Legal Malpractice: “The failure to render professional services with the skill, prudence, and diligence that an ordinary and reasonable lawyer would use under similar circumstances”
As we all know, the practice of law is a standards of practice driven profession with your work being judged by whether you have exercised the skill, prudence and diligence that an ordinary and reasonable lawyer would under the circumstances. If you could plot on a graph all lawyers’ approaches to handling a given legal issue, it would most likely look like the bell curve shown below.
Stay in the middle range of practices or close to it, and the odds are you have met the “ordinary and reasonable” lawyer standard. Venture outside of that range and you run the risk of commiting malpractice.
Standards of practice serve a needed purpose: to assure that all clients receive high quality legal services that are consistent with what an “ordinary and reasonable” lawyer would provide. Standards of practice and our need to stay in the middle of the bell curve does, however, have a significant negative effect when it comes to innovation and the delivery of legal services.
Diffusion of innovation is a theory that explains how innovation spreads through a given culture or a group of people. It is best understood through the following graphic:
“Innovators” are those individuals or entities that rapidly grab on to and are eager to try out a new approach, idea or product. They rely very little on group norms when it comes to deciding whether to try something new. Innovators are followed by “Early Adopters”. Early Adopters embrace new ideas sooner than most, but they tend to rely more on group norms and values, given that they are not as comfortable with risk. When they do adopt a new approach, idea or product, Early Adopters often become the opinion leaders of their culture as to that new approach, idea or product.
“Early Majority” individuals follow Early Adopters, but collect a lot more information about the new approach, idea or product and then weigh the pros and cons before making any decision. They often rely on the opinions of the Early Adopters rather than forming their own opinions. “Late Majority” individuals follow Early Majority in adopting something new, and do so primarily because the majority of their community has adopted it and they feel a strong need to conform. “Laggards” are the last to adopt as they tend to be suspicious of and resistant to change. Laggards are heavily influenced by their personal past and by the time Laggards adopt something, it may very well be outdated.
So, what does Diffusion of Innovation have to do with improving the delivery of legal services? Our standards of practice driven profession (the bell curve at the top of this post) when overlaid with the Innovation Adoption Curve creates what could be called a “Legal Innovation Curve” that looks like this:
As the Legal Innovation Curve shows, there is a lot of pressure on the Innovators, Early Adopters and Laggards of the legal profession as they are practicing outside of the norm. On the positive side, lawyers that are Laggards in how they practice are at a higher risk of malpractice claims — which pressures them to update their ways. But equally if not more important, law firms and lawyers that seek to lead by being Innovators or Early Adopters of technology or new approaches to the practice of law face just as much risk as those who lag behind the established “ordinary and reasonable” practices.
I personally experienced this when we started Attenex, one of the first e-discovery technologies companies. Even though the Attenex technology kept the lawyer firmly in control of the document review decision process (all Attenex did was organize the documents in a way that the reviewing lawyer could make much faster decisions), we faced lawyer after lawyer who told us that they would be committing malpractice if they used the technology.
Their belief was that they needed to have their lawyers review client documents in paper form, document by document, in the structure in which they received them from the client as this was the way everyone else was conducting discovery reviews. It took multiple years to get a core group of lawyers and firms to accept and use the Attenex technology in their litigation practices. However, once a core group of firms were using Attenex (or the similar tools of Applied Discovery, Recommind and others), the bell curve of “ordinary practice” moved such that using e-discovery technology review tools eventually became the standard of practice and it was the lawyers that were still reviewing paper documents, file by file, that became the Laggards exposed to malpractice risk.
While the profession eventually got there, the time it took for a small group of e-discovery innovators to come forward, form and fund companies, create tools and then have them widely adopted such that they fell into the middle of the bell curve, probably took 5 times longer than it should have. Amazingly, this lengthy process all took place in a world where clients were vocally demanding better, more cost effective ways for their law firms to handle document reviews given the exponential growth in client documents and email that had to be turned over to counsel.
As the legal profession strives to make legal services more affordable and available to a wider audience, the question we need to think about is how the Legal Innovation Curve is impeding our progress. If legal innovators are constantly at risk, the number of Innovators and Early Adopters will understandably be small. Improvements in the delivery and cost of legal services will happen slowly and most likely in fits and starts.
Imagine how slow improvements to telecommunications, computing and web services would have been over the last 20 years if those industries were subject to the Legal Innovation Curve. Maybe the time has come for the profession and our bar associations to think of ways to offer some limited protection to legal innovators who are striving to find new and better ways to deliver legal services to wider audiences.