Technology and changes in the law

Not long ago my 14-year-old son was complaining about the fact that his 10-year-old sister had just gotten an iPod touch. His objection? He hadn't gotten his first iPod until he was 12. I responded, "When your 6-year-old sister turns 12, she will have devices you haven't even heard of yet."

Thus begins an article by Blair Janis titled "How Technology Is Changing the Practice of Law" in the May/June 2014 issue of GP Solo, a publication of the ABA Solo, Small Firm and General Practice Division.

Janis uses this example to highlight the fact that technology external to the legal community - for example, research - advances at an exponential rate. In contrast, Janis notes, the technology within the legal field - for example, delivery of legal services - advances at a much slower pace.

Among other reasons, there are three basic attributes of lawyering that cause this disparity: precedent, the traditional method of billing, and the lawyer's professional guarantee.

First, law is based on precedent. That means that a lawyer must review the history surrounding any given issue before coming to a conclusion in the matter at hand.

Second, the current primary billing model is the "billable hour." Because technology cuts the time required to do most tasks, it can reduce the fees earned by lawyers, notes Janis. Thus, lawyers often resist technological advances. However, one solution is for law firms to experiment with fixed fees and other approaches to charging for their services, sometimes called "alternative fees." The method of billing should be designed to bring the lawyer's interest closer to the client's interest. When there is harmony and a trusting relationship is created, there will be a "loyalty" created between client and lawyer, a situation that bodes well for both.

Third, one of the attributes of lawyers is that a lawyer's advice is a "guarantee." In other words, if the lawyer's advice is incorrect, the threat of malpractice protection for the client always lurks in the background. In order to make sure that a malpractice claim is not put on the table, the lawyer must research, review, and think about the conclusion to be discussed with the client. The "tension between [a lawyer's] risk aversion ... and the ever-changing expectations and demands of legal service consumers" can be measured by the difference in the rate of adoption of new technology.

As this tension continues to grow, Janis contends, the legal services industry will find itself competing with outside providers attempting to fill the gap. In many instances, the deliverables provided by technology (forms created by computer programs) compete with the very same deliverables provided by lawyers, such as contracts, wills, and other documents. The difference is that lawyers have not utilized technology to expedite creation and delivery of these documents. And outside providers have used artificial intelligence to create the very same deliverables.

Despite this, however, these outside services cannot and do not provide the "guarantee" that lawyers do. Janis concludes that "[t]he 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." In other words, lawyers need to embrace technology, using it to supplement what they can offer that machines can not.

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Edward Poll, J.D., M.B.A., CMC, is a law practice management thought leader and contributor to this publication. His website is at www.lawbiz.com.

Published: Thu, Aug 21, 2014

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