Updated: Feb 10

We’ve got good news and bad news. The bad news is that your corporate legal culture might not be suited for adapting to, integrating, and maximizing technology. And adding more tools won’t help.

The good news is that there is a well-worn path to shift the culture toward one of innovation: by changing from a pure, hidebound process-and-policy approach to a project approach whose purpose is continuous improvement.

But it’s not easy, cheap, or risk-free.

What’s the problem today? The authors of LexFusion’s 2021 Legal Market Year in Review argue emphatically that the “logjam” in evolving corporate legal culture comes from the very structure of organizations.

“Lack of specificity and accountability create ambiguity for consensus-driven organizations, as collective decision making will almost always default to stasis…It is sad when we can direct someone towards a fit-to-purpose tool that will make their life less arduous, but the buying mechanics turn out to be too labyrinthine and friction-laden to make good things happen.”

It’s even sadder, they say, when a customer doesn’t even need to buy a tool because they’ve already owned something workable for years, but “the lawyers themselves have no clue the tool is at the ready.” The authors discuss the “missing feature fallacy.” Basically, the false premise that everyone would start using a tool if it had just one specific feature added or a process were tweaked just so.

When complexity and perfection become the enemies of improvements and “good enough,” you’re stuck. A lack of agility costs opportunities and could metastasize into a threat. How can law firms and corporate legal departments position themselves for innovation? Shifting a culture toward innovation means de-emphasizing checklists and focusing only on the most important handful of objectives. Doing fewer things (that directly relate to goals) very well is harder than accomplishing a quantity of to-dos.

A project culture – especially following agile principles – promotes “failing fast,” solving the most urgent problems first, and saying “no” to attempting everything that’s possible. (At Cloud Court, we have a tradition of “hit it with the simple stick.” It’s a favorite expression that has saturated our everyday culture. For example, if we’re trying to do too many tasks with the same tool, or someone is trying to solve for too many variables once, invariably someone will say, “Let’s hit it with the simple stick.” Saying “no” becomes a little easier and the way forward is usually clearer.)

When “agility” and “innovation” are not just lip service but actual values in practice, they enhance an organization’s performance and competitive position. Per the authors, “Projects require lawyers to spend less time doing legal work and more time doing what is required to deliver legal work differently going forward, from learning existing tools (furthering the adoption phase of existing projects) to helping develop new tools (sponsoring and adding value to new projects).”

“Spending less time doing legal work” may strike some as a non-starter. But while projects might take away time from legal work, they are investments that can and should deliver precise returns in the near future, such as improving efficiency, reducing costs, improving agility and responsiveness to opportunities and threats, and not the least, contributing to work-life balance for attorneys.

Projects enable organizations to switch from "inching forward" to taking leaps. The time is now for firms to take advantage of LegalTech that can do intensive, stressful tasks as well as a person, but faster, and at a fraction of the cost.

If you or your litigation team have an initiative to look for ways to improve deposition performance, accelerate resolutions, or achieve better outcomes, contact us and request a custom demo.

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2021 was another weird year. Lawyers are burned out. A Great Resignation is creating a cascade effect. Tech is more important to corporate legal than ever, and our industry continues to shift dramatically (read: scramble like crazy) to adapt to a new normal.

We’re entering 2022 with this mission in mind: to help corporate legal professionals excel and adapt through process innovation where we believe it will deliver maximum bang. Our core competency is delivering extraordinary advantages before, during, and after depositions.

Recently LexFusion published an article, 2021 Legal Market Year in Review. Some recurring themes really stood out to us. It discusses the dire need for the culture of corporate law to evolve and adapt.

Paraphrasing just one argument from it: as demand for legal expertise rises, so does the cost. What’s the answer? “To truly bend the cost curve, we must materially improve productivity via innovation—i.e., leverage legal expertise through process and technology to execute well at scale and pace.” Read the article.

Following are some highlights and additional thoughts pertinent to our space, depositions. The culture of corporate legal is ripe for a revolution and it calls for shifting views on technology. “On the individual level, we’ve never encountered so much enthusiasm for improving upon the status quo…”

Obviously, it won’t be an easy or an overnight change. In a culture that thrives on stability, dominated by the construct of precedent, it’s no wonder that innovation and adaptation are sometimes especially difficult (or even threatening) concepts to embrace.

For example: when you think about a deposition, what’s the number one most stable technology you can think of – beyond stylus and papyrus? Our strong hunch is you’d say, “The stenotype machine,” and you’d be right. The steno machine dates back about 150 years. It’s incredibly reliable. It’s lightweight, to the point that many court reporters bring a backup. It’s fast, enabling court reporters and other stenographers to achieve north of 225 words per minute.

However… the pace of technological change has accelerated exponentially, per Moore’s Law, in the last 50 years, to the point where IT has infiltrated every single industry and certainly created its own. We’ve arrived at a juncture where the reliance on human beings and a growing scarcity of skilled transcriptionists is intersecting a leap forward in speech-to-text, collaboration, and content management technologies.

Within the next ten years, the USA’s projected demand for court reporters will be more than double the available workforce. At the same time, using current technology, it’s possible to accurately record and transcribe most legal proceedings with a high degree of accuracy. Tech-savvy attorneys and firms are experimenting with “outsourced” on-demand deposition services, some who rely on machine-driven transcription, others who rely on offshore teams.

Legal practitioners and litigation support professionals will either stick with the status quo, operating primarily on fear of adoption struggles and objections to flaws in new tech, or they will embrace new capabilities as well as augmented productivity and speed, finding ways to solve exceptions, adapting their practices today and in the future. There will always be a need for trained court reporters, perhaps also for the stenotype machine, but the environments of courts and depositions and their supporting technologies are evolving.

Ultimately, useful tech benefits the greater public, but in corporate law, the culture of stability risks stifling beneficial innovation. LexFusion’s authors make the point, “Our ‘wicked problem’ demands a cultural recalibration, not merely a technological augmentation. Tech is necessary. But tech is not sufficient.” Later, they also state, “The good news is that a fair amount of latent infrastructure is already in place. The depressing part is how few practitioners know it’s there.”

While doing research, we came across a few examples of this. In a follow-up post, we’ll discuss what we think are the contours and possibly some of the building blocks of an innovative culture.

In the meantime, check out the industry-leading speech-to-text AI in Armatus (demo video) and let us know if you’d like a custom demo.

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That is, do tech-savvy attorneys do depositions differently? We spoke recently with two seasoned litigators about how they take and defend depositions.

  • Damien Riehl has 15 years' experience as a technology litigator, and he is a software designer currently helping lead development of Fastcase’s research and litigation-analytics products.

  • Mike Rueckheim is a patent litigator and partner of Winston & Strawn LLP focused on representing clients in disputes involving complex technology patents, and he has more than 10 years of high-tech experience prior to law school.

For deposition strategy, we were curious about what they did differently in depositions that they felt contributed to their success. Some key themes emerged.

1. Realtime transcription is a clear advantage. Immediate access to a rough transcript is a must-have.

Despite the high value litigators place on realtime transcription and rough transcripts, realtime certified court reporters — especially reporters specializing in niche subject / technical fields — are almost universally scarce. Their services also come at a hefty premium.

Mike, who frequently takes and defends depositions, insists on realtime transcription in every deposition. “I can’t remember when I haven’t used it.” He says it helps him to track key branches of the interview, easily refer to statements from minutes or hours before, and decide whether he needs to explore a line of questioning further. “I think attorneys who don’t use realtime transcripts are missing out.”

Damien’s skill is an outlier. “I type at about 125 words a minute, so taking notes on my laptop was actually faster than realtime.” Having the capacity to capture testimony as it was being spoken allowed him to organize it better and annotate it immediately after a deposition. It also avoided friction if a client did not want to pay for a realtime-certified court reporter.

2. Silent, inconspicuous collaboration with remote participants or a second chair in the room offers multiple advantages.

Remote collaboration poses a big advantage, and if you’re already taking or defending a deposition via Zoom or Microsoft Teams, really, why wouldn’t you?

Damien suggests, “Inconspicuous collaboration with an in-house counsel is a good capability. If I’m taking a deposition, having 12 people visibly on my side can be intimidating. One person on my side is less intimidating. Therefore, the witness may be more forthcoming.”

Mike details a common collaboration scenario. “Sometimes you’re going to want a second chair attorney present throughout the deposition, but that isn’t always cost-effective.” It’s already common practice to call an associate to discuss something during a break, but if that remote person can see exactly what the witness is saying, they can augment the deposing attorney in real time.

Collaboration during a deposition adds value. Mike will typically leverage chat software, text messaging, and email, whether associates are listening in or not. “I’m not a fan of breakout rooms, I’m just a little distrustful of it. I like to have a completely clean cutoff discussion.”

3. Realtime deposition transcription and collaboration tools are secret weapons that augment your effectiveness and, when defending, the success of your witness.

Why bring more applications into a deposition when you’re already multitasking? If the new application consolidates tools, that is a plus.

Mike typically brings three screens to every remote deposition. “I’ll have my laptop screen running my Zoom window. Another screen will have my exhibit list and my realtime transcript. And then I’ll have my notes on another screen, so I’m multitasking and trying to come up with questions at the same time. So if there’s a way to streamline that, to simplify the multitasking for an attorney taking a deposition, it makes them more effective.”

A standard technique is remaining silent to allow a witness to volunteer additional information. Even better, appearing to operate solo can help you lower the adversary’s guard.

Damien noticed that while using his laptop (and furiously documenting testimony), witnesses seemed to open up more. “Early on, when I’d have the screen in front of me, that was viewed as putting a block between me and the opponent. But if the goal is to make the deponent comfortable, not intimidated by me, they can just chat almost like I’m checking my email. So, I saw it as more like a “feature,” not a “bug.” They might hang themselves by being more forthcoming.”

We’re thrilled to discuss these concepts with litigators, and we want to disrupt depositions-as-usual with the new advantage of using witness testimony in real time to search eDiscovery. Learn more about Armatus, our solution for realtime transcription, eDiscovery search, and realtime collaboration.

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