WHY LEGAL TECH WILL NOT REPLACE LAWYERS
Recently there has been a lot of talk about technology making inroads into the legal world, allegedly transforming the legal profession or even making lawyers redundant. One of the most prominent titles that come to mind in this context is Richard Susskind’s book “The end of lawyers?”, later changed into “Tomorrow’s lawyers”. So is the future for lawyers all doom and gloom, or are they here to stay and flourish? Presently, I argue the latter. Here’s why.
1. Law is everywhere
Law is intrinsic to human nature. No human project is possible without the need for some kind of authoritative and binding structuring — find people and you will find law, which is a basic function of the human mind. Fascinating research by John Mikhail, among others, shows just how deeply legal principles are embedded in us. According to his research, three- to four-year-old children are “intuitive lawyers,” capable of drawing intelligent distinctions between similar cases using their intuitive jurisprudence that shows many characteristics of a well-developed legal code. Children deploy the concept of intent to distinguish between two acts. They are capable of distinguishing moral violations like theft from mere social conventions (like inappropriate clothing) and use proportionality to determine suitable punishment for principals and accessories.
Humans need law to create order out of chaos, survive and develop as a society. To say that technology will make lawyers redundant is to say that technology will replace humans. It’s no coincidence that Philip Wood says that lawyers have replaced priests in modern societies. The more complex societies get, the more legal framework they require. It is impossible to decouple human endeavors from law. Therefore, law is not going anywhere.
2. Do robot lawyers dream of electric sheep?
Human communication is at least as much about what is not being said as it is about what is being said. It is about understanding the context, reading between the lines, alluding, implying, influencing and creating with carefully chosen words. It’s about nuances and shades. A good lawyer untangles a complex matrix of facts, evaluates the evidence, develops a strategy, convinces the client, writes a powerful brief, cross-examines the witnesses, disputes with a judge, and. convinces the judge. This is an immensely complex mental process which encompasses and reflects all facets of what it means to be human. Again, to say that AI will be able to do it is to say that AI will replace humans, not just lawyers.
Assuming that such AI is possible, a number of interesting questions arise. For example, who will own it, can it be ethical to own it, how much would a robot lawyer charge for its services, and would it be regarded as discrimination to pay it less than its human “colleagues”? Also, would a judgement produced by a robot judge be acceptable for humans? Can a robot lawyer reassure its client or understand its motives? In the author’s present view, this is pure sci-fi, currently as realistic as time travel through black holes or the world of Philip Dick’s Blade Runner. So the lawyers are not going anywhere either.
3. Exhibit S: Smart contracts (are not really smart)
Along with blockchain, smart contracts are currently being hailed as the cure for almost everything that ails us. A smart contract is basically a code programmed to automatically execute particular steps according to an agreed system. At its heart, it is an automated “if, then” structure. It cannot eliminate the need for lawyers due to a number of reasons:
- Smart contracts can only carry out what is in their software code to be carried out. They cannot analyze, interpret or check whether, for, example a “material adverse change” has occurred or “reasonable endeavors” have been applied.
- Smart contracts do not make legal rules obsolete. They can incorporate some of them to a certain (and very simple) degree.
- What happens when there’s a breach of smart contract? Let’s say, if a party refuses to pay? A lawyer will have to take care of this issue in the usual way (e.g., lawsuit).
Smart contracts are probably a useful contract management tool, but no more than that. Just as the legal technology is useful to analyze comprehensive documentation in due diligence or disclosure. There are tools that support lawyers, and smart contracts look to be no different.
4. So is it just hype?
In my view, the answer is, yes, to a substantial degree. I recently attended a conference where one of the presentations was held by a legal tech advisor, naturally, on the merits of legal tech. After the event we spoke for a while about what exactly his firm does, until he somewhat wearily said: “If you have a good command of Word & Co you probably won’t really need us.” Legal technology is currently in its infancy, a tool restricted to relatively straightforward contract automation, contract management and document review. Innovation is great, but relentless hyping is not innovation; rather, it is selling. For now, let’s produce some truly great innovations and sell them later.