the Future of Change

As a new law student, entering the profession just as Westlaw and Lexis were gaining wide use, one of my first-year professors thought it wise to make us “Shepardize” the cases we were citing (as all lawyers must do), but we were forced to do it the old-fashioned way: that is, we had to research the status of the cases we were citing in our briefs through the hard copy of Shepard’s Citations reports.  The Shepard’s system offers lawyers information on the cases they cite: have those cases been cited by other decisions, followed, or even overturned.  Checking citations would be a laborious, time-consuming affair, and the service seemed to be in a continuous state of flux: you would find the bound volume, with the older references, but then you had to look for more recent updates, and there might be three or four loose-leaf publications with more recent citation histories that you had to review.  You had to check each one of these versions of Shepard’s to see if the case you cited had not been overturned.  And you had to do this for every case you cited.  Making matters worse, you were never quite certain that you had the right answer.  Was there a newer version of Shepard’s sitting on a librarian’s cart somewhere or hiding somewhere in the library because some inconsiderate law student had failed to return the volume when done with it?

For today’s lawyers, Shepardizing (yes, it’s a verb) happens instantly using online research tools.  Without even a key stroke, a legal researcher can tell whether a case has been overturned or even cited. And this is true of every legal resource she reviews.  The use of this online legal research tool is so common (and more effective) that it is probably malpractice to NOT utilize it and to rely on the hard-copy versions of Shepard’s. No lawyer engaged in legal research in an evolving field of law should probably ever rely on anything but the digital version of these reports.  In other words, the lawyer who acts with the assistance of technological tools is the rule, not the exception.  And when legal tech crosses that Rubicon–when it is malpractice to NOT utilize the technology–widespread adoption of those innovations becomes mandatory.

A recent article in the New York Times bearing the ominous title “High-Skilled White-Collar Work? Machines Can Do That Too” explores some of the ways in which automation is starting to impact the work of professionals in the fashion industry, but what it talks about mostly is the ways in which technology is augmenting the work of these professionals, developing data analytics, supply-chain innovations, and market algorithms to help inform predictions about fashion trends.  This type of augmentation is what Brynjolfsson and McAfee in their work The Second Machine Age: Work, Progress, and Prosperity in a Time of Brilliant Technologies call “racing with the machines,” not against them.  And it is precisely this type of approach that millions of lawyers utilize every day: racing with the technology that has become an extension of themselves.  So it misses the mark when we say “robot lawyers will take away the work of real lawyers.”  Most lawyers today make effective use of technological tools in all aspects of their practice.  The coming wave of new technologies–artificial intelligence and machine learning, Blockchain, digital expert systems–hold out the prospect that lawyers will become more efficient and effective, delivering services at a lower cost and perhaps with greater accuracy, particularly with respect to routine, mundane tasks (think Shepardizing).  This will free up lawyers to be more creative and engage in the critical work of preserving the rule of law, addressing climate change, and ushering in the era of autonomous vehicles and the Internet of Things, which will bring with them an entirely new collection of complex legal issues.

Before we rail against the effects of automation on white collar work, let us keep in mind that technology has long enhanced the work of lawyers to make them better lawyers.  We should seek out ways to ensure new innovations will enable them to deliver better services, at a lower cost, to a society that needs wider access to justice.

If these issues are of interest, I have explored some of them in greater depth here and here.  I welcome your feedback.