Fear not, lawyers. Wish not, doctors. Technology will not eliminate lawyers. Legal technology will, however, either enhance or detract from citizens’ access to justice and the ease of legal practice. Law, after all, is not in the first place about the lawyer, but about the lawyer’s client — a citizen — and his or her ability to pursue happiness. Lawyers are stewards and practitioners of the law. Legal technology will both increase and decrease a lawyer’s hourly rate, possibly even changing how lawyers do business. Technology will distinguish the tech-savvy lawyer from the not-so-tech-savvy lawyer, in potentially positive and negative ways.
The practice of law is a complex, often intentionally adversarial process. There are usually winners and losers, good deals and bad deals, time and frustration saved or time and frustration expended. Winning at the law requires a mix of intelligence, judgment, charisma, experience, negotiating skills, persistence, emotional intuition, good facts, time, and money. This is true for both litigation and transactional practices. Technology cannot (at the moment, perhaps never) replicate most of these intrinsically human qualities.
Good and Bad Technology
There is a difference between good technology and bad technology. Picking wisely affects your prosperity. It is not much different than picking the food you eat: good food choices help you live longer, make you feel better, help you look better, while bad food choices have the opposite effect. The same is true in picking a lawyer – good lawyers with bad facts can sometimes beat bad lawyers with good facts.
When I was in law school, the faculty invited two “lawyers” to perform a mock oral argument. One lawyer was especially charismatic, good looking, and an excellent speaker. The other lawyer was the polar opposite. After oral arguments, our class of law students voted on the winner. The charismatic speaker won. The faculty then informed us that both “lawyers” were actually actors and that the charismatic speaker presented a bad and incorrect legal argument, while the disadvantaged speaker presented a good and correct legal argument.
There are good lawyers and there are bad lawyers. There are good legal arguments and bad legal arguments. There is, and will be, good technology and bad technology. Using a hammer to drive nails is good. Using a hammer to hit someone is bad.
The “Old” Battle – Going Paperless – Gives Rise to the “New”
Over the last 20 years, the legal industry has taken steps to eliminate paper, although paper is by no means gone. Indeed, we are still at the forefront of court, justice, and law office automation. Unlike 20 years ago, however, we now have overwhelming amounts of digital artifacts. The volume and locations of digital artifacts challenges our ability to do discovery and present evidence, but it also represents a treasure trove of intelligence. This treasure trove is what drives newer technologies.
Often, arriving at the best argument is not a matter of skill but of time. The more time a lawyer has to research the law, prepare a legal argument, the better chance of winning. New technologies and disciplines like artificial intelligence, machine learning, and data analytics can save lawyers time researching the law and can give a competitive edge. This does not replace the lawyer. Data Analytics can provide statistical analysis to help forum shop or understand the strength or weakness of an argument or position, but this does not replace the lawyer. Statistically, Tom Brady may have a 5% chance of completing a pass, but Tom Brady still has to be on the field, make the decision, and ultimately throw the ball. Good legal technology means that lawyers can, potentially, serve more clients better and faster.
The Billable Hour & Quality of Life
Some argue that because lawyers are paid by the hour, technology that makes their work more efficient is unattractive, because it results in fewer billable hours. This argument does not consider the fact that for every billable hour, there are a necessary number of non-billable work hours. This can be expressed as a ratio or percentage. Anyone generating revenue from billable hours seeks to maximize the ratio in favor of more billable hours and fewer non-billable working hours. The good news for lawyers (and even non-lawyer legal professionals) is that legal technology lends itself to the more routine, mundane, non-billable tasks, rather than intrinsically human skills that are inherently billable. In other words, good legal technology, utilized the right way, has the potential to improve a lawyer’s quality of life.
Bias, Bad Citation, Learning to be Bad
Believe it or not, many lawyers do not write well. Many lawyers use bad citations. Indeed, in every profession, including law, there are the top 10% and the bottom 90%. If artificial intelligence is learning from a representative cross-sampling of a given data set (which is more or less how it works), then it may be learning from the bottom 90% just as much as it is learning from the top 10%. It learns bias. It learns mistakes. It can learn to be bad. (This brings to mind Battlestar Galactica’s “Cylons.”) In other words, we should not introduce technology for the sake of technology; we must be thoughtful.
This article focuses on the impact of legal technology on lawyers, with the exception of the opening paragraph that mentions access to justice and citizens. Some segment of the population would prefer, or may only be able to afford, representing themselves in their own matters. Legal technology has the potential to serve laymen as well, providing access to the legal system that otherwise would not have been available or affordable.
The Road Ahead
It is likely that legal technology will continue to see shorter-term booms and busts, followed by lessons learned, regulation, and refinement over a longer period of time. By way of analogy, driverless cars are really neat until there is a fatal crash and we ask, rightfully, who is responsible and how do we prevent fatalities in the future. Technology is only as good as its creators – humans create technology; therefore, technology is not perfect. Automating routine and even complex legal tasks is and will be really cool until a large and important case is lost or a person is jailed without due process. As with everything in life, quality and common sense is key.
Todd Vincent is a non-practicing lawyer, entrepreneur, and software developer with 20 years’ experience serving courts, justice agencies, legislatures, litigation support companies, and lawyers.