Technology and the Law: a view from the United States

Roger Smith

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The American Bar Association (ABA) has become the latest in a number of equivalent bodies around the world to ponder on the future of legal services. Its Commission on the Future of Legal Services in the United States reported earlier this month. The Law Society of England and Wales completed a similar exercise in January. Neither of these was limited solely to the impact of technology but technological innovation is one of the major themes of both. The ABA launched a serious consultation exercise prior to its report and established a commission to undertake with sufficiently illustrious members that even a passing Brit can recognise a number of them. Unsurprisingly with such high level membership, the report’s authors have done their homework : they are well enough informed to refer to the Dutch Rechtwijzer, the Canadian Civil Resolution Tribunal; to reference Ross, Watson and AI; and refer to our very own Susskind committee report on ODR.

These kind of futurology exercises may be prevalent but they are not unproblematic. Well over a decade ago, I undertook one much more limited in scale for the Law Society. The fundamental problem is that members of the profession do not have a unified view of the future. Many – perhaps most in England and Wales – just wish it would go away: they judge their representative body by whether it can succeed in making that happen. On the other hand, some of those at the cutting edge want to exploit technology in order to wipe out their rivals – though only the most uncouth would put it in that way. Negotiating these various interests takes some care. The ABA Commission, on an outsider’s view, sidesteps the obvious pitfalls. It reports on demands to open up legal work to non-lawyers but takes no view. Similarly, it notes that multi-disciplinary partnerships and alternative business structures are operational elsewhere and need to be taken seriously. And deploys a nice use of language to bypass judgement: ‘Continued exploration of alternative business structures (ABS) will be useful, and where ABS is allowed, evidence and data regarding the risks an benefits associated with these entities should be developed and assessed.’

The report tends to the optimistic. Appendix 3 reports on a national summit on innovation in legal services held at Stanford last year. This contains a page and a half list entitled ‘Summary of Potential Opportunities’. It is worth reading because it operates as a checklist of possible improvements. The trouble, as the report notes elsewhere, is widespread resistance to innovation. The ABA committee wants to encourage and to inspire. So, understandably, it spends little time on the downsides. But, alas, it is pretty likely that artificial intelligence and machine learning will decimate the number of lawyers deployed in commercial practice as it is now undertaken – even if the market in ancillary trades (e.g. ‘legal knowledge professionals’) expands. A hollowing out of the profession is possible in exactly the same way as has happened in manufacturing and elsewhere in the economy. This is a difficult topic for an ABA or a Law Society but it is the spectre that hangs for much of their membership behind all the bright talk of the new and exciting. A specific issue for those concerned with low income clients is whether they are safely harboured from the full might of this storm or whether they too will be caught within it. We shall see.

For extra-jurisdictional purposes, the most valuable part of the report is its analysis of the sources and streams of technology-based change. This takes up from page 19 to 30 of the report and you should read these if at all interested in the impact of innovation. These pages methodically work their way through technology’s impact on the courts, bar associations, law schools and lawyers. The advantage of this approach is that it gives a ‘helicopter’ view of developments in a country where technology is advancing most quickly. What comes through very strongly is the way in which innovation is creating a momentum of its own. There is an interesting section on ‘legal start ups’ which reports that, as an indicator of increasing interest, 15 legal start ups figured on one site (AngelList) in 2009.’ By 2016, over 400 legal startups (and perhaps as many as 1,000) were in existence.’ One driver in this movement are the law schools now increasingly offering ‘courses in e-discovery, outcome prediction, legal project management, process improvement, virtual lawyering and document automation’ and also providing ‘incubator’ assistance’.

The downside of separating out different innovative elements is that the ensuring greater clarity of analysis masks the dynamism of the underlying processes and the way in which different elements merge to maximise their combined effect. For example, certainly in the UK, a major transforming force in legal services at the present time is a combination of issues which the ABA tends to separate: external funding and ownership; unbundling of services, national branding and remote service delivery. The aggregation of these different factors is allowing the emergence of firms, some trumpeting a non-legal brand (eg Co-operative Legal Services) which are seeking to restructure the market from a local to a national one. The large corporate firms, meanwhile, have, for the time being, stayed away from ABS structures (probably to some extent because of US hostility) but have incorporated cumulative waves of technological development, beginning with back office functions (and allowing outsourcing), moving through the digitisation of case law for research to the use of artificial intelligence, machine learning and the processing of ‘big data’ in systems capable of predicting judicial decision-making and purposive review of massive documentation.

But, if you anywhere in the world and interested in technology’s effect on the legal profession (and every lawyer should be), this is a stimulating report to read – particularly the pages of analysis.

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