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INTERVIEW: How COVID Changed the Courtroom (and the Future of Law)

When COVID-19 struck the United States in January of 2020, every industry in the United States (and, really, the world) was shaken. It forced everything from mom-and-pop restaurants to the largest law firms to send employees home, left to their own devices to figure out how to run a business from miles away. This problem was particularly evident for those in the legal industry. As the pandemic continued into April, firms began to take drastic measures in response to decreased demand for legal services. Many law firms opted for pay cuts, in an attempt to save as many jobs as possible. However, some firms were still forced to lay off paralegals, attorneys, and other legal professionals[1].

While the demand for legal services subsided at the beginning of the pandemic, there was no decrease in the need for legal services[1]. After all, the pandemic provided a bevy of new legal questions that attorneys and clients alike had to ponder. So, while people weren’t speaking with lawyers during the height of the COVID-19 pandemic, a backlog of people needing legal help was growing quickly. Although business was down during the height of the pandemic, two attorneys, Nancy Rapoport and Joe Tiano Jr. predicted that the pandemic would only cause temporary struggles for the legal industry, while also forcing old-school firms to innovate.

Nancy is the Garman Turner Gordon Professor of Law at the William S. Boyd School of Law, University of Nevada, Las Vegas (UNLV), and Joe is a former lawyer turned businessman who founded Legal Decoder, a legal tech software that optimizes efficiency and pricing uncertainty. Together, they authored The Legal Industry’s Second Chance to Get it Right, which foresaw the legal industry’s comeback in February 2021, and they offered their insight on the future of law in an exclusive interview with AXEL. 

How COVID Changed the Courtroom

“All of the stuff that we thought we knew about the practice of law has been wrong,” Rapoport says. Regarding the pandemic, she says, “it gave us a chance to rethink what a law practice should be.” While nearly every industry had to learn new things like Zoom meetings at the beginning of the pandemic, legal professionals faced unique challenges.

“The inability to read a witness’s or deponent’s body language … Doing it over Zoom is a challenge,” Tiano said. “You can’t read body language. It’s kind of hard to see inflections … It had to be an enormous hurdle for any lawyers who’ve been practicing the same way for decades.”

In addition to these remote depositions, the COVID-19 pandemic introduced new ethical dilemmas for legal professionals as well.

“There are now cases saying ‘Lawyers, stop texting your clients’ answers.'” says Rapoport. She describes a case where attorneys would communicate with witnesses during testimony through email, an impossible task to pull off in a physical courtroom. “No one does that because it’s unethical, but now we have to come up with all of these new ways of dealing with court and mediations, bringing people into separate rooms, dealing with witnesses.”

The Legal Industry’s New Challenges

Even before COVID-19, some observers predicted a radical change in how firms charge their clients[2]. For years, law firms big and small have used the “Billable Hour” model, a simple formula where a firm charges the client a certain cost per hour. Put simply, “[the billable hour] is the economic model upon which a law firm operates,” Tiano says.

After the pandemic hit and the demand for legal services dropped, many predicted that this radical change would finally occur. However, the industry-wide shift to alternative pricing agreements never came, even with the massively decreased demand for legal services at the beginning of the pandemic. But why didn’t alternative pricing become the norm, especially in a time as volatile and tumultuous as the pandemic? As Rapoport humorously puts it, “the billable hour is easy for lawyers because we’re not good at math.”

But just because it’s the most common pricing agreement doesn’t mean it’s the most efficient. “If we used data and we figured out other ways to value delivery of services, we’d all be better off,” Rapoport says. “[The billable hour model] encourages piling on of work, and it encourages slow work, neither of which a good lawyer should want to do. But if that’s the reward system, it’s very hard to break away from that. I would love to see people use data better, to rethink how they adjust the value to clients.” As Tiano succinctly puts it, “there’s a fallacy that every hour is equal in value.”

In addition to the continued use of the billable hour, law firms also face new challenges related to the rise of at-home work. “One of our biggest worries is how the newest professionals are going to get trained and socialized,” Rapoport says. A common problem among many offices since the pandemic, the lack of socialization for new employees can affect everything from office camaraderie to firm loyalty. And with at-home work becoming more and more normalized, these anxieties that firms and businesses face are unlikely to go away any time soon.

Finally, as the pandemic wanes and legal demand increases, law firms face a unique problem: “One of the biggest challenges that firms are having today is keeping their personnel, because they have too much work,” Tiano says. Although the legal industry started to bounce back when COVID vaccines became readily available, the industry soon came across new problems. The sheer amount of work has caused firms to lose personnel, risking the continuation of the legal industry’s comeback after COVID-19.

Legal Tech: Tool or Replacement?

Rapoport and Tiano see the benefits of legal software as complementary, but are skeptical about the technology replacing skilled lawyers regarding the ever-growing legal tech industry. As Rapoport says, “there are some things that computers are better at than lawyers … They can do things all day long in nanoseconds.” There is no shame in using the tools available to lawyers, especially if it helps increase efficiency. However, Rapoport warns that “if we’re not careful about how we use technology, we’re going to create a generation of untrained professionals who will become senior without knowing how to do things.”

“We’ve got to make sure technology augments what lawyers do, rather than replacing the skills that lawyers uniquely bring to the table,” Tiano says. “It’s very difficult to counsel a client from a legal, psychological perspective if you’re a piece of software.”

However, just because Rapoport and Tiano see legal tech as a complementary tool for quality attorneys does not mean that technology won’t replace second-rate lawyers. Rapoport warns: “For lawyers who are good counselors, there’s no software in the world that replaces that. For lawyers that fill in the blanks, their days are numbered.”

The Future of Law

Legal tech is unlikely to replace every lawyer any time soon. As Tiano says, “I don’t see technology replacing lawyers. I see it amplifying what lawyers can do and supplementing their processes.” But just because your next traffic court lawyer is unlikely to be a software program doesn’t mean legal tech can’t help lawyers increase efficiency. Legal tech saves firms and clients both time and money. It’s a valuable tool that, when used correctly, can help clients and firms in a myriad of ways.

[1] Wittenberg, Daniel. “The Pandemic’s Dramatic Effect on the Business of Law.” Americanbar.org. American Bar Association, October 28, 2020. https://www.americanbar.org/groups/litigation/publications/litigation-news/business-litigation/the-pandemics-dramatic-effect-the-business-law/

[2] Ambrogi, Bob. “Guest Post: Beating the Alternative – Why the Billable Hour Is the Truest Representation of Cost.” LawSites, August 25, 2021. https://www.lawsitesblog.com/2021/08/guest-post-beating-the-alternative-why-the-billable-hour-is-the-truest-representation-of-cost.html

Common Pitfalls when Attorneys Adopt New Technology

The legal industry faces unique challenges to the adoption of new technology and digital transformation efforts. This article will discuss the most typical obstacles and introduce a framework that will help firms analyze whether a new tech solution is likely to integrate successfully.

Impediments to technological progress in the legal sector

Time investment. As you likely know, being an attorney isn’t a regular 9-5 job. A recent survey claims lawyers work an average of 66 hours per week[1]. That’s like a typical full-time and part-time job combined. So, all but the largest firms with dedicated IT teams can’t afford to spend too much time implementing new technology. Small firms and solo practitioners simply don’t have the resources to research, test, and deploy complex tech solutions.

Cybersecurity and confidentiality concerns. Legal professionals have needs that go above and beyond the average office worker when it comes to digitization. Due to attorney-client privilege and the ethical responsibility to maintain data security, attorneys need to be extra careful when upgrading their technology. They may have to look for approved ‘legal tech’ solutions when off-the-shelf consumer products don’t meet these standards.

The “billable hour” issue. Although there may be a shift in billing practices in a few firms, most still rely on the time-tested “billable hour” method. It may seem like a paradox, but the increase in efficiency new tech can bring might actually reduce a firm’s profitability due to fewer billable hours plus the cost (initial and ongoing) of the technology itself. While an increase in clients due to more free time could offset this problem, the demand for legal services, especially in less populated regions, probably won’t rise at the same rate.

The partnership model. The traditional hierarchy of law firms puts the “partners” at the top. Depending on the organization’s size, many decision-makers would need to approve any new legal tech initiative. This alone makes it an uphill battle, but add in the fact that partners tend to be older people who may not see technological advancement as a priority, and it becomes a serious deterrent. Obviously, this is a much more significant obstacle at larger firms, but any practice will multiple partners could face a difficult situation.

The “ignorance is bliss” dilemma. Solo practitioners and small firms don’t have the resources of their more massive brethren. This means that tech policies and solutions mega-firms implement have a hard time trickling down. Unfortunately, this can lead to solo practitioners developing an “ignorhttps://www.axel.org/the-10-worst-data-breaches-of-the-decade/ance is bliss” mantra, even if they don’t necessarily believe that to be the case.

For example, whereas large organizations may completely ban the use of insecure applications such as Dropbox for confidential file transfer or storage, smaller practices could still use them due to familiarity. They don’t search out current best practices for data storage because they may fear switching and disrupting their workflow.

While this is an understandable reaction, we urge attorneys to push through this bias for their own sake. After all, if a serious data breach occurs and the lawyer has not lived up to their ethical responsibilities, it becomes an even worse situation.

The innovation-decision process

We recommend running through the innovation-decision process before making conclusions about a particular technology’s viability for your firm. This process goes as follows:

  1. Assess comparative advantage. Does the new technology offer a substantial upgrade to your current systems? Define these advantages and review the overall impact they will have.
  2. Analyze compatibility. Does the solution fit into your existing workflow? If not, what resources will you need to allocate to adapt your business practices?
  3. Consider complexity. If you do need to adapt, calculate the cost-benefit analysis (not just financial, but also psychological) of doing so. Will it be a complicated endeavor? Do the results outweigh these complexities?
  4. Evaluate trialability. See if the vendor offers any sort of trial or demo. You can test out the solution, receive critical feedback and preliminary effectiveness metrics before committing to the entire project.

If you go through this process and discern that the tech is worth using, you will be much more confident in the solution and have a greater chance for success.

Your firm and AXEL Go

While the decision will still be challenging in many instances, sometimes the Universe serves up a no-brainer. AXEL Go is a secure, private file-sharing and cloud storage solution that overcomes the common obstacles and scores well on the innovation-decision process.

With the sudden shift toward working remotely, many attorneys find themselves in need of an easy-to-use file-sharing application that can fit seamlessly into their legacy workflow while providing more robust data security. AXEL Go is the perfect solution for any such lawyer. It has many innovative advantages, including:

  • Industry-leading security. AXEL Go runs on a secure, decentralized network that features blockchain integration and file encryption. Documents stored on the network go through a process of “digital shredding,” where only the uploader and recipient (if there is one) have access to the complete file.
  • Secure Fetch. Think of it as a digital courier. You send a secure, encrypted link to a recipient and request certain sensitive documents. They upload the necessary files, and you receive a notification for download. Recipients do not need AXEL Go accounts, meaning you don’t have to badger clients or colleagues to sign up for new services or software. You get to meet data security guidelines without any hassle or inconvenience.
  • Microsoft Outlook integration. You can now send confidential data via email without having to rely on insecure attachments. Using our Outlook plugin, you can send fortified AXEL Go links directly in an email with the click of a button. It’s a simple process that fits within traditional workflows.

With partnerships with the State Bars of states such as Connecticut, Florida, Nevada, and Georgia, it’s fair to say the legal community sees the unique value proposition AXEL Go offers.

According to a 2021 survey by ALM[2], 56% of legal teams consider “data privacy and security” as their primary focus for 2021. It makes sense when you understand the high probability of attempted hacks and data breaches every firm faces today. Don’t just wait around waiting for the inevitable. Be proactive and protect your most sensitive information with AXEL Go.

If you’re interested in seeing it in action, you can enjoy a completely unlocked trial of our Premium service for 14-days. Sign up today and see the AXEL Go difference for yourself.

[1] “How Many Hours A Week Does A Lawyer Work?”, careerigniter.com, https://www.careerigniter.com/questions/how-many-hours-a-week-does-a-lawyer-work/

[2] “What Do Legal Professionals Expect From 2021?”, Mitratech.com, 2021, https://mitratech.com/resource-hub/whitepapers/alm-survey-legal-tech-plans-2021/

Why Data Breaches are so Damaging and how the Law has Failed Consumers

Very few times in history have a group of people sat down with the purpose of writing a set of new laws to improve society. Instead, what usually happens is that laws are written to solve specific problems. This leads to a litany of laws piling up over the decades. While it could always be debated how effective a particular law might be at accomplishing its goal, the rapid pace of technological advancement over the past 20 years – especially as compared to the pace of the lawmaking process – has introduced new challenges as laws become quickly outdated, sometimes even by the time they take effect.

The results of this are acutely apparent in the cross-section between the fields of cybersecurity and consumer protection, namely data breaches.

The magnanimity of consumer protection laws in the United States were written for a society concerned with immediate product safety and compensation for resulting injuries, not for the nebulous and incalculable injuries that may be sustained by potential millions when private records are exposed.

Why are data breaches so damaging?

The unique problem of data breaches stems from the fact that the breach of privacy carries in of itself no specific harm. Instead, it is the later misuse of information that has been breached that may lead to ensuing harm. However, with data breaches occurring on a near-daily basis, the causality of specific financial or reputational damage is nigh impossible to link to a single breach causally; with our laws written around the concept of calculable damages being the source of justified remuneration, we are left constantly and increasingly victimized but unable to seek just compensation.

Some would argue that even more problematic is the irreparable nature of many of the most severe data breaches. Once a name and social security number are leaked, that identity is permanently and irreversibly at risk for being used fraudulently. While one could always apply for a new social security number, the Social Security Administration is extremely reluctant to issue new identities, and while that is a debate for another time, it goes to show just how difficult it can be to recover from a breach. Victims are permanently marred and at increased risk for future injuries resulting from a single breach, no matter how much time has passed.

Because of the damage resulting from a data breach being so far removed temporally and causally from the actual breach itself, adequate compensation is rarely won, if it is even sought. Was it the Equifax breach, the MoviePass breach, or one of the innumerable other breaches this year that resulted in your identity being stolen and used to take out fraudulent loans a decade from now?

Moreover, even if you should find that it was MoviePass’ negligence that leads to your identity being stolen, what compensation can you seek from a company that has been defunct for years? Our laws were not written to address these issues adequately. Our legal system often does not ponder questions of uncertainty and possibility, and that’s the perfect summary of what victims face in the aftermath of a breach; uncertainty and possibilities.

For all the uncertainty victims face, the solutions going forward as a country are equally opaque.

It would be easy to write some draconian law to punish companies for exposing private data, but as is often the case, that could have unintended consequences, such as pushing data overseas where even looser security and weaker privacy laws may exacerbate the problem. Instead, it’s going to take a significant shift in our collective-consciousness over how data is handled.

Laws written for managing telecommunications and transmissions in that era are being used to handle complex cybersecurity and data privacy cases.

This can’t come just from one party though; companies need to seriously consider what data they need to collect, and what information needs to be retained on a long-term basis. Consumers have to take ownership of their data and demand a higher quality of service from corporations and governments over how their data is collected and used.

As a whole, we must recognize the value of data, and the dangers we expose ourselves to by collecting it (and why it might even be best to not collect data at all in many circumstances).

Just like holding valuables such as gold and art entails a security risk, so too does data. If people started treating data like the digital gold it really is, maybe then we could all come together to work out a solution.

But until then, I’ll be keeping my data to myself.

Keeping Up in Court

It’s the day before the big hearing.  The Motion was perfect; Opposition just ok – no surprises, and your Reply crushed it.  This is the second time you will be arguing your Summary Judgment Motion.  A Rule 56(f) Opposition carried the day six months ago; but it’s more than ripe this time around.

You sit down to download all three pleadings to your iPad; with exhibits they total about a foot-thick of paper.  But, in PDF format, the files are too big for the storage left on the device.  To make matters worse, you wanted to download a few other things for the hearing as well – their Opposition from the last hearing (since it makes a few arguments that help you this time around), the latest round of discovery responses (a perfect Interrogatory answer from their CIO exists), and a bunch of photos of your client’s product and their infringing product that your expert just testified to at his deposition last week.

The next two hours are spent deciding if you really need all the exhibits to the pleadings, what else you really need, and considering what you could take off your iPad.  WASTED TIME and ADDED STRESS.   As if you need either of those on the day before the hearing.  Finally, you decide to leave the Opposition exhibits and the new expert photos off the download, and remove a few unrelated things from the iPad and off you go.

Let’s take the worst-case scenario, and play it out.  During argument opposing counsel brings up a document from her exhibits – that you did not think was important enough to address in your outline – and it’s not on your iPad.  She also talks for a while about your expert’s deposition and two of his photos – which you don’t have either.

As prepared and articulate as you may be, you simply cannot address the nuances of her arguments on those three pieces of evidence since they are not right in front of you.  Motion DENIED.

I understand that in this hypothetical you could have hand-carried the documents to court.  But the point is, even when we carry twelve inches of material to court and/or download all the related pleadings, every now-and-then a question is asked or argument made related to a document we just did not have.  Sure, sometimes the judge will give us more time to address the evidence, but would it not be better to just have access to your entire case file – no matter how big?

This scenario happened to me a few times in my 18 years of litigation.  Sure, there was more than one time where I simply forgot to grab part of the file on the way to court.  But far more often, opposing counsel would bring up something completely unrelated to the issue, or from a prior hearing or long-ago completed discovery.  Every now and then, a judge would ask for something very specific or something silly like a date of service on Interrogatory packet #3.  In these instances the ability to access all your documents can be the difference between winning or losing your case. It’s important for any attorney to do their research on finding the best file management tools to ensure they have the important information on hand at all times.