Technology Changing the Litigation Game

There's no mistaking that new technologies are transforming the practice of litigation. Today's litigators take depositions via videoconferencing, scour social networking Web sites for dirt on the opposition and communicate at all hours of the day and night with opposing counsel via Blackberry. Technology can overlook the time-tested interpersonal styles that facilitate skills development, but it can also offer a leg up when it comes to seamless client service and flexible schedules, a trademark that is here to stay as more Gen Ys enter the workforce with an innate expectation of using these tools. The successful litigator must temper the tension between the obvious personal and professional benefits of taking full advantage of new technology and the corresponding loss of face-to-face interaction.

There is no doubt that the practice of law, as with all businesses, has changed dramatically with advancing technologies. Gone, of course, are the days of typing briefs on a typewriter and using carbon paper to copy. Even the old word processors have faded away as we all now sit with our own, much more compact personal computers or laptops. Delivering documents has gone from the mail, to messengers, to facsimile, to PDF via electronic mail. Today, most law firms dole out Blackberrys (or similar handhelds) to their practitioners, allowing for constant e-mail and document access regardless of locale. The ability to carry your office with you does not even require taking up residence at the nearest coffee shop, because wireless Internet access is also portable.

When considering the daily tasks we complete as litigators, accomplishing them in a specific location is not required. With the ability to access all the documents in a case ' the file, the court docket, the calendar, the related e-mail, legal research and the firm's document management system ' remotely, it is possible to practice law without an office (and many people do). Even legal team meetings can happen from multiple cities through teleconferencing. And while most firms still adhere to the traditional “office” model, the technology is still having an effect on these traditional environments.

Technology's Impact on
Seamless Client Service

The most significant utilization benefit of advanced technology in the practice of law ' more so, even, than improved quality of life for lawyers ' is that it allows for seamless client service. No longer is an attorney inaccessible to the client when he or she is out of town, on vacation or even in trial. The combination of the Blackberry, desktop fax delivery and digital phone service (IP telephony) allows attorneys to receive the client's message instantly, regardless of how it was sent. And while there are still certainly times when you cannot devote significant time to a client's need (such as when you are trying a case for another client), the Blackberry is a great tool for allowing an attorney to shoot a quick response indicating when he or she will respond, and at the same time directing someone else to do the background information needed for it. Moreover, for those clients who place a premium on “going green,” the ability to interact with a client paperless can be a very attractive option. This goes beyond simply e-mail: Secure electronic files that are accessible to both the attorney and client can operate as virtual file cabinets ' also a great new advantage. Even old schoolers, who still struggle with adapting to typing their own work, are benefiting with new voice recognition technologies that benefit the client through increased response time as well as less attorney time, which translates into lower bills.

Face Time v. Response Time

Combining the oft-lamented traits of the new Gen Y lawyers with the technology changes further highlights how litigation is changing. The Gen Y-ers, with their desire to “have a life” even before they consider adding children, are willing and capable to use the technology to allow them to do that. The technology allows a Gen Y associate to receive an inquiry from the senior partner who arrives at the office by 6:00 every morning ' or from a client on the east coast ' and can respond immediately without leaving his or her pajamas or cutting short the morning coffee shop ritual. “Face time” has taken on a whole new meaning, as credit is now given for “response time” instead.

Although these advances and the resulting changes to the daily practice of law allow ' and may even require ' litigators to exist with an “always on” mentality, they also allow for regular and seamless departure from the grind for the Gen Y-ers out having their lives.

Widely available teleconferencing capability means that an attorney can participate in a meeting, a scheduling conference, or even a deposition from anywhere. A weeklong vacation does not mean disengaging from the litigation of a case for a week as it once did, allowing the Gen Y litigator to break away for that entire week without planning the vacation entirely around a court's scheduling order. Of course, the flip side of this coin may be that we are never entirely free from the demands of litigation, never permitted to be completely focused on our families or on ourselves, because the LED on the Blackberry is always blinking. Thus, while the older practitioners may view this as a burden and prefer to turn it all off and leave but be away for less time, the Gen Y-ers prefer the choice ' the ability to go and do what they want to do with periodic check-in can offer them the best of both worlds.

Fully Utilizing Gen Y's
Experienced Knowledge

The dichotomy in attitudes toward technology is not limited to the question of whether it is intrusive or freeing. It carries into every aspect of the practice. The explanation why is based on the same premise of needing to find a kid to help you master your remote control. A reasonably smart, more senior litigator can figure out how to use the technology. But the Gen Y-ers understand its capabilities and how to maximize it instinctively because they grew up with it. So, while a senior litigator may hear of a specific technology tool and ask for instruction on it and use it (such as using digital trial exhibits), the Gen Y associate will know instinctively how technology could assist with the litigation from the beginning.

Take this example: Middle-aged shareholder and Gen Y associate are handling a case together. In the course of a deposition, they learn of a potentially favorable witness to an accident, but there is incomplete identification. Middle-aged shareholder suggests hiring an investigator to find the witness. Gen Y associate recommends posting a notice on Craigslist. Guess which one cost less and found the witness first? Thus, while the middle-aged shareholder could certainly figure out how to make a Craigslist posting, it never would have crossed his or her mind to do so because the technology is not an integral part of who he or she is, as it is with the Gen Y-er.

The potential uses for technology in the every day practice of law are limitless ' and obvious once pointed out to you. Consider, for example, the utility of publicly available social-networking sites in researching a personal-injury plaintiff who claims to be unable to engage in physical activity. The plaintiff's Facebook profile features photos of his recent camping trip and a posting to a college buddy making plans to go wakeboarding over the weekend, and then Gen Y associate's
Facebook habit becomes valuable to the defense of the case.

Virtual networking sites also yield a breed of marketing to Gen Y-ers that is essentially unavailable to their more senior colleagues. Often, Gen Y associate has her own profile page on at least one networking site. As a result, Gen Y associate's long-lost friend from elementary school, who just happened to move to town and start a small business in need of legal advice, not only becomes aware that Gen Y associate is practicing law, but is also provided a low-stress method of contacting him or her. Thus, fully utilizing your Gen Y-er's innate familiarity with technology is a great low-cost way to improve client service.

From Innate Knowledge to
Ageless Knowledge

Several characteristics of e-mail communication, as opposed to face-to-face or even telephone communication, allow the current generation of less-experienced lawyers to be given opportunities for coveted client contact earlier in their careers than the generation before them. First, e-mail communication is blind. This allows the client to become familiar with Gen Y associate's name and to associate that name with the associate's carefully crafted, intelligent-sounding correspondence without coming face-to-face with a person who looks like their niece, daughter or granddaughter. Gen Y associate is therefore able to establish credibility with the client without receiving a setback for youth. Second, e-mail communication is delayed. Because Gen Y associate is able to take 10 minutes or an hour to research the answer to the client's legal question instead of having to shoot from the hip on the telephone, Gen Y associate is actually able to carefully craft her correspondence. The delayed nature of e-mail also allows Gen Y associate to forward client communications to senior partner for review before sending them, which raises senior partner's comfort level with entrusting client communication to Gen Y associate.

Not All Pluses

While the increase in technology, combined with the influx of Gen Y-ers in the legal marketplace, certainly presents new opportunities to improve client service, there are also potential pitfalls. The first is that both the Gen Y traits and the realities of technology work together to hasten the decrease in interpersonal interaction in the practice of law. Gen Y-ers opt to communicate less often in person or even over the phone than they do via e-mail or text messaging, and the new technology not only allows for this, it actually encourages it.

“Old time” practitioners have long lamented the loss of the small collegial practice of law. No longer do you lunch with your opposing counsel regularly at the club. Likewise, lawyers often do not even meet their clients face-to-face until a mediation or deposition prep session. Again, the increased reliance on e-mail and the emergence of Gen Y lawyers thereafter further distance the relations between opposing counsel.

The Internet is not only a valuable tool for searching for information on opposing parties. Attorneys of all ages should also be aware of what the increased availability of electronic information means for themselves. While Gen Y lawyers may be actively posting their own information in cyberspace, they are not the only ones out there with personal information available. In fact, any litigator should occasionally run a Google search on themselves to see what comes up ' everything from firm bios, to times in their last 5K run, to letters to the editor, political contributions ' even pictures of your role in your children's school fundraising skit. This is information that both your opposing counsel, judge and potential clients will see. Thus, all attorneys should be mindful of the first impression that he or she is presenting. On all of these, lawyers need to follow the maxim that you shouldn't have it publicly accessible on the Internet (or sent to other counsel) if you wouldn't be comfortable having it in front of a judge.

Conclusion

Although the use of virtual communication is both faster and less expensive than in-person interaction, it is crucial that legal practitioners not lose sight of the fact that face-to-face contact cannot ' and should not ' be replaced completely. In-person interactions foster trust, and for this reason, an attorney's relationships with his or her clients must be maintained, at least in part, through face-to-face interactions. Similarly, Gen Y associate must be aware of the fact that interacting with senior partner in the office and at firm functions will instill a confidence in his or her ability to interact with, and represent, clients that virtual communication with senior partner simply cannot. Likewise, personal interaction with opposing counsel can also serve to make the litigation less adversarial and thereafter less costly for the client. The successful litigator will capitalize on technological advances to provide superior client service, but not completely abandon time-tested methods of conducting business when a more personal interaction will, in fact, better serve the client's interests.