Pardon Our Interruption – The 2018 Edition

Episode Notes

Transcript

The Kennedy-Mighell Report

Pardon Our Interruption – The 2018 Edition

12/21/2018

[Music]

Intro: Web 2.0, Innovation, Trend, Collaboration, Software, Metadata… Got the world turning as fast as it can, hear how technology can help, legally speaking with two of the top legal technology experts, authors and lawyers, Dennis Kennedy and Tom Mighell. Welcome to The Kennedy-Mighell Report here on the Legal Talk Network.

[Music]

Dennis Kennedy: And welcome to Episode #227 of The Kennedy-Mighell Report. I am Dennis Kennedy in Ann Arbor.

Tom Mighell: And I am Tom Mighell in Dallas. Before we get started, we would like to thank our sponsors.

Thanks to TextExpander for sponsoring our show. Communicate Smarter with TextExpander. Gather, Perfect, and Share Your Knowledge. Recall your best words instantly and repeatedly. Learn more at textexpander.com/podcast.

Dennis Kennedy: And we would also like to thank ServeNow, a nationwide network of trusted, prescreened process servers. Work with the most professional process servers who have experience with high-volume serves, embrace technology, and understand the litigation process. Visit serve-now.com to learn more.

In our last episode, we talked about the challenges we are facing these days in legal technology, which actually got us a fair number of re-tweets and comments and now at yours at the end of the year it’s time for our annual recap show.

Our longtime listeners will know that ESPN’s Pardon The Interruption Show, also known as PTI with Tony Kornheiser and Michael Wilbon was one of the inspirations for The Kennedy-Mighell Report podcast. Our tradition is to use some of the elements of the PTI format for this recap episode.

Tom likes to point out that I’m the older and grumpier one on the show, so I play the role of Tony except that Tom always seems to win everything, so maybe in fact he’s Tony.

Tom, what’s all on our agenda for this episode?

Tom Mighell: And lately, I’ve been the older and grumpier one, so maybe you’re right. But yes, Dennis, in this edition of The Kennedy-Mighell Report we will indeed be recapping the year in legal technology but in a Pardon The Interruption format.

For those of you familiar with PTI you’ll recognize some of your favorite segments. For those of you unfamiliar with PTI we’ll have three segments in this episode. Toss Up, in which we purposely take opposite sides of a legal topic. What’s the Word, in which we fill in the blank on a statement about a legal-tech topic with a well-chosen word. And our own new segment that we’re trying to introduce called Buzzword Bingo, in which we categorize a legal-tech buzzword as overused, underused or rightly used, and then we end up with a Fast Response Big Finish. To give you a sneak preview of the results I do win every segment. So, let’s get started with the Toss Up.

Some listeners think that Dennis and I agree way too much and that we need to mix it up a little bit more, so in Toss Up we are required to take opposite sides on each topic and it is painful sometimes for us to do so, but each of us argues his position, and at the end, as you well know, I declare myself the winner.

Dennis, are the rules clear? There’s no agreeing here.

Dennis Kennedy: I actually disagree about the rules and the results. In fact, I disagree with the whole system, but here’s our first Toss Up.

So, we’re seeing that there was one billion dollars of Venture Capital investment in legal-tech, so do you think that will accelerate the changes that we see in legal-tech?

Tom Mighell: And I say that it will not accelerate the changes. I think a billion is a good start. It is sure to have a positive impact. I think it’s great, I think even as we’re recording today they announced another — I saw law firms going in and doing some Venture Capital, but let’s be realistic. Legal-tech has a long way to go to catch up. It’s not something that it can just catch up overnight. Will these investments encourage other VC funders to step in? Maybe; that’s what you need to do to accelerate the change, but for now the investments I think are mostly going to accelerate changes for the lucky companies that are receiving the dollars. I think we’ve got a little bit ways to go for everybody else.

Dennis Kennedy: I think it will accelerate to change, and Tom, since I wrote the question ambiguously here, here’s why I’m going to say that. So, I think that the money coming in is going to really push some things forward. I also think it’s going to accelerate some shakeouts as well.

So, obviously not all the money going in will go to winners, and if you use the rule of thumb that less than 10% of Venture Capital investments go on to success, I think you’ll see some shakeout, but I think that that money out there is a big incentive to people starting new things, and so, I think we’re going to see a lot more happening in the world of legal-tech in the next two years and maybe we have even in the last five years.

(00:05:03)

Tom Mighell: All right, next toss-up. Over this past year the most interesting legal-tech developments are happening in the Access to Justice area. Dennis, what do you say?

Dennis Kennedy: Well, I have to disagree with you on that one because I do think there are interesting things happening. The most interesting things are actually happening at the high end and at the low end. So, I think the most interesting things to me are happening at the high end, because that’s where you’re seeing the Artificial Intelligence, the Machine Learning, the data analytics, robotic process automation, those sorts of things and a lot of input from clients wanting to see innovative change.

So, I think that actually where the most interesting things are happening and in some ways the most mature uses of technology are happening, are actually at the very high end of the legal market.

Tom Mighell: All right, well, wrong again, because really the most excitement that I am seeing around new legal-tech is happening when law students, when others get together for hackathons for these design-thinking exercises, I’m guessing that a vast majority of these hackathons focus on developing apps or services for the Access to Justice area.

They are the biggest underserved market, they are more likely to use self-service, low-cost legal services and they’ve all got phones. It’s also interesting because this whole hackathon Access to Justice market doesn’t rely on all of the late adopting lawyers we were talking about in the last question to catch up, it’s happening in spite of the legal profession’s cautious approach to technology.

Dennis Kennedy: Next up, more than ever legal professionals should be taking a cautious wait-and-see approach to technology.

Tom Mighell: All right, now you see, I just said the word “cautious approach to technology” here. So, I’m going to say, actually yes, lawyers should be taking it, but frankly, you get a certain amount of leeway because of the way that you phrase these questions, but I think that the way you phrase this question makes it hard to answer yes, but I’m going to try anyway. And say, yes, lawyers should take a cautious approach to technology but not necessarily a wait-and-see approach. Lawyers should never dive headfirst into using a new technology, you’ve got to learn about it, you’ve got to find out how it’s being used, you’ve got to test it yourself, but that doesn’t mean you need to wait a year or two as has been the tradition to see but before everybody else is using it to declare that you’re ready to try it. So caution, yes.

Dennis Kennedy: Well, I’m going to take the opposite point of view, although I always use the term “prudent approach”, which unfortunately we don’t have a question in What’s the Word for because I like using that word, but I think it’s actually time to really press forward.

What I would say, is you don’t want to press forward in everything. I think you want to identify a few things and really put some effort into it, because I think this is a point where you can really step away from the crowd and give yourself some true competitive advantage really help your clients and get in on the ground floor of some technologies that are really, really cool.

Tom Mighell: We really sort of agreed on that one. All right, this next one is not really a toss-up, Dennis; what were you thinking when you wrote this one, hottest New Technology or Tech Trend of 2018?

Dennis Kennedy: Well, because we needed to disagree so we have to give different answers. So, for me, I think that there’s sort of two things that I see is related, and so, I think the big thing is data analytics in all its different forms, from small to large. I just think it’s where lawyers need to be looking at what’s going on. If there’s one technology to look toward, that’s the one and then another way I look at it, which is related, is that I think we’re moving from a world of traditional documents to other forms of data that could be location and other things, and so, I think that spending some time thinking about the end of the document era is also one of the hottest places to be.

Tom Mighell: Now really, the hot place to be this year and probably every year is cybersecurity and privacy. There really a lot of trends to talk about and somebody to choose from. I would say maybe not the hottest technology or trend but it’s definitely one of the hottest topics. So our information is more at risk than ever before, not just from hackers but every day it seems like the companies we choose to share information with are doing something with it that we didn’t expect or that we don’t want them to do.

The California Consumer Privacy Act, we’re seeing the first really big major effort to protect consumer privacy and I fully expect that more states and even the federal government if they get their act together will follow along in the coming months and years.

(00:10:00)

Although I think data analytics is important. I think a lot of these other tech trends, very important, but cybersecurity and privacy are the most personally important topics and the ones to which you should pay the most attention for your own sake.

Dennis Kennedy: And the last one, and so, we’re going to disagree on this, but I actually think our audience and especially that our new listeners will be the big winners on this question, Tom; so what were your favorite episodes of The Kennedy-Mighell Report in 2018?

Tom Mighell: Is this really a question that we disagree on? So, of course, I think our LinkedIn challenge episodes were the most fun and not just because I won, I think they were interesting exercises and how to expand your online networks. It was great hearing how everybody took a different approach to expanding the network, some are successful, some were less successful, but I think all in all it was fun just going through that experience.

In terms of content, I’m going to say that our episode on collaboration tools was one of my favorites anyway, it’s such an important topic; obviously it is. We wrote a book on it. There’s so many tools lawyers are currently and can be using to work with each other. I really enjoy talking about that topic and that podcast was no exception.

What about you?

Dennis Kennedy: Well, I think the big one for me was the interview we did with Whitney Johnson about her new book and S-curves and disrupting yourself and disruption in general and just thinking about the legal profession using some business analytical tools. We got a lot of great feedback on that one.

And the other one, Tom, this may surprise you is the one that we did on people processes and technology, and where I probably threw out my wildest ideas and I almost weakened you to convince you a little bit on some of them that I think people that sequence might not be right and that technology may be a little more important than the process people will think.

Tom Mighell: All right, and that’s it for Toss Up, and as I predicted earlier on, I clearly won. You are out of time to respond to that, Dennis, because we’ve got to move on to our second segment, What’s the Word. In this segment, we’ve got a sentence about a legal topic with a blank in it. Each of us has to come up with the best word to fill in the blank. Dennis, what is the first sentence?

Dennis Kennedy: The combination of an ethical duty of technology competence and The Florida Bar and now the North Carolina Bar moving to require technology CLE, minimum technology CLE, is having a or an _______ impact on the legal profession.

Tom Mighell: That wasn’t a long sentence at all. So, I’m going to say it’s having an uncertain impact on the legal profession. I think it’s a great start. I think the fact that both Florida and North Carolina are doing this is great and as I will talk about more, technology training for lawyers is so long overdue and something that should be happening many, many years ago.

Not sure that these two states are going to persuade others to require technology training. Considering right now, only 34 states have adopted the requirement of technology competence and that means 16 states including my own home state of Texas have nothing. Considering that only 34 have adopted that duty of technology competence, I’m just not holding my breath.

Dennis, what about you?

Dennis Kennedy: I was going to be used the word “inchoate” to get that sense of it was just starting, but it seems sort of too obscure a word. So, I’m going to go with minimal actually because I just don’t see a lot that’s happening yet. I have not seen there’s been any lawyer discipline for not being technologically competent, and I suspect there might be one or two out there who would be in danger of that.

So, I think it’s had a minimal impact so far, I think that outside pressures on the profession are probably going to drive technology more than these things. I think it is a good thing to provide education in a structured way obviously, but I just think it’s had minimal impact so far.

Tom Mighell: All right, here’s our next sentence, Dennis. The intersection of cybersecurity and collaboration is the most _______ in legal-tech.

Dennis Kennedy: I say, unnerving, because I think that when we started talking about this and we did a presentation on it, I was surprised and I think you were of how the audience was itself surprised at how complex cybersecurity becomes once you start to add multiple players, multiple platforms, and multiple ways of interacting.

So I think that cybersecurity in itself is kind of a scary topic, but I think that it is unnerving, it kind of shakes you up to think of the layers of complexity you can add as you start to collaborate with people on the same side as you are and on the opposite side of the equation.

(00:15:00)

Tom Mighell: Well and the word for me is “dangerous”, it’s the most dangerous in legal-tech. I think it’s hard to find one word that adequately fits, but that one works for me. I think that when legal professionals collaborate especially outside of their practice or their company, there is a tendency to either place the collaboration ahead of security or place such an emphasis on security that collaboration is either impossible or ineffective.

Understanding not only personal security is really important, you’ve got to understand how your security affects everyone that you’re collaborating with, and I think this is an area that’s got a lot of potential for harm as that cybersecurity topic becomes more important and lawyers are increasingly using new technologies to collaborate. I think the possibility for danger there is pretty strong.

Dennis Kennedy: Next up, the one new technology, I guess it can be new or it could be a little bit older. All lawyers should be learning about is _______.

Tom Mighell: Okay, I can’t believe I’m going to say this but the word I chose is “blockchain”, I know…

Dennis Kennedy: I just fainted.

Tom Mighell: I know. I know in a minute I’m going to tell you that blockchain is an overused term, but I’m going to also admit that’s an incredibly important technology that really has some real implications about how lawyers practice, from being able to execute and manage contracts, from managing financial transactions to finding ways to better authenticate our identities, the death of passwords or better identity management.

Although, I don’t completely understand it myself, I really think that this is going to impact the practice of law, not necessarily just for big firm lawyers, which means everybody really needs to understand it and understand what it can do or what it has the potential to do for their practice.

Dennis Kennedy: And I’m going to the well again, and using the single word “data analytics” which I jammed together by saying really fast. So, I think it’s the combination of all these different sources of data, Internet of Things, databases, all the things that you worry about when you talk about privacy, for example, and then how we look at those and derive meaning from that. So data analytics, one word is my answer there.

Tom Mighell: All right, next sentence, Teaching legal-tech to law students is _______. Dennis?

Dennis Kennedy: I use the single hyphenated word momentum-gaining. So I just taught a class where we did a lot of legal technology at Michigan State and its law school and I just see that there is a trend of that to see more discussion of it and the thing I think is cool is that the professors, a lot of them, adjuncts are who teach these classes are using the Internet and some of the tools out there in ways to pull together syllabuses or syllabi and figure out ways that they can kind of get standard approaches to teaching technology in the law school curriculum.

Tom Mighell: Well, I gave my word, I revealed it accidentally a few answers ago and that word is “overdue”. Teaching legal-tech to law students is overdue. This is a soapbox I have not gotten off of for more than 10 years, and what’s interesting between then and now, is that law students are more than ever digital natives.

They are born into technology, they’re comfortable with it, they don’t have the same excuses that older generations have about not understanding or not having grown up with technology, but that doesn’t mean that they know what technology is available for lawyers, how to use it the right way, how to be effective.

You cannot expect technology competence. If we’re going to have an expectation that there’s competence without teaching that competence to lawyers. I mean, see my comments about Florida, North Carolina, this is something that should have been happening a long, long time ago.

And that’s it for What’s the Word and I’ve racked up another Tommythic victory.

Dennis Kennedy: Wait. Wait.

Tom Mighell: Wait? Sorry, Dennis, we’ve got to go to a break before we move on to our next segment. Let’s take a quick break for a message from our sponsor.

[Music]

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[Music]

(00:19:50)

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Tom Mighell: And now let’s get back to The Kennedy-Mighell Report. I am Tom Mighell.

Dennis Kennedy: And I am Dennis Kennedy. And I am starting to have some doubts about the judging on this show. Do I get to throw a challenge flag?

Tom Mighell: No, you do not. It is time for our new segment idea. We are calling it Buzzword Bingo. Want to talk a little bit more about it, Dennis?

Dennis Kennedy: Tom, this is a new innovation for us that may disrupt the whole podcasting platform. We are going to mention a 2018 legal tech buzzword and categorize it as underused, overused, or just rightly used.

Buzz away on the first topic.

Tom Mighell: All right, Dennis, the first topic is artificial intelligence.

Dennis Kennedy: So I think that it is actually a little bit underused these days, because I think there is a lot more going on in the world. I just saw tremendous list of all these things happening in artificial intelligence, and if you just read sort of legal commentary and what’s going on in the legal field, you would think like artificial intelligence is boring, people shouldn’t pay attention to it. We are all worried about robot lawyers.

But there is a whole lot of happening here and I think that people are a little bit wary of jumping in and talking about artificial intelligence and in part because there are a lot of subtleties to artificial intelligence. But actually thinking in the last six months it has become an underused term, but a more important area to be looking at.

Tom Mighell: Okay. I am going to give a preview and tell you that every single one of these terms that we are going to talk about in my opinion is horribly overused, but then I am going to qualify myself.

So artificial intelligence, overused, all we hear about it, all the time, it’s used so often. I think it’s probably hard for people to understand that AI is now part of most of the technologies that people are already using. Your smartphone is one of the best examples of artificial intelligence.

I will tell you, I have a new feature that I just absolutely love about my Google phone is that there is a little swipe up on the screen and it will show you five apps and what it can do is, is it literally predicts based on the time of day or even the day of the week what apps I might need to use at that time. And I have a Shopping List App and every Sunday at noon when I go to the grocery store, that app is waiting for me and that’s artificial intelligence doing that. So even though it’s overused, I think that might not be a bad thing.

Dennis Kennedy: And if AI is so great, how come it auto corrects my words wrong all the time?

Tom Mighell: Still making progress.

Dennis Kennedy: I agree. Next up, everyone’s favorite buzzword, blockchain?

Tom Mighell: Totally, totally overused. All I hear is blockchain all the time, but you know what, again, not a bad thing. Like I mentioned above, I think blockchain may be the technology lawyers need to know the most about. So it may be that you can’t hear about it often enough until you understand what it is and how it may be able to help you deliver legal services in the future.

Dennis, here is the next topic. The next topic is — my gosh.

Dennis Kennedy: Hey wait, don’t I get to say that I think it’s underused.

Tom Mighell: Oh, I am sorry, I am sorry I went straight on to the next topic. Do we want to take a break for that?

Dennis Kennedy: No, I think we should just leave it going, because it shows your way of bending the rules so that you win everything. You are probably going to say because I didn’t answer that one that you won this segment too.

Tom Mighell: I think that’s a fair point.

Dennis Kennedy: Blockchain, it’s in that underused, maybe just rightly used. I think people are getting a better feel for, sort of understanding where it makes sense and also becoming aware of, what I have always said, but my time at Mastercard changed my perspective on this. So I am aware of what’s going on in identity, in payments, in chain of title, authentication, all those sorts of things, and I think that if you are saying — if you just look purely in the legal silo and say, I don’t get where blockchain is going to change things dramatically, I can see how you might do that, but I would also say people — and people would say that about the Internet itself in the early days. They said it about blogging and other things like that. So from time to time there is some new technology.

I think the potential for blockchain is so great that I hate when people are just purely dismissive of it without dealing with some of the things that I have seen that are already happening, a lot of it to be fair outside the US and in some specialized areas.

(00:25:07)

Tom Mighell: All right, our next topic, our next term is the dreaded innovation. Dennis?

Dennis Kennedy: I love innovation. I do struggle with the way that it can be used, and again, it’s another thing where people say innovation and they dismiss it with the back of the hand.

So I probably think innovation is probably in the sort of just rightly used area these days. So some positive, some negatives in the discussion, but I think there is a realization that change has to happen. It needs to be practical. It needs to be customer focused and I think that if you go to the traditional sources on innovation outside the legal profession, I think you are going to see what the potential there is and how probably in legal we are not quite to where it needs to be and we sort of have a limited view of what innovation might be.

Tom Mighell: So I have a question. My question is, is there an option above overused, because I have got to say I am so tired of how often this term is used and what it’s used for, not because it’s not important. I mean there are a lot of good people who are proposing and developing new ways to deliver legal services and that properly comes under the umbrella of innovation, but I think that so many people are out there applying it where it doesn’t really have any meaning, saying that you are in innovation. It doesn’t make any sense to me saying that I am in innovation. Just tell me what you are working on or you are just saying words as far as I am concerned.

I just think saying legal tech innovation is so broad that it’s almost meaningless. We really need I think better definitions. I think it’s not enough to just say innovation; I think it has to mean more than that, because I think it’s been used so much that I am numb to it all. I just don’t understand it, because it’s used so freely and for so many things that really aren’t about innovation.

Dennis Kennedy: I will agree with you on one thing Tom is I think that innovation is something that gets — there is a label that comes on after something happens. So I think when people are actually doing innovation or things that are innovative, all they think they are doing is fixing a problem. It’s not until later that you go like, oh wow, that was like this really creative approach. So I know we are not supposed to agree, but I kind of agree with you on that.

So the last word is disruption.

Tom Mighell: So do we have a category for wrongly used? I say that not because it’s wrong to use the term disruption, but when you use it in combination with innovation or when we are saying — I see it in a list here. We just talked about innovation, we are now talking about disruption, it’s confusing to me.

Innovation is essentially finding new ways to deliver legal technology. I am boiling it down. I know I am making it probably more simple than it needs to be, but disruption is essentially a subset of that, creating something new to get rid of something old.

So an innovation maybe disrupting, but a disruption is always going to be an innovation, right, I am just thinking about all these words is exhausting, so please let’s end this thing and tell us where you think it’s overused, underused or rightly used?

Dennis Kennedy: I think it’s underused these days, but I think that’s a good thing because people are now going back to — because they got so burned out on it and realized that they were using in ways that didn’t make any sense. And so I think people are actually going back to figure out what it means and I think our podcast with Whitney Johnson was great because she really did a great job of explaining what disruption is in the classic theory.

And so I think there is this element of disruption that it happens at the very low end, where people aren’t seen as competitors and the existing players don’t care about the slices people are taking out of what could be the work. And so I think if people go back to that, and like I said, I will mention the podcast with Whitney Johnson again, I think it’s a little bit underused, but I think it’s starting to be more correctly used when it’s used.

Tom Mighell: All right. Well, after a hard-fought segment I won again and that’s no buzzword folks and I think now it’s time to move on to our Big Finish.

Dennis, we are going to answer six questions in 60 seconds. Here is number one for you Dennis, what’s the best legal tech book?

Dennis Kennedy: Always a winner every year, ‘The Lawyer’s Guide to Collaboration Tools and Technologies, Second Edition’, definitely should be on your gift list for lawyers this year.

The best choice for a lawyer today, Tom, a blog, a podcast, a videocast, social media or just leaving social media?

(00:30:05)

Tom Mighell: If you are talking about how lawyers connect with people out there, it’s got to be a blog or a podcast, both can reach large audiences. You have got to go with the one that’s most accessible to you, whether talking or writing is more important to you, that’s going to drive your decision.

Dennis, what’s the best legal tech resource of the year?

Dennis Kennedy: Of course it’s the ABA’s Legal Technology Resource Center. I also like the Lawyerist site. And Tom, this might be a topic for a podcast in the future, I think about going back in time to when we used to roll our own resources and pull together RSS feeds from different places; that might be a way to go as well.

Tom, what’s your best new app for the year?

Tom Mighell: Well Dennis, there are no new apps, they are just — nobody is doing new apps or at least not any new apps that are great and certainly no new apps that are helpful to lawyer. So in line with what you just said about our RSS readers, I am going to say Feedly.

Feedly is an old app that’s getting a brand-new overhaul. I have been in a beta program with them for a couple of months. I think it’s one of the best RSS news readers I have ever used. It’s available on all platforms, definitely worth a try.

Dennis, what’s the tech topic that lawyers most need to pay attention to?

Dennis Kennedy: I think it is the Internet of Things and our podcasts that we did this year on Internet of Things will tell people why I think that.

And finally Tom, what’s your best technology decision of 2018?

Tom Mighell: All right, I think, I thought about this a little bit, I think it’s the fact that I tried a bunch of new tablets this year. I looked at the Microsoft Surface Go, I looked at Google’s new Pixel Slate and I looked at the new iPad Pro and I have got to say I am extremely happy that I stuck with the iPad. I think it’s still the tablet to beat.

Dennis Kennedy: So that was 2018 and we are ready to move on to 2019 with a bunch of great new topics and ideas to share with you. Happy New Year to all, although I think we are going to get one more show in before the end of the year, possibly Tom.

Tom Mighell: We might, and if we don’t, Happy New Year to everybody. And that wraps it up for this edition of The Kennedy-Mighell Report. Thanks for joining us on the podcast. You can find show notes for this episode at tkmreport.com.

If you liked what you hear, please subscribe to our podcast in iTunes or on the Legal Talk Network site, where you can find archives of all of our previous shows.

If you would like to get in touch with us, reach out to us on LinkedIn or leave us a voicemail; we love to get your questions for our B Segment. That number is 720-441-6820.

So until the next podcast, I am Tom Mighell.

Dennis Kennedy: And I am Dennis Kennedy and you have been listening to The Kennedy-Mighell Report, a podcast on legal technology with an Internet focus.

If you liked what you heard today, please rate us in Apple Podcasts and we will see you next time for another episode of The Kennedy-Mighell Report on the Legal Talk Network.

[Music]

Outro: Thanks for listening to The Kennedy-Mighell Report. Check out Dennis and Tom’s book, ‘The Lawyer’s Guide to Collaboration Tools and Technologies: Smart Ways to Work Together’ from ABA Books or Amazon, and join us every other week for another edition of The Kennedy-Mighell Report, only on the Legal Talk Network.

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