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For the term "susskind".

Is Eviction-as-a-Service the Hottest New #LegalTech Trend?

Some legal technology startups are struggling nowadays, as venture capitalists pull back from a saturated market. The complexity of the regulatory landscape is hard to capture in a Silicon Valley slide deck. Still, there is hope for legal tech’s “idealists.” A growing firm may bring eviction technology to struggling neighborhoods around the country:

Click Notices . . . integrates its product with property management software, letting landlords set rules for when to begin evictions. For instance, a landlord could decide to file against every tenant that owes $25 or more on the 10th of the month. Once the process starts, the Click Notices software, which charges landlords flat fees depending on local court costs, sends employees or subcontractors to represent the landlord in court (attorneys aren’t compulsory in many eviction cases, but drastically reduces the chance of eviction appeals). Landlords also use companies like Express Evictions to handle their evictions so that they don’t directly deal with the tenant during the entire eviction process, it’s a popular choice for landlords as there are less chances of a confrontation between the landlord and the soon to be evicted tenant.

I can think of few better examples of Richard Susskind’s vision for the future of law. As one Baltimore tenant observes, the automation of legal proceedings can lead to near-insurmountable advantages for landlords:

[Click Notices helped a firm that] tried to evict Dinickyo Brown over $336 in unpaid rent. Brown, who pays $650 a month for a two-bedroom apartment in Northeast Baltimore, fought back, arguing the charges arose after she complained of mold. The landlord dropped the case, only to file a fresh eviction action—this time for $290. “They drag you back and forth to rent court, and even if you win, it goes onto your record,” says Brown, who explains that mold triggers her epilepsy. “If you try to rent other properties or buy a home, they look at your records and say: You’ve been to rent court.”

And here’s what’s truly exciting for #legaltech innovators: the digital reputation economy can synergistically interact with the new eviction-as-a-service approach. Tenant blacklists can assure that merely trying to fight an eviction can lead to devastating consequences in the future. Imagine the investment returns for a firm that owned both the leading eviction-as-a-service platform in a city, and the leading tenant blacklist? Capture about 20 of the US’s top MSA‘s, and we may well be talking unicorn territory.

As we learned during the housing crisis, the best place to implement legal process outsourcing is against people who have a really hard time fighting back. That may trouble old-school lawyers who worry about ever-faster legal processes generating errors, deprivations of due process, or worse. But the legal tech community tends to think about these matters in financialized terms, not fusty old concepts like social justice or autonomy. I sense they will celebrate eviction-as-a-service as one more extension of technologized ordering of human affairs into a profession whose “conservatism” they assume to be self-indicting.

Still, even for them, caution should be in order. Bret Scott’s skepticism about fintech comes to mind:

[I]f you ever watch people around automated self-service systems, they often adopt a stance of submissive rule-abiding. The system might appear to be ‘helpful’, and yet it clearly only allows behaviour that agrees to its own terms. If you fail to interact exactly correctly, you will not make it through the digital gatekeeper, which – unlike the human gatekeeper – has no ability or desire to empathise or make a plan. It just says ‘ERROR’. . . . This is the world of algorithmic regulation, the subtle unaccountable violence of systems that feel no solidarity with the people who have to use it, the foundation for the perfect scaled bureaucracy.

John Danaher has even warned of the possible rise of “algocracy.” And Judy Wajcman argues that ““Futuristic visions based on how technology can speed up the world tend to be inherently conservative.” As new legal technology threatens to further entrench power imbalances between creditors and debtors, landlords and tenants, the types of feudalism Bruce Schneier sees in the security landscape threaten to overtake far more than the digital world.

(And one final note. Perhaps even old-school lawyers can join Paul Gowder’s praise for a “parking ticket fighting” app, as a way of democratizing advocacy. It reminds me a bit of TurboTax, which democratized access to tax preparation. But we should also be very aware of exactly how TurboTax used its profits when proposals to truly simplify the experience of tax prep emerged.)

Hat Tip: To Sarah T. Roberts, for alerting me to the eviction story.

Complicating the Narrative of Legal Automation

Richard Susskind has been predicting “the end of lawyers” for years, and has doubled down in a recent book coauthored with his son (The Future of the Professions). That book is so sweeping in its claims—that all professions are on a path to near-complete automation–that it should actually come as a bit of a relief for lawyers. If everyone’s doomed to redundancy, law can’t be a particularly bad career choice. To paraphrase Monty Python: nobody expects the singularity.

On the other hand, experts on the professions are offering some cautions about the Susskinds’ approach. Howard Gardner led off an excellent issue of Daedalus on the professions about ten years ago. He offers this verdict on the Susskinds’ perfunctory response to objections to their position:

In a section of their book called “Objections,” they list the principal reasons why others might take issue with their analyses, predictions, and celebratory mood. This list of counter-arguments to their critique includes the trustworthiness of professionals; the moral limits of unregulated markets; the value of craft; the importance of empathy and personal interactions; and the pleasure and pride derived from carrying out what they term ‘good work.’ With respect to each objection, the Susskinds give a crisp response.

I was disappointed with this list of objections, each followed by refutation. For example, countering the claim that one needs extensive training to become an expert, the Susskinds call for the reinstatement of apprentices, who can learn ‘on the job.’ But from multiple studies in cognitive science, we know that it takes approximately a decade to become an expert in any domain—and presumably that decade includes plenty of field expertise. Apprentices cannot magically replace well-trained experts. In another section, countering the claim that we need to work with human beings whom we can trust, they cite the example of the teaching done online via Khan Academy. But Khan Academy is the brainchild of a very gifted educator who in fact has earned the trust of many students and indeed of many teachers; it remains to be seen whether online learning à la Khan suffices to help individuals—either professionals or their clients—make ‘complex technical and ethical decisions under conditions of uncertainty.’ The Susskinds recognize that the makers and purveyors of apps may have selfish or even illegal goals in mind. But as they state, “We recognize that there are many online resources that promote and enable a wide range of offenses. We do not underestimate their impact of threat, but they stand beyond the reach of this book” (p. 233).

Whether or not one goes along with specific objections and refutations, another feature of the Susskinds’ presentation should give one pause. The future that they limn seems almost entirely an exercise in rational deduction and accordingly devoid of historical and cultural considerations.

Experts with a bit more historical perspective differ on the real likelihood of pervasive legal automation. Some put the risk to lawyers at under 4%. Even the highly cited study by Carl Frey and Michael Osborne (The Future of Employment: How Susceptible Are Jobs to Automation) placed attorneys in the “low risk” category when it comes to replacement by software and robots. They suggest paralegals are in much more danger.

But empirical research by economist James Bessen has complicated even that assumption:“Since the late 1990s, electronic document discovery software for legal proceedings has grown into a billion dollar business doing work done by paralegals, but the number of paralegals has grown robustly.” Like MIT’s David Autor, Bessen calls automation a job creator, not a job destroyer. “The idea that automation kills jobs isn’t true historically,” Steve Lohr reports, and is still dubious. The real question is whether we reinforce policies designed to promote software and robotization that complements current workers’ skills, or slip into a regime of deskilling and substitution.

Law’s Nostradamus

The ABA Journal “Legal Rebels” page has promoted Richard Susskind’s work (predicting the future automation of much of what lawyers do) as “required reading.” It is a disruptive take on the legal profession. But disruption has been having a tough time as a theory lately. So I was unsurprised to find this review, by a former General Counsel of DuPont Canada Inc., of Susskind’s The End of Lawyers?:

Susskind perceives a lot of routine in the practice of law . . . which he predicts will gradually become the domain of non-professional or quasi-professional workers. In this respect his prediction is about two or three decades too late. No substantial law firm, full service or boutique, can survive without a staff of skilled paralegal specialists and the trend in this direction has been ongoing since IT was little more than a typewriter and a Gestetner duplicating machine. . . .

Law is not practiced in a vacuum. It is not merely a profession devoted to preparing standard forms or completing blanks in precedents. And though he pays lip service to the phenomenon, there is little appreciation of the huge volume of indecipherable legislation and regulation that is promulgated every day of every week of the year. His proposal to deal with this through regular PDA alerts is absurd. . . . In light of this, if anything in Susskind’s thesis can be given short shrift it is his prognostication that demand for “bespoke” or customized services will be in secular decline. Given modern trends in legislative and regulatory drafting, in particular the use of “creative ambiguity” as it’s been called, demand for custom services will only increase.

Nevertheless, I predict Susskind’s work on The Future of the Professions will get a similarly warm reception from “Legal Rebels.” The narrative of lawyers’ obsolescence is just too tempting for those who want to pay attorneys less, reduce their professional independence from the demands of capital, or simply replace legal regulation of certain activities with automated controls.

However, even quite futuristic academics are not on board with the Susskindite singularitarianism of robo-lawyering via software Solons. The more interesting conversations about automation and the professions will focus on bringing accountability to oft-opaque algorithmic processes. Let’s hope that the professions can maintain some autonomy from capital to continue those conversations–rather than guaranteeing their obsolescence as ever more obeisant cogs in profit-maximizing machines.

 

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Evolving Towards the Law Classroom of Tomorrow

Are the law schools of today preparing new attorneys for the legal profession of tomorrow? The Carnegie Foundation’s Educating Lawyers: Preparation for the Profession of Law provided a strong critique of legal academia, and contended that new attorneys are not taught the practical, real-world skills, that attorneys need. As the report noted, to the extent that professors can “bridge the gap between the analytical and practical knowledge,” new attorneys would be better situated to compete in the marketplace and obtain the ever-so-important first job. A 2010 study by NALP similarly found that “experiential learning opportunities,” “hands-on” or “simulated learning opportunities,” are “instrumental in preparing new associates for the demands of the practice of law.”

Putting aside any disagreements over these studies, most in the academy and in practice would probably agree that there is a gap–of some size–between what is taught in law schools today, and what students today need to work as lawyers.

What about the skills that lawyers will need in the near-future? That, is a tougher question. The legal profession has remained largely the same for some time. Attorneys, as a bunch, are generally resistant to change. Sure, new areas of law come into vogue (e.g., international law), and new tools are introduced to make research easier (e.g., WestLaw Next), but for the most part, the legal profession consists of a lawyer, or group of lawyers, providing a one-off, customized service–such as a brief, memo, will, contract, trust, etc.–to a single client. Law schools aim to prepare students for this manner of work.

The future of the legal profession may look different. Richard Susskind in The End of Lawyers? Rethinking the Nature of Legal Services, augurs an evolution–enabled by advanced technologies, outsourced labor, and weak demand for expensive associates–from a time-consuming, customized labor-intensive legal market to an on-demand, commoditized information-based legal service. Professor Larry Ribstein, co-author of Law’s Information Revolution, similarly writes “that much of law’s future isn’t in how to price one-to-one customized legal services, but in the development of legal information products.” Many legal services that are created today through individualized, customized efforts by toiling associates, will be replaced by information products that can be downloaded on demand, like a commodity. Think of a hybrid of LegalZoom.com, Google,and Facebook: instantly obtain legal services customized to your personal situation with the click of a mouse. To preempt many objections, don’t be so certain your practice of law will be excluded from this automation. This transform no doubt would dramatically change the skills attorneys of the not-so-distant future will need.

To repeat the question I opened with, are the law schools of today preparing new attorneys for the legal profession of tomorrow? In many respects, the law student depicted in Norman Rockwell’s 1927 classic portrait (pictured above, I call him Abe) is not too different from the law student of today. Students are taught (hopefully) basic legal research skills, how to write, how to make oral arguments, how to read cases, and how to “think like a lawyer” (whatever that means). If Susskind, Ribstein, and others are right about the progression of how law is practiced, I ponder whether law students–as well as the Professoriate–will be prepared for the future legal profession. Will the gap between academia and practice grow even further?

So how do we prepare law students for the legal profession of tomorrow? The answer is well beyond the scope of this post, which I provide as food for thought. Though, for starters, banning laptops in the classroom is probably not going in the right direction. I hope to blog about this topic more in the coming month, but for now check out my liveblogged Google Doc article work-in-progress, as well as here, here, here, and generally here.

Crossposted at JoshBlackman.com.

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Parting Thoughts on the Profession

I want to thank the permanent authors of Concurring Opinions for the opportunity to guest blog. I truly enjoyed the experience and the lively debate. Academia can be isolating in many respects—particularly compared to private practice—so it is nice to have this type of forum to exchange ideas and discuss timely and interesting topics.

For my last post, I want to highlight some trends in law firm practices and consider what they mean for the profession more generally. We are all aware of the difficult job market: law school graduates continue to receive deferred offers, summer associate classes continue to be smaller and many lawyers who lost their jobs are still unemployed. (Even lawyers who managed to keep their jobs may face challanges, see here.)  These realities have translated into increased anxiety for law students (exactly what they do not need; law school is stressful enough when the market is good) and new challenges for law schools. But what do they mean for law firms?  (For a thoughtful discussion of the challenges facing big law, see here.)

Many commentators have opined on the changing roles of law firms and lawyers, and they often paint a pretty bleak picture (see here, here and here). It is one where lawyers are marginalized and society protects its legal rights by purchasing commoditized legal products or interacting with a computer program or virtual lawyer. The profession also faces challenges from non-lawyers and non-U.S. lawyers. In fact, anecdotal evidence suggests that an increasing number of firms are—either voluntarily (to reduce overhead) or involuntarily (to meet client demands)—outsourcing certain legal services to lawyers in foreign countries (see here and here).

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The End of Lawyers?

Or so says British lawyer and technology constultant Richard Susskind, whose new book “The End of Lawyers? Rethinking the Nature of Legal Services” is summarized by globeandmail.com as follows:

“In Mr. Susskind’s vision of the future, small law firms that dispense customized legal advice will be pushed out of business by technology-savvy and more nimble firms that dispense run-of-the-mill advice and legal documents through websites. Larger law firms will evolve into commercial enterprises with vast stables of legal, accounting and other experts geared to preventing and managing clients’ legal risks. These big firms will outsource basic legal services to cheaper quasi-legal experts and they will build retail kiosks or websites that allow clients to download regulatory expertise and draft legal documents any hour of the day.”

Seems this is already happening, at least in the U.S.

(hat tip to Laura Spitz)