Attorneys, For One, Need Not Fear Our New Robotic Overlords

March 8th, 2011

The New York Times ran a piece a few days sounding the alarm that computers are taking jobs away from attorneys conducting document review.

“From a legal staffing viewpoint, it means that a lot of people who used to be allocated to conduct document review are no longer able to be billed out,” said Bill Herr, who as a lawyer at a major chemical company used to muster auditoriums of lawyers to read documents for weeks on end. “People get bored, people get headaches. Computers don’t.”

Paul Krugman, unsurprisingly, is afraid of this competition from our new robotic overlords, and seeks protectionist solutions:

So if we want a society of broadly shared prosperity, education isn’t the answer — we’ll have to go about building that society directly. We need to restore the bargaining power that labor has lost over the last 30 years, so that ordinary workers as well as superstars have the power to bargain for good wages. We need to guarantee the essentials, above all health care, to every citizen.

Tom Smith disagrees, and notes that computers are not going to replace lawyers, and identifies the value added by attorneys.

But the notion that technology is going to replace lawyers the way it has replaced buggy whip makers or blacksmiths is foolishness, promoted by people who do not understand very deeply either the technology involved or what lawyers do.  It is as ignorant as saying Google is going to make reading obsolete or Amazon is going to be the end of people buying stuff.  Technology is a complement, not a substitute for law.

Most non-lawyers and a fair number of lawyers don’t have a good understanding of the contributions that lawyers make to economic production.  They see them as mere parasites and transactions costs.  But this is more false than true.  Lawyers do two things worth noting here. They add value in transactions and they help figure out how to divide value in transaction disputes.

Litigation is in some ways the inverse of transactional practice.  Value is divided rather than created and divided.  But there is similar scope for creativity and tactical thinking.  Yes, indeed, there is tons of scut work that has to be done in big litigation that traditionally has been done by paralegals under the supervision of junior attorneys.  Much of this can be done by software and outsourced and more and more it will be.  But I don’t see computers figuring out litigation strategy or telling you when to hold ’em and when to fold ’em.

Frankly, I am not worried that Google will create some program that can write brilliant law review articles and put me out of a job. If the technology ever gets to the level where computers can think and reason, society’s level of welfare will be so great that I could probably retire.

Smith also identifies that lawyers have important jobs (something I agree with, generally).

What lawyers do is fundamental to economic production.  Engineers may deny this, but most of them still want the broadest possible intellectual property rights, as if they sprang like mushrooms from the ground.  The more production there is, the more numerous and the more complex deals will have to be — and for that you need lawyers.  The more production there is, the more disagreements there will be about how to divide the gains.  Lawyers add value to clients who want to optimize the results of these contests over wealth division.  Technology helps create wealth and increases the complexity of everything, because it makes complexity more manageable.  But this economic growth creates opportunities for lawyers more than it reduces the need for them.

Smith contends that innovations like WestLaw and Lexis has not decreased the number of lawyer jobs.

Legal technology has already made enormous strides in the past 25 years.  I am old enough to remember doing legal research before Westlaw and Lexis became inexpensive enough to use regularly.  Before Page and Brin had ever tapped on a keyboard.  Consider:  have the huge strides in legal search, electronic databases, document storage and processing over the past 25 years reduced the number of lawyers or the volume of their business?  Not that I have noticed.

If anything, I suspect the exact opposite is true. Technology makes the manipulation of abstractions such as language easier and cheaper.  I suspect legal concepts, the division of assets and cash flows, property rights and other aspects of the cultural overlay we put on the material world, will get more sophisticated and more finely meshed as technology advances, and all this will create the demand for more, not fewer lawyers, the way the advance of medical technology has created demand for more not fewer doctors, at least until the government forbids spending more on them.

What isn’t written here is that the nature of legal jobs will change. No longer will attorneys make their way by doing menial doc review. Attorneys will have to think of how to create value, either through assembling good transactions or engaging in smart litigation. Technology will certainly make this easier, but even so, not all attorneys can do this. Even if the aggregate of legal jobs does not decrease, certain types of positions will no longer be relevant.