It’s not often I disagree with Joe Patrice, who frequently writes for Above the Law. For one thing, he’s a lot smarter than me. For another, he’s a better writer. In fact, about the only thing I have on Joe is several more years of wear and tear in the trenches. That doesn’t make me right but maybe gives me a different perspective.
Joe recently wrote an article the premise of which, and I paraphrase, was that automation and technology are depriving junior lawyers of the training and experience lawyers used to get when they began practicing.
According to Joe: “Robots are not replacing elite litigators any time soon, but what they will do is grease the wheels of the legal process and alleviate all the mindless grind that typically occupies junior associates” . As a result, says Joe, “screwing up the most basic tasks is a critical part of becoming a well-seasoned attorney. What happens when we lose those tasks to throw at a first-year?”
Screwing up the most basic tasks is a critical part of becoming a well-seasoned attorney.
But the problem with Joe’s premise in my mind is the idea that the “mindless grind” as he calls it somehow translates into a better lawyer. I don’t necessarily think it does.
As a young lawyer, I certainly did my share of mindless document review and proof reading for hours on end. This no doubt increased my profitability. But what it didn’t do is teach me anything other than perhaps the financial power of leverage when your business model is the billable hour.
Granted, my experience prism is as a litigator and that may color my thinking. But I learned to be good lawyer not by doing work I was over qualified to do but by doing work I was trained to do. Coming up with case themes. Marshalling facts. Handling crisis and case management when a judge hits you with extreme discovery requirements. Figuring out what questions to ask and how to ask them in a trial or in deposition. Reviewing reams of documents (yes, Joe, in my day they were all paper) didn’t teach me how to find the most relevant documents to my arguments and then how to use those documents effectively.
It was the substantive tasks and experiences that trained me to be a good lawyer; none of these are likely to be replaced by automation anytime soon.
But Joe is correct that automation will have and is having a profound effect on the legal profession and on litigation. First, its forcing us to come to terms with the fact that the leverage model, which depended in part on lawyers doing work for which they were over-qualified won’t work well when machines can do that work better, cheaper and faster. This is one reason many clients no longer want to pay for first year associates.
What’s that translate to? The need for fewer lawyers.
What’s that translate to? The need for fewer lawyers. The boom years I was fortunate enough to live through where there was more work (legal and non-legal) to do than bodies to do it is gone.
Second, tomorrow’s litigator will need different skills. He or she will need to know how to use data analytics and automated tools to do work more effectively and be able to then do what he or she is trained (or in training) to do. (The fact that many law schools aren’t teaching this is an issue and discussion for a another day).
But suffice it to say that litigators need to prepare for the day there is reduced demand and a demand for a different type of service. A doctor didn’t become less a doctor when they stopped doing such things as taking blood pressure or temperature. But the nature of the service and skill set of a doctor did change. So to it will be with lawyers.
But this brings me to a final point where I think Joe’s prediction of doom and gloom due to lack of training for junior associates is spot on. As has been well documented, trials are vanishing before our vary eyes.
Not only are they vanishing but particularly vanishing are trials of lower level cases where junior lawyers formally could cut their teeth and get the type of experiences that made them better future lawyers. The explosion of eDiscovery and its cost is in part to blame as is the judicial and profession’s inclination to allow discovery of any and all facts. Both have made the cost and risk of trying a case-any case-prohibitive.
When both sides have access to all relevant data, the unknown becomes better known and value range of a case narrows for both sides. This fact, together with the rise of mediation can not help but mean fewer and fewer trials.
Yes, automation could reduce these costs and result in the pendulum swinging back but our technology is having another impact on litigation. Cases go to trial when the parties have differing views of value and exposure. More and more data reduces the uncertainty about case value: when both sides have access to all relevant data, the unknown becomes better known and value range of a case narrows for both sides. This fact, together with the rise of mediation can not help but mean fewer and fewer trials.
Fewer and fewer trials means less and less on the job trial training. Certainly, there will still be discovery, depositions, mediations etc. where certain skills can be acquired but where the practitioner has not experienced the end game, their approach and outlook to these tasks can be considerably different. And even litigation itself is declining as well so non-trial litigation experience is declining: also well documented.
So, I agree with Joe: there will be fewer well trained litigators and trial attorneys in the future. I disagree with Joe that the replacement of “mindless” tasks with automation and technology will result in fewer trained and experienced lawyers. I agree with Joe that the need for lawyers generally and the skill necessary for those lawyers are changing. I disagree. I agree. I disagree. And so it goes.
Sports Illustrated used to have a column entitled Sure Signs the Apocalypse is Upon Us which included references to often bizarre and ironic events. It was a favorite of mine since it was a satirical poke at the seriousness we take sports and a display of the humor of everyday existence.
There’s an old joke. A group of client officers arrive at their lawyers’ offices in a high rise only to see a huge water leak at the building’s first floor reception area blocking their way in. They phone their lawyers to say they will be delayed and their lawyers say, don’t worry about it, just come on up when its cleaned up and the way is clear.
Last year, while attending the Consumer Electronics Show, I wrote a 
A couple of examples of what I mean. I attended a press announcement hosted by a company called 
Earlier this year, Microsoft came out with a miniature version of its workhorse 
I’m in the process of reading Tim Harford’s 2017 book Fifty Inventions That Shaped the World. The book seeks to identify and discuss the impact of various “inventions” including not only things but processes as well. Tim not only talks about the inventions themselves but the ripple effect of them to society as a whole. Of course, that’s a bit of an obvious tact (that Tim does well) which others have done. But Tim also talks at length about one other good point that particularly resonated with me: some inventions don’t take hold when they are created but only later when conditions become right and obstacles inherent in the old method of doing things pre-invention are overcome. I thought about this theory in light of the slow take of the legal field of technology and innovation. 
I recently almost didn’t attend a Conference in my hometown. I almost didn’t go because a) it was not necessarily in my field (lawyer) and b) it was in my hometown (no one is a prophet in their own land, right?). (The Conferance was actually put on by the Louisville Digital Association, a local organization that’s more or less about all things digital and the Conference was really more about digital marketing and media than anything else).
Last month I attended the annual New York Advisen Cyber Security Conference. The event which this year had over 900 attendees is frequented by insurance representatives, brokers, risk managers and, yes, a handful of lawyers, all of whom work in the cyber and cyber insurance space. Its probably the premier conference of its kind.
Stewart Levine’s new book reminds of the