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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Legal Tech: The Future Starts in Law School

Some basic principles of legal technology education in the 21st century

Technology is transforming how consumers interact with the legal profession. And the responsibility for training lawyers to meet a more tech-centric future begins with law schools. This article discusses five principles devised to guide legal educators in meeting the challenge. 

Warning as to what’s ahead: This is an article about law schools. More specifically, it’s an article explaining how law schools in the 21st Century need to produce lawyers who can work in the 21st Century—and why producing these lawyers means making them technology fluent and able.

Technology is the great disruptor of the 21st century. But technology is also an innovation opportunity. Lawyers (and the law) have remarkable opportunities in this new ecosystem and, therefore, this is important to everyone currently practicing law, because law schools are the gateway to the system. I also think this article will provide compelling reasons to attend the MSBA’s TECHStar Conference on October 9, 2017 at the University of St. Thomas School of Law. This premier event will bring to life the strategies contained in this article. After some 30-plus years of working in the legal industry (and yes, we in law are an industry), I’ve noticed some very specific issues and concerns the Academy absolutely must address. The good news: There is a movement underway to address these concerns and Minnesota can be on the front edge of that movement. So let me begin at the beginning.

Not just lawyers, the professions

As Richard Susskind has written (often prophetically), technology is transforming how consumers interact with the legal profession. Let’s unpack that a bit. Susskind’s emphasis is on the consumption of legal services and the need to rethink the delivery of legal services in the context of technology and innovation.

His focus is on the consumer side of that equation. This has ruffled more than a few feathers. In his latest book, The Future of the Professions, he argues technology will disrupt not just lawyers but every other group that classifies itself as a profession: accountants, architects, doctors, consultants, clergy, etc. His watchwords here are premised on the notion that all of these professions are in fact businesses that generate revenue. As such, the true technology transformation is to redesign the services provided by these professions so they become more consumer-friendly—and, therefore, cheaper and easier to navigate.

Navigation is an interesting term, in part because it isn’t just about access to such services; it is about solving the problems that we turn to the “experts” to fix and doing so in ways that are cheaper, less confusing, and more likely to provide outcomes that make sense. I am reminded of the person who describes hiring a lawyer as like being seated at a restaurant and presented with a menu that has items listed but no prices. Upon consulting the waiter, the customer is informed the prices vary from $50 – $300 per item but you won’t know the price until the meal is over. And while you may or may not like the meal, you must pay the final bill regardless. This is wrong.

The why: Social justice and access to legal information

One of the most immediate and pressing demands for U.S. consumers is the lack of access to, let’s just say broadly, the law. This conversation has many voices. They begin with “access to justice” concerns. Though it may be controversial, I have to say that “access to justice” has become a brand. This brand, in my judgment, means helping the poor. So think Legal Aid, the LSC, etc. No question this is an important and deep problem, but what is increasingly more disturbing is the greater problem of the clients who are “modest means”—for whom hiring a lawyer has serious financial impact. It’s not just the indigent who can’t afford access to the law; it is today’s middle class.

Perhaps worse, of these “modest means” consumers, it is small business owners, the budding entrepreneurs, who face paying legal bills they can’t afford as a startup. This, to paraphrase much of the good work done at the Ewing Marion Kauffman foundation, serves as friction to innovation. It is the whole host of folks who balk at paying $5,000 to $10,000 for “basic” legal services. And so what has happened is one of the first great disruptions brought by technology: Legal Zoom.

Today’s law school graduates face, as always, competition from each other. But today LegalZoom exists as a competitor. I will not devolve into a discussion of UPL (that is another article). Let’s just agree that LegalZoom and its potential counterparts are not going away. So building a better, faster, cheaper law product for consumers is paramount. And that is one of the reasons why teaching technology in law schools is paramount. Teaching technology also means giving students a true competitive advantage.

Technology-fluent law graduates offer employers the kind of skill set that law firms and other industries need. There are a growing number of academics who believe there is a true competitive advantage in technology training. This competitive advantage manifests as graduates who can show a prospective employer they are technology-fluent and -competent. They can show, with portfolios and certificates, that they are proficient.

The what: Law schools need to focus on teaching tech

But what do we mean by teaching tech? Identifying the nature of the competitive advantages is the first step. The next step is clearly defining what that means for the graduate. And with technology training, we speak in terms of competencies across a spectrum. In this instance we distinguish between the technology of law and the law of technology, which is a shorthand way of describing the difference between education technology and technology education. Higher education, which includes graduate programs like schools of law, are focusing on “e-learning” opportunities and other ways to embrace technology to improve education. This “ed tech” is important to the Academy in terms of delivering the opportunity for education. But that technology bears only a passing relationship to “tech ed” or the teaching of technology.

When we say we need to teach technology, or make students technology-fluent, we are actually describing a number of opportunities that represent a continuum of training. These range from basic competencies with applications such as Word or Excel all the way to understanding the intricacies of e-discovery tools such as kCura’s Relativity. And there are a whole host of opportunities in between.

For example, coding. Do lawyers need to learn to code? The answer here is a very lawyerly “it depends.” Susskind, in his book Tomorrow’s Lawyers, identifies nine new opportunities for law school graduates. In general, he argues that graduating from law school and practicing for two or three years, combined with other skills such as knowing how to code, will create law SMEs (subject matter experts) who can find well-paid employment within the technology industry. He further identifies other new opportunities, such as legal project manager. But again, such opportunities rely upon an additional set of skills, such as (at present) familiarity with GitHub or Slack or a tool like BaseCamp. And understanding these tools requires that we in the
Academy find a way to not just teach the tools but design ways to measure competency with them.

Let’s return for a moment to the front end of the continuum, competency with tools such as Word or Excel. A movement that began with Casey Flaherty’s Kia audit has greatly expanded, especially in Big Law circles. Flaherty, then an associate general counsel at Kia, was concerned that his company was paying too much to outside counsel to perform their work. He was particularly concerned that younger associates at these large law firms were not efficiently utilizing document-creation tools. So he devised a test to measure whether the associates at the retained firms could properly use Word to make some simple changes in documents containing hundreds of pages. Understanding how to use styles in Microsoft Word is literally the difference between spending a few minutes versus spending hours to correctly change a complicated document like a contract.

Flaherty wanted to make sure his outside counsel spent minutes and not hours for such corrections, since the hours translated into more billable time. The long story short to the Kia audit: Not one of firms Flaherty tested was able to successfully pass the test. This resulted in a giant discussion about how to identify, train, and test on such competencies. For example, a group of some of the largest law firms banded together to identify a core group of legal technology competencies. This effort resulted in the creation of the Legal Technology Core Competencies Certification Coalition (LTC4).

Several members of the Academy are now examining models, such as LTC4, to bring to the curriculum. The best thing about technology competencies is they can be easily tested to determine whether the student has the requisite skill set. Moreover, it can be done outside of the classroom at the student’s own pacing and repeated as often as it takes to ensure the student has the skill set. This is quite different from a standard law doctrinal class such as contracts or torts. The standard law curriculum obviously still applies, but our challenge is to find ways to weave this teaching into the current curriculum.

Initiatives underway

I arrived at the University of St. Thomas School of Law on July 1, 2017 after five years at the University of Missouri-Kansas City School of Law. During my time at UMKC, I was fortunate to be supported by my dean, Ellen Suni, and to work with colleagues like Tony Luppino to begin to build out a structure for teaching technology in the Academy. With funding from the Ewing Marion Kauffman foundation, UMKC hosted a number of conferences and events under the general title of Law Schools, Technology & Access to Justice.

Several developments emerged from these conferences, which involved a very large cross section of members of each of those communities. Among the most important were the development of the Kansas City Principles, which were created to serve as the foundation for developing curriculum in the Academy to teach technology. These principles are as follows:

Fundamental Principle #1

In their role of ensuring that the lawyers of tomorrow have the core competencies to provide effective and efficient legal services, law schools have the responsibility to provide all students with education and training to enable them to understand the risks and benefits associated with current and developing technologies and the ability to use those technologies appropriately.

Fundamental Principle #2

In order for lawyers to fulfill their professional obligations to advance the cause of justice, it is essential that economically viable models for the delivery of legal services be developed to allow all members of society to have access to competent legal representation or effective self-representation, regardless of income. And law schools should assist in the development of technologically supported legal marketplaces that help identify available alternatives and, where legal representation appears most appropriate, to empower those seeking the services of a lawyer to identify and retain a competent lawyer of choice at reasonable cost.

Fundamental Principle #3

As part of their responsibility to assist in providing access to law and justice, law schools should use their legal knowledge and technological capabilities to make the law more comprehensible and readily available to the public so as to empower people to use the law and, where appropriate, lawyers to improve the quality of their lives. This endeavor should include, among other initiatives, working with national, state, and local governments to provide the public with free online access to statutes, regulations, cases, and other primary law at all levels of government.

Fundamental Principle #4

In order to encourage community economic development and contribute to a strong global economy, law schools should educate lawyers who can stimulate entrepreneurship and innovation and assist in developing technology to support economically viable means of providing affordable legal services to small businesses, social ventures, and start-up enterprises.

Fundamental Principle #5

Because technology has the potential to reinvent the processes of law in ways that can help achieve access to justice, law schools should encourage their students, faculty, and graduates to research, teach, and implement non-traditional, technology-driven approaches to legal innovation that will maximize the ways in which individuals and entities can achieve the benefits of law and legal process.

Moving forward

These principles have been the basis of an even larger discussion that has been taking place at the ABA Techshow over the last three years. We began the 2016 ABA Techshow with a Dean’s Roundtable posing the question, “Has teaching technology reached a tipping point in the Academy?” This very well-received session brought together law school faculty from several institutions to continue the “how and what” discussion about teaching technology in law schools.

The ABA Techshow, which started in 1986, is now the premier annual legal technology event, especially for solo and small firm attorneys. It seemed the logical place for the Academy to set up shop to learn from practitioners the technology needs they were seeing in practice and to interact with vendors to understand the marketplace. Because of the success of the roundtable, Adriana Linares, who became the 2017 ABA Techshow chair, helped us set up the first-ever academic track for Techshow. This track, which ran parallel to and during the show, drew 40 faculty and students from 32 different institutions as well as some practitioners. It also generated a great deal of energy and enthusiasm and plans for class development. The first-time effort was such a success that the 2018 Techshow, under the guidance of Co-Chairs Debbie Foster and Tom Mighell, will now include an official academic track.

These developments are still in their beginning stages, and there is still much work to be accomplished. I am at St. Thomas because I believe, particularly under the leadership of Dean Rob Vischer, that St. Thomas can take the lead in developing technology-fluent and tech-forward law graduates who will find ways to use technology to be better lawyers and provide consumers better access to the law. I believe that St. Thomas graduates will be committed to finding ways for technology to improve social justice as well. Much of how we provide access to the law in the future will come from using technology to disrupt and innovate in the name of providing better service.

And thanks to the Mnnesota State Bar Association, there will be a giant opportunity to engage in this discussion at TechStar,
the 2017 MSBA Tech Conference that will be hosted by the University of St. Thomas School of Law on October 9. As the conference title says, by attending you will “learn how new trends in technology are disrupting and reshaping the legal profession.” I can tell you that some of the people who have been most responsible for setting the stage to teach technology in the Academy—such as Adriana Linares (LawTech Partners), Tony Lai (Legal.io), and Ed Walters (Fastcase), among others—will be presenting and providing important insights into the trends that will be shaping the future of the industry. St. Thomas is very proud to be hosting this important event and helping to lead the discussion of how the Academy must prepare tomorrow’s lawyers. But this conversation is an important one for all the law schools in the Twin Cities and we hope that students and faculty from other institutions will be equally drawn to this well-designed conference and CLE offering. This is simply the must-attend tech event for Minnesota lawyers.


Michael Robak is the director of the Schoenecker Law Library, associate dean for Technology & Information Services, and clinical professor of law at the University of St. Thomas School of Law. He is a graduate of Indiana University McKinney School of Law. Before entering academia, he was the director of legal research for Charles River Associates.


 

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