How Technology Is Changing the Practice of Law

Vol. 31 No. 3
ByBlair Janis
Blair Janis, JD, is the director of software development at the
WealthCounsel Companies and an adjunct faculty member at the
Brigham Young University Law School, where he teaches courses in
legal technology.

Do you remember what you were doing on June 29, 2007? There
are days in history that are significant and memorable. I can still
remember where I was and what I was doing on March 30, 1981,
when Ronald Reagan was shot; on January 28, 1986, when the
Space Shuttle Challenger exploded on live television; on November
9, 1989, when the Berlin Wall came down; and of course September
11, 2001. So what is significant about June 29, 2007? That is the
day the first iPhone was released. Perhaps it was not as historically
significant at the time as some of these other events, but the
release of the iPhone has arguably had more impact on how we
have integrated the use of technology into our daily work and
personal lives than any other technology.
Moores Law
Not long ago my 14-year-old son was complaining about the fact
that his ten-year-old sister had just gotten an iPod touch. His
objection? He hadnt gotten his first iPod until he was 12. I
responded, When your six-year-old sister turns 12, she will have
devices you havent even heard of yet.

There is a Persian tale about the inventor of chess presenting his

invention to the king, and the king was so pleased he allowed the
inventor to name his award for the invention. The man asked the
king that on the first square of the chessboard he would receive one
grain of wheat, two on the second, four on the third, and so on,
doubling the amount each time. The king quickly accepted the offer,
thinking it was a low price to pay. However, when the amount was
calculated (264 1 or almost 78 million tons of wheat), the king
discovered it would take more than all his wealth to provide the
award.
In 1965 Gordon E. Moore, one of the Intel founders, wrote a paper
observing that the number of transistors on integrated circuits
doubles approximately every two years. This is known in the
computing world as Moores Law. As it turned out, Moores Law
became a self-fulfilling prophecypartly because the observation
was based on empirical data at the time, but more importantly
because the law is now used in the semiconductor industry to guide
long-term planning and to set targets for research and
development.
While the technology around the legal world advances at an
exponential rate, the technology within the legal world, especially as
it relates to lawyering (i.e., providing legal services as opposed to
running a law business), is much slower. There are good reasons for
this. Lawyers in general are risk averse. We need to be. One of the
primary benefits of using a lawyer for legal services is to obtain
some level of guarantee that the advice or outcome of our services
will actually accomplish the purpose for which the services were
provided. This places a heavy burden of responsibility on lawyers to
ensure not only that the actual services they provide but also the
manner in which they provide these services will not in some way
increase the risk of breaching this important obligation.
For each new technological advance, a high level of analysis and
review is needed before lawyers can implement it. Our professional
obligations demand that we not take risks, so we tend to stick with
what we know works. This creates tension between the risk
aversion in the legal profession and the ever-changing expectations
and demands of legal service consumers. This tension is measured
as the difference in the rate of adoption of new technology by legal
service consumers and the rate of adoption of new technology by
legal service providers. Assuming Moores Law represents the rate
of technological advance for legal services consumers (i.e., doubling
every two years), and assuming a slower rate of growth for legal
service providers (perhaps increasing by one-half every two
years?), then every two years the tension grows exponentially at a

rate of 1.5 times. As that tension continues to grow, the legal

services industry will find itself competing with outside providers
attempting to fill the gap. This phenomenon is already taking place
and, as legal service providers, we should not ignore it.
Artificial Intelligence and Law
Merriam-Webster defines artificial intelligence as an area of
computer science that deals with giving machines the ability to
seem like they have human intelligence and the power of a
machine to copy intelligent human behavior. As a technology
enthusiast, I spent much of my time in law school and subsequently
in my career exploring the application of artificial intelligence to the
analytical skills needed for successful lawyering. I am convinced
that although machines may assist in significant and meaningful
ways, they are not yet (and I am doubtful if they will ever be) able
to fully replace the value of skilled lawyer involvement in the
provision of legal services. Having said that, I admit that there are
many areas of legal services lawyers have traditionally provided that
a machine can very easily and will eventually replace.
Electronic discovery (e-discovery) is an area where there are
numerous examples and implementations of artificial intelligence
both replacing work product from lawyers and at the same time
improving the experience of law practice. Much has been written,
discussed, and litigated around the technology and benefit of ediscovery. The focus of most providers is to provide intelligent
algorithms to find information based on concepts and key words
agreed upon by the parties to the litigation. The hot new thing in
e-discovery is the use of a higher-level artificial intelligence concept
called predictive coding.
Essentially, predictive coding is a process whereby a machine learns
from watching human behavior and then applies what it learns. This
is the technology behind how Amazon and Google seem to always
know what you are looking for before you start looking. The
machines learning algorithms are designed to gather data, analyze
it, and then make decisions about what is relevant. And because of
the increased computing power on these machines, this is done
very quickly. A recent survey of Fortune 1000 Counsel by FTI
Consulting indicated that 57 percent of their respondents believe
that predictive coding will be a mainstream tactic by 2015. These
respondents also indicated that in addition to technical aptitude,
successful predictive coding e-discovery requires skills in statistics,
accounting, project management, and linguistics.
If we apply Moores Law to e-discovery, however, predictive coding
will be the old technology in 2020. So what comes after? From my

research, I believe the most likely next step is the use of inductive
logic programming. This is essentially where a neural network is
created, and with minimal supervision the network can use speech
and images to detect patterns or objects. In 2012 Googles X
laboratory created an incredibly large neural network of 16,000
processors and turned it loose by giving it access to 10 million
YouTube videos. On its own, the network taught itself to look for
cats. The concept of inductive logic programming is not new, but
with the falling costs and increased power of computing capability, it
is now something that computer scientists can start implementing.
Its just a matter of time before it makes its way into e-discovery
tools.
Changing the Way We Practice
The key to our future success as legal service providers lies in our
ability to identify the specific lawyering areas in which we can be
replaced and those in which we cannot be replaced. The most
prosperous law practices in 2020 will be those that are able to
successfully adjust their business models to use artificial
intelligencetype tools while at the same time promoting and
delivering the part of the legal service value proposition that the
machines are not able to provide.
Consider for a moment the success of non-lawyer legal service
providers such as Rocket Lawyer and LegalZoom. Both of these
online services provide the ability for legal service consumers to
create their own legal documents and forms. Both services proclaim
that they do not provide legal representation, are not law firms, and
are not a substitute for an attorney or law firm. Yet they essentially
provide the same deliverable that many of us do: contracts, wills,
business formation documents, bankruptcy filings, and the list goes
on. They provide consumers with the ability to create documents
that are intended to accomplish a specific legal purpose.
These services have identified and are executing a business model
in areas in which artificial intelligence can replace lawyers. They
also recognize that there is a significant limitation to the value of
these services. At the end of the day, none of these services
can guarantee that the deliverables they are providing can and will
accomplish the purpose for which the consumer obtained that
deliverable. In fact, while their marketing efforts portray
the results of their services in a positive light, they clearly disclaim
any liability from attorney-client privilege and legal work product.
Understanding this limitation in the product they provide, these
services in almost all cases now also provide services to connect
their consumers to lawyers.

When legal service consumers hire a lawyer to create a legal

document for them, they actually receive two items of value: first, a
document or other work product that meets the legal needs of the
consumer (the more replaceable part), and second, some level of
guarantee of the result by the attorney, which only a competent
attorney can provide, with malpractice insurance and a structure of
professional responsibility requirements as supporting elements of
the guarantee if something goes wrong (the more irreplaceable
part). The most successful law practices in 2020 will have found a
better balance between minimizing the cost of the replaceable parts
for legal service consumers while maximizing the cost of the
irreplaceable part.
As we consider these concepts, the outstanding question is whether
or not these non-lawyer legal services should be considered an
enemy or an ally.
The Billable Hour
There is another significant factor that adds to the aversion of
technology adoption for lawyers. While many firms are exploring
fixed fee and unbundled legal service models, the billable hour
continues to be the most prominent revenue model for lawyers.
Under this model there is little motivation to spend unpaid time
innovating, learning new technologies, or implementing tools that
create lawyering efficiency.
Several years ago a partner in a firm I worked for asked me to
automate a lease he used for a large client who owned high-rise
office buildings. The lease template was about 65 pages. It took me
only a few hours to create an automated template. Using the
template, it would take him only about 15 minutes to generate a
first draft of the lease for new prospective tenants, whereas it
typically took him about three or four hours of billable time to
generate the lease manually. As I presented this automated
template to the partner, he was very pleased with the results at
first. Several minutes into my presentation, however, he asked the
question that doomed the project: How will I make any money
from this?
The partner earned thousands of dollars in revenue based on the
time it took to create the initial draft of the lease. He also earned
revenue on the subsequent hours spent negotiating the final draft.
With the automated solution, though, it would take only about 15
minutes or less to create the first draft. So based on a billable-hour
model, his revenue expectations for this client would be cut nearly
in half. I suggested that he consider changing his revenue model to
charge a fixed fee for the creation of the lease and charge by the

hour for any negotiation and modifications to that lease. He didnt

feel that the law firm would support this revenue model and decided
not to implement the automated solution.
Lawyering Technologies in 2020
Over the next six years, the available computing power will likely
double at least twice and maybe three times. This increase in
computing power and new devices will likely drive current lawyering
technologies such as document automation, decisions engines, ediscovery tools, communication and collaboration tools, legal
research tools, and legal expert systems to continue to mature and
progress in functionality and availability. Most of these tools started
out in a desktop delivery environment, but there has been a sharp
increase in the number of online tools available to attorneys. This
trend will continue so that by 2020 most of the viable solutions will
be available either exclusively over the Internet or with very limited
desktop interfaces. Technology service providers are becoming
device/operating system/browser agnostic. Trending industry
concepts such as big data and unstructured databases will allow
vendors to provide more robust, higher performance, and
increasingly feature-rich applications.
Other technology trends will allow solo and small firm attorneys to
access more information less expensively, to create and join
communities of attorneys, and to collaborate within these
communities in a way that is similar to having the networking and
support that attorneys enjoy in large firms. The net effect of these
trends will empower these attorneys to compete at a higher level
with larger firms.
Perhaps most important to the future of the law practice, we will
also see a continued influx of non-lawyer service providers enter the
legal market, some of which will be exclusively consumer focused,
some lawyer focused, and others will sell their wares to both
consumers and lawyers.
By 2020 the delineation between legal service deliverables (i.e.,
work product and the value of the lawyer stamp of approval on that
product) will be much clearer than it is now. The question remains,
will the artificial intelligence and technology that drives the creation
and delivery of the work product be coming from the law office or
somewhere else? I believe the answer to that question depends on
us, the lawyers.