ABA Journal

The New Normal

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

By D. Casey Flaherty

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D. Casey Flaherty

D. Casey Flaherty.

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.

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