Rethinking the Future of Law

-- By AlejandroMercado - 14 Oct 2011

This is a wiki: Why are you putting text URLs in footnotes?? Link to things, please, in the usual web way.

I. The End Of The World As We Know It

The world has changed. The legal cosmos as we know it, no longer exists. The signs are there; yet, many are still blinded by the vanishing glare of a perceived functional and “glorious” model. That very thing that shifted the gears of the global economy into hyperdrive a decade ago, has also struck a deathblow to our beloved profession. The system of law has been transformed by technology. And many are so inert, so hopelessly dependent on the system as previously known to them that they can’t bear to devise it any other way. They can’t bear the thought of being unplugged from it, to be rid of the world pulled over their eyes that blinds them from the truth.

A short essay cannot have a long introduction. You've spent a paragraph and you haven't told us what this is about yet. You need to put an idea up front in a way that pulls the reader in, and puts her or him securely on the rails that lead where you are going.

A. "Weird Science"

First off, the discovery process has been utterly transposed. Computer technology has advanced us to an era where evidence is no longer paper based, but electronically stored. Every personal technology that surrounds us has a potential evidentiary value – e.g. e-mails, text messages, browser histories, search engine queries, social network accounts, GPS software, etc. Even our automobile’s event data recorders (“EDR”) or so-called “black boxes” promise to be crucial data for the courtroom regarding accidents. Thus, for the sake of clients, lawyers are now required to think in terms of technology.

Why that's a "transposition" is hard to see from your text. It just means that instead of a world full of printed documents, typed documents, phone message slips, answering machine tapes, floppy disks and video cassettes, we have bitstreams. If that's a "transposition," you need to explain what transposition is and why this is one.

Be that as it may, us juris consultus

It's not clear why you'd want to use obscure Latin here instead of the simple English "lawyers." But if you're going to do it, getting the grammar of both languages wrong (it's "we lawyers" or "we jurisconsults," not "us," while "juris consultus" is singular rather than plural) doesn't help.

lack the know-how, let alone the experience, to confront these challenges. Because of the distinctive characteristics of electronically stored information (“ESI”) and old, bad, lawyerly habits at the discovery level, parties are being shunned from the court system and from having access to justice. For example, ESI is voluminous. Every little piece of electronic storage we possess holds the equivalent of thousands, hundreds of thousands, if not millions of document pages.(1)

"It is estimated" means "Here's a number for whose accuracy I take no responsibility." The number is actually nonsense. Whether a "page" means 250 words of ASCII text, 500 words of ASCII text, one fifth of a short Microbrain Worz document, one fortieth of a long Microbrain Worz document, a TIFF format file of a scanned page, a badly compressed PDF file of a scanned page, a well-compressed PDF file of a scanned page, or a DJVU file of the same scanned page would change the estimate based on bytes per page to anywhere from half a million pages down to a thousand pages per gigabyte. Given that the variability of "page" is more than two orders of magnitude, giving a number makes no sense. Your argument, moreover, is phrased misleadingly, because the nominal storage capacity of objects is irrelevant. Most people's personal filesystems average 90% empty, and after you finish excluding unauthorized copies of multimedia culture and peoples' porn collections, almost no filesystem held in a personal computer contains anything at all, to a first statistical approximation.

And the problem lies not in their magnitude, but in sorting through them to find the few, which are relevant to a legal claim.(2)

But this argument is patently incorrect in the inference it urges the reader to draw. Filtering analog documents printed on paper is difficult: a human being has to read each one. Filtering digital information is easy: computers can do it. Almost all that 81% spam is thrown away before it is delivered to any human being, for example, which is why email is still a very effective medium of communication even with an apparently unpromising signal to noise ratio. Similarly, the effort to use advertising on the web, which has also massively increased the noise to signal ratio of web traffic, makes no difference to me once I install and ad blocking proxy or browser extension, which silently removes the ads from everything before I see them. Your text tells the reader that the problem of filtering grows at least linearly with data volume, but in fact the discontinuous transition from analog to digital representation of the data reduces filtering cost by more orders of magnitude than the volume has grown. Once everything is digital, filtering cost may again grow linearly with volume, but the marginal cost of bit filtering is almost exactly equal to the marginal cost of bit-moving; the difference is so close to zero that you could spend the rest of the lifetime of the universe trying to make it add up to something you could count.

At the same time, lawyers are being swamped with hundreds of expensive proprietary software from e-discovery vendors purporting to have the holy grail of discovery; purporting to hold the true secret for finding the needle in the haystack, the “smoking gun” of a claim. Whether it is through Boolean search methodologies or concept searching, all of these technologies promise results in exchange for “reasonable”, yet “justified” fees for using their exclusive technology. This, of course, translates into exorbitant costs to clients that arise from the handling of volumes of electronic data sought throughout our revered process of “liberal discovery”.(3)

This last sentence implies that the cost of the software rises with the number of bits it processes. I don't think that's really true, even if you are using unfree software to do your filtering.

Lawyers are also being swamped with hundreds of utterly inexpensive zero-cost high-sophistication tools made of free software for doing all the same things. I've seen very expensive email-searching systems that are less good than mairix, let alone notmuch. I've heard lawyers bitching about their difficulty in searching email archives of a few tens of thousands of messages produced in discovery, but I personally carry more than 250,000 of my own messages around with me in my laptop, reindexing the larger archive from which it is drawn—containing more than 1.85 million messages sent me over the years, which is a lot more email than you're going to get in a lifetime—twice a day on two different backup servers, and searching that quarter-million message archive dozens of times a day at absolutely no cost. I built a system last year that could discriminate a subjectively-judged property of patent text searching tens of thousands of patents a minute based on the PDFs of all issued US patents available from Google, using commodity hardware and free software. Making and running the system cost SFLC nothing except a few days' time of one technician and one lawyer.

You are correct, of course, that technological incompetence costs lawyers and clients billions of dollars a year that are paid to slime by morons at the expense of clients who are fools. But the problem lies not in the difficulties of dealing with electronic data in discovery.

B. Google(a)Scholar

Meanwhile, the brick and mortar of law is starting to wheeze from an ailment in the billable hour. That is, large law firms are starting to suffer from client’s adverse reaction to being overcharged by hourly fees and demanding alternative fee arrangements.(4) In part, this has been induced by the rising costs of discovering ESI and emerging software to supplant routine tasks such as “manual review”.(5) But also by the spurt in free legal resources that better allow for small firms to compete to serve large corporate clients – e.g. Google Scholar, FastCase? , FindLaw? . Accordingly, money conscious clients are abandoning renowned, flashy firms, and switching to the ever-characterized unconventional law firms.(6)

Take for example Clearspire, a small shop of 20 lawyers working from their homes on a sophisticated technology platform that mimics a virtual office. In taking advantage of said technology, clients use its platform to both communicate and conduct exchanges as their requested service is being performed.(7) Also important, Clearspire provides its clients with project-based rates that help them avoid being overcharged.

Axiom employs too an alternative model that has been thus far successful. It engages independent or teams of lawyers per week or month, keeping overhead costs down by dumping the glittering headquarters and focusing on service.(8) With 11 years in the business, Axiom enjoys the likes of companies such as Google, Amazon and IBM as clients.(9)

But those companies also deal with the most conservatively-organized of the hour-sellers, to whom they pay orders of magnitude more than they pay Axiom. Citing peoples' self-advertisements on their corporate web fronts for the truth of the facts contained is ludicrous, and I can't imagine why you're doing it.

Thus, in taking advantage of the discredited “billable hour” by adopting its abandonment as their ethos and pooling the talent of experienced attorneys with backgrounds from prestigious law firms, these “non-conventional” law firms forebode part of what the practice of law might look like in the not so distant future.

It's not clear to me as a reader, at this point, what the point of the essay is. You've discussed two vaguely-connected phenomena, but you've shown no overarching connection and stated no larger theme. At this point, unless I am professionally required to keeping reading, I as a reader am gone, and you've lost your chance.

II. There's No Place Like Home...

We can always tell from its ominous tune that something bad will happen in a horror movie. In the legal profession you can usually tell from the continued pressure of clients to cut legal bills or the demise of a reputable firm. Just recently, the renowned law firm originally known as Howrey & Simon shut operations, while two years ago each individual partner was averaging $1 million in revenues. After giving in to pressure to cut legal fees and having lost an important source of income over to e-discovery vendors, its money churning shop closed. Over 50 years of experience and it took a little under a year to dissolve.(10)

Partnership implosion rates are non-zero even in flush times, however, so individual examples are not very probative. Many of the firm failures or near-deaths since 2008 I actually know something about had as much to do with the partnerships' investment decisions as with their practice economics, so I'm dubious about the attempt to tie a short-term detail (the effect of technological incompetence on the economics of discovery practices in large-scale litigation) to the longer-term changes in political economy. I think you're confusing weather with climate.

Once more in history, change is driven by economics; economics which, in this respect, have come about as a result of legal advancements in technology and the reengineering of the practice of law. Assuming that the “liberal discovery process”, initially adopted in 1938 has worked adequately throughout the years, by now it has taken its toll. No longer should attorneys be able to rely on broad discovery requests, drawn in turn from overly broad pleadings, to “ensure” the “full disclosure” of pertinent facts to “avoid unfair surprises” and have cases “decided on the merits”.(11)

Maybe. But also maybe not. If people who know what they are doing can use cheap hardware and free software to attain better information control practices at near-zero cost than the idiots who run big law firms are obtaining using millions of dollars, then maybe electronic discovery under conditions of infoglut is a terrain on which we can equalize, rather than one in which the previous disparities between rich and poor litigants will get worse. The piece you cite is another example of bullshit claiming to be scholarship because it's in a law review. Forget what some people who don't know what they're talking about have to say and do your own thinking. Two possible stories about what will happen, each plausible, apparently contradictory. How do you decide what your own view of the situation should be based on?

A new approach to resolving cases is required. And panaceas such as the “initial disclosures”/“meet and confer” provisions, to “tailor” discovery, have already proven unsuccessful. Although there might not be a single approach to embetter the system, absent truthful cooperation among counsel, clients will continue to complain about fees and e-discovery costs will continue to bar parties from the courthouse.

Not a word.

Certainly, many will want to go back to home, to the old business model. But, let them stay home. We don’t want their help.

You have not shown that "e-discovery costs ... bar parties from the courthouse." You have shown that wasteful spending occurs. But the purpose of most litigation is waste. Litigation is a prime example of Thorstein Veblen's point about the centrality of waste in the actual behavior of economic actors. Those who litigate on behalf of poor people don't have to engage in conspicuous vicarious consumption and labor. Their purpose is not to show how rich and puissant their clients are: their purpose is to achieve justice. If technology will allow them to do that more cheaply, technology is opening the courthouse. If the powerful and wealthy continue to use bad expensive technology and ruin themselves doing so, the courthouse door is being swung wider open by their foolishness, and the poor and powerless are getting even more equalization than they might otherwise.

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Quick question - do you know if footnotes are included in the 1000 word limit? I'm curious to know as I draft my paper.

-- DevinMcDougall - 17 Oct 2011

I wrote a paper last year on discovery abuse. This doesn't make me an expert obviously, but I'd like to point out that whether or not discovery has become more disproportionately expensive over the years, especially as a result of E-discovery, is up for debate. I am not at all saying that it isn't a problem, but I spent 8 weeks in a class last year talking to judges and practitioners on this topic, none of whom were of the same mind on this. Moreover, every empirical study on the cost of discovery (that I know of) has concluded that the overall cost of discovery is not problematic. I point this out only to say you may want to be careful before you rely on a survey as proof that the discovery rules and the current paradigm should be amended.

-- AustinKlar - 19 Oct 2011

I think its a supply vs. demand issue as well. While companies like Amazon and Google might be using these new versions of law firms, Amazon and Google are also using the traditional big law firms as well that you describe as becoming outdated. One of the firms you mentioned is a shop of 20 lawyers. There is an access problem with a firm that has only 20 lawyers. Many many cases will be turned away because there simply are not enough lawyers to handle every case that people might want litigated at a given time. This is why the big law firms that use the traditional methods are still doing well, and still continue to grow, even in a down economy. A firm that has 1500 lawyers can more readily take on a breadth of legal work than can a boutique firm. All firms pick and choose their cases but when you have a massive firm, you can choose more cases. Thus, if the option is not having your case litigated at all, or paying high fees to lawyers of the traditional firms, unless the fees outweigh what you plan on getting through litigation (which is doubtful), you are going to litigate, and you are going to pay because you demand a service and there is not sufficient supply with these smaller firms employing new technological methods.

Morrison & Foerster represents UPS. Its actually kind of funny. UPS wants to let people know not to try and steal from them, or to cheat them in any way. Junior associates at MoFo? actually go to court representing UPS and argue over claims that are worth only a couple hundred dollars or a couple thousand dollars (in small claims). MoFo? wants lawyers to get experience, and UPS wants people to know that they are serious about not messing with them. In many of these cases, 1 hour of lawyer fees is greater than the money UPS receives in judgment. But its not about the money, its about the principle of the matter. So money doesnt always matter (especially when it comes to seeking only injunctive relief), and the demand for legal services vastly outnumbers the supply provided by these new boutique firms of 20 lawyers using newer technology that are cheaper. No one is going to have an incentive to switch to these new versions of firms if people are still in need of the traditional law firm.

-- AustinKlar - 19 Oct 2011

Notes

1 : It is estimated that 1GB equals 75,000 pages. See Ralph C. Losey, E-Discovery: Current Trends and Cases, 291(ABA 2008). Thus, the cheapest iPhone 4, which has 16GB capacity, can store approximately 1.2 million pages of information. See http://www.apple.com/iphone/specs.html, last accessed October 12, 2011.

2 : In 2009, 81% of all email traffic was spam. Moreover, the volume of 247 billion emails sent daily is estimated to increase to 507 billion by 2013. See Radicati Group Email Statistics Report http://www.radicati.com/?p=3237, last accessed October 12, 2011.

3 : Pamela A. McLean, Survey Says E-Discovery Cost Help Settle Cases, The National Law Journal, Sept. 11, 2008, ttp://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202424436280, last accessed, Sept. 16, 2011.

4 : Alternative fee arrangements accounted for 16% of large law firm’s revenues throughout 2010. The Economist, Law Firms: A Less Gilded Future, May 5, 2011, http://www.economist.com/node/18651114/print, last accessed October 12, 2011.

5 : See Andrew Peck, Search, Forward: Time for Computed-Assisted Coding, Law Technology News, Oct. 1, 2011, http://www.law.com/jsp/lawtechnologynews/PubArticleFriendlyLTN.jsp, last accessed October 3, 2011.

6 : The Economist, Bargain Briefs: Technology Offers 50 Ways to Leave Your Lawyer, May 5, 2011, http://www.economist.com/node/21525907/print, last accessed October 12, 2011.

7 : http://www.clearspire.com/#principle

8 : http://www.axiomlaw.com/index.php/overview/overview

9 : http://www.axiomlaw.com/index.php/overview/clients.

10 : Steven Pearlstein, Why Howrey law firm could not hold it together, Washington Post, March 19, 2011, http://www.washingtonpost.com/business/economy/why-howrey-law-firm-could-not-hold-it-together/2011/03/16/ABNTqkx_story.html, last accessed October 13, 2011. See also n.4, supra.

11 : See for example George L. Paul and Jason R. Baron, Information Inflation: Can the Legal System Adapt?, 13 Rich. J.L. & Tech. 10, 17 (2007), http://law.richmond.edu/jolt/v13i3/article10.pdf.

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