The Bottom Line - Official Publication of The State Bar of California Law Practice Management and Technology Section
Message from the Guest Editor
New Tricks for an Old Dog:
Teaching Legal Tech By Ron Dolin, J.D., Ph.D.
I was fortunate last term to teach a new course at Stanford Law School that I called Legal Technology and Informatics.1 Legal informatics could be defined as a computational perspective of law: where legal information resides, and how it is manipulated and transmitted. In putting the course together, I had to select from a wide array of potential material that I thought was important to train a new generation of lawyers and “legal technologists”. In this article, I will discuss some of what I included and why. In addition, as the guest editor of this issue of The Bottom Line (TBL), I invited some of the people whom I thought were working in areas of interest to practitioners. My goal is to inform lawyers about some of the changes coming as a result of legal technology, as well as to help prepare them not only to utilize new methods, but also to help build them.
Although there is a decades-old history to the application of technology to the law (e.g. the conferences ICAIL, JURIX, TREC), in many important ways legal technology and informatics is transforming into something new. It is not surprising that technology would invade and transform any field at some point. Law, though, is often a bastion of tradition and risk aversion (often for good reason), so it is also not surprising that law has not generally been among the early adopters of the “new new thing”.2 This is perhaps especially true under the pyramid-based, billable hour model of many law firms, where the incentives to capitalize on technological improvements in efficiency and accuracy are often absent.3 Nevertheless, it seems that the law is currently undergoing a transformation, in no small part due to technology, that is disrupting the status quo.4 As a result, TBL felt that it was important to highlight some of the changes afoot in the profession so that practitioners can better anticipate, accommodate, and even accelerate a new paradigm of law and legal practice. Throughout this article, I'll be introducing the other articles in this issue as they relate to some of the material I'm describing. In this case, the article by Marc Lauritsen, “A Time to Tool Up,” focuses on the growing importance to attorneys of a hands-on awareness of upcoming tools, while the article by lawyer and venture capitalist David Hornik, “Bringing Technology to the Law,” focuses on some of the areas most likely to experience these changes.
The class was composed of nine sessions in the quarter, each with a main theme and a guest speaker (some of whom have been included in this issue). As I describe the material below, I highlight the major points that I hoped to present to the class. Legal technology cuts across all areas of law and technology, and the class was designed as a survey – touching on broad topics with pointers in both the syllabus and course reader for the interested student. For anyone interested, the full syllabus is availableat https://beta.lawgives.com/communities/legal-technology-class/syllabus.pdf. The thrust of the class was to help law students understand how to look at legal problems from a computational and engineering perspective, as well as to understand the context under which technology is more likely to be adopted within the legal system. For another perspective on teaching law and technology, the article by Ronald Staudt and Andrew Medeiros, regarding their “A2J” Access-2-Justice program at IIT Chicago-Kent College of Law, focuses on practical, hands-on technology training.
The course had no formal engineering prerequisites. Although some students had engineering degrees, the bulk of them were not likely to become code-generating engineers. They were much more likely, though, to be early adopters, or promote incorporation, of new systems, to work with engineers in developing new systems, etc. The more they are able to see the computational perspective of legal problems, the better they will be at transforming current manual practices into (semi-) automated systems. And beyond that, it will help them generalize current practice into completely new ways of interacting with the law – to “think outside the bar”. Student grades were mainly a result of papers about topics of their choosing, and the areas they chose included ODR, M&A automation, online methods of solving legal problems, patent visualization, and much more. In the end, the students were required to update Wikipedia with a summary of their papers in order to help propagate a broader knowledge base of the field, to get them used to contributing, and to get them using common online tools. The students ended up rating the class very highly – an indication that they were quite interested in learning about the field.
The main point of the first class session was to describe the ways in which the legal profession, and “big law” in particular, is changing, and why, including the role of technology in this transformation. That is, what were these students likely to see over the course of their careers? Certainly, as has been discussed at length elsewhere,5 factors such as outsourcing, flat fees, and changing law firm business structures are having a large effect on legal practice. But the impact of technology on the field is still in its infancy. The guest speaker for this class was Don Jaycox, the CIO (for the Americas) of DLA Piper. As Don told the class, there will soon be two kinds of lawyers – those that understand technology and those that don't. It is clear which ones he thought were more likely to have a successful career. I explained the ways that a law firm might be viewed from an informatics perspective – a set of legal functions with data inputs and outputs, some of which were amenable to cloud-based componentization, automation, etc. Among some of the readings for this class, I asked that everyone read at least the introduction to Richard Susskind's “The End of Lawyers?” (the newer introduction to the 2010 paperback edition). As Susskind points out in his book, many people miss the “?” in the title. He is not suggesting that lawyers will go away any time soon, but raising the issue of which components of legal practice no longer need to be done as “bespoke” individualized work, and which are amenable to either semi- or total automation.
This session covered the changing nature of the delivery of legal services and the general nature of legal technology startups. The guest speakers were David Hornik, a VC at August Capital (and contributor to this issue), and Jason Lemkin, the founder of the e-signature company EchoSign (acquired by Adobe). We discussed the ways that various legal services could be, and were beginning to be, delivered online. First, from the legal perspective, we covered regulatory limitations related to UPL, monetization, referrals, fee-splitting, advertising, and law firm business structures. Second, we looked at the business perspective: various markets for legal services beyond just lawyers and law firms, including the non-served and under-served latent markets that are interested in reduced-cost and commoditized legal services. Some important issues here include not only identifying inefficiencies in the legal system, but also understanding the barriers to disrupting the status quo by looking at who profits from the inefficiencies. If we hope to produce legal technologists and spur successful startups, it is important to have lawyers understand the context under which new technology is likely to be adopted, and to look beyond the problems that exist to see which solutions might work in the real world. While the class did not focus on startups per se, many of the students and auditors were involved with startups at some level. The main point here is to understand what has changed in the world that might allow an entry of technology into the realm of legal practice and a broader transformation of the law in general. Finally, from the computational and informatics perspective, we discussed the componentization of legal functions – in this case, what the requirements might be for electronic signatures as an example. This perspective, dealt with in several sessions, was an attempt to have law students understand how to look at legal functions as data flow and processing in order to prepare them to work with engineers. Several articles in this issue discuss online delivery of legal services. Pieter Gunst's article, “Tomorrow's Lawyers,” discusses ways in which finding legal information and finding a well-matched attorney are increasingly accomplished online. Also, Loic Coutelier's article, “Leveraging Online Dispute Resolution to Improve Consumer Arbitration,” discusses the growing market for online dispute resolution, including the increasing sophistication of such services. Finally, Renee Knake explains how entrepreneurship is transforming legal services in her article, “Entrepreneurship and Innovation in Legal Services – Ideas for All Lawyers.”
The session on corporate legal technology was meant to describe what corporations are doing currently and to explore some of their unmet needs. We focused on Google and Cisco. Our guest speaker was Miriam Rivera, the ex-deputy GC at Google. The reading included a piece about Mark Chandler, GC at Cisco, and the way that Cisco has been trying to restructure their relationship with law firms by increasing the use of flat fees while lowering the amount that they pay for much of their legal work year over year. Miriam described the early days of Google as the Wild West, with paper documents hidden away in boxes under desks. This was similar to the problems described by Cisco of having different NDA's for different relationships, with no one quite sure what was signed by whom. When Cisco moved to a more uniform NDA approach, covering 95% of their use, via an internal online system, they simplified the entire process, brought costs down, and could track all of them. Google recently focused on e-signatures; each e-signature saved close to an hour of work compared to paper signatures. Thus, rather than taking on automation of, say, regulatory compliance or legal risk analysis, they started with reasonably low-hanging fruit. Of course, it is impossible to discuss corporate legal technology without covering e-discovery and the plethora of associated problems. Part of the goal of this session was to get the students to understand the issues related to how corporations play a role in transforming law firms, and to understand the issues of data collection that would be necessary to build actuarial data required for better legal risk analysis. Finally, as with law firms, it was important to have students think about the legal functions performed by corporations from an informatics perspective.
The session on search is near and dear to my heart, since it was my Ph.D. dissertation topic and I have worked in the field for years. The guest speaker was Anurag Acharya, who co-created Google Scholar. In addition to a prepared talk, Anurag presented many examples of case law search as viewed not by lawyers per se, but by non-lawyers. Anurag highlighted his goals of making sure that the law, that we are all responsible for following, is made freely available and easily understandable. One of his goals is to make sure that Google Scholar in general is always free. In presenting search, I wanted to explain to the students how a single class of technology was applicable to a wide array of legal problems (e.g. patents, case law, legal services, etc.). I also introduced the class to some of the basics of search such as an inverted index, common text search methods and concepts, and how text and non-text search can be merged into a single ranked result set. In addition, I wanted them to understand how we describe information and use that metadata to find things (e.g. author, geographical region, dates, cost, etc.). It was also interesting to get future lawyers to start looking at legal problems from a lay-person's self-help perspective – something we're reasonably accustomed to now in medicine, but that is somewhat new, and still difficult, in law.6
5. Data Privacy
While search can be viewed as a single class of engineering solution applicable to multiple legal problems, data privacy can be viewed from a complementary perspective: a legal problem requiring multiple engineering solutions (e.g. cookies, encryption, etc.). The guest speaker was Seth Schoen, an engineer with the EFF who spends a good portion of his day explaining technology to lawyers. Seth outlined some of the requirements for data privacy (e.g. confidentiality, integrity, authenticity, etc.). We also discussed some background issues such as the FTC's Safe Harbor protocol, how various technologies work, the relationship between TOS and “reasonable expectation of privacy”, onward transfers, and (failed) attempts at automating and simplifying user privacy settings (e.g. P3P). The goal for the students was to help them identify potential technologies for a given legal problem, and to better foresee what might be the legal ramifications of various types of upcoming technology.
6. Learning from Biomedical Informatics; Automation; Standards
Biomedical informatics has a long history and it informs legal informatics in many ways. As a result, the guest speaker for this session was Dr. Mark Musen, who helps run the biomedical informatics program at the Stanford Medical School and has done a lot of work in the area of ontologies and controlled vocabularies. The issues for the students included the similarities and differences not only in the current state of technology and informatics in the two fields, but also in the underlying drivers for the development of the field, as well as the differences in the related academic programs. For example, while there are several hundred Ph.D.'s awarded each year in biomedical informatics in the U.S., there are none, as far as I know, in legal informatics. We also used this session to discuss the role of automation and semi-automation – a theme that would continue to arise for the remainder of the class. Decision support systems, for example, could in principle be as helpful in legal issue spotting as they already are in medical diagnosis. We also discussed the use of standards in the development of automated systems as well as in computational systems in general. While there are many informatics standards in common use in medicine, their prevalence seems lacking in law, even though they would greatly assist in machine understanding of court opinions, statutes, etc.7
7. Visualization, Analysis, and Prediction
This session presented a computational meta-perspective on legal data, in a similar way that we have become accustomed to viewing legal issues from an economic perspective. Instead of focusing on how we break down legal functions into data flow and processing, we looked at how we might view information about the overall functioning of the legal system. For example, what is the pattern of SCOTUS internal citations over its history, how might we characterize patents or SEC filings that yield new insights, etc.? What aspects of visualization help with our understanding of legal issues that would be difficult to grasp textually? Our guest speaker for this session was Dan Katz, a law professor at Michigan State University, who discussed the problems and potential benefits of legal prediction. I pointed out some of the reasons that prediction was difficult in the legal context, and Dan discussed the vast array of areas in law that are potentially amenable to legal prediction, such as legal risk analysis, litigation outcomes, billing estimates, etc. I felt that it was important for law students to be aware of both the benefits of, and difficulties associated with, this type of analysis in order to begin to identify where in law empirical data might help uncover a deeper understanding of the legal system. For more details on legal analytics and prediction, see the article by Dan Katz and Michael Bommarito, “The Age of Quantitative Legal Prediction,” as well as the article by Owen Byrd, “Moneyball for Lawyers.” Finally, Daniel Lewis discusses the use of visualization for legal analysis in his article, “Data Visualization and Law.”
This session sought to raise awareness regarding access to justice, the roles of various governmental agencies to address it, and the implicit role of technology to leverage existing and/or potential efforts. The U.S. “justice gap” includes the fact that over 80% of the legal needs of the poor are unmet.8 By way of comparison, we looked at how various states and other countries address the issue of providing legal services (e.g. via a constitutional mandate in Belgium). The guest speaker for this session was Marc Lauritsen, who has worked for years in the field of legal technology and building applications to increase access to justice. In part, I wanted students to look at what our own CA Bar states as part of their mission: to expand, support, and improve the delivery of legal services to low- and moderate-income Californians.9. As we saw both in prior sessions and in Marc's discussion, technology can leverage delivery of legal services by one to two orders of magnitude in some cases (e.g. semi-automated document creation via simple online forms). The main question for the class, and the reader, is whether an explicit mandate to “expand, support, and improve” such delivery should translate into an implicit mandate to incorporate and develop legal technology.
9. The Future
The final class session focused on the philosophy and longer-term future of legal technology. The guest speaker was Peter Thiel, whose background includes philosophy, law, and high-tech startups. Peter discussed the short- and long-term potential for general computation in order to orient students as to what they were likely to see over their lifetimes. He also focused on the way that automation tends toward either arbitrariness or totalitarianism, accompanied by an inevitable transparency that forces us to look at our current behavior in new ways. As an example of this transparency, I discussed the software we might want for self-driving cars. A parent driver with kids in the car might instinctively react to a sudden danger by swerving so as to minimize the risk to the car's occupants, even if doing so may lead to more risk for those outside the car. If we look at the corresponding software, however, we as a society may or may not want a self-driving system that favors occupants over non-occupants, even though weighing each person equally is not necessarily how any of us drive. I also wanted the class to look at the role of free will and empathy in law. For example, certain forms of punishment assume free will. In which manner does our thinking change as we mature, that justifies treating minors differently from adults in the law? How might that kind of adult reasoning be built into software such that the software may be held directly responsible for its own actions, as opposed to holding, for example, a programmer responsible? Similarly, empathy plays a role in courts in equity, selective enforcement, prosecutorial discretion, etc., and we have only begun to see software incorporate empathy in its decision making. It begs the question, though, as to whether a sufficiently advanced robot would have empathy for humans, for other robots, or perhaps for some combination. While these questions may have abstract philosophical and academic underpinnings, their relevance is not so far down the road, and I felt that it was important to have future legal technologists start asking questions about what an increasingly automated legal system might look like. This has pragmatic importance, for example, as we look to balance efficiency, accuracy, fairness, and access in any technological implementation of our legal system.
Legal technology is rapidly transforming both the practice and nature of law. This class sought to explore both the current trends and the future possibilities of this transformation, as we begin to train the future generation of technology savvy lawyers, and technologists who understand the intricacies and potential of what the law could be. Perhaps an ideal environment for the development of legal technology is one in which students and practitioners of law, design, computer and information science, and business come together to re-evaluate the legal system. Beyond legal norms, procedures, and attitudes that evolve in reaction to external influences, how might we think outside our current legal system and move toward something that is ever more efficient, accurate, accessible, and fair? This is at least one way to describe legal technology.
About the Author
Ron Dolin received a Ph.D. in Computer Science, studying various aspects of search, before ending up at Google for several years as an engineer. Ron left Google to attend law school. He is currently an Instructor of Law at Stanford Law School. He is an advisor to the UC Hastings' Privacy and Technology Project as well as its Science and Technology Law Journal. He is a member of the executive committee of the LPMT section of the California Bar. He has also published a law review article on Search Query Privacy.
1. The author would like to thank Larry Kramer, former Dean of Stanford Law School, currently President of the Hewlett Foundation, for the opportunity to teach the class. Back.
2. I am not referring here to, say, the latest version of a phone or tablet, but rather a deeper re-invention of anything from e-discovery to automated contract formation. This will be covered in more detail later in this article, as well as in other articles in this issue. Back.
3. Ethics rules and interpretations of the meaning of Unlicensed Practice of Law (UPL) have also been held out as contributing factors (see, e.g., the many writings of Stephanie Kimbro, among others). Back.
4. Although beyond the scope of this article and issue, some of the reasons for the timing of this disruption include changes in attitude and comfort levels among the general public about online services, capabilities of technology such as enhanced text analysis and the prevalence of big data, the economic conditions that have accelerated changes that were already afoot, and more. For a detailed background and discussion of these topics, see the works of Richard Susskind, such as “The End of Lawyers?” and “Tomorrow's Lawyers” as a good starting place. Back.
5. See recent issues of The Bottom Line, for example, as well as Susskind's work, mentioned above. Back.
6. While law libraries have been open to the public and there have been pro se litigants for some time, I'm speaking more about the legal equivalent of, say, WebMD, which attempts to provide legal information to the general public in layman's terms. Back.
7. Certainly there are inklings of standards via OASIS, LEDES, ILTSO, but there has not yet been wide-scale adoption. Back.
MCLE Self-Study Article: Moneyball for Lawyers: How Data and Analytics are Transforming the Practice of LawBy Owen Byrd
Imagine if you could make a data-driven prediction about how opposing counsel, or a judge, or a party to litigation or a transaction, will behave. Or what results a specific legal strategy or argument will produce. Would you continue to rely exclusively on traditional legal research and reasoning to inform the advice you give clients, the documents you draft, the negotiations you conduct and the arguments you make? Or would you integrate data and analytics into your lawyering by practicing Moneyball for lawyers?... More >
Do I have a case? What is our likely exposure? How much is this matter going to cost? What will happen if we leave this particular provision out of the contract? How can we best staff for this particular legal matter? Is this a relevant document? These questions are core to the practice of law, and each calls for some sort of a forecast – a prediction... More >
Times are tough for lawyers. How can we survive and prosper? Most would agree that effective use of technology is part of the answer. I believe that systems aimed at the core of practice are among the most important measures we can take. And that having them requires us to be more than innocent bystanders. The march of technology in law – as in other quarters of life – is a mixed blessing. More and more machine intelligence is not necessarily progress. But it’s coming at us like a runaway steamroller. Here are some ways to avoid being flattened. ... More >
Legal expertise no longer is sufficient to cultivate a rewarding and meaningful career in the law. All the legal knowledge in the world is of little value if clients cannot access it.
One of the most pressing issues facing the profession in the 21st century is the “justice gap”: millions of people who need legal representation cannot afford or access a lawyer. The overwhelming majority of this country goes without much-needed legal help because they simply cannot afford to pay a lawyer three-figures-per-hour for multiple hours, but they also do not qualify for the limited legal aid programs available. The legal profession faces a delivery problem—we have failed to develop viable models for delivering legal services that are affordable, accessible and, importantly, adopted by clients who utilize them on a regular, sustained basis. ... More >
Recent studies show that more than 75% of adults looking to hire an attorney use online resources in the process. In the past, consumers of legal services made their selection primarily based on word of mouth and recommendations from friends. Today, the activity of searching for and selecting an attorney is increasingly taking place online. Expect two trends: online services supporting these activities will gain in importance over time, and that the nature of legal services provided through the online channel will become more and more sophisticated. These evolutions provide opportunities for the public and the legal profession alike... More >
The world of online dispute resolution (“ODR”) is expanding as the European Union is about to finalize the drafting of a regulation on ODR paired with a directive about alternative dispute resolution (“ADR”) applied to consumer disputes. If adopted as they currently stand, these instruments would make it mandatory for all online traders to display a link to an ODR provider. It would also make it mandatory for the member states to have at least one ODR organization in each country. These texts should be adopted by the European legislative organs within the next few months, and form part of the European Union’s longstanding belief that ADR will boost the internal market’s economy... More >
I have often described my background as eclectic. That is a nice way of saying arbitrary. My undergraduate degree is in Computer Music, a mix of acoustics, physics, computer science and music. Despite being unbelievably fun, it didn't particularly qualify me to do anything one might characterize as a job. My next stop was at a British institution of higher learning from which I received a Masters of Philosophy in Criminology. Despite my best hopes, my M.Phil. had very little to do with Sherlock Holmes - it was much more about sociology and penology. Like most masters degrees, it also did little to make me marketable. And in combination my Computer Music and Criminology degrees only qualified me to write electronic scores for documentaries about the prison system. And so I did what all of you did with your philosophy, anthropology, and slavic history degrees, I went to law school. ... More >
Legal research is often difficult and overwhelming, in large part because there is so much data to sift. Roughly 300,000 new case opinions are released every year in America, and those cases build upon common law that stretches back hundreds of years. Harvard’s Law Library holds over fourteen thousand volumes of reporters in its archives. For all but the most expert, legal research can feel like trying to navigate without a map. The connections between cases are complex, of vital importance, and almost chaotic.
With this large and ever-growing corpus, lawyers rightfully fear the possibility that a key case, argument, or insight will go undiscovered... More >
MESSAGE From the ChaiR:
Battleship vs. Whack-a-MoleBy Perry L. Segal
The city I grew up in is famous for volatile weather patterns. The running joke is, “If you don’t like the weather, wait five minutes.” With legal technology – or any technology, for that matter – I could utter the same advice, except I might modify it to, “Whether you like your technology or not, wait five minutes; it’ll change either way.”
Here’s the $64,000 question: What exactly is “Legal Technology”? ... More >
Smooth Operator: Understanding a Law Firm’s Financial Operating Benchmarks By Ed Poll
The concept of benchmarking – setting up statistical guidelines to identify best management practices – can be a tremendous benefit to law firms. The appropriate financial benchmarks can identify operating deficiencies in the firm and show where you are currently relative to your goals. Financial benchmarking helps law firms improve business effectiveness by tracking profitability, cash flow and collections. Lawyers who understand financial benchmarking can better assess the value they provide to clients, and better reflect it in their bills. ... More >
Book Review By Carolyn M. DillingerTomorrow’s Lawyers: An Introduction to Your FutureBy Richard Susskind
When I first mentioned to Guest Editor Ron Dolin that The Bottom Line has a book review column, his immediate choice was Richard Susskind’s not yet published book, Tomorrow’s Lawyers. After ordering a press copy I excitedly waited for it to arrive. I knew Tomorrow’s Lawyers would be a significant book for the legal profession.... More >
- MCLE Self-Study Article: Moneyball for Lawyers: How Data and Analytics are Transforming the Practice of Law
- The Age of Quantitative Legal Prediction
- MCLE Self-Study Article: A Time to Tool Up
- MCLE Self-Study Article: Entrepreneurship and Innovation in Legal Services - Ideas for All Lawyers
- MCLE Self-Study Article: Tomorrow's Lawyers: Online Delivery of Legal Services
- MCLE Self-Study Article: Leveraging Online Dispute Resolution To Improve Consumer Arbitration
- Bringing Technology to the Law
- Visualization of Law -- A New View on Legal Search