Legal Tech

Okay, Boomer

Many years ago I hired a young lawyer who was not really named Tom. Tom had a few years of experience at one of the large Toronto law firms. This was back in the days when I actually believed the hype that the lawyers in Big Law were smarter than the rest of us, and I was excited to bring this new talent onboard to our mid-sized suburban firm.

Now, I have to explain to the younger folks who are reading this story that these events took place after we were all using computers but before we had extensive online resources for precedents. (Yes, I actually practiced law before computers were in everyday use in law firms. We used to use things called “typewriters” and “dictaphones” and “pens,” as well as “notepads” that were comprised of lined sheets of paper bound together with glue.)  WAY back then, law firms assembled their own banks of precedent documents, some more sophisticated than others. The precedent banks, like the real banks, were bigger and better on Bay Street than in Mississauga where I practiced.

Tom did not last long at our firm. I knew that we had a problem when I asked Tom to draft a shareholder’s agreement and he asked me where the precedent book was. I told him that we had an appropriate precedent for him to start with and handed him a copy. He obviously thought that I did not understand him and asked me again where he could find the precedent book, using slightly different words. Eventually I understood that he had learned to produce documents by reviewing an annotated book of standard clauses and selecting the clauses to include in the document, all without having to draft anything himself. Sort of like choosing your dinner items off of a menu. You don’t actually have to go into the kitchen to cook anything yourself, or even completely understand the list of ingredients.

Here is where the younger folks can catch up with my story and undoubtedly wonder what the problem was. After all, this sounds like an early iteration of Practical Law. What could possibly be wrong with Tom wanting to use that type of resource to draft an agreement?

Well, the problem was that we did not have a precedent book. Sure, we had precedents which we used as a starting point to draft documents. But you could not just select your clauses and have a computer program deliver the document to your screen. You had to really understand how to put a document together, including drafting much of the wording yourself. It may have been possible for Tom to hide in a Big Law firm for a while without learning how to draft. Presumably even there, with a whole library of precedent books, he was not able to hide indefinitely which may be precisely the reason that he was available for us to hire. But in our firm his inability to draft documents himself was exposed on his very first assignment, and that was not a good thing.

I think that Practical Law is a phenomenal resource, and the point of my story is not to comment on the role that knowledge management and artificial intelligence systems should play in the work that lawyers do. I have completely bought into what the experts have been saying for a while now. The world is changing. Clients will not be paying us much longer to assemble documents. Lawyers have to move on and bring value in other ways.

I think an apt analogy would be to automobiles. In the early days, drivers had a rudimentary knowledge of how their cars worked and could often fix things that broke down. Most of us now know how to press the start button and move it into gear but have not the slightest idea of what makes it work or any notion of how to fix things when they break. And that is alright. We can usually get where we want to go.

But is that okay for lawyers? Is it acceptable when we use technology to assemble a document that we would not know how to draft ourselves?

I used to teach my associates that they should never delegate anything to a law clerk or assistant that they did not know how to do themselves. My theory was that it is not possible to properly supervise someone if you don’t know how they do their jobs, or to review their work if you do not understand what decisions they had to make to produce it. If that principle was correct, the logic should extend to using sophisticated document assembly technology. If a lawyer does not have the ability to draft a document, how can that lawyer determine if the document produced by the software is correct? In other words, it is one thing to save time by using technology. It is quite another thing to delegate the thought process to technology.

Now, I am perfectly aware that I am fighting a losing battle here. How lawyers do things is going to change whether I rail against some of those changes or not. Technology will march forward. Costs will be driven down (although legal fees will undoubtedly continue to go up). Everyone who wants to have a viable legal practice will have to get onboard. And perhaps the quality of the work will actually improve. After all, if even the dumb lawyers can press a button and deliver a document created by a brilliant lawyer, one might expect that the overall quality of legal work should be better. Alas, somehow, I doubt that.

Lawyers are advisors. We are not paid to deliver a product. We are paid to think. And ask questions. And listen to the answers. And have discussions. And think some more. And strategize. I still question the idea that even the best artificially generated document produced without a great deal of human thought is going to serve the needs of the client well. The real value is in the process, as opposed to the product.

I still struggle with the idea that someone can skip the step of learning to fully understand every word of a document that they produce for a client and still deliver quality legal services. And not for one minute do I believe that lawyers who have never had to put together a document by themselves can possibly develop the depth of understanding of lawyers who have had to learn to do that.

So, where does this leave us? I suspect that it leaves us with legal work becoming much like the automobile. We will drive it but not understand it, and God forbid that we get stuck somewhere and have to figure out how to get it moving again. Or perhaps it will be much like everything else that gets mass produced nowadays. It will be cheaper and faster to produce. But the quality just won’t be there.

Or just maybe the appropriate response to me is, “Okay, Boomer. You just don’t get it.” That may be the case, but I would still like to make sure that the younger generation gets what I am saying before there is no one left who understands it well enough to explain it to them. Although I suppose that they can always Google it.

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