Law 3.0: Lawyering in the Age of Data
How will technology impact the legal profession? What does the future of lawyering look like? Is the adoption of tech a net positive or negative for the justice system? Does non-lawyer capital in the legal market present a greater risk or opportunity? How much value should we place on tradition versus innovation when it comes to the law? These are a few of the very big questions that legal professionals, scholars, and futurists grapple with, offering a range of fascinating (and often contradictory) insights, perspectives and predictions.
Richard Susskind, perhaps the most notable and frequently cited “Legal Futurist,” asks a different type of question: “if we leave it to professionals themselves to reinvent the workplace, are we asking the rabbits to guard the lettuce?” In other words, will lawyers’ adoption of technology ultimately serve to cannibalize their practice? The answer is a resounding NO. And frankly, this scarcity mindset can have dangerous consequences on the future of the law.
Law 2.0 and the Delivery of Legal Services in the Digital Era
A lot has been said about lawyers and law firms rejecting technology and perhaps even holding on a little too tightly to tradition. But recently, the legal world has indeed begun to embrace and even actively participate in the digital revolution. According to Reuters’ 2021 Report on the State of the Legal Market, there had been a slow and steady push toward making the legal market more efficient, predictable, and cost effective over the past decade, but the real tipping point came in 2021 as the result of three key, interrelated events.
The first has to do with the simple fact that young lawyers are just not willing to use the old and outdated practices of previous generations. Think about it: today’s graduating classes were born in the early aughts. They have never known a world without 3G, smartphones, and 24/7 on-demand access to anything and everything their heart desires. This is also true, by the way, of a growing subset of clients, which highlights the second reason for the accelerated adoption of tech in the legal market: client expectation in terms of the speed and cost at which legal services are delivered.
But the ultimate catalyst for the tipping point is, of course, the global pandemic, which shifted much of the world toward remote working. Without this seismic event, it is unclear how long it would have taken the industry to shift so significantly.
Prior to March 2020, lawyers from different generations may have had diverging views on the importance of integrating technology into their practice; but at that time, everyone, regardless of age, was forced to adapt to remote working technologies and become innovative problem-solvers. We are now at the point of no return, deep in the era of what I refer to as “Law 2.0,” where cutting-edge LegalTech solutions are helping firms run more efficiently through research and e-discovery tools, case management systems, smart contracts, secure file-sharing and cloud adoption, electronic billing, performance tracking, and document review software. A lot of this LegalTech, directly or indirectly, makes legal services more affordable and accessible to groups that cannot afford pricy attorney fees. And that’s a very good thing.
Law 3.0: From Digitization to Democratization
If Law 2.0 was the era of digitization and automation of lawyers’ most cumbersome tasks, then Law 3.0 is about a new, data-driven legal practice. In Law 3.0, the very concept of lawyering will change dramatically into two disciplines: legal engineers and legal experts. The former will build the machines, while the latter will deal with borderline cases that require special proficiencies.
In an essay published nearly a decade ago, Professor Daniel Martin Katz wrote about the disruptive nature of quantitative legal prediction (QLP) and how to prepare for the data-driven future of the legal services industry. A lot of his insights still hold true today, particularly his analysis that “prediction is a core component of the guidance that many lawyers offer.” “Every day,” he writes, “lawyers and firms provide predictions to their clients regarding the likely impact of choices in business planning and transactional structures, as well as their prospects in litigation and the costs associated with its pursuit.”
Professor Katz then rhetorically asks his readers a series of questions: How are these predictions being generated? Precisely what data or model is being leveraged? And then, most pointedly: Could a subset of these predictions be improved by various forms of outcome data drawn from a large number of “similar” instances? “Simply put,” says Katz, “the answer is yes.”
Whether we like it or not, humans have real cognitive limitations and biases. Wouldn’t the law work better for all of us if the justice community was aligned around a single source of truth, rather than by human-generated predictions laden with inherent bias?
Humans + Machines > Humans or Machines
None of this replaces lawyers. There is and always will be a place for human intelligence, empathy, advocacy, judgment, and reasoning in the justice system. It is true, of course, that some of the functions currently done by legal professionals can be done by machines. But this is good news, as it frees-up attorneys to spend more time on the important stuff: pursuing more justice for more clients (i.e.: less time searching for cases and moving from making educated predictions to validating their assumptions with data.)
Like it or not, technology is happening, and these advancements bring unprecedented potential to make the justice system better – more efficient, more accessible, and more accurate.
A poem by Lebanese-American philosopher, Kahlil Gibran, comes to mind:
“Your children are not your children. They are the sons and daughters of Life’s longing for itself. They come through you but not from you, And though they are with you yet they belong not to you. You may give them your love but not your thoughts. For they have their own thoughts. You may house their bodies but not their souls, For their souls dwell in the house of tomorrow, which you cannot visit, not even in your dreams. You may strive to be like them, but seek not to make them like you. For life goes not backward nor tarries with yesterday. You are the bows from which your children as living arrows are sent forth. The archer sees the mark upon the path of the infinite, and He bends you with His might that His arrows may go swift and far. Let your bending in the archer’s hand be for gladness; For even as He loves the arrow that flies, so He loves also the bow that is stable.”
Lawyers are guardians of the law, entrusted to carry the torch forward and pass it along to the next generation. Part of that mission requires a delicate and continuous dance with both tradition and progress. Lawyers must be the stable bows, constantly reconciling the ever-present tensions between preservation and innovation; between the past and the future. It’s a sacred duty. Technology should never threaten this role; on the contrary. It should be seen as a catalyst towards a better and more perfect future.