by Dr. Lance B. Eliot
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Key briefing points about this article:
- An oft saying in the tech field is that you should stridently avoid paving the cow paths
- This catchy phrase asserts that you must do reengineering before adopting new technologies
- This matters because many of today’s legal ways in the courts and in law firms are outmoded
- Meanwhile, new tech such as AI is merely being plunked on top of those “as is” processes
- Hoped-for gains and value from AI-based LegalTech must be accompanied with reengineering
There is an old saying among those in the tech field that you should never pave the cow paths.
Here’s what that means.
First, let’s define cow paths. For those of you that have ever driven the streets of Boston, you’ll likely know how wildly winding and twisty those Bostonian roads are. One-way boulevards appear to inexplicably do loop de loops, while many paths seem to be designed by a demented roadway engineer that sought to make the driving as arduous and confounding as possible (successfully so). Well, it wasn’t a mad scientist that did the trickery, instead, it was the cows.
In the early days of the formation of Boston, early settlers would bring their cows to town and also walk them back out to the countryside. Turns out that cows go wherever they want to go, meaning that they would meander while being generally guided, and thus Boston had lots of intersecting and ultimately well-worn dirt paths.
When it came time to plunk down asphalt to make way for vehicular traffic, the approach consisted of paving those very same cow paths.
Some cities are based on a shrewdly devised grid approach, consisting of streets and avenues, arranged perpendicular to each other. This allows for a rather straightforward form of navigation, along with making it easy to stipulate where a house or a building is located, using a simple coordinate convention.
Not so when the roads are weaving to and fro.
The lesson to be gleaned is that when you are going to make a change, especially a large-scale one, such as laying down the pavement and thus “freezing in” whatever is there, take a close look at how things have been done to date, and reflect carefully upon whether you first might want to reengineer or redesign the way things are and reimagine how they ought to be.
The Cow Paths Of Our Legal Ways
We can now shift our attention to a particular application of tech, namely the use of tech in the law, typically referred to as LegalTech or LawTech. When implementing modern-day technology for law practices and the courts, we need to consider employing the same handy rule-of-thumb: Do not pave the cow paths. Unfortunately, this insightful mantra is rarely observed.
There is a decidedly and frequent lack of awareness about the “as is” versus the “to be” within law firms and inside our courts when reaching out to buy and jam into place the latest new technology. Rather than closely examining their existing processes and figuring out how to become more effective and efficient by leveraging the tech, i.e., simultaneously redoing those well-worn activities, the lazy or ill-informed approach involves simply trying to automate the way things have always been done.
Unfortunately, the odds are unnervingly high that this will undermine the benefits expected from the likely costly investment in the adopted technology and leave the office partners or the court authorities baffled about why after the gargantuan sized investments there are few if any garnered improvements and the entities still seem inexplicably unable to be snappier about conducting their legal efforts.
The sober anecdote about the cow paths is timely because we are about to enter into a post-COVID era that opens the question about how technology can be best adapted to enact a new normal for our legal system.
Reengineering Being Called For
The shock of the coronavirus impact has brought forth a time of reckonings, as emphatically pointed out by my colleague Professor David Freeman at the Stanford Law School and his co-author Bridget Mary McCormack, Chief Justice of the Michigan Supreme Court, in a piece recently entitled “Courts will need to adapt to the coronavirus crush” as posted at Bloomberg Opinion on July 15, 2020.
The reckonings they refer to are all around us each day, including that the existing legal system was and still is ill-prepared for a now prescribed online and remote-work ecosystem, one that would allow the involved parties to participate in the pursuit of justice without having to physically endure coming to a courtroom and be endangered by the life-threatening possibilities of an infectious outcome to their case.
There is also a perilously dangling reckoning associated with the anticipated tsunami of cases that will soon flood our courts amid numerous pandemic-related fallouts such as the lifting of the moratorium on evictions. There is going to be a cacophony of spurred cases arising from the multi-headed serpent of COVID-19 that will play out in our economy, in business, and in our lives, much of which will land into the courts.
And we all know that the courts already were busting at the seams.
When reflecting on the coming turbulent seas, the co-authors deftly proffered an astute call-to-order: “How we face this reckoning — with business as usual, or with new thinking about who can provide legal services and new technologies that assist in that work — will help chart the future of our justice system and determine whether it serves us all or just a few.”
For those willing and daring enough to embrace such an exhortation toward new thinking, I would like to add that we must do so without paving those outmoded cow paths.
Prudent application of LegalTech, when combined with AI capabilities, can dramatically widen access to our courts and provide a viable means to deal with the coming deluge of legal requests and co-commitment consumption of needed legal services.
Lawyers must be electronically armed appropriately and so too must legal assistants, leveraging all of their day-to-day legal efforts via online platforms, along with utilizing the latest in AI-enabled discovery tools, legal chatbots, and the like.
Judges and the courts must equally enter into this AI-empowered realm, willingly adopting such technologies that are already available and giving due attention to those emerging ones that are coming down the pike.
Among the likely expected angst and haste to do so, we must all first make sure to consider how existing practices are paper-based and manually ingrained, which does not necessarily lend itself to being automated as is. There needs to be mindful introspection and review, along with reengineering, none of which is going to be heralded at the time, and principally will be painful, but in the end, the result will be worth it.
The time is ripe to restructure and reimagine the cow paths of our legal system, aiming to shift into gear for a modern age and transform toward a future that is ultimately going to intrinsically interleave AI and ubiquitous technology into all facets of our lives.
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Additional writings by Dr. Lance Eliot:
- For Dr. Eliot’s books, see: https://www.amazon.com/author/lanceeliot
- For his Forbes column, see: https://forbes.com/sites/lanceeliot/
- For his AI Trends column, see: www.aitrends.com/ai-insider/
- For his Medium column, see: https://lance-eliot.medium.com/
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