“The will is infinite and the execution confined,
The desire is boundless and the act a slave to limit.”
Troilus and Cressida
In the noise, find the signal.
At High Performance Counsel, we’re on record as saying that the legal “space” will indeed become a true legal “industry” – and that the pace of change around digitization will accelerate rapidly in ’18 and beyond. Some of our views may be more aggressive and far-reaching than are comfortable (or yet within view) for many – but few would argue that change isn’t all about. Innovation is moving beyond theory into day-to-day usage and technology is becoming a proud professional enabler, not a stumbling block. There is a curious and inevitable tussle underway within the legal sector between those that see far ahead and those that would prefer not to. Between those who embrace change and those whose interests may be less well-served by the disruption of the status quo.
For many, the world of opportunity is limitless – a new dawn in innovation and technology beckons – but, to address the quote, “the act (is) a slave to limit.”
It is no accident that when we launched High Performance Counsel, we proudly and specifically set out to tell the story of the next ten years in law – we think it is an ample timeframe within which to see generational changes and new foundations laid for a significantly re-designed (transformed) legal business sector. Not all change happens overnight – and there is sometimes a sense of endless waiting. In sailing, it’s essential to factor in both wind and tide – at least if you intend to stay off the rocks and win races. Both are in evidence in the legal industry today. There can be no doubt of the tide moving slowly, deliberately and consistently toward digital and technical enablement – and of the growing awareness that labor-driven business models are changing throughout society. That is to understand the tide. To win the race, one must also play the wind – to see the breezes (and storms) forming ahead, to consult the radar and the data points that pierce the night when others are resting. To only see what you see is to see very little. This demands more.
Strong winds are forming – some as light breezes you can see ahead agitating the surface – but indicative of more. Following are easy examples and, at least to us, stand out like shining beacons:
- Blockchain – and the end-to-end reinvention of mainstay functions like contract management
- Crypto-Currencies and the myriad of exciting new products, regulations this will spawn
- Digital productization of knowledge and the de facto reinvention of law firm deliverables, revenue management
- Acceleration in data volumes and complexity – and the need for industrial strength solutions to stay on top of the growth
- New faces – the inevitability of new faces from outside the industry making their way into the ring
- The social workforce – the inevitable impact of on-demand labor sourcing across a wide range of legal functions
- The next re-invention of in-house legal staffing around outsourcing and managed services
- Voice – the opportunity for voice-enablement and voice-driven services delivery is vast
- The role of qualifications – the rise and rise in relevance and value of non-Bar qualifications e.g. in technology
- Community – we have never seen a more important time for peer interaction – and organizations like ACEDS, CLOC are leading the way
In future issues of High Performance Counsel, we’ll touch on each of these in turn. For now, we address the question of what is #topofmind for us. As we peer into the dark and lean toward the wind, we cannot ignore the looming significance of these items – and the sheer scale of opportunity / disruption that each presents
In the noise, find the signal. Be confident in what you hear – and act on it. The legal field is emerging into a new era of opportunity. There will be unprecedented opportunities to grab marketshare – both new and from existing participants. There will, for sure, be new winners and some new losers. And there will be new names who enter the space that no-one is yet even thinking about.
So, listen carefully. The game is afoot.
David T Kinnear
’18 is a watershed year for law. Top of mind for me as I steer High Performance Counsel through the early stages ’18 is “the inevitablity and speed of change” in the legal industry. It would be easy for us to sugarcoat the change we see coming – to make it more comfortable or palatable. But that would be a great dis-service to so many who find our publication to be a place of authenticity about what’s happening and where it’s going. Law is closely following the same track as HRO and BPO took in their day – but technology is accelerating exponentially, not in parallel formation. So figure, we will see new business services players harnessing big ticket tech resources making a play for law – tapping into corporate IT connections – and it will start in ’18. From there, the acceleration will be startling for many and the competitive benefits of scale will become truly apparent.
“Our legal profession is changing. There are countless factors bringing about this change, but the status quo is no longer an option. The effects of these changes, whether positive or negative, will depend on how ready we as individual lawyers and as a collective profession are to face these changes. To remain competent, lawyers must embrace and apply legal tech tools. They need to become T-shaped lawyers. Law schools must focus on innovation. Law firms must become leaner, more diverse and more efficient in providing value-added services, while both working with and competing against the growing number of specialized service providers. This is our brave new reality, embrace it or you will be left behind!”
“Blockchain technology will appear to be partially discredited as 2018 progresses, and it will start to recede from hype and prominence, but then it will return to decisively disrupt the entire legal industry – with shocking speed and impact.”
How do organizational leaders foster a culture where the internal domain experts — central to the success of AI initiatives — embrace those same initiatives when the benefit to the organization is adverse to the traditional power and prestige drivers for the domain experts?
Lawyers: Please engage AI before it disengages the law.
Disruption happens by accident. The IPhone didn’t plan to disrupt the calculator, watch, GPS and the portable music player. It just did. Without really caring about these markets.
AI is doing the same thing to services. No one at the AI labs is thinking about Law. They don’t care to disrupt lawyers, because honestly, they don’t care about you. They care about “solving” intelligence. What does that mean? No one knows, but it relates somehow to self driving cars, conversational user interfaces and Angelina Jolie’s self elected preventive double mastectomy.
Maybe some of you know about Alibaba Taobao User Dispute Resolution, Modria and Compass. They are the prelude to the prelude. They all could easily use AI but still don’t.
The Law will be disrupted alright, just not on purpose. Lawyers: Please engage with AI and maybe you get to shape it, a bit.
Law firm dependency on technology to manage cases, billings, communications, marketing, and more continues to increase. This hyperconnected dynamic can lead to greater efficiency, cost savings, and competitive advantages, but it also creates cyber risk. I expect to see more firms come to appreciate that cyber risk cannot be eliminated, only managed, and that the right cyber insurance can be a key part of a truly effective cyber risk management program.
Legal Tech deepens and extends its reach.
Global Legal Hackathon, TECHSHOW, UF Levin School of Law, RelativityFest London and CLOC. Five different constituencies addressing ediscovery, edisclosure, privacy, security and automation in three short months.
Privacy as a profession, for lawyers and non-lawyers, is the hottest new career path in the legal and technology job market! The overwhelming demand for talent with GDPR consultation skills whether engaging outside counsel, contract consultants, or large consulting firms has shone a spotlight on privacy. IAPP certifications like CIPP, CIPM, and the coveted FIP designation quickly separate elite privacy pros from new entrees in the vertical. DPOasaService is gaining momentum as corporations aim to reduce cost and risk concurrently while still addressing complex compliance regulations brought on by the EU. Get privacy saavy before there is a saturation of talent.
As society continues its rapid march towards the datafication of everything except the kitchen sink (I know, there’s probably a “smart sink” on the horizon!), it begs the question of just how much this noble profession can be boiled down to calculations based on a series of raw data points. Law certainly has layers of complexity not found in Medicine or Finance where cognitive technologies found their early adopters, but given enough raw data to provide the all-important context, it is not necessarily as opaque as some might suggest either. It will be years before we come close to answering the overarching question, but in the meantime much can be learned by viewing the activities of your department or firm through the lens of data. Just be sure to remember the GIGO principle … Garbage In, Garbage Out!
It is essential to integrate squarely the fraud risk of crypto currencies into ERM programs, across all three lines of defense, and within the scope of independent forensic investigations. To manage crypto risks effectively, organizations can’t treat crypto as an isolated risk… but must accept the wholistic convergence of crypto, fraud, anti-money laundering, FCPA, and cyber. Fraudsters win when companies try to manage these risks in isolation, especially if companies try to manage them within geographic silos… as fraud knows no virtual or geographic boundaries.
“AI will not replace lawyers but lawyers not using AI may replace lawyers who are using AI in the future. The future is about lawyers using AI to improve efficiency and accuracy of work.”
“One of the most amazing things I have seen is the growing role of a supportive legal tech community where people can go and connect with others in the space, have support for job seekers, educate themselves and grow their career and just have a place to belong. It is especially important as we see job opportunities shrinking and changing in our disrupted marketplace.”
How we could drive real change and value for clients through “competitive collaboration” between legal organizations. In BigLaw, we struggle with managing “innovation” and change through federations of partnerships with outdated business models laden with regulation, and most often, partnerships who do not want to invest in R&D or diversity in executive talent (i.e., “non-lawyer” business leaders). We also lack diversity in leadership in BigLaw. True collaboration could allow law firms to capture a range of diverse views needed to truly effect change and elevate client service, legal results and more, while escaping regulatory limitations and common drags on organizational change.
‘The legal industry is going to industrialise, whether this happens the easy way, or the hard way. And, it’s probably going to be the hard way.’
Richard Tromans, Founder + Consultant, Tromans Consulting + Founder of Artificial Lawyer
With the recent retirement of Judge Andrew Peck and a steady stream of e-discovery savvy judges leaving the bench, who are the next line of judges to carry the e-discovery torch? Without strong advocates on the bench to enforce and uphold the new e-discovery rules, are we going to take two steps backward? For reasonable, proportional and defensible e-discovery practices to become the norm, we need even more judges to be outspoken in their courtrooms and at educational events. I am excited to see who emerges and how they will shape e-discovery practices moving forward.
Sharon D. Nelson, Esq.
If 2017 was the year of artificial intelligence proving its practical worth to law firms (and it did!), 2018 is looking to be the year of blockchain. Most lawyers still look like the proverbial deer in headlights when they hear the word “blockchain” but it is here in a big way already, particularly with respect to cryptocurrencies. Currently, those who embrace innovation in the law are seeing the promise of blockchain as a distributed ledger of transactions that will impact smart contracts, real estate transactions, estate planning, financial transactions and much more.
Perkins Coie now states it has over 40 attorneys focused on blockchain technology and digital currency. What does that tell you?
“Diversity has been a buzzword for years. 2018 will be a year you see more women and people of color earn a spot at the legal innovation / entrepreneurial table not because of other’s largesse, but because they solve real problems and thereby create value.”
Tom Martin, Founder of LawDroid
People who need lawyers don’t hire lawyers. Many lawyers are underemployed. Top of my mind is mobile apps as the solution to this dichotomy.
“Plain and simple: Excellence. Excellence in everything we do as a legal department. As we build upon our current foundation for the issues we have before us and those that will come (“skate to where the puck is going”), we are setting (and will achieve!) a level of Excellence in all that we do. “
“A major corporation will move its routine contract work from paper-based to blockhain-based, resulting in the first law department to have fully computational contracts. The change will force trading partners to move to digital contracts and will both speed up the contracting process as well as reduce the error and dispute rate for the contracts. The move will signal mainstream acceptance of blockchains as a medium to replace paper contracts starting a trend in the industry.”
Observation: We all are running so fast that we often forget to stop to confirm and appreciate the value of trusting and honest relationships. Instead, seeking to find the best tools, technology and totality of solutions is the singular quest. Important — yes…yet not the only thing.
Thought: SLOW DOWN. FIND GREAT PARTNERS. USE THIS AS THE BASIS AND FOUNDATION TO SUCCESSFULLY BUILD AND SCALE.
Prediction: Those who find value in trust, and who themselves are trustworthy, will be worthy of true greatness – for themselves and all involved.
#MeToo. The “Me Too” movement has good reasons behind its momentum, and may not be a fad going away anytime soon. Boards need to know what is going on in the company as they are responsible for its culture. This requires that they have full understanding of what that culture really is, and what it allows. They also need to take timely and often uncomfortable actions to correct all such issues discovered. It’s better to clean out, or toss out, your dirty laundry before it gets aired in public for you.
Let’s stop focusing on “disruptive” legal tech. The materiality of its application, ease of use, and value to consumers is what matters.
“It’s all about people, relationships collaboration and cutting edge transformation.
CLOC is leading the transformation for a new role in the legal operations industry. The in-house legal operations professional brings together business and legal to create efficiencies across organizations and to enable legal professionals to work in a completely different manner. And, bringing change-leaders together and enabling collaboration across the entire legal ecosystem not only a focus, it’s a passion. Together, we can shift the industry!”
In honor of our conference host city, San Francisco, CA, the theme for the HNBA’s upcoming Corporate Counsel Conference (“CCC”) is “Innovate!” and our programming is focused exclusively on emerging trends in the law. In our CCC Welcome Letter, I opined that the Greater Bay Area’s status as the global epicenter of “Disruptive Innovation”is a direct result of its rich history of diversity & inclusion (including indigenous inhabitants dating back 5000 years; Spanish settlers; Chinese immigrants; and the African-American, LGBT, and UC Berkeley student-activists responsible for this country’s counterculture movement) and the political, corporate, and social environment that emerged, in which “thinking differently”– in whatever form it came– was both celebrated and encouraged. I also noted that the legal profession is the least diverse of all professions in America and has been repeatedly called to the mat for not being nearly innovative enough to meet the demands of current or future clients.
HP Inc. CLO Kim Rivera (Honorary CCC Chair) agreed with my D&I/Innovation hypothesis and recently shared with me that corporate leaders in Silicon Valley now have a body of quantifiable data drawing a direct correlation between D&I and innovation, and that they are “all in a race” to be the leader in corporate D&I because they believe that it is key to winning the “innovation race.”
Given that the number of Latina/o lawyers in this country has grown only 0.02% over the past decade, as National President of the HNBA, I can’t help but wonder when the profession will catch on and finally tackle D&I as a business imperative essential to legal innovation and their own future survival?
Alternative (non-hourly) fee initiatives for complex work are gaining momentum. This trend presents a great opportunity for law firms that understand their own costs and can be proactive about proposing new approaches to pricing and staffing. For those that are not ready for this change, 2018 could be a difficult year.
Everyone’s talking about artificial intelligence, but quietly, there’s a revolution in legal data. Machine learning is trained on data, so legal data sets will take on more importance than ever in an era of artificial intelligence. We should be bullish on the potential for AI in law – but we shouldn’t lose track of what’s going to power that revolution: legal data sets. I’m biased, though; I’m the editor of a great book of essays on the subject coming out in October – Data-Driven Law.
The legal community will continue to embrace total digital transformation. With in-house tech labs and roles like CTO and CSO, eLaw is going to be a thing, just like eBanks.
Thanks to ZorroSign 4n6 (Forensics) Token, eSignature-n-digital document finally offers the same level of trust, security, and peace of mind about signature forgery and document tampering as pen-and-paper does. The technology offers more like audit trail and life-time document escrow.
“In the digital era, it’s more important than ever for lawyers to provide an effortless and exceptional client experience, especially when it comes to communication. With the right technology, law firms can deliver a low-friction experience, instant access to information, and timely answers that the new generation of clients are looking for.”
Sonya Olds Som
The Future Is Inclusive. The Future Is Diverse.
This summer we are going to hear stories about how a legal practioner collaborated with technical engineer to build a solution to fix a common and unthoughtful process in their workflow. Each story while wildly different will have a common thread of both sides working together to create the best balance of knowledge and technology. Their different viewpoints, but desire to solve the problem in a meaningful way will pave the way for real innovation to finally start being something we can expect instead of hope for.
I think Winfield v. City of New York is indicative of new priorities in data discovery law. Last fall, Judge Parker issued an opinion and order on technology assisted review (TAR), and in February, she moved on to the issue of data privacy—in this case, the protection of data from disclosure on the basis of deliberative process and other privileges or the protections of the work product doctrine. Going from TAR to privilege protections mirrors what’s happening in the industry and the profession. TAR is still an important consideration in discovery, but whether it’s the European General Data Protection Regulation (GDPR) or social media password protection legislation in the United States, data privacy is the big data discovery issue of the day.
“In 2018 law firms and law departments will increasingly leverage advanced technology to collaborate more effectively. Adoption of automation and deep learning tools by legal departments will not cannibalize law firm work. Instead, it will allow firms to focus on premium value complex work and to help law departments use technology to become a bigger contributor to shareholder value through cost savings.”
GDPR goes into effect on May 25, 2018…many organizations are taking a wait and see approach. Non-compliance will result in fines of up to €20 million or 4% of the organization’s worldwide annual revenue of the prior financial year.
Who will be hit first and to what extent? Will the EU Supervisory Authorities (SAs) and the European Data Protection Board show any leniency?
Only time will tell…still have time…better late than never!
Which leading firms will you call on to help you fight liability and damages stemming from regulatory action, as well as subsequent securities class action claims? How will you protect the board from exposure?