Superman v. Batman (or legal transformation v. legal tech)

Right now, legal teams seem to be prioritizing the implementation of legal technology to transform the department.

In fact, “legal transformation” and “legal technology” are often viewed as interchangeable terms.

Now don’t get me wrong, technology is an integral part of any legal transformation program. However, in reshaping the way legal services are provided, the “people, process, technology” maxim has never been truer, and it is no coincidence that technology is the last of the three.

Let’s take a simple example of Tactical Volume Legal Work – NDAs.

At Company A, a large corporation with a high volume of NDAs signed every year, in-house attorneys in the past would have:

  • Tried to say that wherever possible their standard terms were non-negotiable;
  • Negotiate and draft every time a new counterparty suggests changes.

To find the right deployment model for this scenario, let’s break it down into its components: people, processes, technology.

The underlying problem with the historical approach is that an expensive resource takes on a tactical task of lesser value. A People review examines that the work is being done with the right type of resource in the right place and in this scenario shows that:

  • An older resource takes over work that could be done by a younger resource if the process changes. When low-value tactical work is taken away, the senior resource has more time to focus on strategic, valuable, and risky matters.
  • If the lawyer is based on land in a city, it is likely that the work will be done in a less expensive location.

It can also be considered whether tactical work of lesser value is best provided in-house, or whether a third-party vendor is better able to deliver the work. Having a younger resource doing the work in a cheaper location translates into greater financial benefits.

The existing process needs to be reviewed to identify potential efficiencies and see if a younger resource could do the work. Below are some of the elements that need to be considered in our scenario.

  • The first element to consider is triage. By triage, I mean the process of getting and reviewing all of the necessary initial information required for the task. Triage eliminates the need to go back and forth with the originator (e.g. a salesperson). The form used for triage also collects information that allows for a standardized approach.
  • An example of the standardization of an NDA process would be the recording in the form of whether the NDA is intended for a customer, a supplier or a partner. Important terms in the NDA such as intellectual property, non-advertising and liability are directly affected by this categorization. The approach to a customer is likely to be very different from that of a partner with whom a product or service is jointly developed. Categorization can be used to formulate appropriate template NDAs that reflect an appropriate position and reduce the level of markup and negotiation with the counterparty.
  • A game book can be developed for each NDA template and agreed against the key terms. That way, a junior resource can safely negotiate with a counterparty without putting the organization at risk. Playbooks can also be applied to third-party paper NDAs as the positions in most cases relate to the key issues.
  • Escalation points can be arranged so that the junior resource is routed to the correct attorney (e.g. with IP expertise) when the negotiation is outside the playbook. The goal of escalation is not to have a qualified attorney review all of the junior’s results, but rather to only escalate if a threshold is reached and a problem is outside the playbook workflow.

The financial benefits of reviewing the process and eliminating inefficiencies are medium relative to the people, but in any case, people and processes are often inextricably linked.

Once the people and process elements have been reviewed, the functionality required by the technology is clear. Below are some technology considerations that apply to our scenario.

  1. If budget and / or time are an issue, the process described above can be handled using readily available standard technology. The classic example are Microsoft Office products, for which a company is usually already licensed. Microsoft Forms can be used to create an NDA acceptance form in minutes. While greater efficiencies can be achieved by using other more specialized (and more expensive) products, it is possible to achieve significant benefits without these products.
  2. When budget and / or time are more readily available, more specialized technical tools can be used. In our scenario, a document review tool would make the process more efficient. It’s easier to navigate through markups and insert playbooks and pre-agreed positions. A recent study we conducted showed that junior resources review contract documents 27% faster with a document review tool.

The implementation of specialized technology tools can be worthwhile for reasons of efficiency. However, there are few scenarios where the availability of appropriate technology blocks people and process reviews from being performed for functional legal work. The benefits gained from reviewing people and processes almost always outweigh the benefits gained from implementing the technology.

The level of benefit that the organization receives is reduced in the order “people, processes, technology”.

To put it bluntly, if you implement new technology with the same people and processes as before, the efficiency gains are unlikely to outweigh the costs of the technology. Technology without a process is simply about how data is entered, organized, and reported.

This is primarily why point solutions like e-discovery and expense management tools have been successful in the legal technology market. Its core function is based on how data is entered, organized and reported. These systems require fewer changes from attorneys.

The exception to this rule for technology is that mandatory processes embedded in the Tool Force change as part of the implementation. However, this often leads to poor user adoption because the generic process does not meet business needs. In other words, the process review should be done before the technology.

The NDA scenario given above is very simple and therefore it’s easy to say that my area is far more complex. The truth is, however, that the same principles can be applied to many areas of work to find the optimal deployment model.

If in-house legal teams are to provide great service to the company while tackling budget and headcount challenges, a more thorough review of the people, processes and technology department is needed.

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