by: Mitchell Dubin
The adoption of collaborative applications and knowledge management technologies by the legal profession has proceeded far less rapidly than many people would have expected or hoped. While vendors of data mining, knowledge management and other information technologies consistently see the legal profession as a fertile market for their products and initiatives, they are often disappointed by the resistance they find by lawyers and law firms. Why have advanced and sophisticated information techniques made so little impact on the information-intensive legal profession? What can be done to open up the legal market? In spite of the general climate of resistance, what projects are good candidates for these techniques?
There is certain inevitability to the entry of knowledge management and artificial intelligence approaches in the legal profession, whether the push comes from within the profession or from external pressures from clients and competitors. This paper will discuss some of the needs that law firms want to address with artificial intelligence and knowledge management projects, the resistance barriers in law firms, and then move on to list some attractive target areas for these approaches and factors that will contribute to success of these types of projects.
1. Needs Law Firms Seek to Address.
As part of an information intensive profession, lawyers and law firms create, use and store vast amounts of information in connection with their work. This information has a recognized value because it holds experience and expertise learned and maintained by legal organizations. Too often, however, the transfer of this knowledge inside or outside the firm occurs by happenstance or through one-on-one conversations without a sharing of information by all who need the information. Law firms want to tap into the value of their information in systematic and effective ways.
A. Not Reinventing the Wheel. To a surprising extent, in many law firms research is often duplicated, and agreements and other documents are created from scratch when models for such agreements already exist. The concern is not just inefficiency but also the inability to take advantage of best practices and current information and to make proper assignments to people with appropriate experience. With varying degrees of success, all firms have made efforts to implement techniques such as brief banks, standardized forms, training manual and documentation of procedures. Document assembly is one example of a technology used to capture prior efforts and to standardize best practices.
B. Knowledge Transfer and Mentoring. It is highly desirable to transfer the knowledge and even wisdom of older attorneys down to younger attorneys. In many cases, older attorneys may leave a firm or even die without the knowledge and other benefits of their experience being captured in a usable fashion. Not only is there a loss of substantive practice knowledge, but far too often there is the loss of the history and stories of a firm culture. There is a growing recognition of how much information is carried by way of story-telling. Core knowledge about a firm and its practices are encoded in its "myths and legends." Where transfer of this experience and expertise is not encouraged and facilitated, the knowledge of important historical details, such as how difficult management, ethical and other situations were handled, is no longer available for later generations of the firm. The transmission of core values and wisdom is either hindered or does not occur. Increasingly, law firms are recognizing the value of this loss and emphasizing the role of senior attorneys must play in mentoring other attorneys.
C. Efficient Delivery of Legal Services. Attorneys arguably work many more hours than other "knowledge workers." There is often a question of whether attorneys are simply working harder rather than working smarter. Both attorneys and clients see the benefits of more efficient delivery of legal services. Attorneys are increasingly aware of productivity gains achieved in other businesses by use of technology and find that their clients who have achieved such gains through the use of technology are pressuring law firms to adopt the same approaches. In other cases, business clients expect law firms to have certain technologies in place and are not willing to pay lawyers to deliver work in what is seen as inefficient and expensive ways.
D. Information Overload. Attorneys are inundated with paper, e-mail, advance sheets, journals, newsletters, web pages and a rising tide of information falling over them. Keeping up with developments in a practice area can take a substantial amount of time. As attorneys take advantage of e-mail newsletters, e-mail discussion lists, and other Internet resources, the symptoms of information overload can become very apparent. The need to organize, process and store in a retrievable fashion relevant information has become increasingly important.
E. Employee Retention. The new generation of lawyers leaving law school has been raised in an era of computers. Soon we will have a generation of law students who have never known a time when the Internet was not available. The level of expectations and reliance of sophisticated approaches to information and technology of these lawyers is very high. Law firms have found and will continue to find unwillingness by these lawyers to stay at firms that do not have state-of-the-art approaches to information. Law firms realize that addressing technology concerns is an essential part of attracting and retaining the best talent.
2. Resistance Barriers to Knowledge Management Projects.
A. Culture of Individual Practices. Nearly every successful knowledge management project has at its roots an organization in which there is a culture of sharing of information. More important, success grows from a culture of willingly sharing information. While financial incentives can help create a spirit of willingness, the trick is to create a culture where the benefits of sharing information are seen as real and sharing knowledge becomes second nature. Many firms are often described as a collection of individual practices. Even within specific practice areas, lawyers may work in a very autonomous manner. In addition, lawyers in one practice area may see little or no commonality with lawyers in other practice areas. At a more basic level, there is often a divide between litigation attorneys and transactional attorneys that is difficult to bridge.
B. Resistance to Technology. Far too often, the attorneys, especially older attorneys, who must be involved in the transfer of knowledge down to other attorneys, have a reluctance to use technology. Ironically, attorneys whose whole careers show a demonstrated ability to learn completely new areas of knowledge during the preparation of cases or through their representation of clients in a particular industry will balk at the notion of using computers. This reluctance to learn hardware and specific software can result in an unwillingness to be involved in "technology" at any level, even including the unwillingness to be assisted in knowledge transfer techniques that would involve the use of technology.
C. Lack of Time. The increasing emphasis on massive billable hour requirements tends to leave lawyers with little time and opportunity to create expert systems, highly organized data structures, or other artificial intelligence and knowledge management techniques. All of these efforts require the investment of substantial amounts of upfront time. Systems that require large amounts of upfront organization have little chance of succeeding in most law firms. Techniques that may involve the ability to process existing information "as it lies" will have the greatest opportunity for success.
D. Inability to Measure Returns. Metrics are not readily available that would help law firms measure the financial return of knowledge management applications. Where billing structures are not changed, the efficiencies obtained through these types of applications may not benefit a firm financially. For example, while the idea of document assembly has long been attractive to lawyers, the reality of reducing a several hour drafting job to ten minutes is not financially advantageous if billing continues to be based on a pure billable hours basis.
E. Incentive Structures. While there are a few firms that have created positions such as "chief knowledge officers," in many cases attorneys interested in knowledge management projects do them on a voluntary basis or may even be penalized for their efforts if these efforts diminish their amount of billable hours. In a traditional law firm, there is often a lack of incentive structures to motivate lawyers to be involved in a knowledge management project. In firms where knowledge management efforts, such as brief banks, or collections of memoranda have been tried, with unsuccessful results, there is often a reluctance to try again and a tendency to dismiss the whole notion of knowledge management rather than to analyze carefully where the prior projects failed and develop more effective new projects.
3. Attractive Areas for Knowledge Management Projects
It is becoming increasingly apparent that large-scale, firm-wide knowledge management techniques have little chance of success in law firms, especially if they are the first project undertaken. Discrete, well-considered pilot projects that can be scaled up and rolled out throughout the firm have a much greater opportunity of success. Similarly, targeted, incremental approaches that work within the existing knowledge flow of the firm are preferable to attempts to reorganize how people work. Examples of projects that should be given careful consideration are:
A. Litigation Strategy. A good starting project for many law firms would be an application in the area of litigation strategy. Excellent tools are available and the return on investment in this area can readily be perceived.
A Knowledge Management solution would allow lawyers to pull information that otherwise might be hidden in legal pads, bankers’ boxes, or in the memories of individual lawyers into a format that allows lawyers to gather and analyze facts in a helpful manner. Through a simple method of tagging information, lawyers can use a KM solution to find answers to questions previously difficult to obtain. For example, a lawyer preparing a summary judgment motion can, in a matter of seconds, retrieve a list of all undisputed facts in the case relating to the issue about which they are writing. A lawyer can assess the strength of a case by seeing a list of all undisputed facts that have been judged by that lawyer or other members of the team as highly unfavorable.
A properly deployed KM solution should create a method for looking at the information involved in the case in a variety of ways and preparing and testing strategies as well as determining where additional work may be required on a case. In addition, a lawyer could determine the strengths and weaknesses of a case and the role that individual witnesses will play in developing a case.
Law firms need to recognize that there is great value in identifying key information and associating it with other information and that a broad-based approach can be much more useful than a method that attempts to implement hundreds or even thousands of rules to create a trial strategy.
B. Client Relationship Management. A highly important area in knowledge management is customer relationship management ("CRM"). CRM is simply a method of gathering, associating and using in an efficient manner information that you have about customers. In many law firms, there are countless examples of lawyers trying to cultivate a potential client only to find later that that potential client was a college roommate of someone else at the firm. Where information about clients is not readily available, lawyers working for a long-term firm client for the first time can easily make mistakes, such as e-mailing clients who have demanded that information only be faxed to them or Fedexing copies to clients who only want e-mail copies. The holy grail of CRM in law firms is to promote the cross-selling of business to existing clients. This area is an especially fertile one for potential knowledge management and artificial intelligence projects.
C. Conflict Checking. Conflict checking is an area of difficulty for many law firms, especially as the number of clients increases and as companies enter into more joint ventures and combinations. While traditional databases can be of great assistance, often potential conflicts can only be seen by lawyers who are personally familiar with the relationships between a variety of companies and people. While CRM efforts will have a spillover effect in the area of conflict checking, the application of artificial intelligence specifically to conflict checking holds a great deal of promise.
D. Delivery of Client Services. The most exciting area of potential development for artificial intelligence and knowledge management systems is in the area of actual delivery of legal services to clients. This delivery of services might occur through traditional means or over the Internet. A number of examples of this trend are appearing and a good resource for keeping track of this is the elawyering site at www.elawyering.org. The application of technology to the delivery of legal services is especially attractive in the area of what is sometimes referred to as the "latent market for legal services" or the segment of the market where people cannot afford traditional legal services. From document preparation to delivery of relevant legal information to decision tree approaches to transactions, there is a world of opportunity and law firms are only beginning to tap the potential.
E. Managing Information Overload. Lawyers, like many others, are fighting to gain some degree of control over the overwhelming amount of information they receive on a daily basis. Through the use of intelligent agents and other knowledge management and artificial techniques, it is gradually becoming possible to manage that flow of information. Techniques, such as creating daily electronic newspapers, personalized resources, and "push" technologies to deliver specific information, updates and other information of interest can all be highly effective with very tangible benefits. "Personal knowledge management" tools give the ability to harvest and organize information on the web. This area suggests a number of useful, discrete pilot projects that can have a high impact on individual attorneys and develop momentum for other projects.
4. Strategies for Improving the Likelihood of Success of your Projects.
Choose discrete rather than global projects.
Use methods that process existing pools of data rather than require large amounts of upfront coding, organization or tagging.
Identify appropriate tools and get those tools into the hands of the people who will actually use them.
Choose committed, enthusiastic volunteers for pilot projects.
Stay up-to-date about new tools and improvements to existing tools.
Achieve buy-in from top levels of management.
Develop appropriate incentive structures for attorneys participating in projects.
Set goals, supply necessary resources and determine from the beginning a method of measuring success or failure of a project. In part, this involves the ability to answer the two following questions: How will you determine whether a project is successful and who will determine whether it is a successful?
Determine whether a chief knowledge officer level position is required. It is difficult to have success for large projects without such a person.
Stay aware of developments, talk to others involved in successful projects and keep current with initiatives at other firms.
Listen to your clients and try to anticipate their needs as a driving force in your projects.
Maintain a high degree of flexibility and willingness to change direction.
Try to get as thorough an understanding of the information flows and the information cultures within your firm.
Attempt several pilot projects at a time. Diversify your risk.
Be innovative and courageous.
While the past history of knowledge management and artificial intelligence in the legal profession does not show a lot of successes or adoption of these projects, a number of factors, economic and otherwise, are coming into play and suggest that there is light at the end of the tunnel. By being aware of the available tools, the fundamental promise and potential that law firms see in these techniques and being able to deal with the resistance barriers, you improve your likelihood of success. Discrete, high impact pilot projects are a good way to start and build momentum for an evolutionary development of these projects. There are also practical strategies that can further enhance your efforts and open up the promise of knowledge management and artificial intelligence that many people see in the legal profession. Most important, there are others working on similar projects who are willing to share information and provide assistance. The future looks promising.