Between fear and hype

As yesterday's science fiction quickly becomes today's reality, society is left struggling with the practical applications of the new tools and possibilities. Given the disruption already witnessed in other sectors, the question that inevitably surfaces is how much tools based on new technology will replace tasks that we currently do ourselves. And to what extent will machines replace lawyers?

 

"I am asked that question almost every week," legal automation and innovation consultant Kathleen Killin told a Toronto gathering of the World Legal Summit in August.

 

"My response to them is that technology is here to enhance, not replace. I really do not think we will have "robot lawyers" doing legal work in the future; but rather, lawyers will be forced to be more innovative (either via technology or ways of thinking, billing, etc.)," she later explained.

 

Automated tools are slowly making their way into the legal profession. There is software available for routine tasks such as docketing, document review, as well as due diligence built on machine learning. E-discovery, which allows for an automated search of massive discovery sets, accounts for much of the use of technology in law and has firmly taken root. 

 

There are signs that these technologies may be having an impact on employment prospects in law.

According to PrecedentJD, which tracks the number of second-year students hired by Toronto firms, there were 323 hires in 2008. By 2017 that number had dropped 20 per cent, to 257, although that has since climbed back up, reaching 300 this past summer.

 

Bill Henderson, professor of law at Indiana University Maurer School of Law, took a close the data gathered by the National Association for Law Placement, Inc. in Washington. He found a 20 per cent drop of first-year lawyers in the United States from 20,611 to 16,390 between 2007 and 2017. This decline wasn't due to a slow economy, Henderson wrote in a blog post at Legal Evolution. "The recession was 10 years ago, yet the number of private practice jobs is lower now than at any time since the beginning of the recession."  

 

Even so, Ottawa-based legal market analyst Jordan Furlong believes that AI's impact on the legal profession has not yet had a noticeable effect on the legal economy. "AI has not disrupted the law, by any stretch of the imagination, right now in 2019," says the principal at Law 21. "The bulk of what lawyers do hasn't changed yet. AI, theoretically, could change that."

 

According to Furlong, there is little chance that AI will have an immediate impact on the work lawyers do. Automated tasks are restricted mainly to research and e-discovery — laborious work that firms typically dump on articling students and first-year associates.

 

But as law firms integrate AI further into their business to increase efficiency, Furlong says that lawyers will need to know the function, limitations, and potential of the technology. They will also need to understand that the role of AI is to assist, augment, and provide more capacity and tools.

 

There are concerns, however, that as tools become more efficient, law firms will hire fewer associates. As a result, there will be fewer opportunities for them to "learn by doing" by spending hours on tedious assignments like due diligence review and government filings. "But how much actual learning takes place through repeated trial-and-error?" asks Furlong. "How effective and efficient is it, and who ultimately pays the bill for it?"

 

For Furlong, the gradual disappearance of these mundane tasks is a chance for law firms to rethink their whole approach to new lawyer development. "What skills, knowledge and experiences do the firm's lawyers really need in order to become partners and leaders of the firm someday?" he says. "Sure, they need at least some exposure to the mechanics and logistics of discovery, research, due diligence, and so on. But do they need 2,000 hours' worth? Year after year?"

 

Furlong advises law firms to turn their attention sooner than later to rethinking the role of the associate, "because the day when you actually can't bill most of your associates' time is coming."

 

The work of AI not so much about replacing lawyer work, but rather rebalancing the legal work professionals do, and the work that needs to be done, says Benjamin Alarie, professor and Osler chair in business law at the University of Toronto and Blue J Legal co-founder. 

 

What's more, AI can help fill some of the demands for increased access to justice. "There are lots of people who need legal services… who are not able to access those legal services now," says Alarie. "There's a large unmet demand for legal services. I think part of the phenomenon that we are starting to witness is that certain time-intensive tasks can be done more quickly than they used to be which then frees up lawyers to provide legal services to others who need access to services." 

 

One area where AI offers great promise is the ability to perform tasks such as data analysis — mostly ignored until now. 

 

Bill Koch, U.S. chief knowledge officer at Womble Bond Dickinson (US) LLP, sees potential in the use of AI in data collection and data curation. "Firms... want to be more data-driven, make more decisions around data," he says.

Koch co-wrote a chapter in the American Bar Association's recently published guide on change management around using AI in the transactional practice. He says AI isn't much different from other types of tools and needs to be demystified. "At the end of the day, it just seems like software to folks once you show them the specific activities they're going to be doing with [it]." It doesn't replace but augments what they do.

 

Myron Mallia-Dare, a business and technology lawyer with Miller Thomson in Toronto, says that adopting the new technology is becoming an essential aspect of working in the legal profession. He further adds that competence in technology is a requirement in some jurisdictions. "Law firms and lawyers need to adopt AI, and they need to have competence in this area" to best serve their clients. "If not, they could be in trouble in the future. Getting ahead of this now is almost critical." 

 

Ultimately, however, it will be the humans who are responsible for any tasks they assign to automated tools. If a solution using AI turns out to be wrong, someone needs to take the blame for that, he says. What's more, firms need to be careful with the providers they select to ensure confidentiality and meet the rules of professional conduct, a task complicated by the intricacies of the digital revolution.

 

On a practical level, law firms simply look for the right solutions for the job. That might include increasingly accessible, and affordable, AI and machine learning tools, says Rob Walls, IT manager at mid-sized Vancouver firm, Boughton Law Corporation. "AI is really invisible to medium and smaller law firms; it's just part of a package behind the scene," he says.

 

Ultimately, the challenge for lawyers will be to find a middle way between the fear and hype of automated legal services and get on with the work. 

 

Says Alarie: "AI is not going to replace lawyers, but lawyers who use AI will replace lawyers who don't use AI."