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.