“We cannot solve our problems with the same thinking we used when we created them.”
Artificial intelligence (AI) has been the big legal industry story of 2023, and there are a legion of reasons why. Generative AI’s rapidly expanding capability to perform many legal tasks will impact delivery structures, economics, talent, education, training, career diversification, regulation and compliance, commercial transactions, and dispute resolution. Gen AI and predictive AI pose an existential threat to legacy legal stakeholders and paradigms that have become increasingly misaligned with the needs of digital society.
Few in the legal industry imagined the future would arrive so suddenly.
AI will recast what it means to be a lawyer, how lawyers and allied professions deliver their products and services, facilitate-not impede-commercial transactions, and replace protracted litigation as the default dispute resolution mechanism with avoidance. “Litigation avoidance,” will be facilitated by robust, cross-functional, enterprise-wide (perhaps industry-wide) data, enabling early risk detection, remediation, projected outcomes (available to both sides), and early resolution. Predictive data will not replace professional judgment; it will enhance it by providing a quick, holistic, data-backed foundation to support an early case strategy.
AI also has the potential to democratize access to legal services, making them more cost-effective, efficient, less opaque and forbidding, and predictive. It will reduce the need for licensed attorney engagement and/or minimize their “high-touch” involvement for many matters. Most importantly, it can take a big bite out of the scourge of unrepresented individuals and SME’s (commonly referred to as the “access to justice crisis”). The profession’s failure to diagnose and treat this severe professional and societal illness has compromised public trust in the rule of law and weakened democracy. AI is not a panacea, but it is a promising component of a broader strategy the legal profession must forge to restore the public’s respect for the rule of law.
A Reckoning With Law’s Past
There is another part to law’s 2023: the profession’s reckoning with a present deeply rooted in its past. The studied stasis, short-term perspective, and intractable mindset of law’s legacy stakeholders have provided them rich returns. That has come at a steep price for clients/customers, society, the rule of law, and the stability of American (and global) democracy. The profession’s passive aggressive response to change, torpid adaptation to the needs of a digital society, and high-profile, self-inflicted wounds -several of which are referenced below- have come home to roost.
Lawyers may not be the proximate cause of record-law public distrust in government and institutions that has been playing out for decades and is nearing rock bottom. The profession has, however, contributed to it by an internal focus and self-regulation that has widened its gap with society. Anachronistic legal institutions, viewed by many as elitist and detached from society (except for big business and the wealthy), have contributed to social fragmentation and a search for something different. This has fomented populism, “alternative facts, and” “bespoke realities, and other anti-establishment trends that challenge-and sometimes shatter-behavioral norms.
Social media’s reach, ubiquity, instant impact, and lack of filters, has given voice to and normalized fringe views and vitriol. It has supplanted mainstream media sources, especially among younger generations, as society’s primary source of news, information, and commentary. Algorithms create echo chambers for like-minded individuals and groups. The legal profession has largely remained on the sidelines.
The court of public opinion, propelled by social media and reinforced by a polarizing echo chamber, is rapidly challenging courts of law as arbiters of social fault lines. A festering access to justice crisis, an agonizingly slow judicial process out-of-synch with the speed of a digital world, the convergence of law and politics, the weaponization of the judicial system to achieve political and ideological objectives, ethical breaches at the highest levels of the profession, and a failure by several high-profile lawyers to honor their professional oath are among a long list of legal embarrassments that have played in public view during the past year.
The Legal Profession’s Really Bad, Terrible, Awful Year (Moolah Aside)
The legal profession’s 2023 , to borrow from the late Queen Elizabeth II’s characterization of the British Royal Family’s 1992, has had an “annus horribilis.” It could not have happened at a worse time. Here is a sampling.
- The Stanford Law School Shout Down involved a 5th Circuit judge invited to speak at the law school but unable to do so because of non-stop heckling by a group of law school protesters. Law school administrators took no action, even as the judge left. Days later, the Dean offered a lawyerly written apology. This reprised similar incidents at Yale Law School and UC Law San Francisco (f/k/a Hastings Law). It is emblematic of the loss of civility and respectful exchange of divergent views, long a cornerstone of higher education and the legal profession. This cuts across both ends of the political spectrum and reflects an ideological weaponization that is kryptonite, especially for lawyers.
- Law schools say their core mission is training students “to think like a lawyer.” Acting as like a lawyer is just as important as thinking like one. It means engaging in a professional, respectful, tolerant, and ethical manner that not only accords with the Code of Professional Conduct but also sets a high standard for society. Such behavior is an essential element of the adversarial collaboration that is (or should be) the practice of law. Apparently, deportment must now be taught by law schools.
- Denying an invited guest (or student in a classroom, politician, etc.) their right to free speech is not the exercise of the heckler’s protected free speech. Nor is it the type of conduct that educational institutions—especially law schools—should condone.
- The collision of free speech and student safety at University campuses (including law schools) has exploded since the October 7th Hamas attack on Israel and the Israeli response. A flashpoint occurred almost immediately after the attack when multiple student groups at Harvard University released a statement saying Israel was “entirely responsible for all unfolding violence. Skyrocketing incidents of targeted bullying, intimidation, threats, and physical violence directed at Jewish and Palestinian students ensued. The muted responses by University Presidents have become a flashpoint. This was cast in high relief at a recent Congressional hearing when the Presidents of Harvard, MIT, and Penn were grilled on the issue. The President of Penn and the Chair of its Board have since resigned.
- The President of NYU Law School’s student bar association had her Big Law job offer rescinded after she publicly sided with Hamas, casting blame on Israel. This widely publicized incident provided an opportunity for law school deans, managing partners, and other legal leaders to issue a thoughtful statement about the issues raised and constructive suggestions for addressing them. A few have stepped forward, but the profession has largely remained on the sidelines.
- A leaked Supreme Court Draft Opinion overruling Roe v. Wade, the first such leak in High Court history, caused a political uproar. The source of the leak was never found. Two months later, Roe was overturned.
- Confidence in the Supreme Court sank to its lowest point in at least 50 years in 2022 in the wake of the Dobbs decision that led to state bans and other restrictions on abortion, a major trends survey shows. Only 25% of those surveyed expressed confidence in the Supreme Court.
- Partisanship in the Supreme Court, ethically questionable conduct involving two Justices, an absence of High Court ethical guidelines, and a subsequent outline that would not pass the void for vagueness doctrine (or the giggle test) have made headlines and tarnished the reputation of a branch of government and the pinnacle of the legal profession.
- Derek Bok, the former President of Harvard University and Dean of Harvard Law School, delivered a prescient speech to the University’s overseers in 1983, decrying the lack of access to legal services and the profession’s focus on representing big money to make it themselves. He said, “There is far too much law for those that can afford it and far too little for those that cannot.” Forty years on, things are even worse. This has cemented widely held public perception that law is for the rich and lawyers are in it for the money.
- “Show me the money” is at the core of contemporary legal zeitgeist. “ Approximately 10% of U.S. attorneys work at large corporate law firms (a/k/a “Big Law), yet Big Law dominates the legal press and industry focus. The annual American Lawyer Survey ranking Big Law partner (now equity partner) earnings is the industry’s gold standard for its vitality. What about client satisfaction, provider net promoter scores, and accessibility of access as metrics?
- Comparatively little attention is paid to the retail (individuals and SME’s) legal market segment where many more lawyers work than in Big Law.
- Even less focus is on the profession’s (in)ability to improve access to legal services to those in need of them. Pro bono services are laudable, but the profession as a whole has failed to coalesce and implement a solution to the access to justice problem. This has had a profoundly deleterious impact on public distrust of lawyers, legal institutions, and the rule of law.
- Lawyers consistently oppose initiatives to modernize the delivery of legal services making them more accessible, affordable, transparent, and “lawyer-lite.” The profession’s go-to justification is “protecting” the (unrepresented) from charlatans. Too often, lawyers have played the “profession card” to protect their monopolistic business interest. This is emblematic of its intentional conflation of law as a profession and as a business.
- Law’s stakeholders are allied in their efforts to preserve the status quo, but generally balkanized beyond that. There is no organization or unified voice that speaks on behalf of 1.3M US lawyers.
- The American Bar Association (ABA) was once that voice and wielded considerable influence within the profession and beyond. Forty years ago, 50% of all American lawyers were members. That figure has dwindled to 20% now, fueling the contention that the ABA is passe.
- Law and politics have long been intertwined , but that linkage has changed dramatically during the new millennium. Consider the 2000 election whose outcome was determined by a 5-4 Supreme Court ruling in favor of George W. Bush. Both sides mounted armies of attorneys who worked around the clock for 37 days after the final vote was cast to secure a favorable outcome for their client. When the decision came down, Al Gore respectfully disagreed, then pledged his support for the incoming President. That seems like an American fairytale now.
- A New York Times Magazine article by David Enrich, “How A Corporate Law Firm Led A Political Revolution,” chronicled the strategic, quid pro quo, political role a large law firm played in the 2016 election. He highlighted the blurred line that now distinguishes legal and political activities. This is not confined to one political party or a specific issue.
- Deborah Pearlstein wrote a stinging Op-Ed in The New York Times, rhetorically asking (then answering) why so many of Trump’s alleged co-conspirators are lawyers. She cogently analyzed the profession’s polarization, politicization, and ethical elasticity. She conceded the multi-layered challenge of changing this: “Changing the increasingly polarized nature of the legal profession is a more complex enterprise — one centrally bound up in how we learn, teach, reward and punish what lawyers do. It is a long-term project. With little time to lose.”
- The court of public opinion, turbocharged by social media, is rapidly challenging courts of law as arbiters of social fault lines. Courts move at a glacial pace; public opinion is forged quickly, constantly reinforced by social media algorithms and “news” and “journalism” tailored to a particular audience.
- “Lawfare,” the weaponization of national judicial systems by political parties to delegitimize political opponents has become all too common. Its impact hinges on the willingness of lawyers to aid and abet it.
- A Presidential candidate charged with 91 counts of federal crimes in multiple proceedings is the odds-on favorite to secure his party’s nomination. His poll numbers show him comfortably ahead of primary challengers and neck-and-neck with his presumptive general election opponent. His numbers have increasedas his legal issues have mounted. What does that say about public regard for the rule of law and faith in the legal system?
- There is a long list of once unthinkable, now all-too-reasonably foreseeable scenarios that will further test the legal profession and the rule of law during the coming year. Will we witness a replay of January 6, 2020, perhaps even worse? Will claims of politically-motivated “witch hunts” and/or a “rigged” election be raised? Will lawyers involved in the election process uphold the Constitution and the rule of law, notwithstanding tremendous pressure and/or short-term personal gain not to? Will death threats and other forms of intimidation to lawyers, judges, court personnel, witnesses, election workers, and their families involved in the judicial and election processes have a chilling effect and, perhaps, change the outcome? The specter of raising all this speaks to how dire things are and how much worse they could become. This is America’s crucible. Why is the legal profession collectively silent?
- The snail’s pace of legal proceedings is colliding with the Presidential election cycle. It is reasonably foreseeable that only one, perhaps none, of the criminal cases emanating from the 2020 election and its aftermath will be tried before the 2024 election. This could significantly influence the election’s outcome and further marginalize, if not effectively render moot, those cases. Delay can no longer be a tactic (if not a strategy) in resolving any kind of dispute, much less the cases in question. The legal profession must coalesce around streamlining the judicial process. Failure to do so will marginalize the impact of judicial proceedings on the public’s perception of their significance and legitimacy.
There are 1.3 million lawyers in the United States. Most are competent, hard-working, ethical, professionals. Few have the luxury to analyze the profession at a macro level; they are engaged in practice, pro bono and community activities, and trying to adapt to the Warp-speed of an increasingly complex, uncertain world and to find their place in it.
Law has a leadership void. Its key stakeholders are balkanized and rarely gather to discuss issues that affect the entire profession and the society it covenants to serve. Those conversations are essential to achieving a better integrated, more cohesive, less compartmentalized and polarized profession.
A good starting point for the discussion is an action plan to restore the profession’s commitment to furthering the common good. Lawyers have a dual role: they are client advocates and officers of the court. The duality of the legal role—and the commitment to something even larger than the individual matter or client—has become less important for many lawyers. That may be the crux of public distrust for lawyers and legal institutions.
The legal profession can fix this. It won’t be easy but it must be done. The clock is ticking. There’s no time to waste and much riding on it.
Article originally published in Forbes
The courage, professionalism, and dogged determination of those involved in the prosecution of cases emanating from the 2020 election and its aftermath is exemplary. They are working under constant threats to themselves and their families. So too have judges, their staffs, and witnesses labored under intimidation that has no place in the judicial process. Their dedication is ray of light in law’s dark year that cannot go unnoticed and unaddressed.