D. Casey Flaherty.
It is stunning how quickly technological advances become a ‘natural’ part of our landscape. In the mid 1990s, Richard Susskind was being labeled “dangerous” and “possibly insane.” His heresy? Susskind suggested that email would become the principal means of communication between lawyers and clients. His detractors asserted that he understood neither security nor confidentiality and was bringing the profession into ill repute.
Today, lacking any sense of irony, senior lawyers who started their careers using Dictaphones will look up from their iPhones just long enough to condescendingly explain to me that technology is unlikely to have an impact on how they work.
In my last post, I suggested that technology providers like Thomson Reuters do not owe anyone the law-jobs equivalent of an environmental impact report when introducing capable machines like Watson into the legal ecosystem. This is in part because I don’t believe the law exists to guarantee lawyers lucrative employment. But also because I think such a report would be an exercise in futility: Most legal technologies look like job-killers until the facts prove otherwise. These posts came out the Thomson Reuters Legal Innovation Summit, so I will use their technologies as a point of departure.
The core of the summit’s Watson panel centered on at-your-fingertips research. In the hypothetical use case, Watson displaced the associate and, ultimately, her law firm because—as it showed on Jeopardy!—Watson has the potential to best humans at answering certain kinds of fact-laden questions. Yet, Watson is not the first time that Thomson Reuters has tried to make search both faster and more comprehensive.
During the summit, Thomson Reuters also introduced Practice Point, which combines many of the features of Westlaw and Practical Law. Both of those well-established products can be seen as forbearers of Watson—better answers quicker—and, if we can forget what actually happened, both possessed the potential to reduce legal employment.
Westlaw digitized legal research. In theory, digital access to case law should have made lawyers much more efficient. More efficiency means less work means less demand for lawyer labor. Yet, Westlaw and other digital repositories substantially expanded the research universe. As a result, there were more lawyers doing more research than ever before. Whether leaving no stone unturned is actually the right approach from the client perspective is a worthwhile discussion for another day.
Legal librarians, too, should have been made obsolete by Westlaw and, subsequently, Google. That is, if you take the blinkered view that a librarian’s primary responsibility is maintaining physical books. But, if you actually understand that librarians are professional locators and managers of information, then the explosion in information that has accompanied the transition to a digital world makes them more valuable, not less.
Similarly, Practical Law could, in theory, have dampened the demand for legal labor. By equipping in-house generalists with immediate access to both the baseline knowledge and forms they need to handle a wide variety of routine legal matters, Practical Law enabled in-house departments to be more self-sufficient. Yet, while there has been a shift in allocation, the total demand for legal work remains on an upward trajectory because any efficiency gains have been swamped by larger trends in the volume, velocity, and variety of activity in the broader economy that requires legal support. The demand for legal labor is largely exogenous. External factors have historically been far more determinative of our labor market than anything we introduce internally. This includes technology.
E-discovery is an example of the legal market trying to get a handle on the vaulting demands of the real world. The explosion in data volumes has made an absolute mess of discovery in even the most routine litigation. Throwing bodies at the problem proved unsustainable even when labor arbitrage moved some of those bodies overseas (PDF). The rules had to evolve, as did the technology. Predictive coding is not just “black letter law,” it is now such a standard part of the e-discovery landscape that Thomson Reuters bundled it with the free portion of their new eDiscovery Point platform and barely talked about it at the summit.
Unlike the not-yet-arrived Watson, Esq., technologies like predictive coding and expert systems are already in use and already—if you have peculiar sense of entitlement—replacing lawyers. Yet, our existential “automation anxiety” seems to be not about what’s here but what’s next. Indeed, one of the great working definitions of artificial intelligence is everything computers can’t do yet, which comports with the oft-quoted: “It’s only AI when you don’t know how it works; once it works, it’s just software.” As soon as the machines can do something—play chess, drive cars, review documents—we call it obvious and adjust.
Past performance is no guarantee of future results. Every now and again, this time really is different. But, candidly, I am more concerned by the fact that lawyers are so far behind in using the technology already available to them than I am about the potential of new technologies taking those lawyers’ jobs in the future.
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.
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