The American Bar Association Commission
Here at Neota Logic we have strong views about the future of the legal profession, so we were pleased that our Co-Founder & Chief Strategy Officer Michael Mills was invited recently to speak to the American Bar Association Commission on the Future of Legal Services. The Commission’s charter sets its context:
“Easy access to affordable legal services is critical in a society based on the rule of law. Yet our courts are seriously underfunded. Legal proceedings are growing more expensive, time-consuming, and complex. Many who need legal advice cannot afford to hire a lawyer and are forced to represent themselves.”
“At the same time, technology, globalization, and other forces are transforming the ways legal services are accessed and delivered. Familiar practice structures are giving way in a marketplace that continues to evolve. New providers are emerging, online and offline, to offer a range of services in dramatically different ways.”
Mills’s statement to the Commission is here in portable, printable, emailable PDF format, all 25 pages of it, with pictures. The key points are these:
- The pre-industrial, hand-crafted delivery model for legal services must change if the Commission’s goals are to be met.
- Advanced hardware and cloud scaling bring to bear truly new, and accelerating, levels of computing power.
- Advanced artificial intelligence software—machine learning and expert systems, particularly—can and do exploit that computing power to deliver high-quality legal services, both autonomously and as an adjunct to human-powered service.
- Public access to the materials of the law in machine-readable form remains an obstacle to exploitation of machine learning algorithms.
- Most law schools’ curricula appear to assume that no technology more advanced than Microsoft Word is—and, more importantly, will in five years’ time be—relevant to practice.
- The regulatory framework for law practice is mired in the early 20th century, notwithstanding our recently imposed ethical obligation to understand “the benefits and risks associated with relevant technology” in order to maintain our competence.
- Medical care offers useful models—a range of providers, including machines, acting within regulated scopes of practice.
- The Commission, and the Association, must come to terms with the steadily increasing importance of software in the delivery of legal services. Neota Logic believes that the Texas approach is correct: software is not law practice, so long as it “clearly and conspicuously state[s] that the products are not a substitute for the advice of an attorney.”
The Commission has organized a National Summit on Innovation in Legal Services, May 2–4 at Stanford Law School. The participants are exceptionally wide-ranging: from the federal and state courts, journalism, medicine, design disciplines, business, legal aid, civil rights, human rights, small firms, big firms, corporate law departments, New Law, online dispute resolution, law schools, foundations, and on.
In a Sunday morning session, Deborah Rhode, Gillian Hadfield, Marshall Van Alstyne, and Mark Britton will tackle “Challenges to Innovation.” Looking forward to that session, we offer these observations as a coda to the presentation to the Commission summarized above.
Technology is not going away. As it has done in other industries, it will keep advancing, keep pressing against entrenched processes despite regulatory constraints, like water against an earthen dam; eventually, the dam will give way. Better that the bar build new conduits than wait for the dam to fall.
As Mark Carney, Governor General of the Bank of England, said (in a different context): “If some institutions feel pressure today, it is because they have done too little for too long, rather than because they are being asked to do too much, too soon.”
Legal services are an attractive market opportunity, in one sense because of the regulatory constraints, which have kept the field so inefficient, and in another sense despite the constraints, which are indeed being eroded.
For example, legal services to big companies are, in our view, already de facto deregulated. What “alternative legal services providers” (names omitted) do for big companies is functionally indistinguishable from (some of, increasingly more of) what “law firms” do. And it is done on terms not materially different from those of “alternative business structures” in the UK and Australia. Limited liability business structures? Check. Ownership by people who are not lawyers? Check. Access to investment capital? Check. Multi-state practice? Check. Profit to participants in the form of capital return rather than ordinary income? Check.
By contrast, in the domain that is the Commission’s concern—legal services for people and families—traditional regulatory views are asserted, often with litigious vigor.
Technology will reorganize, reallocate, and, yes, to some extent eliminate work for people licensed as lawyers, as it has already done in e-discovery. (We have written in the past about the economic and social impacts of rapidly advancing technology: What Will The Lawyers Do Now: Dancing With Robots, The Second Machine Age & the Hammer Songs.)
For the most part, lawyers should welcome that reallocation. Machine learning algorithms are smart, Neota Logic’s expert systems algorithms are smart, but if an algorithm can do the job to the client’s satisfaction, why would a lawyer want to do it? All of the lawyering tasks that algorithms cannot do—judgment, creativity, compassion, empathy, invention, eloquence, argument, advocacy, negotiation, and more—are far more interesting than the bottom-half of the bell curve where algorithms play.
Indeed, clearing lawyers’ desks of the chores that machines can do may well encourage a renaissance in thinking of law practice as a learned profession rather than lamenting, as we have done for the last two decades, “it’s just a business now.” One reason law practices feels more and like factory work is that we continue to have smart, educated, creative people spend far too much of their day doing stuff that can be (in Richard Susskind’s terms) systematized and packaged. Most of us at Neota Logic are lawyers; we like our profession; we believe technology can make it better.
Pro and con arguments about alternative business structures and ownership of law practices by people other than lawyers are, in our view, secondary questions. The primary question, which the Commission should be addressing head on, is simply this: what do clients need? From that starting point, the Commission in Socratic fashion should ask questions to design a regulatory structure that maximizes client benefit. One critical criterion of that structure is flexibility, a recognition that no single model will serve all cases, that experiments (and failures) must be permitted.
We must remind ourselves of what the Legal Services Corporation says so eloquently:
“It has been widely estimated for at least the last generation that all the programs and resources devoted to ensuring access to justice address only 20% of the civil legal needs of low-income people in the United States. This is unacceptable in a nation dedicated to the rule of law and to the principle of justice for all.”
Among those not within the Legal Services Corporation’s ambit, those not eligible for legal aid, the shortfall is also far too great. Solving day-to-day, personal legal problems is far more confusing, time-consuming, and expensive than it need be.
It is the Commission’s challenge to bridge those gaps. Technology is a powerful force toward that goal. We urge the Commission to be open and bold.