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The Future of Law (15): Law By Algorithm

Google customizes the news you see. Amazon suggests if you like this, you might like that. Your cellphone carrier, bank, and pretty much everybody else you deal with on a regular basis gives you the option to customize your own account page.

  • The new commoditized/democratized purveyors of legal products will also give this option to consumers. The days of “mylaw.com” are upon us.

Welcome to law by algorithm:  artificial Intelligence at work, serving up the customized law you need personally and for your work and business. And you don’t have to go looking for it — it will come to you automatically, based on your preference settings and past choices.

  • Law by algorithm will enable consumers to self-diagnose legal issues and access legal “remedies” for what ails them.
  • We’ll also see online diagnostic networks geared for legal professionals only — similar to those that already exist for physicians.

Think WebMD. And yes, we will see WebJD — someone is already working on it. Also check out A2J Author, sponsored by the Center for Access to Justice & Technology, a project of the Chicago-Kent School of Law. The Center’s purpose is “to make justice more accessible to the public by promoting the use of the Internet in the teaching, practice, and public access to the law.” And for a thoughtful introduction to online legal diagnosis, see this blog post by Stephanie Kimbro, MA, JD, a Fellow at Stanford Law School Center on the Legal Profession and Co-Director of the Center for Law Practice Technology. The post was written four years ago — an eternity in the tech world — but it’s still worth a read.

  • Law by algorithm will take us all the way to its extreme expression: to open source law.

For an introduction to this topic, see this Forbes review of open source as applied to the law. It was written in 2008 — again, ancient techno history. Seven years later, open source law is no longer mere speculation; we are already living in the Outer Limits (remember that show?) of this future legal reality.

We aren’t talking here about the law concerning open source software (like this and this). We’re talking about open source practice applied to the law itself. In his book The End of Lawyers, Richard Susskind describes open source law as sustained, online, mass collaboration re: the application and creation of the law, where content is user-generated, derived from public sources such as judicial and regulatory filings. Open source users engage with this data, extracting, analyzing, applying, and creating the law they need.

Thus open source law takes the creation of the law out of the exclusive hands of lawyers and the legal system as we have known it, and instead puts it into the hands of end-users, using artificial intelligence algorithms that incorporate the best of “thinking like a lawyer.” (Without, we might add, the risk that the lawyer doing the thinking might be suffering from stress-related cognitive impairment.)

Which takes us back to the topic we looked at last time:  the place of human legal experts in the future of law. We’ll look at that topic again next time, with a new twist.

[A few posts back, I noted legal futurist Richard Susskind’s opinion that commoditization would improve access to legal advice in the future, in what he termed the “latent legal market.” Would that include clients of moderate means? I think so. As an example, consider this resource I became aware of last week re: creating a virtual office to serve this market — yet another example of how technology is creating the new world of law.]

The Future of Law (14): The New Legal Experts Cont’d.

In the spirit of the developments we’ve been considering in this series, check out these technological innovations changing trial practice.

The world of commoditized law dispenses legal advice not by lawyers in individual consultations with clients, but instead through IT distribution channels, to a wider market of similarly situated consumers. Legal content is subsumed into the greater context in which the advice is pertinent, so that the consumer (no longer a “client”) gets comprehensive, multidisciplinary advice in one stop shopping, without the need to separately consult a lawyer and other relevant professionals.

The creators of these products must be able to see the entire context in which the legal advice is needed, and then break down the legal aspects into separately implementable steps. In his book Tomorrow’s Lawyers, law futurist Richard Susskind calls this process “decomposing” the law, and provides examples of decomposing litigation and business transactions. The idea is to unbundle the law into its separately applicable components, combine the ones that have similar dynamics, and put them back together into steps that can be taken to completion after collecting relevant data.

Expert lawyers do this already, dispensing advice in the context of one-to-one client relationships. The legal experts of the future will do this on a wider scale, creating more broadly applicable IT products embedded with legal advice.

  • The creators of this new kind of legal advice will be much in demand in the new world of law.
  • The means of entry into the professional will be altered to admit them into practice.
  • As we saw last time, they will follow a career development path not encumbered by the former “training” model which in truth was driven by law firm economics.
  • To help them serve the burgeoning legal commodities market and move more quickly to expert status, legal training in law school and law practice will increasingly promote systems thinking.

As for the law itself:

  • These new experts will have a more direct and substantial impact on shaping the law.
  • They will shape it around from the end-user’s perspective.
  • As a result, the law will be reorganized into practicable modules, replacing historical knowledge/content areas such tort, contracts, real property, etc.

As the future’s expert lawyers conduct their decomposing, embedding, and reorganizing, they will need to deal with an unprecedented challenge:  the sheer bulk of the law. Technology’s speed and storage capacity have resulted in a massive proliferation in the volume and complexity of the law. Although lawyers have access to sophisticated digital repositories of all this law, they typically use analog means to assimilate it.

  • The analog processing of legal developments — i.e., by their assimilation into individual lawyer’s brains via CLE and similar means — is a holdover from the law’s analog past that will end in the future.
  • What will replace it? Law by Algorithm. We’ll look at that next time.

Do these developments signal the end of legal solutions expertly-tailored to individual client needs? The surprising answer is, not at all. In fact, just the opposite:  the law of the future will be more personally-tailored than it is now.

Further, when we agree with Wikipedia co-founder Larry Sanger that the world will still need experts for the foreseeable future, we may actually mean something beyond experts and expertise:  we may be talking instead about a new kind of legal mastery.

  • The future world of law will feature both experts and masters, and we’ll need them both.

We’ll be looking at these issues as well. Stay tuned!

The Future of Law (13): The New Legal Experts

“All professions are conspiracies against the laity.”
George Bernard Shaw

But what if, Mr. Shaw, consumers could get timely, pertinent, accessible, and affordable legal expertise indirectly — because it is incorporated into democratized and commoditized legal service offerings — without the need to confer with a lawyer? Would that end your “conspiracy”?

Good questions.

We saw earlier in this series that one of the Wikipedia founders has backtracked on the radical democratization of knowledge, admitting instead the ongoing need for experts:

“As wonderful as it might be that the hegemony of professionals over knowledge is lessening, there is a downside: our grasp of and respect for reliable information suffers.  With the rejection of professionalism has come a widespread rejection of expertise—of the proper role in society of people who make it their life’s work to know stuff.  This, I maintain, is not a positive development”

From Larry Sanger’s Citizendium manifesto entitled Who Says We Know:  On the New Politics of Knowledge.

  • It’s not hard to buy Sanger’s position and predict there will still be a need for legal experts in the future.

But what will their expertise be, exactly? And how will they obtain it? More good questions. We’ll take them in reverse order.

Until now, conventional wisdom has been that new lawyers should develop expertise Malcolm Gladwell-style, logging their ten thousand hours in a career path legal futurist Richard Susskind described this way in his 2008 book The Future of Law:

“Traditionally, lawyers have developed their skills and evolved to the status of specialist by apprenticeship and then ongoing exposure to problems of increasing complexity”

Susskind also foresaw that legal commoditization could end this career path:

“Given that this book suggests IT would eliminate, streamline, and proceduralize increasing amounts of conventional legal work, does this not eliminate the very training ground upon which all lawyers cut their teeth and rely upon in progressing to specialist positions?”

It was a rhetorical question. The answer was yes, of course, and five years later, Susskind’s book Tomorrow’s Lawyers cited multiple lawyer surveys revealing what most of us already knew:  this practice was flawed anyway, since it takes only a few of those ten thousand hours to learn due diligence, discovery, and the other kinds of work that pass for lawyer training. No, it seems that the real reason for this ‘”training” was law firm economics:

“[W]e should not confuse training with exploitation. It is disingenuous to suggest that young lawyers are asked to undertake routine legal work largely as a way to them learning their trade. Rather, this delegation has been one mainstay in supporting the pyramidic model of profitability that has enjoyed such unchallenged success until recently.”

  • Regardless what we think about this path to expertise, it will end as “routine legal work” is increasingly commoditized.
  • The new legal experts will be lawyers who are proficient with the kind of systems thinking that commoditization requires.

Commoditized law requires people who can understand the larger context in which legal knowledge will be used, and then package it into self-executing, self-correcting, automated sequences to be used not just for a single client but over and again. You don’t learn this skill from ten thousand hours of legal grunt work. If you either have the cognitive knack or can learn it, you’ll be one of tomorrow’s legal experts.

More next time.

A collection of Kevin Rhodes’ Legal Connection blog posts for the past three years is now available in print from Amazon. Also available from Amazon as a Kindle, and as an ebook from Barnes & Noble, iTunes, Smashwords, and Scribd.

The Future of Law (Part 12): Commoditizing the Law (Cont’d.)

If you want to further explore the topics we’ve been considering in this series, here are couple wonderful resources:

Check out 100 Innovations In Law, the ABA Journal’s cover story, just published yesterday. The article begins this way:

“People tend to think of the law as slow-moving, immutable and disconnected from daily life. And lawyers have a reputation of being cautious and resistant to change. But in fact, when technology or sweeping changes are necessary to better serve their clients, improve access to justice or simply make their work easier, lawyers can be pretty progressive.

“While fundamental change can take decades, in the past 100 years legal professionals have eagerly adopted technological innovations, streamlined the law and launched new practice areas that were unimaginable just a century ago. The innovation of written laws dates to 1750 B.C., but many of the most important innovations in the law have come in just the last century. Here is a list of 100 technological, intellectual and practical innovations that have fundamentally changed the way law is practiced.”

For a futurist perspective on the law spanning the past twenty years, Richard Susskind is the mother lode. I’m chagrined to be just discovering him and his work after all these weeks of making my own predictions, but we’ll be hearing more from him. He writes mostly about law practice — less so about the law itself. The link takes you to his website, where all his books are listed. I recommend all of them, although there is some repetition as time goes on.

And now, back to our consideration of the commoditization of the law that we began last time.

In his 2008 book The End of Lawyers, Richard Susskind predicts that, as the law is increasingly presorted and prepackaged for delivery in the commoditized marketplace, the awareness of what is actually legal advice will fade, dissolved into more comprehensive packages of multidisciplinary service and product offerings:

“[T]he compartmentalization of information into legal and other such conventional categories will itself fade away in time. The information products and services available… will be packaged and oriented towards providing practical and directly implementable guidance with little or no distinction between the disciplines from which the final information product has been derived. A user who has a problem which traditionally may have needed, say, accounting and banking expertise as well as legal, may consult a service which provides a synthesis of these three sources of guidance, but there will be no particular need or benefit in the overall guidance being broken down into units which reflect their original structure.”

A key result of this shift in advisory practice will be a narrower field of vision concerning what the law actually is or isn’t:

  • The law in its commoditized form will increasingly be regarded as the law itself, as opposed to what the law theoretically might be. Therefore law changes will occur within this narrower field, not the wider. more theoretical field of possibilities.
  • As a result, legal advice will narrow in scope as well. Historical lawyer-like answers such as “it depends” and “on the one hand this vs. on the other hand that” will be less valued, and legal complexity will fade as a commonly-accepted paradigm.

The lack of distinction between what is legal vs. non-legal advice will have some interesting side effects on law practice, such as:

  • As the legal profession loses its monopolistic grip on legal advice, policing the unlicensed practice of law will become increasingly difficult. As a result, lawyers and legal processes will lose their exclusive franchise as the creators, interpreters, and changers of the law, opening its content to wider influences.
  • Informal collaboration among allied disciplines and practitioners will be increasingly replaced with comprehensive, integrated, ready-to-implement information product offerings. As a result, the current practices of inter-disciplinary networking and referrals will become less important for law practice and career building.

Further, these developments will create a need for a new kind of legal expertise. We’ll talk about that next time.

A collection of Kevin Rhodes’ Legal Connection blog posts for the past three years is now available in print from Amazon. Also available as a Kindle. A promotional free download is available for a limited time from Smashwords, Barnes & Noble, iTunes, and Scribd.

The Future of Law (Part 11): Commoditizing the Law

“A lawyer’s time and advice are his stock in trade.”
Abraham Lincoln

 Who’d have thought we’d see the day when Honest Abe would steer us wrong?

The other day at the gym one of the TV’s ran an ad for LegalZoom’s business startup services. They’ll set up your business entity, protect your IP, handle contracts, take care of your estate planning, and generally make it possible for the smiling business owner on their website to declare, “I’m making money doing what I love” — which presumably doesn’t include visiting a lawyer.

Welcome to the commoditization of legal services, where lawyers’ time and advice aren’t what’s for sale. We’re not just talking about legal kiosks at Walmart; commoditization is happening on the high end of legal services, too. Click here for a more thorough look.

  • It’s easy to predict we’ll see much more of this.

Commoditization shifts the focus of legal consultation from the one to the many:  lawyers don’t advise individual clients based on that client’s circumstances; instead, they presort legal information which is relevant most of the time and package it into immediately useable form. In his book The Future of Law, law futurist Richard Susskind calls this new kind of lawyer an “engineer of legal information”:

“What, then, might the lawyer’s role be as an engineer of legal information? The main task… will be that of analyst–it will be for the lawyers, with their unparalleled knowledge of the legal system, to interpret and repackage the formal sources of law (legislation and case law) and articulate it in structured format suitable for implementation as part of a legal information service.

“As legal service becomes a form of information service, and lawyers package their knowledge and experience as information services designed for direct consultation by non-lawyers, the work product of individual lawyers will no longer be devoted only to one case and to one client. Instead, the legal information will be reusable and for that purpose cast in a form well suited to repeated consultation.”

The impact of commoditization on the law will be as follows:

  • The marketplace consensus of what is relevant for the many, as embedded in systems-based legal products, will increasingly be regarded as the law itself.

Susskind describes this new kind of law as follows:

“[Commoditization] has extremely profound implications for the law. It is possible, for example, that the information which will be accessible on the global highway will guide our social, domestic, and working lives more directly than the primary sources (legislation and case law) themselves. In a sense, this legal guidance itself may come to be regarded as the law itself and not just a representation of it. This may indeed become the prime illustration of what the legal sociologist Eugen Ehrlich, earlier this century, called the “living law” — the law which actually reflects and conditions behaviour in society.”

Historical notions of the attorney-client relationship recoil at commoditization, but it is all bad? Maybe not. Susskind describes one key benefit:  greater access to legal advice:

“The number of [users of commoditized legal information] will be vastly greater than the number of conventional clients of today; and the frequency with which these legal information services will be consulted will greatly outstrip the frequency of consultations with lawyers today. The difference will lie in the emergence and realization of the latent legal market, as innumerable situations in domestic and business life are enlightened by the law when this would or could not have happened in the past.”
(Emphasis in original.)

More on legal commoditization next time.

A collection of my Legal Connection blog posts for the past three years is now available in print from Amazon. Also available as a Kindle. A promotional free download is also available from Smashwords, Barnes & Noble, iTunes, and Scribd.  

The Future of Law (Part Ten): Mindfulness Doesn’t Mean Wimpy Lawyers

Mindfulness is another trend driving change in the law. Here’s DU Law professor Debra Austin’s definition from her Killing Them Softly law review article:

“[M]indfulness is attention without labels, ideas, thoughts, or opinions.  Mindfulness means “being fully aware of something” and paying attention to the moment, with acceptance and without judgment or resistance.  It requires “emotion-introspection rather than cognitive self-reflection,” and specifically does not involve the analysis of thoughts or feelings.   Mindfulness is a form of self-understanding involving self-awareness rather than thinking.”

My CLE workshops don’t talk about or teach mindfulness, but they do require comparable reflection and self-awareness. Occasionally someone worries out loud that too much of this kind of thing will make you lose your edge, become less zealous as an advocate.

In other words, mindful lawyers are wimps.

I don’t know about you, but the most mindful people I know are rarely comfortable to be around. Penetrating, insightful, honest, no-nonsense, yes. Laid back and careless, no. The “mindfulness is for wimps” assessment no doubt comes from the Legal Borg, which has its own issues with fostering cognitively- or chemically-impaired lawyer brains, and never mind that there’s plenty of research and experience out there to support the notion that mindfulness provides a competitive advantage.

Judging from the strength of the mindfulness trend, this is another area in which the Legal Borg is losing its grip on the legal profession’s cultural ethos. An ABA Journal article last year announced that Mindfulness in Law Practice is Going Mainstream. As evidence of that, check out these resources:

Mindfulness in Law:  Articles, books, websites, exercises, with categories for bar associations, law schools, the judiciary, and lawyer groups.

The Mindful Lawyer:  More programs, resources, events, and articles, collected by lawyer and educator Scott Rogers, founder and director of the Institute for Mindfulness Studies, the University of Miami School of Law.

How will the mindfulness trend change the law?

  • We will see the emergence of new “best practices” that address and reverse areas of chronic dissatisfaction with the law among both lawyers and clients. For example, toxic stress and intentional destruction — both uncivil behavior toward other lawyers, and self-destructive lawyer responses to stress — will simply no longer be tolerated in the legal profession or the legal marketplace.
  • In their place, mindfulness practice will foster a new kind of “thinking like a lawyer” that will create new laws and legal procedures characterized by the kinds of benefits mindfulness produces in the individuals who practice it — e.g., decisiveness, clear thinking, intolerance for “brain noise” (drama, distraction, histrionics), and an uncanny awareness of invisible factors driving behavior.
  • As the law takes on the characteristics of mindfulness practice, the result will be more self-appraising, self-guiding, and self-correcting pathways to legal end results. The result will be more efficient and satisfying legal options and outcomes.
  • A new equity system — maybe formal, certainly informal — will arise in which the process of getting to results through informed collaboration will be valued, encouraged, and enforced.

Next in our excursion into futurology, we’ll look at the increasing polarization of three divergent pathways in legal practice and the law:  commoditizing, expertise, and mastery.

The Future of Law (Part Nine): Hacking the Law

Hackers used to be known by the color of their hats:  black, white, and gray. There were good guys, bad guys, and in-between guys. Nowadays, hacking is the new caché in the self-improvement culture. Self-hacking is the ultimate DIY — it’s how you step up, take responsibility, get it done.

Remember DU Law professor Debra Austin from the Killing Them Softly series? Here’s her advice re: neural self-hacking for stressed-out lawyers. Or check out this video on neural self hacking, Google style.  And how about this conference in London last summer on The Future of Self-Hacking that asked:

“What are the best methods for “hacking” improvements on ourselves? What do recent insights from science and technology have to say about self-development? What methods are likely to become more widespread in the not-too-distant future?”

At that conference, an all-star group of presenters talked about:

  • Smart methods to improve our consciousness, memory, and creativity
  • Meditation as self-engineering
  • Diet, drugs, and supplements – impacts on fitness and performance
  • Actions based on self-measurement (QS: quantified self)
  • Best insights into goal-setting, affirmations, etc
  • Risks and opportunities in the frontier lands of DIY brain-hacking and mind-hacking.

Hacking may be enjoying a surprising new respectability in its social status, but not all quarters of the hacking culture are so benign. Hacking still has an edge where the radicals hang out, playing a sort of X Games version of the democratization of knowledge. That’s where you find WikiLeaks, open source social entrepreneurship, corporate open source and its anti-intellectual property orientation, and the rest of the voices denouncing the keeping of ANY kinds of secrets or protecting proprietary interests in them.

  • In the realm of law, these radical players will increasingly bypass conventional modes of entry into the legal profession and law practice, and will offer their own alternative solutions to perceived injustice and inequities.
  • These radical players are already changing the law, hacker-style.
  • And they will continue to do so.

Consider, for example, the swift race towards justice we see daily in online news, as surveillance footage and ubiquitous smart-phone videos capture people in the act. Or consider the kind of visceral responses we make to images captured on police body cameras. As lawyers debate about them, these technologies are already changing evidentiary standards and criminal investigative methods. It’s not hard to imagine other applications — if you need to prime the pump, Google “whistle-blowing as cultural ethos” and check out what comes up.

Hacker law is the law of outcry and outrage, fueled by an insistent impatience that flies in the face of the law’s historical emphasis on rational, language-based deliberation. Are those who practice it vigilantes? Anarchists? Underground heroes? Tomorrow’s Gandhis and MLKs? It depends on where your sympathies lie, but like it or not, the hacker ethos has invaded the law. And, as is true of all the trends we’re looking at in this series, we’ve only seen the start of it.