In late February 2018, I released a column titled “Recession Proofing – Why Now? Perhaps the Better Response is Why Not?” It struck a...
A 2017 study by McKinsey Global Institute found that roughly half of all work activities globally have the potential to be automated by technology. A follow-on study (also from McKinsey in 2017) concluded that up to one-third of work activities could be displaced by 2030. What, if any, impacts do these eye-popping findings have on the future on the legal profession, especially for recent law school graduates embarking on their careers?
Recently, it was announced that ROSS, a legal research artificial intelligence platform powered in part by IBM’s Watson technology, was unveiling a new product, EVA, which will not only find applicable cases, but quality check case citations and history. As usual, this latest development has gotten people worried that human lawyers—and, in particular, recent law school grads who have traditionally been tasked with legal research—may be on a path to extinction.
Obviously, no one can predict the future with certainty. But if history is any guide, these new technological developments will shift the type of work new lawyers are expected to do, but won’t necessarily eliminate it.
Believe it or not, there was a time in the not too distant past when people did legal research in . . . books. (The horror!) Then, to check whether a case had been overruled or was still good law, one had to cross-reference at a separate series of books called Shepard’s Citations (hence the term “Shepardizing” a case). The process was tedious and required substantial shelf space in law office libraries for the rows and rows of reporters and related reference books.
Along came Lexis in 1980, and Westlaw about a decade later, which revolutionized legal research by computerizing it. Research and case checking assignments that might have taken hours could now be done in a matter of minutes.
But the demand for junior lawyers did not plummet as a result. Instead, as technology made associates more efficient, they were expected to produce more in the same amount of time—more research memos, more briefs, and so on.
A similar phenomenon occurred with discovery. In the days of yore, the scourge of the junior associate was document review, which often meant sitting in a basement or warehouse poring over thousands of pages of documents in banker’s boxes to flag them for relevance, privilege, and so on.
As more and more documents were stored electronically, the need to physically retrieve and search those documents created a shift in how discovery was conducted. In the first wave of technology, e-discovery vendors would copy the hard drives of relevant individuals and use software to apply lawyer-selected search terms to filter for presumably relevant documents. Instead of hunching over bankers boxes, junior lawyers could now hunch over computer monitors, clicking on pre-filtered documents to flag them for relevance, privilege, and so on.
The second wave was predictive coding, which used machine learning based on human-supplied exemplars of relevant documents to predict what other documents would likely be relevant. Associates would then review those more finely filtered documents for relevance, privilege, and so on . . . are you noticing a pattern here?
One might think that the total volume of work left for human lawyers decreased as computers took over a greater share of the process. But e-discovery also made it feasible to review larger amounts of documents than ever before. And as the software has improved, computers have gotten faster, and costs have declined. The result: the amount at stake in a lawsuit needed to make e-discovery worthwhile has decreased as well. That means that even if human lawyers have a shrinking role vis-a-vis computers in the discovery process, they will be needed to double check the computer’s work in a larger number of cases.
A final example is Legal Zoom, which offers software that can automatically generate legal documents or business forms. There has been no small amount of resistance in some jurisdictions to Legal Zoom, with some arguing it constitutes the unauthorized practice of law. This resistance is no doubt derived at least in part from a fear that the software presents a dangerous source of competition for established lawyers.
But there is no empirical evidence that LegalZoom has been putting lawyers out of business. If anything, it is likely that LegalZoom is lowering the price point for client entry into the market for legal services, so that those who might otherwise have forgone legal representation altogether due to its high cost will at least have some assistance with their legal needs.
So whether it’s ROSS’ EVA platform or some other form of legal AI, technology is as likely to expand work for lawyers—because it makes them more productive—as it is to displace them. Granted, if a firm can utilize a program to do much of its basic legal research, it will have a harder time justifying billing out junior associates at several hundred dollars per hour to do the same thing. But that’s not necessarily a bad thingifthat frees up those associates to do more brief writing, analysis, or other higher order tasks that require judgment and strategic thinking.
While some fear the rise of the robots, it is actually more mundane technological challenges that may present the biggest difficulties for lawyers. For years, many law firms reaped handsome profits by charging a significant markup on their Westlaw and other database services in their client billings. But after the Great Recession, clients became savvier and started demanding that lawyers pass on those costs without markups. (The same goes for basic technology costs like printing and telephone calls.)
And although Millennials are said to be digital natives who are far more comfortable with technology than their elders, that proficiency can be deceptively selective. It is true that younger lawyers are probably more familiar with and adept at social media. But some firms have reported frustration with junior associates’ lack of familiarity with the formatting of legal documents in Microsoft Word, or the ability to fluently generate or manipulate spreadsheets in Excel. New lawyers would do well to shore up their skills in these foundational areas. Fortunately, there are numerous CLEs or other free or low-cost tutorials available.
If technology makes it harder for lawyers to get paid a lot to do mundane tasks, there will be a greater premium on the “soft” skills that, for now at least, are harder for a computer to simulate: things like client development, project management, negotiation, and case strategy. Any law school worth its salt should be considering how to modify its curriculum to better prepare students in these areas.
We may not be facing a future without lawyers. But it is going to be a future that requires lawyers to learn how to utilize technology effectively to serve their clients—something we should all welcome, not fear.We may not be facing a future without lawyers. But it is going to be a future that requires lawyers to learn how to utilize technology effectively to serve their clients—something we should all welcome, not fear. Click To Tweet
This piece, Automation in the Legal Industry: How Will It Affect Law School Grads, was originally published on National Jurist and has been repurposed with permission from both the author, Martin Pritikin, and National Jurist.
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