Back from the Future

I have returned from The American Academy of Appellate Lawyers’ conference on the future of appellate practice, leaving San Francisco just before the fires put an orange glow in the sky. While I was there, the weather was terrific and clear, with the Blue Angels flying overhead in a spectacular display. As reported by the program participants, the future of appellate practice may not be quite as bright. If you are a glass half-empty person with a vested interest in the status quo, it’s pretty darn bleak. If you are a glass half-full person with no legacy advantages, then the future is simply different than it has been, with upsides if you think outside the box.

To set the stage: we had sessions with judges and in-house counsel (heavy hitters from Schwab, Sony, Facebook and The Gap). Most interestingly, the judges of the Ninth Circuit, trial and appellate level, were polled on their views, and the anonymous results shared. While the title of the program focused on what appellate practice will look like in 2027, much of the discussion referenced litigation in general, and what’s happening right now, as well as the foreseeable future.

The one incontrovertible point, universally acknowledged by all participants, confirms something I’ve been discussing in this blog recently: there will be no more voluntary civil business litigation. The polled judges, confirmed by the in-house counsel, agreed that businesses would rather drink Drano than go to court. (I’m not kidding – one of the polled judges said businesses would rather have leprosy). Courts – the state systems were viewed as having the same issues, on steroids, removing any case that can possibly be removed – are too expensive, take too much time and are too unpredictable. Civil litigation in the Ninth Circuit, the judges said, now consists of prisoner and immigration cases. It’s not that these in-house counsel are crazy about ADR, either – that can be imperfect and unpredictable, too. But it’s viewed as a lesser evil.

A second point, particularly obvious in a place like San Francisco, but slowly making its way everywhere: the privileged old white man world, perpetuating the status quo, is going away. The in-house counsel presenting were themselves a diverse group (one white male, one Asian female, one white female, one black male). People are always comfortable with working and hanging out with people who look like they do, which is why the old system survived so long. But now the clients look different and think differently. Also, as one in-house noted, the pool of lawyers available to them is now global. While a lawyer from one country might not be able to appear in court in another, that doesn’t matter any more – what the in-house counsel want are creative problem solvers, wherever they may come from. Technology means their lawyers can be from anywhere. It’s not just that what the typical lawyer looks like is changing; it’s also where they come from and how they think.

These in-house counsel said they do not want lawyers who are perpetuators of the old system, which is failing them. They want counsellors who see the big picture for their clients, and are not just focused on the specific case before them and how to win it. Because these clients aren’t going to be in court unless they are forced to be there, they want lawyers who can advise them in their language, in a cost-benefit context, as how to proceed. In business today, what matters is speed and creativity, and that’s what they want from their lawyers, too.

How artificial intelligence will change things was an interesting component of this discussion. AI is at the point now where computers can learn. This has nearer term ramifications for e-discovery, and it will be a long time before these computers can exercise judgment, but the use if AI will become prevalent in all areas, including the law. (Stay tuned for my next blog entry, discussing the First Circuit Judicial Conference, which had multiple speakers on the impact of AI.)

Interestingly, many of the panelist in-house counsel are also compliance officers, so they view AI as a method of finding something awry within their companies. If these In-house counsel are comfortable with its use, they expect their service providers to be the same. A sizeable chunk of legal research is going to have to be done by machines, one noted, just because so much data being generating these days, machines are needed to wrangle the information. While a lot of the writing in this area is doomsday in tone – the profession is kaput etc., one speaker said this development means there will be new jobs – legal engineers, programming the computers, who have knowledge of the law. More than one of these counsel noted how lovely it would be to use machines instead of first year associates for grunt work at high cost to them, and they all said apprenticing approaches for legal training should be used because they aren’t going to pay high prices for that grunt work any more. They would like value-based pricing if they can figure out how to do that accurately. Core appellate service, one in-house counsel said, can be worth a lot, but it can been done with little overhead in home offices.

These businesses are heavily invested in performance analytics – identifying who’s really good and who’s not within the company. At some point, these analytics are going to be applied to legal counsel, meaning these companies may have the tools to identify the lawyers who do good work at reasonable rates.  Again, this service may be another business in itself.

The four in-house counsel speakers were asked whether they would advise their child to go into the law in 2027. Tellingly, two said no. One said he could encourage legal training, but there is more promise in working in business. Only one said yes, because the rule of law still matters.

These views by in-house counsel avoiding courts were echoed in the judge surveys, which predicted lots of pro se and benefits cases, with fewer lawyers ever trying a case to jury in federal court. Most federal civil trials will be civil rights lawsuits – excessive force or prisoner law suits, with everything else going to arbitration. There will be even more immigration litigation as deportations increase.

The changing face of the type of litigation logically will echo where the judges come from – the public, not private sector. Administrators will do more and more of the running and managing of the judiciary.

Interestingly, one judge opined that lawyers are a part of the vanishing civil trial phenomenon. This judge offered expedited trials – 4-6 months until trial, with little or no discovery, quick and inexpensive. Out of over 1200 cases, no one would agree – a few times one side would, but not the other. This happened even though he required the lawyers to tell their clients what the budget would be on the expedited versus the not expedited tracks.

If you are a glass half-empty person, it’s easy to find fodder in these remarks for depression. The middle class has been squeezed out of the court system as an avenue to resolve their disputes. No one will pay to train lawyers and there will be no trials. Paper – or electronic files – will get shoveled around, and computers will replace a lot of what lawyers do today.

If you are a glass half-full person, the picture is more nuanced. Maybe technology will make the boring parts of doing law today go away, and make that pricey discovery less expensive. Maybe fewer cases and more interest in STEM and business will mean only people who really want to be lawyers will go into the law, and the profession will right size itself. The old system might have been dandy for the privileged, but maybe a new system will be more inclusive.

The world changes; some may think for the better, some worse. The best answer may be it’s just different, and it’s up to the individual to figure out how to make it work for them and what they want to achieve.

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