In 2009, Dr. Atul Gawande published The Checklist Manifesto, to general acclaim. Even Malcolm Gladwell and The New York Times loved it. And it sent many legal knowledge managers into paroxysms of delight. The book helped many of us move from the drudgery of drafting templates and precedents to simplifying processes and managing matters by checklists. This dovetailed nicely with a then-emerging focus on legal project management and process improvement.
Once again, Dr. Atul Gawande is a step ahead of most of us in the legal technology community, by writing about doctors’ pure, burning hatred of the software systems imposed on them. The article tracks the implementation and response to a new patient-record system called Epic. Go ahead and read it, I’ll wait here…
I’m going to sum it up: doctors who have had massive software systems imposed on them:
- Find workarounds
- Find themselves doing significantly more time doing work about work, rather than attending to patients
- Find themselves doing work that was previously that of a secretary or other paraprofessional.
Sounds familiar much? Here’s a handy table to really ram home my point: (all emphasis mine)
Gawande goes on to describe a fundamental problem with computerization that also resonates in legal:
… a graduate student had written a program, called Fluidity, that allowed the research group to run computer simulations of small-scale fluid dynamics—specifically, ones related to the challenge of safely transporting radioactive materials for nuclear reactors. The program was elegant and powerful, and other researchers were soon applying it to a wide range of other problems. They regularly added new features to it, …
The I.B.M. software engineer Frederick Brooks, in his classic 1975 book, “The Mythical Man-Month,” called this final state the Tar Pit. There is, he said, a predictable progression from a cool program (built, say, by a few nerds for a few of their nerd friends) to a bigger, less cool program product (to deliver the same function to more people, with different computer systems and different levels of ability) to an even bigger, very uncool program system (for even more people, with many different needs in many kinds of work).
…As a program adapts and serves more people and more functions, it naturally requires tighter regulation. Software systems govern how we interact as groups, and that makes them unavoidably bureaucratic in nature. There will always be those who want to maintain the system and those who want to push the system’s boundaries. Conservatives and liberals emerge.
Which, haha, I cry.
Aren’t all the major software systems in legal Tar Pits? DMs, finance and billing, CRMs, e-Discovery platforms, not to mention the MS Office Suite? Let’s focus on DMs: they were created to centralize our documents and emails, with the very valuable bonus of being able to control security and access for legal confidentiality reasons. DMs tend to have an overflow of functionality, making training a challenge and usage a nightmare. We’ve asked our vendors to build on other features – archiving, search, plus APIs into other systems. The result as with what Gawande observed with Epic – many lawyers understandably abandon DM and resort to saving their materials in tiny, locked-down caches for ease of use, accessibility, and a deep wish not to have others touch it.
Yes! You say with me, cheering against the tyranny of allthethings. Until Gawande brings me up short with this:
Gregg Meyer sympathizes, but he isn’t sorry. As the chief clinical officer at Partners HealthCare, Meyer supervised the software upgrade …
“But we think of this as a system for us [physicians] and it’s not,” he said. “It is for the patients.” While some sixty thousand staff members use the system, almost ten times as many patients log into it to look up their lab results, remind themselves of the medications they are supposed to take, read the office notes that their doctor wrote in order to better understand what they’ve been told. Today, patients are the fastest-growing user group for electronic medical records.
The latter part of that quote is not terribly relevant, though it may be some day, as our clients, especially sophisticated ones and general counsel, will demand to have access to what is fundamentally their documents, which we in law firms draft and store.
Does the system as something for our clients ring true as a paradigm for lawyers? We focus, for example, on our DM’s ability to keep client confidentiality. Sure, that also keeps us onside our professional obligations, but at the root, those obligations are for and to our clients.
So the DM, by some version of syllogism, is for our clients. And if that’s true, we need to put up with it. This doesn’t mean we can’t improve functions and interfaces. But it does mean we must work within the system, because it’s for the benefit of the clients, not the lawyers.