Time to adapt

Legal landscape is asking for firms to catch up on tech

Legal landscape is asking for firms to catch up on tech
February 2020
By Tequia Burt
Chicago Lawyer correspondent

Like most other professions and industries, technology is reshaping the legal field and what it means to be a lawyer. Despite resistance from some in the legal profession, increasingly sophisticated technology is rapidly transforming the law from a labor intensive, hourly focused profession to one that promotes speed and interdisciplinary work.

“The legal field, historically, has always been very slow to change and generally technology resistant; we always seem to be a little bit behind other industries like, for example, financial services. We’re risk averse and we’re slow to change,” said Dara Tarkowski, founding partner of Actuate Law and its regulatory technology subsidiary Quointec.

“While the last four or five years has actually been pretty amazing in terms of legal innovation, we’re still very far behind, especially those embracing the traditional Big Law firm model. Big law firms are just like other large institutions — it’s very difficult to move the Titanic. When you’re dealing with technology, though, you need to be more of a speedboat.”

Much of the shift to using more innovative legal technology is being driven by clients, juries and judges who use high-tech tools daily in their personal and professional lives.

“The technology that is driving the world right now is changing rapidly and I think it’s always important for lawyers and law firms to remember that we exist because of our clients,” Tarkowski said. “If our clients are changing, we need to be changing. Otherwise, we are not providing them good service.”

High-tech courtrooms

Because of juries’ and judges’ expectations, it follows that one of technology’s biggest impacts has been in the courtroom — even pretrial.

At the start of any case, attorneys are responsible for collating, reviewing and sharing discovery materials from a variety of sources. Managing all those electronically stored documents, emails and social media posts is made easier with an e-discovery process.

“Electronic discovery has completely transformed the way practitioners approach cases and discovery,” said Jeffrey Widman, managing partner at Fox Rothschild, which has its own certified e-discovery specialists and project managers in-house. “When you’ve got large cases involving thousands or millions of pages of documents, it’s essential to either have a sophisticated internal discovery group or make sure you utilize one of the many e-discovery specialists out there to ensure that you’re complying with your discovery obligations.”

Not only has it become more important pretrial, but attorneys are relying more on technology to help them present cases in court. According to the American Bar Association’s 2019 LegalTech Survey, which polled nearly 56,000 attorneys across the country between May and August of last year, 44% of attorneys use a laptop in the courtroom for various tasks. Though the leading uses for a courtroom laptop are for email (34%) and legal research (33%), 22% of attorneys use them for presentation purposes.

“Technology has really changed the way you have to present — both in terms of the kinds of information and how you present it,” said Steven P. Blonder, principal at Much Shelist. “When lawyers first started using technology at trials, it was very basic — blowing up a document and the like.

Now, you can do video testimony and actually show the fact-finder so that juries and judges can draw their own conclusions. This has changed the way you have to prepare witnesses, changed the way they need to appear and changed the way they need to present. It’s really a sea change in how you put on a case at a trial.”

Michael Ko, the owner of Groundwork Trial Consulting, helps lawyers with their presentations by providing technical assistance during trials. He is responsible for audio-visual equipment and generally makes sure software runs smoothly so that attorneys don’t have to focus on making technology work properly while arguing a case. His main job, he said, is to “make regular real-life trials look as much like TV trials as possible.”

Ko, who also teaches litigation technology as an adjunct professor at Chicago-Kent College of Law, has been in business for 10 years and watched technology use increase on all sides of the law.

“It used to be that only the plaintiff’s bar used technology and other firms would use it only on their biggest cases. But these days, I’m finding it more often than not that both sides are using technology in a case,” Ko said.

“Judges are anticipating that both sides are going to be using crowd presentation technology. The clients, jurors, insurers and plaintiffs, or other corporate decision-makers, are expecting it as well. So, it’s something that has gone from 10 years ago being asked by a judge, ‘Well, why in the world would we ever want to bring in a projection screen to a room,’ to just being normal and expected,” he said.

Though relying on boots-on-the-ground specialists is critical, Blonder warned attorneys that leaning so heavily on experts can cause problems if they themselves aren’t well versed in the technology that they’re using.

“It’s not enough to simply say, ‘I have a specialist. I’m deferring on them for everything.’ If a lawyer gets lost in the process and has no role in the process, that’s problematic because they’re the ones that have to explain their case and articulate it in the court,” he said. “If lawyers that don’t stay abreast of the technology, they risk being at a severe disadvantage.”

Widman also emphasized that attorneys must walk a fine line while using technology in the courtroom. “I was defending a multinational financial institution in federal court. The plaintiff’s lawyer was projecting documents up on a wall on a screen but was doing it in such a way that the jury couldn’t actually read the documents. So, if you’re going to use technology, you have to be able to use it to effectively convey information,” he said.

Legal tech trailblazers

Consumer expectations are also changing how attorneys leverage tech for their clients outside the courtroom. Actuate’s Tarkowski and her partners founded the law firm with a technology-first mindset after working at big law firms. “For years, my partners and I had really observed the way our clients were utilizing and leveraging technology within their own businesses, and it’s important as a legal practitioner to be able to mirror some of the best practices of your clients. Otherwise, you’re really not keeping up.”

About a year after launching Actuate, Tarkowski and her partners founded regulatory technology company Quointec, which provides an artificial intelligence application that walks clients through a process to identify whether they have a legal obligation to report a data breach. She said Quointec’s AI tool not only streamlines clients’ data breach protocols but saves them money as well.

“It’s an in-house, self-service tool that’s powered by all of the current laws and regulations. When you experience a data breach, the tool walks you through an interview-like process. The application gets smarter as you interact with it and at the end you get a report about whether you have a reportable breach, who you have to report it to and to the regulators involved. It takes what law firms used to spend three to four days researching and putting together and synthesizes it down to a 15-minute process.”

She added: “Lawyers should constantly be looking at ways technology can save their clients’ money. It shouldn’t be at the client’s request — it needs to be something that lawyers are doing proactively for their clients as fiduciaries.”

Aristotle Sangalang, president and chief compliance officer at the collection agency The Bureaus Inc., is a longtime client of Tarkowski and was one of Quointec’s first customers for its data breach utility. Though he said the tools save him money, it’s not the main reason he leverages the company’s tech solutions.

“The best part of Quointec’s tech is that it’s empowering; you don’t feel helpless. Sometimes, you feel like you can’t make any decisions without talking to counsel — and that’s a pretty helpless feeling,” Sangalang said.

Emerging technology

Although still far off from adoption, AI-powered tools like Quointec’s are becoming more common in the legal field. According to the ABA’s study, 10% of lawyers said their firms use AI-based technology tools, while 36% said they think AI tools will become mainstream in the legal profession in the next three to five years. Twenty-three percent also said it’s important they receive training in emerging tech, such as AI and blockchain.

So, it’s not surprising that both Much Shelist’s Blonder and Fox Rothschild’s Widman reported their firms are currently exploring AI. “The use of AI is just going to continue to grow, and I think it will be the major determinant as to where are we go and how we do things,” Blonder said. “How AI develops, and to the extent to which it is used to replace lawyers in doing various tasks will possibly be one of the greatest disruptors to the legal field.”

Though emerging technology is growing, Tarkowski said it will only take hold in the legal profession after a major reorientation when it comes to legal billing and cost structures.

“Technology cannibalizes billable hours — it takes hundreds of hours and distills it down to minutes and, ultimately, that’s not good for a law firm’s bottom line,” she said.

“But it’s better for our clients and I would rather they spend money with me doing the really hard stuff rather than the mundane and routine tasks that, frankly, AI is better-suited to handle.

“Though that might mean less money for the law firm in the short term, it’s a much better long-term value proposition for law firms and their clients. And it shows that you’re not just out for a dollar, that you’re really looking out for the best interest of your clients. I think it’s a real gut-check moment for law firms to ask themselves, ‘Are you willing to cannibalize your revenue to meet your fiduciary obligation to your clients?’”

Though there is some resistance to emerging tech adoption, Ko said that AI will definitely have a huge impact inside the courtroom — so much so that he might be out of a job in the near future.

“AI will make wrangling exhibits a little bit easier. So, right now, what I do requires a lot of boring preparation and just organizational skills to get a case file electronically ready for court,” he said. “I can foresee AI speeding that up, so a human pushing buttons, listening to what the attorney is saying is not required. Maybe I become obsolete in five years.”

Though it may make his current job untenable, Ko said that emerging tech offers new opportunities that may not be immediately apparent.

“I think a lot of people are trying to sabotage advanced legal tech and trying to protect their current ways of making money,” he said. “I’m not a great businessman, but something that I’ve found that has worked for me over the years is that if you figure out how to help people solve problems, then the money will figure itself out. Maybe you do become obsolete, but you will hopefully be able to find a way to leverage the advancing technology to your advantage and find another way of making revenue.”