The amount of content foretelling the disruption of the legal industry is legion. But according to a recent article in the Yale of Journal of Law and Technology, the boundaries and definitions of legal work are headed towards a pivotal moment of change.
Our very own LAWsome Podcast sat down with two authors from the article, “Lola v. Skadden and the Automation of the Legal Profession,” to summarize the article, reveal the facts of the Lola v. Skadden case, unpack the constructs (both literal and psychological) that hold the legal industry back from innovation, and define next steps possible.
Jake Sanders: Michael Simon is the principle of his own legal technology consulting firm, Seventh Samurai, and regularly serves as an adjunct Professor. Alvin Lindsey is a litigation and international arbitration partner at Hogan Lovells US. For over two decades. Mr. Simon and Mr. Lindsey had been frequent commentators on issues related to technology and the law. After having my wig blown off from reading their recent piece on the Lola versus Skadden decision in the Yale Journal of Law and Technology, we connected and we are honored to have them both on the show today. Mike, Al, thanks for showing up today. You guys both contributed to this amazing piece. So can you guys give a brief overview of the case itself and what are the facts and what are the implications around the decisions in this recent appeal?
Mike Simon: Oh, well, I can do that. 2014, 2013 was the age of contract, e-discovery, and document reviewers trying to get back at folks. It’s a terrible job. It’s a miserable job. One of the things that some of them did is they went after the companies they were working for, for overtime.
Al Lindsey: The lawyers don’t get overtime.
Mike Simon: They do not. And the reason we don’t is the FLSA, Fair Labor Standards Act, deliberately excludes anyone engaged in the practice of law from receiving overtime. Now, all of these cases got dismissed including David Lola’s versus Skadden in the Southern District of New York. In fact, here’s a funny thing, there was pre-dismissal hearing, pre-motion hearing I think is what they called it in Southern District. The judge said, “I’m very skeptical about this, the fact that you’re reviewing documents. Even though it doesn’t require legal judgment, there’s a low threshold for the practice of law. All associates do this stuff. Dismiss the case.” It seemed like every other case until suddenly the second circuit took up the case and decided to hear it. And at oral argument, something really extraordinary happened. One of the second circuit judges asked “If a computer can do that how was that the practice of law under any jurisdiction?” This was sua sponte. I was never an appellate lawyer. I was a trial lawyer. But I do believe, and Al correct me if I’m wrong, appellate judges aren’t supposed to do sua sponte stuff.
AL: Well, they can do whatever they want
MS: Nobody briefed this. Nobody had briefed it. It was not in any of the appellate briefs, it was not part of the Southern District of New York discussion or order, nothing. Out of the blue. Instead in their written opinion in reversing this, they said that anyone who undertakes tasks that could otherwise be performed entirely by a machine cannot be said to engage in the practice of law. That sounds like just another statement – just another the thing, but when you think about it, that’s an incredibly dangerous, incredibly bad standard.
AL: Because you want to protect our monopoly, right?
MS: Yeah, and you want to make sure that we have lawyers being able to do things that require justice and judgment and wisdom. Yeah. It’s a bad thing. If on the other hand, you’re great with robots doing all that. Fantastic, that’s the problem.
JS: Al, do you have anything to add to that? Is there anything that struck you originally from the original case and the appeal that you feel is?
AL: It didn’t surprise me. We actually got the CDs of the oral argument and played it and listened to it. It just seemed kind of a normal thing that might come up in an oral argument. What surprised me is that it actually became that one kind of innocent sounding question from out of nowhere, which force counsel to say, “Your honor, if a machine can do it is not the practice of law.” That became the central holding of the case. When you think about it, it’s not a stretch to see how that can really erode this monopoly, which is what it is, that the EDA and lawyers have established on essentially UPL. Paralegals can practice law. But if you can somehow program a machine to do it that’s not the practice of law. So they’re exempt. For lawyers wanting to protect their domain, that’s certainly a threat. But we can’t be luddites. There’s this inevitable march of technology and it’s growing at this exponential rate that people far smarter than me talk about. I mean Elon Musk says he’s closer to AI than anyone and it scared the heck out of him because most people just don’t know how powerful this stuff is and where we are in terms of its advancement.
FULL EPISODE LINK —> HERE