The show floor at the recent LegalTechTalk conference in London was filled with vendors promising to improve efficiency and automation for various legal processes. Most of the sessions explored similar themes. The general vibe was that if we get the governance, trust, and safety right, then AI and all the new whiz-bang tech will make law better, faster and smarter.
Until it doesn’t.
So it was refreshing to stumble upon lawyer and legal technology fire-brand Marisa Monteiro Borsboom, who believes we need to think about how technology can help to infuse humanity into law rather than just make it faster or cheaper. She is the founder and practicing lawyer for a couple of ongoing law firms in Portugal and the Netherlands, VP of the European Technology Law Associations, and an organizer for various other legal and technology organizations.
She argues that lawyers need to consider how the tools may change not just the market but the base of civilization as we know it for better and worse:
I think it’s up to us in the market to get together to also think about policies, regulations and the future of what we are building, and we all discuss among ourselves, the ones who are already on this path for a long time. We are now at a crossroads. If this were a surf moment, we would be in the flat ocean. What comes next is not what it was, and we need big voices, brains, and talents to pair with technology, or else we will be in trouble.
Her big concern is that the current legal tech market is concentrated on automation rather than justice. The low-hanging fruit is providing better shovels and picks for lawyers processing millions of contracts. However, the other side is less appealing from a commercial perspective since it’s not as easy to automate. A systematic approach is required to spark a renaissance on this side of the industry. She notes:
I’m very hopeful that this new era that is opening brings that capacity to justice as a system and not only for corporate lawyers. The new era should be about empowerment of the individual.
Ultimately, she wants us to find a way to help lawyers take pride in creating a better world for their communities and the world. She suggests it is important to remember the history of the legal profession:
If you go back a few centuries ago, you did not have this big mass production. You had small boutiques, and even the big ones were very human-based. The relationships were beyond the law. Some of the lawyers became saints like Thomas More. They talked about wise people who were there to give you more than the law.
Some of Borsboom’s most memorable experiences as a lawyer came when she helped her clients resolve their problems in a more personally meaningful way with less stress, not to mention fewer billable hours. She explains:
We have been suffering in a way that the billable hour system is almost like the fabric of a big industry with people working there and then you are not so independent as a lawyer. You have your own cubicle and maybe are a partner. And even the way you work is not very fulfilling. That is why I talk about billable hours.
The greatest kick I got out of my personal life was solving my clients’ problems and sometimes avoiding court with really savvy and intelligent negotiations. It’s fewer hours, but it gives me so much pleasure. That’s the problem. I’m not a money factory machine. I am a human with a talent, and I work upon that talent. And I could even dare say some of us look at it as an art.
Here, lawyers can provide the greatest value not just in resolving a particular legal situation but in thinking about the bigger picture. The technology can certainly provide a baseline of knowledge. However, a good lawyer can look at the bigger picture beyond winning an individual negotiation or case. She says:
Here’s another way to think about it, and it’s not just about winning. It’s like, ‘How do you want to feel about yourself and your relationship with this person? How can you communicate differently to have a better negotiation?’ I did divorces so many times. And I always joke about it, saying that I have special techniques depending on the person in front of me. And they called me a priest, saint or therapist. And I always tell them to forget the law.
Let’s now imagine where you want to be at the end of this. And then we bring the law, and I can tell you that I have stories that are divine. It’s almost like untangling people’s emotions in a way that they allow themselves to solve their problems without needing me for so long. And neither do they need the courts. And yes, it is so few billable hours then, but I have messages really thanking me for changing their life. And that is also a sense of currency.
Borsboom’s deep dive into legal technology began in 2016 when the European Technology Legal Association was first forming. She felt that technology would have a greater impact in the legal world, and not all of it helpful. She had watched as Portugal began digitizing the court system, but not all of it was good. She remembers:
When I started my internship. Everything was paper-based. I saw how the introduction of the first platform for court in Portugal, a small country, made such an impact. We were in the front row of the innovation, but my generation lived the pros and cons.
Today, the concern is that the current hype and rhetoric around technology adoption is creating a sort of dogma in the legal world. That is, lawyers, lawmakers, and vendors are beginning to adopt certain assumptions about the use and necessity of technology that they don’t talk about because everyone “knows they are true,” and that are hard to question. She fears:
If we don’t have a solid body of professionals and critical thinkers, and if ignorance becomes so widespread, then whatever the machine says is where you go. It’s almost like having a GPS telling you to turn right three times, and everyone goes right when you know very well you can do left. It’s my fear that governments will also start using AI even for designing and applying regulation.
One place that technology is starting to break down even today lies in the way it supports different legal systems. The US, UK, and the commonwealth follow the Anglo-Saxon legal conventions and philosophy. They also represent the largest market in the short term. Meanwhile, a large part of Europe follows the Romano-Germanic legal conventions. Borsboom is concerned that many tools being built for the more lucrative US market are unsuited for the processes in countries with other legal conventions.
A legal renaissance needs to start by rethinking the foundations for improving access to justice. Borsboom explains:
People that work in access to justice know that there’s a big piece of the pie that nobody gets. There are many cases that don’t even go to law firms because people cannot access to justice. So, there are many cases and people who are literally not served because lawyers are too expensive.
Here, technology could provide an outsize impact not just on the bottom line but by including all the voices and viewpoints required to build a better society. The key lies in empowering the lawyers who love justice, sometimes work pro bono and want to leave a lasting legacy in their communities. Borsboom says:
I don’t think a good lawyer fears technology. They want to embrace it, but the technology they can use is also not financially possible for small firms or even individuals because we’re creating a lot of tools that small law firms cannot pay for, which will create a problem. As more technology is brought to market, maybe prices will be more competitive, and lawyers will have more capacity. And I hope that some lawyers like me start thinking about how innovation and technology can put us in the loop. We just start partnering more with the tech people and create a new legal technology era that we can now more maturely imagine.
What’s at stake if we just start mindlessly automating the making, enforcing, and processing of laws we hope will create a better world? Borsboom thinks it might follow in the footsteps of the enshittification in the technology industry, in which profits and power make things progressively worse for all of us:
For any industry, we will need to face that part. You are already seeing the first big backlashes of technology in a society that could be using technology to be more prosperous, peaceful, and joyful. But you’re not using technology for the things you need most of the time, and it’s even creating a lot of misery and loneliness, and people are getting more depressed.
So, I think we are now feeling for the first time in this last decade the big clash of what were all promises like the ‘move fast and break things’ that we are going to change the world with. I think we will come to terms with the fact that technology can be good. But in the end, it will get much worse before it gets better. And the backlash will be big, but I have faith in humanity.
Imagining a more just and equal world as Borsboom envisions, I did notice a more skeptical voice inside wanting to push back, arguing, “Who is going to pay for all this?” After all, as in any industry, money and power tend to fuel the development of the adoption of better tools and the urge to get ahead in a vicious circle.
But do we really have a choice in the current paradigm of growth at all costs fueling obscene levels of inequality? Perhaps crafting a better future for ourselves requires taking a step back to consider the value of a better future for all of us, not just the chosen few. The legal industry could take a page from the open source playbook. It is not perfect, but taking a step back to consider how technology might expand justice for all may inspire a legal renaissance in the process.
Image credit – Pixabay
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