The Tech Evangelist Preaches Edition: A Conversation with Legal Tech Journalist Niki Black

Episode Notes

Transcript

@theBar

The Tech Evangelist Preaches Edition A Conversation with Legal Tech Journalist Niki Black

03/06/2019

[Music]

Jon Amarilio: Hello everyone and welcome to CBA’s @theBar, a podcast where young and youngish lawyers discuss with our guests legal news, events, topics, stories, and whatever else strikes our fancy.

I am your host Jon Amarilio of Taft Stettinius & Hollister, and co-hosting the pod with me today is my friend Nykoel Kahn of the Froum Law Group.

Hi Nick.

Nykoel Kahn: Hi Jon.

Jon Amarilio: So, Nick, we’re joined today by lawyer, author, journalist and self-proclaimed legal tech evangelist Niki Black. We have a Nick and a Niki, that won’t get confusing for our audience or me I’m sure. Frequent readers of publications like the New York Times, Wall Street Journal, Forbes, Bloomberg and the ABA Journal as well as electronic publications like Above the Law will know Niki’s name.

Niki writes frequently for or is quoted in those publications on topics concerning the intersection and evolution of technology and the law. She’s a well-recognized authority in this area, just in from New York and we’re glad to have her here to discuss this subject with us today and what it means for our present and our future, I suppose.

Niki, welcome to the pod.

Nicole Black: Thanks. Looking forward to it.

Jon Amarilio: So, Niki, as I was preparing for today’s podcast, I was reading all of the articles that you’ve written which are legion and you and others who write on this subject often refer to the coming or perhaps what’s already here, tech revolution, and I thought it would be useful for audience to just frame the discussion at the outset.

When you’re talking about that revolution, what do you mean by that, what is it exactly that we’re talking about?

Nicole Black: Well, for me, it really — the way that I look at technology and the rapid change that’s occurred, I really see it’s happening in about 2007, when the iPhone came out. And even before that if you include social media 2004-2005, when Facebook first rolled out and then was made public. In 2007 is when Twitter was released and that’s also when the iPhone came out.

And that’s really when a lot of things changed and lawyers not being particularly savvy aren’t paying attention to tech changes, and normally when tech changes at a sort of normal pace, that’s not a problem. But because since 2007 until now, more than a decade later, there has been such an incredible amount of technology change from mobile and cloud computing, social media and its effects on our culture and now Artificial Intelligence and how it’s beginning to impact the practice of law.

That rapid technology change in that short amount of time has truly put a lot of lawyers at a disadvantage because they haven’t been paying attention and they’re not up to date with that change.

Nykoel Kahn: What do you think is the most detrimental effect of not paying attention to these changes? Is there a way to get caught up to speed quickly for those of us that haven’t?

Nicole Black: Well, the difficulty is that because the change has been so rapid that it can be incredibly overwhelming for lawyers who are practicing law, trying to stay on top of their practice areas, their cases, to also have to stay on top of technology and understand those changes.

But there is a duty of competence, more than 35 states have adopted the duty of technology competence into that requirement. And so, lawyers do have an obligation to at least understand tech so they can make educated decisions about whether to use it or whether or not to use it.

How do you go about staying on top of those changes? You need to do a little bit day-by-day. I would suggest starting with one or two books. A lot — the ABA often has a lot of tech books to sort of get you grounded and then start following some technology blogs online and spend 10 minutes a day reading the latest news and the latest advancements and sort of go from there.

Jon Amarilio: So that’s the deep end before we jump into that. Let’s wait into the discussion a little bit. What are — since 2007-2008, what are some of the biggest changes that you’ve seen in tech in the law?

Nicole Black: Well, social media, the first book I wrote for the ABA was ‘Social Media for Lawyers’ that was published in 2010.

Jon Amarilio: What about social media?

Nicole Black: Well, social media and online interactions have completely changed the way that the world communicates both personally and professionally, and it was in about 2011, up until then, I’d been talking about it, it was more from a marketing perspective and the fact that this is affecting our culture and you need to understand it as a lawyer.

But in about 2011, I read something in our local newspaper, the ‘Democrat and Chronicle’ that really indicated to me that lawyers were suddenly going to become interested in what I’d been preaching about. There was a reporter who had been covering a federal case and she was there to — the defendant was going to appear in court but prior to the defendant appearing, someone else was arraigned on a new charge, and it was a Hells Angel who was already incarcerated and he was being accused of intimidating a witness.

And what he was alleged to have done was poked someone on Facebook and the federal magistrate obviously has to understand the allegations to ensure that the defendant understands the allegations, and according to the reporter, he read the allegations and he said I have no idea what a Facebook poke is, I don’t know what this means and asked the prosecutor, what does this mean?

(00:04:57)

He said, honestly Your Honor, I’m not quite sure. Defense attorney didn’t know and so they opened up to the peanut gallery and asked someone in the courtroom and the reporter said and I stood up and said —

Jon Amarilio: Is anyone here under 30?

Nicole Black: Right, now what a Facebook poke is so we can understand what’s happening and the reporter was the one that actually explained what it was and then, okay, I understand we can now arraign the defendant. And so to me, that was one of the first times I had ever seen social media impacting a case, and that case, it was an element of the charge.

But now, it’s evidence. It’s super-important when you’re researching social media on behalf of your clients. You need to understand what’s out there, and oftentimes, it’s relevant in litigation matters.

Jon Amarilio: In the first season, we actually had an episode on gun violence, several experts in and one of them told us a story about how it’s a regular part of police practice now to look at suspected gang members’ social media because a lot of the time they’re stupid enough to post their crimes on like their Facebook or Instagram pages.

So, okay, so evidentiary — for evidentiary purposes, for marketing purposes you mentioned.

Nicole Black: Jury research.

Jon Amarilio: Jury research. What else?

Nicole Black: And also just in terms of defending your client, I co-author Criminal Law in New York, it’s a Thomson Reuters’ substantive criminal law treatise and I’m responsible for updating half of the crimes every year and increasingly, you’re seeing social media appearing just as you said.

Sometimes, it’s the acts that are occurring on social media actually are the actus reus of a crime. And so it’s being used to commit crimes, it’s being used to defend allegations whether it’s civil or criminal. I mean, it’s really just — it’s permeated our culture in all aspects of our lives. So of course, it’s going to permeate the practice of law.

Nykoel Kahn: Do you think that lawyers are becoming especially in a post President Trump world more savvy to social media, I mean, when you have the president posting about everything on Twitter, our lawyers having to become more adept at these?

Nicole Black: Well, I would say they have obligation. In some ways, depending on your practice areas, it may be malpractice not to at least understand what’s out there, be able to advise your client once they retain you, what to do about their social media accounts, and ethically, what to do and also what to do so that you don’t cause spoliation issues to occur that are going to come back and bite you in the derriere during the trial.

So, I mean, lawyers have to at least understand it, they have to make educated decisions and make informed decisions and also use that information to advise their client. But are they — not necessarily, I think that they have an obligation to do so but that doesn’t mean that they actually all are doing that.

Jon Amarilio: What other changes are we seeing in terms of how technology is impacting the daily practice of law?

Nicole Black: Well, the next big trend was mobile computing. The iPhone really was the beginning of having this computer in your hand and to me that was also like I got through law school watching ‘Star Trek: The Next Generation’, that was just sort of how I managed to get through it.

And all of those technologies that we’re in the next ‘Star Trek: The Next Generation’, I didn’t think would come to fruition in my lifetime and all of a sudden in 2007, you had tricorders computers in your hand. You had voice-to-text interface or speech-to-text interface. You could talk to computers. You could — the touchscreen interface, there are all these different tools that are suddenly available really with the advent of the iPhone.

And so, that’s when you had mobile computing and the ability to truly practice law and get information, no matter where you were. Oftentimes, using legal software like practice management software. So the next big one was mobile and hand-in-hand with that was cloud computing because mobile devices really are not particularly useful or valuable because — on their own.

Because there’s not a lot of memory or processing power available due to their limited size and so that’s where cloud computing comes in and the vast majority of apps that everyone uses including lawyers, all their data is stored in the cloud and sometimes lawyers don’t even realize that, but cloud computing became the next big thing.

That was what my second book was on was ‘Cloud Computing for Lawyers’ that was published in 2012 and that’s this idea of 24×7 access to information. You don’t have to maintain your servers because the data is stored on third-party servers, and as long as you have an Internet connection on any device, you can access whatever data that you need.

Nykoel Kahn: I know that a number of people that I’ve talked to are really worried about cloud computing though because of the — is my data safe is — is some Nigerian prince going to come and claim that he has all of my client files? What do you say for people who are worried about the risk of cloud computing?

Nicole Black: Well, there’s definitely. Anytime, you outsource your law firm’s data to third parties, you have an ethical obligation to thoroughly vet those parties, understand how they’re handling your data and your law firm’s information and understand who has access to it. But that’s always been the case, right?

Firms once you’re done with a case, Iron Mountain comes in or someone else comes in, takes your firm’s paper files and boxes and puts them in a warehouse somewhere, and that has to stay there for however long your jurisdiction requires it.

Jon Amarilio: Yeah, but — so I’ll play the skeptic a little bit on this one. The nature of it has certainly changed. Before you didn’t have people coming in and burglarizing an Iron Mountain facility and then calling up the law firm and holding that law firm hostage, which is something that’s happening with increase in frequency to law firms.

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Nicole Black: That’s not cloud computing, that is people whose actual physical computers are unsecure and it’s somebody who is malware, it’s malware that’s been installed on their computer or on their law firm servers, just — no, I’m not trying —

Jon Amarilio: No, no, no, you are right, you are right.

Nicole Black: — to be contrary but that’s malware and that’s actually a server-based issue and a security issue within the law firm or the lawyer’s computer and so in that case they’ve downloaded something inadvertently that has allowed them to take control of their computer and hold it hostage.

Cloud computing, it’s a great sort of segue into why cloud computing is actually in many ways more secure, because cloud computing companies many of these providers have been in providing these services since about 2008, 2009, they’ve been around a fairly long time at this point. They’re not fly-by-night like everyone used to be worried about. They often use Amazon EC2, Amazon, everyone thinks Amazon makes their money in consumer goods, but really it’s cloud computing. They provide cloud computing storage for the vast majority of the sites you visit on the Internet and tons and tons of companies and their facilities where they store all these servers are really like kind of gone — the security is equivalent to that at the Pentagon. That’s iris scanners and the physical lock down of those sites and then how the way that the data is locked down. It’s levels that most law firms could never actually provide themselves.

And there are certainly issues of also email phishing. I’ve written about that where and often happens in real estate transactions, that’s an email security issue, where people hop into the email chain. It looks like it’s coming from someone who’s part of that email discussion and they will change the deposit information. This is the account you actually should wire all the funds to for this huge real estate deal and lawyers will wire them and then they get lost, but that’s also not a cloud computing security issue, that’s an email issue, and email is incredibly unsecure and communicating in these cloud computing platforms is actually a much more secure option through the client portals and communication portals.

Jon Amarilio: Okay. So, myth dispelled on that one. Thank you. Well, one of the things that a lot of your more recent writings seems to talk about was data — or focus on I should say is data analytics and the advantages for lawyers and law firms of data analytics. And as I was reading it I was both agreeing and disagreeing with pretty much everything you were saying. The advantages that you identified were finding new clients, meeting client demands to do more with less money, reducing time and money and administrative tasks, identifying more profitable attorneys’ practice groups areas for growth and that kind of thing. And it just — it occurred to me, yes, I think that’s all true, but also as long as we’re not talking about a Denton’s or a law firm that has merged with someone in China of unimaginable size, these are all things that traditional law firms I would think are fairly good at identifying already, no?

Nicole Black: Well, there’s different types of data analytics, right, so there’s data analytics for internal matters within law firms, which I think is what you’re referring to and I have written about that and then there’s data analytics in terms of litigation analytics.

So when you’re trying to get information to help you decide where to file a court case and then once you’ve filed it, decide how to bring motions in front of a particular judge.

Jon Amarilio: That’s true, that’s an important distinction.

Nicole Black: So those are the ones that excite me the most quite frankly that I am super-interested in those litigation data analytics. The internal analytics that you’re talking about certainly law firms have been doing that. They have memo banks, law firm memo banks or motion banks that you can go to, that are all in binders, that’s how it was when I was in a firm years ago. I think it’s probably advanced at this point.

So that sort of internal knowledge management, which is kind of what this type of analytics deals with, but — and it definitely is more applicable to the larger law firms versus a firm of 20 lawyers or something.

Nykoel Kahn: That was what I was going to ask is going back to especially some of the data analytics that can be applied to litigation, when you work at a small firm or a solo practitioner the idea of hiring a big company to go tell you what cases you should cite in your emotion is just not a practical solution from a financial standpoint. How can a small firm or a solo practitioner incorporate some of these machine learning or data analytics without breaking the bank?

Nicole Black: Well, there’s AI, there’s really three categories where you’re seeing AI, legal research, litigation and data analytics, I am having a complete mind blank on the third one here. I’ll definitely remember in a minute.

So in terms of what a small firm can use, when you talk about legal research there are companies like Casetext and they have a thing called CARA where you upload a brief and it will analyze that brief and spit back all this data to you in terms of it looks at all the case sites and the language used and it spits back all this relevant information. So just by uploading that brief it will give you all these sites and cases that you should look at rather than having to just do a Boolean or a natural language search in your search engine.

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So that’s a really easy way that solo and small firms can use that for legal research. For data analytics and for litigation analytics they can, I mean, there’s Boutique firms that do a lot of complex litigation that could very much use these, and it’s not incredibly expensive software, it depends on what use case you need it for. But it allows you to research the judge and it saves you a ton of time and money and decide where you want to file this motion and then later what information, how this judge decides and if you want to bring something procedurally, what’s the best procedural mechanism that the judge looks upon most favorably in the past and has actually granted versus denied and you can find creative ways to accomplish your end goal.

Nykoel Kahn: To play John the skeptic role here, how much should you really be relying on these softwares like if I put in, if I use Casetext to upload my opposing counsel’s brief, it gives you back some things at least how good is the machine learning right now, how am I going to have to essentially do the research twice to make sure I didn’t miss something?

Nicole Black: Well, that’s a great point and that’s the biggest hurdle for AI right now because it’s in its infancy, it’s trust, can you trust the results. If you can’t trust the results then you essentially are going to be doing it twice. You’re going to be checking the machines work.

One really interesting example is LawGeex, and that is the third category. It’s legal research, litigation data analytics and then contract analytics. So what LawGeex does it’s a company out of Israel and there’s a number of other companies that offer similar capabilities. You upload a contract. So let’s just say it’s a covenant not to compete and when you upload that contract into it, it compares with hundreds of thousands of other similar contracts and it immediately tells you and I’m going to answer your question in a second after I tell you what the software does. Here’s an outlier paragraph that never appears in these or very rarely appears in these types, and here are two paragraphs that always appear that are missing from the contract you just uploaded.

So if you’re reviewing this covenant not to compete for your client it immediately highlights problem areas within that document. Can you trust the results? What LawGeex did, they did a study and they — and I have nothing to do with LawGeex, I cover the industry and I although I’m affiliated with a company that does practice management, MyCase, I also go to conferences and cover this, the industry as press.

Jon Amarilio: But you are not profiting from this plug?

Nicole Black: Right, I know nothing about them. I’ve nothing to do with LawGeex other than I’ve talked to them a couple times and covered their product. But they released the study about a year ago and what it found was and they tried to build in some — it has a bunch of law professors sort of to oversee the whole thing to try and make it so that was neutral and have some neutral input into the study itself. And they gave a whole bunch of lawyers, a contract review and then they also uploaded that same contract into LawGeex, and I can’t remember the exact statistics but they were very shocking. It took the lawyers overall, I want to say one to two hours to review these documents of each one. It took LawGeex something like a minute like their software, and LawGeex accuracy was something like 90, above 90% and the lawyers was slightly above, I want to say 80 or in the low 70s.

So the software was, if you would look at the actual statistics incredibly fast and incredibly accurate and more so, much more so than the actual attorneys themselves.

So what does that do? That gets rid of what Artificial Intelligence is going to do especially as it improves and especially as we begin to really trust the results overtime, is that it’s going to get rid of all those initial mundane things that you have to do.

So at that point it’s identify these problematic clauses, you can then insert them and go back and forth with opposing counsel and you don’t have to take two or three hours to do it, it takes a lot less time, and you can ultimately hopefully move to flat fee billing and start to kind of recoup the losses from the billable hours to providing a more efficient practice and then charging flat fee billing and making more, it’s how the theory goes.

Jon Amarilio: And of course just as we’re getting into the juicy part of the conversation we need to take a break. So we’ll be right back.

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Jon Amarilio: And we’re back. So Niki, you were just talking to Nick about litigation data analytics and contract analytics and I understand your point with regard to contracts; that makes perfect sense to me. With litigation it strikes me as a lot more complicated. The reality is far from the promise at least in my practice.

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When I see the AI being rolled out on Lexis and Westlaw and others I find that the results are usually irrelevant and sometimes really misleading in terms of what I’m looking for and what I need for my brief, and then I notice and this is more of a problem I think in younger lawyers and older lawyers what I called an increasing reliance on Headnote Law, I think because of the technology.

I understand the advantages of obviously being able to key side a case in ten seconds rather than spending hours shepardizing it the old-fashioned way, but there is a value to shepardizing it the old-fashioned way and that you got a good picture of the law overall, and you’re not just essentially pulling quotes from cases out of context, which I know is in Illinois is something that courts especially the Illinois Supreme Court has been really critical of lawyers about doing.

I wonder — and this is maybe more of a broad philosophical question, I’m not sure how fair it is to spring it on you, but how compatible data analytics is with the common law, which is very complicated and requires an understanding of abstract concepts and how the law moves? Do you have any thoughts on that?

Nicole Black: Well, so what you’re talking about and correct me if I’m wrong, but it’s really the legal research, AI and how it applies to legal research and what you are seeing in LexisNexis and Westlaw in that regard. And then there’s the litigation data analytics, which is actually something slightly different.

But for what you’re talking about legal research, I totally understand what you’re saying. The more you have technology involved in the legal research process, the more that it kind of removes you from some of those processes that help you sort of think through to understand where a point of law came from and how it ended up where it is.

Jon Amarilio: Precisely.

Nicole Black: And I guess I would say that just because that’s how we’ve all — we did it out of necessity, it doesn’t mean that technology necessarily making you approach it from a different way doesn’t get you to the end result. So one thing that I think that’s really interesting that Thomson Reuters does and I don’t know if you’ve used this yourself or not, if you’ve noticed this particular feature, when you put a whole bunch of cases in a folder in Thomson Reuters, what they will do is they’ll find the commonalities between those cases and start giving you suggestions for other related law and treatises and cases that are related to the commonalities between those.

So rather than when you do legal research from a natural search or Boolean search and then you do look at those case headings and they’re basically looking for a bunch of words in the same place in a whole bunch of documents.

Jon Amarilio: Right.

Nicole Black: But when they’re in this what I think is so interesting about what Thomson Reuters does is that it takes all these things and tries to find why you put them all in a folder together, what’s the commonality and then give you a whole bunch of stuff that matches that commonality.

So it’s a little bit different and it actually can provide you with treatises and information that you might not otherwise have come across in this more sort of, because Boolean really is almost our — and natural search is just a version of that. It’s almost just like a dartboard, you’re kind of trying to —

Jon Amarilio: Yeah, but if you’re good at it, the terms in connector search, you can usually find what you need pretty quickly. I guess my experience with it has just been a little bit tainted because I feel bad about charging my clients for time that when I’m looking through those folders and I’ve used them at bay and the results are usually 90% junk for me.

And then I’ve just charged my clients for 90% of my research time, I haven’t by the way for any of my clients who are listening, I write this off, for times spent a really beta testing a technology for these companies, and I just — I struggle with that a little bit.

Nicole Black: I think that with a legal research they — that aspect it is difficult to — I mean they’re — I think you’re going to really see some movements in AI and how it’s going to affect it but it’s definitely in that infancy stage and LexisNexis is doing some interesting things with the data analytics, but like I just — I was at Legalweek in New York a month ago and I talked to them a lot about it.

And they have some really interesting stuff on, it’s called Context and it helps you, you can research expert witnesses and you can — it pulls together all this data and information on all these different expert witnesses and you can enter it and see where they’ve testified, which case they’ve testified in, plaintiff, defense and it even dives down into whether their evidence was precluded and on what basis. So that can be really helpful in litigation.

Jon Amarilio: Absolutely.

Nicole Black: And also they have the judge date, date about the judges and all the ways that they’ve handled things. You can also do the same thing with law firm, so you want to reach a research opposing counsel. They just — there’s massive amounts of data that have been collected, especially with Pacer being online for as long as it’s been online.

There’s tons of data out there and that’s what AI does is it sorts through all this data, it actually provides some usable information that otherwise just — the only equivalent I can think of is when I was a public defender when I first started because that office handled so many cases and because each lawyer at the time I had a caseload of 600 misdemeanors at a time.

(00:25:00)

And when you would take over from someone else’s court, they were in court all the time, they knew that judge so well, they knew the way the judge handled everything and so our office had so much information about how the different judges handled cases, how they dealt with certain issues, search and seizure in the best ways that you could make these arguments.

But it was just a sort of collective knowledge handed down from lawyer to lawyer. You’d go to other people’s offices and ask them if they’d ever dealt with that judge and what data analytics does when it comes litigation, is it takes that information, it’s all out there now because of Pacer and whatnot.

And it actually provides you with this usable information in a way that is almost like being in a public defender’s office except you can actually access it from these machines.

Nykoel Kahn: So, I’m hearing two things from this and one is — I guess they’re both kind of questions. The first thing is do lawyers just need to learn to approach cases and legal research differently? Because that’s kind of what I’m hearing is that instead of going your traditional Boolean search and getting your headnotes that you need to think about how you’re researching differently knowing that LexisNexis is going to provide you this additional information.

Do you think that that’s going to be part of it that moving forward lawyers are going to have to learn a new weight of research?

Nicole Black: Well, I think then lawyers are going to need to understand the tools available and then decide if it makes sense for them to use them because there are some more senior lawyers for example, who they really don’t even like using online search, like there are some lawyers that still like to use the books.

And for them to start trying to use — it’s not going to make sense, it’s going to take so much time for them to learn how to use this, kicking and screaming that it won’t even make sense for them. And other lawyers, if you have a really good system down you feel like your research is for the most part very concise and you have — you’re doing it in a way that makes a lot of sense, then maybe you don’t have a need for this.

And it also depends on your practice areas. If you don’t do litigation, you’re not going to need the litigation analytics, right. And if you are doing slip-and-falls in Upstate New York, you are not going to really need that litigation, it’s more for complex litigation and I think that depending on the types of practices that you have and how concise and how skilled you are at legal research, the way you’re doing.

But you have to understand it so you can make that decision. If you don’t understand it, you’re not making an educated decision.

Jon Amarilio: So, let’s go there for a minute. One of the things I was reading about in several of your articles talking about the advantages of AI is that it reduces need for lawyers to perform tedious time-consuming tasks and low level analysis. And two questions that I think were related to what you were just talking about popped in my head as I was reading that.

One is, well, is there enough high level tasks to go around? The law firms have a pyramid structure for a reason, not just financial reasons, because there’s experience plays a good amount. Experience is a big part of what makes a good lawyer, I should say, and relatedly, is there some value in those tedious tasks in that low-level learning for new associates in firms. Do you need to learn how to walk before you can run? Do you have any thoughts on that?

Nicole Black: Those are some really interesting points that you raised and they’re very good questions and they’re important issues to think about. Obviously, there’s a lot of value initially when you go into a law firm to learn how to do some of those grunt — the grunt work.

One thing that we — I think we should talk about in a few minutes possibly is that I don’t think the law firms have an obligation to be training these law students, they should be recent graduates they should be learning this in law school, and I think law schools need to start doing a better job of training lawyers to practice law and not just understand common law.

And so that’s one important issue that needs to start changing, but right now, what we have is young lawyers coming in without a lot of experience into these law firms and there’s certainly a lot of value in that. For example, when I was an associate in the firm on small litigation matters, it helped me a lot to go through these discovery files and see — read the medical records, take a look at all the information opposing counsel was giving us, and summarize deposition transcripts.

There was a lot of value in that and sometimes when the machines take that work over on a broader scale like with eDiscovery, certainly there can be a perspective that lawyers are losing that ability to analyze that information. But in fact, I talk to lawyers that do this kind of work and they often tell me that they really do a lot of complex analysis and they’ll talk with other lawyers that are working on the same case to make sure that they’re framing the issues when they’re looking for them and using the right keywords when they’re searching through this document review software.

So sometimes, it’s doing interesting things and complex thought processes using the software that they are still having that learning process I would argue.

Jon Amarilio: Okay.

Nykoel Kahn: I want to circle back to the law school issue that you raised though that law schools are — our law schools failing future lawyers by not training them in all of the legal research and tools and things like that that they would be using when they get out of law school.

Jon Amarilio: In terms of like training them I suppose for this brave new world of tech and I know I’m using that brave new world reference incorrectly, but what’s wrong with it.

(00:29:53)

Nicole Black: Well and it’s — and it’s definitely technology that there oftentimes failing to teach them and also just the practicalities of running a law firm, running a practice, understanding how to do the books of a law firm. I mean granted not everybody’s going to run their own practice, but I think that lawyers should have some business knowledge, whether it’s for running their own firms or else eventually understanding how the firm’s that they’re going to be working in at higher levels work.

So lawyers need to understand practice management skills, and they also need to understand technology and how to use technology in their practices and also just how to practice. There should be some more practical classes on Civil Procedure, and actually like having a case file, like that’s why the disabilities — like I worked with the Disabilities Law Clinic in law school. I took that course, that helps, but those clinics shouldn’t be the only — there should be courses that actually teach you the aspects of working a file whether it’s in litigation or otherwise. I mean they really don’t teach you a lot of this practical.

Nykoel Kahn: So I know that one of the questions like the ABA actually sent out in every week they do like their survey question of the week and their emails and one question a while back was should law school be two years long? And a lot of the answers that came up was, yes, because I got most of my valuable experience from my third-year clinic and I could have done that in practice. What do you think about that question and answers like that?

Nicole Black: I think that we should have residencies like they do with in the medical profession. I mean, doctors don’t go to med school and then get kicked out to treat people. They go into a residency, where they actually receive practical on-the-job training and they are supervised by physicians, and they get paid to do that. It’s not a volunteer thing. They’re not getting paid a ton of money and it’s a long process, but we don’t have that. We kick — you graduate from law school and you honestly don’t — when I went to the public defender’s office I was thrown in feet first, give it a bunch of files, I didn’t know what I was doing, same when I went into civil litigation like you’re trained on the job on the go. And there should be the opportunity to if you think you know what practice areas you want to handle, take some courses that help you understand how to work a case in that practice area, how the process, how the case gets through court, how to file a case.

I mean, you’re not always going to — I guess when you go into large law firms you’ll have secretaries and admins and paralegals to help you understand the whole process of filing an appeal for example, but you really ought to know how to do that yourself because at some point or another you probably you may not realize I know but you may be out on your own and not everybody manages to work their way up to these partnership levels of the firms and it’s happening less and less these days. Because their lateral link partners in, they are keeping associates at all these non-equity partner or senior associate and there’s the ladders changing. And so oftentimes you’re going to end up or you’ll go out and start a boutique firm with a couple lawyers from your firm. That ladder is changing and so lawyers really need to understand how to practice law before they get out of law school.

Jon Amarilio: Well, I don’t think anyone’s ever accused law schools of preparing students for the practice of law, but just to bring the conversation back around to tech a little bit, are law schools doing any kind of job if not a better job of training students on these technologies. I imagine that there’s some of them but broadly the answer is no, because when I think of the fine professors at law schools, they are for the most part academics and not practitioners and they don’t know or remember what the practice of law is like, much less what it’s like in 2019. What are you seeing out there?

Nicole Black: There are a number of law schools that actually are — they do have technology clinics or technology classes and/or incubators and they’re trying to teach, trying to bring this in and help the students understand this technology. And there are a number of law schools who reach out to me on MyCase because they want to have access to these practice management classes and they want to have access to these practice management programs for the students and they want to give them access to a bunch of different programs not just one, so that they can see what’s out there.

So that’s definitely going on, but I also find that law schools, especially when it comes to social media quite frankly, there’s lot of like black holes for technology in a lot of ways, they discourage students from using social media, they tell them not to be on it, rather than telling them to use it in a smart way they just —

Jon Amarilio: Yeah, posting pictures of yourself drunk.

Nicole Black: Right, I mean, that’s good advice, don’t do that, but there are a lot of ways where you really can use it to your benefit, while in law school to connect with people in the practice areas, well-known people in different practice area may be interested in and also once you’re out of law school to establish an online presence, make connections that may help you in your practice and a lot of them just terrify the students about it. And social media is a reality, and it’s clearly going to have some negative — a negative impact if you use it improperly. Teach them how to use it properly but don’t discourage them from using it because it’s truly doing a detriment to them.

And a great example of this is years ago there was someone who just graduated from law school and he went and started going to the Supreme Court every day and blogging about oral arguments.

Jon Amarilio: SCOTUSblog?

(00:34:59)

Nicole Black: No, no it wasn’t SCOTUSblog, it was — SCOTUSblog started in a law firm, this was just a kid, like someone very recent graduate and he would go to the oral arguments and no one else at that point was doing it. It was just a blog he started. I don’t think he ever ended up at SCOTUSblog, it’s possible he did end up there, but I’m pretty sure I looked into his path later when I wrote about blogging to see what happened to him and he’d just started this blog, the ABA picked it up because it was such an interesting thing this young lawyer was doing, going every day to oral arguments and writing about the oral argument itself.

And he ended up working I want to say for ‘Huffington Post’ and from a legal perspective, like legal journalist covering the Supreme Court and then he worked for another and last I checked he was a journalist covering sort of in the legal space for a fairly reputable organization, and it was all because he started out of law school using blogging, which is a form of social media in a really creative way. That set him apart from anyone else and he got coverage in the ABA Journal from it, and everything sort of went from there.

Nykoel Kahn: So I guess that’s one of my questions is could or should a new or newish lawyer learn these tools to give themselves an edge? Can they give themselves an edge by —

Nicole Black: Well, definite, yeah, for sure they can, and you can use social media to create — if you know a practice area that you want to get into, you can start — you can actually start blogging about that practice area, you can look what other lawyers are blogging about in that practice area, and write a responsive post to something they’ve done and then just reach out to them by email and say, hey, I thought that was really interesting and here’s what I had to say about it. And you can connect with them that way and then maybe you’ll go to a conference about that practice area and they’ll be there and you can reach out and have coffee with them, and you’ve already established a relationship. That’s how I’ve met half the people in the legal tech space that I know. That’s how my co-author Carolyn Elefant and I had the social media book met online initially.

So you can definitely do that. You can create a LinkedIn presence, a Twitter presence, depending on what your goals are. You got to decide those upfront, but you can start to really use those to create a presence for yourself and SCOTUSblog is a great example. I didn’t — that when you brought that up it’s — that was a long time ago that they created it, it was initially — actually I think it was created within a law firm, but they’ve become the resource for the Supreme Court.

But it started as just the standalone blog, one lawyer who was practicing that and it really helped his practice and he’s become the go-to person in a lot of ways for Supreme Court cases and he really created a practice for himself from that. And so it was easier back then. There was a lot less competition but you can still do that.

Nykoel Kahn: I think that your point of like reaching out to someone and like making it into a networking, the thing is really a good point to take away because a lot of people think, okay, well, I’m going to — I’m just going to create a blog and put it out there and then they wonder why they don’t have job offers coming in?

Nicole Black: Right.

Nykoel Kahn: You got to do something else other than just write content and put it out in the universe.

Nicole Black: Well, that’s why it helps to read what other people are. I mean just let’s say environmental law. Read what other people across the country, lawyers that are writing about that in the larger firms too, what are they saying about it, and then write a piece that takes what they said and you write about what they said and offer your opinion and then by reaching out and letting just saying, hey, I thought that was interesting, you’re just starting to create a conversation with them, and if they’re in the same town you can even start to get to know them and ask them to meet you for coffee or — but it’s just a great way to create relationships.

Jon Amarilio: Joining the conversations of just yelling into the dark.

Nicole Black: Right.

Jon Amarilio: Right.

Nicole Black: Into the heather, for sure.

Jon Amarilio: So Niki, you had a publication in the ABA Journal online entitled ‘Law School: Is It Worth It?’ That generated a lot of buzz. In fact I think it was one of the most read articles of the year and I provoked all the questions that you asked in it about whether students young people should be going to law school these days. We’ve been talking about the future of the profession where it’s headed the evolution of the law. When I think of people who want to go to law school I generally don’t think of people who are saying, yeah, I want to learn technology things. They tend to be a little bit more old-school perhaps in their career ambitions.

So, let me just go back to the beginning on that and ask you is it worth it to go to law school right now?

Nicole Black: Well, the lawyerly answer is, it depends. The reason that that article even came about was I get emails all the time from all the different places that I write about the different articles I’ve written and sometimes they’re about the articles and other times they’re just inquiries, and I got this inquiry from a young man who was interested in technology and pursuing that in law school, but he wanted to know whether it made sense to go to law school and whether that would be a valid way to approach the law and I answered and I told him it depends and I sort of listed my reasons, and then it just occurred to me, I wonder what other people would say, so I posted on Facebook just to see what my colleagues thought and it generated so much discussion that Molly McDonough, the Editor of the ‘ABA Journal’ who’s a friend of mine on Facebook that I know asked me and some other person who provided a pretty long response to my question, if we wanted to co-author this article.

In the meantime I actually wrote a three-part piece on Above the Law about this as well and I queried, should you go to law school, would you have gone to law school knowing what you know now and would you recommend it?” I can’t remember exactly.

(00:40:00)

Jon Amarilio: I think I remember reading those actually.

Nicole Black: Yeah. So I had a three-part series on Above the Law too, and I would then pose them on social media and then bring them into the Above the Law post. But the ‘ABA Journal’ post sort of summarized a lot of my findings from the ABA, Above the Law articles and the responses from my colleagues and —

Jon Amarilio: Which were?

Nicole Black: Well, the responses were a lot of people said that they are happy that they went to law school, and they’re glad that they did it, but they wouldn’t do it now, and they wouldn’t recommend that someone go to law school now. Some of them said, it’s important to — do you truly want to practice law and be a lawyer, and do you understand what that means and you need to make sure you understand what that means before you go to law school.

Jon Amarilio: Right.

Nicole Black: Others said you need to assess your finances and try and find affordable ways to go to law school if you’re going to go, because if you come out $250,000 in debt, you’re never going to come out from underneath that and it’s going to sort of overshadow your whole career, and your mental health quite frankly. And others did talk about mental health and how there’s a lot of mental health issues; stress, anxiety, depression, suicide, drug addiction, alcoholism, those detrimental aspects of practicing law that we have such high rates of all of those.

And then my response was that if you’re going to go to law school no matter what area you want to practice in, you need to stay on top of the changes in technology, not necessarily because you’re going to plan to use that technology, but because it will help you make educated decisions about how it’s impacting the practice of law and how you can position yourself down the road to take advantage of those changes one way or another depending on the practice areas that you go in, because no matter what technology is going to impact the practice of law and it’s going to impact your career, and you need to make educated decisions, and that’s sort of a theme I always have whether you’re a law student or a lawyer. You need to understand these trends, position yourself for success and make educated decisions. It doesn’t mean you need to use the technology, but sometimes you may be able to position yourself to take advantage of a new emerging position in a law firm.

There are all sorts of positions that are starting to show up in law firms that didn’t appear before because of technology to help understand and manage the tech in the firm. And a great book that a lawyer should read is, ‘Tomorrow’s Lawyers’, it’s by Richard Susskind, and it’s aimed at law students and newly graduated lawyers and it talks about all these issues and explains how technology is impacting the practice of law and at the very end he has a list of emerging fields and things that he envisions may soon become positions in law firms and technology companies and what I do is actually one of them, it’s actually not just a self-proclaimed, it’s actually my official title Legal Technology Evangelist, it’s like a very — it used to be self-proclaimed. I used to call myself that in a bio, but that’s actually my title, and Technology Evangelist is actually a position in tech companies and Legal Technology Evangelist means that I help act as a bridge between law and technology for lawyers and tech, and also internally between the technologists and the lawyers to help them understand tech to create better software. And multiple companies have hired people into this position in the legal technology space since I was hired.

So, it’s an emerging position that didn’t exist. I was hired seven years ago, and I was one of the first people hired into this. So, there’s all sorts of different positions that are being created because of technology in tech companies and also in law firms that were not here before.

Jon Amarilio: So, when students are asking themselves if they should go to law school all they need to do is look 10 years into the future and figure out?

Nicole Black: Right, figure out what’s going to happen.

Jon Amarilio: Well, the industry is going to be super-easy stuff.

Nicole Black: Right, good point.

Jon Amarilio: All right, and with that we should probably take a break and we’ll be right back with Stranger Than Legal Fiction.

[Music]

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[Music]

Jon Amarilio: And we’re back. Niki, so we’re going to close out this episode the way we close out every podcast. We’re going to play a game we call Stranger Than Legal Fiction. Nick and I have done a little bit of research. We found some strange but real laws that are still on the books somewhere in the world. We’ve made another one up and we’re going to quiz you and each other to see if we can distinguish strange legal fact from fiction. You ready to play?

Nicole Black: Sure.

Jon Amarilio: Nick, do you want to go first?

(00:44:58)

Nykoel Kahn: Sure. So since Niki is from New York, my laws are New York-based today. The first one is that it is illegal to congregate in public with two or more people while wearing a mask or a face covering which disguises your identity, or is it illegal in New York to shine shoes on weekends?

Nicole Black: I’m going to go with the first one and I actually believe it’s — I think it might be a new law. I could be wrong.

Jon Amarilio: I see the wisdom in the first one, but that would make Batman legal, wouldn’t it? I’m going both.

Nykoel Kahn: Maybe he’s hanging out with Robin.

Nicole Black: It’s discon, my guess is it’s a disorderly conduct, but I could be wrong.

Jon Amarilio: So you’re going to say the first one is real, Niki?

Nicole Black: I think so.

Jon Amarilio: I’m going to, I am going to agree.

Nykoel Kahn: So it is true, that one is, it’s New York Public Law 240.354. It actually is a historical law. It came from, I guess, there was some uprisings with farmers back in the day and they were dressing up as Native Americans to hide their identity while committing these crimes. Apparently, the law does allow for exemptions for Halloween and masquerades.

Jon Amarilio: What about when it’s really cold out?

Nicole Black: Right.

Nykoel Kahn: That was actually one of the things that I saw was that it jury’s out on whether balaclavas are illegal in New York.

Jon Amarilio: All right. Round two. In Venice, Florida it’s illegal for an unmarried woman to parachute on Sundays, that’s option number one. Option number two, in Venice, Italy it’s illegal to feed pigeons. Niki, what do you think?

Nicole Black: I am going to go for the pigeons just because that seems ridiculous, because I kind of feel like people do that in movies, feed pigeons in Venice.

Jon Amarilio: So you think that one is real or fake?

Nicole Black: I think that one is fake.

Jon Amarilio: Okay. Nick?

Nykoel Kahn: No, I know, I think it’s real, I think it’s real. I think that’s the real one.

Jon Amarilio: Okay, pigeons are real?

Nykoel Kahn: Pigeons are real, yeah.

Jon Amarilio: All right.

Nicole Black: I was going to go with that, but I will to play devil’s advocate, I will choose the Venice, Florida Law.

Jon Amarilio: So the second one is the real one? You are right Niki, not Nick. Although, the first one was a law until the early 2000s, actually statewide law in Florida that made it illegal for unmarried women to parachute on Sundays. I tried my darndest to find the origin of that law.

Nykoel Kahn: You can parachute on Saturdays though not a problem.

Jon Amarilio: Yeah, yeah. Actually the feeding pigeons law is I think nationwide in Italy as well, isn’t just in Venice, but I like the connection between the two. So I ran with it.

Nykoel Kahn: I feel like there are like in movies people feed pigeons in Italy all the time.

Jon Amarilio: Yeah, but it has consequences. I mean those things are dangerous sky rats just flying around ruining monuments, which they have a lot of in Italy.

Nicole Black: My kids think they are cute and my older daughter actually pets them, I think it’s disgusting.

Jon Amarilio: That oh no — no, you should discourage that.

Nicole Black: I know, I told her.

Jon Amarilio: Have you taught her to wash her hands thoroughly?

Nicole Black: Yes, I tell her. She thinks they are cute. She thinks bugs are cute. I don’t know.

Jon Amarilio: That’s okay.

Nicole Black: That’s gross. Yeah.

Jon Amarilio: And that’s where we are going to leave it. I want to thank our guest Niki Black, for this informative and interesting conversation. I also want to thank everyone here at the CBA who makes this machine run, including my co-host Nykoel Kahn, our executive producer Jen Byrne, Ricardo Islas on sound, and everyone at the Legal Talk Network.

Remember, you can follow us and send us comments, questions, episode ideas or just troll us on Facebook, Instagram and Twitter @CBAatthebar. Please also rate us and leave us your feedback on iTunes, Apple Podcasts, Google Play or wherever you download your podcast, it helps us get the word out.

Until next time, for everyone here at the CBA, thank you for joining us and we will see you soon @theBar.

[Music]

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