05 April 2019

Rise of machine-assisted law: What does a tech enabled lawyer look like?

Published on 05 April 2019

Lawyers are grappling to understand the impact rapidly emerging legal technologies are having on traditional legal expertise.  How fast and wide the impact will spread is hard to grasp. McKinsey predicts that in the future 23 % of a lawyer’s time may be automatable.

The future has arrived – it’s just not evenly distributed yet.”
- William Gibson


Headlines featuring the achievements of early adopters suggest glimpses of where the legal profession might be headed. 

These glimpses of a highly automated future can be hard to reconcile with the daily experience of legal work which is mostly still carried out using a phone, email and Word documents.  How do you penetrate the alarming headlines to focus on what will equip you to flourish in a tech enabled world?  How do law firms ensure lawyers, who tend to be highly sceptical and change resistant, can thrive in a rapidly changing environment?  

 

Law in an AI-enabled practice of the future

This three-part blog series aims to stimulate discussion on how law firms can meet the challenge of appropriate and effective talent development for the future law firm.  The first part discussed what “legal expertise” might look like in an AI-enabled practice.  This second part assumes that lawyers will still be required to exercise their technical legal expertise (whether as part of a broader multidisciplinary practice or not).  What is the role of technology in augmenting that legal expertise?  And what role can it play in training junior lawyers?

 

Impact of Automation on legal work today

As a litigation lawyer who works in a completely virtual firm (but still using Outlook and Word) I am already benefiting from the efficiency and the flexibility that technology offers.  I believe technology will augment the way lawyers work - to the benefit of their clients and their organisations – but also make lawyers themselves happier. 

It is generally agreed that automation will address the 4 D’s - work that is Dirty, Dull, Dangerous and Dear.  They will do less of work which requires complex cognitive processes, technology expertise and social interactions.  In the legal context, tasks that automation can do faster and more accurately include:

  1. mundane and repetitive form filling (e.g. high-volume low value claims or contracts)
  2. conveying information from Party A to Party B (e.g. using real time collaborative portals)
  3. review of large volumes of data under time pressure (e.g. discovery and due diligence)
  4. analysis of many different sources of information to predict outcomes (e.g. decided case outcomes or regulatory requirements).

 

A list of automated legal advice tools in use as at April 2018 is available from a recent Discussion Paper on “Current State of Automated Legal Advice Tools”. Some of these tools are currently limited to a specific geographic market (usually the US) or niche service.  It is hard to predict what it will take for these products to reach the Australian market.  McKinsey estimates that (across all industries) 25% – 46% of Australian workplace activities could be automated by 2030.

Of course, not all useful technological advances involve AI and not all are pure legaltech.  Five years ago, I could not have conducted litigation from a paperless remote office.  I can do it now because of access to low cost software that provides:

  • access to all documents and templates for easy document creation in a cloud-based practice management system which I can access through a browser or an app
  • video conferencing for communicating with clients and team members
  • e-discovery tools to review and quickly identify relevant material in large data sets
  • document collation tools so I can prepare large bundles of relevant documents
  • ability to securely transfer large volume files electronically
  • access to the court system via an online portal
  • legal research products which can update relevant authorities automatically
  • project management and collaboration tools for shared documents and projects
  • dictation tools designed for remote environments.

 

Situations which would have required a team a few years ago can be managed single handled.  For example, receiving a large tranche of emails late on a Friday afternoon two days before the deadline for discovery.  I used e-discovery to de-duplicate and narrow down the subset of documents needing review.  The updated list was ready on Monday morning and my weekend was intact.

 

Impact of Automation on legal work in the future

Some trends will dramatically change how lawyers work, whether in-house or in law firms or in alternative legal service providers. 

New marketplaces: Technology is enabling increasingly diverse ways for prospective clients to access legal services - online, from on-demand in-house counsel, niche micro-practices and managed legal service providers.  

Less run of the mill tasks: Automated application of sophisticated rules to manage business as usual problems (probably in-house) will leave only the most complicated problems for lawyers to tackle.  It will be increasingly important for lawyers to have excellent analysis and problem-solving skills.  They will work collaboratively and creatively (with their own colleagues, with other professionals and with clients) to solve wicked problems.

Distributed projects: In an unbundled legal services market, successful lawyers will accurately scope legal service projects and assign components to the right provider (who may not be part of their firm or in-house team) determined by price, expertise and risk tolerance.  Improved collaborative platforms will enable many different individuals or teams to share information and work seamlessly.

Flexible working: Using technology to work remotely enables lawyers to work alongside their clients.  It can also be used to retain talent when they have caring responsibilities or health issues.  Managing a flexible or remote team is very different to the traditional law firm model but can deliver huge benefits for staff retention, engagement and morale.  Avoiding the peak hour commute has made me much happier.  Overtired and unhappy people often don’t have the emotional bandwidth to make changes, even to improve the way things are done.

Before looking at what training a tech-enabled lawyer is going to need, where will traditional legal expertise still be valuable, even in a highly automated world?

  1. Earlier detection to avoid spot fires

    Ongoing analysis of big data will enable organisations to monitor and detect problems earlier giving in-house counsel improved perspective on risk.  Examples of the way this is already been done include:

    • identify a contract (in any inbox or desktop) and catalogue what it says;
    • review contracts applying standard rules and identify exceptions requiring escalation;
    • check emails for risk areas including phrases suggesting a developing contractual dispute, flesh tone images or unusually high traffic between staff members suggestive of an intimate relationship. 

    While organisations will understand their own business risk, law firms can draw on their broad experience of risk and compliance issues across an industry to help their clients design rules about appropriate monitoring of employee behaviour, what behaviour signals risk and how it should be responded to.

    Although effective risk monitoring can reduce the need for legal services, those fires which cannot be put out early are likely to be the most complicated problems requiring specialist legal expertise. Involving a lawyer early in contentious disputes (as opposed to a general business advisor) will attract client legal privilege and shield the outcome of the investigation into what occurred. 

  2. Judgment informed by data

    The results so far suggest that given a good data set, computers may be less susceptible to unconscious bias that can throw off even very experienced lawyers.  Computers also don’t get tired, bored or second guess themselves.  There are limits on how well automated decision makers can deal with complexity, uncertainty and value based decisions.  However, by taking advantage of automated processing power, lawyers can be better informed on the inputs they need to consider when asked to predict outcomes. 

    Data analysis could also reduce time-consuming ego-jostling over who has the better drafted clause.   Data analysis of similar contracts in the relevant market will show whether a term is standard in the market or not.

  3. Solving new problems

    Automation and globalisation are creating new problems about data privacy, scrutiny of algorithm-based decision making, allocation of liability for automated services, commercialisation of personal data and cross border issues.  The legal profession has expertise in balancing social and ethical objectives against commercial objectives which will be useful for setting rules in unchartered legal territory.

  4. Collaborative Negotiation

    Most prolonged contract negotiations and disputes are due to a lack of trust which can be exacerbated by information asymmetry.  A buyer who doesn’t trust that the vendor has disclosed everything will seek onerous terms to protect against that risk.  Smart contracts and other tools that make useful objective information accessible on a real time basis can help to reduce uncertainty and distrust.  They can potentially simplify the process because both parties are working on the same information.  As more people can negotiate constructively without lawyers it leaves only the most intractable negotiations for lawyers to resolve. 

 

Impact of technology on training junior lawyers in the future

Generally, automation will be associated with a greater need for skills in effective interpersonal interactions, using technology, data analysis and developing new solutions. 

Training of junior lawyers has often been based on a Master/Apprentice model rewarding diligent adherence to instructions but not necessarily personal initiative, creative problem solving and risk taking.  For some people it can be a comfortable dynamic and they may resist change.

If junior lawyers have less opportunities to develop confidence incrementally by tackling straight forward legal problems, there will be increased need for training and coaching how to approach the difficult ones.  They may need training for “soft skills” which have traditionally been developed on the job such as persuasive communication, managing difficult people, resilience and collaborative working.  Opportunities for practice may need to be created with role plays, competitions like legal hackathons and mock trials.  Maybe virtual environments will be a future training ground.

Introducing process mapping and design thinking will enable law firms to better capture technical legal expertise from experienced lawyers and “the way we do things” for talent development.  A more structured approach to deconstructing the way a lawyer thinks about problems – such as decision trees, checklists and templates – can help springboard junior lawyers.

The work required to set up the expert systems and automated processes will require junior lawyers to learn the normal way problems are managed.  Working in-house setting up and maintaining those systems will be a way for junior lawyers to acquire experience on “business as usual” problems.

Training on how to use technology needs to be constantly accessible in short, on demand, focused sessions.  Lawyers with an arts and humanities educational background may be comfortable with “drag and drop” software but struggle with maths, computer science and statistical concepts if they need a deeper understanding of how technology operates.

Data tracking can also measure whether talent management is effective by monitoring whether all staff are given access to professional development opportunities and being paid equally. 

 

Find your future path

The impact of automation of legal services is still unfolding.  Excellent technical expertise and problem-solving skills will be increasingly important for solving complex problems in an increasing automated world.  Lawyers will need to address new areas of controversy and risk.  The tech enabled lawyer is going to need all the augmentation that improved technology can give.

I find the prospect of having better technology to help me concentrate on the best bits of providing legal service an exciting one.  I didn’t go to law school because I wanted to spend months reviewing Dirty archive boxes of Dull documents which (if they were stored on a spike clip are also Dangerous) and then have the client complain about how Dear it was.  

It is an exciting time to be a lawyer.  The opportunity is here to use technology to help you to do more great work.  Start finding your way.

 

About the Author

Fiona McLay is an experienced commercial litigation lawyer.  She helps business co-owners navigate conflict between them in “business break ups” without destroying the value of the business.  Fiona is Special Counsel at Rankin & Co Business Lawyers, a paperless and virtual law firm, where she can use technology to work smarter - and with a reduced risk of paper cuts. You can follow her @BreakupBusiness or on Linkedin.