Last week Jordan Furlong gave a great speech about the effects of automation and computers on the legal profession. Every legal organization that cares about the future of the profession (and that’s all of them, right?) should hire Jordan to give this talk to them. Clearly, he has paid attention to a lot of key trends, and is thoughtful in explaining what it all means.
After his fairly detailed overview of new technologies that are cropping up it was clear that many things that lawyers do are routine, and capable of being automated or outsourced. Lawyers don’t like to hear this, of course.
After Jordan talked about a couple of automated contract drafting tools (Koncision and Kiiac), an audience member made a predictable objection about how lawyers are needed to provided tailored drafting. The subconscious syllogism was as follows: If lawyers can provide tailored drafting of contracts, then the whole contract must be drafted by a lawyer and the automation process is completely useless.
What Jordan was actually saying (as I understood it) was: a lot of the initial drafting can be automated, and then a lawyer can step in to provide bespoke analysis. To me, this makes perfect sense. Let an intelligent system do the boring, grunt work, and then pass the results on to a human brain trained in the law. But lawyers don’t like to admit that anything they do can be done by a non-lawyer or a machine. And yet they can’t even use this higher brain power (that they claim to exclusively possess) to provide tailored analysis of routine things like the contents of regular emails.
I now offer into evidence Exhibit A, which is a typical block of text that appears at the end of every email sent out by many lawyers who (1) do not practice tax law, and (2) rarely send confidential communications:
IRS Circular 230 Disclosure:
To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
Confidentiality Notice:
The information contained in this electronic mail is personal and confidential and is intended only for the person or persons named above. This message and the information contained in this electronic mail may be an attorney-client communication and therefore may be subject to the attorney-client privilege. If the reader of this message is not the recipient named above or an authorized agent of such recipient responsible for delivering it to the intended recipient, you are hereby notified that you have received this electronic mail in error, and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us by telephone at xxx-xxx-xxxx or electronic mail and delete the original message or any copy thereof, whether electronic or hard copy.
This verbiage could be used selectively, as needed. For example, lawyers could create an “email signature” with this text and then insert it only as needed. But they won’t do that; they’d rather just slop it into every email they send out from their business account.
So remind me again about how (unlike machines) lawyers are able to analyze each situation individually.
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Ernie, thanks very much for this post and your very kind words! Yes, you have it exactly right: legal technology and lawyer performance don't pose an "either/or" dichotomy in the market — not yet, anyway, and not in the foreseeable future. I hesitate to say there'll "always" be a place for lawyers — always is a long time — but lawyers shouldn't be fussing about our imminent obsolescence.
What we should be thinking about is what our proper place actually is — where can we add the most value to a legal transaction? The production of basic legal documents and, to a growing degree, the performance of simple legal analysis, will no longer be that place. But there's plenty more to be done higher up the value chain — strategy, counsel, prevention, etc. — that will be safe from technological advancement for a long time yet. That's where we need to go.
Interesting comment. My role at my law firm currently involves drafting Powers of Attorney, Wills, and Enduring Guardian documents. I find myself feeling a bit uncomfortable when I discuss with clients that I am putting their information into a precedent document, created by a computer. Surely for the $150 I am charging, I should be writing it all from scratch, right? Surely they can enter their names, and probably spell them correctly too!
I think part of the justification for the fee we charge is the advice that comes with it regarding the use and appropriateness of the documents.
How do you feel about Will kits? What about plain-english drafting?