Tech Taking Over Feed

The Revealing Parentage of Europe's Most Developed Online Dispute Resolution Court System

ThinkstockPhotos-479710499According to Legal Futures, The Netherlands is leading the way in Europe in the practical application of online dispute resolution. The Rechtwijzer 2.0 describes itself as “the first ODR platform for difficult problems such as divorce and separation, landlord-tenant disputes and employment disputes.” Its development says all you need to know about whether, how, and how fast the staid and geography-bound global legal system is changing. The platform was designed and built by Modria, a California and India-based company founded in 2011 for the resolution of disputes on eBay and PayPal. Its founders are Colin Rule and Chittu Nagarajan. Rule, a non-lawyer, journeyed from a Peace Corps position in Eritrea in 1989 through the Harvard Kennedy School of Government into the stratosphere of innovative mediation and dispute resolution. Nagarajan, an English-trained lawyer, converted a part time position at PayPal to establish a community court into a full time position, leading to the co-founding of Modria itself.

Think that the Atlantic and Pacific oceans and our balkanized, state-based judicial system will keep these transformative innovations at bay in our world? Think again. Modria's software is in use in Ohio to resolve disputes over tax assessments and keep them out of court. A New York-based arbitration association is using it to settle medical claims arising from certain types of car crashes.

And what about Michigan? Court Innovations, a Michigan company developed out of the University of Michigan Law School, uses similar technology to resolve traffic disputes through an online option already adopted by six district courts in Michigan. 

When Watson Eats Your Lunch: The Impact of Artificial Intelligence in Lawyering

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Watson is such a friendly name for an artificial brain that outcompetes our own slow, distracted, and haphazardly stocked neuronal skull factories. How could this cyber-sidekick, named for a second fiddle intelligence, come to undermine our professional authority?

For a long time, our best sci-fi writers and the cognoscenti of artificial intelligence have been telling us that it's not a question of if but when machines will take over even the most sophisticated and nuanced intellectual work. As lawyers we've comforted ourselves that even if that's true, it will happen tomorrow, not today. Surely the uniquely human empathic capacity that bring to the hard mental work of lawyering will make what we do forever unsuited to takeover by artificial intelligence.

The evidence is mounting,  however,  that when is now and a profound transformation in the delivery of legal services is already well underway. Ars Technica told us last week that Law firm bosses envision Watson-type computers replacing young lawyers. Latham & Watkins told The American Lawyer it is "test-driving new IBM Watson-based applications, including cognitive and predictive coding technologies." Artificial Intelligence in Law – The State of Play in 2015? neatly describes the current landscape. In legal research,  the hardest work is "practical implementation against good data at scale;" legal research innovators like Fastcase and RavelLaw have already done that work, and are adding visualization to enhance its usefulness. Many vendors are using procedural rules and inferencing to generate legal documents. And e-discovery has taken off with the implementation of predictive coding (technology-assisted review or TAR) that processes huge data sets using natural language and machine learning techniques. 

But from England last week yet another post on the subject, Come the AI legal armageddon, what's in it for me? that includes the reassuring thought from a young London lawyer that AI may actually bring some joy and comfort to lawyering:

As a fixed-fee direct access barrister, I often end up spending far more time on a project than I can bill to my client – technology which increases my accuracy and decreases my hours is certainly something I’m keen to explore. That said, the main focus of my practice tends to involve translating human interactions into legal terms which are then assessed by human judges and tribunals. Translating into and out of “human” is something technology has yet to learn to do. I’ve no doubt it can learn: by analogy, it used to be said that chess grand masters could never be beaten by machines – until they were. I’m not sure of the degree to which machines should replace human decision making: I’m uncomfortable about the risks of King Solomon-style “justice” instead of living, breathing decision-makers willing to mitigate rough justice with “mercy” and “equity.” Rather, I see technology as an important tool to increase accuracy, decrease time spent on routine tasks, giving me the freedom to efficiently focus on the aspects of a case which genuinely require a living expert in law and 'human'.

With every passing day there are more and more AI tools available to us. Will they nourish us, or consume us? The choice is still ours.

Monopoly: How The Game Has Changed for Lawyers

monopoly boardRichard and David Susskind's new book, The Future of the Professions: How Technology Will Transform the Work of Human Experts, posits that the application of artificial intelligence to services like law, medicine, and even spiritual guidance, will ultimately replace most of the traditional work of the professionals who have long held a monopoly on these services. They argue that a traditional "grand bargain" struck by society with the professions will wash away in the face of the superior product that artificial intelligence will offer. The "grand bargain" they describe is this:

In acknowledgement of and in return for their expertise, experience, and judgement, which they are expected to apply in delivering affordable, accessible, up-to-date, reassuring, and reliable services, and on the understanding that they will curate and update their knowledge and methods, train their members, set and enforce standards for the quality of their work, and that they will only admit appropriately qualified individuals into their ranks, and that they will always act honestly, in good faith, putting the interests of clients ahead of their own, we (society) place our trust in the professions in granting them exclusivity over a wide range of socially significant services and activities, by paying them a fair wage, by conferring upon them independence, autonomy, rights of self-determination, and by according them respect and status.

For lawyers, the bargain has been fraying around the edges for decades. It's not because our commitment to the standards of the profession has changed. What's changed is that broader literacy has opened up access to legal knowledge, and that access is now vastly expanded and accelerated by the Internet. Case in point: just last week Harvard Law School announced its “Free the Law” Project with Ravel Law to digitize all U.S. case law and provide free access.

While the Grand Bargain was fully in effect lawyers didn't have much incentive to market the value of their training in applying knowledge of the law to the needs of potential clients or to compete to deliver legal services economically. The game has changed. The ethical rules still apply, but strategies must adjust. Hence the astonishing proliferation of new marketing tools and advice, and new business models. Lawyers need to make sense of the new landscape to continue to be relevant. And bar associations must help their members negotiate the change to continue to be relevant. The State Bar of Michigan accepts the challenge

The Escalating Cost of Technological Incompetence


The Lawyerist reminds us of several ways in which technological incompetence has caused actual harm to lawyers and their clients. And from the UK, the Solicitors Regulation Authority (SRA) says that cyber criminals have caused “substantial losses” to 50 law firms in 2015.

So far in the U.S. 15 states have amended their rules of professional conduct to bring them in line with the ABA's amended Comment 8 to Model Rule 1.1: 

Maintaining Competence

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject. (Emphasis added.)

The State Bar of Michigan's 21st Century Practice Task Force has this issue on its radar and will be making its recommendation in March. In the meantime, stay safe out there. And use the State Bar's free practice management resources to help.

Self-Represented Litigants: Turns Out We North Americans Really Are Alike

ThinkstockPhotos-121024995Hockey. Humor. English common law. And, apparently, legal services in the 21st century. All things that U.S. and Canada have in common. The University of Denver's Institute for the Advancement of the American Legal System IAALS has released the preliminary results of a study of self-represented litigants that turns out pretty much to mirror the results of a 2013 study of Canadian self-represented litigants. Among its key findings: 1/4 of those surveyed had previously retained a lawyer, and, most significantly for the practicing bar, the most common advice that self-represented lawyers had for others was “get a lawyer.” Both studies showed that the primary motivation for self-representation is financial but that the motivation is "complex and cumulative."

HT @WillHornsby

Are You the Dad In This New York Times Piece?


ThinkstockPhotos-472991366Technology and multi-tasking have become tools in the work-life balance struggle. They let lawyers be on call to respond to client needs and also be "present" for family dinners, and kids' games, concerts, and dance performances. But Sunday's NYT op-ed Stop Googling. Let's Talk warns there are big risks with this strategy.  It makes the case that smartphones, googling, and texting have disrupted our face-to-face conversational interaction and are undermining our empathy. "Our phones are not accessories, but psychologically potent devices that change not just what we do but who we are," writes Sherry Turkle, an MIT professor and author of the book Reclaiming Conversation: The Power of Talk in a Digital Age

To this reader the most poignant sentences in the piece are these:

One 15-year-old I interviewed at a summer camp talked about her reaction when she went out to dinner with her father and he took out his phone to add “facts” to their conversation. “Daddy,” she said, “stop Googling. I want to talk to you.”

Certainly parents from all walks of life engage in this behavior but my bet is that this parent is a lawyer. We are fact-addicted by training and increasingly dependent on technology to martial the information we need to do our jobs. I confess that I often check my smartphone to find or verify information during conversations with my lawyer-husband or lawyer-son. And my lawyer-son does the same. The information accessed sometimes enhances the conversation. But sometimes checking on a fact becomes a trip down a rabbit hole that takes me away from interaction with the people I love. It's a habit I will now try to actively monitor.  I don't want my grandson ever to have to say, "Grandma, stop Googling. I want to talk to you." 

The smartphone habit is tough to break. The siren song of cyber-connection over solitude, self-reflection, and quiet conversation is constant and compelling. But Stop Googling. Let's Talk offers hope. Turkle points to studies that show we can rebuild capacity for conversation and empathy by creating boundaries on our multi-tasking (and technology can even help us do that). But first we have to acknowledge the need. Are you listening?

New White House Memo Gets Specific On Access to Justice

ThinkstockPhotos-452018103A newly-issued Presidential Memorandum on access to justice and the Legal Aid Interagency Roundtable hits the high notes in the playbook of legal futurists -- coordination across traditional boundaries, user-friendly technology, sustainability, and data-driven decision-making. No wonder Richard Zorza, a thought-leader on Access to Justice issues, says the memorandum is a "big deal."  Full memorandum below the line.


Continue reading "New White House Memo Gets Specific On Access to Justice" »

TBT: Fraud is So Much More Efficient These Days

The Bogus Estate 162783_1786164851184_3075644_n


A new type of racket, in which attorneys play a key although completely innocent part, has recently been uncovered by several of my lawyer acquaintances. The plan involves plausible facts and is of such a nature that, even though suspicions may be aroused immediately, the same are likewise allayed because no particular harm can be foreseen. The cautious natures and capabilities of the attorneys involved indicate the scheme can be worked very easily upon any lawyer. It follows these general lines:

A young, well-dressed couple visit the attorney about 9:00 a.m. and request his assistance in probating the estate of the husband's deceased brother. According to the husband, his brother
died in Portland, Maine, leaving the 
bulk of his estate in that jurisdiction. 
That fact is verified by a purported true
 copy of excerpts of the documents filed
in the estate, among which is the inventory. This latter indicates a sizeable 
estate of six figures, including two 
apartment houses, high-value corporate
 stock, etc. The matter having arisen 
suddenly, the husband states that he
 must conclude pressing business matters which precludes any immediate lengthy consultation. Making an appointment for the following day, and leaving the documents for examination, the visitors depart. That afternoon a telephone call is received in the attorney's office, the caller inquiring about the estate. The secretary verifies the visit, but, naturally, indicates her inability to disclose the nature thereof. The caller implies he is making a loan on the basis of the inheritance. When informed of the call, the attorney notes the same for discussion with the new clients the next day.

On the following day, while waiting for the couple to arrive, the attorney examines the documents left with him and observes a few discrepancies. Becoming apprehensive because of the telephone call on the preceding day, and because of the failure of the new clients to return, the logically suspicious attorney decides to visit the address furnished by the couple, and is on his way. Upon arrival, he perceives a lot as vacant as the proverbial sophomore's head. At once he returns to his office and swings into action by calling the Probate Court at Portland, Maine. He is informed that many inquiries have been received in regard to the estate, that it is non-existent and that the whole matter is obviously a hoax. Naturally, the couple never returns. It is speculation, of course, since no known complaints were ever made, but, knowing the propensities of the ordinary layman and, especially since the visit with an attorney of excellent reputation in the community was verified, the general conclusion is that the loan was made. I wonder what the interest rate was! 

Photograph, 1951: Not the fraudulent couple, but my aunt, Janet Lewis Hoffmann, and her husband, Jack Hoffmann, in 1951. Both were well-known photographic models in that era. 

Legal Health Check-up, Meet Smart Design Thinking

ThinkstockPhotos-116628045The Access and Affordability Committee of the State Bar's 21st Century Practice Task Force is tackling the new opportunities and challenges lawyers and potential clients face today in four specific areas: triage, referral and access to online information; access to quality legal counsel; use of legal technicians and supportive services; and business process analysis and simplification.

If we're going to take advantage of the Internet as a tool to help lawyers connect with clients and improve access to justice we need to understand how people act online and offline, and why. Open Law Lab is trying to do just that. Its creator, Margaret Hagan, is a fellow at Stanford Law School’s Center on the Legal Profession and lecturer at the Stanford One of her concerns, and our Task Force's, is how to guide people to pay more attention to possible legal help for their problems and prepare them to take maximum advantage of that help.

In that quest, click here for her (positive) critique of Google Accounts Privacy Checkup, culminating in these recommendations for designing an effective strategy for a legal health check-up "intervention":

  • Reach out to the person, hopefully in a context (like the Google search) that relates to what you’re checking up on, so that they feel primed to engage on the topic
  • Give them insights into their own status quo — tell them something about themselves that they don’t already know, or that frames it in an interesting way. It’s almost like a Buzzfeed ‘which kind are you’ quiz. Or here, where Google tells you who they think you are & what your preferences are.
  • Tell them possible outcomes from their status quo. Give them a sense of what may come down the road — bad consequences, good ones, how they’ll be treated, what they’ll get — if they continue on with their current situation.
  • Provide action steps in which they can immediately change their status quo — whether it’s by setting goals/preferences, taking a step to resolve a problem, reaching out to someone else for hep. Embed easy follow-up action into this review, so that the person can immediately exert their agency (while they’re still thinking about it, and while their preferences & long-term thinking are at the forefront).

Client counseling and prophylactic advice has always been central to good lawyering, but the type of interactive engagement Hagan is describing feels far different than the paternalistic model that has dominated legal practice for most of our professional history. Welcome to the 21st century.

What Innovation in Legal Services Looks Like Globally

57e40ed973fa59abd35136c371af3b88Freshly home from the inspiration of the 2015 conference of the International Institute of Legal Association Chief Executives (ILLACE) in Washington, D.C. I have a heightened appreciation for the promise of Innovating Justice's annual challenge to direct entrepreneurial energy into developing innovations in the justice sector. 

Here's just a sample of this year's candidates for the €20,000 prize:

  • An initiative to make business registration accessible and transparent in Nigeria through automation
  • A public platform to promote consumer protection in the banking industry in Kenya
  • An educational app to make legal resources accessible anywhere, anytime in Canada
  • An app to simplify contesting and paying for parking tickets in Belgium
  • A model to recruit, train and place volunteer lawyers in the slums to provide free legal advice to slum dwellers in Argentina.
  • A U.S.-developed plan to develop a globally collaborative and market-friendly means of collecting and diffusing information about arbitrators

Warning: be prepared to spend more time the Innovating Justice site than you might expect. It's rich, inspiring, and beautifully designed.