The Potential of Passive Time Capture: Let’s Look at the Future, Not the Past

I’ve just caught up with Gaby Isturiz’s post on passive time capture, which she wrote in response to Sean Laroque-Doherty’s November ABA Journal article on automated timekeeping programs.

I’ve been in the business of timekeeping software for 27 years now, so I read both with a great deal of interest. And I have to say that Gaby’s analysis, in my view, is spot on. It’s absolutely true what she said about passive timekeeping versus contemporaneous time entry:

“We remain firm that contemporaneous time entry is the gold standard in timekeeping behavior and that technology should exist to enable it to take place at its highest level.”

Indeed, entering time precisely as you work will typically outperform passive time capture in terms of accuracy—if you are a highly meticulous timekeeper not prone to estimation or exaggeration. Historically, the best timekeepers often either use timers or make detailed notes of precisely what they worked on, including the start and stop intervals, while they are working.

Gaby goes on to say that technology is falling short by not giving users what they actually need, and that this deficit is the real reason why lawyers have failed to embrace a lot of the solutions developed for them—and not, in fact, their supposed tendency to be risk-averse and conservative.

Again, I’m in complete agreement with the latter assertion. It’s been clear to me throughout my career in legal tech that whenever people are given a good solution that works well, they’re more than happy to embrace it. Meanwhile, lawyers will sensibly reject technology that turns out to be more trouble than it’s worth.

However, where we begin to diverge is in Gaby’s assertion that passive time capture technology has consistently fallen short of expectations and failed to meet lawyers’ needs. Over the years, I’ve seen two timekeeping innovations that have really landed.

One was the introduction of SmarTimers when I worked with Carpe Diem. It was a big hit. A floating timer pallet allowed users to literally capture every second of what they were working on at the matter level, or even at the task level (if they chose), while they were working. Switching tasks was quick and painless—a single mouse click. The only wrinkle with timers is that proper usage requires a certain way of working that many lawyers have not and will never take to. If using timers did not fit an individual’s personality type, he or she rejected them because they were too painful and cumbersome to use.

The other major innovation was passive time capture. I joined Intapp 12 years ago because I knew the capture technology that we were building would become a major innovation for the industry. While early passive time capture solutions weren’t perfect, they were revolutionary for those individuals who just couldn’t get into the habit of using timers or keeping track of their time as they worked. Without passive technology, their only recourse was to reconstruct time from memory, often quite some time after the event. This often led to wildly inaccurate timekeeping because the lawyers were basically making it up weeks or even a month after the fact.

With passive capture, timekeepers not only got a memory trigger to help them construct a timesheet, but they were provided with the time spent. For example, knowing how much time was spent reading an email or writing a response was not available unless the timekeeper was either running a timer, manually recording the start/stop time of the task, or using automated capture technology. Reviewing Outlook folders could remind someone of the activity but could not provide the time spent. Yes, in effect, this was just helping them do something that they should have already been doing. But we need to acknowledge that, for whatever reason, they hadn’t and likely never would. So those passive time capture solutions were and remain to be substantially better than nothing.

To those who may argue that passive time capture has had its shortcomings – that was true in the 2000s. However, we’re now on the brink of this century’s third decade, and next-generation passive time capture solutions are already here. They leverage much more successful and sophisticated technology that uses intelligent automation and AI to capture time more accurately than ever, with less input (and effort) required from the user. A major reason many timekeepers have adopted passive time capture is that it requires no additional steps or effort for the data to be captured. They simply work as they always have and are provided with detailed information regarding what they worked on and the time spent.

What’s more, this technology’s emergence is timely. It coincides with a new era, one in which lawyers are no longer tethered to their desks nor likely to work only during business hours. They’re reading emails and attachments on their phones in transit to client meetings and on weekends between various family and personal commitments. And yet this time is often forgotten once lawyers are back in the office and thus never captured. With these scenarios becoming increasingly common, law firms are finding that time worked outside of the office, and outside of office hours, is the hardest to capture and the most likely to leak, which leads to real revenue loss in the long term. Clearly this is where a mobile-based passive solution really starts to pay dividends.

Gaby is also right in saying that to be adopted successfully, technology absolutely has to meet the needs of users. It must complete tasks more quickly and easily than they can be done manually, and of perhaps equal importance, it must be technology in which both lawyers and law firms can have complete confidence. We’re now at the point where passive time capture programs can meet those criteria.

So in response to Sean Laroque-Doherty’s original question: “Why have automated timekeeping programs failed to gain a foothold in the industry?” The answer is that while this assessment may have been true a few years ago, this is no longer the case. Law firms increasingly expect their time entry solutions to have a well-developed time capture component, and the best of these include passive time capture that allows lawyers to focus more on lawyering and less on time entry. As work becomes increasingly mobile, passive time capture is now set to play a bigger role and is already gaining traction in the industry. Fortunately, for timekeepers, the technology has developed sufficiently that it can do so effectively.


  • Bernie Toledano

    As ZERØ’s Head of Marketing, Bernie is responsible for overall marketing strategy, brand management, and lead generation initiatives. Prior to joining ZERØ, Bernie was the AVP of Marketing and Communications at a global real asset investment firm, where she led and operationalized the marketing strategy across several subsidiaries and built the company’s marketing technology infrastructure from the ground up.