Above (and Beyond) the Law: The Not-so-gloomy Future of Law

As legal-snark-lovers know, you can’t do much better than Above the Law (ATL), a website devoted to exposing the foibles and failings of lawyers, the legal system, and law schools. Rapidly becoming a media force in its own right, ATL held a “converge” in New York Wednesday, March 18 on media, technology, and the future of law.

Readers of The 10-Q should want to know what ATL and its panelists think will happen to us in the near future—and what we can do about it now.

The Robots Will Eat Us!

ATL has made a name for itself predicting the demise of the modern legal business model, especially BigLaw and law schools. And, indeed, ATL’s Elie Mystal closed the day with a panel on The Future of Law—devoted to the basic proposition that it has none.

Why? Well, that panel of technologists and outsourcing specialists had a hammer—technology and outsourcing—and so saw everything as a nail. Machine learning, predictive analytics, Watson, and cheap labor will eat larger and larger chunks of legal work, especially commodity work, such as repeat transactions and probabilistic dispute resolution. “Skynet is coming,” they told us—if it isn’t already here.

But It’s Not All Bad (Really)(Maybe)(Probably?)(Please?)

This is hardly a new story, and there isn’t much (more) to say about it. Maybe it’s true; maybe it’s not. But Mystal’s gloomy closing was preceded by other, more cautiously optimistic panels and participants, who had more constructive advice about things that lawyers and law schools can do now to take better advantage of the fact that almost everything we take for granted is up for grabs.

Justin Smith, CEO of Bloomberg Media and the keynote speaker, started the day by reminding us that—despite the Terminator-esque finish—people are ultimately the most important factor in success. Lawyers, law schools, and those invested in the foregoing (e.g., bar associations—which earned universal scorn for idiotic social media regulation) will succeed only if they develop and nurture the zeal of startups. This means attracting and retaining passionate, energetic, focused, and creative people. For example—

• Fancy credentials alone aren’t sufficient (sorry, Harvard).
• Transparency and experimentation are vital (sorry, OldLaw).
• Toxicity has no place (sorry, ATL).
• Loyalty and relationships matter (no more mass layoffs, BigLaw).
• These are products of local culture, which will be determined by those in charge, whether they are partners, general counsels, or law deans.

Smith and the day’s remaining panelists urged those in law to become savvier about content, technology, and media, both in doing their jobs and in promoting their good work. Some suggestions included:

• The rise of “native advertising”—sponsored content—creates tremendous opportunities for lawyers and law schools willing and able to create and promote high-quality content. Some firms—MOFO comes to mind—already do this well. (Heck, this is really The 10-Q’s secret mission).
• Understanding how digital advertising actually works—e.g., LinkedIn may be a more efficient use of your advertising dollars than Facebook or Google—is key to getting your message out.
• Never be afraid to talk to old media, but have your story straight and stick to it.
• Stay on top of technological developments in media generally, and as they pertain to your clients, in particular. Example: Geolocation is radically changing business models—not just through Uber, but more subtly as tools come online to map everything from energy consumption (and production) to health trends to clusters of causes of action.
• BigData and predictive analytics will be central to efficacy. Learning how to use these tools—and how our clients use them—will become foundational for the lucky among us.
• New and emerging trends in law will rise as quickly as old ones die. Experts such as Mary-Rose Papandrea (Boston College Law) and Michael Gottlieb (Boies-Schiller) mapped out the likely legal terrain on data-breach protocols, privacy norms, and cyber-threats—all problems to which law can and should provide solutions, if lawyers are up to it.

Lawyers, law schools, and those invested in the foregoing (e.g., bar associations—which earned universal scorn for idiotic social media regulation) will succeed only if they develop and nurture the zeal of startups.

For law schools the message is pretty clear: we can adapt or die. Here are some things law schools should think about massaging into the curriculum:

• Data Privacy: Privacy will present growing challenges to compliance, contracting, and enforcement that should be part of the curriculum. If lawyers don’t learn how to identify and manage these issues, law won’t be the solution to the many privacy problems that the future promises us. (For more on data-breach, see Jess Pelliciotta’s 10-Q piece on the new White House proposal, here).
• Data Security: You don’t need to work at Sony to know that everyone needs to worry about this. Lawyers will (or should) be key players in efforts to regulate and manage data security issues. Law schools should co-teach these courses with computer science folks so that students understand the technologies, not just the rules.
• Cyber Threats: Do students emerge from law school with some sense of how to talk to clients about the nature of cyber threats? What’s the ransomware plan? Does the client have Bitcoin, in case they need to pay off North Korean hackers to buy time to talk to law enforcement?
• Predictive Analytics: Lawyers will increasingly need to know how to use BigData and—even better—to create code that makes better use of it. This means teaching and learning coding. The lawyer with the best app wins!
• Media Presence: Law students should know not only social media no-nos, but also how to engage emerging media proactively to develop and promote professional expertise.

This is a small, random, and inadequate sample of some curricular ideas that struck me at the ATL Converge. There are doubtless other, better things folks will think of.

And, none of this means we should jettison the core of what law schools and lawyers have long done pretty well: There are good reasons to teach the common law in 1L year using more-or-less traditional Socratic methods. When done well (and it’s not always done well, of course), it develops analytic rigor, issue-spotting, and rhetorical skills. These techniques have helped teach lawyers to become immersive and adaptive leaders in business, government, and other social endeavors.

We fear change, but actually, we are pretty good at adapting to it. And, change we must—or the robots really will eat us.

Jonathan Lipson is the Harold E. Kohn Professor of Law at Temple University Beasley School of Law. He teaches Contracts, Bankruptcy, Commercial Law, and various other business law subjects. He writes about corporate bankruptcy and other forms of failure. You can learn more about him here.