Interview: Patrick Street

There are many fantastic people out there connected with the law and all their stories are unique and interesting. Recently I had the pleasure of interviewing Mr. Patrick Street who, I believe, fits well into the above category. His legal career stretches over 40 years starting as a young man working as a Clerk in the Victorian Magistrates Court working, striving and finally achieving the other role on that side of the bench… Deputy Chief Magistrate.

Patrick became a Victorian Clerk of Courts in 1958. “I was in Courts throughout the Melbourne area until 1981 when I was appointed as a Magistrate.” In 1995 he was appointed a Deputy Chief Magistrate of Victoria where he remained until he retired from the bench in 1999.  “In 1999 I thought that’s 40 years in the Court’s branch, that’s enough!”

While being a ‘Clerk of Courts’ Patrick studied law part time at Melbourne University, “I wanted to get onto the bench as a Magistrate.” He graduated from Melbourne University with an LLB in 1976 and a Diploma in Criminology in 1980 and in 1976 was admitted to practise as a Barrister and Solicitor of the Supreme Court of Victoria.

Unlike most of today’s law students, lawyers and even judges, Patrick’s journey was unique as he jumped straight from Clerk to Magistrate. “I didn’t particularly want to leave the job and become a solicitor or a lawyer, I wanted to get on the bench. I’ve been in the courts a lot being a clerk of courts, so it meant I was facing the lawyers and barristers, and I did the same thing when I was on the bench, I faced the lawyers. So I’ve never been in Court where I’ve faced the Magistrate. I can’t really say if I would have enjoyed being a lawyer, because I’ve never done it.”

Alas, for all those whose minds are currently whirring about the possibility of skipping the bar table and going straight to the bench, times have changed. “Clerks aren’t really eligible to be a Magistrate [nowadays]. In the mid 1980’s it changed so that you had to be appointed from either a Barrister or a Solicitor. Back in the day you had a seniority list and once you became eligible to be a Magistrate it was a matter of seniority of when you got on the bench.”

“What happened at the time I got on was that there were 4 vacancies and four Clerks of Courts including me applied for the jobs and we were then interviewed by the relevant authorities and then we were appointed to the bench. So it didn’t really involve any Law Institute or the Bar Council or anything like that.”

Since his retirement Patrick has been involved in quite a few publications, that have allowed a convergence of his passions. “I’ve been doing the monthly crossword for the Law Institute of Victoria, we call it ‘Letters of the Law’. That’s involved a lot of work producing those every month since 2000”.

Patrick was appointed President of the Australian Crossword Club in 1992 (and is still in that position) and since 2000 he has edited and published the Club’s monthly magazine Crozworld. The Club’s website is: http://www.crosswordclub.org/

“I also produced the Victorian Magistrates Court Annual Report for ten years and was the editor of the Magistrates Information Bulletin from 1995-1999 (29 issues). I was the co-author of The Health Act Victoria produced by the Law Book Co in 1983. And from a personal Magistrate’s perspective, I produced the first 12 copies of The Magistrates Journal (1983-86) when I was the Secretary of the Victorian Magistrates Association.” As you can see, Patrick is a very busy and dedicated man!
For the last 12 years Patrick has also been producing the bi-monthly newsletter of the Silver Society of Australia. “So I’ve been interested in collecting sterling silver tableware. So that’s 3 publications. But the time I have spent on the Magistrates Cases that has taken an enormous amount of work.”

Magistrates Cases

For those who have not heard of Magistrates Cases, it is a wonderful website and resource for (particularly Victorian) practitioners, law students and yes, as the name suggests, Magistrates. In essence, the website has access to over 2500 specialised case reports, in electronic format, mainly from the Supreme Court of Victoria in relation to the Magistrates’ Court’s jurisdiction in Victoria. Now THAT is a handy website!

“The Supreme Court of Victoria used to send its judgements down to Magstrates if they thought that the judgement might be relevant. I started doing them in 1983, I’d been on the bench for 2 years and the Chief Magistrate at the time said ‘I want you to start doing that‘. I got these cases and would go through them and ended up putting them in the publications.”

“There’s usually about 4-5 cases that go out in each one of these parts. I still do about 10-12 of these parts every year.  It’s definitely not a summary. I include the whole case and catchwords to give you a bit of an idea of what the case is about. I usually do a few sentences to background the case and then I put my neck on the block and say “this is what the Judge held”. That’s the hard bit, what is this case all about and what did the Judge mean?” Patrick laughs that he’s “only” done it more than 2500 times now. “it must be a world record!”

“About 10 years ago or so, I started my Magistrates Cases website where I’ve uploaded every relevant case to Magistrates Cases (http://www.magistratescases.com.au/) from 1969. Every case that has been published as a Magistrates Cases has been uploaded, there are more than 2500. Even cases before I started doing it.  The ones that were edited by other Magistrates didn’t have the detail I’ve always done and quite often didn’t say what the case stood for, I would fix it and upload it.”

So why did Patrick take over the role and importantly, allow online access? “I want Magistrates to be totally informed and kept up to date with the latest cases from the Supreme Court because if a case in the Magistrates Court is similar to one in the Supreme Court then the Magistrates are bound to follow what the Supreme Court has decided.”

“All Magistrates have access to the cases and I send spare copies of the printed version to the Magistrates Court in the City and the Broadmeadows Court. When I was on the Bench this didn’t happen and I must say, it’s handy that any magistrate or barrister can access the case in court!”

Patrick has also written a large number of articles not only about historical matters of the Court but also for the assistance of the magistrates which can be accessed through the Legal History section of the website. “The article on drink/driving goes more than 300 pages and probably is the most detailed article of decided cases in relation to that topic. The Magistrates Cases covers virtually all cases on drink/driving in Victoria since 1969.”

 

A few Questions for Patrick Street

Do you have any single moment, case or event that has defined your legal career?

“A decision I made in 1994, the Defence Counsel thought I had acted in an improper manner. That case went before one of the Supreme Court judges who completely went along with my decision. So I was very happy with that. It gives you a bit more confidence when you have a Supreme Court judge upholding your decision. So I enjoyed that.”

If you could give one piece of advice to new people in the legal profession, what would it be?

“Well in my opinion a lawyer is the most important person in Court. I loved to have a lawyer appearing for a defendant than a defendant appearing on their own. I’ve always been very impressed with the quality of the submissions that have been made to me over the years. Lawyers are the most important part of the Magistrates Court.”

What makes a good lawyer?

“I always liked the lawyer if they were making relevant and helpful submissions, but if the lawyer got offside with the magistrate or said things that were a bit insulting or unhelpful, to me that never did any good for the decision that was finally made. So for me, if the lawyer can be courteous at all times but be extensive with their knowledge of the law and the case involved, to me that’s the best, the lawyer who was doing the right thing.”

Is the reality of being a judge anything like people imagine it?

“I’m afraid not, it’s hard work! The trouble with the Magistrates Court is that there is so much work there every day and what it means is that you are in a position where you must complete the work that’s been listed today, because it can’t be put on tomorrow, because there’s a heap of cases tomorrow, and in fact there’s a heap of cases every day for the next three months! So if you can’t finish the hearing today, then that’s going to cause a real problem.”

“I felt that I had to make decisions properly and as efficiently as I could to make sure that people weren’t going to be put off for 3 or 6 months. To make sure I finished the particular case on a particular day, it was very difficult to make sure that happened.”

 

At just over 74 years of age, Patrick is still editing Magistrates Cases as well as his many other publications. For access to Magistrates Case, follow this link: http://www.magistratescases.com.au/

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.

 

 

 

 

 

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

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).

Ted Cruz

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By Maille Halloran

Ted Cruz is the lesser known frontrunner for the Republican nomination in the 2016 Presidential race. Though he does not boast a background as colourful as Donald Trump’s, Cruz’s tertiary years were characterised by success in debating and law. Already a Princeton graduate, Cruz received a Juris Doctor from Harvard Law School. During his time at Harvard, Cruz founded the Harvard Latino Law Review and was a principal editor of the university’s famous Law Review.

Cruz’s Harvard classmates have commented that the junior US Senator was highly intelligent but frustratingly conservative. Certainly Cruz’s legal activism has denoted steadfast conservatism and traditionalism. As Solicitor General of Texas, Cruz indirectly argued for pro-gun laws and the death penalty before the US Supreme Court. He currently holds the record for the most number of cases argued before the US Supreme Court by a Texas lawyer.

Cruz worked in private practice both before and after his stint as Solicitor General. In private practice, Cruz represented Pfizer in a lawsuit brought by hospitals and community centres that accused the pharmaceutical giant of overcharging. He also advocated on behalf of the National Rifle Association and prepared testimony relating to the impeachment proceedings against President Clinton.

Cruz’s legal resume is distinctly Republican, and sets him in good stead for nomination in 2016. The Tea Party favourite might yet be the next President of the United States.

I was born in Cameroon to Norwegian parents

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I was born in Cameroon to Norwegian parents, who lived and worked as Lutheran missionaries. We lived there until I was seven years old and then we moved back to Norway. My great-grandparents on my father’s side were among the first missionaries in India, way, way back and he wrote a lot of book about his journeys.

I am glad to share some of the adventurous spirit or, rootlessness that led my relatives to leave their comfort zones. Granted, relocating from Norway to Australia to commence studies in the noughties is drastically less problematic than taking your young family and jumping on a merchant ship headed to Cameroon in the fifties, but it is still far away from home.

Legends of Law School is a monthly column by Claudia McGarva

Henry Fielding

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By Maille Halloran

Eighteenth century author and playwright Henry Fielding is best known for his work The History of Tom Jones, a Foundling which helped to launch the framework of the modern novel. Unbeknownst to most, the novelist was also a pioneer in the field of law. Equipped with a Classical education from Eton College, Fielding went on to study the law in Leiden, the Netherlands (formerly South Holland).
Though he returned to London with the intention to write, Fielding’s law degree was more useful than he had anticipated. New and harsh censorship restrictions, which attempted to curtail political satire on the stage, forced the young playwright from the theatre for a more lucrative role as a barrister. Success in this role and a political stance that favoured the Church of England led to Fielding being named London’s chief magistrate.
Not content with merely hearing cases in court, Fielding decided to take a more active role in judicial reform and law enforcement. Demonstrating the same grasp of social concerns so prominent in his novels, Fielding campaigned for more humane prison conditions and a less blasé approach to capital punishment. Fielding and his brother even established the Bow Street Runners, known as London’s first professional police force. The motivation behind this establishment was to regulate and legalise law enforcement, formerly a corrupt practise in the hands of a select few private citizens.

Katie Miller

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What are your passions outside of the law?

Footy and having an opinion. I’m a tragic Western Bulldogs supporter and attend as many games as I can, including interstate games. Footy is a fantastic contrast to the law. As a lawyer, I need to be rational, logical and aware of how I am perceived by clients, the judiciary and my peers. At the footy, I can be loud and completely irrational – I firmly believe that what I wear and where I sit can influence the outcome of the game! I have an opinion about everything – from daylight savings to the state of transport planning in Australia to the appropriateness of buying cherries out of season.

If you had your time again, would you choose to practice in law? If not, what else would you choose to do?

I would still practise law, but I would do it a little bit differently. I like to think I would take a more proactive approach to planning my career. I would have started expanding my non-legal skills sooner – things like mediation, marketing and technology. But I can’t imagine another profession or role which would combine as well as law does my need for intellectual stimulation, my desire to work in the public interest and my enjoyment in working as part of a profession with shared values and common interests.

If you could only give one bit of advice to new lawyers, what would it be?

Only you are responsible for your career but there is lots of help along the way! Identify what sort of lawyer you want to be and then figure out what you need to do to get there. Ask for help along the way and recognise that what you want and who can help you will change as you develop and grow as a lawyer. Don’t wait until you are unhappy to make changes in your career.

What would you say are the hazards of this profession?

The risks to your mental health from being a lawyer are well known. Every lawyer needs to treat it as an occupational health and safety risk inherent to the job. We can manage and mitigate the risk, but we shouldn’t ignore it.
When I feel myself getting ‘the mental sniffles’, I do something about it before it becomes a big problem. Mental sniffles takes different forms in different people – for me, the symptoms are being overly tired for days at a time; snapping at my family at home; and limiting my focus to the things I absolutely have to do just to get through the day. Like a cold, sometimes the mental sniffles will fix itself with some early nights or a quiet weekend. But sometimes I do need to take a day off and rest – just like I do with a cold or a case of ‘debilitating man flu’. Taking a day off for mental health doesn’t mean you have a ‘mental condition’ – just like having a day off for a cold or the flu doesn’t mean you are going to die or need to be hospitalised. It’s just about looking after yourself and letting your body recover.

How do you balance life and work?

As President of the LIV this year, I’m not! But there are still things I do to ensure that I have ‘me’ time. Scheduling ‘me’ time in my diary ensures that it has the same priority as other immoveable appointments, like a client meeting or a court hearing. For example, I have a regular gym class and try to exercise each morning; the footy fixture is sacrosanct; and Sunday night is family roast night. I also try to avoid social media use in bed (mornings and nights) – being on social media 16 hours a day should be enough for any person!

What will the legal profession look like in twenty five years time?

The pace of change in the legal profession is going to be so fast over the next few decades that I don’t have a good picture of what the legal profession will look like in 25 years.
I do have a clear picture of what I think it will be like in 10 years. The legal profession will be dominated by the very big and the very small – large, global firms providing wrap-around services (legal and non-legal) for clients at one end of the spectrum; niche, specialised, flexible sole practitioners at the other end of the spectrum. Lawyers will have harnessed technology to do more of the work we don’t like (I’ve never met a lawyer who actually likes discovery), leaving us with more time to focus on lawyering as a creative endeavour – things like problem solving, strategising and business advice. Technology will also allow lawyers to make money while we sleep, i.e. clients will be able to access legal services using software designed by lawyers, so lawyers will no longer be limited by the billable hour.

How can one distinguish themselves as a legal professional?

Identify what you do that no one else does as well as you and do it to the best of your ability. It might be a legal skill, like advocacy or writing contracts. Or it could be a non-legal skill – you might be an engaging presenter, a plain English communicator or have incredibly high emotional intelligence. The trick is to find a way of using those skills in a way that enhances how you deliver legal services to clients.

Katie Miller is the 2015 President of the Law Institute of Victoria and is the first government lawyer to be president. Katie is an LIV Accredited Specialisation in Administrative Law. As president, Katie is supporting lawyers to evolve their practices so they can survive and thrive into the future.