In addition, even in an alternative fee environment, I would still be concerned with the technology-related efficiency of my outside counsel. The problem with incentives is that they work. Alternative fees incent outside counsel to cut costs, which for lawyers means reducing labor. There are beneficial (productivity enhancing) and harmful (productivity decreasing) approaches to reducing labor. Especially at the outset of the relationship, an identifiable bent towards technological proficiency would give me more confidence that a particular firm is taking the proper approach to achieving profits under an alternative fee structure.
Further, the costs of inefficiency are cognitive, not just monetary. Despite the many blessings of caffeinating, there are very few human beings who are as sharp in the first ten hours or 10 of work as they were in the first two. Billed or not, losing several lawyer hours to drudgery is likely to affect overall quality.
How much can you really learn from a sample size of one associate?
Considerably more than I can learn from a sample size of zero. If anything, auditing a single associate should skew the results in the firm's favor. They get to select their best, most technologically proficient associate. But even if the associate is an outlier, I still gain insight into the firm's technology, training, and processes.
Again, the perfect should not be the enemy of the good. Of course, the good should not then be confused with the perfect. I recognize the audit's limitations:
The audit is inefficient.
Ironically, for a test of technology-based efficiencies, the audit is markedly analog. What could be more pre-digital (not to mention uncomfortable) than in-person, one-on-one audit? The audit, as currently constituted, is time consuming and logistically challenging. Ideally, the audit would be a web-based, adaptive test with a training component. That is, the associates — an appropriate sample size — would actually learn what they are doing wrong and be instructed on a better approach. Moreover, the firm would be provided precise feedback on where their training is falling short.
The audit is idiosyncratic.
The audit is something I put together by myself in my spare time. The audit lacks the refinement, consistency, and comprehensiveness of a truly finished product. The audit is the kind of crude but effective prototype that often emerges from the garages and basements of passionate hobbyists. The audit also evinces the amateurism of its author. The audit reflects the problems I have personally confronted and the solutions I have uncovered.
I was trained as a litigator. I have only worked at one firm and one company. There are many, many problems I have either not encountered or not recognized as such. Nor am I confident that my solutions are optimal.
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