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Disruption: Three Forces Shaping the Legal Landscape
From mobile and global work environments to alternative billing models to a perceived crisis in legal education, the legal industry is in the midst of a major transformation. Some changes are evolutionary, yet other developments may feel revolutionary for those unprepared for change. What are the key trends that will disrupt the legal industry and impact practice across the landscape?
In recent panels and roundtable discussions, including the most recent LegalTech New York conference, legal minds have identified three forces as shaping the legal industry of tomorrow and are becoming increasingly outspoken with ideas for how attorneys ' and the industry as a whole ' can embrace change and remain ahead of the game. Below is an outline of these top three disruptors, and some of the debate that surrounds them.
The Impact of Cost
Experts continue to debate the issue of cost in legal practice, and whether or not technology is helping to save money. On one side, some thought leaders, such as the retired U.S. Magistrate Judge John Facciola, believe that cost has driven the middle class out of the federal courts. And because technology is now irreversibly interwoven into legal practice, the fundamental cost of utilizing technology prevents some from even getting onto the playing field.
Others disagree, pointing out that technology actually has leveled the playing field because individuals or smaller entities can use technology to efficiently and effectively get through the countless boxes of paper that formerly buried them. This school of thought stresses that the widespread variety of and access to technology ' and the effect it has on document review specifically ' provides an attainable approach for every matter, regardless of the size.
On both sides of the cost debate, experts agree that the best way to address these challenges is through CLE. While no states currently require CLE components to include technology, the American Bar Association Model Rules were amended in 2012 to provide guidance on lawyers' use and knowledge of technology. The comment to Rule 1.1 relating to Competent Client Representation states “to maintain 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.” A discussion of predictive coding informed the rule making process, and this comment emphasizes the obligation attorneys have to understand technology as part of competently representing clients.
Reliance on Technology
As an extension of the cost debate, another major disruptor in the legal world is the debate surrounding whether non-lawyer technical experts should be permitted to be partners in law firms. Discussion around how much technical expertise lawyers should have to effectively practice, and what level of relationship law firms should be allowed to have with technologists and software developers is ongoing.
Some experts believe that law firms should be able to raise capital and develop corporate relationships that foster developing technology internally and elevate their technology profiles. This view is built on the idea that limiting partnerships to lawyers alone hinders innovation in the practice of law, and that law firm partnerships should also be open to non-lawyers who can provide technology expertise and innovation. However, the ABA Model Rules state that: “a lawyer shall not form a partnership with a non-lawyer if any of the activities of the partnership consist of the practice of law.” Other businesses, such as the financial industry, permit such models, wherein institutions create technology innovations internally, allowing them to trade and forecast in a way that is unique from competitors.
Law firm partnerships, on the other hand, currently are not allowed to take this approach, and are forced to rely on technology provided by third parties and being used by opposing parties. Most lawyers are not technical experts, and while they must have a threshold of technical understanding to effectively represent their clients, they must be allowed to bring in outside experts to advise on technical issues. Generally, there seems to be consensus on this point within the industry, but some disagreement remains as to what the level of technical competence should be and how it is balanced with non-lawyer partners. What disruption would happen within the practice of law if these technical experts were law firm partners?
One approach for balancing technical and legal that has gained traction in recent years is the creation of e-discovery practice groups within firms. These practices have their own clients for whom they act as discovery counsel and they also provide advice on e-discovery issues across existing matters at the firm. By allowing the attorneys who do have deep technical understanding to build internal practice areas that address technology needs, the legal industry is able to more quickly and effectively adopt technology and better serve clients as a result.
A Call for Education Overhaul
Many of the challenges facing the legal industry today could be effectively overcome with solutions at the law school level. Across the board, there has been a call for change at law schools, demanding that they better prepare incoming lawyers for practice in a technological age. By educating future lawyers on technology and requiring a base level of technical understanding, law schools will enable them to keep up in a rapidly changing landscape.
The prominence of technology in our everyday lives necessarily means that law school graduates today are exposed to it. However, exposure is not synonymous with knowledge, understanding or competence and there is currently no standard regarding technical proficiency in law schools. Many schools simply are not equipping law students with what they need to thrive in practice, so much so that even the schools that are placing greater emphasis on technology and offering special programs for e-discovery still do not include tech-related courses as part of the required curriculum.
Technology now touches all areas of law practice, and thus the thought leaders in the legal technology arena agree that law schools must prioritize technology education. Until schools begin to add technology components to core curriculum and hire faculty competent on these topics, consistent technology education will never be achieved, and lawyers will continue to be underprepared entering into practice. Ultimately, it is incumbent upon the ABA to enforce change, and an increasing number of its members are beginning to acknowledge the importance of this issue.
The influence of technology is apparent and prominent in all three of the current disruptive trends affecting the practice of law today. The common thread between all three is the fact that attorneys can no longer ignore technology; they must instead embrace it as a permanent but evolving presence in their practice. The nuances are still up for debate, and likely will change over time, but at a minimum, lawyers need to educate themselves and form a position on how best to incorporate technology into their practice to address present challenges and prepare for tomorrow.
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From mobile and global work environments to alternative billing models to a perceived crisis in legal education, the legal industry is in the midst of a major transformation. Some changes are evolutionary, yet other developments may feel revolutionary for those unprepared for change. What are the key trends that will disrupt the legal industry and impact practice across the landscape?
In recent panels and roundtable discussions, including the most recent LegalTech
The Impact of Cost
Experts continue to debate the issue of cost in legal practice, and whether or not technology is helping to save money. On one side, some thought leaders, such as the retired U.S. Magistrate Judge John Facciola, believe that cost has driven the middle class out of the federal courts. And because technology is now irreversibly interwoven into legal practice, the fundamental cost of utilizing technology prevents some from even getting onto the playing field.
Others disagree, pointing out that technology actually has leveled the playing field because individuals or smaller entities can use technology to efficiently and effectively get through the countless boxes of paper that formerly buried them. This school of thought stresses that the widespread variety of and access to technology ' and the effect it has on document review specifically ' provides an attainable approach for every matter, regardless of the size.
On both sides of the cost debate, experts agree that the best way to address these challenges is through CLE. While no states currently require CLE components to include technology, the American Bar Association Model Rules were amended in 2012 to provide guidance on lawyers' use and knowledge of technology. The comment to Rule 1.1 relating to Competent Client Representation states “to maintain 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.” A discussion of predictive coding informed the rule making process, and this comment emphasizes the obligation attorneys have to understand technology as part of competently representing clients.
Reliance on Technology
As an extension of the cost debate, another major disruptor in the legal world is the debate surrounding whether non-lawyer technical experts should be permitted to be partners in law firms. Discussion around how much technical expertise lawyers should have to effectively practice, and what level of relationship law firms should be allowed to have with technologists and software developers is ongoing.
Some experts believe that law firms should be able to raise capital and develop corporate relationships that foster developing technology internally and elevate their technology profiles. This view is built on the idea that limiting partnerships to lawyers alone hinders innovation in the practice of law, and that law firm partnerships should also be open to non-lawyers who can provide technology expertise and innovation. However, the ABA Model Rules state that: “a lawyer shall not form a partnership with a non-lawyer if any of the activities of the partnership consist of the practice of law.” Other businesses, such as the financial industry, permit such models, wherein institutions create technology innovations internally, allowing them to trade and forecast in a way that is unique from competitors.
Law firm partnerships, on the other hand, currently are not allowed to take this approach, and are forced to rely on technology provided by third parties and being used by opposing parties. Most lawyers are not technical experts, and while they must have a threshold of technical understanding to effectively represent their clients, they must be allowed to bring in outside experts to advise on technical issues. Generally, there seems to be consensus on this point within the industry, but some disagreement remains as to what the level of technical competence should be and how it is balanced with non-lawyer partners. What disruption would happen within the practice of law if these technical experts were law firm partners?
One approach for balancing technical and legal that has gained traction in recent years is the creation of e-discovery practice groups within firms. These practices have their own clients for whom they act as discovery counsel and they also provide advice on e-discovery issues across existing matters at the firm. By allowing the attorneys who do have deep technical understanding to build internal practice areas that address technology needs, the legal industry is able to more quickly and effectively adopt technology and better serve clients as a result.
A Call for Education Overhaul
Many of the challenges facing the legal industry today could be effectively overcome with solutions at the law school level. Across the board, there has been a call for change at law schools, demanding that they better prepare incoming lawyers for practice in a technological age. By educating future lawyers on technology and requiring a base level of technical understanding, law schools will enable them to keep up in a rapidly changing landscape.
The prominence of technology in our everyday lives necessarily means that law school graduates today are exposed to it. However, exposure is not synonymous with knowledge, understanding or competence and there is currently no standard regarding technical proficiency in law schools. Many schools simply are not equipping law students with what they need to thrive in practice, so much so that even the schools that are placing greater emphasis on technology and offering special programs for e-discovery still do not include tech-related courses as part of the required curriculum.
Technology now touches all areas of law practice, and thus the thought leaders in the legal technology arena agree that law schools must prioritize technology education. Until schools begin to add technology components to core curriculum and hire faculty competent on these topics, consistent technology education will never be achieved, and lawyers will continue to be underprepared entering into practice. Ultimately, it is incumbent upon the ABA to enforce change, and an increasing number of its members are beginning to acknowledge the importance of this issue.
The influence of technology is apparent and prominent in all three of the current disruptive trends affecting the practice of law today. The common thread between all three is the fact that attorneys can no longer ignore technology; they must instead embrace it as a permanent but evolving presence in their practice. The nuances are still up for debate, and likely will change over time, but at a minimum, lawyers need to educate themselves and form a position on how best to incorporate technology into their practice to address present challenges and prepare for tomorrow.
'
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