Jun 5, 2011

Posted in Education, Legal Profession

Can Computers Replace Lawyers?

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SHG at Simple Justice has a thoughtful reply to my post on the evolution of the legal profession. First, he addresses the point that I have never practiced (fair point I expected when I wrote this article):

Yet, one of our own has boldly leaped where no man has gone before.  Following on a curious post byJosh 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.

I wouldn’t quite say I hurdled over the chance to practice law. My decision not to practice is rather complex, though I have given it ample consideration. I would note that clerking 2 years in a federal district court have exposed me to quite a lot of litigation (more than any second year associate in a firm). Certainly more than a sizable number of law profs who went straight from law school to a circuit clerkship to a fellowship to a teaching position. Also, my exposure has been to criminal, and civil cases, something very few jobs offer. But, I’ll concede that I do not have the  experience of someone like SGH.

My comment though, is not directed  at telling lawyers how to do their jobs. I wouldn’t begin to tell lawyers how to do their job. In fact, I want to learn from practicing attorneys, if for no other reason, it will improve my ability to teach. I had the honor of clerking for a fantastic trial judge, who was a former solo practitioner, who taught me quite a lot. No.

Rather, my point is to suggest that if technology progresses, fewer people will be willing to pay high fees for attorneys do certain aspects of a job.

SHG posits that a computer cannot replace a flesh and blood lawyer.

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.

He is probably right for many aspects of a legal job, but not all aspects. For example, IBM is programming Watson to diagnose diseases. While Watson will not be able to replace all aspects of doctors, the basic task of diagnosis, a key function of medical doctors who attend school for years, can be automated.

I have no doubt that many skilled advocates take great pride in trying each case with nuance and insight. I doubt any computer will ever be able to replicate everything a trial lawyer does. There will be no Atticus Finch-cyborg.

But as Nathan Burney wrote at the Criminal Lawyer, many tasks can be replicated.

A huge amount of the law really is formulaic.  Whether it’s tax law, or commercial law, criminal law, or what have you, a lot of it breaks down to a series of “if-then” statements.  So can software really replace what lawyers do?

Actually, yes.  It can replace a lot of what judges do, too, for that matter.  Rulings, etc.

As Richard Susskind noted in The End of Lawyers, when he tells lawyers that their specific niche is at risk of being automated:

There follows a stream of rationalizations, clarifying why their corner of the legal universe is and should be immune from change. My scepticism here should be plain. No lawyers should feel exempt from assessing whether at least some of their current workload might be undertaken differently in years to come. And no lawyers should shirk from the challenge of identifying their distinctive capabilities.

Perhaps trial litigators have the least to fear from our robotic overlords, but significant portions of the job–especially those portions that are expensive and time consuming–can be replaced. The market for customized, hand-made work product will always exist, but it will be much smaller than it is today.

There are already more lawyers than legal jobs today. The number of lawyers is increasing. The number of jobs will decrease. My efforts at reforming legal education will try to reverse that flow. I hope that is something that practicing attorneys–read, those that want to be employed–can appreciate.

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