UC Hastings experts weigh in on how technology is disrupting the practice of litigation and dispute resolution.
Perhaps there is no area of law more affected by technological innovation than the litigation practice. Consider how the field has changed in the past 80 years: In 1938, when the Federal Rules of Civil Procedure were first adopted by the courts, there were no direct-dial long-distance calls, no electric typewriters, no commercial jet travel. Over the years, these innovations, among many others, have had a direct impact on the courts—and the rate of innovation has increased exponentially ever since.
Professor Richard Marcus, Horace O. Coil Chair in Litigation at UC Hastings, is one of the nation’s most distinguished experts on this subject. As the primary drafter of the 2006 amendments to the Federal Rules of Civil Procedure dealing with e-discovery issues, Marcus literally wrote the book on how legal professionals must deal with electronic communications in discovery back when scholars and practitioners alike were still hotly debating whether electronically stored materials could be governed by pre-Internet rules of civil procedure.
In fact, when Marcus first started tackling the legal ramifications of electronic communications as the result of a 1997 conference at UC Hastings, Mark Zuckerberg was 12 years old. Today, Facebook and other forms of social media have become the email of our generation, and our increasing interconnectedness raises untold legal questions. Marcus predicts that by 2020, there will be smart devices for every human on earth. These devices can store enormous amounts of information, much of it shared. “When you think about the law as applied to all the data collected by these gizmos,” he said, “it can become a fairly monumental challenge.”
So how is the legal profession adapting to this new information-saturated reality, in which an estimated 2.5 quintillion bytes of data are created each day? And how is the profession ensuring that it can remain nimble enough to adapt to whatever new disruption lies ahead?
The Managerial Judging Movement
Academic Dean Morris Ratner, a former litigator and a specialist in civil procedure, said courts are already adapting to changes in technology and that trial courts now “harness it on a regular basis” by requiring electronic filings, proactively managing large data sets in discovery through standing or other creative electronic discovery orders, and taking advantage of technology to manage complex cases.
In his 2017 paper, “Restraining Lawyers: From Cases to Tasks,” published in the Fordham Law Review, Ratner documented how technology has allowed judges to take on managerial duties and split up litigation into smaller tasks, which gives companies more options to unbundle legal work for lower costs. The “managerial judging movement,” as Ratner and others have characterized it, has hastened the changes already happening in the private market, such as adoption of alternative fee arrangements and the creation of new professional norms that call on litigators to think more deeply and inclusively about value from the perspective of court and client when making litigation choices.
“Clients have a richer data set to manipulate if they know how to request it when bargaining for legal services,” Ratner explained. “If they track and analyze the right data, lawyers and law firms also have an informed basis on which to estimate the costs of particular tasks, including especially repetitive ones, which allows them to bid to perform those tasks on something other than a traditional hourly basis.”
As clients are now less inclined to give blank checks to their outside counsel, law firms will have to rely on the same technology that in-house law departments use to predict the cost and directions of a legal matter to better offer attractive alternative fee arrangements. This change will in turn force law firms to manage their business operations differently.
“Traditional firms that do not harness technology to efficiently manage projects will suffer in the legal marketplace, but firms that learn how to reduce costs without sacrificing quality will thrive,” Ratner said. “What we consider to be the practice of law will continue to change over time, as some tasks are automated, handed off to legal service outsourcing entities, or pushed to technical or other nonlawyer staff.”
The continued reliance on technology by the profession has resulted in the change of present-day standard requirements for lawyer competency. In 2012, the American Bar Association recommended a change to the Model Rules of Professional Conduct, stating that lawyers have a duty to be competent not only in the law and its practice, but also in technology.
“The rules don’t specify what technology we are supposed to learn because the rule drafters know that any such specification would likely be out of date in short order,” Ratner noted. “Instead, the rules put the burden on us as attorneys to figure out how to keep up.”
To date, at least 30 states have already adopted the duty of technology competency for licensed lawyers. For example, a few years ago, the State Bar of California Standing Committee on Professional Responsibility and Conduct issued Formal Opinion No. 2015-193, which states that “a lack of technological knowledge in handling e-discovery may render an attorney ethically incompetent to handle certain litigation matters.”
Marcus, who has confessed his distrust of “intrusive” technology and has often warned his students off social media, said he does not use Facebook and other such platforms, but he reads up on the latest innovations to stay current with what is happening in the courtroom. “It is always interesting to me to see what vendors are telling lawyers they should buy to improve their practice,” he said.
Even veteran litigators like Professor Shanin Specter, who teaches first-year torts and evidence at UC Hastings and has obtained more than 200 settlements and verdicts in excess of $1 million, has had to stay ahead of the curve to continue to be an effective advocate for his clients. “The essential form of advocacy, which is asking good questions and listening for answers, remains unchanged through generations, but in this multitasking, 24/7 world we live in, we have to make our examinations shorter and use more visuals,” he said. That means using the latest in courtroom technology, such as videos and graphic presentations, and using technology to manage cases.
Of course, the increased use of technology poses a cost question: Will the cost of litigation rise, and if so, who will bear it? “In terms of litigation, those with greater resources continue to enjoy advantages,” Ratner said. “But I don’t see technology as the culprit.”
Ratner views technology as creating opportunities that are not necessarily limited to those wealthy enough to purchase large firms’ services with an arsenal of technology tools at their disposal.
“Professor Clayton Christensen of Harvard Business School famously described disruption as starting at the bottom of any market, where low-cost, often no-frills innovation undermines the ability of those providing bespoke, sophisticated, and expensive services to charge higher prices,” he noted. “In the legal services sphere, consumers are often the first to benefit from disruptive innovation. For example, online dispute resolution services or providers of legal services have made [the] legal process available to persons who might otherwise have been unable to afford to meaningfully address legal needs.”
Dispute Resolution at One’s Fingertips?
Sheila Purcell, UC Hastings director and clinical professor of the Center for Negotiation and Dispute Resolution, couldn’t agree more. As one of the pioneers of court-related alternative dispute resolution (ADR), she is interested in the design and use of online dispute resolution (ODR) worldwide. Purcell has been a fierce advocate for using ODR tools in U.S. courts and abroad.
“Law is really behind finance, medicine, and all these other fields in realizing the responsiveness of online tools to design a system of handling low-value but high-volume cases,” Purcell said.
“It’s going to require lawyers to continue to evolve with technology in service of their clients,” Purcell said. Each year, Purcell oversees more than 300 students engaged in a dispute resolution course, the law school’s Mediation Clinic, and/or its award-winning Mediation and Negotiation Team. The training she offers covers using tools such as Skype, emails, text messages, videos, and multiple technologies for negotiations to simulate the end-to-end experience of resolving a dispute online.
Currently, Purcell noted, courts are starting small. In the U.S., courts have used ODR in low-dollar personal injury claims, such as landlord-tenant issues, small claims, and minor traffic and code enforcement violations, according to a 2016 report issued by the National Center for State Courts. In the United Kingdom, there is an even bigger push to use ODR in resolving most civil cases under £25,000. In the Netherlands, divorce-related issues are already being handled online.
Purcell recently spoke about the possible usefulness of ODR at a conference on cross-border child abduction cases between the U.S. and Mexico, sparing families the expense and stress of travel to achieve resolution. “The time has come for courts to fully embrace online dispute resolution in order to solve basic problems of access to justice and to ease overburdened court dockets,” she said.
In the meantime, Ratner urges all students interested in becoming litigators to take e-discovery, a course that nationally recognized e-discovery expert and practitioner Charles Ragan has taught at UC Hastings for several years. Ratner also touts a new course on artificial intelligence (AI) taught by Visiting Professor Francis McGovern. A trailblazer in the use of ADR to improve the litigation process, McGovern—who joined UC Hastings as a visiting professor in January 2018—has played a key role in some of the largest-scale mass claim cases in recent history. In the spring of 2018, McGovern taught a 3L class on mastering the use of AI in the legal space. Some of the aspects that the course covered included understanding AI, metadata, and the synergy of the two; confronting the legal, ethical, and behavioral implications of using AI in legal practice; and developing an ability to use legal robots in the practice of law.
For his part, Ratner believes artificial intelligence is already having a significant impact on legal practice. “We can now use programs to sift through data sets to, for example, predict how a judge will rule in a particular kind of case or on a particular kind of motion,” he said, adding that it is incumbent on educators to prepare the next generation of lawyers for this new paradigm.
“Our students need to think creatively not only about what the law is or should be,” he said, “but also about how to use the evolving technology at their disposal to better provide the most effective legal services possible.”