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April 01, 2018 Technology

Withstanding Disruptive Innovation: How Attorneys Will Adapt and Survive Impending Challenges from Automation and Nontraditional Legal Services Providers

By: Samuel V. Schoonmaker IV


Solo and small firm practitioners stand on the precipice of transformative disruption. A convergence of technological advances, “access to justice” failings, budgetary challenges, court burdens, demographic dilemmas, perceived opportunities, and “nontraditional legal services providers” threaten all areas of the legal profession. There has been a deluge of news reports forecasting the demise of lawyers. This article challenges that fatalistic perspective but also explains why the practice of law is different from a decade ago. It explains why the pace of automation is accelerating, how the roles of legal startups and nonlawyers are evolving, and why court initiatives will compel practitioners to automate.

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:

  1. Discovery
    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.
  2. 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.
  3. 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.
  4. 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.
  5. Legal Analytics
    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.
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    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.

III.  Unmet Legal Needs, the Oversupply Paradox, and Expanding Markets

A.  Unmet Legal Needs

Many of the Commission's findings and recommendations attempt to bridge gaps between automation, systemic pressures, and unmet civil legal needs. The United States emphasizes justice for all but struggles with stubborn access to justice shortcomings. Many of the empirical studies documenting the scope and characteristics of the "access to justice" problem are decades old. The most thorough national study was conducted in 1994, two decades before the Commission's inquiry. A second national study was conducted in 2017, after completion of the Commission's work, and a third major study conducted in 2014 was based on a survey of a single Midwestern city.

The Commission looked at a range of available studies to estimate that as many as one-half of American households are experiencing at least one significant legal justice issue at any moment in time. Unfortunately, its analysis often lumped family law together with other areas of the law that have different access to justice issues, in ways that may overestimate the extent, though perhaps not the intensity, of the access to justice problems in family law. Public policy responses to family law problems based on generalized data are problematic and would be improved by looking carefully at empirical findings that pertain directly to family law.

In 1994, the Institute for Survey Research at Temple University, working with the ABA, published a comprehensive study of civil legal needs in a report entitled Legal Needs and Civil Justice: A Survey of Americans: Major Findings from the Comprehensive Legal Needs Study. Researchers interviewed 1,782 low-income households (income below 125% of the poverty threshold) and 1,305 moderate-income households (annual income above 125% of the poverty threshold, but less than $60,000). At that time, annual income in excess of $60,000 put a family in the top fifth of the United States. The 1993 interviews examined whether any member of a respondent household had experienced one or more of sixty-seven specific sets of circumstances in the prior year.

Among the major findings of the 1994 Temple University/ABA study were those indicating that 47% of low-income families and 52% of moderate-income families reported at least one legal need in the past year. The most common categories of legal need were (1) personal finance and consumer issues and (2) matters pertaining to housing and real property. Legal needs characterized as "family/domestic" comprised approximately 8% of legal needs of low-income families and 6% of the legal needs of moderate-income families.

This study found that 71% of the legal needs of low-income households and 61% of the legal needs of moderate-income households were not taken to the civil justice system. The most common course for dealing with a legal need was to try to handle the situation without assistance from a third party. However, approximately 60% of low-income families and 80% of middle-income families brought family/domestic disputes to the attention of the civil justice system. Respondents brought a far greater percentage  of "family/domestic" cases  to the civil justice system than any other type of case.

Overall, approximately three quarters of the legal needs brought to the justice system involved a lawyer on one side or the other and approximately 27% of cases involved more than one lawyer. Respondents reported varying degrees of satisfaction with their experiences and high levels of satisfaction in family law. "Some kinds of needs were taken frequently to the justice system and reportedly turned out well (family/domestic  and estate issues)." Notably, the 1994 study predated the "Age of Accelerations" and the availability of legal resources on the Internet.

Although the Commission on the Future of Legal Services did not analyze the 1994 study in its 2016 Report, it frequently cites to University of Illinois Professor Rebecca L. Sandefur, who authored a 2014 American Bar Foundation (ABF) study based upon the 1994 Temple University/ ABA study. Her Accessing Justice in the Contemporary USA: Findings from the Community Needs and Services Study surveyed a sample middle- sized city (approximately 350,000 to 450,000 residents) in the Midwestern region of the United States. This 2014 study differed from the 1994 Temple University/ABA study in several respects. For example, it sampled the entire population, rather than only low- and moderate-income households. It examined a broader range of civil justice issues--ninety-eight rather than sixty-seven--and looked at reporting during an eighteen-month period rather than a twelve-month period. Another significant practical distinction not addressed in the 2014 study is that there were enormous technological advances between 1994 and 2014, enabling litigants to handle matters using online resources and to forgo assistance from a human third party. Although the 2014 study collected information on a broad range of civil justice issues, its report contains less analysis of variations between areas of practice, and less information directly relating to family law, than the 1994 Temple University/ABA study.

The 2014 study found that two-thirds, or 66%, of respondents had experienced a civil justice situation in the past eighteen months, and that for people who reported any situation, the average number of situations reported was 3.3. It showed that 46% of people facing a civil justice situation responded with self-help, making self-help the most common response to a legal need. Just 22% of situations were handled with assistance from a third party who was not a member of a respondent's social network. Respondents were relatively more likely to reach out beyond self-help and their own social circles to address matters involving breakdown of romantic relationships (i.e., divorce, separation, or breakup with a live-in partner), reaching out 26% of the time. Interestingly, respondents were twice as likely to seek help from third parties to resolve disputes emerging out of the breakdown of romantic relationships (e.g., child custody, visitation, property, support), reaching out to third parties 44% of the time. They were least likely to turn to third parties in matters involving housing (16%-17%) and debts (12%).

Among people who did not seek third-party help in response to a civil justice situation, the most common reason given was that they did not need help. It is not clear from the study how many did not need third-party human help because they had attempted to solve their own legal issues using online resources. Fifty-eight percent of respondents agreed with the statement that "lawyers are not affordable for people on low incomes." Yet, only 17% of respondents indicated that cost played a role in not seeking third-party help. In a 2016 article written for the Commission as part of a series of white papers, Sandefur wrote:

Perhaps among the most surprising findings of contemporary research in the U.S. context is that people do not typically highlight the cost of legal services as a main reason for not turning to law for the justice problems they face. . . . [S]urveys of Americans who have actually used lawyers' services find that the majority are happy with what they paid.<\/blockquote>

The Commission observed that surveys on the cost issue have produced mixed results. For example, an ABA/National Center for State Courts (NCSC) survey conducted in 2015 found that "financial cost," which included not only direct financial cost but also indirect economic costs such as missing work and arranging for childcare, was the single most cited factor for not seeking legal services when facing a civil justice challenge.

The Commission referenced findings from several other recent access to justice studies conducted in Massachusetts, Michigan, New York, Utah, and Washington. It cited a 2015 Utah Supreme Court finding that, of the 66,717 debt collection cases examined for the year 2014, the defendant was unrepresented in 89% of the cases, whereas the plaintiff was represented by a lawyer in 96% of the cases. The Commission also cited the Utah finding that in 97% of eviction cases, the defendants were self- represented, and that in only 12% of 14,088 divorce cases, both sides had a lawyer. Although not indicated in the Commission's report, the same Utah study found that of the 1,281 case filings identified as "Custody & Support," both parties were represented in 20% of the cases, one party was represented in 49%, and no party was represented in 31%.

In 2017, one year after the Commission rendered its report, the Legal Services Corporation (LSC) conducted a national study of households with incomes of less than 125% of the federal poverty level (FLP). Most of the 2,028 respondent households completed the LSC survey via the Internet (1,736), whereas 292 completed it by telephone. The 1997 LSC study examined eighty-eight distinct issues, including issues that impact families such as marital dissolution, custody, and domestic violence.

The LSC study found that "[s]eventy-one percent of low-income households [had] experienced at least one civil legal problem in the past year." By comparison, 47% of low-income families reported at least one legal need in the 1994 Temple University/ABA study, and it is unclear whether study design or some other factor accounts for the 24% increase. Low-income respondents in the 2017 LSC study did not seek professional legal help 78% of the time for their civil legal problems. However, they sought legal help for 48% of their problems related to custody and children, and for 31% of other legal issues relating to family. They sought professional legal help for only 18% of problems relating to consumer finance and 11% of problems relating to health. Although not discussed in the study, LSC priorities likely are an important factor in determining rates of attorney representation by area of the law. That is, if LSC provides attorneys for family cases but not for matters involving consumer finance, that would have the effect of increasing the relative rate of representation in family cases. Likewise, the amount of resources devoted to individual cases impacts rates of representation. There is a tremendous difference between offering superficial legal advice sufficient to check off the "access to justice" box, as compared to comprehensive legal advice that resolves an individual's legal problem appropriately.

Low-income Americans in the 2017 LSC study turned to resources other than lawyers to address civil legal problems 54% of the time, including by contacting nonlawyers 33% of the time, searching for information online 13% of the time, or both contacting nonlawyers and searching online 8% of the time. Low-income respondents dealt with problems on their own 24% of the time, which is lower than the 46% who dealt with problems using self-help in the 2014 ABF study, which surveyed respondents of all income levels.

Notably, 97% of low-income families that had experienced domestic violence or sexual assault also experienced at least one other  civil  justice problem in the past year, and 67% had experienced six or more additional civil justice problems in the past year. The most common were consumer/finance (66%), health (62%), employment (46%), rental housing (45%), and family (40%). The 2017 LSC study also observed that approximately "62% of low-income Americans aged 25 . . . or [over] have no more than a high school education . . . [and] 18 million families with . . . children under 18 have incomes below 125% [of the] FPL." What emerges from the somewhat conflicting findings of various reputable studies is that access to justice issues are highly complex, and generalized statements that merge demographics and areas of law can create confusion for policymakers.

The Commission could not cite every existing study. It did not cite a 2014 study by the Connecticut Women's Education and Legal Fund, which examined a random sample of 433 court files (of 2,527 total files) in marital dissolutioncases filed in New Haven and Bridgeport, Connecticut. The study examined cases at all income levels and showed that the average annual income of the males studied was $40,196 and the average annual income of females was $28,860. The study found that 52% of all parties were represented by counsel, 48% were self-represented, and a representative for the minor children was appointed in 12% of cases involving minor children. These representation rates in marital dissolution cases are much higher than the rates reported in the broader civil justice data cited by the Commission, which included eviction, debt, and other types of civil legal matters that have lower rates of legal representation. In addition, the Connecticut court files only reflected formal appearances and would not indicate what percentage of the 48% of self-represented parties consulted with a lawyer who did not file a formal appearance with the court. That is, more than 52% of all parties sought help from an attorney. Further, an unknown percentage of people who do not consult human lawyers instead consulted online resources or sought assistance from nontraditional legal services providers, such as LegalZoom and Rocket Lawyer. In short, the access to justice gap in family law cases may not be as severe as the Commission suggests, at least not in Connecticut.

The Commission summarized the data from numerous studies to make general findings about unmet civil legal needs. It estimated that as many as 100  million Americans are living with  civil justice problems.  "[I]  n some jurisdictions, more than eighty percent of litigants in poverty are unrepresented in matters involving basic life needs, such as evictions, mortgage foreclosures, child custody disputes, child support proceedings, and debt collection cases." As indicated by those data, however, there are significant variations by area of the law. The data are less certain about the quality of representation in individual cases, as simply providing some legal services does not equate to providing necessary legal services.

The bottom line is that there are enormous unmet legal needs across the justice system, but different demographic groups and areas of the law face distinct access to justice dilemmas. The studies do not necessarily measure the quality of legal services provided, and practicing lawyers know that there is a tremendous difference between providing cursory or superficial legal assistance for large numbers of people and providing high-quality legal assistance for those same people. Many people who have unmet needs do not seek, and therefore do not receive, any assistance from lawyers or other third parties. There is little reliable data on individuals using online resources in lieu of, or in addition to, lawyers. A greater percentage of people with family law problems seek help from attorneys, as compared to areas of the law such as eviction or debt collection. Ascribing generalized access to justice findings to family law will result in inaccurate analysis of the scope and nature of access to justice problems within family law and may misinform policy responses. This is important because the Commission offers family-law-specific solutions based upon general data.

B.  Oversupply, Latent Markets, and Expanding Markets

At the same time that there is massive unmet demand for legal services, the Commission observed that in 2015 there were 1,300,705 licensed lawyers servicing a population of 321,418,820 in the United States. The Commission also cited a report that "forty-three percent of all 2013 law school graduates did not have long-term, full-time legal jobs [within] nine months [of] graduation." "Data [collected by] the U.S. Bureau of Labor Statistics [showed] that unemployment among recent law school graduates [was] significantly higher [than in] other labor categories." In 2017, at least half of the lawyers in nine jurisdictions were not working as lawyers: Alabama, Alaska, Louisiana, Maryland, Massachusetts, Minnesota, Missouri, Puerto Rico, and Tennessee.

Although the Commission's Report does not directly address amounts of lawyer compensation, it cites to a book that reports wide gaps within subgroups of the profession. Benjamin H. Barton examined lawyer compensation in his 2015 book Glass Half Full. Barton reports that, looking back to 2010, the average solo practitioner earned $46,560 per year, whereas an average partner at a Big Law firm earned $354,018 per year. First-time lawyers at the largest firms earned $160,000 annually, but pay for first-time lawyers fell precipitously beyond those Big Law firms, with most first-time lawyers earning in the range of $35,000 to $65,000. Perhaps of greater concern, Barton reports that using 2010 dollars, the average compensation for solo practitioners fell from $69,955 in 1988 to $46,560 in 2010. He documents a thirty-year decline in small firm and solo practitioner earnings, and a thirty-seven percent decline since the mid-1980s. One quarter of the Alabama lawyers surveyed in 2010 were earning less as lawyers than they could as managers at McDonald's. Further, according to the Bureau of Labor Statistics in 2016, the hourly wage earned by a lawyer working 2,080 hours annually in the United States was $56.81 at the median, $37.30 at the twenty-fifth percentile, and $27.36 at the tenth percentile.

Most family lawyers practice at small firms or as solos, likely placing them at the lower end of the earning scale. A total of 487 ABA Family Law Section members from all fifty states participated in a 2005 study showing that 32.4% of members worked as solo practitioners and 50% worked for firms of two to ten lawyers. Only 2.4% of respondents worked at firms of over one hundred lawyers. Many lawyers at small firms also handle trusts and estates, residential real estate, and other areas of the law that are at risk from automation.

Even though solo and small firm practitioners should worry about deteriorating compensation, the Commission reported a growing international market for legal services. In a white paper written for the Commission, Professor Carole Silver of Northwestern University School of Law indicates that in 2013, "the United States exported more than $9 billion in legal services," while importing legal services in the amount of $2 billion. Barton reports that "[t]he United States is the largest exporter of legal services in the world" and that in 2001, it ran a trade surplus of $2.4 billion. The trade surplus increased to approximately $7 billion in 2013. Family lawyers do not participate in the growing international legal services trade surplus in a meaningful way, but this market opportunity informed the Commission's analysis, especially regarding alternative business structures (ABS).

Finally, the Commission found that there is an enormous untapped market of people residing in the United States with unmet legal needs. This is known as the "latent legal market," and one of the white papers prepared for the Commission valued it at $45 billion (inferentially, per year). In sum, the Commission's Report suggests tremendous unmet demand for legal services, an oversupply of lawyers, a growing international legal services market, and a perceived multibillion-dollar untapped "latent legal market."

IV. The Commission's Methodology, Findings, and Recommendations

In 2014, ABA President William C. Hubbard established the Commission on the Future of Legal Services for the purpose of examining and proposing new approaches to legal services delivery. The Commission was comprised of prominent judges, lawyers, and academics, but seemingly no family lawyers outside of legal services organizations. The Commissioners broke into six working groups, held grassroots meetings and events in over seventy locations, invited written comments, elicited sixteen white papers, and considered input from both inside and outside of the legal profession. Ultimately, the Commission created a "consensus" report, which it anticipated "may be viewed as controversial by some or not sufficiently bold by others, but the Commission believes that significant change is needed to serve the public's legal needs in the 21st century." In the report, the Commission proclaims:

[t]echnology has disrupted and transformed virtually every service area, including travel, banking, and stock trading. . . . [T]he [legal] profession is   "at the cusp of a disruption: a transformative shift that will likely change the practice of law in the United States."<\/blockquote>

The Commission then surveys the nature of impending disruptions and takes aim at civil justice issues that are clogging state courts.

A.   Challenging Hourly Billing and One-on-One Legal Assistance

The Commission focused on the paradox of large unmet needs for legal services and significant unemployment rates for new lawyers. It identified the traditional law practice business model as a major barrier  to matching supply and demand. The traditional model is built upon one- on-one lawyering and hourly billing. This business model does not foster innovation and efficiency typical of most other industries where revenues are based on outputs (products) rather than on inputs (time spent). The Commission praised alternative fee arrangements (AFAs), such as flat fees, and cited an Altman Weil report showing that 93% of "large and midsized firms" (midsized means between fifty and 499 lawyers) used at least some AFAs. The Commission reported no data regarding AFAs for firms with fewer than fifty lawyers, although it did report approvingly that in 2016, the Los Angeles County Bar Association introduced a program that offered uncontested divorces for a flat fee of $800.

The Commission found that the rapid growth of legal startups, often run by nonlawyers who are not governed by professional regulations that control lawyers, increasingly challenges the traditional law practice business model. Legal startups were defined as new organizations that seek to service the legal market with innovative products or services. The Commission observed that the number of legal startups on AngelList, a website for startups and investors, had risen from fifteen in 2009 to over four hundred in 2016. The Commission reasoned that many startups wished to remain under the AngelList radar, so that as many as one thousand legal startups actually were in existence in 2016. Although some startups provided services for law firms (marketing, legal research, crowdsourcing, analytics, legal education, and law practice management), many legal startups tailored products directly for consumers or other businesses.

The Commission recognized that lawyers need to compete with the growing ranks of legal startups and legal services provided by nonlawyers, such as accountants. While acknowledging "strong opposition" within the ABA to "alternative business structures" (ABS), the Commission discussed positive ABS experiences in the United Kingdom and other foreign countries and discussed the benefits of allowing nonlawyer ownership of law firms and collaboration between lawyers and nonlawyers. The Commission also discussed the possibility of group legal plans and prepaid legal services where, in return for a preestablished amount of money, there would be no additional costs for legal services provided under the plan.

The Commission's Report briefly addressed a range of technologies such as automated document assembly tools, mobile applications, online dispute resolution, advanced computing, and artificial intelligence (AI). Some of these technologies were in a nascent stage, but others had achieved high levels of proficiency, such as the document assembly software that many law firms had adopted successfully. Individual consumer demands likewise were evolving, with increasing demand for do-it-yourself tools, simple and understandable services, and software applications deliverable by mobile devices on demand. Consumers wanted more understandable court forms and simplified procedures "in high-need areas such as family law, immigration and consumer debt." The Commission found a need for uniform, plain-English court forms that are available from centralized sources.

The Report also discussed the merits of unbundling, which is the practice of decomposing legal representation into separate and distinct tasks, and then limiting the scope of an attorney's representation to agreed- upon tasks. Rather than handle all aspects of a case, an attorney's role might be limited to "advice, research, document drafting, negotiation, or court appearances." One study showed that lawyers make the biggest difference to case outcomes in high-volume settings in which cases are treated perfunctorily, which may suggest a good task for limited scope representation. Clients benefit from unbundling by obtaining desired services and not paying for unwanted services; attorneys benefit from an increased number of clients who are willing to pay for legal services; and courts benefit from having fewer self-represented parties appear in court. The Commission observed that unbundling would help combat access to justice dilemmas.

B.  Expediting Courts and Addressing Unmet Legal Needs

The Commission cited growing judicial branch frustration with access to justice problems. The Conference of Chief Justices expressed concern that large numbers of unrepresented litigants clog the courts and strain judicial resources. A growing number of courts are responding to these and other challenges by allowing lawyers and self-represented parties to use new technologies, such as those providing remote access for document filing, record searches, and document preparation. Courts also have established over 500 self-help centers across the United States, which provide information, forms, document support, and, in some cases, live human assistance. An estimated 3.7 million people utilize self-help centers annually. Courts in the Netherlands even have experimented with Online Dispute Resolution (ODR) in divorce cases, effectively outsourcing alternative dispute resolution so that fewer matters come to the courts.

Many court responses to access to justice issues involve using nonlawyers to assist litigants. For example, "Courthouse Facilitators" in California and Washington State provide information and legal forms to unrepresented parties in family law cases and help refer unrepresented persons to legal, social services, andalternative dispute resolution resources. Courthouse Facilitators in California operate under the Judicial Council and are governed by the California Family Code; the Washington Supreme Court created the Family Courthouse Facilitator Advisory Committee to oversee an analogous program. More than 345,000 individuals visit family law facilitators' offices in California each year. Washington State also created "Limited License Legal Technicians" (LLLTs), with the inaugural class of LLLTs in 2015 licensed only in the area of family law. These paraprofessionals are subject to rules of professional conduct similar to those that govern lawyers, must meet credential requirements, are licensed to provide some legal advice, and must work under the supervision of a licensed attorney. Arizona, California, and Nevada have created the role of "Document Preparers," which can help individuals prepare documents in uncontested divorces and other types of civil cases. Document Preparers are not permitted to give legal advice or represent a client in the courtroom. New York created "Courthouse Navigators" for family law matters in a program called "Legal Hand," which is located in low-income neighborhood storefronts. Nonlawyers assist individuals by providing information, assistance and referrals in housing, family, immigration, divorce, and benefits matters.

Most of the court-initiated programs the Commission discussed target access to justice issues by increasing the quantity of human legal services providers. Every solo and small firm litigator would be impacted by widespread adoption of these potential reforms. For reasons discussed in Part V, several of these initiatives are misguided.

C.   The Commission's Twelve Recommendations

After making numerous findings, the Commission proceeded to issue twelve recommendations. The recommendations encourage courts, lawyers, and law firms to more readily adopt technology, expand services for persons with unmet legal needs, and enlarge the supply of nonlawyer legal services providers. This article will not discuss each recommendation in detail, but practitioners should read them collectively, as they show common themes relating to technology and access to justice.

Recommendations 2 and 5, the focus of the discussion here, will have the greatest practical impact on solos, small firms, and family lawyers, even though on their face they apply to courts and not to practitioners. The Commission has positioned overburdened courts as the driving force for technological innovation. If the judiciary responds as the Commission hopes, then the bar will be forced to automate and to compete with a new wave of nontraditional legal services providers.

The Commission's twelve recommendations are:

RECOMMENDATION 1. The legal profession should support the goal of providing some form of effective assistance for essential civil legal needs to all persons otherwise unable to afford a lawyer.

RECOMMENDATION 2. Courts should consider regulatory innovations in the area of legal services delivery.

2.1.  Courts should consider adopting the ABA Model Regulatory Objectives for the Provision of Legal Services.

2.2.  Courts should examine, and  if  they  deem  appropriate  and  beneficial  to providing greater access to  competent  legal  services,  adopt  rules  and procedures for judicially-authorized-and-regulated legal services providers.

2.3.  States should explore how legal services are delivered by entities that employ new technologies and internet-based platforms, and then assess the benefits and risks to the public associated with those services.

2.4.  Continued exploration  of  alternative  business  structures  (ABS)  will  be useful, and where ABS is allowed, evidence and data regarding the risks and benefits associated with these entities should be developed and assessed.

RECOMMENDATION 3. All members of the legal profession should keep abreast of relevant technologies.

RECOMMENDATION 4. Individuals should have regular legal checkups, and the ABA should create guidelines for lawyers, bar associations, and others who develop and administer such checkups.

RECOMMENDATION 5. Courts should be accessible, user-centric, and welcoming to all litigants, while ensuring fairness, impartiality, and due process.

5.1.  Physical and virtual access to courts should be expanded.

5.2.  Courts should consider streamlining litigation processes through uniform, plain-language forms and, where appropriate, expedited litigation procedures.

5.3 Multilingual written materials should be adopted by courts, and the availability of qualified translators and interpreters should be expanded.

5.4. Court-annexed online dispute resolution systems should be piloted and, as appropriate, expanded.

RECOMMENDATION 6. The ABA should establish a Center for Innovation.

RECOMMENDATION 7. The legal profession should partner with other disciplines and the public for insights about innovating the delivery of legal services.

7.1.  Increased collaboration with other disciplines can help to improve access to legal services.

7.2.  Law schools and bar associations, including the ABA, should offer more continuing legal education and other opportunities for lawyers to study entrepreneurship, innovation, the business and economics of law practice, and other relevant disciplines.

RECOMMENDATION 8. The legal profession should adopt methods, policies, standards, and practices to best advance diversity and inclusion.

RECOMMENDATION 9. The criminal justice system should be reformed.

9.1.  The Commission endorses reforms proposed by the ABA Justice Kennedy Commission and others.

9.2.  Administrative fines and fees should be adjusted to avoid a disproportionate impact on the poor and to avoid incarceration due to nonpayment of fines and fees.

9.3.  Courts should encourage the creation of programs to provide training and mentoring for those who are incarcerated with a goal of easing re-entry into society as productive and law-abiding citizens.

9.4.  Minor offenses should be decriminalized to help alleviate racial discrepancies and over-incarceration.

9.5.  Public defender offices must be funded at levels that ensure appropriate caseloads.

RECOMMENDATION 10. Resources should be vastly expanded to support long-standing efforts that have proven successful in addressing the public's unmet needs for legal services.

10.1.  Legal aid and pro bono efforts must be expanded, fully-funded, and better-promoted.

10.2.  Public education about how to access legal services should be widely offered by the ABA, bar associations, courts, lawyers, legal services providers, and law schools.

RECOMMENDATION 11. Outcomes derived from any established or new models for the delivery of legal services must be measured to evaluate effec- tiveness in fulfilling regulatory objectives.

RECOMMENDATION 12. The ABA and other bar associations should make the examination of the future of legal services part of their ongoing strategic long-range planning.

V. The Commission's Two Most Significant Recommendations

Predictably, the Commission's Report drew more criticism than praise. Those who want the legal profession to move faster toward automation, and especially those who seek to open legal markets to corporations run by nonlawyers, blasted the Commission for issuing weak recommendations. Those who want to maintain the profession in a form that they believe has served the public well for centuries, and in which most lawyers earn decent but unspectacular compensation, objected to the Report as endangering core values of the legal profession. Some solo and small firm practitioners expressed vehement opposition.

With intense criticism coming from all sides, the Commission did not submit any resolutions for consideration by the ABA House of Delegates at the time it released its Report. Rather, it chose a politically savvy approach to changing the profession. The Commission wrote a report dense with information relevant to state supreme courts and pointed the courts toward practical reforms that will reverberate throughout the profession. They took innovative leadership away from the ABA House of Delegates and handed it to powerful, motivated, and determined actors that collectively control billions of dollars of state budgets--the state and federal courts.

Parsing the recommendations that apply broadly to all lawyers is an uninteresting exercise, as most of them proclaim the obvious. For example, Recommendation 3 indicates that all lawyers should keep abreast of relevant technologies. This largely reiterates Comment 8 to Rule 1.1 of the Model Rules of Professional Conduct (Competence), which provides in relevant part, "To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology." Recommendation 3 goes a  bit further than the comment to Rule 1.1, by changing the word "should" to "must" in the Commission's explanation of its recommendation. Yet,  it essentially emphasizes a rule that attorneys already should follow. Hardly disruptive innovation.

By contrast, Recommendations 2 and 5 are more definitive and specific than the other ten. They encourage action by overwhelmed courts with administrative dilemmas. Significant change more likely will come from courts with resources than from attorneys who are devoted to the existing craft. The recommendations give state supreme courts ideological and political cover to adopt programs that will impact solo and small firm practitioners.

A.  Recommendation 2

RECOMMENDATION 2. Courts should consider regulatory innovations in the area of legal services delivery.

2.1.  Courts should consider adopting the ABA Model Regulatory Objectives for the Provision of Legal Services.

The Commission itself drafted the "ABA Model Regulatory Objectives for the Provision of Legal Services," and, in Resolution 105 in 2016, theABA House of Delegates approved the model regulatory objectives six months before the Commission rendered its Report. The model objectives bless nontraditional legal services providers by providing guidelines for their regulation, as opposed to encouraging the bar to combat nontraditional providers through unauthorized practice of law rules. Supreme courts throughout the United States already were  moving  in  this  direction, and the U.S. Supreme Court decision in North Carolina State Board of Dental Examiners v. Federal Trade Commission portends acceleration of the journey. The Commission reasoned that the ABA should provide guidance in a form akin to the Preamble to the Model Rules of Professional Conduct. ABA Family Law Section leaders and several voices speaking on behalf of solos and small firms stressed core professional values in their unsuccessful opposition to Resolution 105. However, the resolution passed, and the ABA Model Regulatory Objectives for the Provision of Legal Services is now official ABA policy.

2.2.  Courts should examine, and  if  they  deem  appropriate  and  beneficial  to providing greater access to  competent  legal  services,  adopt  rules  and procedures for judicially-authorized-and-regulated legal services providers.

The Commission's findings, although not the express wording of Recommendation 2.2, encourage state supreme courts to expand the use of nonlawyers to meet the needs of middle-class and poor individuals. "The Commission supports . . . judicially-authorized-and-regulated legal services providers . . . [including] courthouse navigators . . . courthouse facilitators . . . limited license legal technicians . . . and document preparers." Use of limited license legal technicians (LLLTs) was the only form of nonlawyer human labor that the ABA Family Law Section Council specifically opposed--by a unanimous  Council  vote.  LLLTs are paraprofessionals who are subject to rules of professional conduct, and they are licensed to provide legal advice under the supervision of a licensed attorney. The inaugural class of LLLTs in Washington State was licensed only in family law. LLLTs were not specifically mentioned in Resolution 105 or in the accompanying report submitted to the House of Delegates, but they received favorable treatment six months later in the Commission's Report. The Commission supports widespread adoption of LLLTs for other subspecialties serviced primarily by sole practitioners and small firms.

2.3.  States should explore how legal services are delivered by entities that employ new technologies and internet-based platforms and then assess the benefits and risks to the public associated with those services.

This recommendation invites state supreme courts to utilize the services of legal startups and more well-established corporations and to allow them to participate in a controlled way within the legal services profession. It encourages courts to welcome automation that will assist the legal profession and the courts to conduct business more efficiently. In the short term, this may mean greater access to remote access technologies such as electronic filing of pleadings and to enhanced search capabilities within court cases. New technologies may streamline resolution of discovery disputes, democratize legal research, facilitate form preparation, and help self-represented parties draft stipulations and agreements. Within the next decade, new technologies even may assist courts in writing decisions. Practitioners will follow the courts' lead and present information in new ways that the courts favor. Automation will cease to be merely an interesting topic for discussion, and instead will become a business necessity.

2.4.  Continued exploration  of  alternative  business  structures  (ABS)  will  be useful, and where ABS is allowed, evidence and data regarding the risks and benefits associated with these entities should be developed and assessed.

Alternative business structures (ABS) would allow lawyers and nonlawyers to work together more closely. Nonlawyers would be allowed to own law firms, help manage law firms, and share fees with lawyers. They would prioritize efficiency, competency, and profit.

Since the adoption of the Model Rules of Professional Conduct more than three decades ago, the ABA House of Delegates has strongly and repeatedly opposed ABS. An initial proposed draft of Rule 5.4 in the 1970s permitted creation of ABS, but it was soundly defeated. In 1999, the ABA Commission on Multidisciplinary Practice proposed ABS, and that was defeated by a vote of 304 to 98. When that commission thereafter persisted with its efforts to promote ABS, the House of Delegates discharged the commission and reiterated its opposition to ABS. The ABA's Ethics 20/20 Commission tried again in 2012, in a more limited form, and the House of Delegates again rejected ABS.

The ABA Commission on the Future of Legal Services raised the issue once again in 2016 by seeking comments on an "Issues Paper Regarding Alternative Business Structures." As anticipated, extensive opposition stressed the profession's core values, particularly the need to exercise independent professional judgment and remain loyal to clients. The House of Delegates spoke yet again on ABS when it amended the Commission's Resolution 105 in February 2016. The amended language states, "FURTHER RESOLVED, That nothing contained  in this Resolution abrogates in any manner existing ABA policy prohibiting nonlawyer ownership of law firms or the core values adopted by the House of Delegates."

Undaunted, the Commission in its Recommendation 2.4 tacitly disagreed with the House of Delegates, indicating that there was extensive growth in ABS outside the United States and that empirical "studies reveal no evidence that the introduction of ABS [in the UK and other foreign countries] has resulted in a deterioration of lawyers' ethics or professional independence or caused harm to clients and consumers." Recommendation 2.4 would not have passed the House of Delegates in 2016, and the Commission did not seek a vote. Rather, the Commissioners circumvented ABA politics by addressing courts and asking that they consider the merits of ABS as one of the "regulatory innovations in the area of legal services delivery."

There are market realities that may have prompted the Commission to recommend that courts consider allowing ABS. As discussed in a white paper prepared for the Commission, the United States exported more than $9 billion in legal services in 2013, while importing legal services  in the amount of $2 billion. Foreign use of ABS could place this international trade surplus and Big Law at risk, as foreign competitors allow ABS. Further, many of the growing ranks of legal startups are run by nonlawyers, many of whom do not feel constrained by "core values" of the legal profession or by its Model Rules of Professional Conduct. If market entry by these companies is inevitable, it may be better to partner with them than compete against them. Nonetheless, it was startling to see the Commission's ABS recommendation in light of unambiguous House of Delegates opposition.

B. Recommendation 5

RECOMMENDATION 5. Courts should be accessible, user-centric, and welcoming to all litigants, while ensuring fairness, impartiality, and due process.

5.1  Physical and virtual access to courts should be expanded.

The Commission supports remote participation in court proceedings through expanded use of modern communication technologies. Lawyers and self-represented parties should have access to remote document filing, record searches, and document preparation. Legal resource centers should be located in more physical locations that are accessible to the community, such as post offices and public libraries. This recommendation  not only brings justice to the people where they live and work but may have an additional benefit of reducing the need for new courthouses as the population grows.

5.2.  Courts should consider streamlining litigation processes through uniform, plain-language forms and, where appropriate, expedited litigation procedures.

The Commission recommends "development of national and statewide uniform court forms and procedures" and enabling individuals to obtain those documents from centralized sources. Forms should be simplified and in plain English. The Commission criticized New York for requiring between twelve and twenty-one forms for an uncontested divorce. "The ABA, the National Center for State Courts, the Conference of Chief Justices, and the Conference of State Court Administrators" should collaborate to create uniform, national forms. State bar associations  are conspicuously missing from the list, which is particularly notable because many of the disciplines discussed in the Report are governed by state law, including family law. The Uniform Law Commission and other national organizations also could assist in creating uniform state laws and procedures.

5.3.    Multilingual written materials should be adopted by courts, and the availability of qualified translators and interpreters should be expanded.

The Commission seeks to eliminate or significantly reduce language barriers as an impediment to access to justice. Advances in automated language translation may expand the number of different languages a court can translate and perhaps reduce the need for human translators. Videoconferencing would allow human translators to service multiple courthouses from a single location.

5.4.  Court-annexed online dispute resolution systems should be piloted and, as appropriate, expanded.

The Commission recommends greater use of court-annexed online dispute resolution (ODR). A white paper prepared for the Commission indicates that ODR increasingly relies on machine intelligence to suggest solutions to financial disputes and that companies such as eBay  use ODR to resolve many of the 700 million eCommerce disputes reported each year. The Commission found that courts in the Netherlands use a specific software application to enable ODR in divorce cases. ODR will help facilitate judicial efficiency and lessen demands on the overburdened court system.

Overall, the Commission supported all of the reported state supreme court efforts to improve judicial efficiency through increased use of technology and nonlawyers. While offering broad and aspirational recommendations for all lawyers, its recommendations directed to the courts were specific and supported with ample examples for courts to follow. Only a few states were discussed, perhaps implying that the majority of states lagged behind these peers. Yet, all states struggle with unmet legal needs, underfunded courts, and overburdened judges.

VI. Legal Startups and Corporate Competition

The Commission devoted considerable study to the growing impact of nontraditional legal service providers. Yet, one of the most curious aspects of the Commission's Report is its relatively cursory treatment of "legal service delivery" by nonlawyer corporate actors. One of the unanswered questions in the Commission's Report is "why now?"

Nontraditional legal service providers enter the legal services market for a traditional business reason: they want to make money. Professor Michael E. Porter of Harvard Business School identified five forces that help understand why companies succeed and when they enter a market. Porter's five forces are bargaining power of buyers, bargaining power of suppliers, threat of new entrants, threat of substitute products or services, and rivalry among existing competitors.

A.   Bargaining Power of Buyers

This means the ability of buyers to drive prices down, and it depends upon factors that include the importance of individual buyers to a business and the cost to a buyer of switching to an alternative supplier. Millions of individuals and businesses purchase legal services from solo practitioners and small law firms each year, and no individual buyer can dictate prices. However, finding counsel and switching to new counsel are easier now than a decade ago when people selected attorneys based on direct attorney referrals or word of mouth within a local community. Online ratings and social media have changed clients' bargaining power by making it easier to find an attorney "recommended" by someone. The general public may not be aware of distinctions between a peer review from Martindale-Hubble or Super Lawyers, a lawyer's glowing online self-rating, or a "best" rating available from a marketing firm for an annual subscription fee. Predictive analytics may alter the market further by attempting to measure attorney "success" in court cases based on past performance, a difficult task in a field where cases usually settle and where clients sometimes litigate matters against the advice of counsel. Individuals have enhanced bargaining power because they have greater ability to research attorneys, compare prices, find recommendations, and replace counsel. In addition, there is an overabundance of lawyers, which undermines their bargaining power. Nonetheless, the cost of switching lawyers remains high, which continues to favor lawyers with clients who pay their bills. Yet, the increasing use of court forms, uniform laws, simplified procedures, and digitized documents makes it easier to change a legal service provider.

B.  Bargaining Power of Suppliers

This means the ability of suppliers to raise prices. It is dependent on the number of suppliers, the uniqueness of the service, and the cost to buyers of switching to another supplier. There are few powerful suppliers to the legal profession. For example, Lexis and Westlaw supply legal research tools to law firms, and new suppliers such as Findlaw or Google Scholar have entered the market and sold alternative legal research tools for a lower price. No single supplier can raise prices.

C.   Threat of New Entrants

This is dependent on the cost of entering a market, economies of scale, capital requirements, cost advantages for entrenched companies, access to distribution channels, and government policy (such as unauthorized practice of law rules). A range of technological advances and systemic pressures challenge traditional barriers to entry to the legal profession (Moore's Law, disruptive innovation, erosion of the "Grand Bargain," capital substituting for labor, and other factors discussed in Part II of this article). New entrants include IBM (Watson), Google (Google Scholar), Walmart (hundreds of retail stores already deliver legal services), LegalZoom, Rocket Lawyer, accounting firms, and legal startups that have not yet achieved a level of success sufficient to enter the consciousness of most practicing lawyers. In July 2017, an online search showed 1,615 companies listed as "Legal Startups" on the entrepreneurial website AngelList, with a purported average valuation of $4 million. By comparison, the Commission reported that there were 400 legal startups on AngelList in 2016 and only fifteen in 2009.

Unlike lawyers, corporations can raise capital from outside investors, which facilitates their investment in automation. They are not constrained by the Rules of Professional Conduct that  govern lawyers, although that may change if states adopt new rules consistent with the  ABA Model Regulatory Objectives for the Provision of Legal Services. Many entrepreneurs do not care about the legal profession's ethics and aspirations of providing justice for all, and they design services to fall just short of serious infractions of unauthorized practice of law rules. Some businesses even provide legal services from outside the United States and hope to ignore the rules completely. Companies avoid creating attorney-client relationships, and accordingly assert that they have none of the many duties that lawyers have when they form such a relationship. As predicted by the Susskinds, new entrants break down legal matters into component parts, commoditize routine functions, offer total solutions only for simple legal matters, and do not offer complete solutions for more complex matters that require individualized solutions formulated by lawyers. Unbundling allows clients to separate routine legal tasks from more nuanced tasks, such as negotiation and oral argument. Employing lawyers as needed may allow clients to keep costs down, although a "one-size-fits-all" approach to legal work may increase overall costs and possibly cause dangerous consequences for those litigants who should have hired a traditional lawyer. LegalZoom now employs lawyers in all fifty states, clearly signaling its intention to provide individualized legal assistance and compete directly with solo and small firm practitioners.

D.   Threat of Substitute Products or Services

This is affected by the ability of potential clients to find a different way to do what a law firm does. Prior to mass availability of information on the Internet, there was no meaningful substitute that could meet the public's demand for legal assistance. Now, a voluminous amount of information is available and searchable on the Internet, and a motivated researcher can find support for nearly any desired position, whether accurate or not. There are fillable forms that litigants can complete themselves, often provided online by the judicial branch. LegalZoom, Rocket Lawyer, and similar nontraditional legal services providers make profits by reducing the cost of inputs through automation, earning small margins on individual transactions, and relying on large volume to generate profits. Online forms and other information may not be as finely crafted as information provided to a client in a one-to-one meeting with a lawyer, but many clients want cheap solutions that are "good enough" and on their own schedule. Many solo practitioners and small firms will find it difficult to compete with these new substitutes.

E.   Rivalry Among Existing Competitors

Porter's fifth force depends on the number and capability of competitors and whether a firm offers unique services. Many lawyers believe that their talents and insights are unique and that no other lawyer would handle a situation in exactly the same manner. While that probably is true, especially in family law, clients may not see a lawyer's role that way. Clients focus on achieving finality on favorable terms for a reasonable expense and often do not appreciate a lawyer's ability to expand the divisible pie, minimize long-term risks, reach agreement through negotiation, calm an emergency situation, or present a cogent and persuasive argument to a court. More importantly, there simply are too many lawyers, as reflected in narrowing ratios of lawyers per residents of the United States and in falling compensation for solo and small firm practitioners over the past several decades.

This article will not forecast winners and losers among the thousands of nontraditional legal services providers. Suffice to say that there will  be a few winners and more losers, and many lawyers will emerge from the battles badly bruised or employed outside of the legal profession. Some of the new corporate entrants will enhance the work of lawyers as they practice their craft, such as by improving law office management or providing reliable psychological information that helps resolve custody cases. Other corporations will compete directly with solo practitioners and small firms. As Christiansen would predict, nontraditional legal services providers will begin by servicing routine legal matters that lawyers cannot service profitably. Courts and lawyers may welcome their service in the noble quest to improve access to justice. These nontraditional legal services providers quickly will move up the legal food chain as automation improves and will compete with solo practitioners and small firms.

VII.     Withstanding Disruptive Innovation

The unresolved question from the Commission's perspective was how, not whether, legal startups and other nontraditional legal services providers would enter and participate in legal services markets. As one of the whitepapers stated:

Technology has disrupted and transformed virtually every service area, includ- ing travel, banking, and stock trading. . . . [T]he [legal] profession is "at the cusp of a disruption: a transformative shift that will likely change the practice of law in the United States."<\/blockquote>

The Commission rightly determined that it is preferable for the legal profession to regulate nonlawyer market actors than to let them operate unregulated, or to allow a different regulatory regime to develop outside the control of the legal profession.

A.  Courts Will Force Practitioners to Automate

Courts are not known for their technological prowess and receptiveness to change. The judicial branch provides justice for all, resolves disputes, follows precedent, and protects rights. In the past, these priorities were largely distinct from automation and science. Yet, the Conference of Chief Justices reported to the Commission that

large numbers of unrepresented litigants clog the courts, consume the time of court personnel, increase the legal fees of opposing parties due to disruptions and delays, increase the number of cases that advance to litigation, and result in cases decided on technical errors rather than the merits.<\/blockquote>

The judicial branch is poised to automate for at least twelve reasons. First, technology has advanced to a stage where computers can access and store voluminous amounts of information remotely, reducing the need to store, organize, and access paper files. Second, courts now can make information available to everyone who has an Internet connection, which according to a white paper prepared for  the Commission was  98% of all Americans in 2016. Third, the public values an open  judicial system, and technology permits constant public access to court files through various software applications and cloud-based servers. Fourth, computers are well suited to perform many courthouse jobs. As the McKinsey Global Institute explains, 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." Fifth, decades of efforts by judges and bar associations to resolve access to justice dilemmas by using attorney labor have failed. Massive unmet legal needs undercut the courts' core priority of providing equal justice to all. Sixth, funding for the Legal Services Corporation (LSC) has been under threat for many years, and the 134 independent legal services organizations throughout the United States already do not have sufficient funding to service the legal needs of low-income households. Cuts to legal services organizations means more self-represented parties. Seventh, self-represented individuals struggle to function competently within the existing system, resulting in delays, disruptions, increased litigation, and expenditures on court personnel who service this enormous population. Eighth, most state courts have provided the public with court forms for several years, and the technology used to fill and process those forms is improving. The National Center for State Courts has a page with links to free, online court forms from forty-nine states. Ninth, the Commission reports high individual consumer demand for do-it-yourself tools, simple and  understandable  services, and software  applications  deliverable  by mobile devices on demand. If courts automate to improve forms  and other resources, then self-represented parties will use them. Tenth, growing ranks of nontraditional legal services providers want to provide automated services. Eleventh, many judicial branches are moving toward simplified procedures that would benefit from automation. For example, several jurisdictions now  permit  a  form  of  administrative  divorce  as a way to reduce court expenses, allowing streamlined procedures for dissolution of short-term marriages that involve limited finances and no minor children. Computer automation is well suited for processing these routine matters.

Twelveth, and of tremendous importance, judicial branch budgets in many states are under intense and worsening pressures. Budget cuts to Connecticut's judicial branch in 2016 resulted in the termination of 300 court employees, closure of two courthouses, and a hiring freeze that, due to total attrition, resulted in a reduction in courthouse staff in one year from 4,300 to 3,700. Connecticut's courts responded through automation and more efficient courthouse procedures, and actually have expedited the resolution of cases. Despite financial constraints and problematic gaps in courthouse staffing, courts have sufficient resources to make capital investments in automation that improve efficiency.

Another foreseeable side benefit of automation, at least from the court's perspective, is that it externalizes some costs traditionally borne by the courts. For example, rather than have a human clerk employed by the judicial branch file a paper document in the correct court file, electronic filing shifts much of that burden to the individual who e-files a document. The individual who makes a filing selects the correct court file, identifies the pleading, and retains proof that the court received it. Less than a decade ago, there was no e-filing in Connecticut state courts, but now the courts require e-filing of pleadings. Further, in many Connecticut courtrooms, judges no longer have the assistance of a clerk because of staffing cutbacks. Under these dire circumstances, and in compliance with administrative directives to cut costs, many judges no longer accept paper copies of trial exhibits and instead require parties to e-file exhibits. Parties do the clerks' work, subject to judicial oversight and potential consequences for misuse. If not for e-filing requirements, attorneys no doubt happily would have continued to file paper copies of pleadings and exhibits with the courts. Attorneys automated when paper no longer was an option, and now it is the new normal. When courts automate, attorneys automate.

Courts throughout the United States are asked simultaneously to deliver more justice, to service more self-represented litigants, and to operate the judicial system using less money. Author Richard Susskind described a similar "more-for-less" challenge as the most important factor transforming the legal profession: clients demand more legal services for less cost. The public-sector issues confronting courts are far more complex than simple economics, as courts dispense justice and safeguard rights under state and federal law. Yet, budgetary constraints and the "more for less" challenge are defining characteristics of the present judicial system. Financial pressures on the courts will drive automation throughout the legal profession.

B.   Lawyers' Unmerited Reputation as Luddites

Lawyers supposedly fear math, computers, and any innovation since the fountain pen. That reputation is nonsense. Most lawyers simply are not very interested in technology. They want to help clients, protect rights, settle cases, practice their craft, win in court, and provide for their own families. Automation is a side issue, rather than a central focus of what they do. Lawyers do not disdain technology. They just do not pay attention until necessary.

A marketing book first published in 1991 provides a framework for understanding solo and small firm lawyers' relationship with automation. Geoffrey A. Moore, in his book Crossing the Chasm, analyzed the "technology adoption life cycle" and explained how new technologies move from interesting ideas to mainstream products. According to Moore, the business world is comprised of innovators, early adaptors, early majority, late majority, and laggards. Every new technological product must cross a series of chasms on the way to mainstream adoption.

"Innovators" love new technology and always want the latest products. They are visionaries who enjoy tinkering with the  most recent and advanced device. Few, if any, innovators are family lawyers, but an increasing number of legal startups fulfill the innovator role.

"Early adaptors" are like innovators in that they want the latest technology, but not because they love new products. Rather, they find it easy to imagine, understand, and appreciate the benefits of new technology, and they can relate those benefits to their practical concerns. In the 1980s, a small group of early-adapting lawyers began to carry "cordless" phones that were the size of footballs. It took strong arms and ample self-confidence to hold such an enormous device to one's ear in public. Yet, early adaptors could imagine the benefits of making a phone call without first finding an available pay phone. They rely on intuition and vision when buying new products, rather than references. Early adaptors are the core constituency for opening new markets, as they help technologists develop a product by using it and exposing its deficiencies. A small percentage of solo and small firm lawyers fit the description of early adaptors.

The next stop on the technology adoption life cycle is the "early majority." They share some of the early adaptors' ability to understand and appreciate new technology but are driven by a strong sense of practicality. The early majority wants well-established references before they incorporate a new technology into their business. Many solo and small firm lawyers fit this description. The early majority invited Lexis or Westlaw into their law offices in the early 1980s, after early adaptors had worked out the bugs. A member of the early majority today will buy and use law office management software from established providers. The early majority knows which software applications local judges are using to calculate child support awards and estimate taxes, and they buy those software applications even if not required to do so.

The majority of lawyers fall into the category of "late majority." They will wait until a new technology becomes the established standard, and then they will buy that technology from the most well-established vendors. They brought Lexis or Westlaw into their offices in the 1990s, once they realized they could not practice at a high level without electronic research capability. They invest in technology out of fear of malpractice exposure or losing cases, rather than because they want to seize the advantage. They willingly comply with new court e-filing rules that compel automation because there is no alternative. In fact, they appreciate the fact that the judicial branch has worked out the bugs, selected a reputable vendor, and made it easier to file documents.

Finally, there are the "laggards," who do not want to buy or use any new technology. Any attorney who refuses to carry a cell phone is a laggard. A laggard asks the court for exemption from e-filing rules. Some laggards still reject desktop computers and rebelliously thumb their noses at the last fifty years of computer innovations--rebels with a fruitless cause.

Moore's technology adoption life cycle has served as a guide for high- tech startups for over two decades, and it applies to the legal profession. Two factors that make the legal services market distinct, however, are  the influence of the courts and the ethical duties of the lawyers. Faced with enormous challenges, courts have stepped into a hybrid role between early adaptor and early majority, and they are innovating. Lawyers concerned with complying with the profession's high ethical standards feel emboldened to automate after a technology has been blessed by the courts. Once the courts decide to automate, new technology quickly travels through the technology adoption life cycle.

Many of the innovations coming to the legal profession will not benefit from a direct judicial push. Yet, judicial innovation and resulting law firm automation create precedent, which is a concept that lawyers understand and know how to expand. Most innovations within the legal profession will pass through the usual technology adoption life cycle, but the momentum behind automation will increase as lawyers feel professionally secure  and see positive results in firm revenues. They also will adapt out of self- preservation, pushing back against nontraditional legal services providers who compete for work. They will invest in automation that helps them win--or at least not lose--in a highly competitive legal profession. Once embraced, lawyers can wield automation dexterously.


C.   Short-Sighted Human Labor Solutions

The Commission's desire to improve access to justice deficiencies immediately permeates its analysis. Unfortunately, that laudable goal resulted in several proposed solutions that undermine its medium- and long-term objectives.

There is a massive oversupply of lawyers in the United States, and yet the Commission recommends adding more people to the ranks of human legal services providers. In 2015, there were 321,418,820 people in the United States and 1,300,705 licensed lawyers. That means that there was one licensed lawyer per 247 people; by comparison, there was one lawyer for every 687 people in 1950. A stunning 43% of all 2013 law school graduates did not have long-term, full-time legal jobs within nine months of graduation. There has been a thirty-year decline in small and solo practitioner earnings. Using 2010 dollars, the average compensation for solo practitioners fell from $69,995 in 1988 to $46,560 in 2011. The Bureau of Labor Statistics reports that in 2016, the bottom ten percent of full-time lawyers earned $27.36 per hour. Automation will encroach on the work that many lawyers currently perform and make it more difficult for recent law school graduates to find jobs in the legal profession. As bad as small-firm lawyer compensation is now, within five years 2017 may seem like the good old days.

In the face of a tremendous and growing oversupply of lawyers, the Commission nonetheless supports expanding the ranks of nonlawyers as a means to combat unmet legal needs. It states:

The Commission supports efforts by state supreme courts to examine, and if they deem appropriate and beneficial to providing greater access to competent legal services, adopt rules and procedures for judicially-authorized-and- regulated legal services providers . . . [including] courthouse navigators . . . courthouse facilitators . . . limited license legal technicians . . . and document preparers.<\/blockquote>

If human beings were the answer to America's access to justice dilemmas, then supply already would have met demand and there would be no access to justice problem. Encouraging new nonlawyer roles that essentially will perform traditional lawyer and paralegal tasks simply expands the oversupply of labor. While enabling nonlawyer services could lessen current pressures on the courts marginally, by the time courts adopt the various recommended nonlawyer initiatives, automation already will have changed the landscape, further reducing the need for human labor. A white paper prepared by the National Center for State Courts explains the short-term nature of nonlawyer roles:

In a period of rapidly evolving rules, institutions, and services, some tasks performed by the new role may be useful in the short-term, but become out- competed by other service providers in the long-term. Document preparation may shift relatively quickly to private or non-profit online providers or docu- ment assembly capabilities hosted by legal aid organizations, the courts, or still other sources.<\/blockquote>

Allowing nonlawyers to perform work that is akin to practicing law is a variation of the failed twentieth-century approach. Expanding the supply of people who can perform legal work has not satisfied the public's unmet legal needs in the past fifty years, and there is no reason to believe that opening the field to workers with less training will tip the balance. Many of the new "attorney like" nonattorney roles will create more problems than they solve in the medium and long term.

First, developing "attorney like" roles will expand the population of unemployed and underemployed individuals trying to find work in the legal profession. Second, adding more and cheaper labor is a disincentive to capital investment in automation, which even in the short term will be of far greater benefit to Americans with unmet legal needs than cheaper human labor. Third, any new role must be compatible with the judiciary's need for integrity in the legal profession, and the courts have not yet written the rules. Ethical rules are crucial for protecting the integrity of the courts, social acceptance of branch authority, and judicial independence. Fourth, any new role must be compatible with the legal profession's high ethical standards for lawyers, such as the duties of competence; diligence; preservation of confidences; proper methods of gathering evidence; and avoidance of dishonesty, fraud,  deceit,  and  misrepresentation.  House of Delegates passage of the ABA Model Regulatory Objectives for the Provision of Legal Services is a necessary step in this direction, but it only provides guidelines for courts rather than model rules. Fifth, there will be intense intramural political fights among lawyers over nonlawyer programs, and it is unclear that the short-term benefits merit the angst. Sixth, it would be unfair to encourage individuals to seek training to enter the legal profession as nonlawyers, fully aware that those individuals soon may be displaced by automation. Seventh, it is unclear which reputable entities will find training nonlawyers for "lawyer-like" roles a profitable endeavor. The University of Washington School of Law originally expected far more prospective LLLTs to matriculate than actually did, and enrollment must "increase significantly if the university is to achieve a breakeven point." Washington's first class of fifteen LLLT graduates was comprised mostly of paralegals with over ten years of experience who were allowed to waive out of many of the educational requirements. The LLLTs who received waivers already were working for practicing lawyers and servicing the public's legal needs, and so the net social benefit of making them LLLTs is unclear.

The foregoing should not be misconstrued as opposition to all nonlawyer roles. Legal startups and established companies will create technology that will automate the legal profession and help satisfy unmet legal needs. Applying regulations to individuals who serve in these new roles, consistent with the ABA Model Regulatory Objectives for the Provision of Legal Services, would attract the types of people the legal profession wants to work with as it automates. Under existing unauthorized practice of law rules, ethical lawyers and nonlawyers cannot discern the lines between acceptable and prohibited, which scares off ethical individuals who have other employment options. A respected and ethical individual probably will not risk violating unauthorized practice of law rules, or rules prohibiting sharing business profits with nonlawyers, when she can earn a sizable income elsewhere. Yet, someone who does not care about violating the legal profession's rules would not view professional censure as a meaningful deterrent. The good people want fair and predictable rules, and the legal profession needs rules to control unscrupulous actors.

One can appreciate the courts' desire for an immediate remedy to access to justice issues. Yet, the ABA created a Commission on the Future of Legal Services. Throwing more and cheaper nonlawyer labor at the access to justice problem is a failed solution from the prior millennium. The future lies with (1) attorneys working with automation to provide better and more affordable legal services, (2) automated courts, and (3) legal startups and established companies operating ethically and within predictable and fair regulatory schemes.

D.   Valuable Human Skills

Attorneys need to learn how best to work with technology and to develop the skills that clients will value in an automated profession. Computer and machine intelligence will have the lowest employment effects on areas  of practice that are unstructured, are unpredictable, and require personal interaction. Professors Dana Remus and Frank Levy found that computers currently have the lowest actual employment effects on attorney tasks involving fact investigation, legal writing, advising clients, communicating with others, preparing for and appearing in court, and negotiating. These tasks require human traits such as personal interaction, reading another person's emotions, understanding another person's stated and unstated goals, sensing risk and opportunity, and deploying appropriate tactics. Professor Deming found that over the past two decades, social-skill- intensive occupations as a percentage share of the United States labor force grew by 11.8%. Solo and small firm practitioners, and most notably family lawyers who interact with clients, perform many unstructured, social-skill-intensive tasks.

In his 2015 book Humans Are Underrated, Geoff Colvin makes the interesting observation that people need to stop asking the question, "What can computers never do?" Past answers to this question have included "drive a car" and "identify human emotions." In 2017, self-driving cars were traveling the California highways and machine intelligence was analyzing human faces to discern emotions. Automation continually pushes back the limits of what machines can do. Colvin suggests the better question to ask is, "What are the activities that we humans, driven by  our deepest nature or by the realities of daily life, will simply insist be performed by other humans, regardless of what computers can do?"

Start with oral advocacy. Presenting cases in court is an intensely human skill that will survive automation. Only the most ardent technologists have suggested replacing human judges with software applications that would decide cases. The mere thought of machine intelligence deciding cases, rather than juries or judges, would prompt many lawyers to look for their copy of the Bill of Rights to see how many are implicated. Judges and juries are swayed by other human beings, and studies show that juries value judgments made by human experts over data. Judges and juries will continue to hear oral advocacy conducted by human attorneys.

All of the skills that make a person an effective trial attorney will endure, although effective oral advocates will need to automate in tandem with society and the courts. If a judge requires that an attorney file electronic copies of exhibits before the start of trial, then counsel will do so and he or she may even learn to present a paperless case. A lawyer will need to learn how to conduct an effective videoconference cross-examination once courts install the necessary equipment. If courts implement automated language translation software, attorneys may find themselves interacting with a digitized voice rather than a human translator. Otherwise, a trial attorney in the future will look and sound much like a trial attorney from the past. Automation disrupts, but it does not change everything.

In the medium and long term, the new high-value employment skills are the abilities that define us as human beings. These include empathizing with others' feelings, working productively in groups to solve problems, building relationships, and expressing ourselves with force and passion. They are the skills and abilities that brought most family lawyers to this highly personal field of the law. They are the skills that will enable many lawyers to continue to thrive in the law and that will offer pathways for others toward new and rewarding occupations.

Consider the importance of empathy, which means vicariously discerning the thoughts and feelings of others and then responding appropriately. Empathy is a two-way communication in which two or more humans interact with words and nonverbal cues. Any family lawyer who has sat with a loving father who just received news of a court-ordered alternating weekend visitation schedule knows that, at that moment and throughout the child custody proceedings, the father wants more than case citations and probability assessments. He needs support from a knowledgeable attorney who maintains composure, but who also projects empathy, calm, and confidence. The same can be said for an attorney who arrives at work in the morning to find a recent victim of domestic violence waiting in  the building foyer. That individual just experienced a trauma and needs someone who can hear her story, help her decide what to do, and then take assertive action. She does not need data crunching and high efficiency. Clients want legal assistance, but they also want to trust and bond with someone who cares and who will fight for them. Clients in turmoil want to communicate with a human being. No computer-generated voice or three- dimensional avatar using advanced "effective computing" to evaluate human emotions will be an adequate substitute.

Another valuable human skill that most attorneys possess is the ability to maintain client confidences. One of the regrettable features of an online and cloud-based society is that hackers circumvent cybersecurity and steal information. Even the best-guarded government databases have suffered unauthorized hacking and massive data dumps. Law firm servers are no more secure. However, individual attorneys are not connected to the Internet. Handwritten notes in paper files are not susceptible to online hacking. Clients who want to maintain confidences may choose not to digitize their private lives or reveal confidences about themselves and their children to nontraditional legal services providers.

Attorneys also will contribute by using common sense, good judgment, and experience to debunk misinformation that clients glean from unreliable sources. The recent explosion in the quantity and availability of information means that individuals today can find support on the Internet for virtually any idea, and probably also can find a related support group. Traditional gatekeepers in the publication industry no longer can filter out misinformation, at least not from the multitude of blogs and websites in a highly interconnected world. Attorneys and clients both live in the "Age of Accelerations," in which the dizzying pace of technological, social, and other disruptions make them feel perpetually uneasy--as if they need to paddle faster just to stay in the river. Yet, attorneys can maintain a level of detachment and objectivity, whereas clients are fully enmeshed in their own disputes. One of an attorney's vital roles in an automated future is to help clients sort through fact and fiction and then apply sound judgment before acting. This is extremely difficult in a world of instantaneous communication, where problems escalate  rapidly.  Lawyers will learn to use automation quickly and demonstrate to clients that some of the misinformation guiding their thinking is, in fact, misinformation. Lawyers will need to know where to find accurate science and facts and be prepared to direct clients toward reputable sources so that they can research answers to their own questions. All of these tasks require common sense, judgment, experience, and empathy.

Getting clients to act in their own best interests, and the best interests of their children, already is a high-value skill in family law. It will be more so in an automated profession. Human lawyers add value when they calm an angry parent or move an irrational client toward constructive discussions. Convincing clients to avoid disastrous choices, which many distraught individuals are prone to make, will remain an incredibly important attorney function.

VIII. Conclusion

The legal profession will evolve by sudden leaps as new technologies and approaches disrupt traditional ways of practicing. Solo and small firm lawyers will alter firm practices to accommodate new demands for automation, particularly when those demands emanate from the courts. Lawyers who are willing to learn and change likely will find continuing success. The three traits that all lawyers need to develop, above all others, are flexibility, humanity and resilience.

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    Samuel V. Schoonmaker IV

    Samuel V. Schoonmaker IV is  the found member of the Schoonmaker Legal Group, LLC, a Family Law Quarterly board member, and an adjuct faculty member at the University of Connecticut.