San Francisco city officials have been working with Uber and Lyft to devise a scheme so that mobility and resource-limited people can get transportation to the bus station and ultimately to their final destination. At the same time, local utility companies are rapidly building more cell towers to enable end users to get decent cell service in rural areas in which 3G and 4G cell service is sporadic or nonexistent.
In the telecommunications and urban transportation fields, these are styled as scrupulous strategies to tackle the so-called first mile and last mile problem, the dilemma that emerges from the serious obstacles to properly beginning and completing the journey. The economic evidence indicates that the first and last mile add disproportionately to the costs of the service, and the challenge is to reduce the unique costs borne by companies of beginning and ending the journey on these otherwise efficient networks. Much creative thinking, and public-private infrastructure investment, is devoted to what is called colloquially the “FMLM” twin problems.
The FMLM problem gives us a good lens through which to view the challenges of legal technology innovation and adoption by lawyers in practice. To frame this analysis, consider the essential objective: We should create and use technology and novel business models to better collect and utilize information. More efficient technology means happier clients, or at least that is the ultimate goal of the enterprise.
But this is hardly a linear problem. We need entrepreneurs to take the first step—to begin the first mile—and we need to, as the pugnacious salesman says in “Glengarry Glen Ross,” “Always Be Closing,” to complete that ever important last mile. These dilemmas raise some special difficulties, difficulties which deserve the reformers’ close attention.
To illustrate this FMLM predicament in law-tech, consider the use of pattern recognition in machine learning and artificial intelligence in order to generate good legal briefs. This brave new world is quickly upon us, thanks to the creative efforts of various artificial intelligence companies, including ROSS Intelligence, Casetext and Judicata.
Although some law firms (and law schools) are sticking their toes into this new space, it has been slow going. Yes, the technology is certainly ever evolving, but it is available now to enable lawyers to improve their advocacy efforts. What’s more, law students have access to technology at hand in law schools to improve legal research and legal analysis. Yet lawyers and law schools face with trepidation that strenuous first mile.
To begin with, real and potential regulatory obstacles loom large. In the current, turbulent world of unauthorized practice of law (UPL) regulation, using AI-generated legal briefs in litigation can raise UPL red flags, as can the reliance on so-called chatbots to furnish advice to consumers in parking ticket disputes and other matters.
The lines between legal information and legal advice are blurry, as in this definition from the Cook County, Illinois, Circuit Court manual: “‘Legal information’ is a description of the law and the legal process whereas ‘legal advice’ involves analyzing the application of the law to a litigant’s situation or making a suggestion of what action a litigant should take on a legal issue.” That a lawyer might be encountering a legal land mine in filing a legal brief created through modern machine-learning technology illustrates the perils of innovation against unstable regulatory backdrops.
Moreover, law firms fret in a more existential way about replacing human lawyers with robots. Indeed, even our chief justice of the U.S. Supreme Court got into the act, advising a group of high school students at a commencement last month to “beware the robots.” “I worry,” said Chief Justice John Roberts, “that we will start thinking like machines.” Is it any wonder that lawyers would be cautious to take that first AI mile in the journey toward progress?
Another aspect of the first-mile predicament stems from the character of technological development itself. Because technology rapidly changes, lawyers are frequently cautious about wading into this dynamic environment by picking one current technology over a competitor. Today’s powerful new device may become tomorrow’s anachronistic tool. Who wants to be seen as the law firm that has embraced the AI version of Betamax when the VHR—or, better yet, the DVD—is around the next corner? On that first mile might come a fork in the road, and lawyers’ lack of confidence that they will know which road to take can be stifling.
This dynamic is not limited to the changing technology, but also is characteristic of changes in the types of problems lawyers are facing. For example, the emergence of the sharing economy, reflected in large and growing companies such as Uber and Airbnb, generate new sorts of legal problems, problems that are highly complex in novel, and thus largely unforeseen, ways. With these new problems, new kinds of technology are required. Yet, innovation can be stymied by the too-slow appreciation of the contours of these legal problems and the business opportunities generated thereby. Again, that ever difficult first mile.
The Final Leg
We should be attentive, too, to that final leg of the journey, the vexing last mile. Substantial deployment of legal technology requires more than willful, entrepreneurial lawyers. It requires the acknowledgment by clients that these technologies enhance performance. Defining what constitutes “enhancement” is part of the problem.
To be sure, pundits can celebrate expanding use of technology, but the main folks whose skepticism must be countered, and enthusiasm generated, are the lawyers’ clients. Moreover, judges and legislators must be with the program. One hopes that our chief justice’s warning to “beware of robots” is not a counsel to caution in the application of modern technology to addressing difficult legal problems.
The last mile problem in the use of law-tech is the move from raw evangelism among technologists, legal consultants, and academics to enthusiasm among those who are in the best position to make change happen. Just as the last mile problem in the telecommunications field is fundamentally a matter of just that, of communication, so too is this problem in the world of legal practice fundamentally about communicating to agents of change and gatekeepers of progress the value and the strategies of technologically enabled innovation.
Mind the FMLM! Wicked problems in need of imaginative solutions. All part of the essential road leading to more, better justice.
Daniel B. Rodriguez is dean and Harold Washington Professor at Northwestern University Pritzker School of Law. He is on the governing council of the American Bar Association Center on Innovation.