Neil Cameron has been writing about lawyers and technology for ever where “for ever” means “even longer than I have”. When I first started getting into the subject in the ’90s, Neil Cameron was already there, writing articles and giving talks which covered everything from infrastructure and applications to law firm IT strategy. He was the first person I came across who used everyday personal technology as it emerged and correctly anticipated the convergence between the technology and the skills to use it and their application to business practices.

Casey Flaherty is a new arrival on the this scene, causing a stir from his position as in-house counsel by testing and criticising the inability of external lawyers to use the most basic technology efficiently and, as a separate strand, urging eDiscovery providers to come up with a standard format for quoting for their work. I first came across him in San Diego last year and I interviewed him at Cicayda’s RelEvent conference in Nashville last year – the video is here.

Neil Cameron’s article Can most lawyers use their law firm’s expensive IT properly? focuses primarily on Casey Flaherty’s first point. I won’t paraphrase it for you because it is worth reading. I like in particular the reference to “rocket surgery” in a sentence about auto paragraph numbering with its (possibly unintended) implication that lawyers are trying to fix something which is moving too fast for them to get a grip on.

Who should be paying for this inability to use the basic tools which technology gives us? Neil Cameron (quoting Casey Flaherty) is surely right to say that the answer lies in transferring the cost to the lawyers. He says this:

Let us remember what Casey Flaherty says: “the audit is not the answer, AFAs are the answer”.

He may be right, I think he is right, and if he is then that simply transfers the cost of lawyers’ incompetence from the client to the law firm. So effective training of lawyers in technology is no longer just an issue of a waste of money, or even inefficient client service – it becomes a key factor in a law firm’s realisation. In other words; profitability.

This echoes a point which I make about budgeting skills in eDiscovery / eDisclosure. Relatively few lawyers, so far as I can tell, have any real idea of what it costs to undertake an eDisclosure exercise, not least because they rarely capture the metrics from previous and similar tasks. The Civil Procedure Rules of England and Wales now require costs estimates for eDisclosure, including the external provider costs which are the subject of Casey Flaherty’s second limb of complaint. No-one but a fool suggests that it is easy to budget for eDiscovery / eDisclosure, particularly when the requirement in the rules is that this must be done at a very early stage, and many respected lawyers argue convincingly that wringing meaningful numbers out of a case whose shape is as yet barely discernible is both meaningless and a cause of wasted time and unnecessary expense.   Nevertheless, clients increasingly expect predictions, quite apart from any requirement of the courts.

At the same time, they are requiring alternative fee arrangements from their lawyers which effectively pass the risk of overruns to the lawyers. If you do not have those basic budgeting skills (which include the ability to get meaningful estimates from providers), it is jolly difficult to anticipate the point when profit erodes and you start working on disclosure / discovery at your own expense.

Casey Flaherty’s two discrete points – about the technical competence of lawyers and the predictability of eDiscovery costs – come together: get it wrong and and it will be your profit which suffers, not the client.

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