March 3, 2016, 8:30 am CST

By D. Casey Flaherty

D. Casey Flaherty.

The law does not exist for the purpose of keeping lawyers employed. I cribbed that line—and many others—from Richard Susskind back in the days when there was still a question mark punctuating The End of Lawyers?

I think it is fair to say that Susskind has gotten past the interrogative. In his latest book, The Future of the Professions, he and his son, Daniel, write “we foresee that, in the end, the traditional professions will be dismantled, leaving most (but not all) professionals to be replaced by less expert people and high-performing systems.”

If that is not clear enough, consider:

“Our expectation is that, over time—by which we mean decades rather than overnight—there will be technological unemployment in the professions. In other words, there will not be sufficient growth in the types of professional tasks in which people, not machines, have the advantage to keep most professionals in full employment.”

Similar pronouncements in other sectors has given rise to a general sense of automation anxiety, where worries of a jobless future lead to headlines like “A World Without Work” that in turn engender further headlines like “Americans Are More Afraid of Robots Than Death.” There is plenty of counterprogramming that relies on the Luddite Fallacy and the automation paradox to assure us that on net, technology increases the demand for human labor and to explain that the automation of tasks rather than jobs will change, not eliminate, work.

Automation anxiety is fairly acute in legal (or, maybe, it just seems that way because that is where I spend my time). The 2015 Altman Weil Law Firms in Transition survey (PDF) asked managing partners if a law-focused Watson would replace timekeepers—just as technology has displaced legal secretaries, seemingly permanently. Only 20 percent responded that computers will never replace human practitioners. That was down from 46 percent when the same question was posed to the same group in 2011, the year Watson first won Jeopardy! As always, there is counterprogramming like the recent New York Times’ Bits blog post “The End of Lawyers? Not So Fast.” that, among other sources, cites to a draft study Can Robots Be Lawyers? which, while not yet for quotation, seems destined to conclude that the popular accounts of the potential displacement of lawyers by automation are a bit overblown.

This is the point where I lose my lawyer, technologist, and futurist cards by admitting something: I have no idea what is going to happen or when. Though by no means an expert, I do what I can to keep up on the literature. But there is little consensus in the literature. Many authors—Robert J. Gordon, David A. Mindell, Tyler Cowen, Erik Brynjolfsson, Martin Ford—make divergent, compelling cases without being completely convincing if only because prediction is hard, especially about the future.

But here’s what I do know. I know that technology vendors who are working on or with capable machines have nothing to apologize for. This post came about because Thomson Reuters hosted a Legal Innovation Summit in January to showcase some of their new products. (Full disclosure: Thomson Reuters covered my expenses to attend the summit.) The panel where they discussed their work with IBM’s Watson commenced with what has become the de rigueur pre-emptive apology. The panelists caveated their session with an explanation that Watson, Esq. would augment, not replace, lawyers. This is a completely sane point of view. But here, as is often the case, it directly preceded a hypothetical use case where the machine replaced, not augmented, most of the lawyers involved.

Eric Laughlin, Thomson Reuters’ managing director of legal managed services, imagined a scenario where an associate was able to use Watson to perform on-the-spot legal research instead of slaving away for hours. He then extended the hypothetical and eliminated the associate because the partner had a passive, intelligent agent integrated into her inbox so that she did not need the associate—Watson used Watson for her. He then extended the hypothetical again and eliminated the law firm because, of course, the client could just ask Watson directly. I believe the client was in-house counsel, so Laughlin did not fire every lawyer in the scenario, just most of them.

None of this offended my personal sensibilities. But I felt compelled to needle Laughlin with the observation that he had just described a classic case of technological unemployment right after disclaiming the potential for technological unemployment. His response was pitch perfect. Laughlin explained that while some “temporary dislocation” was possible, we should expect “redeployment” of resources to “higher value activities.” His answer was not only politically deft (Thomson Reuters currently does pretty well selling to those soon-to-be-replaced lawyers), but it was also consistent with much of the literature.

While I thought the answer was honest, I did not think it was complete. Because no one, including Laughlin, seems to have any idea what higher value activities these dislocated resources are going to be redeployed to do. It is easy to imagine a world where partners rely on machines instead of associates to do work that is already being done. It is much harder to configure a future where the machines have taken on those tasks while leading to employment of additional associates to perform higher value work that (a) no one is currently doing and (b) the capable machines, who replaced the associate in the previous work, cannot handle. That doesn’t mean it won’t happen. The markets work in mysterious ways, and it is often hard to identify in advance the exact mechanism by which a transformational technology will increase, rather than reduce, the demand for human labor.

But that’s the thing. I don’t think it is incumbent upon Laughlin, Thomson Reuters, or anyone who is inventing, experimenting, or innovating to defend themselves against the theoretical possibility that their technology or process improvement might reduce the employment prospects or income of American lawyers. I’m totally projecting, but here is how I would have liked Laughlin to respond to my needling:

“Yes, I did just describe something that sounded a lot like technological unemployment. But, while there might be some temporary dislocation, the historical data gives us good reason to believe that the dislocated resources will be redeployed to higher-value activities and that improved technology will increase the demand for lawyers.

“Doing what? I have no idea. And that is not our responsibility to figure out. The law does not exist to keep lawyers employed. We’re working with Watson because Watson is interesting and generates great PR whether it bears fruit or not. We’re working with Watson because Watson shows real promise, might drive superior outcomes for clients, and might prove to be immensely profitable for us. We’re working with Watson because Watson seems to be among the raft of technologies that might be next. We know what happens when large companies ignore what’s next.

“We’re quite familiar with the lump-of-labor fallacy and will be pleased if Watson, Esq. augments, rather than replaces, lawyers. But we don’t need the fallacy to hold to see a return on this investment. We’re ready to sell to law firms (Westlaw, Elite), we’re ready to sell to corporate law departments (P3, Serengeti), and we’re ready to sell directly to business units (63 percent of our business is outside legal). We’re trying to introduce something innovative and useful. We’re trying to make things better. While we may have some notion of how things will play out thereafter, very few product plans survive first contact with the market. Whether the market responds by demanding more or less human labor and, if more, whether that labor is lucrative and from lawyers located in the United States are not really driving concerns.

“U.S. lawyers are probably going to be fine for the foreseeable future. But we don’t need to swear a loyalty oath to protecting their livelihoods. Lawyers don’t warrant special protection from progress. And it is naïve to think that information technology is going to radically transform every information-intensive industry on the planet, save legal. It is not our role to keep lawyers relevant by slowing innovation to a pace that makes them comfortable. It is our mission to give lawyers the tools they need to stay relevant in a broader economy that shows no signs of slowing down for anyone.”

D. Casey Flaherty is the founder of the legal tech consultancy Procertas, provider of the Legal Tech Assessment. He was a 2013 ABA Legal Rebel. He also serves on the board of advisors of NextLaw Labs.

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