Management Assistance Program

Artificial Intelligence and Everyday Law Practice

By Jim Calloway

Artificial intelligence (AI) will be the focus of the 2019 OBA Annual Meeting Thursday CLE and luncheon in November. It is quite amazing how quickly AI has moved from the legal tech crowd to a mainstream subject for lawyers. Not many years ago most lawyers would have believed that AI tools would never impact their lives. No doubt, many still believe that.

For many practicing lawyers, AI made its first appearance with document review.

Let’s take a quick look at recent history. Discovery in litigation used to almost exclusively involve getting businesses and individuals to provide sworn depositions and turn over paperwork they held. Sometimes the parties held the records and sometimes a third party held the records, such as a health care provider. When computers entered the workplace, many more documents were generated including massive numbers of emails.

Emails were quick and intimate. People put many things into emails that would never be placed into an official business record. Sometimes the emails contradicted an official business record and sometimes they contained other important evidence, but how do you examine thousands and then tens of thousands of emails? For some smaller cases the cost was too high, but larger firms with larger matters hired squadrons of lower-paid contract lawyers for document review – spending hours reviewing emails to flag ones the litigators would review.

Document review was supposedly low-stress legal work, but it was also mind-numbing work with no potential career advancement, which was its own kind of stress. Document review paid the bills and provided a flexible work arrangement, but even as the lawyers flipped through email after email, others were wondering if technology could do it better. There were twists and turns, court rulings and many different tools and theories along the way (I recall one year it seemed that half the vendors at ABA TECHSHOW were e-discovery tools), but a consensus has developed that technology-assisted review (TAR) powered by AI is a more efficient method of processing volumes of digital documents in most cases. Today’s tools utilize machine learning for even more accurate results.

As TAR emerged it seemed that every legal publication ran some story along the line of whether AI would be taking away jobs from lawyers. After all, there are many less lawyers doing document review today, but there are also many more lawyers with expertise in all phases of e-discovery working with powerful analysis tools. It is similar to the story of automaton in manufacturing – the more routine a task, the more likely technology will be doing it at some point. However, technology also opens new roles and opportunities for those who learn new skills and embrace the change.

Today, AI tools are doing more tasks that seem like sophisticated legal work. The OBA has recognized CaseText as a member benefit. It is a powerful and fascinating tool. Upload a brief or complaint into CaseText’s artificial intelligence search, CARA, and it will locate cases on the same facts, legal issues and jurisdiction as that matter. This past summer other brief review tools were announced. Legal technology journalist Robert Ambrogi noted on his LawSites blog the announcements of new brief review tools from Thomson Reuters and Bloomberg Law. As he noted, that technology is now becoming mainstream. Will due diligence soon include processing your brief and your opponent’s brief through one of these tools before your work is finalized?

Earlier this year, the ABA Intellectual Property Law Section published AI and the Young Attorney: What to Prepare for and How to Prepare. This is a great read for lawyers of all ages. The authors view AI as “a substantial threat to (but not the end of) the current legal model.” I’m not as alarmed but do believe lawyers ignore AI at their peril. I do agree that young lawyers should focus on becoming technologically proficient and paying attention to “the human element” will be critical for success. Solving people’s problems, whether in the business or personal context, will remain the most rewarding part of law practice.

Prediction of judges’ rulings based on data analytics is another AI development. While judges understandably are skeptical of this class of tools, we were all shocked when France recently banned the practice and adopted criminal penalties for those who would dare to publish judicial data.

The OBA Annual Meeting is a good opportunity to learn from Fastcase CEO Ed Walters, who will be the Thursday CLE and luncheon speaker. He is also an adjunct professor at the Georgetown University Law Center and at Cornell Tech, where he teaches The Law of Robots and The Law of Autonomous Vehicles. Not only were those topics not offered when most of us were in law school, but they were not even imaginable outside of science fiction when we were in law school.

That’s how technology is changing the world – for better and for worse. It brings challenges and opportunities.

After all, while those lawyers doing document review back in the early days were not the most highly compensated lawyers, an electronic discovery expert today has a powerful and very marketable skill.

Paying attention to where AI is today will have a significant impact on your career in the future. I hope to see you at the 2019 OBA Annual Meeting.

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, 800-522-8065 or jimc@okbar.org. It’s a free member benefit!

Originally published in the Oklahoma Bar Journal — September, 2019 — Vol. 90, No. 7

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