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Three formative early notions may well have shaped her legal and legal reporting career.
First, as an “temp” secretary and paralegal at a law firms while paying her own way through law school, she recalls “what it was like to be invisible as a non-lawyer.” She understood, indeed experienced, how important non-lawyers are to the business of law.
Second, law firm invoicing, a longstanding and frothy debate in the industry, left much to be desired. She typed the monthly bills, on expensive Crane paper, that contained three words: “For services rendered: and a big number with lots of zeros.” Billing practices were “screaming for reform.”
Third, in her first job as an associate, her boss instructed here to keep the IBM Selectric typewriter off her desk because clients “would think she was a secretary.”
“Lawyers were taught that only girls did anything with a keyboard,” she said in an interview recently. “Tech in the early years was ‘women’s work’ and lawyers were afraid they couldn’t do it.”
Monica Bay’s early experiences are, in part, reflected in her self-described “swan song” – her final piece (cover story) published after some 30 years of legal reporting and 17 years as editor-in-chief of Law Technology News:
It’s old news that clients are fed up with hostage-style lawyering. They want their outside legal teams to recognize the difference between routine “commodity” assignments and bet-the-farm, win-or-die showdowns. They want to participate in decision making, they want transparent billing and they really, really do not want to pay a firm to train its new lawyers.
Surprises in 30 Years of Legal Tech
In public speaking and in her writing, we’ve routinely observed Ms. Bay keeping score of vendors and law firms alike. She deplores the overuse of adjectives sometimes found in vendor materials and has a special disregard for the word “solution.”
Likewise, she says many lawyers deserve of the label of “luddites” for failing to embrace technology. She believes this apathetic attitude has led to additional challenges, and points to resistance to eDiscovery, for example. In some cases, she said, the cost of eDiscovery can be higher than the value of the case.
“Retired Magistrate Judge John Facciola and others have cautioned that the high costs eDiscovery is making it almost impossible for anyone but mega-corporations to litigate,” said Ms. Bay. “That has profound implications for justice.”
And technology continues to furiously advance, which will make eDiscovery even more challenging. What will happen, she asked rhetorically, when a home thermostat service is sending information to the web in the same location where a crime was committed? The concept, which is characteristic of the Internet of Things (IoT), suggests the interconnectivity of everyday appliances to the web will provide additional details important in litigation. Those details will be so large in volume, technology is the only way to process, analyze and include relevant facts to prove a case.
“Ultimately, you can’t outrun technology,” she notes. Tools from early case assessment to predictive coding will “be able to handle more data, which can help keep costs in check.”
Access to Affordable Legal Services
Ms. Bay places the cost of legal services at the top of the issues facing the average American. She says “80 percent cannot find or afford a lawyer.”
She’s long advocated self-help legal services and sees the potential to bring legal assistance to the latent market for legal services. She cannot understand why the industry would resist a non-existential threat and accept the fact that “someone just might need a form.”
“Big Law, for example, is set up to resist innovation because only partners can have a stake in profits — and it presents a massive obstacle,” she said.
She does however, see a shift in perceptions and credits a range of legal technology start-ups for driving a cultural change across the legal industry.
“Hell may have just frozen over,” she wrote in an October 2014 cover story of Law Technology News. “After years of outright hostility, the organized bar is not only acknowledging the role of Web-based self-help, lawyer referral services, and lawyer marketing but is about to actively participate with one of the most visible providers.”
Law Firms. Unmarketing.
As senior editor at The Recorder, ALM’s newspaper in San Francisco, Ms. Bay covered the organized bar. There was much angst about protecting potential clients from “ambulance chasers” and the like, and there were (and still are) strict limitations about how lawyers can market.
She recalls one meeting “where a committee spent three hours debating the font size of the words ‘advertising enclosed’ that would be required on any envelope containing material that could be perceived to be marketing.”
She found the bar’s overall agenda at odds between its stated objectives and actions. For example on one hand it advocated for “access to justice for the middle class,” while enforcing “absolutely ridiculous rules around marketing. What were lawyers supposed to do? Stand in the street and hope someone notices that you are a lawyer?”
She reiterated that everyday citizens do not know how to find a lawyer, let alone afford one and all the while small law firms often struggle with finding clients.
This is one reason she’s so upbeat about the promise of online marketplaces or “concierge lawyering” as she calls it. “Increasingly sophisticated offerings are helping consumers easily find vetted legal information and forms, at affordable prices – and these options also serve lawyers who are building their practices.”
“If a lawyer provides a good service with a reasonable rate you get loyalty – and hence a practice,” she noted.
Large Law Breaking the Mold
Along with her constructive criticism, Ms. Bay is quick to compliment law firms that she believes are breaking the mold and driving change. She cited several large law firms in our conversation.
She pointed to Littler Mendelson, P.C., a global law practice with 1,000 attorneys in more than 60 offices, for its laser focus on employment and labor law. The law firm “never pretended to be a big law firm – all they did was worker management and employee issues.”
Sedgwick, LLP, which says it has 12,000 colleagues in some 275 offices, was another law firm she mentioned by name, this time for its responsive billing practices. “Sedgwick was very quietly the first to do AFAs,” she said.
AFAs or alternative fee arrangements refer to the invoicing of legal work in form other than the billable hour.
Orrick, Herrington & Sutcliffe, LLP is a “Global 20” firm as named by trade publication Law360 and which serves technology, energy and financial sectors, was a third law firm she mentioned. She cited the firm for moving support staff to lower cost geographies such as West Virginia. “These are the folks figuring out how to get to better, faster, cheaper, transparent done – that’s what clients are demanding.”
Her last article as editor-in-chief for Law Technology News, which was titled, Trust Darwin: How Tech Will Disrupt, Save the Legal Profession, cited other examples including the embracement of alternative fees:
Some firms have embraced alternative fee arrangements, and have created C-suite positions, including Akin Gump Strauss Hauer & Feld, who named Toby Brown Chief Practice Officer and Matthew Beekhuizen, at Greenberg Traurig, who is Chief Pricing Officer. The goal is “a good relationships for years to come, not just a quick win for this month,” said Vincent Cordo, global director of client value at Reed Smith.
Ms. Bay’s citation of Toby Brown of Akin Gump Strauss Hauer & Feld, is a prominent example, because he regularly speaks on law firm pricing at industry conferences and has published a considerable body of work on the matter.
* * *
Those early notions that have clearly lasted her entire career are being carried over into her next chapter. She currently is a fellow with CodeX: The Stanford Center for Legal Informatics, and is consulting with The Cowen Group.
On her new business cards, Ms. Bay describes herself as “Lawyer, Analyst and Provocateur.” She is also consulting and writing about legal technology. But when it comes to the future of law, it’s a safe bet that she will continue to preach: “You can’t practice law without technology.”
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Photo credit: Flickr, John Bell (CC BY-SA 2.0)