Lawyers are creatures of habit, and the legal profession is not exactly known for embracing change. Indeed, many practices that were commonplace decades ago are still followed by some lawyers even though technological advances have made them unnecessary. In some instances, lawyers probably do not even know why they follow certain practices other than “this is how things have always been done.” Law firms should periodically evaluate their procedures and eliminate antiquated practices that waste time, money, and resources.
One of the strangest examples of this involves the blueback (a piece of blue paper that is attached to the back of legal documents and typically contains information about the case and the attorney who prepared the papers). Bluebacks made much more sense when lawyers routinely submitted physical documents to courthouses and litigants. They could protect papers, identify documents, and presumably make stacks of legal filings easier to organize.
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Nevertheless, I still occasionally see bluebacks appended to documents that are electronically filed. This means that someone has essentially created a digital representation of a piece of paper whose primary purpose was to accompany another piece of paper. It is difficult to think of a better example of lawyers importing an analog practice into the digital world without asking why the practice existed in the first place. Of course, lawyers should use bluebacks when a court requires them, but otherwise, digitally attaching a blueback seems about as useful as digitally attaching a paper clip.
Wet signatures are another practice that can sometimes seem antiquated. Naturally, certain documents still require original signatures, and lawyers should make sure that electronic signatures are permissible before using them. However, even though electronic signatures are acceptable in many circumstances, some law firms and clients still follow a bizarre ritual when executing documents.
Someone receives a digital document and prints it. Another person signs the paper with a pen. The signed document is then scanned, and the resulting digital document is emailed to someone else. We have essentially converted a digital document into a physical document solely so that it can become a digital document again. This may make sense when an original signature is required, but when it isn’t, lawyers should question whether all of these steps serve any purpose.
Fax numbers are another relic that refuses to disappear from the legal profession. Many law firm letterheads and signature blocks still prominently list fax numbers. There are certainly circumstances in which lawyers still use fax machines, and some courts and government agencies continue to accommodate fax transmissions. But for many lawyers, receiving a fax is an extraordinarily rare event.
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Indeed, I am willing to bet that a substantial number of younger attorneys have never actually stood next to a fax machine and sent a document by fax. Some law firms use electronic fax services, so a fax essentially arrives as an email attachment anyway. At that point, maintaining a fax number sometimes feels like keeping a telegraph address on the letterhead just in case Western Union makes a comeback.
Unnecessary mailings are another commonplace antiquated practice. Electronic filing has transformed litigation in many jurisdictions. In New York, for instance, NYSCEF permits attorneys to file and, in many circumstances, serve papers electronically. Yet some lawyers still mail documents even when electronic filing or service has already accomplished everything that needs to be done.
Sometimes mailing is required by a court rule, a judge’s individual practices, a statute, or some other circumstance. If so, lawyers obviously need to send paper copies. But other times, papers are electronically filed, electronically served, and then placed into envelopes and mailed simply because this is what a firm has always done.
These practices might seem harmless, but they add up. Someone needs to print papers, scan documents, prepare envelopes, apply postage, and perform other tasks associated with obsolete procedures. Clients may ultimately pay for some of this work and expense. Multiply these practices across hundreds of matters, and meaningless traditions can consume a surprising amount of resources.
There is also a broader lesson here. Law firms frequently focus on adopting new technology when they discuss efficiency. They purchase new software, experiment with artificial intelligence, migrate data to the cloud, and implement increasingly sophisticated practice-management systems. Those developments can certainly make lawyers more productive.
But improving efficiency is not only about adding new things. Sometimes it involves eliminating old things.
Every so often, law firms should examine routine tasks and ask a simple question: Why do we do this? If the answer is a statute, court rule, client requirement, or some other legitimate reason, keep doing it. If the answer is “because we have always done it this way,” perhaps it is time to reconsider.
The legal profession has enough unavoidable bureaucracy. Lawyers do not need to preserve additional bureaucracy simply because generations of attorneys before us got used to it.
Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothman.law.