Your smart phone will do many things that are far beyond what most people would have associated with a telephone not that long ago. We have so many tech tools and gadgets now that that unintended uses are sometimes more interesting and innovative than the intended uses. Why should everyone have cloud storage now? Why would a cloud-based company like Evernote endorse a brand of paper notebook? Why would a lawyer use an iPad to take movies for work? (I got to travel to South Carolina to learn about that last one.) The answers to these questions and more can be found in the attached Oklahoma Bar Journal article Unexpected Uses of Tools and Unintended Consequences.
Every December I do a Recent Developments in Law Office Management and Technology program for the Oklahoma Bar Association's two-day Recent Developments CLE. For 2012 the big story in legal technology had to be the rapid changes in e-discovery and predictive coding. Predictive coding means searching documents using algorithms to locate relevant documents rather than a lawyer reading each document. The best predictive coding practices have lawyers intensely involved in the process and use sampling and testing to determine how well the algorithms are working. See the Wall Street Journal's Law blog's post After Court Decisions, Clients Mull Swapping Lawyers for Machines for more detail. (This is also an example of the kind of headline that makes many lawyers think this must be a bad thing.)
Changes in the law generally happen slowly. So it is noteworthy that the first opinion requiring a predictive coding protocol for document review in a case where both sides generally agreed it was required happened early in 2012 and later in the year we saw a order issued by another court telling the parties they had to show case if they didn't want to use predictive coding during discovery in a case. That is rapid change.
I don't really see predictive coding becoming an ethical requirement only because I see it gaining more acceptance as a business requirement long before ethics rule-making bodies have a chance to consider it.
There are so many emails generated every minute in businesses that there is no way to avoid this. Suppose a lawyer has to review two million emails to decide what is to be produced in discovery or a law firm receives one million emails in response to a discovery request. Do the naysayers really believe that the only ethical and practical way to approach this is to hire teams of lawyers to manually read each email? Predictive coding is simply a tool that lawyers and courts will use to deal with the massive amount of information before them. Judges will learn more about searching and sampling. It will be a change, but a necessary one. And, thankfully, most cases will not involve millions of emails.
The articles from "Opening a Law Practice" issue of the Oklahoma Bar Journal, published in October 2012 are now all available online. Enjoy and share this post with others, especially a lawyer or law student who is contemplating setting up a law practice.
Failing Law Schools by Brian Z. Tamanaha was published in June 2012. Among the most startling assertions in that book was that law schools will produce 45,000 new graduates annually while only 25,000 openings for lawyers are projected each year through 2018. Professor Tamanaha includes many strong critiques of how law schools operate today.
Predictably some law school deans and professors have gotten defensive about this book and other criticisms and have responded. The responses and counter responses have gotten interesting over the last week or so, so I thought I would pass some along to practicing lawyers who read this blog.
Last week Lawrence E. Mitchell, Dean of Case Western Reserve University’s law school, published an OpEd piece in The New York Times titled Law School Is Worth the Money. For those of us paying attention to these issues, this was probably one of most singularly unpersuasive pieces of professional writing that one will ever read.
Not suprisingly the legal blogosphere reacted quickly and strongly. Three days later the TaxProf Blog posted this lengthy list of dissenters to Dean Mitchell's opinion piece. A Google search reveals many more posts since then, including this one from Kyle McEntee, Executive Director and founder, Law School Transparency, which was posted as I was completing this post. These posts were not just from the "law school scam bloggers," who have been regularly posting on this topic, but from sources like the State Bar of Michigan blog and WestLawInsider, where the writer referred to "the Case Western dean’s misrepresentations (and sometimes outright lies)." This is only one instance of some tough talk about the OpEd.
I can count on my friend and colleague, Jordan Furlong, for some great insight on many topics and today he weighed in with How to kill (or save) a law school. This is great and provocative reading for anyone interested in the topic. I should note that I agree with Jordan when he says "I like law schools, and I hope they prosper." Jordan's primary point goes to law firms and law schools. If you want to deal with change and competition, first say, "if we were building a competitor to our business, what would we do?" Then do it now, before someone else does. Both law firms and law schools are constrained in what they can do in many ways, but those constraints are loosening.
Since many readers from other jurisdictions know me as an Oklahoma law blogger, I should note that "we're doing fine" here (as the song lyrics go.) We have had no huge law school expansion. We still have the same three law schools as when I was deciding where to attend. There are more practical skills taught in Oklahoma law schools, reflecting the reality that more and more graduates will find themselves in a solo or small firm setting rather than a very well-compensated apprenticeship. I guest lecture several times a year to law classes on law practice management and the University of Tulsa had me speak this year on the future of law practice to a mandatory program for 2L's.