The Wellness Docket - Leveraging Technological Change To Improve Work Environments: Will We Ever Learn?
*Erin H. Durant
Ever wonder what it was like practicing law before computers, email and the internet? If you take time to talk to lawyers and staff from that era, you will hear that everything moved at a slower pace and that lawyers and staff were rarely bothered when they were not physically in the office. Retired Chief Justice of Ontario George Strathy reminisced about those “good old days” in his article “The Litigator and Mental Health”. He wrote:
…[W]hen I started practice, from about 1976 until email became common in the early 1990s, you could generally go home at night and not expect to receive phone calls or messages from work, unless something was urgent, like the office was on fire or a client had a real emergency. The same was true on weekends. You could go home on Friday afternoon or evening and reasonably expect that no one would bother you – neither a lawyer nor a client, until Monday morning.
That did not mean we did not work evenings or weekends – we did, when necessary – but it did mean that except during trials, evenings and weekends could be times for R & R, family times, and “me” times. And holidays were actually holidays – you could go away for two or three or four weeks and colleagues would cover for you.
Doesn’t that sound nice? Lawyers and their staff have very different experiences today. I have been working in law firms since 2010. A lot has changed since then and much of it has had a negative impact on lawyer and staff mental health. This blog reviews some challenges that technology has created in recent years for lawyers and staff and suggests a different, more intentional approach going forward as we enter the AI revolution.
How We Allowed Technology to Decrease Workplace Wellness
First, let’s discuss smartphones. In my first year as a law firm student, we did not have firm-issued smartphones and did not have firm email on our personal phones. Not having 24/7 access to email gave us a bit of a break in the evenings and weekends if we were able to escape the physical office. That changed by the time I returned to the firm the next year. We were handed our firm-assigned Blackberrys promptly on the first day and I think that a cell phone has been attached to me since then like a court-ordered monitoring device. There is no escape.
Not every industry works like this. Most workplaces do have protections and practices that allow their employees to disconnect. My husband is “on call” with his job during set weeks of the month only. His industry recognizes that people need time when they are not “on call”. Maybe his job is not important, you might think. Well, his job is to make sure that a large office building does not flood, burn down or that important technology does not go offline due to power failures. My mother (a nurse) and father (a plumber and gasfitter) also had boundaries around “on call” availability. Lawyers and some firm staff, even at very large enterprises, are expected to be available at all hours to absolutely everyone (our clients, our colleagues and even lawyers at other firms). It took significant educating for me to explain to my family and friends why I was always “on call” and I used to get frustrated when they did not understand. Now, I wonder why law firms failed at incorporating policies and practices that similarly gave their fee earners a mental break.
Second, over the course of my career, we have seen significant improvements in software used by lawyers and staff including practice management, timekeeping, document management, and document review. Some of these programs have reduced the manual tasks required by lawyers and staff, although they have not eliminated the need for lawyers and staff to properly name and organize documents, review the work produced by the software and make the required legal and strategic decisions associated with completing a task.
Despite these advances, I do not feel as though the mental load of practicing has decreased. If anything, we are now responsible for and juggling more tasks and information than ever. While computers have learned to process and organize information faster, human beings are limited by our own biology and can only handle so much coming at us at a time. Lawyers still need to review the work that is produced to ensure factual and legal accuracy. I have increasingly felt that I am the bottleneck and that my brain is overwhelmed. While lawyers, students and staff can use computer programs to quickly turn around some tasks, all that work still needs to be reviewed before it goes out the door and impacts on the client’s legal rights. The review pile never seems to get smaller.
Third, software companies and other entities are pushing “self-serve” requirements to decrease staffing levels and labour costs. An obvious example that we have all experienced is the self-serve check out at the grocery store or pharmacy. By scanning and bagging our own shopping, we are taking on labour that used to be done by a paid employee. Another example is that our firm now has more than one entity that we have no choice but to work with that requires our business to log into a platform to literally generate our own invoices! In a common software example, good luck finding software support if you run into challenges or bugs. The larger the company or entity gets, the harder it is to find a human being who will answer the phone or an email to provide assistance and the more likely you will need to do everything yourself.
Can the AI Revolution Be Different?
The AI revolution has begun. Corporations are investing billions of dollars into AI and AI powered legal software. Some elements of that change are already aggravating. I wish that the new AI assistants built into literally every software program that I am trying to use would stop bothering me so that I can concentrate on what I am trying to do.
Each time there is a significant technological improvement, most companies use that evolution to cut costs and reduce staff. In law firms and in-house departments, the staff who are first on the chopping block are legal assistants, law clerks and other non-billable staff who support the operations but who do not directly earn fees or provide legal advice. I lived through one instance where significant staff reductions occurred shortly after upgrading to a new document management system that partially automated the electronic filing process. Many cuts were made to experienced staff quickly and before the full time-saving impact and increased cognitive load of the new software was properly understood. As a result, files were less organized and lawyer, staff and client stress all increased.
My concern with the way AI is being adopted in some legal workplaces is that it is primarily seen as an opportunity to reduce labour costs, rather than as a way to expand the capabilities, productivity and quality of the output of the team. This is based on the assumption that AI will reduce the amount of work that humans in the office are required to do. However, recent ongoing research from professors at Berkeley that was highlighted in the Harvard Business Journal suggests that AI does not reduce the work and, instead, it intensifies it. Their study looked at AI implementation at a US-based technology company with around 200 employees over eight months. The study included both in-person observations of the workplace, monitoring of internal communication as well as in-depth interviews with employees about the AI implementation. The workplace made AI tools available but had not mandated the use of AI.
The study has resulted in some interesting observations. On the positive side, employees who adopted AI worked at a faster pace, took on a broader scope of tasks, and extended work hours into their personal time. On the negative side, there were concerns about how the AI usage resulted in: expansion of the scope of individual roles, a proliferation of work that needed to be reviewed by other skilled professionals within the organization (for example in that workplace, engineers were overwhelmed having to review code that was now being created by non-engineers), increased cognitive fatigue, burnout and weakened decision-making. Other researchers are making similar observations, especially around the increased cognitive load and impact on human relationships within the workplace. Owners and managers of legal workplaces should pay particular attention to some of these negative outcomes given all that we know about the state of lawyer mental health from recent research.
In general, the authors of the above-mentioned study found that there is a productivity surge due to the AI adaption, but there is also a corresponding increase in fatigue, burnout, weakened decision-making, lower quality work produced and increased turnover in the long term. The researchers describe the following cycle: “AI accelerated certain tasks, which raised expectations for speed; higher speed made workers more reliant on AI. Increased reliance widened the scope of what workers attempted, and a wider scope further expanded the quantity and density of work. Several participants noted that although they felt more productive, they did not feel less busy, and in some cases felt busier than before.”
To avoid or reduce these challenges, the researchers suggest developing a set of norms and standards around AI use so that employees are set up for success. This is exactly the step that legal workplaces seem to have skipped when implementing previous groundbreaking technologies. While most legal workplaces have set up policies and procedures around the type of legal work that can be completed with the assistance of AI and the type of information that can be fed into AI programs, few have thought carefully about how AI should be incorporated into actual daily workflows.
The experts suggest that organizations think about a few specific areas as they build out their AI norms and standards of their workplace. Some of those suggestions include:
Be intentional about breaks and pauses to allow for better decision making, healthier boundaries and more sustainable productivity.
Pay attention to sequencing and workflows to regulate the order and timing of work on tasks, rather than demanding continuous responsiveness to communication tools and AI outputs. This assists in reducing cognitive overload, improves attention and results in more thoughtful work and decision-making. The timing of our work should not be dictated by when an email, instant message or an AI tool delivers us information. We need to be able to organize and batch the information being thrown at us and tackle it in productive batches.
AI enables and promotes more solo, self-contained work without space of human discussion and connection. Promoting brief check-ins, shared reflection, or structured dialogue can assist in improving decision making, enhancing creativity and exploring multiple human viewpoints.
I have some additional suggestions from my own experience as someone who has struggled with some aspects of AI adaption and firm management:
Consider when, if ever, employees should be using AI to expand their outputs beyond their current knowledge, skills and experience. Here are some examples of things to consider:
Should lawyers in your firm be experimenting with using AI to write Code for potential client-facing tools or should those tasks live with someone in the IT department?
Should law clerks or legal assistants be using AI tools to prepare draft responses to clients for lawyers to review that includes legal advice?
Should law firm partners be using AI tools to prepare marketing materials or do those tasks live with the marketing department?
Recognize that some people may struggle with the increased cognitive load associated with these changes and take steps to be mindful of or reduce the overall cognitive load.
Rather than looking at AI to cut headcount, consider if there are ways your current team can use AI to expand their outputs and improve the quality of client service. As more companies in all industries continuously cut back on service and quality, I think there is an opportunity to use AI as a way to make significant improvements both to the work product provided to clients but also improve the overall health, wellness and culture of your workplace.
My hope is that we can find a way for AI tools to enhance the practice of law and improve our workplaces. My fear is that we will not learn from our past mistakes and that AI adoption will result in an even more intense and stressful profession. Time will tell.
*Erin Durant is the founder of Durant Barristers a litigation, investigation and sport law firm. She is also the author of “It Burned Me All Down” which is a book about her experience with mental illness as a practicing lawyer. The book also makes recommendations for legal workplaces to improve their work environments. She also has experience representing lawyers in both malpractice and disciplinary hearings. She can be reached at edurant@durantbarristers.com.