Last week, I asked whether the lawyering process could be automated. First, I explained that I strongly believed that lawyers who incorporate innovation and new Internet-based and mobile tools will have a distinct advantage over those who turn a blind eye to emerging technologies. I then noted that automating the practice of law can oftentimes be a difficult proposition, especially when it comes to litigation. As such, I concluded that, while technology could replace certain aspects of lawyering, the legal advice and advocacy of a trusted advisor was a decidedly human factor that was irreplaceable.
My post lead to an interesting discussion on Twitter between Jeff Brandt, Toby Brown, Keith Lipman, Greg Lambert, and I regarding the feasibility of automating the practice of law. I was in the minority, arguing that automation of all functions was unlikely. As a direct result of our Twitter discussion, Toby drafted a post at 3 Geeks and a Law Blog, The First Time I Saw a Computer Practice Law, in which he argued that the legal profession has done very little to even attempt to automate legal functions. He then offered an example from a program that he used in the 1980s that effectively automated the intake process of an estate client and then provided actionable legal advice.
After reading the post, I asked (on Twitter) for an example of automation in a litigation practice. In response, Toby offered the following example in the comments to his post: using a computer program to draft a Complaint based on the specific facts of a case whereby the output would be:
A draft document where: 1) a portion of the claims will always be included, 2) another portion will be included based on the client’s situation, and 3) some claims will be excluded since they don’t meet the client’s situation, or they conflict with other claims the client is making.
I found that example, as well as the following example offered via Twitter by Keith, to very illuminating:
(R)isk analysis on settl(ing) v(ersus) litigat(ing) in particular subject areas could be developed.
Both of these proposed scenarios were very helpful to me, since they gave me concrete examples of litigation processes that could be replaced by computer automation.
Greg then posted follow up commentary in this 3 Geek’s blog post: “The Next Generation of Computers Practicing Law,” and included this very interesting video which provides additional examples of computer automation of law practice, in the form of apps created by Georgetown Law students:
Aside from being impressed by the innovation and enthusiasm of the students in the video, what struck me most was the irony evident when one of the students discussed the “Same Sex Marriage Advisor App” in the middle of the video. She explained how it would “replace the associate.” In other words, the law students were creating apps that were designed to effectively eradicate entry level positions–their future jobs–by replacing the job functions of associates with technological innovation.
We risk creating problems when we use terms like “replacing lawyers” and “automating lawyers” in this discussion, because they pit human against machine and create a larger and more dramatic context than we require for this issue.
I think we should be focusing instead on the identification and performance of lawyer functions. What do lawyers do? Make a list: in any practice area you choose, it’ll be extremely lengthy. Then ask: which of these functions can be performed at least in part with an automated process or system? The answer, I think, is: virtually every one of them. And that includes the supposedly safe old standbys like “strategy” and “counsel”: huge databases of business and legal intelligence will be able to provide increasingly reliable indicators of how various tactical approaches will pan out.
I agree with much of his analysis and particularly appreciate the way that he re-framed the question, since it was of great assistance to my understanding and broke down the issues quite nicely.
That being said, I continue to disagree with the assertion that machines will be able to replace “virtually every” function performed by attorneys.
Here’s just one example of something machines can never replace–an attorney’s intuition and knowledge of the parties involved. Years ago, as an assistant public defender assigned to a specific courtroom, I had the home court advantage over other attorneys. I knew the judge and the assistant district attorney well. I knew what their pet peeves were, I knew what was going on in their lives, if they were in a rush on a given day, and, importantly, they knew me. There was a level of trust and camaraderie that no computer could ever hope imitate and which served me very well in representing my clients. Predictive analysis could never duplicate the whole of my experiences, all of which served as a backdrop for each action and decision that I made while advocating on behalf of my clients.
Simply put, despite all of the interesting and helpful examples offered by my esteemed colleagues, I still remain steadfast in my belief that technology cannot replace the human aspect of lawyering and and therefore, many aspects of lawyering–especially those performed in litigation–will always be performed by human beings rather than machines.
But don’t take it from me. Instead, consider the wisdom of my all-time favorite philosophers, the characters from Star Trek: The Next Generation:
(After La Forge has suggested an alternative way to get out of an energy trap instead of letting the computer fly the ship)
Captain Jean-Luc Picard: Have you analyzed the risk factor?
Lt. Commander Geordi La Forge: The numbers say it’s even money. It’s no better than turning it over to the computer, but no worse either. But I say forget the numbers! There’s no way the computer can compensate for the human factor, the, the intuition, the experience.
Captain Jean-Luc Picard: And the wish to stay alive.