- Created: Monday, 20 June 2016 14:10
Machine intelligence is replacing humans in many areas of the law, but leading ‘superstar’ lawyers may be able to use technology to earn even greater rewards, says John O. McGinnis
As machine intelligence commoditises many aspects of law, information technology will accelerate greater transparency that will, in turn, accelerate lawyers’ loss of market power over legal services. Most obviously, the transparency will come in the form of consumers’ increased ability to compare the prices of legal services. But new services will also arise to help consumers compare the quality of lawyers. Start-ups are devising metrics that use available data to compare the performance of lawyers.
But even if average lawyers will be disadvantaged, some superstars may earn even greater returns. First, with great metrics of comparison, discerning who the superstars are will be easier. Second, superstars can extend their research through technology – meaning they deliver their innovative solutions to problems faster and to a broader range of clients. Some of these innovations will be in traditional lawyering, such as creating new forms of familiar transactions and shaping surprising and novel arguments. Partners may also be able to substitute machines for associates, thereby gaining more leverage at lower cost.
For a range of important transactions and litigation, small improvements in outcomes make it worthwhile for clients to pay for non-commoditised legal services. Even if machine intelligence provides very good services, mixing in human intelligence may assure the best result. Accordingly, we may see more bimodal distribution of legal salaries, perhaps with a smaller group of even more highly compensated lawyers. Machine intelligence may also help lawyers, through skill or better organisation, increase delivery of low-priced services. There is a great deal of unmet legal need, generally for low and middle-income people who cannot afford the prices lawyers charge. These legal needs include matters as varied as counselling on small-business matters and writing prenuptial agreements. Lawyers can use machines to help generate relevant forms, thereby reducing the costs and making the services more broadly affordable.
Limitations of robots
However, robots may affect other areas of law to a lesser extent, because machines cannot easily add as much value to certain tasks lawyers perform. For instance, machines will not argue in court and thus will not replace those who specialise in oral advocacy. Nevertheless, machines will indirectly affect the practice of trial and appellate lawyers. With more accurate predictions of case outcomes, fewer trials should occur because more parties will settle. And even trial practice requires research, discovery and production of documents—all tasks that machine intelligence will alter. Lawyers are more likely to excel if they specialise in novel laws and regulations.
Those who believe the impact of machine intelligence on the legal profession will be minimal say lawyers have always adapted to technological change and, in doing so, even increased their incomes: typewriters replaced quill pens, word processors replaced typewriters, and carbon paper came and went. Lawyers continued to prosper and grow in numbers. What is the distinction for the legal profession between the technological changes of the past and those of the future? The key differences are two. First, the technology is now beginning to substitute for core legal skills, unlike copying and transcription. The physical acts of writing and copying were not core legal skills. Indeed, lawyers generally depended on copyists or secretaries to complete these tasks. But now machines are climbing the value-added ladder, encroaching on the domain of lawyers. Second, the rate at which machines are improving, and thus substituting for lawyers, is faster than ever before.
Given the world’s ongoing technological acceleration, lawyers who specialise in areas connected to that acceleration, like intellectual property, may also prosper. Lawyers do more than undertake legal analysis. They bond with clients, thereby fostering relationships of trust, which allow the lawyer to facilitate clients seeing their long-term legal self-interest, even when clients’ passions and confusions cloud that interest. Machines are unlikely to perform this bonding function and, thus, will be unlikely to substantially affect this aspect of the lawyer-client relationship. The overall effect of the machine invasion thus will be mixed for lawyers, but particularly difficult for non-specialised lawyers of average or worse than average ability. For consumers at every level, the progress of machine intelligence is excellent news, offering lower prices and more transparency.
John O. McGinnis is George C. Dix Professor in Constitutional Law at Northwestern Pritzker School of Law, Chicago, Illinois. This article is based on a report he co-wrote with Russell G. Pearce entitled “The Great Disruption: How Machine Intelligence Will Transform the Role of Lawyers in the Delivery of Legal Services”