chevron-down Created with Sketch Beta.
October 2018 | Technology Translators

The art and science of lawyering: Law 3.0

by David Carns

Most professional services require a mixture of art and science. Professions like medicine, law, architecture and engineering demand much more of practitioners than applying information learned by rote. That’s where factors like experience, judgment and creativity come into play. But when you analyze professional services closely, it’s clear they are more science than art. To stay competitive, law firms and legal departments of the future will have to make much more extensive use of technology and adopt repeatable business practices at every level of their operations to leverage the science of their profession more effectively.

This is largely a good thing. Incorporating appropriate technological innovations into legal workflows will result in greater efficiency, better cost controls and more consistent results across firms and law departments. Applying advanced technology to legal work to increase efficiency and consistency at a lower cost while at the same time enabling more insightful and creative work by experienced professionals is the implementation of Law 3.0.

Law 3.0 means using technology and business processes effectively in order to run a scalable and efficient law department or firm. Legal organizations have a well-deserved reputation for using technology and implementing business processes ineffectively at scale. Why? It’s not because lawyers are technologically inept or indifferent to the science of their profession. Instead, the inefficiency can be traced to the nature of partner-focused business entities. In a partnership, all partners have a stake in the business decisions their organizations make every day, and individual partners often leverage their partner status to influence those decisions to benefit their personal work style or preferences. This makes the standardization of business rules difficult and therefore inefficient.

In today’s hypercompetitive legal marketplace, this dynamic will have to change. Legal technology and service providers have the opportunity to play an instrumental role as we complete the transition to Law 3.0. Many eDiscovery platforms, for example, have already incorporated into their technology stack important innovations like cloud computing, true software-as-a-service (SaaS), military-grade security and – perhaps most significantly – artificial intelligence (AI), including machine learning, data analytics, natural language processing, deep learning, data visualization and more. AI technologies are particularly important in today’s data-infused business environment because they can sift through very large volumes of unstructured data to classify it, identify patterns and reveal meaningful and actionable insights that are not attainable by any other means.

The adoption and integration of such technologies are already playing an essential role for law departments and firms that need better ways to securely host large volumes of data, quickly cull, filter and classify it, de-NIST and de-duplicate it and identify the potentially responsive material. This is the essence of e-discovery in the 21st century, and much of this work can be done today with sufficient speed and accuracy to reduce costs and enable quality legal work.

Some providers already do many or all of these things, but that’s not enough to satisfy the requirements and fulfill the potential of Law 3.0. Today’s marketplace demands that we look at technology platforms in a different way. The Law 3.0 technology platform may well have its roots in e-discovery – because that is an area in which the power of transformative technologies like AI is currently having the greatest initial impact – but the platform will also need to be sufficiently flexible, scalable and configurable so that firms and legal departments can build their own custom applications and workflows on top of existing infrastructure. This will allow them to dramatically streamline business processes that encompass just about everything a firm or law department does where data is involved.

These processes include the many workflows involved in litigation, certainly, but also billing and budgeting, monitoring business performance, pitching business to potential clients, performing marketing and business development functions and much more; in short, the full range of operational activities that firms and law departments engage in every day. The possible examples are virtually unlimited, but let me provide just a few to give you a glimpse of the transformative potential of Law 3.0’s focus on the integration of advanced technologies.

Law 3.0 will mean that law firms can do a much better job of eliminating duplicative processes. For example, the tagging of documents as responsive or privileged in one matter for could be automatically applied to a subsequent case or large set of related cases involving the same client and overlapping data sets. Similarly, the application of analytics to internal databases could enable efficient identification and reuse of attorney work product – notes, briefs, persuasive language, etc. – for similar cases. And that’s not all: The integration of technologies will also mean that a firm will have the means to precisely quantify the time and dollar savings to clients when they deploy these tactics.

Prescriptive analytics in today’s advanced AI make it possible to identify important themes and patterns in collected data and push unreviewed evidence with high potential impact to attorneys well before discovery is complete. This makes for much more effective ECA and enables decision-making before spending large amounts and time on discovery. Developing this type of technology with a Law 3.0 world makes it possible for proactive document review wherein data could be analyzed to identify vulnerabilities to potential actions that haven’t yet surfaced. For example, performing document review for one matter may initiate and accelerate an internal investigation of an emerging matter. Advanced AI can blur the lines between reactively performing a document review and proactively connecting the dots found within the data.

A legal operational dashboard that was originally developed as a means of monitoring the progress of large e-discovery projects will be used by organizations to identify patterns that reveal operational bottlenecks where inefficiencies are having a disproportionate impact on the bottom line. That same dashboard could be used by outside counsel to quickly and easily accomplish tasks that they habitually shrink from, like creating customized reports.

AI will be deployed to understand broader trends in the legal marketplace, such as “hot” areas of litigation or causes of action. Such information might be useful for risk mitigation and business strategy in corporate law departments and could inform business development initiatives in law firms. Firms could also use the information to alert current clients to new areas of potential opportunity or risk.

A Law 3.0 technology stack also enables a much more granular approach to billing and pricing. When you have more insight into the specific factors that affect the cost of review, for instance, you can more confidently offer alternative fee arrangements that align with that knowledge, and you can provide clients with a much higher level of accountability for the cost of your services. Many legal processes are difficult to propose today with fixed fees or not-to-exceed fees for fear of missing variables needed to account for the costs involved.

Law 3.0 will enable legal teams to codify their workflows in an easily configurable, scalable platform that can be modified and adapted over time. The process of technology adoption will be iterative and the Law 3.0 technology stack is designed specifically to facilitate an iterative process. Legal organizations will start by digitally transforming relatively straightforward legal processes and then iterate as these processes mature and as the organizations choose to tackle more complicated workflows. The result will be a constant and steady maturation of legal and business processes for legal organizations.

Finally, while the Law 3.0 technology stack enables the digital transformation of real business processes and workflows, it does not replace those processes and workflows. It enhances them. It gives legal practitioners a big boost in speed and efficiency, but it will never replace the people who are practicing law. The application of scientific and technical methodologies to the legal profession was never about replacing lawyers or reducing legal work to an algorithm. Instead, its ultimate purpose is to allow those who bring true professional artistry and creativity to their work to flourish and distinguish themselves. That is the promise of Law 3.0, and the future of the practice of law.

David Carns is the chief strategy officer of Casepoint LLC. He joined Casepoint as a director of client services in 2010, rose through the ranks to executive vice president until his most recent promotion in 2017. In addition to being a recovering attorney, Carns is passionate about technology and its advancements. Prior to joining Casepoint, his positions included director of practice technology at a global law firm; technology consultant and director of technology. Carns holds a J.D. from The John Marshall Law School and a BA in philosophy from DePauw University.

This article originally appeared in the August 2018 issue of Law Technology Today.

The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.