The Technology Trap ------------------- _American_Lawyer_, April 1995 David G. Post So, you're all set up in your new technological wonderland: you can process words with the best of 'em, your e-mail connections with colleagues and clients are in place and working smoothly, your calendar and rolodex are installed and running on your electronic desktop, your new fax board lets you send documents straight from your computer anywhere in the world, and all of the deposition transcripts in that big case you're working on have been loaded onto your hard drive and are searchable at the click of your mouse. Now that your work is so streamlined and efficient, isn't it a pleasure to think about what you will do with all of your free time? Hardly. Whatever else the information revolution has wrought, shortening the work week, or relieving the stress of the workplace, are not among its accomplishments. Edward Tenner, in a wonderful article in Harvard Magazine several years ago, called this the "revenge effect," technology's tendency to turn on its masters and recomplicate our lives. Sure, many tasks are easier than ever before -- indeed we now routinely perform tasks that prior generations of lawyers would have deemed impossible. But somehow the bar keeps inching upward; with so much more that we can do in terms of innovative and useful information manipulation, our expectations of what we should do seem always to outpace our expanding abilities. The symptoms of this maddening and perverse syndrome are everywhere. Word processing lets you edit your documents more easily? So now you print 15 drafts of every filing, and are always tempted to make just one more change as deadlines approach. Checking your incoming messages, once the simplest of tasks, now requires logging into and reading your e-mail, checking your voicemail box, calling your home answering machine, and checking the fax machine down the hall -- all in addition to the old-fashioned trip to your secretary's station. SEC filings, Hart-Scott-Rodino papers, Dun & Bradstreet reports, all available at the touch of a button? Terrific -- now your client expects you to have them all printed out (with copies, please) and summarized for that meeting this afternoon. Your litigation support vendor gushes about its ability to search the Jones v. XYZ file and find every scrap of paper with Ms. Jones' name anywhere on it in preparation for the Jones deposition -- which sounds a lot more attractive before you're confronted with the pile of documents and realize that now you're expected to have read all of this stuff before the questioning begins. This is all just another illustration of the Law of Unanticipated Consequences. Technology has, to be sure, changed the face of legal practice -- but it has done so, and will probably continue to do so, in unexpected ways. (A cautionary warning for anyone writing a column about what this all may portend for the future!) Most of us probably thought that the impact of technology adoption in institutions like law firms would run something like this: technological advances will eliminate (or at least reduce) the role of "support staff" performing the routinized, relatively ministerial chores that keep the firms humming along day-to-day - - everything from keeping track of accounts receivable to document filing to message taking -- leaving those higher up the information food chain free(r) to exercise their higher-order information-processing skills. This model may well have made some sense during "Phase 1" of law office automation -- the automation of back-office functions such as billing, accounting, and payroll. But now the trend line seems to be pointing in the opposite direction. A number of surveys (by the ABA, the Department of Labor, Altman Weil Pensa, and others) have indicated, for example, that associates and legal assistants are increasingly competing for scarce work within firms, and that the former are slowly being displaced by the latter. Client pressure regarding fees is, to be sure, probably primarily responsible for this development. But this may also reflect in some measure a more fundamental shift to increasing dependence on support staff as more firms more to Phase 2 of the automation process, wherein information-processing tools become more deeply integrated into the work that their lawyers are doing. Take, for instance, the case of the local area networks (LANs) springing up in most mid- to large-sized firms (and in many smaller firms as well). If viewed as nothing more than glorified filing cabinets for electronic documents, LANs should all but eliminate the need for armies of file clerks to keep track of firm documents. But electronic document storage and retrieval is so much more powerful than its paper-based analogue that we are not -- and should not be -- content merely with replicating those tasks that we could perform in an earlier era. A LAN, if properly configured and maintained, can be an important strategic resource, allowing work product to be shared across the firm and re-used for multiple applications. Maintaining a LAN for that purpose, however, is a sophisticated information-management task, hardly a job for a file clerk (even a glorified one); the many technical decisions required to make good use of this investment must be made with an eye towards understanding the ways in which information is going to be used across the firm. Should practice groups have their own document databases? Should keyword abstracts be prepared for all, or some subset of, documents? Should all drafts be saved, or only final versions of documents? Must intra-firm "Chinese Walls" be reflected in the databases? Should select documents be annotated by their authors to increase their usability by others? Should clients or others outside of the firm be given access to some subset of the documents? "Database design" becomes too important to leave to someone who is not intimately familiar with broader questions of firm practice and policy regarding its core information-processing functions. Or consider the kind of "support" required to help manage the thousands, or hundreds of thousands, of documents in the context of complex multi-party litigation. A document database need not do more than replicate a relatively simple index of the kind that one might have prepared 20 years ago. This traditional model, however, does little to exploit the technology's potential for enhancing the way that lawyers perform the myriad levels of review required in a typical case (e.g., privilege review of client files, substantive review for interrogatory responses, review for deposition preparation, etc.). Because the new technologies, such as electronic imaging and more powerful full-text search programs, are capable of so much more, there is, inevitably, pressure to effect a more profound transformation of these processes; indeed, the enormous upfront investment in equipment and expertise required to utilize the new technologies at all may hardly be cost-justified if nothing more than replication of existing work habits is involved. Should documents be automatically "tagged" to record who reviewed them, when, and for what purpose? Should reviewers' annotations be entered into a database for later retrieval? Will handwritten marginalia be searchable electronically? Will "issue coding" of the documents be sufficiently flexible to allow reorganization of the database as the complexion of the case changes over time? Will lawyers be able to search the entire database and pull up relevant documents for printing -- all from their own workstations? Designing a litigation support system that incorporates any or all of these features, and managing operation of such a system in the high stakes and high pressure litigation context, however, are enormously complex undertakings, and the role of managing the document flow in this context requires both far more technical sophistication than most lawyers possess and a far greater understanding of the litigation and lawyering process than most systems analysts or database designers possess. In this environment, the necessary "support" can no longer be provided by a relatively unskilled, fungible army of low paid legal assistants whose main task is to keep boxes of documents organized and available for processing by the lawyers involved, and a role for a new kind of "information manager" will have to evolve if these tasks are going to be efficiently performed. This in turn may put increasing stress on the hierarchical organization of most law firms, with their clearly defined lines of authority (not to mention status and salary) between attorneys and support staff. Many lawyers are, and will continue to be, made uncomfortable - - and may feel downright threatened -- by these developments, by the degree of control over the litigation process that will now be placed in the hands of non-lawyers, and by the demands of these non-lawyers to be treated (and, increasingly, compensated) as professionals. But only those the firms that can manage to attract and integrate these new and highly specialized skills into their mix will be the ones who successfully manage the transition to the increasingly automated workplace and who manage to more effectively utilize the newly available tools to supply their clients with higher quality value-added services.