Legal Fictions: How to Practice Law (in the Future)

By Nancy Jane Moore

legal padOne of the reasons I went to law school was to be able to work for myself. It used to be common for people to come out of law school and hang out a shingle.

So when I graduated, I did just that. In retrospect, I’m not sure it was a great idea. I certainly never made any money. In fact, I was a lot like the lawyer character Eileen in my story “Revision”, available in Mad Science Café,  who describes her early years of law practice like this:

So I helped communes buy their property, negotiated leases for hippie businesses, even made it possible for a food co-op to get a beer and wine license. And I frequently got up in the middle of the night to get my friends out of jail.

I was a hippie, but I could work the system. My friends would introduce me to other folks at parties. “This is Eileen. She’s my lawyer. Hee, hee.” And someone would pass around another joint.

One of the reasons going out on my own wasn’t a great idea was that the legal profession was changing. A lot. There had always been big, powerful law firms, but in the 1980s and 90s they grew dramatically.

These weren’t just the firms that did the Wall Street mergers and acquisitions. It was all kinds of firms, in all the major cities in the United States. Many, in fact, developed major international practices.

And it wasn’t just the firms that represented big business that grew. Plaintiffs’ firms – traditionally small practices that took on cases for little guys – began to grow as well, particularly those that handled class actions and mass tort litigation such as suits against tobacco companies and those over asbestos. The ones that stayed relatively small banded together with others, meaning that in some of the big cases the plaintiffs had serious resources for fighting large corporations.

Small firms continued to exist, but all too often they were – in the words of Philip Marlowe (or rather, Raymond Chandler) – “lawyers you hoped the other fellow had.”

Stories about lawyers set in the last 30 years tend to focus on people working for large law firms. But I wonder if that is about to change. Two recent news stories have made me think about this.

One is the collapse of Dewey & LeBoeuf,  a super-firm of 1,300 lawyers formed from the merger of the classic old line firm, Dewey Ballantine with the more profitable and upcoming LeBoeuf, Lamb, Greene & MacRae. While this failure seems tied to the banking issues of the recession, it also suggests to me that oversize firms may no longer be the best way to practice law.

The other news story was about a man named David Wasinger, who brought a whistleblower suit on behalf of a former JP Morgan Chase employee and won his client $63.9 million.

Wasinger is the sole partner in a small law firm in St. Louis. It’s not a hole-in-the-wall practice like I used to have, but there are only a total of five lawyers. Yet they were able to have a huge success with a case brought under the False Claims Act, a law that gives whistleblowers a cut of a settlement when their action leads to a government suit to recover misspent money.

It could be that the small but efficient law firm is the wave of the future, especially the science fictional future. The legal profession is becoming very tech-savvy these days. Much document review can be done electronically, and as we move into the era of artificial intelligence – even in a limited form – it stands to reason that a small firm with a significant investment in the right kind of tech could more than hold its own in the dog-eat-dog world of high-powered litigation.

It could even be that a high-tech legal future will lead to a more successful form of the other kind of alternative lawyers I mentioned in “Revision”: radical lawyers – the ones out to use the law to make social change.

The small, high-tech firm may be the real wave of the future, whether it’s representing Wall Street or taking it on as the lawyer for the Occupy movement.



Legal Fictions: How to Practice Law (in the Future) — 5 Comments

  1. As evebthe paralegal departments of law firms have been inexpensively outsourced to India particularly, along with the word processing pool, firms can stay lean in space too — rent, maintenance — those few costs of doing business that (legally) couldn’t be passed on to the client.

    Love, C.

    • I think — hope? — the outsourcing is a transition period. Paying people a lot less money to do work because they live in other countries does not strike me as progress. Of course, the more tasks that become computerized, the more we need to come up with ways of ensuring everyone has enough to live on regardless of jobs.

  2. I don’t intend to state this is progress in the progressive sense. But I do recall back in the days of earlier outsourcing of textiles and so on attorney smugly telling each other that their jobs would always be safe from that kind of thing.

    OTOH, now we have robot machines to milk the diary herd.

    But it does seem the more we take the human element out of things the less things improve. I don’t want robots writing traffic tickets, yanno? Or flying the plane.

    Humans are prone to error in everything. But humans are also extraordinarily resourceful thinkers on their feet, able to change course. Though with climate change and corporate personage running things, it seems perhaps I am deeply in human error.

    Love, C.

    • I think these are deeply interesting questions and ones particularly important for science fiction to tackle. For example, robots milking the dairy herd — and apparently able to milk them at the appropriate time from the cow’s pov! — allow a dairy farmer a life that doesn’t require getting up at 4 AM to milk. But it does reduce the number of workers needed and require more high tech skills among those who do farm work.

      The more we do this, the more we reserve human work for situations that require instinctive, rather than data-driven, responses. I don’t think most humans can do that all the time, though. It’s possible that we need to do a certain number of routine tasks to free up our brains for those sudden insights and changes of course.

      And that’s assuming we don’t end up with AI that can do those things, too. Planes already have a lot of automated features and there are driverless cars running around. And the big problem with robots writing traffic tickets is that they will be following a strict script and won’t have the human officer’s ability to make a judgment call — like maybe speeding to the emergency room is OK.

      In the case of lawyers, I’m thinking of a practice built using smart machines to process the data, instead of using a herd of paralegals and junior lawyers. But it occurs to me that lawyers learn their trade by sifting through a lot of that data. Now I’m wondering how legal education needs to change.