March 14, 2018

Technology—Probate

Technology—Probate provides information on current technology and microcomputer software of interest in the probate and estate planning areas. The editors of Probate & Property welcome information and suggestions from readers.

A Few Trends to Forecast the Future of Legal Technology

More than two decades ago, Daniel B. Evans, an earlier editor of this column, wrote his first “Internet Update.” Prob. & Prop., Nov./Dec. 1995, at 32. Major electronic mail services at that time included America Online, Compu-Serve, and Prodigy. Distribution lists using the popular LISTSERV technology were being created, including several that are still used regularly by ABA members. Cornell Law School’s Legal Information Institute (www.law.cornell.edu) began making primary legal sources available on-line in the early 1990s, later adding far more sources, commentary, and topical information.

But could anyone have predicted how technology would change over the subsequent 20 years? Were there trends during those early years of the publicly available Internet that pointed toward the legal technology that is now prevalent? What are today’s trends that portend how technology will be used in the practice of law 10 or even 20 years from now?

This editor certainly has no crystal ball. Nevertheless, this column will attempt to identify a few trends that seem to illustrate how technology may shape the law practice of the future, including some from the trusts and estates area. This editor hopes that the highlighted trends will provide insight that you can apply now and in the future to improve your law practice, to gain some additional flexibility (with the help of mobile devices), and to protect your clients, your firm, and your own information against increasing cybersecurity threats.

Approaching Artificial Intelligence: Will the Practice of Law Remain . . . the Practice of Law?

In the 1990s, some practitioners could see how the Internet would affect their law practices. In 2017, presumably every practitioner realizes that computerization and the continuing development of technology are changing how legal services are marketed, consumed, and delivered. Law students and younger practitioners understand that their law practices will look substantially different over the next decade or two.

Communications technologies have altered how lawyers interact with clients and colleagues. Researchers have concluded that younger generations of Americans tend to prefer social networking, such as Facebook and LinkedIn, and more instant communications generally made possible by short message service (SMS) protocols and proprietary systems such as Apple’s Messages (formerly iMessage), Facebook’s Messenger, and WhatsApp. Lawyers must adapt and learn how different clients and other professionals use the increasingly wide range of communications technologies. Such an understanding is critical in the area of trusts and estates law in which a lawyer often must communicate with two, three, or even four generations of a family or with other professionals spanning multiple generations.

Using document assembly systems to draft documents for those multi-generational (and other) clients will afford significant advantages to trust and estate lawyers as the world turns toward 2020 and beyond. Some trust and estate practitioners and vendors have developed client-facing applications, such as those running on the server-based version of HotDocs, to produce basic estate planning documents. These pioneering practitioners realized the value on which LegalZoom and other “software as a service” (SaaS) providers have capitalized.

Expert drafting systems, which this editor’s columns have reviewed many times, contain some of the coding and logic on which the next generation of legal technology will focus, namely, the use of predictive analytics and programming. These drafting systems attempt to anticipate your drafting choices and even boast safeguards based on the same concepts. For example, if you allow the beneficiary to remove the trustee of an irrevocable trust that provides tax-sensitive powers, an expert system might warn you or even require you to appoint an independent trustee as the successor trustee.

Supercomputers are taking these predictive advantages to a new level. Amazon is a prime example. It has built its own cloud-based supercomputer, combining clusters in excess of 30,000 central processing unit (CPU) cores around the world to power the Amazon Elastic Cloud, which numerous developers use as the dedicated or virtual server to run their own applications and store their own data. For its commercial purposes, Amazon tracks your every purchase and generally your browsing activity in order to suggest additional items that you might want to buy. Have you ever browsed Amazon for a certain item, such as a lawn chair, and then noticed that non-Amazon web sites display advertisements for . . . lawn chairs? Some commentators predict that supercomputers, which also run search engines and social networks, will usher in a golden age of technological advancements. Will that be true in the legal arena?

Several large law firms are working with IBM’s famous supercomputer known as Watson, which IBM advertises as “cognitive technology,” through ROSS Intelligence, a legal research platform based on Watson. Some commentators, such as reporter Dan Mangan, warn that “Lawyers could be the next profession to be replaced by computers.” Dan Mangan, Lawyers Could Be the Next Profession to Be Replaced by Computers, CNBC, February 17, 2017. They point to a supercomputer’s ability (1) to analyze volumes of data to anticipate how a particular judge might rule on certain litigation issues, including probate and trust litigation cases, (2) to review and prepare initial drafts of contracts and other agreements, and (3) to conduct due diligence to identify potential financial risks or misconduct within the target of a merger or acquisition.

Others counter that technology will only replace “mundane” legal jobs. They view these technological advances as tools that lawyers must learn to use. Besides, clients already place pressure on law firms to refrain from excessive use of associates, who must instead gain additional knowledge and much of this basic experience elsewhere. Law schools that understand the substantial advantages that clinical and technological training afford their law students will undoubtedly soar to the top of the various rankings, not to mention placing their graduates with law firms that use these technological tools to serve their clients more efficiently.

These changes might affect the legal industry in other positive ways. For example, if law firms can better predict the true value of fixed or hybrid fee arrangements, clients probably will not care whether associates or partners are working on their matters. If the desired outcome is accomplished, both the client and the lawyer should be pleased. Consequently, law firms can use this technology to price their services more effectively in addition to realizing efficiency gains in productivity. Law firms can even understand which clients pay on a timely basis, which matters are more profitable, and which matters are best structured as fixed or hybrid fee arrangements.

Other professions, such as accounting and medicine, probably are ahead of lawyers in the technology arena, particularly where “artificial intelligence” is concerned. This editor predicts that law firms will catch up to these other professions by employing and deploying these technologies. In-house legal departments already are demanding these changes and tracking productivity and other metrics. You always must remain current in your substantive area of law, but devoting more time to how you can use technology—even more advanced technology that approaches artificial intelligence—will yield dividends in the years to come.

The Mobile Revolution

Some people liked Steve Jobs, the founder of corporate giant Apple Inc., and others disliked him. Regardless of your affinity toward Mr. Jobs, he was a visionary, especially where mobile devices were concerned. He unveiled his overwhelmingly successful iPod in 2001 and followed about six years later with the revolutionary iPhone.

Most lawyers now use mobile devices—including laptops, tablets, and smartphones—more frequently than traditional desktop computers. The newest model of the iPhone, known as the iPhone 7 Plus, features a processor that rivals many desktop computers and a rear-facing camera that can shoot pictures superior to those of some digital single-lens reflex cameras (DSLRs). As discussed in recent columns, you can use these newer-generation smartphones for e-mail, calendaring, task management, word processing, Internet browsing, and much more. The cameras can function as capable scanners, especially when coupled with mobile applications designed to capture pages as black-and-white or color images that can be saved as images or in Adobe’s portable document format (PDF).

Historically, you could not easily edit documents, presentations, or spreadsheets on a mobile device. Some applications, including those developed by Apple and Microsoft, were relatively limited, and browsing through the particular file and editing was cumbersome. Nowadays, with smartphones that possess a 5.5-inch high definition (HD) screen, you can easily browse and type on a larger virtual keyboard. If you want to do more significant editing, you should consider a Bluetooth keyboard that looks and feels more like a traditional keyboard (and usually lasts for days or even weeks on a single charge or when using good rechargeable batteries, which typically perform far better in electronic devices than alkaline batteries).

Before long, however, typing likely will become a distant memory for many people. Dramatic advances in voice recognition software, in which major companies such as Apple and Google have invested (or acquired), currently allow you to dictate messages or documents, ask for directions, or request your favorite playlist. Both Apple (iOS) and Google (Android) include voice recognition in their mobile platforms. As an aside, this editor appreciates the voice recognition and other features of Google’s Chrome browser and Maps navigational application, both of which are available via Apple’s App Store. (If you need some comic relief, you might search for Steve Jobs’s 1981 Nightline interview, which featured early personal computers with basic “voice” capabilities and Steve Jobs’s predictions for computers and their use in people’s lives.)

Many firms offer mobile access for their time/billing systems and their practice (case) management systems. If you are evaluating these systems, you should inquire whether those in which you are interested operate on your mobile device(s) of choice. Some firms still use more traditional (local) server-based systems to run these systems, although many are migrating to SaaS or Internet-based systems (“in the cloud”). In either case, you should conduct considerable due diligence regarding service level agreements (SLAs) and security certifications and protocols, among other factors.

Continuing the communications theme above, mobile devices obviously allow real-time audio and video communication between clients and lawyers or others. The quality of videoconferencing applications, such as Apple’s FaceTime and Microsoft’s Skype, resembles professional systems. The video quality also has improved because of data transmission rates, whether you are using your cellular data (4G or long-term evolution (LTE) standard) or a traditional Internet connection (wireless fidelity (WiFi) protocol). As a result, you can communicate with a client or colleague virtually anywhere.

Most firms provide some type of mobile or remote access to files as well. Again, security concerns should be addressed, including policies and training to educate your team on hardware- and software-oriented risks. For example, using a free WiFi hotspot to access your client files generally is not a good idea unless you have a virtual private network (VPN) or some other hardware- or software-based security measures (or ideally both) in place.

In general, mobile devices and access provide advantages to lawyers and their clients. Lawyers can respond more readily to client inquiries, schedule meetings, and even enter their time from their smartphones or tablets. If you need to make extensive revisions to a document or presentation, you might want to use a Bluetooth keyboard with your smartphone or tablet or else use a full-fledged laptop. Both lawyers and clients will continue to expect and rely on mobile devices, with smartphones becoming even more powerful because of their dependence on supercomputers for centralized tasks such as voice recognition (powered by a central engine, whether you are referring to Amazon’s Alexa, Apple’s Siri, Google’s Assistant, or Microsoft’s Cortana).

The Dark Side: Wrestling with Technology Risks

As discussed in this column last year, you must take seriously the issues surrounding cybersecurity, both from the hardware and software perspectives. Prob. & Prop., July/Aug. 2016, at 47. Behaving a bit more “traditionally” is sometimes prudent here. For example, a hardwired Internet connection is safer overall than a WiFi connection, and having separate e-mail and file servers (or perhaps an outsourced e-mail service) is always a good idea. In addition, you should consider changing the location-based privacy settings in your smartphone because, based on the default settings, the developer of the applicable mobile platform (whether Apple, Google, or Microsoft) or the developer of a particular mobile application generally is tracking your every move and potentially using that information to suggest future purchases. The referenced column last year includes additional suggestions. This editor also would recommend numerous other resources, such as those available via the ABA’s Cybersecurity Legal Task Force.

On the brighter side, advances in technology are improving your ability to safeguard your clients’ and your firm’s (and your own) data. For example, Apple’s iPhone has featured biometric security—in the form of fingerprint identification—since the release of its iPhone 5s model in 2013. This technology was available years ago for laptops.

You can enable the “Find [your] iPhone” feature as well to track the location of your smartphone. Via Apple’s security features, you can track the locations of all of your Apple devices. In the event that your iPhone is lost or stolen, you can remotely wipe its data. Although this editor is unaware of comparable native features in Google’s Android platform, you can purchase mature applications that provide the same functionality. If you ever need to use the “nuclear” security measure of remotely erasing your smartphone’s data, the ever-present recommendation to back up your devices, whether locally or in the cloud (or both), could restore critical information contained in that lost or stolen device.

While most firms do not need retinal scanners at every door, e-mail cybersecurity is a significant concern as well. You should consider measures to identify e-mail messages that can lure a team member into an unsafe web site that gains control of the computer or your entire network. Common sense should help many to avoid these traps, but the wrongdoers are becoming more sophisticated.

For example, few contemporary malicious messages contain improper grammar or an impersonal message addressed to “Customer.” This editor recently received an e-mail from a well-known colleague that looked like a legitimate invoice but contained a malicious attachment; however, the return e-mail address was bogus, which is the level of detail that you must use when deciding whether to open such a message. Again, with common sense as your guide, pick up the reliable old technology known as the telephone and confirm that your colleague actually sent the message.

If your firm does not have a dedicated information technology (IT) team, you should consider engaging a reputable consultant to assist you. There are generally too many issues and risks to assess on your own. As Benjamin Franklin wisely said, “An ounce of prevention is worth a pound of cure.”

Conclusion

Computers and technology are fundamental aspects of any modern law practice. Indeed, trust and estate lawyers can employ communications technologies and drafting systems to improve efficiency and consistency. The advent of powerful mobile devices has transformed the practice of law in many ways, from managing your practice to editing files to communicating from anywhere. On balance, however, you must take precautions, both in terms of the security of your hardware and the software applications that you use to guard against Internet-based threats.

This editor hopes that these trends will help and inspire you to adapt to the advancing technologies. In this editor’s view, artificial intelligence never will replace human beings, but it probably will continue to disrupt traditional approaches to the practice of law. Use these changes to continue to elevate your practice. May the (legal) force(s) be with you. n