Interview by Emily Tan & Ong Chin Ngee | Edited by Irene Ng
As a visiting professor at the Singapore Management University (SMU) in 2018, Professor Dov Greenbaum taught the module “Introduction to Law and Technology”. In line with his research focus on the ethical, social, economic and legal issues in emerging technologies both in hi-tech and biotech, Prof. Greenbaum also delivered a seminar on the topic of “Legal and Ethical Considerations with the Advancement of AI and Machine Learning”. As part of his collaboration with SMU’s Centre for AI and Data Governance, Prof. Greenbaum is leading SMU students on a year-long project where students work with stakeholders of emerging technologies to develop a research paper providing actionable analysis of the technology and its implications.
Prof. Greenbaum has degrees and postdocs from Yeshiva University, Yale University, the University of California, Berkeley, Stanford University and ETH Zurich. Prof. Greenbaum has practiced law in Silicon Valley and in Israel, and is a licensed attorney before the State of California and the United States Patent and Trademark Office, and is a Certified Information privacy professional. He directs the Zvi Meitar Institute for Implications of Emerging Technologies and has a joint appointment at Yale University in Molecular Biophysics and Biochemistry.
The LawTech.Asia team caught up with Prof. Greenbaum in Singapore to hear his take on the development of Legal Tech.
How is the legal industry changing with emerging legal technologies?
In the world of emerging technologies, one of the topics that constantly comes up is the workforce. There are now many websites you can go to see if you will lose your job to robots. While it sounds terrifying, it happens all the time with emerging technology. We have seen it with horse populations in the US. Their populations were rising until cars became popular, and then horses were no longer needed to pull carriages and their population plummeted. We will likely see a similar trend with trucks and taxi drivers since we are going to have autonomous trucks and taxis, which will cause their jobs to go. Again, this happens all the time, we are constantly getting rid of old skills and replacing them with new skills. You likely don’t know how to do many of the daily chores that your great-grandparents knew how to do such as farm, milk a cow or churn butter. This is the way of technological innovation: We lose skills, and we gain new skills. We lose old jobs and we replace them with new jobs that we couldn’t have even imagined years ago. Did you know that Facebook employs 7500 content moderators! Was that even a thing a decade ago?
It will probably be the same for lawyers; you will lose some legal skills for the things you no longer have to do (hopefully the drudgery and not the fun stuff). For instance look at case reporters (official reports of decisions). As a lawyer, now you do not have to know how to use a case reporter. But when I was a student (not so long ago!), part of the skills that were taught to us law students was learning how to look for cases in a physical case reporter (a book!). But now, I do not think that my students even know what a case reporter looks like. Instead, they use online databases. In the future, lawyers will learn even newer skills. They will also have to find a way to become useful and relevant when technology makes it easier to practice law. the market will also self-correct, and we might see less lawyer jobs in the future.
We are likely to see this first affecting the first-year attorney. As a first-year attorney, you have no knowledge of what being a lawyer entails, and are being trained on the job. Your superiors will ask you to research and write memorandums to train you. However, in the near future, artificial intelligence (AI) would be able to do that better than you can, and faster and cheaper. The question thus becomes at what point are law firms going to look at you and say, we wish we could train you, but we no longer need your work anymore, and we can’t justify your continued employment to our clients. The AI and predictive analytics can do it faster and cheaper and law is in the service industry. The profession as a whole may have to decide how it will be able to continue to afford training young lawyers when their limited legal skills are redundant and their job can be done better by robots.
In all likelihood, either the market will self-correct and create a new area of law which needs a certain amount of young unskilled lawyers or, it will self-correct and only the best attorneys will survive: as an attorney, you will have to learn to stand out in order to survive. Perhaps gaining a special skill set that the computer does not yet have.
No matter how the future actually plays out, your best bet is to solve problems and work in a team. You should have a skill set that lets you, as a young attorney who faces a very uncertain future, deal with issues that have yet to arise. Something that makes you different and more marketable than your law school peers and the robots that will be replacing many of you. In other words, you have to ask yourself this question: what value can you add to the firm in the era of emerging technologies? Why would you not be redundant to the firm?
There is a silver lining in all this: law firms take a long time to adopt new technologies, and in the foreseeable future, not a lot of firms are going to adopt these technologies. Law firms are also risk averse, so even if they do adopt some technologies, they will also employ humans to redundantly perform many of the same tasks.
Why do you think Law firms do not want to adopt legal tech?
Law firms are dinosaurs and they often work on an outdated business model, which is billable hours, and they thrive on inefficiency. The more billable hours you can bill, the more money you make. And as long as you can get your client to pay, that’s fine; the system works. Also, like I said, law firms are risk-averse and do not want to change. Like the insurance industry, the airline industry and other industries that are slow to evolve, they have proprietary bespoke legacy systems, which they use and do not want to change. Changing will also cost a lot of money for law firms, especially in the case of big firms. It also means re-educating older attorneys who may have only for instance, just learned to use Microsoft Word, in another new technology. So again, they do not like to change, are slow to change and are risk-averse.
There is going to be a time where it is malpractice to rely on an algorithm, but at some point, it will be malpractice not to use an algorithm.
Say you want to import legal tech into the legal world. Perhaps you want to replace the hours of work that a young attorney might put into reading a long and complex contract with an algorithm. The law firm is still going to also check it through manually because they would be afraid that the algorithm is going to miss something and the client may sue, if the algorithm missed something. Or, the law firm may possibly get in trouble with the local bar for malpractice for not checking it manually.
There is going to be a time where it is malpractice to rely on an algorithm, but at some point, it will be malpractice to not use an algorithm.
So while at first, people will not trust algorithms that replace human thought and intuition, making it likely to be considered malpractice to use it, later on, society and the legal world may recognise an algorithm as much more reliable than a person. They make fewer mistakes, they don’t fall asleep, they work a lot better, they work a lot faster and they don’t complain. And the question would then be: why didn’t you use an algorithm? That dividing line between ‘why did you’ and ‘why didn’t you’ is going to be hard to find, which is what law firms are afraid of.
What are your thoughts on smart contracts? Will they reduce the pie for lawyers?
Smart contracts have a role to play. Basically, a smart contract is code that is self-enforcing. For example, if the smart contract states that doors have to be locked to the AirBnB that you are renting by midnight, it would indeed be locked by midnight and one would lose access after midnight.
However, the problem with self-enforcing contracts is that contract law likes breach when necessary, and smart contracts do not easily allow that. In other words, smart contracts do not allow you to renegotiate and breach; the person is locked into a position. Sometimes, people want to breach the contract and then reach a mutual understanding with the other side. But a smart contract typically forbids this: once the contract is broken, there is no room to wiggle.
On the flip side, smart contracts are very efficient. You can have self-enforcing smart contracts with a million people. All that one has to do is to write the code and enforce it; the latter part is easy to do.
Do you think that small firms will be the first to be wiped out by legal technology?
Well, if a small firm is smart, they will adopt more capabilities sooner. They will look at the big firms and realise that to compete they will have to be more agile. A small firm may say: we’ll use the latest technology and tell the clients that we have this technology, so come to us. How does any firm compete with big firms? Either they give you personal service, charge you less, or they give you something that other law firms don’t have. Which might be technology.
There is a lot of legal tech out there, and its growing. Sometimes people call legal tech simply a better way to run a firm, more management tech than legal tech, how to bill better or how to find holes and inefficiencies. But some legal tech is ‘real legal tech’ which examines the law, and determines the outcome. So it’s a mixed bag.
How can legal tech firms make their technology more attractive? What should they consider when promoting the adoption of their technology?
One way is to find the lawyers that want to be efficient. Some legal tech firms I know approach the in-house attorneys and pitch their technology as a cheaper alternative to hiring a big law firm since the law firms themselves do not have the will to adopt these technologies.
You could also do what LexisNexis and Westlaw did when I was a student, offering their service free to law students and even rewarding students for using it. They had an expensive product and were trying to convince law firms to use it. So they approached law students and trained them to use their technology as the way to do legal research. When law students enter a firm which does not use the legal tech they have found useful in school, they may influence a firm to adopt that technology.
This interview has been edited for brevity.