Ken Grady is the Lean Law Evangelist for Seyfarth Shaw LLP, and formerly was Chief Executive Officer of SeyfarthLean® Consulting, LLC, a Seyfarth Shaw subsidiary and an industry leader in legal industry issues and trends.
Last week I published a post titled “Thinking Long Term in the Legal Industry.” In it, I took the position that lawyers think short-term and need to think long-term. In particular, I suggested that lawyers in law departments and law firms should partner with technologists to “support the growth and development of technology that will benefit all of the participants.”
That suggestion is a bit ambiguous, so in this post I’m going to take it a bit further. Doug Laney, VP of Research for Gartner Inc., wrote an article published in Forbes that set out three trends Gartner sees transforming business processes between now and 2020. Those trends are:
“By 2020, information will be used to reinvent, digitalize or eliminate 80% of business processes and products from a decade earlier.”
According to Laney, that means “[c]ustomers, employees and citizens will become engaged principally through digital means. With operational processes quickly becoming digitalized, traditional analog and manual processes will be automated, including both physical and human elements. Many, if not most, decisions will be algorithmic, based on automated judgment.”
Translated, it means that things will talk to other things and perform tasks that formerly ran through people. The sensors in a machine will know that something is about to fail and alert the repair company that service is needed. No waiting for the part to actually fail and then having to call the repair company only to be put on hold (while cleaning up the swimming pool in the laundry room).
Evaluating what this trend means for the legal industry, Law Technology News says “this could be a double-edged sword for the legal support industry, migrating jobs once handled by highly skilled and educated personnel to software and other technology solutions.”
We should take the 2020 date with a grain of salt (as we should take all other dates in these predictions). Putting aside the date, however, we should think more broadly about what this could mean for the legal industry. As algorithms, not humans, make more decisions we will see more instances where logic may offer a solution that humans don’t prefer.
Take the case of autonomously driven vehicles. You are sitting in a self-driving car as it drives down a suburban street. Suddenly, a child darts in front of your car from between two parked cars. Either you or the child will be hurt. Which action should your car choose? (You may remember the scene from the movie “iRobot” where the robot chooses to save Will Smith over the young girl because Will has a higher chance of survival. Will complains that a person would have known to save the little girl.) This “lesser of two harms” scenario can arise in many situations.
Legal Issues, Ethical Issues
While the scenario I describe above raises ethical issues, it also raises many legal issues. Lawyers will confront those issues in rapidly increasing frequency as technological developments roll out. There is a broad and dascinating gap between what technology can do and human behavior. That gap is closing more rapidly than at any other time in history. Still, technology can’t answer philosophical or ethical questions and can’t make large, intuitive leaps. Perhaps the washer should ask for repair. Or, you might be ready to move and don’t want it repaired because you are buying a new one. Just because we can do something doesn’t mean we hould, and it doesn’t tell us who bears the consequences when technology “decides” to go down the wrong path. Lawyers should spend their time focusing on these questions rather than fighting the inevitable. These issues present great opportunities for lawyers, if they can overcome their fear of technology.
“By 2017, more than 30% of enterprise access to broadly based big data will be via intermediary data broker services, serving context to business decisions.”
Businesses need to make decisions quickly in a competitive market and they don’t want to make those decisions in a vacuum. Enter data. Businesses have lots of data locked in their servers, but that isn’t always the best data to provide context. There is, however, a big database called the Web. It has a lot of real-time data and can provide a great context for decision-making. The data broker can pull that Web data, look at the business data, and serve up the context that enables a company to make rapid business decisions. Blue is out and red is in, time to pivot.
Law Technology News offers this category as a possible refuge for those in legal support technology businesses uprooted by Gartner’s first prediction. People could migrate from legal support technology companies to data-brokers, building data engines that combine Web and server information into context for those making decisions. Data-brokers could even specialize, becoming the experts on providing the context for an industry supporting decisions.
Lawyers make decisions every day and seldom access the growing wealth of information that provides a context for those decisions. As an in-house lawyer, trying to keep up with developments in a few substantive areas of law is a huge challenge. Most in-house lawyers are generalists, which means they really are covering many dozens of substantive areas often relying on legal intuition and gut feel. These lawyers could use help from data-brokers who combine information available to the in-house attorney (or more precisely, information which should be available) with Web information.
The pressure to understand context increases as businesses increase their global activities. Lawyers in the United States often are called upon to answer questions about business activities in foreign countries. It may be easy for a company to do business in those countries, but it isn’t so easy for an in-house lawyer in a small law department to handle the broad range of legal issues raised by the business. With constrained budgets, contacting a foreign lawyer to get an answer to every question often is improbable. While making decisions in the absence of such advice isn’t ideal, the risk could be buffered by having quick access to data that provides a context for the decision.
“By 2017, more than 20% of customer-facing analytic deployments will provide product tracking information leveraging the [Internet of Things].”
Remember all the frenzy about RF (radio frequency) chips? Manufacturers and retailers put those chips on products allowing them to track the movement of the products. It helped global logistics systems become more efficient and take out labor (just poll the warehouse to find the inventory). Welcome to version 2.0. Using far more advanced chips, we now will track where the product is, what it is doing, and what it needs. My refrigerator, currently at 1234 Merrylane Drive, has been operating at the following level for the past month – please check it out.
Law Technology News says this feedback loop could “enable a more holistic view of how and why lawsuits are being filed, allowing firms to offer a practice type within a region being underserved, or offer alternate-fee arrangements to remain competitive in an area.”
For every yin there is a yang. The new sensor monitors my refrigerator, but it fails to catch something and now I have a problem. Before, the risk may have been on me as the operator. As manufacturers take on more responsibility for monitoring the condition of the product, they take on more potential liability. They also take on the risk of what they could have monitored, but chose not to. If the technology exists and you already have a monitoring program, where do you draw the line between monitoring you want to do and monitoring you must do (or face big damages)? Lawyers should be working with technologists to answer these questions.
The question most knowledge workers have about technology is whether it will replace them. The answer, of course, is yes and no. Technology will replace many tasks performed by knowledge workers. But, for those in the legal industry, each technological change opens at least as many new questions as it closes. The trick is not to challenge technology, but to embrace change and learn how to evolve with it.
There may come a day when artificial intelligence equals or even surpasses human intelligence. When that day comes, the game changes. Many will say that day is so far off that worrying about it is not a value added use of time. Some will recognize that we still have the chance to shape what will happen on that day. What role will technology play in our lives?
How will we govern a society where technology plays an increasingly important role, not just as an enabler, but as a doer? Many lawyers are very content to let technologists run with these issues and hope for the best. The successful lawyers will participate in the process and support the growth and development of technology that will benefit all of the participants.
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