This is Mr. Machine. He gets wound up, rolls about the place in a mechanical fashion, opening and closing his mouth and making a bit of a racket. In his way, Mr. Machine is just like many of the lawyers you might encounter out in the world.
Mr. Machine sprang to mind as I was reading two posts, each dated today, on the interplay between lawyers and technology. Neither post mentions the other, and neither is the typical sort of "how to improve your practice and earn untold riches by embracing the latest shiny electronic tchotchke [SET]" puffery that so infuses certain quarters of the legal blogging world. Rather, each is concerned in some fashion with the question of whether the Next SET might replace lawyers, instead of enhancing them.
Inspired by this week's series of Jeopardy! episodes pitting exceptionally clever mere humans against IBM's mighty "Watson" computer system, Martin Ford takes to The Atlantic's business blog to ask, "Can a Computer Do a Lawyer's Job?" He concludes that it is very probable that a computer could.
If you agree that the game of chess requires creativity within a set of defined rules, then could not something similar be said about the field of law? Currently there are jobs in the United States for many thousands of lawyers who rarely, if ever, go into a courtroom. These attorneys are employed in the areas of legal research and contracts. They work at law firms and spend much of their time in the library or accessing legal databases through their computers. They research case law, and write briefs which summarize relevant court cases and legal strategies from the past. They review contracts and look for loopholes. They suggest possible strategies and legal arguments for new cases that come to their firms.
The first thing you might guess about these attorneys is that they are already subject to offshoring. And you would be correct: in India there are already teams of lawyers who specialize in researching case law not in India—but in the United States.* * *
*** What about the more advanced or creative aspects of the lawyer's job? Could a computer formulate a strategy for an important legal case? For the time being, this may be a challenge, but as we saw in the case of chess, a brute force algorithm may ultimately prevail. If a computer can evaluate millions of possible chess moves, then why can it not also iterate through every known legal argument since the days when Cicero held forth in the Roman Forum? Would this be a "lesser" form of legal creativity? Perhaps it would. But would that matter to our lawyer's employer?
"Knowing every legal argument" is certainly not the same thing as winning every legal argument, especially when the person making the decision is a human being, prone as all humans are to fall into the occasional error or to be persuaded by something other than the weight of authority. (What courtroom lawyer hasn't presented the best framed, most flawlessly argued position ever only to have a judge adopt the patent nonsense proffered by the other side? That is how appeals happen. Sometimes, that is how appeals are won or lost. But I digress.) The particular skills that often make the difference between effective advocacy and ineffectual venting—tone, manner, the timing of a quip, the execution of a pause, the innate sense of when one has said enough and not too much—are not immediately open to being simulated by even the most sophisticated calculational mechanics. But it is not out of the question that they someday might be.
We are again in an era in which "technology" is touted as the most promising solution to virtually every problem. It is a constant mantra for our political leaders: new technology will solve our ills and, above all, Create New Jobs. But as Ford's piece emphasizes, technology that does things that are now done by humans more efficiently or less expensively does not create jobs: it eliminates the need for some jobs to be done by humans at all.
This is, of course, the story of the Industrial Revolution and of every other major technological shift for the past several centuries. It is not an argument against technology as such, so much as it is a reminder that one should not embrace the benefits of advancing technology blindly. Every new technology, like every other form of refuge, has its price. If you are the one currently doing the job that can be done as well or better by a computer, Mr. Machine becomes a less welcome playfellow.
Some will insist—and I am by nature entirely sympathetic to their insistence—that the qualities and attributes that most matter in the practice of law can never be synthesized or mimicked, whether by a machine or by another human who does not in fact possess them. One such insistent voice, I suspect, would be Scott Greenfield, whose Simple Justice post "Driving that Train..." points out that an American Bar Association panel on "The Future of Lawyering" is convinced that the day has already come when lawyers are being supplanted by software and search engines, and that it only remains to choose what color balloons we will drop as we rapturously welcome our new technological overlords. Greenfield is having none of it:
Until now, I hadn't realized how out of touch I've become. It suddenly dawns on me why [former Connecticut Bar president, Fred] Ury concludes that people can obtain answers to 'complex legal questions easier and cheaper' on Google than [by] going to a lawyer. I didn't see the writing on the wall.* * *
I've seen the legal advice the internet has to offer. It's bad. It's worse than bad. It's dangerously awful. It downright sucks. So what Fred Ury is saying is that the advice coming from living, breathing lawyers is no better than the Google garbage.
Holy moly. Up to now, I had been looking at it all wrong. It had long been my understanding that the important official people who desperately wanted to hold high office in bar associations were of the view that lawyers offered something more, something better, than crap on the internet. Never did I realize that the profession had devolved to the point that living, breathing lawyers were not only unworthy of being retained, but superfluous, incapable of doing any better than a $49 will. Who knew?
Greenfield is vowing to soldier on the "old-fashioned" way, and he should. The environment in which it is done has changed, and it will continue to change, but the essential purpose of the profession of lawyering must not. In fact, I would suggest that one of the identifying traits of a true "profession" is that the professionals within it do what only a trained and qualified human being can. There is no reason for anyone who calls himself or herself a lawyer to do so unless the entire point of their entry into the practice of law is to provide to their clients the kinds of advice, counsel and representation that neither a Google search, nor a fancy SET, nor a Watson-style "brute force algorithm" can replace—because if you can be replaced by any of those, odds are that you will be, and sooner than you expect.
The day any of us loses sight of the purpose of our profession, or the day that the machines actually can do our particular job better than a good and devoted human professional, is the day to pack it in and open a pastry shop.
