The legal profession stands on the verge of a transformation—from latter-day craft guild to full-blown modern industry. And that change, difficult as it may be, is a good thing for clients and legal practitioners alike.
A modern lawyer resembles a medieval craftsman. Like cobblers, we craft custom products in expensive and time-consuming ways.
A typical cobbler measured the customer, carved the last, purchased and cut the materials, sewed and nailed them together to produce one-of-a-kind pair of shoes, and delivered them personally to the buyer. Master cobblers made durable, high-quality shoes; less-skilled cobblers produced shoes of lesser quality. In either case, shoes took many hours to make and were very expensive. Most people who owned them had but a single pair, while many others went shoeless. The cobbler’s job was repetitive, tiresome, and only moderately rewarding.
The coming of industrial technologies and processes changed all that. Shoes grew dramatically cheaper and became available to virtually everyone, their overall quality standardized and ultimately improved; the range of choices exploded. Cobblers may have disappeared, but many more people were employed making shoes, and many of them earned much more money than the cobbler. Following industrialization, people could work in a shoe factory, own a shoe factory, manage a shoe factory, operate a retail shoe store, design shoes, devise ad campaigns for shoes, handle overseas procurement of shoe-making supplies, or design shoe-making machinery.
The demise of the cobbler opened opportunities in a huge and growing industry. More people had shoes, those shoes better met their needs, and more people found good careers in the shoe industry. We should not glamorize the dull routine of the cobbler, or think that his customers greatly enjoyed their single pair of heavy, unstylish boots. Technology and industrialization replaced manual labor with machines and mass-production. Ultimately they reduced costs, improved availability and created many additional jobs.1
The hand-crafted model for legal services now finds itself under siege as well. The coming “Fourth Industrial Revolution” is replacing or supplementing the human mind with machine learning (“artificial” intelligence) and communication interconnectivity.2 And though the transition is anything but comfortable, our profession will be the better for it.
The need for law to reach many more people, combined with clients’ growing dissatisfaction over escalating fees, is hastening the breakdown of the hand-crafted “guild” model. Computers can do some tasks faster, cheaper, and better than even the best lawyer. Dramatically improved remote communication options have already started to eliminate face-to-face meetings. And cost pressures are leading to standardization of terms and remedies. Law is beginning to look like many successful service industries.
Industrializing legal services
An industrial process requires the disaggregation of tasks once thought to be wholly integrated. A cobbler would say “Well, I just make shoes.” But in fact he designed, measured, ordered materials, cut, sewed, hammered, colored, polished and delivered the shoes. Today each of these processes is handled more efficiently by a series of discrete operations that produce the finished shoe.
The practice of law can benefit from the same disaggregation of the process and the application of technology. LEXIS and Westlaw have dramatically improved legal research, and allowed it to be separated from the overall task of advocacy. The MSBA offering of Casemaker is another step forward.3 It reduces the time needed for comprehensive research, improves the thoroughness and accuracy of that research, and produces better briefs leading to more just outcomes.
The next advance in simplifying legal research and reducing its cost is the application of artificial intelligence to that task. Ross Intelligence, for example, uses IBM’s Watson platform to allow plain English research inquiries to be answered with full legal citations.4 To the extent that plain English can be used for sophisticated legal research, the need lessens for experienced lawyers to do research. The cost of that research is reduced and its quality is improved. Automated research will also, obviously, make hourly billing of time uneconomical. That will force a change in the way many of us have practiced law over the years. But if our focus is truly on our clients’ best interests, then we must applaud ways to improve the quality and reduce the cost of legal services to them.5
In his book Tomorrow’s Lawyers, Richard Susskind identifies this disaggregation of the practice of law as a major trend. Litigation, for example, can be seen as the combination of document review, legal research, project management, litigation support, disclosure, strategy, tactics, negotiation, and advocacy. Each task can be handled by a different expert, only some of whom will need J.D. degrees. Some may not even be human beings.6
Technology companies are today offering products that can assist in or take over a range of what used to be the work of the “lawyer.” These include:
- document management;
- document sharing;
- practice management;
- organizational communication;
- document management;
- e-discovery collection;
- e-discovery review;
- legal research;
- document creation;
- security; and
- trial technology.
Document collection and review is a big part of litigation. Here a smart computer can read millions of pages to search out and help to understand a dispute. That technology is best managed by e-discovery experts who understand its complexity. Discovia, one of the e-discovery firms, sees 32 separate processes comprising discovery.7 By disaggregating even the discovery process they, and their competitors, promise to provide better and cheaper ways to learn the facts of a case.8
Greater access to justice
Many more people who today need but cannot afford the help of a lawyer will be helped by a falling cost for legal services. Many lawyers will indeed be displaced by the introduction of technology and industrial processes to our profession. But many new jobs will be created by the availability of less expensive services. The jobs will be different; not all will pay as much as some lawyers earn today. Some will pay substantially more as demand drives up salaries. But the application of computers and the resulting expansion of the availability of reasonably priced services will lead to many new jobs. One estimate is that 1.5 million new jobs for data-savvy managers will be created by 2018. Many of these jobs will be in law-related areas and will need legally trained people to fill them. Bill Gates believes that the industry that grows out of machine learning will be worth ten Microsofts. That is a lot of jobs—and a lot of opportunities for lawyers willing to master machine learning as a part of their practice.9
Legal Shield is an insurance-like business that offers little new technology but is one of those companies revolutionizing the delivery of legal services to individuals and small businesses.10 It is also providing jobs for lawyers at small, general practice firms. From its website, it appears that Legal Shield reaches agreements with smaller law firms to provide basic legal services to individuals and small businesses. A simple will, real estate contracts, consultation, defense in lawsuits and many similar services are provided for a $17.50 monthly fee.
The law firms supporting Legal Shield and its customers have a steady source of income for routine work where the customer would never use a lawyer, and a base of potential clients for more demanding assignments. The fee system provides an incentive for the firm to automate and simplify the providing of the basic services, and the firm now has a potential client if it has done a good job and the client encounters more serious difficulties. It would be easy to see how businesses like Legal Shield could become as ubiquitous as health and dental insurance. That would be good for fairness and justice in our nation, and good for the lawyers supporting services like Legal Shield. It will mean more jobs for more lawyers, and more justice for more people. To make it profitable, lawyers will have to become more efficient.
Thomson Reuters here in Minnesota employs many lawyers in many challenging and rewarding jobs. Another Minnesota-based company, DTI, provides a range of comprehensive services to lawyers and corporations that help to make legal services more affordable but also provide good jobs in a new industry.11 The pure e-discovery firms similarly need lawyers or legally skilled people at many levels. NOVUS Law offers a broader and more comprehensive approach to outsourcing litigation discovery services.12 These and many other similar companies do lessen the historical reliance on law firms. But they create new jobs for the legally trained person. And by reducing costs, they increase the availability of many legal services, and expand their use into cases where extensive discovery was previously too expensive to use. Such improved discovery improves outcomes and leads to more just and open verdicts.
Changing face of legal work
But industrialization is not limited to smaller firms and simpler tasks. A major New York law firm now offers a Dodd-Frank Compliance Program that is based on machine learning. Financial organizations can license this program to answer most routine questions that used to require a lawyer (or go unanswered). The firm reports high client satisfaction and substantial firm profits from the program. It also produces referrals to the firm when the computer algorithm cannot answer the question.13
The next advance in the task of dispute resolution is already underway in parts of the United Kingdom. Disputes of less the 25,000 pounds sterling can now be resolved online. A claimant can go to a website and file his “claim” without a lawyer by typing in what happened and why he feels entitled to damages. The system could initially refer that claim to the supplier’s customer service office. If the supplier does not feel the claim is justified, an online mediator will step in and attempt to bring the two sides together to reach a fair resolution. Where mediation fails, the matter can be decided by a real judge vested with authority to issue an enforceable judgment. The judge can work online or perhaps use a conference telephone or even an online service like Skype to hear both sides and reach a judgment. Quick resolution using available computer technology helps claimants while protecting the rights of defendants.14
In the US, TurboCourt (a service of Intersys) offers an online questionnaire-based system that allows anyone to create a court filing and file it electronically. TurboCourt saves time for court employees, improves the quality of court papers, and offers access to justice for many who cannot now afford to go to a conventional lawyer. It does deprive the “cobbler” of his task, but by increasing access to justice it will create still unforeseen opportunities.
Online dispute resolution dramatically reduces the cost and increases the availability of justice for many in the middle class who are effectively precluded from seeking justice today. Many people who today cannot afford to access even the existing small-claims procedures should be able to go online to have a fair resolution at nominal cost. An expansion of this process will, of course, create good jobs for lawyers as mediators and expand the need for judges. The time-consuming tasks of driving to the court house, waiting while other cases are heard, returning perhaps for further hearings, and awaiting judgments will be eliminated. More justice at lower costs will be the result. And ultimately, more jobs for lawyers will be created as access to justice is expanded by making it available at lower cost.15
Other online services like Legal Zoom16 and Rocket Lawyer17 similarly displace many sole practitioners and small partnerships who have provided legal services to middle class individuals and small businesses. But they also dramatically reduce the cost of those services. After 40 years of law practice, I find myself using these services to draft contracts for friends and for my family. Perhaps I could craft slightly better contracts—but I could also accidentally omit provisions. Rocket Lawyer produces serviceable contracts at a fraction of the cost of “hand-crafted” documents. In so doing it could make good legal services available to many, many people who cannot afford a lawyer today. A dramatic expansion in the availability of affordable legal services ought to be a goal of our profession. Seeking to preserve antiquated jobs by enforcing outdated restrictions on the “practice of law” is as wrong today as it was when medieval guilds sought to prevent the industrial revolution in order to “save jobs.”
Two qualifications are important. First, many of these new jobs will not pay as well as the old craft jobs in law. Others, of course, will pay far better. And there will always be a place for high-end custom crafted legal services for those who can afford them. Second, a new set of skills will be required of practicing attorneys. Today a good lawyer in a common law jurisdiction needs an analytical mind with legal knowledge and mastery of English. Those skills will be vital in the future but to them must be added a full understanding of how computer software functions. Computers are already transforming the practice of law as they transformed engineering and the sciences in the last generation. Lawyers, like engineers, must become technically knowledgeable. Good places to start learning the language of computer technology is Preston Gralla’s How the Internet Works,18 Pedro Domingos’s The Master Algorithm,19 and Ron White’s How Computers Work.20 Those who can readily master the technology will prosper in the new age. Those of us who struggle with technology will have to work harder at it. Lawyers planning to succeed cannot ignore it.21
The economic reality is that the introduction of technology and resulting industrial processes has always increased jobs, increased the availability of products or services, and built more prosperous and healthy economies. There is every reason that the coming of technology enabled, industrialized legal service will produce greater availability of legal services at lower costs. If we really believe our calling is to advance justice, then we should support the coming revolution. And, in the process, we can create happy and profitable careers paths for those willing to adopt to a new and exciting world. s
MARSCHALL SMITH is a retired general counsel of 3M. He is an adjunct professor at St Thomas Law School and a farmer of corn and soy outside Scandia, Minnesota. His hobby is reading about new technologies.
1 See Richard Susskind, The End of Lawyers? (Oxford 2008) and Tomorrow’s Lawyers (Oxford 2013). For Susskind, “The bespoke specialist who handcrafts solutions for clients will be challenged by new working methods, characterized by lower labor costs, mass customization, recyclable legal knowledge, pervasive use of IT and more.”
2 Klaus Schwab, “The Fourth Industrial Revolution,” World Economic Forum, 2016.
5 Professor William Henderson of Indiana University has written extensively and perceptively on the jobs that will be created by the industrialization of law. See, for example, Henderson, “What the Jobs Are” in ABA Journal, October 2015.
6 Id. at p. 31.
8 See, for example, Maura R Grossman & Gordon V. Cormack, “Technology Assisted Review in E-Discovery can be More Effective and More Efficient than Manual Review” XVII Richmond Journal of Law and Technology 1, p. 48 (2011).
9 Pedro Domingos, The Master Algorithm (Basic Books 2015) pp. 9, 22, et seq.
13 Author interview with partners at the firm.
14 “Report Urges Britain to take Small-Claims Cases Online.” Narr. Scott Simon, interview with Richard Susskind, “Weekend Edition Saturday” NPR National Public Radio Web, 2/28/2015.
15 See for example, Michalowicz, James L., “Money Ball for Litigators: Using Analytics to Improve Spend Management and Case Outcomes,” Law Journal Newsletters, NY: ALM Media Properties, LLC, February 2014.
18 Preston Gralla, How the Internet Works (Que Publishing 2007).
19 Pedro Domingos, The Master Algorithm (Basic Books 2015).
20 White, Ron, How Computers Work (Que Publinshing 2014).
21 The California Bar Committee on Professional Responsibility ruled in Opinion 2015-193 that a lawyer using e-discovery must either acquire knowledge and skill in how the process works, associate himself with someone who does, or decline the representation.