One of my daughters is a carpenter (with an honors degree in Classics). Imagine how comfortable you would feel if she was going to build your house but did not know how to properly use a hammer, or the more modern compressor and nail gun. How would you feel if the surgeon hired to remove your appendix only knows how to use a few of the instruments on the surgical prep tray and is not familiar with the scalpel?

Ridiculous, you think. Carpenters must be skilled with hammers and surgeons must know how to use scalpels. Yet, the most basic tool of a legal practice is the computer and very few attorneys know how to use one well. Ask about programs beyond basic word process software (knowledge management, contact software, research tools) and the familiarity level plummets. Non of Lucifer’s tools for these scriveners; a quill will do quite well.

The American Bar Association, no fan itself of technology, recently updated the model rules of professional responsibility to explicitly address lawyer competency with technology. The ABA added the phrase “including the benefits and risks associated with relevant technology” to Comment 8 (Maintaining Competence) for Model Rule 1.1 Competence. As of December 23, 2015, 20 states had adopted the the update.

Once again, the ABA guided us to the incredibly obvious, when the merely obvious would have done nicely. Imagine any other profession or, for that matter, job where the official guidance had to say “hey folks, there is something called ‘technology’ out there and we think you should know about it.” What message do lawyers send to clients when they must say in their professional rules that technological competency is required?

If lawyers must be directed to understand “relevant technology,” do w we trust them to guide society on on the interplay of technology, humans, and law? How can individuals weakened by the idea of trying hours of tedium for seconds of computer time help us govern a hybrid world of silicon and carbon companions?

At the Edge of Thought

While lawyers contemplate the meaning of six-minute increments and other inanities (more on two of them in a bit), those not in a  “learned profession” focus on understanding the world in the Information Age. Edge is one world where these thinkers congregate. Edge was launched in 1996 as an online successor to The Reality Club.

The Reality Club was an informal gathering of intellectuals who met from 1981 to 1996 in Chinese restaurants, artist lofts, investment banking firms, ballrooms, museums, living rooms and elsewhere. Reality Club members presented their work with the understanding that they will be challenged. The hallmark of The Reality Club has been rigorous and sometimes impolite (but not ad hominem) discourse. The motto of the Club was inspired by the late artist-philosopher James Lee Byars: “To arrive at the edge of the world’s knowledge, seek out the most complex and sophisticated minds, put them in a room together, and have them ask each other the questions they are asking themselves.” 

Go to the Edge site and discover the persons involved in the conversations, and you will find some of the most interesting and creative thinkers in a broad range of fields. Reading their essays and watching the video interviews, you feel like the fly on the wall at a 17th or 18th century salon.

Each year, John Brockman, publisher and editor of Edge, poses questions for the year, solicits answers from a broad spectrum of people, and compiles their answers into a book. It is a nice marketing gimmick, but most of the essays are very interesting.

For 2016, those questions are “What do you consider the most interesting recent [scientific] news? What makes it important?” In his post, Everything Is Computation, Joscha Bach, a cognitive scientist working for the MIT Media Lab and the Harvard Program for Evolutionary Dynamics, gives his answer:

These days see a tremendous number of significant scientific news, and it is hard to say which one has the highest significance. Climate models indicate that we are past crucial tipping points and are irrevocably headed for a new, difficult age for our civilization. Mark Van Raamsdonk expands on the work of Brian Swingle and Juan Maldacena, and demonstrates how we can abolish the idea of spacetime in favor of a discrete tensor network, thus opening the way for a unified theory of physics. Bruce Conklin, George Church and others have given us CRISPR, a technology that holds the promise for simple and ubiquitous gene editing. Deep Learning starts to tell us how hierarchies of interconnected feature detectors can autonomously form a model of the world, learn to solve problems, and recognize speech, images and video.

It is perhaps equally important to notice where we lack progress: sociology fails to teach us how societies work, philosophy seems to have become barren and infertile, the economical sciences seem to be ill-equipped to inform our economic and fiscal policies, psychology does not comprehend the logic of our psyche, and neuroscience tells us where things happen in the brain, but largely not what they are.

In my view, the 20th century’s most important addition to understanding the world is not positivist science, computer technology, spaceflight, or the foundational theories of physics. It is the notion of computation. Computation, at its core, and as informally described as possible, is very simple: every observation yields a set of discernible differences.

*  *  *

Climate science, molecular genetics, and AI are computational sciences. Sociology, psychology, and neuroscience are not: they still seem to be confused by the apparent dichotomy between mechanism (rigid, moving parts) and the objects of their study. They are looking for social, behavioral, chemical, neural regularities, where they should be looking for computational ones.

Trying to Lead the Parade from Behind

Quite frequently, I complain that lawyers obsess about petty issues that do not matter to clients and, truthfully, should not matter to anyone. I argue that this focus on the petty fills time that would be better spent focusing on important issues.

I will highlight two examples. The first topic involves the period, “the full pause with which the utterance of a sentence closes.” [1]

It is hard to think of a more mundane part of legal writing than the period. But the period has provoked quite some controversy in the legal community. Imagine writing a sentence and at the end of the sentence you use the short form of a case name. The rule, according to those who tell us how to cite, is to italicize the case name. Controversy has erupted over the period following the italicized name: should the period also be italicized or not? To put the issue in perspective, look at the following picture of two periods each in 12 point font:

Screen Shot 2016-01-24 at 1.40.55 PM

Which is italicized and which isn’t? You probably can’t tell without the help of a magnifying glass. The following picture, with the font set at 200 points, should help:

Screen Shot 2016-01-24 at 1.40.43 PM

The second topic is the use of boldface in fonts. When we want a sentence in boldface we highlight the words and the spaces in between the words and select “bold.” The controversy in this case is over the spaces between the words: should those spaces be in boldface or regular face font? The following two sentences show both options. Can you tell which one has spaces in boldface and which one does not?

Screen Shot 2016-01-24 at 1.40.20 PM

Now think as a client. Would it concern you that someone wants to charge you hundreds of dollars an hour for their services focuses on these issues? Does it bother you that lawyers spend time pouring through a 1.4 pound book with over 500 pages trying to decide the proper way to point lawyers to source materials?

Keep these follies in you mind as we move back to technology and the law.

Back to Bach’s thesis. He contends that social sciences focus on regularities. Instead, he argues, they should focus on differences. For example, lawyers look for patterns among court decisions and use those patterns to infer rules. Lawyers like to find regularities, in laws and facts. Distinguishing means finding regularities lawyers prefer over the ones they found. But, in an era of one-to-one marketing and targeted gene therapy, aren’t there more differences than regularities? What does this mean for the law?

My purpose is to point again at the enormous challenge lawyers face as they  move deeper into the 21st century. Perpetuating late 19th and early 20th century systems, while thinking about law, practicing law, and learning how our rapidly evolving world interacts with law does not gain lawyers trust or credibility. If you think my characterization of the legal industry is harsh, read what Judge Richard Posner has to say (bold added):

“But why should a judge use “arguendo” in an opinion instead of “for the sake of argument”; or “contra proferentem” instead of “[construing a document] against the author”; or “eisudem generic” (usually given its medieval Latin spelling “ejusdem generic”—in law that counts for being up to date) rather than its English translation, which is “of the same kind”?

Lawyers still quibble about the UCC’s mailbox rule while McKinsey & Co. forecasts 1 trillion connected devices by 2025.

Enough! What should lawyers do?

1. Think first about customers and users of legal services, not about the needs of lawyers.

2. Think global and future, not local and past.

3. Leapfrog technological competence and aim for fluency.

4. Make efficiency a routine part of delivering legal services, not an exception considered “upon request.”

5. Embrace collaboration. You cannot do it all, so do what you should do and share the rest.

For those still wondering, lawyers are their own greatest existential risk.

[1] Merriam-Websters Collegiate Dictionary, 10th edition (2001), p. 861.