How I Think About the Future of Law

In light of COVID-19, the global legal profession has had to rapidly adjust to a new work paradigm. In response to this, We (the legal profession at large) have been finding new solutions and trying to think strategically about how legal services should continue to change in the future. Many of the best minds in law have started to predict where they see the legal profession going. What I have generally seen is a recognition of the obstacles to innovation but also optimism that now is the opportunity to modernize the profession. ‌

But how and where should We be focusing our attention? I wanted to organize my own thoughts on the future of law. I kept circling around a handful of rhetorical questions. The following are the 4 questions I have been asking myself to better understand how I think about the future of law. ‌

Question 1: If we started over today, what would legal services look like?

About two months ago I came across a video by Simon Sinek on “How to Adapt to Changing Times.” To be honest, I’m not sure what profession is being referenced in the video (financial accountants?) but I felt the same observations translate to law. My main takeaway from the video was the question if this profession started over, would we be doing things the same way? Sinek argues that if you aren’t willing to blow up your business model if it no longer works, someone else will do it for you. To begin to answer this question, I had to zoom out a little bit and remind myself what is the actual purpose of the legal profession. ‌

A key aspect of American Democracy is the “Rule of Law.” ‌The four primary tenets of the Rule of Law are that all United States persons, institutions, and entities are accountable to laws that are:‌

  1. Publicly promulgated;
  2. Equally enforced;
  3. Independently adjudicated; and
  4. Consistent with international human rights principles

The United States Constitution, amongst many other things, is how the Rule of Law should be upheld in this country. There are many divergent opinions on how it should be interpreted, but for better or worse, it is our shared values as a country. ‌

What purpose then do lawyers serve? What is our function as it relates to the Rule of Law? To me, an attorney is an officer of the court that strives to promote and maintain the Rule of Law. We advocate on behalf of others to ensure they can navigate our legal system, defend their rights, and function effectively within society. As a barred New York attorney, I took an oath that I would uphold the Constitution and the New York State constitution to the best of my ability.

Now then, with the resources and ideas we have at our disposal, if we started over today would the legal profession look exactly the same? This question isn’t static. If we don’t constantly challenge our own assumptions, others will start to do it for us whether we like it or not. I am not sure what the answer is to this but I think we have a little room for improvement.‌

Question 2: What will the legal industry look like in the Third Wave of the Internet?

I recently finished The Third Wave: An Entrepreneur’s Vision for the Future by Steve Case, the founder of AOL. As is obvious from the title, Case breaks down the history and future of the internet into three waves. The first wave of the internet saw companies laying the foundations for an online world. This was where companies like AOL dominated by providing access to the public. The second wave then was characterized by companies taking the momentum of the first wave to bring the internet to our lives. The current incumbents like Google, Facebook, and Amazon were the ones that dominated the second wave. ‌

The third wave then is where the internet becomes pervasive and ubiquitous. In this wave, companies can no longer be competitive by just bringing a service online but rather will use the internet to better bring together and improve the fabric of society. This is where Case imagines that industries like food production, education, and health care will see sweeping changes.‌

The third wave will also follow a different playbook than the second wave. It will be more similar to the first in that it will be a combination of: ‌

  • Context
  • Content
  • Community (the most important of the three)

Additionally, companies will need the following three things to be successful in the third wave: ‌

  • Policy – companies will need to work alongside government to update laws and regulations
  • Partnerships – very few of the remaining big problems in our society can be solved by a single, independent company.
  • Perseverance – There probably won’t be as many overnight success stories in the third wave.

Where does the legal industry fit into the third wave of the internet? If you accept Case’s arguments, then law and the legal profession have a big part to play in the success of the next phase of the internet. We have already seen over the course of this year how strained our system has been in response to COVID-19. People are struggling to access unemployment benefits; companies have had to navigate an ambiguous process to access economic aid through PPP; and some court systems have ground to a halt trying to move their processes online. Coming out of this pandemic we need to create more robust and scalable processes to modernize and scale governmental services. ‌

The legal industry needs to be a catalyst for improving our society and modernizing how people interact with the government. It needs to be the connective tissue as all these industries seek to integrate better with our daily lives. Industries will need to partner with the government. Lawyers have a unique opportunity to participate in that process. However, our role in this next phase will be directly impacted by how well We answer and act upon our answers to Question 1.‌

Question 3: What will be disruptive innovation in legal tech?

The next question I started to ask myself was what are the truly disruptive innovations in the legal industry going to look like? To answer this though, I needed to get a better understanding of the characteristics of disruptive innovations.‌

Luckily for me, other smart people have already done all the work to define what characterizes a disruptive innovation. In 1995, HBR published “Disruptive Technologies: Catching the Wave” that was later updated in 2015 in “What is Disruptive Innovation?” that lays out the characteristics of disruptive innovation and strategies incumbents can take to nurture and adopt disruptive technologies in their industries. ‌

Here are some of my notes from reading both articles:‌

  • There are two types of technological innovations
    • Sustaining Technologies – giving customers something more or better in attributes they already value.
      • Risk is reduced—and careers are safeguarded—by giving known customers what they want.
    • Disruptive Technologies – introduce a very different package of attributes from what mainstream customers historically value
      • these generally look financially unattractive
      • disruptive technologies turn previously non-customers into customers (generally underserved markets)
  • Sometimes listening to your customers too much leads you to lag behind disruptive technology adoption
  • Established companies only enter a new market when demand for new technology is large enough for existing customers to want the new technology – by then it was too late
  • Why getting the distinction right matters
    • Disruption can take time, incumbents frequently overlook disrupters
    • Disrupters often build business models that are very different from those incumbents
    • Not all succeed—don’t only focus on what is achieved because even failed business can disrupt an industry
    • “Disrupt or be disrupted” can misguide us
      • Don’t dismantle a successful business too soon, instead create a separate entity
    • Incumbents outperform entrants in a sustaining innovation context but underperform in a disruptive innovation context
  • Steps to take
    • Determine if the technology is disruptive or sustaining
      • Few organizations have systematic processes in place to identify and track potentially disruptive technologies
      • A litmus test for if a technology is disruptive is if the financial side and technology team disagree strongly
    • Define the strategic significance of the disruptive technology
    • Locate the initial market for disruptive technologies
      • Most traditional market research doesn’t work well since you are looking for a new market
    • Place responsibility for building a disruptive business in an independent organization.

Most of the innovations in legal tech have been sustaining innovations. Over the past two decades, most legal tech companies have focused on better delivering legal services to customers that were already consumers of legal services. The people being served by new legal technologies are largely the same but the methods of that delivery have just become more efficient. This isn’t a bad thing, but it is helpful to be mindful of as we communicate about technology adoption and usage in our industry. If this trend continues, we can expect to see more new companies being acquired by incumbent legal service providers supporting the same dominant firms. Everything else constant, don’t expect the Am Law 200 to change much in the next ten years. ‌

However, if we could better empower people and businesses to better manage their own risk, participate in government, and assert their rights it seems like we could greatly expand the types of people that consume legal services. In this hypothetical world, a lawyer becomes more of a guide than a gatekeeper in the legal process. I envision a future where more legal tech products are built for the true end-user of legal services, the client. Maybe more on this in the future.

Question 4: When is it time to start acting?

​It is no secret that lawyers are risk-averse. It is our professional responsibility to avoid and manage legal risk. As software consumers, this largely means that lawyers don’t have much comfort adopting solutions that can’t service every possible need and situation. Additionally, for large firms the sales cycle generally takes a least 12 months from initial outreach to closing the deal. A “minimal viable product” to lawyers doesn’t really hold a lot of positive sentiment. ‌

However, there is one category of risk that I find is often left out of the discussion. What is the risk of doing nothing? In product terms, I think about this as the Time Value of Shipping. The longer it takes to start to adopt new technologies, the higher the customer expectations become. There is a real risk associated with doing nothing. You may not be able to ever catch up to your customer’s expectations.

So the simple answer, now is the time to start acting. This recent global pandemic has kick-started the process of getting attorneys, courts, and corporate legal departments comfortable with making changes in short time frames. As we have seen, given the right push, our industry is capable of making changes and adopting new technologies. The challenge will remain though which organizations will incorporate these learnings into continued process improvement. ‌

Conclusion

I don’t know exactly what is in store for the future. My adult life has largely been a case study in the futility of predicting the future. However, I think it is important to organize a personal framework for thinking about the broader themes surrounding innovation. I don’t have perfect answers to my own questions but I keep them in mind when thinking about the future of the law. I remain excited about what could happen in the next ten years in the legal industry and look forward to being apart of its growth.