By Nina Cunningham
Can computers practice law? Many are inclined to say yes when using them affects us in so many ways. When scanning the pages of LJN’sLegal Tech Newsletter, we learn a good deal about the use of computers in the practice of law, but what I am really asking here is how far can — or will — we go to automate dispute resolution?
Everyone associated with legal technology supports the use of computers in managing the practice of law. Years ago, many of the tasks easily accomplished today with computer assistance could not be accomplished at all. A simple time-delimited search for a case by category in a single court would have been unthinkable without a system like Lexis.
As technology evolves, computerization will be used increasingly to support legal practice and it will become more mobile as well. Offices are unnecessary for many except to promote camaraderie. Camaraderie is critical even as people annoy each other more; it is so much easier to rely on electronics for interaction. As we increase our dependency on devices, we actually have more disputes and misunderstanding. We do things and track things with computers just because we can, and so create entire categories of additional legal work.
Sentiments tip differently when it comes to resolving problems through algorithms alone, but certainly the view is consistent that practice today would be impossible without computer assistance. All lawyers have to be IT competent and many have undergraduate degrees in IT. This fosters doing things we once could never do.
What Is Practicing Law?
In these pages, we learn a great deal about data security, e-discovery and case management tasks, but the topic of computers as task masters is different from computers as counselors and advisors. It could be provocative. It not merely raises questions about what it means to practice law, but how we value legal work product and measure success in resolving legal disputes. These are qualitative questions that suggest that law practice has changed dramatically in four decades of law office automation. But what would be the consequences if we were to obliterate the need for customized advice? What else does the practitioner have to sell? The personal advice of a knowledgeable and thoughtful lawyer is indispensable as the unique legal work product. Or is it?
I am not a lawyer, but like many of our readers, I have spent a lifetime working for and with them. They learn to view the world in a particular way and approach problem-solving competitively. Depending on subject matter expertise, they seem intentionally to seek out the problems dwelling in every sphere of human conduct. Computers actually help to do this better. Historically, wise human beings have been called upon to solve problems created by other human beings; now they are called upon to solve problems created by technology.
Regardless of the focus of practice, solving problems involves recordkeeping, the quintessential computer activity. The paperwork usually involves forms to fill out, templates to manage, and boilerplate to apply. And so we have computers to help us out. We can cut and paste and reuse documents to our heart’s content, avoiding of course the violation of someone’s proprietary words or space. The Internet has aided formulaic practice. More is available to copy, cut and paste.
In addition to forms, formats, formulas, templates and boilerplate, computers have developed highly focused and comprehensive approaches to the body of law with online legal research systems. A multitude of legal publishers have been consolidated online and few new entries to the field have been successful in withstanding takeover. The price increases, but most of the time, it is all the better for both the lawyer and the vendor.
In the last four decades we have awakened and become accustomed to using legal research tools online. Computers have mastered editing resources and tracking changes. No longer attached to a desk or large physical devices, the lawyer has new-found freedom to travel and remain capable of managing multiple clients, projects or cases. Tracking expenses is easier, as is working with court documents and managing a schedule. Cybersecurity software consultants provide means of authenticating users regardless of where they are and what devices they are using.
All of these time- and labor-saving resources are wonderful. They even manage to create new problems to solve. How many more clients can be served or cases filed when a few word changes and the enter key is all one needs? What could be better for the next generation of lawyers? Entire categories of legal practice have been made possible by the use and misuse of computer expertise, and a lot of it evolving out of new legislation, whether from cybercrime, Internet fraud, forensic finance, remote workforce management, or privacy. The expansion of information is fascinating; often mind-numbing, and-time consuming in different ways than in the past.
Limitations from Computers
Administrative task management is the positive side of what computers can do. They reduce significantly the work of lawyers, much of which is not value-added and for which clients hate to pay. But there is a downside many never consider. Increased regulation, along with prescribed penalties and mandatory sentencing, have limited the maneuvering room of attorneys. As in medicine, so much administrative management also reduces the lawyer’s ability to provide personal service, to address human consequences, and to raise the standard of the professional to client relationship. While many will see the explosion in regulation as a positive deterrent to corruption and crime of all kinds, we also have to ask how much professionalism is lost if we have no room to attend to individual differences in problems and circumstances and merely treat everything and everyone as part of a category or the system in which they are named.
Entire groups of lawyers are employed to scan networks for criminal intent, as thousands more create scams for useless devices. Computers scan documents for keywords for litigation or judge competence in job searches. Looking for the worst in your fellow man is not an appealing occupation for a trained professional, but certainly it is great computer work. Among the scoping activities are the patent trolls and other individuals and systems seeking opportunities to plunder and sue. This increases the work for the large number of lawyers we have schooled since 1973, when Lexis was launched into
the marketplace. Today the practicing lawyer would not be able to function without a mobile phone or computer. Many may be able to function perfectly well with just a phone and tablet device. But the best lawyers, like the best in business and accounting, combine the features of physician and clairvoyant, visionary and engineer. We have high hopes for computerization and should take advantage of all they have and may yet have to offer for advancing and rationalizing legal practice in a complex age. At present, they are highly efficient assistants, capable of filing a case and tracking its progress in the courts. Computers can control the case management process and reduce or eliminate missed filing dates (and excuses for missing them). Of course, we still have the garbage in or garbage out rule and the basics of human error. This is a great benefit to online research as editing is made available automatically. The resources will be less likely to have errors than the searcher can introduce by asking the wrong question of the wrong resource for the wrong dates or statute. We want to erase human error and its messiness, so we target individuality and dispose of an important part of legal practice as a result.
Practicing law is an art. Computer assistance is a science, or at least leans that way. Under the right circumstances, science serves the art. I will not say computers will never read the minds of clients and lawyers or create the remedy previously unheard of that takes a case to a favorable conclusion for one party or another. But I do think it is
more likely that people will become more like computers or robots than it is for machines to become like real human beings. Computers will never be as messy as the unpredictable human being. They can track the billable hour and charge for units of time, but the closing argument still results from a creative process that is mixed with some knowledge of the law, human experience, and a sense of certainty.
If nothing else justifies computer assistance, the increased competitive environment requires it. And so does the regulatory environment. Computers make it possible to get alerts on new areas of legislative action, whether changes to a law or new laws altogether. But computers cannot as yet rationalize the consequences of two competing pieces of legislation, not without the query of a good lawyer.
I have long been in favor of a closer relationship between IT and the practicing lawyer. It is not uncommon today to find lawyers with IT degrees. But the specialties themselves often compete. Part of the challenge to today’s practitioner is working out this balance. There is a lot of information available and ever new applications to make it easy to master both. But if a lawyer can become skilled at using the essential services that align useful technology with his or her practice, working life can become visibly better. It is always possible for the litigator to bring a cause of action to change or reverse legislation or make hay out of a fraudulent lawsuit. It is much easier to do this with the assistance of automation that can catch a thief in the act, such as a security camera or e-mail trail.
Be careful what you wish for unless you manage high level IT. The opportunity for problem solving is infinite. The marketplace for legal services may be a little different. As wisdom is replaced by automated resources and the resources can be bought and sold, the test of whether computers can practice will depend on the incentive parties have to resolve their own disputes by gaining access to the resources electronically and eliminating the middle man.
Nina Cunningham, Ph.D., is an affiliate of Altman Weil, Inc., and President and CEO, Quidlibet Research Inc., a global strategic planning and cost management firm founded in 1983.