The ”Big Ideas” of Law Practice – and Emerging Practice Areas

Episode Notes

Transcript

The Digital Edge

The ”Big Ideas” of Law Practice – and Emerging Practice Areas

08/27/2019

 

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Intro: Welcome to The Digital Edge with Sharon Nelson and Jim Calloway, your hosts, both legal technologists, authors and lecturers, invite industry professionals to discuss a new topic related to lawyers and technology. You are listening to Legal Talk Network.

 

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Sharon D. Nelson: Welcome to the 139th Edition of The Digital Edge: Lawyers and Technology. We are glad to have you with us.

 

I am Sharon Nelson, President of Sensei Enterprises, an information technology, cybersecurity and digital forensics firm in Fairfax, Virginia.

 

Jim Calloway: And I am Jim Calloway, Director of The Oklahoma Bar Association’s Management Assistance Program. Today our topic is The ”Big Ideas” of Law Practice and Emerging Practice Areas.

 

Sharon D. Nelson: Before we get started we would like to thank our sponsors.

 

Thanks to our sponsor Clio. Clio’s cloud-based practice management software makes it easy to manage your law firm from intake to invoice. Try it for free at clio.com. That’s clio.com.

 

Thank you to Nexa, formerly known as Answer1. Nexa is a leading virtual receptionist and answering service provider for law firms. Learn more by giving them a call at 800-267-9371 or online at nexa.com.

 

Jim Calloway: Thanks to Scorpion. Scorpion sets the standard for law firm online marketing with proven campaign strategies to get attorneys better cases from the Internet. Partner with Scorpion to get an award-winning website and ROI positive marketing programs today. Visit scorpionlegal.com/podcast.

 

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We are very pleased to have as our guest Lance Johnson, who is an Intellectual Property Attorney and the Principal of Johnson Legal PLLC in Fairfax, Virginia. He is also the Contributing Features Editor of the ABA Law Practice Management Magazine. Thanks for joining us today Lance.

 

Lance Johnson: Thank you Jim. Thank you Sharon. I am glad to be here.

 

Jim Calloway: Lance, you were the Issue Editor for the recent ABA Law Practice Magazine’s Big Ideas issue. Tell us a little bit about how the magazine goes about choosing the big ideas?

Lance Johnson: Well, we have an editorial board for the magazine that’s made up of conservatively 15-18 attorneys and we form an issue team of three to four volunteers from that board about 10-12 months before magazine is slated for publication.

 

In this case, the Big Ideas issue was published this July 2019, so we started panning this issue in August 2018, and the issue team can decide on its topics in a number of ways. Typically they have a brainstorming session with the entire editorial board to find potential topics that they think would likely be interesting to practicing lawyers, generally small to medium-sized firms, and from those ideas they try to figure out a general theme and then that helps them identify specific articles that would go in the issue.

 

The team will identify a lead article, three supporting articles that are directly on theme and then two open articles that are related to the theme, but are not necessarily directly on point.

 

Sharon D. Nelson: So we are waiting with bated breath here Lance. What big ideas did they come up with for this issue?

 

Lance Johnson: Well, the theme was Delivering Legal Services Better. So our lead was entitled Easy Automation, and that’s an article about how to automate a number of the routine tasks that lawyers face every day, so they can reduce their un-billable administrative time.

 

We also have a futuristic retrospective piece that is entitled Looking Back on the 2020s: What a Decade, and this is written from the unique perspective of — vantage point of a future senior partner who is talking to his partners and younger associates, discussing the types and number of changes that occurred in the legal practice that came to be in 2020 to 2025. You can think of it as a future article that looks back and discusses a perspective on how these changes came about and what they meant.

 

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We also have an article that is directly focused on lawyers who are not generally seen as the most risk embracing folks. The article is entitled Smashing Through Your Barriers to Breakthroughs, and this article discusses some common self-imposed barriers that can hold a firm back from fulfilling its true potential.

 

Our last on theme article is entitled Robotic Automation Can Improve Your Practice. This article has a good set of examples around use of robotic processes and process automation that can help with everything from automating new client intake forms, to forming a database that’s useful for client matter tracking, marketing and new client evaluation.

 

The article discusses how you can use that same information on the tracking form to help with billing and mitigate risks of potential new clients, help with contracts and contract formation and contract disputes. We have two open articles; one of which discusses the importance of the human relationship between the client and the attorney despite the technology that you might use in your practice in order to meet those client needs. That article is entitled Technology Is Useful, Relationships Are Essential.

 

And the last open article is the one I helped write and it has the descriptive title Emerging Practice Areas in the Foreseeable Future. It’s kind of a look forward for upcoming issues that counsel might want to consider getting ready for, but that will probably not hit mainstream for the next 5-15 years.

 

Sharon D. Nelson: Well, great, we are going to ask you a little bit more about that one later.

 

Lance Johnson: Great.

 

Jim Calloway: Well, this was a really cute cover of the magazine with the robot on the cover and saying hello to automation. It references artificial intelligence. Was this done because artificial intelligence is in use at many law firms today?

 

Lance Johnson: Jim, I would like to say that we have a very careful, detailed focused look on the most relevant and important topic and that becomes the cover. The truth however is that we generally tend to vote on the most eye-catching interesting graphic and the article that that’s attached to tends to go along for the ride.

 

And in this case the robot was just too good to ignore, so we figured if the cover is great, it will pull the audience in and they will read the rest of the magazine.

 

Sharon D. Nelson: You are absolutely right, because when I saw the cover I dropped whatever I was doing and started reading, so that was a very good thought Lance.

 

I thought the whole issue was terrific, but I know there is always a couple of topics that seem really important. What really struck you in this issue?

 

Lance Johnson: Well, the one that resonated most with me is the article on the human relationship between attorney and client. We know that technology is going to keep getting better, we know it’s going to get more complicated, it’s going to address more situations, but at the heart of every relationship is that human connection between attorney and the client. And if that relationship falters or doesn’t form right, no amount of practice technology is going to help save either the lawyer or the client or the relationship. So that one I think really hit home for me to be the most important.

 

Sharon D. Nelson: Well, I think that’s true and it’s certainly something that I know Jim and I talk a lot about when we give CLEs is that you have to have a relationship and electronic relationships only go so far, and you look at the relationship Jim that we have built over the course of many years, it’s certainly based on our personal interactions.

 

Jim Calloway: It certainly is, although it is good to catch up with your real-time friends electronically. I am still a little old school that an electronic only relationship works very well.

 

Before we move on to our next segment, let’s take a quick commercial break.

 

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Sharon D. Nelson: Welcome back to The Digital Edge on the Legal Talk Network. Today our subject is The ”Big Ideas” of Law Practice and Emerging Practice Areas, and our guest is Lance Johnson, who is an IP attorney and the Principal of Johnson Legal PLLC in Fairfax, VA.

 

Jim Calloway: If we could Lance, we would like to zero in on the article you wrote, Emerging Practice Areas in the Foreseeable Future, what gave you the idea to do that article?

 

Lance Johnson: Well Jim, I have been — I was involved years ago in the Science and Technology Law Section and I did work on a publication there for them and was responsible for getting lead articles that mirrored their theme, and the theme of that section at the time was Exploring Cutting Edge Issues at the Intersection of Science, Technology, and the Law, and it came up with a number of things, from electronic citation of Internet published opinions, to encrypted digital signatures of contracts.

 

And so that issue of what’s emerging, what’s coming next, what’s new has always been an interest of mine, and when this issue came up on “Big Ideas”, I just couldn’t help but resort to that as a potential topic article to find out what’s behind the curtain, what’s coming next, and I was really happy to find out that the issue team and the board were interested in this sort of crystal ball article. So that was really the genesis behind it.

 

Sharon D. Nelson: And what did you decide was coming next?

 

Lance Johnson: Well, we talked to the experts. There is a lot of people who focus much of their practice on looking forward and we found a company called Fast Future and they have a number of authors and speakers who really focus on future issues and they provided some content.

 

We also talked with — found a guy named Dr. Seth Ogden, who is with Patterson Intellectual Property Law in Nashville. He had a contribution to the article as well.

 

Between the two of them we identified four potential issues. Our first issue and relatedly the second issue had to do with automated machine, decision making and evidence, AI sort of things. Machine testimony, what happens when an AI system makes a decision about your eligibility, who is responsible. What happens if there is bias in the decision, because the dataset that the AI program was operating on wasn’t sufficiently diverse to accommodate all data points.

 

We have seen articles like this on tests of AI systems where they did facial recognition on a diverse population and it was found lacking, because the database just didn’t have enough different types of data to be able to have datasets that were meaningful.

 

So yes, we got a lot of white guys who worked in the computer department, their data came out pretty good, but diverse men and women of different nationalities and backgrounds, not so much.

 

So these are going to be issues as we move forward and we rely more on AI systems, particularly if we are making decisions, but what happens about testimony? I mean we have heard cases now about Amazon Alexa recording systems where they are trying to record information to find out what happened in the house during a particular event. How can you get that in? Is it who testifies in support of that when you are on the stand so that the opposing counsel can cross-examine? The admissibility issues are going to be big.

 

Sharon D. Nelson: So let’s talk a little bit more about evidence and liability issues from autonomous machine testimony. You mentioned a little bit about the legal issues, is there more that goes with that?

 

Lance Johnson: Yes, there is a lot more that goes with that, and I don’t pretend to be an expert on AI algorithms, but they are at heart, large sophisticated databases with an algorithm that sees patterns and draws parallels to suggest a likely outcome. Those are all interpreted as decisions.

 

So how does a company know when the system is ready for deployment? I guess some of this is going to be worked out in court, but right now there is no standard for saying if you have a database for population samples, that’s sufficient, that doesn’t exist yet. It’s going to be something that the companies and the courts and plaintiffs and defendants’ counsels are all going to have to work out moving forward, because we just don’t have a vetting system that’s clear.

 

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Jim Calloway: Well, Lance, we weren’t surprised to see liability from AI denial of service, access or unfair treatment as a topic, but why don’t you discuss with our audience briefly what all of that means?

 

Lance Johnson: Well, let’s say for example a store has a credit card and they want to automate their system of trying to determine who is eligible for the credit card and who isn’t and so they hire an AI company to scan in and look at the credit card application that an applicant submits and that information is compared against the huge database of information that the AI system has access to. So a decision gets made. A report comes back says, yes or no.

 

Well, what happens if it comes back as a No? Does the plaintiff have the ability to challenge that, and if so how? Let’s say that rather than it just being a credit card application, let’s say it’s eligibility for benefits or it is security clearance where it gives you the potential for job opportunities and greater growth. What happens if it comes back as a negative event? The stakes get even larger depending on how they’re deployed relying on the reliability and accuracy of these AI systems? How they’re going to be used is all up in the air at this point?

 

Sharon D. Nelson: Yeah, we have that old garbage in, garbage out saying and of course I am not fond of any AI that’s a black box because there’s no way to attack it if you don’t know what’s in it, so that bothers me a lot.

 

But let’s move on to machine mediated dispute resolution. You obviously see that growing a lot in the future where are we today and where do you see us going with that?

 

Lance Johnson: Again, I’m certainly no expert, but the folks from Fast Future had a point on this in their article and they referred to the decentralized arbitration and mediation network and they described it as an open source network for resolution of smart contract disputes, and I just checked it and it looks like they have a — in 2016 they presented a platform proposal for developing it but it still hasn’t gotten to the stage of deployment.

 

Some of that could be because smart contracts themselves are still at a very early stage and a smart contract for those who may not know it’s a self-executing contract that is based on a distributed blockchain technology Network and they permit transactions to be carried out automatically without intervention between anonymous parties, and the example I give for that, let’s say it’s a sales contract that says when Joe pays Sally some amount by funds transfer, the system recognizes the fund transfer and then automatically transfers the title to Joe’s Harley to Sally; so it’s self-executing.

 

Now, let’s say Joe and Sally don’t know each other, they’re anonymous, doesn’t matter who they are because the system is just looking for the fact of the transfer, the quid pro quo to occur — to then carry out some further act, and this mediation network is being set up to resolve the likelihood of disputes that may occur in these sort of transactions.

 

So let’s say the funds transfer wasn’t sufficient, let’s say there were some things that were missing. Well, transfer got title but Joe didn’t get paid what he thought he was going to get paid. So they’ve got to go back and try to go through some resolution process but because this was a smart contract, the mediation network can help them resolve that without necessarily resorting to a human intervention, a court or a human mediator.

 

So I think it has some potential but I think a lot more has to happen for these automated systems to become useful, and I don’t think judges should plan on retiring anytime soon because I think we’re still going to need them for a while.

 

Jim Calloway: I agree, although it is amazing the online dispute resolution system in British Columbia resolved 14,000 small claims cases in just its first seven months of operations and so we’re seeing them pop up in New Mexico and Utah and some places in Connecticut, its pilot programs. So I think online dispute resolution is going to be something we all need to pay attention to, hopefully to clear the courts for more matters where the judges are needed.

 

Before we move on to our next segment, let’s take a quick commercial break.

 

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Sharon D. Nelson: Welcome back to The Digital Edge on the Legal Talk Network. Today our subject is The “Big Ideas” of Law Practice – and Emerging Practice Areas, and our guest is Lance Johnson who is an IP attorney and the Principal of Johnson Legal PLLC in Fairfax, Virginia.

 

Jim Calloway: Lance, I’m in Oklahoma where we’ve recently legalized medical cannabis and now I drive by about ten dispensary billboards as I commute to work every day, but other lawyers might not appreciate about the effect that cannabis and hemp-related issues are becoming a big area of law practice. So why did you focus on that in the magazine?

 

Lance Johnson: Well, we did and Dr. Ogden had a piece where he talked about the technology that are likely going to have to be developed around cannabis cultivation. For example, how do you control weeds in a field of cannabis? You can’t spray the fields with insecticide because the CBD oil extraction process concentrates those insecticides and contaminates the CBD oil.

 

So what do you do? Well, you could presumably deploy a whole lot of people to go out and pick weeds, or his suggestion was, maybe you could have a weed-picking drone, program it to recognize and distinguish between cannabis and non-cannabis and give it a laser to zap the non-cannabis and clear out the weeds.

 

If that comes in effect I’ve got a backyard that could really use some attention of a trained drone. But I expect it is going to be continuing to be a big issue as more states look at the issue and legalize it, and I can’t help but look at Colorado, they have a huge budget surplus because of their cannabis tax proceeds.

 

I heard about the concerns for the Federal deficit this morning and I wonder now how long will it before federal legalization is look too as a way to turn around the federal deficit and generate a surplus on a regular basis.

 

Sharon D. Nelson: Well, I’m thinking on a more micro level and of course, it’s not legal to have cannabis here in Virginia, so it seems to me — I remember a friend of mine in Oklahoma inviting me out to speak at his conference next year, can this aging hippie come out and see some of those billboards and whatever else there is to see?

 

Jim Calloway: I’m sure you can, we’re having quite the cannabis boom. I can promise you at this point.

 

Sharon D. Nelson: I’ll bring my bell-bottoms, so then again they wouldn’t fit. Oh well.

 

So Lance, my own prediction is that data breach-related law and privacy law are just going to go through the roof. You almost couldn’t find a data breach lawyer except in mega firms a decade ago, but now they’re populating like bunnies, and in fact they all write me to say put me on your list, so if you have any data breaches in your cybersecurity end of your practice, refer them over to me.

 

Do you see this area of practice continuing to go crazy and feel free also to give us any final thoughts to wrap up?

 

Lance Johnson: I think as technology brings all of us closer together, both the well-meaning and those who are not so well-meaning, we are going to continue to have data breach issues, computer access issues and problems that arise from the connectedness that a connected technology network gives us.

 

So one day maybe Quantum AI can help us stay ahead of the bad guys and self program it in anti-intrusion mechanisms, but I sure we hope get that technology up and running before the bad guys do, because I think it’s going to keep coming.

 

So I’m optimistic for the future. I don’t think lawyers are going to be out of business any time soon. I think rather than doing a standard transactional contract of simple words for routine sales, I think we’re going to be facing larger issues, they’re going to involve greater and greater understanding of technologies and that are more complex and pervasive throughout the new society.

 

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Sharon D. Nelson: Well, I think you did a great job on the magazine. Congratulations to everybody who worked on it. It was a terrific issue. I loved some of the new thoughts about what’s coming at us and just a really great job and I know that everybody who’s listening enjoyed hearing about your thoughts today. Thank you for being with us, Lance.

 

Lance Johnson: You’re quite welcome, Sharon. Thank you Jim.

 

Sharon D. Nelson: And that does it for this edition of The Digital Edge: Lawyers and Technology.

 

Remember, you can subscribe to all of the editions of this podcast at legaltalknetwork.com or on Apple Podcasts. And if you enjoyed our podcast, please rate us in Apple Podcasts.

 

Jim Calloway: Thanks for joining us. Goodbye Ms. Sharon.

 

Sharon D. Nelson: Happy trails, cowboy.

 

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Outro: Thanks for listening to The Digital Edge, produced by the broadcast professionals at Legal Talk Network. Join Sharon Nelson and Jim Calloway for their next podcast covering the latest topic related to Lawyers and Technology. Subscribe to the RSS feed on legaltalknetwork.com or in iTunes.

 

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