Technology, emotion and the old lady who swallowed a fly

Posted by Nicola Jones, co-founder and director of Legal Futures Associate Athena Professional

Jones: legal procedure tends to drive out emotion

Jones: legal procedure tends to drive out emotion

When my dad retired as a partner of a medium-sized law firm in 1996, he was invited to choose a parting gift. I suggested he might ask for a computer. What troubles it caused! Eventually someone put a screen-saver on it that said ‘Purgamentum init, exit purgamentum’ – ‘Garbage in, garbage out’.

My dad valued intuition. He wanted to reach an understanding with the computer and was confounded when it didn’t play ball. He was not someone who could handle the transition to a digital age with ease. Twenty years on, getting along with technology is no longer optional. As is observed in Legal Futures’ excellent report, The Impact of Technology, law firms need to wake up to the fact that the practice of law is now a digital business. But we all need to feel understood. So how do people feature in all this?

In reality, the move to artificial intelligence does need to be examined carefully. It is likely to mean using algorithms to do ‘big data’ number crunching for some types of work. It may mean outsourcing to virtual assistants for others. Essentially, these are new types of process which require enhanced digital skills to use, but also need to be integrated into a wider context in which the human touch is evident. In my opinion, people skills will be at a premium as we become more dependent on digital resources.

At its heart, the law is about the application of rules to human behaviour, yet legal procedure tends to drive out emotion and lawyers are classically perceived as unbending and unemotional. Professionalism dictates that being emotional is inappropriate. Emotions are very much at play, for example, working with the mother who cannot afford to travel to see her child; the employer who blows a gasket and sacks someone on the spot; the CEO who consciously sails close to the wind to evade regulation – these are human predicaments requiring a human approach.

But being ‘human’ is not just about communicating well with clients. What will sell in a digital age is authenticity. It’s a term which has been adopted to describe online communication and services which resonate with the user as genuine, the ‘real deal’.

When there is a disconnect between the message and the behaviour of the entity publishing the message, then the message is inauthentic. The element of intuition, the need to be understood, is bubbling around online and pops up as a kind of critique, a demand for integrity, just when you thought online communication was all about click-throughs.

So here we come to the crunch: external communication is all about internal integrity, and really that’s a story about people. If legal professionalism is interpreted as a justification to exclude emotion within the business, people skills can be weakened or lost altogether.

The tendency to expect people to ‘do the right thing’, focus on task, and the pervasive pressure of time, can create a reluctance to deal with human issues at work. Add to this a shift to commoditisation in which procedures and processes militate towards a less-than-human approach, and the challenges increase further.

The Legal Futures publication refers to Proctor v Raleys [2015] EWCA Civ 400, a case involving a miner’s compensation claim in which a failure to explore the client’s needs ended in lost damages. The court cited a lack of “personal contact” with the client as key. The error arose because there was no conversation; the claim had been process-driven and the human dynamic was missing.

Behind that omission are layers of expectation and behaviour within the business which had consequences for its external, client-facing conduct. Presumably, an individual handled the case. That person, it is reasonable to expect, was managed by someone. That manager will have been over-seeing processes determined by a department, and ultimately sanctioned by the organisation. It’s starting to sound like the old lady who swallowed a fly!

Each tier of accountability brings with it a host of influencing factors, but at each stage human discretion is the final check. I am reminded of the Judicial Protocol on Unused Material, which commends a “thinking approach”.

How do you dovetail the move to IT-led processes with the need for a “thinking attitude”, when individual lawyers are under huge pressure and are pulled in all directions:



In my opinion, the answer is always strategy. When making a choice about what to do next, an individual is informed by their understanding of how the firm operates. For example, does this choice fit with the firm’s priorities? Is it OK to admit doubt? The choice is made by an individual and their self-awareness and self-management is key, as is their attitude, but that is not the end of the story.

The organisation can have a huge impact on how that person behaves by encouraging self-awareness, setting expectation and providing role-models for the kind of behaviour it wants people to demonstrate.

Defining strategic purpose is not just about determining what needs to be done, but equally importantly, how it should be done and that means having a strategy for people as well as process and profits. Sometimes this is can mean identifying organisational values, although they have to be meaningful and can be often pie-crust promises – easily made and easily broken. Mostly it’s about being willing to engage with human behaviour in a purposeful way.

It all sounds like common sense, but it’s hard to do in practice, and requires sophisticated skills and active support. In the legal sector, technical legal knowledge is king. Changing behaviour is not perceived as being intellectually demanding or even particularly worthwhile, and that means it often gets over-looked. Successful businesses do both.

Being able to encourage changes in behaviour is an essential element of making the transition to a digital age, and indeed, essential to how digital services are delivered. Unlike my darling dad, I’m part of a generation that has had to adapt. My kids are part of a digital generation. They may be tapping away at keyboards, but just like him, they are intuitive and they will not interact with online resources which do not strike them as genuine. Authenticity matters to them.

Their generation are the future of your business; they are your clients and your colleagues.

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