Pardon the 2017 Interruption: An Annual Recap

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The Kennedy-Mighell Report

Pardon the 2017 Interruption: An Annual Recap

12/19/2017

[Music]

Intro: Web 2.0, Innovation, Trend, Collaboration, Software, Metadata… Got the world turning as fast as it can, hear how technology can help, legally speaking with two of the top legal technology experts, authors and lawyers, Dennis Kennedy and Tom Mighell. Welcome to The Kennedy-Mighell Report here on the Legal Talk Network.

[Music]

Dennis Kennedy: And welcome to Episode 204 of The Kennedy-Mighell Report. I am Dennis Kennedy in St. Louis.

Tom Mighell: And I am Tom Mighell in Dallas.

Dennis Kennedy: In our last episode we talked about technology that we were thankful for. At year’s end it’s time for our annual recap show. Longtime listeners will know that ESPN’s Pardon the Interruption show also known as PTI with Tony Kornheiser and Michael Wilbon was one of the inspirations for The Kennedy-Mighell Report. Our tradition is to use some elements of the PTI show for the format for this recap episode.

Tom likes to point out that I am the older and grumpier one, so I play the role of Tony Kornheiser.

Tom, what’s all on our agenda for this episode?

Tom Mighell: Well, Dennis, in this edition of The Kennedy-Mighell Report we will indeed be recapping the year in legal technology but in a PTI format. For those of you unfamiliar with PTI, we are going to have three segments. The first is Toss Up, in which we purposely take opposite sides of a legal tech topic.

The next segment is What’s the Word in which we fill in the blank on a statement about a legal tech topic with a well-chosen word. And Big Deal, Little Deal where we categorize a legal tech development as a Big Deal, Little Deal or No Deal.

And then we are going to end with a fast response big finish. I want to give you a sneak preview however of all the results; I win every segment. We are going to start with our first segment and that’s Toss Up. Some listeners think that Dennis and I agree too much and that we need to mix it up a little bit more and so Toss Up is made for that. We are required to take opposite sides on a topic. Each of us argues his position and at the end I of course declare myself the winner.

Dennis, are the rules clear, no agreeing?

Dennis Kennedy: Well, first of all, I disagree about the rules and the results. In fact, I disagree with the whole system, but here’s my first Toss Up question. One or more of artificial intelligence, smart contracting, machine learning, or some other technology will actually eliminate lawyers in the next three to five years.

Tom Mighell: All right, so I am going to take sort of a contrary position here, but only because I know this is one of your favorite topics. So I am going to take the opposite position in deference to you. Based on the way that you phrase this question I am going to actually say that no lawyers will actually be eliminated in the next three to five years.

Will lawyer functions be eliminated, will lawyers need to find other work to do because machines are doing more of what they used to do, I think yes, that’s already happening.

What consulting company, I guess McKinsey now has artificial intelligence doing the work of 20,000 consultants. It’s definitely going to happen; I think the question is are lawyers going to be smart enough to leverage technology or move on to practice areas where these tools are not easily integrated, where the services are more of a spoke, less commoditized. So I think the answer to the question is not actually eliminating lawyers, but eliminating lawyer functions.

Dennis Kennedy: Tom, Tom, Tom, the purpose of legal tech these days and the highest and best use is to take lawyers out of the process. So I think that what we are going to see is that perhaps uniquely that the legal profession is going to be one of the areas where the types of technologies we are seeing, especially in analytics, artificial intelligence will actually remove lawyer jobs. They are definitely going to remove lawyer functions and they are going to change things.

And I think you said the key is how will the profession adjust to this technology and the potential speed that it comes our way and find sort of the things that lawyers do best and then prepare for what’s going to be a completely different approach, because the legal system is a uniquely difficult sort of friction in the way the world works these days.

Tom Mighell: Well, I was obviously right on that one. Legal tech startups and others outside the legal profession as the main drivers of legal tech and innovation, Dennis, yea or nay?

Dennis Kennedy: Well, I would like to agree with — I think this is one of these nuances, I think it is going to be a factor, but I think the main factor is sort of what I alluded to earlier. So I think the main driver is going to be existing clients and the clients that the legal profession would have otherwise had except that technology has now offered them alternatives.

(00:05:00)

So I really think that the sort of client-driven and the demands of clients is going to be the main driver, although it’s really interesting how the legal tech startup world is starting to have an impact.

Tom Mighell: I am going to agree with this statement. I am going to agree with it, if only because — and I worry here who is the grumpy one on the podcast, which is that because lawyers themselves certainly aren’t going to do it, and that’s probably not quite fair.

I think there are a lot of innovative lawyers out there who are thinking about new ways to use technology to serve clients. There are a lot of large law firms who are doing some great innovation in this area as well. But I think outside the big firms it’s got to be startups. It has to be — lawyers who actually are being innovative, they are not doing it in their practice, they are going out, they are starting their own startups, they are getting outside the law to look inside and innovate with it.

So it’s got to be those startups and others who are driving this. Lawyers as a broad group I think have never been big on innovation, they have needed someone to prod and drive them to this, and I think that having something like this happening from the outside is a good way to drive that change.

Dennis Kennedy: Toss Up number three, judges finally losing their patience and throwing the book at lawyers who won’t step up to e-discovery.

Tom Mighell: Well, I am going to disagree with that statement for two reasons. The first is judges are already — have already thrown the book at lawyers who don’t do e-discovery right. I mean let’s look at the hundreds of sanctions thrown down over the past ten years for bad e-discovery decisions.

I think the second reason why that’s an incorrect statement is that the revisions to the Federal Rules of Civil Procedure a couple of years ago, frankly, I think make it less likely that a party is going to get sanctioned for e-discovery abuse. They actually make it easier for you to get away with spoliating information. As long as you didn’t outright destroy it, you are going to be in good shape.

So I don’t really hear as much about sanctions these days as I used to hear before those rules got changed. I really believe that e-discovery has kind of settled down a little bit, and granted, I am not in that world like I used to be, but I really feel like it’s the big companies and the firms that have big e-discovery profiles are going to keep doing it and the smaller companies and the firms that only do a little bit are going to continue along in kind of a relative happy ignorance and some may get sanctioned, some might not, but I think that the rules favor the people who don’t know it. As long as they can prove some sort of reasonable good faith, people are getting away with a lot more than I would have imagined a couple of years ago.

Dennis Kennedy: So to the extent that — and I am not as involved in e-discovery either, but I would say looking back over 2017, probably the rumor or the sort of inside story I heard the most this year was that judges were truly frustrated with lawyers and their approach to e-discovery that they were starting to look to the e-discovery vendors more, to look at taking more control and they were just really furious in some cases about the way that lawyers have kind of abdicated responsibility in e-discovery.

So I think that whether it takes the form of sanctions or are we just flat out see judges look more to special masters and to the outside e-discovery vendors, I think we are going to see some activity from the judicial side, just because of the lack of pace and adoption of e-discovery.

Tom Mighell: All right, here’s our last Toss Up for this segment. Dennis, the hottest new technology of 2017?

Dennis Kennedy: So this may be a recurring theme through the podcast for me, but I think the voice interface is the most interesting new technology that I saw in the last year. And from the Amazon Alexa, the Google, Siri, all these different voice assistants, voice interfaces, something new from Apple in 2018 and the advances that’s happened in speech recognition and to what you can do with voice, that to me is the hottest technology I saw this year and where I saw the most promise and things happening the fastest.

Tom Mighell: All right, because we have to disagree on this, we have to take opposite sides, I won’t agree with you that voice technology is the hottest and what I am going to say instead is a really hot technology and it’s because of something that literally happened today, the day that we are recording this podcast, and I am going to say augmented reality.

We have discussed I think some interesting applications to the practice of law in past podcasts for augmented reality. The ability to place a layer on top of a picture or a video and interact with it or have it look completely realistic is frankly just amazing to me. Apple is all in on this. They are really going in with their AR kit.

(00:09:56)

And what really drove me to answer this question was my Google Pixel phone got updated today with some new functionality, where it’s very basic, but it’s just amazing. The Star Wars movie is getting ready to come out, I can take my camera and I can plop a Stormtrooper down right next to my Christmas tree. I put him down next to the Christmas tree, he is looking around, the Stormtrooper is looking around, I walk up close to the Christmas tree and the Stormtrooper puts out a hand and says, hey, you can’t go there. It’s just amazing, amazingly realistic. I took a picture, I sent it to somebody. They thought that a Stormtrooper was standing right next to my Christmas thee. It’s really just amazing to me.

Lawyers using it to enhance demonstrative evidence in litigation or using it in real estate closings or maybe even intellectual property work I think are just a few places where I think we are going to see this go for lawyers in the coming years, I am really excited about it.

Well, I think frankly that’s it for Toss Up and as I predicted, I clearly won.

Dennis, you are out of time to respond to that because we have got to move on to our next segment and that is What’s the Word. In this segment we have got a sentence about a legal tech topic with a blank in it, each of us has to come up with the best word to fill in that blank.

Dennis, what’s our first sentence?

Dennis Kennedy: Number one, the combination of the ethical duty of technology competence and the Florida Bar’s move to require technology CLE is having a or an blank impact on the legal profession.

Tom Mighell: The answer to that is a minimal impact on the legal profession, I guess, unless you are a lawyer from Florida who now needs to take technology related CLE.

I think right now as we record this podcast 28 states have adopted the ethical duty of technological competence. I am not sure those states are doing a lot to help lawyers maintain those ethical responsibilities, other than Florida.

Further, I think it’s way too soon for any of these states to have any ethics complaints to be filed. We certainly haven’t seen that anyone is using this duty as a basis for grievance or for malpractice or for anything else. And I just don’t think we are going to see any real effect until it has real consequence to lawyers, whether that’s Bar discipline, Bar malpractice suits, I think those are usually very good drivers to change lawyer behavior, and I just think it’s too soon, those aren’t happening yet.

Dennis Kennedy: So that was a good word, but I actually have a much better word and that is glacial, it’s having a glacial impact on the legal profession. They are sort of saying that we overestimate the short-term impact of technology and underestimate the long-term impact of technology and by orders of magnitude I think that’s the way I feel about what happens with technology in the legal space.

So I actually thought for the last couple of years that what was happening in Florida was going to have a fairly dramatic impact, but, oh my God, it’s just like the pace of legal technology change just seems to go slow, slow, slow, even in these initiatives, just on the educational side, so glacial was my word.

Tom Mighell: All right, the next sentence Dennis, your next virtual assistant will be blank.

Dennis Kennedy: My word is Alexa-ish. So I think that — what I mean by that is that I think the virtual assistant is going to be a device and so that device will be something that sits on your desk or within range, so that you will be able to speak to it, but I see it as something that will have a name and something you can just kind of call out to.

So I think that I see it more a net device thing, because I think those devices work really well as opposed to perhaps something that’s a bit more mobile or web-based.

Tom Mighell: Well, I take issue with that last comment, because my word is phone-based. Your next virtual assistant will be phone-based, because you don’t want to just have a device that you can talk to while you are sitting at your desk; you want to be able to talk to it in the car, you want to be able to talk to it when you are on the go somewhere and you need to be able to access your assistant wherever you happen to be, and right now the smartest assistants are fitting in the palm of your hand, although frankly, Alexa can’t. I mean Alexa has less portability than Google Assistant or Cortana do.

I would argue that Google Assistant is smarter than Alexa, but Alexa can do a lot of smart things, but I don’t think that this even needs to be your next virtual assistant, it should be your now virtual assistant because there are a lot of things that virtual assistants can do to help you in your practice. I think these are great tools that are ready to go right now.

Dennis Kennedy: Number three, the one technology all lawyers should be learning about right now is blank.

Tom Mighell: All right, my two words for this is artificial intelligence, because it’s the one thing that’s actually happening now, it’s the one thing that has the potential to really affect people in our practices.

I don’t know Dennis, what your word is going to be, it may be blockchain, it may be something similar to that, and while that’s really important, I am going to argue that we are still a ways off before most lawyers need to deal with that.

(00:15:02)

AI on the other hand is everywhere; it’s in our phones, it’s in the virtual assistants that we are talking about, it’s in the websites we visit, it’s in the bots that we use online for legal and other services. I think that lawyers need to know about this technology right now, because if what you say is true, it’s going to start replacing us very shortly and being able to know how to make sure that it either doesn’t replace us or how we take advantage of that, whether we can use it actively in our practice or not is a critical thing to start doing now.

Dennis Kennedy: Tom, I noticed that you bent the rules by using two words there instead of one word for the blank, while I satisfy the rules and use the word IOT, which of course stands for Internet of Things. And I think that this is a technology concept that it really does make sense for lawyers to consider.

I have actually been speaking a little bit about this, because the way all these devices are connecting to the Internet, and some predict in the next couple of years there will be 20 billion devices connected to the Internet, which by quick calculation is more than double the number of people on the planet.

And so that’s going to have a variety of impacts, but the most important one I think is that it’s creating ecosystems and technology platform where things are interacting in lots of different ways, in lots of interrelated ways and sometimes in automatic ways, and I think it’s important to understand the basics of technology and the basics of an ecosystem, because I think that’s going to have a dramatic impact on how lawyers need to look at contractual and business arrangements in this platform environment.

Tom Mighell: I am pretty sure that IOT is a violation of the rules as well, but let’s move on, be that as it may, the last sentence in What’s the Word is the security approach of most lawyers is blank.

Dennis Kennedy: Appalling. So I am always shocked by what I hear lawyers — like just the cavalier approach that many lawyers have to security. When I was looking at the — writing my part of the TECHREPORT we call it for the ABA’s Annual Technology Survey, talking about cloud computing, just the small percentage of lawyers, I mean less than half were taking basic security approaches or implementing basic security approach was just appalling to me and it hasn’t gone up that much in the last few years. So when I think of lawyers and security like across the board, I just go — I just can’t even believe what goes on out there.

Tom Mighell: Well, I am going to bend the rules a little bit and do another hyphenated word, I am going to say risk-ambivalent, although I really like your word cavalier, that’s an interesting word as well.

But here is the deal, most lawyers know better, don’t they? I mean they hear the stories about bad passwords and data breaches or how people lose their phone and laptop and bad things happen, right, I mean they hear about this, they are hearing more and more about ransomware and how you can lose your whole firm’s documents by not paying attention to the security of your firm, but lawyers are still pretty ambivalent about this.

They certainly don’t care enough to get a Password Manager or improve password practices. I can’t get anybody to pay attention to when I talk about Password Managers. They probably still get Wi-Fi on a plane or at Starbucks without firing up a VPN.

I think big firm lawyers are a little different, their IT departments care about security for them, but I think they are still personally ambivalent to the idea of security and I think it’s just one of those behaviors that doesn’t change until something bad happens to make it change.

And I think that’s it for What’s the Word and I have racked up another Tomnificient victory.

Dennis Kennedy: Wait, wait —

Tom Mighell: Sorry Dennis, we have got to go on to a break. Before we move on to out next segment, let’s take a quick break for a message from our sponsor.

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Tom Mighell: And now let’s get back to The Kennedy-Mighell Report, I am Tom Mighell.

Dennis Kennedy: And I am Dennis Kennedy. I am not really sure about the judging on the show so far, do I get to throw a challenge flag?

Tom Mighell: No challenge flags in this game. It is now time for Big Deal, Little Deal or No Deal.

(00:19:53)

Dennis Kennedy: This is my new favorite PTI segment. We will describe a 2017 legal tech development and then decide whether it’s a Big Deal, a Little Deal or No Deal at all. Tom, do you want to deal the first topic?

Tom Mighell: Alright, the first topic is technology focused law school classes. Dennis.

Dennis Kennedy: I think this is a little deal that can grow into a big deal, and I say little deal not due to its importance, which I think is actually fairly immense in terms of potential, but because so few law schools are currently doing it, but I think that Tom, you and I — we did a podcast where we talked about legal education and I think that the idea of the law school becoming the educational platform where people can go into traditional law into legal-tech, into e-discovery, into other law-related things, I think it’s something that we’ll see over the coming years.

So I think it’s a little deal right now, but it’s a really interesting deal with the potential to become a big deal.

Tom Mighell: See, I took this as conceptually and not literally, and so, I don’t think of this as a big deal, I think of this as a huge deal, I mean I just in the past couple of weeks I taught a class at a local law school on using an iPad in court, and that’s not really the most important technology to teach lawyers about but the fact that there’s a class at this law school teaching them how to use technology, they spent a couple weeks learning how to use Word properly, my gosh, who does that in law schools? It’s amazing to me that they are taking the time to teach lawyers how to do these things, and I think that it’s a huge deal when you are helping lawyers too. We talked about the ethical obligations, teaching this stuff in law school is helping lawyers to meet those ethical obligations before they even get out of law school. I think conceptually huge deal.

Dennis Kennedy: The next topic, the flow of venture capital going into legal-tech startups.

Tom Mighell: All right, this is — I’m going to say this is no deal, or I am going to say this is an average deal because frankly it was only a matter of time, right? I mean, at some point the VC firms are going to discover that there are a few legal-tech startups worth funding, it’s all about diversifying the portfolio. They found some legal-tech startups, yawn, no big deal.

Dennis Kennedy: I actually think the flow is a big deal because the trend has been for a significant amount of money to go into legal-tech startups in the last year. So I think that coming next year will be interesting to see whether that flow remains, whether it pulls back and then what is the product of that. So I actually put this to be kind of a big deal because I think if change is going to happen in the delivery of legal services it’s that outside funding and the tech startups that are successful that are going to make that happen.

Tom Mighell: All right, here’s the next topic, clients pushing lawyers to get better with technology.

Dennis Kennedy: See, I think this is a big deal because for 15 years I predicted this would be a big deal, and by God, one of these years I’m going to be right if I keep saying it’s going to be that, but we’re starting to see with a number of things going on and I think especially from my vantage point of corporate counsel where I think one of the things to watch is this, not just to move to efficiencies and to kind of reconfiguring and pulling more legal work back in-house but it’s the movement toward limited numbers of law firms on panels that I think it’s going to really drive a lot of things and to get and keep a place on panels because it’s part of the RFPs, there’s going to be a push from the big clients especially to have firms get better with technology. And then I think as you look at the legal zooms, the other people out there, I think also at the low end there’s going to be an expectation of good customer service, inexpensive and easy to do legal services, and again, technology is a key part of that.

Tom Mighell: And I’m going to say it’s no big deal because exactly what you said it’s been 15 years, this is old news. I say that this is just a series of constant evolutions is that there will be something that makes clients force their lawyers to get better with technology, lawyers will get better with technology, the playing field gets leveled for a while, and then there’ll be another change and we’ll do something again. So, 20 years ago it was email and clients started using email and so lawyers had to keep up and do that. Now it’s what you’re talking about now in panels and having to compete for work.

I see this as a continuing evolution that is constant because lawyers will continue to be behind on the adoption of technology that their clients will be leading them on and it’s just a matter of getting over the next hill and they’re going to drag their lawyers with them, so I say no big deal, business as usual.

So Dennis, here’s the last topic. Bitcoin and Blockchains?

(00:25:02)

Dennis Kennedy: So, I think this is in the near future is a little deal but a big deal going forward and I’ve been kind of thinking about, talking about involved in Blockchain stuff for a while.

I think the Bitcoin stuff has always been interesting. Right now when – Tom, we were at an ABA meeting where the waiter for our table came up, it was somebody mentioned Blockchain, I was talking about his investment strategies in buying Blockchain. And so you sort of had a feeling that maybe things had gone a little too far in the Blockchain world, and of course, he’s probably doubled his money in the last couple months from that, which shows he made a better bet than maybe I did by staying out of it.

So I think it’s a sort of a little deal going forward. I think Blockchain, Smart Contracting, watch for an article from me in a Law Practice Magazine coming out in January about Smart Contracting. I think that stuff is going to start happening and we’ll see how it starts to shake out. I think over a three to five-year range, it could be I think the Blockchain concept is going to be very significant.

Tom Mighell: So I agree with you, but from a different angle, I say, it will be a big deal but it’s not yet. As I think you and I’ve been talking as we record this, our fellow podcast host Bob Ambrogi is declaring “Blockchain” the legal-tech word of 2017, frankly there’s been a lot of people talking about Blockchain and legal community before then and for a while before then, but I would argue that outside of your server that you just talked about, 90% of the lawyers out there either don’t know what Blockchain is or have no use for it in their work or personal lives. So I agree with you, I think we still have a ways to go. I think it has a lot of potential, but I think right now I would say a medium to no big deal at this point.

And it is just in, I won again. And that’s a big deal. So on to our big finish, Dennis, we’re going to answer six questions in 60 seconds. Dennis, let’s get started.

Here’s number one for you. What’s the best legal-tech book to be published in 2018?

Dennis Kennedy: This is unfair, but I really do believe this time, I think it’s the Second Edition of our “Lawyer’s Guide to Collaboration Tools and Technologies” which I think might be come out in March.

Tom Mighell: Agreed.

Dennis Kennedy: For you, Tom, best choice for a lawyer today, a blog, a podcast, a videocast or just a plain old social media?

Tom Mighell: So I’ll say best bang for your buck has got to be a blog or podcast lowest barrier to entry is social media. It depends on your priorities.

Dennis, what’s the best legal technology resource?

Dennis Kennedy: Again, I’m a little bias, but as being Chair of the Board of the ABA’s Legal Technology Resource Center, great resource is now big plans for the coming year.

Tom, best app for lawyers?

Tom Mighell: Dennis, here’s a choice you may not have thought that I would mention, Microsoft Teams. Microsoft’s answer to Slack is a really, really great tool for collaborating with people in your office, especially if you live in the world of Microsoft Office. I’m really enjoying working with it with the folks at my job.

Dennis, what’s the tech topic that lawyers most need to pay attention to?

Dennis Kennedy: I think it’s the voice interface and what’s happening on the voice side is probably it’s going to have the most practical impact for you. I think my second choice would be data analytics.

And Tom, we will wrap it up, what was your best tech decision of 2017 other than some kind of headphones?

Tom Mighell: Yeah, none of the headphones were my best, and I think some are going to disagree, but I do not regret my decision to go all in, even more in with Google Tools. Google Home in multiple locations, I just today bought the Google Max Speakers for my home replacing my Sonos speakers. Google Assistant, just the smartest artificial intelligence around, it’s really made my life a lot easier and a lot more productive.

Dennis Kennedy: And that was 2017 and we’re ready to move on to 2018 with a bunch of great new topics and ideas to share with you, and I think some interview guests. Happy New Year to all.

Tom Mighell: And that wraps it up for this edition of The Kennedy-Mighell Report. Thanks for joining us on the podcast. You can find show notes for this episode at  HYPERLINK “http://www.tkmreport.com” tkmreport.com. If you like what you hear, please subscribe to our podcast in iTunes or on the Legal Talk Network site, where you can find archives of all of our previous podcasts. If you’d like to get in touch with us, you can reach us on LinkedIn. You can also remember, leave us a voicemail, we love your questions, we’ll be getting back to the answering questions segment in future podcasts, that number again is 720-441-6820.

So until the next podcast, I am Tom Mighell.

Dennis Kennedy: And I am Dennis Kennedy and you have been listening to The Kennedy-Mighell Report, a podcast on legal technology with an Internet focus.

If you like what you heard today, please rate us on Apple Podcast. We will see you next time for another episode of The Kennedy-Mighell Report on the Legal Talk Network.

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Outro: Thanks for listening to The Kennedy-Mighell Report. Check out Dennis and Tom’s book, “The Lawyer’s Guide to Collaboration Tools and Technologies: Smart Ways to Work Together” from ABA Books or Amazon, and join us every other week for another edition of The Kennedy-Mighell Report, only on the Legal Talk Network.

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