Legal Tech: Rise of the Machines, or the Phantom Menace?

Legal Tech: Rise of the Machines, or the Phantom Menace?
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Weakened job prospects for lawyers have triggered declining law school enrollments. Some point to the economy as the source of these diminished opportunities, but the economy is rebounding, and recent analysis of data from the Bureau of Labor Statistics predicts that the legal field will increase by five percent over the next ten years and that job growth in the US will be centered around industries requiring advanced degrees. Will these trends cause an upswing in law school enrollments, or at least a leveling off? It's too early to tell.

Regardless, neither law school admissions nor lawyer job prospects have come back to pre-Great Recession levels. This has led many to look for the causes of these downward trends in the landscape for lawyers. One of the prime culprits, for some, is the increasing infiltration of computers and computing into the practice of law. Are automation and computer-assisted technologies the causes of these recent trends as they have affected manufacturing and other sectors? Do they threaten to diminish the role of the lawyer in the practice of law moving forward? Recent research seems to shed some light on these questions, and the effect does not seem to be as dramatic as some might think.

The practice of law is unquestionably changing. The last twenty-five years have seen rapid technological advances in the methods by which lawyers conduct research; engage in document review; and communicate with clients, opponents, and the courts. Internet and mobile resources are putting the law in consumer's pockets, and making access to a lawyer as simple as a few key strokes or a tap on a smart phone app. These technological innovations could make the practice of law more affordable at a time when eighty percent of low-income people and as many as half of those of middle income face their legal problems without a lawyer, often because they cannot afford one. As my co-authors and I argue here, technology can help close the justice gap (the yawning chasm between lawyers and the clients who need them), and that is a positive outcome for society. But will this broader access through technology, paradoxically, mean a lesser role for the lawyers of the future?

In a series of books, Richard Susskind (with his most recent one written with his son, Daniel) suggests that the legal profession is in the midst of a significant disruption due to automation and the introduction of new technologies into the practice of law. The promise of these technologies is that they will be able to scan millions of pages of documents in preparation for trial or in anticipation of a deal in a fraction of time it takes a lawyer to do it and assess a wide range of documents to determine the best provisions to include in a contract or lease. Computers will be tasked with running statistical models, making predictions in terms of the outcomes of cases based on past judicial behavior, and conducting data mining to aid jury selection. The machines, if they are not completely overrunning the legal profession's position, are certainly threatening its perimeter defenses.

But how serious is the threat to the core and most important components of what lawyers do? The legal sector is certainly one where, as some are suggesting, automation will infringe upon the job opportunities for lawyers moving forward. In his book, A Whole New Mind: Why Right-Brainers Will Rule the Future, commentator and former lawyer Dan Pink explains that whether one's field is threatened by automation hinges on the extent to which that field requires what he calls the six "high-concept/high touch" aptitudes: design, story, symphony, empathy, play, and meaning. According to Pink, these aptitudes are more consistent with right brain activities, and are extremely difficult for machines to master as opposed to humans. Similarly, Andrew McAfee and Erik Brynjolfsson, in their work The Second Machine Age: Work, Progress and Prosperity in a Time of Brilliant Technologies, echo Pink's assessment. They suggest that careers that require individuals to generate ideas, engage in pattern recognition, and undertake complex communication (i.e., the things that computers cannot do well) will be those that succeed in a future dominated by computing.

So, to what extent does lawyering require these aptitudes? Recent research suggests that it is a lot. A newly released paper by Dana Remus and Frank Levy, researchers from the University of North Carolina School of Law and MIT, respectively, argue that although automation is coming to the legal profession (indeed, it is already here), because so much of what lawyers do is done better by humans, rather than machines, it is unlikely that the machines will destroy the legal profession any time soon. By analyzing records indicating how lawyers spend their time, and assessing the extent to which what lawyers do every day can be done better or at least as well by computers, they attempt to understand the possible impact of automation and computing on the legal profession. In this analysis, they do predict some impact on lawyer job prospects, calculating that it will be relatively modest, a roughly 2.5% annual decrease over the next few years at most. But if the legal field is expanding, even modestly, as the labor statistics research referenced above suggests, the impact will be even less dramatic. Admittedly, their research is preliminary and predictive, and others should embark on similar analysis, especially as more automation and improved technologies are introduced into the field.

What this research suggests is that at the core of what we value the most about the practice of law are things that lawyers can do better than computers. Indeed, it is hard to think of computers coming up with some of the more creative legal strategies that have brought about landmark social change over the years: for example, the decision to use sociological studies to supplement the legal claims in the Brown v. Board of Education litigation that ended segregation in schools; or the more recent campaign for Marriage Equality that changed the focus of its legal strategy, moving from arguments about legal rights, like hospital visitation, to one of unequal treatment, where the desire for access to marriage rights stressed what straight and LGBT couples shared, not how they were different. These arguments required creativity, idea generation, pattern recognition and combinatorial talents: precisely the skills where humans exceed computer capacity. It is hard to imagine computers coming up with these strategies, just like it is hard to imagine a computer suggesting that lawyers should tell their own personal stories of having abortions to the Supreme Court, which a group recently did to express their support for abortion rights in a particularly powerful and personal way.

While these skills may be most evident in impact litigation focused on constitutional claims, lawyers also engaged in more run-of-the-mill practices must exhibit the aptitudes that computers cannot: they must utilize emotional intelligence in dealing with clients, opponents, and the courts; think of new claims and defenses; draw connections from disparate fields to inform law and policy; and analyze judicial precedent to make analogies to establish new claims.

If the research by Remus and Levy is any indication, lawyers must still do a lot of things that computers cannot, and the impact of computing on the legal profession may not be as significant as some might fear. The point of the legal system is not to give lawyers jobs, however. Still, the training and expertise lawyers bring to the table can make clients' lives better, and can have positive impacts on society at large. In turn, technology can enhance the work lawyers do, and expand access to justice. Lawyers should embrace the ways technology can make their jobs easier, their services more affordable, and the lives of their clients better.

There does still seem to be a critical role for lawyers in the delivery of creative, effective, empathetic, and efficient legal services in ways computers cannot. While the role of the lawyer will no doubt change as technology enhances, and, at times, displaces, the work lawyers do, it does not seem that Skynet is going to be making closing arguments in murder trials any time soon.

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