The Future of Law
By Jim Calloway
There has been a lot written and said about the future of law. It is very interesting to observe how many of those future trend predictions are now coming to fruition. So, despite the danger of possible embarrassment risked with predictions and prognostications, let’s talk about the future of law.
One prediction I can make without concern that it might not occur is most lawyers will be operating from digital client files in the very near future, if they are not already. The time-saving efficiencies and business continuity benefits from using practice management software tools and digital client files are too compelling to ignore. Most large law firms have already made this adjustment and, if the number of inquiries we receive are any indication, many smaller law firms are now doing so as well.
Another safe prediction is that cybersecurity concerns will be an increasingly serious matter for both law firms and businesses of all kinds. There are many resources for lawyers to obtain information on good cybersecurity practices.
BLOCKCHAIN, BITCOIN AND CRYPTOCURRENCIES
I do recall that day years ago when I seriously considered whether I should buy a few bitcoin just to see how it worked. The price was well under $100. I had occasion to think about that last year when the price of bitcoin rose to $5,000 and then $10,000. The value of bitcoin is so volatile that it may still not be considered a “safe” investment.
Bitcoin is the most well-known cryptocurrency. Cryptocurrencies are implemented by a technology called blockchain. Mention blockchain and many people have the same response, “what’s that?”
A blockchain … is a continuously growing list of records, called blocks, which are linked and secured using cryptography. Each block typically contains a hash pointer as a link to a previous block, a timestamp and transaction data. By design, blockchains are inherently resistant to modification of the data. Harvard Business Review defines it as “an open, distributed ledger that can record transactions between two parties efficiently and in a verifiable and permanent way.” For use as a distributed ledger, a blockchain is typically managed by a peer-to-peer network collectively adhering to a protocol for validating new blocks. Once recorded, the data in any given block cannot be altered retroactively without the alteration of all subsequent blocks, which requires collusion of the network majority.
Bitcoin is a digital currency that does not depend on banks or any government. That concept will sound scary to some individuals and very comforting to others, but blockchain powers and will power much more than “just” digital currency.
Blockchain and the Law: The Rule of Code is a book to be published in April. The authors are Primavera De Filippi, a researcher based in Paris and a faculty associate at the Berkman Center for Internet & Society at Harvard Law School, and professor Aaron Wright, director of Cardozo Blockchain Project and Tech Startup Clinic at Cardozo School of Law. The authors note that disintermediation – a blockchain’s greatest asset – avoids critical regulation, potentially undermining the capacity of governmental authorities to supervise activities in banking, commerce, law and other vital areas.
Contracts are typically, as we lawyers say, “reduced to writing” on paper, but society is becoming more accepting of contractual agreements that are not printed on paper (e.g. every Amazon transaction). Smart contracts are coming to the business community and therefore into the lives of lawyers who advise businesses.
A smart contract is a contract that will be written in computer code rather than on paper. These contracts will be self-executing. A contract may be self-executing by combining it with various blockchain tools including payment avenues through bitcoin or another cryptocurrency.
One blockchain tool would verify shipment and receipt. A different tool might provide for random selection and testing for quality control.
When the contract is executed, funds are immediately escrowed, and the contract process will be underway. Funds would only be dispersed as the terms of the contract are verified by interlocking blockchain connections. Breach of the contract would still be possible. Deadlines might not be met or the quality control testing could reject nonconforming merchandise, but that breach would be handled under the contract’s self-executing provisions relating to cure or default. A successfully completed smart contract would be executed in a manner that would be impossible to contest since the blockchain-linked provisions.
Lawyers will have a lot of questions and concerns about smart contracts, but lawyers and coders will be the ones who develop smart contracts. Corporate clients will pay a lot of attention when they learn there cannot be any post-contract litigation with smart contracts. Development of these tools is not mature yet, but there is a huge potential demand and many smart people are working on this.
LIMITED SCOPE LEGAL 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.
Helping the self-represented will be an area of future growth for lawyers in my view, even though many observers see it as an area where services should, and will be, provided by form-fillable commercial websites and others without a law license.
Lawyers have traditionally been “full-service” providers, and the idea of providing limited scope services takes a bit of contemplation. My view is simple. Lawyers are the best and most qualified individuals to do legal work, so why should they avoid helping those who cannot afford or do not wish to have full scope legal services with their legal problems? This is an evolving area. The OBA/CLE program “Delivering Limited Scope Services Effectively and Safely” is available on-demand at www.bit.ly/LimitedScope.
DIFFERENT TYPES OF DISPUTES AND DIFFERENT WAYS TO RESOLVE THEM
An Oklahoma lawyer recently encountered a novel situation. A potential client had sold a big-ticket item to someone via eBay. Payment was by credit card, and the item was shipped and received. Subsequently, something happened that severely damaged the item. The buyer complained to eBay, and the transaction was reversed. This would appear to be a very unjust result.
When I first started practicing law, this would have been a straightforward legal representation. If the seller received payment by check and the check had cleared, then it would’ve been up to the buyer to take the next step by filing a court action. If the buyer successfully stopped payment on the check, then the seller would either sue to collect on the check or consult with the district attorney’s office to see if this was a criminal violation they would be interested in pursuing.
Today this particular situation is more complex. eBay has a dispute resolution center and both sellers and buyers have agreed to some clickwrap terms of service that may impact their rights. Timely notice to a credit card processor about a chargeback to preserve one’s rights is very important. If the payment had been made via PayPal, then PayPal has its own resolution center.
In this situation, the lawyer will be best served to initially use internet searching rather than traditional legal research. A search will return many results, and the lawyer will then have to review online posts and consumer guides. The lawyer may have no idea of the credentials of those who wrote these guides, and we are trained not to rely on sources we do not know to be authoritative, but reading various items gives one a good idea of how to proceed and also reveals that there are many, many eBay disputes. eBay is said to resolve around 60 million disputes per year globally. After some research for this column, I now wonder how many lawyers currently advise clients about eBay and other e-commerce disputes as a significant part of their practices.
General Motors announced at the end of November 2017 it will begin mass-producing fully autonomous electric cars by the end of 2019. A GM official stated that a new GM ridesharing service competing with Uber and Lyft could ultimately be bigger than its current business of simply selling cars.
My personal opinion is that retirees will be early adopters of ditching car ownership in favor of autonomous ride hailing services. Someone who has to commute to work every day may be reluctant to depend on a ride hailing service for some time, but as autonomous vehicles prove dependable and start replacing traditional automobiles, the idea of paying a purchase price, maintenance, insurance, tags and repairs as opposed to using an app on your phone to cause a vehicle to appear in your driveway will become very inviting to many. I also believe that older citizens will soon prefer the idea of boarding an autonomous vehicle instead of getting in a taxi with a stranger.
Consider for a moment the infrastructure that has been created about automobile liability insurance and automobile negligence cases. There are many who still recoil at the idea of self-driving vehicles, but on-the-road experience so far indicates that automobile accidents and particularly fatalities will be enormously reduced with a driverless fleet of cars.
A significant amount of spending on legal services today is related to accidents and injuries related to automobiles. This change in society will change the career path of many lawyers and that is without even considering other consequences such as impaired and intoxicated drivers being removed from behind the wheel.
There are a lot more trends to discuss. There have been many articles written on whether artificial intelligence will replace attorneys. My opinion is there will be many attorneys using artificial intelligence tools to work more efficiently, but, for most lawyers, the label “artificial intelligence” is not as useful as appreciating that increasingly smart machines will do more of our routine and repetitive tasks in the very near future, but lawyers have to appreciate and install these tools. E-discovery is now done through predictive coding tools. Analytics of judicial rulings will emerge as one tool to assist in predicting how the judge might rule.
The world keeps changing. Our tools will evolve, but lawyers’ commitments to represent their clients to the best of their ability and assist their clients with solving their pressing problems will be unchanging.
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 -- January, 2018 -- Vol. 89, No. 2