The Changing Practice of Law
By Jim Calloway
There are rapidly occurring changes in the practice of law. Some of these are part of general changes happening in society and the business world, others are specific to lawyers. I’m certain the reaction of some lawyers reading about law office technology in this issue of the Oklahoma Bar Journal would be to look back fondly on the day when a good legal assistant, a telephone line and an IBM Selectric typewriter set the standard for law office management and technology.
The impact of technology on the practice of law cannot be denied. I can confidently make the prediction that technology changes are going to have a greater impact for lawyers in the future than the changes that have happened so far.
In his column for this Oklahoma Bar Journal, OBA Executive Director John M. Williams reminds us of the day not long ago when lawyers received an advance paper copy of a court opinion in the mail, often more than a week after the opinion was issued. At that time, the practice was state-of-the-art in legal information delivery. Using our Oklahoma Supreme Court’s website, OSCN.net, or another resource to read a court opinion immediately after it is issued is so commonplace today that we don’t even consider what a remarkable advance it is.
OBA Practice Management Advisor Darla Jackson discusses practice management software tools in her feature story. Many of us who advise law firms now deem these tools an essential in organizing the flow of information in a law office.
Let’s briefly cover some other changes and what they mean for practicing lawyers today. Some are technology driven, some are not.
LIMITED SCOPE SERVICES
With the July 19 adoption of District Court Rule 33 Limited Scope Representation, lawyers now have clear guidance that they should disclose to the court any time they are helping self-represented parties prepare pleadings or other documents for filing or presentation to the court. Other documents might include helping a small claims plaintiff prepare a summary of damages with attached receipts to expedite their small claims hearing. Lawyers should also include the phrase “no appearance is entered as counsel of record,” on a document filed with the court if they do not wish to enter an appearance.
If one drafts a petition for dissolution of marriage, it is important to include a signature block with the name and address of the self-represented litigant in case things do not go as planned and the other side hires an attorney to file an answer. The lawyer will want to advise the self-represented litigant that if they file this, they have an obligation to pick up their mail, including certified mail, until the case is completed. The attorney should also retain a signed acknowledgment of that advice as part of their records.
By the time you receive this bar journal, we will have completed our first OBA CLE program on “Delivering Limited Scope Services Effectively and Safely.” This program will be available as an on-demand webinar and will be provided as an encore webcast in the near future.
Lawyers have a long tradition of representing those who cannot afford legal services. The OBA Oklahoma Free Legal Answers and Oklahoma Lawyers for America’s Heroes programs are two of the ways volunteer lawyers serve the public. Limited scope services provide a different way to serve the public – where an individual who can pay something for the legal services does so and with a planned process, the lawyer can still realize a profit, although often less than from a lawyer’s other client matters.
CERTIFIED COURTROOM INTERPRETERS
Growing diversity among Oklahoma residents has increased the need for certified courtroom interpreters. Are you aware there are two levels of court room interpreter certification recognized in Oklahoma courts? These are certified courtroom interpreters and registered courtroom interpreters, credentialed by the Board of Examiners of Certified Courtroom Interpreters. In addition, the board maintains a list of provisional status interpreters. This is important for lawyers to know if a language barrier impacts one of their litigation matters. There also could be uses outside of the courtroom. This represents an opportunity for those who might find being an interpreter as a rewarding potential vocation or avocation.
The Registry of Courtroom Interpreters, details about the program and many downloadable forms are available at www.oscn.net/static/forms/aoc_forms/interpreter.asp.
If you linger very long on a business’s webpage, a pop-up window will appear with a picture or icon of a smiling face asking if you need any help. Some may not be aware that if you respond, you’re most likely interacting with a chatbot, a piece of software that specializes in interacting with people. Depending on your query, the chatbot may connect you with a sales representative, but there are also certain inquiries the chatbot will respond to on its own.
A lawyer might think they would never use a chatbot, but a company named x.ai thinks differently. X.ia provides a chatbot named Amy (or Andrew) to help you with scheduling. Amy then takes care of all of the back and forth via email, checking in with you if needed, until an agreement is reached and Amy schedules the appointment for you. If someone has to cancel and reschedule, Amy will handle that as well. You can see various examples of other interactions at x.ai/how-it-works.
There are now several companies offering these types of services and we are starting to see online articles comparing and reviewing various services. Some are AI-powered and some are more basic, such as designating several hours each week as open and providing a place where clients can pick their desired meeting time and sign up online.
ARTIFICIAL INTELLIGENCE AND MACHINE LEARNING
We’ve seen a lot of online essays about robot lawyers and artificial intelligence (AI) threatening our future employment. One thought I’ve seen circulating the internet is that it’s only AI until you understand it and then it is just software. There can be no doubt that some of the advances in AI are most impressive.
When PC Magazine publishes an article titled “The Best Contract Management Software of 2017,” referring to a task that was often the bulk of the work handled by corporate legal departments, we should at least pay attention. But that just reflects the basics of technology related to contracts. Today, no one would think of managing dozens of contracts without at least using an Excel spreadsheet or database.
There are now AI tools that analyze contracts. That is remarkable. What sounds like science fiction, or maybe a threat to many lawyers, will one day be a standard operating procedure, at least for major complex contracts. The lawyer completes the contract and processes it through an AI analysis. The software responds with “Is the client going to do business in the EU? If so, then…” or “The data sharing in paragraph 45 isn’t specified to be HIPAA-compliant. Should it be?”
Whether a machine reading your contract and providing suggestions sounds like an improved client service or threat really depends on your perspective, but most lawyers will believe better work product is a good thing.
EMAIL AND SOCIAL MEDIA SPAWNS E-DISCOVERY
Whether it was around the often-cited office water cooler, telephone calls or just general office chitchat, there used to be a lot of interoffice and intercompany communications that were undocumented and sometimes completely forgotten.
Today with the pervasiveness of email, e-discovery may reveal every detail of a year-old email conversation that all of the parties may have forgotten, or wish they could forget. Plaintiff’s counsel in a sexual harassment case may learn which inappropriate joke the accused harasser also forwarded to his supervisor and what the response was. While e-discovery requests are often much broader than just email, the evidence gleaned from email review makes e-discovery mandatory in certain types of cases.
A good outline of a lawyer’s ethical duties handling e-discovery and electronically stored information can be found in The State Bar of California formal ethics opinion CAL 2015-193. That opinion notes:
Competency may require even a highly experienced attorney to seek assistance in some litigation matters involving ESI. An attorney lacking the required competence for e-discovery issues has three options: (1) acquire sufficient learning and skill before performance is required; (2) associate with or consult technical consultants or competent counsel; or (3) decline the client representation. Lack of competence in e-discovery issues also may lead to an ethical violation of an attorney’s duty of confidentiality.
The tools of e-discovery are evolving too, with many more that are cloud-based. I have asked one of my colleagues who is well known nationally as an e-discovery expert, Tom O’Connor, director of the Gulf Coast Legal Tech Center, to give us an overview of the tools available today, including those that make sense in smaller cases. “The Changing Face of Electronic Discovery Tools” will be an OBA CLE-produced webcast broadcast on Sept. 15. Mr. O’Connor was the co-author of a book for the ABA that was published several years ago and titled e-Discovery for Small Cases. I understand he is working on a new edition.
Social media has created a number of situations where discovery of deleted or hard-to-find material is critically important.
The business of law is changing. All businesses are facing change fueled by technology advances. With all the change happening around us, our goal is still to serve our clients and protect the rule of law. Some things shouldn’t change.
Mr. Calloway is OBA Management Assistance Program Director. Need a quick answer to a tech problem or help solving a management dilemma? Contact him at 405-416-7008, 1-800-522-8065 or jimC(at)OKbar.org. It's a free member benefit!
Originally published in the Oklahoma Bar Journal -- August 19, 2017 -- Vol. 88, No. 21