July 01, 2019 July/August 2019

Emerging Practice Areas in the Foreseeable Future

Identifying some up-and-coming hot topics that you should know about.

Lance G. Johnson

Oh, the things I could do with a crystal ball. Knowing that new law follows new technology, I could have advance knowledge of new technologies and thereby know what the new legal issues will be—and prepare now to meet future client needs with plenty of advance lead time.

But I don’t have one of those. What I do have is a collection of learned predictions by a collection of skilled professionals who are passionate about the future of law and the legal issues that will become important. Each was asked to consider, What are the new practice areas that solo, small and medium firms should prepare for in their five- to 10-year plans for the future?

First up are the futurists from Fast Future: Rohit Talwar, Steve Wells, Alexandra Whittington, Nadia Meeran and Cello Dutton-David. Fast Future is a professional foresight firm specializing in delivering keynote speeches, executive education, research and consulting on the emerging future and the impacts of change for global clients.

Issue 1: Evidence and liability issues from autonomous machine “testimony”

A growing array of smart objects is enveloping our homes, workplaces and communities, and the volume of legally admissible data from these devices is likely to grow at an exponential rate over the next decade. For example, the design trend for voice-activated technology is driving a rash of seemingly sentient technology in the form of digital assistants, smart appliances, and personal medical and wearable devices.

Law firms may be asked to represent clients in cases dealing with evidence, witnesses, accidents or contracts, all hinging on theoretically immutable digital proof such as time-stamped video and audio recordings. Attorneys may seek to specialize in addressing the data issues related to domains such as digital twins and personas, surveillance capitalism (i.e., companies exploiting customer data for commercial gain, with and without full approval) and digital privacy rights. A key step is getting this information admitted as evidence. Firms need to start building expertise around the admissibility and verifiability of data collected by smart technology-enabled devices.

Issue 2: Liability from artificial intelligence (AI) denial of service, access or unfair treatment

AI has already been applied in the redemptive justice system in the U.S. and in recruitment systems by companies such as Amazon. In both cases AI has been found to treat people of color and women unfairly due to limitations in the data set underlying these relatively new intelligent algorithms.

Despite the issues surrounding bias, AI is likely to be employed increasingly in even contentious areas by companies, organizations and institutions. Applications might include determining a person’s access rights to health-care plans, benefits, insurance, school choice and jobs. If AI denies access to such services, this opens up potential litigation opportunities.

Legal firms will have to equip themselves with the necessary tech-savvy staff and tools to be able to demonstrate that the machine, its algorithm or its underlying data were unfair in its decision making. Furthermore, if these cases become commonplace, governments may demand that AI systems are vetted before their implementation. Law firms could provide a new service to clients by playing a future role in evaluating the fairness and potential legal liability associated with these AI systems.

Issue 3: Machine-mediated dispute resolution

In the future, law may be administered autonomously for certain topics or claims. For example, an electronic Decentralized Arbitration and Mediation Network (DAMN) has already been implemented. The system is an open-source dispute resolution framework for smart contracts executed on a blockchain. The technology allows smart contracts to transcend national borders since it provides its own legal framework. Therefore, if the parties involved agree to use the DAMN, they are already agreeing to a specific legal framework, making it a far more efficient process from the start.

The technology of machine-mediated disputes would most likely be offered to firms as a subscription service that would cost far less than traditional arbitration services. The firm’s use of this subscription would be an overhead expense that would also likely reduce the number of billed hours that the firm would charge to resolve a dispute by traditional systems. As more clients turn to smart contracts, they will demand that their legal service providers help realize the efficiencies of the technology despite what it might mean to the firms’ revenues. The firms that will thrive will promote the technology and their skill with it as a cost savings for their clients, and this could attract more customers in the long term. A key practice opportunity here might lie in advising clients on which automated contract and dispute resolution system to use and in managing the process on their behalf.

Issue 4: Cannabis- and hemp-related issues

Dr. Seth Ogden is a patent attorney with Patterson Intellectual Property Law, out of Nashville, Tennessee. He sees a growing niche in the uses, applications and infrastructure of a steadily changing view of cannabis.

The explosive growth of legal U.S. cannabis has resulted in new protective strategies through various forms of intellectual property. Due to the passage of the Agriculture Improvement Act of 2018, Cannabis sativa having a tetrahydrocannabinol (THC) content of less than 0.3 percent on a dry weight basis is considered legal hemp. Expectations are that the legal U.S. cannabis market will average 13.7 percent annual growth, potentially reaching $30.6 billion by 2025. GenCanna recently announced a $40 million multipurpose processing facility in Kentucky. And industrial hemp license applications in Tennessee increased from less than 300 for 2018 to more than 3,000 for 2019.

The fastest growing sector was cannabidiol (CBD), which can be extracted from industrial hemp, growing 39 percent in 2017. In contrast to THC, which causes the high from marijuana consumption, CBD is a nonpsychoactive compound with anti-inflammatory properties that clinical studies suggest may have wide-ranging medical benefits. After years of ambiguity, a 2018 internal directive indicated that the Drug Enforcement Agency does not consider CBD-containing products per se to be controlled substances.

This increased cannabis cultivation will accelerate technological innovation in agribusiness, implicating intellectual property concerns related to outdoor farming techniques and indoor hydroponic production. Outdoors, sprayed chemicals cannot be used because they become concentrated during the CBD extraction process. One option to circumvent this problem is drone technologies that can permit efficient, targeted elimination of weeds and pests. But agribusiness must proceed with caution considering the multitude of drone-related patents and patent applications. For example, drone innovator DJI has applied for more than 2,600 utility and design patent applications in developing its 74 percent market share. Indoors, strains containing the highest concentrations of CBD can be cultivated year-round. Propagation preferably occurs through cloning, permitting protection via plant patents under the little-used Plant Variety Protection Act. And innovative LED technologies will likely supplant high-pressure sodium and metal halide lighting for indoor growth operations.

Likewise, production and sales of cannabis products necessitate strong intellectual property protection through both patents and trademarks. The historic illegality of cannabis has precluded such protection. Only 39 patent applications containing the word “cannabis” were filed in 2018. And trademark registrations on the core cannabis products, including CBD, were regularly rejected because applicants could not show legal use of the mark in interstate commerce. But with the federal recognition and definition of legal hemp, the stage is set for increased use of these intellectual property regimes.

Conclusion

Even this limited peek at the reasonably foreseeable future issues gives me pause. Change will not wait. These and many other issues will be upon us before we know it. The first cases will be a challenge for the legal professionals willing to work through them. Are you ready? 

Lance Johnson

Lance Johnson is the owner of Johnson Legal PLLC in Fairfax, Virginia, and is currently the features editor of Law Practice magazine. lance@lgjlegal.com

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