Reading vast quantities of information – whether poring through precedent, sifting through legislation and commentary, or locating the proverbial needle in a discovery haystack – has long been the core work of lawyers. However, technology-assisted review (TAR), an umbrella term for various forms of machine reading including predictive coding and analytics, is set to change the work of lawyers within a generation. Insights spoke to Catriona Macleod, member of the Centre for Legal Innovation Advisory Board and Director of law firm Cullen Macleod, about TAR, its implications for the future of lawyering, and how lawyers can prepare for a machine-learning approach to law.
The rise of machine-reading came with the case of McConnell Dowell Constructors (Aust) Pty Ltd v Sanfam Ltd & Ors (No 1) [2016] VSC 734. The problem was volume – 4 million documents generated by the contract subject to dispute, and a related arbitration. While de-duplication reduced this figure to 1.4 million documents, it was still estimated to take a solicitor 583 weeks to review.
His Honour, Vickery J, approved the use of TAR and appointed a Special Referee, Anthony Nolan QC, to oversee the discovery process and produce a report. A Practice Note has subsequently been issued to guide the use of TAR in discovery, establishing a longer term shift towards the use of TAR and predictive coding in legal proceedings.
Given Elon Musk’s recent campaign against the ‘A.I. apocalypse’, or the chatbot that overturned 160,000 parking tickets (and is now giving free legal advice to refugees) should lawyers be concerned? Not at all, says Catriona Macleod.
“TAR represents a great opportunity for lawyers,” said Macleod. “They should embrace the opportunities TAR, and other tech-assisted developments, offer. This includes reducing monotonous work, freeing their time and enabling them to concentrate on the real value-add (and more interesting) work. Tech assisted developments, including TER, has the potential to make a fundamental change to their day-to-day lives and to the service they provide to their clients. Earlier this month JP Morgan reported how they had saved 360,000 hours of legal work by TAR, and carried it out in a few seconds (see JPMorgan update). The saving to the client of the costs of man-hours on that task was a huge benefit to the client, however the benefit to the lawyers of not having to undertake that work, and instead focus on higher value, more interesting work is also game changing”.
“Law firms of today, and indeed tomorrow, should consider how they deliver legal services and where they can specifically add value for their client. While TAR can reduce repetitive and cumbersome tasks, machines cannot build relationships with clients. This is an area in which I believe lawyers should be concentrating in the tech-assisted age.
“Law firms must find innovative ways to deliver legal services to their clients in order to maintain their relevance as legal service providers and distinguish themselves from automated processes.”
There’s no question, however, that the work of lawyers is changing, particularly as technology like TAR and predictive coding reportedly produce work of higher accuracy than human solicitors.
“The key is relationships,” said Macleod. “Lawyers that are still around and thriving in 5-10 years will use automated processes, and other tech-assisted solutions, to augment the services they provide to clients. TAR can carry out a whole variety of work much quicker than humans can ever do. Lawyers can use that capability to provide quicker and more accurate services.
“A computer can answer a specific legal question put to it, but the human lawyer can determine what the real issue is (as opposed to what the client thinks it is), and hence frame the request / instruction to the computer. Together they can be a fantastic team.”
With the age of machines upon our profession, what should lawyers do to adapt?
“Law firms and lawyers shouldn’t delay; they should be preparing now for a not too distant future, and a current reality, that involves more technological assistance, while increasing their focus on human relationships. They should be identifying how they can respond to their clients’ needs in an environment in which clients will expect more for less. As soon as clients realise that TAR is not only available, but can also reduce costs, they will no longer be prepared to pay for a lawyer to undertake those tasks manually. They will expect their lawyers to come to them with TAR, and other tech-assisted, solutions and explain how the client will benefit. Those that don’t will, at best, fail to win the interesting and challenging work with interesting and challenging clients, and at worst, fall the way of the dinosaur. Essentially, in the age of machines, lawyers and law firms need to be able to harness the tech opportunities like TAR, but with a realisation (and a focus on) the fact that human relationships remain at the core of successful lawyering.”