Month: October 2015

“Racing never gets easier – you just get faster” (Greg LeMond, 3x Tour de France winner)

Much has been said on this blog (and likely in your weekly classes) about the automation of certain aspects of the legal profession, and the notion that the legal profession is changing in a myriad of ways. I don’t disagree – technology has allowed us to do things today that were unthinkable 20 years ago. But if one of the goals of this course is to help you develop a road map for your legal career, then along with all the discussion about how technology is going to change the way we practice, something needs to be said about the complexity of what we do as lawyers.

I’ve been a barrister for almost twelve years – but the first time I stood up in court to represent a client at trial was just over 15 years ago, while I was a volunteer at my law school’s poverty law clinic. It was a nerve-wracking and difficult experience – I had to prepare witnesses, cross examine police officers, and make arguments about the Charter of Rights and Freedoms. I had to explain to my client beforehand that there was a chance that he would be convicted, and if he was, that the conviction could have significant consequences in the future. The trial lasted 4 hours. To me, it felt like 4 days. When it was over, my client was acquitted. I was utterly exhausted, but at the same time elated – my client was “free to go”. I also felt, almost immediately, that I wanted to do it all over again. That’s when I knew that I had found my place in the legal profession.

At the time, I thought that standing up in court and arguing cases would get easier over time. I thought that by the time I had argued a few cases, the process would become more “routine.” I was wrong about that. Why? Because I totally underestimated the complexity factor.

The idea that cases are similar or the same is only true at a very basic level. In reality, cases progress from start to finish but it’s not easy to predict how they might travel down that path.  To echo the quote above, practicing law doesn’t get easier – things just get more complicated.  As a new lawyer, I argued cases in the Provincial Court or the Small Claims Court that involved a single issue and one or two witnesses. Evidence rules were relaxed. Trials were done in a day. I worked for a large firm, so my clients were often very large companies that could easily withstand the ups and downs of small litigation – a few wins here, a few losses there. Generally, I took instructions from someone in the legal department – a lawyer who, like me, understood both the litigation process and the risk that comes with going to court.

As a more senior associate, my clients tended to be a bit smaller – medium sized companies where I was talking directly to one of the senior executives. The cases slowly became more complex. Multiple issues, multiple witnesses, and multiple days in court. These clients were willing to take some risks, and they were prepared for the uncertainty of the court process, but let’s be honest – nobody wants to lose a court case.

Now I have my own practice, aimed mainly at small businesses and individuals. Easier, right? No way. Most of my cases still involve multiple issues, counterclaims, third parties, expert evidence, and just about every twist and turn you can think of. My clients are often individuals who have not had to deal with the legal system before – so I typically spend more time with them, helping them understand the process, the potential outcomes, and the stress that comes with the uncertainty of putting your case in the hands of a judge. The results matter more than ever. That 7th inning of the Jays game last week? That kind of roller coaster ride happens a lot in my world.

What does any of this have to do with creating the law firm of the future? I think there are three things that you can take from these war stories. The first is that working with clients has a huge human component that you can start thinking about and learning about right now. Clients are still looking for lawyers to be their advisors – to guide them through rough seas. Learning how to play that role in different situations takes time and patience.

The second is that working with judges and opposing counsel also has a huge human component. Arguing a case in court is not just about facts and law, it’s also about emotion and narrative. It’s about taking all that complexity, and turning it into something simple and clear so that a judge can make a decision – the right decision. Until someone tells me that IBM’s machines have taken a basic chronology of events and written something like To Kill a Mockingbird, I’m not too worried about my opposing counsel peeling off a mask and revealing herself to be a robot.

Finally, don’t underestimate the complexity of the work you’re about to get into – but at the same time, don’t lose the opportunity you have right now to learn how to deal with it.

I want to write this post not for the legal professionals that might be reading it, or even Professor Sykes who has been our guide on this trip into the 21st century. Instead, I want to write a post mainly for myself and my fellow law students.

Sitting in Lawyering in the 21st Century for the last month and a half has been extremely exciting and illuminating, but I would be lying if I didn’t say that it has contained an undeniable element of fear. Personally, the fear that I have felt in this class can be broken down into three categories. A fear of change, a fear of what is coming, and a fear of spending a ridiculous amount of money to get an education for a profession that might not be as profitable as it has been in the past.

We have learned that a large percentage of the Canadian population are simply unable and/or unwilling to hire a lawyer for their legal problems because of the cost. Here I am not talking about people living in poverty, but instead middle class Canadians with decent paying jobs who are simply not willing to fork over the thousands of dollars lawyers are charging. These citizens are the bread and butter for almost any other profession but lawyers are seeing their access to this class of society dwindling. This has led to the rise of self-represented litigants which has then led to an adaptation of legal systems to accommodate these self-represented litigants. Take for example the Civil Resolution Tribunal in BC which was created specifically for the use of self-represented litigants and actively discourages representation by a lawyer. Therefore, the amount people are using lawyers is declining and this is pretty scary for a law student.

When I first asked myself why I was afraid of this change, I started to wonder if I was being dumb. How can I be afraid of something changing that I haven’t actually been a part of yet. As a law student we are learning how to be lawyers and while we are on the verge of entering the legal profession we haven’t quite got there yet. So why do I feel so scared thinking that the legal profession is changing? I think it is because, for the most part, we have been preparing for the profession as if it isn’t changing. The ideal job is still the big corporate firm in downtown Vancouver, Toronto or Calgary, and we continue to jump through the same hoops as our predecessors. While Thompson Rivers University Law in particular is making great strides in attempting to prepare us for the change that is coming, those in the profession seem to be operating as if it is business as usual. This is where the fear comes from for me, we are hearing about these changes but we can’t see them.

This seeming continuation of the status quo lead me to be scared of what is coming. How can we be expected to adapt to a changing legal market if we are being trained and prepared as if everything was staying the same. It makes me feel that I am going to be wholly unprepared for when the day comes that the legal profession shifts. Further, last week we listened to a presentation from Professor Ben Alarie who discussed how the emergence of new technology may serve to reduce the role of lawyers in the future. Through the use of Cognitive Computing a computer software program could read a great deal of legal information, including case law, and essentially predict legal outcomes regarding a particular factual scenario. This is somewhat intimidating and made me question whether I will end up working for a few years and then be replaced by a computer.

However, I sat down to write this post because I have come to a realization, a realization that people are always scared before times of change, and it is how people respond to that fear that truly determines the future. I believe that we as current law students are in a unique and enviable position. We have the opportunity to embrace this change and lead the legal profession into a new day, we have the ability to be innovators. Take for example Adam LaFrance who came to talk to our class a few weeks ago.  He was a law student who followed the traditional trajectory of a young lawyer. He graduated, then worked at a big law firm, then tried out a solo practice. However, throughout this process he saw a gap in the legal profession which lead him to invent Knomos. Knomos is an innovative new way to conduct legal research that presents information in a visually efficient way that allows the user to easily connect the dots and navigate their way to the answer they are seeking. While Knomos is still in the production phase after seeing a demonstration of its capabilities I have no doubt it is going to take the legal world by storm. Further, I realized we shouldn’t be afraid of the Cognitive Computing technology Professor Ben Alarie is creating, but instead we should be looking for ways to harness those capabilities and utilize them to our advantage.

Granted, at this moment I have no clue what or how I would do anything truly innovative, but I know that my education, and particularly this class, Lawyering in the 21st century, are going to prepare me for the challenge. This week we read an article by Gillian K. Hadfield entitled “The Cost of Law: Promoting Access to Justice through the (Un)Corporate Practice of Law.”  This article discusses the possibility of using legal corporations to solve access to justice issues in the United States. Another article by Richard Devlin and Ora Marson entitled “Access to Justice and the Ethics and Politics of Alternative Business Structures” described the possibility of this as well, along with other Alternative Business Structures. One example is a “Multidisciplinary Practice” that would perhaps include a lawyer, accountant, or a realtor all working under one banner to provide services to the client. Regardless of what the idea is, it is simply exciting that these possibilities are being discussed and debated.

When we enter the profession it is possible that these debates will be more settled and the laws currently in place restricting these practices may be a bit more relaxed. This will allow our generation of lawyers to pounce on these opportunities and begin creating a new style of practice. So even though I do not know how, when, or where I can become an innovator in the legal profession I am going to attempt to swallow my fear and try one day to join the ranks of legal trendsetters like Ben Alarie and Adam LaFrance.

Therefore, as young lawyers I think we are going to have to not only embrace the coming changes, but actively seek them out. If we do so we can ensure that we are on the right side of change and are creating opportunities for ourselves. If we embrace this mentality then my third fear will also be assuaged. Can you imagine how amazing it would be to be involved in an innovative new idea that helped bring the legal profession into the 21st century? If that were the case you would not have to worry about your crippling debt as the money would of course follow that innovative idea. Further, because we are entering the profession at this time we have the opportunity to be those pioneers, so I am going to stop worrying about paying back my debts and start thinking about the future. Also, I am going to make it my goal to no longer freak out while attending Lawyering in the 21st Century and instead focus on the benefits that the coming change can provide me, and how lucky we are to be learning about this at this time.

There is no question that the legal practice is diversifying and with the socio-demographics of our society changing, it is time for the legal profession to catch up with the current legal landscape. I think it is even more crucial for smaller firms or sole practitioners to adapt to this change if they want to remain competitive. One way firms can do this is to develop different business structures. The one that could work in Canada is to allow multi-disciplinary practices (MDP) to exist alongside traditional law firms. Multi-disciplinary practices are “business arrangements in which different professions practise together to provide a broad range of advice to consumers”. For example, a lawyer and a real estate agent can enter into a partnership to work together under the same name and provide services together.

In 2010, the Law Society of British Columbia took initial steps to introduce multi-disciplinary practices into the legal profession. The regulations were outlined in the Law Society Rules from Rules 2-38 to 2-49, which can be found here <https://www.lawsociety.bc.ca/page.cfm?cid=4092&t=Law-Society-Rules-2015-Part-2-%E2%80%93-Membership-and-Authority-to-Practise-Law#38>.

In my opinion, the rules set above are a good start to allow the shift to multi-disciplinary practices but the rules do place great restrictions on lawyers and non-lawyers who wish to open such a practice. The worries that the Law Society might have are understandable but I think steps can be put into place to tackle these issues. The biggest concern they would have is the confidentiality, conflicts of interest and solicitor-client privilege issues. Given that many different professionals can be working together, all with different ethical standards required by their respective governing bodies, the risk of a breach of either confidentiality or conflict of interest is increased. Lawyers arguably have the highest standard when it comes to solicitor-client privilege or conflicts of interest, so it could be possible to create a multi-disciplinary practice where a lawyer has to be the controlling partner and thus they can monitor and watch over the ethical concerns.

Another worry that the Law Society might have is that non-lawyers might be in a position to offer legal advice. In Ontario, the LSUC has dealt with this issue by stating that the lawyer members of a multi-disciplinary practice are responsible for ensuring that non-lawyers comply with the rules and regulations of LSUC. However an argument against this solution is that by forcing multi-disciplinary practices to have lawyers in charge, the Law Society is limiting MDP to a single service and this goes against what a MDP really stands for.

There are valid concerns with the creation of multi-disciplinary practices. However, with benefits like one-stop shopping for clients and the benefits to smaller firms like creating expertise in a specific area, I believe the benefits outweigh the costs. Law societies across the country can look at other jurisdictions around the world, like Australia, where multi-disciplinary practices have been implemented and are successful.

The Future of Legal Education

Much of our discussion so far has been focused on transforming the current business structure of our profession, and rightfully so. It appears that the traditional business model that governs the way the majority of the legal industry operates is losing its appeal to both clients and prospective lawyers. Although that discussion is important, there are other aspects about the future of our profession that require our attention. What has eluded us so far has been a thorough discussion about the future of legal education, especially with respect to the admission requirements for attending law school in Canada. Don’t worry, I’m not talking about the L word.

Instead, I wanted to focus on the admission requirement of having at least 2 years (with most schools requiring more) of undergraduate studies under your belt before being able to apply to law school in Canada. In fact, “[w]ith the exception of students in Québec, the majority of successful applicants will have completed an undergraduate degree” before attending law school (CBA Report p. 54). I never really gave this much thought until I attended a panel discussion on the CBA Futures Report at the TRU Law Conference last year. Having now had the opportunity to reflect on what I have learned, I can say that there are compelling reasons for getting rid of this “undergraduate studies” requirement.

Getting Rid of the Undergraduate Studies Requirement

Pros:

(1) Removing Financial Barrier to Joining the Profession

The undergraduate studies requirement inarguably acts as a gatekeeper to the profession. The reality is that requiring candidates to have completed at least some (if not all) undergraduate studies creates a financial barrier to acquiring an already expensive degree. This added expense can greatly “affect diversity in the profession, discouraging people with limited means from applying.” (CBA Futures Report p.54) Not to mention that this added cost increases student debt, which can consequently affect the price of legal services in the future. Removing the undergraduate requirement will eliminate a financial cost that acts as a barrier to the entry of the profession.

(2) Time

This requirement also “means that prospective lawyers must invest their time in both an undergraduate degree and a law degree before entering the workforce.” This often means that students will be in their mid to late 20s upon graduation. The time that is required to have a family will be at odds with the time young lawyers must invest in the early, and most important, stage of their career. The CBA report stated that “[t]hose who do take leave from work for parenting reasons find themselves at a competitive disadvantage with their non-parenting colleagues.” This particularly affects women since they have to go through pregnancy and are often the primary care takers of their children. They are then put in the unenviable position of choosing between having a family or an uninterrupted career so to not negatively affect their odds of advancement.

Cons:

(1) Maturity, Preparedness and Competence

The most common reason as to why people advocate for keeping this requirement is simply the argument that completing some undergraduate studies will mature you and prepare you for law school, which in turn makes you a more competent lawyer. This conclusion is somewhat misguided. While they often correlate, prior education, in and of itself, is not a proxy for maturity, success in law school or a good indicator to predict competency as a lawyer. Although I can’t deny that I’ve mentally matured (hopefully my friends and family would agree) in the years I spent doing my undergrad, I don’t necessarily think education was the only factor. Indeed, I think that maturity is derived, not just from education, but also various life and employment experiences that occur outside of a classroom. While I will also admit that being in a research and writing heavy undergraduate program has assisted me in law school, I don’t necessarily think that is what is going to determine whether I will become a competent lawyer. There are many students who did not complete a research and writing heavy undergrad who have excelled not only in law school, but also in the legal profession. Indeed, so much of being a good lawyer depends on skills that you simply cannot learn or develop in a classroom setting. In fact, the CBA Futures report identified “creativity, empathy, adaptability, resilience, and breadth of perspective” as useful criterion for predicting future competency as a lawyer (CBA Report P.54). This is precisely why more schools are implementing a more “holistic” approach to admission. So, in short, it would be imprudent to equate education prior to law school with maturity, performance in law school or competency as a lawyer. As a last point, I would simply point to our “commonwealth colleagues” where students can attend law school straight out of high school. The legal profession in countries such as England and Australia do not seem to be suffering as a result.

(2) Over-saturation of the Market

Finally, some would argue that removing the undergraduate requirement would result in an increase number of law students, which in turn would over-saturate the market. This is a false conclusion. Removing the undergraduate requirement does not increase the number of law students, though it may increase the number of applicants. The effect of having more applicants would simply be increasingly higher standards for entry as a result of increased competition.

We are constantly looking for ways to remove barriers to justice and legal services, yet we have overlooked the barriers that prevent entry into our own profession. A good place to start would be re-evaluating the admission criteria currently being used by Law Schools across Canada.

Last week famed physicist Stephen Hawking made the headlines by stating (during a Reddit AMA) that:

“If machines produce everything we need, the outcome will depend on how things are distributed. Everyone can enjoy a life of luxurious leisure if the machine-produced wealth is shared, or most people can end up miserably poor if the machine-owners successfully lobby against wealth redistribution. So far, the trend seems to be toward the second option, with technology driving ever-increasing inequality.”

There has been a lot of discourse lately on whether the legal profession is susceptible to automation (mainly in the forms of cognitive computing, and/or using already mature technologies to commodify more repetitive legal tasks). As of today it has been touted that machine intelligence has the IQ of about a four year old, which more specifically while it is superhuman in many respect in narrow application (chess, trivia) it is still severely lacking in in terms of “general” intelligence. It is my belief however, that is Moore’s law on transistor density holds (or is transcended by some other technology such as 3D processors and/or quantum computing). We may see a rise of general intelligence (either through the allowance of whole brain emulation on these machines or through some other ground-breaking algorithm).

In the meantime there is great interest in leveraging the power of information technology to make legal services more accurate and affordable. This efficiency aspect which you can argue is a big reason for automation of production and services in general has some interesting implications for the whole legal institution of society.

What if in the near future, we see a legal services world which is mostly dominated by a superior business model (which will almost certainly level technology)? Think of it as a mashup between the dominance of the Windows operating system and Uber. It will be popular for the sake of affordability and efficiency. While there may be a few competitors, legal services and information interpretation will be provided by entities privately controlled by a few people (versus the rest of the population).

Law in society is necessary for providing order and safety for everyone. It can be as vital as water, food, and shelter in modern civilization. What worries me is that the ability to access it may end up being concentrated in the hands of the few. Echoing the above quote from Prof. Hawking, there is always a chance. I believe that these technologies can greatly enhance humanity’s quality of life, with law of course being one aspect. But we must tread carefully with foresight aimed towards everyone’s benefit.

Just some food for thought.

Also if you wondering why used a picture of an Owl for the header, it is a reference to the “The Unfinished Fable of the Sparrows” from Nick Bostrom’s 2014 book SuperIntelligence: Paths, Dangers, Strategies. Please see this lovely video for a summary.

According to Carl Benedikt Frey and Michael A. Osborne’s study, The Future of Employment: How Susceptible are Jobs to Computerisation (the “Article”), paralegals and legal assistants (collectively, “Professionals”) are likely to be future victims of computerization. Although lawyers were labelled as non-computerizable, I am not personally convinced that the ship has sailed (“Into the Sunset”) for these significant Professionals in the legal field.

The authors of the Article referred to computerization as “job automation by means of computer-controlled equipment.” With legal innovations such as Blue J Legal, ROSS, and Knomos – among others, I cannot deny that these technologies will assist and improve the field – but I do not necessarily agree they will completely replace Professionals through computerization.

Considering the authors’ conclusions that computerization will mainly substitute low-skill and low-wage jobs – and wages and educational attainment exhibit a strong negative relationship with the probability of computerization. This leads me to believe that the authors (through the probability software described in the Article) have assumed that the Professionals are low-skilled, have low-wages and have low levels of educational attainment.

The authors described human biases as a constraint of human operations. They used the example of Israeli judges as being substantially more generous in their rulings following a lunch break. I believe a similar bias contradicts the findings of the Article in relation to the Professionals – specifically, that in determining what is low-skilled and a low level of educational attainment, comes from a biased and prejudiced perspective.

First, to consider the authors’ example of law firms relying on computers that scan thousands of legal documents to assist in research by sorting and presenting results graphically.  Although true and without a doubt, innovative – this example fails to recognize who will be putting the documents in the scanner. I understand that this is only one, simplistic example the authors selectively chose to use – however, I highly doubt that the lawyer will be doing the scanning.  Although he or she could be scanning, would it not be more valuable for the client to have the lawyer do traditional legal work (e.g., advocating) rather than feeding documents into the scanner?

The argument is that the lawyer doesn’t need to put the documents in the scanner because the ‘computer’ can do it, itself. But what if the papers become jammed – which is more than likely when “thousands of legal briefs and precedents” are being processed through a machine. Is it valuable for the client to displace the Professionals with this technology so that the lawyer must juggle both the legal and ‘low-skill’ task of administration?

The argument then becomes that the lawyer can out-source the scanning. If this is the case, then a similar counter-argument comes into play – that is, that someone needs to do the scanning at a price that is lower than the Professionals doing it themselves. This means that the transport of thousands of documents, the cost of ‘scanning’ employees, the overhead in that company, and the report generated would be more affordable than Professionals doing the same, in-house.

This also means that there are Professional-like employees, doing only one specific job, which requires the lawyer to obtain the documents directly from opposing counsel (because both lawyers no longer have Professional assistance), package them, send them to the company, instruct the scanning company, pay them, and then review the report. This is all assuming that the lawyer who requires the scanning is able to get a hold of opposing counsel, and opposing counsel has the time to collect, package, and send the documents himself or herself. The company would also be required to screen conflicting interests between firms and parties. What would be the outcome if the company accidentally sent the wrong report to opposing counsel? Would professional liability insurance cover the negligence of such actions? Would it not be more efficient for in-house Professionals to do the work themselves? According to the Article – it would not.

This example also fails to consider the reality that Professionals are arguably more capable than the lawyers they work with, at such ‘low-skill’ tasks. Although lawyers are legally qualified to attend court etc., the Professionals are the ones who organize, prepare and support these lawyers in their careers. Yes, computerization can organize and prepare documents, but technology cannot provide the intimate support in the flexible nature that lawyers require – in an environment that is constantly evolving. As stated in the Article, computerized social intelligence will need to be overcome for lawyers to be fully automated. This social intelligence is, in my opinion, a key component in the relationship between lawyers and Professionals. The Professionals personally know the lawyers – who they are, their writing styles, and their preferences in how ‘things get done.’ They develop rapport with the lawyers, become trusted confidants, and allow the lawyers to do the work they are qualified to do by doing the Professional work that can otherwise be done by an arguably low-skilled person with a low-level of educational achievement.

This brings me to my second critique – that Professionals have low levels of educational attainment. In the formal sense, this is true. Legal assistant and paralegal programs are commonly two-year diploma programs from accredited institutions. Although this is a ‘lower-level’ of educational attainment than a four-year undergraduate degree and three-year law degree, this fails to consider previous educational attainment and professional experiences. Taking the perspective of the authors, Professionals with twenty years of experience in the legal field would be replaced by computerization over lawyers who have recently been admitted to their respective bars. This would mean that those lawyers have been trained in ‘low-skilled,’ administrative tasks and that they are more capable and efficient at completing the same.

Although I do not disagree that lawyers should be able to understand how to complete such tasks on their own, I do not believe that this means Professionals will be replaced by computerization. These Professionals are professionally trained and educated to contribute to the final product for clients. This product requires, in addition to administrative tasks, the use of specialized technology (that I do not disagree should be used) for specific tasks, that assist lawyers in providing advice and legal services. These Professionals conduct their specialized services in order for lawyers to execute their own specialized services, that the Professionals cannot necessarily do.

For example, Professionals require specialized training in corporate governance in order to maintain the registration of corporations, incorporate companies and ensure the corporations are complying with provincial, national and in some cases, international standards. Although lawyers should have an understanding of such legal services, should the lawyer be independently responsible for these tasks? Maybe. What about when there are hundreds of clients, who have multiple corporations, who require incorporation of more, that all require annual filings and compliance? What if these corporations are involved in litigation, negotiations or are in the process of becoming bankrupt? Where should the lawyers focus their efforts? According to the authors – on the tasks that are arguably computerizable.

The argument again becomes out-sourcing of, using this example, registry services. This means the responsible lawyer, who is trusted in maintaining the corporations, must personally organize and schedule the required filings and ensure the corporate minute books are up-to-date. Although corporations can do this themselves – that is maintain their own registration, which many do – not all clients want to or have the ability or time to do so. That is why they hire lawyers, who utilize the entrusted Professionals, to contribute to satisfying the needs of clients.

Although these are a few of many examples of the tasks that Professionals undertake in the legal field, and both paralegals and legal assistants have different responsibilities and obligations (and should maybe not be categorized as Professionals under the same category), I believe that this further complicates the simplistic conclusion that these professions are computerizable. I agree with the authors that new technologies must be adopted, and that resistance to do so is dangerous with an evolving society. In addition, I agree that Professionals should (and will) adapt to these changes. I just find it very difficult to comprehend that these roles in the field are in essence – obsolete. Instead, paralegals and legal assistants will utilize and embrace technological advancements to further the interests of clients, in the administration of legal services.

This is just my critical analysis of specific conclusions in the Article. Maybe this is the exact bias the authors discussed – in my understanding and the value I see in paralegals and legal assistants. If this is the case, according to the authors, I might be the exception to lawyers being non-computerizable, and as John Lanchester put it in The Robots are Coming, “going, going, and about to be gone.” #L21C