Legal Technology and the Future of Women in Law

Abstract

Much has been written about how automation will change the legal profession as a whole, less so about how automation might affect women in legal practice. This paper briefly maps the likely changes that legal tech (legal technology) will bring to the provision of legal services, and explores how these changes might affect the barriers to advancement that women face in the profession. It determines that, while the use of legal tech may improve women’s work/life balance and overall job satisfaction by bringing about more flexible working hours, positive changes to the billing hours’ system, and fairer hiring and promotion mechanisms, an unfettered inclusion of legal tech might lead to increased working hours for less wages, increased competition for case files among associates, and the perpetuation of existing gender biases when using algorithms in the hiring and promotion process. Finally, the paper makes several recommendations on how law societies, bar associations and other relevant regulatory bodies could ensure that legal tech promotes rather than hinders Equality & Diversity in the legal profession. It proposes that:

(1) detailed data on men and women lawyers should be collected to better inform equality and diversity policies;

(2) law firms should be required to report on their progress in pursuing equality and diversity;

(3) management techniques to promote work/life balance and more flexible pricing systems should be encouraged;

(4) female entrepreneurship in legal tech should be promoted; and,

(5) technological due process procedures should be required when using algorithms in law firm management to ensure fairness, accuracy and accountability

Munisami, Kayal, Legal Technology and the Future of Women in Law (2019). 36 Windsor Yearbook of Access to Justice 164, 2019.

Read the full article on SSRN. 

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Law, Artificial Intelligence, and Natural Language Processing: A Funny Thing Happened on the Way to My Search Results

Abstract

Renowned legal educator Roscoe Pound stated, “Law must be stable and yet it cannot stand still.” Yet, as Susan Nevelow Mart has demonstrated in a seminal article that the different online research services (Westlaw, Lexis Advance, Fastcase, Google Scholar, Ravel and Casetext) produce significantly different results when researching case law. Furthermore, a recent study of 325 federal courts of appeals decisions, revealed that only 16% of the cases cited in appellate briefs make it into the courts’ opinions. This does not exactly inspire confidence in legal research or its tools to maintain stability of the law. As Robert Berring foresaw, “The world of established sources and sets of law book that has been so stable at to seem inevitable suddenly has vanished. The familiar set of printed case reporters, citators, and second sources that were the core of legal research are being minimized before our eyes.”

In this article I focus on Artificial Intelligence (AI) and natural language processing with respect to searching. My article will proceeds as follows. To understand how effective natural language processing is in current legal research, I go about building a model of a legal information retrieval system that incorporates natural language processing. I have had to build my own model because we do not know very much about how the proprietary systems of Westlaw, Lexis, Bloomberg, Fastcase and Casetext work. However, there are descriptions in information science literature and on the Internet of how systems with advanced programing techniques actually work or could work. Next, I compare such systems with the features and search results produced by the major vendors to illustrate the probable use of natural language processing, similar to the models. In addition, the use of word prediction or type ahead techniques in the major research services are studied–particularly, how such techniques can be used to bring secondary resources to the forefront of a search. Finally, I explore how the knowledge gained may help us to better instruct law students and attorneys in the use of the major legal information retrieval systems.

My conclusion is that the adeptness of natural language processing is uneven among the various vendors and that what we receive in search results from such systems varies widely depending on a host of unknown variables. Natural language processing has introduced uncertainty to the law. We are a long way from AI systems that understand, let alone search, legal texts in a stable and consistent way.

Callister, Paul D., Law, Artificial Intelligence, and Natural Language Processing: A Funny Thing Happened on the Way to My Search Results (October 14, 2020). 112 Law Library Journal 161-212 (2020).
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Structuring Techlaw

Abstract

Technological breakthroughs challenge core legal assumptions and generate regulatory debates. Practitioners and scholars usually tackle these questions by examining the impacts of a particular technology within conventional legal subjects — say, by considering how drones should be regulated under privacy law, property law, or the law of armed conflict. While individually useful, these siloed analyses mask the repetitive nature of the underlying questions and necessitate the regular reinvention of the regulatory wheel. An overarching framework — one which can be employed across technologies and across subjects — is needed.

The fundamental challenge of tech-law is not how to best regulate novel technologies, but rather how to best address familiar forms of uncertainty in new contexts. Accordingly, we construct a three-part framework, designed to encourage a more thoughtful resolution of tech-law questions. It:

(1) delineates the three types of tech-fostered legal uncertainty, which facilitates recognizing common issues;

(2) requires a considered selection between permissive and precautionary approaches to technological regulation, given their differing distributive consequences; and

(3) highlights tech-law-specific considerations when extending extant law, creating new law, or reassessing a legal regime.

This structure emphasizes the possibility of considered and purposeful intervention in the iterative and co-constructive relationship between law and technology. By making it easier to learn from the rich history of prior dilemmas and to anticipate future issues, this framework enables policymakers, judges, and other legal actors to make more just and effective regulatory decisions going forward.

Crootof, Rebecca and Ard, BJ, Structuring Techlaw (July 30, 2020). Harvard Journal of Law & Technology, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3664124 or http://dx.doi.org/10.2139/ssrn.3664124

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The Anatomy of Consumer Legal Funding

Abstract

Litigant Third-Party Funding (LTPF), where financial companies advance money on a non-recourse basis to individual plaintiffs, is a growing and increasingly controversial industry in the U.S. This funding made headlines during the NFL concussion litigation with more than 1,000 players reported to have received such advances and with class counsel raising concerns of “predatory lending” with the Court. Policymakers and scholars echo these concerns as they call for regulation of the industry to protect vulnerable consumers. Any regulations, however, should be based on systematic data rather than good intentions or isolated anecdotes. But to date there has been almost no empirical research on the actual practices of the industry. This Article begins to fill that void.

Using a unique data set from one of the largest consumer litigation financing firms in the U.S. (“Funder”), we are the first to explore the anatomy of pre-settlement litigant finance in mass tort cases, such as the NFL class action. We are also the first to examine general post-settlement litigant finance in the U.S., which is the type of funding many NFL players were reported to have obtained. Our comprehensive data set includes approximately 225,593 requests for funding from 2001 throughout 2016.

With respect to pre-settlement funding, we find that the Funder makes an annual median gross profit of 55% from Mass Tort claims (compared with 60% from Motor Vehicle claims, our control group). We also find that the Funder includes complicated terms in their contracts that make it extremely difficult for clients to understand the actual interest rate they will be eventually be charged. We believe lawmakers should regulate these contracts, banning any unnecessarily complicated provisions and requiring that the effective annual interest rate and total amount due be straightforwardly disclosed.

With respect to post-settlement funding, we find that the effective annual interest rate charged and the profit to the Funder are even greater than for post-settlement fundings – 68% compared to 60% for Motor Vehicle claims. This is striking given that post-settlement fundings present virtually no risk to the Funder. Indeed we find that the rate of default in post-settlement cases is close to zero, which means that this category of advance is “non-recourse” on paper but not on the ground. We therefore recommend that funding in post-settlement cases should be subject to consumer protections similar to those usury laws provide for ordinary loans.

Avraham, Ronen and Baker, Lynn A. and Sebok, Anthony J., The Anatomy of Consumer Legal Funding (August 10, 2020). Cardozo Legal Studies Research Paper No. 618, U of Texas Law, Public Law Research Paper Forthcoming, U of Texas Law, Law and Econ Research Paper Forthcoming, Available at SSRN: https://ssrn.com/abstract=3670825 or http://dx.doi.org/10.2139/ssrn.3670825

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SRA legal access challenge, reports and next steps

Following the conclusion of the SRA and Nesta Legal Access Challenge, joint reports from both the SRA and Nesta have been released which highlight the lessons learned and the future next steps that will be taken to support the development of innovation. The SRA report focuses on how the lessons learned from the challenge are influencing regulation, and how this can be used to support the development and responsible adoption of legal tech. Whilst the Nesta report gives an overview of the challenge, looking at what innovations were supported, and what was learned about the wider innovation environment in the UK.

The Legal Access Challenge was a £500,000 Challenge Prize, split across early stage digital technology solutions that could directly help individuals and small medium enterprises (SMEs) better understand and resolve their legal problems. The Challenge was made possible by a grant to the SRA from the £10m Regulators’ Pioneer Fund launched by The Department for Business, Energy and Industrial Strategy and administered by Innovate UK. The fund aimed to help UK regulators to develop innovation-enabling approaches to emerging technologies. The two final winners were announced in April. The winning teams were RCJ Advice for its collection of digital tools that enable survivors of domestic abuse to get legal support, and Mencap and Access Social Care for their virtual assistant which helps people to understand and exercise their social care rights.

The 18-month challenge has been seen as successful by both the SRA and Nesta, with both seeing potential for legal technology to improve legal access. The reports conclude that the SRA’s regulation is not a barrier to innovation, but that many find it difficult navigating overlapping regulatory regimes across, for example, legal services, financial services and information management. The Challenge also showed that innovation in public-facing legal technology is mainly coming from unregulated organisations.

The scale and diversity of interest in the Challenge – with 117 applications – resulted in the Regulators Pioneer Fund providing an additional £250,000 of funding.

Feedback on the Challenge from the eight finalists showed:

  • seven had seen the development of their solution accelerated
  • seven had been introduced to new and useful contacts, with five building new partnerships
  • six had support that they otherwise would not have been able to access.

The SRA report sets out its next steps, including producing guidance to help innovators understand its rules, the requirements of overlapping regimes and how they can design products that enable regulated law firms to interact with them. It will also continue to work closely with other regulators and build networks. This includes being part of recently announced Lawtech Sandbox developed by Tech Nation.

Anna Bradley, SRA Chair and Chair of the Challenge judging panel said:
“Too many individuals and small businesses struggle to access expert help when they need it. This can be the difference between someone losing their job, home or family; or a business succeeding or failing.”

I believe tech will be a game-changer for access to legal support. Covid-19 has brought into even sharper focus the importance of digital solutions. However, it’s clear that the adoption of technology has been slow when it comes to public facing legal services.

The Challenge showed the range of ideas out there, and the potential for it to help people in vulnerable situations. I was pleased that our own regulation is not seen as a barrier to the development of tech in the legal sector but we want to do more to support innovators to navigate what can be complex and overlapping regulation.”

See the SRA’s full report on the challenge.

See Nesta’s full report on the challenge. 

 

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Law Society of Hong Kong launches law tech fund

In light of the ongoing uncertainty and the potential for change in how court hearings may be undertaken in the future, the Law Society of Hong Kong has lobbied for assistance to be provided to practitioners who may not have access to the technological tools required to conduct remote hearings or transactions.

On 8 April, the Government announced the proposed establishment of a LAWTECH Fund (“LTF”). On 18 April, the Finance Committee of the Legislative Council approved reserving HK$35 million for the LTF to assist law firms and barristers’ chambers with five or fewer practising lawyers to procure or upgrade their information technology systems and arrange relevant lawtech training for their staff.

See the full information on the fund.

Read more about the webinars.

 

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Canadian Bar Association launches programme to demystify tech

The Canadian Bar Association (CBA) has opened registration for a series of lectures on digital literacy in the law. The aim is to equip legal practitioners with the digital skills to ensure that both their and their clients’ personal information is being properly handled and secured in a digital environment. The programme has been launched in light of the increase in the use of innovative technologies in law firms, as well as the increasing likelihood of virtual courtrooms and hearings.

Topics covered by the sessions will include

  • Protection of technology and the risks of downplaying cybersecurity
  • cyber resilience in lawyers and law firms
  • digital authentication

Read the Bar Association’s announcement on the programme.

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LSB podcast on how education might adapt to technology

In its latest episode of the ‘Talking Tech’ podcast, the LSB interviews Dr Adam Wyner, Associate Professor of Law and Computer Science at Swansea University. The podcast focuses on how education and regulation might change to ensure legal professionals are better equipped to deal with and meet the challenges posed by a new tech-focused environment, as well as how these individuals can start to drive technological innovation.

Listen to the LSB podcast (42 minutes long)  and download the accompanying paper as a PDF.

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LSB publishes collection of articles on lawtech and regulation

The Legal Services Board (LSB) has published a collection of 11 focused on lawtech and regulation as part of its ongoing work in the area. The collection, entitled ‘Perspectives on Lawtech and Regulation’ includes contributions from Chris Handford, Director of Regulatory Policy at the SRA, discussing the regulatory challenges of lawtech; Mariette Hughes, Head Ombudsman at the Legal Ombudsman, discussing the use of big-data in decision making and Sir Geoffery Vos, Chancellor of the High Court discussing regulatory barriers of innovation.

The publication follows on from a series of papers and podcasts produced by the LSB last year, which included work from Alison Hook, discussing international approaches to regulating legal technology; Professor Roger Brownsword, discussing regulatory lessons from medicine and finance; Professor Noel Semple, discussing technological innovation and the Legal Services Act; and Dr Anna Donovan, on the regulation of blockchain.

The LSB has also announced that it plans to establish an expert reference group, made up of technology experts, practitioners and regulators, allowing individuals and regulators to share ideas and knowledge and engage with regulatory issues around technology collectively.

Matthew Hill, Chief Executive of the Legal Services Board has said:  “One of the Legal Services Board’s roles is to help foster a regulatory climate that supports innovation and increases access to legal services for everyone who needs them while maintaining high standards. The impact of COVID-19 has brought into even sharper focus the vital role that technology can play in keeping the wheels of justice turning. We want to remove barriers to innovation, and we encourage regulators to explore how we can use technology to reshape legal services to better meet the needs of society.”

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Law Society of Scotland and Information Commissioner’s Office collaboration on legal tech

A collaboration between the Law Society of Scotland and Information Commissioner’s Office (ICO) is set to provide a boost to the legal tech sector in Scotland, through assistance in developing technology-based solutions to GDPR issues.

The Law Society of Scotland has signed a memorandum of understanding with the ICO which allows it to act as a gateway to the ICO’s innovation hub in Cheshire, which is working in partnership with technology innovators on ‘Data Protection by design’. The project aims to help companies engineer technology designed to ensure GDPR compliance from the outset and provides bespoke guidance from the ICO.

Paul Mosson, Law Society of Scotland Executive Director of Member Services and Engagement, said: “This is a very positive step for us. The shared aims of the MOU will enable closer working between the Law Society, our members and the ICO, allowing us to take a more collaborative approach and exchange information to support our growing legal tech community.”

To read more click here.

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