Real Lawyers v. Cyborgs (Part 3)

In Part 1, I introduced the idea that we are all professional cyborgs. I used my personal experience with a diabetic toddler whose life literally depends on computers attached to his body to ruminate on how technology is so deeply intertwined with our professional lives that we often don't even notice it. I rejected the notion that the use of technology can somehow be considered as distinct from 'real' lawyering.

In Part 2, I compared a decade of reading that an artificial pancreas is right around the corner to the even more drawn out asymptotic dawn of artificial lawyers. I used the professional progression of a composite successful lawyer who graduated law school in 1977--the mean and modal graduation year of the chairs of the AmLaw 10--as a touchstone for comparing the various AI hype cycles to more mundane progress that actually had an impact (desktop computing, the internet, mobile). I, however, concluded with the idea that the failure of technology to live up to the hype was a good reason to be skeptical of hype but a terrible reason to be skeptical of technology.

In this Part 3, I will talk about what happens when technology does live up to the hype (we stop thinking about it) and why our technology always appears to lag behind (because it does).

Expectation Calibration and Self-Driving Technology

We pay attention to that which demands our attention. The only reason I ever think about my own pancreas working is because my son's doesn't. Likewise, I don't think about my pulmonary, respiratory, or digestive systems unless something is wrong. If my son were ever to acquire the long-promised artificial pancreas, I would stop thinking about it. Just as when he switched over to an insulin pump I stopped thinking about giving him insulin shots.

We are predisposed to focus on what the technology doesn't do well yet. As the comedian Louis C.K. discusses in this clip--which I pilfered from this great Daniel Pollick presentation at Lexpo--our expectations ratchet up almost instantaneously:

[For those of you who didn't watch it, Louis recounts being on one of the first planes to test in-flight wifi. It works for a while. Then the wifi goes down. The gentleman in the next seat remarks, "This is bull&^!#." Louis jokes about the guy being mad at something not working when five minutes before he hadn't known it existed. The guy had recalibrated his expectations that quickly. This leads to a longer reflection by Louis on how we all complain about the hassle of air travel instead of constantly marvelling at the fact that we beat gravity. We are human beings flying through the air at hundreds of miles an hour thousands of feet above the Earth, and we're pissed off about it.]

The partner who grew up on a Dictaphone and banker boxes is not going to proceed in a state of perpetual amazement that she can access all the world's knowledge and all of her firm's files from a $600 computer that weighs 5 oz., fits in her pocket, and performs 120,000,000x faster than the $23,000,000 computer that weighed 600 lbs. and guided Apollo 11 to the moon. She is going to complain that the connection is slow, the battery runs down too fast, and something mission critical isn't quite working right. Alternatively, she is not going to learn to operate the device anywhere near its capability and, on the basis of her own ignorance, conclude that the device is not all that useful. Most commonly, a little of both.

We want self-driving technology. When we get it, we stop thinking about it and recalibrate our expectations. When we get partially self-driving technology, we focus on all the driving we still have to do. We are not built to be satisfied.

We're Running The Red Queen's Race And We're Always Losing

"Now, here, you see, it takes all the running you can do, to keep in the same place. If you want to get somewhere else, you must run at least twice as fast as that!"
From Carroll's Through the Looking Glass, those who run the Red Queen's race go as fast as they can in order to stay put. When I was growing up, grandparents expected you would send them a school picture every year. Today, grandparents complain if you don't post daily kid photos to Facebook. It is not just that expectations reset at warp speed. They also tend to ratchet in ways that outpace our ability to deliver.

Enterprise IT, for example, faces all manner of expectations problems due to the consumerization of technology. In the beginning of the digital era, businesses always had the best technology. People had to go into the office so they could use this or that machine. For your standard knowledge worker, the dynamic has flipped. Now most people complain that what they have at home is better than what they have at the office.

Their personal phone is newer. Not bogged down by security protocols, their personal computer is faster. Google embarasses their enterprise search capabilities. Amazon is light years ahead on filtering functionality. Dropbox seems better for document management. The result is incessant complaining and dangerous forays into shadow and stealth IT. People want something that works, now. They don't care to hear about systems integration or that Apple took years to offer its consumer-targeted iPhone with enterprise-level security controls. IT can't win, they can only try to keep up.

Arguably, legal has it even worse. Our technology is often reactive. We didn't know we needed virtual deal rooms or electronic discovery until enterprise data volumes had already exploded. We were 'late' on information governance, social media, cybersecurity, privacy, BYOD, etc. because there was no role for us to play until there was role for us to play, at which we point and the technology we use were in perennial catch-up mode.

Relative to any time in the past, our tech is greatly improved. Relative to our actual reference classes-- (i) what is available on the consumer market and (ii) the scale of the task at hand-- the tech we notice is almost invariably deficient.

Real Lawyers Didn't Need Tech To Be Successful

This is not where I launch into a diatribe about older people not getting tech. I consider such thinking to be lazy, essentialist nonsense. Older people invented tech. Being an impostor, I know many people, some of them lawyers, who are older than me and wipe the frakin floor with me on tech acumen. Oh, and the digital native is a load of malarkey.

Yet that older people are entirely capable of getting tech does not mean that they do. Some do. Many don't. And many who don't are wildly successful. You can be a successful lawyer without tech having much of a felt impact on your career, let alone contributing in any discernible way to your success.

The lawyer who graduated in 1977 probably made partner in 1985, a year Bruce MacEwen recently recalled:
Second, the staff:lawyer ratios today would be unrecognizable to a time traveler from, say, 1985. They might be tempted to protest, “how can we afford to pay lawyers to type?” Don’t scoff; an early and terminally benighted boss of mine uttered those unforgettable words to me in about that very year, when I offered to bring in my own very primitive DOS-based, green-screen IBM PC clone on which I’d taught myself WordPerfect.
Things have changed since 1985. But they have changed far more at the bottom than at the top of the pyramid where our successful lawyer now resides. In many respects, our successful lawyer may be like Bruce's hypothetical time traveler. They sometimes visit the tech-centric inner workings of their firm, but they find it alien and have no need to live there.

I promise to someday explore some of the ramifications of this social distance. But today is not that day.

D. Casey Flaherty is a consultant who worked as both outside and inside counsel. Find more of his writing here. Connect with Casey on Twitter and LinkedIn. Or email casey@procertas.com.

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