Ok, Google, Will Artificial Intelligence Replace Human Lawyering?

Abstract

Will Artificial Intelligence (AI) replace human lawyering? The answer is no. Despite worries that AI is getting so sophisticated that it could take over the profession, there is little cause for concern. Indeed, the surge of AI in the legal field has crystalized the real essence of effective lawyering. The lawyer’s craft goes beyond what AI can do because we listen with empathy to clients’ stories, strategize to find that story that might not be obvious, thoughtfully use our imagination and judgment to decide which story will appeal to an audience, and creatively tell those winning stories.

This article reviews the current state of AI in legal practice and contrasts that with the essence of exclusively human lawyering skills—empathy, imagination, and creativity. As examples, we use three Supreme Court cases to illustrate these skills.

Citation

Oseid, Julie A. and Vorenberg, Amy and Koenig, Melissa Love, Ok, Google, Will Artificial Intelligence Replace Human Lawyering? (2019). 102 Marquette Law Review 1269 (2019); U of St. Thomas (Minnesota) Legal Studies Research Paper No. 19-13; Marquette Law School Legal Studies Paper No. 19-13. Available at SSRN: https://ssrn.com/abstract=3449500

Automated Decision Support Technologies and the Legal Profession

Abstract

A quiet revolution is afoot in the field of law. Technical systems employing algorithms are shaping and displacing professional decision making, and they are disrupting and restructuring relationships between law firms, lawyers, and clients. Decision-support systems marketed to legal professionals to support e-discovery—generally referred to as “technology-assisted review” (TAR)—increasingly rely on “predictive coding,” machine-learning techniques to classify and predict which of the voluminous electronic documents subject to litigation should be withheld or produced to the opposing side. These systems and the companies offering them are reshaping relationships between lawyers and clients, introducing new kinds of professionals into legal practice, altering the discovery process, and shaping how lawyers construct knowledge about their cases and professional obligations. In the midst of these shifting relationships—and the ways in which these systems are shaping the construction and presentation of knowledge—lawyers are grappling with their professional obligations, ethical duties, and what it means for the future of legal practice.

Through in-depth, semi-structured interviews of experts in this space—the technology company representatives who develop and sell such systems to law firms and the legal professionals who decide whether and how to use them in practice—we shed light on the organizational structures, professional rules and norms, and technical system properties that are shaping and being reshaped by predictive coding systems. Our findings show that AI-supported decision systems such as these are reconfiguring professional work practices. In particular, they highlight concerns about potential loss of professional agency and skill, limited understanding and thereby both over- and under-reliance on decision-support systems, and confusion about responsibility and accountability as new kinds of technical professionals and technologies are brought into legal practice. The introduction of predictive coding systems and the new professional and organizational arrangements they are ushering into legal practice compound general concerns over the opacity of technical systems with specific concerns about encroachments on the construction of expert knowledge, liability frameworks, and the potential (mis-)alignment of machine reasoning with professional logics and ethics.

Based on our findings, we conclude that predictive coding tools—and likely other algorithmic systems lawyers use to construct knowledge and reason about legal practice—challenge the current model for evaluating whether and how tools are appropriate for legal practice. As tools become both more complex, and more consequential, it is unreasonable to rely solely on legal professionals—judges, law firms, and lawyers—to determine which technologies are appropriate for use. The legal professionals we interviewed report relying on the evaluation and judgement of a range of new technical experts within law firms and, increasingly, third-party vendors and their technical experts. This system for choosing technical systems upon which lawyers rely to make professional decisions—e.g., whether documents are responsive, whether the standard of proportionality has been met—is no longer sufficient. As the tools of medicine are reviewed by appropriate experts before they are put out for consideration and adoption by medical professionals, we argue that the legal profession must develop new processes for determining which algorithmic tools are fit to support lawyers’ decision making. Relatedly, because predictive coding systems are used to produce lawyers’ professional judgment, we argue they must be designed for contestability—providing greater transparency, interaction, and configurability around embedded choices to ensure decisions about how to embed core professional judgments, such as relevance and proportionality remain salient and demand engagement from lawyers, not just their technical experts.

Citation
Kluttz, Daniel and Mulligan, Deirdre K., Automated Decision Support Technologies and the Legal Profession (July 15, 2019). Berkeley Technology Law Journal, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3443063 or http://dx.doi.org/10.2139/ssrn.3443063

Legal Market Landscape Report (July 2018)

Commissioned by the State Bar of California, July 2018, Professor William D. Henderson

The Bar contracted with Professor William D. Henderson to conduct a landscape analysis of the current state of the legal services market, including new technologies and business models used in the delivery of legal services, with a special focus on enhancing access to justice.  The report is the first step in the
Bar’s study of delivery of legal services through the use of technology.

Read the report…

Innovation: A New Key Discipline for Lawyers and Legal Education

Abstract:

Over the past two years, I have interviewed hundreds of in-house and law firm lawyers from around the globe to explore the changing legal marketplace, expectations of clients, and innovation in law. One of my main conclusions is that we are experiencing an Innovation Tournament in Law and almost everyone is playing in it. As I explain in more detail in my book, Legal Upheaval: A Guide to Creativity, Collaboration, and Innovation in Law, driven by a combination of technology, socio-economics, and globality, we are witnessing innovation on almost every legal dimension, including how legal services are priced, packaged, sourced, and delivered. Importantly, this innovation is not only coming from legal tech startups and new law companies. Law firms, the Big Four, and corporate legal departments are creating innovations of their own including new services, products, tools, and, importantly, new processes. Even those that aren’t creating innovations are playing in the Innovation Tournament by utilizing the innovations (or exapting them) to become more efficient and deliver better service. Although we are not yet seeing disruption in the law marketplace in the Clayton Christensen sense, all lawyers should care about the Innovation Tournament regardless and here’s why:

Lawyers of all types, from big law to small and mid-size firms, from government to in-house, and even solo lawyers, are being challenged to change the way they work. Clients are asking their lawyers to innovate (and often with others outside their organization or departments). However, lawyers don’t know what their clients are asking for when they ask for innovation or how to do it—or both. The good news is, however, that my interviews and my experience working with over 210 teams of lawyers and their clients on innovation journeys, indicate that what clients are really asking for with “the call to innovate” is a new type and level of collaboration and client service. The evidence suggests that our clients’ call for us to innovate is actually a call for service transformation in disguise. Whether they want an innovation in and of itself or not, our clients want lawyers to hone the mindset, skillset, and behavior of innovators. The problem with this is that many lawyers are ill-equipped to meet these new demands. Some combination of our temperament, training, and professional identity seems to work against us when we try to espouse the DNA of innovators. This is why the new discipline for practicing and aspiring lawyers needs to be innovation.

This chapter was first published by Stämpfli Verlag in the book: New Suits: Appetite for Disruption in the Legal World, co-curated by me and Dr. Guenther Dobrauz. It begins by demonstrating that clients’ call for innovation is really a call for transformation in service from their lawyers. It then explores why answering this call can be problematic for lawyers. It seeks to show that lawyers’ professional identity, training, and temperament (along with extrinsic and intrinsic motivation) make it difficult for lawyers to adopt the collaborative, creative mindset and skillset of innovators. This chapter recommends that innovation be incorporated as a new key discipline at both the law school and executive education (continuing education) level because in the process of learning how to innovate, lawyers hone the mindset, skillset, and behaviors that clients desire. In support of this contention, it reveals that, as an added benefit, by honing the innovator’s DNA, lawyers also grow into inclusive leaders our society needs us to be. The chapter concludes with some suggestions for lawyers to help them better collaborate towards innovation along with a pie-in-the-sky call to the legal universe to make innovation the new key discipline for practicing and aspiring lawyers.

Citation:

DeStefano, Michele, Innovation: A New Key Discipline for Lawyers and Legal Education (June 27, 2019). New Suits: Appetite for Disruption in the Legal World co-curated by Michele DeStefano and Dr. Guenther Dobrauz (Stämpfli Verlag 2019). Available at SSRN.

Law School as a Consumer Product: Beat ’em or Join ’em?

Abstract:

With rising costs, pressure on performance metrics and competitive high-profile rankings, law schools are more than ever before being judged on a consumer satisfaction basis by both students and the public. While this perception has been growing over the past two decades, it has reached a crisis point in legal education. When students have their choice of educational institutions, they may act like consumers, and choose to spend their money based on metrics that satisfy them as buyers. This consumer mindset not only impacts admissions, but also can play out in the retention of students. The loss of students transferring out can take a serious toll on a law school, including potential detriments in bar passage, productive classrooms, the loss of future high performing alumni, and the cost of replacing the tuition generation. Schools are thus pressured to address the consumer issue.

Many of the conflicts that arise as between students as consumers, and their institutions, are not necessarily based in the substance of rules. Instead, much of the complaints can easily stem from the institution’s transparency and communication about various aspects of the educational experience, from in the classroom, to a student’s prospects on the job market. As such, institutions should be considering the student perspective in formulating how they present their program of education, and the various aspects within it.

While others have asked the question outright whether college students are consumers, this article does not debate whether law students treat their institutions with a consumer mindset. It presumes they do and seeks to solve the problem for institutions. Part II of this article summarizes how this mindset arose in education and specifically how it arose in legal education, and examines previous conflicts between students and institutions as a result. Part III examines different areas of law school operations where traditional academic mindset and student consumer mindset may clash, and offers solutions and strategies as to where and how the consumer pressure should be embraced to make institutional change, and where it should be resisted to ensure the consumer pressure does not result in changes that are not in students’ best long-term interests. Part IV offers some conclusions on the approach.

Citation:

Vollweiler, Debra Moss, Law School as a Consumer Product: Beat ’em or Join ’em? (July 10, 2019). Available at SSRN.

The Secret Sauce to Teaching Collaboration and Leadership to Lawyers: The 3-4-5 Method of Innovation

Abstract:

It is a hard sell to convince lawyers that they need to learn how to innovate. However, when we consider the skillset and mindset that is honed in the process of learning how to innovate, this decision should be a no-brainer. This is because, as discussed in the prior chapter (Innovation: A New Key Discipline for Lawyers and Legal Education), the call for innovation by clients is also a call for service transformation. When clients ask their lawyers to innovate, they are asking for their lawyers to co-collaborate more proactively and with a different mindset and skillset. The easy sell is that, in the process of learning how to innovate, lawyers learn to do just that: they learn to co-collaborate and hone the mindset and skillset that clients desire. An additional and under-emphasized benefit to learning how to innovate and honing the innovator’s DNA is that we also hone the DNA of leaders. When you compare the key qualities of an inclusive, adaptive leader with the key qualities of an innovator, they overlap. Research demonstrates that innovators, like leaders, have high emotional intelligence and communication skills: they are empathetic, open- and growth-minded, self-aware, associative, and audacious. This is why I believe that all lawyers should try their hand at innovation, even if their business model is not broken. This is also why I believe that innovation should be the new, key discipline in legal education for practicing and aspiring lawyers. By teaching practicing and aspiring lawyers how to innovate, we are, in turn teaching collaboration and leadership—and the lawyers don’t even know it. It’s like getting away with putting broccoli in someone’s ice cream—it’s the secret sauce.

But it’s not an easy sauce to whip together. That is, although these benefits may make the need for teaching innovation an easy sell, teaching lawyers how to innovate is not an easy task. This chapter (first published by Stämpfli Verlag in the book: New Suits: Appetite for Disruption in the Legal World) begins by explaining why this is so and why we need to utilize a method of innovation designed specifically for lawyers. It then describes the method of teaching innovation that I designed, re-designed, and tested over the past 10 years on over 200 multidisciplinary teams that included lawyers, business professionals, and law and business students: The 3-4-5 Method of Innovation for Lawyers. It then explains the secret sauce, why this new method works. Finally, this chapter concludes with a call to action for law schools, law firms, and legal departments to put on “New Suits” by creating a culture that inspires lawyers and aspiring lawyers to learn how to innovate (i.e., that cultivates intrinsic motivation) and that provides external rewards (the extrinsic motivation) to those that do.

Citation:

DeStefano, Michele, The Secret Sauce to Teaching Collaboration and Leadership to Lawyers: The 3-4-5 Method of Innovation (June 27, 2019). New Suits: Appetite for Disruption in the Legal World, co-curated by Michele DeStefano and Dr. Guenther Dobrauz (Stämpfli Verlag 2019); University of Miami Legal Studies Research Paper. Available at SSRN.

Anti-Money Laundering and Lawyer Regulation: The Response of the Professions

Abstract

The extension of anti-money laundering (AML) controls to lawyers has been a controversial topic since the early 2000s. The legal professions facing these measures have adopted differentiated strategies of response, three examples of which are examined and contrasted in this paper. In the US, the legal profession vocally objected to the measures and has been able to deflect any legislative action. In the United Kingdom, the profession pragmatically engaged with the new rules, while in France the profession has made maximum use of the levers of self-regulation allowed by the European directives. The paper presents AML lawyer-regulation as an example of the versatility of global regulatory norms, which do not necessarily evict national traditions. It also views the EU as the real bedrock of AML regulatory diffusion and questions US professional (and academic) resistance to these norms.

Citation:

Nougayrède, Delphine, Anti-Money Laundering and Lawyer Regulation: The Response of the Professions (June 15, 2019). Available at SSRN.

AI-Enabled Business Models in Legal Services: From Traditional Law Firms to Next-Generation Law Companies?

What will happen to law firms and the legal profession when the use of artificial intelligence (AI) becomes prevalent in legal services? This paper addresses this question by considering specific AI use cases in legal services, and by identifying four AI-enabled business models (AIBM) which are relatively new to legal services (if not new to the world). These AIBMs are different from the traditional professional service firm (PSF) business model at law firms, and require complementary investments in human resources, intra-firm governance and inter-firm governance. Law firms are experimenting with combinations of business models. We identify three patterns in law firm experimentation: first, combining the traditional PSF business model with the legal process and/or consulting business models; second, vertically integrating the software vendor business models; and third, accessing AIBMs from third-party vendors to take advantage of contracting for innovation. While predicting the future is not possible, we conclude that how today’s law firms transform themselves into tomorrow’s next generation law companies depends on their willingness and ability to invest in necessary complements.

Citation

Armour, John and Sako, Mari, AI-Enabled Business Models in Legal Services: From Traditional Law Firms to Next-Generation Law Companies? (July 12, 2019). Available at SSRN.

Lawyer Disciplinary Processes: An Empirical Study of Solicitors’ Misconduct Cases in England and Wales in 2015

Abstract

The Legal Services Act 2007 effected major changes in the disciplinary system for solicitors in England Wales. Both the practice regulator, the Solicitors Regulation Authority, and a disciplinary body, the Solicitors Disciplinary Tribunal, were reconstituted as independent bodies and given new powers. Our concern is the impact of the Act on the disciplinary system for solicitors. Examination of this issue involves consideration of changes to regulatory institutions and the mechanics of practice regulation. Drawing on Foucault’s notion of governmentality, empirical evidence drawn from disciplinary cases handled by the SDT and the SRA in 2015 is used to explore potentially different conceptions of discipline informing the work of the regulatory institutions. The conclusion considers the implications of our findings for the future of the professional disciplinary system.

Citation:

Boon, Andrew and Whyte, Avis, Lawyer Disciplinary Processes: An Empirical Study of Solicitors’ Misconduct Cases in England and Wales in 2015 (January 31, 2019). (2019) 39:3 Legal Studies. Available at SSRN.

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Granular Legal Norms: Big Data and the Personalization of Private Law

Against the background of the emerging debate about personalized law, this book chapter explores how BigData and algorithm-based regulation could fundamentally change the design and structure of legal norms: impersonal law based on typifications could be replaced by a more personalized law, based on “granular legal norms”.

We argue that the use of legal typifications which is a hallmark of impersonal law can be conceptualized as the answer to an information problem, a concession to the imperfections of a legal system administered by humans. The emergence of super-human capacities of information-processing through artificial intelligence could make it possible to personalize the law and achieve a level of “granularity” that has hitherto been unachieved. The chapter analyses the benefits of “granular legal norms” as well as possible limitations and objections, in particular privacy concerns and the principle of equality.


Full Paper Available Here

Christoph Busch, University of Osnabrück – European Legal Studies Institute

Alberto De Franceschi, University of Ferrara – Faculty of Law