Peer to Peer Magazine

June 2010

The quarterly publication of the International Legal Technology Association

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I share a common view: I agree that whatever parts of legal work can be automated, should be. I part company with them on what that means, in practical, deliverable terms. I The End of Lawyers? Those of us who make our living in law and technology can be both grateful to and resentful of Richard Susskind for his book, The End of Lawyers? Rethinking the Nature of Legal Services. We can be grateful because he has guaranteed employment in our field far into the future. We can be resentful because he has also guaranteed that we’ll lose those jobs almost as quickly as we land them. Many of us will change jobs more often than we have birthdays. Our employment will be terminated — over and over and over again — because we will fail to meet expectations. Susskind has raised lawyers’ expectations into the stratosphere. He is a brilliant writer and orator, able to convince on paper and in person one of the toughest audiences going: lawyers. Lawyers across North America have been entranced by Susskind’s credo of commoditization of legal services through automation. Law firms’ new demands for technical advancement will be, in my view, well beyond anything that is reasonably possible in the foreseeable future. Regular Folks, Technology and the Law I have been engaged in the work that Susskind recommends law firms now undertake for about 25 years. That is, I have worked toward automating the legal process. I have looked at inputs and outputs. I have “atomized” the steps between them. I have planned and executed processes to automate the work of lawyers. I have had some successes. I have also had some failures. I did this not out of any desire to make lawyers more profitable (although it did). I did it because my own experiences with the law in the late 1970s led me to believe that the average citizen could not cope with, or even easily come to know and understand, the fundamental legal constructs of society. Regular folks couldn’t write their own wills. They couldn’t challenge a traffic ticket. They couldn’t start their own businesses. Well, yes, they could do those things, but the end results would be different from those produced by skilled professionals armed with information. They consequently took legal risks by taking on those challenges, some of them immense, because the law is so complex and obscure. To a degree, regular folks are better off today as a result of technology. They can find out about the law more easily and 54 www.iltanet.org Peer to Peer ndustry thought leaders John Alber and Richard Susskind both predict that technology will foster radical change in the practice and business of law in the intermediate term: 10 years out. I do so hope they are right. At a fundamental level, those learned gentlemen and carry out some basic legal tasks, like finding a case report or writing a will. I suspect, however, that this is mostly work that would not have gone to lawyers in any event. And regular folks still take considerable risks. For example, LegalZoom offers an online, do-it-yourself will drafting service at www.legalzoom.com. However, as Texas attorney Rania Combs succinctly points out on her legal website, www.texaswillsandtrustslaw.com, the hidden risks are high. Clients Are (Still) Not Lawyers My own modest successes and failures in legal automation might simply be put down to lack of intelligence or skill. More important, I have also studied carefully the efforts of others to achieve similar ends, and it is this research that makes me deeply skeptical of Susskind’s claims. The smartest people I know in law and technology can’t do anything like what Richard Susskind is promising lawyers. Technology is not a revolution still to come in the legal industry. The revolution came and went in the 1990s, which is why the law office of 2010 looks nothing like its 1990 counterpart. There are no upcoming “killer” technologies — no Windows, no e-mail, no Internet, no PC-on-every-desk, no browser, no spreadsheet, no accounting system, no database. Nor are there legal-specific technologies — document assemblers, transcript managers, case managers, matter managers, conflict checkers — waiting to be invented. A decade of evolution followed the revolution of the ‘90s. We equip ourselves today with mature technologies, both general purpose and legal specific. The legal software marketplace, at least, is generally competitive. Many will be familiar with the example of document assembly. In the law and technology business, document assembly is a mature technology. There is a good selection of products in what appears to be a highly competitive marketplace. Intelligent legal technologists have turned their considerable talent and attention to the apparently simple notion of capturing what lawyers think when they draft documents. There clearly have been some document assembly successes. Yet, would any of us say that lawyers have been laid off as a result? There may have been changes in careers, shifts in focus and different approaches to clients. But I would be astounded to learn that any law firm anywhere had eliminated lawyers and replaced them with computers because of document assembly automation. This is because technology has not made clients into lawyers. They have no better legal judgment, are no more able to evaluate their legal opportunities and risks and are no more capable of being lawyers than they are without their PCs. The website of Rania Combs, mentioned above, hints at a direction I think much more probable — law practice continued and extended through technology. There is an ancient truism in the legal profession that applies here: The lawyer that represents himself has a fool for a client. Even lawyers recognize the value of the independent, objective, expert legal advisor.

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