COLUMN > Innovation in Law
BY JORDAN L. COUCH
When a friend asked me recently what I was excited to see in 202111 www.clio.com/blog/legal-technology-trends/. I, the legal technology junkie, struggled to find an answer. For a moment I feared I was out of the loop, but as I thought about it I realized this struggle was a symptom of something I have been feeling for some time—legal technology is boring now. But don’t worry; that’s a good thing.
IS LEGAL TECH REALLY BORING NOW?
Yes, legal tech is really boring now, and it’s not just me who thinks so. If you looked at the recent ABA TechShow agenda, you’d see talks on racial justice, legal ethics in a pandemic, identifying pain points, and cannabis law. Even the keynote focused more on the impacts and policy around tech than the actual tech. Or consider the 2020 finalists for Clio’s Launch Code competition: two discovery tools, two text-messaging tools, and a document-automation tool.22 www.clio.com/about/press/2020-launch-codefinalists/. All impressive companies, but nothing the legal world hasn’t had in some form for at least a decade.
I remember the 2020 ABA TechShow vividly, as it was one of the last things I did before the pandemic took hold of my life. As I wandered the exhibitor hall with hundreds of tech companies presenting the latest and greatest, the only new product that caught my eye was a $5,000 touchscreen desk. My interest had nothing to do with the legal industry and everything to do with my desire to become Iron Man.
Even five years ago things were different. It felt like everywhere I looked people were talking about the newest legal tech, whether it was AI-assisted research, blockchain contracts, or robot lawyers. Legal Hackers groups33 According to the Legal Hackers website, the organization “is a global grassroots movement of designers, entrepreneurs, lawyers, policy advocates, researchers, students, teachers, and technologists who explore and develop creative solutions to issues at the intersection of law and technology.” For more, visit https://legalhackers.org. were flourishing in every city and legal hackathons went global in an effort to create exciting new solutions. Now Legal Hackers groups are dwindling, transitioning, or both, and all that exciting new tech is old news.
WHY IS THAT A GOOD THING?
I know it sounds like I’m trashing legal tech, and my friends at legal tech companies may be gathering to roast me on Twitter, but I’m actually really excited that legal tech is boring now. You know what else is boring? The PC, email, and the smartphone I am currently writing this on. (Humanity’s ability to quickly normalize even the most remarkable of inventions is truly astounding—but hey, I don’t make the rules.)
Boring may not be cool or fun, but it is good—especially in a profession that is notorious for being risk-averse. Boring means you don’t have to question if using technology like online legal research or text messaging in your practice will somehow violate the rules of ethics (it won’t) or if the cloud is safer than the server in your office (it is). The history of technological advancement is a history of resistance dating all the way back to when the invention of the written word was believed to be the harbinger of humanity’s downfall.44 As Plato’s character Thamus said in Phaedrus, “For this invention [writing] will produce forgetfulness in the minds of those who learn to use it, because they will not practice their memory. Their trust in writing, produced by external characters which are no part of themselves, will discourage the use of their own memory within them. You have invented an elixir not of memory, but of reminding; and you offer your pupils the appearance of wisdom, not true wisdom, for they will read many things without instruction and will therefore seem to know many things, when they are for the most part ignorant and hard to get along with, since they are not wise, but only appear wise.” “New” and “exciting” technology will always carry with it the mark of unknown danger.
For technology to have become boring, it must have been heavily vetted over years and had most of the “bugs” worked out. Nearly every possible error and mistake must have happened and been resolved without causing devastation. There remains, therefore, no reason not to give it a try. When technology becomes boring, even the most risk-averse Luddites start adopting.
The wave of adoption that begins when technology becomes boring grows and gathers strength with each new adopter. Two common reasons I hear for why people don’t want to adopt new tech are fear about its risks and fear about its complexity. I’ve already talked about fears around risks but fears around complexity are the next to fade. As technology becomes boring and more people adopt it, a ripple effect extends throughout the legal community. As more and more people are seen using a specific tech tool (as well as technology generally) other lawyers take note and begin to realize that it can’t be that complicated. “Well if Law Firm X is using an AI discovery tool, I bet I can figure it out,” they might tell themselves. “And if I can’t, I’m sure they’d be willing to help me.”
Not only do people begin to see that technology isn’t too complicated; they see that they have a support network that can help them should they encounter any difficulties.
The era of legal technology being exciting, new, and maybe a little scary is over. Legal tech is boring now.
WHERE DO WE GO FROM HERE?
Just because legal technology is boring doesn’t mean the work is done. We as an industry need to keep pushing for adoption for the betterment of our profession and the public we serve. I’m not saying technology needs to be mandated in all legal processes, but every lawyer needs to be capable of using technology when it promotes access to justice and efficiency.
What this push looks like can and should take many forms: Agreements for electronic service of documents could be mandated instead of optional. Video depositions could be the standard procedure rather than an exception. Ultimately, no one would be required to go to court in person for a motion hearing ever again.
We also need to recognize the potential impact on our ethical obligations of accepting legal technology as “standard” practice. Comment 8 to Washington Rule of Professional Conduct (RPC) 1.1 (Competence) provides: “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology ….” RPC 1.5 prohibits unreasonable fees. If lawyers are required to keep up with technology, does it start to seem unreasonable for a lawyer using inefficient tech-less procedures to bill by the hour for the amount of time spent doing what is an easily automatable process that will take significantly less time?
SO WHAT IS EXCITING THESE DAYS?
As I thought about my growing boredom with legal technology, I found myself wondering what comes next. Where should the innovative lawyer be focusing attention in the future if not on seeking efficiencies through new, exciting tech? First let me say, please keep thinking about how legal technology can improve your practice. When I say legal tech is boring, I don’t mean that it should be ignored but rather that assessing and implementing technology should be a fully integrated part of your business practices in the same way accounting and paying taxes is. But if you want to think about how your firm can be on the cutting edge of innovation, setting the bar for law firms everywhere, it’s time to start focusing on client-centrism. This is where the next wave of innovation lies. The next iteration of this column will explore that topic.
3. According to the Legal Hackers website, the organization “is a global grassroots movement of designers, entrepreneurs, lawyers, policy advocates, researchers, students, teachers, and technologists who explore and develop creative solutions to issues at the intersection of law and technology.” For more, visit https://legalhackers.org.
4. As Plato’s character Thamus said in Phaedrus, “For this invention [writing] will produce forgetfulness in the minds of those who learn to use it, because they will not practice their memory. Their trust in writing, produced by external characters which are no part of themselves, will discourage the use of their own memory within them. You have invented an elixir not of memory, but of reminding; and you offer your pupils the appearance of wisdom, not true wisdom, for they will read many things without instruction and will therefore seem to know many things, when they are for the most part ignorant and hard to get along with, since they are not wise, but only appear wise.”