Thursday, April 28, 2016

When will lawyers rise (like elevators) to the occasion?

D. Casey Flaherty

When will lawyers rise (like elevators) to the occasion?
ABA Journal News Online
By D. Casey Flaherty
March 17, 2016

It took 50 years from the advent of the driverless elevator for the public to become comfortable enough to use them. Even then, it was only because the elevator operators’ union went on strike and Big Elevator finally went the Mad Men route of advertisements showing children gleefully pressing the buttons. Before the public campaign, people would get into the empty elevator, wait, and angrily exit to find the operator.

It is a matter of intense debate whether lawyers will find themselves facing the same kind of technological unemployment that has caused elevator operators to all but disappear. That, however, is not the analogy that interests me. I am not sure what the future holds.

But in the present, too many lawyers share much of the helplessness, frustration and unnecessary labor of the passengers who take the stairs for want of operators to hit the elevator buttons for them. The truth is that even if we could press pause on technological progress, the legal community would still have considerable work to do to integrate existing process and technology improvements into the delivery of legal services.

With the focus on the divergent conclusions reached by those welcoming our new robot overlords and those doubting the mass displacement of lawyers by capable machines, overlooked is the fact that these authors fundamentally agree that technology already has changed and will continue to change the way that law is practiced. The point of disagreement is over the scope of the change in the future, not whether change is happening or whether that change means that lawyers need to adapt. There is unanimity that the profession cannot meet the challenges of the modern world without taking advantage of the innovations that make the world modern.

The sardonic engineering joke that when brute force fails, you aren’t using enough, has long been an operating a principle in legal market that has thrown highly educated bodies at the accelerating problems of scale and scope (think legions of document review attorneys). Brute human force only goes so far in the era of big data. "Big data" is one of those labels that, like "disruption," may suffer from terminal misuse. But the framework erected to explain big data does a serviceable job of describing the mounting challenges of operating in the modern world. The standard four V’s of big data are volume, velocity, variety, and veracity. We operate in situations of increasing uncertainty as we attempt to handle more diverse matter faster. Or, in the mantra of in-house counsel, we keep trying to do more with less. This means increasing reliance on machines. As economist Alex Tabarrok explains:

  • It’s not simply that the algorithms are good and getting better: It’s that the highest-productivity people will use their human intelligence to complement machine intelligence. That means trusting the machine to curate millions of items, bringing only the most important to your attention, and then using human intelligence to take action on the most important items … Even when the filter is imperfect, you are more likely to discover something of importance from 100,000 items imperfectly filtered to 100 than from 1000 items perfectly filtered to 100.

As Tyler Cowen argued in Average is Over, the future belongs to people who can defer to the algorithm.

Google and spam filters are further examples of algorithms that are both imperfect and absolutely essential given our concerns about the veracity of information that keeps increasing in volume, velocity, and variety. Indeed, one could argue (jokingly) that Google is just trying to replicate at scale that which lawyers have been doing all along: "Google’s algorithms produce educated guesses based on similar, recent, citable precedents from the highest authority in your jurisdiction. Google just happens to do this instantly and at an incomprehensible scale (45 billion pages and counting)." Despite our head start, Dan Katz estimates that lawyers are about 40 years behind other industries on the spectrum of technology diffusion.

Lawyers are absolutely using more technology than ever before (and expressly reducing their administrative support staff on that basis). Some lawyers are quite good with technology. But, overall, the rate of adoption and adaption are maddeningly slow.

To take the most ordinary examples, we remain universally terrible with Word, Excel, PDF and other ubiquitous desktop software that we’ve been using since the dawn of Windows. Our inboxes (PDF) are both a disaster and our primary document management systems, a function for which they are ill suited. Time wasted on digital research remains a huge pain point (PDF). We are way behind on the use of e-signatures (PDF) despite technological advancements and legislative changes that are almost two decades old. We have barely scratched the surface of document assembly, document automation (PDF), knowledge management, and expert systems that have been available since the ’80s. And the less said about cybersecurity (PDF), the better.

It may very well prove true that human + machine will outperform human or machine alone. But that only holds if the human is actually using the machine instead of waiting angrily for the operator to arrive.

D. Casey Flaherty is the founder of the legal tech consultancy Procertas, provider of the Legal Tech Assessment. He was a 2013 ABA Legal Rebel. He also serves on the board of advisors of NextLaw Labs.

Editor’s note: The New Normal is an ongoing discussion between Paul Lippe, the CEO of Legal OnRamp, Patrick Lamb, founding member of Valorem Law Group and their guests. New Normal contributors spend a lot of time thinking, writing and speaking about the changes occurring in the delivery of legal services. You’re invited to join their discussion.

Updated on April 15 to fix a typo.

 My response here after the ABA comments closed: mcorleone wrote: "Legal intellect is a commodity outside of the top 5% of lawyers." Agreed, one of the best comments ever on this site. Problem for the public, the other 95% of lawyers generate excessive rents and contribute little value for their "commodity" which arguably could be provided by a paralegal or Watson, etc.

Generally, the 95% maintain the status quo through mandatory state bar organizations, UPL laws, and the Lawyer-Judge Bias in the American Legal System. Another problem not discussed, certain unified state bars (Florida) that have essentially abandon the rule of law, and make a mockery of Model Rule 8.3: Reporting Professional Misconduct

Maintaining The Integrity Of The Profession
Rule 8.3 Reporting Professional Misconduct
  • (a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.
  • (b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office shall inform the appropriate authority.
Until the judiciary replaces the lawyer-judge model, the legal profession will continue downward. Lawyers are trained to advocate for clients. Prosecutors are trained to advocate for the state. Judges are supposed to be neutral, but all judges are either former lawyers and/or are former prosecutors. A truly independent judiciary requires a judicial profession separate from the legal profession, civil servant judges who are not trained as lawyers or prosecutors, and who have not practiced law. Civil servant judges trained as neutral judges, aided by Watson, Al, or computer judges.

Under our current lawyer-judge model, judges too often are lawyers who can’t earn a living practicing law anymore. They take campaign contributions from lawyers, money with an implicit expectation of return.

Likewise with the adversarial system; really just a fee generator that is broken in many parts of the country. See Amy Bach, Ordinary Injustice, collapse of the adversarial system
The collapse of the legal system is only a matter of time. These stories are too little, too late.
 Can/Should Computers Replace Judges? by Anthony D’Amato
11 Georgia Law Review 1277-1301 (1977)

"The most important inquiry in jurisprudence has always seemed to me to be whether it is
possible to have the rule of law rather than the rule of persons. In what sense can an abstraction
called "law" actually shape the lives and channel the behavior of persons? Does law "dictate" the
proper result in a given case even if the judge's personal inclinations would be to award the
decision in a different fashion? And how can we tell? Judges are preeminently capable of
rationalizing their results and couching them in appropriate-sounding legal phrases."

Judges in Jeopardy!: Could IBM’s Watson Beat Courts at Their Own Game?
ABA Technology Assisted Review: The Judicial Pioneers

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