Law & Innovation Lab
The Law & Innovation Lab (the “Lab”) is an immersion study of the landscape of innovation and technology in the legal industry. The Lab provides students the opportunity to gain direct experience at the forefront of legal technology by working to bridge the access to justice gap and improve the effectiveness and efficiency of law practice.
Law & Innovation Lab Overview
The Lab offers students the opportunity to engage in the rigorous process of problem-solving and product development. These technology-based products (expert systems, chatbots and document automation systems) will address real world legal problems identified in partnership with local legal services organizations and law firms.
Framed around the product development cycle, the class will begin with a deep dive into design thinking, engaging in discovery and synthesis around the identified problem. Students will then design, prototype, test, improve and refine their digital solutions to the problem. The class will also plan a comprehensive go-to-market strategy to deploy their app into the hands of those who need it most, addressing possible barriers to adoption and community concerns. The class will also discuss, more broadly, ways to encourage the legal profession to embrace product and process innovations to scale scarce resources.
The Lab classroom experience will involve presentations by and discussions with practitioners from across disciplines (legal services, social services, technology, product development, design, and more), along with a heavy dose of joint problem-solving exercises and chat bot, expert system and document automation development.
No prior experience with coding or software development is necessary – just a willingness to think differently, work through detailed directions and engage in creative problem-solving.
Law + Innovation Lab Blog
January 25, 2021 - The Law + Innovation Lab is up and running!
The Law + Innovation Lab is up and running!
by Lois R. Lupica
The Law + Innovation Lab (the Lab) will be operating a blog, written primarily by students, that will describe some of the work we are doing.
The Lab began its work last week with a visit from Toma Officer, Co-founder and Product Designer of Afterpattern (formerly, Community Lawyer). Afterpattern is a no-code technology platform, designed to help people build legal tech apps, without having to be or employ a software engineer. Toma told us the engaging story of his evolution from a law school graduate to legal tech entrepreneur. The students queried him about opportunities for this type of career path as they showed him the project they just completed – an app that can be used to order a beverage. Toma was wildly impressed with the students’ work (as was I)! With access to just the on-line training tutorials, the projects were a triumph! Creative, aesthetic, technically sound and readily deployable, these apps could be adopted by any coffee house and result in increased service efficiency and effectiveness. Check out this link for an outstanding sample of the Lab’s work (credit to Lab student Robyn Speirn).
Toma then gave the students a tour of some of Afterpattern’s more complex capabilities and walked them through their next project: a database that populates a document template. This app will enable the efficient generation of thank you notes to each of our guest speakers. I look forward to reviewing these completed these apps this week, and to having the class use them to thank our guests for their valuable time and expertise.
Our second guest was Molly French, Manager of Technology at Colorado Legal Services (CLS). Molly spoke to the class about the challenges facing legal services organizations in this time of financial insecurity. CLS has agreed to be one of the Lab’s Community Partners – meaning that a team of students will work with Molly and CLS lawyers to develop a family law expert system that will help those seeking legal assistance in connection with their marital dissolution and child custody issues. This expert system will be housed on CLS’s website and we hope that it will increase CLS’s capacity to serve more people needing legal help.
We also began our discussion of the human centered design process that we will be using to develop legal expert systems. This process is based on the fundamental principle that tools need to be built and tested with the input of those they are designed to serve. We are currently seeking the participation of members of the community for a number of projects. If you know someone who has negotiated a legal issue as a self-represented party and is interested in working with students on system improvement, please reach out to me (firstname.lastname@example.org).
February 01, 2021 - Real-World Design Thinking Application by Mark Emde
Real-World Design Thinking Application
by Mark Emde
Recently, my fiancé and I upgraded from a full bed to a queen bed and have been LOVING the extra room but ran into an interior design and functionality issue with the previous bed set. Around 2009, I handmade the previous bedframe and it was very customized to a full mattress, so we could no longer utilize the frame for the new bed. Further, the headboard was extremely customized for a full bed, so our new bed did not work as well as the previous bed.
Figure 1. Original headboard with bedframe
The original headboard was part of a roller coaster for a homecoming float that I welded in college. After homecoming, I removed the bridge support and repurposed it into a bed with side tables and lights.
Figure 2. College homecoming float
The headboard and bedframe were two separate pieces and the side tables were designed to accept the custom bed frame perfectly seated between them. When we brought the new bed into our home, not only would the queen bed not fit in the full frame but, the queen bed would not fit between the side tables. A real problem was created…
Figure 3. Headboard with new queen mattress
Now for the fun stuff! When life gives you problems and you are learning about design thinking in your Law & Innovation lab, why not apply the principles to your real world problem? “Design Thinking is an iterative process in which we seek to understand the user, challenge assumptions, and redefine problems in an attempt to identify alternative strategies and solutions that might not be instantly apparent with our initial level of understanding.”1 Further, design thinking involves a solutions based method to problem solving. Design thinking has been boiled down to five phases2:
Empathize – Work with your user(s) to understand their needs and desires and challenges.
Define – Determine your users’ needs, their problems they are facing, and your insights as to the problem.
Ideate – Challenge assumptions and create ideas for innovative solutions to the problem(s).
Prototype – Start creating solutions to the problem.
Test – Test the solutions and iterate until a final product is created to alleviate the problem.
The first step of the process was easy, as I was also involved in the problem we were facing of a headboard that did not accept our bed, that was sitting on the floor resembling a college party house, and also had a three foot gap that was present between the bed and the headboard, where we put a bench to house pillows so nothing fell into the abyss in the middle of the night. The empathy part was easy in this case…
The next step was to determine each other’s needs and define the problems being faced. The true needs were to elevate the bed off the ground and close the gap (and to look aesthetically pleasing, of course). One of the problems I personally was facing was avoiding removal of the side tables and performing any metal work, based on availability of tools.
This is my favorite part, but can cause frustration if you are not open to the thought process and change that can and will occur during the designing stages. Let the ideas flow! Our first and easiest option would have been to buy a simple metal frame from the furniture store, but that still would not close the gap between the bed and the headboard and there is no joy in buying a metal frame and placing a bed on it. My first thought was to run a small board across the top of the side tables and then pattern wood down the front face of the side tables. This could have worked, but would have made for a large piece of furniture in a small room. After workshopping through ideas and different variations, it became apparent that my fiancé was a very visual person and was not necessarily seeing what I was seeing, or attempting to describe.
It was determined that pictures needed to be created to effectively solve the bed problem. I used AutoCAD hroughout college and have always played around with it when I can. Google has a great program called Sketchup, which is a 3D CAD program and I figured this would be a great opportunity to try something new and provide visuals. I went to the internet for inspiration of different bed ideas and found some farmhouse style beds, platform beds, and finally, a “floating” bed with lights, how fun!
Figure 4. Inspiration from the internet of “floating” bed with lights
I presented the inspiration to my fiancé and got the nod of approval to move forward with the basic idea. I sketched up the bones of the frame and started the iteration and rapid prototyping process. A first model was created to build off of.
Figure 5. First iteration of the frame
Figure 6. First iteration of the frame showing “floating” aspect
I sent the design to a fellow engineer and got feedback on structural adjustments and aesthetic adjustments, which led to a final version of the frame.
Figure 7. Final iteration of the frame
The easy part of designing the frame was in its final stages, but now the hard part began…what to do with the headboard. One of the main problems of the pillow crevasse still existed and a new problem was created – sharp corners on the nightstand that would leave us with Harry Potter scars on our foreheads, or worse, leaving us blinded from metal to eye impact.
Figure 8. First iteration of bedframe with headboard
After going in circles on what to do, it was finally determined that it would not be that difficult to remove the side tables and that it would only require a couple of cuts, a quick grind, and a light coat of paint. A final visual design was created for the stamp of approval.
Figure 9. Final iteration of the frame with the headboard and no side tables
It was time to move forward with purchasing supplies and to start the initial build. As much as my fiancé hates Home Depot, she was a trooper and tagged along, which I am thankful for, as the original design had an exterior frame made up of 2x10’s and when I started pulling them from the rack was told that she would not like that big of an edge and wondered if there was anything else we could do. Yet another iteration took place and we audibled to 1x10’s, which made for an even more aesthetically pleasing edge.
We got home, made all of the cuts, sanded the edge pieces, stained the edge pieces, cut the side tables off, and began assembly.
Figure 10. Initial build
Through all of this process, one problem still existed…how to connect the frame to the headboard. When I installed the lights on the initial headboard, I ran electrical wire through the metal tube and out the bottom for an easy wall connection. The first time I installed this, I was deathly terrified of not having a solid connection and making a headboard that would shock you in the middle of the night. Ten years later, the fear still haunts me and the last thing I wanted to do was mess with the wiring again, so drilling into the headboard was the last option on my list. After brainstorming and discussing different options, a simple metal strap, wrapped around the headboard support and connected to frame was the final option.
The final assembly took place and it was time to test the bed to make sure the headboard did not fall on top of us, the base did not wiggle, the base did not rotate on the “floating frame”, and to make sure everything was satisfactory. SUCCESS!!!
Figure 11. Final product
Figure 12. Final product with bedding
Review of the Design Thinking Process
When I built the original bed frame, I was a solo designer and worked through all of the issues myself. With the second build, I was not the only one with opinions and ideas of what it should look like. The design thinking process made it simple to work through different solutions and understand what underlying issues and concerns were for each party. The iterating and prototyping stage allowed for visual representations of the final product and created a form of communication to ideate on different designs. The design process is never ending and we are currently working on improving the design we have, as the first night we went to plug our phones in and realized that we had nowhere easily accessible to place our phones. We have started over on the entire design thinking process for side tables and are learning each other’s desires and problems that we are facing. I think we are close to a final design of a box with a hinge that allows access to items that do not need to be visible throughout the day. We love designing together and look forward to incorporating the design thinking process into future projects.
February 05, 2021 - Could technology from Star Wars be the future of the legal system? by Lauren Hudson
Could technology from Star Wars be the future of the legal system?
by Lauren Hudson
What if Princess Leia never sent that iconic holographic message to Obi-Wan Kenobi pleading for help? What if any of the main characters had actually followed C-3PO’s advice when he spouted rational, calculated, risk assessments in dangerous situations? These are the thoughts that keep me up at night.
You might be wondering why I am talking about Star Wars on a legal technology blog. This is a valid question. I am painfully aware of how I am outing myself as a nerd, but upon learning about virtual court rooms and artificial intelligence (AI)-based court outcomes in the Law and Innovation Lab, my mind immediately transported to the countless hours I spent growing up watching Jedis and Sith Lords duel in an alternate universe with death stars, light sabers, holograms, and droids. I started to draw interesting parallels between George Lucas’ fiction and 2021’s reality. Let me explain.
First, some context of the United States’ legal system’s relationship with technology is needed.
There is no doubt COVID-19 brought the legal system to its knees. In a matter of weeks, law schools, courts, and firms were catapulted to the present, tasked with implementing technological changes put on the back burner for almost a decade. Remote working and learning is no longer an alternative, it is the new norm. Over the past few weeks in the Law and Innovation Lab, I realized the legal industry has uniquely resisted modernization. But after learning about how organizations such as Afterpattern, Josef, the Colorado Legal Services are harnessing the power of technology and applications (apps) to provide legal services and information to so many underserved communities, I wondered, why the pushback?
My (brief) theory for the industry’s resistance is three-fold: money, power, and fear. While all three motivations go hand-in-hand, each is distinct. First, we learned that technology has the power to reduce a $40,000 legal task to approximately $4500, and while this level of automation increases efficiency and reduces workloads, it also reduces the flow of income. Second, attorneys are considered elite members of society with essential specialized knowledge, yielding great power and status in their respective communities. If a technological system can do the same task as an attorney with more speed and precision, the need for attorneys to perform those tasks is decreased or eliminated, thus decreasing the perceived need for attorneys. Zooming out to a more macro level, another dimension of power is legal gatekeeping; attorneys in power tend to serve those in power and middle and lower-class Americans are left by the wayside, unable to afford or access legal services. The final motivation – fear – splices both money and power. Attorneys raking in the dough have a natural aversion to things that could jeopardize that, and attorneys in great power positions are terrified of things that threaten tradition because tradition upholds the status quo. Legal technology is most certainty a disrupter.
Now for the fun part. The two Star Wars AI-based technologies which I believe may become real-life disrupters are holograms and droids. While there are many ways to define AI, a good working definition is the “simulation of human intelligence in machines that are programmed to think like humans and mimic their actions. The term may also be applied to any machine that exhibits traits associated with a human mind such as learning and problem-solving.”
Imagine a world where the traditional brick-and-mortar courtroom is an archaic notion, a world where 3D holograms allow a physical embodiment of court officers and parties to be viewed virtually anywhere, without taking a step.
Depending on your belief system, this notion could either be exhilarating, repugnant, or somewhere in between. It boils down to a simple inquiry: Is court a service or a place? And if it is a service, is there a need for the physical building?Both now and in the future, rethinking traditional notions of where legal services are offered, and how they are offered, can create opportunities to use technology to increase access to legal services and information to underserved communities who can’t get their foot in the door.
Today, on Earth, legal services providers are trending in just that direction, embracing accessibility and recalibrating modes of resolution. In select jurisdictions, online dispute resolution is gaining traction, where individuals who are experiencing a legal issue can work through an online platform to reach an outcome without ever going to court.These types of online dispute resolutions, at least in Colorado, do not currently produce 2D visuals of 3D displays, or intergalactic teleconferencing for that matter.
However, beyond the legal industry there are a lot of really “strange and innovative types of displays being developed now.” For example, the HoloPlayer One “generates 32 views of a scene from different directions to create a 3D field of light floating above the device.” And “augmented-reality headsets like Microsoft’s Hololens, which overlay 3D images on a user’s visual field, will ultimately provide more flexible ways of achieving similar results” to Star Wars-like holograms.
To be sure, costs for holographic technology equipment would be high. However, in an alternate universe where traditional courthouses are a remnant of the past, it could be feasible to implement. How, you ask? Removing the government overhead of maintaining full-scale courthouses would alleviate a significant portion of funds which could be redirected towards producing and acquiring such technologies.
Using holograms to conduct court processes is a really cool thought, but then again thinking about a judge “standing” in your living room borderlines on ominous.
In essence, C3PO “represents the logical man, separated from the emotion.” Some have called this humanesque droid the “diplomatic droid” prototype. These types of droids have an uncanny ability to make swift and accurate risk assessments based on the facts and circumstances.
While I don’t think the role of the judge will be superseded by a robot anytime soon, nor should it, it is intriguing to think about robots like C-3PO as “artificial companions” or more specifically, risk-assessment assistants to judicial decision-making processes.
This idea is not as farfetched as it might seem; the advent of AI-based algorithmic risk assessments are already occurring in criminal sentencing to predict the risk an individual poses to society. Not all risk assessment algorithms are AI-based, but all AI involves algorithms. The primary difference between non-AI-based and AI-based algorithms is that AI-based algorithms are dynamic and have the power to evolve, “creat[ing] an additional set of policy and legal issues over and above those arising in non-AI contexts.”
But with this technology’s transformative power comes warranted concerns. Those who have worked with and studied these AI-based algorithms worry explicit and implicit racial biases are being engrained into the software which assesses criminal risk. It is paramount that the AI-based algorithms are not programed to lead to inequitable outcomes. In order to ensure due process for individuals, three principles are necessary: auditability of the data inputs, transparency as to the risk assessment software, and consistency in risk assessment outcomes.
Beyond criminal punishment risk assessments, however, I opine AI-based droids could have a place in many other court contexts. For example, in the civil realm, the droid could calculate liability fault percentages for damages in negligence lawsuits. It could serve as a real-time translator for parties who speak different languages, one of C-3PO’s strongest traits. It could even play a role in mediating dispute resolutions, one of C-3PO’s humorously not-so-strong traits.
To bring everything full circle, the COVID-19 quarantine has been a catalyst for global change in the legal profession. Forced into remote learning and working, law schools, firms, non-profits, courts are adapting and streamlining services for efficiency and accessibility.
I think that AI-based technology is heading in a really fascinating direction, particularly when it comes to holographic communications and AI-based droid decision-making. If taken to their most positive logical extreme, holograms could revolutionize the notion of courtrooms and increase accessibility to legal services, and court assistant droids could help make equitable legal risk/liability decisions and communicate across language barriers. I admit, maybe Star Wars is not the end-all-be-all inspiration for every technological advancement in our society, especially in the legal profession, but I don’t think it would hurt to take a page from George Lucas’ book.
 Thomas Daly, The Han Solo/C-3PO Scale, The Medium (July 11, 2017), https://medium.com/@thomascdaly/a-scale-for-assessing-a-product-managers-skill-set-9a7728a80fb6.
 Ralph Baxter, Richard Susskind – How Technology Will Change Justice, Legal Talk Network (Jan. 8, 2020), https://legaltalknetwork.com/podcasts/law-technology-now/2020/01/richard-susskind-how-technology-will-change-justice/.
 Thomas Officer, Law and Innovation Lab Lecture (Jan. 19, 2020); Molly French, Law and Innovation Lab Lecture (Jan. 21, 2020); Sam Flynn, Law and Innovation Lab Lecture (Jan. 26, 2020).
 Thomas Officer, Law and Innovation Lab Lecture (Jan. 19, 2020).
 Daly, supra note 1.
 Jake Frankenfield, Artificial Intelligence (AI), Investopedia (Jan. 6, 2021), https://www.investopedia.com/terms/a/artificial-intelligence-ai.asp.
 Baxter, supra note 2.
 Richard Susskind, Tomorrow’s Lawyer pages (date).
 Sharon Sturges, Law and Innovation Lab Lecture (Feb. 2, 2020).
 Edd Gent, 5 ‘Star Wars’ Technologies Now Moving from Make-Believe to Reality, NBC Universal (Dec. 13, 2017), https://www.nbcnews.com/mach/science/5-star-wars-technologies-now-moving-make-believe-reality-ncna828906.
 Daly, supra note 1.
 Jonathan Roberts, Star Wars: These Could Be the Droids We’re Looking For in Real Life, The Conversation (Dec. 17, 2015), https://theconversation.com/star-wars-these-could-be-the-droids-were-looking-for-in-real-life-52285.
 John Villasenor and Virginia Foggo, Artificial Intelligence, Due Process, and Criminal Sentencing, Mich. St. L. Rev. 295, 297 (2020).
 Id. at 296.
 Id. at 296–98.
 Id. at 297.
 Id. at 296.
February 12, 2021 - What can spreadsheets and credit cards tell us about the rise of LegalTech? by Thomas Johnson
What can spreadsheets and credit cards tell us about the rise of LegalTech?
by Thomas Johnson
When talking about the reluctance of the legal profession to accept LegalTech, it has always reminded me of a podcast I listened to in 2015 about spreadsheets. Episode 606 of NPR’s Planet Money podcast titled “Spreadsheets!” details the saga of the creation and explosion of electronic spreadsheets in industry and everyday life. So, what do spreadsheets have to do with LegalTech?
This discussion requires a brief recitation of the labors of the accounting profession before the electronic spreadsheet existed. Before the introduction of Visi-Calc (the predecessor of modern-day Microsoft Excel), accountants would use hard-copy spreadsheets to do their calculations. Paper spreadsheets created a clean system for accountants to look at the financials of a business in a methodical way. There was one major drawback to the paper spreadsheet, however.
Suppose the accountant, let’s call him Bill, generates the financial outlook for the client company, and the client wants to know the financial consequence of increasing every employee’s bonus by 2%. Client company had had a good year, and the employees deserved it. For Bill, this meant pulling out his large eraser and erasing all his work to restart the calculations. A full day of the crunching numbers later, and Bill had the client’s answer. This small tweak made Bill’s previous work obsolete and required him to completely restart. Why wasn’t there a better solution?
Dan Bricklin, sitting in an accounting course at Harvard Business School, thought of the idea that would solve Bill’s problem. Utilizing the Apple II computer and pong paddles, Dan created the first electronic spreadsheet. His system now allowed Bill to calculate the financial math assisted by the Apple II, and he could easily make changes to the numbers without having to erase all his work. Now that these changes that used to take a full-day could be made in seconds, client company now had a lot more “what-ifs” for Bill to analyze. The electronic spreadsheet greatly decreased the client’s billable time, so Client company asked more questions. But what would this mean for Bill and his co-workers? Was Bill positioned to lose his job to technology?
While the time it took Bill and his co-workers to calculate the financials for clients went down drastically, this opened them to being able to run different scenarios for the client. Accountants could now answer all the “what-ifs” and find the most efficient solution. Since 1980, the introduction of the electronic spreadsheet has allowed the accounting profession to flourish, adding around 600,000 accounting jobs in that time. The services were now cheaper and more efficient, so this led companies to want more information leading to greater job security for accountants. However, the introduction of new technology was not without consequence. Around 400,000 accounting clerks and bookkeepers were forced out of the accounting profession. Dan Bricklin realized that his invention would force people out of their jobs, and this was something he had to come to terms with.
How Does This Apply to LegalTech?
Like the accounting profession in the 80’s, lawyers today are fearful of losing their jobs to technology. This is not a new story, and this story will be relevant in many other industries in the future. However, the spreadsheet only created more opportunities for accountants, and I think that LegalTech will have the same effect on the legal profession. LegalTech will only lead to the opportunity for more. This means higher quality, greater customization, and more options.
By automating routine assignments, lawyers will have more time to create high-quality customized legal products and explore the “what-ifs” of the legal profession. Most lawyers will tell you that time is a major factor that affects the product they deliver to clients. Deadlines need to be met, and the quality of the legal work can suffer because of this. Through automation, lawyers will have more time to develop their legal solutions and go down the rabbit holes that they were once unable to follow.
The cost of developing an optimal legal solution will decrease, so consumers will buy more of it. Just like the accounting clients of the past, legal service consumers will now want to know what options are available. Instead of one lawyer working on a trial or acquisition, there could be a team of several lawyers developing different solutions for the client to choose from. Consumers will ask more questions and look for more options leading to a higher demand for legal professionals. This is a win for both lawyers and consumers, opening the door for more creativity, more quality, more customization, more opportunity.
While job loss is likely inevitable, LegalTech will only increase the demand for lawyers. The loss of jobs is something that LegalTech entrepreneurs will have to face. While I am sure they do not want anyone to lose their jobs, it is likely that paralegals and bookkeepers will be phased out of the legal profession. LegalTech will have to come to terms with this. However, the introduction of spreadsheets increased the total accounting workforce by about 200,000 jobs since 1980, and the rise of LegalTech will only increase the demand for lawyers. The job prospects for lawyers will only grow because of the opportunity for more, created by LegalTech.
Another story that I feel parallels the rise of LegalTech is one that I heard from Episode 730 of Harvard Business Review’s Ideacast podcast titled “Square’s Cofounder on Discovering – and Defending – Innovations.” In this podcast, Jim McKelvey, the co-founder of Square, details the pricing problem of credit card services and the creation of Square. What can Square tell us about LegalTech?
Jim McKelvey had a problem at his glass studio in St. Louis. No, there was no glass shortage, and the workshop was not burning down. Someone wanted to buy one of his hand-crafted pieces, but the patron was unable to buy it. The buyer only had American Express, and Jim’s studio only accepted Visa and Mastercard. This was money that Jim was losing. The buyer wanted his piece, and Jim wanted to sell him the piece. The breakdown was in the technology. Why was there no solution?
Jim found out that small businesses had to make about $10,000 a year to afford a credit card reader for all types of cards, and this was pricing out consumers. $10,000 was the end of the market for credit card services. It did not make sense for small and part-time businesses to accept credit cards. It was just too expensive. Jim wanted to drive that price down to make credit card services accessible to more small businesses. He was lucky to be friends with Jack Dorsey, co-founder of Twitter, and they set out to move the end of the market. Was this possible?
Jim and Jack were solving a totally new problem. They had no business model or technology to use as a template. This forced them to innovate several times and create an “innovation stack.” One solution led to two problems, so several different new and innovative solutions had to be discovered to make their solution work. The layering of these solutions led to a stack of about thirteen or fourteen innovations, creating a very complex system. Jim and Jack successfully created Square, a credit card reader that could be plugged into a phone. Something no one had ever heard of. Were they “disrupting” the credit card services market?
Jim would tell you no. While they created new technology and were able to add new consumers to the market, VISA, American Express, and MasterCard continued with their normal business. They were not changing the way that the behemoths of the credit card world were operating. They were simply moving the price point of using credit cards down. They were opening the market to new consumers that wanted the service but found credit cards cost prohibitive. The end of the market had now moved, and Jim and Jack were able to provide a service to people that wanted it but could not afford it.
How Does This Apply to LegalTech?
Jim McKelvey would not say that he “disrupted” the credit card services industry, and I don’t think that LegalTech will “disrupt” the legal profession. Square found a way to remove the cost barriers that consumers were faced with. While major legal service providers will likely continue in their usual business, LegalTech will remove cost barriers to legal services and drop the market end, enabling lawyers to provide services to a larger market.
The major law firms and powers of the legal profession will continue about their business. While they may develop new processes and use some of the solutions that LegalTech has to offer, the high-end of the legal profession will continue to have the same clients and charge the same fees. They do not have a major incentive to change the way they practice law. The rise of LegalTech will increase the quality and customization of their legal work, as discussed above, but if their clients are willing to pay these fees, big law will continue as it has. The major change will come for the small law firms and solo practitioners.
The use of LegalTech will enable smaller firms to offer legal services at a lower price. Through automation, bots, and other solutions, they will be able to lower the price of the end of the market, thereby allowing more consumers who want the service but cannot afford it to enter the market. Small and solo law firms spend a major portion of each day networking, bookkeeping, and finishing administrative tasks. When these processes can be automated, these smaller outfits can offer more services to more clients at a cheaper price. This is not a disruption of the legal profession. LegalTech is dropping the price and adding consumers to the market, just like square did for credit card services.
February 23, 2021 - Drinking from the Fire Hose: Innovation Could Help Control the Chaos for In-House Legal Departments by Robyn Speirn
Drinking from the Fire Hose: Innovation Could Help Control the Chaos for In-House Legal Departments
by Robyn Speirn
Setting the Scene
After a few (or more) years of working in a law firm, attorneys often seek to move in-house, partially as a way to get out of the pressure of billable hours, the late nights, and to gain some work-life balance. Interesting work, a predictable schedule, the chance to be a part of a strategic team are part of the extra bonuses that lure attorneys. Those things can happen, but it is not all green grass and roses.
In-house legal departments are cost centers for the business and just like many corporate departments, they are being asked to do their jobs with fewer resources. Whether it is fewer attorneys or fewer support staff, it takes its toll and eventually that attorney that came for the work-life balance is working late into the nights, weekends, and holidays. I have seen it happen in my own company’s legal department and at times, as contracts manager and now law clerk within the department, I find myself logging in at night or on the weekend to respond to the urgent questions or contract reviews because I know that the normal working hours are often filled with managing the fires that seem to come from all corners of the business.
In addition, rather than decrease with the pandemic our workloads have increased. Understanding the legal implications from new laws regarding employees, managing the legal aspects of business contracts that have been impacted by inability to perform work, negotiating real estate contracts for space no longer required and/or alternate spaces and the list goes on. Just last week a customer notified us that they would test any of our employees coming onsite to perform work for Covid-19. This brings in a whole range of privacy and employment law complications and of course the in-house department for the customer is managing the risks they have if a supplier employee were to bring Covid-19 into their facility.
Further complicating the environment is the negative connotation that exists in business in reference to legal. More than once I have been told that legal is the “department of no” which makes it very hard to partner with those businesspeople to do what is best for the business.
Exploring the Possibilities
Businesses often speak of innovating to survive. Coming up with new products, new methods, new services in order to provide its customers with what they need or want. They often look to innovate processes like quoting, customer management, financial systems, and marketing but somehow, legal is often left behind. Or, more likely, legal does not jump on (and often resists) the bandwagon. But jumping on the bandwagon can not only improve the entire workday for the legal team but it can help them be a better, integral, part of the larger business team.
As in-house counsel we may work with the business’s customers, but our customer is the business and as such, we would be well served to keep a mindset of customer focus. Our customer may take the shape then of our shareholders and senior managers, but it is also sales, finance, engineering, service, shipping, and others. In order to create a solution that both helps legal and serves the needs of the customer we must put ourselves in their shoes. What does our customer need and how can we best provide this?
The biggest challenge, at least in my company, is with sales. They do not view themselves as having any responsibility or capability in negotiating the legal contract. Their job is to sell. From legal’s point of view, the sale doesn’t end when the handshake happens (pre-Covid of course!) but when the contract is signed and performance begins. Other challenges that the sales group faces are being put in the place of having difficult conversations with their customers, not enough time, lack of understanding of the why behind the legal issues, delays in the overall sales cycle. Having started in sales, I understand some of those challenges, especially the ones related to not understanding the legal issues. Terms like “best efforts” and “time is of the essence” sound so innocuous but can have significant consequences.
Another department that can benefit significantly from rigorous legal processes is finance. Perhaps their issues are more detailed. Invoicing and payment terms and incoterms affecting costs and revenue recognition are two of the most often seen. These may seem minor but small differences in margin and costs across a large number of contracts can make a big difference in the bottom line. Cash is king as they say so bringing in the cash earlier makes the finance group happier.
Using innovation to solve the problems.
So how do we address these problems? It is clear that whatever solutions we find must be easy to use, take minimal time, and return an overall benefit to user as well as the in-house legal department. Most importantly, our customer must be willing to adopt those processes and tools.
Over the last five years my boss and I have worked to adopt tools that make our workday a little less crazy. The first of those tools was rolled out a few years ago and has largely been adopted across the organization without pushback. There have been challenges but that is more the result of stubborn people than the tools provided. Those who use it well generally find it easy, certainly easier than the prior solution of a Word form to be completed that the user needed to keep track of and ensure they were using the right version.
I think the relative ease of that first implementation led me to skip key steps in a more recent implementation resulting in protracted adoption that is still resisted to this day. About a year ago I designed and implemented a new process, two of them actually, to handle non-disclosure agreement requests. I planned, designed, prototyped, tested, and implemented a process to submit the requests and related documents to the legal department. It works pretty well when people use it. Therein lies the problem. It has been a year since it was first introduced the process to the business, but we continue to have to re-direct requests to the process. In the design phase I did not seek out input from the users and have not (yet) directly sought feedback on the tool. Further, it is a lone tool in a sea processes that gets lost in the daily chaos when the need to use it arises. As I delve more into design thinking, I realize that I may have been able to head off some of this if the users had been consulted earlier. I might also have prioritized other future tools that help to quell the confusion.
That future tool I mentioned previously was launched last month in the form of a legal intranet page with links to the current tools and will be the holding place for all future tools. Instead of users submitting most types of legal requests via email, they will proceed to the intranet page to find the right tool for their need. This allows the user to have a one stop resource and a suite of tools which will guide them into providing all of the basic information we need to get address a matter and stops the back and forth of emails to gather the information. It also means they do not have to remember what information they should be providing, a win for all.
The possibilities for further innovation are only limited by our own creativity and willingness to look outside the traditional legal services model. We continue to envision new tools to reduce the chaos tools for other repeated requests are either in process or being considered. Based on the lessons from the past and on the design thinking we are learning about and putting to use in our class, the process to develop and implement the ideas will become a more rigorous and thought out process in and of itself which will likely result in far more innovative and successful tools.
February 28, 2021 - How Simplified Drafting, Focus on Relationships, and Technology are Improving and Modernizing Contracts by Charles Wood
How Simplified Drafting, Focus on Relationships, and Technology are Improving and Modernizing Contracts
by Charles Wood
Contract drafting has long been a key aspect of the legal industry. Any company entering a commercial agreement wants to make sure they put into writing the terms of the deal as a way to make sure they are getting what they agreed to and protecting themselves if the other party is not holding up their end of the bargain. The larger and more complicated the agreement is, the more vulnerable a party becomes to a lapse in performance or a costly mistake. Imagine an agreement spanning several years and multiple millions of dollars. The interested parties would want every part of the contract to be airtight considering the considerable commitments involved and the increased risk the contract may not provide for an unforeseen possibility. Even simple agreements can be vastly important to a small organization and extremely costly if they fail or are never created in the first place because of a financial barrier to legal services.
Failing to draft and manage legal documents with accuracy can become expensive. The International Association for Contract and Commercial Management determined that organizations lose 9.2% of revenue each year due to poor contract management and oversight.
The contract drafting process is costly in part because of the drawn-out back and forth between legal representatives and complicated language that often comprises the agreement. The typical approach toward contracts, especially those between companies, rely on the idea that they are put in place as protection against the other party. The concern is that one party may find ways around the language to maximize their benefit at the expense of the other. This is described as the hold-up problem or the fear that one party will be held up by the other. Agreements are created with an adversarial mindset anticipating friction. As a result, the purposes of the contract and cooperation between the parties can become hindered by their interest in protecting themselves. Shading is retaliatory behavior in which one party stops cooperating, ceases to be proactive, or makes countermoves when it is not getting the outcome it expected from the deal and feels the other party is at fault. The complicated language also makes it difficult for the people actually executing the terms of the agreement – usually people without legal training – to comprehend or interpret the language. The contract exists more as a safeguard and less as a guide.
In addition to conventional contract language, the cost of contract drafting is exacerbated by the law firm pricing model. For many years, the best way for companies to make sure their contracts were created, implemented, and monitored properly was to hire law firms to oversee that work. However, this of course comes with the expenses associated with a traditional law firm. Law firms may charge companies thousands of dollars in fees to create agreements with any degree of complexity above standard forms. Attorneys scrutinize the language for every possible contingency, working with their clients to learn the relevant information and objectives of the agreement they are creating. The idea is that they are applying their expert, specialized knowledge to the specific case to create a well-functioning agreement. Done at an hourly rate, the cost can quickly add up as the attorney corresponds with the client to incorporate the nuances of the deal into a general contract framework and evaluate the agreement in its entirety.
To make contracts more collaborative, user friendly, and cost-efficient, several innovations in their creation and management have emerged in the legal field.
First, there is a movement advocating for simplification and cooperation in contracts using common goals, plain language, and visuals to shift the focus from convoluted, adversarial language to clearly articulated model for what the agreement should look like in practice.
In a Harvard Business Review article titled A New Approach to Contracts, David Frydlinger, Oliver Hart, and Kate Vitasek argue for formal relational contracts that specify mutual goals and establish governance structures to keep party expectations and interests aligned over the long term. The new approach calls for the parties to have a vested interest in each other’s success by creating contracts with relationship-building elements like shared vision and guiding principles.
The new approach begins by laying the foundation to establish a partnership mentality. This involves transparency as to each party’s high-level aspirations, specific goals, and concerns. The focus is on building relationships at multiple levels as opposed to creating a contract. Then, the parties co-create a shared vision and objectives. This can be accomplished by identifying high level outcomes, immediate goals, and measurable objectives. Next, the parties adopt guiding principles. In this step, the parties commit to reciprocity, autonomy, honesty, loyalty, equity, and integrity to create a framework for avoiding misalignments or tit-for-tat moves when unforeseen circumstances occur after the contract has been signed. By making these principles terms of the contract, the parties create repercussions if any of the ideals are breached since courts may interpret and apply the language in the event of a breach. Then, the parties align expectations and interests. Here, the parties determine the terms of the deal such as pricing, responsibilities, and metrics within the established guiding principles. Finally, the parties stay aligned by going beyond the terms of the agreement and establishing governance mechanisms formally embedded in the contract.
Another method of making contracts more in concert with the relationships they represent is by implementing graphics and language easily comprehended by the people making the agreements. Paul Branch and Stefania Passera at the International Association for Contract and Commercial Management, an organization devoted to improving standards, argue in favor of using visual contracts regardless of the agreement’s complexity. Their idea is that visualization can be just as important as language simplification. By incorporating graphics into a contract, the document can go beyond a document dictating terms and liabilities and become an actively used reference for the agreement and bring clarity and certainty to the relationship. The contract acts as an instruction manual that can be continually used by the parties.
Shell’s marine and aviation business has started incorporating this model into its many contracts created each year. In 2016, its legal department realized that complicated contracts can prevent harmony and their negotiation process can erode relationships cultivated by account managers. The legal department started redrafting contracts using as much plain English as possible and cut word counts by almost 40%. Shell’s marine business also implemented visual contracts. The process involved several phases including benchmarking, engagement with stakeholders, interviews with those affected by contract causes, amendments, simplification, visualizations, and sign-off. Shell restructured their agreements in a way consistent with the new approach described in the Harvard Business Review, where people felt that they were being treated fairly and they could agree on clearly communicated common goals.
Second, technology is changing the legal industry and the way legal services are provided. Thomson Reuters’ 2019 Report on the Sate of the Legal Market notes that services accounting for about 15% of the legal market by revenues are ancillary support services that can easily be performed by non-law firm providers. This means that technology is standardizing and automating typically labor-intensive responsibilities of lawyers.
Technology firms and tools are creating ways to streamline legal services like contract drafting. LexKnights is a firm with a platform that gives businesses intelligent contract generators, which enable them to create legally binding agreements and execute them with an electronic signature, cutting down on the drafting process and allowing the agreement to be entered within minutes and at a much lower cost than a traditional law firm. The platform is able to customize each agreement by allowing the parties to enter information about their company and the agreement directly using plain English inputs. This ensures the correct terms are included in the agreement without the time-intensive and expensive information gathering by a licensed attorney. Law firms are able to provide their expertise when creating agreements, but oftentimes they are third parties without intimate knowledge of the client or agreement. Submitting this information directly into the platform bypasses this step in the conventional contract creation process.
Contract management is another area where legal technology is simplifying the process and reducing cost. Signing a contract is not the end of its use. The contract management process oversees deliverables, deadlines, terms, and conditions while ensuring satisfaction. Contract management platforms allow attorneys and non-legal professionals alike to automate the overseeing of contract implementation while being proactive about possible issues rather than reactive after they arise. According to the Association of Corporate Counsel, contract management and e-signature are two of the top three tools used by corporate legal departments, and the trend is likely to continue because of its accuracy and contribution to productivity.
Programmers at Deloitte legal built dTrax, an artificial intelligence-enabled tool that stores and manages contract negotiation and creation. The tool includes customizable dashboards that can identify contract obligations and revenue leakage. Deloitte’s tax team reports that dTrax was able to save 60% in legal costs. In addition to applying the technology to its own legal agreements, Deloitte has begun offering dTrax to clients as a product or managed service.
Innovation in legal services, both in methodology and utilization of technology, allows attorneys and clients to make the painstaking contracting process more streamlined and efficient while creating better processes for following and managing the agreement. The perception may be that well-established, lucrative professions like the legal industry will be reluctant to adopt practices and tools that have the potential to eat into their billings. However, innovation and progress are inevitable, and the allure of productivity and competition will overcome resistance to change. It was not long ago that legal research was conducted by pouring though heavy, paper volumes of statues and case law. Now, it is difficult to image looking up that information without the convenience and accuracy of online legal research platforms. Changes to contract drafting and management are exciting transformations in the way legal services are provided and will prove to be useful instruments in creating a better product in the legal field.
March 8, 2021 - How Artificial Intelligence in Litigation is Changing the Game by Kendrick Davis
How Artificial Intelligence in Litigation is Changing the Game
by Kendrick Davis
Artificial intelligence (AI) is rapidly changing the legal game and landscape for several lawyers and firms. In particular, litigation is changing dramatically with the enhanced use of technology and AI. It is helping practitioners with their litigation strategies, saving lawyers time and client’s money, and is possibly changing the way lawyers will be trained in order to keep up with the technological advances.
AI will help determine the outcomes of cases from the get-go. It is easier for a lawyer to see a case that has a poor chance of prevailing and one that is almost a slam dunk when it is presented to them. However, what happens with those cases that are in the middle and can go either way? Is it 40% likely to prevail? What about 55%? This is what AI can help practitioners solve in the very beginning stages, which can ultimately alter the entire strategy and approach taken to a case.
Once an attorney has this concrete probability, AI can assist further by taking a deeper dive for the attorney to explain the analytics behind it. For example, if AI gives a lawyer a 40% probability of winning a case, AI can dig deeper to determine why that is. Does it depend on the jurisdiction perhaps? Maybe the prevailing cases are bench trials rather than jury trials. This could heavily alter the approach a lawyer would want to take earlier on. There could be a common theme among the winning and losing cases that AI can detect. Ultimately, this would help from a strategic standpoint. Not only would this beneficial for the practitioner, but this is also incredibly useful for the client.
In regard to strategy, it will help determine what routes are more viable and which are not so promising. Maybe a client is wanting to file a motion for summary judgement and the practitioner is unsure of this. AI can input the facts, case law, jurisdiction, and judge to give a concrete statistic as to whether this would be a viable option or not.
Furthermore, this can also give a practitioner and client a starting point in mediations and negotiations. Having statistics and analytics that support the client’s position can pressure the other side and ultimately help give the client the best possible outcome.
Moreover, AI helps draft documents fast and more efficiently. Document automation is not new, but it’s use has been increasing over time, so pleadings and motions are becoming automatic now.
It is no secret that lawyers work long hours. We’re in a field that is client focused, and we work for the public. This comes with late nights, long hours of legal research, and writing up motions, complaints, memoranda, and briefs. However, the use of this expanding technology will help a lawyer use their time more efficiently and productively.
AI is already being useful in assisting the lawyer with litigation strategy, but it can also assist in legal research. Beyond the standard research platforms such as Westlaw and LexisNexis, AI is ramping up to help take a deeper dive into the law and takeaways of opinions. Companies like Casetext are being used so lawyers are spending less time doing surface level research. This AI instead gives lawyers the valuable information of understanding case law and deciphering the opinions written. Furthermore, the AI can connect the dots between precedent and issues faster than a lawyer can.
With the use of this expanding technology, lawyers will not only save themselves the long hours, but they will further ease future client’s concerns and their wallets. Every hour spent reading, researching, and planning can be cut down with the use of AI. In turn, this cuts down the overall hours that a client is billed for. Clients will spend less money on a more efficient process. Moreover, this will help build the rapport between clients and attorneys. Job satisfaction increases, clients are not worried if they will rack up a huge bill, and this will help ease the tension client’s feel when they talk to their attorneys.
New Training for Practitioners?
With the current wide-spread use of this AI technology in litigation, it is only going to increase across the legal landscape. Clients will seek out those who use this information in order to receive concrete data. Does this in turn mean that lawyers will need to pivot their current approach? There is also the possibility that up-and-coming lawyers will be taught and trained completely differently than those currently practicing.
An attorney in this new world where technology and law are combined needs the proper tools and background to utilize the resources. An attorney needs to be able to manipulate the data entered, change various points, introduce new motions and facts into the AI that is used in order to determine the various outcomes. This means that we need to take steps to improve our access and understanding of how technology works.
Moreover, while data is becoming key, a user of the analytics must tread carefully to not misinterpret the data. This could be a possible trap that lawyers fall into. If one is unable to properly determine what the analytics entail, this could be entirely detrimental to the client. Training in this area might become a vital part in the legal field in the not-so-far away future for law student.
Furthermore, lawyers might end up trying to take shortcuts by using the data. While this will help fast-track decisions, improve accuracy, and assist the process overall, a lawyer without the proper training can take these at face value without considering other possibilities that might arise later on – such as litigating a niche area of law that does not have much case law surrounding it.
Why We Need to Embrace AI and Technology:
While AI is improving the legal system, there are valid concerns presented by those in this industry and, in particular, litigators. The use of AI does assist in several ways, but this does not go to say that AI will completely overtake the practice.
AI can give the tools and assistance to lawyers in several aspects throughout litigation. AI cannot counsel a client in a way that a practitioner can with the use of empathy and fully understand what a client wants from the process. AI and document automation can help create a motion and brief, but it cannot write a better brief and cannot fully express the goals being sought. It will not be able to advocate for the client as well as the practitioner is able to. A machine cannot articulate a client’s story as vividly and persuasively as an attorney is able to. AI cannot think on its feet in a trial and use personality to convince a judge or juror why a certain side should prevail are right.
The goal of AI is not to overtake the legal and vital role of lawyers, but rather to help everyone in this field achieve a new level in their practice, especially in litigation. The goal is to be better, faster, and more productive – not to replace attorneys.
April 15, 2021 - Legal Tech Innovation: To Fear or to Embrace? by Micah Hardy
Legal Tech Innovation: To Fear or to Embrace?
by Micah Hardy
What is legal tech innovation?
Nowadays, every law student and the majority of practicing lawyers have come into contact with legal tech and likely use it on a daily basis. Think of LexisNexis, Westlaw, or even e-filing. These are technology-based programs for the legal industry. Legal tech is simply the technology that is intended for use in any part of the legal field, be it a complex case evaluator that utilizes artificial intelligence or a platform that tracks billable hours. Technology is being incorporated into nearly every aspect of our lives and the legal sector is no different.
Innovation is constantly at play in legal tech. It is the process of creating something that did not exist before. This does not have to be an entirely new idea; in reality it usually builds off of and improves (hopefully) something that came before it. For example, legal research via reading physical books has existed for centuries. However, the methods of conducting legal research are constantly evolving. The creators of online legal research tools undertook the challenge of transforming the way in which research is done. As legal research has shifted to an online base, the initial companies have further innovated their own products while competitors have worked to innovate new products that “fill the gap.”
Both LexisNexis and Westlaw have comprehensive and highly complex legal research capabilities. They enable users to find a variety of different judicial opinions, statutes, journal articles and more that a lawyer may need. However, they are rather limited with some state court dockets and filings with courts that are not opinions but still pieces of cases. Then came Docket Alarm. This company realized that the big-name legal research platforms had left some gaps to fill. Given that the majority of litigation occurs in state courts, the founder of Docket Alarm created a platform that enables users to research and track state court dockets, as well as their underlying documents. A user can also find a vast amount of information such as expert witnesses filed in federal court cases that other research platforms have yet to address. Docket Alarm has helped to provide lawyers with a more holistic view of legal problems, as well as the ability to more accurately determine how a case may be decided by a particular judge. It has not negated the usefulness of the big-name companies, rather, it has provided lawyers with the ability to access even more information that may be relevant when reviewing a case or preparing for trial. This is innovation at its finest.
Should legal tech innovation be feared or embraced?
Innovation in the legal industry is a reality whether we like it or not. That said, this is not unique to the area of law. It is human nature to strive to improve; to figure out how to increase efficiency, accuracy, performance, and more. Some industries innovate and evolve faster than others for a variety of reasons. Many say that the legal sector has been slower to evolve, which may be true. Regardless, one cannot deny that the legal sector has evolved drastically over the years as a result of the incorporation and innovation of technology-based solutions.
The fear of innovation seems like it would be better suited if it were called the fear of automation. That is, there is a fear that technology is going to begin to decrease the need for lawyers. This fear may seem logical as many legal tech products are designed to increase efficiency, which leads to one lawyer being able to handle a larger workload than before. Legal research is vastly more automated than it was ten years ago, saving countless hours to dedicate to other work. However, automation is not an evil if you think of where a lawyer’s interests should truly rest: the client.
Lawyers exist to work for their clients. It is our job to help clients through a variety of legal situations and if there are things we can do to better serve our clients, then that is what we should do. Most – if not all – legal tech innovations impact clients. For example, the countless hours that are saved thanks to the innovations in legal research trickles down to clients in the form of cheaper legal bills. That may lead to less money for the firm from one client for one situation, but also creates the opportunity to effectively serve more clients, or to help that one client with more situations.
By focusing our minds on our clients, legal tech innovation is not something to fear, rather, it is something to embrace. Ignoring innovations in legal tech will inevitably cause a lawyer to become less effective and efficient over time in comparison to those that embrace it. Choosing to embrace innovation rather than fear it will help give us reason not to fear the automation that comes with innovation. There is no shortage of legal matters in the United States that require a lawyer’s attention. Those who embrace and learn how to utilize legal technologies with the well-being of their clients in mind will certainly have nothing to fear.
Legal tech innovation enables lawyers to better serve their clients. This should be the focus and goal of every lawyer and ultimately decrease any fear of innovation. Innovation is inevitable and we should not fear that which we cannot control. Rather, we should ask ourselves how we can make the best of the situation. In this instance, we can make the best of innovation by embracing it and utilizing it to be the most efficient, effective, and client focused lawyers possible. There is no shortage of legal issues for lawyers to address–the automation that comes along with innovation simply enables us to tackle more of those issues than before.
May 10, 2021 - Discovery: Then and Now by Stephen Herrera
Discovery: Then and Now
by Stephen Herrera
As of now, there are over 100 large e-discovery vendors operating in the United States alone. While attorneys and vendors have always had a tenuous relationship, attorneys, and law firms broadly, are out of their depth when it comes to the problem of how to manage vast amounts of data being sent in from clients at an inconsistent pace.
How did we get here? Before computers and mobile phones, the discovery process was (largely) limited to paper. Anything not on paper was provided by a verbal testimony, or, at most, reference to an object or thing. Because modern technology contains so many repositories of information, as well as types of information, the legal field had to adapt to the growing problem of data expansion.
Take your email client for example. When you look at your mailboxes as a whole, your system will tell you it is X number of gigabytes in size. However, if you are prosecuted or sued for defrauding by way of emails requesting credit card information for a fake service, your mailbox will be subject to e-discovery. A vendor, or even some advanced firms, will take your mailbox through processing. In this process, your mailbox will expand to include the metadata, contacts, and other information that helps your machine run. All of this information, depending on the scope of your case, is discoverable. Because so much more information is held on computers than is held on paper files, we now can more easily manage the information held for discovery. While data management has become easier, we are now faced with the problem of deciding what information needs to be reviewed.
The use of “culling” technology has made this process far easier. Rather than having first year attorneys review every single email you have sent or received for the last seven years, cull technology can batch data based on its type or content. Reviewers can go into a workspace and review a handful of files in the system. Based on how those files are “coded” (where the attorney could mark them as responsive or as referencing the name of the plaintiff), these
systems can now intelligently determine which documents should be reviewed by an attorney or be moved into storage. While useful, these innovations create a series of problems.
How Can Law Firms Manage This?
Answer one is to in-source the entire e-discovery process. While this sounds easy, and could even lead to being able to outsource this service to other firms for revenue, there are major complications with this strategy.
For one, lawyers are notoriously tech-adverse. While the industry is slowly beginning to catch onto the irreversible pull of technology on the marketplace, the vast majority of law firms are still struggling with catching onto tech applications for timekeeping. Until a massive shift occurs across the legal market (pushed by groups such as the Law and Innovation Lab), it is too difficult for all but a handful of firms, domestic or international, to manage both the practice of law and the process of e-discovery.
Secondly, attorneys are largely good at critical thinking, client service, and communication (among other things). Resorting to insourcing e-discovery services relies on the assumption that lawyers can effectively manage an EDRM (Electronic Discovery Reference Model) workflow. While bringing on experts can help clear the massive knowledge gap, firms in this position have now made themselves responsible for an extra business vertical that is difficult to manage. In an age where law firms are not just assigning e-discovery to vendors, but are also outsourcing human resources, accounting, and even client conflict management, it is unlikely that law firms will be able to reverse the trend for a process so core to their business.
Third, it is harder to blame e-discovery hold-ups on an internal process than it is to blame a vendor. The e-discovery process, all the way from initial collection of information to production, can be unpredictable. Further, the rate at which clients provide the information to a firm or vendor can ebb and flow based on the most random of whims. Because of this, the rate
at which data is taken in, reviewed, and produced can be difficult to explain to an end client who wants the information back three days before they provided it. Vendors allow for a stop-gap between firms and clients. Rather than having to tell ACDC Corp. that the vendor is taking a while, and that they will try and reduce their billing amount, firms now have to tell their client that the firm’s internal workings simply can’t meet demand.
Answer two to the larger problem is to work with a vendor. Vendors are specialized in the e-discovery process, can provide a buffer between clients and law firms, and are optimized to run a tech-based service. All of the things that 99% of law firms lack are met through vendors.
How Can Law Firms Manage Vendor Encroachment?
Forget worrying about revenue streams that will never be ours. Legal technology is not the threat everyone claims it to be, so long as it stays in the technology space. How do we determine whether a LPO (legal process outsourcer) service is encroaching too far into the practice of law? We have a simple litmus test for future use that time will not change. If the process could have been done 100 years ago by an attorney, then attorneys should continue to manage that process. While contract analysis and AI-assisted legal research may empower attorneys to advise clients, (I believe) no machine will ever be able to perform the two key functions of an attorney.
First, machines will never be able to synthesize legal research and apply it to the context of a case in the way that a human can. While a machine could eventually be programmed to gather the relevant hits in legal research and compile that against machine language learning to analyze a contract, the information it provides will never capture the intuitive decision-making of a real person. Only a human attorney can take in a client’s needs and assess willingness to negotiate, fear of the process, and understanding of their situation.
Second, machines cannot empathize with individuals. Some clients need to be comforted as they proceed through a painful divorce; conversely, some clients want the zealous advocacy of an attorney that sees the righteousness of their case. While a machine could certainly be programmed to say comforting things, only humans can do more than analyze expressions, tone, and volume. Our ability to connect makes us the attorneys that programs will never be. By focusing on the core functions that we provide as attorneys, tech-based legal offerings should only ever be seen as tools to help us deliver a better product for our clients. For us as attorneys, the end product we provide is guidance through some of the most important times in other people’s lives.
August 23, 2021 - How States like Utah and Arizona are Closing the Justice Gapy by Tara Leesar
How States like Utah and Arizona are Closing the Justice Gap
by Tara Lessar
Understanding the Justice Gap:
Globally, approximately 5 billion people have unmet justice needs. In the United States, the Sixth Amendment guarantees the right to counsel for all criminal prosecutions. However, no such right to effective legal assistance is afforded to individuals in civil cases. As a result, effective legal assistance remains out of reach for the majority of Americans.
The justice gap, or the “gap between legal needs and services available,” has the greatest implications for individuals living in poverty.A recent study found that approximately 80 percent of low-income Americans cannot afford legal assistance. This same study found that the middle class is also struggling, with 40 to 60 percent of their legal needs unmet. Without legal assistance, individuals struggle with navigating the complexity of court rules and procedures, as well as with filing court forms. Beyond navigating court procedures, individuals struggle with the substantive law-related issues of their case, which “can lead to the loss of a home, children, job, income, and liberty.”
The COVID-19 pandemic, as well as nationwide uprisings against injustice, have highlighted the weaknesses in our current legal and judicial systems. The pandemic, in particular, raised concerns about the accessibility of the current civil process, especially among pro se litigants. As courts continue to shift through the backlog of cases, it is abundantly clear that there is a need for reforms to make the legal system more affordable and accessible. This post will discuss the limitations of legal aid programs, as well as the innovative approaches that states like Utah and Arizona are taking to mitigate the justice gap.
Why Civil Legal Aid is Insufficient to Bridge the Justice Gap:
The Legal Services Corporation (LSC) is the largest source of funding for civil legal aid for low-income Americans. LSC funds legal aid programs in every state, however, these programs are insufficient to bridge the justice gap because only a small percentage of Americans qualify for legal aid services. To be eligible for legal aid, an individual in 2015 had to make less than $14,713 per year, and a family of four less than $30,3143 per year. As a result of legal aid’s limited resources, low-income Americans received little or no legal help for an estimated 1.1 million eligible legal problems in 2017.
Approximately half of all eligible people who approach an LSC-funded legal aid organization for assistance do not receive help due to insufficient resources. Despite the fact that the number of Americans eligible for legal aid services has increased by 50 percent since 1981, LSC’s funding has decreased by 300 percent during that same time. As a result, 80 percent of the legal needs of Americans living in poverty go unmet.
In response to the justice gap, state task forces and bar associations across the U.S. “have been exploring how the regulation of legal services could be impeding access to justice for Americans, who are increasingly forgoing legal representation or representing themselves in court.” In 2020, the supreme courts of Utah and Arizona approved reforms to attorney regulations aimed at improving the justice gap by allowing non-traditional legal services and providers into the legal market.
Utah’s Regulatory Reforms:
In 2020, the Utah Supreme Court unanimously approved a slate of regulatory reform measures to address the access to justice issue. The Utah Supreme Court established the Office of Legal Services Information, which administers a legal regulatory sandbox (the “Sandbox”) aimed at “overseeing and regulating nontraditional legal services providers and the delivery of nontraditional legal services.”
With the Sandbox, lawyers and non-traditional legal providers have the opportunity to test innovative approaches to delivering legal services with the goal of improving the public’s access to justice. The Utah Supreme Court’s regulatory objective with the Sandbox is to “ensure consumers have access to a well-developed, high-quality, innovative, affordable, and competitive market for legal services.” The pilot program for the Sandbox removes restrictions on lawyers paying for referrals and restrictions on nonlawyer investment in law firms.
Originally established as a two-year pilot program, the Utah Supreme Court voted unanimously in 2021 to extend the initial term of the Sandbox to seven years in order to measure the impact of this regulatory reform. For a legal service to be authorized by the Sandbox, there must be data provided that shows there is no evidence of significant consumer harm. To date, the Office of Legal Services has not observed any evidence of significant consumer harm with the services currently provided by the Sandbox. The Office of Legal Services Information has received 47 applications to the Sandbox for non-traditional legal services ranging from family law to end of life planning and small business needs.
Another regulatory reform that the Utah Supreme Court has approved is the use of licensed paralegal professionals (LPP). Rule 14-802 of the Rules Governing the Utah State Bar creates an exception to the authorization to practice law for an LPP. Specifically, it dictates that LPPs can assist individuals in a limited number of practice areas, such as debt collection matters, forcible entry and detainer, and specific family law matters, including divorce, civil stalking, and child custody and support issues.
Rule 14-802 also stipulates permissible actions for LPPs. Under this rule, an LPP may not appear in court on behalf of a client and may not charge contingency fees. However, an LPP may use the courts’ e-filing systems and assist a client with completing court forms. Moreover, LPPs will be allowed to advocate for clients in a mediated negotiation and complete and serve a written settlement agreement. LPPs will not be allowed to represent corporations and they will be required to provide pro bono services to their respective communities.
In Utah, the specific requirements for becoming an LPP are established by the Rules Governing Licensed Paralegal Practitioners (“RGLPP”). In addition to a degree requirement, an LPP applicant is required to complete 1,500 hours of substantive legal experience within three years prior to their application. Lastly, an LPP must pass a professional ethics examination and a Licensed Paralegal Practitioner Examination for each area of law in which they intend to practice.
There is an undeniable need for affordable legal representation throughout the U.S. In a recent survey by the Utah Bar Association, pro-se litigants have expressed an interest in being provided with some legal support, which an LPP could provide. Lastly, a survey conducted by the Utah Supreme Court’s LPP Steering Committee found that over 200 paralegals expressed an interest in becoming licensed as an LPP and either establishing an LPP practice within a firm, or starting an independent LPP firm. Given the high percentage of self-represented litigants, regulated LPPs who provide lower fees can help narrow the justice gap, which is why Arizona is also implementing a similar program.
Arizona’s Regulatory Reforms
The Arizona Supreme Court unanimously approved a program to allow practitioners who are not attorneys to provide legal advice in limited circumstances, similar to the reform that the Utah Supreme Court unanimously passed. In Arizona, licensing paraprofessionals (LPs) will be allowed to go to court with their clients and represent clients in the fields of administrative law, family law, debt collection, and landlord-tenant disputes.
Although states like Arizona and Utah established a licensed paraprofessional model to provide greater access to legal services, not all states agree that this model is the best approach. For example, in 2017, Montana rejected licensed paraprofessional model, arguing that the fees that licensed practitioners would have to charge to maintain their practice would deter many low-income individuals from seeking their legal services.
Unlike in Utah, the Arizona Supreme Court did not establish a legal regulatory sandbox for testing innovative legal approaches to mitigate the justice gap. However, the Arizona Supreme Court’s decision to eliminate rules prohibiting fee sharing and nonlawyer investment in law firms will give rise to alternative business structures. Specifically, it will allow law firms to form multidisciplinary practices with other professions to increase access to justice.
The American Bar Association’s Center for Innovation is tracking regulatory reforms made by each jurisdiction in the United States. Currently, jurisdictions considering the implementation of various regulatory reforms to improve the access to justice include California, Connecticut, New Mexico, Florida, and Washington, D.C. As more time passes, states like Utah and Arizona will have data regarding the effects of their regulatory reforms, including the Sandbox and licensed paraprofessional models. This data will hopefully motivate more states to implement attorney regulatory reform measures aimed at improving the justice gap.
 World Justice Institute. WORLD JUSTICE PROJECT, WORLD JUSTICE PROJECT RULE OF LAW INDEX 2020 14, https://worldjusticeproject.org/sites/default/files/documents/WJPROLI-2020-Online_0.pdf.
 U.S. Const. amend. VI.
 Rebecca Buckwalter-Poza, Making Justice Equal, The Center for American Progress, Dec. 8, 2016, https://www.americanprogress.org/issues/criminal-justice/reports/2016/12/08/294479/making-justice-equal/.
 Legal Services Corporation, “The Unmet Need for Legal Aid,” available at http://www.lsc.gov/what-legal-aid/unmet-need-legal-aid (last accessed May 2020).
 Leonard Wills, Access to Justice: Mitigating the Justice Gap, The American Bar Association, https://www.americanbar.org/groups/litigation/committees/minority-trial-lawyer/practice/2017/access-to-justice-mitigating-justice-gap/.
 Buckwalter-Pozam, supra note 3.
 Buckwalter-Pozam, supra note 3.
 Buckwalter-Pozam, supra note 3.
 Legal Services Corporation, The Justice Gap: Measuring the Unmet Civil Legal Needs of Low-Income Americans, Jun. 2017, available at: https://www.lsc.gov/sites/default/files/images/TheJusticeGap-ExecutiveSummary.pdf.
 Memorandum from James J. Sandman, president of the Legal Services Corporation, to Finance Committee, “Management’s Recommendation for LSC’s FY 2017 Budget Request,” July 13, 2015, available at http://www.lsc.gov/sites/default/files/LSC/about/budget/LSCFY17MgmtRecom.pdf.
 Rachel M. Zahorsky, Everything on the Table: LSC Looks to ABA to Help Meet Legal Needs of the Poor, The American Bar Association, Jan. 1, 2012, https://www.abajournal.com/magazine/article/everything_on_the_table_lsc_looks_to_aba_to_help_meet_legal_needs.
 Laura Bagby, Two States Vote to Allow Nonlawyer Ownership or Investment in Law Firms, 2Cvility, Sep. 3, 2020, https://www.2civility.org/two-states-vote-to-allow-nonlawyer-ownership-or-investment-in-law-firms/
 See Utah Supreme Court Standing Order No. 15 (effective Aug. 14, 2020). https://www.utcourts.gov/utc/rules-approved/wp-content/uploads/sites/4/2020/08/FINAL-Utah-Supreme-Court-Standing-Order-No.-15.pdf
 See Rule 15-703. Qualifications for Licensure as a Licensed Paralegal Practitioner (effective Dec. 7, 2020), https://www.utcourts.gov/resources/rules/ucja/view.html?rule=ch15/URGLPP%2015-0703.html.
 Bagby, supra note 15.
 Bagby, supra note 15.
August 30, 2021 - Competing at the Iron Tech International by Jim Keizer & Lauren Hudson
Competing at the Iron Tech International
by Jim Keizer & Lauren Hudson
I feel honored to write the final post our inaugural class’ Law and Innovation Lab. My partner, Lauren Hudson, and I won the first-ever DU competition of the Law and Innovation Lab and represented the University of Denver Strum College of Law, for the first time, at the Iron Tech international competition hosted by a major ivy-league law school.
I have made at least six drafts of this post and have been thwarted by a loss of words needed to adequately convey my feelings about this experience.
Objectively, this lab has represented a ton of “Oh Crap” moments about how many average US citizens are struggling to self-represent, and a comparable amount “Oh Crap” moments illustrating the rather archaic institutional and technological realities that have kept access to justice stuck somewhere between the eras of “Saved By the Bell,” and “CSPAN” on basic cable (yes, I said cable..it was a thing 20 years ago lol.).
If you are brave enough to have survived the first semester of law school, you are definitely strong enough to change the world. I admit that I was one of many first your law students crying in my car and eating lunch along on the most difficult days. But I, like you, refused to quit.
If you relate and know yourself to have a big heart, a ton of creativity and are struggling to find how to use these talents, you are in good company. This lab may be for you.
It is pretty clear to anyone with a year or more of law school experience that the practice of law very much values the analytical, left-brain processes to produce meticulous legislation and parse clear court precedent in most areas. However, for people like me (and us), it can be a rude indoctrination into a profession which appears to see creativity as a liability in all things not related to legal arguments.
Let me give you an insight into my rather subversive world view. My view comes from wanting to make a difference, believing in people, and a stubborn refusal to let anyone spoon-feed me a reality that just doesn’t seem make sense.
I came into Sturm as a second career with my first being a holistic health coach and business owner in South Beach, Miami.
Being a health coach is not unlike being an attorney in that you provide a personal service to clients seeking advice on how to get through a difficult period of their lives. This experience shaped a view which I feel helped me in this lab. Here is are my nuggets of wisdom:
- Commit to to others and fight until you reach them.
- I naively believed that the key to bringing health to my clients was a simple matter of learning all of the best techniques and relaying the most scientific information. However, I quickly found that the key to attracting (and helping) clients had less to do with my knowledge than providing the right information at the right time in a way they were able to hear. As such, I happily gave away the first two weeks of my protocol to anyone who asked. This gave me the credibility of an expert, the generosity of a friend, and the freedom of a specialist not interested in dealing with the basics that any unskilled coach could provide. I got to train the most difficult and challenging clients, and cultivate a waitlist because I solved those difficult problems
- I naively believed that the key to bringing health to my clients was a simple matter of learning all of the best techniques and relaying the most scientific information. However, I quickly found that the key to attracting (and helping) clients had less to do with my knowledge than providing the right information at the right time in a way they were able to hear. As such, I happily gave away the first two weeks of my protocol to anyone who asked. This gave me the credibility of an expert, the generosity of a friend, and the freedom of a specialist not interested in dealing with the basics that any unskilled coach could provide. I got to train the most difficult and challenging clients, and cultivate a waitlist because I solved those difficult problems
- Put Yourself in your client’s shoes (or boots, or pumps or heels)
- In this lab you will come to know this as “UX” or user experience design. As a business-owner, I knew this as: “find out what they want or lose your business.”
Through this lab, Lauren and I interviewed folks who had been through basic law issues and tried to navigate the process on their own. The entire time Lauren and I were designing our application, we kept coming back to on particular woman who faced a pretty common legal issue and still faced hell in resolving it because of limited time and financial resources.
It hit home with us when she described the frustration of finding childcare, organizing time off work and filing papers at the court house only to find that the online resources she was relying on weren’t adequate for her to properly fill out a basic court form. This tenacious woman was forced to repeat the process multiple times, potentially upending her life, simply to re-submit yet another iteration of a rather simple form.
It was her experience that led us to develop an awesome (my opinion) application featuring a blue teddy bear guide aimed at helping anyone, navigate such banal processes. (www.bluebearymediationadvisor.com)
- BE BOLD, create, absorb professor Lupica’s vast knowledge:
- I will be honest, Professor Lupica drove me crazy insisting on the (as I then saw them) simple changes to language, layout, colors, tone etc. But you would do well to listen to her. Professor Lupica is one of the world’s fore-most authorities on access to justice and, particularly communication and language as a barrier to common justice. As someone who doesn’t always take direction well, I promise you that she will drive you to create something you don’t know you are capable of creating.
- I will be honest, Professor Lupica drove me crazy insisting on the (as I then saw them) simple changes to language, layout, colors, tone etc. But you would do well to listen to her. Professor Lupica is one of the world’s fore-most authorities on access to justice and, particularly communication and language as a barrier to common justice. As someone who doesn’t always take direction well, I promise you that she will drive you to create something you don’t know you are capable of creating.
- Finally, INNOVATE!!!!
- You will learn everything you need to know to forge the next generation of legal access through this lab. You benefit from:
- A warrior professor forging a new path in legal justice.
- A brand-new legal tech lab and a legacy YOU will determine.
- A geo-political reality begging for solutions to real legal-access problems.
- A field waiting for your innovation.
- You will learn everything you need to know to forge the next generation of legal access through this lab. You benefit from:
I believe so much in this lab, the DU faculty, and the future of what you all will create that I want to leave a final gift to the next class of students:
I am personally sponsoring a $500 cash scholarship to the most innovative project next semester (as determined by a panel of expert judges).
This is, as you have learned a unilateral contract, daring each and every new lab student to knock my socks off! The only limits to this offer are those set by your Professor Lupica.
Go crazy, show the world what law and innovation can be. Show yourself how your creativity and legal skills can create amazing things for the world.
Good Luck Everyone and make DU proud.
Jim Keizer, Class of 2021
- Commit to to others and fight until you reach them.
September 7, 2021 - Law + Innovation and Access to Justice by Anthony Baglivio
Law + Innovation and Access to Justice
by Anthony Baglivio
The United States is a land of many faiths. All of us can name a few of them off the top of our heads: Christianity, Islam, Buddhism – the big ones. There is one faith, however, which reaches across all the many disparate cultures and sub-cultures. It is believed in so deeply, by so many, that it enjoys as many or more adherents than all the commonly known faiths combined. Its tenets are so widely taken for granted, in fact, that most are no longer even aware that they subscribe to them, much in the same way one forgets that one is breathing oxygen. I am speaking, of course, about the faith in progress. To examine this faith and the role it plays in the legal field, I will draw on sources both known and unfamiliar.
Tomorrow’s Lawyers by Richard Susskind is as good an example of unquestioned faith in progress as anything one might find in Wired magazine. He has “no doubt” that, in less than 50 years from now, “nanotechnology, robotics, genetics, and technology [will] converge.” He continues, “[i]n this era of transhumanism . . . entire bodies of law and regulation will then be embedded in chips and networks that themselves will then be implanted in our working practices or, eventually even, in or remotely accessible to our brains.” He concedes several times that his predictions are either behind or otherwise not proceeding as anticipated but does not concede anything regarding his underlying faith in technological progress. This raises several complicated questions.
Before we explore them, though, I must pause and point out the utility of bringing attention to Susskind’s transhumanist and techno-progressive beliefs. Richard Susskind has a lot of letters after his name (OBE FRSE), is well-respected in British and American high society, and is a giant in the field of legal technology. His beliefs about the direction the world is heading in, where those beliefs come from, and how they inevitably inform his works on legal technology—which are perhaps the most influential works in the field—are important to understand if we agree that this entire movement does not exist in a vacuum, and that understanding it within the context that birthed it is necessary if we wish to be able to critically assess its possible outcomes, rather than uncritically assuming that there will be any range of desirable outcomes at all.
Back to the complicated questions. The first and most obvious one is: is he right? To compare Susskind’s predictions with the long history of similar predictions made by equally respected members of the tech-faithful is an exercise in disappointment. Ever since the discovery of the cheap, abundant fossil fuels that permitted the industrial revolution (and its consequences), the tech-faithful have made predictions about how revolutionary technological innovations were just around the corner, always coupled with fantastical predictions detailing all the ways in which they will solve all of society’s pressing issues in one fell swoop. If one cares to look but an inch outside of one’s own comfortable bubble (if one is fortunate enough to live in such a bubble), one will notice that the issues of the past have become the ever-more agitated and intractable issues of the present. In the book, Susskind repeats one of his favorite quotes: “The best way to predict the future is to invent it.” But, looking back over the history of technological innovation, one would be hard pressed to find an example of the effects of a truly revolutionary technology being accurately predicted by the innovator. Though some predictions are true in a very limited sense, like Steve Jobs predicting a computer in every home, it is doubtful whether he would have been able to predict the mass social, psychological, political, and economic ripple effects of the advent of cyberspace access for all, and these are the effects that matter. Jobs’ prediction of a personal computer in every home is literally true, but what does it mean? In his controversial and influential work Understanding Media: The Extensions of Man, philosopher and media theorist Marshall McLuhan said that navigating civic and social life depends on one’s ability to predict the effects of innovation. If one is unable to do this, as history has shown, one is unable to navigate within one’s own society, much less navigate the society’s direction itself. The “great minds” who pressed progress for its own sake have consistently demonstrated their inability to predict its many deleterious effects. Or, perhaps it is a lack of regard for these effects entirely: there have been many thinkers over the past two centuries who are routinely shouted down for failing to toe the tech-faithful party line. Regardless, the situation we currently find ourselves in is one of increasing of technological complexity and dependence and its dominance over human affairs. If one looks at any of the many indicators of the health of communities at any scale, more people are alienated, disaffected, and marginalized than ever before in history. “The community,” as early Americans would have known it, has been atomized.
But no matter! It’s progress! These things are simply a cost of the progress to revolutionary technological innovation that will eventually liberate us from our most human limitations. Lord John Maynard Keynes, the father of modern macroeconomics, amid the global economic depression of the 1930s, said that “[f]or at least another hundred years we must pretend to ourselves and to everyone that fair is foul and foul is fair; for foul is useful and fair is not. Avarice and usury and precaution must be our gods for a little longer still. For only they can lead us out of the tunnel of economic necessity into daylight.” The Keynesian message, which has informed every progress-minded professional since, whether they consciously realize it or not, is clear enough: ethical considerations are not merely irrelevant, they are an actual hindrance. The time for fairness is not yet. The road to heaven is paved with bad intentions. Just a bit more “progress,” a little bit more “innovation,” and finally all the inequalities that have beset the downtrodden masses for all modern history may be alleviated! Sound familiar? And to the entire field technological ethics, whose members apparently aim to guide this rapidly growing and increasingly dominant phenomenon: where have you been? What have you meaningfully accomplished? Have you, over the past century, developed anything approaching a coherent moral framework with which to guide technological advancements and applications, which society’s most powerful will abide by? Those countless millions who have been marginalized and impoverished by the ceaseless forward march of technological progress have been waiting for answers to these questions for some time. The mere existence of a field of technological ethics by itself has absolutely no bearing on the situation at hand if it does not do anything to change the material reality of those most negatively affected by it.
The second complicated question is: where does Susskind’s (and the rest of the tech-faithful’s) utter confidence in linear progress come from? Keynes did fundamentally change the economic policies of most western governments, from which one can trace the widening of the wealth gap, which then leaves us in the dire access to justice situation we are now looking to solve. But I want to pull back the focus a bit and put the Susskind/tech-faithful view within an even larger context, that we may be able to view the patterns of history from high up. By doing this, we may be able to see the error of our own ways before digging ourselves deeper into a hole which is already invisible to most.
Paraphrasing historian Arnold Toynbee, peak oil writer and progress critic John Michael Greer frames the historical landscape as such (emphasis added):
In [Toynbee’s] analysis, successful societies thrive because their governing classes form what he called a creative minority—a group that wins the respect and emulation of the rest of society because it is able to come up with creative solutions for the problems that face a civilization in the course of its history. Too often, though, the governing classes stop innovating in any way that matters, and become more interested in trying to force problems to fit their preferred set of solutions than in adapting solutions to fit the current set of problems. They then become what Toynbee called a dominant minority, which no longer inspires respect and settles instead for grudging obedience.
Once a society is saddled with a dominant minority, there’s a set of standard moves that people within the society use to try to deal with problems that the people in charge are no longer trying to solve. Unless you live under a damp rock, dear reader, you already know all of them. Toynbee calls them detachment, transcendence, futurism, and archaism. Detachment abandons society to its fate by going back to the land, or off to another part of the world, or inward to a subculture airtight enough to shut out current events. Transcendence is the turn to religion—Spengler calls it the Second Religiosity—which comes in the latter days of every civilization, as people frustrated by this world place their hopes on another. Futurism is the attempt to build, or at least daydream about, a perfect society in the future. Archaism, finally, is the quest to Make (insert name of society here) Great Again by rejecting a failed status quo in favor of policies that worked in the past.
As we can see, Richard Susskind, the tech-faithful, and all the would-be innovators likely fall into a well-worn historical pattern, a pattern that was observed and elucidated long before most of us were born. Historical education being what it is in the United States, it’s no surprise that most of us think that everything is new under the sun. The more concerning fact that all of this historical deep diving brings to light, though, is that the futurists are always wrong. The most predictable thing about civilizations is that they decline and collapse, and no hemming and hawing about coming up with quick and easy fixes to deep and systemic issues will change that. It is a detrimentally myopic view of oneself in the tides of history that allows one to think that this time, things will be different.
If we are genuinely concerned with increasing access to justice, it will not serve to rely solely on quick technofixes. That approach, as we’ve seen, ignores the real history and true source of the problems we wish to tackle. If we wish to tackle them effectively, we must take a hard look at the trajectory we, as a civilization, are on. Greer continues:
There were a few of us who said something much less popular. We predicted that the grand technological breakthroughs were not going to happen, and the grand social awakenings were not going to happen, and the grand apocalyptic catastrophes were not going to happen. What’s more, we offered solid reasons why none of these things were going to happen. We predicted instead that demand destruction and an assortment of temporary gimmicks would keep things rolling on, that measures of quality of life would continue to slide downhill, that politics and society would become increasingly fractured and irrational as people frantically tried to pretend that nothing was wrong, and that the prolonged and ragged process of decline I’ve called the Long Descent would continue to pick up speed.
The Long Descent, as Greer calls it, is the inexorable and protracted process by which a civilization, having used and abused the energy resources that undergird its people’s entire way of existence, declines, and eventually collapses. This is the process that anyone with eyes to see can observe taking place since the late 1970s, when material conditions peaked, and then steadily began to fall ever since. Unfortunately, those with eyes to see are rarely those with hands on the levers of power. Those tech-faithful who do wield real power, otherwise called technocrats, do not have eyes to see. To fully delve into the case for the long descent’s reality is far beyond the scope of this blog post but let us suspend the defensive disbelief that has surely sprung up for just a moment. Let us allow ourselves to entertain the idea, for just a moment, that western civilization is indeed in the early stages of decline.
What does this all mean for the access to justice? If one may overcome one’s conditioned revulsion to the idea that our immanent techno-utopia is an illusion, and that in fact the things we consider markers of “progress” have in fact pointed in the opposite direction for some time, we can again turn to the lessons of history to see how we might still serve those we originally set out to serve. There are two circumstances on our side. First, this process can take anywhere from one to three centuries. Two, with our newly acquired historical education, we can choose to act before worsening conditions force us to act.
As history shows, in every decline process, the economy and the culture it supports fragment, briefly recover, and continue to fragment further when the underlying causes are not addressed. Less and less people choose, or are even able to, depend on the institutions that everyone once took for granted. This includes the institutions of technological innovation and law, and certainly the intersection of the two. If we wish to help those without access, and we grant that this process of decline is indeed underway, we must get out ahead of the decline’s most jarring contractions: prepare for them now, long before they happen. What would this entail? As material conditions continue to decline, more people are driven closer to or below the poverty line, and those in power become further disinterested in dealing with the reality of what is going on at the community level, those who must no longer rely on old institutions will naturally begin to form institutions of their own. People will still need the necessities, even if the economy says they cannot have them. They will need to figure out ways to govern the newly coalescing communities that arise from the ashes of the old, and good rules to follow so that all may get by with a sense of shared values and common goals.
Let us be the ones to plant that seed for them, that tomorrow they may be able to enjoy the shade of a tree whose necessity is denied by so many today. We must give those communities in greatest need the tools they require to build their own system of dispute resolution, rulemaking, and whatever other basics of law are required for small, self-sufficient communities, and then let them do it. To give them a quick technofix is to further their dependence on a system that no longer has their best interests at heart, to further abstract their access to justice away on the shaky foundation of entrepreneurialism. The system cannot solve a problem that the system itself birthed, especially when that system’s existence depends on the continuance of that very problem. No, if we wish to serve those who need access to justice we must consciously break down the wall that has kept them from it for so long, and allow them to take the tools into their own hands.
September 14, 2021 - The Law Firm Chief Innovation Officer by Sarah Stein
The Law Firm Chief Innovation Officer
by Sarah Stein
The intersection between the legal industry and innovation is, well, not quite there. Often, law firms see the need to take advantage of new methods and technologies but are reluctant and unsure about what the return on investment is for trying new ideas. One way law firms are addressing this disconnect is by appointing or hiring someone to fill the role of what is called a chief innovative officer (CINO). This individual is essentially the head of innovation for that specific law firm.
Recently, Michele DeStefano wrote an article entitled, “The law firm chief innovation officer: goals, roles and holes.” She interviewed over 100 General Counsels, heads of innovation at law firms, and law firm partners in her quest to figure out what innovation means in the legal market, and to discover lawyers’ views on innovation. She also examined what the actual role of a CINO is at a law firm and whether designating someone as the head of innovation at a law firm is an effective way to meet the changing marketplace and to satisfy client needs.
DeStefano divided her article into three sections: goals and roles of a law firm CINO as described by her interviewees and the holes between the goals and the roles. In this blog post, I will summarize her findings and describe my perspectives on law firm innovation.
CINO Goal 1: Differentiate the law firm. Interviewees described this as selling the message that the law firm is innovative. This is a huge marketing tool because it signifies that the law firm is looking to satisfy client needs and progress with the marketplace demands.
Here, I agree with DeStefano. Clients are likely to view more progressive law firms as more competent than law firms who are not innovating and progressing with society. This will enable law firms to sell themselves better than the next if they pay attention to and implement a more efficient process for the client.
CINO Goal 2: Develop a culture of innovation at the law firm. When a culture at a law firm does not support innovation, then just having a CINO will not change that. Thus, many CINO’s expressed that their main goal is to drive culture and change the mindset of individuals at the firm so that innovation is embedded in every practice across the firm. One notable interviewee said that “the purpose is to make what we call the innovation value chain a reality in the firm. But that is about developing the culture and infrastructure that allow people to be creative.”
I believe that it is crucial for the lawyers in the firm to be on board in order to enable change and facilitate innovation within the firm. I wonder, though, if this actually plays out. What does the CINO do when there are individuals who are resistant to change? What if there are individuals who are risk averse and disagree with new policies that the CINO implements? In my experience, I have worked under lawyers who embrace change and work with innovation, but I have also worked with lawyers who are very opposed to learning new ways. It seems like the CINO would hit a dead end with lawyers who are stuck in their ways and unwilling to change, which is not uncommon.
CINO Goal 3: Delight clients to derive business (old and new). There are many skills that a lawyer needs to hone, to meet a client’s expectation. But to exceed a client’s expectation, a lawyer needs to be an innovator and master skills such as collaborative problem finding and problem solving, empathy, risk-taking, questioning, and observing/listening. One interviewee said, “we need to ensure that innovation doesn’t happen in a vacuum, that it emerges from clients’ needs. And it sounds simple, but [lawyers] often need reminding. The burning platform is that our clients want this from us. They actually want us to be listening and to be providing magical solutions and exceptional experiences. We need to be innovative and creative.”
I agree that providing a new type of client service builds a new relationship with the client that promotes teaming up with the client and collaborating together. By doing this, clients will feel more heard and that their legal problems are more understood. Creating a collaborative type of service will also likely build more trust with the client as well.
Who. The background of a CINO varies from having a law degree and formerly being a lawyer to someone does not have any formal legal training. Some CINOs are partners or senior associates and play the role of the CINO while simultaneously practicing law. The type of person who fills this role, and the actual title, do not matter. What matters is that it is someone who understands the client, the law firm, the needs/pain points of both, and how innovation can be the solution.
I can see pros and cons to the CINO both coming from a legal background and coming from a nonlegal background. A CINO with a legal background who went through law school and experienced the law firm life likely understands the system and where the pain points are in the system better than someone who does not have a legal background. However, a CINO without a legal background may bring new and innovative ideas from other industries that someone in the legal world would not think of. There is an element of thinking outside of the box and pushing the boundaries of where the legal world has been. While a lawyer might be able to do that, perhaps it does take an outsider to not be afraid of pushing for the change.
Why. Despite the range of backgrounds of CINOs, the motivation is largely the same. And even though law firms have different reasons for hiring a CINO, the people who play the role share many of the same ‘whys.’ DeStefano stated that most of the interviewees are passionate about inspiring lawyers within their law firms to change the way they practice to better serve clients and meet the changing demands of the marketplace. One interviewee said, “I am passionate about all things that can help us help our lawyers’ transition from the guy with the quill pen to the modern-day service provider.” Another said, “I really like to inspire people, and right now it is only small steps, but every small step is a step.”
The people that fill the role of a CINO share a common passion to help the legal industry move forward and progress, even if it takes a while. They see that the end result is the satisfaction of a client, which is ultimately the most important part of the equation.
What. So, given the who and the why, the next question is what exactly do CINOs do? Based on her interviews, DeStefano outlined six common tasks across CINOs.
- Curating ideas and facilitating innovation processes and execution. Many CINOs talk about leading innovation projects, including implementing idea crowdsourcing platforms to capture ideas across the firm, running innovation contests, and helping bring ideas to life.
- Analyzing technology available for lawyers that is or can be used by the firm to enhance transparency, increase access, create efficiencies, and please clients. Being technologically savvy is essential to this role. CINOs seek to train lawyers about the importance of using technology so that clients have a better experience as well as a consistent experience among the lawyers in the firm.
- Analyzing, unbundling, and reconfiguring processes to enhance transparency, and create efficiencies inside the firm to improve client service. In addition to technology, CINOs are tasked with breaking down firm processes to find inefficiencies and then reassemble them to create a more efficient process.
- Aiding in new business pitches, responses to RFPs, and panel reviews. With respect to this task, one CINO said, “Every panel review, where a client has eight to ten or even fifteen preferred law firms, almost without exception, four to five years ago they would demand to see evidence of intention to innovate. Now, what we are finding are questions asking about whether the firm has found the right resources for your work and whether you are using those resources and project managers and tech solutions.” CINOs are clearly crucial in business development and gaining the interest of new clients.
- Engaging with clients to better understand their needs, develop relationships and collaborate to provide more client-centric, effective, and efficient services. Many of the CINO interviewees commit nearly half their time to being client-facing. To be successful in this role, the key is a combination of co-creation and ‘service’ innovation – innovation in how the client is served and what services the law firm provides.
- Networking with legal innovation communities around the globe. Part of the CINOs job is knowing what is happening in the marketplace and knowing what other law firms are doing. One interviewee expressed, “part of my job is building a network of people who have a lot of insight (very much more than I do) into innovation inside and outside the legal sector.”
I think that each of these tasks is extremely important and necessary for a law firm to expand and move with innovation. It is crucial to have someone dedicated to analyzing technology, since many lawyers will likely tell you they simply do not have the time to figure it out on their own. I believe it is also important for client services to be more efficient and it takes someone who does not function as a lawyer to take a step back to figure it out. I also strongly agree in the networking piece. Law firms learning from other law firms who have had success is a great way to take the risk out of the equation and motivate the resistant lawyers to see the good in innovation.
Number five is interesting as I’m sure many lawyers would have issues with a nonlawyer sitting in on client conversations. If the CINO has a legal background I doubt there would be issues, but if the CINO is purely in the client meeting to think of innovative ways to service the client, I can see the resistant lawyers rejecting CINO involvement with clients. The Model Rules say that the client is the single most important aspect of being a lawyer, so resistant lawyers may well see CINOs as a distraction in client meetings. I am of the opinion, though, that having CINOs sit in on client meetings is to the direct benefits of clients. This is because an important tasks of the CINO is to improve the client experience.
While the CINO role has a huge potential to shape the future of a law firm, DeStefano pulled out some potential holes.
Confidence. Law firms tend to have a fear of risk and/or failure. Innovation brings a lot of unknowns, especially if it is unknown territory and if no other law firm is doing the same thing. One interviewee said, “when you suggest doing something differently, a classic thing to be said in a law firm is: ‘who else is doing it?’ In every law firm, every colleague hears: ‘which other law firm is doing this?’” This fear is driven by lack of confidence about how to innovate and whether innovation will actually work.
In my experience, the legal industry feels like a constant competition between law firms and so if one law firm tries and fails other firms may see this as a weakness. I have been working at a bigger law firm and it really is, what are the other firms doing? Whether it be recruiting efforts, salaries, size of the teams, or location of office, no firm can let its guard down.
Competence (and capital). DeStefano argues that it is absurd to think that law firms can just miraculously motivate lawyers to innovate and implement innovation without any formal training on innovation. CINOs also lack training in innovation and design thinking, so this results in horror stories of worst practice. DeStefano lists out a number of “horribles” by a CINO who was not well trained:
- Failing to set expectations and wasting time from the start. There needs to be a set objective when exploring innovation, otherwise, DeStefano argues, it is a waste of time.
- Lacking empathy and jumping to a solution before exploring and defining the problem(s) with the client. Just because a solution worked for the law firm itself or a particular client, doesn’t mean that it would work for another client. The law firm needs to understand that innovation is personal to the specific client’s issues.
- Lacking understanding of the client’s business and presenting from the law firm’s perspective instead of from the client’s perspective. Same as the above; if the law firm does not understand the client’s specific issue, then it will be apparent, and the client will be upset.
- Claiming to know how to innovate but failing to behave with the mindset and skill of an innovator. If a law firm fails to spend time with the client and empathize with the client, then they are not innovating. The client will feel disconnected and devalued which is the opposite of what the CINOs role should be.
Commitment. Lack of commitment is driven by lack of compensation and lack of an innovative culture. Plain and simple, CINOs are not adequately compensated for their work in innovation which leads to a lack of motivation from the CINOs. DeStefano brings up an interesting point, though, that there is a difficulty of measuring the value of innovation. One interviewee stated, “the relationship between leadership and innovation is that leadership needs to give permission for risk and give the resources to create and celebrate it. It has to be important to them. Leaders at law firms are not too innovative. They suck the oxygen out of the room.”
DeStefano concludes with three recommendations that she has for law firms:
- If your firm does not have a head of innovation role, create one. Then fill and support that role properly. The final formula will vary as different firms need different individuals, but the implementation is important.
- Insist right away that the CINO interfaces directly with clients, innovates alongside and with the client whenever possible, and tracks all client interactions. The CINO should understand the client’s story and understand all of the ways that the client interacts with the firm. If the CINO has a full understanding of the client’s needs, then he/she will be able to absorb feedback from the client and figure out ways to make the client’s experience with the firm as good as possible.
- Find ways to demonstrate the value of a CINO and a collaborative problem-finding and solving approach, and do not forget to celebrate when you get it right. DeStefano expresses that it is important to share success and to share when a client is happy. If this happens, then the lawyers in the firm will see the value of a CINO and how important it is to adopt this kind of approach to client service and business development.
While I appreciate DeStefano’s recommendations, I think she needs to be more proactive. I had never heard of a CINO before my research on the topic. In fact, even when I was researching, I did not find a lot of information. In addressing the ‘holes’ she points out as well as her recommendations, perhaps DeStefano could take her thinking even further back and recommend how the next generation can follow the path of becoming a CINO. What kind of education and experience does a CINO need? I would say a mixture of legal (to understand the pain points of a law firm) and an innovative or technological background (to understand the innovative part).
At the root of the issues that she points out is lack of innovative culture and lawyers who desire innovation in the law firm. So, I think that culture is also extremely important when driving innovation in a law firm. If lawyers do not believe in the CINO and understand the importance of innovation, then the CINO’s job would be worthless. So, if a firm is serious about progression, then driving culture needs to start in the interviewing process and hiring talent that has the same value as the firm. The CINO should be part of the interview process to filter talent that is serious about progressing.
September 24, 2021 - The Changing American Patent System by Puya Agahi
The Changing American Patent System
By: person having ordinary skill in all things patents
The American Patent System has changed quite drastically over the past decade. As a Patent Examiner with 10 years of experience under my belt, I can attest this.
In order to better understand these changes, I must first provide some essential background and historical information regards to the evolution of the US Patent and Trademark Office (“USPTO”), the role of patent examiners, and evolving patent law over the past decade.
You might be wondering, what exactly is a patent examiner?
To answer that question, consider the following example.
Let’s say your name is Shelly (She/Her), an engineer working for Apple, and you invent a new iPhone accessory: an inductive charging plate that automatically stops wirelessly charging your iPhone upon detecting that your iPhone has fully charged. The point of this invention is to prevent overcharging the phone’s battery, and thus extending the lifetime of the phone/battery.
Pretty good idea? Well actually, most phones currently have this already built-in via software (example, your phone plugged into its charger while you are asleep will not over charge – it will stop charging once it hits 100% and can be programmed to charge again when it drops to some set threshold, i.e. 90% charge). However, let’s assume this alternative inductive charging plate with overcharge prevention does not actually exist and/or Shelly knows it exists but she wants to pursue applying for a patent nonetheless.
Let’s also assume Shelly came up with this idea because research shows that overcharging your phone battery can lessen the overall phone battery life and that no such inductive charging plate with overcharge prevention has never been patented, described in a printed publication, or sold in America, overseas, etc.
Shelly, working under the umbrella of Apple, files a patent application, “Inductive Charging Plate with Preventive Overcharging”, with the USPTO. In order to do so, Apple’s in house patent attorney writes up the patent application, which comprises patent claims and technical documents/drawings that provide support for the application and explain the metes and bounds of the technology.
What happens next?
That is where someone like me, the patent examiner, comes in.
FUN FACT: Thomas Jefferson is considered the first American patent examiner
Back in the 18th century and while he was serving as George Washington’s Secretary of State, Jefferson also spent any spare time that he had reviewing various nautical related patent applications. Jefferson’s many cries for assistance in patent review eventually would lead to Congress passing the Patent Act of 1790, giving birth to the first US Patent Office. If we fast-forward today, the US Patent and Trademark Office (aka USPTO or simply PTO) has grown exponentially- comprising 13,000 employees. While PTO has several US satellite offices (Alexandria, Detroit, Silicon Valley, Dallas, and Denver), over 95% of the workforce (including myself) is currently working fully remote.
One of 10,000 or so of my fellow patent examiner colleagues in a particular “art unit” will review Shelly’s patent application. Of note, an art unit is a group of patent examiners (usually 20-30 individuals) who have the same technical background (chemistry, electrical, medical, mechanical, etc.). In Shelly’s case, an patent examiner (let’s call this individual “PHOSITA”) with a background in electrical engineering and inductive charging will likely be tasked in reviewing Shelly’s patent application. You may be wondering... why did I just name this patent examiner “PHOSITA”? Well, PHOSITA is a widely known acronym that stands for Person Having Ordinary Skill In The Art. For example, the examiner reviewing Shelly’s patent application is considered a person having ordinary skill in the art of inductive wireless chargers (someone who has previously reviewed similar inductive charger patent applications, has a degree in this field, etc.).
Aside from making sure that Shelly’s application conforms to basic formalities, the assigned Examiner’s main duty is to conduct a “prior art” search. In order to do this, Examiner will review Shelly’s patent claim, interpret the metes and bounds of said patent claim (referred to as “scope” of the patent claim), and then keyword search various patent databases (prior patents) as well as non-patent databases (scientific articles and journals, PHD dissertations, ecommerce, YouTube clips, etc.) to see if Shelly’s idea has already been made available to the public.
This entire process, referred to as “patent prosecution”, is lengthy (can last anywhere between a few months, or more likely, a few years) and is very costly. Luckily for Shelly, Apple will cover all of her patent filing costs and her name would be on the granted patent should Examiner allow the application. On the flip side, Apple will own the rights of the patent (rights of exclusion for 20 years, licensing rights, etc.).
In order for Examiner to ultimately allow/grant Shelly’s patent application, the patent application must pass various patent statutes. The main statutes are 35 USC 101 (patent eligible subject matter), 35 USC 112B (indefiniteness and written description), 35 USC 102 (anticipation), and 35 USC 103 (obviousness).
35 USC 101 (patent eligibility)
The general rule of thumb is anything under the sun that is manmade is patent eligible (“hand of man” requirement). What does that leave behind? To answer that question, consider Albert Einstein. An undisputed genius, we all know him for the famous equation (E = mc2) and his discovery of the photoelectric effect for which he won the Nobel Prize for Physics in 1921. But fun fact, Einstein was also a Swiss patent clerk! If conspiracy theories are your cup of tea, some speculate that Einstein’s findings came to fruition while he was reviewing various groundbreaking Swiss patent applications in the early 20th century. Of course, none of these theories was ever proven and I am sure Einstein knew better than to steal someone else’s work. But rest assured, if Einstein were alive today he would not be able to get a patent on his most famous equation. Why? Because (1) patent clerks/examiners are barred from getting patents; and (2) mathematical equations and laws of nature (e.g. equation for gravity) are not patent eligible. With regards to the latter, this becomes even more complicated when it comes to software. More on this later (See 2014 Alice Discussion below).
35 USC 112 (indefiniteness and written description)
Returning to Shelly and her Patent for Inductive Charging Plate with Preventive Overcharging, I mentioned earlier that, in filing her patent application, she needs to submit her application in a manner that fully describes her invention in sufficient clarity and detail/words while providing all the required forms, technical documents, drawings, etc. If Shelly does not explain her invention in sufficient detail and/or if any aspect of her patent claim is unclear, then she could run into some 35 USC 112 issues. For example, Shelly claims that the charging plate is “pretty small.” What is pretty small? How big is that? This, however, would not automatically doom her patent application as inventors are allowed to be their own lexicographers. However, Examiner would need to look to the application’s specification to see whether “pretty small” is a defined term. If it is not a defined term (pretty small is 0.5-2 inches in diameter, and 2-4 inches in thickness, etc.), then Examiner would reject the patent claim via 35 USC 112.
35 USC 102 (anticipation) and 35 USC 103 (obviousness)
I lumped these next two issues together because they both pertain to Examiner’s main duty, i.e. the “prior art” search. Assuming the patent claim is eligible and has sufficient clarity/support, Examiner will then need to conduct a thorough search of patent databases and non-patent databases to confirm that Shelly’s patent application is novel and nonobvious. The novelty standard is pretty straightforward: if someone else previously invented (or described via publication) the same inductive charging plate with preventive overcharging capabilities, then Shelly would run into an anticipation rejection under 35 USC 102. However just because Shelly passes the anticipation statute does not mean she is home free; Shelly must also pass the obviousness standard pursuant to 35 USC 103.
As the name of the statute suggests, a patent claim can be rejected if it is deemed obvious to Examiner. Frankly, there can be a lot of subjectivity when it comes down to determining whether something is or is not obvious. This is also the Examiner’s main duty and most challenging aspect of patent prosecution.
Let’s return to Shelly and her magnetic adapter device. Again let’s assume, PHOSITA conducts a search and concludes there is nothing else that came before Shelly’s idea with respect to previous cell phone inductive chargers (no anticipation issue). However, Examiner expands the search to other fields of endeavor and discovers the exact same inductive charging device exists in chargers for laptop computers. Well, then Examiner would likely reject the patent claim under 35 USC 103 since it would be obvious to utilize this inductive charging device in other computing devices (cellular phones). And let’s face it, an iPhone is more or less a computer.
Now that we covered all the dry patent statutes, let’s turn to our main topic.
How the American Patent System and Patent Laws have changed: 2013 American Invents Act, 2014 Alice Decision.
In 2013, the American patent system changed for good via Congressional Stature “America Invents Act” (aka AIA). What was once a “first to invent” system, USPTO has now adopted European principles and become “first to file” via AIA. Such a change has incentivized inventors and companies to pump out patent applications immediately. AIA also created the Patent Trial and Appeals Board (“PTAB”), an administrative body of patent judges that provides patent arbitration that is more cost effective (compared to filing in Federal District Court) when it comes to handling patent disputes.
In doing so, the AIA also empowered patent examiners to enhance and accelerate customer experience at the USPTO. The prioritized patent examination (Track One) provision facilitated an option for expedited review of patent applications. The acceptance of this first to file standard established greater consistency with our international counterparts, easing the ability of U.S. inventors to compete on a global stage. In addition, the fee-setting authority granted by the AIA allowed us to modernize our IT systems and expand our workforce by almost 4,000 employees since 2011.
Aside from transforming into the first to file system, the Supreme Court also has been weighing in more recently on patent issues. Many, including myself, speculate that this has to do with the emergence of pesky patent trolls. Eventually in 2014, the Court issued its Alice decision that sent shockwaves through the patent world, primarily as it pertains to software patents.
The Alice decision has made life complicated for software engineers, as it essentially armed the Examiner with a new powerful tool in rejection patent applications. I can tell you from firsthand experience, I’ve issued hundreds of Alice rejections (even when the patent application is novel/nonobvious) and there is no end to them at the moment.
Essentially, if a patent claim recites what has been referred to as a “judicial exception” (mathematical equation or something that can be carried out by a human, using pen and paper, etc.) and if the judicial exception, when considered with the rest of the patent claim, is not “integrated into a practical application,” then the patent is not patent eligible under 35 USC 101.
Does your brain hurt? It should. To illustrate the complications of the Alice decision, consider our old friend Shelly in the following example.
Shelly is very creative, has a background in biomedical engineering, as well as JAVA and python. One day (after realizing someone else beat her to the punch with respect to her previous charging plate patent application), Shelly comes up with a new idea that utilizes data extracted from her Apple Watch to provide an individual with an alert as to impending heart attack. Let’s assume Shelly again did her research and definitely knows that this new idea also passes the obviousness test. She decides to file for a patent. Would Examiner grant her patent application?
The short answer: it depends, but probably not.
There are a lot of patent eligibility questions Examiner would need to answer, per the 2014 Alice decision. While Shelly’s patent claim likely recites an actual physical device (a health wrist watch and sensors that obtain heart rate data), it is centrally geared to an implied algorithm (utilizing machine learning to assess whether to issue an alert based on user’s irregular heart rate data derived from wrist watch).
The question turns to whether the implied algorithm is “integrated into a practical application.” In addressing this, Examiner will need to look at the additional limitations (non-algorithm portions of the patent claim), i.e. the structural limitations (wristwatch and heart rate sensors).
As an Examiner with routine knowledge and skill in medical wearable devices, I would argue that the additional limitations are just generically recited data gathering techniques (heart rate sensors and health wrist watch monitors are conventional/ubiquitous). In other words, Shelly is still trying to get a patent on an implied algorithm, which amounts to an abstract idea that is merely being implemented on a computing device. Since nothing in her patent claim integrates this algorithm into a practical application, Shelly’s wristwatch patent would be rejected under 35 USC 101.
Before we all blame the Examiner and clamor that these Alice rejections are hindering innovation, I can tell you confidently that it is actually doing the direct opposite. By arming the Examiner with another powerful tool, more tech is now available to the public at large. The counter argument that I hear all the time from angry software engineers (via their overpaid patent attorneys) is that Alice (and more specifically, Examiner’s interpretation of Alice) will result in de-incentivizing patent filers from submitting software patent applications. However, I have not seen patent filers actually resort to this as doing so would be market suicide (need to always show strength with their investors in the form of IP submissions).
Still, the Court has not really given much guidance as to how this “integrated into a practical application” standard is met, which will continue to frustrate inventors and their attorneys. All hope is not, however, lost since innovators can still protect their software/code via copyright law. But just because an individual is protected under copyright law, does not prevent others from “knocking off” their code, i.e. minor variations of code block are still inevitable.
Even though it has been seven years since the controversial Alice decision, the Supreme Court’s ruling still faces heavy scrutiny, mainly from the US Court of Appeals for the Federal Circuit, whom typically deals with patent issues. For now, not much is certain. As we are in a time where everything deals with a computing device and data analysis, all I can say is, if you are an inventor, best of luck if you are trying to receive a software patent. You are going to need it.
USPTO, Primary Examiner, Art Unit 3791
For more information on the American Patent System and how it will likely change in a post COVID-19 world, click here. Also if you are interested in a career in patent prosecution, go to USAJOBS.gov and keyword search “patent examiner.”
October 6, 2021 - Is a Design Approach the Most Innovative Tool in Lawyers’ Toolbelts? by Rebekah Glover
Is a Design Approach the Most Innovative Tool in Lawyers’ Toolbelts?
by Rebekah Glover
Legal technology is a rapidly growing field. Platforms for case management, client intake, discovery, billing, and automation promise to save attorneys time, increase revenue, all while making clients happier. Of course, spending less time getting better results is an enviable outcome for any professional. But what if, in terms of innovation, is the most impactful thing lawyers can do to improve their practice is change the way they approach to solving their client’s legal problems? Sure, all the new technology might be great, but perhaps attorneys can actualize the greatest impact by changing their approach to practicing law.
At least, that is part of the argument Margaret Hagan makes in “Law by Design.” Hagan touts a design centered approach in the legal profession as a method that allows legal professionals to center clients and implement changes in the present, instead of waiting for new technology to disrupt or displace the old way of doing things. A design approach to law is found in more places that Hagan’s book – many top law schools have implemented legal design programs and labs. These design programs allow students to partner with organizations and work to solve real-life legal problems with the design method.
The main ideas Hagan discusses are that the design approach to law centers users (the clients), communicates legal information in a way that is helpful and understandable, and makes the legal system more accessible. Instead of every interaction with the legal system feeling frightening and intimidating for clients, who therefore need a stoic and steadfast attorney to guide them through their harrowing journey, legal design emphasizes making interactions with the law friendly, and empowering clients by giving them an understanding of the legal process.
Hagan makes a strong point in supporting a design centered approach to the law; after all, many elements of the law are not, and never have been, user centered. Most elements of the law have not been subjected to user testing (if they were, we’d likely have different results). So, can legal practitioners at least use a design approach to offer better solutions for their clients? How does the design approach promise to improve the legal field? And finally, what obstacles stand in the way of implementing a design approach?
What Exactly is the Design Approach?
Hagan describes the design approach as the “application of human-centered design to the legal world.” The approach promises to improve outcomes for legal clients by ensuring that the processes for solving clients’ problems consider clients’ needs and preferences. Of course, most of the practice of law already focuses on obtaining a beneficial outcome for the client. What attorney isn’t working towards a favorable outcome for their client?
What’s different about legal design is that the entire process centers the around the client, it’s not just the end result that is client-centric. For example, an attorney assisting a client with a Workers’ Compensation claim might use the design approach to construct a process that provides the client understanding of the entire claim process and timeline upfront, instead of explaining the process as the claim progresses. Such a solution would deepen the client’s understanding of the Workers’ Compensation process and empower the client to ask questions. The design approach would seek to eliminate the client’s anxiety and uncertainty. Perhaps the design solution would include FAQs written in terms that the client can easily understand, and maybe the FAQs would have some pictures. Maybe the process would include role playing between the client and attorney, methods of communication that are convenient for the client, or scheduled check-ins. The point of the design approach is the centering of the user’s needs and preferences.
The design approach doesn’t just help the client, it should help the legal professional, too. The legal professional should benefit because they are better serving their client and (hopefully) experiencing improved outcomes. The attorney should be alleviating pain points; perhaps eliminating calls from a frightened client, because the client is now better informed.
If you want a design process roadmap, Hagan offers one. In her book, she elaborates on five different stages of the design process: discover, synthesize, build, test and evolve. The overall goal of the process is to identify client needs, brainstorm one (or many!) solutions, build and test the solutions, then improve upon the solution. Hagan spends a good amount of time elaborating on the discovery phase. Discovery centers the user and requires that the legal professional spend time in the beginning of the process thoroughly and deeply understanding the challenges their client faces before the legal professional turns their attention building a solution to those problems.
Will the Design Approach Improve Legal Services for Clients?
Will something like a design approach to practicing law actually improve the outcomes for clients? With the emphasis that the approach places on gathering information from users and user testing, it seems likely that outcomes for clients could be improved with the approach. In her Six Fundamental Principles for Good Legal Design, Hagan makes the first principle to empower users of legal services. Other principles focus on fostering a collaborative client attorney relationship and providing services in a way that lets clients customize the experience. With so much of the design process focusing on the experience and outcomes for the client, it seems likely that adherents to the design process will end up ultimately benefitting the clients.
The design process purports to improve outcomes for clients due in part to the method’s focus on user research and testing. A few of the research techniques that Hagan describes are interviews with research subjects, consultations with subject matter experts, ethnographies, observing challenge areas, and what-if exercises. To return to our Workers’ Compensation attorney and client, this means that the attorney would not start to write the FAQs until they know what elements of the Workers’ Compensation process are truly confusing or intimidating to clients. The attorney should not just guess what questions the client will have and write the answers to those questions. Instead, the attorney needs to find out from the clients what their questions are, then make the FAQs responsive to those issues. Furthermore, the attorney should not just guess what language or pictures will help the client understand the process. They should instead subject their proposed language and pictures to testing, thus ensuring that the materials are as helpful as they can be to the target audience.
The focus of the design method, not just on the outcome being beneficial to the client, but on ensuring that the process is user centered from the start, seems likely not just to give clients a result that they are satisfied with, but to ensure client comfort and ease throughout the entire process.
Will the Design Process Improve the Legal Field?
In addition to creating better service and outcomes for clients, can the design approach improve the legal field as a whole? Because the approach encourages a paradigm shift, to working on short term improvements, while not losing sight of the potential for long term big changes, it seems likely. Offering a new approach to solving existing legal problems seems likely to sidestep the stagnation in legal problem solving that currently exists, and usher in new solutions that were previously unseeable.
The brainstorm and build step of the design process focuses on creativity and being constructive. Hagan’s method encourages the use of unorthodox approaches to brainstorming. Her rules for brainstorming include deferring judgement, encouraging wild ideas, using a facilitator, getting on your feet, acting out scenarios, being visual, and pursuing quantity of ideas over quality in the initial stages. At the very least, this method of brainstorming seems like more fun that sitting around a table discussing and shooting down a list of ideas you came up with quietly by yourself. Brainstorming in a way that defers judgement also seems like a kinder, less intimidating approach to brainstorming. When people, especially newcomers, feel comfortable sharing their ideas, everyone is more likely to discover an approach to solving the problem that they hadn’t considered before. Finally, a new approach to the brainstorming process, like the one legal design offers, might help legal professionals escape old mindsets and lead to truly innovative solutions.
Another element of the design process that seems likely to improve the legal field is the focus on scalability. The legal design process encourages users not to eschew ideas because they seem too big or too radical, but to scale such ideas down for the immediate future, while not losing sight of the long term, groundbreaking possibility of their big idea in the future. Thinking incrementally, instead of the familiar all-or-nothing, now-or-never mindset, certainly seems likely to change the legal field. When we don’t give up because we can make changes a step at a time, we are more likely to achieve long term goals. Needing to have the ultimate solution now is intimidating, even paralyzing. Taking little steps to get to the big, long-term solution is doable.
One of the most interesting, and perhaps helpful, elements of the design approach is that is promises to involve professionals of many stripes, not just lawyers. Perhaps there’s something to an interdisciplinary approach– IT professionals, graphic designers, social workers –can all contribute to solutions in ways that lawyers often cannot, either due to a lack of expertise or blind spots. If lawyers alone could solve all their client’s problems, perhaps they would have solved them already?
Without precise data on how these new approaches to brainstorming pan out, and if these new approaches will improve the quality of ideas and the legal field as a whole, it is hard to support the conclusion that the design process is ready to upend the legal profession entirely and solve all the problems that clients and legal professionals experience. However, the newness and novelty of the approach certainly seems likely to change the legal profession. Design centered brainstorming seems like fun. Scalable solutions should allow legal professions to work towards groundbreaking changes in their practice in small steps. Working with professionals outside of the legal world might be enlightening. Ultimately, new approaches are likely to uncover new ideas and solutions.
What obstacles stand in the way to implementing a design approach?
The most obvious reason that legal practitioners may be hesitant to implement a design approach is that its new, and new can be uncomfortable. If I’ve managed to make it this far using my old methods (even if the methods are not that successful) why change now? More importantly, who can say that a change won’t be for the worse?
Another possible sticking point in the design approach gaining momentum is the upfront effort and resources that the approach requires. Research on users and user testing certainly seem like prime ways to improve the outcomes for the user, but these practices involve time and resources (and maybe even money!) Legal professionals might be tempted to substitute their own judgement in determining what users need, and how effective proposed solutions will function for users. Legal professionals’ reliance on their own knowledge in substitution of the users’ needs and preferences undermines central tenants of the design process.
If legal professionals are truly interested in a new approach and seeing if the design process can solve old problems in new ways, they will have to do the initial work of researching their clients’ needs and truly understanding their clients’ challenges. This means actually doing the work of researching and testing.
Obviously, setting is important when discussing what challenges there might be to implementing legal design. A large law firm with pre-existing practices and procedures for all manner of client problems is more likely to pushback on a new approach than a small firm or sole practitioner who can nimbly pivot and change their approach to legal problem solving. And perhaps it is not just the practitioners who might begrudge a new method. Even if changes will ultimately benefit the client, who can say that many clients would not be apprehensive of a new method, if an old method was working fine?
Regardless of the challenges to implementing legal design, there are certainly members of the legal profession that are using the method already. Perhaps what those professionals find will be the catalyst to get everyone else on board.
 Margaret Hagan, Law by Design (Sept. 23, 2021), https://lawbydesign.co/.
 Margaret Hagan, Justice Innovation with Law School Design Labs (June 15, 2018), https://www.americanbar.org/groups/legal_services/publications/dialogue/volume/21/spring-2018/iolta-design-labs/
 Hagan, Law by Design.
October 12, 2021 - El Salvador Unlocks Blockchain’s Potential to Increase Access to Justice by Veronica Torok
El Salvador Unlocks Blockchain’s Potential to Increase Access to Justice
By Veronica Torok
El Salvador recently adopted Bitcoin as the country’s second official currency, in the face of fierce public opposition. This controversial adoption may have huge implications for the increasingly tech-fueled “access to justice” movement. Scholars note the access to justice movement has reached its “third wave,” in which proponents advocate for “a range of alternatives to litigation in court to resolve disputes and justice problems, as well as reforms that simplify the justice system and thus facilitate greater accessibility.” Many advocates look to technological innovation, particularly mobile apps capable of providing tailored legal advice, to facilitate these alternatives. The third wave recognizes that increasing access to justice involves more than simply improving the legal system. In addition, the movement “should focus on how individuals navigate a system (with both legal and non-legal components) that controls fundamental aspects of their lives—safety, shelter, family, and their liberty.”
Lack of money is a unifying element that touches each of these aspects, and through cryptocurrency, blockchain offers a potential solution. The issue of money has always been present in the access to justice conversation, which has largely focused on the huge costs of legal assistance and providing free and cheaper legal help to low-income individuals. In its third wave, however, the access to justice movement has begun to recognize that in addition to immediate assistance, helping these individuals increase their personal agency is also critical to expanding access to justice. Redesigning legal systems may be the best solution in the long run, but helping low-income populations build wealth that gives them more power within existing systems is an interim option.
Many people who struggle to navigate the legal system are also “unbanked” or “underbanked” and operate outside of formal financial systems that would help them manage and amass funds. The term “unbanked” refers to those who have neither a savings nor a checking account, whereas “underbanked” describes those who have bank accounts but use additional, often costly, third-party services such as payday loans, money orders, and check cashing and wire transfer services. Cryptocurrency, which can be securely transacted via mobile app, offers the unbanked and underbanked alternatives to using solely cash, which is easily lost or stolen, and paying high transaction fees for one-off services like check cashing. In countries like El Salvador, instead of having to cash a paycheck, for example, an unbanked person may now opt to be paid directly in bitcoin, which they can then save or spend.
Normalizing cryptocurrency may in turn pave the way to increased use of blockchain for non-monetary applications that will also expand access to justice. For example, nations like Georgia and Ghana are already recording land ownership using blockchain systems, which curb fraud by making property rights immutable and easily verifiable. Other jurisdictions use blockchain to record documents such as marriage certificates, which solves the problem of secure document storage and access that is often an issue for transient populations. Additionally, while blockchain-based arbitration platforms, such as Kleros and Jur, and courts, such as China’s “Internet Courts,” remain in their infancy, blockchain offers the possibility of resolving disputes online through secure, consensus-based platforms, an alternative for those who lack transportation to a traditional courtroom. Blockchain-based systems have potential to expand access to justice by offering a decentralized money management system to populations who formerly had access only to cash and by addressing other justice issues that impede low-income people’s ability to navigate the legal system.
While blockchain holds much promise for broadly facilitating access to justice, its primary use at present is to support cryptocurrencies. By enabling secure, remote financial transactions and currency storage, digital currencies provide the groundwork for the un- and underbanked to gain personal agency by building wealth, which will then enable them to navigate bureaucratic systems more easily. The possibility for cryptocurrency as a solution to the unbanked is huge: about 1.7 billion adults globally are unbanked. Although the U.S. has significantly fewer unbanked and underbanked residents than does El Salvador, where roughly 70 percent of the population is unbanked and many more are underbanked, these categories cumulatively still correspond to nearly a quarter of the U.S. population. Being unbanked or underbanked subjects people to higher loan interest rates and check cashing rates for one-off services, among other problems, and may cause them to miss out on benefits like government stimulus checks. Costs, travel distance, and required paperwork are common reasons that many of the world’s poor do not have bank accounts. Helping these populations use financial systems to their advantage is a critical part of increasing access to justice: having a bank account, for example, leads to financial stability and increased personal agency, and in turn, can help a person avoid legal issues such as bankruptcy altogether.
Embracing a decentralized cryptocurrency like Bitcoin offers a possible solution to many of the issues, including inability to complete paperwork, lack of transportation, and lack of funds to meet required account minimums, that prevent people from accessing traditional banks. Cryptocurrency advocates explain that cryptocurrency allows these populations “to create their own financial alternatives in an efficient, transparent and scalable manner.” Blockchain-based currencies like Bitcoin operate using a decentralized, peer-to-peer network, obviating the need for a central administrator or brick-and-mortar banks, although El Salvador has introduced ATMs that convert Bitcoin to cash in U.S. dollars, the country’s other official currency.
Blockchain, in brief, is a shared digital ledger that contains various types of data. Blockchain networks encrypt and distribute data across millions of storage points on computers with copies of the specific blockchain or “nodes,” to store sensitive information securely. In Bitcoin’s case, data for each new transaction is packaged into “blocks.” Each new block contains a cryptographic hash of the previous block, transaction data, and timestamps, which prove the transactions existed at the time the block was recorded. Using consensus rules, a network of computers around the globe performs mathematical proofs to verify the accuracy of new blocks in a process called “mining.” If, for example, all the mining computers agree that both Wallet A and Wallet B have legitimate funds to transact Bitcoin with one another, the network will approve and process the transaction. After the transaction is complete, the ledger automatically downloads a new entry recording the transaction to all the Bitcoin nodes, mining and non-mining, and the process begins again with the next batch of transactions. Every time a block is added, all Bitcoin miners must again verify and agree on what debits and credits have occurred during the entire history of the Bitcoin ledger. All computers running Bitcoin nodes then update themselves with the new, correct copy of the ledger. Blockchain secures digital financial transactions through both cryptographic hashes and its chain format: transactions cannot be retroactively modified without also modifying every subsequent block. Blockchain payment networks thus allow users to obtain, store, loan, invest, and otherwise transact cryptocurrency safely, all while bypassing traditional financial infrastructure.
Because of its complexity and relative novelty compared to nondigital forms of currency, however, Bitcoin is not widely understood. Of those using Bitcoin worldwide, one in three admits to not actually understanding how the cryptocurrency works. Given this general lack of understanding, are Salvadorans really equipped to navigate blockchain’s complexities? Rampant protests and technological failures of the government-sponsored Bitcoin wallet and ATMs designed to allow transfers of bitcoin to physical cash suggest they are not. Setting aside macroeconomic and political reasons behind El Salvador’s Bitcoin adoption, embracing cryptocurrency seems especially risky in a country where thirteen percent of youth do not complete primary school and sixty-eight percent do not complete high school. On the other hand, one could argue that Salvadorans don’t need to be prepared to use Bitcoin, and the government’s sink-or-swim approach is progressive, not just rash. The infrastructure is there: As of January 2021, El Salvador’s population of 6.5 million people had 9.47 million mobile connections, meaning the country had about 1.45 mobile phones per person. Further, for practical purposes, each bitcoin is essentially just a computer file that is stored in a “digital wallet” app on a computer or phone. Digital wallet apps allow Bitcoin users to conduct transactions peer-to-peer or via cryptocurrency exchanges; the average user does not have to be a tech-savvy Bitcoin miner.
Accordingly, the Salvador government is betting on its citizens’ ability to rise to the occasion. In partnership with the privately held Mexican cryptocurrency exchange Bitso, the government has created its own digital wallet, called Chivo Wallet. Unlike most other digital wallets, Chivo does not charge transaction fees for transactions between Chivo users, supposedly increasing remittance amounts from Salvadorans abroad. Chivo has a simple interface and a comprehensive website that instructs Salvadorans on how Bitcoin and the app work, plus a customer service live chat option. Simple videos on the app’s official website show Salvadorans the steps to download and register for Chivo using their national identify number. Additionally, extensive news coverage and homemade YouTube videos offer extra support for using the app. The Salvadoran government has also committed itself to further increasing mobile proliferation and has offered financial incentives and training programs to those who embrace Bitcoin. It aims for 39 percent of the population to download Chivo, estimating that Bitcoin can save Salvadorans $400 million annually in remittance-related fees and promote increased foreign investment in El Salvador. In recognition of the fact that many Salvadorans do not have reliable data plans, the Chivo app consumes data only during a user’s initial download and registration. Amidst fierce opposition, largely stemming from Bitcoin’s value volatility, the Salvadoran government appears firmly committed to normalizing the use of cryptocurrency by its citizens. Three weeks after Chivo’s launch, the government estimated that nearly a third of El Salvadoran’s citizens had used the app, though it remains to be seen how many will continue to do so.
Although the general population lacks formal education, the Salvadoran government is nevertheless catapulting its citizens into the use of blockchain technology. El Salvador is not alone in its pursuit of cryptocurrency. Countries like the U.S. are also considering development of their own digital currencies to increase financial flexibility and address the plight of the unbanked. While critics claim El Salvador’s implementation of Bitcoin was poorly handled and motivated by corruption, the country is now several steps ahead of the U.S. with respect to normalizing blockchain use. In a country like El Salvador, where personal remittances constitute nearly twenty-five percent of the GDP, the ability to conduct peer-to-peer international financial transactions quickly and cheaply without the hassle of traveling to a brick-and-mortar business, establishing a traditional bank account, or paying a wire transfer fee may significantly increase individuals’ financial agency. In a country like El Salvador, where personal remittances constitute nearly twenty-five percent of the GDP, the ability to conduct peer-to-peer international financial transactions quickly and cheaply without the hassle of traveling to a brick-and-mortar business, establishing a traditional bank account, or paying a wire transfer fee may significantly increase individuals’ financial agency. Yes, the transition may have been hasty and fraught with technological glitches and corrupt politics, but El Salvador is working through these issues at a time when cryptocurrency is not yet the norm and its citizens are not dependent on the system functioning well. As ongoing protests demonstrate, the transition may continue to be painful for a while. As Salvadorans grow accustomed to Bitcoin, however, this normalization of blockchain could pave the way for El Salvador to use it in additional ways that may further expand access to justice. As discussed above, this could include secure document storage, secure property ownership record-keeping, and dispute resolution, for example.
If El Salvador’s Bitcoin adoption succeeds, in contrast to most Americans, the average Salvadoran will soon become proficient with and accustomed to using blockchain technology. El Salvador’s move to Bitcoin represents one significant way to embrace the technological innovation that facilitates increased access to justice. In summary, this move is consequential to the access to justice movement for at least two reasons: first, it offers a fund management solution providing the financial foundation for unbanked and underbanked people to increase their agency. Second, it underscores the potential of innovative, blockchain-based technology to transform existing legal and bureaucratic systems.
 Riding the Third Wave: Rethinking Criminal Legal Aid within an Access to Justice Framework, Government of Canada Department of Justice, https://www.justice.gc.ca/eng/rp-pr/csj-sjc/ccs-ajc/rr03_5/p2.html (last visited Sept. 9, 2021).
 Lauren Sudeall, Integrating the Access to Justice Movement, 87 Fordham L. Rev. Online 173 (2019), https://fordhamlawreview.org/wp-content/uploads/2019/04/Sudeall.pdf .
 Emily Guy Birken, The Costs Of Being Unbanked Or Underbanked, Forbes Advisor, Jul. 28, 2020, https://www.forbes.com/advisor/banking/costs-of-being-unbanked-or-underbanked/.
 Bank4YOU Group, Cryptocurrencies — the perfect solution for unbanked people, Medium, Bank4YOU Group, Jun. 1, 2018, https://medium.com/@Bank4youGroup/cryptocurrencies-the-perfect-solution-for-unbanked-people-55a4baab9bd
 David Gerard, El Salvador’s Bitcoin Law Is a Farce, Foreign Policy, Sept. 17, 2021, https://foreignpolicy.com/2021/09/17/el-salvador-Bitcoin-law-farce/.
 El Salvador National Education Profile 2018 Update, Education Policy and Data Center, 2018, https://www.epdc.org/sites/default/files/documents/EPDC_NEP_2018_ElSalvador.pdf.
 Simon Kemp, Digital 2021: El Salvador, DataReportal, Feb. 11, 2021, https://datareportal.com/reports/digital-2021-el-salvador.
 Luis Esparragoza, Wallet de Bitcoin Chivo tiene más usuarios que algunos bancos de El Salvador, según Bukele, CRIPTONOTICIAS, Sept. 26, 2021, https://www.criptonoticias.com/comunidad/adopcion/wallet-Bitcoin-chivo-mas-usuarios-algunos-bancos-salvador-bukele/.
 Jeff Cox, The Fed this summer will take another step in developing a digital currency, CNBC, May 20, 2021, https://www.cnbc.com/2021/05/20/the-fed-this-summer-will-take-another-step-ahead-in-developing-a-digital-currency.html.
 Charlie Wells, Americans Still Don’t Understand How Bitcoin Works, Bloomberg Wealth, Feb. 19, 2021, https://www.bloomberg.com/news/articles/2021-02-19/Bitcoin-btc-and-cryptocurrencies-prices-surge-but-understanding-is-limited.
November 2, 2021 - Cryptocurrencies: Increasing Potential, But Still Risky by Luke Gruber
Cryptocurrencies: Increasing Potential, But Still Risky
By Luke Gruber
Cryptocurrency, or crypto as it will be referred to, is a term that encompasses a wide range of growing and varying designations. As defined by the U.S. Homeland Security Studies and Analysis Institute (HSSAI), it is a form of currency based on mathematics alone and is produced by solving mathematical problems through the application of cryptography. In this blog, I will be focused on the cryptocurrency Bitcoin primarily, but will at times discuss cryptocurrencies, in a broad sense of the term, and the legal considerations of their growing acceptance in financial markets.
What is Bitcoin?
The cryptocurrency Bitcoin was first introduced in 2009. Created by an unknown person or persons under the pseudonym Satoshi Nakamoto, Bitcoin is described as a peer-to-peer, decentralized virtual currency. Eliminating the need for trusted third-party institutions, such as banks and credit unions, it operates through peer-to-peer encrypted transactions between parties, that are confirmed by the Bitcoin network. The network is made up of individuals called "miners," who are rewarded for collectively maintaining and confirming what is called the blockchain ledger.
Although called crypto-currency, defining the contours of Bitcoin is not a clear-cut task. Because of its foundation of replacing trusted third parties with cryptographic proof of transactions, Bitcoin has been referred to as a protocol, classified as a commodity by some countries, and an asset or payment system by others. Consequently, since Bitcoin and cryptocurrencies lack a clear definition, I will be referring to Bitcoin, and cryptocurrencies in multiple ways, such as digital assets, virtual currencies, and method of payments.
While the technology behind crypto is a whole subject in itself, this blog will be primarily focused on the potential for Bitcoin and cryptocurrencies in modern financial markets and related legal considerations. I will be examining Bitcoin from a microeconomic perspective and its relationship between consumers and firms in comparison to established financial constructs. I will also discuss prospective usage as an entrepreneurial tool, the legal considerations of adoption, known negative factors, potential risks, as well as examine Bitcoin's viability as an investment.
Bitcoin vs. Traditional Financial Constructs
Since Bitcoin's creation in 2009, its rapid growth as an accepted virtual currency and digital asset can in large part be attributed to investors who view it as a possible way to circumvent established banking systems. On the global scale, many of these investors have been impacted by fraudulent activity, specifically credit fraud and identity theft. One of the significant draws of Bitcoin over traditional financial institutions is the protection from fraud it provides its users, due to the high level of decentralization; banks and other financial institutions maintain their security of funds and user information through a central operating system. In comparison, Bitcoin operates on highly decentralized, resilient, and redundant global network with a public cryptographically confirmed ledger of all transactions. Bitcoin and other cryptocurrencies satisfy the demand of a large and growing market of individual users and businesses who want to maintain a level of anonymity that is lacking in conventional currency systems.
In Bitcoin's pioneering blockchain digital ledger, the identity of users is private by default, but all transactions are public and transparent, which in turn allows Bitcoin to leave a trail -- a distinct difference from cash transactions. If the banking industry applied the transparent transaction accountability that Bitcoin's blockchain technology provides, it could potentially reimagine and recreate the banking industry by increasing its financial accountability. As stated in a study conducted by the Department of Forensic Science at University of Central Oklahoma, "Normal banking and credit systems already use some cryptographic protections but lack the convenience and privacy afforded through digital currencies."
Written in a coding language called ‘script,’ the Bitcoin network is in a digital language that permits a Bitcoin transaction to be executed upon the satisfaction of a condition, such as the satisfaction of a contract. By creating self-executing "smart contracts," once the stated conditions are met, it would remove the need for banks and credit agencies to act as contract enforcers. In addition, the blockchain's transparent public ledger acts as an incontestable accurate reference to resolve many transactional disputes that could potentially arise. This could potentially reduce the need for costly litigation, as well as minimize the cost of contract review. Moreover, Bitcoin transactions are much more cost efficient than those involving the traditional banking system; with the involvement of third-party institutions, fees are considerably lower.
On the international level, Bitcoin offers an alternative financial infrastructure to individuals and businesses, especially in parts of the world that lack technologically secure financial institutions. For example, during the Cyprus banking crisis of 2015, the demand for Bitcoin surged due to Cyprus's citizens fearing the failure of the country's banking system. This fear resulted in many investors transferring their wealth into Bitcoin holdings as a store of value. Additionally, since Bitcoin allows for the transfer of large amounts of capital electronically, it offers needed advantages to under-developed nations that do not possess sophisticated monetary systems, which in turn permits them to compete with much greater efficiency and fairness in world markets. Bitcoin also facilitates the cross-border transfer and accessibility of funds while traveling without the need for currency exchange. As noted in a study performed by Stanford University's Business Graduate School, "[o]ne individual can transfer Bitcoins to another anywhere in the world, without relying on counterparties or trust relationships beyond the trust in the software, and indeed without getting authorization to do so from any company or government.”
While there are clear benefits of not being required to go through a trusted third-party for the transfer of funds and conversion into a foreign nation's currency, the fear is that the use of Bitcoin will, in some cases, enable greater illicit activity. Although Bitcoin can digitally cross borders, finding a means to convert funds into hard currency, or finding vendors who accept Bitcoin can still present an obstacle to Bitcoin investors.
This, however, is starting to change, albeit slowly; several countries are beginning to pass legislation governing the use of cryptocurrencies. Most notably, as of September 2021, the nation of El Salvador adopted Bitcoin as a legal currency, requiring all businesses to accept Bitcoin as payment for services, alongside the U.S. Dollar. At present, the global outlook on new cryptocurrency laws is mostly positive.
Growing Acceptance at the Transactional Level
The steady rise of cryptocurrencies in recent years has caused a number of companies to recognize and adjust their business models towards accepting cryptocurrencies as a form of payment. Most notably, the online retail giant website Overstock.com has begun accepting over 60 different cryptocurrencies, including Bitcoin, Ethereum, and LiteCoin. Other notable businesses embracing the use of cryptocurrency include the global software company Microsoft, and satellite cable company, DISH Network. While these firms are already well established and highly valued, the significance of them adopting cryptocurrencies as a form of payment has had a huge impact on these currencies’ value.
It is, however, important to note that these crypto-embracing firms have conditioned their acceptance on the presence of intermediaries, such as Coinbase and BitPay, who agree (for a fee) to bear the exchange rate risk. These crypto-adjacent entrepreneurs have played a key role in creating opportunities for the widespread use cryptocurrency.
As observed in a study conducted at Aalborg University in Copenhagen on businesses adopting to crypto found that, businesses are able to greatly reduce the cost required of automated services that suffer from the high fees of credit cards, and thus reduce their overall operating costs. "A network which is subject to network effects, as the more people join it, the more value it has for its users. No currency, virtual or not, has any value unless people use it. And the larger the number of people that use it, the more powerful it becomes."
However risky it may be for businesses and entrepreneurs adopting cryptocurrencies as a form of payment, these firms accept them because they are reducing operational costs and increasing their profits. Whether intentional or not, through these actions they are announcing confidence in cryptocurrencies and positively reinforcing that the use of them as a form of payment is accepted. Many advocates and investors of Bitcoin see this as a validation of their efforts and what the future holds regarding the adoption of cryptocurrencies.
Risks & Regulation
While there are significant arguments for the recognition and adoption of Bitcoin and similar cryptocurrencies on the national level and international stage, there are considerable issues and risks that must be addressed. While the user anonymity aspect of Bitcoin is hailed by many cryptocurrency advocates and investors as one of its greatest attributes, it has been credited as accommodating digital black markets for purchasing illegal substances and illicit activity. The infamous dark-web illicit drug market, the Silk Road, which was shut down by the FBI in 2013, was most notably known for its acceptance of Bitcoin as a median of payment, due to its facilitation of user anonymity. Additionally, Bitcoin has been linked to usage by criminal organizations for means of money laundering because it is not subject to the Bank Security Act, which allows the tracking of transactions greater than $10,000 by government agencies. These illicit uses serve to reveal the most substantial risks to potential investors, and identify the areas of greatest need for new legislation to be enacted.
Investors conducting Bitcoin transactions on a cryptocurrency trading platform are faced with identical risks as if they were transacting on a banking institution's website, such as fraud, phishing, theft of virtual wallet, and remote hacking. The major difference, however, is that unlike the U.S. government backed banking institutions, most online cryptocurrency trading platforms currently are not supported or insured. This sets up investors to be particularly vulnerable when attempting to take high risks in purchasing a newly introduced cryptocurrency on a startup exchange. This lack of regulation, oversight and insurance that has led to multiple instances of large-scale digital theft of cryptocurrencies by fraudulent platforms, such as when one of the first cryptocurrency trading platforms, Mt. Gox, had $460 million worth of cryptocurrencies stolen by hackers in 2014. Investors lost everything because the platform was not insured or backed by any form of financial institution or government regulation. Investors who were robbed in that breach are still attempting, through legal means, to recover their losses from Mt. Gox. In an article published in 2018 by the Security & Exchange Commission, they warned potential investors that "many of the internet-based cryptocurrency-trading platforms [are] registered as payment services and are not subject to direct oversight by the SEC or the CFTC." It is also necessary to recognize an alternative potential risk of investing in Bitcoin, that instead of the government requiring regulation of platforms and trading, there will be laws enacted that ban or prohibit the use of certain cryptocurrencies. With the total market capitalization of cryptocurrencies currently over a trillion dollars, it is likely that when regulatory standards are enacted to encompass these platforms, investors of certain cryptocurrencies may experience some losses.
Cryptocurrencies are undoubtedly high-risk investments, but investors who are willing to accept that the while the volatility causes potential for great losses, there is also the potential for great returns. The high-risk and unpredictable nature of cryptocurrencies is due to a large part to still developing governmental regulation and pending legislation, but the COVID-19 pandemic has resulted in fast-tracking legislation to regulate a high number of cryptocurrencies on SEC-regulated platforms. As new legislation is enacted to regulate cryptocurrencies, other unrealized features, such as “smart contracts,” have the potential to positively change not only the business field, but the legal, medical and education fields. While remaining high-risk investments, the true value of cryptocurrencies perhaps will be seen in how they positively impact and change our current understanding and methods of business, law, medicine, and education.
 S. J. Robberson, A Bit Like Cash: Understanding Cash-for-Bitcoin Transactions Through Individual Vendors, Order No. 10607702, (2017).
 Austin Hill, Bitcoin: Is Cryptocurrency Viable?, CMC Senior Theses, Paper 902, (2014).
 Miguel Pereira, et al., Distributed Virtual Currencies – The Bitcoin Case, (2015). 10.13140/RG.2.1.1704.7206.
 Susan Athey, et al., Bitcoin Pricing, Adoption, and Usage: Theory and Evidence, Stanford University Graduate School of Business, Research Paper No. 16-42, (2016).
 The U.S. dollar has been the country’s national currency since 2001. David Robinson, El Salvador’s Bold Bitcoin Experiment Yet to Convince Banks, The Banker (Oct. 15, 2021, 5:05 PM), https://www.thebanker.com/World/Americas/El-Salvador/El-Salvador-s-bold-bitcoin-experiment-yet-to-convince-banks.
 Ryan Farell, An Analysis of the Cryptocurrency Industry, Wharton Research Scholars, (2015), h1p://repository.upenn.edu/wharton_research_scholars/130.
 Scott Schuh & Oz Shy, US Consumers’ Adoption and Use of Bitcoin and other Virtual Currencies, DeNederlandsche Bank, (2016).
 R.S. Madey, A Study of the History of Cryptocurrency and Associated Risks and Threats, Order No. 10686755, (2017).
 Paul Vigna, Crypto Investing Comes with a Big Risk: The Exchanges; Recent Hacks Show the Vulnerability Investors Can Face When Buying Speculative Tokens on Startup Exchanges, Wall Street Journal, (2018).
 Jay Clayton & Christopher Giancarlo, Regulators Are Looking at Cryptocurrency; at the SEC and CFTC, We Take our Responsibility Seriously, Wall Street Journal, (2018).
November 8, 2021 - Cybersecurity and the Professional Duty of Confidentiality by Sean Raible
Cybersecurity and the Professional Duty of Confidentiality
By Sean Raible
The public commonly does not know, or care, a whole lot about the American Bar Associate (ABA) Model Rules of Professional Conduct, except for one. That one rule of course is the rule of confidentiality. Rule 1.6(a) of the ABA Model Rules of Professional Conduct states that “a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).” Paragraph (c) continues, saying that “a lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”
Prevalence of Cyberattacks
What does this have to do with law and innovation, though? According to an article in the Harvard Business Review, cyber-attacks increased exponentially over the last year, with ransomware attacks increasing over 150% and victims paying attackers 300% more in 2020. Cyber-attacks can come in all shapes and sizes, from simple data breaches to ransomware attacks where a hacker steals information and won’t return it or will release it to the public unless some sort of demand is met. These issues are not small events, with 887.3 million people impacted by data breaches in 2019. Most of us have seen the headlines of large corporations being attacked even if we have not been impacted by these events ourselves.
While large corporations have been the main target for these large attacks, law firms are not immune to them. An article in Forbes from March, 2021 points out that law firms are becoming more attractive targets due to the type of work and the type of confidential data they house. The same article cites a report from the ABA that found that 29% of law firms reported a security breach in 2020, 21% were not sure if their system had ever had a breach, and 36% reported a previous malware infection in their systems. What is scarier than those statistics are the statistics related to the security tools implemented by law firms, with a general trend of less than half of firms using certain security tools. Based on this survey, 43% use file encryption, 39% use email encryption, 39% use two-factor authentication and only 29% use intrusion prevention and intrusion detection tools, among other things.
The Ethical Concern
All lawyers and law students know how serious a breach of the Rules of Professional Conduct can be, including suspension or revocation of a license. Lawyers and law students also know how important Rule 1.6 is and that if a client is going to recognize an issue, it is likely to happen with respect to that rule. The question then becomes, do the ethical obligations set forth in Rule 1.6 apply to cybersecurity?
I think it is overwhelmingly obvious that the answer to this question is a resounding yes. The text of the Model Rule 1.6 is quite plain and requires an attorney to make reasonable efforts to prevent inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client. There are certainly debates to be had about what exactly “reasonable efforts” means. Some may consider bare minimum cybersecurity measures as sufficient while others may argue that law firms should be held to a higher standard when it comes to cybersecurity. The ABA did weigh on this a bit, saying that an ethical violation may occur if a lawyer does not make reasonable efforts to avoid data loss or to detect cyber-attacks and that lawyers should consider developing an incident response plan with specific plans and procedures should a cyber-attack occur.
Any good lawyer should want to protect his or her clients and especially that client’s data. At a large firm that does big time mergers and acquisitions, there is troves of confidential data, plans, and information that hackers can gain access to. Once they have accessed that data, the possibilities are endless. The hackers could simply leak this data to the public, potentially ruining a company’s reputation and economic strength. Or the hackers could hold the data for ransom, requiring the company to then pay millions of dollars to get the data secured once again. Even at small firms with just a couple of attorneys, the danger is remarkably high. If hackers got into a small law firm’s technology system, they could once again steal all this data, but this time it’s more likely to hurt individuals. They could use the social security numbers, bank accounts, and trusts to wreak havoc on individual’s lives through identity theft or simply selling the data to the highest bidder on the dark web.
One high-profile example occurred during the spring of 2020. The BBC reported that the law firm Grubman Shire Meiselas & Sacks, a New York based firm, was hacked, and the hackers claimed to have 756 gigabytes of personal data. Among their clients affected were big time celebrities such as Sir Elton John, Lady Gaga, Madonna, Drake, Robert De Niro, and Lebron James, just to name a few. The data included extremely sensitive materials such as non-disclosure agreements, contracts, and other personal information.
The implications are frighteningly high, yet looking at the numbers mentioned above, it does not appear to be a high priority for law firms. The fact that only 43% use file encryption, 39% use email encryption, and 26% use full disk encryption seems to show that many of these law firms are not making “reasonable efforts” to secure their clients confidential information. This is even though no lawyer would willingly hand over a physical file about one of their clients to a thief.
Why Aren’t We Prepared?
The question then becomes, why are so few lawyers and law firms actually prepared to prevent and handle a cybersecurity breach when these incidents are happening at an ever-increasing rate? I think there are a few answers.
I think the first answer is quite simple: cost. Implementing a large-scale cybersecurity system can be expensive. Maureen Data Systems, a cybersecurity company out of New York, estimates that a cybersecurity system can take an additional 5-20% of what a company already pays for its information technology system. As a company, or in our case a law firm, grows, those numbers will obviously go up quite a bit. With the rise of working from home due to the COVID-19 pandemic, IT systems have had to grow, and thus so have the cybersecurity systems. It also can take time to prepare an adequate cybersecurity system. For a comprehensive plan to be implemented, a law firm cannot rely solely on its IT department to take care of it. The partners will need to be involved in identifying business critical functions and the highest value data. This all takes time, and in law firms, time is money. However, information from that same ABA survey mentioned earlier shows us that cost may not be the entire answer.
According to that survey by the ABA, the number of law firms who are purchasing cybersecurity liability insurance policies is increasing. Overall, 36% of law firms reported that they have a purchased such an insurance policy, up from 33% in 2019 and up from 26% in 2017. This is a clear acknowledgement by law firms that they are at risk of being attacked. It is also a clear acknowledgement by law firms that they are willing to pay for it, whether it is to payoff a ransomware attack to secure their data or to pay their clients should a suit arise from the security breach. So, the cost is not the only hindrance to law firms, if it is even a hindrance at all.
I think the biggest obstacle to law firms adopting full fledged cybersecurity protocols is a lack of understanding of the issue and a reluctance to embrace technology and innovation. As we have seen, the technology is out there for law firms to adopt. Whether this be document automation, automated document review, automated client intake, or any other myriad of possibilities, the technology is available. However, the people in charge of law firms have been slow to adopt these technologies. The reasons why are varied, but it seems to come down to an unwillingness to change the way things have always been done. When partners are unwilling to change the way things have been done, then it follows that there is no reason to change the way things have been protected.
I also think it has to do with a lack of education around cybersecurity and the risks posed. Again, while we have all seen the headlines of massive corporations being held ransom or having data stolen, I don’t believe that most of us really understand how it works or how it happens. With this lack of understanding, we are prone to complacency and believing that this won’t happen to me or my clients. However, the data tells us a vastly different story. As noted, nearly one-third of respondents in the ABA survey reported some sort of security breach at their firm, and another 21% of the respondents do not even know if they experienced such a breach. We cannot allow our lack of understanding, our complacency, and our busy schedules to prevent us from protecting our clients’ confidential information.
The solution to this problem is at the same time both simple and complex. It is not a quick process, but it is vital. A cybersecurity plan can be analogous to a business continuity and disaster recovery plan, and there is a quite simple 10 step process that can be adopted in order to implement a cybersecurity plan.
- Assemble Planning Team: This is quite a simple step and the best way to get the ball rolling. A firm simply needs to identify the people that need to be involved in planning what the cybersecurity system will look like. High-level partners, innovation officers, and IT directors should all be involved in creating the plan.
- Draw up the Plan: This part can be a little tougher because the planning team needs to create a list of all potential cyber-threats that can impact the firm and its clients.
- Conduct Business Impact Analysis: Once all potential threats have been identified, they then need to be analyzed. This analysis includes the likelihood of the threat happening, the impact each threat would have, and how to recover from it.
- Educate and Train: It is likely that each one of us has had to go through some sort of IT and security training when we started a new job, however, it was likely a bare bones lesson from my experience. But to truly protect the firm and its clients, this education and training needs to be ongoing and needs to be comprehensive so that everybody from top to bottom understands the risks and how to avoid a potentially catastrophic mistake.
- Isolate Sensitive Information: This one is fairly obvious, and is likely done to a certain extent already, but law firms need to be sure that their clients’ most sensitive information (social security numbers, internal corporate documents, etc.) is secured and that recovery of such data is convenient and easy should something happen.
- Backup Important Data: Should a breach occur, a firm wants to make sure that it still has access to its clients’ most important data, especially in the case of a ransomware attack where the hackers may have locked the firm out of its main server. Having the data backed up allows access to the information so the firm can still operate if it is being held hostage.
- Protect Hard Copy Data: While this step is not as important in a cybersecurity plan, hard copies should still be stored in a digital format in the same isolated, secure server that other sensitive information is stored.
- Designate a Recovery Site: Should a cyber-attack result in an entire data center being unusable, the firm needs to make sure that there is a secondary data center that will serve as a back-up to the primary site.
- Set up a Communications Program: Should a breach occur, a firm needs to be able to send out communications, both internally and to its clients and partners. This is especially true given the fact that the ABA believes that lawyers’ have an obligation to its clients after a cyberattack occurs.
- Test, Measure, and Update: Arguably the most important step of them all. In order to make sure that the system works, it needs to be tested repeatedly and consistently. This should include simulations of potential cyber-attacks so that the entire team knows how to respond.
As lawyers, we know the importance of our clients’ personal information, and we know the importance of protecting such information. The statistics show, however, that as an industry we are not doing a great job of proactively protecting this information. We not only have a professional business interest in doing so, but we have an ethical obligation to do so. As innovation in the legal world continues to grow, we need to make sure that our security systems are growing with it so that we can best protect our clients.
December 30, 2021 - New Technologies and the Problem Facing the Legal Profession by Josh Roometua
New Technologies and the Problem Facing the Legal Profession
by Josh Roometua
The legal profession is about to go through a period of profound change. As our society is transformed by rapid developments in technology, the way that we work and the way that we interact with one another will be forever altered. As we look to the future of the legal profession, we will see parallels with respect to the implementation of new technologies in other industries.
Technologies that are based on algorithmic determination, machine learning, artificial intelligence, and blockchain are already becoming embedded in the legal sector. These emerging technologies will substantially change the legal field by (1) forcing lawyers to understand these systems, and (2) by forcing lawyers to confront the moral dilemmas associated with these technologies.
Lawyers who will be practicing in the next decade will need to have a baseline understanding of emerging technologies being used in their fields of practice. To illustrate, blockchain technology enables the accurate verification of trusted information through computer connections, rather than leaving that task to the frailty of lawyer human error.
These advances in the development of new technologies will also impact clients’ businesses. All companies regardless of sector will need to be concerned with artificial intelligence, block chain, and other advanced technologies. Lawyers of the future will need to understand and have confidence around contemporary issues such as security, privacy, e-discovery, as well as blockchain, artificial intelligence, and machine learning. While no one expects a lawyer to be a programmer or a coder, clients will expect their lawyers to engage with these technologies and have a level of understanding in the subject matter specific to their field in order to give the specialized advice. This reality is not confined to one sector of the law.
I see the legal profession changing quite dramatically over the next ten to twenty years, with the most striking of these changes occurring in midsized firms. These firms will be competing against a host of growing technologically literate boutique firms. The demand for technology-savvy lawyers will likely result in the retirement many traditional lawyers who refuse or are unable to understand these new developments.
Emerging technologies challenge our existing legal frameworks and are forcing us to rethink how legal services are delivered. These new technologies also pose larger ethical and moral questions about how we want to shape our future. For example, we are all using and being subject to algorithmic determination every day and some of these instances are concerning. One such example is facial recognition and its inherent biases. Algorithmic securities trading provides another example; the speed at which trading can take place can trigger flash crashes well before any human being can react. One of the chief concerns we have as lawyers is the issue of transparency and the ways in which our relationship and our practice is affected.
As artificial intelligence algorithms, and more broadly, emerging technologies grow more advanced, it becomes much more difficult to see and understand their inner workings. The danger of opaque processes become more apparent as artificial intelligence decisions take on larger and more important tasks. For example, in the documentary, Coded Bias, we see the ways in which facial recognition has been developed with an inherent bias toward those with lighter skin tones because the system was not designed to recognize those with darker complexions.
Moreover, if the data sets used to craft artificial intelligence systems are developed during a specific time period, the algorithm will reflect the biases of the architects during such time frames, and we may be blind to these biases until history points them out down the road. We must ask ourselves; do we want to set in stone the biases from the past to dictate our interpretation of the future? We could start by asking ourselves what purposes biases serve and do we need them in our systems?
Presently there are no universal professional standards for addressing bias in data science, raising further concerns about our levels of confidence in the use of algorithmic systems. This is particularly pertinent in legal contexts, because currently it is the Wild West out there. Leaders in the development of private sector standards are Microsoft and Google. But while they have made a start toward self-regulation, they have not gone far enough. These self-regulatory initiatives are not subjected to any external or objective check and balance programs, meaning ethics take a back seat when developing these systems, and are even more clandestine when people and businesses interact with them.
Questions of liability are also raised in the context of big data, cloud computing, and autonomous systems, provoking questions surrounding security, data privacy, and fundamental human rights. Meanwhile, artificial intelligence and social media challenge the way we value our work and how we value each other. We find validation in the numbers of likes we receive, and exchange face to face interaction for an emoji. This system that markets itself as a tool for connection, ironically leaves us feeling less connected. Thus, begging us to ask the question, when talking about automatous systems or artificial intelligence does liability lie with the architect of these systems, the companies who use them, the data firms which house the data in which these systems are reliant on, the companies who collected the data, or someone else? To take things even further than just liability, the global distribution of data centers, data sources, and intelligent systems also means that there is limited control of data and there are extensive consequences when so many of these legal issues will be in international jurisdictions.
The solution to these problems with emerging technologies may be found in the creation of a neutral platform for lawyers, technologists, academics, policymakers, ethicists, and government to start to address these challenging ethical issues. My proposed solution to this would be a model that acts like a legal technology incubator. This incubator could examine the impact of technology and Big Data on our everyday lives and ask the question of whether it is ethical fair and free from bias and determine who is going to be liable if an algorithm proves to have negative or harmful consequences.
It is also important to explore where the roadblocks are and where the opportunities lie. The identification of unmet legal needs and barriers to access to justice is essential. We must also how technology development can best serve ordinary people, while also being accessible to the more vulnerable end of our society.
I firmly believe that access to justice does not always necessarily require access to a lawyer. By creating accessible technologies, we can ensure that people are better equipped to help themselves. In this way, we can get to a point that hopefully allows self-represented parties to resolve their issues or avail themselves of professional help and support for their particularly complex legal issue. I see this working most effectively in family law – especially pertaining to regular family matters such as divorces, executors, estate, and asset planning.
An interview with a self-represented party in a courthouse confirmed my instinct. This gentleman noted the difficulty he was having as the executor of her estate in obtaining his mother’s death certificate. This man expressed frustration with the legal jargon that was making the process much more difficult than needed. If we think of this example in context to the proposed solution, we can see how emerging technologies in form of a system that allows an individual to fill out preliminary questions, that spits out an automated response, would greatly improve this issue. Think Turbotax for familial matters.
In addition to this example, the entire purpose of my proposed incubator set up is to ensure that this is much more open sourced and that lawyers from any walk of life can engage, support, influence, and co-create the development of the products and services that are going to be useful in the future. It is an opportunity to build a community that can help to demystify technology because this is a real challenge for all lawyers. New technologies are often avoided by risk-averse lawyers, but if we can get lawyers to see the benefits that come from using these technologies, they will be better able to understand the way is which this streamlines their practice. An example of this efficiency can be seen in contract review. Currently it should not take weeks upon weeks to review a contract and do due diligence because it still allows for a margin of error. This could be avoided by implementing contract review systems, saving both time and money. Additionally, by automating this process, lawyers will be better able to enjoy the interesting part of their work and have a forward-facing relationship with clients from day one.