What’s So Interesting About AI and the Law?

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I recently tweeted a link to the article Will Computer Learning Replace Lawyer Earning? In many ways it was a typical Artificial-Intelligence-and-the-law article, albeit authored by a data scientist rather than a wannabe lawyer-technologist.  Though I can now confirm that the author, Thomas Barnett of Paul Hastings, also has a law degree, so maybe I oversold the data-science angle a bit.

Even so, I was surprised that my tweet of this article was liked and re-tweeted much more than usual. Which led me to re-read it to see what was catching people’s attention. Here’s my pick of the most salient/interesting points:

1.  How Much Do Lawyers Actually Think?  The AI fallacy describes the false assumption that technology in the future will do our jobs only insofar as it is capable of thinking like us. Barnett broaches this issue briefly, but then somewhat surprisingly asks “how much of what we do as lawyers actually requires thinkingand how much can be relegated to robots and automation?”

2.  Replicating Human Thought:  Alan Turing considered it absurd and meaningless to ask if machines can think using the common meanings of these words. Noam Chomsky similarly questions whether computers can replicate human thought. Yet Marvin Minsky and Ray Kurzweil believe that computers are not that far away from mimicking neural synapses in a substantively meaningful way.

3.  Still just Zeros and Ones: Barnett writes: “At bottom, computers do one thing and one thing only: switch an electrical impulse on or off.” It is their speed and accuracy that’s astounding.  But they still need to be told what to do, and even predictive coding can’t really capture “the magical ingredients of creativity, imagination and innovation” which depend on a life-time’s worth of experience.

4.  Not Yet Truly Human: Computers with human attributes such as stubbornness and insubordinate behaviour are yet to be created. AI that can match the depth of knowledge and insights we accumulate from the day we’re born to the day we die – the kind of knowledge and insights needed to provide complex legal advice for instance – is still something that only exists in science fiction (specifically Star Wars, according to Barnett).

Broken down like this, Barnett’s article arguably doesn’t add that much to the current debate over whether AI will soon be taking over lawyers’ jobs.  And I don’t know whether he actually answered the question posed in the title to his article, to which I guess the answer is “No.”**

Still, his reminding us that computers are just machines that process 1’s and 0’s really fast is a useful takeaway. That we still have a distance to go before truly “thinking” computers arrive also cuts through the hype that bubbles up from time to time within the AI and LegalTech communities.

After re-reading Barnett’s article, I’m personally more convinced than ever that focusing on how we “think” is not as useful as focusing on what we “do” – and then asking whether technology could do the same thing perhaps by different means. Which is why I found another article recently published by McKinsey & Co to be a more compelling read than Barnett’s – although I did think his was a nicely grounded approach that highlighted issues too often glossed-over.

So why didn’t my tweet of the McKinsey article titled Four Fundamentals of Workplace Automation become as popular as my tweet of Barnett’s article? Perhaps it was because the latter focused on lawyers (a topic of particular interest to my twitter followers) while the former maintained a broader perspective, albeit with some references to lawyers in the middle. Or maybe it was because Barnett’s article was particularly well-written and was perceived to be a thoughtful piece by a broader range of readers. Or it could simply have been the randomness of tweeting itself.

What do you think?

ABOUT THE AUTHOR

Peter Macmillan (@pjmcls) is a leading authority on how legal experts think. A lawyer and cognitive psychologist, he has pioneered new empirically-based approaches to the analysis and measurement of specialist legal expertise. He is the inventor of the Calepr Rating Scale – a diagnostic tool for identifying a lawyer’s level of expertise – and author of the book Unlocking the Secrets of Legal Genius: Measuring Specialist Legal Expertise Through Think-Aloud Verbal Protocol Analysis.

NOTE: My commentaries focus primarily – and often exclusively – on the cognitive skills of legal specialists working in top-tier law firms (aka BigLaw) and in highly-regarded boutique law practices. My principal area of interest is the execution of complex, non-routine legal work. The above analysis might not translate to other areas or aspects of the legal services industry.

** Betteridge’s Law: “Any headline which ends in a question mark can be answered by the word No.”

In Defence of the Legal Curmudgeon

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Anyone who has worked in BigLaw (or in any part of the legal industry, for that matter) will have come across the legal curmudgeon. These are the legal experts who, despite a routine disregard for basic social pleasantries, are excellent at what they do and enjoy a very healthy – and often growing – book of business. Their clients not only accept their ‘eccentricities’ but value highly their unconventional strategies and unvarnished assessments of  legal risk.

Yet these lawyers are often not treated with the understanding they deserve. Take the example of a tax partner in a big New York law firm who recently admonished his colleagues for sending “Thank you” e-mails. Here’s what he is reported to have written:

Going forward, please do not send “thank you” emails but if you decide to do so (notwithstanding my instructions not to do so) please do not include partners. Just a complete waste of everyone’s time.

For what it’s worth, this lawyer is named in the 2016 edition of The Best Lawyers in America. But more importantly, he could be exactly the kind of lawyer that law firm clients want, but are afraid to say so directly.

Continue reading “In Defence of the Legal Curmudgeon”

Robot Lawyers Are Not The Future

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Artificial Intelligence and machine learning are hot topics within the legal industry. While law-firm leaders are being asked when – not if – AI systems will take on tasks currently done by fee earners, industry outsiders are pushing technologies that many believe will transform the legal profession from a technological backwater to a shining example of cognitive computing done right.

The term Robot Lawyer is short-hand for the technologies that will replace human lawyers. Even though we don’t know the ultimate forms of these technologies with any precision, there’s no lack of excitement and debate over how transformative they’ll be. Moreover, a sizeable number of commentators are convinced that today’s AI systems and Robot Lawyers are being embraced too tentatively, and that we are already being denied the benefits of a more efficient and more client-friendly legal services industry. Some even believe that Robot Lawyers are the evolutionary end-point for the legal profession.

To me, the future of lawyers looks rather more human.

Once the various legal technologies being talked about today get to the point where they do what they need to cost-effectively and become common place (think smartphones within the last ten years), the hype over AI and Robot Lawyers will die down. The novelty and excitement of today’s predictions will begin to morph into an acceptance of a more mundane reality. What was once unimaginable will become the status quo, perhaps sooner than we expect.

When this happens, the focus of our discussions about the future of the legal industry – or at least of BigLaw and niche practice areas – will return to the capabilities of human lawyers with rare expertise. The elements of this expertise will vary depending on the area of law, but generally they will encompass exceptional technical knowledge, an ability to deeply understand client needs, excellent judgment about the feasibility and efficacy of different options, and deep intuitive ability within a narrow field of legal practice.

Eventually, every law firm will rely on a democratized technological platform to run their business. Some firms will be more sophisticated than others in how they harness the capabilities of that platform. But it will inevitably get to the point where faster response times (as just one benchmark) either won’t matter or won’t make sense commercially.

It’s not that technological advances will stop happening. They’ll continue and they’ll be welcomed by users. But incremental improvements will no longer receive out-sized rewards. It’s the difference between releasing the first mobile phone with access to an app ecosystem, and releasing the latest iteration of a free photo-editing app.

By this process, technological capability in law will eventually cease to be a distinguishing competitive advantage – just as it has in certain parts of the music industry.

In the 1980’s drum machines came into their own and began replacing human drummers. Almost every popular record released during this period used them. These machines typically required a dedicated programmer, and for some pop artists the rhythmic perfection of these devices became integral to their musical signatures. Understandably, the future for human drummers began to look depressingly bleak.

Today, those clunky drum machines have themselves been replaced by software-based solutions that are cheap, ubiquitous and can do things far beyond the capabilities of any human being – without the user having to possess any special skills or training. And yes, the number of human drummers needed in the world today has fallen substantially as a result.

At the same time, however, demand for the best drummers has intensified to the point where artists like Sir Paul McCartney will choose to delay the start of a major world tour to ensure the availability of a drummer like Abe Laboriel Jr. Eric Clapton and Sting are other elite artists who routinely line up to hire Abe for his skills as an expert musician.

Question: When was the last time one of your multi-million dollar clients delayed their annual product-launch to fit your holiday plans?

Perhaps more surprising is that even in the recording studio, which is the natural setting for drum machines because the visual excitement and spontaneity required for live performances don’t apply there, some drummers continue to get well-paid work. These are the pros who have the ability to quickly understand what an artist wants, can infuse a unique feel into their songs, and are able to raise the creative atmosphere in the studio in ways that a machine cannot.

Moreover, expert drummers, like expert lawyers, draw on extensive technical know-how, have a deep understanding of client needs, are known for their excellent judgment, and possess intuitive abilities beyond those of their merely competent – and less in-demand – colleagues. It’s also relevant to note that today there is little interest in developing new generations of drum machines. No major manufacturer considers this to be a high-profit market segment anymore. The drum machine concept has become little more than a commoditised add-on to other products.

Similar dynamics have played out in the world of professional photography. While easy access to pro-level photographic equipment has empowered ordinary consumers and reduced demand for professional photographers in a general sense, the very best fashion and portrait photographers continue to earn exceptionally good livings. They can also produce amazing results using sub-standard equipment as compared to the very ordinary photographs taken by the rest of us using the latest and greatest gear.

In my opinion, Robot Lawyers are not the future, at least not in the sense that they’ll rule the world of legal services. There’s no doubt they’ll have a role to play and have the potential to become core components in legal research, Big Data analysis, and a range of client-facing service-offerings. But in certain parts of the legal industry, the smart money will increasingly be on those legal experts on whom the profitability of future law firms will be built, ie those lawyers and legal teams for whom clients will line-up and re-arrange their schedules – and pay for the privilege to do so.

Which is why I contend that as we continue to develop AI systems and Robot Lawyers to perform a variety of legal tasks, law firms at the top of the profession should be learning more about how to develop – and keep – those legal experts who will be doing what machines cannot.  This investment in human ability will, I believe, pay richer dividends for longer than any bet on technology today.

ABOUT THE AUTHOR

Peter Macmillan is a leading authority on how legal experts think. A lawyer and cognitive psychologist, he has pioneered new empirically-based approaches to the analysis and measurement of specialist legal expertise. He is the inventor of the Calepr Rating Scale – a diagnostic tool for identifying a lawyer’s level of expertise – and author of the book Unlocking the Secrets of Legal Genius: Measuring Specialist Legal Expertise Through Think-Aloud Verbal Protocol Analysis.

Peter is presently working on his next book (to be published in 2016) with the working title How Legal Experts Think: The Cognitive Traits of Elite Lawyers.

NOTE: My commentaries focus primarily – and often exclusively – on the cognitive skills of legal specialists working in top-tier law firms (aka BigLaw) and in highly-regarded boutique law practices. My principal area of interest is the execution of complex, non-routine legal work. The above analysis might not translate to other areas or aspects of the legal services industry.

 

Work Flexibility vs Legal Expertise

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Articles like The Lawyer Revolution – How NewLaw is Giving Power to Lawyers in Their Career Decisions advocate “more flexible ways of working” so that lawyers can take “back control over the work they do and clients they work for.” Large traditional law firms – aka BigLaw – are not interested in offering this kind of flexibility to their lawyers, or so the narrative goes. They fear it could lead to mediocrity while the change-advocates believe it “would actually benefit both the lawyer and the firm.”

From my perspective as a lawyer and a cognitive scientist who studies the development of legal expertise, these fears are both real and likely justified, at least for those lawyers who want to become and remain high-level experts in their chosen fields of law.

Continue reading “Work Flexibility vs Legal Expertise”

A Loophole in the Paradox of Legal Expertise

New_York_City_Gridlock-240x300In his 1966 book The Tacit Dimension, Michael Polanyi described the Paradox of Expertise with a simple phrase: “We know more than we can tell.” So it is with the concept of tacit knowledge, which is knowledge that we are unable to share with others through verbal explanation alone. The most common forms of tacit knowledge relate to unstated procedures we follow but don’t realise we’re following.

Continue reading “A Loophole in the Paradox of Legal Expertise”

The Four Dimensions of Legal Expertise – No. 4 “Intuition” (Part A)

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Intuition is a widely studied cognitive phenomenon.  But it has been less studied in law than in other areas, at least in an empirical sense. With a grounding in the prior three dimensions of legal expertise, namely, knowledge, understanding and judgment, I want to take a little more time discussing this last dimension. Hence the “Part A” in the title to this post.

Continue reading “The Four Dimensions of Legal Expertise – No. 4 “Intuition” (Part A)”

The Four Dimensions of Legal Expertise – No. 3 “Judgment”

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We’ve talked about the “knowledge” and “understanding” dimensions of legal expertise.  Today’s post looks at the concept of judgment.  This is the ability of a legal specialist to know which of their ideas is likely the best one in a given situation.  It also describes their ability to present their thoughts in ways that make sense to clients.

Continue reading “The Four Dimensions of Legal Expertise – No. 3 “Judgment””

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