This article was originally published on the Centre of Legal Innovation website.
Lawyers are grappling to understand the impact rapidly emerging legal technologies are having on traditional legal expertise. We know tech is, and will have, an enormous impact – though it’s hard to imagine the extent of the changes.
McKinsey predicts that in the future 23% of a lawyer’s time may be automatable. Headlines featuring the achievements of early adopters also offer glimpses of where the legal profession might be headed:
- A law firm entirely staffed by AI enabled lawbots
- An online insurer delivering same day processing and payment of claims
- AI more accurate at predicting case outcomes than lawyers.
These statistics and predictions can be hard to reconcile with the daily experience of legal work, which is mostly still carried out using a phone, email and Word documents. So, how do you penetrate the alarming headlines to focus on what will equip you to flourish in a tech-enabled legal world? How do law firms ensure lawyers, who tend to be highly sceptical and change resistant, can thrive in this rapidly changing environment?
The impact of automation on legal work today
As a litigation lawyer who works in a completely virtual firm (but still using Outlook and Word) I am already benefiting from the efficiency and the flexibility that technology offers. I believe technology will augment the way lawyers work, to the benefit of their clients and their organisations. I believe technology will also make lawyers themselves happier.
It is generally agreed that automation will address the 4 D’s – work that is Dirty, Dull, Dangerous and Dear. In the legal context, tasks that automation can do faster and more accurately include:
- Mundane and repetitive form filling (for example, high-volume, low-value claims or contracts)
- Conveying information from Party A to Party B (for example, using real-time collaborative portals)
- Review of large volumes of data under time pressure (for example, discovery and due diligence)
- Analysis of many different sources of information to predict outcomes (for example, decided case outcomes or regulatory requirements).
A recent Discussion Paper, “Current State of Automated Legal Advice Tools”, lists automated legal advice tools in use as at April 2018. Some of the tools listed are currently limited to a specific geographic market (usually the US) or niche service. It’s hard to predict what it will take for these products to reach the Australian market. McKinsey estimates that, across all industries, 25% to 46% of Australian workplace activities could be automated by 2030.
Of course, not all useful technological advances involve AI and not all are pure legaltech. Five years ago, I could not have conducted litigation from a paperless remote office. I can do it now because of access to low cost software that provides:
- Access to all documents and templates for easy document creation in a cloud-based practice management system which I can access through a browser or an app
- Video conferencing for communicating with clients and team members
- E-discovery tools to review and quickly identify relevant material in large data sets
- Document collation tools so I can prepare large bundles of relevant documents
- The ability to securely transfer large volume files electronically
- Access to the court system via an online portal
- Legal research products which can update relevant authorities automatically
- Project management and collaboration tools for shared documents and projects
- Dictation tools designed for remote environments.
Situations that would have required a team a few years ago can be managed single-handedly. For example, after receiving a large tranche of emails late on a Friday afternoon two days before the deadline for discovery I used e-discovery to de-duplicate and narrow down the subset of documents needing review. The updated list was ready on Monday morning and my weekend was intact.
The impact of automation on legal work in the future
Some trends will dramatically change how lawyers work, whether in-house or in law firms or in alternative legal service providers.
1. New marketplaces
Technology is enabling increasingly diverse ways for prospective clients to access legal services – online, from on-demand in-house counsel, niche micro-practices and managed legal service providers.
2. Less run-of-the-mill tasks
Automated application of sophisticated rules to manage business as usual problems (probably in-house) will leave only the most complicated problems for lawyers to tackle. It will be increasingly important for lawyers to have excellent analysis and problem-solving skills. They will work collaboratively and creatively (with their own colleagues, with other professionals and with clients) to solve wicked problems.
3. Distributed projects
In an unbundled legal services market, successful lawyers will accurately scope legal service projects and assign components to the right provider (who may not be part of their firm or in-house team) determined by price, expertise and risk tolerance. Improved collaborative platforms will enable many different individuals or teams to share information and work seamlessly.
4. Flexible working
Using technology to work remotely enables lawyers to work alongside their clients. It can also be used to retain talent when caring responsibilities or health issues would have otherwise interfered with continuing employment. Managing a flexible or remote team is very different to the traditional law firm model but can deliver huge benefits for staff retention, engagement and morale. Avoiding the peak hour commute has made me much happier. Overtired and unhappy people often don’t have the emotional bandwidth to make changes, even to improve the way things are done.
Will traditional legal expertise still be valuable?
While life as a tech-enabled lawyer is going to be a lot different than life as a lawyer today, or a decade or two ago, traditional legal expertise may be more important than ever.
1. Earlier detection to avoid spot fires
Ongoing analysis of big data will enable organisations to monitor and detect problems earlier giving in-house counsel improved perspective on risk. Examples of the way this is already being done include:
- identifying a contract (in any inbox or desktop) and cataloguing what it says
- reviewing contracts applying standard rules and identifying exceptions requiring escalation
- checking emails for risk areas including phrases suggesting a developing contractual dispute, flesh tone images or unusually high traffic between staff members suggestive of an intimate relationship.
While organisations will understand their own business risk, law firms can draw on their broad experience of risk and compliance issues across an industry to help their clients design rules about appropriate monitoring of employee behaviour, what behaviour signals risk and how it should be responded to.
Although effective risk monitoring can reduce the need for legal services, those fires which cannot be put out early are likely to be the most complicated problems requiring specialist legal expertise. Involving a lawyer early in contentious disputes (as opposed to a general business advisor) will attract client legal privilege and shield the outcome of the investigation into what occurred.
2. Judgment informed by data
The results so far suggest that given a good data set, computers may be less susceptible to unconscious bias that can throw off even very experienced lawyers. Computers also don’t get tired, bored or second guess themselves. There are limits on how well automated decision makers can deal with complexity, uncertainty and value based decisions. However, by taking advantage of automated processing power, lawyers can be better informed on the inputs they need to consider when asked to predict outcomes.
Data analysis could also reduce time-consuming ego-jostling over who has the better drafted clause. Data analysis of similar contracts in the relevant market will show whether a term is standard in the market or not.
3. Solving new problems
Automation and globalisation are creating new problems about data privacy, scrutiny of algorithm-based decision making, allocation of liability for automated services, commercialisation of personal data and cross border issues. The legal profession has expertise in balancing social and ethical objectives against commercial objectives which will be useful for setting rules in uncharted legal territory.
4. Collaborative Negotiation
Most prolonged contract negotiations and disputes are due to a lack of trust, which can be exacerbated by information asymmetry. A buyer who doesn’t trust that the vendor has disclosed everything will seek onerous terms to protect against that risk. Smart contracts and other tools that make useful objective information accessible on a real-time basis can help to reduce uncertainty and distrust. They can potentially simplify the process because both parties are working on the same information. As more people can negotiate constructively without lawyers it leaves only the most intractable negotiations for lawyers to resolve.
The impact of automation of legal services is still unfolding. Excellent technical expertise and problem-solving skills will be increasingly important for solving complex problems in an increasing automated world. Lawyers will need to address new areas of controversy and risk. The tech enabled lawyer is going to need all the augmentation that improved technology can give.
I find the prospect of having better technology to help me concentrate on the best bits of providing legal service an exciting one. I didn’t go to law school because I wanted to spend months reviewing Dirty archive boxes of Dull documents which (if they were stored on a spike clip are also Dangerous) and then have the client complain about how Dear it was.
It is an exciting time to be a lawyer. The opportunity is here to use technology to help you to do more great work. Start finding your way.
About the Author
Fiona McLay is an experienced commercial litigation lawyer. She helps business co-owners navigate conflict between them in “business break ups” without destroying the value of the business. Fiona is Special Counsel at Rankin & Co Business Lawyers, a paperless and virtual law firm, where she can use technology to work smarter – and with a reduced risk of paper cuts. You can follow her @Fionamclay or on Linkedin.