Improving Legal Services

 The major change in the modern corporate legal world has been the increase not only in the percentage of lawyers working in-house compared to “big law” employment, but the shift to corporate law departments as the primary legal advisors for their client colleague business leaders and the board of directors. In 1980, only 10%  of American lawyers were in-house; today there are more in-house attorneys than large law firm counselors.

In fact, in-house law departments have grown 7.5 times faster than law firms from 1997 to 2017.  It is the law department itself, not outside counsel, now in charge of defining and assigning work, generally favoring in-house resources, though often choosing tech-enhanced, alternative legal service providers (“ALSPs”) to accomplish what would have been repetitive but lucrative (i.e., time-consuming) outside counsel associate work less than two decades ago.

The last bastion of outside counsel authority is in litigation, corporate restructuring, and ancillary trial services. Will this change too?

The Evolution of Corporate Law: Three Major Catalysts

To project the limits of in-house growth, it is important to look at the wider historical perspective of American in-house law. Three major catalysts have shaped the evolution of corporate law in the last thirty years, each resulting in an increase in in-house oversight.

The first was the radical shift to in-house counsel pioneered by General Electric in 1987 that widely influenced Fortune 500 corporate practice. When Jack Welch was searching for a new general counsel for GE, he sought out the managing partner and founder of Sidley & Austin’s Supreme Court practice group, Rhodes Scholar Benjamin W. Heineman, Jr.

Heineman had not worked for Welch before, and in fact, was not even a corporate lawyer. But Welch tasked and empowered Ben Heineman to reimagine how a global corporation could better manage legal issues and overall risk. One of Heineman’s first steps as GC was to replace thirty of his thirty-three in-house lawyers. Heineman strategically built out his law department with highly qualified, experienced private practice attorneys, often with specialized expertise.

In this new arrangement, the GE legal department itself would perform complex legal work as company employees, rather than delegating it wholesale to outside firms, as well as proactively working with and educating regulators. This reduced overall legal costs (though upping in-house lawyer salaries) and better managed risk. It also profoundly reduced the inefficiencies of outsourcing decision-making concerning complex, fast-evolving businesses to private practice attorneys removed from the shifting frontlines of commerce. (Transparency was not part of it: business unit leaders at GE did not know that their legal advisor colleagues were often paid more than them!)  It was now the General Counsel and her co-worker counselors – not the high-priced, time-charging outside big law partners – that were the strategic legal leaders and advisors to the business units.

The second major shift in the empowerment of corporate counsel was the inevitable integration of business rigor and analytics into law departments. Although the global financial crisis was an accelerant for the rise of legal operations (the third phase of legal service evolution, see below), this intermediary if stealthier second shift in the go-go 90s up until the 2008 financial crisis successfully and irreversibly deployed outsourced talent to assist corporate law departments with due diligence and discovery reviews.

Following the lead of IT outsourcing, much of the “grunt work”, basic, legal analysis was now being accomplished by contracted professionals overseen by both outside counsel and increasingly by the corporate counsel team. This high-volume review, tedious but necessary discovery, and due diligence work was part of associate “training” for litigation and M&A work, or so the law firms insisted. It is crucial to note that litigation decisions and oversight – even those that were nonstrategic – were left untouched. Outside counsel and their legion of associates supervised the external contracted reviewers and hired the court reporters, translators, the tech, and jury consultants. Perhaps the best signifier of this middle phase of expanded corporate authority is the DuPont Legal Model, which enforced a strategy of “convergence” where outside counsel at least agreed to “have skin in the game” by reducing rates but receiving bonuses for successful (and proactive) results. 

The third catalyst was the rise of the legal operations department. And while legal operations departments are still blossoming, their origin and scope are significantly different than the prior two shifts. The rise of corporate legal operations is not an attorney-driven appropriation of business ideas; it is a wholesale multidisciplinary, data enhanced re-evaluation and re-tasking of business risk reduction and compliance driven by professionals, often without law degrees.

The first Corporate Legal Operations Consortium was only seven years ago. Its founders (Connie Brenton; Stephanie Corey, and Mary O’Carroll) drew on their Silicon Valley industry experience to focus on continuous, multidisciplinary process improvements that also lowered legal costs. This included strategic deployment of tech and data and leveraged outsourced professionals (not just lawyers) to accomplish more creatively and measurably with less staff and less attorneys.

The initial rise in legal operations was the natural consequence of the new in-house working model with the law departments serving as primary business unit advisors. As inside work increased in scale and complexity, there was a commensurate growth of wide-ranging administrative responsibilities managed by the law department. These important managerial business roles were ill-suited to lawyers without business or tech industry experience. The birth of the legal operations professional not only relieved attorneys of non-core legal and risk advisory roles but allowed for new ways to approach and better oversee the increased workload.

How to Improve In-House Efficiencies with Outside Counsel and External Vendors

The most efficient external lawyer utilization is to engage as outside counsel trial tested litigators or transactional specialists whose knowledge, expertise, and front-line varied legal experience distinguishes them from corporate counsel. But even the appropriate delegation to outside counsel to oversee major or infrequent litigation, regulatory responses, business pivots or acquisitions does not necessarily mean that ancillary support services are best hired or managed by that expensive, specialized legal counsel.

Even eDiscovery – born of the 2006 amendment of Federal Rules of Civil Procedure naming “electronically stored information” as crucial evidentiary data – has shifted in major cases from being controlled exclusively by the law firms to being handled primarily by dedicated in-house professionals, who hire and supervise supplementary eDiscovery vendors in concert with outside counsel.   

There are indeed litigation areas still managed by external counsel but ripe for efficiency improvements by shifting to direct enterprise oversight. More law departments are now engaging with litigation consultants at earlier stages of anticipated filings, providing early case assessments that can significantly reduce risks as well as providing data for best outside counsel and venue selection. Similarly, translation services can be more economically engaged and managed by the enterprise team rather than external counsel, whose value is again in direct litigation strategy and delivery.

Finally, businesses with steady litigation demands should seek consolidation and leverage of court reporting services where allowed, rather than relying on outside counsel procurement.  However, the case-by-case hiring of these crucial, experienced, independent professionals by law firms limits the advancement of innovation and efficiencies, and inefficiently tasks the law firm with third-party administration. Likewise, state “anti-contracting” laws meant to ensure the independence of freelance court reporters by prohibiting pre-negotiated arrangements unfortunately further fragments the field and complicates the scaling of improvements.

The important protection of court reporter independence and the improved efficiencies of national contracting are not mutually exclusive. If the reporter upholds their duty of impartiality and the national court reporting vendor respects and affirms that individual duty, corporate law departments will gain significant efficiencies by bringing it in-house as well, continuing, if not completing, the longstanding empowerment of the in-house team and refocusing of outside counsel to core strategic legal work.   

Conclusion Is the long-running revolution from external “big law” partners to in-house legal as primary legal counselors to corporate units complete? Or are there still opportunities for corporate law departments to improve and economize legal work still managed by outside counsel? While bringing lawyers in house at the enterprise level may have become standard practice across most corporations, it would seem the next aspect of the corporate legal evolution involves leveraging preferred provider relationships with litigation support providers to maximize efficiencies and recognize cost savings across additional legal proceeding services such as court reporting, videography, interpreting and more

Like trying a new haircut or type of jeans, a sales strategy picked to keep up with the latest trend often results in an ill-suited style that later become a source of embarrassment. 

Go-to-market trendspotters, still under the sway of postrecession and pandemic-propelled tech success, proclaim product-led-growth (PLG) as the new skinny jeans, but it must be remembered that what is just right for, say, a streamlined punk pop guitarist, couldn’t be more wrong for a hulking baritone.

Determining sales strategy is not an aesthetic or one-size-fits all choice. The “fit” of an effective planned growth process depends on the product or service offered, as well as the customer acquistion cost and the personalization of communication needed to close. This last factor involves an assessment of the prospect’s need and knowledge of the product or service, as well as the discernment of his or her internal buying process and influencing weight.

 Even if PLG is the best initial fit, expanded growth will necessitate adding on traditional enterprise sales. However, the success of those salespeople in todays changed market depends on character to a new, heightened degree. 

The 411 on PLG 

An evangelist of this “new” sales strategy, author Wes Bush, provides a succinct definition:

Product-Led Growth is defined as a go-to-market stategy that relies on using your product as the main vehicle to acquire, activate, and retain customers.

The conventional take has PLG as the evolved, maximally efficient sales solution from those ever-one-step-ahead tech companies. After all, a crucial consequence of our internet information age is that the relationship between buyer and seller no longer favors a specialized knowledge advantage to the seller. 

Let’s review the sales-led-growth (SLG) strategy of complex enterprise selling. It once enjoyed a theoretical and practical business-to-business (“B2B”) monopoly, instilling sales outreach conformity despite an inefficient information exchange.

In traditional SLG the peripatetic seller, after much cold calling and unrequited communicating, was welcomed to the prospect’s inner sanctum conference room to deliver a performance that educated, informed, and excited the buyer. The seller broadened the buyer’s understanding not only of the dangled product or service, but of best practices and marketplace insights based on hard won experience in solution selling to similarly situated customers. In the heightened confidentiality conscious, but deeply competetive and FOMO-fueled legal and financial worlds, the inefficiencies of the personalized information delivery was tolerated because of its unavailability elsewhere and the status quo, risk-reducing precedent favoring “that’s how things are done here” process. 

Today the buyer, particularly if an end user and beneficiary of the product or service promoted, is already informed about the market and can easily research solutions and prospective providers. She needs both more (better understanding from seller of her specific process & work improvement) and less (how the flight was; market gossip; discussions beyond the specific product; what the local pro team was up to last night) than the traditional SLG presentation provides. 

Enter product led growth, the shiny, minimalist sales strategy that’s captured the imagination of start-ups and high-growth worshipping supplicants. And why not, with such rocketing companies as Atlassian, DocuSign, Dropbox, GitHub, Qualtrics, Slack, Stripe, and Zoom all attributing early and mostly exponential growth through this freemium-first PLG strategy. 

Accepting the “Dis” of Disintermediation 

Product led growth is not simply a tech bro, subscription as a service (SaaS) driven initiative. Sure, PLG worship has become a Silicon Valley signifier, joining monogrammed fleece vests, nootropics, and using “monetize” and “scale” as conversational mantras. 

But unlike those superficial tells, it’s not a fad.

PLG is a digital consequence of the larger business trend of disintermediation. This removal of layers (“friction”) between product and purchaser is at its existential purest when it’s just the buyer, alone, testing the tool. Big box stores have long leveraged lower pricing by cutting out supply chain middlemen, transforming retail selling through low price, consumer-led buying, and lessening or eliminating in-store, hovering salespeople. And how would cars (always) and clothes (mostly) be sold without the tactile, emotional comfort provided by the pedal to the metal, Springsteen-on-Highway 9 test drive, or the flattering visual reassurance of the slightly tilted up dressing room magic mirror?

Disintermediation provides a huge competitive advantage for those businesses who can bypass the time, cost, and dissipation of product and service focus required to recruit and wrangle a squad of salespeople. 

Moreover, frictionless sales disintermediation via PLG carries over into B2B the newish and nearly universal expectation of consumer absolutism. After all, every professional prospect is also an individual consumer, used to wise algorithmic curation suggestions and one click ease of purchase. Buyers expect a completely free trial and the ability to say “no” with simple return and refund, even for purchases made on a whim. (Thanks Amazon).

But here’s the rub. Product led growth is not a universally applicable sales strategy. Even though PLG adoption has been propelled into wider usage by COVID-19’s ending of the traditional center stage SLG focus of in-person presentation, the PLG transformation of selling is still limited to a discrete type of product and prospect. 

In the real world of professional B2B sales, no end-user prospect (except if C-Level) has the clout to authorize enterprise contracts. The PLG strategy works where prospects are both end users AND decision makers, and the product (usually tech) can easily prove its utility solely on a free trial. This is typically in smaller businesses or autonomous parts of larger businesses, where self-serve provides the prospect with all that is needed to buy or the internal justification to authorize procurement.

Growth + (New Type of) Seller 

 Andreessen Horowitz team members Peter Laten & Martin Casodo have provided a solid strategic case study analysis of the effectiveness of the initial bottom-up PLG, B2B process for relevant new software supplemented by a traditional top-down sales process to expand and capture enterprise opportunities. Carlos Gámez and Joel Lancaster have also smartly considered this integration of PLG and SLG for the legal tech world, so there’s no need for me to pile-on regarding the need to integrate traditional enterprise sales into your initial go-to-market product-led-growth process. 

What needs to be recognized is the fundamental shift in what kind of enterprise salesperson is required in this new reality of an information advantaged buyer, whether as added to bottom-up, go-to-market PLG sales or in updating the traditional SLG process. 

“Salespeople” are often seen by corporate leaders as a necessary means to the end (finding and signing customers) rather than the embodiment of that company’s values and purposes. They are, after all, the front line ambassadors (don’t say “soldiers”!) of the business to prospects.

It’s important to recruit keeping in mind the striking, and more relevant than ever findings of the Wharton School’s Adam M. Grant, and popularized by sales contempletive Daniel Pink. The most successful salespeople are not the confidently outspoken extroverts one might think would be natural persuaders. Instead, sales performance is highest with ambiverts; those whose behavior is between introversion and extroversion. These are people who excel at listening as well as speaking. (Ambiverts are also overrepresented as the best actors for the same reason; empathetic listening as a prerequisite to a believable presentation). 

Source: Adam M. Grant, “Rethinking the Extraverted Sales Ideal: The Ambivert Advantage” (2013)

 The effective professional B2B salesperson today needs to be more than an educator, advocate, and challenger. She needs to be an empathetic embodiment of the values associated with the service or product. Just as today’s companies are increasingly required to express values aligned with retaining employees (such as “ESG”), the salesperson as envoy must similarly embody a stronger ethical character baseline to be accepted as partners with today’s prospects. Gone are the Glengarry Glen Ross days of the shallow, close-at-all costs manipulator. 

In addition, top performers in this new world of sales need to have a deeper alignment to the customer’s specific needs. The top notch enterprise salesperson, as always, will have knowledge of larger business trends as well as industry specific insights. But what really distinguishes sales success today is the ability to know and integrate customer specific information (e.g. reorganizations; staffing changes; internal projects and initiatives) as the recent Salesforce study shows:

Source: “State of Sales,” Salesforce Research (Dec. 2020)

This requires establishing a deeper, empathetic level of trust to faciliate and skillfully extricate the prospect-specific frictions and challenges that the product or service can smooth out or end. The seller isn’t just a source of information, but a trusted confidant.

If your product or service makes the world better, get it out there expeditiously and forcefully. Choose product-led-growth only if it fits, but remember to choose and add on salespeople embodying values aspirational to your company’s brand to prospect and close those enterprise sales. We are living in a more connected, buyer-empowered world that demands alignment of salesperson values with those respected by your prospects. Your salespeople are your avatars of authenticity. 

Before you click out and start looking for smart, empathetic industry-savvy ambiverts, remember my initial comparison of PLG and skinny jeans? It turns out, even the one-step-ahead (business); one-step-behind (fashion), Wall Street Journal has just written its obituary. 

Source: Cartoon by Robert Weber, New Yorker (May 12, 1986)

In the constant calls for a more rapid evolution of the practice of law, the emphasis has been on the promotion of technology to supplement (or replace) legal tasks and the disengagement or outsourcing of routine matters to lower cost workers. But more central to the wider and immediate increase in the improved delivery of legal services is the development of more efficient legal employment models. Is the law firm partnership template still viable? What forms of organization can best provide legal services today? Is the growing “Hollywood Model” of ad hoc deployment of professionals applicable to law?

Legal work is not going away; the US Bureau of Labor and Statistics anticipates a 5% growth until 2024; comparable to other professional work (though the latest numbers show legal services employment as flat). The corporate merger boom in 2015 has continued into 2016, but it provides opportunities for only a select group of big law attorneys. Steadier legal work in North America and Europe is more a result of an increasing regulatory workplace affecting a wider group of companies (especially financial, health care, insurance, tech) where larger in-house teams, less acceptance of open-ended hourly billing, and a willingness to outsource, are decreasing the amount of work traditionally funneled to law firms.

The law firm model itself predates the industrial revolution (England’s Thomson Snell & Passemore is nearly 450 years old) but the specific big law model, founded by Paul Cravath when Columbia Law drop-out Teddy Roosevelt assumed the US presidency, was an elegant staffing solution providing an efficient and stable professional collective of legal experts to advise growing corporate clients.

In those pre-LSAT days, Cravath hired the top academic students from a few prestigious law schools (many other law schools at the time did not require college qualification), intuiting that it is better to hire academically successful young men (the first female partner at Cravath wouldn’t be named until 1971) with no law firm or business experience, and therefore no bad habits. The long term partner-associate bond was the glue; not the particular matters worked on. The model proved successful and paralleled the escalator model of employment developing in the nascent company-centric world of their clients: an employee would work on an open-ended compact for the organization, advancing in pay and responsibility as the company expanded.

The Cravath model took it a Darwinian step further: this promising group of law firm graduates were hired and trained by the experienced attorney owners in a “tournament of lawyers” system that whittled down the number of apprentices, so that after a half dozen years only the best of these now-fully trained associates would be offered equity ownership as partners. The system worked but required that the clients subsidize the inexperienced associates’ pay, and that the partners take the time to train the associates.

It was an innovative model that transmitted knowledge of how to break down complex legal work to the committed but inexperienced associate. It permitted increasing delegation by the partner so that he could focus on the higher level strategy and growing needs of his current clients that would later benefit the younger associate. But it was the law firm bond of the associates and partners that was elevated over the profit making and taking of the partners.
While working as a legal editor in Manhattan after practicing law in New England, I answered – on a dare from actor friends – a Backstage ad. “Irish Spring” was looking for a new spokesman. At that point, I had no real acting experience (other than in the courtroom), but a love of Shakespeare and a passable Munster accent (a semester at University College, Cork; summer work on my cousin’s Limerick farm) gave me confidence enough to bluff my way into an audition. And a second audition. And when the third and final came up, I passed it up, terrified that I’d be exposed, since I was from New Jersey, not Kerry, as my “enhanced” acting resume had it. (Later, when auditioning in Dublin for “The Commitments” – this time more plausibly as an American journalist— I learned that Procter & Gamble couldn’t have cared less where I was actually from – the “Lucky Charms” leprechaun was voiced for fifty years by Staten Island native Arthur Anderson; an actor of completely unIrish roots).

But here’s the point. To do the commercial, Procter & Gamble’s ad agency, Young & Rubicam, wrote the script, then, once approved, hired an independent producer and director, who assembled the global team of professionals to make the commercial. These individuals – casting director; locations manager; cinematographer; sound engineer; editor; even craft services manager – were skilled independent workers coming together to make that commercial. This is the “Hollywood Model”: the most efficient way to assemble talented, creative professional workers to produce defined-term projects. It wasn’t always that way – in Hollywood’s four decade Golden Age that lasted though the 1960s, the studios functioned as one-shop filmmaking entities (similar to the Cravath model), with artists and craftspeople employed and apprenticed under long-term employment contracts (and, until antitrust concerns drew the curtain on the studio’s vertical integration, the studios also controlled the distribution and exhibition of their films).
Today’s project-based Hollywood model differs from the short-term, one person contractor “gig” model (think “Uber”) in complexity and wider ranging applicability, and it’s become a popular alternative to the century-dominant corporate model. In the Hollywood model professionals are hired strictly for a project with a defined end date, and it is being used in a growing number of nimble ventures that have creative components, including music, restaurant design and fashion. In the friction-free economy that supports the Hollywood model, much less capital is needed as workers are hired on an as-needed basis.

Could the Hollywood model offer a solution for more efficient deployment of legal services? It’s happening already. In the pre-recession and pre-predictive coding eighties and nineties, contract attorneys were the dirty little secret that law firms and corporate law departments deployed, generally vetted and hired by third party agencies for short time document reviews or research projects, but housed in relatively plush firm or corporate settings and integrated with the client, mitigating the severely lessened pay they received compared to their law school classmates who were hired as associates at the same outside counsel firm or the inhouse associates.

But with the recession came a surfeit of unemployed attorneys willing to do any work designated in name if not by pay “legal”. Hourly rates spiraled down; the increasingly commoditized contract attorneys were separately housed in cheaper locations, segregated from the corporate law and outside counsel leaders as well as from the client’s unique culture. The outsourced attorneys went from offsite to offshore in many cases, further depressing pay, and further depressing recent law school grads forced to take document review contract jobs for less pay. It became not only less efficient but soul draining.

Since Judge Peck’s approval of predictive coding three years ago, the bottom has dropped out for the need for JDs for document review work. The legal staffing agencies that survived are deploying higher level legal specialists – including experienced attorneys – to work with the clients onsite, though such attorneys must be still be closely supervised under ABA Model Rules 5.1(b) and 5.3(b), limiting efficiency for in-house counsel.
Another evolving efficiency in legal staffing is the growing use of litigation funding. For law firms, capital is raised from partners to finance firm investments, with the amounts invested based on projected annual income (contributions usually at 20-25%), and supplemented by bank lines of credit. But since the Dewey collapse, firms are seeking a higher percentage of partner contribution rather than face possible bank defaults, challenging capital needs.

For law firms, litigation funding provides assurance of capital flow and coverage of fixed costs, without giving up all of the firm’s contingency fee. Law firms can also offer a client the option of funding via a respected third party, permitting more alternative fee arrangements and greater likelihood of asserting rights via litigation that they would otherwise decline to pursue due to high costs and risks; a win for the client and outside counsel. The corporate client can also benefit directly from litigation funding, knowing that it can bring an affirmative action without blowing up the legal department budget, and even contributing to the company profits. It’s providing elements of the Hollywood model in allowing a dedicated professional funding entity to allocate capital and assist with risk management, reducing the capital contributions of the law firm partners as well as those of the corporate client.

ABA Rule 5.4 prohibits non-lawyer sharing of profits, and prohibits law firm incorporation where outside investors could provide much needed capital. The conservatism and self-protection mechanisms of lawyers have held back on the obvious need for more efficient business models. Law firms are businesses; the ABA will be forced to recognize that, and the ethical obligations of an incorporated business of lawyers practicing law can be enforced by retaining individual lawyer obligations while permitting incorporation (particularly if the directors of the corporation are the actual lawyers).

The Hollywood model offers a future for the provision of legal services. The ideal model will work as Hollywood truly works: the client is analogous to the studio, a group of traditionally employed professionals, who, when faced with a legal issue that cannot be handled in-house, will seek the independent judgment and assistance of a particularly suited outside counsel. That firm, akin to the ad agency (for commercial) or producer/director (film), should deploy and supervise the team needed, and they shouldn’t be all lawyers, but skilled in the task assigned.
The increasing ability of businesses to more timely quantify and track data and business needs (including legal) is allowing more quantification of discrete legal tasks, permitting a wider range of work assignments with a better projection of costs and more demanding deliverables. Although the business client is more likely to consolidate more work with a dwindling number of outside law firms (and favor those most responsive and efficient –even if not big law), the quantized legal assignment allows greater flexibility in deciding who can carry out the task instead of defaulting to outside or inside counsel, and can also allow greater delegation by the law firm to the professional best suited to the task.

On the supply side, talented young lawyers are demanding a work-life balance and are reluctant to commit to the half-dozen years of subservience and unlikely odds of winning partnership in the tournament of lawyers system, providing further catalyst for more flexible employment arrangements. Law schools will also have to include that experiential training once provided by the Cravath model, but on an expedited schedule so that graduates can be more productive upon graduation. Mentorship of associates is dying. In fact, the “virtual” and growing law firm FisherBroyles is a reverse of Cravath- a firm of experienced attorneys connected by technology that has forgone the mentorship model of the traditional law firm, and thus delivering services at better prices without the overhead and training costs.

In an ironic footnote to this discussion, there will soon be a literal integration of Paul Cravath with the Hollywood model. Eddie Redmayne will be playing the lawyer (despite being five inches shorter and five stone lighter) in the big budget adaptation of Graham Moore’s new historical thriller “The Last Days of Night.” It will not, however, focus on Cravath’s law firm staffing innovation, but on his epic defense as a young attorney of Westinghouse versus litigious Edison over the invention of the light bulb. It’s a role I would have loved to audition for (and wouldn’t have backed out from!), but the Hollywood model needs a star to ensure a presentable box office take (especially for a big budget historical drama), not an actual lawyer–actor who would neatly fit Cravath’s bespoke tweed suits. Moreover, With Moore & Redmayne’s skill (and studio commitment), Paul Cravath will be getting his long deserved legal fame via the Hollywood model, at the same time that his century old staffing model declines.

(an edited version of this article appeared in ABA Law Practice Today, December 2016)

“I cannot teach anybody anything. I can only make them think.”
attributed to Socrates, circa 390 B.C.

“Law is a science, and… all the available materials of that science are contained in printed books….”
Prof. Christopher C. Langdell
Speech at Harvard University, 1887

Discussions to date on artificial intelligence and law commonly seek the diminishing demarcation between the human-only part of lawyering (multi-disciplinary integration, especially regarding strategy; ‘reading” the client; emotional intelligence) and those lawyering skills more efficiently accomplished by machines (legal pattern recognition research for document and contract review). But the more meaningful inquiries have not been asked: will human-AI collaboration advance the lawyer’s counseling? Can the AI system help the human lawyer overcome bias and produce better decision-making?

Traditional legal training is often criticized as inadequately preparing law students for the increasingly tech and data integrated counseling required in today and tomorrow’s markets. Yet there was a time when the most advanced and truly disruptive professional teaching method emerged from a law school.

Christopher Columbus Langdell initiated both the case method and the Socratic method of teaching law in his Harvard Law class one hundred and fifty years ago. Langdell’s goal was to induce the legal reasoning of actual cases through a series of specific questions (the Socratic method) that would expose the biases and preconceptions of the law student. In a common law system, this original source-first focus properly centralized the primacy of case law study over lecturing about a generalized legal subject, allowing students to think more objectively and deepen case-specific legal reasoning. The case study system, employed with the Socratic method, forces the student to challenge their own inferences to foster more objective, less biased legal decision-making. It was a revolutionary approach to teaching, and became the standard method of law school teaching and greatly influenced graduate school education as well.

The explosion of artificial intelligence in our current society is due in large part to the success of the “deep learning” model. This type of AI, a subset of machine learning, is modeled after the human brain. Deep learning AI employs layers of hierarchal networks, where higher level layers work off lower levels to learn complex functions directly from the date inputted, with very little human tinkering.

Lawyers are notoriously scared of math, but it’s essential to accept how the independence and precision of mathematics can make them better lawyers in today’s data-driven world. Attorneys must understand that the advanced artificial intelligence process underlying legal research in a deep learning system transforms words into numbers; more specifically words are mapped into vectors. This word embedding into vectors captures the degree of similarity of words across the vector space. It’s not a simple, static, one-to-one mapping of a word to a number, but a more complex and accurate representation of the many facets of that word as used in actual context. As humans we use language as an imperfect signpost for more complex thought; but deep learning AI, with its greater (if narrow) cognitive power doesn’t have human language biases (apart from implicit in that corpus of used words) or limitations in finding the clear mathematical similarities. The deep-learning system can guide the lawyer to otherwise untapped legal reasoning, enhancing the human-only legal advising and making the humans better lawyers.

When the human lawyer engages with a dynamic, artificially intelligent, less-biased system that establishes legal connections through a more thorough exploration of paths – including some that a human may not yet have found – then the lawyer engaging with it will have stronger options in coming up with legal answers. The lawyer should then understand that legal area in a deeper way by “seeing” more connections. Although these advanced AI interactions differ from the student teacher dialogue of the Socratic method, the result in large part is the same: an accelerated understanding of more complex, comprehensive, and clearer legal options, with less decisionmaker bias, providing a stronger foundation for better lawyering. The system can illuminate options and facilitate a broader and deeper understanding of the legal issue.

The perverse pride of lawyers of their math phobia runs deep, especially when numbers are applied to law. Only a few months ago America’s top jurist – Chief Justice Roberts – trashed the use of math in the gerrymandering challenge in Gill v. Whitford as “sociological gobledygook”. But data science is an essential tool to elicit fact-grounded decisions that will make better lawyers, jurists, and law.

Last year, Google’s deep learning artificial intelligence system Alpha Go Zero did something extraordinary. In 40 days it trained itself to master the Chinese board game Go, without human intervention or training. It played millions of games against itself as it steadily increased proficiency, beating what any human could do, then beating every other machine. The only human input was the rules of the game, and the “loss function” programming which essentially determined whether each move tried would increase its chance of winning. On its own (though over the course of millions of games played by it, exploring and advancing proficiency) it developed (dare we say “evolved”?) strategies and skills that humans had come up commutatively but over hundreds of years. Not only did it independently learn the human strategies, but more importantly, came up with new and better ways to win. Human players now use Alpha Go Zero strategies as an accepted part of the game.

Alpha Go Zero teaches us that the cognitive power of an artificially intelligent system can surpass human reasoning. Note this doesn’t make it “smarter” than humans. But in the case of Alpha Go Zero, the system has advanced the human’s play to a higher level as humans now commonly use the higher-level strategies discovered by it; raising the human standard of strategy. Lawyers aren’t playing a game, but are indeed looking for connections in the common law cases or corpus of documents; connections that can be clarified by translating them into fluid, but less biased algorithms. The fear of AI as job executioner should be replaced by the acceptance of it as a kind of mentor to help lawyers find and understand legal connections. The Socratic method teaches students by exposing bias to discern legal truths; the AI system is similarly exposing truths in searching through that manmade corpus of the common law, making it more open as well as more digestible.

Any discussion of advanced AI for legal decision-making needs to answer the ethical obligations of the attorney using the tool. As the AI systems contemplated here are not self-initiating but very much tools of the attorney, we needn’t address unauthorized practice of law concerns. Instead, the Scylla and Charybdis of the obligations require navigating between the attorney’s nondelegable requirement to supervise nonlawyer assistants (ABA Model Rules of Professional Conduct 5.1 and 5.3) and the counterbalancing requirement of competent representation (Model Rule 1.1) . This competency obligation includes – via Comment [8], adopted in a majority of jurisdictions – keeping “abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology…”

As advanced, safe, and dynamic artificially intelligence systems become more widespread and efficient in accelerating core, human-only legal reasoning, the obligation of competency grows to a point where non-use becomes ethically questionable. The supervisory duty in using AI does not require complex math fluency by the attorney, but still it requires the ability to understand how the system comes up with its answers, and if necessary may require third party consultants or data scientists to assist the lawyer in opening that “black box” in a defensible manner. Also, if the AI is used in examining data beyond case law and statutes, the lawyers must also consider client data confidentiality requirements.

When Professor Langdell disrupted the standard professional teaching methods for law by introducing his Socratic method, he was seeking a more scientifically-based, rigorous means of directing his students to think like lawyers; like good lawyers, with less bias and sharper observational awareness to advocate in a world challenged by the industrial revolution. It is time for lawyers today to recognize the tool of advanced artificial intelligence in much the same way; a means of lessening bias and finding deeper connections faster, making us better lawyers in an increasingly more complex, technologically-integrated world.

(an edited version of this article appeared in ABA Law Practice Today, January 2017)