Smarter Than You Think and its Lessons for the Legal Profession

I just finished Clive Thompson's Smarter Than You Think: How Technology is Changing Our Brains for the Better. 

Thompson examines the ways technology tools are changing how we learn, remember and use knowledge, and concludes that these transformations are on balance positive.  His views are not blindly “techno-optimist” in character, but historically based: new tools (writing, printed books, paper and pens, telegraph, telephone) have always shaped the way we think, as well as what we think about.

Computer technologies are just the latest tools of our "extended mind" (Harold Innis) – the way we outsource parts of the way we think so we can free ourselves up for higher-level thinking. 

And each innovation that has helped our memories and the way we communicate encourages new behaviors and pushes us away from familiar behaviors.  This process has been called “the bias of a new tool.”

According to Thompson, the main biases of digital tools are

• external memory: meaning information that is outside your head (and lots of it)

• more connections: not just between and among people (Facebook, LinkedIn) but also between ideas, news, and types of data

• communication and publishing

Figuring out how to live with these technologies means understanding them and how they are changing us.  Or, brought to a more topical and practical level for attorneys, “understanding the risks and benefits of relevant technology.

Below are several points made in Smarter Than You Think, along with some thoughts on how attorneys may consider them in evaluating the risks and benefits of digital tools.

Study and Practice the Art of Finding (Be Your Own Librarian)

Digital tools, both those within the walls (servers?) of our law practices and outside them, provide a mind-boggling amount of external memory.  This is undoubtedly a good thing for lawyers, as we have the ability to store all of our information and knowledge very inexpensively.  Taking advantage of external memory spares finite brain resources from having to store information in our heads, and allows us to reach higher levels of thought by focusing on the important stuff (finding creative solutions for clients).  See here for additional discussion about freeing up your mind to do the heavy thinking.

The challenge, (aside from protecting this information), is being able to find the right information when we need it. And the explosion of electronic information appears to make that an impossible task.  However, the challenge of organizing information is not a new one.  By way of analogy, it took a very long time to make books useful as reference tools.  Aids like indexes, paragraph breaks, and page numbers evolved over a long period of time.

To manage large amounts of digital information effectively, lawyers need to develop and use their own reference aids. Within your organization, this means taking full advantage of the capabilities of search tools.  And while search has become very powerful in navigating your data haystack, lawyers will also want to draw attention to the needles, by naming and organizing documents with an eye toward future use, and “tagging” documents by subject and keyword so that a search will find them. When your information has been captured and organized for future retrieval, then you can use it effectively to provide value for your clients.  For more on ways for lawyers to manage information, click here.

And searching outside your organization requires the same critical thinking you employ for other reference materials.  In other words, “check everything” in the digital world with the same discerning eye you have always used in evaluating the efficacy of cases, treatises, or other sources.

Connection Has Its Costs- The Risks of Being Always On

The connection and collaboration enabled by digital tools offers countless opportunities for lawyers (and everyone else).  Of course, instant and constant access to so much and so many has a downside.  Thompson is not the first to point out that the creativity necessary for problem-solving requires what he calls “interiority” and the ability to mull over things. As I have discussed before, a great deal of what attorneys do requires sustained attention, and the time to absorb information.  Switching back and forth from a brief to the email inbox or the Web destroys attention and focus. 

There are ways to mitigate the distracting qualities of computer tools, such as turning off notifications, or employing software tools like Freedom or OMMWriter.  Thompson also recognizes that practicing mindfulness (“paying attention to your attention,”) can help you keep from getting caught up in interruptions without even realizing it. 

Of course, as I have also discussed, many of the distractions and interruptions that destroy attention and focus- unannounced office visits and purposeless meetings, for example- aren’t digital at all.

Writing For More Audiences

The digital world offers more opportunities for lawyers to write, but the best reason for doing so is not necessarily what you may think.  Lawyers know that writing clarifies thinking.  Thompson cites Sir Francis Bacon’s observation that "reading maketh a full man, conference a ready man, and writing an exact man."  Externalizing thoughts allows you to evaluate them more objectively.

And writing for an audience further clarifies thinking.  It is easy to win an argument in your head. Knowing that you are writing for somebody makes the weaknesses in your writing stand out very prominently.  As Thompson points out, the "audience effect" of communicating to someone else "forces you to think more precisely, make deeper connections, and learn more." Moreover, the “generation effect” of writing about a topic improves your memory.

So the real benefit of writing a blog or posting for an audience is not the number of people who tune in (thank goodness), or how much information or understanding is conveyed to that audience, but rather the learning effect on the writer.  Thompson’s quote by Cecil Day-Lewis captures this point perfectly: “We do not write in order to be understood; we write in order to understand."  And so more writing platforms and audiences provide more learning opportunities for attorneys, hopefully in the subjects that exist in the margins of your attention.

Conclusion- Not Either/Or Or But Both

What I like most about this book is Thompson’s demonstration that the strengths of humans (intuition, creative thinking) and computers (storage, search, calculation, number-crunching) are not mutually exclusive.  On the contrary, as Thompson’s chess example demonstrates, collaboration between people and computers resulted in “higher levels of human excellence in chess.”  Likewise, computer technology is undoubtedly one of several essential tools that will continue to help attorneys get better.  

As Thompson puts it, “let the human continue to do what it does best, but let the machine work.” His reframing of the debate about whether computers or humans are “smarter” is a pretty good lesson for lawyers:

Which is smarter at chess – humans or computers?

Neither.

It’s the two together, working side by side.

Every Lawyer is A Technologist: Take a Step Back to Take the First Step Forward

Quit Pointing Out What I Don't Know, and Tell Me Where to Start Learning 

The legal community is all atwitter (pun intended) about the effect of computer technologies (and other forces) on the way law is practiced.  You hear the use of terms like "revolution," "sea change," and "paradigm shift."  Some observers suggest that emerging technologies are throwing out not only the bathwater of the legal practice, but also the baby, the bathtub, and the plumbing.

For those attorneys not riding this wave, all the discussion of algorithms, ESI, Big Data, and the "urgent" need for change is disconcerting at best, and downright terrifying at worst.  Fear may be an effective motivator, but only if you know where you are going and what you are going to do.  Fear that creates only doubt (including the Fear of Missing Out or FOMO) results in paralysis (head in the sand), denial (it doesn't affect what I do), anonymous Internet comments (no explanation necessary), and/or substance abuse (likewise).

And lawyers often respond to fear in that quintessential American way:  by reflexively buying something (smartphone, tablet, software) in the hope it will address our anxieties and solve our problems.We buy without a thought to how the product or service will become a part of our existing practice, (or part of an existing network).  As a result, when we don't know what we want (or how we intend to use it), we end up with a lot we don't want (and don't use).

Let me suggest a different approach.  Forget computers for the time being.  They are a distraction (and not for the usual reasons).  Technology is not just computers and computer systems.  Technology is the application of knowledge for practical purposes (look it up).  Technology is the collection of tools we use now to solve problems for our clients. Lawyers use technology every day even if they never turn on a computer.

And no decision to buy shiny new tools (especially expensive ones) can take place without evaluating your current technology- nothing more than what you do and how you do it- and then considering if there are other ways to do it better.  In other words, 1) take stock of what you know, have and do; 2) consider how you might do those things more effectively, and then (and only then) 3) adopt the tools that will accomplish your goals.

We are talking about how to evolve and adapt by building on our current approaches to problem-solving, not by letting HAL ("File the motion, HAL"; "I'm sorry, Jack.  I can't do that.") take over our practices.  

What Do Lawyers Do?

Lawyers solve problems.  The reason clients hire attorneys is because they need assistance getting something or somewhere.  That "destination" may be the consummation of a business deal, creation of an entity, a favorable resolution to litigation, an estate plan, or a variety of other outcomes.

What Do Lawyers Use to Solve Problems?

Lawyers Solve Problems Using What They Know: Information and Legal Knowledge.  In tackling our client's problems, in the most fundamental sense we use and apply what we know.

One part of what attorneys know is the information we learn over the course of a particular matter.  We process, store, and present information in service of our clients.  We identify, seek, and exchange information in discovery. We take the facts we learn, discern how best to use them, and present them in an appropriate forum or context.    

Lawyers also combine information with legal knowledge.  We receive facts in one form and repackage them in the context of their legal significance. We cite and argue relevant law gleaned from cases, treatises, and other sources.  Pleadings, motions, and briefs are nothing but collections of information and legal knowledge. We present information and legal knowledge to a jury, judge, or appellate court.  Information and legal knowledge shape transactions, wills, trusts, and tax returns. We also store our legal knowledge somewhere (hopefully not just in our heads).

Lawyers Use Knowledge (Both Legal and Practical) To Manage Information.  In our representation and advocacy, lawyers already utilize various tools (all of which are forms of technology) to organize and and present information and convey legal knowledge: 

Processes/Procedures.  How we practice law is in large part a collection of processes.  A process is just a series of steps involved in preparing and presenting what we know.  The creation and preparation of any document is merely a process that applies knowledge to information.  Pleadings are drafted, reviewed, edited, filed, and served according to the requirements of various rules, standards, and practices.  Likewise, each attorney or firm performs many processes in the course of a day:  calendaring, conflict checks, file creation and maintenance, etc.  Getting a document into evidence is just a process, as is qualifying an expert.  Processes are accumulated knowledge  performed over and over again.

Policies.  Policies are (hopefully) written documents expressing your purposes and goals, and containing guidance about the means of implementing same.  Policies may protect the confidentiality of information as required by the Rules of Professional Responsibility, or ensure other applicable standards of conduct.  Effective policies include specific procedures and consider how the people in your organization will comply with (and ensure compliance with) same.    

People.  Clearly the creation, adoption, and implementation of procedures and policies require people.  A policy or procedure that is not communicated, understood, and implemented where appropriate throughout an organization is more commonly known as a "problem" or a "missed opportunity."

How Do You Currently Solve Problems and Manage Information and Knowledge?

In order to determine whether you need "new" tools to manage what you know (information and knowledge), you have to identify what information and knowledge you have, and how you currently manage these resources (processes, procedures, people). A great deal of this evaluation doesn't involve your computer system at all, but instead a review of work flow and office practices.  Put it this way, (and borrowing from Dennis Kennedy), you only need a sheet of paper to map out how you communicate and collaborate with your staff and other attorneys.  I guarantee that even such a seemingly basic analysis will show you ways to improve upon the way you share information and perform tasks.  Try it. 

What Can You Do Better, and What Tools Can Help You Do That?

Then, once you know what you have and how you currently use it, you can consider how you might collect, store, organize, search, share, and protect that information and knowledge (and perhaps other information and knowledge) more effectively.  The storage and search capabilities of computer systems undoubtedly offer advantages to lawyers.  However, only after analyzing your current information and knowledge processes and policies can you determine what you want and how you will use it.  Knowing your processes, policies, and people will put you in a better position to integrate computer technology into them. 

Computer technology is not the most useful information or knowledge solution (i.e. the best tool) in every situation. If taking notes on a legal pad continues to be the only way you will gather information, then that tool should not be removed from the toolbox.  But consider whether information gathered electronically might benefit you. Likewise, a practitioner is not well-served using a computer presentation at trial unless she has evaluated its effectiveness in communicating information to a judge and/or a jury.  And surely a review of the way you use email might spark some discussion about whether other methods of collaboration (and appropriate communication) exist and ought to be employed.  The point is to be aware of how you do it and how you might do it better. 

Conclusion- Build On What You Already Know and What You Currently Are Doing

Competence as a lawyer requires using the tools available to you.  You are already using many of those tools.  Identifying and understanding the way you use information and knowledge to solve problems will help show the way toward effective computer technology use.

The algorithms can wait.       

A Month's Links on Legal Practice Technology

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