Can We Do Less Law? (ILTA Presentation)

At the International Legal Technology Association 2013 meeting in Las Vegas today, I gave a short presentation asking if we can "Do Less Law". I was one of several panelists on the program IT Catalyst. Below is the outline of my speech, with links to sources I cited.  

INTRO

OPENING

  • I want to talk about a tough topic today
  • Well, really, it is more of a question:
  • Can we help our clients Do Less Law?
  • Let me spend a minute setting up why it's important that we ask that question

SETTING THE STAGE

  • 2008 saw a sea change.
  • From a period of plenty to one of scarcity.
  • Demand today is down - flat or low growth at best
  • Clients have cutback spending on outside counsel
  • Deal flow is down; litigation is down
  • What litigation there is now settles
    faster (BTI Benchmarking Corporate Counsel Management Strategies 2013 [June 2013])
  • Law department buying patterns have also changed
    • Do more work in-house (see BTI study)
    • Use a wider range of suppliers...
    • Smaller firms, new model law firms, alternatives to law firms
    • And GC now exercising buying power to drive price down
  • What can we - ILTA attendees - the experts who help lawyers use technology, do to help?
  • I want to ask this question though in a way you might not quite expect
  • We hear GC talk about value... and firms say they offer value
  • I want to talk about a new way of thinking about value...
    • Can we help our firms help our client to Do Less Law?

DO LESS LAW = BEST WAY TO SAVE MONEY, CREATE VALUE

  • So far, we have equated value with efficiency
  • But isn't the highest value to AVOID a legal expense rather than do the same legal work for less?
  • GCs should love this question and answer yes....
  • But I do not hear any more GC talk about this than I do law firm partners
    • GC should have incentives > but perhaps fear more for their jobs from a bad decision
    • In law firms, even with Alternative Fee Arrangements (AFA), partner comp often turns on hours, you care about hours, you will not look for a way to use less of them
  • Moreover, doing less is not the natural inclination of lawyers
  • Why just turn over the boulders and rocks when you can get tweezers to pick up the motes of dust
  • But in a flat market definition of success may move from just outcomes to outcomes + value
    • GC will do well by predicting and controlling expense
    • Partners will do well by increasing share of wallet and share of market

IS IT REALLY POSSIBLE TO DO LESS LAW?

  • The opportunity is potentially big
  • How America Lost Its Way (Wall Street Journal, June 2013):  "Why is it getting harder to do business in America? Part of the answer is excessively complex legislation"
  • The US is 6th worst country in number of elapsed days to start a business, up 18% over 7 years
  • One study looked at factors that diminish US competitiveness.  Among the top 10:  complexity of the tax code, regulation, and the efficiency of the legal framework.
  • U.S. Legal System Ranked as Most Costly (Corporate Counsel, May 2013):
  • "American system costs about one and half times more than the Eurozone average"
  • So, isn't US law like US health care?
  • We spend a lot more than other developed countries
  • But we do we get for it?
  • What strategies will let us do less law

EXISTING WAYS TO DO LESS LAW - Part 1 - Utilize Existing Techniques

  • Speeding up existing work - efficiency - is just part of the answer.  We have had efficiency tools for a long time, for example
    • Macro suite
    • Simplify e-mail management
    • e-billing
  • 2008 sea change, some existing technologies and processes have played a bigger role. These are both about efficiency and doing less. So, "old technologies / processes" with new life:
    • Predictive coding
    • Knowledge Management
  • Some old but under-utilized methods - mystery why these are not used more
    • Document assembly
    • Litigation risk analysis using decision trees

EMERGING WAYS TO DO LESS LAW - Part 1

  • Generally: Legal Project Management and Process Improvement
  • By specific practices
    • Contract drafting
      • KM Standards
      • Exemplify
      • Enterprise contract management, eg, Selectica, SciQuest Upside, Apttus
    • Due diligence: Diligence Engine
  • Regulatory: Littler Affordable Care Act (ACA) interactive advisor based on Neota Logic
  • P : LexMachina for IP litigation data and analytics

EMERGING WAYS TO DO LESS LAW - New Approaches to Preventive Law

  • I wrote an article in April suggesting we could use Big Data for preventive law: Will Data Analytics Allow Us to "Do Less Law"?  (Friedmann, April 2013)
  • Aggregate compliance data across companies to seek patterns; tap corporate databases
  • Since I wrote that...
  • General Electric Adds to Its 'Industrial Internet' (New York Times, June 2013)
  • GE "announced software for what it calls "the Industrial Internet," which means the use of sensors, networking technology, and data analysis to better understand and use large industrial processes like electric power production. It is the latest step in G.E.'s push to make the rest of the world's equipment and systems operate more like the Internet."
  • Customers will use a Hadoop based system to "combine both historic and real-time information to build data-analysis applications to more efficiently manage industrial production."
  • >>> Could we spot emerging manufacturing defects or contract breaches?
  • I suggested we could analyze e-mail communications for telltale patterns of 'bad acting".  Since I wrote that....
    • Your New Secretary: An Algorithm - Startups Like RelateIQ Are Aiming to Help Improve Employees' Work Life With Software (Wall Street Journal, June
      2013) : "Data scientists are beginning to peer into work relationships, trying to identify patterns that can improve how employees collaborate with peers, manage sales relationships, or see how they stack up against colleagues." ..... "Software...  now looks at every digital scrap of ... work life--incoming emails, social-network contacts and phone calls--compares it with... colleagues' data, and figures out what and who is important."
    • >>> Assess these patterns to find compliance or labor problems
    • Assess social media trends to identify emerging liability via customer complaints
  • Open Source Law [Not the law of open source code]
  • Why aren't corporations - or a third party serving them - collecting non-competitive docs for sharing.  Standardizing documents, examples:
    • NAVC,
    • ISDA
  • See, for example, Docracy ("the web's only open collection of legal contracts and the best way to negotiate and sign documents online")
  • Visualization
  • In a world of images, lawyers are mired in text
  • How much time do consumers and business people waste trying to understand law?
  • Emerging evidence suggests visual representation of law

CONCLUSION

  • Lawyers love precedent
  • Change, even incremental change, is hard
  • But real value means more than incremental change
  • Our society spends too much on law
  • We need to find ways to do less law
  • We say that of health as well but at least there is robust R&D of both treatment and
    delivery
  • How we will start on the path to DoLessLaw
  • What will it take to get lawyers - law departments, law firms, pubic service - to really
    do R&D
  • And if we do discover good ways to DoLessLaw, then how will deploy those changes
  • I don't have the answers
  • I do hope that just talking about it today helps a dialog begin