“The biggest problem,” says Ury, “is that ordinary citizens cannot afford to hire a lawyer. The bread and butter of small firm practices are criminal defense work, wills and trusts, leases, closings and divorces. Yet in Connecticut, 80 to 85 percent of divorces have a self-represented party because most families can’t afford to hire one lawyer, let alone two. Nearly 90 percent of criminal cases are self-represented or by a public defender because families can’t scrape together a retainer.”
I'd call that a 100%, red-line, sirens-blaring, system failure. "Less people are hiring us for $500/hour! What shall we do?" might not be the right question. "Why did anyone ever do so in the first place?" might be closer.
It's not just a lawyer failure, but a legal system collapse. People are being denied justice.
The lawyers themselves are not necessarily to blame. There are two or three interlinked aspects:
1. The growth in regulations, which draws away limited legal resources toward big companies, leaving less (or higher fees) for criminal or civil defense
2. The growth in criminal prosecution of victimless crimes and especially ramping up the war on drugs
3. The collusion between politicians and the prison industry, which has created a monetary incentive to incarcerate people (looking 'tough on crime' has more than just electoral benefits)
It's not just a lawyer failure, but a legal system collapse. People are being denied justice. The lawyers themselves are not necessarily to blame.
Then who else is to blame? Nearly everyone with in the system with significant decision authority is either an active member of the bar or was before they became a politician.
Voters? Perhaps. But usually the choice is between two lawyers.
There are may problems for which nobody is to blame. They are emergent phenomena of a system, to which all parts contributed. Assigning blame is not necessary to start solving the problem and attempting to assign blame is counterproductive.
> It's not just a lawyer failure, but a legal system collapse. People are being denied justice.
Very true:
"The American justice system favors the educated, the corporations, and the rich, and takes unfair advantage of the uneducated, the private citizen, and the poor. It would seem that almost any legal entanglement can be resolved through the judicious application of money, while almost any tussle with the law can result in financial penalties and even imprisonment for those who are forced to rely on public defenders. Many people naïvely believe that a criminal is someone who commits a criminal act. This is not true, at least not in the American system of justice. Here, a criminal is someone who has been accused of committing a criminal act, tried for it, and found guilty. Whether or not that person has in fact committed the act is immaterial: witnesses may lie, evidence can be fabricated, juries can be manipulated. A person who has committed a criminal act but has not been tried for it, or has been tried and exonerated, is not a criminal, and for anyone to call him a criminal is libelous. It therefore follows that, within the American justice system, committing a crime and getting away with it is substantially identical to not committing a crime at all. Wealthy clients have lawyers who are constantly testing and, whenever possible, expanding the bounds of legality. Corporations have entire armies of lawyers, and can almost always win against individuals. Furthermore, corporations use their political influence to promote the use of binding arbitration, which favors them, as the way to resolve disputes. This state of affairs makes it hopelessly naïve for anyone to confuse legality with morality, ethics, or justice. You should always behave in a legal manner, but this will not necessarily save you from going to jail. In what manner you choose to behave legally is between you and your conscience, God, or lawyer, if you happen to have one, and may or may not have anything to do with obeying laws. Legality is a property of the justice system, while justice is an ancient virtue. This distinction is lost on very few people: most people possess a sense of justice, and, separate from it, an understanding of what is legal, and what they they can get away with. The U.S. legal system, as it stands, is a luxury, not a necessity. It is good to those who can afford it, and bad for those who cannot. As ever-increasing numbers of people find that they cannot pay what it takes to secure a good outcome for themselves, they will start to see it not as a system of justice, but as a tool of oppression, and will learn to avoid it rather than to look to it for help. As oppression becomes the norm, at some point the pretense to serving justice will be dispensed with in favor of a much simpler, efficient, streamlined system of social control, perhaps one based on martial law. People have been known to get along quite happily without written law, lawyers, courts, or jails. Societies always evolve an idea of what is forbidden, and find ways to punish those who transgress. In the absence of an official system of justice, people generally become much more careful around each other, because running afoul of someone may lead to a duel or give rise to a vendetta, and because, in the absence of jails, punishments tend become draconian, coming to include dispossession, banishment, and even death, which are all intended to deter and to neutralize rather than to punish. When disputes do arise, lay mediators or councils may be appealed to, to help resolve them. The transition to a lower-energy system of jurisprudence will no doubt be quite tumultuous, but there is something we can be sure of: many laws will become unenforceable at its very outset. This development, given our definition of what is criminal, will de facto decriminalize many types of behavior, opening new, relatively safe avenues of legal behavior for multitudes of people, creating new opportunities for the wise, and further tempting the evil and the foolish. As a safety precaution, you might want to distance yourself from the legal system, and, to the extent that this is possible, find your own justice. As an exercise, examine each of your relationships that is based on a contract, lease, deed, license, promissory note, or other legal instrument, and look for ways to replace it with relationships that are based on trust, mutual respect, and common interest. Think of ways to make these relationships work within the context of friendships and familial ties. To protect yourself from getting savaged by the justice system as it degenerates into oppression, try to weave a thick web of informal interdependency all around you, where any conflict or disagreement can be extinguished by drawing in more and more interested parties, all of them eager to resolve it peaceably, and none of them willing to let it escalate beyond their midst. Struggle for impartiality when attempting to mediate disputes, and be guided by your wisdom and your sense of justice rather than by laws, rules, or precedents, which offer poor guidance in changing times."
I hope you don't take this as a flippant comment, because it isn't meant to be, but the answer to your latter question is - it's what the market bears (or did bear).
There's plenty of lawyers out there - but, like in programming, there are a lot fewer good ones. In general, people are willing to pay $500 / hour because they can't find one of similar quality for a lower price.
Oh, I know the market bore it and then some. The question is why? And more importantly, was it an isolated fluke of an economy/politic gone crazy? If so, its about to correct fiercely and get a little extra kick from a frustrated populace who rightly felt that access to justice was snatched from them.
There's plenty of lawyers out there - but, like in programming, there are a lot fewer good ones. In general, people are willing to pay $500 / hour because they can't find one of similar quality for a lower price.
We still find people representing themselves because they can't "scrape together a retainer". They're not trying to hire $500/hour guys. They'd hire anyone that'd take their case for what they had. The law has become so twisted that its genuinely long, hard work just to get a case together and get in the door. There's a minimum barrier to entry that the average joe just can't meet and the most inexpensive of lawyers can't make a living doing. The work is too much and the people have too little. Its not the lawyers. The whole system is failing. Its just failing from the bottom up. Its only just now effecting the $500/hour level.
If a few poor people here and there end up representing themselves its no big deal. They just operate at a huge disadvantage and get screwed. If most people are forced to represent themselves or go with an overworked public defender the whole system will crack into to very distinct parts.
One huge difference is that the practice of law is still controlled by a professional association that many people feel behaves like a cartel. Anyone is free to read an online python book, install mysql, and hang out a shingle as a web programmer. In my opinion, that's a really good thing.
There's a lot of disagreement around "scope" - some people are actually opposed to almost any restriction of practice, even in areas like medicine and law. Other people want to see similar associations/cartels (depending on your point of view) set up for software development. There's also a big middle ground, people who do see a justification for credentialing and licensing in some cases, but who think that the scope of what requires a license has expanded far beyond what was reasonable and needed to protect the public. I tend to fall in the middle group, but with a high degree of suspicion of cartels.
There's also some funny business on the demand side for law. America's truly byzantine tax code, for instance, provides lots of employment for $500/hr lawyers. Imagine if programmers could mandate that all code had to be written in the most bloated enterprise java possible, and had to be written by people with three year graduate degrees from programs largely inaccessible to international students. This would include many tasks that could otherwise have been handled by smart people with no degree who read the book. Anyone who didn't comply could be prevented by legal force from practicing, or even sent to prison. Now you'd have something comparable to the legal profession.
Quality is very, very difficult to measure in this context. It's a bit like measuring the quality of a doctor or other professional whose advice you need to trust beyond a shadow of a doubt.
In the end, law firms tend to trade on longstanding reputation, which is a fine, but imperfect, way of handling this problem. These days, there is no reason to assume that high rates == quality, or vice versa.
The market will sort this out eventually: right now clients are making pricing demands on big law firms that are cutting their margins significantly. As a result, firms are ditching costs in a kind of emergency sale. My own opinion is that many firms are gutting their best assets (their new, young lawyers) in order to preserve the partner profits, and that will be their downfall. Meanwhile, the next generation of lawyers will be free to charge much less, and will actually make more money.
In re bloat - if our unit testing took 15 years and millions of dollars and could even end up involving the Supreme Court, I think any of us would tend towards bloat just to be on the safe side.
Code and the law kind of do the same thing (which is why we use the same word for it) but the platforms are vastly different.
Hmmm, I usually argue this the other way around: if you could be sued for bugs in your software, many software products would probably be better designed, better tested and more usable.
You're right - but the point still remains, they can't find anyone of insert heuristic for quality for the same price. Completely agree that this is all just the market working itself out.
Most legal work isn't a market, it is a racket. Lawyers in Congress and state houses write deliberately complex, yet often vague, "laws" in order to create business for their pals in the legal guild (where they typically join them after the law passes). They also design various malpractice laws and penalties to generate huge payouts to the legal suits. From health care to IP to shareholder issues, "Lawyer up!" is the intentional purpose of U.S. public policy.
I'm sorry to disagree with you, but a huge problem in state legislatures is that the congressmembers are NOT lawyers and write legislation that is really costly to sort out when it gets litigated.
""Why did anyone ever do so in the first place?" might be closer."
I'm interpreting this as "why would we need lawyers, we did fine without them", but that is very untrue. In the past there simply was much less rule of law, with the cronyism and systemic state of fear of citizens that follows from it; as is still the case in most of the Third World and especially in places like China and Russia. But to a lesser degree also in Westerns countries in Europe and the US, and especially in places and/or social strata that don't trust the legal system, or where those who are supposed to uphold the law are corrupt.
Lawyers may seem to be a net tax on the system, and the rule of law could theoretically exist without lawyers, true; but history has proven that systems where people have access to specialists who can fight for their rights are more efficient and, more importantly, better to live in than others.
> I'd call that a 100%, red-line, sirens-blaring, system failure. "Less people are hiring us for $500/hour! What shall we do?" might not be the right question. "Why did anyone ever do so in the first place?" might be closer.
I've heard the reason described as such:
"People will pay the highest possible amount they can afford for things like doctors and lawyers because if there is a screw up they die or go to jail.
When the stakes are so high you pay the most you possibly can to ensure, to the best of your ability, the best possible outcome for yourself."
Atleast this line of thinking makes sense to me. If I'm ever up on trial for something that could send me to jail, you can bet I'll spend every penny I have to ensure that I'm found innocent.
This explains some of it. It doesn't explain why I need to pay $500 an hour (well, $300 an hour) to get a lawyer to look over the contract when I buy a house. I'm not too concerned about having the best possible lawyer in that case -- as long as I have a vaguely competent lawyer (the same way I want, say, a vaguely competent taxi driver or a vaguely competent waiter) I should be fine.
> It doesn't explain why I need to pay $500 an hour (well, $300 an hour) to get a lawyer to look over the contract when I buy a house.
Agreed. I paid $75/hour to get a lawyer to do the work when we bought our house. I'm not sure why you chose to pay someone that much. Only you can answer that:)
I'm Canadian, living in a large city so i don't think location factors into the lawyers fee's.
I've spent the past 10 years working in global corporate law firms as a software developer and have witnessed this change first hand. The legal profession is based around chargeable hours. This is not a good deal for the consumer of legal services. Billing by the hour does not encourage lawyers to work more efficiently or effectively, in fact it rewards the opposite. Recently larger clients have started to stand up to the legal firms and demand that work should be done on a fixed fee basis or a shared risk/reward basis. Suddenly lawyers are beginning to to act like business people and are looking at improving their own internal efficiencies now that their fees are capped. One example of this are lawyers trying to empathise more with their fixed fee clients' business strategy and point out legal pitfalls before they happen - wow a proactive lawyer! Observing how much money law firms are currently investing on improving their efficiencies then I think what we are witnessing is a shift to a new model and not just a blip.
Based on your experience, I'd love to chat with you offline. My law firm (together with another firm in London) is building software for deal lawyers. If you're interested in meeting, you can reach me via the email address on my firm's page: http://yusonirvine.com/
If nothing else, I'd like to introduce you to my UK counterparts.
Interesting - I would be interested in chatting with you too. I am a lawyer at a Big law firm. One of the things that I have been doing (which clients love) is writing software to automate or enhance parts of what I do.
I made an arrangement immediately when I started. I told them I do code on the side, and that I had other people that I worked with on that code.
They agreed that they pay me for legal work, not for code. Thus, the tools I build are mine, but the analysis and output of those tools may be theirs if I am using the tools for their benefit.
Fundamentally, law remains a guild system, with the governing licensing restrictions severely limiting the ability to innovate. Only licensed persons can be owners of firms and only licensed persons can provide the key services. No fee-splitting or profit sharing is permitted with any person who is not licensed. Even one who is licensed is limited is performing services other than in the locale for which he is licensed. All of this may be well and good for "maintaining standards," as the bar associations say, but it means this is and will remain a closed profession that remains remote and removed from average people.
This is not a knock on professionalism. A really good lawyer is well worth the price, even at high rates, for many business transactions. But making services broadly affordable remains a challenge. Technology can help as long as the laws bend enough to allow firms to adopt innovative business models taking advantage of it - how far this can go will ultimately depend on the rules of the guild.
Fair enough, and perhaps your comment is a sign of change. However, though this is a global forum, the source article is from the American Bar Association.
This article is spot-on (I'm one of the few on HN that have worked as an attorney in biglaw).
One theme it barely touched is that, like any other technology, legal innovations inevitably get commoditized. Fundamentally, law firms have been unable to properly adjust to this commoditization due to a lack of technology (outsourcing is a short term solution). The only solutions they come up with are to cut overhead costs, which only gets you so far.
The big picture for the legal industry, is that you have extremely bright young people fleeing the industry because this lack of technology forces them to do this mundane commoditized work. And like any commoditized product, the basis for competition ends up on price, which ends up just forcing these people to handle intense amounts of mundane commoditized work. This is obviously not sustainable, if you want to maintain a law firm with the best and brightest legal minds. It's my observation though, that most partners in a position to do anything either do not see this or do not care (because they'll be gone by the time things fall apart anyways).
Exactly! What I've learned, though, is that there is always a need for a human being at the end of the process. That's where lawyers will always be needed: to exercise nuanced judgment that just cannot be systematized (yet). The trick is to be a lawyer who can work as part of a bigger process that includes smart technologies and less expensive (and perhaps, less skilled) labor.
This is right - there is always a need for humans at the end of the process. The problem is, though, that in traditional law firms many things that can be done by computers are done by humans. This has a couple of effects:
1. Soul-sucking work. Want to know why so many lawyers hate what they do? Because they are doing stuff that computers can do better and faster. It kills initiative, creativity, and any sense of joy.
2. Higher bills for clients. This is all done by the billable hour, so having humans do lots of soul-sucking work is extremely lucrative. We recently had a massive all-hands-on doc review that needed to be done over the course of about three days. For those three days with everyone (and I do mean everyone) doing it, the firm billed $MM/hour in aggregate.
I live and breathe this topic. After 12 years at big law firms in NYC, myself and a collection of our best and brightest broke off and founded our own firms (mine in NYC, another in London).
This is actually very relevant to the HN community, because it's all about how to run a business. The problem with legal services begins and ends with poor business practices.
Law firms are addicted to covering their own lack of spending discipline by raising their hourly rates and pushing attorneys to bill clients more for less value. The "solutions" that they're undertaking now (cutting associate salaries, etc.) are equally wrong-headed.
Four years ago, I was making $400K+ at a top law firm. When I became eligible for partnership at my firm, I decided to leave instead. Why? Because I did not want to own a tiny amount of equity in a poorly-run business. Down the hall from me were several men in their mid-eighties who were drawing $1MM+ pensions and turning up for work two days a week. They had teams of secretaries who printed off their email and read them a digest each morning. I watched the firm spend, spend, spend to recruit "the best and the brightest" from Ivy League schools. After those new lawyers were hired, they would be put to work doing tasks that any decent temp worker could do. Young attorneys were being billed out at $500+ per hour and pressured to make their minimum hourly quotas every year. Our offices were expensive. Our parties were expensive. The I.T. support was expensive because it had painted itself into vendor lock-in and a huge (and useless) support staff. I flew first class everywhere. I stayed in the Four Seasons for months on end.
Sounds great, right? Nope – not when you're considering becoming an owner of that company. I saw the writing on the wall. Clients were bailing. They were getting better at doing my job with in house people. They were pressuring firm management to write off big bills and compete in RFPs.
So I got out, and I've never looked back. I did it because I think I can run a business better than they do. I did it because I actually care about whether my clients feel like they've gotten their money's worth. Also, I did it because I wanted to build an IT platform for lawyers that wasn't hampered by incompetent IT staff and poorly-chosen, expensive solutions.
Today, I have many of the same clients that I had back then. My clients are some of the biggest names in their field, and they stuck with me instead of sticking with the big name law firms. When my clients ask me to quote a fixed price for my work on a project, I give them a reasonable fixed price because I can afford to do that. I have low overhead (ridiculously low, actually). I can provide better service than ever before, because I have better tools at my disposal. I don't waste time fighting my way through clumsy solutions like Sharepoint, Deltaview, Worksite, or whatever other POS is in vogue at big law firms today.
I could go on about this forever, but suffice it to say that this article and the phenomenon behind it is extremely interesting to me. I also think it's a great case study for entrepreneurs. Think of it this way: what if your target market was dominated by companies that charge way too much, are extremely inefficient, and are carrying a huge, ever-growing cost basis? Sounds like a good opportunity, right? Well, it is!
Absolutely! BigLaw is (was?) a house of cards waiting for the right circumstances to blow it over. My law practice is only part time, and I run it like my software company operates - lean, innovative and hellbent on providing really good value for clients. I have more than enough legal clients in the pipeline to keep me busy and my startup background gives me a great foundation for advising my target clients. As for tools to run my practice, if I can't get what I need at a reasonable price I build it and make it available to my colleagues at a reasonable price.
I typically represent customers in contract negotiations with their upstream suppliers. That means I do lots of deals with many of the same names on the other side of the table, again and again (Microsoft, Oracle, IBM, etc.)
After over a decade of doing this, I notice that my clients really want the answer to two questions:
1. What are the market standard terms for the transaction?
2. What did we (i.e., the client) agree to in the past?
In big law firms, the answer to these two questions is all too often locked into silos. Either knowledge of past deals is hidden from software because it's buried in MS format binary files, or it's buried in someone's head. It's quite common to see intraoffice communiqués go out by email: "Has anyone done XYZ for ABC in the past?" You might get a few responses...or none at all. It's very spotty, and not a good way to build institutional knowledge. At some firms, there might be a Sharepoint or Lotus Notes "knowledgebase" (ugh!), but those are often next to useless and involve a lot of manual human overhead to maintain.
When people think of technologies to enable deal law practice, they often go straight for document assembly or document management. Document assembly and templating is a bore, IMO. It's an area that is already too full of competitors who are trying to solve problems that I don't actually have. Since I tend to represent customers, I don't usually get to create the first draft of the contract. I've actually built a custom document repository with some nice features (e.g., email dropboxes, etc.) but that's just housekeeping, IMO. The real magic lies elsewhere...
In my view, the "document-oriented" viewpoint is the wrong way to approach these problems. Instead, law firms and their clients should be looking ways to break down the document barriers and convert contracts into seamless, actionable data.
Litigation, and patent/corporate due diligence are currently ahead of my practice area in this respect. My practice area (commercial transactions) involves a completely different set of problems and skills, and is an emerging market for technology applications. I'm biased, but I think my practice is harder to commoditize than, say, searching through millions of emails to find phrase matches or potentially privileged communications.
Since leaving big law, I've worked with other lawyers to develop systems for extracting and archiving the information we need to answer the two big questions: What did the client do in the past, and what is everybody else in the market doing today?
Other areas where we use/develop technology in ways that big firms can't:
- Task assignment systems for delegating work to non-lawyers or offshore lawyers, while retaining a clear, auditable record of who did what. Think project checklist templates similar to Basecamp, but more focused on our use cases.
- Interfaces to our timekeeping APIs (Harvest and Freshbooks) for custom reporting/visualization on how we spend our time. This helps us accurately quote fixed fees for projects, and surfaces interesting data about role in the contracting process.
It's a really interesting area. If you're involved in it at all, get in touch with me. I love talking about it with people who "get it". I'm a coder and a lawyer, so I'm perpetually stuck in both (and neither) of the two worlds of law and coding.
Not much to add but to say it's great to read about people with both knowledge and a solid passion in what they do. I wonder how we can seek out these kinds of "big" problems and push energy their way rather than trying to create just more social fluff..
Re your comments document orientation. This is a very good point and one that I have given a bit of thought. Contracts do indeed consist of business data and should be treated as such. To create such data in Microsoft Word and keep it in Word documents is as criminal. But the problem is worse than that. Contracts are also business logic manifest in a completely useless format called human language. If you are interested you should check these links out: http://contracts.scheming.org/http://www.stefansen.dk/presentations/isola-contracts.pdf
I believe the ISDA contracts are pretty close to being so standardized as to lend themselves to this.
The problem with composing contracts from modular units is negotiations. You would need both parties to agree to work within a closed system of modules at the outset. Otherwise, you are right back to where we are today – everything is composed more or less ad hoc.
At the end of the day, contracts will always need interpretation. Contracts are simply a manifestation (in whatever form) of what two or more people expect to happen.
A purely top-down, closed-system approach will fail to cover all situations. Likewise, a bottom-up, arbitrary system will not lend itself to systemization.
Interestingly, this dynamic is quite old in the law. There are two major types of legal system: civil and common. Civil is a top-down system where a code of laws tries to anticipate every eventuality. Common is a bottom-up system where individual cases set precedent by analogy to future situations.
In practice, both systems tend toward the middle. Civil law systems still require judges to interpret specific application of the laws. Common law systems still require codified rules to maintain credibility/consistency.
The problem is that law school is an absurdly expensive exercise that, incredibly, doesn't actually teach graduates how to practice law. How else can you explain the fact that there are tons of unemployed JDs out there, and yet the average citizen can't afford basic legal services?
Yes, but the legal profession has incredible sway and power, so that won't happen.
It would absolutely be possible for someone to specialize in just a single specific kind of law, become very knowledgeable about it, and make normal skilled professional money in the $25 to $75 per hour range. This is prohibited by regulation and licensing which amounts to a huge windfall for the legal profession.
But it's unlikely to change, because the last thing any legislator wants is to be on unfavorable terms with the legal profession.
Depends on how you define "help". The reason there are so many unemployed JDs is that there are too many lawyers, and allowing people who didn't go to law school to take bar exams would make that problem even worse.
On the other hand, if people could become lawyers without taking on $100,000 in not-dischargeable-under-any-circumstances debt, they would be able to make a living at a much more reasonable salary than is currently necessary, which would allow the market for legal services to start correcting itself.
What really needs to happen is that the bar pass rate needs to be lowered significantly in markets that are over-saturated (pretty much any big city). It should probably even be lowered to zero (ie stop offering the bar exam) for a couple of years in states like New York.
Somehow I think you'd get into a pretty big fight with the New York law schools. Not to mention how much it would suck to have taken on $100,000 in not-dischargeable-under-any-circumstances debt and then not be able to get a job because you aren't allowed to take the bar. How would this help anything?
High barrier to entry and costs are part of the cause of the problem: If more people were allowed to qualify to practice, lowering rates and expanding the search for a better business model, the legal industry would be more flexible, cheaper, and accessible for the public.
Something like this is already established practice. In some states you need a lawyer involved with every real estate transaction, because it's considered "practicing law."
In some other states, like Colorado, a lawyer does not have to be involved in a real estate transaction. In these states real estate agents have been granted the right to practice this very limited segment of law. They don't take the bar, they just go through real estate school (easy and minimal), take a test (easy), and keep up minimal continuing education.
So that's a very narrow slice of law, practiced by non-lawyer specialists.
In these states you can, if you want, still involve a lawyer, and in some cases it's probably a really good idea. In most suburban lot/block transactions it's probably not necessary, but IANAL.
Shrinking market for legal services is good news to me. People becoming less litigious? It is actually possible to do anything without a highly paid expert to tell you whether you're not breaking some complicated law? Does not sound like something to worry about.
The market is not shrinking; the problem is access to justice for ordinary people who cannot afford $500 an hour. Also, perverse incentives like "No win, no fee" encourage settlements and litigation without helping those who have been genuinely wronged or have an actual case that needs to go to trial.
How does no-win-no-fee do that? If you haven't been genuinely wronged and don't have an actual case that needs to go to trial, you can't realistically expect to win, so NWNF doesn't make much difference.
What NWNF is supposed to do is to make it possible for the not-rich to afford to defend themselves when wronged (either by taking legal action, or by declining to settle unfavourably when threatened with legal action). That doesn't seem terribly perverse, it's the opposite of "encouraging settlements", and it does help those who have been genuinely wronged.
The downside is that lawyers operating on a NWNF basis may be unwilling to take on any case whose prospects for success are poor. I suppose that might count as "encouraging settlements" -- in cases where you're not very likely to win and can't afford to pay the legal fees. I have trouble seeing why that is a bad thing.
If you haven't been genuinely wronged and don't have an actual case that needs to go to trial, you can't realistically expect to win
The premise that only deserving cases win isn't self-evident to me. With increasing awards and settlements, the expected value of a spurious case might be quite high.
If NWNF considers a settlement a win, and it is a much easier win than going all the way to court. Then there is a strong incentive to take on a case and push the settlement.
This article correctly points out that pricing for legal services is undergoing a shift toward the true marginal cost for the service. So the law firm business model where much of partners’ profits are markups on simple, repetitive work done by junior associates is on its way out.
That said, the doom and gloom of this article (and much of the profession) is overblown. Maybe it’s because law is such a conservative profession, but any change is greeted as if it were the coming of the Four Horsemen. It’s as if the entire software industry spent its time worrying about how the internet was going to put Windows programmers out of business, instead of being excited about the opportunities it presented.
Major law firms are filled with smart and experienced lawyers who actually provide a lot of value to their clients. That value is still worthwhile--as the article points out, the rule of law is not going away.
As a law school student, I'm not (unduly) worried about this. Sure, there will be some winners and losers, but that’s what happens in business--and basically what this is about is that law firms are looking more like businesses. Why should I expect anyone to feel sorry for me because of that?
JACK CADE.
Be brave, then; for your captain is brave, and vows reformation. There shall be in England seven half-penny loaves sold for a penny: the three-hoop'd pot shall have ten hoops; and I will make it felony to drink small beer: all the realm shall be in common; and in Cheapside shall my palfrey go to grass: and when I am king,- as king I will be,-
ALL.
God save your majesty!
JACK CADE.
I thank you, good people:- there shall be no money; all shall eat and drink on my score; and I will apparel them all in one livery, that they may agree like brothers, and worship me their lord.
DICK.
The first thing we do, let's kill all the lawyers.
JACK CADE.
Nay, that I mean to do. Is not this a lamentable thing, that of the skin of an innocent lamb should be made parchment? that parchment, being scribbled o'er, should undo a man? Some say the bee stings: but I say, 'tis the bee's wax; for I did but seal once to a thing, and I was never mine own man since.- How now! who's there?
What would be really nice is if law was machine-readable (and interpretable). But that would probably require computers being able to understand language.
That'd be a neat trick. Not even the humans can understand legal language. Perhaps the singularity begins with an expert system suddenly grokking the entirety of law, resolving the paradoxes and contradictions, and then suing all humanity for infringement. Hard-takeoff trolling...
Asimov's "I, Robot" stories cover this territory well. The robots must follow three laws, which are simple enough on their surface, but in application prove tough to predict. The humans begin to see that the laws have unintended and undesirable consequences.
I just recently finished Accelerando, where corporations are composed of and contracts are carried out by software agents (the story starts out with them just being expert systems). It's not the main topic, but a major supporting background.
What's an interesting segue to this is that fundamentally the "language understanding" issues are mostly red herrings. The gold standard within the legal profession we are constantly led to believe is to pursue a standard of objective fairness and justice which would be better defined by deterministic, logical languages like programming languages rather than fuzzy, broad languages like English.
It is far, far easier to have laws written in code and execute test cases based on those laws before even investing any capital into a venture which may require edge cases of a given law, rather than the current scenario of hemming and hawing around a fundamentally subjective and fuzzy area and eventually subjecting your endeavour to the rigors of being a legal "test case" consisting of much ado about nothing and the outcome is as close to random as anything else.
When you reduce the legal profession to coding and writing test cases though, hell will freeze over the next day. Such a politically powerful faction will never allow themselves to be marginalised in this way, even if they claim to desperately be striving for exactly the kind of scenarios that this would allow; universal access to a completely objective justice system with etc etc etc. The extent to which this is actually impossible is somewhat depressing because it's something of an expose on the hypocrisy implicit in the claims of the legal system to actually serve the public, rather than itself.
But hey, that's life. If it ever does happen my wager is it will be because it is forced on them through market forces, the public at large simply uses alternatives venues for mediation and the legal system is forced to compete with it. I predict much artificial legal protection to prevent this from happening before it actually comes to pass, though.
Although there are some laws that can kind of be represented as computer code (for example, TurboTax captures a good portion of the tax code, and programming a 55 mph speed limit into a car shouldn't be hard) for the most part the law acts as a system for delegating to judges limited authority to exercise discretion. Ultimately, the decisions are made through that discretion, and they aren't entirely predictable. If you haven't already, take 30 minutes and read Oliver Wendell Holmes' "The Path of the Law" and see if you still think the only obstacle to mechanizing the law is the political power of the legal profession. http://www.gutenberg.org/ebooks/2373
I'll give it a look in, but yes, my general opinion is that discretion leads to subjectivity and unfairness. Unfortunately the attempts to reduce discretion have historically resulted in malicious arbitrariness, sentencing teenagers to sex offender status for sexting, silly three strikes laws ad et al. At the same time it seems to me that a more richly detailed granular objective system with oversight into the actual code to any interested parties with a clear and concise method for changing that code would be a far superior approach than either of the previously mentioned extremes.
You might want to look into the civil code system of law. It might appeal to you more than the English-derived system that I suspect you live under. Check out the Quebec Civil Code: http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/te... (ignore the bizarre English translations of some concepts...).
You are correct, I currently live under a common law derived system, and my research into actually translating a legal system to code has led me to believe that the best place to start would be a civil law based system, though I had been mostly looking into scandinavian countries prior to this link. Thanks for that, just to be clear though, is civil code specific to Quebec or is it all of Canada on a civil law derived system? If it's Quebec only I'm guessing my grasp of English isn't much going to help me but if it's all of Canada I'm thinking this could be a much better starting point than the Scandinavian systems as I don't speak any of those languages fluently.
The Civil Code is just in Quebec. That's because that region of the country was originally owned by France and centuries later it's still French-speaking and uses a France-derived legal system for all but criminal matters.
There are many English speakers in Quebec (one of Canada's top law schools is located in the largest city in Quebec, which is known for being English-speaking...) and so you should be able to find a lot more materials in English than Scandinavian countries but I wouldn't know.
You're likely already aware of it but Louisiana also has the historical France link and civil code connection but I know much less about how that system works.
> attempts to reduce discretion have historically resulted in malicious arbitrariness
You're 90% of the way to the answer. Take into account Hanlon's Razor and it should become clear.
Unless the people designing the law are smart enough to take into account every single edge case, we're faced with a choice between gross miscarriages of justice through inflexible laws, and gross miscarriages of justice through incompetent or corrupt judges.
We know the people designing the law aren't that smart; and even if they were, the laws are already too complicated. The only solution is to strike a balance between the two types of errors that minimizes their sum.
How much of this is a characteristic of law, in general, and how much of this is a characteristic of the English common-law tradition?
In a civil-law system where laws and regulations are more minutely detailed, and judges have less discretion, would law-as-computer code be more feasible?
Perhaps _more_ feasible, but not feasible enough. In German law schools they make it sound as if there's only one legal interpretation for every case, but actually there are often competing ones.
Also, even if the legal situation is clear, there's still discretion involved to decide which claim ranks higher. E.g. Free Speech versus (something like) Right to Privacy in the case you can see at http://lexetius.com/1999,2324 . (If you don't speak German, Google translate might be good enough.)
To me the practice of common law and civil law seem more similar than their theory.
The law isn't complex for the sake of it. The law is complex because the world is complex (cf. essential and accidental complexity). A single person is complex and hard to model reliably -- sure, you can get the first 90% right, but that's not enough. Then you scale that up to pairs of people, people in families, people in businesses and so on.
Law tries hard, very hard, to boil this intractably vast variety down into general, abstract systems. But corner cases frequently arise that don't quite fit the current rules. The rules need to extended by analogy, or broken, or turned inside out, or ignored, or not ... in order to make it work. Every once in a while enough of these little oddities accumulate that a new generality can be perceived.
But, like any model, the first 90% is easy. Everything else is recursively more difficult as you go into sub-sub-sub-sub categories where millions of dollars or people's lives and freedom can turn on a tiny distinction that only humans could, currently, tease out.
I did not come to think of law this way while studying law. It was when I began writing software that I realised how complex the world really is. How difficult it is to change established, complex systems.
The computer is a useful brute, but not too bright. Explaining all those corner cases, all those once-in-a-turquoise-moon exceptions in nauseating detail, is a useful lesson in humility.
But to sacrifice the gains in the first 90% for the sake of the remaining 10% just so that the remaining 10% is handled in a way that is maybe possibly better than what we might have if we went the other route? That sounds like a questionable benefit for a huge cost.
You do have a point though, perhaps a hybrid approach is best.
One of the classic moments in the history of common law was the emergence of Equity. It arose because the strict, predictable rules of Common Law as it then existed were leading to what were clearly unjust outcomes.
Sometimes no specific rule can capture the correct action. You need room for judgement. It bugs the everliving daylights out of me that so much of law is undecidable and informal, but it is so out of historical demonstrations that a balance between robustness and strictness is required.
And the people in the 90% that don't want to pay lawyers 500$ an hour? That's what I mean, as far as I can see I don't follow as to why that does not necessarily dwarf the concerns of the remaining 10%, and also it's not even a granted that this would actually happen. The emergence of equity in common law is one thing, but common law is administered by humans, a system written in code to which anyone was free to contribute and which was administered by computers would be far less susceptible by nature to human error.
The only scope for human error in such a system is the process of coding itself, and massively distributing this and opening that process as much as possible makes any bugs in the system shallow by comparison, as well as easily demonstrable by test cases rather than actually requiring some clueless politician, lawyer or judge to make a terrible decision and someone else to suffer the consequences for it.
The act of writing programs, and discovering a bottomless well of bugs in those programs, is what has made me respect lawyers all the more.
I do think some tools and practices can be adapted. I think, for example, that expert systems -- whether classical or hybrid a la Watson -- could make a big dent in that $500 figure. That is definitely pursuable.
But humans inject errors, it's what they do best. And outside of a properly formal system (and per Godel, these aren't perfectly usable anyway) the best way to identify errors is ... with another human.
You might say that judges have been performing software inspections for much longer than we have.
Don't get me wrong, law is as slow as frozen honey. But the problem domain is heinously complex and I expect that any software system would reflect that complexity. Given our profession's iffy track record on creating items of massive size and complexity, I lack your transformative enthusiasm.
I am what you might call a cautiously optimistic conservative. Or a pessimistic radical. Not sure. One blogger I host talks about "radical centrism".
>a standard of objective fairness and justice which would be better defined by deterministic, logical languages like programming languages rather than fuzzy, broad languages like English.
Can you formally define concepts and events occurring in a "fuzzy, broad" world in a useful way? It is kind of amusing to imagine that someone out there is sitting around with a recursively-enumerable objective statement of what constitutes fairness.
To the extent that applications defining the class to which you believe your behaviour exists and allowing you to test it with a high degree of specificity, yes. There have been explicit ventures along this exact path previously in a more limited extent, that being financial products having python based code that would allow the investors to put in a set of assumptions and see what the product model would do under those circumstances.
Fairness itself is a fuzzy concept, sure, but writing clearly delineated code that deals with reality in a concrete fashion with the goal of being fair is the only way that fairness even enters the equation.
>To the extent that applications defining the class to which you believe your behaviour exists and allowing you to test it with a high degree of specificity, yes.
I'm operating on the assumption that you dropped the word "belongs" somewhere in there.
>There have been explicit ventures along this exact path previously in a more limited extent, that being financial products having python based code that would allow the investors to put in a set of assumptions and see what the product model would do under those circumstances.
In the same way that there have been explicit ventures along the path of the axiomatization of mathematics, yes.
>writing clearly delineated code that deals with reality in a concrete fashion
Show me some clearly delineated code that deals with the workings of a single sheet of A4 paper in a concrete fashion, and then we can consider the law. Fairness is not a fuzzy concept, it is a human concept, humans as much a part of the universe as any other. It is not really harder to measure fairness than to measure the electromagnetic interaction.
We spoon-feed our problems to computer systems so that they may analyze the parts which we cannot; your precept of a computerized legal system is assuming a priori the lack of spoon-feeding, since corruption can enter the picture here just as easily as in the old system, cf. LulzSec. Thusfar there are two pieces of secure code in existence: seL4 and qmail, and I'm not sure about the former.
Yes, litigation and compliance tend to lead the way when it comes to extracting meaning from legal data pools. In my opinion, the single biggest obstacle to getting legal knowledge to play nice with software is the fact that it is all "silo'ed" due to: (1) being in MS Word format, (2) being confidential information, and (3) the lack of conventions/standards in legal documents.
The good news, though, is that legal documents tend to follow a fairly narrow channel of variations, when isolated to particular practice areas (e.g., leases, sales of goods, service agreements, motions, etc.)
I've always wanted to run a huge number of documents through Beyesian filters or something similar to develop some interesting classification rules, but it's damn hard to get a pool of representative documents that isn't strictly confidential.
The only word-processed files that might be non-confidential I can think of are contracts made in the past couple of decades between companies that have both declared bankruptcy. Either that or public EULAs.
We're enjoying the substantive conversation this story has generated over at the ABA Journal! I've been jotting down future story ideas based on some of the comments and invite anyone to send insights and tips to Rachel.Zahorsky@AmericanBar.org.
- Rachel M. Zahorsky, Legal Affairs Writer
I am waiting for the day when there are laywers in single practice who charge rates of less than $100/hr like many other professionals do. I know some laywers who are complaining about tough times but they still think they are worth $250/hr.
To play devil's lawyer: lawyers have very high fixed costs due to insurance + bar fees. In Ontario they're about $6k a year. Database subscriptions are also very pricey. The expenses are considerably higher than that associated with programming.
True, but there are a number of other costs associated with being a lawyer. Various professional courses you're required to do in some jurisdictions and clothes that make you look like a lawyer instead of a programmer. Carrying costs of your $125k + living expenses education on top of undergrad @ $X...
Law School doesn't really teach what lawyers need to practice law. I've been tempted to do some videos on open source compliance, basics of contract negotiations, etc. but I just don't have enough time to do everything I want to! Maybe if someone else wants to collaborate, I would make it more of a priority.
This is an absolutely fascinating thread-- thanks to Rachel Zahorsky for the original article, and to sunchild and other commenters for thoughts and inspiration. Am very interested in contacting others on this list with an interest in both law and code.
I'd call that a 100%, red-line, sirens-blaring, system failure. "Less people are hiring us for $500/hour! What shall we do?" might not be the right question. "Why did anyone ever do so in the first place?" might be closer.