First, Kill All the Robots

by Dave Schuler on May 29, 2014

There’s an interesting article at City Journal about the challenges that automation is posing to the practice of law:

Law schools are in crisis, facing their most substantial decline in enrollment in decades, if not in the history of legal education. Applications have fallen over 40 percent since 2004. The legal workplace is troubled, too. Benjamin Barton, of the University of Tennessee College of Law, has shown that attorneys in “small law,” such as solo practitioners, have been hurting for a decade. Attorney job growth has been flat; partner incomes at large firms have recently recovered from the economic downturn, but the going rate for associates, even at the best firms, has stagnated since 2007.

Some observers, not implausibly, blame the recession for these developments. But the plight of legal education and of the attorney workplace is also a harbinger of a looming transformation in the legal profession. Law is, in effect, an information technology—a code that regulates social life. And as the machinery of information technology grows exponentially in power, the legal profession faces a great disruption not unlike that already experienced by journalism, which has seen employment drop by about a third and the market value of newspapers devastated. The effects on law will take longer to play themselves out, but they will likely be even greater because of the central role that lawyers play in public life.

I’ll offer one caution about the article: it’s written by a law professor who, based on his CV, probably hasn’t taken a math course since he was in high school 35 years ago and has the respect for the boundless powers of computers common to people who don’t know anything about them.

Jurimetrics (the application of science to law) is still in its infancy and will probably remain so as long as most lawyers and, more importantly, judges are classical languages majors rather than science or engineering majors which is to say forever. I can’t remember who first said it but one of the reasons that physics is so orderly is that the people who are attracted to studying it tend to have orderly minds while the social sciences are a mess because the people who are attracted to studying them don’t.

{ 8 comments… read them below or add one }

PD Shaw May 29, 2014 at 9:57 am

I think he’s correct to identify a real loss in the types of large, routine work, that was the bread and butter for training new attorneys at one time. But I think he has his cause and effect wrong. As attorneys kept raising their hourly rates, various pressures came to bear to reduce the number of hours, including not reviewing documents, early settlements or alternative dispute resolutions, or negotiating flat fees.

A good example is residential real estate. There was a time when attorneys drafted the real estate documents and had their associates produce a title abstract. I’ve never done a title abstract, don’t know how to do one, and don’t know anybody under the age of sixty that has. It sounds boring, time-consuming and a high risk of malpractice. Now, there is title insurance, and quality of title is treated as a risk with a limited defined investigation.

Lawyers are not involved in residential real estate contracts or closings around here. This used to be a loss-leader, but sometime perhaps 30 years ago, the realtors created a form contract, the local real estate bar gave suggestions (but refused to formally stamp approval), and now just about all residential real estate contracts are “negotiated” by realtors using the form, with closings handled by the bank.

IOW, some of the technological improvements won’t replace legal work, it might provide access to legal work that lawyers weren’t providing. But it should also be added that some of the new firms offering specialized e-discovery services are quite expensive.

Dave Schuler May 29, 2014 at 10:36 am

A good example is residential real estate. There was a time when attorneys drafted the real estate documents and had their associates produce a title abstract. I’ve never done a title abstract, don’t know how to do one, and don’t know anybody under the age of sixty that has.

A persistent complaint of my dad’s was that bankers, insurance men, realtors, etc. were practicing law without a license. There are all sorts of things that used to require lawyers that no longer do and that we now just take that for granted. I assume he’d be horrified at the activities which he considered his bread and butter that lawyers don’t even get involved in any more.

One more recent example is wills. Nowadays there’s software for preparing wills and lawyers who’ve agreed to review the wills created by specific software programs for a low, flat fee.

PD Shaw May 29, 2014 at 1:22 pm

Some cynics, by which I mean lawyers, would say that there is more money litigating a will dispute than drafting a good will, less downside liability risk as well.

steve May 30, 2014 at 5:43 am

Dont tax lawyers require a decent amount of math, at least the good ones?

Steve

Guarneri May 30, 2014 at 8:20 am

“Dont tax lawyers require a decent amount of math, at least the good ones?”

With today’s tax code, facility with Green’s Theorem.

PD Shaw May 30, 2014 at 9:15 am

One of my favorite John Personna lines was that the Clean Air Act of 1990 was like chemistry as conceived by lawyers. I don’t know how much math a good tax lawyer actually needs, as opposed to a good tax lawyer would have an orderly mind and the attention to detail that would correspond to being good at arithmetic and algebra.

I don’t see any suggestion that the law professor that wrote that piece has any tax background. He looks like he has been in government and university employment, for all but one year of his career, and doesn’t much about private practice. Almost all legal precedent has been available through electronic databases for 20 years, and all the changes that have occurred over that time and are foreseeable are very incremental. Replacing boolean searches with fuzzy Google-like searches is actually a step backwards. This guy’s examples of not being able to turn up a case about a “ship” when he searches for “boat,” is poor. Sometimes, you need only cases about a “boat.”

Guarneri May 30, 2014 at 11:42 am

John Personna. John Personna. Don’t really recall that guy. But I vaguely recall there was a guy named Odograph who started going by John Personna……………but denied it for a good six months……….

Michael Reynolds May 30, 2014 at 5:17 pm

You can add literary agents to the list of people practicing without a license. We are in the short strokes of negotiating a deal with a major studio that shall remain nameless but rhymes with Bisney. It ends up as a contest of agent vs. lawyer. Guess who wins? Which is why we add an IP lawyer to the mix.

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