts on the call. By the end of the call, I will have to have listened to facts, analyzed them and should be providing a strategy.

“The immediacy of the advice being sought is a big change. Even 15 years ago you could get away with: ‘My opinion is in the mail,’ you could take a night to think about replying. Now the expectation is often for an immediate answer so the reflection time, the time you took to let it percolate, sometimes is missing.”

With everything near instantaneous, and clients glued to their electronic devices and wanting an instant read on new developments, finding relevant information and relaying it before anyone else has become a significant competitive advantage, positioning those who consistently deliver it first as thought leaders in their area.

With quick information the new currency, the race to get it into circulation has become increasingly important.

That’s where the social media piece of the paradigm falls into place.

 

If you can’t reach Toronto employment lawyer Stuart Rudner by phone or email, and it’s the first Thursday of the month, check your computer. You’ll find him live online.

Social media is considered such an important tool that Rudner MacDonald LLP, with just two partners and two associates, retains a social media consultant. He provides details on where web traffic is coming from, click-through rates, how much of what the firm posts is shared by others and which links are opened.

It was the consultant’s suggestion they hold a monthly social media event. They do, alternating between a LinkedIn Q&A session and a Google Plus video hangout.

The firm is deliberately playful with its themes. In February, for example, the Google Plus hangout was dedicated to Love in the Workplace. The result? “It had about 50 or 60 people watching, which is not a huge number, but we then took it and put it up on our YouTube channel — and those videos get tons and tons of hits,” Rudner says enthusiastically.

March’s LinkedIn live session on vacation time got “hundreds of impressions,” with questions coming from a mix of individuals and employers. “We have fun with it. It differentiates us from almost every other law firm and it’s another way to expand our reach.”

Rudner, who spends roughly five hours a week on social media and blogging, says he joined LinkedIn “as a courtesy” in 2007 when invited by a client. He says he quickly saw its potential, which, he believes, lies in its groups of people who share an interest in the same area of the law.

“Many years ago I was looking for a group on Canadian HR law and not really finding one, so I started my own. It was a fascinating process because for months it was a one-man show where I would post a discussion point, and I would respond. So I was really talking to myself online.

“Honestly, I was about to give up and I’m not sure what happened but we hit some sort of a critical mass where all of a sudden people started posting and commenting. Now we’re over 10,000 members, which is phenomenal. And it’s a great mix of employment lawyers, Human Resources professionals, business people and others. It often leads to new work, with people saying they’ve been following my posts on LinkedIn or my Tweets for years, and now they have a question.”

Neena Gupta, a Gowling Lafleur Henderson LLP employment and human rights lawyer who has offices in Toronto and Waterloo, uses social media to remind her connections about legislative changes that could impact their businesses.

“My contacts are grateful and, where they need help, they contact me directly,” she writes through a LinkedIn message. “This generates business. Social media also helps potential clients check up on me and get a sense of whether I have the experience to service them well.”

Guzman of Davis says it’s more than an excellent marketing tool. He is convinced social media has become an essential recruitment tool.

“You cannot attract the bright young minds of today if you’re not occupying that space – if they don’t see you in that space – and if you have an adverse reaction to social media,” he says. “You cannot say: ‘Come and work for me and, oh, by the way, we don’t allow social media here.’

“In today’s world, social media is here to stay and has become a way to communicate. We can’t deny it. We can manage it, but we can’t deny it.”

 

Jean Saint-Onge, a litigator at Lavery, de Billy LLP in Montréal, has about 600 connections on LinkedIn.

Does he know all 600? Of course not. But he figures he’s actually met 95 per cent of them. “When you go to a function and you come back with a handful of business cards, it’s a nice way to keep in touch plus you have access to all their information, their résumés and things like that,” he says.

Others admit they have many connections they haven’t met, but say those connections can occasionally lead to eventually arranging to meeting in person for coffee at a conference.

While Saint-Onge wouldn’t argue that something is being lost in the move to electronic communication (“nothing replaces meeting face-to-face, having a strong personal relationship though getting together regularly”), he would argue that social media fosters a different type of intimacy.

“It’s not so much the frequency but it’s the quality. You know more about your clients from what you read on LinkedIn than you would have 25 years ago when you didn’t have access to their bio or their career path. I think it’s a magnificent tool. But it has its limits and you have to use it properly. You have to be selective about what you post.”

The possibility of selecting the wrong side of an issue, going public with an ill-considered opinion, makes some lawyers nervous. Many still eschew the immediacy of Twitter for the safety of LinkedIn.

Not Toronto-based litigator Allan Rouben. “They are just very different platforms,” he says. “Twitter is more open for displaying your personality whereas LinkedIn is more a professional platform for displaying your work.

“I’m a lot more up-to-date in terms of case law, legal issues and opinion pieces that are in newspapers because people are posting a link to them on Twitter. I find a lot of useful information that I wouldn’t have otherwise discovered from being on social media.”

Large-firm lawyers may be using sites like Twitter and LinkedIn, but Rouben sees them as especially useful for solo practitioners and those at small firms.

“They really level the playing field. A smaller firm might not have the marketing budget of a large firm, however, through the use of blogging and writing it is easy to push out useful information, which can help replace to some extent the marketing efforts at larger firms. Having said that, it’s only useful if you’re posting quality information. On social media, you can’t fake it.”

But you can blow it.

 

Aside from ill-thought-out posts or putting out an eye-glazing volume of musings and links, social media platforms create connections that anyone can see.

They can wind up being used to challenge a lawyer or arbitrator on a given file for tactical reasons, says John Judge, a Toronto-based independent arbitrator and arbitration counsel with Arbitration Place — and big LinkedIn user.

“The fact one has a connection through LinkedIn with a lawyer from one side but not the other has been raised to challenge arbitrators in different cases,” says Judge. “I know some older lawyer-arbitrators who do not use it because they want to avoid it being used against them.

“I’m prepared to embrace it and if that issue arises, I’ll deal with it. I think the reality is the whole business world around the world is changing, the new generations of Internet users, the Millennials and Gen-Xers, just see it as a way to make contact with people, not unlike physically attending a conference. They recognize it doesn’t pose a threat.”

Judge says his chambers in London now provides LinkedIn connections for its barristers, demonstrating the idea that “it’s a certainly perfectly appropriate tool to use — and one should use it as part of your professional practice.”

That use comes with some cautions, says Marc Kelly, a partner at Kanuka Thuringer LLP in Regina. For lawyers, he says, there is a risk of inadvertently going offside on ethical obligations.

“It’s possible though that you are contacting individuals that are on the opposite side of a file, and that you may have an obligation only to contact them through their solicitor,” he says in a LinkedIn message. “Individuals may also unintentionally be breaching confidentiality. You have someone come in for a meeting, and afterwards you tweet something about them that you think may hide their identity, but their identity is ascertained by someone who knows them.”

Ethical considerations aside, not everyone is a fan.

Michael Doyle, a corporate commercial litigator in New York, confines himself to using mainly LinkedIn and, even then, “not so much.

“It does a service in the sense that it reminds your existing contacts and clients that you are out there and perhaps tells them something about expansion of scope and so on — events since they last spoke with you. But it does not really generate new business.”

Doyle, a former Canadian journalist before graduating from McGill law school, says he “wouldn’t touch” other versions of social media such as Facebook and Twitter.

“Facebook uses your information for its own purposes. It’s not serious enough for law. Maybe LinkedIn does, too, but you maintain some control over what appears on the page. I assume Facebook lets anyone say anything on a wall, though I closed my account the same day I opened it after I read their EULA.

“As for Twitter, what lawyer can say anything that takes less than 140 words? You need that much just for the boilerplate. And that stuff really is important.”

But Boscariol of McCarthys not only uses Twitter, he uses platforms such as Hootsuite and Feeddler to post faster across multiple sites. “What that means is when I find something that’s relevant to send out, I can shoot across many different platforms by hitting one button. I know many lawyers in large law firms are doing this.”

As to why, the conversation winds its way past the ability of social media to establish thought leaders towards the deep changes technology is triggering and the pitfalls of failing to embrace it.

Boscariol sees it as a make-or-break issue, something that will ultimately determine which lawyers and law firms thrive and which die on the vine.

“I think those lawyers and law firms that are able to harness the technology are the ones that are going to win at the end of the day. Those that aren’t using the technology available to them to do that are going to be left behind. Ultimately, technology has changed the game in that way.”