We know Benjamin Franklin for his many sayings. Some he created, most he borrowed and improved. One we all know. Two things are certain in life: death and taxes. Everyone has a take on the third, so I will add my voice to the fun: artificial intelligence in law is over-hyped. If the hyping AI is the most popular thing in legal industry writing , explaining how AI in law is over-hyped is the second most popular.
Collect all the AI in law articles, combine them into one big summary, and this is what you get. AI can do everything lawyers can do, but better. The future is on the horizon and the horizon is close. Retire folks. AI will do the research, write the brief, file the brief, read the brief, and decide the case. All in less time than it takes to say “unplug the darn thing.”
Law has company in suffering through hype. In fact, hyping tech has become such an art form that it has achieved consultant model status. Gartner (according to Gartner) is “the world’s leading information technology research and advisory company.” They put a name and a diagram on hype. They call it the “Gartner Hype Cycle” and it looks like this:
Plotting technology X on the Hype Cycle can be fun. Lawyers have avoided the Hype Cycle, because lawyers have avoided technology. But, we have joined the fray. AI is our achilles heel.
They Hype Cycle is a rearview mirror metric. It is tough to measure a technology’s place on the Cycle, but looking back you can see the peaks and troughs. It feels like we are near the top of the first incline approaching Peak of Inflated Expectations. If so, a few years should plunge us into the Trough of Disillusionment. Tighten your seat belt, please.
Since we know the cycle it seems natural to ask a simple question: can we skip all the craziness and go to the Plateau of Productivity. That is the question Eddie Copeland asked in his essay, “Busting the hype cycle: 5 questions to ask about any new technology.” In turn, my friend Peter Carayiannis asked whether Copeland’s essay ideas might apply to AI in law. I promised Peter a nuanced maybe a bit surprising answer. Let’s start with Copeland’s thoughts.
The Copeland Five Asks
Copeland identifies at least two downsides to hyped technology in the context of government initiatives. First, the government wastes taxpayer time and money as it pursues initiatives that have little or no hope of succeeding. At the same time, it sidelines initiatives that could help. Second, the disappoint that comes from realizing the hype means the anti-technologists dig in and changes becomes harder.
Copeland offers five questions we should ask if hype tempts us:
“1. What are we actually trying to do?
2. Are we over-engineering the solution?
3. Is it significantly better than what it replaces?
4. Is there a connection with those who will pay for and those who will benefit from the technology?
5. What skills and processes need to be in place for the technology to work (and are we willing to adopt them[)?]”
But that wasn’t Peter’s question. The simple answer to his question is “yes,” answering Copeland’s questions would help many firms. The interesting question is whether hype does us any good. Copeland answer the question with a “no,” but I’m going to give a quasi counter-argument.
Over-Hype Can Help
My first argument for hype in the legal industry is “the burning platform” view. Managing partners at law firms say they understand their firms need to change, and change bigly. The last report I saw put the number at 96%. But, equity partners at those firms oppose change, with 67% saying they want things to stay they way they are. The problem: in many firms the platform is peaceful.
We know the metaphor. Nothing happens until the platform starts burning. With fire comes a flurry of activity. The danger for large law firms sounds like the frog in the pot of water metaphor (and yes, I know this metaphor is wrong). The story is that if you put a frog in a pot of boiling water it will jump out. But if you put it in cold water and raise the heat it will stay until its unfortunate death. In real life, that isn’t what happens but it gives us a vivid mental image. We could compare large law firms to the frog in the story. At most firms, things are peaceful. Partners seem content to wait.
For some, waiting means seeing if they can make it to retirement without investing in serious change. For others, retirement is in the distance but the pressures of today exceed future risks. They risk being the boiled frog. They seem content to take the chance.
Hype may help. Hype creates a sense of urgency. It makes it sound as if the lawyers face rapid change. In the case of AI and law, the hype suggests that if law firms wait, the future will be dark and stormy. That hype is the burning platform triggering some firms to do something. In fact, this is what we have seen.
For two years, we have read reports of some firms sliding into AI activities. They have licensed software or started using AI-enabled services. Great fanfare, blowing of trumpets, and “huzzahs” have accompanied their moves. These firms get it! The grand transition to AI has begun. So, even with all the downsides, hype may cause some movement. In the legal industry, movement is tough to achieve, so hype may have some value.
My second argument is that hype my spur some change below the AI level. As firms look at the products and services available, they may realize that they should stay in a pre-AI state. But, some things below the AI level — some of the questions Copeland suggests — may be worth asking. Looking at an all-electric car and you may decide you should stay in a pre-electric car state. So you move to a hybrid, however, because it will help.
As Copeland’s first question implies, ask what you are trying to do and you may find better solutions than hyped tech. AI may sound like a cool way to do something. Process improvement coupled with automation may get you to a solved problem faster and at lower cost. Process improvement and simple tools may bring higher rewards than AI can bring in a narrow area of expertise. Getting scared by AI may cause you to ask the questions you should have asked.
My third argument is tech awareness. Most lawyers are to tech savvy as Neanderthal Man is to Elon Musk. AI hype may cause some lawyers to realize that tech ignorance lacks the cachet it once had among the client elite. If an outpouring of social media venom can humble the CEO of a major company within hours. If new tech products can obsolete businesses within a decade. And, if some of the most respected scientists of our time think tech has the power to transform and extinguish our society. Perhaps it is time to check out this tech thing.
Bad Things Can Lead To Good Things
General counsel face a strange battle within corporations. The way to avoid some of the most significant legal costs a corporation may face is to engage in preventive law. To succeed with preventive law, one must appreciate the risks of failure. Corporate leaders who have avoided the costs and pain of major, existence-threatening lawsuits, may lack respect for failure. They underestimate the risk. That inhibits them from supporting spending on preventive law. Many general counsel have wished in their heads for a devastating lawsuit. Nothing like a burning platform to get the message across.
The legal industry faces a similar challenge. We may see climate change re-shaping the world. We may hear all the experts telling us that unless we act, we will lose the opportunity to act in the future. Lawyers have resisted. It was easier to throw labor at a problem than to move to tech. My vegetable garden does fine and in fact does a bit better as temperatures warm in my zone. I can let fixing the climate (or legal industry) be some other person’s problem.
Hype has many downsides, but it has some upsides. Getting those lawyers who firmly believe tech is a fad engaged in the future could be a big upside. If over-hype means a few lawyers get scared into asking the right questions, I can live with the over-hype.
There has been growing concern about the phenomenon of science hype, the tendency to exaggerate the value or near-future application of research results. Although this is a problem that touches every area of biomedicine, the topic of genetics seems to be particularly prone to enthusiastic predictions. The world has been told for over two decades-by the media, researchers, politicians, and the biotech industry-that a genome-driven health care revolution is just around the corner. And while the revolution never seems to arrive, the hopeful rhetoric continues. It has been suggested that this unrelenting “genohype” is having a range of adverse social consequences, including misleading the public and hurting the long-term legitimacy of the field. While we need more good data on the nature and magnitude of these possible harms, few would argue with the proposition that sustained science hype is a bad thing. We all benefit from robust science and accurate public representations of biomedical research. But, to date, there has been very little consideration of the degree to which the scholarship on the related ethical, legal, and social issues has been hyped. Are the conclusions from ELSI scholarship also exaggerated?