When the going gets tough resist travelling to Myopia

60558493 - you can't see the forest for the trees

By Bernadette Healy

I have recently been reading some interesting pieces around the themes of tribalism[i] and social cohesion,[ii] and reflecting on the worrying trend to focus myopically on the sound-bite individual level (demonizing or worshiping), at the expense of tackling long-term, humanity-wide issues.  Of course as a psychologist, and particularly one delivering mental-health-related services, I am daily contributing to the individual-centric paradigm – just as our communication systems increasingly do. Particularly as the entry point for audience engagement.  One argument used to justify this approach is that, once hooked in to the story of one of our tribe or one of our enemies, broader themes can be addressed.  I wonder if this is happening less and less often, and that instead, the piece begins and ends at the individual level – with the reader happily left to sigh in contentment or wonder or exclaim in relief that they don’t know anyone or live near anyone like ‘that’.

There is no denying that it is very difficult for many of us to stay with the bigger issues long enough to find a way to contribute positively without becoming overwhelmed.  A combination of: enormity of the issues; relentless streaming; reductionism of content; and sensationalising of information all contribute to this group helplessness. This is particularly the case when our work and personal lives are stretched to capacity, and aggravated further by competitive and combative work domains.  The seemingly ever-increasing levels of anxiety prohibit many from staying with their own discomfort –  leading to the pursuit of a myriad of avoidance behaviours including withdrawal, anger, fleeing the scene, routine and or excessive drinking, over-eating, addiction to screens / internet porn etc  – and little capacity is felt to be left to think about humanity.  However, contributing towards a greater good (even when limited to your ‘tribe’) can provide healing opportunities and a natural antidote to Myopia.

Please note the ‘a’ before ‘greater good’!  This is where paradoxically, the individual level must be honoured in order for each of us to sustain any contribution to others.  In other words your values and interests will largely determine what ‘greater good’ means for you.  You will need to reflect a while and perhaps try a few alternatives before you find a domain that sustains you. What is possible and sustaining will of course shift as your life structure shifts. The reflecting and choosing and even a tiny action[iii] can create huge shifts and extinguish that awful feeling of helplessness that can grip us in despair and inaction such that a myopic view is all that is doable.

This state of myopia is of course damaging in terms of societal-level tolerance and cohesion.

Getting back to the personal challenge of working within a profession where change is commonly focused at the individual level, I found it very gratifying to read about a recent Australian Psychological Society Social Cohesion Round table[iv] at which participants developed a list of psychological insights to promote social cohesion.  Their list included the following:

  • Diversity and radicalism are natural and healthy aspects of any society as they allow complexity and creativity in problem-solving. Problems occur when violence is used and as such there is a need to target promoters of hate and violence, who in turn are often a product of disengagement.
  • Challenge the assumption that it is the responsibility of minorities to integrate into the mainstream and promote self-reflection and cultural competence / responsiveness. Focus on community strengths, not individual threats and punitive measures.
  • Focus on changing social norms not individuals, individuals will follow
  • Acknowledge the influence of media and hence the potential to work collaboratively with media practitioners (journalists and broadcasters) and media researchers to change social attitudes and public discourses.

Good luck finding the little thing that you can do if you happen to find yourself visiting Myopia land.

 

[i] Hope for a mad world Sarah Gill The Age September 1, 2016

[ii] Psychologists convene to discuss ways to promote social cohesion in a multicultural society InPsych. The bulletin of the Australian Psychological Society. August 2016 Vol 38 Issue 4 pp 22-25.

[iii] https://www.change.org/ http://www.crowdfunding.com/ http://www.volunteer.vic.gov.au/information-for-volunteers/find-a-volunteer-opportunity

[iv] A snapshot of this work can be seen at http://www.psychology.org.au/public_interest/social-cohesion/aps-resources/

Tech Disruption and the Future Role of Lawyers (part 4)

futurama-robot-lawyer

By Phoebe Churches

In the final post in this series on lawyers and tech disruption, we look at the way forward. If you missed the previous three posts, you can catch up on the first one here, part 2 here and part 3 here. This post looks at

The New Frontier

The Last Law of Robotics: The only real errors are human errors.

The traditional role of lawyers will continue to contract due to the interplay between the power of network technology and AI; the highly competitive legal market; and the innovative unbundling of legal services. The rise of the informed consumer, the development of the sharing economy, and the demand for cheaper and more efficient legal services has created a huge opportunity for tech savvy innovators. Overall there will be far fewer employed in the traditional legal profession, and those who remain will do so in much more specialised areas concentrated in sophisticated litigation and prosecutorial work.  In fact, there will be far fewer people employed generally, with the link between labour and wages weakening as machines do more and more of our work. [2] This means that now is the time to review legal education and the likely prospects for law graduates.

Issues for Legal Education and New Graduates

The role and utility of lawyers is shrinking. The attenuation of traditional legal work is reflected in data on graduate employment. [3]  Recent surveys indicate more than 10% of private firms did not recruit any new graduates in the preceding year,[4] and generally rates of employment for new law graduates has declined from 92.9% in 1999 to 75.3% in 2014.[5] While fears of a graduate oversupply ‘crisis’ are cyclical and tend to go lockstep with economic downturns,[6] in the past increasing demand has eventually taken up the slack. Currently however, the profession is facing unprecedented disruption and competition, and there is no doubt that opportunities for graduates in the profession as we knew it have diminished.[7] Moreover, for those already in the profession as newly minted lawyers, the opportunity to learn on the job has declined steeply, displaced by legal process outsourcing and in-house automation of routine tasks.[8]

Additionally, there have been various responses in the sector to the requirement to become more tech savvy and digitally fluent. Universities are offering subjects in App development and other applied technologies.[9] The Australian College of Law has just launched an innovation hub creating ‘new short courses and programs aimed at equipping lawyers to capitalise on opportunities created by industry flux’.[10] Some firms are trying to get ahead of the changing skillsets needed by providing in-house crash courses on coding.[11] However, perhaps most critically, current law students need to be taught about the future of legal practice so they can plan accordingly.

There is no evidence that law graduates will soon be unemployed or unemployable.[12] For many years law has been a generalist degree allowing graduates to find employment in diverse roles beyond the legal sector. There are also many areas in the community legal sector which struggle to find new recruits. However, given both the increasing specialisation of legal roles, and the likely utility of a law degree which is more generalist in nature, a requirement to learn more than 11 areas of law seems unnecessary.[13] Permitting more specialisation at law school in conjunction with a solid grounding in general legal principles, will better equip law graduates for the changing legal landscape.

Conclusion

Lawyers have enjoyed a role which they have largely constructed for themselves. This traditional role has been further buttressed by excessive and disproportionate regulatory barriers. Traditional legal roles must necessarily give way as many tasks can be performed competently, more cheaply, and effectively by professionals without a legal qualification. Technology, which can already outperform humans in many areas of legal work, will carve out its own role, and lawyers will need to concentrate on dealing with the arcane ways of court appearance work in this new world.

Change, especially rapid and dramatic transformation, brings fear and resistance. However, radical change to the traditional role of lawyers has the potential to bring many improvements. Technology-wrought automation will change the link between wages and labour, with paid employment generally decreasing over time. Tech innovation will bring greater access to the justice system by a wider range of people, and automation of many areas of life will bring the extension of leisure time and more meaningful pursuits. In the context of real potential for positive change, I for one, welcome our new robotic overlords.

Previously: SkyNet, Tech Singularity and the End of Lawyers


[1] Source unknown.

[2] The concept of a universal basic income has garnered increasing currency with both ends of the ideological spectrum; see e.g. Mark Liddiard, ‘Could the idea of a universal basic income work in Australia?’ (2 June 2016) The Conversation.

[3] Paul Young, ‘Are Law Schools Producing Too Many Lawyers?’(2014) 88 Australian Law Journal 367.

[4] Graduate Careers Australia, Graduate Outlook Survey 2012: Summary Report for Legal and Professional Services Employers.

[5] Graduate Destination Survey, Gradstats Reports 1999–2014.

[6] Angela Melville, ‘It is the worst time in living history to be a lawgraduate: or is it? Does Australia have too many law graduates?’, (2016) 50 The Law Teacher 1.

[7] Ibid.

[8] Richard Susskind, ‘Provocations and Perspectives’ A working paper submitted to the UK CLE Research Consortium

(Legal Education and Training Review) (October 2012).

[9] See e.g. The Melbourne Law School’s Law Apps subject.

[10] Samantha Woodhill, ‘College of Law launches innovation hub’ (6 June 2016) Australasian Lawyer.

[11] Samantha Woodhill, ‘Why this firm is teaching lawyers how to code’, Australasian Lawyer (27 May 2016).

[12] Melville, above n 54.

[13] Miller, Katie, ‘Disruption, Innovation and Change: The Future of the Legal Profession’ (December 2015) Law Institute of Victoria Report.

 

 

 

 

 

So, it turns out I was wrong… bound to happen I suppose.

By Georgia Briggs

georgiaBriggsA few weeks ago I wrote a piece, including some very sound advice I like to think, as to what happens when you go to an interview, and it goes terribly. This was loosely (lies, very tightly) based on a job interview I had recently. It was for a nice job, which would tide me over until I found more permanent work, and they were on the same level as me in that regard, happy to have me for a short period, in non-solicitor work, until I found something better suited. Mutual use and understanding of the role. Well, despite the fact that I thought I tanked the interview more than I could have ever imagined, I got the job! WHAT?? I almost fell off my chair when the employer called me and said “we want to offer you the position”. I couldn’t wipe the look of bewilderment off my face, lucky it wasn’t a video call! I had honestly cried my little eyes out for a brief 30 minutes (ish) afterwards at how poorly the interview had gone, apparently, it hadn’t gone that poorly at all!

The lesson here is, you never really know what other people are thinking until they tell you. So keep an open mind towards yourself and the future and never put all your eggs into a basket before knowing for sure.

I have three sisters, one older and two younger…

Tonia (1)

I think I get along better with my older sister because she gives me good advice and she’s just good to be around. She recently got married, I was her maid of honour.

I think the best part of being a maid of honour is just being there for my sister throughout the whole process, the worst part is probably doing the speech in front of heaps of people. Luckily it went quite well.

Legends of Law School is a monthly column by Georgia Briggs

Tech Disruption and the Future Role of Lawyers (part 3)

futurama-robot-lawyer

By Phoebe Churches

This is the third post in a series on this topic. If you missed the first two, you can catch up on the first one here and part 2 here. This post looks at

SkyNet, Tech Singularity and the End of Lawyers

“I don’t blame you,” said Marvin and counted five hundred and ninety-seven thousand million sheep before falling asleep again a second later.[1]

So far this discussion has focused on the contracting role of lawyers, and the indications that this contraction will continue apace. Now I want to look at how close this event horizon might be. There are differing views on the immediacy of impacts of automation and technological change on the legal sector. From one side, a headline screams ‘Robots replacing lawyers a ‘near certainty’,[2] and a Deloitte Insight report claims ‘that 39% of jobs (114,000) in the legal sector stand to be automated in the longer term as the profession feels the impact of more “radical changes”’.[3]

On the other side experts at the Massachusetts Institute of Technology tell us that ‘[a]utomation is advancing, but we are still far from the day when machines can do complex physical and mental tasks that are easily and cheaply done by humans’.[4] Similarly, an attendee at the CodeX Future Law Conference at Stanford Law School in May this year recounts much discussion teasing out the difference between ‘what’s real and what’s marketing buzz in artificial intelligence’.[5] A quick survey of Twitter dialogue hash tagged #futurelaw discloses general agreement that the role of Artificial Intelligence (AI) for the foreseeable future will be to assist lawyers rather than replace them. There is some consensus that ‘the notion of the robot attorney is pretty much hype and we still have a long way to go to realize the potential of a fully AI attorney’.[6]

The Tech Paradox

One of the paradoxes of technology is that “simplification complicates”, that is, the more technology you throw at the problem in order to simplify it, the more complex it actually becomes.[7]

While automating transactional processes and other areas of simple decision making has already been a particularly effective tech intervention, complex decision-making processes are still not especially well suited to automation.[8] Moreover, some claims about technology really need to be properly put to the proof. For example, the facial analysis software which can purportedly pick criminals and terrorists by their visage sounds a bit too much like phrenology for comfort.[9] Similarly, apparently accurate predictions can prove to be a fluke. The potential for complex systems to rely on the wrong data is a stark reminder of the shortcomings of current AI. One anecdote which provides a good example is the AI system designed to detect the difference between dogs and wolves. After ‘training’ the system, it had a hit rate of close to 100%. Unfortunately, the system was simply detecting the presence of snow as a common element in all of the wolf photos, where the dog pictures featured none.[10] There are also troubling possibilities brought about by operator error and/or bugs introduced during coding of systems. These are not trivial concerns in the context of legal processes, and it may be a long wait for ‘the arrival of ultra-reliable and verifiably crash-proof code … a holy grail in the development of increasingly complex systems’.[11]

Ultimately though, these issues are about the rate of progress, rather than the inevitability of change. The writing on the wall is clear. Humans are no match for machine intelligence and efficiency in an enormous range of tasks. For example in the 80s and 90s, a large chemical company ran work done by its in-house legal staff through new data-mining software and found a human accuracy rate of only 60%. That is a lot of money spent on salaries for outcomes only ‘slightly better than a coin toss’.[12] It is indisputable that data-driven models can help make better legal decisions; yet, for the moment at least, and ‘for the appropriate tasks, the age of quantitative legal prediction is a mixture of humans and machines working together to outperform either working in isolation. The equation is simple: Humans + Machines > Humans or Machines’.[13]

The Regulatory Challenge

There is another factor limiting the speed of development in the sector: the full impact of rapid technological development continues to be throttled by slow regulatory change. Current regulatory barriers compromise services to consumers on both ends of the spectrum – on one end, entry barriers have created the monopoly which has facilitated a false market in legal services, and has limited competition from outside the sector which might otherwise weed out slapdash or underperforming firms. On the other end of the continuum, services in the unregulated space can enter the market unimpeded, providing all manner of products and services to unwary consumers with relative impunity.

While America is yet to reform its regulatory framework which enacts substantial barriers to entry and practise, the UK and to a lesser extent Australia have undertaken reforms to allow alternative business structures (ABSs). However, these reforms will need to go further as technology increasingly pushes the existing boundaries of regulation.[14] The Legal Services Board and the Solicitor’s Regulation Authority in the UK are actively promoting extensive regulatory reform to accommodate increased segmentation in the legal services market.[15] In Australia, incorporated legal practice and multi-disciplinary partnerships have been permitted for some time, however these models are still tightly confined by the regulatory framework.

The need to tread a careful line between freeing up the sector to embrace change, and protecting clients and society generally accounts in part for the sluggish rate of change to regulation. Witness the story of Justin Wyrick Jr who, in 2000 became the most asked for legal expert on AskMeHelpDesk.com. ‘Justin’, as it turns out, was in fact Markus Arnold, a 15-year-old secondary student who had never opened a law book in his life.[16] Mr Arnold was not prosecuted, to the American Bar Association’s abject horror, however his efforts are a pretty clear indication that consumers need some protection. Free online services are not currently regulated by consumer laws, so minimally we need some accreditation based regulation as assurance so the community can have some faith in what its (not) paying for.

At the other end of the spectrum, regulation unnecessarily interferes with potential improvements to the accessibility of the legal system. For example, in the US State of Florida, Rosemary Furman assisted people wanting a divorce by preparing and filing the necessary legal forms for $50.[17]  Ms Furman had previously done this work as a legal secretary under the supervision of an attorney who charged $300 to complete the same work. She thought the cost of filing for divorce was unconscionable, particularly for women unable to afford to leave violent relationships. [18] Unfortunately Furman was a victim of her own success, because her business attracted the attention of the Florida regulators who sentenced her to 120 days in gaol for her efforts. It was only by intervention of the Governor that she did not actually serve time.

Ultimately in the context of a disaggregated sector, regulators need to find ways to protect the interests of clients, but without erecting unnecessary barriers to entry, and constricting innovation. This has not proven a problem for the legal work increasingly undertaken by accountants and conveyancers. It is difficult to see why there is any barrier (other than the self-interest of lawyers themselves) to employing the same flexibility to encompass the increased segmentation of the legal sector. Mayson makes the case for ‘maintaining sector-specific regulation, rather than leaving legal services to be covered only by general consumer and competition protection’.[19] Where the stakes are particularly high for clients, such as ‘the potential for irreversible loss, misuse of clients’ funds, or abuse of a privileged relationship’,[20] there needs to be specific consumer protection, above and beyond the current regime. One way or another, regulators must recognise that the unbundling of legal work has at once opened up opportunities to address unmet legal need, and a potential space for the uninitiated and unannointed to wreak havoc.

Previously: The Contracting Role of Lawyers | Next Time: The New Frontier


[1] Douglas Adams, The Hitchhiker’s Guide to the Galaxy (1982).

[2] Miklos Bolza, ‘Robots replacing lawyers a “near certainty”’ (22 Feb 2016) Australasian Lawyer.

[3] Deloitte, ‘Developing Legal Talent: stepping into the future law firm’, Insight Report (February 2016).

[4] Timothy Aeppel, ‘Be Calm, Robots Aren’t About to Take Your Job, MIT Economist Says’ The Wall Street Journal (25 February 2015).

[5] Miguel Willis, ‘Robot Lawyers: Kill Law Jobs or Augment Expertise?’ (24 May 2016) The Innovative Law Student .

[6] Ibid.

[7] Frank McKenna, ‘In the zone: Is technology helping or hindering lawyers’ decision making?’ (September 2013) LexisNexis Australia Discussion Paper.

[8] Ibid.

[9] Debra Cassens Weiss, ‘Company claims its technology can pick out criminals by facial analysis’ American Bar Association Journal (24 May 2016).

[10] Ibid.

[11] International Legal Technology Association, ‘Legal Technology Future Horizons – Strategic Imperatives for the Law Firm of the Future’ (Report, 2014).

[12] Bregman, above n 18, 12.

[13] Daniel Martin Katz, ‘Quantitative Legal Prediction—Or—How I Learned to Stop Worrying and Start Preparing for The Data-Driven Future of the Legal Services Industry’ (2013) 62 Emory Law Journal 909, 929.

[14] Steven Mark &Tahlia Gordon, ‘Innovations in Regulation—Responding to a Changing Legal Services Market; (2009) 22 The Georgetown Journal of Legal Ethics 501.

[15] See e.g. Legal Services Board, A blueprint for reforming legal services regulation (September 2013); and Solicitors Regulation Authority, SRA Regulatory Reform Programme Improving Regulation: proportionate and targeted measures (April 2015).

[16] Clifford Winston, Robert W. Crandall and Vikram Maheshri, First Thing We Do, Let’s Deregulate All The Lawyers (2011).

[17] George C. Leef, ‘The Case for a Free Market in Legal Services’(October, 1998) Policy Analysis No. 322 – the CATO Institute, 1, 2.

[18] Ibid.

[19] Stephen Mayson, ‘Beyond the Legal Services Act’ (27 July 2015).

[20] Ibid.

 

Tech Disruption and the Future Role of Lawyers (part 2)

futurama-robot-lawyer

By Phoebe Churches

If you missed my first post on this topic, maybe head here and read it first. This post takes up where I left off – looking at how the sector is already changing very quickly.

The Contracting Role of Lawyers*

Historically, in Australia and similar common law jurisdictions, ‘legal work’ has been the exclusive domain of ‘lawyers’, and a ‘lawyer’ is generally defined as someone who undertakes ‘legal work’. This circular, self-serving definition has created a closed loop and the creation of a monopoly-based false market for legal work. Unfortunately this market, rather than ‘protecting clients from the exploitation of the inevitable asymmetry of knowledge and power … has actually encouraged and condoned an exploitation of the privilege’.[1]

Not all legal systems share this definition of course. In contrast to common law’s concept of a lawyer as ‘a single type of general-purpose legal services provider’, civil law systems ‘consist of a large number of different kinds of law-trained persons, known as jurists, of which only some are advocates who are licensed to practice in the courts’.[2] The distinguishing feature of civil systems is their reliance on statute, with judges applying, rather than creating law. The common law system not only creates law, but its dispute resolution process is primarily adversarial, where it is the legal representatives who must research, investigate and present arguments supported by evidence before a passive fact finder. This makes the adversarial system especially opaque and characterised by significant asymmetry in power between client and lawyer.

Technologies’ Role in Equalising Alignment, Balance, and Equivalence

There are three types of asymmetry in the justice system: unequal information about the services a client is seeking and what it is worth; unequal knowledge in the area of expertise for which assistance is sought, and unequal power – which is a function of the preceding two. However, the inequality of information between lawyer and client is beginning to level through the electronic marketplace, with a multitude of start-ups providing prospective clients with accurate and reliable reviews of law firms.[3] Additionally, big-data driven quantitative analysis can illuminate costings of complex matters to provide far greater cost certainty from the outset.

Lawyers have traditionally played a role as ‘equaliser’ – specialists required to balance this asymmetry of knowledge. However, exploitation of this role has established a market for lawyers that is clearly disproportionate to its need. For example, if lawyers maintain the rule of law, the fact that the United States has ‘17 times the number of lawyers per capita as Japan’, [4] should mean that the American rule of law is 17 times as effective, and Americans 17 times more protected than Japan. This is an assertion which appears to be wholly unsupported by evidence.  In fact, a recent study of 30 years of legal development in 22 countries ‘shows that in every instance, the population of lawyers is growing faster than the underlying population’.[5] In response to this oversupply ‘lawyers have created an artificial market for their services’,[6] creating work to do ‘by encouraging the spread of law into areas that were not necessary … and in which they have been protected by unnecessary and unreasonable regulatory barriers’.[7] Ultimately, this oversupply and the attendant over-reach of the legal market has created fertile grounds for disruption and the previously monolithic legal sector is segmenting in a way which means there is no longer any reason for many of these disaggregated tasks to be restricted to lawyers.

Increasingly advisory, facilitation and transactional practice is being subsumed by other indemnified professionals: accountants are providing tax advice, conveyancers are conducting property transactions, employment and industrial relations matters are handled by Human Resources Consultants. Many facilitation services have already been integrated into a range of technology enabled companies providing online access. It is possible to set up company structures or create self-executing smart contracts stored on the blockchain faster and more securely online than ever before. In the near future we can expect to see more platforms allowing a growing range of online transactions; from the resolution of consumer or welfare rights disputes; the creation and facilitation of wills, probate, and estate matters; to complete property transactions and company management.

That leaves litigious and prosecutorial work as the last bastions of the practicing lawyer – yet even this space is contested.** Reform of civil litigation legislation has curtailed personal injury work, [8]  eDiscovery is encroaching on many pre-trial tasks, and legal research, also a backbone of litigation, can be largely automated. Court appearance work is also being eroded by the increasing spread of tribunals and commissions, including the Fair Work and Human Rights and Equal Opportunity jurisdictions, [9] and alternative dispute resolution in which lawyers are often regarded more as a hindrance than a benefit.[10] The private sector is also eroding the litigation domain, with online platforms such as eBay and Airbnb containing their own arbitration systems, displacing as far as they can, the jurisdiction of local courts. In the near future there is no reason that a range of civil dispute resolution tribunals cannot also move their functions to online platforms which ‘can adjudicate small claims … as an alternative to court’ and without lawyers.[11] Additionally, there are a range of ways in which the sorts of issues currently giving rise to liabilities will no longer eventuate in the first place. For example, legal requirements are becoming embedded into our working and social lives,[12] including building designs which pre-emptively identify and correct environmental hazards, and plant equipment which automatically conforms with OHS requirements.

It seems inevitable then that increasingly the role of lawyers will be confined to officers of the court addressing only ‘David and Goliath’ issues.[13] That is, those disputes between individuals featuring significant power disparities, and disputes between individuals and more powerful institutions which remain tied to the adversarial system.[14] Likewise lawyers will remain needed in the prosecutorial space – where the potential tyranny of the state puts individuals’ human rights at stake. Beyond that, here come the robolawyers.

Previously: The Context – The ‘Post’ Society | Next time: SkyNet, Tech Singularity and the End of Lawyers


*See what I did there?

** Oooh, I did it again!

[1] Stephen Mayson, ‘Restoring a Future for Law’ (October 2013), 3.

[2] Balin Hazarika, ‘Role of Lawyer in the Society: A Critical Analysis’ (2012) 1 The Clarion 148, 149.

[3] See e.g. D. Casey Flaherty, ‘Client-led Change: Toward a More Perfect Legal Market’ (9 May 2016) 3 Geeks and a Law Blog.

[4] Rutger Bregman, Utopia for Realists (2016), 5.

[5] Marc Galanter, ‘More Lawyers than People: The Global Multiplication of Legal Professionals’ in Scott L. Cummings (ed), The Paradox of Professionalism – Lawyers and the Possibility of Justice (2011), 72.

[6] Mayson, above n 14, 3.

[7] Ibid.

[8] Commonwealth of Australia, Review of the Law of Negligence (2002) – commonly known as the Ipp review.

[9] See e.g. Fair Work Act 2009 (Cth) s 596, which limits representation of applicants and respondents in the Fair Work Commission.

[10] Michele R. Pistone & Michael B. Horn, ‘Disrupting Law School: How disruptive innovation will revolutionize the legal world’ (March 2016) Clayton Christensen Institute White Paper, 6.

[11] Ibid.

[12] Richard Susskind & Daniel Susskind, The Future of the Professions (2016).

[13] Australian Government Productivity Commission, ‘Access to Justice Arrangements’, Productivity Commission Inquiry Report Overview (No. 72, 5 September 2014).

[14] Such as federal discrimination law system, matters can only be heard in the very formal Federal Courts or Federal Magistrates Courts

A letter to you as a parent

45325721 - child with parents hand holding young tree in soil together for prepare plant on ground,save world concept

By Bernadette Healy

Dear parent,

I wonder what is going on for you as you worry about your child.  Perhaps the following is of interest (although it may not be!).

It seems to me that you have come to a point in your life where you are trying to make sense of who you are as a parent (as well as a person), and this includes exploring the ways that you yourself were parented.  This of course brings up old hurts and lots of complicated feelings towards your parents.  Possibly, as well as wanting to distinguish yourself as a mother/father from your own mother or father, you will also find yourself understanding more of what her or his life structure was like – this is hard because you might find yourself being sympathetic at the same time as being angry at some of the ways she or he was, for example, with regard to a sibling.  You seem to be feeling a mixture of being trapped (in a situation that you did not expect to be in with regard to your own child) and being afraid that if you cannot find a way of keeping it all together; that everything will collapse into chaos.  It is as if you are alone in all this difficulty – but perhaps that is how you felt in the past when you were too young to have much influence?  You are not that little girl or boy anymore; you have life experience, skills and attributes to bring to this situation; and you do not have to be alone in it all. But perhaps you have not yet found satisfactory ways of letting people in to share the emotional load  (and perhaps others are not as available as they could be)?

It seems as if you have to solve all the problems, but perhaps that too is a leftover from the past, and the role you were expected to play in your family of origin.  Perhaps you have been in the habit of carrying more than just your anxiety in your determination to keep the chaos at bay?  But now maybe you are ready to find some new ways which are not so heavy, and hopefully you will have more moments enjoying yourself being with your family.  It seems to me that you could be a little kinder to yourself and trust the part of you that, at times, wants to seek help.  When you are ready, the parts of you that haven’t had a chance to come out into the light for a while will bubble through, and offer easier ways of being. Be gentle and patient with yourself, and allow your child to help guide you into becoming their parent (they only want you and ‘ok’ is the gold standard).

Bernadette

 

I’ve been a volunteer firefighter, technically since I was 3 years old…

Shannon

…because my dad is the Deputy Captain, but I really fought my first fire at 17.

I was in a fire last week on night shift, doing back burning to keep the overall fire contained.

It’s quite rewarding but it can be a bit scary, particularly when you’re going into the fires, rather than standing out of them.

When you go in you don’t know if a tree is going to fall, if something is hot, if something is going to ignite or how fast fire is coming if it’s at a distance.

My dad is a big part of it, but actually so is my mum and both my brothers, it’s a real family affair!

Legends of Law School is a monthly column by Georgia Briggs

Tech Disruption and the Future Role of Lawyers (part 1)

futurama-robot-lawyer

By Phoebe Churches

Over the course of a few posts I would like to share with you some thoughts about the future of legal practice.  Specifically, I want to look at what future roles will be available to lawyers as technology develops at an increasingly rapid clip (tech disruption is the current buzz term). This rapid tech development has become a ‘disruption’, not least due to the multiple pressures on the legal sector coming from both within, and without. There’s much to consider, and I would like to set them out here over a few posts, so bear with me.

Without doubt, technology is driving change everywhere, and the current rate of technological advancement is unprecedented. We have entered the fourth industrial revolution which is both driving and driven by significant changes to the socio-political and economic environment. In this context, labour in all its forms will be irrevocably changed; and the role of lawyers is no exception. Undoubtedly the next few years will see these transformations multiply exponentially. In this context I’d like to explore what role Australian lawyers might  play in the future. I am especially concerned with legal work which involves relationships and disputes between Individuals and Individuals; Individuals and Corporations; and Individuals and the State. I’m m particularly interested in this part of the legal sector because – in contrast to disputes between corporations – or between corporations and the state, relations involving people potentially feature the most significant disparities in capacity to enforce legal rights.

Unfortunately much commentary on this topic tends to view the legal sector as a monolithic whole – without distinguishing between corporate (or BigLaw) business and the bread and butter of small practice, the community sector and the individual. Lumping the whole of legal practice into one discussion distorts the picture. I hope the following will offer a more focused opinion and a more nuanced view of one specific segment of legal work. Over the next month or two I hope to look at the context for the rate and progress of change in the legal sector, explore the impact of technologies on lawyers’ traditional roles, and close with an agenda for addressing future challenges.

The Context – The ‘Post’ Society

Tech disruption, the resulting changes to the way work is performed, and the environment which produces these changes aren’t separate or linear; they interact causally in iterative and organic ways. Historically the legal sector has been particularly change resistant, however the current economic context goes some way to explaining why disruption has finally come to the role of lawyers.

By creating millions of networked people…with the whole of human intelligence only one thumb-swipe away,
info-capitalism has created a new agent of change in history: the educated and connected human being.[2]

OECD countries have now passed the threshold of the post-industrial society. Fewer and fewer workers globally are involved in manufacture, and a rapidly growing number are employed in the service sector. In tandem, some pundits predict major changes to the political economy, asserting that capitalism has become increasingly unstable and unsustainable; potentially bringing the world to the verge of a post-capitalist era.[3] Undoubtedly technology is a significant catalyst for these changes. The ubiquitous spread of online resources, data, and information has created an inherent contradiction ‘between the possibility of free, abundant goods and information; and a system of monopolies, banks, and governments trying to keep things private, scarce and commercial’.[4] New forms of collaborative production – for example creating and sharing goods and services by network technology which only functions because it is free or shared – must definitively disrupt the market system.

The Sharing Economy

Law is too important to be left to lawyers alone.[5]

Sharing free information is hardly new. In fact thirty years ago, at the height of a burgeoning ‘knowledge is power’ movement, initiatives to freely share knowledge were everywhere. The hippies and lefties and other bohemian types were busy trying to level power imbalances between corporations and people, the state and individuals, and lawyers and laypeople. In 1976 the United States saw the advent of the ‘law commune based on destroying the mysticism which the law holds for many people and explaining how it relates to their lives’.[6] The same era saw the beginnings of the Community Legal Sector in Australia with an agenda of Community Legal Education squarely aimed at demystifying the law for the masses. These initiatives were (and continue to be) based on an understanding that the more informed people are, the more likely they are to either avoid legal problems, or alternatively, the better they can resolve issues without professional assistance.

More recently, a technology driven ‘sharing economy’ has emerged through our constant connectedness. The consequent ‘democratisation of knowledge’ has given birth to a new business subculture. Given markets rely on scarcity, the enormous growth of free and plentiful information “goods” ‘are corroding the market’s ability to form prices correctly’.[7] Tied with the rise and rise of collaborative production, the market for information has irrevocably changed. For example, Wikipedia is the ‘biggest information product in the world’ and it is collaboratively produced by around 30 000 people for absolutely nothing.[8] It is hardly surprising that individuals are questioning the hitherto high price of accessing legal information.

The Justice Gap and Non-Consumption

Meanwhile, the access to justice crisis for individuals in Australia has been deepening.[9] Australia has no safety net for legal help. While successive governments have eroded funding to legal assistance to the point that only those on very low incomes can access these services,[10] by virtue of the rigid system of legal practice regulation, the legal profession has retained a virtual monopoly across all types of legal practice; from advising through facilitation and transaction services to litigation. Additionally, geography plays a significant role, with regional and remote areas often suffering from very poor access to services.[11]

Even among those who can afford to pay, many resist or attempt to avoid engaging a lawyer in favour of self-service or alternative types of assistance.[12] Decreasing legal service consumption has many causes. Chief among them are clients’ declining confidence that they are getting good value for the price, and their increasing options to meet legal needs without engaging a lawyer at all by purchasing unbundled or online services. We are in an information revolution. Technology has put at our fingertips an unprecedented amount of responsive and organised information which potentially enables us to resolve many legal matters without involving lawyers. This is already a feature of many of the growing online legal presences – from blogs to document delivery services.

Next time: The Contracting Role of Lawyers (geddit?)

[1] Klaus Schwab, ‘The Fourth Industrial Revolution: what it means, how to respond’ World Economic Forum, Global Agenda (14 January 2016) .

[2] Paul Mason, PostCapitalism – A Guide to our Future (2016), 21.

[3] See e.g. Thomas Piketty, Capital in the 21st Century (2014); Mason, ibid.

[4] Mason, above n 3, 25.

[5] Eddie R. Hartman tweeting about the Future Law 2016 Conference at Stanford University.

[6] S. D. Ross, ‘The Role of Lawyers in Society’ (1976) 48 The Australian Quarterly 61.

[7] Mason, above n 3, 16.

[8] Ibid.

[9] Community Law Australia, Unaffordable and out of reach: the problem of access to the Australian legal system (Report, July 2012). According to the World Justice Project, Rule of Law Index 2014, this is equally an issue internationally, with the United States, Kyrgyzstan, Mongolia and Uganda all roughly ranked equally on the basis of the affordability and accessibility of its civil justice system.

[10] According to the Attorney-General’s Department, Strategic Framework for Access to Justice in the Federal Civil Justice System, 2009, ‘98 per cent of legal aid recipients [receive] an income that could be considered below the poverty line. This leaves much of Australia unable to afford legal representation but nevertheless ineligible for legal aid’, at 52.

[11] Ibid.

[12] Legal Services Consumer Panel, 2020 Legal Services How regulators should prepare for the future (November 2014).

Cleaning cloths, politicians and values – maximising good fit with your partner.

23345782 - close-up of man cleaning the floor with yellow wet floor sign

By Bernadette Healy

I recently noticed a range of cleaning cloths upon which were printed images of current Australian and international politicians, together with suggestions for possible applications of the cloths.

I wondered both about the product line, and where else it might be sold. Other than the not-so-upmarket as to be apolitical but not so political as to be anti-frivolous-consumer-goods place where I was – who was the target market? I was amused (but not tempted to buy!) and although I didn’t experience any negative reaction in coming across this product, I thought it likely that some would – that others may experience a ‘values-clash’ moment.

The expression ‘values-clash’ while perhaps increasingly absent in the modern work-place vernacular, never-the-less concerns a very important concept both in the personal and work domains.

In the personal domain, a sense of shared values with one’s partner is vital to relationship longevity.  Some of the values that influence compatibility relate to lifestyle choices – an area of potential to have battles about day to day decisions.  Examples of these ‘values in action’ decisions include:

  • How much emphasis is placed on planning? Is the process of planning a jointly enjoyed activity within the relationship? Is allowing scope for spontaneity, valued?
  • How do each in the couple value time spent socialising versus time alone pursuing their own interests?
  • How much emphasis is placed on money? What form and place does money-management occupy in the relationship? Is economising an important shared language in the relationship? Is the language of money confined or pervasive?
  • Does the expression of emotion fit in the relationship? Is there an emotional language?
  • What decisions are made about food? What will be eaten? Where? Prepared by? How much is reasonable regarding cost? Is quality a key issue? Is variety important? Is it just about taking in the appropriate nutritional requirement to enable the more important activities to be undertaken? Or is it an important activity in its own right?
  • What emphasis is given to keeping up with friends? What emphasis is given by each of the partners to the extended family and spending time with them?
  • What emphasis is given to the standard and maintenance of the shared spaces occupied by those in the relationship? What is the definition of minimum / optimum with regard to house-work standard?

Having regular conversation about what really matters to each of you, and starting these discussions early on will provide you both with key information about the viability of your relationship in the long-term – and help to minimise the hurt all round.