D. Casey Flaherty, corporate counsel at Kia Motors America, really does have good intentions as he humiliates Big Law firms about their dismal technology skills — and he is careful never to embarrass a partner.
Flaherty mesmerized a standing-room-only crowd on the opening day of LegalTech West Coast at the Westin Bonaventure in Los Angeles with his electric keynote, "Raising the Bar on Technological Competence — the Outside Counsel Tech Audit."
Frustrated by ridiculous bills for routine "commodity" matters, Flaherty decided to strike back, and recently launched his technology audit program, where firms bidding for Kia’s business must bring a top associate for a live test of their skills using basic, generic business tech tools such as Microsoft Word and Excel, for simple, rudimentary tasks.
So far, the track record is zero. Nine firms have taken the test, and all failed. One firm flunked twice.
"The audit should take one hour," said Flaherty, "but the average pace is five hours." In real life, that adds up to a whole lot of wasted money, he said. Flaherty uses the test to help him decide winners of the beauty contests, and to set rates and set performance goals. "I take 5 percent off every bill until they pass the test."
To date, Flaherty has personally conducted the audits, which he laughingly calls a decidedly "analog" approach. But during his keynote he announced that he has just partnered with a training firm, Capensys, with the goal of automating the audit — and then making it available for free to general counsel. ("Free and easy is something that I know appeals to in-house counsel," he said.)
Despite his schooling of Big Law, Flaherty empathizes with his Big Law colleagues. A key problem they face is the same issue confronted by probably 99 percent of all computer users. We are only using a very small percentage of the available tools, because we haven’t taken the time to learn how to use them. Who isn’t guilty of that? And he also threw some blame at tech providers, who sometimes load an overwhelming number of options that paralyze uses. (For example, many say too much tech was a reason for the almost-universal hatred of Microsoft’s Vista.)
As a dramatic example of his point about how little we all know about basic tech, Flaherty polled the audience to find out how many of us knew that you can "print to PDF" in one click. Less than 30 percent of attendees raised their hand — the same percentage, said Flaherty, of associates who do not know how to print to PDF during his audits.
"Basic PDFs are required by courts," he explained, and it’s a one-click process. But there’s a but — you can’t have live links on PDFs that go to the court, and the document must be properly formatted — tasks many lawyers simply do not know how to execute, said Flaherty, who is based in Los Angeles.
If instead of printing to PDF, if you go to a scanner, that takes four minutes, average. But those four minutes add up. "Four minutes at $200/hour is $20. It’s cumulative, it scales," instructed Flaherty.
Some firms, he said, enter Bates numbers by hand or hire vendors, even though their secretaries and others have software that can handle that task with one push of a button.
"It’s not incompetence, it’s lack of training," said Flaherty. "And there is a rule for this — new American Bar Association rules," referring to August amendments to the ABA’s rules that govern professional competence, and now expressly state a duty to be aware of and use technology.
The common cry, he acknowledged: Lawyers say they are too busy to take training. "They are smart, dedicated, hard working. They are not trying to be inefficient," he said. "Lawyers say, ‘I don’t have the time.’ In a sense, true, but also horse pucky. It says, ‘It’s not a priority.’"
"As clients, we are allowed to question our lawyers’ priorities. Tools need to be used properly," he said. "Pride gets in the way." As another example, he noted that "many lawyers won’t take typing lessons," even though that simple step, which can be done at home via popular training programs, would dramatically increase the lawyer’s productivity.
"People don’t know what they don’t know, and don’t recognize their own ignorance."
Flaherty’s talk was complemented by terrific Powerpoint slides (PDF) and videos, including a hilarious video about Patriots’ coach Bill Belichick, whining about how it took him three years to figure out how to change his car clock when daylight savings kicked in — once again addressing the reality that sometimes the technology vendors make it incredibly difficult to understand and use their products (e.g., Vista.) And does anybody in legal (besides secretaries) use Word Styles — which streamline document creation, he asked rhetorically.
Another example of wasted time and money: "Most firms, said Flaherty, have document templates, but lawyers don’t know they exist, or if they do, where they are and how to use them." Ironically, most lawyers have all these tools. "I’m asking them to actually use the software they already have on their computer."
Excel, he said, is another basic and crucial tool that all lawyers must master. He tests for basic Excel skills, such as the ability to filter or search through a simple worksheet. He demonstrated how a search task took most test-takers six minutes, when it could be conducted in 14 seconds and one click if the user understood basic protocols.
Flaherty is not stupid — there’s a concrete reason why he tests associates, not partners. He’s not doing audits to embarrass the top dogs, he’s doing it to demonstrate where efficiencies can be easily found using existing tools.
And he cautioned the audience to not assume that this is an old versus young agenda, like presuming that Baby Boomers, who are notoriously tech-adverse, cannot be reformed. "It’s like learning to tie your shoe or ride a bike. It’s not automatic, and you can learn when you are 20, 40, 60, etc. "It’s not age, it’s learning, training, curiosity. You have to learn, practice it, and it becomes a habit, but not until you have used it five, or 10, or 20 times."
He cited legal luminaries such as Magistrate Judge Andrew Peck and Judge Shira Scheindlin of the federal bench in New York, and Judge John Facciola of the District of Columbia, as well as other leaders like DLA Piper partner Browning Marean who all have embraced technology as veteran lawyers. "We get into dangerous territory if we think the young know tech and the older lawyers don’t."
"This is a solvable problem we can actually tackle right now, immediately, with minimal investments," said Flaherty. "The object of the audit is its own obsolescence."