The Long Tale of 2 Systems

The article, “7 Reasons Why European Cities Are Going To Beat U.S. Cities As Hubs For Innovation” reminded me of two cities: Toronto and Sydney. These cities had quite a few legal IT commonalities starting 30 years ago:

• Both had 5 out of the 10 largest law firms standardise on lawyer-friendly graphical user interfaces (GUI) years before the rest of the legal world got it,
• By democratising access to computers, a community of lawyers interested in lawyer-enhancing IT bloomed, and cross-pollinated each other from across the world,
• Toronto was first out of the blocks with Peter Hart’s Legalware products which in turn led to Amicus Attorney, PCLaw, slaw, blue J Legal, Loom Analytics and ROSS, while Sydney had AustLII, Desktop Law, LEAP and Infotrack. Some of these initiatives are still changing the legal world, globally and greatly. It goes some way in answering Mitch Kowalski’s: “Why has Ontario been given first mover advantage in legal innovation?”

The result of pioneering efforts decades ago was that there were two legal IT camps: those who thought legal IT included GUI driven lawyer-enabling PCs with expert systems, thought processors, and databases, and those who focussed on DOS-based systems optimised for typists and bookkeepers. The fact that the former did not have as much impact on the business of law then as it should have, is that clients were less sophisticated, less empowered, and under less financial pressure, than now, and the Internet was not there to help.

The Law Societies in both cities have recently highlighted the natural progression of lawyers thinking differently: The CBA’s Legal Future’s Initiative report has Toronto lawyers’ fingerprints all over it both in terms of authorship, and digestion. The Law Society of NSW has its Future of Law & Innovation in the Profession (FLIP) Commission of Inquiry well underway.

FLIP will take the rest of 2016 to conclude and deliver a report which, being in writing, cannot help but lose some of the message. Fortunately, for reasons covered by one of the speakers you can make up your own mind when you view submissions which included:

• a co-founder of AustLII and the world-wide LII movement Professor Graham Greenleaf;
• the tech-free concerns of John Henshaw who after decades of service to law, admits that the court system is broken and that we need to introduce Judicial Referees to alleviate the crisis in access to justice. I would suggest that Judicial Referees + new approaches such as the Enright Method + possibly even AI or some other decision support tools could help, though the “solution” lies elsewhere;
• useful lessons from the use of expert systems/AI in a large firm environment in the 1970’s/80’s from Philip Argy who found that the knowledge of legal experts was applied more reliably and consistently than the experts themselves; and
• the recognition by Noric Dilanchian that the decline in communications in the form of conversations and meetings boxes lawyers into giving clients what they ask for, which can be different to what they really want. The video of Noric brilliantly justifies why he says we need more face to face time, and videos: written communications are subject too self-editing.

Interestingly, Profession Greenleaf and his team had developed AI/Expert System tools before coming up with AustLII. Fortunately for the cause of free access to primary legal materials, they de-emphasised their AI/Expert System development efforts to concentrate on AustLII. No doubt, their efforts in the area of AI have been used to enrich the experience of users of their research materials.

Fifteen years ago, I benefitted by AustLII making caselaw and legislation freely available online, as it allowed me to develop a simple legal concept map that overlaid their materials. This was based on our database of 12,000+ term legal thesaurus that added conceptual legal structure, to essentially unstructured text.

A recent arrival has been Loom Analytics which adds value to the Canadian equivalent of AustLII. “Loom Analytics extracts and categorizes information contained within legal decisions. This data is used to generate customizable reports. Filter results by date range, judge name, outcome and many other parameters to view a report that matches your specifications.”

Both enhancements of the LII databases add value with their own databases. Such terms as “database” and “structured text” are less fashionable than “AI”, “Big Data” and “apps”, and have been ignored for too long.

Hence, Mark Harris, CEO of Axiom provocatively asked:

“Have you been hearing chatter about the intersection of big data and legal? Do you suspect the people chattering have no idea what they’re talking about, and know for certain that you have no idea what they’re talking about?

You’re in good company.

I believe that there’s actually something compelling and quite important going on here, and it is in fact about legal and data. It just doesn’t happen to be big data.

Let’s see if we can make sense of it.”

And he does in “Perspective: In Legal Sphere, Data Isn’t Big, It’s Narrow and Knowable”. He suggests that we have a big data problem because we don’t do what we should do in the first place: enter data about contracts at the time they are made into a contract management system. By only acting after the data horse has bolted do we have a really big data problem that is symptomatic of our whole failed approach to the provision of legal services, including due diligence, litigation and estate planning.

We are just starting to scratch the surface of the real potential in contract management software, while millions are spent on discovery to manage too many documents, when only a relative few are really necessary. The benefits of properly managing estate planning documents also extend to firm management insights enabling accurate forecasts of upcoming work.

Should we be getting excited about AI solving our largely self-created big data problems? One day we will wake up to the fact that the preventative law mantras of Jeffrey Carr, with his “NextLaw”, Richard Susskind with his “fence at the top of the hill,” and Ron Friedmann’s #DoLessLaw need to be embraced.

While AI can make a difference supporting the resolution of legal problems such as research or discovery, its utility will be greater, the earlier it is involved in the lifecycle of the problem. The further down this path you go from originating behaviours through to legal issues being detected and analysed, and finally judicial process, the greater the consequences of the decision supported. Also, the greater the resistance to an adverse decision. Obviously a much higher standard of proof of facts, and the application of law is required in a court decision, than way back at the start of that path where certain behaviours might have been flagged as “of concern”, and the consequences can be confidently mandated as “needs compliance training”.

The earlier AI can be involved in this legal timeline the better, in terms of the learning involved, and the increased intolerance of those affected by decisions supported by AI. Increased use of AI could involve positive change for lawyers including coping with more paying work resulting from making formerly unprofitable work viable. Without AI further democratising access to superficially used legal databases, the gap between the legal IT skills “haves” and “have nots” would expand considerably as big data continues to multiply.

An issue with AI shielding lawyers from needing to learn about IT, is that not only will they not be able to make informed decisions about the results of their AI-assisted research, nor optimise their own business opportunities, but they will be less useful to clients who will be immersed in IT to survive. Deutsche Bank CEO John Cryan says

“Every discussion we now have within the group is about technology: compliance is about technology, audit about technology — things you think would never dovetail with technology are somehow linked.”

Recent graduates might think they know about tech, but it is usually the wrong sort of tech for the new world that is rapidly evolving. Adrian Agius states: “the problem can be viewed less as a job shortage and more as a skills shortage”.

It is not helped by thought leaders among lawyers advocating the wrong tools, and a misguided priorities and approaches. Lawyers need to learn about databases and data management well before Excel or learning how to code Apps, and even document formatting and styles. That way they will head off some of their big data and big legal challenges that justifies AI, in some cases, rescuing them from their ignorance, and image problems.

There are many ways one could improve the image of lawyers. Aside from tech/efficiency resistance perceptions, it could be easier when there are fewer ambulances to chase. Thanks to Google’s desire to sell more alcohol ads etc to the co-pilots of driverless cars, fewer ambulances will be needed. The sooner the legal profession can distance itself from ambulances literally and metaphorically, and embrace the preventive approach of Geoffrey Carr’s NextLaw, the better for its image. Disputes need to be prevented, or at least resolved, rather than litigation fought and won at questionable cost. Data needs to be analysed rather than mindlessly amassed; and no shortage of fences need to be built, and education dispensed re their use.

Meanwhile AI via voice is becoming a reality as the new user interface/platform for Apple and Google etc. Ironically it has the potential to provide useful technical and professional support for the tech-adverse lawyer. We will continue to have the two tier legal IT camps with the old school delegating much of the use (and therefore knowledge) of computers to support staff who are increasingly likely to start to contain more code than flesh.

Again, it’s a skills, not jobs issue for lawyers. They are skills that are only recently becoming valued, and more so the greater the breadth, hence the “T-shaped lawyer.” If you want to get an indication of how far the legal IT world has changed in the last decade, see the opening paragraph of my first slaw column “Why Work With Lawyers”. It contained a warning for young lawyers not to admit to knowing about IT otherwise it would damage their career prospects – at least in firms without a long term future. It went on to make other blunt observations that are becoming more pertinent.

Meanwhile, keep your eyes on Sydney and Toronto which have had 3 decades of lawyers ruminating on the real thing when it comes to legal IT. At least the current AI hype has encouraged some very smart pioneers to speak up, and dust off ideas, tools and methods whose only problem was timing.