As a former senior in-house counsel, I knew that outside counsel could be slow on the uptake. For years and years we tried to persuade outside counsel that there were benefits, not just to us, but to them, in changing their thoughts about billing and case staffing. Waste of time, whistling in the wind, stubborn and unwilling to change their ways. Now all these years later, it may be AI that finally tells outside firms that unless they get with the program, their firms could lose books of business near and dear to their bottom lines.
In a recent report, in-house departments that were surveyed blew the doors off about inside lawyers being reluctant to adopt AI. Not so. Two-thirds are now using AI or a beta version. Over 90% (not a typo) say that efficiency is the top benefit of AI. Just about two-thirds say that in-house use of outside counsel will be reduced. About a quarter of in-housers say that they will be pushing for changes in billing arrangements. Now that I have your attention, how are outside firms going to respond to this challenge to the very existence of some firms? Most in-house counsel have pushed for years, if not decades, to get the attention of these firms. Is this report going to be the needed clarion call?
Once upon a time, a particular ridiculous and extremely irritating billing practice made in-house counsel very unhappy. When fax machines (remember those?) were new in the repertoire of expenses charged by outside counsel, it was routine outside firm practice to charge $1 a page for someone in the firm to feed documents into the fax and then retrieve faxes being received. You do the math. It was only after our general counsel had a giant hissy fit that outside firms backed off from what was profit for them.
Some interesting issues arise from using AI and how firms are billing and will bill for that time. If AI can do the basic work in a nanosecond compared to a junior lawyer, how does the firm bill for the time? How to allocate between client savings and the firm’s responsibility for oversight and judgment?
What’s also startling in the report is that 80% of the in-house lawyers are not pushing outside firms on AI. Why aren’t in-house counsel demanding AI usage by outside firms where appropriate and necessary? Please explain.
Being a perfectionist is the bugaboo of every lawyer. We all want to be perfect, don’t we? Write briefs that are perfect and hallucination-free. Flawlessly argue every motion in court instead of waking up at 3 a.m. with the argument you should have made, could have made, would have made, if only you had remembered it the day before. Resolve every case in a timely and cost-efficient manner, no matter even if opposing counsel has dump-trucked reams of superfluous discovery that nonetheless still had to be responded to. This is after assuring the client that the case is a “slam dunk” for her. Does any lawyer have a usable crystal ball?
Why do we twist ourselves into pretzels in an attempt to obtain the unobtainable? Do you know any lawyer, at any career stage, who is perfect? Whose practice is perfect? Who never makes mistakes? We must continue to remind ourselves that it is the practice of law, not the perfection of law. E&O carriers would cringe more than they already do if lawyers were held to a standard of unattainable perfection, even though some malpractice complaints allege it.
It’s so hard for us to let go and relinquish control. But if you think about it, lawyers have less control than other professions. We put ourselves in the hands of judges and juries who decide cases on bases that may be indecipherable to us. Jury nullification, deadlocked juries with jurors unable to listen to other viewpoints. We’ve all said to clients that we never know what a judge or jury might do, and that’s why so many cases settle. It’s the uncertainty, the ambiguity that can make practicing law such a crapshoot and so nerve-wracking. I would be surprised if any lawyer doesn’t admit that the hardest thing about practicing law is the difficulty in letting go, in being comfortable with not knowing. Much to client dismay, we can’t predict outcomes, even with AI. And when that day comes, we will know that the fix is in.
We need to let go of the quest for perfection. As lawyers we are bombarded with responsibilities to both clients and courts. We have ethical duties. We have a million things to do. Salvador Dali said, “Have no fear of perfection-you will never reach it.” I rest my case.
Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.
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