Not surprisingly, much of a family lawyer’s education, training, and experience is related to the law. The majority of family law professionals have little or no education, training, or formal experience in the field of psychology, and especially not with respect to the psychological principles that are applied to best-interest factors. Knowledge in this area became more critical in the last few decades after the departure from the “tender years” doctrine and a turn towards adoption of the “best interests of the child” doctrine. As such, the demand for child custody–related knowledge and the ability to apply it to contested and uncontested custody determinations grew exponentially. Even more emphasis has been placed on acquiring this knowledge base, as parents more equitably share in parenting time, thus creating the need for more collaboration between parents. This development increases the importance of positive co-parenting and addressing potential minefields in a parenting plan. In response, parent education programs were developed, custody evaluators and other neutral professionals (e.g., the guardian ad litem) became appointed with greater frequency, and various other court-involved therapies have become commonplace (e.g., co-parenting counseling and parenting coordination).
The two-legged stool of family law has been financial and legal issues, on the one hand, and child custody issues on the other. The status quo for family lawyers has been that they are generally more able to address the financial and legal issues in a divorce and less able to do so with respect to child custody-related issues. They have, therefore, tended to ignore or refer out the latter. Mental health experts have often been more frequently used in the adversarial arm of litigation or, alternatively, for support through counseling and court-involved intervention. Regardless, mental health professionals have generally been involved in a more reactive manner in separation and divorce cases. However, just as the dot.com bubble burst, so too has the family law bubble. The majority of divorcing parents cannot afford child custody, psychological, and financial experts, which is not surprising given that most insurance companies do not cover court- involved and court-ordered mental health services. Furthermore, most divorcing parents cannot afford lawyers, or they opt out of representation for other reasons, as evidenced by the estimate that eighty percent of litigants in all divorce cases are self-represented.
Quietly, or not so quietly, depending on how much attention is being paid, technology is also constantly operating in the background; it is becoming an ever-present “third-party” in the family law process. We believe that the family law industry is entering an inflection point. Rapid technology innovation is intersecting with the current disruption of decades of status quo divorce and child custody procedures that have become economically and practically unsustainable. One of the most impactful technologies, of course, has been the evolution of the Internet. The Internet allows immediate access to information and answers, even if incorrect ones. This has created a climate where divorcing parents now often believe they know more than they do, and it has created a “do-it-yourself” mindset. You can do anything on your own now, including representing yourself in a divorce.
The changing economics of our country have prompted meaningful discourse on how to better serve the lower to upper-middle classes. Currently, legal aid services are only available to help those who are most financially compromised. It is generally not available to the lower to middle class, who also struggle to afford legal services. Courts across the country are trying to address access-to-justice issues. For example, to address the growing self-represented population, courts are now offering various free services that help to keep the court moving forward, since these self-represented litigants often slow down critical court processes. Other initiatives have also been started to try to lower costs of divorce and address the growing access-to-justice barriers, especially for those litigants who fall in that middle-class range. These initiatives include state statutory changes creating new roles such as Document Preparers and the Los Angeles County Bar’s SmartLaw Flat Fee Legal Service, which provides representation for uncontested divorces at a flat rate of $800.
Self-represented litigants and more affordable legal service delivery options are the consequences of this family law bubble burst. It is the reaction to this critical inflection point where the consumer market is now demanding that family law make changes. If the industry refuses, then litigants will continue to find ways to serve themselves more efficiently and economically, which ultimately harms the entire family law industry.
The legal industry has been one of the business sectors that is slowest to change. There is a fear of technology replacing the legal services that lawyers provide. However, technologies are not always displacing. They can be augmenting, value-building options for lawyers. The perceptions and needs of the client base have changed, thus necessitating changes in the family law marketplace. It is more important than ever for family lawyers to differentiate themselves in the divorce lawyer market. Marketing, billing, case management, and more must be done differently now because competitors are no longer just local family lawyers. Instead, family lawyers must now compete with affordable online divorce platforms, unbundled legal service providers, and other nonlawyer specialists who can assist with divorces.
In the past several years, technology has become more mainstream. Every business must be a technology business, including family law practices. However, there is great variability in the use of technology across practices. For many family law firms, new technology adoption is perceived as a necessary evil. Even basic practice management software has a low adoption rate post-purchase. There is something about the historical culture and tradition of family law that promotes the perpetual use of pen and paper. Upheaval away from this trend is growing and is being extensively written about by lawyers These lawyers have replaced their skepticism with high regard for the effectiveness of new technology, including artificial intelligence.
To get a sense of the magnitude of this change, look at Moore’s Law, which states that the processing power of computers doubles every two years. Moore’s Law has had an enormous impact on technology, society, and economics. For example, what used to be the standard legal information databases and financial processing software have been challenged by many alternatives that are faster, less expensive, and better. Similarly, as predicted by Richard Susskind in his 2013 book Tomorrow’s Lawyers: An Introduction to Your Future, “We are . . . on the brink of fundamental change in the world of law.” As we now know, Susskind accurately described market forces and disruptive technology as either displacing or augmenting what were considered traditional legal services. In the technology world, these companies are predominantly disruptive or innovative. Disruptive companies displace, while innovative companies augment; however, there can be some crossover depending on the company’s business model.
In family law, displacing technologies are evidenced by multimillion- dollar-funded companies like Walmart, Rocket Lawyer, and Avvo. In the traditional brick-and-mortar environment, a divorce at Walmart is offered at $549.00 by The Law Store. Walmart has plans to open 1,500 store offices nationwide. There are also more agile, niche companies that are similarly disruptive, such as Fastcase and Wevorce, that offer innovative access to information and family law professionals. A third category of technologies includes those that augment traditional family law practices. These include practice management companies such as Clio and platforms for expert child custody resources such as Child Custody Analytics.
This stage in the evolution of technology might be considered “Wave 1” of disruptive and innovative family law technologies. “Wave 2” is going to include ubiquitous legal services and advances fueled by technologies that include artificial intelligence, machine intelligence, cognitive computing, natural language processing, facial recognition, and bots. For example, Automio is creating interview bot workflows that serve as an example of how client inquiries on various child custody issues could be independently automated and used by clients. Divorcebot connects with divorcees before they even engage a lawyer, provides them education about the divorce process, and could potentially provide lawyers new clients.
If you accept the theory of Moore’s Law, these advances will produce many more commercial products over the next several years. Takentogether, these market changes can be understood as being driven by technologies that have leap-frogged over traditional legal services and gone straight to the buyer—the divorce litigant. These changes have not gone unnoticed. In 2014, the ABA created the Future of Legal Services Commission, which ultimately produced the Report on the Future of Legal Services in the United States. This Report produced twelve recommendations, one of which was that “All members of the legal profession should keep abreast of relevant technologies.” This recommendation was further amplified by commentary in the report from Stephen A. Saltzburg stating, “Other professions have embraced technology more quickly than the legal profession. We must adapt to fulfill our mission and do so true to first principles.” This resulted in a pilot program called Law Connect between the ABA and Rocket Lawyer, which ultimately ended as a result of what appears to have been significant resistance from state and local bar groups. In 2011, the American Academy of Matrimonial Lawyers (AAML) expressed its intention to implement a deliberate plan to advance technology adoption, stating: “Thus, no Fellow can afford not to learn or to fail to keep up with technology as long as the Fellow is actively practicing law.”
Dealing with technological change is frightening, which is a factor that contributes to where people fall on the scale of adopting new technology. Blair Janis forecasted:
The key to our future success as legal service providers lies in our ability to identify the specific lawyering areas in which we can be replaced and those in which we cannot be replaced. The most prosperous law practices in 2020 will be those that are able to successfully adjust their business models to use artificial intelligence-type tools, while at the same time promoting and delivering the part of the legal service value proposition that the machines are not able to provide.
Technology adoption can be segmented into three categories: early adopters, mainstream users, and laggards. Early adopters are the quickest to purchase and adopt a new technology. They are also the group that is most accepting of a new technology’s limitations, understanding that the technology will improve over time. As a technology becomes more mainstream, the early adopters maintain the first-user advantage of reaping all the benefits ahead of their competitors. Mainstream users eventually adopt the technology as well, in fear of being left out, while also becoming aware that change is inevitable. They are more likely to purchase the technology after they hear their colleagues are using it and these users, thus, are typically waiting for the good reviews and recommendations before acting. Laggards, however, reject change, are the last to adapt, and risk being forced out by the new market that has left them behind. Laggards generally become obsolete and displaced. This is of the greatest concern for the family law industry, since lawyers are generally considered laggards. Within the legal industry, family lawyers are the greatest laggards.
Technology change introduces new, but temporary, costs. The costs are the time involved in training to use the new technology, as well as the change in practice management workflow. E-filing is a simple example. The benefits of e-filing are the efficiency and effectiveness derived from the implementation, which is apparently needed based on the 2016 Legal Trends Report by Clio, the company delivering cloud-based practice management technologies for lawyers, which pointed out significant underproductivity. New technology introduces processes that bring value to the family law practice by saving time; saving money for clients; and providing faster, more precise solutions that better match the clients’ expectations.
Successful implementation of technology in a law firm adds to the overall effectiveness of services and value to the client. Simply put, sticking to old habits and not creating new ones is surely taking more time and costing clients more money. The actual monetary cost of the technology—through license or subscription—is one that is easily recouped by the services generated from the technology platform. The law database subscription is paid off by billable hours of legal research and the application of this research to cases that require it. Financial software and child custody subscriptions are similarly paid off by billable hours, which are costs necessary for maintaining a competitive portfolio of services to clients. Whereas new technologies are coming in that could further disrupt family law practice, it is essential to reframe these technologies as opportunities to bring additional value—to see them as augmenting a family lawyer’s value and practice, with leaner efficiency. For example, even if an “app” is developed for producing financial affidavits, child support, and estimated alimony forecasts that can be used by self-represented litigants (and it surely will be developed eventually), the one thing the technology cannot do is provide the analysis, deep thinking, and interpretation of those data for the client, which is where the family lawyer’s expertise and counsel provides significant value to litigants.