Responding to undeniable social and technological change, in August 2014, then-American Bar Association President William C. Hubbard established the Commission on the Future of Legal Services (the Commission). Composed of prominent judges, academics, legal services providers, and practicing attorneys, the Commission examined technology and the unmet legal needs of people living in the United States. In August 2016, the Commission rendered a ninety-seven-page Report on the Future of Legal Services ("Report") that it characterized as a "consensus document." The Commission did not introduce any resolutions for consideration by the ABA House of Delegates at that time, and a casual observer may incorrectly believe that two years of study resulted only in a long report and some disappointed blog critiques.
Many practitioners will find the Commission's Report troubling and problematic, and they will want to reject it in its entirety. That would be a mistake. The Commission correctly recognizes that the U.S. legal profession stands at a crossroad, and that ignoring gathering forces will put the profession in jeopardy. It posits that practicing lawyers and law firms either will adapt or struggle ineffectually as they fall behind the growing ranks of competitors: nonlawyers, machines, and resilient lawyers. Change is coming, irrespective of whether attorneys want to change.
This article is written in several parts. Part II examines implications of automation in society and in the legal profession, explains why the frequency of innovation is accelerating, and evaluates various predictions that the legal profession is about to fall into a high-tech abyss. Part III considers stubborn "access to justice" issues, market factors that impact the supply and demand for lawyers, and declining compensation for solo and small firm practitioners. Part IV examines the Commission's findings, reasoning, and recommendations. Part V discusses Commission Recommendations two and five, which give specific direction for state supreme courts to automate and expand the ranks of nonlawyers who provide legal services. Part VI examines the rise of what the Commission calls "nontraditional legal services providers," which include legal startups and the likes of Google, LegalZoom, and IBM. Part VII explains how judicial branch initiatives will compel automation in the legal profession; why a key Commission recommendation is counterproductive and will undermine innovation; and how small firm and family lawyers should adopt to technological, social, market, and court-driven changes. There is a bright future for resilient lawyers who develop the uniquely human skills that will be in high demand.
II. Technological Advancements, Ubiquitous Information, and Perceived Wisdom
Traditionally, family lawyers knew most of the law pertaining to their own cases, sensed what they did not know, and found answers to legal questions that their clients could not find themselves. Practitioners operated from a position of strength within the attorney-client relationship. They used legal and experiential knowledge to guide emotional clients toward favorable outcomes, present them with sensible options, and steer them away from dangerous and problematic courses. Many family lawyers emphasized their counselor role and tried to avoid inflaming situations, often evading the types of unlikely "what if" legal hypotheticals that engender fear and paranoia in distressed individuals. When circumstances required aggressive legal actions, attorneys were aware of their litigation tools, and they would employ them. Most family lawyers used their knowledge and wisdom to tailor representation to the unique needs of each individual client, delivering legal services one client at a time.
A. Faster, Cloudier, and Fundamentally Different
These dynamics changed in the past decade, and advances in computing were the driving force. Few lawyers venture into the realm of computer science until it arrives in the form of something they can use, such as a laptop computer. In 1965, Gordon E. Moore wrote an article with the scintillating title Cramming More Components on Integrated Circuits. Most simply, Moore's Law predicted that the number of transistors that could be placed on a chip would double between every eighteen months and two years, until at least 2029. This seemingly mundane theory proved accurate over the past five decades, translating into exponential growth in the processing speeds of computers. For those without calculators who want to put this into perspective, the number one doubled twenty-five times grows to 33,554,432. The practical effects of Moore's Law include the smartphone in your pocket. The computational power of a typical smartphone in 2014 was a thousand times greater, and a million times less expensive, than all of the computing power housed at the Massachusetts Institute of Technology (MIT) in 1965. By 2020, the average $1,000 laptop computer will have the same processing power as a human brain.
Decades ago, family lawyers first lugged desktop computers and faxmachines into their offices. Now, new technologies enter unseen through Internet connections, and the pace of advances ever quickens. Most notably, "the Cloud" is a series of interconnected servers that store data and run software. The label "cloud" rings with neutrality and benevolence, but the technology is whatever people and machines make of it. Cloud computing is transformative because it allows people and machines to access data anywhere, anytime, cheaply, and use software stored on remote servers. Computers located anywhere in the world can access and process the same information. The Cloud allows an individual in a remote area to take a mobile device out of her pocket, quickly search information that once may have been scattered across several continents, and immediately find an answer to a question. Author Thomas Friedman recently attempted to rebrand these interconnected cloud servers as "the supernova," asserting that a bright light following a catastrophic explosion better captured the essence of this technological advancement.
B. Ubiquitous Access to Legal Information
Four basic characteristics of information help explain the recent shift in the quantity and availability of information, and they are having a dramatic but underappreciated impact on sole practitioners and small firms. First, most goods are "rival," in that if they are consumed, there is less available for others. By contrast, information is "nonrival": consuming it does not leave less for others. Everyone can consume the same information, even at the same time. Second, most goods are "excludable," which means that it is easy to prevent people from consuming these goods unless they pay. If you want to buy the black shoes, then pay the cashier before leaving the store. Information is "nonexcludable" in that it can be difficult or impossible to prevent nonpayers from using it. Third, bodies of information are cumulative: they grow larger and more informative each time they are used. Adding trial court case precedent to a body of legal information, for example, results in a more informative body of information. Conversely, the explosion of "fake news," or the deliberate dissemination of misinformation, may result in a skewed body of information that is less informative and more likely to produce flawed analysis. Fourth, most information and knowledge can be digitized as perfect copies of the original (as opposed to lower-quality analog copies). That enables the conversion of written words, audio, and video into digital form for electronic processing. By contrast, industrial goods cannot be digitized, which limits copying and distribution. Researchers claim that 25% of the world's stored nonexperiential knowledge had been digitized as of the year 2000, and that percentage had risen to 98% by 2016. One research study estimated that 90% of all the information that existed in the world in 2016 had been created in the past two years.
"Platforms" are online environments that have stepped into this new world, capitalizing on free, perfect, and instant information. Companies built on platforms have completely upended traditional markets. Uber is the world's largest taxi company, but it owns no cars; Facebook is the world's most popular media owner, but it creates no content. Rather, platforms manipulate information and harness other people's resources. Professors Andrew McAfee and Erik Brynjolfsson of the Massachusetts Institute of Technology further emphasize the emergence of the "crowd." These are decentralized, evolving, and uncontrolled collections of people brought together by the Internet who collaborate to create content (e.g. Wikipedia) or solve problems. They often do so for no compensation, and they have generated content that a decade ago only could have been developed by governments or the research departments of large corporations. The quality of information varies by who participates in the crowd. A crowd may benefit from contributions by people of diverse backgrounds and perspectives, but not all information developed by an unruly crowd is accurate.
These characteristics of information, platforms, and the crowd have completely changed the landscape for lawyers. No lawyer would endeavor to read all available information on the law. Yet, interconnected computers may be able to process all the available legal information and keep pace with the relentless dissemination of new information. Determined litigants who are willing to devote boundless hours to research legal topics likewise can accumulate more information on a specific topic than a lawyer. Until the past decade, attorneys knew more than their clients about all, or nearly all, family law issues. Now clients can acquire more legal information, some of it accurate and some not, than their own attorneys, and plenty that supports their position. Clients then may make "informed" decisions that are not tempered by an attorney's experience, balance, or wisdom. This represents a fundamental shift in the attorney-client dynamic and the daily practice of law.
C. Disruptive Innovations, Big Law, and Small Firms
A recurring theme in the Commission's Report is that the legal profession must evolve to better serve the public in a technologically advanced era, "even if those changes cause disruption or discomfort to the profession." Although not analyzed at length in the Report, rapid technological innovation drives its analysis and recommendations. For example, although the Commission devoted only one paragraph in the findings section to artificial intelligence (AI), it elicited an entire white paper on the topic. Most simply, AI is the science of making intelligent machines, often taking the form of computer programs that can understand and learn in ways that humans once thought exclusive to themselves. The prevailing example of AI is IBM's Watson, which rose to fame during a live television broadcast in 2011, when it defeated the greatest human champions on the game show Jeopardy! Watson can "understand" natural language questions, meaning that it can parse questions that are not well- stated and that historically would baffle computers and require human reinterpretation. It can crunch massive amounts of data, observe patterns, learn from its own analysis, and improve its performance. Watson is a freestanding machine that is not connected to the Internet. Programmers have loaded it with massive amounts of information relating to the legal, medical, and other professions. IBM has partnered with legal services businesses such as Ross Intelligence to conduct legal research. Even tech- adverse attorneys probably have seen IBM's efforts to personify Watson as a benevolent colleague in, for example, television advertisements where Watson assists medical doctors in rural hospitals. Nothing prevents the same AI technology from helping experienced lawyers address practical legal problems in courthouses.
One of the white papers prepared for the Commission discusses the concept of "disruptive innovations," a term that has served as a battle cry for all forms of market newcomers in the past twenty years. Harvard Business School Professor Clayton Christensen wrote that there are two kinds of innovations: (1) sustaining innovations, which lead to steady product improvement over time, and (2) disruptive innovations, which introduce new attributes to a product. Incumbent firms are wary of investing in disruptive innovations and instead invest in sustaining innovations that have features targeted at existing clients, even if the new products exceed the mainstream customer's needs. Some upstart firms and corporations invest in disruptive innovations and attract an underserved niche market that incumbent firms do not want to service. As the disruptive innovations improve, often through new sustaining innovations, the upstarts begin to compete with the incumbents for middle-market customers. Over time, the upstarts pass the incumbents and become the new industry standard. Christiansen explains:
The pattern of industry disruption is familiar: new competitors with new business models arrive; incumbents choose to ignore the new players or to flee to higher-margin activities; a disruptor whose product was once barely good enough achieves a level of quality acceptable to the broad middle of the market, undermining the position of longtime leaders and causing the "flip" to a new level of competition.<\/blockquote>
The purpose of the legal services market is to resolve legal issues and prevent legal problems. That is, the market's purpose is not to provide legal services, but, rather, to serve consumers. Applying Christiansen's approach to the legal services market, technology provides a means to solve consumer problems by streamlining the delivery of services and to reduce or eliminate expenses on the supply side of the legal market.
Incumbent lawyers initially will not care that someone is servicing a market that lawyers cannot profitably and ethically service themselves. Upstarts may be able to access this "latent legal market" using low-quality products and service unmet legal needs better than if self-represented litigants were to receive no legal services at all. Over time, the upstarts will build expertise and improve their products and will start to compete with lawyers for middle-market legal work. Eventually, if Christiansen's theory is correct, the upstarts will provide legal services of equal or better quality than lawyers' services--they will provide those services for reduced cost, they will unseat the incumbent lawyers, and the upstarts will become the new incumbents.
Christiansen's theory was written to explain business competition generally and was not designed for the legal profession, but it does have intrinsic intellectual appeal. It is near religion in the high-tech world. Yet, simply because a theory is scary and intellectually sound does not mean it is valid or that it applies to family law. Fellow Harvard Professor Jill Lepore sharply criticized Christiansen's empirical analysis, use of "handpicked case studies," blindness to contrary evidence, alarmist approach, and circular reasoning. Lepore reports that three out of four startups fail and that nine out of ten never earn a return. She continues sarcastically: "When a startup fails, that's a success, since epidemic failure is a hallmark of [Christiansen's] disruptive innovation. . . . When an established company succeeds, that's only because it hasn't yet failed." She describes disruptive innovation as a theory that only explains why some businesses fail, rather than a theory that explains why a business will succeed.
Notably, small law firms operating in a highly fractured market do not fit Christiansen's notion of incumbents. As shown in a 2005 ABA Family Law Section survey, 32.4% of family lawyer respondents worked as solo practitioners, 50% worked for firms of two to ten lawyers, and only 2.4% worked at firms of over one hundred lawyers. Small firms are independent and nimble, often adjusting to the vision of a single attorney who controls law firm policies. Christiansen's theory may apply better to Big Law, where firms exceed 1,000 lawyers and where many partners are fully committed to traditional approaches that have worked in the past. It takes time to turn the Titanic. Rowboats redirect rapidly. Nevertheless, the general notions of disruptive innovations and sustaining innovations apply to small law firm market actors. The Commission's treatment of disruptive market actors is curiously superficial, perhaps because trends bode poorly for law firms. This article explores these topics further in Part VI, Legal Startups and Corporate Competition.
D. Capital Substituting for Labor
Historically, new technology has terrified and threatened segments of the population, and it has displaced workers who performed the newly automated tasks. Yet, overall, automation has created new and better jobs, and created more jobs than it destroyed. Economists traditionally have considered capital and labor as compliments, not simply substitutes in a zero-sum game. Capital investments have propelled workers and society alike to greater prosperity.
Lawrence H. Summers, the former U.S. Treasury Secretary and former president of Harvard University, has questioned whether new technology has upset this historical pattern. Machines have advanced to a level where they can substitute for labor--that is, capital can replace labor exactly and completely. The pivotal word is "exactly." When a capital investment can do exactly what a human can do, perhaps even better and cheaper, then there is no need to employ the human. For example, at the time of writing this article, Google and other companies were very close to launching self-driving cars. Driverless cars will not simply make the role of driving more efficient and move truck and taxi drivers up the ladder to new and more productive positions within the driving industry. Rather, self-driving vehicles will replace the human drivers, period. Microsoft founder Bill Gates agrees with the notion of capital replacing labor and in 2014 stated, "Software substitution, whether it's for drivers or waiters or nurses--it's progressing. . . . Technology over time will reduce the demand for jobs."
"Thank goodness," responds the McKinsey Global Institute in a 2017 study. Although much of the debate about automation focuses on jobs lost, McKinsey estimates that, based on an aging population and other demographic trends, a surplus of human labor is much less likely than a deficit of human labor, unless automation is employed widely before working-age populations retire. There are not enough people to do the necessary work. The human activities "most susceptible to automation involve physical activities in highly structured and predictable environments, as well as the collection and processing of data." Five key factors will influence the pace and extent of adoption of automation throughout the United States: (1) technical feasibility; (2) cost of developing and deploying solutions; (3) labor market dynamics, including supply, demand, and costs of human labor as an alternative to automation; (4) economic benefits; and (5) regulatory and social acceptance.
A strategy to speed automation of the legal services market would seek to improve the climate for these five factors. Policies could influence the direction of innovation by incentivizing some forms of automation and discouraging others.
E. From Craft to Commodity
A white paper prepared for the Commission states, "Commoditization is the process by which a product or service becomes so commonplace that it can be obtained from a variety of suppliers with virtually no easily determined difference between those suppliers' product, as with the case of milk, sugar or gasoline." Authors Richard Susskind and Daniel Susskind posit that a combination of market forces, technological advances, and human ingenuity are pushing all of the professions (law, medicine, tax, architecture, etc.) along a path from craft to commoditization. The further along the evolutionary path the legal profession travels, the less need there will be for lawyers.
The Susskinds are extremely optimistic about the ability of machines to eventually perform many tasks currently undertaken by human professionals. They analogize to ancient craftsmen, such as wheelmakers, who were replaced by machines. They forecast that, like individuals employed as drivers who soon will be replaced by self-driving vehicles, many lawyers soon will be replaced by machines. The need for legal services will survive automation, in that people will continue to have legal problems that need to be solved, but a large percentage of lawyers will cease to work as lawyers.
Their sense of optimism in automation and pessimism for humans extends to all the knowledge-based professions. First, the Susskinds argue that many professional tasks can be routinized into operating procedures--the type of work that computers do extremely well. Once that happens, the work of "intermediaries," who traditionally have stood between information and the public, will come under threat. Lawyers are intermediaries between the public and the law, and they will be removed from the supply chain unless they "reintermediate" themselves by finding new ways to add value. The processes of routinization and disintermediation lead to the third step in the Susskinds' analysis, which is that professional work will be "decomposed" into a series of tasks. Rather than a lawyer handling all aspects a case, for example, the work can be decomposed into a series of tasks that can be performed by a combination of lawyers, nonlawyers, computers, and other machines. This is more cost-effective than highly skilled lawyers and their office staff performing all the decomposed tasks.
The Susskinds then suggest that there are four main stages in the evolution of the delivery of professional work: craft, standardization, systemization, and externalization. "Craft" is the first stage of development, and it best describes the legal profession of the past several hundred years. Ideally, a lawyer craftsman is like an artist who works on a blank canvass, using face-to-face interaction between lawyer and client to carefully tailor legal services that meet a client's unique needs. The Susskinds believe that the craft era is near its end. The second stage in the evolution is "standardization," in which lawyers routinize tasks to prevent avoidable errors, ensure consistency, and prevent duplication of effort. Lawyers do this by using standard documents, forms, and checklists to improve practicing their craft. The third evolutionary stage is "systemization," in which professionals use more sophisticated technology, such as document assembly tools that reduce paper-based standardized tasks within the profession. This might include law firms using macros to assemble separation agreements and other complex contracts. The Susskinds call the fourth and final stage "externalization," in which the nonrival, nonexcludable, cumulative, and digitized nature of information allows for the practical expertise of human experts to become available to the general public online. Until 2015, Richard Susskind called the fourth stage "commoditization," but that term engendered opposition, so he softened it. In this final stage of the evolution in the delivery of professional services, gatekeepers of the law will stand aside and much of the knowledge of the legal profession will be accessible to the public directly. Why contact a lawyer when you can "Google it" for free? Professional work becomes a commodity, and professionals' income plummets.
F. Will Machines Replace Lawyers?
As intellectually compelling as theories of disruption and commoditization may appear on the surface, a crucial question is what specific legal work will be displaced by computers and other machines. Professors Dana Remus of the University of North Carolina School of Law and Frank Levy from MIT studied the types of structured and routine legal tasks that computers are best able to automate. They assessed the potential for current or near-term automation in six areas of legal work: document and case management, document review, document preparation, legal research and reasoning, interpersonal communication and interaction, and courtroom appearances. Remus and Levy published a preliminary draft of their findings shortly after Richard and Daniel Susskind released their 2015 book and in time for the Commission to consider their work.
The researchers' methodology emphasized data collected from actual law firm invoices. It examined law firms ranging in size from over 1,000 lawyers to fewer than twenty-five lawyers. The study admittedly provided no information on the work patterns of solo practitioners, who the researchers estimated accounted for approximately 40% of all U.S. practitioners. Most of the law firms surveyed primarily handled corporate work. The data showed that machines had (1) the greatest employment effects on areas of the law that are most prone to systemization and (2) the lowest employment effects on areas of practice that were unstructured and required personal interaction.
Computers are exceptionally strong at document review for purposes of reviewing voluminous discovery. Historically, junior attorneys were saddled with the unpleasant task of reviewing mountains of documents to determine which ones were responsive to an opposing party's request for production. Lawyers began automating this task in the 1990s, initially searching for keywords that suggested responsiveness. This method was both underinclusive (overlooking documents) and overinclusive (disclosing nonresponsive documents). Within the past decade, discovery vendors introduced "predictive coding," under which supervising lawyers would review a sample of documents and then programmers would train computers to conduct similar document reviews. Recently, document review programs have started to use "continuous active learning," by which programmers working with supervising attorneys rank documents for relevancy and then create statistical models for responsiveness.
Predictive coding does not replace supervising attorneys, but it greatly diminishes the ranks of pale and miserable junior associates who otherwise would be reviewing documents at large and medium-sized law firms. Notably, computers work twenty-four hours per day, seven days per week, 365 days per year. They review documents much more quickly than their human counterparts. Computers do not get bored or distracted after hours of document review, which makes them less prone to a variety of human mistakes. In short, computers are better than humans in this structured and exhausting task.
By contrast, computers are not effective negotiators. Negotiation requires personal interaction, reading an opposing party's emotions, understanding a client's stated and unstated goals, adjusting a client's objectives based on what is achievable, assessing an opposing party's interests and concerns, sensing risk and opportunity, and deploying appropriate tactics effectively. Humans are far better than computers at all of these tasks. Yet, computers have shown an ability to summarize areas of agreement or disagreement within a negotiation, which can assist human negotiators by identifying issues. Online dispute resolution has had success in resolving small financial disputes on eBay and elsewhere.
Computers today routinely perform a long list of tasks that humans previously predicted they never could undertake. Computers are even developing attributes that will make them better negotiators. For example, the McKinsey Global Initiative reports that in 2016, computers were able to read lips with ninety-five percent accuracy. This may allow them to participate more spontaneously in discussions as opposed to waiting to be called upon. Further, "affective computing" software examines the movements of muscles in human faces to spot "microexpressions," which are associated with human emotions--that is, computers can evaluate human emotions and decide how to respond. In theory, affective computing might develop to a level at which computers can negotiate with humans. In fact, a computer would have the ultimate poker face, which is no face.
Better still, computers can develop digital "faces" that could project a negotiating posture. Imagine a belligerent persona developed to interact with contentious opponents or, more cynically, with abused or easily frightened individuals. Likewise, imagine a relaxed and calm persona, like the one displayed in current IBM advertisements, designed to encourage collaboration in a negotiation. Perhaps a client could choose from a menu of options for the computer persona or best avatar to present to an opposing party and even change negotiator persona rapidly as circumstances demand, without the need for a new lawyer to learn the case. Futurism notwithstanding, computers currently have minimal effect on lawyer employment in the area of negotiation.
Remus and Levy found that automation of different tasks impacts levels of current and near-term employment to varying degrees:
- Strong employment effects: document review;
- Moderate employment effects: case administration/management, document drafting, due diligence, legal research, legal analysis, and strategizing;
- Light employment effects: document management, fact investigation, legal writing, advising clients, communications and interactions with others, court appearances and preparation, and negotiation.
Professor David J. Deming of the Kennedy School at Harvard published a labor market study in 2017 that indirectly supports Remus's and Levy's findings. Deming found growing complementarity between cognitive skills and social skills, where individuals who possess both are most likely to thrive in the developing economy. Looking across all fields of employment, data show that computerization leads to reallocation of skilled workers into flexible, team-based settings that facilitate group problem- solving and adaptive responses to complex problems. This includes workers in customer-oriented professions, such as the law, interacting directly with clients. Between 1980 and 2012, social-skill-intensive occupations as a percentage share of the labor force increased by 11.8%. Most of the growth as a percentage share came from jobs with combined high-math and high-social-skill intensity (7.2%), and a sizable portion of the growth came from low-math, high-social-skill jobs (4.6%). By contrast, jobs requiring high-math and low-social-skills shrunk by 3.3% over the same twenty-two- year period--and much touted STEM jobs (science, technology, engineering, and mathematics) actually shrank by 0.12% percentage points between 2000 and 2012. These figures should give hope to lawyers with strong social skills who are willing to adapt to an automated future.
Family law is intensely personal, and many of its decomposed legal tasks fall under the Remus and Levy headings of light and moderate employment effects. The short-term impact of automation of many of these tasks will be to improve human efficiency and performance, rather than to eliminate humans. The Susskinds' analysis of the move from "craft" to "externalization," in which most lawyers are replaced by automation, seems unlikely in family law. Decomposed family law tasks are complex and nonroutine, and they require high social skills and therefore human labor. Other small firm tasks, such as trusts and estates work and real estate closings, are more predictable and prone to automation, taking an increasingly large market share away from lawyers. Yet, the long-term future may be problematic for all knowledge-based professionals.Advances in areas such as "affective computing" may blur lines of interpersonal skill that humans monopolize and computers cannot, for now, cross.
G. Five Areas on the Cusp of Disruption
Five areas of the law appear to be on the cusp of a machine intelligence invasion. John O. McGinnis of Northwestern University School of Law and Russell G. Pearce of Fordham University School of Law posit that until a combination of computer hardware, software, and connectivity progresses to a tipping point, machine intelligence cannot substitute for human intelligence. However, after technology reaches that point, machine intelligence will continue to improve and surpass humans in numerous identifiable skills. The following five areas are most at risk:
Computers are well suited to discovery because they process information at rapid speeds and follow rules. McGinnis and Pearce focus on the use of algorithms and predictive coding and the move toward e-discovery of digitized documents and other information. They forecast that predictive coding will be employed in all large-scale, document-intensive litigation by 2024. It already is a significant factor for Big Law firms that handle document-intensive cases. They anticipated that this would be a $9.9 billion market in 2017.
- Legal Research
Lexis and Westlaw entered the electronic legal research market back in the mid-1970s, and research technologies have improved tremendously since then. Machine intelligence now can measure the strength of precedents and search reliably using natural language as opposed to keywords. The authors predict that soon computer legal research tools will be able to spot legal issues and not merely implement searches initiated by attorneys. The next wave of search tools also will be able to compare facts so that search results will emphasize precedent with fact patterns similar to those of a client's case and help distinguish unhelpful precedent.
- Legal Forms
Legal forms are nothing new, but the technology used to fill out those forms and direct clients toward additional fillable forms is evolving rapidly. Companies such as LegalZoom use automation to create numerous types of relatively routine documents such as simple separation agreements and wills. According to one of the white papers prepared for the Commission, LegalZoom makes its profit by reducing the cost of inputs (lawyers) and relying on large volume to make up for small profit margins on each matter. Importantly, LegalZoom and many startups contend that they are not providing legal services and not building attorney-client relationships that would subject them to corresponding duties. This allows for a transactional approach. McGinnis and Pearce anticipate that within ten years, computers routinely will generate the first draft of many corporate and contractual documents.
- Briefs and Legal Memos
Machines will be able to conduct legal research, find the most relevant precedent, and compose first drafts of legal memoranda and briefs. Experienced attorneys then will rework those drafts into polished final products. Some news media, including the Associated Press, already have used the software applications to write articles that follow standard formats without the involvement of human journalists. Expect to see proficient versions of this technology by 2030.
- Legal Analytics<\/ol>
Algorithms and machine learning will combine with massive amounts of available data to unleash predictive analytics. Computers will analyze prior cases to anticipate what will happen in a client's case. Attorneys may use legal analytics to help predict which arguments most likely will achieve a desired outcome and which facts or arguments to stress in a case before a particular judge. Legal analytics will predict the range of outcomes most likely based on the circumstances and rank them. Programmers already have created legal analytics software that reportedly predicts the outcome of U.S. Supreme Court cases better than a sample group of human experts.
An interesting question raised by legal analytics and other predictive algorithms is how these will influence the law in practice. Purely precedent- driven analysis may freeze the law to a set of case outcomes shown by existing data and slow the pace of social change through the courts. For example, if the overwhelming weight of legal precedent in 2013 indicated that states could prohibit same-sex marriage, what would the algorithms predict regarding the wisdom of litigating United States v. Windsor and Obergefell v. Hodges? Should concepts like alimony evolve with society or be anchored to the past? Does it take a human lawyer to change the law?
McGinnis and Pearce predict that machines will not invade and displace human attorneys in three areas of practice: (1) oral advocates will continue to enjoy a profitable niche, as computers are not expected to speak in court in the foreseeable future; (2) lawyers who specialize in areas of rapid legal change probably will not suffer negative effects from machine intelligence, as computers work best in settled areas of the law with large bodies of precedent; and (3) lawyers who act as counselors, and who must persuade clients to act in their own self-interest, will continue to find a role because computers do not yet appear capable of forming emotional bonds with clients. McGinnis and Pearce predict that a small group of superstar lawyers will thrive in a machine-empowered future and that there also will be work for lawyers who take advantage of machine intelligence to serve middle-class clients. Other lawyers will struggle or find occupations outside of the legal profession.
H. Erosion of Trust in Authority
Author Daniel W. Drezner, in his 2017 book The Ideas Industry, describes powerful social and political forces that are transforming the foreign policy ideas industry, but his analysis also implicates the practice of law. Drezner describes three interlocking trends that configure the modern marketplace for ideas. (1) There has been an erosion in trust in prestigious institutions and authority figures, including in scientists and judicial institutions such as the U.S. Supreme Court. (2) There is polarization in American society, which has resulted in parallel and segmented audiences devoid of contrary points of view. These audiences reinforce opinions, rather than test them. (3) There is a growth in economic inequality contributing toward a growing trend of very wealthy individuals funding intellectuals who produce research that supports the benefactors' action- oriented positions, as opposed to making contributions to independent academic institutions. The first two trends clearly apply to the practice of law, and the third may describe the growing industry of people who create information used by lawyers, clients, and courts.
In a culture tha tis suspicious of authority, a form of intellectual evangelists called "thought leaders" thrive, often proselytizing a single intellectually pure idea and seeking to apply it broadly to the world. Ideological radicals find traction in a context of distrust. Those who criticize thought leaders are dismissed as partisan, and expressions of what data-driven experts might regard as established facts are questioned or minimized as opinion. The erosion of trust in traditionally authoritative sources allows charismatic thought leaders to spread their beliefs and elevate problematic theories into orthodoxies, which are accepted within segmented and like- minded populations. Contrary evidence is marginalized or ignored.
These characteristics of society, combined with the ability of anyone to create and disseminate information worldwide via the Internet, have completely changed the landscape for lawyers. A myriad of thought leaders now promulgate theories of science, medicine, psychology, and the law. Empirically unsupported information on many subjects is disseminated, repeated in blogs or in Facebook posts, multiplied by Internet bots, cited in the news media, and even republished by authoritative sources. Misinformation that looks like fact is available to everyone, everywhere, and all of the time.
I. Demise of the Grand Bargain
The proliferation of the amount of information, the erosion of trust in authoritative institutions, and the ability of nonlawyers to access and create information electronically have led some to challenge basic notions that underlie the legal profession. Since the dawn of the profession, the law was so knowledge-intensive and complex that only trained professionals were qualified to conduct the work. Society recognized the need for lawyers, as well as the enormous amount of time, training, investment, and effort required to become a competent professional. Lawyers served a public purpose and therefore were given a measure of autonomy and exclusivity. Richard Susskind and Daniel Susskind recently described this as the "Grand Bargain" that applied to all professions (law, medicine, etc.):
In return for access to their extraordinary knowledge in matters of great human importance, society has granted them [professionals] a mandate for social control in their fields of specialization, a high degree of autonomy in their practice, and a license to determine who shall assume the mantle of professional authority.<\/blockquote>
Susskind and others have argued that if nonlawyers can access the same information as attorneys and teach themselves what they need to know to resolve practical legal questions, then there is no longer any reason for lawyers to have exclusivity within the legal profession. According to some critics of the Grand Bargain, since legal training no longer is necessary to resolve many legal problems, lawyers should lose their regulatory authority and monopoly. They seek to curtail or eliminate unauthorized practice of law statutes and rules. Some even have suggested abandoning the adversarial system of justice in favor of an inquisitorial system, where human judges aided by automation would exercise far greater control over proceedings, and where lawyers would have minimal roles.
Tellingly, the U.S. Supreme Court has indicated that there are limits on regulation by professionals within their own field. Professionals' ability to self-regulate finds support in states' sovereign immunity, under which states do not need to conform with the antitrust mandates of the Sherman Act at the expense of values that a state deems fundamental and when those mandates would impose an impermissible burden on the states' ability to regulate. In North Carolina State Board of Dental Examiners v. Federal Trade Commission, Justice Kennedy, writing for a 6-3 majority in 2015, determined that the State Board of Dental Examiners (the Board) went too far when it prohibited teeth whitening as the unlicensed practice of dentistry. An administrative law judge determined that the Board's concerted action to exclude nondentists from the market of providing teeth whitening services constituted an anticompetitive and unfair method of competition under the Federal Trade Commission Act. Members of the Board were active market participants, and they could not invoke immunity to support their anticompetitive actions to block teeth whitening. The Board's conduct was not realistically supervised by the State as an exercise of North Carolina's sovereign power.
Whitening teeth is different from asserting legal rights. However, lawyers need to consider this precedent within the larger social, technological, and legal context. Mounting pressures to challenge established approaches and authorities, and the rise of evangelical thought leaders, threaten the ability and scope of self-regulation within the legal profession.
J. The Age of Accelerations
Author Thomas Friedman coined the phrase "Age of Accelerations" in his 2016 book Thank You for Being Late: An Optimist's Guide to Thriving in the Age of Accelerations. For Friedman, the "simultaneous accelerations in the Market, Mother Nature, and Moore's Law together constitute the 'age of accelerations,' in which we find ourselves." People feel overwhelmed by the pace of change and the perception that they continually are falling further behind. They want to stop the world and rest, but the rapid tides of change instead demand that they paddle faster if they want to stay afloat.
This article defines the phrase differently from Friedman, though it finds inspiration in his definition. For purposes of the legal profession, the Age of Accelerations describes the dizzying pace of technological, social, and market disruptions and their resulting impact on practicing lawyers. Technological advances and challenges to notions as fundamental as the "Grand Bargain" help explain why the ABA established the Commission on the Future of Legal Services. The Age of Accelerations is a defining characteristic of modern practice.