“This is the end 
My only friend, the end 
Of our elaborate plans, the end 
Of everything that stands, the end”
— The Doors, “The End”
 

 

In the latest lawpocalypse article, Ryan McClead presents us with his thoughtful view of a future where computers tend the clients and lawyers tend the computers. Mr. McClead’s four-part piece follows along the path of several digitally inked pieces by technologists who argue a legal industry tipping point is near. On that judgment day, digital processors (also known as computers) will takeover much of the legal work from biological processors (also known as lawyers). Richard Susskind’s book, The End of Lawyers, part prediction of a more technological future for lawyers and part call to action, is the bible from which many of these derivative works have drawn their darker predictions.

I enjoyed Mr. McClead’s analysis, and in many key areas I agree with his predictions, though I suspect we may disagree on the time scale. Professor Susskind and others suggest that Moore’s law (the doubling of computer processing power every two to three years), means that the tipping point shift from lawyer processor to computer processor is on the near horizon. I believe the shift will take longer. Well-entrenched lawyer resistance to change, the lack of key incentives to change, regulatory resistance in the US, and the rather small market size for products deterring financial investors from taking big gambles, all will slow transformation of the legal industry. Change will come, but it will come slowly.

My concern with Mr. McClead’s article is his starting point. He tells us that he has been searching for the grand unification phrase that will encompass all that lawyers (and by extension law firms) do. Having rejected selling “access to the collective knowledge and expertise of the firm,” he has now settled on “legal processor.” I think this definition is too narrow and omits the most important aspect of what lawyers can and should do.

What Lawyers Do

Mr. McClead has selected the phrase “legal processor” to define what lawyers and law firms do. As he describes it:

Clients typically come to us with legal problems and we run those problems through our legal processing engines (attorneys, established workflows) to produce advice, documents, in person counsel, or any of the other things we commonly produce for clients…. Lawyers are selling their legal processing time, law firms are selling their collective legal processing ability, and clients are buying the legal processing that they cannot or do not want to do internally.

Having simplified what lawyers do to legal processing, Mr. McClead turns to the future for lawyers. He begins with the digitization of the legal universe. We enter a Matrix-like realm where all that is the law exists in computers. Digitization sets us up for computers to process requests for legal assistance. Again, in Mr. McClead’s words:

In other words, with an expertise system, it is possible to build legal processing engines that handle the routine aspects of practicing law, leaving the novel and unique to be handled by the firm’s biological legal processing units (attorneys).

Mr. McClead then takes us through an analysis of the Exponential Framework as applied to law. His description is based on a presentation by Peter Diamandis of the XPrize and Singularity University fame to the International Legal Technology Association earlier this year.* The Exponential Framework consists of The 6Ds: digitization, deceptive, disruption, dematerialization, demonetization, and democratization. I’m going to save my thoughts on the application of The 6Ds to the legal industry for another post and focus for now on Mr. McClead’s conclusion that lawyers are legal processors.

Lawyers Are Processors With Wisdom

While I agree we will continue to see routine legal processing moved from lawyer to computer, I disagree with Mr. McClead’s basic premise that law firms and lawyers are nothing more than legal processors. Processing is part of what we do, and an important part, but not all of what we do. The part missing from the legal processor description can best be summarized as wisdom.

A client asks for advice on firing an employee. The employee’s performance has been rated average for most of her almost 30-year career. In the past three years, however, her performance has slipped. She is 59 years old and has failed to keep up with technology. She can do work on a computer, but others in her department are faster and more facile with software. Her department manager, an up-and-coming manager in his late 30s, is under pressure to increase productivity. He wants to terminate the employee and bring in a replacement (who he already has identified) who is in her early 40s. The question to you is whether the risk of the company getting sued is relatively low if the manager fires the employee.**

This seems like a straightforward question for Mr. McClead’s digital legal processor. Identify the risk factors, consider the law in the relevant jurisdiction, and compute a probabilistic risk range for a lawsuit.

A good lawyer will go further. When did the employee’s performance start declining? Is she well-liked amongst her peers? Is the company aware of any changes affecting her at the time her performance dropped off? Apart from performance, what is her history with the company? Since the employer is a family-owned business in a smaller community, does she have other connections to the company?

As the lawyer flushes out the story, we learn that the employee lost her mother to cancer and her son, a Marine, to enemy fire, within three months of each other. It was a few months later that her performance level started to decline. She joined the company 30 years ago when the founder hired her as the company’s first customer service representative. She knows everyone in the company and is very well liked. Because she has been around so long, she is the unofficial company historian and employees frequently consult her about products or services. Her co-workers don’t complain about her performance level. Rather, they have gone out of their way to help her keep going. She has planned for years to retire at age 62 when her husband retires and they can move into their lakeside cottage. Her sister and brother-in-law both worked at the company.

Based on all of the information, the lawyer advises the department manager that he could fire the employee and, while there is some risk of a lawsuit, the likelihood of a successful one is manageable. But, the lawyer encourages the department manager to think more broadly about how to handle the situation. The company is financially strong, notes the lawyer. She suggests the department manager work with the human relations department to find a different role for the employee for the remaining two-plus years until her planned retirement. The new role would allow the employee to keep working, recognize that she probably feels the pressure of not being technologically adept, and would allow her to retire with dignity while reinforcing to the other employees that they are valuable to the company.

The lawyer has exercised compassion, judgment, empathy, and other ways of thinking beyond what technology can provide today or in the foreseeable future. Mr. McClead does not, I believe, deny that a lawyer adds these values; he argues they are part of legal processing. I disagree.

Wisdom is Beyond Processing

Stories like this play out every day:

  • On paper, a client’s proposed acquisition looks tremendous. The general counsel has difficulty articulating why he opposes the deal, beyond saying that he is uncomfortable with the ethics of the leaders on the other side. At great risk to his career, the general counsel argues strongly against the deal. Finally, the CEO and Board reluctantly agree to follow the general counsel’s advice. Six months later, the US attorney’s office announces charges against the target company’s CEO and CFO and against the company itself for serious financial fraud crimes.
  • A sales manager consults one of the company’s in-house lawyers. His counterpart at a competitor apparently set up a mailing list for certain of the competitor’s customers. The competitor is using the list to send announcements about features it will include in its products and to solicit customer feedback. The list is very large. Somehow, the sales manager’s name was included in the list so he is getting the competitor’s emails. The emails don’t include any sensitive information under the antitrust laws and the sales manager has done nothing to encourage the emails. Should he alert the competitor so the emails will stop, or can he just let the emails keep coming?

Answering these questions involves more than legal processing (and here, I am referring to a combination of computer and biological legal processing). Often, there is no right or wrong answer. The answer will depend on complex variables that are hard to quantify, and vary based on context. If we allow ourselves to be classified as simply biological based processing machines, we short-change much of what lawyers bring to clients.

Let’s move to the next stage. Mr. McClead started with the concept “[c]lients typically come to us with legal problems…” His statement describes the reactive world into which lawyers have fallen over the past few decades. We wait for clients to appear with problems and process them through to solutions. What about proactive lawyering? What about the situation where there is no legal problem?

To me, legal processing does not describe the lawyer who is familiar with the client, the industry, and legal trends. This lawyer considers where many things are going, including trends in the law, societal trends, and business trends. Within that realm, she looks for ways to shape the clients’ activities to mitigate future risks. The lawyer then works with the business team to build those mitigation strategies into business models, lowering the clients’ future costs.

I am grouping all of the things lawyers do beyond processing under the heading “wisdom.” That is, lawyers are biological processors with wisdom. Using Mr. McClead’s framework, today biological processing plus wisdom encompasses most of the work done by lawyers. Starting many years ago, digital processing began chipping away at biological processing. I mark the start date at the point when a lawyer could use Westlaw or LexisNexis to do legal research. Before that time, a lawyer looked through paper indices to find statutes and cases. With Westlaw and LexisNexis, the lawyer turned the search over to computers.

The trend to shift legal work from biological processor to digital processor has increased, albeit quite slowly, since that tipping point. Even today, decades later, the amount of processing handled by computers is a small fraction of the amount of processing handled by humans. The trend will continue, however. Perhaps the next big leap will come when we move from binary computers to quantum computers, something experts think will happen 10 to 20 years from now. Quantum computers promise huge leaps in computing speed and capacity. Undoubtedly, those leaps will enable computers to process more complex questions than computers today can handle within acceptable time frames. We also should not forget economics. While some computers (perhaps an IBM Watson) could handle more advanced inquiries today, the cost is still prohibitive. Using Watson to handle legal processing for simple, routine legal work is like buying a Rolls Royce to drive down the street to get bread. It can handle the work, but the cost is prohibitive. (This analogy may break down if you go down the street many times to get bread. For example, an insurance company handling tens or hundreds of thousands of claims has different economics than a law department that handles hundreds of claims.)

The Law is Processing with Wisdom

Mr. McClead’s article is a thoughtful and provocative view of how the legal industry is evolving. While we may quibble about how long to get from here to our next major future state, it is clear the path involves technology. His article is a welcome contribution to the discussion about the future of legal services.

But, despite his reasoning, I still believe wisdom falls outside legal processing. If we allow legal processing to include wisdom, then we fall into the trap of defining what lawyers do as solely within Aristotle’s “The law is reason, devoid of passion.” Although I believe digital processing is and will be a boon to the legal profession, I think we need to keep wisdom (and passion) in the game.

 

* Singularity University’s mission is to “educate, inspire and empower leaders to apply exponential technologies to address humanity’s grand challenges.” Apparently, lawyers do not have anything significant to contribute to that mission, since none of the core faculty, including the Policy, Law, Ethics Chair, has a law degree. Perhaps this is what happens when we allow lawyers to become nothing more than legal processors rather than legal processors who also provide wisdom.

** This example and the examples following it are based on real situations.