Lawyers should learn about legal technology because it is our best hope for retaining control of the law.
Law firms have been slow to adapt to the modern practice of law — a practice characterized by a rapidly growing and changing body of regulation; continuous innovation in business models and legal structures; increasing internationalization, jurisdictional conflict, and attempts at comprehensive private ordering; and the exponential growth of potential evidence in the form of email, documents, messages, and other data.
There are parts of law firms’ business that law firms are not especially good at right now. Finding evidence in ever-growing piles of data is one of them. This has created an opening for specialized services firms, not run like law firms or by lawyers, who are encroaching on traditional areas of legal practice. These firms have had success precisely because they are better in many cases than the lawyers they replace, in quality, in value, or in both.
But can law firms let go of their role in finding evidence? The ultimate responsibility for wrong advice or bad outcomes that results from incompetence in finding evidence rests with lawyers. It is we who ultimately know what to look for — the facts that are relevant to the legal strategies we are implementing. It is we who ultimately know what advice should follow from the facts we see, both tactically in the context of a particular dispute and strategically in the context of legal compliance and achieving organizational goals through law. Lawyers need to be able to dive into the evidence to apply the law correctly.
The model, already prevalent, in which the client hands its litigators a packet of evidence selected by the client itself or by some third-party service provider is deeply disturbing because it distances experts in the law from the facts that inform their legal judgment. In place of legal experts looking at the facts and making legal judgments about what to explore and where to probe further, there is some mediated form of communication of that expertise; the surgeon tells her nurses where to cut and what to look for instead of performing the operation herself.
This model has lawyers abdicating more and more of our role as gatekeepers to the law to outside non-lawyer, non-law-firm consulting or specialist investigative organizations or to house-counsel organizations that ultimately report to nonlawyers. The effect is to cabin what lawyers do into applying legal knowledge to an assembled body of fact, instead of lawyers’ traditional role of driving the assembly of the body of fact, of driving everything that goes into the application of their legal judgment. Our negligence in adapting to changes in the practice of law has created an opening for companies built around process and technology to fix what we’ve done badly in ways that appeal to clients because of their efficiency. The risk is that these companies will entirely eclipse the lawyer’s role in developing the facts.
Lawyers, aided by great tools, can put a stop to this. Disco’s competitors in the ediscovery space do not have a view about this, or their view favors enterprises and the new generation of services companies over law firms. At Disco, we do have a view, and our view favors law firms. We believe in the law and the primacy of lawyers and law firms in driving the application of the law. We understand the problem that the enterprise has had with law firms, the expense and inefficiency of outmoded approaches to evidence that haven’t scaled with modern data. But we do not believe it is too late for law firms to master the tools and processes that can handle modern data. This is not to say we don’t sell Disco as a tool for services companies that compete with law firms; we do. But we ultimately hope for a world where the tools and processes used at these companies come back into the law firm, or at least a world where lawyers are mediating and driving the relationship between clients and organizations, tools, and processes like these.
Lawyers must reclaim our professional primacy: we have to control the critical steps of the legal process from law creation to compliance to law application to advocacy to enforcement; the more these slip out of our hands, the less effective we can be in our role as clergy in the religion that is the law. The rule of law is the prize in the battle over the rule of lawyers.
I have always loved a song by Karl Llewellyn that appears in the middle of his book, The Common Law Tradition. One line goes like this:
Some say our law’s in a sorry plight
and folly her fruition;
The answer to them is to set it right
in the common law tradition!