07 January 2019

In the AI-enabled practice of the future, where does technical legal expertise fit?

Published on 07 January 2019

Twelve months ago, from my position within a large global law firm’s senior management team, I noticed the emergence of two quite separate phenomena in the legal profession.

On the one hand, law firms were trying to understand how they might both limit and leverage the impacts of rapidly emerging legal technologies on their long-standing and profitable business models. On the other, they were grappling with how best to define their central business offering to clients and where best to locate traditional legal expertise within that offering.

At the intersection of these two challenges for law firms lay a single question: what is the most appropriate and effective talent development model for the law firm of the future?

Traditionally, as a profession, lawyers have been responsible for developing their junior members from “entry level” through to partnership.  In the future, this model increasingly requires an understanding of what “work” it is that we want junior lawyers to be able to do and that in turn raises a number of other questions and issues for resolution.

What foundation of knowledge and skills do we need for the lawyers of the future? Do lawyers offer something unique – something we might call “legal expertise”- or will clients be served by more generic “business advisers”, some of whom might be lawyers but all of whom will have access to a technology platform able to provide technically correct answers to legal questions?

Above all, is the traditional law firm talent development model for junior lawyers appropriate in a world where business imperatives require us to continually push work down to the lowest cost resource in a firm (typically at an administrative or paralegal level) so that more senior lawyers might focus instead on “higher value work”? What’s left for the junior lawyer to do and to learn from? And do the traditional means of developing them – through, for example, supervision and feedback on delegated tasks - continue to exist in firms?

I welcomed the opportunity to consider these questions as part of a research fellowship provided by the Centre for Legal Innovation at The College of Law which, as part of one of Australia’s preeminent legal education institutions, is well-placed to consider these issues.  The discussion that follows is the  first part of a three part series of posts based on that research and explores what the legal industry  means by “legal expertise,” in particular whether it should be defined by reference to the technical requirements of the law or whether it should be defined from a service perspective. Commentators note that the practice of law is moving from a one to one consultative model to a platform-based “one to many” model of legal service. This begs the question whether a traditional definition of legal expertise remains relevant – and indeed, whether a different model of talent development (perhaps built across disciplines) is now required. At its core, lawyers must consider whether a narrow definition of legal expertise continues to meet a client’s needs.

The second part of the series assumes that lawyers will still be required to exercise their technical legal expertise (whether as part of a broader multidisciplinary practice or not) and explores the role of technology in augmenting that legal expertise, perhaps even providing new or additional opportunities for teaching junior lawyers new capabilities or being part of programs designed to develop their expertise.

Finally, the third part looks at the current experiences of junior lawyers in law firms to understand what they are currently being asked to do and how the existing mechanisms or processes which have been set up to transfer that expertise support them (or not) to complete those tasks.  

The three parts in the series are intended as a catalyst for debate and discussion. They will lay the groundwork for a final research paper which will be published in 2019. This final paper will draw together the three areas of focus in these blog posts and propose a model of professional development, appropriately aligned to the future for legal practice. The research is focused on Australia but references experience in other jurisdictions, particularly the UK and US, as appropriate.

Like most societies governed by the rule of law, we have traditionally afforded to the legal profession the highly privileged position of a monopoly based on a recognition of the unique knowledge and skills that lawyers bring to the resolution of a client’s legal problems. Lawyers held special knowledge which enabled them to predict how a court would decide in a particular case and, through the application of skills and judgement, could advise a client on the actions to be taken which would realise the benefit of that knowledge.  From an economist’s perspective, what a lawyer does is to determine for a particular environment, what reward (or penalty) might flow from a particular action. It is this judgement which lies at the heart of a lawyer’s expertise.

Arguably, to do this, a lawyer in a common law jurisdiction does more than simply apply a positivist set of rules. Instead, they view legal problems through the lens of a complex system of rights, obligations and remedies which must be balanced with ethical norms and principles of natural justice. The process of exercising their expertise- or “thinking like a lawyer”- is an ability to carefully identify a whole range of correct inputs for a situation and then conduct a careful balancing, weighing up, anticipating, by reference to both the social and ethical objectives of the system on the one hand, and the parties’ instrumental outcomes on the other, all against a set of legal principles which have been built up through case law. The outcome of any individual case is never certain – it “depends”.  

Whilst we choose to operate in a society governed by the rule of law, within a system of rights and obligations, lawyers have an expertise which is different from that which is held by other professionals even though they are equally seeking to protect the interests of their clients. As a profession, lawyers are responsible, through self-regulation, for ensuring that their members adhere to a certain code of conduct and most importantly, for developing the expertise of their junior members.

Traditionally, we have had in place a system of legal education designed specifically to develop this narrow kind of expertise and consequently reinforce the rule of law. Lawyers in Australia (as in other common law jurisdictions) have been educated through a three part system, the first of which takes place in law school where students are immersed in the principles of law and law-making over the course of three to four years.

This method has involved teaching law students, when presented with a set of facts, how to apply the relevant legal rules to the facts in order to reach a rational and convincing conclusion about the legal consequences of a situation.

As Justice Gageler explains, students have been taught processes of both induction and deduction, through a rigorous analysis of the way that authority is derived from a method of reasoning which courts in common law systems employ to decide individual cases.

Beyond being immersed in the legal principles, junior lawyers must then develop the skills to apply that knowledge in practical situations to the benefit of their clients. Under the current system, that development is achieved through different avenues. One is the clinical education programs which are increasingly offered as part of university qualifications. Another is the Postgraduate Diploma in Legal Practice offered by institutions such as the College of Law which most law graduates will complete as a prequalification for admission to practice. In the US, similar programs are now being developed to provide junior lawyers with skills such as drafting, negotiation and advocacy.

The true power of these skills is only then realised in the context of real problems experienced by clients and so developed through the third part of their education, legal practice. In Australia, law graduates enter practice with the promise of close supervision from a senior practitioner, possibly through a structured rotation program in the larger firms in different areas of the firm’s practice. Similarly to the model for which the firm, Cravath, Swaine & Moore LLP is credited in the US, the junior lawyer is given increasingly complex tasks by their supervisor, provided feedback and the opportunity to master one level of work before moving to the next.

What I’m describing is the model of legal expertise - and its development – which dominated lawyer professional development until the end of the twentieth century. Since then, there has been a significant amount of work done to examine the proper pedagogical goals for legal education more broadly and professional development in particular. Partly driven by a reframing of “law as a business” rather than a profession, the increasing demands of clients that lawyers act as “service providers” and partly through recognition of the growing role for legal technology in practice, there is a much greater focus on a whole range of skills beyond technical legal skills. These include business and technology skills, which are said to be required at the university and practice level and properly contribute to a lawyer’s expertise.

The purpose of this post is not to review or challenge that research – the skills proposed are undoubtedly valuable to lawyers in their roles as service providers and business operators –but rather to reinforce the importance of technical legal expertise as part of a lawyer’s education and to call for greater attention to be given to the means by which this expertise is developed in junior members of the profession. 

If we assume that technical legal expertise is still a valuable asset for a lawyer and our society (in addition to the other skill sets noted above) – and subject to it becoming redundant at the hands of technology (which will be discussed in more detail in part two of this series)– then the question remains whether the current model of expertise development in practice provides the right framework for its development.

Drawing on the body of literature on the psychology of expertise and workplace learning, we know that expertise can only be developed over time and through exposure to a wide volume of tasks including non-routine examples. The ideal conditions for expertise development include practice and feedback in context and a safe environment. Through these processes, it is possible to make explicit the tacit knowledge of the expert – the thinking processes of the expert – which are rarely well understood. On face value, the traditional law firm apprenticeship model of close supervision and “on the job” learning, providing opportunities for exposure to a wide range of matters and observation of more senior practitioners, offers a solid basis for developing a junior lawyer’s expertise.

However, face value does not always reflect reality. In recent times, the ability of the traditional model of expertise development appears to be at risk of failing to deliver its objectives. The reasons are many and varied but the most prominent of them all is the shortage of time available for senior lawyers to spend with junior lawyers.  The increased focus on billable hours and consequent change to the nature of the legal business model and demands of modern legal practice is at odds with senior lawyers spending time in the role of mentor and coach to the junior profession. Pressures on partners to complete work themselves rather than delegate also reduces the opportunities for a junior lawyer to practise, obtain feedback and learn. Law schools at the same time are under pressure to provide a suite of pre-determined courses but also deliver students who are “job ready”, including proficiency in technology-related skills. This reduces the amount of time available for foundational legal knowledge courses.

Much of the discussion in this post is drawn from the author’s experience, anecdotal evidence (from industry interviews) and a literature review. A more detailed ethnographic analysis will be required to understand the processes by which expertise is developed and transferred within a legal practice for the benefit of the profession and the public overall. My hypothesis however is that the transfer of this expertise is vital even in a world dominated by rapidly advancing technologies such as artificial intelligence. Understanding how a lawyer approaches and thinks about a particular legal challenge is not well understood and is likely to become less well understood in the future unless time is spent to capture and transfer this expertise today.

The next part in this series will consider the role that technology is likely to play in making technical legal knowledge available to clients directly and supporting lawyers to apply their expertise. It will also consider the opportunities for using that technology to support the development of a junior lawyer’s expertise by, for example, making explicit the tacit processes referred to earlier. In the final part in the series, I’ll explore the current experience of junior members of the profession in law firms and the opportunities they have identified for improving their technical legal expertise.

This is an exciting area for further research for law firms. It offers the potential for driving new and different performance and engagement amongst junior lawyers at a time when the traditional partnership model is struggling to achieve both. It will require a clear reorientation towards that which has always differentiated lawyers from their business counterparts – the rigorous and objective analysis of competing economic and social interests within the narrow confines of a complex system of legal rules and ethical principles intended to protect all members of society for a sustainable future. It promises the possibility of reconnecting junior members with a rejuvenated and different profession where having and adhering to an inspiring social purpose – such as access to justice for all or social harmony within a fair and robust legal framework - is as important as keeping the firm afloat but more important than increasing the profitability of the firm at the expense of its humanity.

 

About the Author

Nicola Atkinson is the Centre for Legal Innovation’s first Research Fellow. She has over 25 years’ experience in the legal profession, beginning her career as an articled clerk in a litigation practice in Brisbane and then Associate to the Chief Justice of the Supreme Court of Queensland. Following completion of a Masters of Law at the University of London and a lectureship at Imperial College London, Nicola led the Learning and Development function at Blake Dawson and then Knowledge Management teams at international law firm, Ashurst for over 15 years. During her time at Blake Dawson, the firm set up the first Cooperative PLT program in Australia through which it established and has subsequently enjoyed, a long relationship with the College of Law. Nicola is currently broadening her experience in learning & development beyond the legal profession in other sectors including banking, hotels and supply and distribution.