STANFORD, Calif. — At the annual CodeX FutureLaw 2016 conference, hosted by Stanford Law School’s CodeX center, legal tech was on trial — literally and figuratively.
The tone was set very well by Jim Sandman, president of the Legal Services Corporation (LSC), who spent an hour-long session scolding the collective legal services industry for the sorry state of justice in the US, and lamenting the slow pace of change.
But this wasn’t your average rant about lawyers and the legal services industry. This was a comprehensive catalog of industry to-dos and not-quite-done-yets, delivered with a refreshing specificity.
In fairly blunt terms, Sandman started off with the flat assertion that the legal system is simply not working. It’s “not pretty” for people who can’t pay for legal representation, he explained, but it’s not particularly great even for those with the means to pay. It’s inefficient and too expensive.
At the heart of much of the inefficiency is a technical infrastructure stuck in the 20th century, he added. Courts are overburdened by self-representing litigants, and the processes don’t work very well for them — it’s a system designed by and (more importantly) for lawyers rather than litigants, Sandman noted.
Impediments to Better Access to Justice
He then rattled off 10 impediments that are thwarting better access to justice. What’s notable here is Sandman’s recognition that there is not a single problem, and therefore no single, silver-bullet solution. Rather, there’s a complex and interrelated set of barriers that make legal assistance difficult to obtain for many people. His list includes:
- A fragmented system that disperses authority across many courts and levels of administration. This has practical consequences such as inconsistencies in simple things like forms, which can vary from court to court, and even from judge to judge.
- Insufficient capital to support innovation. This is a pervasive issue — it affects law firms whose partnership structure pits capital investments against annual partner draws, as well as underfunded court systems and even the LSC itself.
- The profession’s still-predominant pricing model — hourly rates — that actually encourages inefficiency.
- A law firm structure that disperses power and makes decision-making unnecessarily complex and slow.
- A legal system based on precedent that deters innovations such as predictive coding in discovery, which has faced a long battle for acceptance.
- A legal education system that gives graduates virtually no grounding in management, customer services or technology. No service training in a service profession!
- A pervasive resistance to systems-thinking, in favor of a focus on each case as a unique and custom event.
But no crisis is without opportunity. Sandman was equally clear that there are a number of potential levers of change and potential change agents which, if tapped, could begin to improve the game. Putting the whole burden on lawyers and technologists, he argued, was too restrictive. Among the outside agents he identified:
- Courts and court administrators are interested and motivated to modernize their operations. A number of states courts, for example, have administered statewide portals to guide consumers through complex legal processes, alleviating some of the complexity and fragmentation those consumers face.
- Funders of civil legal services organizations can step up. In Florida, the state bar has required a single practice management system as a condition for funding legal aid organizations.
- Regulators and bar examiners could start requiring tests in other competencies such as technology skills.
- Members of the legal media needs to start ranking firms by use of technology, not just by profits.
- Legal academia needs to help — Sandman called out Georgetown Law and Chicago-Kent College of Law as two law schools that have stepped up to the challenge and made skills other than legal doctrine part of their curriculum.
- Finally, he called on state legislatures to take action where the legal industry won’t — compelling reforms where self-regulators won’t go.
Sandman also specifically noted that the most powerful interest group in the industry — the American Bar Association — didn’t place on his list of possible change agents. He specifically called out the recent debate on possible relaxation of rules for limited license practitioners, like the experiments going on in Washington state and elsewhere, as an example of the ABA hindering change and reform.
But that wasn’t the only session that in one way or another also put the industry’s progress on legal tech to the test. Other highlight sessions included:
- Later in the morning, Eddie Hartman of LegalZoom laid out the background arguments for and against a UK-style Alternative Business Structure (ABS) format for legal practices. ABS, which has been a possibility in the UK since the Legal Services Act of 2007, allows non-lawyers to own legal practices. LegalZoom has taken advantage of this recently in its acquisition of a law firm to complement its online legal forms service.
- The debate about the pace of change in the legal industry took a semi-serious turn after the lunch break, when legal technology itself was literally put on trial in a moot court session set in the year 2020. Plaintiffs, represented by Sam Glover of Lawyerist and Keith Lee of Associate’s Mind, charged that legal tech companies’ claims that they would revolutionize the legal industry amounted to fraud and false advertising. The defense, represented by Casetext’s Jake Heller and Pablo Arrendondo, did their best to assert that legal tech has, indeed moved the needle and is changing the industry. The judges never reached a verdict, but the lively back and forth in the mock courtroom on stage showed there is plenty of healthy debate about just how far and how fast technology alone is moving the industry.
This is Part 1 of a 2-part report on the CodeX FutureLaw conference. Part 2 will review some of the sessions that focused on specific areas where change and reform is progressing: Cognitive computing, computational law, and e-government.