The Oppression of Legal Technology?

I hate talking about “legal technology.”

I mean, I love talking about the possibilities and advantages that specific types of technology can offer, but I hate it when the various types of tools and programs are reduced to a single, amorphous entity. When we do that, it’s too easy to reduce it to just “good” or “bad”. To “useful” or “hype”. Soon it becomes a choice that people must make: are you pro or con legal technology? And then we start to make assumptions about the types of people that fall into each camp and make broad claims about them. “Lawyers are afraid of technology.” “Legal technology companies don’t know anything about the real practice of law.”

The reality, of course, falls somewhere in between the two. There are technologically competent lawyers, but there are also lawyers stuck firmly in the 20^th century and happy there. Likewise, there are legal technology companies founded by people with a firm understanding of the needs and wants of those that practice law and ones that see a potential untapped market and are motivated only by a get rich quick ethos. In an ideal world, every piece of technology would be evaluated on whether or not it works, and works well. Likewise, every attorney that complains about a piece of technology would be assumed to not be speaking from a place of ignorance, but rather to be giving an informed analysis of a tool.

But, of course, we don’t live in an idea world.

I don’t know if you’ve heard it in the news, but we’re having a presidential election down here in the United States. Granted, I’m not that old and haven’t lived through too many of these as an adult, but it feels like this election cycle is particularly fueled by anger, more so than ever before. Anger towards the “establishment” but also anger towards those that are “the other.” I use the word “anger” but it’s not necessarily the type of anger that comes with being mad and yelling; it can just as easily be described as a “reaction to feeling threatened.” Sometimes it takes the shape of true anger, sometimes it takes the form of belittling and mocking and sometimes it comes out as just an outright dismissal of anyone that would support an opposite view as being “crazy”. It is becoming impossible to have a rational and calm discussions with someone on the other side of political spectrum or who supports another candidate.

I’m beginning to sense this same sort of reactions in conversations about legal technology and, just as it does in the political context, it makes me want to shy away from participating in any sort of broad conversation about legal technology. I fear that soon it will be impossible for anyone to have a calm and rational conversation about it.

What fuels these reactions? I think it all boils down to privilege.

Privilege is a very loaded word nowadays. In some circles if you bring it up, you’re labeled as an “SJW” (Social Justice Warrior) and everything you say is discounted as the ravings of someone who sees oppression in every action. In other circles, it’s an accepted fact that everyone of a certain demographic has had an automatic pass into the higher echelons of society without any struggle. Again, the reality is somewhere in the middle.

To my way of thinking, privilege is a benefit conferred upon you by society because of the luck of your birth and other circumstances in your life. It can also be a way of thinking about yourself that allows you to ignore the struggles of someone who didn’t have the same advantages you have. And, as the saying goes, “when you’re accustomed to privilege, equality feels like oppression.” That’s what fuels the anger and the feelings of being threatened. When you think that you’ve earned what you’ve been given, the fact that other people get it, seemingly without “earning it”, it feels unfair. Thus, those that are deeply aware of the privilege that they don’t have often implore people to “check their privilege” and take a moment and think about what automatic advantages they may have had that others were not quite as fortunate to receive. Basically, use the underrated skill of empathy.

For example, I grew up on a tobacco farm in Appalachia and have ended up as a research fellow at Harvard Law School. Not too shabby of a come up, if I do say so myself. It wasn’t easy. I worked hard, overcame a terrible public education system, peer pressure against “appearing smart” and had several severe medical issues to survive. But I also realize that this path was only made possible in large part because I grew up in a supportive family who emphasized the importance of education, luck that my lab decided to take a chance on hosting a fellow this year and the extreme kindness of my funders who decided to provide financial support so that I could do that. I have had disadvantages that I was able to overcome through a combination of work and privilege. Not everyone gets the latter. That’s how you check your privilege.

Lawyers, no matter how hard they worked to attain their status in life or what their relative financial success in life is, have a position of privilege in society. As one of the “professions”, lawyers are given an exalted place in the world, much of it a carryover from the time when lawyers were one of a few people to get formal educations. So what happens when, technology – the great equalizer – begins to invade the practice of law? (Said with an acknowledgement that technology is also highly divisive and unequally applied in the world.) Could it be that some negative reactions to technology are fueled by a feeling that the high status of lawyering is somehow being diminished by the fact that “non-lawyers” or even software programs are able to replicate something that previously took an advanced degree to do?

Do some lawyers need to check their privilege before opportunities provided by technology are dismissed?