Bowing to the Binary Boss

When I read the ramblings of legal futurists who predict rapture that the practice of law will undergo massive structural change in the near future, it throws me back to the days in the 50s when futurists predicts that by the end of the century, we would all wear polyester jumpsuits and get around in flying cars. 

Many of the predictions are modestly interconnected, like the unbundling of legal services (think buy fill in the blank Wills from Legal Zoom), outsourcing of grunt work to Bangalore, where document inspectors are paid 17¢ an hour to push paper from one pile to another, to robots in cravats delivering closing statements.  I have a prediction, that the heirs of half those people who spent $249 for their Last Will and Testament will be needing a darn good litigator when they find out why filling in the blanks isn’t good enough and that Pappy’s small estate has more of a chance of escheating than passing into their hands.

One of the things that few would suggests, not even the most ardent of futurists, is that trial work, and more particularly criminal defense, will ever be reduced to paint by numbers.  This may be because they don’t believe it to be possible, or that they fear that living criminal defense lawyers will beat them senseless if they get wind of the prediction.  The latter is not an empty concern.

Yet, one of our own has boldly leaped where no man has gone before.  Following on a  curious post by Josh Blackman, who is in the process of transitioning from law student to legal scholar by hurdling over the chance to practice law, if only for a moment.

Aside: One of the most intriguing things about most of those who aspire to telling lawyers what their future will be is that they don’t actually practice law, and some have never practiced law.  It’s like being a food critic when no savory crumb has ever passed their lips, and they’ve only gazed upon cuisine from afar, reminiscent of a Star Trek episode they’ve likely never watched where the food looked magnificent but had no flavor whatsoever.  And yet, they feel no shame in telling those who do about the view from those who don’t. Go figure.

This got Nathan Burney, both of him, to thinking, can computers play lawyer?

Software cannot replace the judgment and creativity required for coming up with effective strategies, adapting the law, or persuading others.  Spotting the actual issue from a mess of facts, notwithstanding what the client happens to think the issue is. Figuring out what needs to be done and how best to do it. Coming up with the right questions, to get the most accurate data.  These are all human skills that algorithms just can’t handle at the moment.  These are the high-level functions that you’ll still need a lawyer for.


But a lot of lawyering really can be done by flowchart.  Once the issue’s been identified, it’s just a matter of selecting the correct law to apply, plugging the relevant data into that formula, and seeing what the answer is.  For a lot of junior associates, this is a big part of their job description.  The flowcharts can branch intricately, but that doesn’t make them any less formulaic.


Not what you would have expected, eh?  The Nathans go on:



It’s wrong to suggest, however, that people will be able to replace their lawyers with a website.  This kind of software is not going to be useful to clients — in fact, it could be downright harmful.  You’re still going to have to know what law to apply, how to apply it, when to apply it, and what facts are relevant.  If our experience of clients is any guide, most people — even super-smart people — suck at this.  They’ll say or do things that hurt their own interests, thinking they’re doing the right thing.  They’ll apply the wrong law, at the wrong time, in the wrong way.  Ask any lawyer who’s had to deal with the requests of clients who do their own research online.


But it can be extremely useful to lawyers.  In addition to being a real time-saver, it could be useful to ensure that you’re doing things right — no necessary ‘i’s are left undotted, no ‘t’s left uncrossed.  We can readily envision software that performs the function of a practice guide checklist, plus the researching/cite-checking/summarizing function of a junior associate, plus a self-guided flowchart to help properly navigate even the most intricate and convoluted areas of law correctly.  You’d have to know what you’re trying to do; and you’d have to be able to spot when it’s gone off in the wrong direction and what input is necessary to get back on track; and you’d have to know what to do with the output once you have it — the real lawyering is always going to require a real lawyer — but the right software is certainly in the realm of possibility, and it could be a great thing.


To the extent that we can trust computers to make sure there are no “undotted ‘i’s,” I proudly use spellcheck before posting, and yet constantly have misspelled words in my posts.  Spellcheck is useful. Spellcheck is unreliable.  It’s adequate for the purpose of a blog post, where a typo is no more than an embarrassment, but it would never do for a legal brief.

To the extent that Nathan(s) relates his argument back to what junior associates do, he has a point.  When we look at the rote application of law, whether statutory or caselaw, it takes words and phrases that are regularly repeated, and attaches them to defined issues, producing a predictable result.  Much like the judge who relies on a oft-cited quote from some age-old Supreme Court decision, to dispense with the need to think too hard about whether his reference is bound by actual precedent or the grocery clerk’s checklist.

Nathan would be absolutely correct if the law stopped at the point of competency and inventiveness of junior associates, where we remember the rhetoric and forget the rationale.  Where we cut complex concepts to the quick, and spew simplistic issues out the other end so they neatly fit pigeonholes of precedent.

This isn’t the law, brother.  This isn’t what we do.  We aren’t binary clerks, at least not if we’re any good at the job or care in the least.  We strive for a deeper grasp.  We think.  We push envelopes, not just papers.  We look behind the caselaw, and sometimes underneath and over, to the left and right, to understand why a decision by dead jurists doesn’t answer all questions forever. 

Some people apply the law.  Others make it.  Still others understand it, and how it relates to the unique facts of a case. 

Every case is unique.  I know, that sounds so Pollyannaish, where most see garden variety drug deals or assaults, but it’s true.  Look deep enough, think hard enough, and you will find something unique about your defendant or his case.  It may not be sufficiently important to take it outside the realm of a judge’s knee-jerk reaction, but you’ll never know if you haven’t found it.

Nathan seems to recognize this when he writes about how the lawyer still needs to oversee the churning of the computer, but it raised two questions: How would lawyers who become dependent on machines develop to the point where they have the experience and capacity to understand why computers, left to their own devices (get it?), aren’t good enough?  Nobody learned to program from plug and play hardware.

Second, isn’t the distinction between the yeoman and the master the ability to take the same raw materials, the same statutory and caselaw, the same tired rhetoric, and use it in a way that accomplishes a goal that would otherwise be unachievable?

Ain’t no computer can do that.  Ain’t no computer that will ever be able to do that.

15 comments on “Bowing to the Binary Boss

  1. Nathans

    I think we’re actually on the same page. Your spell-checker analogy is excellent: It can be a useful time-saver, but you’re still going to be responsible for making sure it’s done right. Its foibles can also be corrected as they are spotted, and the software improves with use.

    And of course no software could ever replace the real lawyering. Computers are great at rote tasks and algorithms. They cannot do anything that requires creativity, wisdom, judgment, skill, empathy, understanding, etc. A lawyer is still going to be the one doing the lawyering. Software can be an aid, but not a crutch — and certainly not a replacement.

  2. SHG

    You are, as usual, missing something here. Great lawyering isn’t a parlor trick for television audiences, and it wouldn’t be apparent to anyone using the name The Voice of Sanity.

  3. A Voice of Sanity

    So “great lawyering” is a myth – it never has existed, the law and its high sounding principles are all just a fraud and all criminal trials are based on prejudice alone? Because all I see (in the current Casey Anthony case for example) is the defense helping the prosecution, the prosecution helping the defense, and the entire case being based on the No True Scotsman fallacy. I cannot reconcile any of this with the supposed standards espoused in the jury instructions and so widely quoted.

    And my nic is chosen because I have been subjected to online AND offline stalking which is not pleasant.

  4. SHG

    How in the world did you come up with “great lawyering is a myth?  Your inability to see it doesn’t mean it doesn’t exist. It means you, as an outsider, lack the capacity to see or appreciate it.

    As for your nic, the issue isn’t using a pseudonym, but your choice of Voice of Sanity. Ascribing sanity to yourself is evidence that you’re nuts.  Maybe if you weren’t, you wouldn’t be stalked?

  5. Mark Draughn

    At the risk of sounding like a some kind of futurist babbler, I’m not sure how much of lawyering can be done by computer, but those tasks which can be done by computer, should be. If you can get computer software to do 20% of what junior associates are doing now, that just frees up the junior associates to do more important work. (Caveat emptor, of course, so choose your software wisely.) You say, “We aren’t binary clerks, at least not if we’re any good at the job or care in the least.” Good. So welcome in the computer software to do the parts of your job that still are clerical or require mindless attention to detail, and free your minds to do the things that only minds can do.

  6. SHG

    A computer can do 90% of what a junior associate can do. Just not well.  A junior associate will never develop into a good lawyer if a computer does the work that he needs to mature, so if we let the computer do it, then there will be no experienced lawyers. If that’s the world you want, where we have no good lawyers but inexpensive forms, this will do it. But try fighting the government by throwing forms at it and see how that works for you.

  7. Josh Blackman

    A computer can do 90% of what a junior associate can do. Just not well.

    I’m not sure where you got this number from. I’d say in the present day the number is close to 0%, but in the future, it will likely be much higher.

    A junior associate will never develop into a good lawyer if a computer does the work that he needs to mature, so if we let the computer do it, then there will be no experienced lawyers.

    As Susskind noted, “The law is not there to provide a livelihood for lawyers any more than illness prevails in order to offer a living for doctors.” There will still be room for lawyers to develop certain tasks (such as litigation), except there will be fewer of these jobs available.

    If that’s the world you want, where we have no good lawyers but inexpensive forms, this will do it.

    This isn’t the world I want. I think this is the world we are headed towards. We can either take stock of how our profession will change, or keep performing business as usual, and be blindsided.

    But try fighting the government by throwing forms at it and see how that works for you.

    I think you are referring to defense work? Here, I would agree that defense trial attorneys are likely not at risk of being totally replaced by technology.

  8. SHG

    I have the benefit of knowing who some commenters are, like Mark, which enables me to understand his perspective.  Mark isn’t a lawyer.  Mark has a strong libertarian bent, and reads SJ because of his issues with bad cops and bad laws.  This is why I responded to him as I did. This is part of the benefit of experience, which explains others aspects of my comment as well. 

    I have some difficulty with your arguments, not because I necessarily disagree, but because I can’t credit you with comprehending what lawyers do, and thus see your characterizations not as reality but some imaginary vision of lawyers from afar. Being a clerk to a judge isn’t being a lawyer. You can read every book, every article, every blog, about lawyers, but you still won’t know what it tastes like.  Even hearing it from your law school friends doesn’t help; it will be years before they truly understand what it is they are there to do and why.

    The intellectual exercise bears little relation to reality, and I can’t teach you what you need to know to have the necessary comprehension to make the assertions you do.  You have to experience it to understand it. You haven’t. This isn’t meant to belittle you, but I deal with ugly realities, not intellectual exercises.

  9. Josh Blackman

    Assume, arguendo, that someone with 20 years of practice experience made the exact same points I did, what would your reply be? (I say this because a number of people who have practice experience have made similar forecasts).

    I don’t feel slighted, in the least, by the way. You aren’t the first person who made this comment, and certainly won’t be the last. There is a stark disconnect between those who practice and those who don’t (such as professors). Those who practice seem to want to disregard anyone who doesn’t. Those who teach seem to be disregard that practicing attorneys exist.

    Those who want to bridge the gap (I somewhat see myself in that role) want to incorporate elements of both. Comments like your statement above, which represent a complete disregard for anyone who hasn’t practice, will keep that that gap wide. I’m not sure that benefits anyone.

    For what it’s worth, I fully intend on taking a slate of pro bono cases (mostly civil rights type cases, perhaps criminal, not sure yet), both at the trial, and appellate level, in addition to my teaching duties. I already have a friend who has a solo practice that said I can serve as Of Counsel. I am a member of a Bar, but have not had the opportunity to do so yet because clerks cannot practice. I simply am not interested in being a full time practitioner because my interests are much wider. Perhaps in a couple years my arguments will gain some more significance.

  10. SHG

    Assume, arguendo, that someone with 20 years of practice experience made the exact same points I did, what would your reply be? (I say this because a number of people who have practice experience have made similar forecasts).

    Too simplistic. There are plenty of people with silly futurist agendas who make “similar forecasts” that aren’t credible. If you have something specific, then use it, but this is a nonsensical statement.

    I don’t feel slighted, in the least, by the way. You aren’t the first person who made this comment, and certainly won’t be the last. There is a stark disconnect between those who practice and those who don’t (such as professors). Those who practice seem to want to disregard anyone who doesn’t. Those who teach seem to be disregard that practicing attorneys exist.

    I’ve noticed. I have plenty of friends who are lawprofs. Some practiced first. Some are trying. If you want to see a disconnect, consider why full time lawprofs have such disdain for adjuncts, their intellectual inferiors. Practicing law is dirty. Being a legal scholar is clean and pure. 

    Those who want to bridge the gap (I somewhat see myself in that role) want to incorporate elements of both. Comments like your statement above, which represent a complete disregard for anyone who hasn’t practice, will keep that that gap wide. I’m not sure that benefits anyone.

    What makes you think you are in a position to “bridge the gap?” You want to? I want to play for the NBA, but nobody drafted me. If you want to understand the gap, and by “gap” I refer to the huge hole between what lawprofs want to do and what law students need to learn to become lawyers, you first have to know what it takes to be a lawyer.  Start there, then let me know.

    For what it’s worth, I fully intend on taking a slate of pro bono cases (mostly civil rights type cases, perhaps criminal, not sure yet), both at the trial, and appellate level, in addition to my teaching duties. I already have a friend who has a solo practice that said I can serve as Of Counsel. I am a member of a Bar, but have not had the opportunity to do so yet because clerks cannot practice. I simply am not interested in being a full time practitioner because my interests are much wider. Perhaps in a couple years my arguments will gain some more significance.

    What a horribly arrogant statement. Do you presume to be competent to represent someone in a civil rights or criminal case? You’re walking sixth amendment violation.  Have you heard about Joseph Rakosfky?  Are you try to be Rakofsky 2.0?

  11. Mark Draughn

    I think I’ve made the “inexpensive forms” argument here before, so I see what you mean, but while there are often advantages to buying low-quality to save money, that’s not what I’m talking about here.

    And let’s dispense with the technology-is-a-game-changer tomfoolery: I say that if software can’t do 90% of the job well, then it can’t do 90% of the job at all. I’m talking about letting computers do what computers do well.

    But how sure are you that everything a junior associate does is really necessary to become a good lawyer? Common sense says you have to know the basic skills before you move on to the advanced stuff, but historically, these sorts of concerns have not proven out. Electronic calculators have not made math dunces out of students, and engineers who used CAD software from the start (instead of learning to hand-draw diagrams) are not worse-off for it. I realize law is not engineering, but sometimes “the basics” aren’t necessarily foundational, and you can use the time saved to learn something more useful.

    Look, I’m not saying there’s a lot of room for technological improvement in law. From the outside, my guess is that between the telephone, the typewriter, photocopiers, word processing, electronic document handling, and on-line reference materials, you’ve seen about 75% of all the high-tech advances you’re ever going to see. Still, don’t pass up a chance to make things a bit easier and better with software if you can.

  12. SHG

    I see technology as a wonderful tool, when used in the right hands and when understood as to its limitations.  I’ve also seen lazy folks rely on tech too much and make terrible errors.  Spellcheck is the great analogy, where it’s (1) only as good as the quality of the included content and program, (2) not a substitute for using the correct word, (3) not necessarily helpful when trying to convey a particular message that might be better served with some mastery of language, (4) sometimes wrong when it substitutes the wrong word in context. 

    Yet, digital natives tend to rely on it, and believe it’s “close enough.”  Or grammer check.  Or whatever “checks” computers use.  I would use examples from online legal research, which can be disastrously bad and damaging, as well, but since you don’t use it, it wouldn’t mean much to you.

    Computers are tools, and tools are only as good as the guy swinging the hammer.  And nobody becomes a hammer-swinging expert by relying on someone else’s swinging.  Is everything a junior associate does necessary to mature to become a great lawyer? Of course not, but who decides what is, and under what circumstances, and when? 

    It’s like the form online Wills.  Some people are going to do great with them, and save a bundle. Some will suffer terrible fates. The problem is they lack the ability know who is who, and to have a lawyer review their estate issues and then tell them, just go fill out a form kinda defeats the point and eliminates the benefit.

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